Freedom-of-thought-and-expression by asafwewe

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									                           Freedom of thought and expression
                                   General Report

               [Political Structure and Human Rights-European Union Meeting
                        Union of Turkish Bar, Ankara 16-18 april 2003]


                                                                          by Tania Groppi
                                                                     Siena University, Italy

    1. Introduction


    Freedom of thought and expression constitutes one of the essential foundations of a
democratic and pluralistic society [as many times EurCourtHR adfirmed: inter alia v.
Fressoz and Roire (“Canard enchainé) v. France, 21.1.1999, in 20 HRLJ 308 (1999)].


    Freedom of thought concerns the “interior” aspect of the freedom, and is strictly
connected with other rights regarding the personality, finalized to avoid external
interferences in the personal sphere, such as liberty, security, and respect for private and
family life.
       This freedom was histroically born as conscience and religion freedom, in the
face of dominant religion, and on this basis developed as freedom of thought. We can
find traces of this history in the international Charters of Human Rights: in general the
same article (that is to say, art.18 Universal Declaration of Human Rights; art.9
European Convention of Human Rights; art.10 Charter of Fundamental Rights of
European Union) recognizes thought, conscience and religion freedom.
       Art 9 of ECHR declares:
    « Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change one’s religion or belief and freedom, either alone or in
community with others and in public or private, to manifest one’s religion or belief, in
worship, teaching, practice and observance. »
       This right is absolute, that is it cannot be limited or balanced.


       Freedom of expression concerns the “exterior” aspect of the freedom, and
bridges interior personal freedom and collective (like freedom of assembly or
association) or cultural rights (such as arts, science and education freedom). As we find



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in the former, it claims absolute protection; but as the latter, may conflict with the
maintaining of social order.
    This freedom can be limited and balanced with other rights and freedoms and with
the necessity to conserve the social order. We may quote art. 10 of ECHR:
    « 2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary. »
       The contents of this right are complex; to quote yet again art.10 ECHR:
    « 1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises. »
    Usually, the freedom to look for information is included in the contents of the right,
and apart from its absence in the ECHR, the European Court of Human Rights in its
practice recognized this addition [ECHR 22 may 1990, Autronic AG v. Switzerland].
    So, we can considere that freedom of expression includes an “active” aspect
(freedom to inform) and a “passive” aspect (freedom to receive information). In other
words, art.10 is not limited in protecting only the “traditional” aspect of the freedom of
expression, which coincides with recognizing a sphere of autonomy free from unlawful
external interferences, but also recognizes an additional dimension. This is important
for two reasons. First, the right to receive (or seek) information is the preliminary right
that renders effective the exercise of all the other fundamental rights and freedoms,
including the freedom to hold opinions. In fact, every right implies a freedom of
choice, and every choice, in order to be truly free, assumes a certain level of
information. Secondly, the freedom to receive (and to seek) information implies the
protection of a plurality of opinions and thus fosters an active and knowledgeable
population participating in the political and social life of the community.              This
combination, in turn, constitutes an essential ingredient for democracy.
       The guarantee of this freedom implicates not just an abstention, but an activity
of public powers, to build instruments which allow everybody to express his opinion


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and to find information: the guarantee of this individual right is, at the same time, also a
guarantee of the pluralism of opinions in a democratic society. From this point of view,
freedom of expression is closely linked with political rights.


       The two freedoms are very closely connected. The link between the freedom to
form one’s thought freely and the freedom to communicate one’s ideas and opinions
freely demonstrates the central role of the principle of self-determination of the
individual in the community system of fundamental rights.


   2. Freedom of thought and expression in National Reports


   2.1. Freedom of thought


   Most Constitutions explicitly regulate freedom of thought. The model seems to be
the art.9 of ECHR: freedom of thought is guaranteed together with freedom of
conscience and religion. There is a difference between this model of regulation and
most of western Constitutions (as Italian Constitution, art.21), where this right is not
explicitly regulated and it is implicit in other rights, mainly in the freedom of
expression.
   Occasionally the contents of the right is detailed: in Bulgaria, the Constitution states
that “The State can not prosecute or limite “anyone” because of his thoughts, neither to
oblige or force a person to give information for his beliefs” (art. 38), in Estonia that
“everyone has the right to remain faithful to his or her opinions and beliefs; no one shall
be held responsible because of his or her beliefs” (art.41), in Turkey that “Everyone has
the right to freedom of thought and opinion. No one shall be compelled to reveal his
thoughts and opinions for any reason or purpose, nor shall anyone be blamed or accused
on account of his thoughts and opinions” (art.25).
   A problem to stress is whether this right can be limited: of course, it cannot if there
are no explicit limitations in the Constitution. In Hungary the Constitutional Court states
that conscious conviction is part of the personality, of human nature and human dignity
and that the state is prohibited from interfering with the exercise of this freedom. In
Romania, art.29 states that “ Freedom of thought, opinion, and religious beliefs may not
be restricted in any form whatsoever. No one may be compelled to embrace an opinion
or religion contrary to his own convictions.”


