Ruling No 7of 4.VI.1996 on constitutional case No 1/96 of the Constitutional Court of the Republic of Bulgaria

State Gazette, issue 55/96

Article 39, Article 40 and Article 41 of the Constitution of the Republic of Bulgaria

The Constitutional Court composed of: Assen Manov (Chair), and Mladen Danailov, Milcho Kostov, Tsanko Hadjistoychev, Stanislav Dimitrov, Nikolay Pavlov, Dimiter Gochev, Ivan Grigorov, Pencho Penev, Todor Todorov, Alexander Arabadjiev, Georgi Markov (members), in the presence of Sylvia Vassileva (secretary/minute-taker), held on June 4^th 1996 an in camera hearing of constitutional case No 1 of1996, reported by Judge Alexander Arabadjiev.

Constitutional case ¹ 1 of 1996 was opened on request of the President of the Republic for a binding interpretation of the provisions of Articles 39, 40 and 41 of the Constitution.

The three constitutional provisions cover the same subject matter and aim to bring clarity to the content of:

à) The right to freely express and publicize opinions;

b) The right to seek, obtain and impart information;

c) The constitutional provisions in restriction of the rights under a) and b).

The justification of the request offers an account of the existing or potential problems the interpretation and implementation of the above provisions entails. The submitter of the request draws a distinction between the constitutional norms in which he sees no potential for controversy, and those that call for interpretation. Special emphasis is laid on the interpretation of the grounds on which limitations of these rights can be imposed. The submitter of the request relates his own viewpoint on the issues raised in his request.

By its decision of January 16^th, 1996, the Constitutional Court granted a hearing on the request.

By force of the same decision the court summoned the National Assembly, the Council of Ministers, the Chief Prosecutor, the Union of Bulgarian Journalists (UBJ), the ‘Free Speech’ association of citizens, the Bulgarian National Television (BNT), the Bulgarian National Radio (BNR), the Bulgarian Telegraph Agency (BTA) and the Department of Journalism and Mass Communications with the Sofia State University ‘St. Kliment Ohridsky’, as parties to the case.

The National Assembly, the Chief Prosecutor, the UBJ, the ‘Civil Forum for Free Speech’ Association, the BNT, the BNR and the Department of Journalism and Mass Communications with the Sofia State University ‘St. Kliment Ohridsky’ submitted their written observations on the case in response to the invitation given to them by the court.

No other media, associations or organizations also invited to make their observations re. the subject of the interpretation did so.

I

1. The Chair of the standing parliamentary Committee on Human Rights and Religions delivered his observations on behalf of the National Assembly.

The observations tackle a part of the subject of interpretation, stating their author’s consent with the provision of Article 40 (1) of the Constitution: ‘freedom of the media has two dimensions: freedom from ... interference of the state in the capacity of its agencies in the rendition of facts and events, and freedom of the journalists working at any given media to free expression of their opinion in line with the nature, aims and policy of the respective media."

Basing himself on the above provision the author claims that no state agency can interfere in the work of the private media; the public media, such as the BNT, BNR and BTA, should have their policy shaped solely by their duly empowered managing bodies, which are answerable to and elected by the National Assembly. The journalists’ entitlement to free expression of their opinion could not but align with the nature, aims and policy of the respective media; where a media is private and a journalist’s opinion digresses from that of the media’s owner, the former is free to express his/her opinion in another media and leave the one that employed him. The same view is supported also in regard to journalists working in the public media, the opinion of whom digresses from the media’s management. They, too, are free to leave as a way to retain the integrity of their freedom of personal opinion, and their management is free to dismiss them should their personal policy conflict with the media’s.

2. The Chief Prosecutor gives his views on the overall scope of the request, backs up the need for the requested interpretation and stresses that the Constitution of the Republic of Bulgaria asserts the rights of the individual and the guarantees for their observance as a principle of supreme importance.

The right of freedom to express opinions, proclaimed in Article 39 (1) of the Constitution, is viewed in its consistency with the freedom of opinion and expression and with the provisions of Article 19 of the Universal Declaration of Human Rights and Article 10 (1) of the European Convention for Human Rights and Fundamental Freedoms. The Chief Prosecutor stresses that no limitations under any primary or secondary legislation may be imposed on the free expression and publicizing of opinions, where such limitations are not part of the exhaustive list of limitations, provided in Article 39 (2) of the Constitution. The limitations described in Article 39 (2) of the Constitution are ranked in three categories, although their wording is qualified as ‘ambiguous’:

the right under Article 39 (1) of the Constitution may not be used to encroach on the rights, guaranteed by the Constitution and the domestic laws, or on those under international instruments that are ratified by the domestic law; their concrete content is decided on a case-by-case basis;

the above right may not be exercised to incite the perpetration of a crime;

inciting the perpetration of the remaining acts as listed in the provision to the extent that they do not constitute crimes; in that respect it is important, the Chief Prosecutor argues, that no public appeals are made for religious, ethnic, territorial or other enmity among groups of the population.

The freedom of the press and the other media, proclaimed in Article 40 (1) of the Constitution is viewed in its consistency with the ban on censorship and the right to seek, obtain and publicize information. In view of the ban on censorship the Chief Prosecutor stresses that the discretion to impose an injunction on, seize and subsequently dispose of a printed publication or another carrier of information is conferred on the judiciary, of whose agencies the Prosecution is the only one that can find legal justification for the actions under Article 40 (2) of the Constitution in the provision of Article 119 (1) 6 of the Judiciary Act. The Chief Prosecutor states that practice in this respect does exist, without specifying its scope and failing to cite factual circumstances for the Constitutional Court to bear in mind in the course of its interpretation. The Chief Prosecutor stresses that there should be a special law to regulate the powers of the agencies that fall within the category of the judiciary, and especially those of the courts of law and the investigation with view to the procedural instruments at their command.

Still in relation to the grounds under Article 40 (2) of the Constitution, the Chief Prosecutor expresses his views on the "encroachment on public decency" and shares his understanding of this to embody such negative impact over the established moral norms, as enters in striking conflict with them, scandalizes the public and is perceived negatively by it. Such an assessment, the Chief Prosecutor hastens to add, should be made within the frame of a broad mindset, in observance of tolerance and pluralism which are essential aspects of democracy.

The Chief Prosecutor sees the entitlement to freely seek, obtain and impart information, stipulated in Article 41 (1) of the Constitution, as unimpeded access to any source of information. In support of his view he cites Article 10 (1) of the European Convention for Human Rights as stipulating that ‘the dissemination of information should be done freely, without interference of the state power and irrespective of the national borders’. The Chief Prosecutor sees some of the terms used in Article 41 (1) of the Constitution as needful of further clarification, ‘reputation’ being one of them. The latter should be associated primarily with the honour and dignity of the individuals and with their prestige in society. National security serves as yet another reason for imposing a limitation, in cases where the affecting of important state interests could reduce the defence capacity or impair economic, political or other interests. ‘Public order’ should denote the order established through laws and regulations, helping to ensure serenity and a climate in which the relevant civil rights could be exercised.

For the purpose of interpreting Article 41 (2) of the Constitution, the Chief Prosecutor cites provisions of the constitutional text.

3. The UBJ’s observations prepared by its secretariat, start by stating its support for the constitutional provisions on the freedom of speech. The latter, the UBJ upholds, is ensured by three groups of essential conditions:

constitutional provisions, which exist;

specialised laws, which are missing;

rules, codes and by-laws governing the internal relationships and conduct within the journalists’ professional community, adopted by the college (the rules of journalistic conduct, adopted at UBJ’s 10^th Congress are enclosed with the observations).

The UBJ states its firm principal position based on which the general constitutional provisions, although inevitably subject to interpretation, should be spelled out in detail in specialised legislation. Special laws, regulating the functioning of information in society and the electronic media, would ensure maximum objectivity to the application of the freedom of speech in the cycle encompassing the ‘prior to the media’, ‘in the media’ ‘following the media’ phases. They would also regulate the journalists’ status (also specifying their rights, responsibilities and social status), and serve as the instrument obligating the state to disclose information to the citizens within the meaning of Article 41 (2) of the Constitution.

Enclosed to these observations is Letter No. 332/29.11.1995, issued by the Union’s secretariat and addressed to the Chair of the National Assembly and the Chair of the Parliamentary Committee on Television, Radio and the BTA as an illustration of a publicly stated view on the issues, encompassed by the subject of the interpretation.

4. In its observations the ‘Free Speech Citizens’ Forum’ association (as referred to in its documents, addressed to the Constitutional Court) offers its detailed opinion on the entire set of issues, raised by the request for interpretation.

The Forum explains that it came into existence as a result of the growing number of outright infringements of the freedom of speech, and that it upholds the legal and public need for an interpretation of the constitutional guarantees, demanded in the request, all the more because there is no specialized legislation to further support and elaborate the constitutional texts. The Forum claims that there exists in Bulgaria an unquestionable direct political control over the national electronic media (also affecting the freedom of the private electronic media and the private press), which enhances the need for the requested interpretation.

The views stated on the individual issues are centered around the belief that no real democracy can exist unless there is a well-informed public opinion, a right to free access to information, and electronic and print media that are independent of the state. Proceeding from this understanding of the tenets of democracy the Forum stresses on the need to establish special legislative protection of the right to criticize the government, whereby its weaknesses would be held for public scrutiny without interference on behalf of the government agencies, in the interest of whom it is that certain facts remain undisclosed. In addition, freedom of speech is intimately related to the other fundamental civil freedoms and particularly to the rights and freedoms of the cultural, political, ethnic, religious and other minorities that cannot assert their will through a simple majority. Thus the Forum sees encroachments upon the freedom of speech not only as infringing the provisions of Articles 39, 40 and 41 of the Constitution, but of the overall spirit and meaning of the organic law as well. The purpose of these provisions is to introduce the key parameters of the European standards on the freedom of speech and the right to an opinion, the Forum believes.

