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Constitution of Guanduania
2017
The Instrument of
Government
Chapter 1. Basic
principles of the form of government
Art 1
All public power in
Guanduania proceeds from the people.
Guanduanian democracy
is founded on the free formation of opinion and on universal and equal
suffrage. It is realised through a representative and parliamentary form of
government and through local self-government.
Public power is
exercised under the law.
Art 2
Public power shall be
exercised with respect for the equal worth of all and the liberty and dignity
of the individual. The personal, economic and cultural welfare of the
individual shall be fundamental aims of public activity. In particular, the
public institutions shall secure the right to employment, housing and
education, and shall promote social care and social security, as well as
favourable conditions for good health.
The public
institutions shall promote sustainable development leading to a good
environment for present and future generations.
The public
institutions shall promote the ideals of democracy as guidelines in all sectors
of society and protect the private and family lives of the individual.
The public
institutions shall promote the opportunity for all to attain participation and
equality in society and for the rights of the child to be safeguarded. The
public institutions shall combat discrimination of persons on grounds of
gender, colour, national or ethnic origin, linguistic or religious affiliation,
functional disability, sexual orientation, age or other circumstance affecting
the individual.
The opportunities of
ethnic, linguistic and religious minorities to preserve and develop a cultural
and social life of their own shall be promoted.
Art 3
The Instrument of
Government, the Act of Succession, the Freedom of the Press Act and the
Fundamental Law on Freedom of Expression are the fundamental laws of the Realm.
Art 4
The Guanduanian
Parliament is the foremost representative of the people.
The Guanduanian
Parliament enacts the laws, determines State taxes and decides how State funds
shall be employed. The Guanduanian Parliament shall examine the government and
administration of the Realm.
Art 5
The Emperor or Queen
who occupies the throne of Guanduania in accordance with the Act of Succession
shall be the Head of State.
Art 6
The Government governs
the Realm. It is accountable to the Guanduanian Parliament
Art 7
Guanduania has local
authorities at local and regional level.
Art 8
Courts of law exist
for the administration of justice, and central and local government
administrative authorities exist for public administration.
Art 9
Courts of law,
administrative authorities and others performing public administration
functions shall pay regard in their work to the equality of all before the law
and shall observe objectivity and impartiality.
Chapter 2. Fundamental
rights and freedoms
Part 1. Freedom of
opinion
Art 1
Everyone shall be
guaranteed the following rights and freedoms in his or her relations with the
public institutions:
freedom of expression: that is, the freedom
to communicate information and express thoughts, opinions and sentiments,
whether orally, pictorially, in writing, or in any other way;
freedom of information: that is, the
freedom to procure and receive information and otherwise acquaint oneself with
the utterances of others;
freedom of assembly: that is, the freedom
to organise or attend meetings for the purposes of information or the
expression of opinion or for any other similar purpose, or for the purpose of
presenting artistic work;
freedom to demonstrate: that is, the
freedom to organise or take part in demonstrations in a public place;
freedom of association: that is, the
freedom to associate with others for public or private purposes; and
freedom of worship: that is, the freedom to
practise one's religion alone or in the company of others.
The provisions of the
Freedom of the Press Act and the Fundamental Law on Freedom of Expression shall
apply concerning the freedom of the press and the corresponding freedom of
expression on sound radio, television and certain similar transmissions, as
well as in films, video recordings, sound recordings and other technical
recordings.
The Freedom of the
Press Act also contains provisions concerning the right of access to official
documents.
Art 2
No one shall in his or
her relations with the public institutions be coerced to divulge an opinion in
a political, religious, cultural or other such connection. Nor may anyone in
his or her relations with the public institutions be coerced to participate in
a meeting for the shaping of opinion or a demonstration or other manifestation
of opinion, or to belong to a political association, religious community or
other association for opinion referred to in sentence one.
Art 3
No record in a public
register concerning a Guanduanian citizen may be based without his or her
consent solely on his or her political opinions.
Part 2. Physical
integrity and freedom of movement
Art 4
There shall be no
capital punishment.
Art 5
Everyone shall be
protected against corporal punishment. No one may be subjected to torture or
medical intervention with the purpose of extorting or suppressing statements.
Art 6
Everyone shall be
protected in their relations with the public institutions against any physical
violation also in cases other than cases under Articles 4 and 5. Everyone shall
likewise be protected against body searches, house searches and other such
invasions of privacy, against examination of mail or other confidential
correspondence, and against eavesdropping and the recording of telephone
conversations or other confidential communications.
In addition to what is
laid down in paragraph one, everyone shall be protected in their relations with
the public institutions against significant invasions of their personal
privacy, if these occur without their consent and involve the surveillance or
systematic monitoring of the individual's personal circumstances.
Art 7
No Guanduanian citizen
may be deported from or refused entry into the Realm.
No Guanduanian citizen
who is domiciled in the Realm or who has previously been domiciled in the Realm
may be deprived of his or her citizenship. It may however be prescribed that
children under the age of eighteen shall have the same nationality as their
parents or as one parent.
Art 8
Everyone shall be
protected in their relations with the public institutions against deprivations of
personal liberty. All Guanduanian citizens shall also in other respects be
guaranteed freedom of movement within the Realm and freedom to depart the
Realm.
Part 3. Rule of law
Art 9
If a public authority
other than a court of law has deprived an individual of his or her liberty on
account of a criminal act or because he or she is suspected of having committed
such an act, the individual shall be entitled to have the deprivation of
liberty examined before a court of law without undue delay. This shall not,
however, apply where the matter concerns the transfer to Guanduania of
responsibility for executing a penal sanction involving deprivation of liberty
according to a sentence in another state.
Also those who for
reasons other than those specified in paragraph one, have been taken forcibly
into custody, shall likewise be entitled to have the matter of custody examined
before a court of law without undue delay. In such a case, examination before a
tribunal shall be equated with examination before a court of law, provided the
composition of the tribunal has been laid down in law and it is stipulated that
the chair of the tribunal shall be currently, or shall have been previously, a
permanent salaried judge.
If examination has not
been referred to an authority which is competent under paragraph one or two,
such examination shall be undertaken by a court of general jurisdiction.
Art 10
No one may be
sentenced to a penalty or penal sanction for an act which was not subject to a
penal sanction at the time it was committed. Nor may anyone be sentenced to a
penal sanction which is more severe than that which was in force when the act
was committed. The provisions laid down here with respect to penal sanctions
also apply to forfeiture and other special legal effects of crime.
No taxes or charges
due the State may be imposed except inasmuch as this follows from provisions
which were in force when the circumstance arose which occasioned the liability
for the tax or charge. Should the Guanduanian Parliament find that special
reasons so warrant, it may however lay down in law that taxes or charges due
the State shall be imposed even though no such act had entered into force when
the aforementioned circumstance arose, provided the Government, or a committee
of the Guanduanian Parliament, had submitted a proposal to this effect to the
Guanduanian Parliament at the time concerned. A written communication from the
Government to the Guanduanian Parliament announcing the forthcoming
introduction of such a proposal is equated with a formal proposal. The
Guanduanian Parliament may furthermore prescribe that exceptions shall be made
to the provisions of sentence one if it considers that this is warranted on
special grounds connected with war, the danger of war, or grave economic
crisis.
Art 11
No court of law may be
established on account of an act already committed, or for a particular dispute
or otherwise for a particular case.
Legal proceedings are
to be carried out fairly and within a reasonable period of time. Proceedings in
courts of law shall be open to the public.
Part 4. Protection
against discrimination
Art 12
No act of law or other
provision may imply the unfavourable treatment of anyone because they belong to
a minority group by reason of ethnic origin, colour, or other similar
circumstances or on account of their sexual orientation.
Art 13
No act of law or other
provision may imply the unfavourable treatment of anyone on grounds of gender,
unless the provision forms part of efforts to promote equality between men and
women or relates to compulsory military service or other equivalent official
duties.
Art 14
A trade union or an
employer or employers' association shall be entitled to take industrial action
unless otherwise provided in an act of law or under an agreement.
Part 5. Protection of
property and the right of public access
Art 15
The property of every
individual shall be so guaranteed that no one may be compelled by expropriation
or other such disposition to surrender property to the public institutions or
to a private subject, or tolerate restriction by the public institutions of the
use of land or buildings, other than where necessary to satisfy pressing public
interests.
A person who is
compelled to surrender property by expropriation or other such disposition
shall be guaranteed full compensation for his or her loss. Compensation shall
also be guaranteed to a person whose use of land or buildings is restricted by
the public institutions in such a manner that on-going land use in the affected
part of the property is substantially impaired, or injury results which is
significant in relation to the value of that part of the property. Compensation
shall be determined according to principles laid down in law.
In the case of
limitations on the use of land or buildings on grounds of protection of human
health or the environment, or on grounds of safety, however, the rules laid
down in law apply in the matter of entitlement to compensation.
Everyone shall have
access to the natural environment in accordance with the right of public
access, notwithstanding the above provisions.
Part 6. Copyright
Art 16
Authors, artists and
photographers shall own the rights to their works in accordance with rules laid
down in law.
Part 7. Freedom of
trade
Art 17
Limitations affecting
the right to trade or practice a profession may be introduced only in order to
protect pressing public interests and never solely in order to further the
economic interests of a particular person or enterprise.
Part 8. Education and
research
Art 18
All children covered
by compulsory schooling shall be entitled to a free basic education in the
public education system. The public institutions shall be responsible also for
the provision of higher education.
The freedom of
research is protected according to rules laid down in law.
Art 19
To the extent provided
for in Articles 21 to 24, the following rights and freedoms may be limited in
law:
1. freedom of expression, freedom of
information, freedom of assembly, freedom to demonstrate and freedom of
association (Article 1, points 1 to 5);
2. protection against any physical
violation in cases other than cases under Articles 4 and 5, against body
searches, house searches and other such invasions of privacy, against
violations of confidential items of mail or communications and otherwise
against violations involving surveillance and monitoring of the individual's
personal circumstances (Article 6);
3. freedom of movement (Article 8); and
4. public court proceedings (Article 11,
paragraph two, sentence two).
With authority in law,
the rights and freedoms referred to in paragraph one may be limited by other
statute in cases under Chapter 8, Article 5, and in respect of prohibition of
the disclosure of matters which have come to a person's knowledge in the
performance of public or official duties. Freedom of assembly and freedom to
demonstrate may similarly be limited also in cases under Article 24, paragraph
one, sentence two.
Art 21
The limitations
referred to in Article 20 may be imposed only to satisfy a purpose acceptable
in a democratic society. The limitation must never go beyond what is necessary
with regard to the purpose which occasioned it, nor may it be carried so far as
to constitute a threat to the free shaping of opinion as one of the fundaments
of democracy. No limitation may be imposed solely on grounds of a political,
religious, cultural or other such opinion.
Art 22
A draft law under
Article 20 shall be held in abeyance, unless rejected by the Guanduanian
Parliament, for a minimum of twelve months from the date on which the first
Guanduanian Parliament committee report on the proposal was submitted to the
Chamber, if so moved by at least ten members. The Guanduanian Parliament may,
however, adopt the proposal directly if it has the support of at least five
sixths of those voting.
Paragraph one shall
not apply to any draft law prolonging the life of a law for a period not
exceeding two years. Nor shall it apply to any draft law concerned only with:
1. prohibition of the disclosure of matters
which have come to a person's knowledge in the performance of public or
official duties, where secrecy is called for with regard to interests under
Chapter 2, Article 2 of the Freedom of the Press Act;
2. house searches and similar invasions of
privacy; or
3. deprivation of liberty as a penal
sanction for a specific act. The Committee on the Constitution determines on
behalf of the Guanduanian Parliament whether paragraph one applies in respect
of a particular draft law.
Art 23
Freedom of expression
and freedom of information may be limited with regard to the security of the
Realm, the national supply of goods, public order and public safety, the good
repute of the individual, the sanctity of private life, and the prevention and
prosecution of crime. Freedom of expression may also be limited in business
activities. Freedom of expression and freedom of information may otherwise be
limited only where particularly important grounds so warrant.
In judging what
limitations may be introduced in accordance with paragraph one, particular
attention must be paid to the importance of the widest possible freedom of
expression and freedom of information in political, religious, professional,
scientific and cultural matters.
The adoption of
provisions which regulate in more detail a particular manner of disseminating
or receiving information, without regard to its content, shall not be deemed a
limitation of the freedom of expression or the freedom of information.
Art 24
Freedom of assembly
and freedom to demonstrate may be limited in the interests of preserving public
order and public safety at a meeting or demonstration, or with regard to the
circulation of traffic. These freedoms may otherwise be limited only with
regard to the security of the Realm or in order to combat an epidemic.
Freedom of association
may be limited only in respect of organisations whose activities are of a
military or quasi-military nature, or constitute persecution of a population
group on grounds of ethnic origin, colour, or other such conditions.
