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On the Statute of the Radio and Television of Lithuania

Case No. 19/94

 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 Organisation 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 Juozas Žilys

The court reporter—Rolanda Stimbirytė

The lawyers Isaakas Kaganas and Vygantas Barkauskas, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Gediminas Ilgūnas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Ieva Laurinavičienė, Gintautas Pangonis, and Anicetas Stelingis, acting as the representatives of the Government of the Republic of Lithuania, a party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 29 March 1995, considered case No. 19/94 subsequent to the petition submitted to the Court by a group of the Seimas members requesting an investigation into whether 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 whether Item 3 of the Regulations of the Technical Commission for Organisation 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’s Law on Competition, as well as, whether Item 12 of said Regulations is in compliance with the Constitution of the Republic of Lithuania and with Paragraph 2 of Article 1 and Article 3 of the Republic of Lithuania’s 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” of 10 May 1990 (Official Gazette Valstybės žinios, 1990, No. 15-424), the Supreme Council of Lithuania confirmed the Statute of Radio and Television of Lithuania (hereinafter referred to as the Statute) which was partly amended by the Seimas Resolution “On Amending and Supplementing the Statute of Radio and Television of Lithuania” of 23 December 1993 (Official Gazette Valstybės žinios, 1994, No. 1-18).

By Item 1.2 of the Resolution (No. 126) “On the Confirmation of the Regulations of the Technical Commission for Organisation of Competitions Regarding the Lease of Radio and Television Programmes Broadcasting Facilities to Private Broadcasting Stations” of 3 March 1993, the Government confirmed the Regulations of the Technical Commission for organisation of competitions regarding the lease of radio and television programmes broadcasting State facilities to private broadcasting services (Official Gazette Valstybės žinios, 1993, No. 9-215; hereinafter referred to as the Regulations).

By these legal acts, besides, it has been established:

1) Radio and Television of Lithuania (hereinafter referred to as the LRT)shall manage the 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 organisation of competitions regarding the lease of radio and television programmes broadcasting State facilities to private broadcasting services (hereinafter referred to as the Commission) shall organise competitions regarding the lease of radio and television programmes broadcasting State facilities (hereinafter 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 the LRT (hereinafter 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).

A group of the members of the Seimas, the petitioner, requests an investigation into whether Articles 7 and 9.3 of the Statute of Radio and Television of Lithuania are in compliance with the Constitution, as well as whether Item 3 of the Regulations of the Technical Commission for Organisation 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 whether 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.

  1. 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 organisation 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.
  2. Article 7 of the Statute provides: “Radio and Television of Lithuania shall manage the 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 the LRT is consolidated in regard with other means of mass media. The chief of the LRT 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 organises competitions and establishes their winners, its decision however is not final. The Board has to confirm the results of the Competition. The Board is thus afforded an opportunity not to confirm the results of the Competition, to change them, etc. By manipulating this opportunity, the Board decides which private radio and television companies may go on the air and which may not. The Board have used the opportunity to abuse its monopolistic position more than once. 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 the 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” won the Competition of the lease of Channel LTV-2, the Board had not even discussed the confirmation of the results of the Competition. In the opinion of the petitioner, these examples 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 Paragraph 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 the LRT in regard with other means of mass media.

  1. The petitioner maintains that Article 9.3 of the Statute and Item 3 of the Regulations contradict Paragraph 2 of Article 25 of the Constitution in which it is established: “The human being 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 organisations that have got the certificate of registration of means of mass media and that has won the Competition cannot realise 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

Paragraph 3 of Article 25 of the Constitution provides: “Freedom to express convictions, as well as to obtain and disseminate information, may not be limited 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 means of resolutions of the Seimas and the Government, and not by law.

  1. The petitioner points out that Article 9.3 of the Statute and Item 3 of the Regulations also contradict Paragraph 1 of Article 46 of the Constitution, which provides 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 realisation of the right to private ownership, freedom of individual economic activity, and initiative depend upon the LRT, a State institution that holds the 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 the LRT) private capital prevails.
  2. In the opinion of the petitioner, Article 7 of the Statute contradicts Paragraph 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 municipalities to adopt normative acts or to perform actions which limit the independence of economic entities, as well as concluding economic contracts, hinder to establish new economic entities or to reorganise the existing ones and change their character of activity, provide privileges or discriminate separate economic entities or limit competition otherwise.” In Article 7 of the Statute obvious privileges are provided for the LRT, as well as other radio and television broadcasting services are discriminated. Their existence directly depends upon the LRT. Since the Statute is not in compliance with the Law on Competition, it is not as well in compliance with Paragraph 4 of Article 46 of the Constitution.

