D I N S U M A R t

M I H A I L - C O N S T A N T I N E R E M I A . Justiţia, dreptul şi echitatea EMILIAN S T A N C U , Pledoarie pentru criminalistică VALERIAN CIOCLEI, Despre nevo ia de echilibru în Justiţia penală CORNELIU L I V I U - P O P E S C U , L'arrêt de la Cour européenne des Droits de

l ' H o m m e du 23 janvier 2 0 0 1 , rectifié le 11 mai 2 0 0 1 , dans l'Affaire B R U M À R E S C U c. R O U M A N I E sur la satisfaction équitable

ŞTEFAN D E A C O N U , The Freedom o f Expression Through Public Radio and TV Services

VERGINIA V E D I N A Ş , Generalităţi privind funcţia publică europeană ş i funcţionarul public european

B O G D A N D U M I T R A C H E , Consecinţe le ineficacităţii contractelor

A N U L X L X X = 2

ANALELE UNIVERSITÀ'

SUMAR • SOMMAIRE »

MIHAIL-CONSTANTIN EREMIA, Justiţia, dreptul şi echitatea 3 EMILIAN STANCU, Pledoarie pentru criminalistică 1 î VALERIAN CIOCLEI, Despre nevoia de echilibru în Justiţia penală 15 CORNELIU LIVIU-POPESCU, L'arrêt de la Cour européenne des Droits de l'Homme du

23 janvier 2001, rectifié le H mai 2001, dans l'Affaire BRUMĂRESCU c. ROUMANIE sur la satisfaction équitable 23

ŞTEFAN DEACONU, The Freedom of Expression Through Public Radio and TV Services 29

VERGTNIA VEDINAŞ, Generalităţi privind funcţia publică europeană şi funcţionarul public european 47

BOGDAN DUMITRACHE, Consecinţele ineficacităţii conts-actelor 79

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î i

THE FREEDOM OF EXPRESSION THROUGH PUBLIC RADIO AND TV SERVICES

ŞTEFAN DEACONU*

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I The appearance and the development of the means of mass communication led to major changes in the civilization of the 20th centur}-'. Due to their capacity of penetration and to their impact on society, radio and TV services triggered a revolution in communication, transformed the circulation of information into an

js explosive phenomenon and started a new era in the history of mankind, t Audio-visual services have been associated both with vital fimctions I (information, education, entertainment; especially in what concerns information, 1| audio-visual services cannot efficiently be competed by any other means of mass

communication) and also with major disfunctions (the transitoiy character of the message, the chronography, the excess of telereception, the manipulation, etc.).

In analyzing the capacity of the audiovisual channel to shape public opinion, one must take into account the nature of the public, who will perceive the message according to its social and cultural context and will select and use it according to its needs. Although the audiovisual message is somewhat more aggressive, one cannot speak of one-way communication. An undeniable fact is constituted by the comprehensive control of the mass media by the state within totalitarian political regimes and also the special importance given to the conti'ol of radio and TV stations by insurgents worldwide. Even within mature democracies governments have tried, in a more subtle manner, to presen.'e their right to superv ise the audiovisual sphere.

Though the impact of the audiovisual channel cannot be neglected, it should be taken into account the fact thai it is not the only nieans of intluencing public opinion. Besides, the special capacity of the media system to transmit and create cultural values balances the capacity the same system has to influence public opinion.

Tne key element that can counterbalance the negjtive effect of the audiovisual channel is represented by pluralisni. Pki.aiWoi .ii!!ov\s the cxprcssiori

Ştefan Deaconu is a pa.'-lianicr.tan; expert in ihe honale oî Rcri J^î'.a and nemhir of ih>-South Eastern European Center of Constitutional Lav, m .Miicns

! ! • S I L . N T t A C C M , ^

iji áiñormx utnas cf opiíiioii. íheir cohabitation and íl-seir open confrfjniatjoí: within the pubUc sphere - this leading lo the representation of a societ). mat i-diver-virt^ aoü in a votiiiiiu-Ji»;igc In Rom-mia the post communist naJü-itíoR b!ought along a continuos consoiidation of the freedom of aud'cvisua: ccmmunJcaiion and the media system became increasingly emancipated from the slate, both also from economic, social and cultural concentrations The complete development of the freedom of communication cannot be achieved men technical and financial constraints. The audiovisual channel was and still a verv-expensive media channel due to the increasingly sophisticated technical devices employed, An industrial sector specialized in producing audiovisual equipmcn was created around this media channel. However, the means of financmg th<-audiovisual channel lemained limited, this placing it under the control or/am influence of the state or of large financial groups. Thus, the very freedom o expression and the piuraJism have been questioned.

The audiovisual channel is the most popular means of information air-education. Hie radio and ilie I'V represent the core of many households, liial is th., reason for which the audiovisual must fiinction under efficient rules, adjitsted t*, cultural, social and economic realities, in order for the freedom of comraunicatio . correct information and thus the education of the public to be assured.

1. The priracipies of the aradiovisHsl

A) The freedom of audiovisml communkaiion

This public freedom has been established and confirmed woridvviv relatively late, if we take into account the fact that the essential collective libert • emerged in their present form at the end of the 19th centuiy. The audiovis-.j channel appeared late in the mass-media realm, but it underwent a u development. Even if in the beginnmg the State tried to keep its monopoly on means of communication, the latter achieved outstanding technical stand-'nx'. which made impossible the full control on the audiovisual Democratic socie:,^ acknowledged the need to create a free framework for the development of .! audiovisual, a degree of state control being however, kept for the p r o t e c t i o f i -public interest and of the rights and liberties of the citizens.

In Romania, the poor technical standards and the long time-span oi u . dictatorial political regime made possible the development of AXQ ide- ' audiovisual liberalism only after 1989.