In respect of Article 39 of the Constitution the Forum states that the expanded interpretation of the grounds offered under (2) or the addition of new conditions as could give rise to violation of the freedom of speech, would constitute a breach of the Constitution, as its structure does not allow for its expansion. Therefore a clear and exhaustive interpretation of these provisions in their relevance to cases where interference resulting in restraining the freedom of speech is permitted, would preclude the possibility for their expanded and arbitrary interpretation. In respect of the individual grounds for limiting the right under Article 39 (1) of the Constitution, the Forum shares the opinion of the President in that ‘incitement of a forcible change of the constitutionally established order’ should be understood in the narrow sense that direct incitement of a forcible suspension of the Constitution should be disallowed, and that ‘incitement of the perpetration of a crime or of violence against anyone’ does not open the risk for expanded interpretation. As for the ban over the encroachment upon the rights and reputation of others, the Forum does not see this as narrowing the right to criticize or to disseminate objective information to the detriment of others; this right requires a special degree of protection in connection with public figures, holding elected offices. The Forum stresses the need of a clear and precise interpretation of ‘incitement of enmity’ in the sense of inducing others to resort to violence aimed at infringing the rights of individual public figures or of individual citizens.

In its comments on Article 40 of the Constitution the Forum does not see the wording as needful of further interpretation as far as the press and non-broadcast electronic media are concerned, since the preceding Article 39 sets out all the restrictions of public validity. What needs interpreting are the notions used in Article 40, namely ‘freedom’ and ‘ban on censorship’ in respect of the broadcast electronic media in view of the fact that there is a limited frequency spectrum, defined as part of the national wealth and therefore calling for certain interference of the state in the way it is allocated among the individual media.

Broadcast electronic media where the state has a stake (BNT and BNR) should be granted public status, argues the Forum, and criticizes the existing state of affairs conditioned by the continuing effect of § 6 of the Transitional and Final Provisions of the Constitution. In support of its argument the Forum encloses the following papers: Declaration on the Media in the Democratic Society and Resolution No. 1 on the Future of Public Broadcasting (the public radio and television services), adopted by the ministers of the European states-participants in the Fourth Conference of the Ministers on Mass Media Policy (Prague, 7/8 December 1994). The Forum proposes that Section II of the above-mentioned Resolution be adopted as a definition of the freedom of speech of the broadcast electronic media with a state stake.

In respect of the private broadcast electronic media the Forum interprets Article 40 (1) of the Constitution as follows: ‘the state authorities participate in the allocation of the frequency spectrum only in respect of its technical limits as a natural resource and are not entitled to impose restrictions over the operation of these media other than those of general validity'. Accordingly, the Forum criticises the existing licensing regime in Bulgaria, including the regime under the Concession Act, for its non-compliance with Articles 39, 40 and 41 of the Constitution.

The Forum propose a definition of ‘censorship’ as ‘the unlawful interference of the state authorities in the media’, lawful interference stemming from the limitations, covered under Articles 39, 40 and 41 of the Constitution. The Forum also states its views on one of the grounds under Article 40 (2) of the Constitution for injunction and seizure of a printed publication or another carrier of information ‘in the case of an encroachment on public decency’. If enforcement of this provision were delegated to the institutions of the independent judiciary only, that would safeguard it sufficiently against misuse.

The Forum shares the view expressed in the request regarding the interpretation of Article 41 of the Constitution, namely, that ‘the ‘right of access to information may only be restricted by force of a law or regulation that gives an explicit listing of the cases conducive to encroachment of the national security or public order’, and also, that the state authorities may not refuse access to information related to their activity, except where the national security and public order is put at stake. The Forum objects to the existing understanding and (practice) according to which the rights under Article 41 are applied to the individual citizens but not to the media, and maintains that the state authorities may not refuse information to representatives of these media, where such information is not a state or otherwise legally protected secret.

In a separate section the Forum expounds on the right to disseminate information as it relates to the print media and the electronic media. It criticises the existing licensing regime for the way it affects the non-broadcast electronic media, and upholds that the right to free dissemination of information in a non-broadcast electronic way is subject to no other limitations than those, applicable to the print media, from which it follows that the very concept of licensing, also incorporating control over the contents of the programs, is in breach of the three constitutional provisions held for interpretation. As far as the broadcast electronic media are concerned, the Forum argues, the right to free dissemination of information obligates the state to provide equitable and equally accessible opportunities for licensing and dissemination within the territory of the country to broadcast programs irrespective of any considerations except as laid out in Article 40 of the Constitution, and limited only to the physical capacity of the frequency spectrum as a national wealth. The Forum challenges the right of the state authorities to control the program contents - an act it finds inadmissible from the stand-point of the Constitution- , and the existing practice to unjustifiably restrict the power of the transmitters, rendering them unequal to the BNT and BNR.

Beside its own observations, the ‘Free Speech Civil Forum’ submits a review of the key international standards on the protection of the freedom of speech, prepared by INTERIGHTS, an international centre on human rights law seated in London, U.K.

5. The BNT sees the requested interpretation as one of a sizeable public (and scientific) interest. At the same time it voices its concerns regarding the great scope and depth of the subject matter and the global approach of the request for a simultaneous interpretation of all provisions relevant to the communication freedoms of the citizens. An interpretation should ‘be given within a particular social, cultural and … cultural-anthropological context’, therefore its results could not be deemed as final or given ‘en gros’, ‘insofar as the number of real-life and legal hypotheses that call for an assessment to be made of whether facts of social reality fall within the scope of the constitutionally protected communication freedoms or not, is practically infinite’. Because the ‘What is freedom of speech’ question may be answered in either an abstract-philosophical way or in view of concrete hypotheses, the BNT proposes adoption of the first approach at this point. In relation of the possible interpretative methods, the BNT distinguishes the approach to the provisions in question as ‘closed’ texts as opposed to viewing them as texts, the content of which goes beyond the meaning, gleaned from their literal reading.

This postulate is supported by concrete arguments (and questions) on the individual texts.

The BNT gives two (hypothetical) legislative solutions in relation to Article 39 of the Constitution, the provisions of which entitle everyone to circulate his/her opinion in every possible way, a freedom that is confronted by the objective under-capacity of the existing frequency spectrum. The first proposes licenses given to broadcasters to guarantee the exercising of the above right to the stations as a whole. The second claims to accomplish the same goal by regulating the content of the programs of every electronic media, a step that could however lead to restricting the freedom of the media under Article 40 (1) of the Constitution.

The BNT offers two alternative approaches to some of the hypotheses under Article 39 (2) of the Constitution: court proceedings as a protection of infringed personal rights, and application of the institute of ‘refutation’. It even questions the indisputable grounds for limitation, constituted in the ‘incitement … to perpetration of a crime … or violence against anyone’, arguing that a statement could equally be qualified as an incitement of violence against an individual and as an opinion in reference to an individual, vested with public trust. The BNT also raises for consideration the issue that different categories of opinion may embody different values (‘of political relevance’ and ‘ordinary’) and therefore may deserve a different degree of protection. It offers an analysis of the enhanced right of the media staff to express and disseminate an opinion, linking it to Article 6 (2) of the Constitution, and of the legal status of journalists employed in the public or private media from the standpoint of the right held by the media owners to make their policy and the extent to which freedom of enterprise should be granted.

In respect of the regime under Article 40 (1) of the Constitution, the BNT raises the question of the admissibility of state interference, also in respect of the program content, and points out that such is applied to the broadcasters in other countries. Within this same context it views the right of access to the spectrum and traces the consequences of its complete deregulation by the state that may arise on economic grounds and lead to monopoly, which is yet another risk to the freedom of opinion.

In respect of Article 41 of the Constitution the BNT offers a number of concrete hypotheses (and questions) as a way to accentuate once again that the interpretation requested by the President of the Republic may be given in reply to hundreds of questions and that no final answer exists.

In summary the observations of the BNT state that:

• the provisions subjected to interpretation do not give an exhaustive coverage of the spectrum of issues relevant to the communication freedoms of the citizens;
• the legislator and the institutions responsible for administering the law in particular, have the right and responsibility to specify the scope of these freedoms;
• the above-mentioned authorities should base all their actions on the primacy of the freedom of opinion, media and information, based on the scale of values of the society;
• any intervention into the protected realm of these freedoms, any legal act or action on behalf of the state or a third party, as has the direct or indirect potential to infringe or curb the enjoyment of the said freedoms, should be considered as anti-constitutional until proven to defend a higher public interest, which served as the motive to issue the act or undertake the action.

6. The BNT expresses its conviction in the significance of the freedom of press and the other media for every democratic society. It further cites some of the General Provisions of the Temporary Status of BNT and BNR and defines the subject of interpretation as covering the notion of the freedom of speech in the legal sense, the practical ways in which censorship may be embodied, and the direct effect of the Constitution in respect of the media until a legislative regime is adopted for them.

7. The observations of the Department of Journalism and Mass Communications with the Sofia State University ‘Kliment Ohridsky’ outline in brief how the principle of freedom of press and speech was formulated and evolved through time, as a way to stress that the discussion is centred around a universal good, that is at the same time a right and responsibility, and is inalienable.

The Department maintains that society has conferred its right to information and public debate on the activity of the three powers and has accordingly formulated the professional commitments of journalists to involve the gathering, organising and dissemination of particular types of information in the name of the public good.