The petitioner has also pointed out that the prohibition against limitations on 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.

  1. On the compliance of Item 12 of the Regulations of the Technical Commission for Organisation 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 Paragraph 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 Paragraph 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 arguments stated in the request. They have emphasised that pursuant to Article 19.4 of the Statute, the LRT may prepare and broadcast commercial programmes and advertisement. The Board represents an office which is also engaged in commerce, it cannot thus 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 limits freedom of information. It is established in Paragraph 3 of Article 25 of the Constitution that freedom to express convictions, as well as to obtain and disseminate information, may not be limited 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. The limitations on information dissemination are provided for 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, 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 limitations that 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 arguments, have requested that the Constitutional Court investigate whether Articles 7 and 9.3 of the Statute are in compliance with the Constitution, as well as whether Item 3 of the Regulations is in compliance with the Constitution and with Article 6 of the Law on Competition, and whether Item 12 of the Regulations is in compliance with the Constitution as well as with Paragraph 2 of Article 1 and with Article 3 of the Law on the Press and other Mass Media.

IV

In the process of the preparation of the case it has been pointed out in the information, submitted by the Government, a party concerned, that the preparation and broadcast of radio and television programmes by broadcasting stations that have permission from the Press Control Board under the Ministry of Justice is allowed. 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 the LRT. It manages studios, as well as the facilities required for the creation and recording of programmes. The LRT has the priority right to lease equipment (transmitters, communication channels), needed for the broadcasting of programmes, from the Ministry of Communications and Informatics (the State enterprise “The Radio and Television Centre of Lithuania”). The Ministry of Communications and Informatics, on competition basis, leases State transmitters, which are free from the broadcasting of LRT programmes, to other broadcasting stations. Competitions are organised 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.

At the court hearing, the representative of the Seimas, a party concerned, has explained that the Board is formed in order to co-ordinate State and public interests. What is called control over private radio and television broadcasting services is only a minimum requirement in order to protect the State interests. The Board consists of 17 members, and only one of them—its General Director—represents the LRT. 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 the LRT. Pursuant to the Statute, the Board shall offer suggestions which may be carried out by the LRT Administration, and maybe 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 Seimas, a party concerned, has not agreed with the statement of the petitioner that the LRT monopolises 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 the LRT. 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 the LRT, 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 Government, a party concerned, 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 the LRT. 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 exercise 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 Seimas and the Government, the parties concerned, have requested that the Constitutional Court recognise 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 Paragraph 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 human rights is the right to have convictions and freely express them. The possibility for every human being to formulate freely his/her own opinion and views, as well as freely disseminate them is the indispensable condition for the creation and maintaining of democracy. Laws of a democratic State thus consolidate and protect the subjective right of a human being to have and freely express his/her convictions. Such laws also consolidate freedom of information as the objective public need. It means that not only freedom of information in general, but also freedom of means of mass media as the expression of freedom of information in its objective form must be protected. 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 and human rights and freedoms. Therefore, limitations on freedom of information may be established, as well as activity of means of mass media, may be regulated by law.

Greater demands are raised for radio and television than for other means of mass media for their especially great influence upon the broad audience also because of the fact that the technical possibilities of radio and television broadcasting are not limitless. 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 law 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 the limitations on freedom of information and the regulation of means of mass media should not violate pluralism—a principle of a democratic society. This is guaranteed by prohibition against monopolisation of means of mass media and against information censorship, as well as by other legal means.

  1. 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 Organisation 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.
  2. It is established in Paragraph 1 of Article 25 of the Constitution that:

“The human being shall have the right to have his own convictions and freely express them.”

The right of a human being to have his own convictions must be based on an actual possibility of formulating 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.

Paragraph 2 of Article 25 of the Constitution prescribes: “The human being 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 a human being. 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 unhindered. 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 Paragraph 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. To investigate the compliance of these regulations 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 of 10 May 1990. At that time Lithuanian radio and television programmes were prepared and broadcasted only by the State institution—the LRT. In the Statute the tasks of the LRT 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. the expression of different views and convictions, is consolidated. According to Article 8 of the Statute, the Board and General Director manage the LRT. The Board controls how is the Statute kept to (Article 9.1), cherishes the 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 a new, pluralistic State radio and television. The Board is formed out of representatives of society and the LRT employees. It is significant that in such a way the society has been granted the possibility of controlling State radio and television.

