08.04.2004 | Evhen Zakharov

“Absurd is real and reality is absurd …”


14 April, the Kharkov group for human rights protection

The criminal case started by the General Prosecutor’s office after Article 344 means the new phase of the brutal advance against the freedom of the press. Maybe, it is only the first stage: they began from the provincial newspapers and now are waiting for the reaction. If there would not be any reaction, then the authorities would move their activities to the capital, where the unbearable articles by Tetiana Korobova are printed, and to the Internet-editions… It has appeared that the publications about the connection of the President with the disappearance of Gongadze impede his work to such an extent that is interpreted as a crime! So the officials decided to gag in such a manner those, who express their opinions openly!

I think that this criminal case will demonstrate whether the President’s clique and the agencies loyal to him are really neglecting the permanent reproaches of the international institutions about the freedom of speech in Ukraine.

This criminal case is absurd from every aspect. We have already said about its “validity” from the point of view of the operating laws, and from the viewpoint of international legal standards the situation seems to be even clearer. Collection and distribution of any information that is not defined as secret is legal, independently of the motives of its collection and distribution. It is widely known that it is impossible to achieve democracy and the superiority of right without the freedom of collection, possession and distribution of information about everything concerning public life on the territory of the state or local communities. The freedom of expression is the foundation of democracy, since only well-informed citizens can hand the power to those, who would realize the power honestly and wisely. At the same time, the freedom of expression is the foundation of the superiority of right, since it is the best method to prevent the violations of right by the corrupted state officials. Every question concerning the domestic or foreign policy must be opened for public discussion, especially in the printed and electronic mass media. The freedom of discussing the controversial and complicated problems is the best stimulus for the government to adopt rational decisions that would be endorsed by the society.

These concepts were more than once confirmed by the practices of the European Court of human rights. The Court frequently quoted in its resolutions the fragment of the verdict of 1976 in the Handyside case, which stated that this freedom “may be applied to the “information” or “ideas”, which offend, shock or annoy the state organs or some part of public. These are the demands of pluralism, tolerance and breadth of views, without which no “democratic society” may exist” [§ 49].

The Court also declared for several times, in particular in the Belgium case Heis and Heisels, which concerned the admissibility of publishing extremely critical opinions about functioning of courts, that “it is necessary to keep in mind that Article 10 protects not only the contents of the ideas and information, but also methods of their expression” [§ 48].

Even if to assume that this meddling into the freedom of expression had the legal aim of “protecting public order and preventing crime” (one of the reasons of restricting the freedom of expression envisaged by law), all the same it is impossible to admit that this brutal influence was a pressing social need and that it was proportional. National power may not determine the balance of proportionality of any of these items and the freedom of expression without the assessment of the Court. This assertion can be illustrated, for example, by the case Klas and others: “Countries-members may not… apply every measures considered as proper by them” [§ 49].

The Spanish case Castells is also very interesting. The case was started after the claim of a senator, who was condemned for endangering the security of the state with the attempts of discrediting democratic institutions. In 1979 he published the article, in which he accused the government of the attacks of the right-wing armed groups and murders of Basques (20 years later it appeared that he was true). Spanish courts were not sure whether they had proper grounds for starting the criminal case. In one of its verdicts the Court pointed out that it appeared that the goal of these activities was not the protection of public order and national security, but the defense of the honor of the government. The appeals of Castells, in which he demanded to begin the consideration of the proofs of the veracity of the facts presented by him, were rejected by courts, since such consideration was inadmissible because of the accusation of insulting state institutions.

The European Court acknowledged that in this case the Spanish power violated the demands of Article 10. The arguments of the Court were the following: “Mr. Castells did not express his opinion from the senate rostrum (and he could do this without any risk), but decided to do this in the press. Yet, this does not mention that he lost his right to criticize the government. One must not forget about the main task of the press in a jural state… The freedom of the press gives to the political figures the right to criticize and comment everything that forms the public opinion, enabling everyone to take part in free democratic discussion, which is the essence of a democratic society…” [§ 43].

In the decision concerning this case the Court also remarked that, according to Article 10, “… the limits of the permitted criticism of the government are wider than of… a political figure. Activity or passivity of the government in a democratic society must be controlled not only by the legislative and court power, but also by the press and public. Besides, the dominating status of the government is a reason for introducing the restrictions of applying the criminal process, especially in the spheres, where other reactions are possible…” [§ 46].

Here are many other examples confirmed by the practices of the European Court. Let us hope that the quotation used in the title of this article will lose its actuality and the absurd will end.

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