a

THE CASE OF TTV AND TANJA TROTTER

(Petitioner)

vs.

TURUSTEIN REPUBLIC

(Respondent)

MEMORIAL FOR THE PETITIONER

2, 740 words

INDEX OF AUTHORITIES

Authorities Page Number

1. Callamard, Agnes. Freedom of speech and offence: why blasphemy laws are not the appropriate response. Issue 18, Equal Voices magazine, June 2006 2

2. Baruch Ivcher Bronstein v. Peru, Case 11.762, Report Nº 20/98, Inter-Am. C. H. R., OEA/Ser.L/V/II.95 Doc. 7 rev. at164 (1997) 3

3. Judgment by the European Court of Human Rights (Second Section), Mamère v. France, Application no. 12697/03 of 7 November 2006 3

4. International Covenant on Civil and Political Rights (ICCPR), by General Assembly resolution 2200A (XXI,) 16 December 1966

5. Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1988 5

6. United States v. Cruikshank, 92 U.S. 542 (1876) 6

7. Edwards v. South Carolina,372 U.S. 229 (1963) 6

8. International Service for Human Rights: Right to Freedom of Assembly, Human Rights Defenders Briefing Papers, 2009

9. Northern Ireland Human Rights Commission, Parades, Protests, and Policing, March 2001, North Street, Belfast 6

10. Dr. Bonaventure Rutinwa, T: Unions, NGO’s and Political Freedom in Sub-Saharan Africa, Global Campaign for Free Expression Series, March 2001, Africa 7

11. Baczkowski & Ors v Poland, ECHR Application No 1543/06 (3 May 2007) 8

12. Gaddafi Regime Africa Court, http://www.guardian.co.uk/world/2011/mar/30/gaddafi-regime-africa-court 9

STATEMENT OF THE CASE

 1. The facts of this case take place within the Turustein Republic. The republic of Turustein is a

country of 6.3 million inhabitants. Turustein has a coastline of about 1300 km., including its 27

islands, with sunny beaches and impressive mountains. The capital is Lisparjana, which is

situated in between the two biggest lakes in the country. Tourism, agriculture, fishing, solar and

wind energy are the main resources of the country.

2. Until 1990 Turustein was part of the Federation of the Peoples' Republic, although since 1958,

after the so-called "Turustein Spring", a degree of self-determination and national autonomy has

been developed.

3. Turustein became an independent democratic republic in 1991. It became a member of the UN

in 1992 and ratified the UN-Convention on Civil and Political Rights (ICCPR) in 1995. The

president's party, the Party for Liberty of the People (PLP), has been ruling the country since the

elections in 1992. The current Prime Minister (since 2002) is the former chairman of the PLP,

Mr. George W. Milosconi. The Vice-Prime Minister and Minister of justice is Mrs. Lana

Mbwana. Apart from PLP, only a few other small political parties are represented in Parliament.

None of these parties succeeded in creating an opposition against the PLP-majority and the

government.

4. Over the years the Government and the PLP have been criticised for having too much influence

on the media in Turustein, both in the press and the electronic media of radio and television. In

2003, however, a new, independent, commercial TV-station was granted a broadcasting licence,

TTV, Turustein Television, which was financed by a consortium of NGO's and foreign investors.

The circumstances of the case.

5. On 11 May 2003 on the open forum, "Politics and Society",at the TTV website, www.ttv.org,

an article was posted criticising the Turustein Government by accusing the Prime Minister and

the Vice-Prime Minister for having participated in the construction of large scale organised fraud.

The article reported that funds of the World Bank and the EU for projects of sustainable energy

had been used for investment in a military-nuclear programme and for a prestigious building

project of exclusive residential villas by a company in which both family members of the Prime

Minister and the Vice-Prime Minister had interests. The article also contained an invitation to

participate in a demonstration against the Turustein Government on the National Day, 21 May, at

Time Square, the central square of the capital. The Turustein people were invited to protest

vigorously against the corruption of the government and to call for fully-fledged democracy,

transparency of public affairs, access to official documents and the establishment of broader

freedoms in the country. In a reaction to that article, a few hours later a cartoon was posted on the

forum which showed the Prime Minister and the Vice Prime Minister and alluded to rumours that

the Prime-Minister and the Vice-Prime Minister were having an affair. Neither the article nor the

cartoon contained any reference to its author(s). A cartoon featuring the Prime Minister and the

Vice Prime Minister, alluded to rumours of an affair.

6. Throughout the following days, thousands of other reactions were posted on the TTV-forum,

all in support of the demonstration to be held on 21 May 2003.

7. Following a complaint by the Prime Minister on 17 May 2003, TTV was prosecuted (1) for

defamatory and insulting allegations toward the government, the Prime Minister and the Minister

of justice, (2) for inciting an uprising and spreading hatred amongst the population, (3) for

publishing a defamatory, insulting and obscene cartoon, (4) for organising and/or promoting an

unauthorised public demonstration and (5) for anonymously posting content on a website which

is an offence under Turustein Criminal Law.

8. By a decision of the public prosecutor on 18 May 2003, TTV was ordered to remove the forum

"Politics and Society" from its website within 24 hours. This order was executed by TTV on 19

May 2003, while an appeal against this decision failed (Supreme Court 24 April 2007).

