Freedom of Expression under Martial Law

Abstract

The article examines realising the right to freedom of expression under martial law conditions.
The author analyses the concept and content of the right to freedom of expression in accordance with national and international law. In particular, the guarantees of the right to freedom of expression in national constitutional law are analysed. Specific attention is paid to how national constitutions determine the conditions for restricting freedom of expression. Most national constitutions consider the right to freedom of expression as a relative right that may be subject to interference to protect national security, the privacy of others, the authority of justice, the protection of commercial property, etc. In the European Court of Human Rights practice, at least such elements of freedom of expression are highlighted:
• Freedom to adhere to views.
• Freedom to disseminate information and ideas.
• Freedom to receive information and ideas.
• Freedom of the press.
• Freedom of radio and television broadcasting.
The European Court of Human Rights’ approaches to derogation were studied. The latter is a case of a temporary retreat of the state from its obligations under the conditions of an «emergency situation that threatens the life of the nation». The majority of international human rights acts provide for the possibility of derogation. Article 15 of the Convention on the Protection of Human Rights and Fundamental Freedoms also allows derogation. However, the practice of the Court on derogation includes few cases which enable the formulation of certain general principles of derogation from obligations.
The European Court of Human Rights practice contains several cases related to the limitation of freedom of expression during the derogation. Most of these cases are related to the activities of the Turkish government after the coup attempt in July 2016. Analysing the cited cases (Şahin Alpay v. Turkey, Altan v. Turkey, Dareskizb LTD v. Armenia), the Court once again emphasises that freedom of expression plays a fundamental role in the existence of democracy. At the same time, despite the fact of security threats, the European Court of Human Rights believes that without dialogue within society, a democratic process as such is impossible. Therefore, the imposition of disproportionate restrictions on freedom of expression violates Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
Ukraine is also under martial law, which involves some restrictions on human rights. Ukraine has also applied for derogation. Ukraine still needs to develop a systematic practice regarding interference with freedom of expression under martial law. However, such interventions must be carried out in compliance with the requirements of the three-part test.