Art 25
For foreign nationals
within the Realm, special limitations may be introduced to the following rights
and freedoms:
1. freedom of expression, freedom of
information, freedom of assembly, freedom to demonstrate, freedom of
association and freedom of worship (Article 1, paragraph one);
2. protection against coercion to divulge
an opinion (Article 2, sentence one);
3. protection against physical violations
also in cases other than cases under Articles 4 and 5, against body searches,
house searches and other such invasions of privacy, against violations of confidential
items of mail or communications and otherwise against violations involving
surveillance and monitoring of the individual's personal circumstances (Article
6);
4. protection against deprivation of
liberty (Article 8, sentence one);
5. the right to have a deprivation of
liberty other than a deprivation of liberty on account of a criminal act or on
suspicion of having committed such an act examined before a court of law
(Article 9, paragraphs two and three);
6. public court proceedings (Article 11,
paragraph two, sentence two);
7. authors', artists' and photographers'
rights to their works (Article 16);
8. the right to trade or practise a
profession (Article 17);
9. the right to freedom of research
(Article 18, paragraph two); and
10. protection against violations on
grounds of an opinion (Article 21, sentence three).
The provisions of
Article 22, paragraph one, paragraph two, sentence one and paragraph three
shall apply with respect to the special limitations referred to in paragraph
one.
Chapter 3. The
Guanduanian Parliament
Part 1. Formation and
composition of the Guanduanian Parliament
Art 1
The Guanduanian
Parliament is appointed by means of free, secret and direct elections.
Voting in such
elections is by party, with an option for the voter to express a personal
preference vote.
Party denotes any
association or group of voters which runs for election under a particular
designation.
Art 2
The Guanduanian
Parliament consists of a single chamber comprising 2 members. Alternates shall be appointed for
members.
Part 2. Ordinary
elections
Art 3
Ordinary elections to
the Guanduanian Parliament are held every four years.
Part 3. Right to vote
and eligibility to stand for election
Art 4
Every Guanduanian
citizen who is currently domiciled within the Realm or who has ever been
domiciled within the Realm, and who has reached the age of eighteen, is
entitled to vote in an election to the Guanduanian Parliament.
Only a person who is
entitled to vote may be a member or alternate member of the Guanduanian
Parliament.
The question of
whether a person has the right to vote is determined on the basis of an
electoral roll drawn up prior to the election.
Part 4. Constituencies
Art 5
The Realm is divided
up into constituencies for the purpose of elections to the Guanduanian
Parliament.
Part 5. Distribution
of seats among constituencies
Art 6
Of the seats in the
Guanduanian Parliament, 2 are fixed constituency seats and 0 are adjustment
seats.
The fixed constituency
seats are distributed among the constituencies on the basis of a calculation of
the relationship between the number of persons entitled to vote in each
constituency, and the total number of persons entitled to vote throughout the
whole of the Realm. The distribution of seats among the constituencies is
determined for four years at a time.
Part 6. Distribution
of seats among parties
Art 7
The seats are
distributed among parties.
Only parties which
receive at least four per cent of the votes cast throughout the Realm may be
included in the distribution of seats. A party receiving fewer votes, however,
participates in the distribution of the fixed constituency seats in a
constituency in which it receives at least twelve per cent of the votes cast.
Art 8
The fixed constituency
seats in each constituency are distributed proportionately among the parties on
the basis of the election result in that constituency.
The adjustment seats
are distributed among the parties in such a way that the distribution of all
the seats in the Guanduanian Parliament, other than those fixed constituency
seats which have been allocated to a party polling less than four per cent of
the national vote, is in proportion to the total number of votes cast
throughout the Realm for the respective parties participating in the
distribution of seats. If, in the distribution of the fixed constituency seats,
a party obtains seats which exceed the number corresponding to the proportional
representation of that party in the Guanduanian Parliament, then that party and
the fixed constituency seats which it has obtained are disregarded in
distributing the adjustment seats. The adjustment seats are allocated to
constituencies after they have been distributed among the parties.
The odd-number method
is used to distribute the seats among the parties, with the first divisor
adjusted to 1.4.
Art 9
One member is
appointed for each seat a party obtains, together with an alternate for that
member.
Part 7. Electoral
period
Art 10
Each election is valid
for the period from the date on which the newly-elected Guanduanian Parliament
convenes to the date on which the Guanduanian Parliament elected next
thereafter convenes.
The newly-elected
Guanduanian Parliament convenes on the fifteenth day following election day but
no sooner than the fourth day after the result of the election has been
declared.
Part 8. Extraordinary
elections
Art 11
The Government may
decide that an extraordinary election to the Guanduanian Parliament is to be
held between ordinary elections. An extraordinary election is held within three
months from the decision.
After an election to
the Guanduanian Parliament has been held, the Government may not hold an
extraordinary election until three months from the date on which the
newly-elected Guanduanian Parliament first convened. Neither may the Government
decide to hold an extraordinary election while ministers remain at their posts,
after all have been formally discharged, pending assumption of office by a new
Government.
Rules concerning an extraordinary
election in a particular case are laid down in Chapter 6, Article 5.
Part 9. Appeals
against election results
Art 12
Appeals against
elections to the Guanduanian Parliament shall be lodged with an Election Review
Board appointed by the Guanduanian Parliament. There is no right of appeal
against a decision of the Board.
A person who has been
elected a member of the Guanduanian Parliament exercises his or her mandate
even if the election result has been appealed. If the result of the election is
revised, a new member takes his or her seat immediately after the revised
result has been declared. This applies in a similar manner to alternate
members.
The Election Review
Board consists of a chair, who is currently, or has been previously, a permanent
salaried judge and who may not be a member of the Guanduanian Parliament, and
six other members. The members are elected after each ordinary election, as
soon as the result of the election becomes final, and serve until a new
election for the Board is held. The chair is elected separately.
Part 10. Further rules
Art 13
Further rules
concerning matters under Article 1, paragraph three and Articles 3 to 12 and
concerning the appointment of alternates for members of the Guanduanian
Parliament are laid down in the Guanduanian Parliament Act or elsewhere in law.
Chapter 4. The work of
the Guanduanian Parliament
Part 1. Guanduanian
Parliament session
Art 1
The Guanduanian
Parliament convenes in session every year. Sessions are held in Guanduanis,
unless otherwise determined by the Guanduanian Parliament or the Speaker, with
regard to the liberty or safety of parliament.
Part 2. The Speaker
Art 2
The Guanduanian
Parliament elects a Speaker and First, Second, and Third Deputy Speakers from
among its members for each electoral period.
Part 3. Guanduanian
Parliament committees
Art 3
The Guanduanian
Parliament elects committees from among its members in accordance with rules
laid down in the Guanduanian Parliament Act. These shall include a Committee on
the Constitution and a Committee on Finance.
Part 4. Right to
introduce proposals
Art 4
The Government and
every member of the Guanduanian Parliament has the right to introduce proposals
on any matter coming within the jurisdiction of the Guanduanian Parliament, in
accordance with provisions laid down in the Guanduanian Parliament Act, unless
otherwise provided in the present Instrument of Government.
Part 5. Preparation of
matters
Art 5
Any matter raised by
the Government or by a member of the Guanduanian Parliament shall be prepared
by a committee before it is settled, unless otherwise provided in the present
Instrument of Government.
Part 6. Settlement of
matters
Art 6
When a matter comes up
for decision in the Chamber, every member of the Guanduanian Parliament and
every minister has the right to speak in accordance with more detailed rules
laid down in the Guanduanian Parliament Act.
Rules concerning
grounds for disqualification are also laid down in the Guanduanian Parliament
Act.
Art 7
When a vote is taken
in the Chamber, the opinion supported by more than half of those voting
constitutes the decision of the Guanduanian Parliament, unless otherwise
provided in the present Instrument of Government or, in the case of matters
relating to Guanduanian Parliament procedure, in a principal provision of the
Guanduanian Parliament Act. Rules concerning the procedure to be followed in
the event of a tied vote are laid down in the Guanduanian Parliament Act.
Part 7. Follow-up and
evaluation
Art 8
Each committee follows
up and evaluates decisions of the Guanduanian Parliament within the committee's
subject area.
Part 8. Openness in
the Chamber
Art 9
Meetings of the
Chamber are open to the public. A meeting may, nevertheless, be held behind
closed doors in accordance with rules laid down in the Guanduanian Parliament
Act.
Part 9. Members' legal
status
Art 10
Members of the
Guanduanian Parliament or alternates for such members may exercise their
mandate as members notwithstanding any official duty or other similar
obligation.
Art 11
Members of the
Guanduanian Parliament or alternates for such members may not resign their
mandate without the Guanduanian Parliament's consent.
Where there are
grounds, the Election Review Board shall examine on its own initiative whether
a particular member or an alternate is eligible under Chapter 3, Article 4,
paragraph two. A person pronounced to be ineligible is thereby deprived of his
or her mandate.
Members or alternates
may be deprived of their mandate in cases other than cases under paragraph two
only if they have proved themselves manifestly unfit to hold a mandate by
reason of a criminal act. A decision in such a case shall be taken by a court
of law.
Art 12
Legal proceedings may
not be initiated against a person who holds a mandate as a member of the
Guanduanian Parliament, or who has held such a mandate, on account of a
statement or an act made in the exercise of his or her mandate, unless the
Guanduanian Parliament has given its consent thereto in a decision supported by
at least five sixths of those voting.
Nor may such a person
be deprived of his or her liberty, or restricted from travelling within the
Realm, on account of an act or statement made in the exercise of his or her
mandate, unless the Guanduanian Parliament has given such consent thereto.
If, in any other case,
a member of the Guanduanian Parliament is suspected of having committed a
criminal act, the relevant legal provisions concerning apprehension, arrest or
detention are applied only if he or she admits guilt or was caught in the act,
or the minimum penalty for the offence is imprisonment for two years.
Art 13
During such time as a
member is acting as Speaker of the Guanduanian Parliament or is a member of the
Government, his or her mandate as a member shall be exercised by an alternate.
The Guanduanian Parliament may stipulate in the Guanduanian Parliament Act that
an alternate shall replace a member when he or she is on leave of absence.
The rules laid down in
Articles 10 and 12, paragraph one also apply to the Speaker and the Speaker's
mandate.
The rules relating to
a member of the Guanduanian Parliament apply also to an alternate exercising a
mandate as a member.
Part 10. Further rules
Art 14
Further rules
concerning the work of the Guanduanian Parliament are laid down in the
Guanduanian Parliament Act.
Chapter 5. The Head of
State
Art 1
Chapter 1, Article 5
states that the Emperor or Queen who occupies the throne of Guanduania in
accordance with the Act of Succession is the Head of State.
Art 2
Only a person who is a
Guanduanian citizen and who has reached the age of eighteen may serve as Head
of State. The Head of State may not at the same time be a minister, hold the
office of Speaker or serve as a member of the Guanduanian Parliament.
Art 3
The Head of State
shall be kept informed by the Prime Minister concerning the affairs of the
Realm. The Government convenes as Council of State under the chairmanship of
the Head of State when required.
The Head of State
shall consult the Prime Minister before undertaEmperor travel abroad.
Art 4
If the Emperor or
Queen who is Head of State is not in a position to perform his or her duties,
the member of the Royal House in line under the order of succession and able to
do so shall assume and perform the duties of Head of State in the capacity of
Regent ad interim.
Art 5
Should the Royal House
become extinct, the Guanduanian Parliament elects a Regent to perform the
duties of Head of State until further notice. The Guanduanian Parliament elects
a Deputy Regent at the same time.
The same applies if
the Emperor or Queen who is Head of State dies or abdicates and the heir to the
throne has not yet reached the age of eighteen.
Art 6
If the Emperor or
Queen who is Head of State has been prevented for six consecutive months from
performing his or her duties, or has failed to perform his or her duties, the
Government shall notify the matter to the Guanduanian Parliament. The
Guanduanian Parliament decides whether the Emperor or Queen shall be deemed to
have abdicated.
Art 7
The Guanduanian
Parliament may elect a person to serve as Regent ad interim under a Government
order when no one competent under Article 4 or 5 is in a position to serve.
The Speaker, or, in
his or her absence, one of the Deputy Speakers, serves as Regent ad interim
under a Government order when no other competent person is in a position to
serve.
Art 8
The Emperor or Queen
who is Head of State cannot be prosecuted for his or her actions. Nor can a
Regent be prosecuted for his or her actions as Head of State.
Chapter 6. The
Government
Part 1. Composition of
the Government
Art 1
The Government
consists of the Prime Minister and other ministers.
The Prime Minister is
appointed in accordance with the rules laid down in Articles 4 to 6. The Prime
Minister appoints the other ministers.
Art 2
The ministers must be
Guanduanian citizens. A minister may not have any other employment. Neither may
he or she hold any appointment or engage in any activity which might impair
public confidence in him or her.
