Source: Politika
Politika - National and International Protection of Human Rights
Events which have caused an unusal number of strong reactions on the part of journalist and the media associations in the past few weeks indicate the existence of problems that are not only of individual, but also of general importance. The biggest publicity was legitimately given to a unique event in our practice of exercising freedom of speech - one of our citizens, referring to the violation of this freedom guaranteed by Article 19 of the International Pact on Civil and Political Rights, requested and was granted protection of the UN Committee for Human Rights.
In early November 2005, the Committe took a stand that the ruling of our court, by which a journalist was accused of libel, violated the freedom of expression. Our country is now obligated to annul the ruling, restitute the penalty and costs, pay damages for the violation of rights and inform the Committee about the actions taken.
The case got a specific, paradoxical or absurd tone when the same journalist was faced with the inventory of his possessions in order to pay a fine based on a similar ruling.
Freedom of expression is extremely important in every society, especially in one that is undergoing transition. It would not be an overstatement if we said that parameters of the quality of democratic transition of a country are especially important in exercising human rights in general, especially the freedom of expression. Of course, as we are talking about a fenomenon that has long overgrown national borders, criteria for the evaluation should be primarily seeked on the international level, especially in the practices of international institutions for the protection of human rights, such as the aforementioned UN Committee and, especially in the one particularly interesting to us, the European Court of Human Rights, to which Serbian citizens increasingly refer to.
The key words in the case we are talking about - „libelling“ a politician, public criticism and the press - indicate at least two key issues.
Firstly, is there a discrepancy between the positions of international institutions for the protection of rights and the positions in our national practice regarding limiting the rights of expression in the press because of libel, especially if it is a libel of a politician?
Bearing in mind that the „protection of honour and reputation“ is often (mis)used to limit the right of expression in the press, international institutions have, through practice, provided a high level of protection. As long ago as in 1986, in the almost legendary ruling of the European Court, passed in the case Lingens vs. Austria, at the request of the Austrian journalist acused for libeling the Chancellor Bruno Kreiski, the Court took the following position, “Freedom of press provides one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society… The limits of acceptable criticism are, accordingly, wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.”
Bearing this in mind, the Court took a stand that in his public criticism the journalist had the right to describe Kreiski as “an immoral, dishonest, and an opportunist of a lowest kind” and not to be sanctioned for it in any way. This and many similar rulings that followed established a stance that one is not answerable for their value judgement nor that they have to prove it. Only the authenticity of the expressed facts is subject to proof, but even in those cases a journalist's defence may be “an honest intention”, a proof that they had a reason to believe that the published facts were true.
Is our reality in accordance with these standards? To start with, it is good that we can say that some serious steps in this direction have been made with the amendments to the criminal legislation. Especially when it comes to eliminating a decade-long, special, much stricter criminal and legal protection of politicians, which is, of course, unacceptable from the point of view of international standards.
The dilemma wheteher we should have been more radical in the decriminalization of slander and libel still remains, but we cannot help but notice the examples of changes in the penal policy are going in the right direction. Of course, regardless of the results we have still not reached the level of European standards. Both in the law and in justice we need to make more effort to reduce the discrepancies. Even if it happens under the pressure of the decision of the European Court of Human Rights, considering that this is also happening in the countries with a much longer democratic tradition, it should not be seen as something tragical, but rather useful.
This is what emphasises the importance of another issue. Are we, as a country, ready to react to the decisions of, say, the European Court of Human Rights, in the same way as it would be expected from every member of the international community? There is no doubt that we are not. No doubt, because not even ten months after the said ruling of the UN Committee not a single obligation of the state was met, as for some of them there are no legal, and for others there are no factual preconditions. This should be done without further ado, and there is no doubt that the next decision must not be met in the same way.
Information Commissioner
