January 23, 2002

 

MEMORANDUM

 

Analysis of Law of Ukraine on Elections of People’s Deputies of Ukraine

 

            This memorandum analyzes the extent to which the Law of Ukraine on Elections of People’s Deputies of Ukraine (the “Law”) complies with Article Ten of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”).  The memorandum concludes that the Law violates the Convention because its restrictions on discussion and analysis in the mass media are both too vague and not necessary to a democratic society.

 

I.          Overview of Article Ten of the Convention

 

            Freedom of expression is protected by Article Ten of the Convention, which provides:

            (1)        Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

            (2)        The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court on Human Rights has held that Article Ten places a high burden on governments wishing to interfere with the right to free expression.[1]  After the threshold inquiry of section one -- that the government has interfered with free expression -- is passed, the Court requires the regulation to pass a three prong inquiry:  (1) the interference with free expression must be prescribed by law; (2) the law must have as its purpose one of the interests described as legitimate in section two; and (3) the specific restriction must be “necessary in a democratic society” to achieve the legitimate purposes.[2]

            The Court has interpreted the first prong, that any interference must be prescribed by law, to mean that the conduct must be proscribed with “sufficient precision to enable the citizen to regulate his conduct.”[3]  Thus, a law will infringe Article Ten if it is so vague as to provide effectively no guidance to citizens as to the bounds of legal conduct.[4]   

            The legitimate aims that will satisfy the second requirement are enumerated in section two.  Because of the substantial breadth of the permissible government objectives, the Court has generally had little trouble finding this requirement to be satisfied.  It has therefore not provided a significant obstacle to compliance. 

            The legitimate government objectives specified in section two are restricted, however, by the requirement that any government restriction of expression be “necessary in a democratic society.”  It is at this prong of the test that the Court employs its most stringent scrutiny. 

            The Court has repeatedly held that in a democratic society, “freedom of expression constitutes one of the essential foundations . . . and one of the basic conditions for [a democratic society’s] progress and for each individual’s self-fulfillment.”[5]  The Court has noted that while this freedom is subject to exceptions, the exceptions must “be construed strictly, and the need for any restrictions must be established convincingly.”[6]  This intense scrutiny is even more necessary “where the nature of the speech is political.”[7]

            To exercise this scrutiny, the Court has defined “necessary” to mean the “existence of a ‘pressing social need.’”[8]  This requires the Court to examine the entire case to determine whether the interference with expression is proportionate to its purpose, and the reasons adduced by the government are sufficient.[9] 

II         Analysis of the Ukrainian Election Law[10]

            The Law, signed October 18, constituted a significant change in the process of electing the members of the Ukrainian Parliament.  Pertinent to this analysis, the Law sets a period of no more than fifty days during which an “election campaign” may take place.  Art. 50(1).  Article 51(2) forbids the conduct of an election campaign outside the time provided.  An election campaign in the mass media is said to include, among others, discussions, interviews, or other material about parties or candidates for Parliament.  Art. 53(2).  Neither non-citizens nor the foreign media may participate in an election campaign.  Art. 56(1), (13).  Significantly, official announcements are not considered part of an election campaign.  Art. 51(2).  Violating the election campaign provisions is punishable by criminal, administrative, “or any other responsibility.”  Art. 85(6). 

            As discussed below, these provisions of the Law violate Article Ten of the Convention.  The Court has made clear the important position of political speech.  By prohibiting the media from having discussions about candidates and parties in all but fifty days of the year, the Law unquestionably interferes with expression in violation of section one.  The government may be able to argue that the law fits into one of the broad categories of legitimate purposes found in section two, but the Law nowhere defines what “discussions” are prohibited outside of fifty days from an election, and therefore is not “prescribed by law.”  Further, the Law clearly cannot withstand the scrutiny by which the Court analyzes whether such a law is “necessary in a democratic society.”

A.        The Law Is Impermissibly Vague

            In order for an interference with freedom of expression to be valid under Article Ten of the Convention, the first test that it must pass is that it is “prescribed by law.”  To comply with this requirement, the Law must be formulated in clear and precise terms so that a member of the media wishing to comply with its restrictions may confidently regulate his conduct.  Consequences must be foreseeable.  This requirement takes on a special significance where the media’s freedom of expression is subject to restrictions, since the media should not be discouraged, for fear of sanctions, from imparting information and opinions on issues of public concern.  Media regulations which are couched in overly vague terms will produce a chilling effect on media freedom.  The Law does not meet this test.