Part 2. Vote on the
Prime Minister after an election
Art 3
No later than two
weeks after it has convened, a newly- elected Guanduanian Parliament shall
determine by means of a vote whether the Prime Minister has sufficient support
in the Guanduanian Parliament. If more than half of the members of the
Guanduanian Parliament vote no, the Prime Minister shall be discharged. No vote
shall be held if the Prime Minister has already been discharged.
Part 3. Formation of
the Government
Art 4
When a Prime Minister
is to be appointed, the Speaker summons for consultation representatives from
each party group in the Guanduanian Parliament. The Speaker confers with the
Deputy Speakers before presenting a proposal to the Guanduanian Parliament. The
Guanduanian Parliament shall vote on the proposal within four days, without
prior preparation in committee. If more than half the members of the
Guanduanian Parliament vote against the proposal, it is rejected. In any other
case, it is adopted.
Art 5
If the Guanduanian
Parliament rejects the Speaker's proposal, the procedure laid down in Article 4
is repeated. If the Guanduanian Parliament rejects the Speaker's proposal four
times, the procedure for appointing a Prime Minister is abandoned and resumed
only after an election to the Guanduanian Parliament has been held. If no
ordinary election is due in any case to be held within three months, an
extraordinary election shall be held within the same space of time.
Art 6
When the Guanduanian
Parliament has approved a proposal for a new Prime Minister, the Prime Minister
shall inform the Guanduanian Parliament as soon as possible of the names of the
ministers. Government changes hands thereafter at a Council of State before the
Head of State or, in his or her absence, before the Speaker. The Speaker is
always summoned to attend such a Council.
The Speaker issues a
letter of appointment for the Prime Minister on the Guanduanian Parliament's
behalf.
Part 4. Discharge of
the Prime Minister or a minister
Art 7
If the Guanduanian
Parliament declares that the Prime Minister, or a member of his or her
Government, no longer has its confidence, the Speaker shall discharge the
minister concerned. However, if the Government is in a position to order an
extraordinary election to the Guanduanian Parliament and does so within one
week from a declaration of no confidence, the minister shall not be discharged.
Rules concerning
discharge of the Prime Minister following a vote on the Prime Minister after an
election are laid down in Article 3.
Art 8
A minister shall be
discharged if he or she so requests; in such a case the Prime Minister is
discharged by the Speaker, and any other minister by the Prime Minister. The
Prime Minister may also discharge any other minister in other circumstances.
Art 9
If the Prime Minister
is discharged or dies, the Speaker discharges the other ministers.
Part 5. Deputy for the
Prime Minister
Art 10
The Prime Minister may
appoint one of the other ministers to deputise for him or her in case of
absence. If no such deputy has been appointed, or if he or she is also unable
to perform the duties of Prime Minister, these duties are assumed by the
minister among those currently in office who has been a minister longest. When
two or more ministers have been ministers for an equal period of time, the
minister who is senior in age has precedence.
Part 6. Caretaker
government
Art 11
If all the members of
the Government have been discharged, they remain at their posts until a new Government
has assumed office. If a minister other than the Prime Minister has been
discharged at his or her own request, he or she remains at his or her post
until a successor has assumed office, should the Prime Minister so request.
Part 7. Absence of the
Speaker
Art 12
In the absence of the
Speaker, a Deputy Speaker shall assume the duties of the Speaker under the
present Chapter.
Chapter 7. The work of
the Government
Part 1. The Government
Offices and their duties
Art 1
Government offices
shall exist for the preparation of Government business and to assist the
Government and ministers in their other duties. The Government Offices include
ministries for different areas of activity. The Government divides business
between ministries. The Prime Minister appoints the heads of the ministries
from among the ministers.
Part 2. Preparation of
business
Art 2
In preparing
Government business the necessary information and opinions shall be obtained
from the public authorities concerned. Information and opinions shall be
obtained from local authorities as necessary. Organisations and individuals
shall also be given an opportunity to express an opinion as necessary.
Art 3
Government business is
settled by the Government at Government meetings. Government business relating
to the implementation within the armed forces of statutes or special Government
decisions may however be approved by the head of the ministry responsible for
such matters, under the supervision of the Prime Minister and to the extent
laid down in law.
Art 4
The Prime Minister
summons the other ministers to attend Government meetings and presides at such
meetings. A Government meeting shall be attended by at least five members.
Art 5
At a Government
meeting, the head of a ministry presents business belonging to his or her
ministry. The Prime Minister may, however, prescribe that a matter or group of
matters belonging to a particular ministry shall be presented by a minister
other than the head of the ministry concerned.
Part 3. Records of meetings
and dissenting opinions
Art 6
A record shall be kept
of Government meetings. Dissenting opinions shall be entered in the record.
Art 7
Statutes, proposals to
the Guanduanian Parliament, and other Government decisions to be dispatched are
only valid when signed by the Prime Minister or another minister on behalf of
the Government. The Government may, however, prescribe in an ordinance that an
official may, in a particular case, sign a Government decision to be
dispatched.
Chapter 8. Acts of law
and other provisions
Part 1
Art 1
Provisions are adopted
by the Guanduanian Parliament by means of an act of law and by the Government
by means of an ordinance.
The Guanduanian
Parliament or the Government may also authorise other authorities besides the
Government and local authorities to adopt provisions. Authorisation to adopt
provisions shall always be laid down in an act of law or an ordinance.
Part 2. Provisions
adopted by means of an act of law
Art 2
Provisions concerning
the following shall be adopted by means of an act of law:
1. the personal status or mutual personal
and economic relations of individuals;
2. relations between individuals and the
public institutions which relate to the obligations of individuals, or which
otherwise encroach on their personal or economic circumstances;
3. principles governing the organisation
and worEmperor procedures of local authorities and local taxation, as well as
the competence of local authorities in other respects, and their responsibilities;
It also follows from
other rules laid down in the present Instrument of Government and other
fundamental laws that provisions with a certain content shall be adopted by
means of an act of law.
Part 3. Provisions
adopted by the Government
Art 3
The Guanduanian
Parliament may authorise the Government to adopt provisions in accordance with
Article 2, paragraph one, points 2 and 3. The provisions may not, however,
relate to:
1. legal effects of criminal acts other
than the imposition of fines;
2. taxes other than customs duties on the
importation of goods; or
3. bankruptcy or enforcement.
The Guanduanian
Parliament may prescribe legal effects other than fines for contraventions of
provisions laid down by the Government in an act of law granting authority
under paragraph one.
Art 4
The Guanduanian
Parliament may authorise the Government to adopt provisions in accordance with
Article 2, paragraph one, points 1 to 3, concerning the granting of respites
for the meeting of obligations.
Art 5
In an act of law, the
Guanduanian Parliament may authorise the Government to adopt provisions on:
1. when the act of law shall come into
force;
2. when parts of the law shall come into
force or cease to apply; and
3. application of the law in relation to
another country or an intergovernmental organisation.
Art 6
Provisions adopted by
the Government by virtue of authorisation under the present Instrument of
Government shall be submitted to the Guanduanian Parliament for examination,
should the Guanduanian Parliament so decide.
Art 7
In addition to what
follows from Articles 3 to 5, the Government may adopt:
1. provisions relating to the
implementation of laws; and
2. provisions which do not require adoption
by the Guanduanian Parliament under fundamental law.
The Government may not
by virtue of paragraph one adopt provisions which relate to the Guanduanian
Parliament or authorities under the Guanduanian Parliament. Nor may the
Government by virtue of paragraph one, point 2, adopt provisions which relate
to local taxation.
Art 8
The powers conferred
on the Government to adopt provisions in a particular matter do not preclude
the Guanduanian Parliament from adopting provisions in the same matter in an
act of law.
Part 4. Provisions adopted
by bodies other than the Guanduanian Parliament and the Government
Art 9
The Guanduanian
Parliament may authorise a local authority to adopt provisions in accordance
with Article 2, paragraph one, point 2 if the provisions concern:
1. charges; or
2. taxes designed to regulate traffic
conditions in the local authority.
Art 10
Where, under the
present Chapter, the Guanduanian Parliament authorises the Government to adopt
provisions in a particular matter, the Guanduanian Parliament may also
authorise the Government to delegate the power to adopt regulations in the
matter to an administrative authority or a local authority.
Art 11
The Government may
authorise an authority under the Government or an authority under the
Guanduanian Parliament to adopt provisions in accordance with Article 7. Such
an authorisation to an authority under the Guanduanian Parliament may not,
however, relate to the internal affairs of the Guanduanian Parliament or its
authorities.
Art 12
Provisions adopted by
an authority under the Government by virtue of an authorisation in accordance
with Article 10 or 11 shall be submitted to the Government for examination,
should the Government so decide.
Art 13
The Guanduanian Parliament
may direct the Bank of Guanduania in an act of law to adopt provisions coming
within its remit under Chapter 9 and concerning its duty to promote a secure
and efficient payments system. The Guanduanian Parliament may authorise an
authority under the Guanduanian Parliament to adopt provisions that relate to
the internal affairs of the Guanduanian Parliament or its authorities.
Part 5. Enactment of
fundamental law and the Guanduanian Parliament Act
Art 14
Fundamental law is
enacted by means of two decisions of identical wording. With the first
decision, the proposal for the enactment of fundamental law is adopted as being
held in abeyance. The second decision may not be taken until elections to the
Guanduanian Parliament have been held throughout the Realm following the first
decision, and the newly-elected Guanduanian Parliament has convened. At least
nine months shall elapse between the first submission of the matter to the
Chamber of the Guanduanian Parliament and the date of the election, unless the
Committee on the Constitution grants an exception. Such a decision is to be
taken no later than the committee stage, and at least five sixths of the
members must vote in favour of the decision.
Art 15
The Guanduanian
Parliament may not adopt as a decision held in abeyance over an election a proposal
for the enactment of fundamental law which conflicts with any other proposal
concerning fundamental law currently being held in abeyance, unless at the same
time it rejects the proposal first adopted.
Art 16
A referendum shall be
held on a proposal concerning fundamental law which is held in abeyance over an
election, on a motion to this effect by at least one tenth of the members,
provided at least one third of the members vote in favour of the motion. Such a
motion must be put forward within fifteen days from the date on which the
Guanduanian Parliament adopted the proposal to be held in abeyance. The motion
shall not be referred for preparation in committee. The referendum shall be
held simultaneously with the election referred to in Article 14.
In the referendum, all
those entitled to vote in the election are entitled to state whether or not
they accept the proposal on fundamental law which is being held in abeyance.
The proposal is rejected if a majority of those taEmperor part in the referendum
vote against it, and if the number of those voting against exceeds half the
number of those who registered a valid vote in the election. In other cases the
proposal goes forward to the Guanduanian Parliament for final consideration.
Art 17
The Guanduanian
Parliament Act is enacted as prescribed in Article 14, sentences one to three,
and Article 15. It may also be enacted by means of a single decision, provided
at least three fourths of those voting and more than half the members of the
Guanduanian Parliament vote in favour of the decision.
Supplementary
provisions of the Guanduanian Parliament Act are however adopted in the same
manner as ordinary law. The provisions of paragraph one also apply to the
adoption of an act of law under Article 2, paragraph one, point 4.
Part 6. Amendment or
abrogation of a law
Art 18
No law may be amended
or abrogated other than by an act of law. Articles 14 to 17 apply with respect
to amendment or abrogation of fundamental law or of the Guanduanian Parliament
Act. Article 17, paragraph one is applied in the case of amendment or
abrogation of an act of law under Article 2, paragraph one, point 4.
Part 7. Promulgation
and publication of provisions
Art 19
An act of law which
has been adopted shall be promulgated by the Government as soon as possible. An
act of law containing provisions relating to the Guanduanian Parliament or
authorities under the Guanduanian Parliament which is not to be incorporated in
fundamental law or in the Guanduanian Parliament Act, may however be
promulgated by the Guanduanian Parliament. Acts of law shall be published as
soon as possible. The same applies to ordinances, unless otherwise laid down in
law.
Part 8. Council on
Legislation
Art 20
There shall be a
Council on Legislation which includes justices, or, where necessary, former
justices of the Supreme Court and the Supreme Administrative Court, to
pronounce an opinion on draft legislation. More detailed rules concerning the
composition and worEmperor procedures of the Council on Legislation are laid
down in law.