The law of the audiovisual adopted in 1992 established in its article = freedom of audiovisual communication as it follows: "the freedom of expre: •>:• of ideas and opinions as well as the freedom to broadcast information ihr j radio and television systems are guaranteed by the law, in the spirit o'

THE FREEDOM OF EXPRESSION TriBOUGh P U B U C Rj'.DIO A'xTO 1 3 ]

constitutional rights and liberties." in fact, the freedom of audiovisua! communication is but a manifestation of the broader freedom of expression.'

The freedom of expression reaches its true dimension only when il can be exercised through any means of public communication of thoughts, opinions and religious beliefs, their range becoming extiemeiy wide, due to the conditions created by the development of the mass media during the last decades.

The Constitution of Romania adopted on the 8ih of December 1991 establishes in article 30 the freedom of expression of thoughts, opinions or beliefs and the freedom of oral, written, visual, sonorous creations or of creations expressed through any other means of public communication. According to articles 11 and 20 from, the R.omanian Constitution, the freedom of expression must be interpreted and applied in accordance with Tlie Universal Declaration of Hum.an Rights'^, with the international Pact on Civil and Political Rights^ and with The European Convention on Human Rights'*, treaties Romania ratified and committed to.

The freedom of audiovisual communication encompasses, according to article 1 from the Law of the audiovisual, only the expression through radio^ and TV channels. The essential feature of the audiovisual is the possibility of its being directly received by the public while broadcasting programs of interest for a potentially large public.

' See for details I. MURARU - Protecţia constituţională a libertăţilor de opinie (cap. IV - "Libertatea de exprimare", pp. 66-132), Ed. Lumina Lex. Bucureşti, 2000

' It was adopted and proclaimed by the UN General Assembly trough Resolution 217 (III) December 10, 1948; Article 19 specifies that "Any person hast the right to freedom of opinion and expression, which implies the right of not being persecuted for its own opinions and that of seeking, receiving and spreading, regardless of borders, informations and ideas, through any means of expression".

' Adopted on December 16, 1996 in NY, by the UN General Assembly, ratified by Romania through Decree 212/ October 31, 1974 which came into force on Febreary 23, 1976; article 19 provides that "any person has freedom of expression and tJiis right includes the right to seek, receive or spread information and ideas of any kind, regardless of borders, written or oral, printed or artistic or through any other means chosen" {OfB , no. 146/ Nov, 20, 1976)

Ratified by Romania trough the Law no.30/1994. Of W no. Î 35/May 31, 1994 and the Protocol 11 ratified by the Law no.79/!995 Of. M. no. 14 7/July 13. 1995. art. 10- "any person has the right to freedom of expression, this right includes freedom uf opin.on and freedom to receive or communicate infonnation or ideas without interférence i\»Ù\ pubfic authorities and regardless of borders".

' Radio diffusion according to Romanian law is the form ot tommunication with a general destination that ensures sonorou broadcasts This sense is no ' rorţisîer.! with t!ic or.e expies^ed in Ihe provisions of the International Convention on 'lelccommutiicaiions from 1982 elahorateU under the aegis of the International Union of Telecommunications destined to be reeeived direetly by the public, understanding by this the ensuring of TV sonorous broadcasts or ot other kwd radiodiffusion is differentiated as it has particular or gene.a'. destinations, the latter meluJing radiophony and TV.

fh,- au:iif. visucl comnmncGUon medxis broadcasting sounds anc imag-. ihi public" by rndicelectric \vave> or by cable, therefore lacking the. Je*tuft

The international regulations on human rights specify tHat e\erti?';: •' freedom of expression implies special obligations and responsibilities and tlie legal imposing of restrictions, tonnai rules, conditions and saiicii " Therefore, as well as any other freedom, the freedom of audiuv;.,] comniutiication is subject to limitations that are necessary for the protection t . v-general interest of a tlemocratic society,' in order to prevent -tr-use infringement on rights arsd liberties:

a) the freedom of audiovisua! speech cannot prejudice the dignity, hM>v

private life of the person, nor the right of the persoti to its ov«i image; b) the slandering of the coumry and of the nation, the instigatio'i

aggressive war, national, racial, class or religious hatred, instigatioi: discrimination, territorial separatism or public violence, as well as to obscene -y and manifestations are forbidden by the law,

c^ the interdiction to broadcast information that is secret or thai ' . prejudice national security .

Moreover, according to article 49 of the Constitution, restriction the exercising of this fireedom can be imposed by tlie law, in accordance the situation imposing such measures, without infringing on the existence f • right itself.

The existence of legal limits for the exercising of the ifreedom. cl ' audiovisual conimunication implies the responsibiiit/ for tlie breaking of these trn •

Here is a passage from the French constiUitional jurisprudence, per\ . , matching our system: "the !aw maker has the prerogative to reconcile, ma\ > : current technical conditions, the exercise of freedom of communication witi-: the inherent technical constraints of the means of audiovisual communicano . also with the constitutional purposes of protecting the public order, resoi • the freedom of the other and preserving the pluralist nature of the trends oj... • and cultural expression which these means of communication can infringe ( their considerable influence.

^ \ \ C ü v c r c not onl> direct broadcasting to ihe public, but also broadca.itüig to à .:•

who pays a fee in order to obtain the ngiit to a decodificaticn of the encr> pted images. ' See articles 30 and 3i of the Constitution and article 2 of the Law of the audicv.su.. ' The lega! penal responsibility according to article 39 of the Law of the audiovisi

to some provisions of the Penal Code, civil responsibility in cascade - art. 30, paiagraph Constitution and art. 2 (5) of the Law of the audiovisual.

