06. 11. 2013

Decision of the Constitutional Court in the proceedings based on ANEM initiative

The Law on the protection of national minorities' rights and freedoms

Acting upon ANEM's Initiative dating from January 28, 2011, the Constitutional Court initiated the proceedings for assessing the constitutionality of the provision of Article 17, paragraph 2 of the Law on the protection of national minorities' rights and freedoms, by its Ruling IUz-27/2001 dated December 12, 2012. The assessment refers to the part of this provision that says:" it can also establish special radio and TV stations  broadcasting programs in languages of the national minorities". In disputable part of the provision, the state is given the right to establish special media outlets, in order to fulfill the right of national minorities to be informed in their own languages. This is in direct opposition to the provisions of systematic media laws, which do not allow the state to be the founder of media outlets, neither directly nor indirectly (except in case of public service broadcasters). As such, the said part of the provision is in opposition to the principle of unity of legal order, generally accepted rules of international law and ratified international treaties, media laws are in accordance with. Therefore, ANEM asked from the Court to determine that the said provision in the disputable part did not comply with the Constitution.

Following the reasons provided in ANEM's initiative and in respect of the issue of constitutionality of the above mentioned part of the provision (article 17 paragraph 2), the Constitutional Court estimated the following constitutional questions appear as justifiably disputable:

• By observing the relation between the Broadcasting law (which systematically regulates the issue of founding electronic media) and the Law on the protection of national minorities' rights and freedoms (which regulates the rights of national minorities, including the information area), the question is posed if there was a breach of the principle of unity of legal order, set out by the provision of Article 4, paragraph 1 of the Constitution of the Republic of Serbia. 
• Starting with the disputable part of the provision of Article 17, paragraph 2 of the Law on the protection of national minorities' rights and freedoms, the question is posed if it is possible to exercise the right to information of national minorities (in line with the provision of the Constitution and Article 10 of European convention for the protection of human rights and fundamental freedoms), by special programs within public service broadcasting or by establishing special radio and TV stations, which would broadcast program in minority languages.

Dealing with disputable questions (with reference to the Constitutional provisions and relevant laws, international legal acts and regulations, which are the basis for interpretation and application of human and minority rights provisions), the Court found the following: 

• Taking into consideration all relevant legal and constitutional acts which comprise one legal unit, it could be concluded that the disputable legal solution is obsolete and adopted prior to all laws relevant to the media and the Constitution itself, also not in line with the legal system governing the exercise of media freedom in the Serbian legal system, and therefore it is contrary to the principle of the unity of legal order prescribed by the Article 4, paragraph 1 of the Constitution.
• When it comes to the relation between disputable legal provision and international conventions, standards and experience in the area of media legislation, the Constitution Court concluded that the state cannot establish other media outlets except public service broadcasters and that different action of the state would be contrary to the ban of public authority's interfering into media sphere. The ban is set as a standard through application and interpretation of Article 10 of the European convention for human rights and fundamental freedoms.    

Based on everything cited, at the session held on October 3, 2013, the Constitutional Court reached the Decision IUz-27/2011 by which it determined that the disputable provision of the Article 17, paragraph 2 of the Law on protection of national minorities' rights and freedoms i.e. its part that says: "it can also establish special radio and TV stations broadcasting programs in languages of the national minorities" did not comply with the Constitution.

The cited provision in its disputable part ceased to be valid at the day of publishing the Constitutional Court's Decision in the Official Gazette. The Decision is published on November 6, 2013 in the Official Gazette of the Republic of Serbia" no 97/2013.

ANEM will continue its efforts to remove similar provisions from other laws (Law on local self-government, Law on the Capital city and Law on national councils of national minorities) that are not in accordance with the provisions of systematic media laws.

Decision of the Constitutional Court is available here (in Serbian).