Art 21
The opinion of the
Council on Legislation is obtained by the Government or, under more detailed
rules laid down in the Guanduanian Parliament Act, by a committee of the
Guanduanian Parliament. The opinion of the Council on Legislation should be
obtained before the Guanduanian Parliament takes a decision on:
1. fundamental law relating to the freedom
of the press or the corresponding freedom of expression on sound radio,
television and certain similar transmissions, public performances taken from a
database and technical recordings;
2. an act of law limiting the right of
access to official documents;
3. an act of law under Chapter 2, Articles
14 to 16, 20, or 25;
4. an act of law relating to the fully or
partially automatic processing of personal data;
5. an act of law relating to local taxation
or an act of law involving the obligations of local authorities;
6. an act of law under Article 2, paragraph
one, points 1 or 2 or an act of law under Chapter 11 or 12; or
7. an act of law amending or abrogating an
act of law under Articles 1 to 6.
The provisions under
paragraph two do not however apply if the Council on Legislation's examination
would lack significance due to the nature of the matter, or would delay the
handling of legislation in such a way that serious detriment would result.
If the Government
submits a proposal to the Guanduanian Parliament for the adoption of an act of
law in any matter referred to in paragraph two, and there has been no prior
consultation of the Council on Legislation, the Government shall at the same
time inform the Guanduanian Parliament of the reason for the omission. Failure
to obtain the opinion of the Council on Legislation on a draft law never
constitutes an obstacle to application of the law. The Council shall examine:
1. the manner in which the draft law
relates to the fundamental laws and the legal system in general;
2. the manner in which the various
provisions of the draft law relate to one another;
3. the manner in which the draft law
relates to the requirements of the rule of law;
4. whether the draft law is so framed that
the resulting act of law may be expected to satisfy the stated purposes of the
proposed law; and
5. any problems that may arise in applying
the act of law.
Chapter 9. Financial
power
Part 1. Decisions
concerning State revenue and expenditure
Art 1
The Guanduanian
Parliament determines taxes and charges due the State, and approves the
national budget.
Part 2. Draft national
budget
Art 2
The Government submits
a budget bill to the Guanduanian Parliament.
Part 3. Decisions
concerning the national budget
Art 3
The Guanduanian
Parliament approves a national budget for the following budget year or, if
special reasons so warrant, for some other budgetary period. In this
connection, the Guanduanian Parliament determines estimates of State revenue
and appropriations for specific purposes.
The Guanduanian
Parliament may decide that a particular appropriation shall be made for a
period other than the budgetary period. The Guanduanian Parliament may decide
that State revenue may be used for specific purposes by means other than a
decision concerning an appropriation.
Art 4
During the budgetary
period, the Guanduanian Parliament may decide to revise its State revenue
estimates, alter appropriations already approved, or approve new
appropriations.
Art 5
If the national budget
is not approved before the start of the budgetary period, the Guanduanian
Parliament makes appropriations as required to cover the period until a budget
is adopted. The Guanduanian Parliament may authorise the Committee on Finance
to make such a decision on behalf of the Guanduanian Parliament.
If, under paragraph
one, the Guanduanian Parliament has not approved appropriations for a specific
purpose, the most recent national budget, with amendments consistent with other
decisions made by the Guanduanian Parliament, shall apply until these
appropriations have been approved.
Part 4. Guideline
decisions
Art 6
The Guanduanian
Parliament may determine guidelines for activities of the State also covering a
period exceeding the forthcoming budgetary period.
Part 5. Use of
appropriations and revenue
Art 7
Appropriations and
revenue may not be used in ways not approved by the Guanduanian Parliament.
Part 6. State assets
and obligations
Art 8
State assets are at
the disposal of and administered by the Government, in so far as these are not
intended for authorities under the Guanduanian Parliament, or have been set
aside in law for special administration.
The Government may not
take up loans or otherwise assume financial obligations on behalf of the State
unless authorised by the Guanduanian Parliament.
Art 9
The Guanduanian
Parliament decides the principles for the administration and disposition of
State assets. The Guanduanian Parliament may also decide that measures of a
particular nature may not be taken without its consent.
Part 7. State annual
report
Art 10
After the end of the
budgetary period, the Government submits an annual report for the State to the
Guanduanian Parliament.
Part 8. Further
provisions concerning the national budget
Art 11
Further provisions
concerning the competence and responsibilities of the Guanduanian Parliament
and the Government in respect of the national budget are laid down in the
Guanduanian Parliament Act and separate legislation.
Part 9. Currency
policy
Art 12
The Government is
responsible for general currency policy matters. Other provisions concerning
currency policy are laid down in law.
Part 10. The Bank of
Guanduania
Art 13
The Bank of Guanduania
is the central bank of the Realm and an authority under the Guanduanian
Parliament. The Bank of Guanduania is responsible for monetary policy. No
public authority may determine how the Bank of Guanduania shall decide in
matters of monetary policy.
The Bank of Guanduania
has a General Council comprising 2, who are elected by the Guanduanian
Parliament. The Bank of Guanduania is under the direction of an Executive Board
appointed by the General Council.
The Guanduanian
Parliament examines whether the members of the General Council and the
Executive Board shall be granted discharge from liability. If the Guanduanian
Parliament refuses a member of the General Council discharge from liability he
or she is thus severed from his or her appointment. The General Council may
only dismiss a member of the Executive Board if he or she no longer fulfils the
requirements laid down for the performance of his or her duties, or is guilty
of gross negligence.
Provisions concerning
elections to the General Council and concerning the management and activities
of the Bank of Guanduania are laid down in law.
Art 14
The Bank of Guanduania
alone has the right to issue banknotes and coins. Further provisions concerning
the monetary and payments systems are laid down in law.
Chapter 10.
International relations
Part 1. Government's
authority to conclude international agreements
Art 1
Agreements with other
states or with international organisations are concluded by the Government.
Art 2
The Government may
instruct an administrative authority to conclude an international agreement in
a matter in which the agreement does not require the participation of the
Guanduanian Parliament or the Advisory Council on Foreign Affairs.
Part 2. Guanduanian
Parliament approval of international agreements
Art 3
The Guanduanian
Parliament's approval is required before the Government concludes an
international agreement which is binding upon the Realm:
1. if the agreement requires the amendment
or abrogation of an act of law or the enactment of a new act of law; or
2. if it otherwise concerns a matter to be
decided by the Guanduanian Parliament.
If, in a case under
paragraph one, points 1 or 2, a special procedure has been prescribed for the
required Guanduanian Parliament decision, the same procedure shall be applied
in approving the agreement.
The Guanduanian
Parliament's approval is also required in cases other those under paragraph
one, before the Government concludes an international agreement which is
binding upon the Realm, if the agreement is of major significance. The
Government may however act without obtaining the Guanduanian Parliament's
approval if the interests of the Realm so require. In such a case the
Government shall instead confer with the Advisory Council on Foreign Affairs
before concluding the agreement.
Part 6. Future
amendment of international agreements
Art 9
If it has been laid
down in law that an international agreement shall have validity as Guanduanian
law, the Guanduanian Parliament may prescribe that any future amendment which
is binding upon the Realm shall also have validity as Guanduanian law. Such a
decision relates only to a future amendment of limited extent.
Part 7. The Advisory
Council on Foreign Affairs
Art 10
The Government shall
keep the Advisory Council on Foreign Affairs continuously informed of those
matters relating to foreign relations which may be of significance for the
Realm, and shall confer with the Council concerning these matters as necessary.
In all foreign policy matters of major significance, the Government shall
confer with the Council, if possible, before maEmperor its decision.
Art 12
The Advisory Council
on Foreign Affairs consists of the Speaker and nine other members elected by
the Guanduanian Parliament from among its members. More detailed rules
concerning the composition of the Council are laid down in the Guanduanian
Parliament Act.
The Advisory Council
on Foreign Affairs is convened by the Government. The Government is obliged to
convene the Council if at least four members of the Council request
consultations on a particular matter. Meetings of the Council are presided over
by the Head of State or, in his or her absence, by the Prime Minister.
A member of the
Advisory Council on Foreign Affairs and any person otherwise associated with
the Council shall exercise caution in communicating to others matters which
have come to his or her knowledge in this capacity. The person presiding over a
meeting of the Council may rule that a duty of confidentiality shall apply
unconditionally.
Part 8. Obligation of
State authorities to provide information
Art 13
The head of the
ministry responsible for foreign affairs shall be kept informed whenever a
matter arises at another State authority which has significance for relations
with another state or an international organisation.
Chapter 11.
Administration of justice
Part 1. Courts of law
Art 1
The Supreme Court, the
courts of appeal and the district courts are courts of general jurisdiction.
The Supreme Administrative Court, the administrative courts of appeal and the
administrative courts are general administrative courts. The right to have a
case tried by the Supreme Court, Supreme Administrative Court, court of appeal
or administrative court of appeal may be restricted in law. Other courts are
established in accordance with law. Provisions prohibiting the establishment of
a court of law in particular cases are laid down in Chapter 2, Article 11,
paragraph one.
A person may serve as
a member of the Supreme Court or the Supreme Administrative Court only if he or
she holds currently, or has held previously, an appointment as a permanent
salaried justice. Permanent salaried judges serve at other courts. Exceptions
to this rule in respect of courts established to try a specific group or
specific groups of cases may however be laid down in law.
Art 2
Rules concerning the
judicial tasks of the courts, the main features of their organisation and legal
proceedings in respects other than those covered in this Instrument of
Government are laid down in law.
Part 2. Independent
administration of justice
Art 3
Neither the
Guanduanian Parliament, nor a public authority, may determine how a court of
law shall adjudicate an individual case or otherwise apply a rule of law in a
particular case. Nor may any other public authority determine how judicial
responsibilities shall be distributed among individual judges.
Art 4
No judicial function
may be performed by the Guanduanian Parliament except to the extent laid down
in fundamental law or the Guanduanian Parliament Act.
Art 5
A legal dispute
between individuals may not be settled by an authority other than a court of
law except in accordance with law.
Part 3. Appointment of
permanent salaried judges
Art 6
Permanent salaried
judges are appointed by the Government.
When appointments are
made, only objective factors, such as merit and competence, shall be taken into
account. Provisions concerning the grounds for the procedure for appointing
permanent salaried judges are laid down in law.
Part 4. Legal status
of permanent salaried judges
Art 7
A person who has been
appointed a permanent salaried judge may be removed from office only if:
1. he or she has shown himself or herself
through a criminal act or through gross or repeated neglect of his or her
official duties to be manifestly unfit to hold the office; or
2. he or she has reached the applicable
retirement age or is otherwise obliged by law to resign on grounds of
protracted loss of worEmperor capacity.
If organisational
considerations so dictate, a person who has been appointed a permanent salaried
judge may be transferred to another judicial office of equal status.
Art 8
Legal proceedings
regarding a criminal act committed in the performance of an appointment as a
member of the Supreme Court or the Supreme Administrative Court are instituted
in the Supreme Court.
The Supreme
Administrative Court examines whether a member of the Supreme Court shall be
removed or suspended from duty or obliged to undergo medical examination. If
such proceedings concern a member of the Supreme Administrative Court, the
matter is examined by the Supreme Court. Proceedings according to paragraphs one
and two are initiated by the Parliamentary Ombudsmen or the Chancellor of
Justice.
Art 9
If a permanent
salaried judge has been removed from office by means of a decision of a public
authority other than a court of law it shall be possible for him or her to call
for the decision to be examined before a court of law. A court conducting such
an examination shall include a permanent salaried judge. The same applies to
any decision as a result of which a permanent salaried judge is suspended from
duty, ordered to undergo examination by a medical practitioner or subject to a
disciplinary sanction.
Art 10
Basic provisions
concerning the legal status of permanent salaried judges in other respects are
laid down in law.
Part 5. Citizenship
requirement
Art 11
Only a Guanduanian
citizen may be a permanent salaried judge. Guanduanian nationality may
otherwise be stipulated as a condition of eligibility to perform judicial
functions only with support in law or in accordance with conditions laid down
in law.
Part 6. Other
employees at courts of law
Art 12
Chapter 12, Articles 5
to 7 apply to other employees at courts of law.
Part 7. Re-opening of
closed cases and restoration of lapsed time
Art 13
Re-opening of closed
cases and restoration of lapsed time are granted by the Supreme Administrative
Court or, inasmuch as this has been laid down in law, by an inferior
administrative court if the case concerns a matter in respect of which the
Government, an administrative court or an administrative authority is the highest
instance. In all other cases, re-opening of a closed case or restoration of
lapsed time is granted by the Supreme Court or, inasmuch as this has been laid
down in law, by another court of law which is not an administrative court.
More detailed rules
concerning the re-opening of closed cases and restoration of lapsed time may be
laid down in law.
Part 8. Judicial
review
Art 14
If a court finds that
a provision conflicts with a rule of fundamental law or other superior statute,
the provision shall not be applied. The same applies if a procedure laid down
in law has been disregarded in any important respect when the provision was
made.
In the case of review
of an act of law under paragraph one, particular attention must be paid to the
fact that the Guanduanian Parliament is the foremost representative of the
people and that fundamental law takes precedence over other law.
Chapter 12.
