It is the State’s duty to protect the media from censorship
The procedure for appointing the management of the National Television Channel (Channel One) constitutes direct political control by the State of television and runs counter to a seminal judgment from the European Court of Human Rights.
In the recent case of Manole and others v. Moldova, the European Court of Human Rights significantly developed its previous practice. On the application of journalists from the central State-owned television channel TRM (“Teleradio-Moldova”), the Court found that there had been censorship on the channel from 2001 through 2006, that there were no legislative mechanisms to protect journalists from censorship and that there was, therefore, a violation of their freedom of expression. This was the first judgment to establish the State’s legal duty to protect journalists from censorship both in legislation and practice.
This case has enormous significance for the entire post-Soviet realm, including Ukraine. It stipulates new duties which were previously on the level of Council of Europe or OSCE recommendations. Now the State can be forced to answer for failure to fulfill this duty in court.
TRM was created back in 1994 and for a long time was virtually the only national television and radio broadcasting company in Moldova. In 2004 it was transformed into a public television channel, however according to Council of Europe experts, this did not comply with the recommendations of international institutions on public broadcasting.
Nine journalists had worked at TRM for a long time. Some were dismissed in 2004 with the transformation of TRM into a public company. Others expressed pressure in various forms, from administrative interference in the creation of programmes or their direct ban without reasons being given to disciplinary penalties (many of which were later cancelled by the court). The journalists asserted that the pressure was in connection with their journalist activists and with coverage of forbidden subjects or the activities of the opposition.
A lot of material from human rights and international organizations showing that the opposition had had virtually no access to television and radio was added to the case. It was also asserted that certain topics and even words had been prohibited on air. Programmes were also subjected to censorship with those which were not live being carefully checked, while for live broadcasts guests were carefully chosen.
These controlling functions were carried out by the President of TRM in person, without whose permission no programme could be broadcast.
There was a journalist strike on TRM in 2002. Later in 2004 most of its participants were dismissed, and 19 were prohibited from entering the TRM premises. The journalists dismissed were convinced that they had been dismissed for their political convictions. They appealed against the dismissals to the courts, but in vain. They therefore approached the European Court of Human Rights claiming breach of Article 10 of the European Convention on Human Rights since Moldova had not established sufficient legislative mechanisms to protect them from censorship.
The Court found that that there had been a violation of Article 10.
(107) “… The State, as the ultimate guarantor of pluralism, must ensure, through its law and practice, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country and that journalists and other professionals working in the audiovisual media are not prevented from imparting this information and comment. Where the State decides to create a public broadcasting system, the domestic law and practice must guarantee that the system provides a pluralistic audiovisual service. In this connection, the standards relating to public service broadcasting which have been agreed by the Contracting States through the Committee of Ministers of the Council of Europe provide guidance as to the approach which should be taken to interpreting Article 10 in this field.
108. The Court notes that during most of the period in question TRM was the sole Moldovan broadcasting organisation producing television programmes which could be viewed throughout the country (see paragraph 8 above). Moreover, approximately 60% of the population lived in rural areas, with no or limited access to cable or satellite television or, according to the Secretary General’s Special Representative, newspapers (see paragraph 72 above). In these circumstances, it was of vital importance to the functioning of democracy in Moldova that TRM transmitted accurate and balanced news and information and that its programming reflected the full range of political opinion and debate in the country and the State authorities were under a strong positive obligation to put in place the conditions to permit this to occur.
“111. In summary, therefore, in the light in particular of the virtual monopoly enjoyed by TRM over audiovisual broadcasting in Moldova, the Court finds that the State authorities failed to comply with their positive obligation. The legislative framework throughout the period in question was flawed, in that it did not provide sufficient safeguards against the control of TRM’s senior management, and thus its editorial policy, by the political organ of the Government. These flaws were not remedied when Law No. 1320-XV was adopted and amended.”
This judgment has many important dimensions for Ukraine. All judgements of the European Court of Human Rights constitute a part of the Ukrainian legal source, are a source of law and mandatory. Therefore these standards which are no longer simply the recommendations of international organizations which may or may not be fulfilled at a country’s discretion. This judgment demonstrates the important role which journalists have in defending freedom of speech in the country. The case began with their joint action and was successfully concluded following their applications. It shows an effective mechanism for protection of journalists from the authorities.
Another aspect of the issue is management of the Ukrainian State-owned television (Channel One or NTKU) where at the present time, in my view, one cannot speak of independence of political influence. The procedure for appointing the management and the lack of independent editorial policy shows that Ukraine is also violating Article 10 of the European Convention.
The procedure for appointing management of State-owned television cannot be political – bodies of power or representatives of political parties cannot dominate. Yet in Ukraine this process remains political and fully subordinated to the authorities.
The Constitutional Court of Ukraine issued a judgment from 15 September 2009 which finds unconstitutional the procedure for appointing public councils under the President and Verkhovna Rada. However there is no word about the fact that this procedure in principle violates freedom of speech in Ukraine. This judgment is based exclusively on formal provisions for the division of powers between branches of power. It is strange that in considering this case the Constitutional Court does not at all consider the issue of participation of politicians in the management of television which there should be no place for in a democratic society.
Present procedure for appointing the head of NKTU by the President on the submission of parliament is not in line with the above judgment from the European Court of Human Rights – this is direct political control which has nothing in common with freedom of speech. There are no safeguards for editorial independence in State-owned media.
Other important dimension of this court ruling is the potential creation in Ukraine of public television. This may one day come about, though bearing in mind present politicians, it is hard to believe. Now such television should be built on certain mandatory principles which safeguard financial, editorial and administrative independence. Up till such time these principles are seen as recommendations and parliamentarians actively use them, fearing to lose political control over State-owned media outlets.
This judgment clearly shows that political control over State-owned or public media outlets is a violation of standards of freedom of speech. It is journalists who can force the Ukrainian government to understand this. The lack of political control over the media is an inalienable element of freedom of speech.
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