9. On 18 May 2003, TTV featured the case in its TV-news, presented by Tanja Trotter. During

the programme, Tanja Trotter, who is also the editor in chief of the TV-news and of the related

website, quoted some parts of the text published on the TTV-website on 11 May 2003 whilst

showing the controversial cartoon. She also referred to the announcement and to the reactions on

TTV's website regarding the demonstration of 21 May 2003 and to the fact that a criminal case

had been started against TTV, on the request of the government.

10. The next day, on 19 May 2003, the Public Prosecutor started a prosecution against Tanja

Trotter, based on the same charges as those previously brought against TTV (see par. 7).

11. On 22 June 2003, after a complaint by the Prime Minister and the Vice-Prime Minister, Mr.

Milosconi and Mrs. Mbwana, TTV was requested by the Council for Media Ethics to broadcast

an apology for showing a cartoon that was insulting toward the Prime Minister and the Vice-

Prime Minister and violated their right to privacy and their right to human dignity. This apology

was broadcasted on 24 June 2003. The Turustein Council for Media Ethics is a self-regulatory

mechanism established by journalists and the media sector. An appeal before the High

Administrative Court against this decision failed (judgment of 15 May 2007). (Censorship issues)

12. Following a decision by the court on 28 June 2003, TTV was next ordered to reveal the

identity or the email address of the authors of the article and of the cartoon posted on the TTV-

website forum on 11 May 2003. TTV refused to communicate this information, also after the

court order had been confirmed by a judgment of the Court of Appeal on 25 May 2005. Due to

this refusal, which was considered as an obstruction of a judicial investigation, Tanja Trotter was

sentenced to five days imprisonment, as she was considered to be responsible for the TTV's

website and its forum "Politics and Society". A request for an appeal was dismissed by the

Constitutional Court on 29 April 2007. Tanja Trotter was therefore incarcerated in jail for the

period 4 to 8 June 2007.

13. As a further result of the criminal charges against the content that was posted on the website

on 11 May 2003 and against the TV-News on TTV the 11 May 2007, both TTV and Tanja Trotter

were convicted by the Court of first instance (25 January 2004) to each pay a fine of about 10.000

US Dollars and eight days imprisonment (suspended). The conviction was based on all five of the

accusations. This judgment was confirmed by the Court of Appeal on 2 March 2005, but was

partly overruled by a judgment of the Supreme Court of 6 April 2006, referring inter alia to

Article 13 of the Turustein Constitution and Article 19 ICCPR. The Supreme Court considered

that the TTV-news programme of 18 May 2003 had been focusing on an issue of public interest.

The Court emphasized that freedom of expression and press freedom, as guaranteed by Article 13

of the Constitution and Article 19 ICCPR, also protects information and ideas that offend, shock

or disturb and that there is little scope under these article for restrictions on political speech or on

debates on questions of public interest. At the same time, the limits of permissible criticism are

wider with regard to the government than in relation to a private citizen: in a democratic society

the actions or omissions of the government must be subject to the close scrutiny of public

opinion. With regard to the cartoon posted on the website forum and shown in the TV-news, the

Constitutional Court was of the opinion that the drawing was to be considered as a form of

political satire, satire being a form of artistic expression and social comment which, by

exaggerating and distorting reality, is intentionally provocative. With regard to the other aspects

of the convictions of TTV and Tanja Trotter, the Supreme Court was of the opinion that the Court

of Appeal had not sufficiently justified the reasons why the alleged infringements of national law

justified sufficiently and pertinently why these interferences were necessary and proportional in

the light of the importance that is to be attached to freedom of expression by the media on matters

of public interest. Finally the Supreme Court considered the conviction for posting an anonymous

article and cartoon on a website as a violation of the right to anonymity that should in principle be

guaranteed under the freedom of expression. The case has been referred to another Court of

Appeal and is still pending on 15 September 2007.

14. During the proceedings before the Criminal Court of Appeal, TTV and Tanja Trotter were

refused access, having requested it, to official documents they assumed to contain the proof of the

allegations on corruption and fraud regarding the funding by the World Bank and the EU. Their

request was refused by the government and by the ministry of justice on the grounds of "national

security" and the right to privacy. The refusal was upheld by the National Commission for Access

to Official Documents (NCAOD) with reference to the Federal Freedom of Information Act

(FOIA), on 31 May 2007. No further effective domestic remedies were available against the

finding by the NCAOD.

Complaint

15. On 11 July 2007 TTV and Tanja Trotter applied before the Universal Human Rights Court.

They argued that the prosecutions, court orders, convictions, sentences and decisions by the

Turustein authorities and by the Turustein Council for Media Ethics constituted interferences

with their right to freedom of expression which were not necessary in a democratic society and

had violated their human rights and freedoms as guaranteed by Article 19 ICCPR.