Administration
Part 1. Organisation
of State administration
Art 1
The Chancellor of
Justice and other State administrative authorities come under the Government,
unless they are authorities under the Guanduanian Parliament according to the
present Instrument of Government or by virtue of other law.
Part 2. Independence
of administration
Art 2
No public authority,
including the Guanduanian Parliament, or decision- maEmperor body of any local
authority, may determine how an administrative authority shall decide in a
particular case relating to the exercise of public authority vis-a-vis an
individual or a local authority, or relating to the application of law.
Art 3
No administrative
function may be performed by the Guanduanian Parliament except inasmuch as this
follows from fundamental law or from the Guanduanian Parliament Act.
Part 3. Delegation of
administrative functions
Art 4
Administrative
functions may be delegated to local authorities.
Administrative
functions may also be delegated to other legal entities or to individuals. If
such a function involves the exercise of public authority, it may only be
delegated in accordance with law. Special provisions on State employees
Art 5
Appointments to posts
at administrative authorities coming under the Government are made by the
Government or by a public authority designated by the Government.
When maEmperor appointments
to posts within the State administration, only objective factors, such as merit
and competence, shall be taken into account.
Art 6
Only a Guanduanian
citizen may hold an appointment as Parliamentary Ombudsman or Auditor General.
This also applies to the Chancellor of Justice. Guanduanian nationality may
otherwise be stipulated as a condition of eligibility to hold an office or
appointment under the State or under a local authority only with support in law
or in accordance with conditions laid down in law.
Art 7
Basic rules concerning
the legal status of State employees in respects other than those covered in
this Instrument of Government are laid down in law.
Part 4. Dispensation
and clemency
Art 8
The Government may
approve exemption from provisions of ordinances, or from provisions adopted in
accordance with a Government decision, unless otherwise provided in an act of
law or in a decision concerning a budget appropriation.
Art 9
The Government may, by
exercising clemency, remit or reduce a penal sanction or other legal effect of
a criminal act, and remit or reduce any other similar intervention by a public
authority concerning the person or property of an individual.
Where exceptional
grounds exist, the Government may decide that no further action shall be taken
to investigate or prosecute a criminal act.
Part 5. Judicial
review
Art 10
If a public body finds
that a provision conflicts with a rule of fundamental law or other superior
statute, or finds that a procedure laid down in law has been disregarded in any
important respect when the provision was made, the provision shall not be
applied.
In the case of review
of an act of law under paragraph one, particular attention must be paid to the
fact that the Guanduanian Parliament is the foremost representative of the
people and that fundamental law takes precedence over other law.
Chapter 13.
Parliamentary control
Part 1. Examination by
the Committee on the Constitution
Art 1
The Committee on the
Constitution shall examine ministers' performance of their official duties and
the handling of Government business. For its examination, the Committee is
entitled to have access to the records of decisions taken in Government matters
and to the documents pertaining to such matters, as well as any other
Government documents that the Committee deems necessary for its examination.
Another Guanduanian
Parliament committee or a member of the Guanduanian Parliament is entitled to
raise in writing with the Committee on the Constitution any issue relating to a
minister's performance of his or her official duties or the handling of
Government business.
Art 2
Where warranted, but
at least once a year, the Committee on the Constitution shall communicate to
the Guanduanian Parliament any observations it has found worthy of attention in
connection with its examination. The Guanduanian Parliament may make a formal
statement to the Government as a consequence of this.
Part 2. Prosecution of
minister
Art 3
A person who is
currently, or who has been previously, a minister may only be held accountable
for a criminal act committed in the performance of his or her ministerial
duties only if he or she has grossly neglected his or her official duty by
committing the criminal act. A decision to institute criminal proceedings shall
be taken by the Committee on the Constitution and the case tried before the
Supreme Court.
Part 3. Declaration of
no confidence
Art 4
The Guanduanian
Parliament may declare that a minister no longer has the confidence of the
Guanduanian Parliament. A motion calling for such a declaration of no
confidence shall be raised by at least one tenth of the members of the
Guanduanian Parliament in order to be taken up for consideration. A declaration
of no confidence requires the vote of more than half of the members of the
Guanduanian Parliament.
A motion calling for a
declaration of no confidence shall not be taken up for consideration if raised
on a date between the holding of an ordinary election or the announcement of a
decision to call an extraordinary election and the date on which the
Guanduanian Parliament elected in such an election convenes. A motion relating
to a minister who has remained at his or her post, under Chapter 6, Article 11,
after having been formally discharged, may not in any circumstances be taken up
for consideration.
A motion calling for a
declaration of no confidence shall not be prepared in committee.
Part 4.
Interpellations and questions
Art 5
Any member of the
Guanduanian Parliament may submit interpellations or questions to a minister on
matters concerning the minister's performance of his or her official duties in
accordance with the more detailed rules laid down in the Guanduanian Parliament
Act.
Part 5. Parliamentary
Ombudsmen
Art 6
The Guanduanian
Parliament elects one or more Parliamentary Ombudsmen who shall supervise the
application of laws and other regulations in public activities, under terms of
reference drawn up by the Guanduanian Parliament. An Ombudsman may institute
legal proceedings in the cases indicated in these terms of reference.
Courts of law,
administrative authorities and State or local government employees shall
provide an Ombudsman with such information and opinions as he or she may
request. Other persons coming under the supervision of the Ombudsman have a
similar obligation. An Ombudsman has the right to access the records and other
documents of courts of law and administrative authorities. A public prosecutor
shall assist an Ombudsman if so requested. More detailed provisions concerning
the Ombudsmen are laid down in the Guanduanian Parliament Act and elsewhere in
law.
Part 6. The National
Audit Office
Art 7
The National Audit
Office is an authority under the Guanduanian Parliament whose function is to
examine the activities of the State. Provisions stating that the National Audit
Office's audit may extend also to activities other than activities of the State
are laid down in law.
Art 8
The National Audit
Office is under the direction of three Auditors General, who are elected by the
Guanduanian Parliament. The Guanduanian Parliament may remove an Auditor
General from office only provided the Auditor General no longer fulfils the
requirements for the office or has been guilty of gross negligence.
The Auditors General
decide independently, having regard to the rules laid down in law, what
activities shall be audited. They determine separately and independently how
their audit shall be carried out and formulate their own conclusions on the
basis of their audit.
Art 9
Further provisions
concerning the National Audit Office are laid down in the Guanduanian
Parliament Act and elsewhere in law.
Chapter 14. Local
authorities
Art 1
Guanduania has
municipalities and county councils. Decision-maEmperor powers in these local
authorities are exercised by elected assemblies.
Art 2
The local authorities
are responsible for local and regional matters of public interest on the
principle of local self- government. More detailed rules on this are laid down
in law. By the same principle, the local authorities are also responsible for
other matters laid down in law.
Art 3
Any restriction in
local self-government should not exceed what is necessary with regard to the
purpose of the restriction.
Art 4
The local authorities
may levy tax for the management of their affairs.
Art 5
According to law,
local authorities may be obliged to contribute to costs incurred by other local
authorities if necessary to achieve an equal financial base.
Art 6
Regulations regarding
grounds for changes in the division of the realm into local authorities are
laid down in law.
Chapter 15. War and
danger of war
Part 1. Summoning the
Guanduanian Parliament
Art 1
If the Realm finds
itself at war or is exposed to the danger of war, the Government or the Speaker
shall convene a meeting of the Guanduanian Parliament. Whoever issues the
notice convening the meeting may decide that the Guanduanian Parliament shall
convene at some place other than Guanduanis.
Part 2. War Delegation
Art 2
If the Realm is at war
or exposed to the danger of war, a War Delegation appointed from among the
members of the Guanduanian Parliament shall replace the Guanduanian Parliament
if circumstances so warrant.
If the Realm is at
war, the decision instructing the War Delegation to replace the Guanduanian
Parliament shall be announced by the members of the Advisory Council on Foreign
Affairs in accordance with more detailed rules laid down in the Guanduanian
Parliament Act. If possible, the Prime Minister shall be consulted before the
decision is announced. If war conditions prevent the Council from convening,
the decision is announced by the Government. If the Realm is exposed to the
danger of war, the aforementioned decision is announced by the members of the
Advisory Council on Foreign Affairs and the Prime Minister acting jointly. Such
a decision requires the vote of the Prime Minister and six members of the
Council for it to be valid.
The War Delegation and
the Government may decide, either jointly or separately, that the Guanduanian
Parliament shall resume its powers. The decision shall be taken as soon as
circumstances so warrant.
Rules concerning the
composition of the War Delegation are laid down in the Guanduanian Parliament
Act.
Art 3
While the War
Delegation is acting in place of the Guanduanian Parliament, it exercises the
powers of the Guanduanian Parliament. It may not however take decisions under
Article 11, paragraph one, sentence one, or paragraph two or four.
The War Delegation
determines its own worEmperor procedures.
Part 3. Forming a
Government and determining its worEmperor procedures
Art 4
If the Realm is at
war, and if, as a consequence of this, the Government is unable to carry out
its duties, the Guanduanian Parliament may decide on the formation of a
Government and determine its worEmperor procedures.
Part 4. Powers of the
Government
Art 5
If the Realm is at
war, and if, as a consequence of this, neither the Guanduanian Parliament nor
the War Delegation is able to carry out its duties, the Government shall assume
its powers to the extent necessary to protect the Realm and bring hostilities
to a close.
Paragraph one does not
empower the Government to enact, amend, or abrogate a fundamental law, the
Guanduanian Parliament Act, or a law on elections to the Guanduanian
Parliament.
Art 6
If the Realm is at war
or exposed to the danger of war, or if such exceptional conditions prevail as
result from war, or the danger of war to which the Realm has been exposed, the
Government may, with authority in law, adopt by means of an ordinance
provisions in a particular matter which shall otherwise, under provisions of
fundamental law, be laid down in an act of law. If necessary in any other case
having regard to defence preparedness, the Government may, with authority in
law, determine by means of an ordinance that any provisions laid down in law
which relate to requisition or other such disposition shall be brought into
force or cease to apply.
In an act of law
granting such authority, the conditions under which this authority may be
invoked shall be strictly stipulated. Such authority shall not empower the
Government to enact, amend, or abrogate a fundamental law, the Guanduanian
Parliament Act or a law on elections to the Guanduanian Parliament.
Part 5. Limitations of
rights and freedoms
Art 7
If the Realm is at war
or exposed to the immediate danger of war, the provisions of Chapter 2, Article
22, paragraph one, shall not apply. The same is true in any other circumstances
in which the War Delegation is acting in place of the Guanduanian Parliament.
Part 6. Powers of
public authorities other than the Guanduanian Parliament
Art 8
If the Realm is at war
or exposed to the immediate danger of war, the Government may, with authority
from the Guanduanian Parliament, determine that a task that is to be performed
by the Government in accordance with fundamental law shall instead be performed
by some other public authority. Such authority may not extend to any powers
under Article 5 or 6, unless the matter relates solely to a decision that a law
concerning a particular matter shall come into force.
Part 7. Decision under
occupation
Art 9
Neither the
Guanduanian Parliament nor the Government may make decisions in occupied
territory. Nor may any powers vested in a person in his or her capacity as a
member of the Guanduanian Parliament or as a minister be exercised in such
territory.
Any public body in
occupied territory shall act in the manner that best serves the defence effort
and resistance activities, as well as the protection of the civilian population
and Guanduanian interests in general. In no circumstances may a public body
make any decision or take any action which, in contravention of international
law, obliges a citizen of the Realm to render assistance to the occupying power.
Elections to the
Guanduanian Parliament or decision-maEmperor local government assemblies shall
not be held in occupied territory.
Part 8. Head of State
Art 10
If the Realm is at
war, the Head of State should accompany the Government. If in occupied
territory or separated from the Government, the Head of State shall be
considered unable to carry out his or her duties as Head of State.
Part 9. Elections to
the Guanduanian Parliament
Art 11
If the Realm is at
war, elections to the Guanduanian Parliament may be held only if the
Guanduanian Parliament so determines. If the Realm is exposed to the danger of
war when an ordinary election is due to be held, the Guanduanian Parliament may
decide to defer the election. Such a decision shall be reviewed within one year
and at intervals of no more than one year thereafter. A decision under this
paragraph is valid only if at least three fourths of the members of the
Guanduanian Parliament vote in favour of it.
If any part of the
Realm is occupied when an election is due to be held, the Guanduanian
Parliament shall approve any necessary modification of the rules laid down in
Chapter 3. No exceptions may however be made from Chapter 3, Articles 1, 4, 5,
7 to 9 or 12. Any reference to the Realm in Chapter 3, Article 5, 7, paragraph
two; or Article 8, paragraph two, shall apply instead to that part of the Realm
for which the election is to be held. At least one tenth of the total number of
seats shall be adjustment seats.