The above conferral of rights and obligations charges the journalist with the public responsibility to realise the right to free self-expression in a corresponding form.

The Department points out that in regulating the rights and limitations, all three constitutional provisions held for interpretation are in perfect harmony with the Article 10 of the European Convention for Human Rights and Fundamental Freedoms and with Article 19 of the International Treaty on Civil and Political Rights.

Freedom of expression is central to pluralism and to the exchange of ideas and opinions, and in this sense Article 39 of the Constitution is seen as a guarantee of the democratic society. In respect of the provision of Article 39 (2) concerning ‘incitement of enmity or violence over anyone’, the Department points out that ‘only the direct and categorical statement which transforms an announcement into a message of incitement and an inducement to action, constitutes the crime as seen by the legislator’ and in this sense the very fact of the announcement may not be viewed as perpetration of a crime, in other words the fact of the choice of topic and the recipient of the announcement may not be identified with the potential social effect. That is why the hypothetical mindset of the recipient does not serve as grounds to suspend from releasing or transform an information announcement.

The Department sees Article 40 of the Constitution to be logically consistent with the foregoing Article 39 and to reflect the fact that the individual human right is institutionalised through the media. Freedom of the media, argues the Department, actually belongs to the individual, being the holder of the rights, and is an institutionalised public right, emanating from the individual right of expression. Media autonomy (‘the fourth power’) distances them from the remaining centres of power, is a prerequisite for democracy and involves the practical delegation of rights to the journalists. Further on the Department gives some clarifications of ‘censorship’ and in respect of Article 40 (2) of the Constitution it draws attention to the circumstance that the makers of the constitution have disabled the executive branch to arbitrate what is good and bad concerning the freedom of speech and have conferred this discretion on the independent judiciary. This constitutional constraint on the prerogatives of the executive branch serves as the grounds to deem as inadmissible any refusal to journalists to access publicly significant information that is not explicitly protected by a law. Such a refusal is qualified as usurpation of a fundamental freedom of the people, which constitutes an inseparable part of its sovereignty, and an infringement of Article 1 (3) of the Constitution.

Following a discussion of the observations made by the President of the Republic and the parties concerned, the Constitutional Court rules:

II

1. In their sum, the three constitutional provisions held for interpretation cover the communication rights and freedoms of the citizens.

An analysis of the discussions held by the committee appointed to draft the text of the Constitution and the Grand National Assembly (GNA) at the adoption of these three texts and of Chapter Two of the Constitution as a whole, reveals that the constitutional legislator was guided by and incorporated in the text of Chapter Two, ideas and solutions set out in the two international instruments – the International Treaty on Economic, Social and Cultural Rights and the International Treaty on Civil and Political Rights, both of which had been ratified by and enacted in the Republic of Bulgaria as of that moment in time.

The effort of the legislators to abide by the international standards is also attested by their incorporation in the Bulgarian Constitution of the provisions on fundamental rights as formulated in the then yet unsigned European Convention for Human Rights and Fundamental Freedoms (ECHRFF), and their remark that this chapter of the Constitution is the one most intimately related to Bulgaria’s international obligations and to international law.

Other issues held for discussion were the nature of the individual rights, the degree to which they are absolute or subject to constitutional or other statutory limitations, the extent to which fundamental rights should be constitutionally regulated as a way to guarantee their exercising and safeguard them against getting restricted under another law.

In the course of discussing the wording which constitutes Article 40 (1) of the final version, the legislators propose (and revoke) the inclusion of a wording, providing that the organisation and control of the national media should be regulated by a special law. Clause 6 of the Transitional and Final Provisions envisages the adoption of such a law, but rejects the inclusion of the word ‘control’ in its name, and suggests that it should also cover the press. A proposal was made to include provisions on the right to information, stating that a law should govern the obtaining and disclosure of information via the media.

The finalised wording of Article 39 rejects the idea to end (1) with the phrase ‘except in the cases as prohibited by a law’, as an alternative to introducing limitations (enumerated in (2)). The participants in the discussion stress that the Constitution should guarantee the exercising of the right to free expression of opinion and identify the limitations to this right. In enumerating the limitations the legislators have excluded the phrase ‘public decency’ by arguing that it enhances the risk of censorship; when defining the ban on using this right to incite enmity, they have removed qualifications such as ‘racial’, ‘ethnic;’ ‘national’, ‘religious’, class’ and others.

The discussion on Article 40 contains the proposal to add to the press and the other media (1) also the cinema, theatre and other arts, and to provide that the injunction and seizure of a printed publication (under (2)) should take place under the conditions spelled out in Article 39 (2). In regard of the first proposal other participants in the discussion point out that this subject matter is regulated by another provision (see Article 54 (2)); in regard of the second proposal the legislators have adopted the approach of narrowing (‘reducing’) the grounds that permit injunction and seizure, in order to bring them in compliance with the ban on censorship.

The discussion also features opinions on the different treatment given to the national electronic media as compared to the rest, and as compared to the print media. Emphasis is laid on the importance of the ownership of the frequency spectrum and of the media.

2. The discussions preceding the finalisation of the three provisions described in the foregoing item enable the Constitutional Court to draw its first interpretative conclusions:

• the importance that the constitutional legislators attach to the rights, regulated in the provisions of Articles 39, 40 and 41 of the Constitution, arises primarily from their belonging to a set of values of universal validity that underlie a number of fundamental international acts of law;
• the separate rights are regulated primarily as rights of the individual. Nevertheless, the freedom of the press and the remaining media is perceived as more or less institutional. Emphasis is given on the ban on censorship;
• although the individual provisions are seen as establishing individual (separate) rights, the existence of a functional link and interdependence among them has been accounted for to a certain extent. This is mainly evidenced in the way the limitations to the exercising of the rights under observation have been formulated. In establishing these limitations the constitutional legislator has attempted to regulate them on the constitutional plane, as a way to ensure constitutional protection to the rights and restrict the sphere of further legislative regulation;
• the individual limitations are seen as a means to protect another (private or public) interest;
• the interpretation of the three constitutional provisions may also be viewed in comparison to the relevant norms of international law - Article 10 of ECHRFF and Article 19 of the International Covenant on Civil and Political Rights.

3. The Constitutional Court finds that the request for interpretation, although covering all three provisions and limitations set out in each of them separately, rests on the understanding that the three texts in their entirety regulate a group of rights founded on the right to free expression and publicising of opinion, and on the right to seek, obtain and impart information. As the request was granted consideration based on this understanding, the three provisions should be discussed primarily in their systematic and functional relationship.

Article 39 holds the leadership, not only on the merits of its being first in the sequence, but chiefly because of its first paragraph, stipulating the right to free expression and publicising (through different means of expression) of opinion. The wording of Article 39 (1) is closely modelled on the phrase used in Article 10 (1) of ECHRFF: ‘right of freedom to express an opinion’, a circumstance which permits interpretation of the text within the context of international law, and gives insight into the ideas of the constitutional legislator about the significance (value) of communication freedoms in general, allowing them to be ranked by their importance based on functional criteria (and considerations) and to be contrasted against other, competing rights, a process that gives grounds for their limitation.

Article 39 (1) accentuates on the right to freely express and publicise opinions. This right also covers the possibility (freedom) to disseminate the opinion through diverse means, including also through the press, radio, television and others. In this sense the phrase ‘the right to freely express and publicise an opinion’ is broader in meaning than phrases such as ‘freedom of speech’, ‘freedom of the press’, etc., used synonymously. It serves as a generic concept, integrating the rest and at the same time denoting a single right.

Viewed on its own, the right under Article 39 (1) is primarily a right of the human individual. The Constitution confers it to ‘everybody’. And despite the fact disclosed by the legal analysis, that ‘everybody’ covers both natural and legal persons, this right is directly associated with the freedom of thought (Article 37 (1)) and views (Article 38), and relates to the dignity of the individual, which the preamble to the Constitution establishes as a supreme tenet. In addition, this right is to be guaranteed by the state, that being a fundamental constitutional principle enshrined in Article 4 (2). By the way, the only broader interpretation of the provision of Article 39 (1) of the Constitution so far, made incidentally by the Constitutional Court in its Ruling No. 15 of September 28^th 1993 on constitutional case No. 17 of 1993 (SG, Issue 88/1993), offers principally the same functional considerations as the ones described above, but also views the right within a broader constitutional and functional context: ‘without qualifying it as absolute or as holding a special position within a scale of values and rights, we deem its significance to be fundamental for the established constitutional order’. The right of the individual to express its opinion and voice it through words – written or verbal, through sound, image or otherwise (Article 39 (1)) is viewed as immanent to its nature and to its possibility to find fulfilment in the social context. The freedom of opinion serves as a limiting factor to the regulative potential of the state in a number of public life domains. Moreover, this right underlies political pluralism and the inadmissibility of monopolising (Article 11 (1)) the political, ideological and spiritual domains in general (Article 11 (2)), or the other rights (e.g. the right to information under Article 41 (1)).’

4. The Constitutional Court continues its analysis by stating that it ought to re-assert the value of the function inherent to the right under Article 39 (1) in the light of its being a means for expression (self-expression) of the human individual, and a tool for its development and protection of its dignity, at the same time hastening to add, that the same right is also enjoyed by other persons and serves other functions.

The request justifies the value of the freedom of expression of opinions by its being a shaping factor for the democratic structure of government and a prerequisite for free elections and for the formation of a political opposition. The request stresses that the right to criticise the government is a key indicator of a free democratic society, and that the freedom of expression is a cornerstone of every free society.

