Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 7 and 9.3 of the Statute of
Radio and Television of Lithuania as well as items 3 and 12 of
the Regulations of the Technical Commission for Organization of
Competitions Regarding the Lease of Radio and Television
Programmes Broadcasting State Facilities to Private
Broadcasting Services with the Constitution of the Republic of
Lithuania.
20 April 1995, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickas, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozys Žilys,
the secretary of hearing - Rolanda Stimbirytė,
the petitioner - lawyers Isaakas Kaganas and Vygantas
Barkauskas, representatives of a group of the Seimas of the
Republic of Lithuania members,
the party concerned - Gediminas Ilgūnas, representative of
the Seimas of the Republic of Lithuania,
the party concerned - Ieva Laurinavičienė, Gintautas
Pangonis and Anicetas Stelingis, representatives of the
Government of the Republic of Lithuania,
pursuant to Part 1, Article 102 of the Constitution of the
Republic of Lithuania and Part 1, Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 29 March 1995 conducted the investigation of
Case No.19/94 subsequent to the petition submitted to the Court
by a group of the Seimas members requesting to investigate if
Articles 7 and 9.3 of the Statute of Radio and Television of
Lithuania are in the compliance with the Constitution of the
Republic of Lithuania, and if item 3 of the Regulations of the
Technical Commission for Organization of Competitions Regarding
the Lease of Radio and Television Programmes Broadcasting State
Facilities to Private Broadcasting Services is in compliance
with the Constitution of the Republic of Lithuania and with
Article 6 of the Republic of Lithuania Law on Competition, as
well as, if item 12 of said Regulations is in compliance with
the Constitution of the Republic of Lithuania and with Part 2
of Article 1 and Article 3 of the Republic of Lithuania Law on
the Press and other Mass Media.
The Constitutional Court
has established
I
By the Resolution "On the Confirmation of the Statute of
Radio and Television of Lithuania", 10 May 1990, (Official
Gazette "Valstybės Žinios", No. 15-424, 1990), the Supreme
Council of Lithuania confirmed the Statute of Radio and
Television of Lithuania (hereinafter in the ruling referred to
as the Statute) which was partly amended by the Seimas
Resolution "On Amending and Appending the Statute of Radio and
Television of Lithuania ", 23 December 1993 ("Valstybės Žinios
", No.1-18, 1994).
By item 1.2 of Resolution No.126 "On the Confirmation of
the Regulations of the Technical Commission for Organization of
Competitions Regarding the Lease of Radio and Television
Programmes Broadcasting Facilities to Private Broadcasting
Stations", 3 March 1993, the Government confirmed the
Regulations of the Technical Commission for organization of
competitions regarding the lease of Radio and Television
programmes broadcasting State facilities to private
broadcasting services ("Valstybės Žinios", No.9-215, 1993;
hereinafter in the ruling referred to as the Regulations).
By these legal acts, besides, it has been established:
1) Radio and Television of Lithuania (hereinafter in the
ruling referred to as LRTV)shall manage means of preparation of
programmes and shall have the priority right to use of the
equipment of transmission, as well as of the network of radio
relay lines (Article 7 of the Statute);
2) The Ministry of Communications and Informatics of the
Republic of Lithuania may lease programme broadcasting
facilities to private broadcasting services on competition
basis (item 1 of the Regulations);
3) Confirmed by the Government of the Republic of
Lithuania the Technical Commission for organization of
competitions regarding the lease of Radio and Television
programmes broadcasting State facilities to private
broadcasting services (hereinafter in the ruling referred to as
the Commission) shall organize competitions regarding the lease
of Radio and Television programmes broadcasting State
facilities (hereinafter in the ruling referred to as the
Competition) and shall establish their winners (item 2 of the
Regulations);
4) The results of competitions shall be confirmed by the
Board of LRTV
(hereinafter in the ruling referred to as the Board;
Article 9.3 of the Statute, item 3 of the Regulations);
5) The Commission shall control how the winners of the
Competition observe the conceptions submitted by them to the
Commission (item 12 of the Regulations).
The petitioner - a group of the Seimas members - requests
to investigate if Articles 7 and 9.3 of the Statute of Radio
and Television of Lithuania is in compliance with the
Constitution, as well as if item 3 of the Regulations of the
Technical Commission for Organization of Competitions Regarding
the Lease of Radio and Television Programmes Broadcasting
Facilities to Private Broadcasting Services is in compliance
with the Constitution and the Law on Competition and if item 12
of said Regulations is in compliance with the Constitution and
the Law on the Press and other Mass Media.
II
The petitioner grounds his request on these arguments.
I. On the compliance of Articles 7 and 9.3 of the Statute
of Radio and Television of Lithuania with the Constitution, as
well as on the compliance of item 3 of the Regulations of the
Technical Commission for organization of competitions regarding
the lease of Radio and Television programmes broadcasting State
facilities to private broadcasting services with the
Constitution and the Law on Competition.
1. It is established in Article 7 of the Statute that:
"Radio and Television of Lithuania shall manage means of
preparation of programmes and shall have the priority right to
use the equipment of transmission, as well as of the network of
radio relay lines", and pursuant to Article 9.3 the Board
"shall confirm the decisions of the Commission for the
competition regarding the lease of Radio and Television
programmes broadcasting facilities". It is established in item
3 of the Regulations that: "The results of competitions shall
be confirmed by the Board of Radio and Television of
Lithuania". By these provisions the monopolistic position of
LRTV is consolidated in regard with other means of mass media.
The chief of LRTV is General Director (Article 8 of the
Statute)and ex officio he is a member of the Board (Article 14
of the Statute).