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    The problem arises in the countries that have a general limitation clause. Does this
clause also concern freedom of thought? In Latvia the limitation clause explicitly
enounces which rights can be limited, and there is no freedom of thought. But in Turkey
the situation is not so clear, because it seems art.13 (limitation clause) concerns every
guaranteed right, including freedom of thought, and the same can be said about art.14
(abuse of rights), in spite of 2001 constitutional reform, that seems to emphasize
“activity” more than “thought or opinion”1.




    2.2. Freedom of conscience and religion


    Constitutional provisions about freedom of conscience and religion are more
detailed. The model is yet again the ECHR, art.9. In the regulation of this freedom there
are two elements to note: firstly, it regulates not just the interior side of freedom, but
also the external declaration; secondly, this freedom, because of this external side, has
some limitation, it is not absolute.
    About the contents, the art.9 ECHR is usually repeated. E.g., “This right shall
include the free choice or acceptance of a religion or belief, and the freedom to publicly
or privately express or decline to express, exercise and teach such religions and beliefs
by way of religious actions, rites or in any other way, either individually or in a group”,
said Hungary Constitution (art.60, which is one of the rare provisions that determine
contents of the right in detail).
    Regarding limitations, there are some nation-related differences: e.g. in Bulgaria the
State could intervene in the field only, if the freedom of conscious and religion is a
danger for national security, public order, people’s health, the moral and the rights and
freedom of other citizens (art. 37.1 and 2); in Latvia the general limitation clause
concerns this freedom: but art.116 clarifies that it only permits limitation of the
expression of religious beliefs. In Hungary art.60 provides that “A majority of two-



    1
       “ None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of
violating the indivisible integrity of the state with its territory and nation, and endangering the existence
of the democratic and secular order of the Turkish Republic based upon human rights.
     No provision of this Constitution shall be interpreted in a manner that enables the State or individuals
to destroy the fundamental rights and freedoms embodied in the Constitution or to stage an activity with
the aim of restricting them more extensively than stated in the Constitution.
The sanctions to be applied against those who perpetrate these activities in conflict with these provisions
shall be determined by law.”

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thirds of the votes of the Members of Parliament present is required to pass the law on
the freedom of belief and religion.”
       On this basis, in some countries the separation between Church and State is
provided (Hungary, art.60, Latvia, art.99). In Slovenia, the principle is the separation of
the State and religious communities. The legal position of religious communities is
therefore based upon three fundamental principles: the principle of separation of the
State and religious communities, the principle of equality of rights of religious
communities and the principle of free pursuing of their activities. The Constitution does
not draw a distinction between the recognised and unrecognised religious communities,
which means that no religious community has a special position in comparison to others
(none must be privileged or disregarded). On the other hand the State has to ensure to
religious communities not only the position on an equal footing but also the freedom of
activities and autonomy. From the latter the right also derives to freely profess religious
beliefs in private and public life, which is separately provided for in the Constitution.
       The constitutions of European Union members usually provide this right, but the
attitude towards religion is different, because some of them provide for a “State
religion” (Greece, art.3, Danemark, art.4).
       National reports stress some problems about freedom of religion.
       In Hungary, the Constitutional Court has furthermore emphasized that church
and religion are different notions and art. 60 applies irrespectively of whether religion is
practiced individually or collectively, privately or publicly.
       In connection with the separation of the state and the church, the Constitutional
Court has noted that this separation does not preclude the state from considering the
special status of religion and church, which distinguishes them from other associations
and social organizations. However, consideration of distinctiveness and historical
conditions must not result in the favoring of the traditional large churches. The
Constitutional Court has frequently repeated that the state is not obliged to set up and
run religious schools. The state has a duty to finance religious schools only if and to the
extent they took over from the state the task of providing obligatory and free schooling.
       In Latvia several denominations regarded as traditional in Latvia enjoy certain
privileges over others. Thus, pursuant to Art.53 of the Civil Law the persons belonging
to Evangelical Lutheran, Roman Catholic, Orthodox, Old Believers, Methodist Baptist,
Seventh Day Advetist and Moses (Judaism) denominations can be married by the
minister of these denominations, while for other only civil marriage is possible. Art.6 of