The observations under Section I adopt a similar approach when justifying the function of the right to freely express an opinion, by upholding that there can be no real democracy unless there is a well informed public opinion, free access to information and state-independent electronic and print media, as the philosophy of democracy postulates that key decisions concerning the government of the country should be made by the will of the majority, and that the people, being the sovereign of the democratic society, have the unquestionable right to receive thorough and objective information on the representatives and institutions they have elected.

The fact that freedom of speech is a pillar of political democracy is used as justification of its significance also in a number of key resolutions of the European Court of Human Rights (ECHR). Below is a synopsis of the key points made by the ECHR in this respect:

Freedom of speech is a fundamental tenet for every democratic society and a major prerequisite for its progress and advancement of the individual. It is applicable not only to ‘information or ‘ideas’ that are either welcomed, deemed inoffensive or accepted with indifference, but also to those that offend, shock or disconcert the state or any other part of the population. Such are the requirements of pluralism, tolerance and broad-mindedness without which no ‘democratic society’ could claim its title.

The ECHR apparently draws a direct link between the right to express an opinion and the participation in the democratic process. Based on this link is the duty of the media to release information and ideas relevant to matters of public interest, which duty arises from the right of the public to obtain such information and ideas as a way to shape its opinion on the standpoints of the major political stakeholders. At the same time, alongside it being a condition for the free political debate, the ECHR views the right to free expression of opinion as one that belongs to the broader context of the communication rights in general.

5. This is precisely the scope covered by the three constitutional provisions devoted to communication rights. Although not referred to in the Constitution, the phrase ‘communication rights’ is, in the views of the Constitutional Court, an appropriate generic concept embracing the rights under Articles 39, 40 and 41 of the Constitution.

The right to free expression of opinion, described above as one of a primary importance, which arises directly from the inviolability of the human dignity, freedom of conscience and self-determination of the individual, is, as noted above, simultaneously an independent right and a generic concept, embracing the remaining rights, covered under Articles 39 - 41 of the Constitution. As the one richest in content, it seems to incorporate the rest. Nevertheless, alongside the fundamental right, the three provisions contain a spectrum of other, specific rights: freedom of the press, freedom of the other media (chiefly the broadcasters), and the right to seek, obtain and impart information. The freedom of the press and the other media is constitutionally guaranteed by the ban on censorship and the right to seek and obtain information (Article 41 (1)) – by the duty imposed on the state authorities to disclose it.

The broad and detailed regime offered in the Constitution, is indicative of the legislator’s attitude towards the viewed rights and the special protection awarded thereto. Moreover, the identification of separate rights that fall within the general category of ‘the right to free expression and publicising of opinion”, only enriches the content of this right and allows to precisely formulate the content of its various explicit forms, the guarantees for their enjoyment and the limitations to which they may be subject.

Besides, the Constitutional Court finds it appropriate to remark that unlike the constitutional rulings in other countries and the history of implementing Article 10 of ECHRFF, the three provisions of the Bulgarian Constitution held for interpretation do not incorporate the right to artistic expression as an inherent element of the freedom of expression. Instead, this right is separately covered under Article 54 (2) of the Constitution, which claims that the freedom of artistic, scientific and technical art is recognised and guaranteed by the law. Regardless of this, a reaffirmation should be made of the understanding that ‘expression’ is not delimited to the verbal medium, but also incorporates a plethora of other means to convey thoughts, opinions, information data and convictions, and even emotions and intuitions.

The above enumeration of individual rights, which could be rendered in more general terms or in increased detail, points also to the fact that the subject of a given right is identified as the individual in some, the enterprises in other, and the institutions in third cases. Therefore, the right to free expression of opinion, both seen as a generic, fundamental right, and as one having specific expressions, is not solely an individual right and not the single one to be viewed and interpreted as a protective right, but is at the same time an institutional guarantee, and this perspective has some positive aspects from the standpoint of the duties of the state. This becomes evident when interpreting the provisions separately; yet their systematic interpretation as a whole, made with the aim to outline their interrelation with the overall constitutional context, allows the making of a more comprehensive functional analysis and the shaping of a conceptual approach towards them, in the following sense:

• traditionally treated and regulated as individual, the rights relating to the freedom to express and impart an opinion and to seek, obtain and disseminate information, are not solely linked to the ‘opinion’ of the individual human being, the possibilities for individual self-expression and the establishment of contact with the others, but also with the creation of a public ground, where the exchange of individual opinions gives rise to and co-exists with the public opinion. Truly, the link with the democratic process in this case is most direct and could be immediately justified on the grounds of the constitutional text. It is self-evident that the entire Bulgarian constitutional regime rests on the democratic principles marked by diversity (pluralism) of standpoints, non-monopoly of the public space and the opportunity to shape and state a political will;
• this construct, which the Constitutional Court justifies by reference solely to its interpretative power of the Constitution (Article 149 (1) 1.), is one among a number of possible conceptual approaches. Accordingly, the Constitutional Court finds it appropriate to refrain from any other theoretical or purely reflective constructs, all the more because it is impossible to study a priori all of the hypotheses that may occur on the plane of Articles 39 - 41 of the Constitution;
• in any case it should be pointed out that the constitutional text also features another plane, that of the civil society, which, without being set in opposition of the state, constitutes an independent environment in which the expression of the individual and interpersonal communication are not necessarily effected with view of the democratic process and government. As no political sphere exists for its own sake and in isolation from the others, the chosen functional analysis indicated above, embraces the diverse aspects that characterise the expressions of the individual, the interpersonal communication and the shaping of the public domain in which the exchange of opinions results in the shaping of the public opinion. In this way the right to free expression of opinion is at the same time a condition for equitable participation in the democratic decision-making process and a tool to enforce democratic control.

6. The Constitutional Court believes this interpretation of Articles 39, 40 and 41 of the Constitution to result as much from their scrutiny within the context of the overall constitutional regime, as from their concrete content.

As mentioned earlier, the three provisions spring from a common idea, founded on the premise that the individual is conferred fundamental rights. The title of Chapter Two of the Constitution is a due reflection of this premise. Neither the type nor the content of the rights regulated by these provisions allows for such as single-sided qualification to be made. The constitutional provisions which defend the right to free expression of opinion, serve equally to protect the author of the opinion (of the person reporting it, respectively, to the extent to which such a person could be different than the subject of the standpoint), and the respective community (public) as a whole, as a way to ensure its access to the reported (expressed) opinion or information. By making an explicit assertion in a separate provision (Article 40 (1)) of the freedom of the media and the ban on censorship, the Constitution does this not as a way to confer on these institutions (or the journalists working in them) any special privilege, singling them out from among the others in conflict with the principle of equality (Article 6), but because it views them as having and performing the essential public function of providing information to the community as a whole. Again, the guarantee under Article 41 (1) of the Constitution of the right of everybody to seek, obtain and disseminate information, also implies ‘privileged’ access to information with the purpose of its getting imparted to the community as a whole. In line with this logic no single-handed answer can be given to the question as to which the holder of the fundamental rights under Articles 39 - 41 of the Constitution is. According to the Constitutional Court the holders of these rights, based on the concrete hypotheses, may equally be the individual and the public. The adopted constitutional model aims to protect the right of the individual and that of the public to be informed, in an equal degree. For that reason the functional approach of the Constitutional Court, laid out in point 5, gives the fullest rendition of the actual philosophy of the constitutional provisions and could therefore serve as a starting point for the lawmakers and to a greater degree for the implementing authorities and especially the law-enforcing authorities.

Without setting the individual holders of rights against each other, which does not preclude any potential conflicts from arising between them, the adopted manner of interpretation takes into account the idea of the legislator to establish a balance, through the introduction of limitations on the enjoyment of the said rights, as one among a number of measures.

The common goal of the three provisions is to serve the individual, the community and the society as a whole. The variety of individual, specific rights, encompassed by the category ‘right of expression’, pursue an identical goal, as they enrich and expand the meaning of the general concept. By virtue of its very nature freedom of expression is at the same time a goal and a means. From this angle the suggested possibility for conflicts to arise among the holders of the individual interests that the discussed rights protect, is rooted in a scenario in which the internal balance between the individual and public dimensions of the rights (between the individual and the public, respectively), has been disturbed. Imposing limitations warrants the external balance, i.e. the correlation between the enjoyment of the freedom of expression and the other fundamental rights.

7. Actually the request for interpretation focuses primarily on the limitations. The fact of their inclusion in the Constitution reveals that regardless of its value, the freedom of free expression of opinion is not unconditional, and that its scope is drawn by limitations, imposed by the Constitution. The way their grounds and content are defined affects the actual proportions in which this right is exercised, because it is a measure of the distance between this right and absolute freedom.

By remarking that it is not unconditional, the Constitutional Court does not demote the functions of this right in respect of the individual and public progress actually but rather assigns a value to it relative to its constitutional regime. At the same time, by upholding the conception, adopted in its above-mentioned decision of 1993, the Court does not find any normative grounds for ranking the fundamental rights in hierarchic order.

As there are other values, rights and interests respectively, that the Constitution protects, the enjoyment of which could place them in competition with the right under observation, it is fair to admit limitations on the latter. The model adopted by the Bulgarian Constitution requires that the scope of these limitations be defined precisely, so as to enable the defining of the operational space for the legislature, the administration and the judiciary. It is a duty of the Constitutional Court to oversee the actions of the three branches of power for their constitutionality (under Article 149 (1) 2.).

The degree to which a limitation on the right to free expression of opinion is admissible, is predicated on the significance of the interest, deemed as deserving constitutional protection to the extent that it could allow an exemption to be authorised.