The Commission organizes competitions and establishes
their winners, its decision however is not final. The Board has
to confirm the results of the Competition. The Board thus is
afforded a possibility not to confirm the results of the
Competition, to change them, etc. By manipulating with this
possibility, the Board decides which private Radio and
Television companies may go on the air and which may not. More
than once the Board have used the possibility to abuse its
monopolistic position. For instance, on 3 January 1994 the
Commission confirmed the results of the Competition regarding
the lease of Television Channel 38, the Board however by its
resolution of 5 April 1994 changed the results of the
Competition and decided to discontinue broadcasting of
"Baltijos TV", the winner of the Competition, on Tuesdays,
Thursdays and Saturdays, and to allot the deprived time for "TV
Polonia" which had no certificate of registration of means of
mass media and which had not participated at the Competition.
In still other case, when "Baltijos TV" has won the Competition
of the lease of Channel LTV-2, the Board hasn't even discussed
the confirmation of the results of the Competition. In the
opinion of the petitioner, these samples indicate that Article
9.3 of the Statute and item 3 of the Regulations allow the
Board to interfere directly with the activity of private
companies.
In the opinion of the petitioner therefore Article 9.3 of
the Statute and item 3 of the Regulations contradict Part 2 of
Article 44 of the Constitution establishing that "the State,
political parties, political and public organisations, and
other institutions or persons may not monopolise means of mass
media", as monopolistic rights are granted to LRTV in regard
with other means of mass media.
2. The petitioner maintains that Article 9.3 of the
Statute and item 3 of the Regulations contradict Part 2 of
Article 25 of the Constitution in which it is established that:
"Individuals must not be hindered from seeking, obtaining, or
disseminating information or ideas." The right to disseminate
information and ideas is made dependent upon the Board by said
Article and item. Citizens or organizations that have got the
certificate of registration of means of mass media and that has
won the Competition cannot realize their constitutional rights
because they, while the Board does not make a decision which no
one knows when will be made and if it will be positive, are
suspended. While it is established in
Part 3 of Article 25 of the Constitution that: "Freedom to
express convictions, as well as to obtain and disseminate
information, may not be restricted in any way other than as
established by law, when it is necessary for the safeguard of
the health, honour and dignity, private life, or morals of a
person, or for the protection of constitutional order." In the
opinion of the petitioner, said Article and item contradict the
Constitution not only in content but also in form because the
appropriate acts are confirmed by the resolutions of the Seimas
and the Government, and not by a Law.
3. The petitioner points out that Article 9.3 of the
Statute and item 3 of the Regulations also contradict Part 1 of
Article 46 of the Constitution establishing that:
"Lithuania's economy shall be based on the right to
private ownership, freedom of individual economic activity, and
initiative", as in this case the realization of the right to
private ownership, freedom of individual economic activity, and
initiative depend upon LRTV- State institution that hold
monopolistic position. The Statute and the Regulations are
related to Article 46 of the Constitution as Radio and
Television broadcasting is one of the spheres of economic
activity in which (except LRTV) private capital prevails.
4. In the opinion of the petitioner, Article 7 of the
Statute contradicts Part 4 of Article 46 of the Constitution
establishing that "the law shall prohibit monopolisation of
production and the market, and shall protect freedom of fair
competition", as well as contradicts Article 6 of the Law on
Competition in which it is established that "it shall be
prohibited for State government bodies and local municipalities
to adopt normative acts or to perform actions which restrict
independence of economic entities, as well as concluding of
economic contracts, hinder to establish new economic entities
or to reorganize the existing ones and change their character
of activity, provide privileges or discriminate separate
economic entities or restrict competition otherwise." In
Article 7 of the Statute obvious privileges are provided for
LRTV, as well as other Radio and Television broadcasting
services are discriminated. Their existence directly depends
upon LRTV. Since the Statute is not in compliance with the Law
on Competition, it is not as well in compliance with Part 4 of
Article 46 of the Constitution.
The petitioner has also pointed out that prohibition to
restrict competition is formulated in Article 6 of the Law on
Competition. Item 3 of the Regulations, in which this
prohibition is violated, contradicts said Article of the Law.
II. On the compliance of item 12 of the Regulations of the
Technical Commission for Organization of Competitions Regarding
the Lease of Radio and Television Programmes Broadcasting
Facilities to Private Broadcasting Services with the
Constitution, as well as with the Law on the Press and other
Mass Media.
It is established in item 12 of the Regulations: "The
Commission shall control how the winners of the Competition,
while broadcasting Radio and Television programmes, observe the
conceptions submitted by them to the Commission. In case the
winners do not observe these conceptions, as well as if
technical qualities of signals of broadcasted Radio or
Television programmes do not conform to the standards, the
Commission shall present its conclusions to the Press Control
Board under the Ministry of Justice or to other State services
which shall settle the question concerning further lease of
Radio and Television broadcasting facilities." In the opinion
of the petitioner the aforesaid contradicts with Part 1 of
Article 44 of the Constitution, in which it is established:
"Censorship of mass media shall be prohibited." The right of
the Commission to control the content of programmes, without
available criteria of how it is defined if the conception
submitted to the Competition conceptions are observed, is equal
to censorship. It is established in Part 2 of Article 1 of the
Law on the Press and other Mass Media that: "Mass media shall
be free and uncensored. Interference with their activity in
preparing and disseminating information shall be inadmissible",
and in Article 3 it is said that: "Means of mass media shall
freely prepare and disseminate information."
