Souce: "Politika"
Our Constitution guarantees freedom of opinion and expression, and based on it media freedom (Articles 46 and 50) in the way which is in good correspondence with Article 10 of the European Human Rights Convention, which is in this field fundamental European legal document. Provisions from paragraph 1 Article 10 of the Convention guarantee anyone the right to freedom of expression, including the freedom of opinion, freedom to receive and transfer information and ideas, without intervention of the public authority and regardless of the limits. Paragraph 2 envisages that exercising these freedoms can be subject only to such formalities, limits or sanctions which are „provided in the law and which are necessary in a democratic society in the interest of national security, territorial integrity or public safety, prevention of disorder or crime, protection of health and morale, renown or the rights of the others, prevention of spreading confidential information or in the interest of preserving authority and impartiality of the judiciary."Provisions from Article 10 of the European Convention, that is, from Articles 46 and 50 of our Constitution aren't cosmetic, they do not protect some „benign" freedom, but they protect exactly the freedom of which important peculiarity is to carry the risk of endangering, that is, to really endanger the interest of others. The risk is small, almost non-existent that the state shall limit the freedom of expression of dominant social groups, and therefore such provisions actually protect the freedom of expressing minority, small groups, or even of individuals. It must be protected, even in the case we're speaking about expressing opinions that are unpleasant or even shocking for majority. Such attitude has been expressed by the European Human Rights Court already in 1976 in a dispute of Handyside against the UK, and he reiterated it later, stressing that Article 10 protects not only „information and positive, harmless or neutral ideas, but also those that insult, shock or alarm, because that's the thing required by pluralism, tolerance and broad mind, without what there is no democratic society".
Both the Constitution and the European Convention require cumulative fulfillment of three conditions for each intervention of the state in exercising the freedom of expression. As first, that the „intervention", which means technicalities, conditions, prohibitions or fines is provided by the law. Second, that the intervention has for its objective protection of one or more interests listed in paragraph 2 Article 10 of the European Convention, that is, in Articles 46 and 50 of the Constitution, pending that our Constitution even envisages a little bit narrower scope of conditions. And the third thing, that this intervention is necessary in a democratic society.
How is it then possible that in the famous changes of the law, solutions might appear (which were fortunately given up), according to which the publisher would be prohibited to transfer the rights over newspapers to anyone else, or to issue newspapers if there is no census of 50 thousand euros?
Does anyone really thinks that he is capable to "determine" as a basis for provision, (which has unfortunately remained until the end) based on which the publisher must stop issuing newspaper if his account, even completely independently from his will and „guilt" has been blocked longer than 90 days, in the quoted paragraph 2 Article 10 of the European Convention? Or in Article 50 of our Constitution, envisaging that „only the court of jurisdiction can prevent spreading of information and ideas by means of public informing, only in order to prevent invoking violent breach of constitutionally determined order or infringing territorial integrity of the Republic of Serbia, prevention of war propaganda or stimulation of direct violence and in order to prevent advocating racial, national or religious hatred stimulating discrimination, animosity or violence ".
Even for the biggest advocates of „creative interpreting", that is a mission impossible, or impossible task. And those who would still have will power for such a „creative" effort, should be reminded that the European Human Rights Court that would in the end line probably appear as arbitrator, has regarding this and similar issues a clear attitude for a long time now. Based on that attitude the possibility of limitation from paragraph 2 of the European Convention is extremely strictly interpreted. Even some 30 years ago, in a dispute of Sunday Times versus UK, the court stated: „strict interpreting means that not any other criteria, except those stated in paragraph 2 can form a basis for any limitation. And the stated criteria must be understood in such a way as to make formulations pertain to anything else outside their usual meaning."
In a regulated, democratic society in the procedure of passing the law one must of course take care of utilitarian reasons, but some other reasons have absolute primacy. In such a society the question - whether a certain legal solution is „good" or „useful" or „important", must be absolutely secondary in relation to the fact - is it permitted or not from the standpoint of Constitution and accepted international conventions.