Article 57 (2) of the Constitution establishes a provision relevant to all rights (including the ones held for consideration) which forbids anyone to abuse or exercise them in detriment of the rights or legitimate interests of others. Additionally, (3) of Article 57 envisages that following a proclamation of war, martial law or a state of emergency, the exercise of individual civil rights may be temporarily curtailed by a law. The exceptions given to this rule exclude the rights under Articles 39 – 41, thus reaffirming their non-absolute nature. It should be restated that the reference to this circumstance is simply an attempt of the Constitutional Court to call attention to its existence and not to underrate the significance of the said rights. As there is no question regarding the supremacy of the principle of Article 57 (1) proclaiming that the fundamental rights shall be irrevocable, the discretion given under Article 57 (3) should be applied restrictively (a restriction on the restriction).

The grounds giving rise to the limitations, described in the provisions of Articles 39 – 41, could be classified by groups of interests as follows:

- considerations for keeping a secret (Article 41 (2)).

Conditional as this classification may be, the Constitutional Court draws it in order to call attention to an issue related to the interpretation of the individual limitations. It involves deciding if the limitations could be ranked, i.e. whether the Constitution deems them equally important or permits their ranking and hence assigns them a different potential to challenge the freedom of free expression of opinion, by giving them protection against it. As it deems the establishment of a priori views as inappropriate, the Constitutional Court sees it necessary to draw attention to the existence of the above issue, leaving practice to devise its own criteria, but also to remind that individual constitutional provisions (e.g. Article 57 (2)), and the overall spirit of the Constitution to an equal degree, assign priority to the rights of the individuals (i.e. of the other citizens). Following from this, the possibility to interfere in the right of free expression of opinion where it is used in detriment of the rights and reputation of the others, remains the biggest.

8. Attention should be given to yet another aspect of the constitutional provisions under scrutiny, but the Constitutional Court will again refrain from giving a priori views on its application.

Fundamental constitutional rights are commonly perceived to have a defensive (protective) function against the state and are called ‘negative’ because their exercising requires that the state refrain from interfering (outside the scope of the earlier-mentioned ‘positive aspects’, which come to the fore primarily in connection with the media and are to be discussed as they relate to Article 40 (1))

In view of the value and significance of the fundamental rights, among which the ones held for scrutiny occupy a special place, it should be established whether they function wholly (and solely) in the domain of public law or apply to private law as well. Or otherwise put, can these rights apply directly to the private law relationships entered into by the subjects of civil law? Once again, the Constitutional Court deems it appropriate only to draw the attention to this issue and indicate as part of its overall interpretative task, that such a mindset could exist, without a priori postulating the direction of the legal developments.

III

1. Keeping its attention focused on the subject of the interpretation, formulated in the request that served as the grounds to open this case, the Constitutional Court finds it necessary to re-emphasise the leading importance of Article 39 (1) of the Constitution. The right stipulated therein is a ‘mother-right’, engendering all the remaining communication rights. The Constitution guarantees and protects the freedom to hold an opinion and disclose it to the others (i.e. to communicate it to the public) both as part of one’s personal conduct, and as a social process, irrespective of the opinion’s content. The terms ‘express’ and ‘publicise’ exceed the limits of the ‘the spoken word’ and embrace a multitude of means and devices for expression of thoughts, opinions, outlooks, information and data (hence the justification to apply the term ‘communicational’ in the singular and plural form of the adjective in Bulgarian). The right to free expression of opinion covers all means that ‘transmit’ or publicise opinions, regardless of the content or the manner of the ‘transmission’. This right presupposes the presence of a subject, voicing a given opinion. Yet the constitutional protection extends in an equal degree to the source of the opinion (information), to its ‘transmission’ and its recipient.

The broad formulation of the constitutional wording reflects the fundamental importance of the proclaimed right as one that is inherent to every democratic and pluralistic society. It embodies the possibility for the realisation of the individuals as equitable participants in the public debate, and their resulting possibility to shape an informed opinion among the others (both as individuals and as members of the public), the ultimate positive outcome of which is illustrated in the manner the given society conducts its affairs. In its absolute form this right is embodied in Article 69 of the Constitution which relieves members of Parliament of criminal liability for the opinions and votes they hold in the National Assembly.

The fact that Article 39 (1) does not impose any limitations on the means of dissemination available to ‘everybody’ (meaning both legal and natural persons), allows many to systematically associate it with Article 40 (1), which lays out a special regime for particular means. The enumeration in Article 39 (2) of the limitations to the discussed right, insofar as it also relates to the protection of other values which enjoy constitutional protection, should be deemed as exhaustive to the extent that the state may not impose any other limitations on grounds not mentioned in these provisions. Besides, as mentioned earlier on in the section describing how the discussed constitutional provisions were drafted, the limitations were established by the Constitution and possibilities to introduce additional ones through other legislation were ruled out.

The operational scope of the constitutionally established limitations is conditioned on clarifying their actual content and on their application by the legislative, executive and judiciary branches of government in agreement with the meaning contained in the constitutional text.

To the extent that informal potential limitations may arise, their removal should be a matter of ‘culture’, the formation of which this ruling of the Constitutional Court aspires to assist. Another task before the Constitutional Court is the oversight for its conformity with the constitution of legislation, which could restrict the constitutional guarantees for the effective exercising of the right to free expression.

The interpretation of Article 39 (2) of the Constitution allows the following statement to be made in respect of the individual grounds for limitations:

The infringement of the rights and reputation of others serves as grounds for limiting the free expression of opinion, both by virtue of the general restrictive provision of Article 57 (2), and of Article 39, in which the right to an opinion is restricted in favour of another competing right. More specifically, the latter is a right to personal dignity, honour and reputation, to which Article 32 (1), sentence 1 of the Constitution provides protection. Alongside the right to a personal life (sentence 1 of the same provision), to a secret of correspondence and to privacy of the home – all of these being rights, entitled to constitutional protection – the Constitution mentions a set of interests that form the private domain of the individual, entry into which should be authorised, based on the moral standards and mentality of reasonable human beings. The information related to the private domain of the individual is of the lowest public interest within the meaning, determined by the functions of the communication rights, and therefore the process of making it public would not be guaranteed protection by the general considerations, applied in substantiation of the value of the freedom to express an opinion. It is appropriate at this point to draw a distinction among a public interest in facts and information that serve the public debate, and such, in respect of which any interest shown, would denote curiosity. It is possible to make yet another distinction: between information and ideas, made publicly available within the context of the political - and to put it in broader terms - public debate, and such as remain outside this context. The items under the first category definitely enjoy a greater degree of protection. This is not a case of awarding greater significance to a category of statements at the expense of another, - one that the constitutional provisions do not foresee -, but rather, of a distinction, drawn on the basis of the objective public utility and the unequal contribution to the public debate. In this sense the ‘critical opinions and … facts’ that could blemish the reputation of an individual and the non-exclusion of which the request advocates, could have a different nature based on their purpose and addressee, and thus be treated differently. It should be noted that the application of the international instruments on this issue and chiefly of Article 10 of ECHFF, has encouraged the establishment of a ‘positive’ duty of the state to intervene in matters relevant to the freedom of the right to express an opinion, so as to protect other individual rights that belong to the private domain of the individual.

However, the issue raised in the request draws the attention to yet another aspect of the discussed limitation, an aspect which comes into view whenever the said limitation is applied to statements (opinions, facts, allegations, information), referring to political figures and government officials and constituting criticism against them. The request draws this distinction in connection to Article 40, but the Constitutional Court argues that its systematic place is here. The constitutional provisions do not draw a distinction of this kind, yet it could be justified through the principal approach of Section II, applied to the rights under consideration, which assigns priority to the freedom of expression as a shaping factor of the democratic society. From the perspective of the importance of the right to express an opinion on the freedom of the political debate (as a part of the public debate), any statements that affect the operation of the government agencies or constitute criticism of political figures, government officials or the government, deserve a greater degree of protection. Hence the conclusion, that the government as a whole, and in particular the individual political figures and government officials, are exposed to public criticism at a level, higher than that for private persons.

The Constitutional Court finds it necessary to also note that the realisation of the above circumstance is a matter of legislative treatment (e.g. the treatment of the electronic media is expressed in the way their programs, licensing regime, etc., are regulated) of political and administrative practice (in view of and in the case of informal interventions) and of court practice in criminal or civil suits (in connection to the crime of insult and slander and to remedies for intangible damages). The Constitutional Court does not deem it proper to include in this interpretation any recommendations on criteria to the courts of law, the acts of which could more often than not be found to infringe the right of statements, nor to subject to interpretation any ethical categories that are predicated on the potential of the society to be tolerant and respectful of the individual person’s honour and dignity.

The overall interpretation of the above-described restrictive grounds reveals that they are paramount and strongest from among the rest to sanction interference in the right to express and publicise an opinion, because their introduction aims to suppress any encroachment on the rights and legitimate interests (including the reputation) of the others, i.e. values that are immanent to the individual. As for the distinction drawn among the various categories of statements, it is made in connection to the functions of the discussed right, and not on the basis of any statutory norm. Accordingly, the Constitutional Court does not rank some statements as more valuable than others, but rather, when interpreting the constitutional grounds for limitations it assumes that some cases are more prone to interference than others, without this resulting in a narrowing of the critical public debate.

