Analytical Papers | Access to information in Belarus

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ANALYTICAL PAPERS

ALES ANCIPIENKA. ACCESS TO INFORMATION IN BELARUS

As it stems from the Article19 of the Universal Declaration of Human Rights the right to access to information is two fold. On the one hand, this is the right of any citizen to receive information, and, on the other hand, this is the right of a journalist to seek, to have and to impart information, which is actually a key part of his or her profession.

Before going into detail as regards the topic of the conference, let me give you a very short insight into the Belarusian media situation as it was developing since 1991, the year of proclamation of the Belarusian independence.

1991—1994 was in fact the period of liberal transformations in the Belarusian society characterized by a rapid growth in a number of independent newspapers and in a relative liberalization of the state owned media. However, in a number of respects that was a quite strange situation. Against the general chaotic changes in the society and against the former Soviet ideological background the freedom of speech was much perceived to be something like a new shock or a sign of general decay.

The outcome of that situation was that the first freely and democratically elected Belarusian President started his presidency in 1994 with taking total control over the State Radio and TV Company as well as over all State owned newspapers.

Two imperfections of the Belarusian legislation made that possible. First, in that time the country had no Law on Press, which could guarantee the independent development of media. And second, the new Belarusian Constitution adopted after the breakdown of the Soviet Union did not contain any good definitions of presidential authorities.

Basically that was the beginning of the first phase of a quite complicated history of media characterized by numerous attempts by the authorities to limit the free flow of information in Belarus.

Let me talk also very briefly, by which means the authorities actually managed to significantly limit the circulation of independent media in Belarus.

First, these are special “legislative” means. For example, according to the Belarusian Law on Press the Ministry of Information of the Republic of Belarus without applying to the court can issue official warnings to the media. Three warnings issued, a newspaper or a radio station can be closed in a legal form. Suffice it to say that from the beginning of 2003 20 independent newspapers, both national and regional ones, were either closed by the authorities or disappeared because of financial reasons. This means that a half of independent press in the country has disappeared.

Second, these are means of economic discrimination. For example, in 2002 the subscription and delivery services of “Belposta”, a State monopolist, cost for independent press 45—60% more than for State one. And the general trend by the end of 1990s was that the costs for these services had been augmenting by 50—70% annually.

Third, this is a censorship. Since 1994 it has been a real practice that independent media have been obliged to be published with blanks.

Forth, this is the distribution problem artificially created by the authorities as regards some most influential independent newspapers.

Fifth, these are huge fines imposed to the newspapers to stop their publication.

And finally, sixth, this is the ban for some independent newspapers to be printed in the country.

The second phase, which is characteristic of the nowadays' Belarusian media situation, primarily consists in creating of the whole system of limiting the access to information for journalists working in independent media. “The latest time we, journalists, encounter much more often with the denial of access to information”,— stated one of the participants at the round table held in Minsk on July 6, 2004.

The real beginning of this system should be traced, however, to March 1998, when one of the Council of Ministers' department distributed a special letter addressed to all ministers and heads of all other state institutions. This is an extremely interesting document, which is worth being cited.

“In compliance with the letter of the President's Office of the Republic of Belarus dated March 17, 1998 #10/89 and based on instructions of the President of the Republic of Belarus as regards the reinforcement of propaganda against the publications in opposition press… we believe it necessary to take the measures as follows:

To ban to the ministries, State committees and other state organs to pass on to the non-State media official documents like edicts, decrees, orders etc.;

To make known to the officials that comments as regards the official documents to the opposition media are intolerable;

To ban to the State institutions and enterprises to publish advertising in opposition newspapers, which is the basic source of their financing”.

I am sure that the western colleagues might be surprised to the extreme to encounter with a similar case in their own countries. And it is quite natural that the question might be put whether there is any law in Belarus at all.

I have to say that we do have the Constitution and the law “On Press and Other Media”.

Let's apply to the Belarusian Constitution, namely the article 34. It is just this article says: “Citizens of the Republic of Belarus shall be guaranteed the right to receive, store and disseminate complete, reliable and timely information on the activities of state bodies, public associations, on political, economic and international life and on the state of environment”.

This right is also outspokenly confirmed in the Law “On Press and Other Media”. The Article 32 (part 2) of this law stipulates the right to access to information. And it says that the editorial bodies and publishers have the right to inquire about activity of state organs, organizations, public unions and their officials under both written and oral form. The heads of all these organs and institutions, their deputies as well as employees of press-services are obliged to submit such kind of information no later than 10 days after the inquiry had been addressed to.

