On his first official visit to Russia on 8 and 9 October, EU Special Representative for human rights Stavros Lambrinidis met Russian governmental officials, held discussions with Russian civil society organizations and opened and participated in the General Assembly of the EU-Russia Civil Society Forum on 9 October in Saint-Petersburg. Addressing the Forum, he said :
I will present to you 9 principles that, at least in my view, are essential for the protection and promotion of human and fundamental rights in any vibrant Democracy, and one, potentially surprising, conclusion:
1. In a democracy, it is the citizens that can monitor, observe, and judge daily the thoughts and actions of their governments; not the governments that can monitor, observe, and judge daily the thoughts and actions of their citizens. If the latter prevails instead of the former, democracy is at risk.
2. In order to fulfill their function of monitoring and judging, citizens must have free access to all information and debate on any topic, including to different opinions that might exist in society. They must also have the right to participate in and to formulate those debates, by freely assembling, associating, and expressing their views.
3. In a democracy, having access to all information and opinions available has as a prerequisite a free and independent press and a free and uncensored internet. Therefore, protecting journalists from harm and ensuring accountability and the punishment of all those who try to stifle free speech by intimidating journalists or simple citizens, by threatening them, arbitrarily jailing them, or let alone killing them, is a fundamental obligation of a democratic State.
4. The freedom of ordinary citizens to express themselves and to assemble freely, as inscribed in all international Human Rights conventions, makes sense especially when the opinions that they voice are controversial, unpopular, or even at times "offensive." If we all agreed in this room, we wouldn’t need protections of our "freedom of expression". It is for situations when we disagree – and especially when one of us has the power to intimidate or to silence the other in that disagreement – that the international community has provided for the "freedom of expression" provisions. To say that freedom of expression is OK, except when that expression questions or threatens my decisions, my authority, or my power, or when it exposes injustice, corruption, or human rights violations in my society, is to turn the freedom-of-expression protections on their head.
5. Free speech today occurs increasingly through the internet. Indeed, the internet has become the means through which a whole host of our fundamental rights are being increasingly exercised – freedom of expression, of association, of political participation, of information, of education, etc. This can only mean one thing: That all the "off-line" freedoms that citizens enjoy under international human rights treaties and under domestic laws must be equally protected and enjoyed "on-line."
If you cannot spy on me or violate my private life off-line, you shouldn’t be able to do it on-line. But some Authorities say: “Why? Are you a terrorist? Are you a child pornographer?” “No!”, I answer. “Then what do you care if we survey the internet? If you have nothing to hide, you have nothing to fear,” they argue. To which I answer, if you have nothing to hide, you don’t have a life. Get a life! We all have perfectly legal things that we do not want governments or private companies to know about. That’s what protection of privacy is all about.
6. Freedom of expression under international Human Rights law is not "absolute." It may be limited, BUT (and this is a huge "but") only exceptionally, only for strictly prescribed reasons and only as determined through strictly prescribed, independent, and transparent procedures. For example, I may not freely say things that are both intended to and can reasonably incite violence. But any measure taken against such speech must be absolutely necessary (not just “useful”) to legitimately prevent a larger harm, and proportionate to the committed offense, and clearly prescribed by prior law.
7. Who makes these delicate determinations described above? The answer is, these decisions must be made by an independent judiciary or other equivalent independent authority, and certainly not by the government or the police itself. The government cannot be both the accuser and the judge. Which is why, in a democracy, it is of paramount importance to have a judiciary that is independent, well trained, of high quality and integrity, and free from political influence. If such a judiciary does not exist, then even the most well drafted laws can become subject to abuse.
8. This danger is even greater when the laws in questions are poorly drafted, broad, or ambiguous, and thus particularly subject to arbitrary interpretation. Because then, something at least as bad as outright suppression of speech can occur, and that is the "chilling" of free speech – the making of individuals, out of fear of arbitrary prosecution, to remain voluntarily silent, to remain voluntarily at home instead of participating freely in the democratic life of a country. To go from fear to voluntary “submissiveness.”
9. NGOs are the watchdogs in any democratic society. They often fight against such "submissiveness." They are a major hub for democratic engagement of citizens in a huge variety of topics, many of which in the end often touch upon sensitive issues of government policy and practice. NGOs may be "nice" if they want to, but they don’t have to be nice; they are instead supposed to "push" democratic decision-making and the exercise of state or local power in the direction that their members deem appropriate.
In a democracy, a government is under no obligation, of course, to agree with all of the recommendations of NGOs. But it is under an absolute obligation to ensure that NGO functioning, participation in, and expression are fully free and unhindered by government or other intimidation or interference.
10. And now, for the "Potentially Surprising Conclusion": Almost everything I have told you here today I have already said in numerous speeches, as a former Member of the European Parliament and as a regular citizen, in Brussels, in Athens and throughout the EU, in the United States, and in many other countries and international organizations around the world. I’m not just saying them here, in St. Petersburg or in Russia.
Don’t get me wrong; I do not believe that all countries are equally vigilant in the protection of human and fundamental rights or equally "guilty" for placing them at risk; some countries are clearly better (or worse) in these respects than others. I am proud, for example, of Europe’s efforts to protect and promote fundamental rights. But I do believe that no country or organization is perfect, including the EU.
So I guess the bottom line is this: I could make these points, I could fight to change laws and practices that I believed to be wrong, and I could disagree and often clash with some European governments, both as a member of parliament and as a private citizen, without feeling intimidated, without being silenced, without being threatened, without fearing that someone would drag me to court, fine me, imprison me, or brand me a "traitor" to my country or to the EU for holding these views and for discussing them openly with others.
And, for a democracy, this may be, in the end, the ultimate test.
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