In Articles 11 and 12 of this Law it is pointed out the
bases are pointed out when an appropriate State institution may
suspend or discontinue the activity of means of mass media. It
is not possible to explain these bases more widely, while
including the observing of the conception submitted to the
Competition. In the opinion of the petitioner, therefore, item
12 of the Regulations contradicts not only the Constitution but
also the Law on the Press and other Mass Media.
III
In the court hearing the representatives of the petitioner
have in essence repeated the motives stated in the request.
They have emphasized that pursuant to Article 19.4 of the
Statute, LRTV may prepare and broadcast commercial programmes
and advertisement. The Board represents an office which is also
engaged in commerce, it thus cannot be asserted that it
protects interest of the State. According to the
representatives of the petitioner, because of the possessed
right to confirm the results of the Competition, the Board
becomes superior to the Commission confirmed by the Government,
and also the privileged position of the Board is being
consolidated.
The representatives of the petitioner have also pointed
out that item 12 of the Regulations granting the Commission the
right to control how private radio and television broadcasting
services observe the conceptions submitted to the Competition
contradicts the Constitution as it restricts freedom of
information. It is established in Part 3 of Article 25 of the
Constitution that freedom to express convictions, as well as to
obtain and disseminate information, may not be restricted in
any way other than as established by law, when it is necessary
for the safeguard of the health, honour and dignity, private
life, or morals of a person, or for the protection of
constitutional order. Restrictions of information dissemination
are foreseen in Article 6 of the Law on the Press and other
Mass Media, in which it is established what is confidential
information forbidden to disseminate (State secrets,
proclamation of information of preliminary investigation
without written permission of a prosecutor, an investigator or
a person who has prosecuted an inquiry, and etc.), as well as
in Article 7 of Civil Code, in Article 214, 214, 214 of Code of
Administrative Offences, as well as in other laws. In laws
however there are no restrictions which could be related with
the observing of the conceptions submitted to the Competition.
There is no definition of a conception in item 12 of the
Regulations. In the opinion of the representatives of the
petitioner, a conception includes an extent of programmes,
characteristic, as well as an extent of author's programmes and
alike. The Commission checks up a content of programmes and
that, according to the petitioner, is censoring. The Press
Control Board under the Ministry of Justice, the Language
Inspectorate and courts should control a content of programmes.
In case requirements of an agreement are not observed, a lessor
of State programmes transmission facilities has the right to
bring in an action at court.
The petitioner's representatives, on the basis of the
aforesaid motives, have requested the Constitutional Court to
investigate if Articles 7 and 9.3 of the Statute are in
compliance with the Constitution, as well as if item 3 of the
Regulations is in compliance with the Constitution and with
Article 6 of the Law on Competition, and if item 12 of the
Regulations is in compliance with the Constitution as well as
with
Part 2 of Article 1 and with Article 3 of the Law on the
Press and other Mass Media.
IV
In the process of preparation of the case it has been
pointed out in the information, submitted by the party
concerned - the Government, that it is allowed to prepare and
broadcast Radio and Television programmes for broadcasting
stations which have permission from the Press Control Board
under the Ministry of Justice. These broadcasting stations can
install their own Radio and Television transmitters, lay cable
television network or lease State transmitters if they are
vacant. The permission for the installation of a private
transmitter is given by the State Inspectorate of Electric
Communications. State Radio and Television programmes are
created by LRTV. It manages studios, as well as the facilities
required for creation and recording of programmes. LRTV has the
priority right to lease equipment (transmitters, communication
channels), needed for broadcasting of programmes, from the
Ministry of Communications and Informatics (State enterprise
"Radio and Television Centre of Lithuania"). The Ministry of
Communications and Informatics, on competition basis, leases
State transmitters, which are free from broadcasting of LRTV
programmes, to other broadcasting stations. Competitions are
organized by the Commission confirmed by the Government. The
Commission prepares the regulations of the Competition
regarding lease of concrete equipment and observe them while
announcing the winner.
The representative of the party concerned - the Seimas -
in the court hearing has explained that the Board is formed in
order to co-ordinate State and public interests. What is called
control of private Radio and Television broadcasting services,
is only minimum requirement to protect the State interests. The
Board consists of 17 members, and only one of them - its
General Director - represents LRTV. All the rest 16 members may
have their own commercial televisions and represent them. The
Board does not have the status of a legal entity, as well as
its own budget. Its members are paid emoluments for the sitting
time, and the Ministry of Finance transfers this money to the
account of LRTV. Pursuant to the Statute, the Board shall offer
suggestions which may be carried out by LRTV Administration,
and may be not, as well as it has the right to suggest to
dismiss General Director. It may exert an influence upon other
institutions only pursuant to Article 9.3 of the Statute, i.e.
while confirming decisions of the Commission.
The representative of the party concerned - the Seimas -
has not agreed with the statement of the petitioner that LRTV
monopolizes the activity of electronic means of mass media. He
has pointed out that 70% of transmission air belong to private
broadcasting stations; two channels out of three are
commercial; a lot of private broadcasting stations function in
districts. The Ministry of Communications and Informatics
manages the State transmission equipment; 75 % of the equipment
is used by private broadcasting stations, and 25% - by LRTV.
However, according to the representative of the party
concerned, the Board can create radio and television monopoly,
in case the Commission would decide to lease 90% of all
channels for LRTV, and the Board would confirm such a decision.
The representative of the party concerned has pointed out
that the Board works jointly with the Commission, it points out
the preliminary conditions of the Competition to the
Commission, and only then confirms the results of the
Competition or does not confirm them. The Commission prepares
the regulations of the Competition taking into consideration
the conditions provided by the Board.