More precisely they considered the following interferences as violations of their freedom of

expression:

15.1. the prosecution and conviction for defamatory and insulting allegations toward the

government, the Prime Minister and the Minister of justice

15.2. the prosecution and conviction for incitement to an uprising and for spreading hatred

amongst the population

15.3. the prosecution and conviction for publishing a defamatory, insulting and obscene cartoon

15.4. the prosecutions and conviction for organising and/or promoting an unauthorised public

demonstration

15.5. the prosecution and conviction for posting content on a website anonymously

15.6. the court order to reveal the identity of the author(s) who posted the article and the cartoon

on the TTV-website forum on 11 May 2003 and the sanction of imprisonment of Tanja Trotter

for refusing to hand over the requested information to the public prosecutor

15.7. the decision by the Turustein Council for Media Ethics and the request to broadcast an

apology for showing a cartoon that was considered insulting towards the Prime Minister and the

Vice-Prime Minister and violating their right of privacy

15.8. the refusal to have access to the requested official documents

16. As of 14 September 2007 the case has been declared admissible and has been referred to the

special chamber within the Universal Human Rights Court for matters related to Article 19

UDHR: the Universal Freedom of Expression Court.

STATEMENT OF RELEVANT FACTS

For exposing on national TV certain shady deals that the government was privy to, and

responding to allegations that the state authorities were virtually unhampered in their propensity

for abuse, the government of Turustein decided to impose sanctions on TTV and imprison Tanja

Trotter. The government justified this move by claiming that when TTV came up with its series

of expositions, its primary thrust was to bring the country down and overthrow the existing

government.

The Turustein government also apprehended TTV and its personnel for their calls of protests

against the government. This call was made after TTV was able to obtain pieces of information

regarding the government’s misappropriation of foreign aids. Moreover, when they (TTV) tried

to compel the government to be more transparent in its dealings, they were met with stern

resistance and even antagonism.

Another important detail that needs mentioning is that the country has already ratified the

International Convention on Civil and Political Rights, which means that the provisions contained

in the Covenant are deemed to be binding to Turustein.

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INTRODUCTION

The Petitioners in this case highly submit that the resolution of the current problems that

beset Turustein need to be done as soon as possible, because as it is, the country right now is at

the brink of a civil upheaval, as a circumstance of the conflation of events leading to the

subsequent sanctioning of TTV for its political commentaries, as well as the incarceration of

Tanja Trotter, its most vocal media personality who has taken the stance of making the

government accountable for its actuations.

Owing to the fact that Turustein is still in the period of defining itself as a nation, the

resolution to the issues presented to this most Honorable Court will only lead to two possible

scenarios: either this Court affirms the government’s draconian stance, or it validates Trustein’s

adherence to its commitment to the International Convention on Civil and Political Rights

(ICCPR).

The Petitioners take the latter stance, for history has time and again proven that nothing

civil nor humane has ever sprouted from the seeds of absolute and unbridled government power.

It is therefore the humble submission of the Petitioners that:

I. The subsequent punishment of TTV for airing out its legitimate grievances against the

government is violative of the Freedom of Expression as enshrined in the ICCPR.

II. The subsequent punishment of TTV calling people to rally on the streets because of

the irregularities of the government is violative of the Freedom to Assemble as

enshrined in the ICCPR.

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I. The subsequent punishment of TTV for airing out its legitimate grievances against the

government is violative of the Freedom of Expression as enshrined in the ICCPR.

For exposing on national TV certain shady deals that the government was privy to, and

responding to allegations that the state authorities were virtually unhampered in their propensity

for abuse, the government of Turustein decided to impose sanctions on TTV and imprison Tanja

Trotter.

The government justified this move by claiming that when TTV came up with its series of

expositions, its primary thrust was to bring the country down and overthrow the existing

government1. If the government was encased in its own impenetrable bubble, then this would

have been a fine assertion – but clearly, this is not the case.

The Turustein government is a signatory to the International Convention on Civil and

Political Rights2 and having entered into this pact, it is bound to respect the specific provisions

that are contained within this commitment.

Article 19 of the ICCPR is a guarantee that Freedom of Expression is a protected right.

As a matter of fact, Dr. Agnes Callamard, who is currently Article 19’s Executive Director, once

said in her 2008 report3 that Freedom of expression is essential to the democracy and the

democratization process. It forms a central pillar of the democratic framework through which all

rights are promoted and protected, and the exercise of full citizenship is guaranteed. A robust

democratic framework in turn, helps create the stability necessary for society to develop in a

1 Compromis, paragraph 7.2 Paragraph 13, supra. 3 Callamard, Agnes. Freedom of speech and offence: why blasphemy laws are not the appropriate response. Issue 18, Equal Voices magazine, June 2006

12

peaceful and relatively prosperous manner. Through freedom of expression, politics can unfold

in an unfettered and constructive manner.

The reason why Freedom of Expression is important is because it empowers the citizens

to make its government accountable, inasmuch as it also stirs people into action once excesses by

government authorities happen. Nothing is more tragic than a public that is paralyzed by fear and

dread, because in such a case, the government becomes emboldened to arbitrarily silence its

critics and perpetuate its own brand of draconian leadership.

Corollary to this universally-esteemed value, there had been numerous cases that were

decided by several supranational courts that have jurisdiction over the enforcement of this

protected right. The Inter-American Court of Human Rights (IACHR) for example has a long list

of cases that has affirmed the right of media to expose certain anomalies of government. In the

2001 Baruch Bronsten vs. Peru4 case where there was an attempt to gag the media from exposing

government anomalies, the Court had the occasion to note that it is essential for journalists

working in the media to enjoy the protection and independence necessary to fully practice their

profession, since they keep society informed, an essential requirement for it to enjoy full

freedom.