' Decision no. 86-217 DC Sept. 18, 1986 cited in M, FROMONT, La gestio-contrôle publics de ta radio a de la television en France (delivered at the mtemaiional nn-itir Lausanne, May 4, '988); Publication t i ' I'lnstitu: suisse de droit compare - no 1(! : Schukhess Polygraphischer Verlag, Zürich, p 51.

THE FREEDOM OF tXPRi.SM'iN TilK^-UGri iC RAT.IO T". ' K A S i . > i

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5) The coned infarming

Article 31 of tiie Constitution refers to the rigj;* t'- HV infonned as: "ihe right of the individml to have access to any informaüon of public interest" 'Thh right can not be hindered and it is also included in, the inleniational regulations on human rights. An essential require.men' of information is correctness and

} ohíecíivity, both of th.ese features being 8 general obligation of all the roeans of 'P mass comm.unication.'^'

- These tvvo principles are the piUsxs of modem mass media. In order to insure their presence in the Romanian ruass media, the law instituted some guarantees. The main guai^ttees included in tlie law of audiovisual are listed below;

a) the freedopi io receive programs is not specifically provided but is . derived from the aggregate regulations of the law of the audiovisual. It is part of

' ' the freedom of expression provided in the European Convention on Human Rights, its specific confirmation is achieved through The Decision of The

i National Council of The Audiovisual (DCNA) no. 31/ 1998 on the ensuring of fi'ee reception and retransmission of the audiovisual programs (Official Monitor 169/ April 29, 1998 ) which complies with the European Legislation". Another

I guarantee in this sense is DCNA no.23/ 1999, on tlie translation into Romanian of some TV programs broadcasted in foreign languages (Official Monitor

••' 118/March23,1999). .; b) transparency is the obligation of the juridical persons authorized to j function within the audiovisual sphere - to inform the public on certain data;'"' Í c) the right of the individual to demand rectification and the right to

reply,-^^ Í d) juridical liability instituted in case of breech of the two principles;

e) pluralism is at the same time a guarantee of the freedom of expression • and of correct information but, even more than that, an essential value of the

'° Art. 31, paragraph 4 of the Constitution. " The European Convention on Transfrontier Television, signed on the 5th of May ¡989,

open for signing to the member states of the Council of Europe and to the signatories of the European Cultural Convention (art.4} and the Direction of ihe European Council. Oct 3,1989 on the coordination of certain legislative, managing and regiilating settlements referring to the sun-eillance of the broadcasting activity of the TV stations (89/552.'E.E,C. amended -n 1997) (art.2)

According to art. 10: the name, the headquarters, the name of the legal representative and of the three main associates or members of die .Adminisiraiive Board; the services they provide, the name of the creator of programs or broadcasts. Aspects of transparency; the contests for the broadcasting licenses in the form of public debates, the publishing of the list of candidates and .allowing opposition , fiirthcr regulations about the displaying? of the sign or of other graphical information in the proadcasts of the TV stations (DCNA no,41/April 24 1997).

On the basis of art. 32 of the law of the audiovisual it v.a. elaboraied the Decision about the approval of the mandatory norais for the grantiig ar'd proprr^r.immg of the right i M t p ? ;

within audiovisual programs (DCNA no. 175/1993, Of M 303.1993 completed b> DCNA r.o.42/i997. Of. M. 96 bis/1997'..

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democratic society. I recJ-.,i",: lo c-.-mmur.^cate thoughts and opinions would not cj.leciise li uie pat>Uc auuressetl by we n.cdns of audiovisual couu5tunicaii«>:! not i m e a choice of piogram-* vvliicl. guarantee the expression of uifft tendencies in the spirit of tlic ifriperativ e respect of the correctness of inionr.al: Flura'iism is the basis of independence and impartiaiit)- and it eas'jrcii opportunity for ihe citizens to fomi ihesr own image by access to any mean' w communication wtthout the inlct\'enlion of any external factor fpoliti> v* Snanciai. cultural).

J) the setting up of the CNA as a 'public autonomovj; authorin' defends the public interest in the audiox ssual field, field in which h has ihc r'. ^ to issue mandator)' norms, to control the fynctioning of the means of audiovi-; communication, also playing an essentia! role in their being set up.

C) The duality uf ihe amdiovhual

The transformation that took place in Romania in the last year'-, openec way for free mitiative. Gradually, the fi'ee initiative manifested it.- elf i.-i n audiovisual field as well, firs', in the radio broadcasting and then in the tele' i . (out of technical and fmancial reasonsi.The Constitution adopted ifi ' • acknowledges the existence of public or public means of public comniuiiicatic ,

The Law no.48/ 1992" which sets the bases of a new audiovisua! sy-'t, specifies thai the freedom of communication is acliieved through public or pr-means, both of them having the obiigatioT. of correct informing the public juridical persons from the audiovisua! field are the ones that conceive, pre t;; and broadcast programs aiio they may be:

- public persons: state instituticas, autonomous state compan:c Romanian commercial companies folly owned by the state;

- private juridical persons: Romanian commercial companies M. partially owned by Romanian or foreign private agents;

Therefore, any body from the audiovisual field must take one of the mentioned tonns. The current Romanian legislation does not allow the exis-r; of a third sector of the audiovisual - the free radio stations'' also n . - i commimitarian or associative, vviuch do not have commercial purposes ar;., considered "the ideal mean'; to manifest freedom of expression, freedom i . ••

Modified by the Law no t43,''2000 {Of .W. 3.'>4/.)uly 28, 2000) which .atifies ih • no.48/!999 which modified tne Law of the audiovisual no 48/1992