During the process of the court hearing, the
representatives of the party concerned - the Government - have
explained that there are 149 transmitters of television
programmes in Lithuania, 26 transmitters of them are private,
and 51 is taken on lease by LRTV. It is allowed to set up
private transmitters of programmes in Lithuania. The Commission
controls only the usage of leased State channels. Neither the
Board nor the Commission has any influence upon the conditions
of usage of broadcasting equipment which belong to private
broadcasting stations. These broadcasting stations work
according to their possibilities, and there is no interference
or control in how many programmes produced by certain authors
they broadcast, and alike.
The representatives of the party concerned have pointed
out that the conception is considered to be preliminary
conditions that must be pointed out and must be observed by the
participants of the Competition, namely: technical conditions,
time and language of programmes, number of programmes produced
by certain authors, type of filming facilities, etc. The
Commission cannot control if the conception is entirely
observed as it is not competent to estimate artistic standard
of programmes. The Commission, therefore, appeal to the Board.
The representatives of the parties concerned - the Seimas
and the Government - have requested the Constitutional Court to
recognize that Articles 7 and 9.3 of the Statute is in
compliance with the Constitution, as well as that item 3 of the
Regulations is in compliance with the Constitution and with
Article 6 of the Law on Competition, and that item 12 of the
Regulations is in compliance with the Constitution, as well as
with Part 2 of Article 1 and with Article 3 of the Law on the
Press and other Mass Media.
The Constitutional Court
holds that:
One of the fundamental rights of individuals is the right
to have convictions and freely express them. The possibility
for every individual to formulate freely his/her own opinion
and views, as well as freely disseminate them is the
indispensable condition for creation and maintaining of
democracy. Laws of a democratic State thus consolidate and
protect not only the subjective right of individuals to have
and freely express their convictions - by them, freedom of
information as the objective public need is consolidated. It
means that not only freedom of information in general has to be
protected but also freedom of means of mass media as the
expression of freedom of information in its objective form.
Freedom of information is not absolute or encompassing
everything since, while using it, one comes upon such
requirements which are necessary in a democratic society for
protecting constitutional order, freedoms and rights of
individuals. By laws therefore restrictions of freedom of
information may be established, as well as activity of means of
mass media may be regulated.
Greater demands are made of Radio and Television than of
other means of mass media for their especially great influence
upon the broad audience, as well as since that technical
possibiIities of Radio and Television broadcasting are
unlimited. It is necessary to conform freedom of information to
complying with certain technical requirements made for
audio-visual means of mass media. The order of the usage of
means of information may be regulated by laws since, for
instance, while establishing conditions of the usage of Radio
and Television broadcasting equipment, their technical
characteristics are taken into consideration. It is important
that because of restrictions of freedom of information and
regulation of means of mass media, the principle of a
democratic society - pluralism - would not be violated. That
shall be guaranteed by prohibition of monopolisation of means
of mass media, as well as of information censorship, and by
other legal means.
I. On the compliance of Articles 7 and 9.3 of the Statute
of Radio and Television of Lithuania with the Constitution, as
well as on the compliance of item 3 of the Regulations of the
Technical Commission for Organization of Competitions Regarding
the Lease of Radio and Television Programmes Broadcasting State
Facilities to Private Broadcasting Services with the
Constitution, as well as with Article 6 of the Law on
Competition.
1. It is established in Part 1 of Article 25 of the
Constitution that:
"Individuals shall have the right to have their own
convictions and freely express them."
The right of individuals to have their own convictions
must be based on actual possibility to formulate them freely on
the basis of different information including the right to
freely obtain information. The right to freely express
convictions is one of so called freedoms of communication. It
is understood as dissemination of information meant for other
persons. Only during such a process a social contact arises and
public opinion develops.
It is established in Part 2 of Article 25 of the
Constitution that: "Individuals must not be hindered from
seeking, obtaining, or disseminating information or ideas." The
purpose of this norm is to guarantee subjective rights and
freedoms of individuals. It also protects all communication
process, thus as well as the right of means of mass media to
seek, obtain, and disseminate information and ideas
unhinderedly. The petitioner maintains that Article 9.3 of the
Statute and item 3 of the Regulations, establishing that the
Board shall confirm the results of the Commission, contradict
Part 2 of Article 25 of the Constitution since they make the
right to disseminate information and ideas dependent upon the
Board, as well as allows it to interfere with the activity of
private means of mass media. While investigating if these
regulations are in compliance with the Constitution, it is
necessary to evaluate the legal status of the Board.
The legal status of the Board is established in the
Statute which was confirmed by the resolution of the Supreme
Council, 10 May 1990. At that time Lithuanian Radio and
Television programmes were prepared and broadcasted only by the
State institution - LRTV. In the Statute the tasks of LRTV are
formulated, namely: to collect and disseminate information
about Lithuania and the world, create, propagate and preserve
cultural values, and form tolerant and humane society, etc., as
well as the principles of activity, such as: objectivity,
democracy, freedom of speech, creation and conscience, are
established; the possibility of pluralism, i.e. expressing of
different views and convictions, is consolidated. According to
Article 8 of the Statute, the Board and General Director manage
LRTV. The Board controls how is the Statute kept to (Article
9.1), cherishes independence of the State, forms political and
cultural strategy of programmes (Article 9.4), as well as
performs other actions provided in the Statute. Great
importance is attached to the Board while founding new
pluratistic State Radio and Television. The Board is formed out
of representatives of society and LRTV employees. It is
significant that in such a way the society has been granted the
possibility to control State Radio and Television.