In another ruling which traverses the same line of reasoning, but made by the European

Court on Human Rights (ECtHR), the Court was of the impression that a public debate on TV

concerning a matter of public concern should be encouraged by the government, because this is a

basic manifestation that the government adheres to its democratic commitments5.

4 Baruch Ivcher Bronstein v. Peru, Case 11.762, Report Nº 20/98, Inter-Am. C. H. R., OEA/Ser.L/V/II.95 Doc. 7 rev. at164 (1997)5 Judgment by the European Court of Human Rights (Second Section), case of Mamère v. France, Application no. 12697/03 of 7 November 2006

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As can be gleaned from these two cases, it is apparent that enabling citizens, particularly

the media, to air out their concerns about the government is an integral part of democratic

discourse. For nothing is more tragic than a people who invariably submit that they are helpless,

nay, voiceless, even when they have the right to freely express themselves. Subsumed under this

reasoning therefore, is the indispensable need for the Turustein government to expand the

democratic space, so its citizens can freely exercise the democratic prerogatives that are due

them.

In light of all these contentions therefore, it is the submission of the Petitioners that the

arrest and eventual prosecution of Tanja Trotter contravenes Turustein’s commitment to

ICCPR’s Article 19, or its commitment to Freedom of Expression.

II. The subsequent punishment of TTV for calling people to rally on the streets is violative

of the Freedom to Assemble as enshrined in the ICCPR.

The Petitioners also assail the fact that the Turustein government apprehended TTV and

its personnel for their calls of protests against the government. This call was made after TTV was

able to obtain pieces of information regarding the government’s misappropriation of foreign aids.

Moreover, when they (TTV) tried to compel the government to be more transparent in its

dealings, they were met with stern resistance and even antagonism.

Before a discussion on why this constitutes a violation to Turustein’s commitment to

ICCPR is to be delved into, it is the submission of the Petitioners that the fact that the people

rallied on the streets, subsequent to the calls made by TTV, only means one thing: that the

societal frustration has become too great, such that once an impetus for public protest was

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sparked by TTV, it did not take long for Turustein’s citizens to boldly display their repulsion to a

government that has long justified its exclusivism by hiding underneath the mantle of despotism.

Clearly, the abrasive stance taken by Turustein’s government to the public outcry was an

upfront to their commitment to Article 21 of the ICCPR. This Article6 states, viz:

‘The right of peaceful assembly shall be recognized. No restrictions may be placed on the

exercise of this right other than those imposed in conformity with the law and which are

necessary in a democratic society in the interests of national security or public safety, public

order (ordre public), the protection of public health or morals or the protection of the rights and

freedoms of others.’

Again, Turustein’s ratification of the ICCPR compels it to uphold this cherished ideal. But

before the Petitioners will enmesh this freedom with the case at hand, it is imperative that there be a

discussion as to the relevance of this right, and how the stifling of the same can be detrimental to the

democratic progression of any country that embraces the provisions of the ICCPR.

The Freedom to Assemble has its roots in the United States of America, and it goes back

to the Declaration and Resolves of the First Continental Congress7 on October 14, 1774. The

Declaration stated, among other things, that the inhabitants of the English colonies in North-

America, by the immutable laws of nature, the principals of the English constitution, and the

several charters or compacts, have the following rights: They have a right peaceably to assemble,

6 International Covenant on Civil and Political Rights (ICCPR), adopted by the General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 497 Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1988

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consider their grievances, and petition the king: and that all prosecutions, prohibitory

proclamations, and commitments for the same are illegal.

Initially, the right to assembly was thought of as inferior, but as history progressed, it

eventually created a niche of its own. As a matter of fact, this graduation can be seen by the

evolution of American jurisprudence on this matter, from the case of United States v.

Cruikshank8, where the Supreme Court said that the right of the people peaceably to assemble …

for anything else connected with the powers and duties of the national government, is an attribute

of national citizenship, and as such, under the protection of, and guaranteed by, the United

States, up until the celebrated case of Edwards v. South Carolina9, where the US Supreme Court

had the occasion to note that a disorderly crowd, or the fear of one, cannot be used to stop a

peaceful demonstration or cancel the right of peaceable assembly.

Corollary to this evolutionary growth, it is widely considered as one of the pillar

freedoms in the ICCPR – as a matter of fact, this has been thoroughly nuanced by the different

authorities of this enshrined right.

In a paper10 presented by the International Service for Human Rights in 2009, this

ICCPR-affiliated organization succinctly worded the modern requisites for this right to be

exercised. It stated thus: Therefore, in order to fully exercise the right to freedom of assembly, a

balance between the negative and positive obligations of the State must be maintained. This

means that a State should refrain from interference with freedom of assembly (a negative

obligation), as well as take positive steps towards ensuring protection of freedom of assembly (a

positive obligation). Simply put, this means that in the comprehensive understanding of

8 United States v. Cruikshank, 92 U.S. 542 (1876)9 Edwards v. South Carolina, 372 U.S. 229 (1963)10 International Service for Human Rights: Right to Freedom of Assembly, Human Rights Defenders Briefing Papers, 2009

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supranational courts that have jurisdiction of cases involving violations of this right, it is not

sufficient that the government allows its citizens to peacefully assemble, because more

importantly, it should create the necessary conditions for its citizens to do so.