A new situation however has been created in the country as soon as private radio and television broadcasting stations have started to function. The LRT has become one out of several radio and television companies. The Board, though having been formed by the Supreme Council, is the governing body of one institution—the LRT. 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, the LRT, 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.

The 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 the allotment of transmitters, as well as the 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 the granting of the concessions). The Board, in accordance with the Statute being the governing body of a State institution—the LRT, 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 the LRT but by the Lithuanian Radio and Television Centre of the Ministry of Communications and Informatics. The Board, as the body of the LRT, has also no right to dispose of said facilities.

The norm 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” implies 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 establishment of the results of the Competition is actually legalised, and that creates the possibility of hindering the private means of mass media which have participated in the Competition from their activity. 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. The procrastination of making a decision may also hinder the dissemination of 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 that of the analogous Item 3 of the Regulations, which is also in Item 2 of the Government Resolution “On the Confirmation of the Technical Commission for Organisation of Competitions Regarding the Lease of Radio and Television Programmes Broadcasting State Facilities to Private Broadcasting Stations” of 3 March 1993, contradicts Paragraph 2 of Article 25 of the Constitution.

  1. Paragraph 2 of Article 44 of the Constitution provides: “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 organisation may act without competition in a certain field.

Thus, the norm of Paragraph 2 of Article 44 of the Constitution does not allow the State, political parties, political and public organisations, as well as other institutions or persons to monopolise the preparation and dissemination of radio and television programmes and it presupposes an appropriate legal anti-monopolistic regulation.

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 organisations, 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.

Article 7 of the Statute provides: “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, whether the LRT monopoly is consolidated in said norm, has primarily to be considered from the standpoint 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 (Paragraph 1 of Article 99 of Civil Code). Whilst State enterprises, institutions and organisations manage appropriate State property, use it, as well as dispose it on the rights of property trust while observing their statutes (Paragraph 2 of Article 99 of Civil Code).

Article 6 of the Law on Communications of the Republic of Lithuania provides: “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, organisations, 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, the LRT 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. The LRT implements the priority right in accordance with the Government Resolution “On the Lease of Radio and Television Network” of 7 December 1992, by taking on lease, on non-competition basis, the broadcasting equipment from the Lithuanian Radio and Television Centre of the Ministry of Communications and Informatics. It is thus established in the Statute that the right of the LRT 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 that are not a matter 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 the regulation of property relations, a legal decision that is understandable with regard to said norms of Civil Code and is consistent with them.

In this case however not this is the main thing, as it is rather the exceptional right or the possibility of disseminating 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 against monopolisation of means of mass media which is established in the Constitution, first and foremost, means the prohibition against monopolisation of the 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.

Article 3 of the Law on the Press and other Mass Media provides: “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 Government Resolution “On the Lease of Radio and Television Networks” of 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-owned radio and television transmitters, wired radio as well as cable television channels, amongst them leased by the LRT (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 the 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 the LRT 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 the LRT 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 LRT, then this norm should be vicious. In the impugned 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 normally established in laws that 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-mentioned arguments the conclusion may be made that the LRT monopoly is not consolidated in Article 7 of the Statute. This impugned norm does not contradict Paragraph 2 of Article 44 of the Constitution.

There is also no ground to maintain that the monopolistic status of the LRT 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” of 7 December 1992 and the impugned Regulations, 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. The LRT does not take part in the Competition. The Commission confirmed by the Government organises 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 impugned legal norms the status of the LRT 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 had referred to Item 1 of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” The last sentence was interpreted in the following way: the states have the right but not the obligation to grant 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 the 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 emphasised that public service broadcasters must be directly accountable to the public. The Conference noted that particularly important change in the broadcasting of late years is the emergence of the mixed system of public and commercial broadcasting.

  1. Paragraph 1 of Article 46 of the Constitution provides: “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 innate right of a human being to personal freedom, as well as on the innate 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 limitations are established for its implementation. The State and other entities, however, may not interfere in individual economic activity in an unlimited manner. It is inadmissible to deny by limitation 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 of the LRT also have the right to be engaged in economic activity: to publish books, periodicals, to prepare and broadcast commercial programmes and advertisements, to organise other shows of commercial character. Therefore, the legal norms, 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 the LRT 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—the LRT. 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 Paragraph 1 of Article 46 of the Constitution.