A new situation however has been created in the country so
soon as private Radio and Television broadcasting stations have
started to function. LRTV has become one out of several Radio
and Television companies. The Board, though has formed by the
Supreme Council, is the governing body of one institution -
LRTV. It controls how the Statute of this institution is
observed, reports not on its own, as the body being independent
of any creator of programmes', job but on the activity of the
institution - LRTV- being managed by it. The Board thus, in
accordance with the status, has to confine itself only to the
activity of State Radio and Television. Having such a status,
the Board may not be enabled to exert influence upon private
Radio and Television broadcasting stations.
Radio and Television broadcasting co-ordination and
control bodies which are independent of any producers of
programmes and which are commissioned, in addition to other
functions, to discuss questions concerning licences, as well as
allotment of State-owned broadcasting equipment for usage to
private broadcasting stations, function in many states (for
instance, the Broadcasting Commission is responsible for the
procedure of licensing in Sweden; the Broadcasting Committee in
Denmark makes final decisions concerning allotment of
transmitters, as well as granting of licences; in Poland, the
Chairman of the Board of Radio Transmission and Television of
the State publishes in press about the possibility for private
organisations to obtain concessions for Radio and Television
broadcasting and, pursuant to the resolution of this Board, he
makes the final decision for granting of the concessions). The
Board, in accordance with the Statute being the governing body
of the State institution - LRTV, may not be the co-ordinating
and controlling body of the activity of all Radio and
Television broadcasting stations functioning in the country. It
thus may not have the right to discuss questions concerning
lease of transmission facilities to private broadcasting
services.
The broadcasting facilities, to which the State has the
property right, are managed not by LRTV but by Lithuanian Radio
and Television Centre of the Ministry of Communications and
Informatics. The Board, as the body of LRTV, has also no right
to dispose of said facilities.
The regulation of Article 9.3 of the Statute that the
Board "shall confirm the decisions of the Commission for the
Competition regarding the lease of Radio and Television
programmes broadcasting facilities", presupposes that the Board
may as well not confirm the decision of the Commission. Since
such a right of the Board is not bound by any legal conditions
in the Statute, the unjustified and unilateral establishing of
the results of the Competition is actually legalized, and that
creates the possibility to hinder from the activity of the
private means of mass media which have participated in the
Competition. The terms of the discussion of the Board's
resolution, as well as of making the decision regarding said
question are not established in the Statute. By procrastinating
to make a decision it may also be hindered from disseminating
information and ideas.
Conforming to the aforementioned arguments, the conclusion
may be drawn that the norm of Article 9.3 of the Statute, as
well as of analogues item 3 of the Regulations, which also is
in item 2 of the Resolution of the Government "On the
Confirmation of the Technical Commission for Organization of
Competitions Regarding the Lease of Radio and Television
Programmes Broadcasting State Facilities to Private
Broadcasting Stations", 3 March 1993, contradicts Part of
Article 25 of the Constitution.
2. It is established in Part 2 of Article 44 of the
Constitution that: "The State, political parties, political and
public organisations, and other institutions or persons may not
monopolise means of mass media."
Monopoly is the exceptional right of a person, a group of
persons or the State to act in any field. Monopoly is such a
state, a situation when certain person or organization may act
without competition in a certain field.
The norm of Part 2 of Article 44 of the Constitution thus
does not allow the State, political parties, political and
public organizations, as well as other institutions or persons
to monopolise preparation and dissemination of Radio and
Television programmes and it presupposes appropriate legal
antimonopolistic regulating.
It is established in Article 2 of the Law on the Press and
other Mass Media that means of mass media are telecasts and
broadcasts which are prepared and disseminated by the State,
political and public organizations, as wee as public movements
and also citizens of the Republic of Lithuania. Radio and
Television broadcasting services, other institutions and
persons which prepare and disseminate mass information
represent means of mass media.
It is established in Article 7 of the Statute that: "Radio
and Television of Lithuania shall manage means of preparation
of programmes and have the priority right to use the equipment
of transmission, as well as of the network of radio relay
lines." "The right to manage" and "the right to use" are the
conceptions of the content of the right of ownership, the
question therefore, if LRTV monopoly is consolidated in said
norm, has primarily to be considered from the stand-point of
view of the right of ownership.
Pursuant to Article 97 of Civil Code, one of the subjects
of the right of public ownership is the State. Subjective
rights of ownership are entirely implemented by the
institutions of supreme State power, as well as governing
institutions (Part 1 of Article 99 of Civil Code). Whilst State
enterprises, institutions and organizations manage appropriate
State property, use it, as well as dispose it on the rights of
property trust while observing their statutes (Part 2 of
Article 99 of Civil Code).
It is established in Article 6 of the Law on
Communications of the Republic of Lithuania that: "Postal and
electrical communication systems and means which are managed by
State communication enterprises shall be the State property of
the Republic of Lithuania. Individual local urban as well as
rural telephone, radio and television networks and stations may
be the property of municipalities, enterprises, institutions,
organizations, as well as natural entities." Lithuanian Radio
and Television Centre of the Ministry of Communications and
Informatics manages on the right of trust the State equipment
of Radio and Television broadcasting. It leases these equipment
to State legal entities, private Radio and Television
broadcasting stations, as well as to natural entities.
Pursuant to Article 7 of the Statute, LRTV manages means
of the preparation of programmes and have the priority right to
use the equipment of transmission, as well as of the network of
radio relay lines. LRTV implements the priority right in
accordance with the Resolution of the Government "On the Lease
of Radio and Television Network", 7 December 1992, by taking on
lease, on non-competition basis, the broadcasting equipment
from Lithuanian Radio and Television Centre of the Ministry of
Communications and Informatics. It is thus established in the
Statute that the right of LRTV to manage the equipment of the
preparation of programmes and the priority right to use the
equipment of transmission, as well as the network of radio
relay lines, are based on the State right of ownership to this
property. This right of ownership is consolidated in the laws
which are not subject of investigation in this case. The fact
that the priority right to use the State property is granted
for the State enterprise and not for private broadcasting
stations, is, in the respect of regulating of property
relations, the understandable and uncontradictory in the regard
to said norms of Civil Code, legal decision.
