02. 07. 2013

ANEM at PUBLIC DEBATE BEFORE THE CONSTITUTIONAL COURT

On July 2, 2013, the public discussion was held before the Constitutional Court, regarding the Proceeding for assessing the constitutionality of certain provisions of the Law on National Councils of National Minorities (“Official Gazette of the Republic of Serbia”, No. 72/2009). This proceeding was initiated by the Court’s Ruling IUz-882/2010 from January 17, 2013, on the basis of several Initiatives submitted to the Court, including ANEM’s. The Constitutional Court has decided to initiate proceedings for assessing the constitutionality of the provisions of the following Articles of the said Law: Article 2 Paragraph 2, Article 10 Point 6), 10), 11), 12), 13, and 15), Article 11 Paragraph 3, Article 12, Article 13 Point 3), Article 14, Article 15 Point 7), Article 19 Paragraph 2, Article 20 Point 1)-4), and Articles 23-27.

On January 28, 2011, ANEM submitted the Initiative for assessing the constitutionality of some provisions of Law, having in mind that Article 19, Paragraph 1 and 2, and Article 24, Paragraph 1, Point 3 of that Law prescribes: the right of the national councils to establish institutions and companies for newspaper publishing and broadcasting activities; the right of the Republic, Autonomous Province or local self-government unit, as founders of public companies and institutions in the field of public information, which, in whole or predominantly provide information services on national minorities language, to transfer founding rights to national councils, in whole or partially, on the basis of the agreement, as well as the authorization to the Republic, Autonomous Province or local self-government unit to transfer, in whole or partially, founding rights of the institutions for carrying out public information exclusively in languages of national minorities to the national councils, on the Initiative of those councils.

Acting upon ANEM Initiative, the Constitutional Court launched proceedings by Ruling IUz 27/2001 from December 12, 2012, regarding the assessment of the constitutionality of Article 17 of the Law on the Protection of Rights and Freedoms of National Minorities, finding it disputable that the current legal system provided an opportunity to the state to establish radio and television stations, apart from the public service, whose establishment was provided by the law. Having in mind that those proceedings have already started, and that Article 14, Paragraph 2 of the Public Information Law prescribes that media may not be founded, either directly or indirectly, by the state, a territorial autonomy, or by an institution or company that is prevalently state-owned or which is fully or predominantly funded from public revenues, unless such a possibility is envisaged by a separate Broadcasting Law, in this proceeding it is the question whether the transfer of founding rights in the public information is constitutionally possible in a way set forth in Article 19 Paragraph 2 of the Law on National Councils of National Minorities.

At Public Discussion, representatives of ANEM explained the reasons why Constitutional Court should determine that provisions of Articles 19, Paragraph 2 and Article 24, Paragraph 1, Point 3 of the Law on National Minority Councils were unconstitutional and therefore they gave a negative answer to the question that was raised above. The main argument for this reasoning is the non-conformity of cited provisions with the Constitution of the Republic of Serbia, according to which the legal order is unique. Namely, the basic law in the field of media is Law on Public Information, which prescribes that media may not be founded, either directly or indirectly, by the state, a territorial autonomy, or by an institution or company, which is prevalently state-owned or which is fully or predominantly funded from public revenues, unless such a possibility is envisaged by a separate Broadcasting Law. Therefore, the Law explicitly prescribes that this issue could be differently regulated only by the Broadcasting Law, not with other laws – in this case the Law on National Councils of National Minorities, which provides for different solutions than the ones prescribed in the Broadcasting Law.

In addition, the Law on Public Information and the Broadcasting Law, on one side, and challenged provisions of the Law on National councils of National minorities, on the other, regulate differently the position of public enterprises and institutions in the field of public information, which is founded by Republic, Autonomous Province or local-self-government unit, and which in whole or predominantly provide information services in national minorities’ languages. Namely, the Law on Public Information prescribes that media, founded by the state or a territorial autonomy entity, or a predominantly state-owned institution, i.e. company, or media that are wholly or predominantly funded from public revenues and to which provisions of the Broadcasting Law do not apply, shall cease to operate within two years from the day that Law comes into force, while the Broadcasting Law prescribes obligation for media founded by local self-government unit to be privatized. Also, the Law on Public Information prescribes that founder of media may not transfer or otherwise dispose of the right to a media, or the right to publish that media, which the disputed provisions of the Law on National Councils of National Minorities are not aligned to.

Finally, the challenged provisions are contrary to the Constitution of the Republic of Serbia, since the with the establishment of media by municipality, town and the state, namely with the authority invested in the Republic, Autonomous Province or a local self-government unit as founders of public enterprises and institutions in the field of public information to transfer founding rights to national councils of national minorities, the public authorities are, in fact, interfering in the exercise of the right to freedom of expression. There are no legally justifiable grounds under the Article 10 Paragraph 1 of the European Convention for this interfering of the authorities in the exercise of the right to freedom of expression nor is such interference necessary in democratic society, let alone proportionate.

During the public discussion, ANEM representatives pointed out that those provisions of the Law could discriminate against commercial broadcasters, which would obstruct the establishing of new broadcasters and survival of existing ones. At the same time, it may originate a third model of the media which is not recognized either by Law on Public Information as the systemic law, or by the Broadcasting Law, referred to by the systemic law.

ANEM expects that the Constitutional Court will establish that the disputed provisions of the Law on National Councils of National Minorities do not comply with the Constitution, based on arguments provided in the ANEM Initiative and the public discussion.