            The Law explicitly prohibits the “[c]onduct of an election campaign” beyond the fifty day time period specified in Article 50(1).[11]  Art. 51(2).  Article 53 gives examples of what constitutes an election campaign in the mass media.[12]  Examples include discussions, press conferences, interviews, “or other materials about parties (blocs) or candidates.”  Art. 53(2).  The Law could not possibly intend to prohibit all news about parties at all times outside of the election campaign period.  Yet nowhere does the Law define what constitutes a discussion or other material, etc.  This “standard” is not “formulated with sufficient precision to enable the citizen to regulate his conduct.”[13]

            Not only must a law be sufficiently formulated for a person to conform his conduct, the consequences of nonconformance must be foreseeable.[14]  Article 85 deals with the effect of violating the Law.  It provides:  “An individual shall be brought to criminal, administrative or any other responsibility in accordance with the procedure established by law, if he/she: . . . impedes conducting of election campaigns or violates established rules for conduct of election campaigns.”  Art. 85(1)(6).  The specific punishment is completely unspecified, and the provision is therefore clearly insufficient to put an offending party on notice of possible consequences.

B         The Law Is Not Necessary in a Democratic Society

            Even if the Court were to find that the prohibition on speech is adequately prescribed by law, and in pursuit of a goal sanction by section two of Article Ten, the Law would still certainly not pass the third prong of the test -- whether it is necessary in a democratic society.  Because the Court has repeatedly stressed that “freedom of expression constitutes one of the essential foundations of a democratic society,” it rigorously scrutinizes attempts to prohibit speech, particularly when the speech is political.[15]  As discussed above, to be necessary in a democratic society, the law must address a “pressing social need,” be “proportionate to the legitimate aim pursued,” and the reasons for the law must be “sufficient.” 

            Certainly free and open elections are necessary in a democratic society.[16]  Protecting such elections would respond to a pressing social need.  In certain areas, the Law makes positive strides in this direction; as it pertains to the mass media, however, the Law falls far short.

            The Law, as interpreted by the Central Election Commission, eliminates the press’ right to comment on elections, parties, or candidates at all times other than the fifty days prior to elections.  Restricting the dissemination of information through the press cannot be considered to address a pressing social need, nor would it be proportionate to the aim of open elections.[17]  “Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders.”[18]  There is simply no sufficient justification for restricting the media’s discussion of candidates or parties to only fifty days prior to elections.

            The Law is even more prohibitive with respect to non-citizens.  Persons who are not citizens of Ukraine, and the foreign press operating in Ukraine, are never allowed to participate in an election campaign.  Art. 56(1), (13).  This restriction essentially prevents foreigners from “discussing” candidates or parties in the media.  While it may be permissible to restrict certain forms of foreign intervention in elections, such as campaign contributions, it is quite another proposition to suppress expression in the media altogether.  Such a law could not possibly be proportionate to any legitimate aim.

            While prohibiting the press from “discussing” elections, the Law exempts “[o]fficial announcements . . . regarding the actions of the candidates for deputy” from the definition of an election campaign.  Art. 51(2).  This has the potential effect of permitting incumbents to make statements about upcoming elections and candidates well in advance of an election without the adverse parties and candidates being permitted to discuss it or respond in the media.  Again, no pressing social need could justify this.

            These sections of the Law are not necessary in a democratic society.  Restrictions on the expression of political speech receive extremely high scrutiny by the Court.  Prohibiting the media from “discussions” about elections is the antithesis of the essential foundations of a democratic society.

III        Conclusion

            The Law implicates Article Ten of the Convention because it restricts the free expression of the media.  While rules that restrict free expression may nonetheless be permissible, they must pass a three pronged test that the Law does not.  The Law gives completely inadequate guidance about what the media may do outside of the election campaign period.  Vague phrases and examples such as “discussions” are too vague for the media to conform its behavior.  Regardless, free expression by the media is an absolutely critical feature of a democratic society.  It could not possibly be “necessary in a democratic society” to restrict the media’s ability to discuss candidates and parties.  Limiting the media’s ability to cover elections to fifty days prior to the election serves no legitimate purpose.  These sections of the Law combine to violate Article Ten of the Convention.

Kurt Wimmer

Aaron Cooper

 

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