" in France they are financed through ta>iation of the revenues from publicity obtj . the other radio stations, in 1986 the "European Federation of Free Radios" was cieatcd, n , impose this concept which ensures the mediaiization of the citizen interests and the part;.. of the populaiion to the achieving of local progr.'uns, in the absence of any politii,a! cr c i > - ; influences (see RADU COŞ\RCA - "A i r ea opţiune - Radiourile ! ib«c" CS'A no. 2/1992, pp. 34-IV

r K S E D O M O , E X ^ ' A E S S i O ' ^ i F < s - • r. : .'.f, i

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and confronf: opinions, 3^uve pariic=i.aih'n to the ^SI - r f t^t Tiieir existence is demanded by rho Council of F«rope

lliC private sector tx the sudiovisual n;<'cf!ons actordaig ¡0 couunevciai principles It is con.pietely financed ft'om die selllnv; o' broadcasting time occupied o'j 3cvertisen"ents. The reason of b'sing of any priv'atc station !o create its o»»-n ai'diencc, as lajge as possible. Allowing the private sector to act exchisively a.ccovding to market rules \voiild meaii turping comrauaicatioB into a juijg-e Therefore, in order to ensure neecio?-'! r-f conmmiication and correa mfbi'ming of the public, the state instituted a sj'stem of licensing the juridical persons in the audiovisual field aod one of pennaijem conc-ol. iuiposing specific obligations, essential for the achievement cf the public intercat csfa democratic sc'':)iet>'.

Hi THZ' kjial pmvisbms regarding the licensing of jmidical permm in me audiovkua! field

According to the law/ of the audiovisual, classical audiovisual coramunication tlirough Hertzian waves,'* the receiving of audiovisual programs througii satellite and .audiovisual communication distributed by cable are subject to licensing.

Audiovisual communication is done on the basis of broadcast limit and of 1 tiie license issued by the C n A after the obtaining of a broadcasting license and oi ' a technical license. 2 Hie broadcasting license^'' includes all the categories of information thai s could make, according to their nature, the object of public broadcasting. As a

facility, the broadcasting licenses for juridical persons that provide autonomous 5r public services are issuedfreely arid without a contest.'"

All the documents necessary for the license and its issuing, as well as aiiy other documents concernkig the further activity of tlie license holder are kept in special conditions and access to them is limited, therefore tbev are not public.'^

""'^ Features of the license: ' s a) me broadcasting license is issued for a limned lime-span'" which \s. cd equal to the lime-span of the teciirii':ai iiceose,

™ An. 12-15 of the law of the audiovisual asia DCNA no. y/;^'92 about the adopiion c-"Nomris ccnceroitig the procedures of issuing broadcasting liecnsft? bv ?he CNA".

The content of the file and of the request of the candidates spect icc b> OCN.A 'VG no 9/1992 ctimpleted by DCNA no, i50:'i998, f ir 'he mode! oi" the rr Jgranic siru-'iure ?,id thv-

obligation to up-date iu'sce DCm no, 1!4/!99S; 158/!9v5, ;60'1995 iitid 36/1997 ''V " ADothei solution would \ASC been absurd becwiie the existence ci ihe public radio ?ao

..tto I V services h recognized by the Constitistion and The conti.si 'Wi'/.i C-A-ST mceilaun; -•,:on inrompar^h'c «>\h the nandatory prrsencf of ihes'^ publit scr-. 'cc-,

DCNA 60/19^7 - about the keeping •uid thi scce'^i u, lb'- cocurscniau-in ^Vtd at ih? '.Kiirt CNA for the obthiuing of the licenses and of the docua.eiits referring »0 fi iihci acth :iy o f t h e

iicensL 'loSders

M E f AN D i : 4 C 0 M '

b) the license is not iransmissibie^' and can be modified only by the CNA; c) the possibility of revoking the license as an administrative sanctic-.;

applied by the CNA. in case of ceasing the activity of broadcasting, il; termination of the license is mandatory.

Presently, the mass media is developing at a previously un.suspecied rats: As a result, the expression of opinions, their communication, the active or passive involvement in social events has become much easier and the audiovisual remain' the channel of mass communication which transmits the message within tlu-shortest time and with the greatest public impact. Within the framework created by increased life expectancy, increased time spending for the receiving of tiic message due to the existence of m.uitiple sources and individuation "4 contemporary society, there is an attempt to diminish the disfunctions and i.-, positively use the quality of the messages. That is because no contemporary staic can allow the broadcasting frequencies (an important resource) to be used ia i manner chaotic or damaging for the society on the whole. The general purpose >s that the expression of opinions and the providing of information be performed ÍÚ the spirit of tolerance, acknowledgment of the others, pluralism, promotion oí competence and professionalism, true values of mankind. These are the reaso is for which legal procedures of authorization and control of the audiovisual have been established. The features of this field depend not only on the legal framework, but also on cultural, geographical, historical and sociological traits ut each country - these being the determinants of the pluralism and quality of tht audiovisua! message.

2. The jseed of piabSfc service im the aradtovisual field - a gisarautet of freedoïB of expressJoia.

The question that may arise as a result of the above-mentioned is- Wh> within a sphere of "audiovisual liberalism", regulated by an established legal framework, by institutional control and by self-control in accordance with tiie

^" 7 years in the radio field and 9 years in television. After this period, a new c c i e î is organized. In France, the law from 1 February 1994 settled the presumption ot recondivSu n of the current authorizations for a m.aximum of two periods of 5 years each with some limits fs i J. ROGER, "Commentaire de la loi no. 94-88 du i-er février 1994 modifiant la loi du 30 «pt 1986 relative a la liberté de communication". L'actualité juridique - Droit admmis'ranj no. 4/1994, pp. 308-309; S. REGOURD, "Le statut des televisions privées en France et m Grande Bretagne: sur 2 conceptions opposées du libéralisme audiovisuel", Revue de droit fubii.

et de la science politique en France et a l'étranger, no. 6/1997, p. 1624. ^' For an understanding of the notion of non-transmissible license, CNA elaborateJ

DCNA 3/1998 -Of. M. \ 16/1998, tightly connected to that is the obligation to up-date the Am in the license file. Similar provisions can be encountered in France and USA £ TH. KRATTENMAKER, op.cit. pp. 35-36; 57-58).