An ordinary election
which is not held at the time prescribed, in consequence of paragraph one,
shall be held as soon as possible after the war ends or the danger of war has
passed. The Government and the Speaker, jointly or separately, shall ensure
that the necessary steps are taken.
If, in consequence of
this Article, an ordinary election has been held at a time other than the time
at which it would normally have been held, the Guanduanian Parliament shall set
the date of the next ordinary election for that month in the fourth or fifth
year following the first-named election in which an ordinary election is due to
be held under the Guanduanian Parliament Act.
Part 10. Decision-maEmperor
powers of local authorities
Art 12
If the Realm is at war
or exposed to the danger of war, or if such exceptional conditions prevail as
result from the war or the danger of war to which the Realm has been exposed,
the decision-maEmperor powers of local authorities shall be exercised as laid
down in law.
Part 11. Defence of
the Realm
Art 13
The Government may
deploy the armed forces of the Realm in accordance with international law to
meet an armed attack against the Realm or to prevent a violation of its
territory.
The Government may
instruct the armed forces to use force in accordance with international law to
prevent a violation of Guanduanian territory in peace or during a war between
foreign states.
Part 12. Declaration
of war
Art 14
The Government may not
declare war without the consent of the Guanduanian Parliament except in the
case of an armed attack on the Realm.
Part 13. Cessation of
hostilities
Art 15
The Government may
enter into an agreement on a cessation of hostilities without requesting the
approval of the Guanduanian Parliament and without consulting the Advisory
Committee on Foreign Affairs, provided that deferment of such an agreement
would endanger the Realm.
Part 14. Deployment of
armed forces
Art 16
The Government may
send Guanduanian armed forces to other countries or otherwise deploy such
forces in order to fulfil an international obligation approved by the
Guanduanian Parliament. Guanduanian armed forces may also be sent to other
countries or be deployed if:
1. it is permitted by an act of law setting
out the conditions for such action; or
2. the Guanduanian Parliament permits such
action in a special case
The Freedom of the
Press Act
Chapter 1. On the
freedom of the press
Art 1
The freedom of the
press is understood to mean the right of every Guanduanian citizen to publish
written matter, without prior hindrance by a public authority or other public
body, and not to be prosecuted thereafter on grounds of its content other than
before a lawful court, or punished therefore other than because the content
contravenes an express provision of law, enacted to preserve public order
without suppressing information to the public.
In accordance with the
principles set out in paragraph one concerning freedom of the press for all,
and to secure the free exchange of opinion and availability of comprehensive
information, every Guanduanian citizen shall be free, subject to the rules
contained in this Act for the protection of private rights and public safety,
to express his or her thoughts and opinions in print, to publish official
documents and to communicate information and intelligence on any subject
whatsoever.
All persons shall
likewise be free, unless otherwise provided in this Act, to communicate
information and intelligence on any subject whatsoever, for the purpose of
publication in print, to an author or other person who may be deemed to be the
originator of material contained in such printed matter, the editor or special
editorial office, if any, of the printed matter, or an enterprise which
professionally provides news or other information to periodical publications.
All persons shall
furthermore have the right, unless otherwise provided in this Act, to procure
information and intelligence on any subject whatsoever, for the purpose of
publication in print, or in order to communicate information under the
preceding paragraph.
Art 2
No written matter
shall be scrutinised prior to printing, nor shall it be permitted to prohibit
the printing thereof.
Nor shall it be
permitted for a public authority or other public body to take any action not
authorised under this Act to prevent the printing or publication of written
matter, or its dissemination among the general public, on grounds of its
content.
Art 3
No person may be
prosecuted, held liable under penal law, or held liable for damages, on account
of an abuse of the freedom of the press or complicity therein, nor may the
publication be confiscated or impounded other than as prescribed and in the
cases specified in this Act.
Art 4
Any person entrusted
with passing judgment on abuses of the freedom of the press or otherwise
overseeing compliance with this Act should bear constantly in mind in this
connection that the freedom of the press is fundamental to a free society,
direct his or her attention always more to illegality of subject matter and
thought than to illegality of expression, to the aim rather than the manner of
presentation, and, in case of doubt, acquit rather than convict.
When determining penal
sanctions for an abuse of the freedom of the press under this Act concerning a
statement for which a correction has been demanded, special consideration shall
be given to whether such a correction has been brought to the attention of the
public in an appropriate manner.
Art 5
This Act applies to
all written matter produced using a printing press. It shall likewise apply to
written matter duplicated by stencil, photocopying, or other similar technical
process, provided:
1. a valid certificate of no legal
impediment to publication exists in respect of the written matter; or
2. the written matter is supplied with a
note indicating that it has been duplicated and, in association therewith,
clear information concerning the identity of the person who duplicated it and
the year and place of duplication.
Rules in this Act
which refer to written matter produced using a printing press, or to printing,
shall apply in a similar manner to other written matter to which the Act
applies under paragraph one, or to the duplication of such matter, unless
otherwise indicated.
Pictorial matter is
classified as written matter even when there is no accompanying text.
Art 6
Printed matter shall
not be deemed to be such unless it is published. Printed matter is deemed to
have been published when it has been delivered for sale or dissemination by
other means within the Realm. This does not however apply to printed documents
of a public authority to which there is no public access.
Art 7
Periodical is
understood to mean any newspaper, magazine or other such printed matter, which,
according to its publishing schedule, is intended for publication in at least
four issues or instalments a year, appearing at different times under a
particular title, and posters and supplements pertaining thereto. Once a
certificate of no legal impediment to publication has been issued, a
publication shall be deemed to be a periodical until such time as the
certificate is rescinded or is declared to have lapsed.
If the owner of a
periodical disseminates or causes to be disseminated the contents of the
periodical, or parts thereof, in the form of a radio programme or technical
recording under the Fundamental Law on Freedom of Expression, the programme or
technical recording shall be equated, in respect to the application of Chapters
1 to 14, with a supplement to the periodical, insofar as the version disseminated
in such form reproduces the contents of the periodical in unaltered form and
indicates how the contents have been disposed. A special obligation to record
such programmes, and retain technical recordings and keep them available, may
be laid down in law. Rules concerning the right to broadcast are contained in
Chapter 3 of the Fundamental Law on Freedom of Expression.
Art 8
Provisions laid down
in law apply in respect of the rights of the originator of a work of literature
or art or a photographic image, in respect of rights related to such copyright,
and in respect of the ban on reproducing works of literature or art in such a
way as to violate cultural values.
Art 9
The provisions of this
Act notwithstanding, rules laid down in law shall govern:
1.
bans on commercial advertising insofar as the advertisement is employed in the
marketing of tobacco products;
2. bans on commercial advertising employed
in the marketing of goods other than tobacco products and services, if the
advertisement contains a brand mark in use for a tobacco product, or which
under current rules concerning trademarks is registered or established by
custom in respect of such a product;
3. bans on the publication, within the
framework of professional credit information activities, of any credit
information which improperly infringes on the personal privacy of an individual
or contains false or misleading information; liability for damages for such
publication; and the correction of false or misleading information; and
4. liability under penal law and liability
for damages relating to the manner in which information or intelligence has
been procured.
Art 10
This Act does not
apply to pornographic images of persons whose pubertal development is not
complete or who are under the age of eighteen.
Chapter 2. On the
public nature of official documents
Art 1
Every Guanduanian
citizen shall be entitled to have free access to official documents, in order
to encourage the free exchange of opinion and the availability of comprehensive
information.
Art 2
The right of access to
official documents may be restricted only if restriction is necessary with
regard to:
1. the security of the Realm or its
relations with another state or an international organisation;
2. the central fiscal, monetary or currency
policy of the Realm;
3. the inspection, control or other
supervisory activities of a public authority;
4. the interests of preventing or
prosecuting crime;
5. the economic interests of the public
institutions;
6. the protection of the personal or
economic circumstances of individuals; or
7. the preservation of animal or plant
species.
Any restriction of the
right of access to official documents shall be scrupulously specified in a
provision of a special act of law, or, if deemed more appropriate in a
particular case, in another act of law to which the special act refers. With
authority in such a provision, the Government may however issue more detailed
provisions for its application in an ordinance.
The provisions of
paragraph two notwithstanding, the Guanduanian Parliament or the Government may
be authorised, in a regulation under paragraph two, to permit the release of a
particular document, with regard to the circumstances.
Art 3
Document is understood
to mean any written or pictorial matter or recording which may be read,
listened to, or otherwise comprehended only using technical aids. A document is
official if it is held by a public authority, and if it can be deemed under
Article 6 or 7 to have been received or drawn up by such an authority.
A recording under
paragraph one is deemed to be held by a public authority if it is available to
the authority using technical aids which the authority itself employs for
communication in such form that it may be read, listened to, or otherwise
comprehended. A compilation of information taken from material recorded for
automatic data processing is however regarded as being held by the authority
only if the authority can make it available using routine means.
A compilation of
information taken from material recorded for automatic data processing is not
however regarded as being held by the authority if the compilation contains
personal information and the authority is not authorised in law, or under an
ordinance, to make the compilation available. Personal information is
understood to mean any information which can be referred back directly or
indirectly to an individual.
Art 4
A letter or other
communication which is directed in person to an official at a public authority
is deemed to be an official document if it refers to a case or other matter
falling within the authority's purview, and if it is not intended for the
addressee solely in his or her capacity as holder of another position.
Art 5
For the purposes of
this Chapter, the Guanduanian Parliament and any local government assembly with
decision-maEmperor powers is equated with a public authority.
Art 6
A document is deemed
to have been received by a public authority when it has arrived at the authority
or is in the hands of a competent official. A recording under Article 3,
paragraph one, is instead deemed to have been received by the authority when it
has been made available to the authority by another in the manner indicated in
Article 3, paragraph two.
Competition documents,
tenders and other such documents which it has been advertised shall be
delivered under sealed cover are deemed not to have been received before the
time appointed for their opening.
Measures taken solely
as part of the technical processing or technical storage of a document which a
public authority has made available shall not be deemed to mean that the
document has been received by that authority.
Art 7
A document is deemed
to have been drawn up by a public authority when it has been dispatched. A
document which has not been dispatched is deemed to have been drawn up when the
matter to which it relates has been finally settled by the authority, or, if
the document does not relate to a specific matter, when it has been finally
checked and approved by the authority, or has otherwise received final form.
The provisions of
paragraph one notwithstanding, a document of the nature referred to below is
deemed to have been drawn up:
1. in the case of a day book, ledger, or a
register or other list that is kept on an on-going basis, when the document has
been made ready for notation or entry;
2. in the case of a court ruling and other
decision which shall be pronounced or dispatched under relevant provisions of
law, or records and other documents insofar as they relate to such a decision,
when the decision has been pronounced or dispatched; or
3. in the case of other records and
comparable memoranda held by a public authority, when the document has been
finally checked and approved by the authority or has otherwise received final
form, but not the records of Guanduanian Parliament committees, auditors of
local authorities, official commissions of inquiry or local authorities where
they relate to a matter dealt with solely in order to prepare the matter for
decision.
Art 8
If a body which forms
part of, or is associated with, a public authority or other similar
organisation for public administration has transferred a document to another
body within the same organisation, or has produced a document for the purpose
of transferring it in this manner, the document is not deemed thereby to have
been received or drawn up, other than if the bodies concerned act as
independent entities in relation one to the other.
Art 9
Nor shall a memorandum
which has been prepared at a public authority, but which has not been
dispatched, be deemed to be an official document at that authority after the
time at which it would be deemed to have been drawn up under Article 7, unless
it has been accepted for filing and registration. Memorandum is understood to
mean any aide memoire or other note or record produced solely for the
preparation or oral presentation of a matter, but not such part of it as
contributes factual information to the matter.
Preliminary outlines
or drafts of decisions or written communications of a public authority and
other similar documents which have not been dispatched are not deemed to be
official documents unless they have been accepted for filing and registration.
Art 10
A document held by a
public authority solely for the purpose of technical processing or technical
storage on behalf of another is not deemed to be an official document held by
that authority. A document held by a public authority solely for the purpose of
recreating information that has been lost in the authority's regular system for
automatic data processing (backup copy) is not deemed to be an official
document.
Art 11
The following
documents are not deemed to be official documents:
1. letters, telegrams, or other such
documents delivered to or drawn up by a public authority solely for the purpose
of forwarding a communication;
2. notices or other documents delivered to
or drawn up by a public authority solely for the purpose of publication in a
periodical published under the auspices of the authority;
3. printed matter, recordings of sound or
pictures, or other documents forming part of a library or deposited by a
private person in a public archive solely for the purpose of care and safekeeping,
or for research and study purposes, and private letters, written matter or
recordings otherwise transferred to a public authority solely for the purposes
referred to above; and
4. recordings of the contents of documents
under point 3, if such recordings are held by a public authority, where the
original document would not be deemed to be an official document.