As the request views the incitement to a forcible change of the constitutionally established order as unquestionable restrictive grounds, the Constitutional Court does not subject it to discussion. It should only be noted that statements to which constitutional protection is denied under this hypothesis, should be those inciting a forcible change of the constitutional order, i.e. destruction of the democratic constitutional order in a belligerent manner that could result in suspension of the Constitution, as noted in the request. It suffices to say that because such statements do not contribute to the shaping of democratic opinions, they have no grounds to seek constitutional protection. Moreover, the norm protects the Constitution too.

Another category of statements not covered by the protection of the freedom of expression are those which incite perpetration of crimes or violence over the individual – two hypotheses which the request does not call interpretation for.

In respect of statements that incite enmity, the constitution does not refuse protection to the diversity of opinions, which enter in conflict with each other. The very nature of the right to free expression and publicising of opinion is predicated on the appreciation of the competition of ideas and the contrast of differing standpoints.

Despite the fact that a number of qualifications have been removed from their final wording, the provisions are definitely addressed at statements that affect the interests of social groups. The latter could be formed on different grounds, such as racial, ethnic, religious, political, national, social, sexual, etc. The exclusion of such statements from the protective scope is congruent with the proclamation of tolerance as a universal human value, made in the preamble to the Constitution, with the requirement of Article 37 (1), sentence 2 that tolerance and respect among believers in different religions be maintained, and with the ban on the creation of organisations aimed at inciting racial, national, ethnic or religious enmity (Article 44 (2)). Major international covenants allow states to file allegations for violations of the law involving the propagation of hatred on a racial, national or religious basis (Article 4 of the International Convention for the Elimination of All Forms of Racial Discrimination, and Articles 162 - 164 (the Criminal Code). The rights given statutory protection against statements, propagating enmity and hatred (‘belligerent speech’) carry an importance that justifiably opposes them to the right to freely make such statements. The contents of the latter do not contribute to the creation of democratic opinions or a democratic will.

A premise of principal validity, relevant to all of the grounds leading to the establishment of limitations, is that in administering the latter the agencies of the legislature, executive or judiciary should recognise the high public significance communicative rights possess, hence the requirement for a restrictive application of the limitations. Without digressing from the understanding that the examined rights and freedoms occupy no special place in any ranking system for the fundamental rights, the Constitutional Court upholds that in view of the functions they perform, both on the public and the personal plane, only the justification of another, higher interest could condition limitations on their exercising.

2. The subject matter of 40 (1) of the Constitution by far exceeds the literal interpretation of the provision. The press and the other media covered under this Article are primarily means of dissemination of opinions (information, ideas, etc.) rendered in words, written or oral, sound or image. Even if Article 40 (1) were non-existent, the freedom of the media, proclaimed by this Article, could be justified by reference to Article 39 (1). The relevance of Article 40 (1) to this issue is contained in its latter part, which imposes a categorical ban on censorship.

Beyond that, the fact that the media have been dedicated a separate constitutional provision speaks for their exclusive importance within the general context of the right to publicise opinions. By virtue of their very nature and because they are disseminated on a mass scale, they perform the significant social function to inform on issues of public interest. The media, more than any other channel of communication, serve as a forum for the exchange of diverse ideas and information on the abundance of issues of public interest, and are a catalyst of public opinion. In that way they play a key public role as informants to society and advocates of its interests. Serving simultaneously as a mediator of ideas and information (‘a medium’), and as a tool to shape and influence the public opinion, the media hold a constitutional position, which is determined by Article 40 (1) in its systematic consistency with the provisions of Articles 39 and 41. Following its principal approach, the Constitutional Court upholds that the press should be distinguished from the remaining media. While it remains unclear as to whether the constitutional legislator purposefully described it separately or singled it out based on reference to a traditional expression (‘freedom of the press’), it is no doubt given a different constitutional status. Yet, the freedom from interference of the state, proclaimed by Article (1) is equally applicable to all of the media. The press has the strongest claim on this protective right, as by definition it is neither related to the state, nor is it institutionally, financially or technically dependent on it. State interference in the press may only take the shape of the limitations, prescribed under Article 39 (2) or the special measures (injunction and seizure) under the terms of Article 40 (2). The press is subject to no other limitations, as there is also a ban on censorship. The preclusion of any state interference in the press gives rise to the state’s obligation to ensure the press conditions to implement its functions. By reference to Article 41 (1) of the Constitution the state agencies are also obliged to impart information, yet this obligation holds valid in regard of all of the media, since it is instrumental in fulfilling the right of the individual and the public to be informed (‘to know’). If we look at the individual regime for the press, we would notice that the subjective juridical aspect of the freedom of the press protects individuals and enterprises (to mean publishers) engaged in the creation and dissemination of printed publications, from the state. To the extent that there exists an objective juridical aspect, it protects the institution labelled ‘free press’. Press publishers are players on the market and it is the market mechanisms more than any other, that govern the type and number of publications and hence – the diversity of standpoints.

The constitutional regime for the remaining media (and chiefly of the so-called electronic media) differs in that Clause 6 of the Transitional and Final Provisions of the Constitution prescribes the preparation of legislation, albeit covering only the national broadcasters. This legislative task of the National Assembly is yet unfulfilled, despite the existence of two serious alarm signals, sent to it by the Constitutional Court (Ruling ¹ 16 of September 19^th 1995, on constitutional case ¹ 19 of 1995 and Ruling ¹ 24 December 12^th 1995 on constitutional case ¹ 30 of 1995).

Yet again, it is commonly upheld – and the Constitutional Court refers to this fact – that the broadcast electronic media occupy a special position because of legal, financial, technical or technological reasons. Article 18 (3) of the Constitution confers on the state sovereign rights with respect to radio frequencies, which are the medium for broadcasting radio and television programs. From here arises an inevitable interference of the state in the allocation of the frequency spectrum, which, because of the existing level of technical advancement, remains a ‘limited resource’. Therefore, while in respect of the press there is free enterprise beyond the control of the state (taken in the conventional sense of ‘a legal protection against the state’), the freedom of the broadcast electronic media contains objective legal aspects, which call for active state interference through legal instruments. Following from this, the freedom of the media covered by Article 40 (1) does not preclude state interference.

The considerations that enforce this conclusion are not made solely on the above-mentioned requirements for the creation of a legislative regime and the allocation of the spectrum. Of a similar nature is the ban on the establishment of a state monopoly over the broadcasting of radio and television programmes (Article 18 (4) of the Constitution). Outside this scope, the state has the duty to ensure, through the proper legislation, conditions for the media to perform their functions, keep the public informed and serve as its medium for a critical debate on the way government agencies function.

While in the case of the print media the balance of the freedom-control relationship is established by itself, this is not feasible in the case of the broadcasters, due to technical and financial reasons. Not ‘everybody’ within the meaning of Article 39 (1), is eligible to participate in this sphere, and therefore the guarantees to freedom and the establishment of a proper balance call for special measures. Before even spelling out their broadest scope, we need to once again state the grounds that permit such a regulation to be made. At a first glance doing that would seem unquestionable, yet the adherence to general attitudes and practices may not replace the ideas enshrined in the constitutional text that the Constitutional Court has been authorised to articulate through this interpretation. For this reason, by following its systematic approach, the court upholds that the freedom of the media proclaimed in Article 40 (1) functions alongside and in assistance to the basic subjective right under Article 39 (1). On account of financial or technical reasons not everybody can exercise the right under Article 39 (1) especially in respect of the electronic media. Therefore to enable the exercising of this right the electronic media should function in a way that ensures both access to the diversity of standpoints, and an opportunity to everybody to stay informed as a way to shape his/her own opinion on issues of public concern.

Tow main conclusions could be drawn on this premise:

The freedom of the electronic media, also viewed in their capacity of institutions, is functionally related to the right under Article 39 (1) and to the right to seek, obtain and disseminate information under Article 41 (1). This functional dependence and link give the freedom under inspection a ‘servicing’ aspect.

Keeping in mind this peculiarity of the freedom of the electronic media and in view of ensuring them conditions to perform their functions of public significance, there could be permitted a certain legislative competence to regulate the organisational, structural and financial parameters of their operation.

Drawing the scope of these parameters is allowable, the Constitutional Court believes, to the extent that it would help delineate the constitutionally protected rights, which the future legislative regime would safeguard.

The work on these parameters should focus primarily on the management issues, which depend on the extent to which the broadcasters are structured as independent or separate institutions, and on the way in which their management bodies are constituted. Evidently, these comments relate to the Bulgarian media, which are still state, at least from the standpoint of their ownership and of the active statutory regime, and which the constitution bids to evolve into autonomous, public institutions, shaking off the custody of any particular agency of the state. The preclusion of any forms of management on behalf of any state agency whatsoever is the first condition to their structural independence.

The model of the management or supervision of these media, which should be again prescribed by law, should by definition shield off impact on behalf of state agencies, political factors or lobbyists for any particular interest (corporate, of interest groups, etc.). A variety of solutions exist in this respect, and the Constitutional Court is not capable of advocating for one or another model. It should be stressed that the management or supervisory bodies in question should be able to pursue and independent (and responsible) management, editorial (in regard to the programmes) and personnel policy.

Another matter of legislative regulation is the financing of the national broadcasters, to the extent that the mechanism of state funding could open doors to impermissible influence.

Yet another issue requiring legislative resolution is the access to the radio frequencies. Under the existing regime and practice this issue has been reduced to the access ensured to certain state authorities or political factions to the national spectrum. Based on the constitutional provisions referred to in this ruling, the settlement of this issue is conditioned on the paramount importance of the freedom of the mass media. For this reason the compulsory guarantees of access given to certain state agencies should be regulated in a way as to keep account of the above principle, of the right to obtain and publicise information within the meaning of Article 41 (2), and of the powers of the individual agencies in agreement with the division of power. Another aspect of the access to the spectrum is also the broadcasting of programs that are external to the media, in compliance with the requirements for comprehensiveness, pluralism and balance.