In a 2001 paper11 submitted by the Northern Ireland Human Rights Commission entitled

Parades, Protests, and Policing, which was commissioned by the European Commission on

Human Rights, the authors claimed that the Freedom to Assemble is essential in a democracy, so

much so that if this freedom is to be momentarily made inaccessible by the authorities, there has

to be pressing social issues that necessitate the suspension of this right.

The experience of Sub-Saharan Africa is also quite telling in how Freedom to Assemble

has been liberally construed as to do away with statutes and practices that stifle this right. The

Sub-Saharan region, according to Dr. Bonaventure Rutinwa12, who is a consultant to Article 19’s

Africa Programme, used to be populated by colonized countries, and one of the more potent

manifestations of the colonial clutches were laws that tended to abridge the Freedom to

Assemble.

However, when the vestiges of colonial subjugation had dissipated due to the liberation

of most Sub-Saharan countries, the judiciaries around the sub-continent have taken advantage of

the changed political-legal environment to take a bold stance in protecting human rights. From

east to west, judiciaries have used powers conferred on them by the bills of rights to strike down

laws found to be in breach of fundamental rights and freedoms, even on the basis of international

instruments signed but not yet ratified by the relevant parliaments. Among the statutes that have

11 Northern Ireland Human Rights Commission, Parades, Protests, and Policing, March 2001, North Street, Belfast12 Dr. Bonaventure Rutinwa, T: Unions, NGO’s and Political Freedom in Sub-Saharan Africa, Global Campaign for Free Expression Series, March 2001, Africa

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been so purged are those which impinged on freedom of association and assembly; they have

been declared "colonial relics" which no longer have a place in Africa13.

It is thus apparent, from the universality of this right’s application, that no democracy can

ever exist if it severely restricts its citizens to air out their grievances against the government.

Although concededly there are instances when the government has valid grounds to prevent

demonstrations, especially when public safety and the state’s survival so requires14, the general

presumption has always been that of upholding the citizen’s right to peacefully assemble.

If one takes a look at the dearth of experiences that most modern-day countries have in

relation to Turustein’s current political predicament, it is easy to point out that the courts have

been more sympathetic to the Right of Assembly when contraposed with the state’s prerogative

to trample upon the same.

In May 2007 for example, the ECtHR admonished the government of Poland when it

dissolved a protest staged by Foundation for Equality, a Polish group, on the ground that it

violated its domestic Administrative Law15.

Just very recently, the African Court on Human and People’s Rights (ACtHPR) flexed its

muscles for the very first time, in light of the police brutality that were perpetrated against those

who protested against Libyan leader Mubaraq Ghadaffi’s regime. In an unprecedented move by

the ACtHPR, it unanimously ordered the following provisional measures: (1) That Libya must

immediately refrain from any action that would result in loss of life or violation of physical

integrity of persons, which could be a breach of the provisions of the African Charter or of other

international human rights instruments to which it is a party; and (2) That Libya must report to

13 pp. 16-17, supra. 14 Northern Ireland Human Rights Commission, Parades, Protests, and Policing, March 2001, North Street, Belfast, page 3715 Baczkowski & Ors v Poland [2007] ECHR Application No 1543/06 (3 May 2007)

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the ACtHPR within a period of 15 days from the date of receipt of the Order, on the measures

taken to implement it16.

In the case at hand, it is apparent that the aim of the protesters is to compel the

government to be more transparent and truthful in its affairs – a perfectly valid outcry, especially

so that the protestations were made within the context of a country that adheres to participatory

democracy.

Furthermore, in Turustein’s case, the public outcry was a spontaneous act of dissidence,

with the end goal of making the government answer to the allegations hurled against it. It was

not an exercise of pure and senseless anarchy, since its fomenting was caused by the societal

explosion that had ensued shortly after damning expositions were made.

Again, and in relation to the conclusion of the first argument, the freedom to assemble

has a two-fold purpose: first, it aims to orient the ordinary citizen to the workings of his

democratic society; and second, it serves as a potent check mechanism so the government’s

tendency to abuse its authority is rightfully mitigated.

In light of these premises established for this argument therefore, it is the humble

submission of the Petitioners that the arrest and eventual prosecution of Tanja Trotter

contravenes Turustein’s commitment to ICCPR’s Article 21, or its commitment to Freedom of

Expression

III. The subsequent punishment of TTV for its non-disclosure of the source of the cartoon

that was posted in the website and the compulsion of the Turestein government to Tanja

16 Gaddafi Regime Africa Court, http://www.guardian.co.uk/world/2011/mar/30/gaddafi-regime-africa-court.

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Trotter to disclose the network’s sources for its expositions are violative of the Freedom of

Expression as enshrined in the ICCPR.