In this case however not this is the main thing, as it is
rather the exceptional right or the possibility to disseminate
information, as well as to exert the exceptional influence upon
public opinion than the right to possess broadcasting technical
equipment as the property, that is spoken about. The
prohibition to monopolise means of mass media which is
established in the Constitution, first and foremost, means the
prohibition to monopolise production of Radio and Television
programmes, as well as dissemination of information. It is
therefore determined about the monopoly of the State or the
State enterprise in this field from that whether private Radio
and Television broadcasting stations have the right to produce
and broadcast Radio and Television programmes in accordance
with the general requirements established in the laws for all
broadcasters of programmes.
It is established in Article 3 of the Law on the Press and
other Mass Media that: "Means of mass media shall freely
prepare and disseminate information." Private Radio and
Television broadcasting services may have their private local
Radio or Television networks and stations (Article 6 of the Law
on Communications)or may lease State-owned transmission
facilities (the Resolution of the Government "On the Lease of
Radio and Television Networks", 7 December 1992). It is
established in item 1 of said resolution that the Ministry of
Communications and Informatics has the right to lease, on
competition basis, State Radio and Television transmitters,
wired radio as well as cable television channels, amongst them
leased by LRTV (when they are available and vacant). The
analogous norm is written in item 1 of the Regulations: "The
Ministry of Communications and Informatics may lease on
competition basis Lithuanian Radio and Television programmes
broadcasting equipment, by which programmes shall not be
transmitted, to private broadcasting stations."
Thus, the norm of Article 7 of the Statute that LRTV use
the transmission equipment on the priority right indicates
that, besides this State enterprise, other Radio and Television
broadcasting stations will be allowed to use them as well. The
guaranty is established in this norm that the State or its
enterprises may use broadcasting equipment. The priority right
of LRTV to use transmission equipment is not unlimited
(encompassing everything). The priority right means only the
right to lease these equipment on non-competition basis from
the Lithuanian Radio and Television Centre of the Ministry of
Communications and Informatics. If the priority right were
understood as the absolute State right to use its own
broadcasting equipment only for the broadcasting of the
programmes of the State enterprise LRTV, then this norm should
be vicious. In the disputable norm of the Statute there is no
indicated condition of the use of the equipment, which
guarantees the right of other Radio and Television broadcasting
services to broadcast their programmes. The quotas, however, as
well as other conditions ensuring pluralism in Radio and
Television are usually established in laws which regulate in
general the activity of the means of mass media or the activity
of all Radio and Television means. On the basis of the above
stated arguments the conclusion may be made that LRTV monopoly
is not consolidated in Article 7 of the Statute. This norm in
dispute does not contradict Part 2 of Article 44 of the
Constitution.
There is also no ground to maintain that the monopolistic
status of LRTV is consolidated by Article 9.3 of the Statute,
as well as item 3 of the Regulations, pursuant to which the
Board confirms the results of the Competition. In accordance
with the Resolution "On the Lease of Radio and Television
Networks", 7 December 1992, and the Regulations in dispute, the
Ministry of Communications and Informatics leases on
competition basis the broadcasting equipment which is not used
by the State radio and television to private broadcasting
services. LRTV do not take part in the Competition. The
Commission confirmed by the Government organizes the
Competition and establishes the results. Private Radio and
Television broadcasting stations broadcast their programmes by
the State facilities taken on lease. Due to the disputable
legal norms the status of LRTV has not become monopolistic.
It should be noted that the idea of State Radio and
Television is not considered unacceptable in democratic states.
Some time ago the European Commission for Human Rights
(ECHR)was of the opinion that the State could rather widely
regulate the activity of Radio and Television. It based itself
upon item 1 of Article 10 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms in which it
is said that: "Every person shall have the right to freely
express his/her ideas and convictions. This right shall
encompass freedom to keep to own opinion, as well as to obtain
and disseminate information and ideas, being unrestricted by
governmental officers and regardless of frontiers. This article
must not hinder the states from making demands to license
radio, television or cinema services." The last sentence was
explained in the following way: the states shall have the right
but not the obligation to grand licences to radio and
television broadcastings (ECHR, 1968, 1972, 1976. Decisions
concerning Permissibility of Complaint. Digest. S. 430-431).
This point of view has been changing, and lately the experience
of the European Court of Human Rights is based on the fact that
freedom of Radio and Television should not be restricted by
granting of licences but the possibility of State Radio and
Television is not rejected. It is important that the State
Radio and Television, as well as any other means of mass media
should not possess the monopoly of dissemination of
information.
The 4th European Ministerial Conference on Mass Media
Policy, held on 7-8 December 1994, has acknowledged in
Resolution No.1 that the public service broadcasting, both
Radio and Television, support the values underlying the
political, legal and social structures of democratic societies,
and in particular respect for human rights, culture and
political pluralism. Participating at the Conference states
have undertaken to guarantee the independence of public service
broadcasters against political and economic interference, and
also emphasized that public service broadcasters must be
directly accountable to the public. The Conference noted that
particularly important change in broadcasting of late years is
the emergence of mixed system of public and commercial
broadcasting.
3. It is established in Part 1 of Article 46 of the
Constitution that:" Lithuania's economy shall be based on the
right to private ownership, freedom of individual economic
activity, and initiative."