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the Law on religious organizations further provides that in public schools, as an
alternative to teaching of ethics offered by the school, only the basics of Christian belief
can be taught at the expense of the state, and only by five Christian denominations (all
of the above with the exception of Seventh Day Adventists). There was an attempt to
bring a constitutional complaint challenging this restriction, but the Court dismissed it
by holding that the disputed norm created the right of the pupils to study certain subjects
at school and thus the rights of the petitioner – a parish of the traditional Latvian
religion, “Dievturi” – were not affected; presumably, the Court would have to consider
the case if the complaint were brought by pupils’ parents professing this religion.
       With regard to the freedom of conscience, it is interesting to stress that in
Hungary the state's duty with regard to freedom of conscience is to abstain from
threatening the integrity of the personality by enforcing destructive choices and to
provide for solutions which might preserve this integrity at the lowest cost. The
Constitutional Court has extended the requirement of state neutrality to homosexual
cases, where it avoided moral judgments on preference for any sexual orientation.
       Slovenia is the only country which, regulates the right of conscientious objection
at constitutional level. The right of conscientious objection is an exceptional form of
legally permitted disagreement of an individual with legal obligations or prohibitions.
The Constitution states that conscientious objection is permissible in cases provided by
law where this does not limit the rights and freedoms of others. The right to
conscientious objection is particularly regulated in the field of national defence in
connection with military service and in the field of health care, most commonly in
connection with the freedom of choice in childbearing (with the so-called artificial
interruption of pregnancy). A citizen who because of religious, philosophical or
humanitarian convictions is not willing to perform military duties, must be given the
opportunity to participate in national defence in some other manner. On the basis of the
right to conscientious objection, a recruit may participate in national defence in two
ways: he may serve either military service without arms or substitutive civil service
(which is equal to military service as regards its duration). Not only do recruits have the
right to conscientious objection, this right may be asserted all the time during military
service. The Health Activity Act allows a health worker to refuse a medical intervention
if such intervention is not in accordance with his conscience and international rules of
medical ethics. The health worker must inform his health institution about his
conscientious objection. The institution is obliged to respect such a decision, however, it


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must make sure that the patient may freely assert his rights in the field of health
protection.
       The right of conscientious objection is not provided for in ECHR. This right is
provided for in the Charter of fundamental rights of the EU, as the result of common
constitutional traditions (art.10), but it is regulated just in few constitutions (Austria,
art.9a; Germany, art. 4.3; Spain, art.30.2; Portugal, art. 41.6), and always in the field of
national defence.




       2.3. Freedom of expression


       2.3.1 Contents of the right


       The contents of freedom of expression are quite similar in the analysed
Constitutions, and its model is art.10 ECHR.
       The right to express opinions, to acquire and to disseminate information is
guaranteed, and it enhances all form of expression: from speech, through writings or
pictures, to mass media. Any censorship is explicitely prohibited (Estonia, art.45;
Hungary art.61; Lithuania, art.25; Poland, art.54; Romania, art.30; Slovakia art.24;
Slovenia art.; Turkey, art.26).
       An important question is whether every kind of expression must be guaranteed,
or if there are some opinions wheose expression is not guaranteed. This is an open
problem in many countries: we can refer to “shoah cases” in Germany, France, Spain,
with different decisions of Constitutional Courts.
       The Hungarian report points out that Constitutional Court stressed that freedom
of expression protects opinion without considering its value or truthfulness. Since it has
not been respected and for example the criminal offense of “incitement of the people”
has been misused under socialism, the Constitutional Court has emphasized the
ideological neutrality of the Constitution in general, and of the specific provision
declaring freedom of expression.
       Polish report stresses that the freedom to communicate opinions enhances all
form of expression: from speech, through writings, to mass media. It also enhances
symbolic speech as well as (Article 73 of the Constitution) artistic and scientific
expression. At the same time, there are certain types of expression that are not protected


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at all (defamation, libel, pornography) or are protected only to a limited degree (so-
called commercial speech). Freedom of religion or personal dignity is the justification
for penalisation of the so-called “Auschwitz-hoax”, i. e. the denial of the existence of
Nazi concentration camps.