(Case digest, number 8 Kuntsler vs. Austria case about the cartoon and satire that was upheld by the European chorvs. The ECtHR noted first of all that the painting, in its original state,depicted Mr. Meischberger in a somewhat outrageous manner, but that the figures of thepainting were caricatures and the painting satirical. According to the Court, satire is to beconsidered a form of artistic expression and social comment which, by exaggerating anddistorting reality, is intentionally provocative. The Court is of the opinion that the painting didnot concern Mr. Meischberger’s private life, but his public standing as a politician. The scenein which he was portrayed could be understood to constitute some sort of counter-attackagainst the Austrian Freedom Party, whose members had strongly criticised the painter’swork. The Court concluded that the Austrian courts’ injunction was disproportionate to the aimpursued and therefore not necessary in a democratic society, in violation of Article 10.)(Case digest, number 9 Dupuis vs. France case about the book exposing the French politicians, but using wiretapped conversation, on account of them being public officials, and thus a discussion of their political affairs is warranted.)(Case digest, number 13 Voscuil vs Netherlands in November 2007 case about the two journalists who where coerced to disclose who their sources were, this is very helpful because it had a thorough discussion on the need to protect the media, given their unique position in society, plus the fact that the state ought to provide for a strong belief that the right of the media practitioners to protect their sources ought to be overridden.Without such protection, sources might be deterred from assisting the press in informing the public on matters of public interest and, as a result, the vital public-watchdog role of the press might be undermined. The order to disclose a source can only be justified by an overridingrequirement in the public interest. In essence the Court was struck by the lengths to whichthe Netherlands authorities had been prepared to go to learn the source’s identity. Such farreaching measures could but discourage those who had true and accurate informationrelating to wrongdoing from coming forward in the future and sharing their knowledge withthe press. The Court found that the Government’s interest in knowing the identity of thejournalist’s source had not been sufficient to override the journalist’s interest in concealing it.There had therefore been a violation of Article 10.)(Case digest, number 14, which was about a television show host in Russia who merely relayed the information shared by a telephone caller that the national flag was trampled upon. In this case, the ECtHR was of the opinion that the accused could not be imputed with sowing public disorder, because he was just trying to stimulate discourse and was merely relying on the testimony of the telephone caller)(Case digest, number 16 where even a politician who leaked important information in the public regarding government corruption was held by the court to be protected by Article 10 of the ICCPR – Guja vs Moldova, 2008 case in Moldova and that it was justified in matters of general interest and the right of citizens and even public officials to report illegal conduct. Furthermore, it also elucidated on the fact that a person who acts in good faith in his exposition cannot be penalized for doing so.The Court, being of the opinion that Guja had acted in good faith, finally noted that it was the heaviest sanction possible (dismissal) that had been imposed on the applicant. The sanction not

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only had negative repercussions on the applicant's career, but could also have a serious chilling effect on other employees from the Prosecutor's Office and discourage them from reporting any misconduct. Moreover, in view of the media coverage of the applicant's case, the sanction could also have a chilling effect on other civil servants and employees.Being mindful of the importance of the right to freedom of expression on matters of generalinterest, of the right of civil servants and other employees to report illegal conduct andwrongdoing at their place of work, the duties and responsibilities of employees towards theiremployers and the right of employers to manage their staff, and having weighed up the otherdifferent interests involved in the applicant’s case, the Court comes to the conclusion that theinterference with the applicant's right to freedom of expression, in particular his right to impartinformation, was not “necessary in a democratic society”. Accordingly, there has been aviolation of Article 10 of the Convention)(Case digest, case number 17 entitled Cujuk vs Turkey in April 2008 where a teacher who supported a separatist regime as regards the Kurdish question. Although the article had some hostile tones in certain parts, the general standard, according to the Court, should be based on whether the writer advocated for an armed struggle, armed uprising, or violence – if there is no such proof that that is the case, then there is no hate speech.While certain comments in the offending articles and speeches sought to justify separatism, which thus made them hostile in tone, taken as a whole they did not, however, advocate the use of violence, armed resistance or an uprising and did not constitute hate speech, which, in the Court’s view, was the essential factor to be taken into consideration.)(Case digest, case number 19 entitled Meltex Ltd. Vs. Armenia, where the government did not grant a license to a certain network because it had a lot of requirements that a company needed to comply with before it can be granted license. The government should set very conservative standards before granting the license of a company, otherwise, the company will not be bullied by the state)(Gunder vs. Turkey where the European High Court on Human Rights had the occasion to note that the state has both positive and negative obligations when it comes to freedom of expression – that of encouraging its citizens to air out their grievances and not interfering in the exercise of the same)

Inter-American High Court jurisprudence:(The ‘need’ and, therefore, the legality of restrictions onfreedom of expressions based on article 13.2, will depend on their intention to meet animperative public interest. Among the various options that exist to reach this goal, it isessential to choose the one that least restricts the protected right. Given this standard, itis not enough to prove, for instance, that the law complies with a useful or timelypurpose; to be compatible with the Convention, restrictions must be justified accordingto collective goals that, in terms of importance, should be privileged over the socialneed for the full enjoyment of the right guaranteed under article 13 and that do not limitthe right proclaimed in article 13 more than strictly necessary. That is to say, the restriction must be imposed on the interest that justifies it and must strictly support theattainment of that legitimate objective – so it is essentially a balancing of interest at the end of the day.)(In its directive entitled: The mandatory licensing of journalists in 1985, the Court observed that the right of freedom of expression is fundamental and essentialfor democratic life, since free debate, the greatest possible circulation of information