Freedom of economic activity and initiative are based on
the inborn right of an individual to personal freedom, as well
as on the inborn right to ownership. Freedom of economic
activity means the right to freely choose an occupation or
business and dwelling place, and equality of the entities of
economic activity, the right to freedom of making contracts, as
well as to competition freedom.
Freedom of economic activity is not absolute, obligatory
requirements and restrictions are established for its
implementation. The State and other entities however may not
unrestrictedly interfere in individual economic activity. It is
inadmissible to deny by restrictions such basic provisions of
freedom of economic activity as equality of the entities of
economic activity, fair competition, etc.
Private Radio and Television broadcastings are one of the
spheres of economic activity. Pursuant to the Statute LRTV also
have the right to be engaged in economic activity: to publish
books, periodicals, to prepare and broadcast commercial
programmes and advertisements, to organize other shows of
commercial character. Legal norms therefore, both consolidating
freedom of information and regulating economic activity, are
applied to the relations connected with the activity of means
of mass media.
Both private Radio and Television broadcasting stations
and LRTV are the participants of economic activity. In the
meantime, in Article 9.3 of the Statute and in item 3 of the
Regulations the right to confirm the results of the
competitions regarding the lease of broadcasting equipment to
private broadcasting stations is granted to the governing body,
the Board, of one of said participators - LRTV. The granting of
the right however to one participant of the same economic
activity to take the decisions which influence economic
activity is not in conformity with the provision of equality of
economic entities. Such a legal regulation makes the
implementation of freedom of individual economic activity and
initiative dependent upon the governing body of the State
institution. That contradicts Part 1 of Article 46 of the
Constitution.
4. Legal guarantees of freedom of economic activity and
initiative are consolidated in Part 4 of Article 46 of the
Constitution: "The law shall prohibit monopolisation of
production and the market, and shall protect freedom of fair
competition."
The petitioner maintains that Article 7 of the Statute in
which it is established that LRTV shall manage means of
production of programmes and shall have the priority right to
use the equipment of transmission, as well as of the system of
radio relay lines, contradicts the principle of freedom of fair
competition consolidated in the Constitution. The conception of
freedom of fair competition is concretized in the Law on
Competition. Disputable Article 7 of the Constitution therefore
is to be evaluated on the grounds not only of the norms of the
Constitution but also of the Law on Competition. Pursuant to
Article 2 of this Law competition is emulation during which
economic entities, by acting independently in the market,
restrict the possibilities one another's abilities to attain a
dominant position in that market, and promote the production
and increase the efficiency of goods necessary to consumers;
the goods - the result of activity, i.e. production and service
meant for realization. It is prohibited by law for economic
entities to perform the actions that restrict competition, as
well as the acts of unfair competition; bodies of state
government and local municipalities are prohibited from
adopting standard acts or carrying out activities which
restrict independence of economic entities, or the conclusion
of economic contracts, which impede the foundation,
reorganization or restructuring of existing economic entities,
or which grant privileges to or discriminate separate economic
entities or which restrict competition in any different way.
(Article 6).
A privilege is an exceptional right or benefit granted to
a person, an organization, or other entity. The right, granted
to LRTV in Article 7 of the Statute, to manage means of
preparation of programmes and to have the priority right to use
the equipment of transmission, as well as the network of radio
relay lines, is not a privilege. The right to manage means of
preparation of programmes and to have the priority right to use
the equipment of transmission - that are, as it has been
already mentioned in the ruling, the authorizations based on
State ownership to this property, as well as legally motivated.
The right of private Radio and Television stations to lease
State equipment of broadcasting is not negated by the norm of
the Statute, as well as it is not prohibited to obtain such
equipment as a private property. The priority right of LRTV to
use the equipment of transmission, as well as the network of
radio relay lines in this case is to be estimated not as the
unrestricted right but only as the guarantee of the activity of
State institution. Taking into consideration such
interpretation of the norm, the conclusion is to be made that
Article 7 of the Statute does not contradict Part 4 of Article
46 of the Constitution.
Means of ensuring of freedom of fair competition are
established in
Article 6 of the Law on Competition. Bodies of state
government and local municipalities are prohibited from
adopting standard acts or carrying out activities which
restrict competition.
The right granted to the Board in disputable item 3 of the
Regulations to confirm the results of the Competition is to be
estimated in this ruling of the Constitutional Court as the
possibility to hinder for the activity of private Radio and
Television stations. This in its turn would restrict fair, free
competition.
The conclusion thus is to be made that item 3 of the
Regulations contradicts Part 4 of Article 46 of the
Constitution, as well as Article 6 of the Law on Competition.
II. On the compliance of item 12 of the Regulations of the
Technical Commission for Organization of Competitions Regarding
the Lease of Radio and Television Programmes Broadcasting
Facilities to Private Broadcasting Services with the
Constitution, as well as with Part 2 of Article 1 and with
Article 3 of the Law on the Press and other Mass Media.
It is established in Part 1 of Article 44 of the
Constitution: " Censorship of mass media shall be prohibited."
Censorship is the inspection of the content of the press,
cinema films, broadcasts and telecasts, theatre performances
and other public entertainment performances, for the purpose
that certain knowledge and ideas would not be disseminated.
It is important from the standpoint of democracy that
public opinion would freely develop. That means first of all
that establishment of means of mass media, as well as the
possibility of its activity must not depend upon the content of
future publications or programmes. Prohibition of censorship
however does not mean unrestricted by laws freedom of mass
information. Pursuant to Part 3 of Article 25 of the
Constitution, freedom to obtain and disseminate information may
be restricted by law only when it is necessary for the
safeguard of the rights and freedoms mentioned in this norm of
the Constitution, as well as for the protection of
constitutional order. Dissemination of information is
incompatible with criminal actions (Part 4 of Article 25 of the
Constitution). It is established in Article 6 of the Law on the
Press and other Mass Media what information is not to be
imparted and dissemination of what information is restricted.