I TUE FREEDOM Of E f f l i i S S S i O N T K M } ' G H ¡1 - , J ' n O ' - . l i ' • V « t ^ -c-v

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rules of the market, all the s ta tes iisAintain a public sector? Ltbe; alism faces some risks; tlie private sector functioning according to coranîe.'cia! principles (selling broadcasting time Ibv advertising and teiesl-topping) csnnijt cosnpleteiy guarantee the existence of piu'aiism, due to the iutluences of economic or political forces. The main risk-'i sre represented by tlie phenomenon of n.ass-media concentsation and that of 'media culture"'' associated with the leveling of aestlietic preferences and witlj the standarditaiion aiming st creating higher audience. The omnipotence of the media, it* capacity io distort and shape public opinion must not be exaggerated, because the public is not a passive receiver caught in a one way cominunication process. The public perceives the message more or less deliberately within a specific social and cultural frainework, crating a particular iiuerpresaii<~«n and use, even within limited pluralism.

In order to prevent the negative effects that can result from an excessive use of the trcedom of expression, the CNA must play an importât role in the buildirig of a general policy in what concerns tlie Romanian audiovisual sphere so that real pluralism., the manifestation of all majoritarian or minoritaiian opinions, social, cultural, religious, artistic and scientific tendencies be achieved.

Within this framework, the public sector has the difficult task (which is in fact its very reason of being) to ensure audiovisual services of maximal independence, impartiality and diversity, of high cultural and educational degree. Lacking commercial reasons of fimctioning, the public radio and television must maximize their fimction - that is to represent an open space for debate, diversity and pluralism in view of promoting the miversal values of mankind, the .sy.mbols of national identit>' and the achieving of national consensus.

^ ;| A. Defining public radio and TV service

'I Ihe public service is defined as an activity taken up by a public collectivity ^ in view of achieving a general purpose.^^ Starting from the definition given by 11 ProfessotPaul Neguleacu,'^'* the public service ensures the regular and continuous

satisfying of a general need while private initiative could only provide

" I 22 t^-j It has as effect" the creation and the satisfying of a false spiritual need, the personality, 1 * the opinions, the artistic tastes are rendered dull"; an intetlectua! lazniess is formed, the study c'-. necessary to the enjoyi.ng of real art is replaced vath cheap entertainment in which cultural forms

are reduced, condensed, compressed, retold, resignified; the audiovisual h,rs the pov-er to make a Fshow out of any information, wnich can have a negative effects such as manipulation or the

creation of false stars and events" (Herbert Marcuse cited by ION BRUGHEFX', Fenomenui - ; televiziune, Ed. Fundaţ-ei "Româiiia de mâine". Bucureşti, 1997, p. 93).

" GEORGES \ ^ D E L , PIERRE DEVOLVE. Droit administra!'/. Tome IL Presses i , UniversitaJres de France, 1992, p. 724 and GUSTAVE PUSER, Dron administraţi!, ed.. a ' Dalloz, 1993 p i34. e - " PAUL NEGULESCU, Tratat de drjpi administrativ, vol. 1, IV-th ed.. Ed, M-irvaa,

S934,p. 126.

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nu RŢRIJ'k" . .i/hf iitif'rnn icti: ; > : . í ' í . v . . :

pait oi" tfjc ijfü of ivsno ^sibiiir to Lî

-nsur fr o.:i.!e>Mng ut pi<büc !'>í(.">-íí- ,

iioveniincni is reápoFisibL i jr î;:e .-.irvi^:!^ oi' aH î ! î c n..f:sbţi- nc .-. • aiming tise iieveiopmiini oí ; k c p i í ^ s l c s ; , inu;iltvţi»a! and mo-a: rui:-»::.-individuali ;ind y\ the înaieri.:' vvc''-hc!<!¿. îhs wt-^oc na^Oí!.

As noted, in the intenvar ;>?rj..>u, the oevclopment ot ihe ctv . t rutw ñ -accompanied by the increase ci the nuniber oí public scn'iccs. Bfiid-i* essentia! and traditional sen'ices ¡.s't.vided by ine state (jiisnce. p . i t - I s . v. i national defense), othtr s;;rvicc:> ;e\c!op'íd: iubise tra^í^(x>i•,jl^,^, s % i,í a:;3istance, public ediicatson, P'íblic !:e>th!î sen 'Ce; ; , evea mduslrsui or ccBtfK-î. activities of high public interest or .iestinea to prcdu.e maxiinul p/ol'i rc Jt :< for public benefit. They we;-; milialK sought as optional, btn grcv tc t)e.--. !• inherent tc a "democratic and socia; state ot iaw".

For a long time, the audiovisual v»as th(-ugiiî to be a public s.-n «vc •-•'.•if-' tne monopoly of ihe state. Auciov iMmi liberalism allowed tins activity to be • tkt;.-up by private commercial companies, too. wiiile the itate m&Lu:.iiVio si, obligation to ensure public radio and TV sen-ices, guaranteeing their aulo-unny and editorial independence. 'Ih¿i/ubhc vneresi iha; is pursued oy m.un.s of the.o public services is the guaranteeing of correct information, tree 2C'c<* to information, expression of all opinions, ideas and fhoughts, the ensuring t>,; ,\a educational and culture role. Public imprest does not oppose private îngere-.;, cui represents z collection of convergent priv--ife interests acknowledged by the '.j

Public radio and 1" ' ser.'ices arc e-Miblished and confirmed F>V IHV Consüíuüon in article 31 (^), "their organizing i<nd control by the Parliair.ent^' being the object of organic law. These provisions are ais») menticned by article ^ S of the Law of the audiovisual. On the grounds o ' the previsi-ons of the 1 H\\ no.41/1991--, "The Romanian Rt-dio Company" (SRR) and "The Romáiii.ar Television Company" (SRT) vv-.'re founded a- ''public ser\'iccs of rijtioi,;i! interest". Their creation was realized b> reorganizing the fcrnser Romania' Radio-Television. The patrimony ct these companies was legally taken ovei Iror--' tlie former Romanian Padio-Television.