         2.3.2 Limitations


         Freedom of expression in not an absolute right. It can be limited, as at the
international level the ECHR and the Charter of fundamental Rights of EU recognize.
         Two models of limitations are pointed out by the National Reports, one similar
to Charter of fundamental Rights2, the other to ECHR3.
         On the one hand, there are some countries that do not have an “ad hoc”
limitation clause, but only a general limitation clause. It must be pointed out that in
these countries Court decisions play an important part in defining and interpreting
limitations on freedom.
         This is the case with Hungary, whose general limitation clause is not detailed: it
only enables “the law” to regulate fundamental rights, but that law cannot restrict the
essential content (art.8). The Report affirms that it is clear that “regulation” involves
limitations, too. As concerns freedom of expression, in order to determine whether the
limitation of the freedom of expression is constitutional, the Constitutional Court has
developed a gradual test. Limitations must be interpreted restrictively. Among the
different limitations, more weight is to be attached to those which protect other

2
  Art.52.1 Charter of fundamental rights of European Union states: “Any limitation on the exercise of the
rights and freedoms recognized by this Charter must be provided for by law and espect the essence of
those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if
they are necessary and genuinely meet objectives of general interest recognized by the Union or need to
protect the rights and freedoms of others”.
3
     Art. 10 ECHR states: « 2.The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary. » It must to be pointed out that
the case law of the European Court of Human Rights has constructed a series of principles designed to
circumscribe the scope of national legislators in imposing limits on freedom of expression. Such
principles include the precise definition and interpretation of the limitations allowed by article 10, the
requirement of limited measures that correspond in scope to “preeminent social needs,” the
“proportionality” of the limitations with respect to the objectives that the legislator intends to accomplish,
and a necessary balancing of the interests affected. It must also be pointed out art. 17 of ECHR: “Nothing
in [the] Convention may be interpreted as implying for any State, group or person any right to engage in
any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the Convention.”


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fundamental rights directly, while less weight is to be given to those limitations which
protect other rights indirectly, through an institution. Those rules which limit
fundamental rights in order to protect some abstract values (like public peace) are only
given minimal importance. While the active form of freedom of expression may in
exceptional cases be restricted, its passive form, i.e. the abstention from expressing
one’s opinion, cannot be subject to interference. No one may be obliged to express his
or her view on religious, ethical or political questions.
       This is also the case with Latvia: art.116 permits the limitation of freedom of
expression according to the criterion, “in circumstances provided for by law in order to
protect the rights of other people, the democratic structure of the State, and public
safety, welfare and morals. On the basis of the conditions set forth in this Article,
restrictions may also be imposed on the expression of religious beliefs.” Although there
is no requirement that restrictions must be “necessary in a democratic society” including
proportionality considerations, scholars have argued that, notwithstanding this
deficiency, the principles of necessity and proportionality must be applied, as they are
implied in art.1 of the Constitution proclaiming Latvia as an independent democratic
republic; this has been confirmed in practice by the decisions of the Latvian
Constitutional court.
       This is also the case with Poland: art. 31 sec. 3 of the Constitution deals with
limitations of individual rights: “Any limitation upon the exercise of constitutional
freedoms and rights may be imposed only by statute, and only when necessary in a
democratic state for the protection of its security or public order, or to protect the
natural environment, health or public morals, or the freedoms and rights of other
persons. Such limitations shall not violate the essential content of freedoms and rights”.
       From the other hand, some countries have an “ad hoc” limitation clause
concerning freedom of expression.
       We can classify limitations in some categories, on the basis of the contitutional
value protected.


       a) First, there are limitations that are closely linked with the rights of other
people. In this category it is possible to find different rights, ranging from health
(Estonia and Lithuania) to good reputation or honour of someone else (Bulgaria,
art.39.2; Estonia 17; Romania, art.30); private and family life (Lithuania, Romania,