In light of the above considerations, the positive obligation of the state to ensure institutional independence of the broadcasters by drawing new legislation and changing the behaviour of its agencies is not an end in itself. It is designated to protect the individual right to pluralistic information both in terms of the opportunity to voice different viewpoints and in terms of the right of the individual and the public to be informed. In this sense a special analysis should be devoted to the understanding stated in the request, about the existence of two dimensions of the freedom of the media: freedom from interference of the state and freedom of the journalists working at any given medium to freely express their opinion in conformity with its character, aims and policy. In adherence to the logic that this interpretation follows, the freedom from the state is given to the media to enable them to perform their important functions and responsibilities. Naturally, this freedom covers non-interference in the editorial policy too, as stated above. It guarantees the right of the individual and the public to receive full, pluralistic, balanced and precise information. The possibility of the journalists to make use of their position as employees of a public information medium should be viewed within that same context. Leaving aside the otherwise not unimportant issue of the potential conflict among the voicer of an opinion and its recipient, in this case constitutionally relevant are the considerations of diversity and balance, which are the actual object of constitutional protection. The Constitution has not bestowed and does not have the grounds to bestow enhanced protection in the aim to impose, manipulate or dictate certain opinions.

The dichotomy between public and private media calls for a separate analysis to be run on also on the understanding of the freedom of the journalists to freely express their opinion in compliance with the character, aims and policy of the medium that employs them. It raises the issue of the position of the given medium from the angle of its relationship with the relevant owner. The very formulation of the issue – ‘freedom … in conformity with the character, aims and policy of the corresponding media’ – also contains the restrictions on the freedom. To what extent the eventual conflict is relevant to the constitutional law or should be assigned to the domain of the private law altogether (labour, civil, etc.), is a task posed before the future jurisprudence.

The above considerations, focused on the constitutional freedom of the electronic media and the respective obligations of the state, are primarily addressed at the national broadcasters, and the regime that existed at the time of the adoption of the Constitution and is still effective, is taken as a given. As becomes evident, in this realm the obligation of the state, qualified as a ‘positive one’ (to distinguish it from the ‘negative obligation’ to refrain from interference), is reduced to the exercising of its legislative competence as a way to ensure the organisational, structural and financial independence of the radio and television. The position of the private electronic media – broadcast and non-broadcast, is yet another issue of legislative competence. There needs to be created a special law to establish clear, open and fair rules for licensed access to the frequency spectrum (by broadcasters) and by the non-broadcast electronic media. Such an arrangement would ensure that no arbitrary or discretionary decisions are made in respect of the licensing system and that state control would be exercised as prescribed in Article 40 (1), that is, under terms and procedures made public, accessible and fixed in advance. Once present, such a regime would enable the enforcement of the general requirements that ensure the media the performance of their public functions, and the imposition of the constitutional limitations, designed to preclude encroachment on the human dignity, on the fundamental individual rights and on the public order and moral.

There already exist today certain national models that have different regulations for the public and private, national, regional and local media in a way that ensures compliance with the above principles.

Another requirement consistent with these principles and also with the obligation of the state to safeguard the right of the citizens to pluralistic information is the avoidance of excessive media concentration. The latter is contained in the provision of Article 19 (2) of the Constitution, which sets obligations for the legislator to influence business relationships by preventing monopolistic manipulations. Monopoly, otherwise known as ‘excessive media concentration’, is in direct conflict with the communication rights and freedoms, perceived at the same time as a goal and as a means. Their functions, described as central to the individual and public development, could not be performed if the public space, occupied by the media, were monopolised. Such a situation would be in conflict with the principles of comprehensiveness, pluralism and balance and would generate tension among the individual and public (social) aspects of the rights. As a result the possibility to form and express a personal opinion would be replaced by the consumption of ready-made opinions and would be threatened by the opinions, imposed through the monopolised public space rather than by the official or indirect censorship.

As for the grounds under Article 40 (2) of the Constitution, which give rise to injunction or seizure of a printed publication or another carrier of information, they can be applied outside the grounds under Article 39 (2), which give rise to limitations to the constitutional right to free expression and publicising of opinions. The measures under Article 40 (2) are special and extreme and should therefore be considered as exceptions from the principal ban on censorship, contained in Article 40 (1). That is why their use has been delegated to the judiciary only, and their enforcement should be regulated by a law according to the specifics and competence of the individual agencies of the judiciary. As they constitute an act of direct interference and refusal of the right to free expression and publicising of opinion, both in terms of their essence and as an immediate effect – injunction and seizure – they are an embodiment of censorship and as such should only be enforced as an ultimate measure. The very principle of the ban on censorship precludes any other means of influence over the press and the other mass media.

Among the grounds under Article 40 (2), which give rise to injunction and/or seizure, the ‘encroachment on public decency’ is subject to interpretation. In respect of this constitutionally inadmissible effect of individual publications, programs, etc., it should be pointed out, as also does the request, that public moral is a domain, governed primarily by national traditions and culture. Yet, non-encroachment on public decency is not only a way to conform to the requirements of public propriety, shaped by the play of domestic traditions. It is in the public interest, for example, that decency be a criterion in the upbringing of the young. That is why it is not necessary that encroachment be effectively demonstrated (as in some cases the negative consequences for the other protected value may surface later) for the grounds calling the enforcement of the measure under Article 40 (2) to be actually present.

These considerations should not be taken as a withdrawal from the requirement of exhaustiveness of the grounds under Article 40 (2), which should also describe the authorities empowered to enforce them and the manner of their enforcement in respect of the ban on censorship.

Because censorship – within the conventional understanding of this notion – is not and cannot be institutionalised, its concealed forms of expression may become a real threat to the effective exercising of the right of free expression and publicising of opinion. To restrict to the minimum and ultimately ban such occurrences, the above-described organisational, structural and financial conditions for independence of the mass media could serve as guarantees. Another guarantee is contained in the restrictive application of the constitutional limitations to this right, which, if applied in contravention to the requirement of ‘prudent spending’, may turn out to be forms of ‘preliminary’ censorship, generate ‘auto-censorship’, etc. The Constitution provides no coverage for acts of interference, the inadmissibility of which the Constitutional Court finds it necessary to draw attention to within the scope of the interpretation of the grounds, exhaustively described in the Constitution.

The categorical ban on censorship precludes any interference of the state in the functions of the mass media – both in the shape of official institutionalisation of the direct interference, and in informal ways. In the areas where legislative interference of the state is compulsory, it should also extend to the creation of mechanisms, serving as barriers against the interference of any state agencies or third parties.

A final recommendation is to devise a statutory regime, obliging all of the media to grant a right to reply to persons affected by factual allegations, or to provide other similar or appropriate remedy for the consequences of a challenged allegation, by granting the opportunity to have its refutation published or broadcast. Where they exist, such instruments are applied in parallel to the court proceedings for redress of injuries.

3. In giving its interpretation on Article 41 of the Constitution, the Constitutional Court again adheres to its approach to the three provisions on communication rights as systematically connected. This circumstance determines the general outlook of the provision under Article 41, as the latter is a part of the overall constitutional protection of the various aspects of the free communication process. For this reason the Constitutional Court limits itself within the confines of the interpretation, set by the request and by the ruling whereby the latter was granted review, without going into all aspects, including those pertaining to constitutional law, relating to the new information technologies and the possibilities they offer for access to and dissemination of information of any kind, and for management of the individual behaviour and social processes.

In view of this reservation, the ‘information’ covered under Article 41, is not a product different from the facts, statements, opinions and ideas, covered under Articles 39 and 40 of the Constitution. In this connection the interpretation given to Article 40, the second paragraph of which contains the notion ‘information carrier’, bases itself in the notion ‘mass medium’ and not in the special meaning this notion could acquire in any particular sphere. In Article 40 (2) this notion is used in relation to injunction and seizure and could hardly be expected to apply to the multitude of information carriers, which are so difficult to encompass and control and which sometimes have the parameters of global systems. Insofar as the state authorities hold such carriers, Article 41 (2) ensures access to them under the terms of this provision. Article 41 (2) stipulates the individual right of the citizens, sealed with the obligation of the state agencies or departments, to obtain access to information in which they have a legitimate interest. Whilst this right has a certain independent meaning, the right under Article 41 (1) should be perceived within the general context of the right to information, conferred by the Constitution on the individual and the public alike. For this reason this interpretation ranks the possibility to disseminate information second to the right:

a) to seek; and

b) to obtain information.

Whilst ‘disseminate’ could be interpreted as identical to the term ‘publicise’, used in Article 39 (1), the right to seek and obtain information relates to the common right of the public to be informed. From here it follows that the access to the common sources of information may not be restricted by the authorities except where justification for this exists under the terms of the second sentence (of (1)).

This circumstance, directly drawn from the constitutional text, could serve as justification an obligation of the state to provide a legal regime for the access to information. This obligation could be graduated; distinction should be drawn, let’s say, between the obligation of the state authorities to publish official information (so-called ‘active transparency’) and their obligation to grant access to information sources (so-called ‘passive transparency’).