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and opinions and the respect for dissent are inherent to democracy. On the other hand, itunderscored that this right comprises two equally important dimensions that must besimultaneously guaranteed: an individual and a social one. The former recognized theindividuals’ rights to not be arbitrarily prevented –fully or partially- from expressingtheir own thoughts. The second implies the right of all members of society to receivethe information or opinions disseminated by others.The Court stated that affecting one of the two dimensions of the right necessarily affectsthe other. That is why it declared that governments cannot allude that the protection ofany of the two dimensions of the right justifies the restriction of the other. Restrictingthe expression of voices necessarily reduces the amount of information and ideas thatwill be conveyed to society as a whole. Specifically, the imposition that only peoplewith certain conditions were entitled to work as journalists (in the case solved by theCourt, those requested to join the Association of Journalists) limits the number andvariety of opinions and news that society receives, affecting and disfavoring the socialdimension of freedom of expression. Thus, the IACHR concluded that the internalregulation impeding the labor of those journalists, who did not have a license, violatedthe right of freedom of expression.)(Social communications media as a fundamental instrument of freedom ofExpression

The violation of freedom of expression can result not only from the State. Forthe right to be effective, mass media should serve as an instrument for theexpression and dissemination of news and ideas, and should be accessible to all,without discrimination. There should be no media monopolies or oligopolies.

If freedom of expression requires, in principle, that thecommunications media are potentially open to all withoutdiscrimination or, more precisely, that there be no individuals orgroups that are excluded from access to such media, it must berecognized also that such media should, in practice, be trueinstruments of that freedom and not vehicles for its restriction”(IACHR, The Compulsory Licensing of Journalists. Advisory OpinionOC-5/85 of November 13, 1985, paragraph 34)“… freedom of expression can also be affected without the directintervention of the State. This might be the case, for example, whendue to the existence of monopolies or oligopolies in the ownership ofcommunications media, there are established in practice "meanstending to impede the communication and circulation of ideas andopinions” (IACHR, The Compulsory Licensing of Journalists.Advisory Opinion OC-5/85 of November 13, 1985, paragraph 56)(The State must encourage the plurality of sources of information so that theflow of information and opinions is ruled under the principle of equality.“Given the importance of freedom of expression in a democraticsociety and the high responsibility it entails for those professionallyexercising social communication tasks, the State should not onlyminimize restrictions on the circulation of information but alsobalance, to the greatest extent, the participation of the information inthe public debate, encouraging plurality of sources of information.Consequently, equality must rule the flow of information.” (IACHR,

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“Kimel vs. Argentina” case. Sentence of May 2, 2008, paragraph 57)(Journalists must enjoy protection and independence.“Likewise, it is essential for journalists working in the media to enjoythe protection and independence necessary to fully practice theirprofession, since they keep society informed, an essential requirementfor it to enjoy full freedom.” (IACHR, “Baruch Ivcher Bronstein vs.Peru case”. Sentence of February 6, 2001, paragraph 150)(Restrictions on Freedom of Expression -- As pointed by article 13.2 of the Convention, the behaviors by which people are heldaccountable for abuse of freedom of expression must be contained in the law, beforeimposing the liability, in an express and specific manner. Also, the law applicable to thecauses for imposing a liability must pursue legitimate goals; this is provided for inarticle 13.2 of the Convention. It may therefore be subject to certain restrictions, butthese shall only be such as are provided by law and are necessary: (a) For respect ofthe rights or reputations of others; (b) For the protection of national security or ofpublic order or of public health or morals.)(How to assess whether there was a breach of freedom of expression – In order to assess whether limits on freedom of expression have actually existedit may be useful to consider not only actions taken directly against it but alsothe set of events, circumstances and contexts in which they unfold.“When assessing an alleged restriction or limitation on freedom ofexpression, the Court should not only consider the action on its ownbut equally examine such action in the light of the event as a whole,including the circumstances and context in which it took place”(IACHR, Case “Baruch Ivcher Bronstein vs. Perú”. Sentence ofFebruary 6, 2001, paragraph 154)(On why public officials ought to be more scrutinized -- “The individuals that influence matters of public interest have voluntarily exposed themselves to the most demanding public scrutiny,and consequently, are subject to a higher risk of being criticized, astheir activities escape the private realm to enter the sphere of publicdebate. In this line, within the framework of public debate, the level ofacceptance and tolerance to criticism on the part of the State itself, ofgovernment officials, politicians and even individuals working inactivities subject to public scrutiny, should be much higher than that ofparticular individuals.” (IACHR, “Ricardo Canese vs. Paraguay" case.Sentence of 31 August, 2004, paragraph 103).(There are restrictions in the exercise of freedom of expression, and it should conform to three standards: (1) there is a previous enumeration of these cases (so as to mitigate the propensity of governments to expand the parameters; (2) there is a legitimate aim by the state; (3) the clipping of the same right directly aids the state in achieving this aim (not incidental, but directly) – Furthermore, these standards apply to ACHR, ECtHR, African Union, and even ICCPR)(There is a glaring similarity to the Venezuela case as decided by the Inter-American High Court which involved RCTV, a privately-owned media outfit that was bullied by the government)First Argument: The punishment of TTV and Tanja Trotter for the expositions they made in public regarding government corruption is violative of the Freedom of Expression as embodied in Article 19 of the International Covenant on Civil and Political Rights.

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Dr. Agnes Callamard, who is currently Article 19’s Executive Director, contends that Freedom of Expression is the cornerstone to every democracy, because it is in allowing the free exchange of ideas where people will be exposed to different views, and because of this, discourse is allowed to flourish.