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art.30; Turkey, art.26.2); dignity and one’s image right (Romania art.30). The aim of
these provisions is to avoid infringement of these protected rights.
         In this regard, it should be pointed out that in some countries, in the practice of
the Courts or in the statutes concerning freedom of expression and defamation issues,
factual statements and value judgments (opinions) are to be distinguished. A statement
of fact can be proved in a court proceeding. Value judgement, on the other hand,
contains an opinion that can be motivated, but cannot be proved (e.g. Estonia, Latvia)4.
         A second remark is that in some countries (Estonia) the concept of the public
figure has been recognised by the courts. Degradation of honour in connection with the
activities of a public figure can cause moral damage to him or her only in cases the
court finds the untrue information concerning the public figure especially degrading .
           The tendency in legislations is in the direction of limiting criminal punishment
for defamation 5 and to circomscribe the compensation6 . In Lithuania, it is prohibited to
impart information collected about the private life of a person, unless it imparts
information corresponding to the interest of lawful and reasonable society to obtain
such information taking account of a person's office or social status. In Romania the
revision of the criminal code annulled criminal punishment for assault and reduced
criminal punishment for defamation. However, assault remains a crime.




4
  In Latvia, the Report said, the final decision adopted by the Supreme Court Senate in the landmark case
of a former minister for agriculture against the biggest Latvian daily - L.Strujevičs v. a/s”Diena” un
A.Ozoliņš was the first case which was decided taking into account the standards developed by
Strasbourg institutions and distinguishing facts from value judgments and recognizing the special position
of politicians as far as criticism is concerned; however, while the judgment demonstrates that the courts
are aware of the Strasbourg criteria and interests to be taken into account, the application of them is
nevertheless disputable, as, in the view of the author of this report, what was clearly value judgments
were qualified by the court as facts – and, inevitably, false facts, as their truth could not be proven. Also
the damages awarded - the equivalent of 10.000 Euros - seem to suggest disproportionate sympathy for
the individual’s reputation rather than for the importance of freedom of expression in a democratic
society.
5
  In Estonia the offences of defamation and insult were omitted from that code. The Penal Code contains
only aggravated offences of defamation and insult – defamation of persons enjoying international
immunity, defamation of a court or judge in connection with their participation in administration of
justice, and defamation or insult of a representative of state authority in connection with the performance
of his or her official duties. All these offences are punishable by a pecuniary punishment or up to 2 years’
imprisonment.
6
   In Estonia according to the Law of Obligations Act the non-proprietary damage caused by defamation
(or violation of other personality right) shall be compensated only if this is justified by the gravity of the
violation, in particular by physical or emotional distress of the aggrieved person. The amount of the
compensation shall be determined by the court. The new legislation – similarly to the legislation in force
before – does not explicitly use the concept of public figures. In general, the new law is more precise than
the earlier rules, but quite a large discretion has been left to the courts. It remains to be seen if the courts
will make any substantial changes into their practice.

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         b) Secondly, there are limitations to protect public values, values of the State
and society. This kind of clauses was introduced, first, in the 1789 French Declaration
of Man’s and Citizen’s rights (public order). Today, many clauses are inspired by the
conception of “militant democracy”, typical of German Constitution7.
         Freedom of expression can be limited if it is used for the calling to a forceful
change of the order, established by the Constitution (Bulgaria art.40.2; Lithuania) or the
basic characteristics of the Republic (Turkey, 26.2); or for defamation of the country
and the nation (Romania art.30).
         It can be limited if it is used for the commission of crimes, to the bringing of
hostility or to violence towards the personality (Bulgaria art.40.2); for the purpose of
preventing crime and to punishing offenders (Turkey, art.26.2); for reasons of public
order (Estonia 45); “ national security, public order and public safety” (Turkey, 26.2); if
it is used to make war propaganda, or for violation of racial and national equality
(Latvia), or for instigation of national, racial, religious or social hatred (Lithuania;
Romania, art.30; Slovenia), or for any incitement to territorial separatism (Romania,
art.30), and to safeguard the indivisible integrity of the State with its territory and
nation, (Turkey, art.26)8
         Other limitations in this category concern morals (Estonia 45): obscene conduct
contrary to morality shall be prohibited by law (Romania, art.30)9 .
         In this category it is possible to also find limitations related to secrets protected
by law (Bulgaria, art.41): state, commercial, professional, technological secrets
(Lithuania); state secret or professional secrets (Turkey, art.26)10.