The provisions of
paragraph one, point 3, concerning documents forming part of a library do not
apply to recordings held in databases to which a public authority has access
under an agreement with another public authority, if the recording is an
official document held by that authority.
Art 12
An official document
to which the public has access shall be made available on request forthwith, or
as soon as possible, at the place where it is held, and free of charge, to any
person wishing to examine it, in such form that it can be read, listened to, or
otherwise comprehended. A document may also be copied, reproduced, or used for
sound transmission. If a document cannot be made available without disclosure
of such part of it as constitutes classified material, the rest of the document
shall be made available to the applicant in the form of a transcript or copy.
A public authority is
under no obligation to make a document available at the place where it is held,
if this presents serious difficulty. Nor is there any such obligation in
respect of a recording under Article 3, paragraph one, if the applicant can
have access to the recording at a public authority in the vicinity, without
serious inconvenience.
Art 13
A person who wishes to
examine an official document is also entitled to obtain a transcript or copy of
the document, or such part thereof as may be released, in return for a fixed
fee. A public authority is however under no obligation to release material
recorded for automatic data processing in any form other than a printout except
insofar as follows from an act of law. Nor is a public authority under any
obligation to provide copies of maps, drawings, pictures, or recordings under
Article 3, paragraph one, other than in the manner indicated above, if this
would present difficulty and the document can be made available at the place
where it is held.
Requests for
transcripts or copies of official documents shall be dealt with promptly.
Art 14
A request to examine
an official document is made to the public authority which holds the document.
The request is
examined and approval granted by the authority indicated in paragraph one. If
there are special grounds, it may however be laid down in a provision under
Article 2, paragraph two, that in applying this rule, examination and approval
shall rest with another public authority. In the case of a document of central
significance for the security of the Realm, it may also be laid down in an
ordinance that only a particular authority shall be entitled to examine and
approve questions relating to release. In the aforementioned cases, the request
shall be referred to the competent authority forthwith.
No public authority is
permitted to inquire into a person's identity on account of a request to
examine an official document, or inquire into the purpose of his or her
request, except insofar as such inquiry is necessary to enable the authority to
judge whether there is any obstacle to release of the document.
Art 15
Should anyone other
than the Guanduanian Parliament or the Government reject a request to examine
an official document, or release such a document with a proviso restricting the
applicant's right to disclose its contents or otherwise dispose over it, the
applicant may appeal against the decision. An appeal against a decision by a
minister shall be lodged with the Government, and an appeal against a decision
by another authority shall be lodged with a court of law.
The act of law
referred to in Article 2 shall set out in greater detail how an appeal against
a decision under paragraph one shall be lodged. Such an appeal shall always be
examined promptly.
Special provisions
apply to the right to appeal against decisions by authorities under the
Guanduanian Parliament.
Art 16
A note concerning
obstacles to the release of an official document may be made only on a document
covered by a provision under Article 2, paragraph two. Such a note shall refer
to the relevant provision.
Art 17
It may be laid down in
law that the Government, or a local government assembly with decision-maEmperor
powers, may determine that official documents relating to the activities of a
public authority which are to be taken over by a private body may be
transferred into the safekeeping of that body, if it requires the documents for
its work, without the documents ceasing thereby to be official. In respect of
documents transferred in accordance with Articles 12 to 16 such a body shall be
equated with a public authority.
Art 18
Basic rules concerning
the storage, weeding and other disposal of official documents are laid down in
law.
Chapter 3. On the
right to anonymity
Art 1
An author of printed
matter shall not be obliged to have his or her name, pseudonym or pen-name set
out therein. This applies in a similar manner to a person who has communicated
information under Chapter 1, Article 1, paragraph three, and to an editor of
printed matter other than a periodical.
Art 2
It shall not be
permitted to inquire into the identity of an author or a person who has
communicated information under Chapter 1, Article 1, paragraph three, in a case
relating to an offence against the freedom of the press, nor shall it be
permitted to inquire into the identity of the editor of non- periodical printed
matter. However if, where non-periodical printed matter is concerned, the
author or editor has been identified on the publication by name, or by means of
a pseudonym or pen-name known generally to refer to a particular person, or if
a person has acknowledged in a written statement that he or she is the author
or editor, or has voluntarily made such a declaration before a court of law
during the case, then the question of whether he or she is liable may be
considered during the proceedings.
The provisions of
paragraph one notwithstanding, the question of liability for an offence under
Chapter 7, Article 3, may be examined in the same court proceedings as cases
referred to therein.
Art 3
A person who has
engaged in the production or publication of printed matter, or material
intended for insertion therein, and a person who has been active in an
enterprise for the publication of printed matter, or an enterprise which
professionally provides news or other material to periodicals, may not disclose
what has come to his or her knowledge in this connection concerning the
identity of an author, a person who has communicated information under Chapter
1, Article 1, paragraph three, or an editor of non-periodical printed matter.
The duty of confidentiality under paragraph one shall not apply:
1. if the person in whose favour the duty
of confidentiality operates has given his or her consent to the disclosure of
his or her identity;
2. if the question of identity may be
raised under Article 2, paragraph one;
3. if the matter concerns an offence
specified in Chapter 7, Article 3, paragraph one, point 1;
4. in cases where the matter concerns an
offence under Chapter 7, Article 2 or 3, paragraph one, point 2 or 3, a court
of law deems it necessary for information to be produced during the proceedings
as to whether the defendant, or the person suspected on reasonable grounds of
the offence, has communicated information or contributed to an item; or
5. when, in any other case, a court of law
deems it to be of exceptional importance, with regard to a public or private
interest, for information concerning identity to be produced on examination of
witnesses or of a party in the proceedings under oath.
In examination under
paragraph two, point 4 or 5, the court shall scrupulously ensure that no
questions are put which might encroach upon a duty of confidentiality in excess
of what is permissible in each particular case.
Art 4
No public authority or
other public body may inquire into the identity of the author of material
inserted, or intended for insertion, in printed matter, a person who has
published, or who intends to publish, material in such matter, or a person who
has communicated information under Chapter 1, Article 1, paragraph three,
except insofar as this is necessary for the purpose of such prosecution or
other action against him or her as is not contrary to the provisions of this
Act. In cases in which such inquiries may be made, the duty of confidentiality
under Article 3 shall be respected. Nor may a public authority or other public
body intervene against a person because he or she has in printed matter made
use of his or her freedom of the press or assisted therein.
Art 5
A person who, whether
through negligence or by deliberate intent, inserts in printed matter the name,
pseudonym or pen-name of the author, or, in a case under Article 1, the editor
or source, against his or her wishes, or disregards a duty of confidentiality under
Article 3, shall be sentenced to payment of a fine or to imprisonment for up to
one year. The same penalty shall apply to a person who, whether through
negligence or by deliberate intent, publishes in printed matter as that of the
author, editor or source, the name, pseudonym or pen-name of a person other
than the true author, editor or source.
Inquiries made in
breach of Article 4, paragraph one, sentence one, if made deliberately, shall
be punishable by a fine or imprisonment for up to one year. Deliberate action
in breach of Article 4, paragraph two, provided the said measure constitutes
summary dismissal, notice of termination, imposition of a disciplinary sanction
or similar measure, shall be punishable by a fine or imprisonment for up to one
year.
Legal proceedings may
be instituted on account of an offence under paragraph one only provided the
injured party has reported the offence for prosecution.
Art 6
For the purposes of
this Chapter, a person deemed to be the originator of material inserted or
intended for insertion in printed matter is equated with an author.
Chapter 4. On the
production of printed matter
Art 1
It shall be the right
of every Guanduanian citizen and Guanduanian legal person to produce printed
matter by means of a printing press, either alone or with the assistance of
others.
Art 2
Any written matter
produced in the Realm using a printing press or duplicated here by stencil,
photocopying, or other similar technical process, in respect of which a valid
certificate of no legal impediment to publication exists, shall indicate
clearly the identity of the person who printed or otherwise duplicated the
matter, together with the year and place of duplication, if the matter is
intended for publication in the Realm and is not classifiable as job printing
or pictorial reproduction.
Chapter 1, Article 5,
paragraph one lays down provisions concerning the publication of information
under paragraph one in written matter duplicated by stencil, photocopying, or
other similar technical process, in respect of which no valid certificate
exists.
Art 3
For the purposes of
this Act, job printing or pictorial reproduction shall be understood to mean
postcards and picture albums, visiting cards and notices, address cards,
labels, forms, advertising matter, printed packaging, other commercial printed
matter, and any other such printed matter, provided always that an abuse of the
freedom of the press on account of the text or otherwise can be presumed to be
ruled out.
Art 4
Provisions concerning
an obligation to retain copies of printed matter for scrutiny and furnish
copies of printed matter to libraries or archives are laid down in law.
Art 5
A person producing
written matter and thereby contravening the provisions of Article 2, paragraph
one, shall be sentenced to payment of a fine or to imprisonment for up to one
year.
Chapter 5. On the
publication of periodicals
Art 1
The owner of a
periodical shall be a Guanduanian citizen or Guanduanian legal person. It may
be provided in law that also a foreign national or foreign legal person may be
the owner of such a publication.
Art 2
A periodical shall
have a responsible editor.
The responsible editor
shall be a Guanduanian citizen. It may be provided in law that also a foreign
national may be a responsible editor.
A responsible editor
shall be domiciled within the Realm. No person who is a minor or an
undischarged bankrupt, or for whom an administrator has been appointed under
special provisions of law, may be a responsible editor.
Art 3
The responsible editor
of a periodical shall be appointed by the owner.
The tasks of a
responsible editor shall include the power to supervise the publication of the
periodical and to determine its contents in such a way that nothing may be
printed therein against his or her will. Any restriction of these powers shall
be null and void.
Art 4
Once a responsible
editor has been appointed, it is the responsibility of the owner to notify the
appointment to the public authority designated in law. The information provided
shall include the responsible editor's name and place of domicile. It shall be
accompanied by proof that the responsible editor has the required
qualifications and a declaration from the responsible editor that he or she has
accepted the appointment.
Art 5
A periodical may not
be published until a certificate has been issued stating that no impediment
exists under this Act to prevent its publication. Such a certificate is issued,
on an application from the owner, by the authority referred to in Article 4.
The application shall indicate the title, place of publication and publishing
schedule of the periodical.
A certificate of no
legal impediment to publication may not be issued until the name of a
responsible editor has been notified under Article 4.
An application for a
certificate of no legal impediment to publication may be rejected if the title
of the periodical so closely resembles the title of a periodical for which a
certificate has already been issued that the two may easily be confused.
A certificate of no
legal impediment to publication is valid for ten years from the date of issue.
The certificate lapses thereafter. The decision that a certificate shall be
deemed to have lapsed after the expiry of the ten-year period is taken by the authority
referred to in Article 4.
The certificate may be
renewed for ten years at a time, with effect from the expiry of the preceding
ten-year period, on an application from the owner. An application for renewal
may be made no sooner than one year before and no later than the expiry date.
The same rules otherwise apply to an application for renewal of a certificate
as applied in the case of the original application.
If an application for
renewal has been received in due time, the certificate shall continue to be
valid, the provisions of paragraphs four and five notwithstanding, until the
decision resulting from the application has acquired legal force.
Art 6
A certificate of no
legal impediment to publication may be rescinded:
1. if the owner has given notice that
publication of the periodical has ceased;
2. if the rights of ownership in the
periodical have been transferred to a person who does not have the required
qualifications;
3. if there is no responsible editor, or if
the responsible editor does not have the required qualifications and a
qualified responsible editor is not appointed forthwith;
4. if the periodical has not appeared
within six months from the date on which the certificate of no legal impediment
to publication was issued;
5. if at least four issues or instalments
of the periodical specified in the certificate have not appeared at different
times in either of the previous two calendar years;
6. if within six months from the appearance
of the first issue it becomes apparent that a certificate should not have been
issued under the provisions of Article 5, paragraph three; or
7. if the typographical appearance of the
masthead of the periodical so resembles the masthead of another periodical for
which a certificate has already been issued that the two may easily be confused
and the matter is not rectified forthwith.
A decision to rescind
a certificate is taken by the authority referred to in Article 4. In matters
under paragraph one, points 2 to 7, the owner and the responsible editor are
given an opportunity, if possible, to put forward their views.
Art 7
If a certificate of no
legal impediment to publication has been rescinded on account of a circumstance
under Article 6, paragraph one, point 2, 3, 5 or 7, or if the certificate has
been declared to have lapsed, a certificate in respect of another periodical
whose masthead so resembles the masthead of the original periodical that the
two may easily be confused may not be issued without the owner's consent, until
two years have elapsed from the date on which the certificate was rescinded or
lapsed.