Certain restrictions of dissemination of information are
established in other laws as well. Everyone which disseminate
information has to observe the restrictions established by
laws, and not to abuse freedom of information. The publisher is
responsible for the information being disseminated, his or an
editor's demands and directions therefore concerning the
content of information, as well as decisions in regard with the
possibility of its dissemination or alike, are not considered
to be censorship.
In the laws, regulating the relations which arise from the
right to seek, obtain and disseminate information and ideas,
preconditions for realization of this right are established,
and also allowable restrictions, as well as demands made of
means of mass media are regulated. The same basic principles of
the job of the transmitter putting on the air - impartiability
and pluralism - are valid for both private and public or State
Radio and Television broadcasters. In legal acts, certain
functions as cultural, youth education and alike, may be
underlined, as well as the most general outline of programmes -
amount of advertisement or its prohibition, programmes in the
languages of national minorities, etc. - may be indicated. Some
states of the European Union (EU) implement EU Directive
89/552, indicating that the quota of European Radio and
Television programmes must be established in new national laws
of Radio and Television. The quotas defining a part of national
programmes in Radio and Television are in force in some
countries. Granting of licences to private stations is not
seldom linked with certain quantity standards, minimum job on
the transmission air and alike. Such regulation of the activity
of radio and television is not considered to be censorship of
means of mass media as it is not directly connected with the
content of future programmes.
There is no law establishing the requirements of such kind
in Lithuania. In the 7 December 1992 Resolution of the
Government "On the Lease of Radio and Television Networks" and
in the Regulations in dispute there are no directions related
to the broadcasting programmes neither for private Radio and
Television services which lease broadcasting equipment, nor for
the Commission which organizes competitions of lease.
The Commission prepares the regulations for each
competition. The Commission to which the status of technical
commission is granted by a resolution of the Government is
competent to solve questions of technical character, such as:
making efficient use of the transmitter putting on the air,
possibilities of preparing technically qualitative programmes,
and alike. The right of the Commission to control how technical
requirements are observed is beyond any doubt.
Pursuant to item 12 of the Regulations the Commission
controls how the winners of the Competition, while broadcasting
Radio and Television programmes, observe the conceptions
submitted for the Competition. It is not determined in the
Regulations what character of conceptions submitted for the
Constitution must be. It is established by the Commission
itself in its prepared regulations of the Competition. For
instance, it is established in some regulations prepared by the
Commission for the Competition that in an application of a
participant of the Competition must be indicated: "...the
purpose, extent and language of programmes, thorough
characteristic of programmes, as well as the extent of
programmes produced by certain authors." It is also written in
these regulations that the Commission, while estimating the
results of the Competition, also takes into consideration: "
... originality of a programme (not repeating the programmes
which have been already broadcasted); composition of a
programme; a part which broadcasted Lithuanian authors and
performers take in a programme; extent of programmes produced
by certain authors." The Commission thus, while organizing and
estimating the competitions for the lease of transmitters, as
well as channels, does not confine itself with technical
requirements, it, at its own discretion, decides about the
structure of the programmes of private radio and television
stations, as well as its priorities. The notion " conception"
however in the context of the question under investigation has
to be understood as the whole complex of formulated in the
Competition conditions, which cannot encompass the content of
information.
Discrepancy of legal status of the Commission is
emphasized by its prerogatives to respond to ascertained
violations of the conditions of the Competition. The function
of the Commission to submit its conclusions concerning
observing of the conception to the Press Control Board under
the Ministry of Justice or to other State institutions, which
discuss the question of further lease of Radio and Television
broadcasting facilities, is not completely legally grounded.
The Constitutional Court therefore draws a conclusion that in
this regard the legal status of the Commission is faulty,
ambiguous, and this may be eliminated only by law regulating
the relations of such character. At the same time it is to be
noted that the legal status of the Commission does not create
for it any actual legal preconditions to interfere in the
activity of means of mass media while preparing and
disseminating information, and furthermore to censor them.
There is no grounds hence to recognize that item 12 of the
Regulations contradicts Part 1 of Article 44 of the
Constitution, and Part 2 of Article 1 of the Law on the Press
and other Mass Media, as well as Article 3 of this Law.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognize that:
1) item 7 of the Statute of Radio and Television of
Lithuania confirmed by the 10 May 1990 resolution of the
Supreme Council of the Republic of Lithuania (with the 23 May
1993 amendments)does not contradict the Constitution of the
Republic of Lithuania;
2) Article 9.3 of said Statute contradicts Part 2 of
Article 25 and Part 1 of Article 46 of the Constitution of the
Republic of Lithuania.
2. To recognize that:
1) item 3 of the Regulations of the Technical Commission
for Organization of Competitions Regarding the Lease of Radio
and Television Programmes Broadcasting State Facilities to
Private Broadcasting Services confirmed by Regulation No.126 of
the Government of the Republic of Lithuania, 3 March 1993,
contradicts Part 2 of Article 25, as well as Parts 1 and 4 of
Article 46 of the Constitution of the Republic of Lithuania, as
well as Article 6 of the Law of the Republic of Lithuania on
Competition;
2) item 12 of said Regulations does not contradict the
Constitution of the Republic of Lithuania, and Part 2 of
Article 1 as well as Article 3 of the Law of the Republic of
Lithuania on the Press and other Mass Media.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.