7
    Art.18 Germany Grundgesetz said: “Whoever abuses the freedom of expression, in particular the
freedom of the press (paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5), the
freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence,
posts and telecommunications (Article 10), the rights of property (Article 14), or the right of asylum
(Article 16a) in order to combat the free democratic basic order shall forfeit these basic rights. This
forfeiture and its extent shall be declared by the Federal Constitutional Court”.
8
  In Anti-Terror Law, besides ECHR, some provisions remain, such as art.7 (“propaganda in connection
with the (terrorist) organization in a way that encourages the use of terrorist methods), art.8 (regulates the
crime of making “propaganda against indivisible unity of the State”: No written, verbal or visual
propaganda, assembly, demonstration and march targeting to destroy the indivisible unity of the
country/territory and the nation of the State of Republic of Turkey is allowed to be made.”. Turkey Press
Law: The confiscation is possible in case of crimes against “indivisible unity of the nation and
country/territory of the State, the fundamental principles of the republic and the republican regime as well
as national security”.
9
   In Turkish Press Law it remains the general moral as a reason for the prevention of the distribution of
any works (not provided for in the Constitution).
10
    In Turkish anti-terrorist law, art.6 remains which provides for the punishment by heavy fines of those
who disclose or publish/broadcast the identities of any public or governmental officials having taken part
in the fight against terrorism, as well as of those who expose any such people to target by such means.

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       As we can see, in this category we find a lot of limitations, and clauses are so
broad (e.g., “national security,” “territorial integrity,” “public safety,” “prevention of
disorder or crime”) as potentially to deprive the freedoms recognized of any effective
significance. Therefore, the effectiveness of freedom of expression depends both on the
courts and on the legislator: constitution texts do not help a lot.
       Compared to legislations, it is really interesting to point out Turkish reforms
packages. I think it is possible to find two tendencies which also exist in Western
European legislation.
       On the one hand, I would like to recall art. 159 Turkish Penal Code: “Any
written, verbal or visual expression of opinion having been made in order to criticize the
state organs or public institutions … without the intention of “insulting to/defaming”
and “deriding” them does not require to face criminal sanction.”
       Again, art.312 Turkish Criminal code, which states: “Anyone who, based on and
due to any social class, race, religion, sect or regional difference, publicly incites the
people to enmity or to cherish a grudge against each other in a way that may be
dangerous for public order is punishable by a penalty of imprisonment from one to
three years.”
       These new rules express: a) the tendency to de-criminalisation of previous
crimes of this category and to extend freedom of expression; b) the tendency to require
an activity, not just words.
       Both imply a dramatic change in the understanding of this freedom: public
powers need less protection than in the past when faced with words and opinions, and it
is a step in the liberal direction of the “free market of ideas”.
       On the other hand, I would recall art.312 of the Turkish Criminal Code after
recent reforms: a new rule was introduced, wording that “insulting to and defaming a
part of the people degradingly and in a way that hurts human dignity is punishable by
the imprisonment punishment provided under first paragraph”. This new provision
reflects a contemporary approach that prohibits any ethnic and religious discrimination
and raises the dignity and honor of human-being. So, there is a tendency –opposite to
the first - to introduce new limitation, to protect new fundamental values.


    c) Finally, it must be pointed out that most of the Constitutions also temporarily
        limitations upon the declaration of war, military or other state of emergency.



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        Two last remarks about the limitation of freedom of expression.
        First, it must be pointed out that not every constitution indicates which act can
limit the right: most part of constitutions refer to a “law”, but there are some that do not
contain this reference. In any case, the space for the law can be wide: e.g., art.30.8 of
the Romanian Constitution said “Civil liability for any information or creation made
public falls upon the publisher or producer, the author, the producer of the artistic
performance, the owner of the copying facilities, radio or television station, under the
terms laid down by law. Indictable offenses of the press shall be established by law.”
The freedom of this law seems to be unlimited. The courts, finally, should define this
space. At the end, we come back another time to the courts…
        Second, there is the problem of penalties. In some countries (Turkey) the Report
stress that even if the removal of imprisonment penalties from the Press Law is a
positive development, the very high level of fines is a factor that would weaken the
possibility of their payment or would make it impossible so that conclusively
imprisonment penalties up to three years can come into question due default of payment
of such fines.
        Other Reports (Romania) point out the importance of the right of rectification
and reply. It must exist even if it is not provided for in the constitution (but v. art.32
Turkey constitution).