The respondents posit the belief that freedom of expression is not absolute, and that at times, it may be suspended if a higher ideal is sought to be achieved by the governing body. However, the parameters for suspending this Freedom is very exacting, especially when one looks at the parameters established by the ICCPR, as well as the Inter-American High Court, the European Court, and even the African Court.

In a nutshell, three requisites need to be complied with before this right can be suspended: first, the list of suspendable rights (in light of Freedom of Expression) is exclusive and they should be determined by law beforehand so as to mitigate the possibility of individual states expanding their discretion as to when this right is to be suspended, second, there has to be a legitimate aim that the state needs to pursue, and then third, the suspension should be germane and central to the legitimate aim of the state. This method is also referred to as the balancing of interest test.

In the case at hand, it is clear that the three requisites are wanting of satisfaction: first, the state does not have a pre-established list of exclusive offenses that will warrant the suspension of the right to expression, but more importantly, in the balancing of interest scale, the interest of the people holds more weight in comparison to the interest of the government.

The interest of the people is in being informed of the goings-on of governance, while the state’s interest is merely to protect itself from ridicule. In the balancing act of the public’s right to information that involve governance and the state’s right to shield itself from criticism (involving governance also), it is apparent to the petitioners that the tilt of the balance should be resolved to where discourse and information is most disseminated, for this is where Freedom of Expression becomes most relevant. If this were otherwise, then the people of Turustein will perpetually be in the dark, as its leaders go about their daily affairs, unhampered in their dealings, whether they be for the public good or not.

Another test that the ICCPR employs when it comes to Freedom of Expression is the clear and present danger rule. Succinctly put, this means that the state can rightfully suspend some expressions if it can be proven that such expressions present a clear and imminent danger to the government. However, in the case of Cujuk vs Turkey in April 2008, the Inter-American High Court overturned a decision by Turkey’s Supreme Court which affirmed the incarceration of the plaintiff, because apparently, he published a series of columns which supported separatism in Turkey. The Court elucidated that for as long as an expression does not actively support armed struggle, hostility, or violence, then it should not be labeled as (a) hate speech, and should this be respected by the government.

In the case at hand, TTV merely enjoined the citizens of Turustein to demand for government accountability, and it did not compel people to overthrow the government – hence, it was within the established bounds in its exercise of its Freedom of Expression.

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Freedom of Expression is highly-esteemed that even the African Court had the occasion to note in the Libyan uprising of 2010 that the State has both a positive and a negative obligation as regards this right: the positive obligation is manifested when the state creates the necessary condition for FOE to flourish, whereas the negative obligation is achieved when it restrains itself from suspending this right.

In light of all these contentions therefore, chorvs.

The second argument that the petitioners would like to forward is in relation to the allegations hurled against TTV and Tanja Trotter in paragraphs 15.3 and 15.6 of the Compromis, which discussed first about the cartoon sketch and second, the refusal of the plaintiffs to hand over the confidential documents requested by the public prosecutor.

First, the cartoons.

The January 2007 case of Kuntsler vs, Austria holds several parallelisms to the case at hand. Several artists in Austria came up with an exhibit which caricatured their political leaders. And, your honors, compared to the case at hand, the images there were even more obscene, as they depicted sexual acts and sexual organs. Although the Austrian Supreme Court initially fined the artists for debasing the images of their political leaders, this ruling was overturned by the European Court, because it elucidated that that comic sketch was satirical, and satire is to be considered a form of artistic expression and social comment which, by exaggerating and distorting reality, is intentionally provocative.

Furthermore, the Court said that the cartoon was not an upfront to the person of the officials per se, but it was a criticism to public officials. A distinction should be made, according to the Inter-American High Court in the 2004 case of Canese vs. Paraguay, because individuals that influence matters of public interest have voluntarily exposed themselves to the most demanding public scrutiny, and consequently, are subject to a higher risk of being criticized. Hence, the level of acceptance and tolerance to criticism on the part of the State itself, of government officials, politicians and even individuals working in activities subject to public scrutiny, should be much higher than that of particular individuals.

Second sub-argument that the petitioners would like to forward is that the compulsion of the government to TTV to reveal its sources is an upfront to the right of the press, as also envisioned in the ICCPR.

In the 2001 case of Baruch Bronstein vs Peru, the Inter-American High Court stated that ‘it is essential for journalists working in the media to enjoy the protection and independence necessary to fully practice their profession, since they keep society informed, an essential requirement for it to enjoy full freedom.”

Once again, there is a dearth of jurisprudence that affirms the need for media to be protected. In the June 2008 case of Meltex vs. Armenia, the European Court admonished the defendant State when it imposed very rigid standards before a media outfit can be granted a license, because this undermined the independence of the media.

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But tying jurisprudence more intimately with the case at hand, the November 2007 case of Voscuil vs. Netherlands is instructive. The European Court sided with the two plaintiff media practitioners who refused to disclose their sources in a government corruption expose, because without such protection, sources might be deterred from assisting the press in informing the public on matters of public interest and, as a result, the vital public-watchdog role of the press might be undermined. Furthermore, the subservience of the media to the state authorities would give rise to a chilling effect – whereby such far-reaching measures could but discourage those who had true and accurate information relating to wrongdoing from coming forward in the future and sharing their knowledge with the press.