As it is evident both the Belarusian Constitution and the law on “Press…” basically follow the two-fold right to access to information as it is defined in the Article19 of the Universal Declaration of Human Rights.

Moreover, this law does not contain any restrictions to access to information. The only exception pertains to the cases, when the information inquired by journalists contains State secret, commercial or any other secret protected by law.

At the same time the Law on Press (Article 32, part 2) makes officials responsible for untimely offer or refusal in submitting information as regards activity of state institutions, public organizations and their officials to mass media. If violated, the article previews fines imposed upon the officials.

The Article makes also citizens, officials, state organs or public organizations responsible for obstacles created to the lawful activity of editorial bodies, publishers and journalists in access to information and its distribution. This kind of violations is also subject to administrative punishment under the form of fines.

Thus, from the point of view of a written law the access to information is fully guaranteed in the Republic of Belarus and any violation of this right is to be punished. The situation is, however, different. No one official has been punished for this kind of violations yet. And many journalists have been complaining lately about the cases, when their right to access to information was violated.

Two questions arise then. How the legal system does it work in Belarus? And how is it possible that despite the law violations no one official has been punished?

To give an answer to these questions let us apply to different cases of violations monitored as well as to testimonies of Belarusian journalists. These are some examples.

In January 2002 the chairman of Pinsk city council Mrs.Kahanovich refused to submit to the journalist of the regional non-state newspaper “Brestskij kurier” information on the city budget for 2002. In February of the same year after the request by the local branch of the Belarusian Association of journalists to the city council to make the press conference on the city budget Mrs.Kahanovich explained that meetings with representatives of independent media “did not comply with her time table”.

In October 2002 journalists of Mahileu regional TV could not receive the official confirmation as regards the accident at one of the state enterprises, as a result of which some people died.

In November 2002 the judge of the Krychau city court removed from the hall of the open sitting of the court three journalists of the local independent newspaper “Volny horad”. Under the court's consideration there was the labor dispute between administration and workers of one of the largest city state enterprise.

Before giving more examples I want to draw your attention to the motivation on the basis of which journalists were refused access to information. I am sure that these cases may look totally inexplicable within the framework of western journalism standards and a real practice.

In the first case the lady from the city council was busy and she had no time to meet with journalists. In the second case the local authorities behaved themselves according to the long time practice not to make public any negative information, which could provoke people's indignation or protests. And the third case is a typical example of corporative or clan solidarity of representatives of city administration and administration of a state owned enterprise.

Behind all these cases there is, however, one and the same political reality of the country: the existent political system in Belarus does not know any real division of powers. And it means that the law being executed or not does not depend on the will of a citizen or journalist, whose rights are violated. Under authoritarian regime the law, being meant not so much to protect the rights of a citizen, but the interests of representatives of different authorities, just remains a symbolic accessory of power.

Let us be back also to the letter by one of the departments of the Council of Ministers, of which I have already told you. There is no doubt that this document is in a full contradiction with the Belarusian Constitution and the Law On Press.

Based on the above mentioned document and guided by the Constitution as well as by Law on Press Belarusian Association of journalists applied to the Prosecutor General requesting him to start the criminal case against the signatory of the letter.

What follows is the citation from the reply by the Prosecutor General's office sent to the Belarusian Association of journalists.

“The Prosecutor General considered your letter…

We make you known that according to the Constitution of the Republic of Belarus it is out of the competence of the Prosecutor General to put the execution of law by the Council of Ministers under supervision”. Signature.

To tell the truth, it is out of the competence of the Prosecutor General to put the execution of law by the Council of Ministers under supervision. However, the Belarusian Association of journalists requested to start a criminal investigation against a concrete person, who signed the letter, no matter he was a representative of the Council of Ministers.

Starting with 1998 Belarusian Association of journalists has monitored a number of cases when journalists of independent newspapers were not allowed to be present at different meetings at which the Head of the State took part.

Meantime the Law on press in no way limits the right to access to information as regards the activity of the President.

This is just an example. In July 2002 from 80 journalists accredited at the music festival in Vitebst only 10 journalists from the State media were allowed to be present at the opening ceremony with the participation of the President. And this is the ordinary practice, when the press service of the President defines the list of journalists, who are allowed or are not allowed to be present at this or that meeting.