        2.3.3. Mass media regulation


        The freedom of mass media is a significant aspect of the freedom of information.
        Art.11 of Charter of fundamental rights of European Union states that “The
freedom and pluralism of the media shall be respected”.
        “Pluralism of media” means both “external” and “interior” pluralism.
        “External pluralism” means that State must fix some rules of the game, to avoid
any monopolizing and concentration. This is a problem not only in Poland or Turkey11,
but in every democratic and pluralistic country, as the situation in Italy makes clear.


11
  In the Turkish Law of Establishement and Broadcasting of Radios and Television any factors which
would prevent any monopolizing in a vertical manner, have also been removed from the law. For
example, the provision that no press/written media enterprises may have a share more than 20% has not
been provided in the new regulation. This circumstance might lead to monopolization in a vertical
manner.


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This not only in order to pursue the values of the market and competition, but mainly to
guarantee respect for freedom of information, and in particular for the principle of
pluralism. Limitations of freedom of enterprise can be more relevant than limitations
made only in the name of antitrust activity. It is difficult to appreciate Polish regulation,
according to which private stations are not required to represent plurality of opinions,
unless they participate in public procedures, e. g. in the electoral campaigns.
        With regard to television, art. 10 of ECHR states that “This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises”.
       An important instrument for the guarantee of external pluralism is the obligation,
upon the mass media, to publicize their source of financing (Romania, art.30.5 Cost.).
        “Internal pluralism” concerns public radio and television: they have some
specific duties, first of all, to represent plurality of opinions, and to provide full
information to the general public.
       National Reports point out both these aspects, and they express constitutional
and legislative rules. In these constitutions (as they are recent ones) there are some rules
regarding radio and television, and not only traditional rules about press (as in older
constitutions). But most part of the regulation is made by statutes: the problem is that
this regulation can change easily, as the Bulgarian Report stresses. In Romania, the
organization of public radio and television and parliamentary control over their activity
shall be regulated by an organic law.
       Finally, the most important instrument to guarantee both external and internal
pluralism, is the creation of an independent authority, given the task of vigilance over
radio and television: Turkey and Poland offer examples in this direction, as do many
European Union member countries. Appointments and powers of this authority are
controversial and must be carefully regulated.


       A peculiar problem is the aspect of language restrictions applying to
broadcasting media. In Latvia, art. 19 of the Law on radio and TV stipulates that private
radio and TV stations can broadcast in languages other than Latvian up to 25% of the
total volume of broadcasting time in a twenty-four hour period, thus clearly limiting the
possibilities of linguistic minorities to establish their own media by imposing on them
disproportionate burden. While there was an attempt to challenge the 25% rule applying



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to private media in the Constitutional Court, the Court rejected it on grounds of non-
exhaustion of other remedies.
       In other countries, it seems this problem does not exist: in Lithuania some
television and radio stations broadcast programs in languages of national communities
(Polish, Russian, Byelorussian).
       In Turkey, in the third reform package, the Law on Establishment and
Broadcasting of Radios and Televisions (RTYHK/LEBRT) has been amended in order
to release “the broadcasting in various languages and dialects being used traditionally
by the Turkish citizens in their daily life”. In this respect the Law on Establishment and
Broadcasting of Radios and Televisions (RTYHK/LEBRT) enacted and enforced the
“Regulations on Teaching of Various Languages and Dialects being traditionally used
by Turkish Citizens in their daily Life”.




       2.3.4. Internet


       Only a few National Reports point out Internet problems. And, due to its
novelty, even European member’s constitutions do not contain provisions about it.
       But the problem exists: the Bulgarian Report stresses that due to economic
problems - low incomes and living standards - many citizens, including scientists and
students cannot afford computers and internet. This is a limitation of freedom of
expression, that needs the activity of public powers to remove it.
        In Turkey, legislation provides the obligation of submitting web pages to the
authorities for approval before being published. This is a kind of censorship of Internet
content. Interpreters must extend constitutionals rules about press and mass media to
Internet.