B. The object ofacdvhy

According to their speciile picilit, SRR and SRT ha -'e 'is •pain obiect f î activity the production of infomiation, ctdtuial, educational and entertainnicrü programs and their broadcasting through various networks of cotnnmrucatit:: Besides, these companies take up feiated activities such as:

The iaw on the o-gani,:ing k.-kJ funcrionuirf of th.e SRT - Of M. n u . ' 5 Vi994. mo.tific and completed by tne Law no I24.'I9';8, Of M. 2 2 7 / i v ' á

According art. 15 o í ' h e Í a%>, 4 i 1 994 .is it \ \ . ¡ ; ir.jdiO^d by the Lav> 12-1 190

TKi' FSEBDiJM OF EXPRESSION T r i X n U G « K B i iC i- • AND ' V s fe j< \ i rFS - , , ,

» managing their own artistic grouj^is, producing shows and fesitvals; » editing and distributing !.-ädio aîid TV guides, advertisement matesi:Us and

other materials related tu rmiio and TV activity; » research and design in concerning specific audio anu video techniques,

the prom.oiiun of lecliaical and scientific progress; " reprc5eB*ation in relation v/itli international organizations in the fjeld and

corsstruction of cooperation relaxions with foreign radio and T V compajiies; » ib.e safe preservation of audiovjsuai recordings and documents that are

significant for the national cultural patrimony; « producing, advertising activities by means of own programs and publications. The carrying out of any related activity, its devciopmeni or restriction, is

determined by the decision of the administrative board, by taking into account the necessity' for material and financial means needed for the production and the broadcasting of the programs.

C The functions of ihe radio and television public services

SRR and SRT have three main functions; information, education, entertainment.

a) Tne information function of an audiovisual channel is stronger than in the case of other communication means. According to the law, the two companies must present in an impartial manner the realities of the social, cultural, internal and external economic life. They also must ensure Ae correct informing of the readers in what concerns matters of public affairs.

The information must be accurately transmitted and the comments must be ^ / unbiased, ensuring equihbrium and moderation. The news and all the data must

be verified before broadcasting and their meaning cannot be distorted or made up by the way in which they are presented, by titles or comments.

'J j ; In order to ensure these fimctions, the law includes some specific provisions: • the right of the companies to broadcast or record, free of charge, the

public debates of public authorities^", rallies, demonstrations, meetings and of any other actions with free public access;

vV

in

In what concerns the presenting of the parliamentar)' activity' in tlie world, several solutions were chosen:

^.^ * the access of private TV and radio stations to parliaraentajy procedures or the recording of the meetings by an audiovisual mtemal service which provides afterwards the necessary materials to the

.•nt radio and TV stations (Australia, Brazilia,Grecia, M i a , Irlanda,Spania,MareaBritanie). ,111. * the recording and the producing cf programs destined to parliamentar>- activity (India,

Indonezia, Austria, Danemarca, Israel, etc.). • Parliamentary channels (USA - C - SPAN I and C - SPAN II financed by the industry

of cable TV, Coreea, Danemarca, India, Marea Britanie). . In France the Law of the 1st of I-ebram-> 1994 set the basis of a "PaiiiamcnUTy CNA."

belonging to the public sector. In all the situations, only the plenary sessions or the commission debates are recorded

4 0 s H r ' N O . , , : . . N ; ,

• broadcasting and recording, free of charge, of works of art oi any kin., perfonned, leaUzed or displayed in theaters or in public places, as well as cultural, artistic or sport events under the following three conditions: intbrrp^ti--' purposes, maximum t ime-span of three minutes and compliance to the iegis'fs-!, concerning copyright and related rights;

' the confidential character of the sources of the staff in th? iield guaranteed by the law. The disclosure of these sources can be made oniy on ' grounds of decisions of the Court if the breach of the public interes. BI^ be.!, proven;^^

o the information cannot be obtained but by legal and mcral m.ea!is and th ' , cannot be subject of personal use;

» ensuring broadcasting time for the parliamentary political parries u m t i -

the conditions of the l a w ; «the obligation to broadcast with priority and free of charge the messa

of public intere.st received from the Parliament, Presidency or Executive; «the access of the candidates to public radio and TV services is guarani', J

all throughout the period of the electoral campaign for general elections: as v\ the electoral campaign for local elections is free of charge at public r a d i O and i v stations.'^'

The informing must respect the limits provided by the Constitutior: anc" i} the law of the audiovisual.

b) The educational function In this respect, public radio and TV services interfere with the actions oi ali

the social institutions functioning in the sphere of culture, instruction, educati^r and spiritual life on the whole. By mxans of specific instruments, public service, offer programs that comply with the requirements of mass-media education.

The content of the programs must comply with specific professi ir&i standards, therefore SRR and SRT must "competently and intelligently pronioti-the values of Romanian language, of authentic cultural, scientific, national ana universal creation, of national minorities as well as democratic, civic mora! m I sportive values and militate for national unity and sovereignt>', human digni^ truth and justice".

