THE QUESTION OF CORRELATION CONCEPTS “THE RIGHT TO FREEDOM OF THOUGHT AND SPEECH” AND “THE PROHIBITION TO DISSEMINATE INFORMATION AS ONE KIND OF THE DEFENCE PERSONAL NON-PROPERTY RIGHTS”
Автор: Галінська Софія Олександрівна, студентка Національного Технічного Університету України «Київський Політехнічний Інститут»
[Конституційне право. Міжнародне право]
Ukraine has passed a long period of formation the democratic law system. And we can be proud of the fact that a great part of it corresponds to European democratic experience. But not only on the level of establishment can the problems appear. In practice there is a difficult question of balance different concepts. This work includes the discussion among the journalists and public people (especially politicians) concerning the right to give coverage of the actions of the latter. Each of them has their interests guaranteed in law, but useful in different situations.
1. The Constitution of Ukraine equally with prohibition of censorship guarantees the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.(article 34).
The 9th article of the Law On Information states: “All citizens of Ukraine, juridical persons and state structures have a right for information, which means the opportunity of free getting, using, spreading and keeping facts, which are needed for enjoyment their rights, freedoms and legal interests themselves, realization their targets and functions”.
2. On the other side the Civil Code of Ukraine provides the prohibition of spreading information as one kind of defending non-property rights. The 278 article of the Civil Code says: Prohibition to Disseminate Information Violating Personal Non-Property Rights 1.If the personal non-property right of a natural person is violated in a newspaper, a book, a film, a TV program etc. which are going to be released, the court may forbid their release until the violation of the right is eliminated .2. If the personal non-property right of a natural person is violated in a newspaper, a book, a film, a TV program etc. which have been released, the court may forbid (terminate) their release until the violation of the right is eliminated and when the elimination of the violation is impossible, to confiscate the whole edition of the newspaper, the book, etc. aimed at its destruction.
3. Everything seems to be clear. But if we look at the court practice, we’ll see that it isn’t so simple. In Ukraine there are lots of cases when the court is obliged to prohibit discussions about the petitioner’s or defendant’s actions in the Mass Media at least for the period of consideration the case. The court does this to defend the litigants. But the representatives of the Mass Media do not always agree with such a decision. They use the Law On information and the absence of censorship and accuse the court of prejudicialness and violating their rights. This is especially true in cases of political persons, who are always in the focus of the MM.
4. The article 2 of the Law of Ukraine On Printed Mass Media (Press) in Ukraine says that: There isn’t allow to demand of the concurrence materials to be spread by press of the public officer or to prohibit to disseminate presentations and materials by the officials of the state structure, organizations and associations, except cases when the official is an author of the disseminating information or if this person gave the interview.
5. The limitations of criticism against politicians are broader than those for the private person. The first inevitably and consciously leaves every his word and action open for intently (detailed) analysis by journalists and society. This means that he ought to display a high level of tolerance, especially when he makes a public statement, which can cause the criticism.. That is what The European Court in Human Rights (Strasburg) says.
The higher is a position, the broader the limitations of criticism are…So when the court considers a case for example about the public officer practices an enterprise, of course journalists try to coverage this in the MM. But if the guilt of that public officer wasn’t argued such information can violate his/her rights. As the law says the person is guilty only when it was proved according to the law. In this situation journalists’ actions are illegal. But there is only one example. In other case the society has a right to know about the actions of its members (representatives) and to modify their behavior according to the public opinion. It is important to enforce them and to interpret abstruse passages, to find a balance among all legal standards. It is not enough to state the democratic principles formally. And of course a public person should enjoy his private life. The freedom of one person should start where the freedom of another finishes. It must be given in detail in law.
1. The Constitution of Ukraine passed by the Verkhovna Rada of Ukraine: June 28, 1996. (with changes)
2. Civil code of Ukraine from the 1 January 2004 (with changes and additions)
3. The Law of Ukraine n Printed Mass Media (Press) in Ukraine of Entry into Force: December 8, 1992
4. The Law of Ukraine On Information Date of Entry into Force: November 13, 1992
5. Журнал для правозахисних НГО (від 09.11.2003)
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