Let me give you also one of the latest examples of violation of the right to access to information. On June 8, 2004 1 accredited journalist from independent newspaper and 3 accredited journalists from different news agencies were not allowed to be present at the open plenary session of the Belarusian Parliament. At the entrance to the Parliament they we stopped by people with no uniform, who refused to introduce themselves. When one of the deputies of the Parliament applied to its Chairman to have an explanation on the situation, the Chairman replied “These journalists were not allowed to come because some media cover the activity of the Parliament in a biased way”.

The most dangerous for the authorities are, however, TV journalists working for foreign TV stations. This is the testimony by another participant at the round table. “It falls into absurdity when not long ago a detachment of special forces meant to fight with criminal gangs insisted on an explanation from me which kind of questions I was planning to put people at the street. One from the detachment said: “If you will not say, which questions you want to put, I'll forbid you to shoot. And if I'll hear bad questions, I'll confiscate your film or camera… And there is no one day, when making appearance with camera I could not meet with representatives of this special service”.

The conditions, under which the journalists from regional or district independent newspapers work, sometimes are even worth. This is the testimony by the head of a regional publishing house. “As regards the local authorities it is impossible to receive an information from them at all. I have just taken with me one file regarding our correspondence with officials representing district authorities. We started corresponding with them in order to have accreditation for our journalists so that they could receive information... And it turned out that the officials did not know what the accreditation meant. And sometimes the answers by the officials were extremely interesting: “We have state newspapers, where we give answers to the questions put by people, where we cover the life in the district and we have no need in any other newspapers”.

Let me proceed now to the issue of enforcement possibilities of access to information the Belarusian journalists have. They are really insignificant. The answer of the Prosecutor General's office that I cited is good example of scare opportunities available. Moreover, the Belarusian legislation does not preview the institute of ombudsmen or information commissioners.

Although the Belarusian Parliament has a special commission on Human Rights and Mass Media, appeals by the Belarusian Association of journalists to this commission have never brought any positive results in terms of defending journalists' rights or at least initiating a discussion in the Parliament as regards violations of the Law on Press. It should be also known that the Belarusian Parliament has no real authorities of appointing or dismissing the government, Constitutional Court or Prosecutor General. This is a prerogative of the President. Moreover, the President appoints a part of the members of the upper chamber of the Parliament. As a result the Parliament is completely dependent upon him.

Now let me give a concrete example on how the legal system works in Belarus, if this is a case of violation of journalists' right to access to information. This is the testimony by Mr.Janukievich, head of a regional publishing house. “Lately the authorities started to remove our journalists from the halls of different meetings and conferences. For example, our correspondent was forcefully removed from the hall, where the district schoolteachers' conference took place… After the conference our publishing house received a letter from the district office of the Prosecutor General notifying us about the disciplinary investigation because of our journalist reportedly violated the law. In fact two teachers were forced to give false evidence on our journalist having reportedly made attempts to derange the work of the conference. On our turn, we appealed to the district office of the Prosecutor General to examine the case of force usage against the journalist. The reply of the district office of the Prosecutor General was as following “There was no incident at all because we have no witnesses”.

Applications by journalists and independent newspapers to the court as regards even much more serious cases than those connected with violations of the right to access to information rarely bring positive results. The fact is that the President appoints the court's judges and they are not voted. As a result the Belarusian court is not independent and it much reminds a part of an oppressive political system, which existed in the former Soviet Union.

In view of really scare opportunities the only remaining enforcement possibility for the Belarusian journalists is actually the defense of the right to access to information by spreading the information on violation of this right on newspaper pages, trough different appeals to international organizations and journalists associations in different countries.

Monitoring of cases of law violations is also one of the means to draw attention of the public opinion in the country. At the same time appeals to the court and Prosecutor General, even if they are ignored, cannot be underestimated. These appeals documented constitute a bulk of evidence to make a pressure upon the authorities.

As a result of the round table dedicated to the problems of access to information the Belarusian Association of journalists' Center for legal defense of journalist has taken a decision to prepare a booklet of instructions on how journalists should act in case their right to access to information is violated.

There is no doubt that this decision has been made in time, because the general situation as regards freedom of expression and access to information in Belarus gets worth.

In view of those limitations on the circulation of independent press in the country, of which I told at the very beginning and in view of the real obstacles in access to information the Belarusian society under its present state could be characterized to be informational blind society. And as a result of numerous limitations on the free flow of information the public opinion in Belarus is quit often guided not by reliable information, but by the new myths and old Soviet or post-Soviet propaganda stereotypes.

Copenhagen, August 2004

Access to information in Belarus