       2.3.5 Access to documents




                                                                                       15
       The right to accede to documents of public institutions is not explicitly
recognized by the ECHR. But it does not mean that it is not fundamental for democratic
states: as Norberto Bobbio said, “democracy is the transparent power”, and Carl Popper
spoke of an “open society”.
       This right – which is the right of any citizen, and is different from the right of
access of journalists – is recognized in the Charter of Fundamental Rights of the
European Union (art.42: “Any citizen of the Union…has the right of access to European
Parliament, Council and Commissions documents”). European Union member
constitutions in a few cases recognise this right (e.g. Spain, art.105.b; Portugal,
art.268.2; Finalnd art.12; Belgium, art.32), and in most of the countries the right is
recognized at the legislative level.
       The same happens in the countries examined. In Estonia, Article 44(1) states that
everyone has the right to freely obtain information for public use. In Romania, art.31
states that “1. A person's right of access to any information of public interest cannot be
restricted. 2. The public authorities, according to their competence, shall be bound to
provide for correct information of the citizens in public affairs and matters of personal
interest. 3. The right to information shall not be prejudicial to the protection of the
young or to national security.”
       In other countries, there is a guaranteed legislative right of access: in Latvia, the
1998 Openness of Information Law establishes a general principle of the right of access
to information held by public bodies, in Lithuania the Law on the Right to Obtain
Information from State and Municipal Institutions establishes the right of a person to
obtain information from state and municipal establishments and the procedure of
implementation of this right. In Slovenia the Public Media Act constrains state
authorities, local community authorities, individuals performing public functions or
public services, public institutions and public enterprises to ensure publicity of their
work by giving timely, full and true information on questions regarding their field of
work. Journalists have, under equal conditions, the right to access information.
Information may only be denied when it is defined in accordance with the law as a state,
military, official secret or business secret or when this would mean a breach of
confidentiality of personal data or would prejudice the course of judicial proceedings.


       3. Conclusions



                                                                                          16
         Freedom of thought and expression in democratic and pluralistic countries is
fundamental for the democratic order and a pre-condition of implementation of other
human rights and freedoms.
         National Reports show the importance of this freedom in candidate countries and
progress in the direction of more liberal legislation, but at the same time point out some
difficulties.
         Decriminalization of crimes of opinion and regulation of mass media must be
stressed as positive developments. On the contrary, large constitutional and statutory
limitation clauses must be pointed out as the negative heritage of non-democratic states.
         In European Union members countries we can see no different aspects and
problems.
         The aspect of mass media pluralism is central: it needs legislation, and it is often
difficult to find the necessary political agreement to enact this kind of antimonopolistic
regulation, and to guarantee the stability of these rules: every political force, if it has the
numbers, would to enact its press and broadcasting regulation.
         The problem of limitation clauses is also present in European Union members:
and the tendency is similar. Courts enforce fewer and fewer traditional limitation
clauses (in the name of the state and the nation, public order or public morality), that are
not abrogated. Usually Courts limit these clauses, by the request that opinions be
“directed to inciting or producing imminent lawless action”.
         At the same time legislation introduces new limitations, in the name of new
values, such as privacy or antidiscrimination (as punishment for racial or ethnic hatred).
         International documents go in this direction: art.20.2 of the International
Covenant on Civil and Political Rights establishes that “Any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law ”. 12


         12
             Art 4 International Convention on the Elimination of All Forms of Racial Discrimination,
Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21
December 1965, said: “States Parties condemn all propaganda and all organizations which are based on
ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which
attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt
immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination
and, in this end, with due regard to the principles embodied in the Universal Declaration of Human Rights
and the rights expressly set forth in article 5 of this Convention, inter alia:
          a) Shall declare an offence punishable by law all dissemination of ideas based on racial
              superiority or hatred, incitement to racial discrimination, as well as all actes of violence or
              incitement to such acts against any race or group of persons of another colour or ethnic
              origin, and also the prevision of any assistance to racist activities, including the financing
              thereof;

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           In the case of hate speech, the punishment is based on the simple dissemination,
and it doesen’t need instigation. It is more correct to speak of “negation of the right”,
than of “limitation of the right”. Also European Court of Human Rights doesn’t
recognize a full protections to this kind of opinions, and when the Court condemnes the
States because of freedom of expression limitations based on hate incitement, it happens
usally because of disproportionality of penalties13.


           Tension between freedom of expression and other values is present in European
Union members as well as in candidate States, and, by legislation, by case law and, last
but not least, by constructing a new cultural context, are looking for a balance in which
freedom has the greatest weight.




           b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda
              activities, which promote and incite racial discrimination, and shall recognize participation
              in such organizations or activities as an offence punishable by law;
           c) Shall not permit public authorities or public institutions, national or local, to promote or
              incite racial discrimination”.
13
     ECHR, Jersild v. Danemark, 23 september 1994; Lehideux and Isoldi v. France, 23 september 1998.

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