  1. Legal guarantees of freedom of economic activity and initiative are consolidated in Paragraph 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 the LRT shall manage the 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 concretised in the Law on Competition. Therefore, the impugned Article 7 of the Statute should be evaluated not only on the grounds 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, limit the possibilities of 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 realisation. The law forbids economic entities to perform the actions that limit competition, as well as the acts of unfair competition; the bodies of state government and municipalities are prohibited from adopting standard acts or carrying out activities which limit the independence of economic entities, or the conclusion of economic contracts, which impede the foundation, reorganisation or restructuring of existing economic entities, or which grant privileges to or discriminate separate economic entities or which limit competition in any other way (Article 6).

A privilege is an exceptional right or benefit granted to a person, an organisation, or other entity. The right, granted to the LRT in Article 7 of the Statute, to manage the 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 the 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 authorisations based on State ownership to this property, as well as legally reasoned. 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 from obtaining such equipment as a private property. The priority right of the LRT to use the equipment of transmission, as well as the network of radio relay lines in this case is to be estimated not as an unlimited right but only as a guarantee for the activity of a 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 Paragraph 4 of Article 46 of the Constitution.

The means of the ensuring of freedom of fair competition are established in Article 6 of the Law on Competition. Bodies of state government and municipalities are prohibited from adopting normative acts or carrying out activities which limit competition.

The right granted to the Board in the impugned 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 of hindering private radio and television stations from their activity. This in its turn would limit fair and free competition.

Thus, the conclusion should be made that Item 3 of the Regulations contradicts Paragraph 4 of Article 46 of the Constitution, as well as Article 6 of the Law on Competition.

  1. On the compliance of Item 12 of the Regulations of the Technical Commission for Organisation of Competitions Regarding the Lease of Radio and Television Programmes Broadcasting Facilities to Private Broadcasting Services with the Constitution, as well as with Paragraph 2 of Article 1 and with Article 3 of the Law on the Press and other Mass Media.

Paragraph 1 of Article 44 of the Constitution provides: “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. The prohibition against censorship, however, does not mean freedom of mass information unlimited by law. Pursuant to Paragraph 3 of Article 25 of the Constitution, freedom to obtain and disseminate information may be limited 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 (Paragraph 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 the dissemination of what information is subject to limitation. Certain limitations on the dissemination of information are established in other laws as well. Everyone which disseminate information has to observe the limitations established by law, and not to abuse freedom of information. The publisher is responsible for the information being disseminated, therefore, his or an editor’s demands and directions concerning the content of information, as well as decisions in regard with the possibility of its dissemination etc., 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 realisation of this right are established, and also allowable limitations, 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—impartiality 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—the 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. The 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 Government Resolution “On the Lease of Radio and Television Networks” of 7 December 1992 and in the impugned Regulations 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 organises competitions of lease.

The Commission prepares the regulations for each competition. The Commission to which the status of technical commission is granted by means of 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: “<...: the 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.” Thus, the Commission, while organising and estimating the competitions for the lease of transmitters and 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 emphasised by its prerogatives to respond to ascertained violations of the conditions of the Competition. The function of the Commission to submit its conclusions concerning the 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. Therefore, the Constitutional Court draws the 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 recognise that Item 12 of the Regulations contradicts Paragraph 1 of Article 44 of the Constitution, and Paragraph 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 gives the following

ruling:

  1. To recognise 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 Paragraph 2 of Article 25 and Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania.

  1. To recognise that:

1) Item 3 of the Regulations of the Technical Commission for Organisation of Competitions Regarding the Lease of Radio and Television Programmes Broadcasting State Facilities to Private Broadcasting Services confirmed by the 3 March 1993 regulation (No. 126) of the Government of the Republic of Lithuania contradicts Paragraph 2 of Article 25, as well as Paragraphs 1 and 4 of Article 46 of the Constitution of the Republic of Lithuania, as well as Article 6 of the Republic of Lithuania’s Law on Competition;

2) Item 12 of said Regulations does not contradict the Constitution of the Republic of Lithuania, and Paragraph 2 of Article 1 as well as Article 3 of the Republic of Lithuania’s Law on the Press and other Mass Media.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

Teodora Staugaitienė                       Stasys Šedbaras                               Juozas Žilys