The two paragraphs of Article 41 can be differentiated from each other by once again referring to the literal notions they use. In (1) the term ‘everybody’ apparently places the right to seek, obtain and disseminate information within the general context of the communication rights. It definitely relates also to the mass media, which, in respect of their above-mentioned functions accomplish the right of both the individual and of the social community to be informed through the mass media, among other channels, on issues of their interest. It is not by accident that the enumeration of the rights features also the word ‘to obtain’, thus rendering the unifying ‘mother’ right under Article 39 (1) complete, a completeness that stems from its actual content and defines it within the meaning of its overall (individual as much as public) significance. Beyond the scope of the commonly nationally and internationally accepted considerations, which determine the importance of the right, the Constitutional Court once again underscores that the very constitutional order, the epitome of which is the democratic process, is founded on the informed opinion of the public. While judging that in view of the interpretative task it would be inappropriate to venture into the investigation of hypothetical cases, in which the use of the right under review could erode the democratic process, the Constitutional Court at the same time highlights the importance of making any information, relevant to the management of the public processes, accessible to everybody desiring to obtain it.

As Article 41 is also the subject of an independent interpretation, the component of it that could be focused on in particular, is the right to seek and obtain information. The Constitutional Court sees this right as also giving rise to an obligation to grant information. The concrete content of this obligation could only be determined in a law. The Constitution delegates to the legislator the responsibility to identify the diversity of hypothetical cases, in which the obligation should be subject to explicit formulation. The rest is the practice of the representatives of the state authorities and/or agencies.

By the way, a number of constitutional and legislative provisions ensure publicity or access to the mass media: Article 82 (1), sentence 1 (the sittings of the National Assembly shall be open); Article 121 (3) (the hearings held in all of the courts of law shall be public...); Article 35 (1) and 2 of the Regulations on the Operation of the National Assembly (access of the radio and television to the sittings of the National Assembly).

The exceptions to the principal circumstances, examined in this analysis, are formulated as grounds calling for limitations on the proclaimed rights depending on the legal and technical device used by the legislator. Among the grounds, enumerated in Article 41 (1) sentence 2, the one relating to the national security is in the strongest need of legislative regulation, as it refers to information that is subject to classification anyway, opening the possibility for it to be defined in advance as an ‘information array’ that includes concrete facts and circumstances. Of equal significance is the limitation, denoted by the phrase ‘against the public order’. In this case the legislator looks at the interests as common or public. Insofar as these interests could be associated with considerations of ‘internal security’ they could relate to facts and circumstances that are a condition for its protection (against crime, for example) and the disclosure of which would appear less important and therefore less deserving protection than the public interest (not to be confused with the interest of individual agencies) against the disclosure of the information. Here again, as in each individual case of interpretation of limitations, it is necessary to point out that their enforcement – regardless of the fact that they have been devised in order to protect another constitutionally recognised interest - should be founded in the understanding that it is not a matter of choice between two conflicting principles, but rather, about the application of an exception to a principle (the right to seek and obtain information), which exception is subject to a restrictive interpretation.

This holds true also for the exceptions under Article 41 (2), relating to the individual (to use the language of the adopted structure) right of the citizens to obtain information that constitutes a personal interest for them. The qualification ‘legitimate’ serves to denote their general right to seek the relevant information and gives a legal regime for the hypothetical cases, in which this right may be accomplished on the basis of the constitutional requirement. This very requirement gives rise, primarily, to the need to create such a regime, and to restrict the exceptions to the hypothetical cases involving ‘state’ and ‘office’ secret in a way, as holds account of the primacy of the individual right. Neither this provision nor the others envisage exercising of the individual right at the expense of the rights of the others and in this sense Article 41 (2) neither ensures the right of access to information, relating to third parties, nor does it oblige the state authorities to disclose such information. The limitation falls within the general category of constitutional grounds established in protection of the reputation, rights and interests of the other citizens.

Based on these considerations and on the grounds of Article 149 (1) 1 of the Constitution, the Constitutional Court

Hereby RULES:

1. The provisions of Articles 39, 40 and 41 of the Constitution of the Republic of Bulgaria uphold as fundamental, the right of the individual to freely express and publicise opinions and the right to seek, obtain and disseminate information.

These provisions protect the right of the individual to free expression of its nature and dignity as an equitable participant in the social community. At the same time they guarantee the individuals the possibility to be informed about their surrounding reality, and ensure the public conditions for its existence and development in compliance with the public opinion, shaped as a result of the free exchange of opinions.

These functions of the rights under Articles 39, 40 and 41 of the Constitution determine them as essential to the individual and public development. They are inherent to the democratic process and assist its functions both in regard to the democratic way of constituting the bodies, provided for in the Constitution, and in regard of the control over their operation.

The proclamation of these rights by the Constitution and their proper enjoyment is linked to a number of other fundamental rights and constitutional principles, such as the right to human dignity, (Article 4 (2)), the freedom of thought and freedom of conscience (Article 37, (1)), and political pluralism (Article 11 (1)).

II. As a whole, the three above-discussed provisions protect different aspects of the right to freely express and publicise opinions and of the right to seek, obtain and disseminate information. The three provisions are systematically and functionally interrelated.

Alongside the fundamental right to freely express and publicise an opinion, which is established as a universal right, Article 40 (1) of the Constitution asserts the principle of the freedom of the press and the other media. An explicit ban on censorship is proclaimed.

The right to seek, obtain and disseminate information under Article 41 (1) of the Constitution belongs to natural and legal persons alike, and protects the interest of the individual and the public to be informed. It relates equally to the press and the other media. Article 41 (2) of the Constitution guarantees individuals access to information of state agencies or authorities on issues of legitimate interest to them.

III. The individual rights stipulated in Articles 39 - 41 of the Constitution, obligate the state to refrain from interfering in the process of their exercising.

Limiting these rights is admissible if it is done in protection of other constitutionally protected rights and interests, and can only take place under the grounds laid out in the Constitution. Restraining these rights on legal grounds outside those, described in the Constitution, is not permitted.

When imposing such limitations the institutions of the legislature, executive and judiciary branch shall keep account of the high public significance of the right to free expression of opinion, of the freedom of the mass media and the right to information, from which it follows that the limitations (exceptions), to which these rights can be subjected, shall be applied restrictively, only to protect a competing interest.

Among these grounds the possibility to interfere in the right to free expression of opinion whenever it is being used for encroachment of the rights and reputation of others, is the strongest, as it helps safeguard the honour, dignity and reputation of the individual, as stated under Article 4 (2) and Article 32 (1), sent. 2 of the Constitution. This constitutional restraint does not preclude public criticism from being launched, especially on political figures, state officials and government agencies.

The restraint on enmity-inducing statements is founded in the constitutional values of tolerance, mutual respect and on the ban on the incitement of hatred on a racial, national, ethnic or religious grounds. This restraint does not refuse protection to the multitude of opposing opinions. By virtue of its very essence, the right to free expression and publicising of opinion is predicated on the advantage offered by the competition of ideas and differing viewpoints.

IV. Alongside the right of everybody to freely express opinions and publicise them through various devices, Article 40 (1) of the Constitution proclaims the freedom of the press and the other media and establishes a ban on censorship.

The explicit ban on censorship is an embodiment of the principle of non-interference of the state authorities in the functions of the media, regardless of whether it is done through officially instituted means of pressure or in informal ways.

For reasons of a juridical and technical nature special legislation may be drafted to regulate the way the electronic media are organised, structured and financed. Clause 6 of the Transitional and Final Provisions of the Constitution explicitly provides for such legislation in regard to the national broadcasters, to ensure their independence in terms of organisation, structure, staff recruitment, programs and financing. For the national electronic media to emerge as separate and independent institutions they need to have their management and/or supervisory bodies constituted in a way as would preclude pressure on behalf of the state authorities, political factors or private interests. Exertion of such pressure by the state would constitute censorship within the meaning of Article 40 (1) of the Constitution. What serves as warranty to the right of the public to obtain full, pluralistic, balanced and accurate information is the independence of the broadcasters in conducting their routine management, editorial freedom and responsibility to choose the topics and content of their programs, and freedom to select their personnel and financing policy. The entitlement of the individual and the public to exhaustive, pluralistic, balanced and accurate information sets the boundaries of the legislative competence and duty of the state described in Article 40 (1) of the Constitution, which it must exercise to enable the media to perform their functions.

It is within the competence of the state to draw special legislation on the licensing regime of the private electronic media in harmony with Article 40 (1) of the Constitution and in application of the constitutional limitations only, and render the procedure transparent and fair.

The only means for direct interference in the functions of the media are those under Article 40 (2) of the Constitution. They can be applied by the institutions of the judiciary under the conditions, set out in the above-cited provision. The grounds for their application involve primarily the protection of decency, to mean public standards of conduct established to safeguard the society. Of uppermost importance in this regard is the interest to sustain the moral integrity of the society.

V. The right to seek and obtain information under Article 41 (1) of the Constitution covers the obligation of the state authorities to ensure access to information of public validity. The contents of this obligation are to be determined by a law. They include the obligation of the state authorities to publish official information, as well as to ensure access to information sources. The particular state authorities the above duty covers, the circumstances under and extent to which they are entitled to a share of the broadcasting time on the national television and radio, should be settled in a law, taking heed of their powers and of the principle for division of powers, of the freedom of the media and the right to obtain and disseminate information.

The right established under Article 41 (1) of the Constitution is granted to everybody, including the media. Restraint of this right on the grounds, given in sentence 2, requires legislative justification of the circumstances, relating to considerations for the national security or the protection of the public order.

The same holds true for the grounds, which entitle the state authorities or agencies to refuse information to the citizens, foreseen in Article 41 (2) of the Constitution. The right this provision establishes is a personal one. It arises from a justified legitimate interest of the individuals, and is subject to limitations, specified through the establishment of a legal regime for the hypothetical cases in which information constitutes a state or another type of secret, for the protection of which there exist legal grounds.