There are specific provisions aimed at performing the educational s-.! cultural function, such as:

The European Court for Human Rights considers that the protection of the sources "one of the essential conditions of the freedom of the press"," the lack of such protection wo. -li stop the sources from supporting the press, that is the activity of informing the public on niaiit^ of public interest, thus affecting the possibility of the press to offer correct and rehabk information" - Case no. 16/1994, Goodwin vs.UK (MONICV MACOVEI, Libertăţi,. « exprimare ~ decizii ale CEDO, APADOR-CH, 1996 ).

^' On the grounds of art 32 (2) from the law of the audiovisual, the CNA esiablishe, i- : duration and the conditions for broadcasting the programmes during electoral campaigns.

THE FREEDOM Or EXPrXSSlON THROUGH PUBLIC RADIO AND r v St .Rv i t < ,

13 •*!

' measures of protection of the youths, the programs threatening the psychic, mora!, physical development of young people and children being allowed only between 0:00-5:00 A.M.;

• production of programs supporting the formation process of the youth from instractive, educational, moral, religious and patriotic point of view;

« SRR and SRT produce and broadcast programs in Romanian and in otfer foreign languages, addressing audience worldwide for the promotion of the image of Romania and of its domestic and foreign politics;

This "cultural mission aims at maintaining social cohesion iis well as at facilitating the integration of different segments of the society"?^'

c) The entertainment Junction: The CNA offers various entertairuneat options, being able to ensure, within

professional standards, a permanent show. But, in the case of public CNA, ; entertainment must be associated with artistic, sportive or cultera! values, quality ! and professionalism being required in this field, too. Entertainment is en.sured ' most often by the broadcasting of movies, contests, shou's, produced by the

'' companies themselves or not. All these functions must be simultaneously performed and must keep a

solid balance between spreading correct information and true cultural values, on one hand, and keeping and educating the public on the other hand. An efficient method would be a program policy that would impose quality of all the programs in a gradual manner, from programs for children to programs of high scientific

i'' character, from ample programs to the short commercial breaks. This is the only ~" way that can ensure "the education of the audience", the improvement of its

eii cultural universe and its being maintained at high standards.

I>) The principles of the public radio and TV services Iţe ,

hi what concems public radio and TV services, the following principles can be extracted from the current legislation: objectivity, equality, adjustment, continuity.

a) The principle of objectivity or neutrality: SRR and SRT are obliged to present in an objective and impartial manner

J the realities of domestic and international social, political and economic life. Only this way pluralism and correct information that are the reason of being of a public

_ audiovisual service can be achieved. In order to ensure objectivity, the broadcasted news tnat prove to be

j'jid '"^'^'^"rate must be rectified in conditions similar to the broadc:asting. The staff is obliged to keep their political impartiality in the piofessionai activity, thus

,b!e ensuring the respect for the diversity of opinions.

'A'

nd nd

See: SERGE ROBILLARD and EMANUEL MACHI-1. 7( .'•nn.jiii- ;/ ndu.r:, abordare legală, translated by L. Frunzele, Buletin CAS. no. 13 - 14; 19'/ii, i p 6 V,,

b) The principL of equality Hie pr'tncipie o ' equality is tightly comiectcd vrith the principle of r^hiccrssif

and ofiiy togetiner do they ensure plyahsm. Equality implies seves-al aspeets: I ) Equal access to the public stations without discrimination, of at '

cultural, social political, artistic, religious tendencies and opmior::. l b Constitution itself specifies that public TV and radio stations "mii^- j--;ir.-- . significant social and political gi-oups the exercising of the right K- t>T.:»d"ast;n time".(article 3 i, paragraph 5 ) .

in this respect, in regulations, but especially in practice, it is à!ffi.:ult t establish a balance between proportionalit}' and pluralism.

Equality can not be regarded as absolute, it regards oniy sindlar s='j!h*-.uii%, for distinct situations, distinct rales can be established, but proportioiiiiiit^' ma-be respected. However, proportionality is a subjective assessment related lo certain moment and to a certain stage in the evolution of social, cultural politics!, artistic or religious tendencies.

Pluralism does not presuppose that all tendencies must be given ths. chars' to equally manifest but to be expressed proportionally to their importance at 3 certain point, aspect connected to the protessionalism of the specialized staff, lis, informing about all the tendencies and opinions that exist in a society at a ceila!'-point is important. The public achieves in its turn, a processing of the data, and, T it considers it as necessary, an insight of the issue by demanding new pieces <•! information.

2) The equality of the users ofpublic service. The second aspect of equal;î> is connected to the public in general. The public must benefit from the servicr-, provided by SRR .^ND SRT under similar conditions. In the presence of necessary' technical means and consequently to the paying of a fee established Hy a decision of the executive for ail the categories of payers in conditions i equality and non- discrimination, each person may receive the public program.

c) The principle of adjustment The radio and TV public ser\'ices must not oppose progress. They m-ist

accept any changes imposed by public interest requirements and to embrine imposed technical innovation that allow an improvement of the activity'. C! .'A will take measures for the adjustment of the audiovisual sendees to the rj>¥ technical, cultural and social conditions.

Every year, SRR and SRT present to the Parliament reports on their acti\ii\. The Parliamentaiy commissions have the right to demand other reports on spec^lic issues, so that they are sure that the radio and TV public services fulfill the gen.ral objectives of their activity and that they fimction according to the current legal provisions. The conditions of functioning of the SRR and SRT may be moditlec b> the law maker, obligations may be imposed by the CNA, all these having as purpost the adjustment of the companies to the newly emerged conditions. Also, they have df« object of activity the promotion of the scientific and technical progress through she

THE PREEDOM OF EXPKESiiCN rHROl'GH Pi 'RUC HAO](J AND T / SEPA'i 'eS 4 1

elaboration of v/orks of research and design, specific to tlie audio and video techniques, for their own use or for otlier benetlciaiies.

d) The principle of continuity The principle of continuity presupposes that public services function in a

regular manner ensuring the achieving, at the highest level, of the public interest and the access of the users. The actual program depends, howe\'er, on the features of the public service, and it can be interrupted only in limited cases.

The law of organizing and functioning of SRR and SRT does not contain specific provisions about the length and the structure of the program. The Administrative Board of each company establishes the strateg}' and structure of the programs and the concrete conditions of functioning of the public serv'ice. !t also supervises the way the obligations in this respect are complied witii.

An important aspect of the continuity of the public service imposed by the doctrine and legislation is the special status regarding the exercising of the right to go on strike.

In the case of Romania, the article 40 ( 2) of the Constimtion specifies that "the law establishes the conditions and the limitations of the exercising of the right to go on strike, as well as the guarantees necessary to ensure essential services for the society".

Applying this constitutional provision, the law on collective work conflicts forbids the exerc'sing of the right to go on strike for certain categories of employees while for other categories it establishes the condition to ensure essential services. Thus, article 45 (4) specifically refers to the radio and TV services mentioning that in the radio and TV units "the strike is allowed with the condition that the organizers ensure essential seiyices but no less than one third out of the normal activity".

In the law on the organizing of the public radio and TV services, there is no specific provision about the strike or about the sen/ice that must necessarily be ensured under any circumstances. It is not established what "essential service" means and the general provision of "one third of the normal activity)" is hard to establish because, not only the length of the program must taken into account, but also its content. Only the combination of these two specific provisions can lead to the flilfillment of the mission of public service. Under these circumstances and taking into account its obligation to seive public interest in the audiovisual field, the CNA could make a decision.

3. Final considerations

The issue treated by this article is extremely broad and has a wide range of unphcatio.ris, in more juridical areas, but also in sociology, coninruiiication ..sciences

" The Law no. I5,'199i on the solving of coilecDve work cci ilicts iGf. M. V->!\9^\\,

breeching [his disposition is an infiaction

and other humaoitic A'.A;. she a t i d i o V i s K j ! must be approached bo(h at r>d ; u ' : :è an

i-)temat:ora,l jeveî; -.-•uie; idcx'Sio'^ i s a reaht}' of the cootf;ïî"pOi-fvr. a v . i p J

sv-\i-l îîC Slopped ' - u ' (.•:i:r. r ; ; * ! ! . i t d -n . i . ! U'litiirra i u a a n U -

The audio\-isuai dcvt,Cj,^ed iu Romania after 19H9 but the a i t ' il'd not a i v e it mtsch c i - p ^ J d - T a t i o n . aHhou-.,:!' it iS ihe i i e ld ' c important human right, are debaied and which csi^arcs t h t ••nibrming of the citizens. Moreover 'today md in the future i.'a ' -definitely prevail, eveti f thivaghoui lustory rcprcàsive fore/ ' ' « dommaîmg factors " .

The funct;oi!s r f lae audiovisuai ch;innc'< can only be h v <• . \ u good legal frairiework v.hich ensures pluralism, mdependt i _ ' >, ' professionalism. The Romaijian law-makor set the basis < \ - • audiovisual system consistent with European realities. Tbe du, - a • * t system ensures the fulfiilmeat of its social and culmrat fimcticn^ internal and external pluruiism.

However, we consider that there aie many aspects lha« requu'j intervention of the law-maker. We will meîition only some of them:

a) given the fact tliat the l a w of the public radio and TV services an< ; v law of the audiovisuc. c o \ e r only general aspects, detailed ret/'.'iat.un ? . commercial agents in the audiovisual sphere are needed.

b) special nonns designed to ensure free competition in the uudiov . ' field as well as m the mass-m.edia sphere on the whole .are needed m on' avoid the cieation of multmiedia conglomerates that would cast a sh-'io -doubt on pluralism and on the political a n d economic independence o f th - f <

c) there is a need t o clearly establish the powers of t h e CNA to c ) '-i establish norms and sanctions m relation with the public radio and fV s e r . taking into account t h e fimctioning principles of these services and the ex - a. of Parliamentar)' control:

d) the procedures of forming the executive bodies of the SRR and snust be revisited in order to ensure their real independence in reJalioii t" significant political forces in the cou-iliy,

e) concrete iiornis need t o be established on the deontology' of ihe p r c r i n ., so that the general quahty of the audiovisual services and the level of exige •.- • the public sector c a n be ensiired (tn;e "codes" of professionalism);

f) the restrictive regulation o f comm.ercial programs (advertism.' af •.> leleshopping) within the public sector is required while ensuring the cot«-'!.(. -that w i l l favor t h e sponsoring of this sector a n d the creation of a •^KÛVU»

framework of incentives for the sponsors of commercial, cultur?!. edua-'ii».- • civil, humanitarian a n d scienti<lc activities;

" A.TOFFLER rowenlvji. Puierea in mişcare. Bucureşti, Editura .^.nt^r i9y?

T W . FREEDOM f i - bXPRJESS'.Ot: TriROUOH PUBLIC RADIO AVD l V S L H " ' T S , r

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g) also needed is the establishment of qualitative norms m whaX concerns the programs of private radio stdtions (similar to the quotas for Romanian, cultural or independent productions existent and rnandaton/ for television and public radio);

h) the control of the financial resources of the jurtdical agtms in the audiovisual field is needed,

i) also needed is the specific legulation of the procedure of establishing and collecting the subscription fee for radio and TV so that fiscal evasion in the field be prevented;

j) the issuing of a law of the press that should include press delicts according to article 30, paragraph 8 of the Constitution is necessary;

I) also needed is the creation of norms regarding works in the field of cinematography (ranking in accordance with their quality, degi-ee of violence, etc.; the minimal time-span between presentation of movies in theaters until their broadcasting on television; the encouraging and promotion of Romanian film creation, etc.)