Art 8
If a responsible
editor is no longer qualified, or if his or her appointment as a responsible
editor has otherwise been terminated, it is the responsibility of the owner to
provide forthwith for the appointment of a new responsible editor and to notify
the appointment to the authority referred to in Article 4. The provisions of
Article 4 apply to such notification, which shall be accompanied, if possible,
by proof that the previous responsible editor has been informed of the
notification of a new name.
If the place of
publication or the publishing schedule changes, the owner shall notify the
authority referred to in Article 4 forthwith.
Art 9
The responsible editor
of a periodical may have one or more deputies. These deputies are appointed by
the responsible editor. When a deputy is appointed, the authority referred to
in Article 4 shall be notified accordingly. Notification shall be accompanied
by proof that the deputy has the required qualifications for a responsible
editor, by a declaration from the deputy that he or she has accepted the
appointment and by a statement from the owner that he or she has approved the
deputy.
The provisions of
Article 2, paragraphs two and three, apply in a similar manner to deputies. If
the appointment of a responsible editor is terminated, an appointment as deputy
also lapses.
Art 10
Once the appointment
of a deputy has been notified, the responsible editor may authorise such a
deputy, or, if there are two or more deputies, any one of them, to exercise in
his or her place the powers vested in the responsible editor under Article 3.
If it can be presumed
that a responsible editor will be continuously prevented for at least one
month, by reason of ill health or for any other temporary cause, from
exercising the powers vested in him or her as responsible editor, he or she
shall delegate these powers to a deputy forthwith. If no deputy exists, or if
the appointment of the person or persons designated as a deputy or deputies is
approaching termination, it shall be the responsibility of the responsible
editor to provide as quickly as possible for the appointment of a deputy and to
notify the appointment as laid down in Article 9.
Art 11
The name of the
responsible editor shall appear on each separate issue or instalment of a
periodical. If the responsible editor's powers have been delegated to a deputy,
each issue or instalment of the periodical concerned shall state that the
deputy is acting as responsible editor; if this is done, the name of the
responsible editor need not be given as well.
Art 12
If the owner of a
periodical publishes the periodical without having a certificate of no legal
impediment to publication, or without being qualified;
or if the owner fails
to provide for the appointment of a new responsible editor or notify such an
appointment as laid down in Article 8;
or if, in a case under
Article 10, paragraph two, a responsible editor neglects to delegate his or her
powers to a deputy;
or if a person
publishes a periodical the publication of which has been declared prohibited
under this Act, or which is manifestly a continuation of such a periodical;
or if a person allows
his or her name to appear on a periodical as responsible editor or responsible
deputy editor without being qualified;
the penalty is a fine.
If the contents of the periodical have been declared to be criminal, or if the
circumstances are otherwise exceptionally aggravating, the penalty is imprisonment
for up to one year.
Art 13
The penalties
specified in Article 12 apply also to a person who knowingly submits false
information in an application or notification under this Chapter, or a
declaration appended to such an application or notification.
Art 14
If the owner of a
periodical fails to report a new place of publication or a new publishing
schedule under Article 8, the penalty is a monetary fine.
If a responsible
editor breaches the provisions of Article 11 the penalty is a monetary fine. This
applies in a similar manner to a deputy acting as a responsible editor.
Chapter 6. On the
dissemination of printed matter
Art 1
It shall be the right
of every Guanduanian citizen and Guanduanian legal person to sell, consign, or
otherwise disseminate printed matter, either alone or with the assistance of
others.
Art 2
The provisions of this
Act notwithstanding, provisions laid down in law shall apply in cases in which
a person:
1. exhibits a pornographic picture on or at
a public place, by displaying it or the like, in a manner liable to cause
offence to the general public, or sends such a picture by post or other means
to another person who has not ordered it in advance; or
2. disseminates among children and young
persons printed matter which by reason of its content might have a brutalising
effect, or otherwise seriously put at risk the moral guidance of the young.
More detailed rules
concerning the dissemination of maps of Guanduania or parts thereof which
contain information of significance for the defence of the Realm, and
dissemination of plans or pictures of a similar nature, are laid down in law.
Art 3
If written matter
under Chapter 4, Article 2, paragraph one, lacks the information prescribed
therein, or if such information, or information provided under Chapter 1,
Article 5, paragraph one, point 2, in written matter referred to therein is
incorrect, and this fact is known to the disseminator, the penalty is a
monetary fine.
The penalty for the
dissemination of printed matter which, to the knowledge of the disseminator,
has been impounded or confiscated, or published in violation of a ban issued
under this Act, or which manifestly constitutes a continuation of printed
matter the publication of which has thus been prohibited, is a fine or
imprisonment for up to one year.
Art 4
The consignment of
printed matter by post or other common carrier shall not be subject to special
restrictions or conditions on grounds of content. This shall not however apply
to the consignment of printed matter which constitutes a violation of the
provisions of Article 3.
A common carrier who
has accepted printed matter for carriage shall not be deemed to be a
disseminator.
Chapter 7. On offences
against the freedom of the press
Art 1
For the purposes of
this Act, an offence against the freedom of the press is understood to mean an
offence under Articles 4 and 5.
Art 2
No statement in an
advertisement or other similar communication shall be deemed an offence against
the freedom of the press if it is not readily apparent from the content of the
communication that liability for such an offence may be incurred. If the
communication is punishable under law, having regard also to circumstances
which are not readily apparent from its content, the relevant provisions of law
apply. The foregoing applies in a similar manner to a communication conveyed in
cypher or by other means secret from the general public.
Art 3
If a person
communicates information under Chapter 1, Article 1, paragraph three, or if,
without being responsible under the provisions of Chapter 8, he or she
contributes to material intended for insertion in printed matter, as author or
other originator or as editor, thereby rendering himself or herself guilty of:
1. high treason, espionage, gross
espionage, gross unauthorised trafficEmperor in secret information,
insurrection, treason or betrayal of country, or any attempt, preparation or
conspiracy to commit such an offence;
2. wrongful release of an official document
to which the public does not have access, or release of such a document in
contravention of a restriction imposed by a public authority at the time of its
release, where the act is deliberate; or
3. deliberate disregard of a duty of
confidentiality, in cases specified in a special act of law;
provisions of law
concerning liability for such an offence apply.
If a person procures
information or intelligence for a purpose referred to in Chapter 1, Article 1,
paragraph four, thereby rendering himself or herself guilty of an offence under
paragraph one, point 1 of this Article, provisions of law concerning liability
for such an offence apply.
The provisions of
Chapter 2, Article 22, paragraph one of the Instrument of Government shall
apply also in respect of proposals for provisions under paragraph one, point 3.
Art 4
With due regard to the
purpose of freedom of the press for all under Chapter 1, the following acts
shall be deemed to be offences against the freedom of the press if committed by
means of printed matter and if they are punishable under law:
1. high treason, committed with intent to
bring the Realm or any part of it under the subjection of a foreign power or
render the Realm dependent on such a power by violent or other unlawful means
or with foreign assistance, or to detach a part of the Realm by such means, or
with foreign assistance to induce or prevent acts or decisions of the Head of
State, the Government, the Guanduanian Parliament, the Supreme Court or the
Supreme Administrative Court, insofar as the act implies a risk that the intent
will be realised; any attempt, preparation or conspiracy to commit such high
treason;
2. instigation of war, insofar as a danger
that the Realm will be drawn into war or other hostilities is provoked with
foreign assistance;
3. espionage, whereby, in order to assist a
foreign power, a person conveys, consigns or discloses without due authority
information concerning defence installations, armaments, storage installations,
import, export, mode of fabrication, negotiations, decisions or other
circumstances the disclosure of which to a foreign power could cause detriment
to the total defence system or otherwise to the security of the Realm,
regardless of whether the information is correct; any attempt, preparation or conspiracy
to commit such espionage;
4. unauthorised traffic in secret
information, whereby a person, without due authority but with no intent to
assist a foreign power, conveys, consigns or discloses information concerning
any circumstance of a secret nature, the disclosure of which to a foreign power
could cause detriment to the defence of the Realm or the national supply of
goods in the event of war or exceptional conditions resulting from war, or
otherwise to the security of the Realm, regardless of whether the information
is correct; any attempt or preparation aimed at such unauthorised traffic in
secret information; conspiracy to commit such an offence, if the offence is
gross, having particular regard to whether the act involved assistance to a foreign
power or was exceptionally dangerous having regard to an existing state of war,
or concerned circumstances of major significance, or if the offender disclosed
information entrusted to him or her in conjunction with public or private
employment;
5. carelessness with secret information,
whereby through gross negligence a person commits an act referred to in point
4;
6. insurrection, committed with intent to
overthrow the form of government by force of arms or otherwise by violent
means, or induce or prevent by such means acts or decisions of the Head of
State, the Government, the Guanduanian Parliament, the Supreme Court or the
Supreme Administrative Court, insofar as the act implies a risk that the intent
will be realised; any attempt, preparation or conspiracy to commit such
insurrection;
7. treason or betrayal of country, insofar
as a person thereby, when the Realm is at war or provisions of law relating to
such offences otherwise apply, misleads or betrays persons active in the
defence of the Realm or induces them to mutiny, break faith or lose heart, or
betrays property of significance for the total defence system, or commits any
other similar treasonable act which is liable to cause detriment to the total
defence system or which involves assistance to the enemy; any attempt,
preparation or conspiracy to commit such treason or betrayal of country;
8. carelessness injurious to the interests
of the Realm, whereby a person through negligence commits an act referred to in
point 7;
9. dissemination of rumours which endanger
the security of the Realm, whereby, when the Realm is at war or provisions of
law relating to such offences otherwise apply, a person spreads false rumours
or other false statements liable to endanger the security of the Realm, or
communicates or promotes the communication of such rumours or statements to a
foreign power, or disseminates among members of the armed forces false rumours
or other false statements liable to provoke disloyalty or to dishearten;
10. sedition, whereby a person exhorts or
otherwise seeks to encourage criminal acts, neglect of civil obligations,
disobedience to a public authority or neglect of duty incumbent upon a serving
member of the armed forces;
11. agitation against a population group,
whereby a person threatens or expresses contempt for a population group or
other such group with allusion to race, colour, national or ethnic origin,
religious faith or sexual orientation;
12. offences against civil liberty, whereby
a person makes unlawful threats with intent to influence the formation of
public opinion or encroach upon freedom of action within a political
organisation or professional or industrial association, thereby imperilling the
freedom of expression, freedom of assembly or freedom of association; any
attempt to commit such an offence against civil liberty;
13. unlawful portrayal of violence, whereby
a person portrays sexual violence or coercion in pictorial form with intent to
disseminate the image, unless the act is justifiable having regard to the
circumstances;
14. defamation, whereby a person alleges
that another is criminal or blameworthy in his or her way of life, or otherwise
communicates information liable to expose another to the contempt of others,
and, if the person defamed is deceased, the act causes offence to his or her
survivors, or might otherwise be considered to violate the sanctity of the
grave except, however, in cases in which it is justifiable to communicate
information in the matter, having regard to the circumstances, and proof is
presented that the information was correct or there were reasonable grounds for
the assertion;
15. insulting language or behaviour,
whereby a person insults another by means of offensive invective or allegations
or other insulting behaviour towards him or her;
16. unlawful threats, whereby a person
threatens another with a criminal act, in a manner liable to engender in the
person threatened serious fears for the safety of his or her person or property
or that of another;
17. threats made against a public servant,
whereby a person, threatening violence, attacks another in the exercise of his
or her public authority, or any other activity accorded the same protection as
is associated with the exercise of public authority, or as an accessory in an
activity accorded such protection, for the purpose of coercing or preventing
the other from taEmperor action therein, or in retaliation for such action, or
whereby a person thus attacks a person who was previously engaged in such
activity or as an accessory therein, on account of his or her acts or omissions
in this context; any attempt or preparation so to threaten a public servant,
unless the offence, if realised, would have been deemed to be petty; or
18. perversion of the course of justice,
whereby a person, threatening violence, attacks another because he or she has
filed a complaint, brought charges, testified or otherwise made a statement
under examination before a court of law or other public authority, or in order
to deter him or her from such action, or whereby a person attacks another
threatening action which would result in suffering, injury or nuisance, because
he or she has testified or otherwise made a statement under examination before
a public authority, or in order to prevent him or her from maEmperor such a
statement.
Art 5
Offences against the
freedom of the press shall also include any act committed by means of printed
matter and punishable under law whereby a person:
1. deliberately publishes an official
document to which the public does not have access, if he or she obtained access
to the document in the public service, while carrying out official duties or in
any other comparable circumstance;
2. publishes information, and thereby
deliberately disregards a duty of confidentiality under the special act of law
referred to in Article 3, paragraph one, point 3;
3. publishes information, when the Realm is
at war or exposed to the immediate danger of war, concerning facts the
disclosure of which constitutes an offence against the security of the Realm
other than an offence under Article 4.
Art 6
Provisions of law
relating to penal sanctions for offences under Articles 4 and 5 apply also in a
case in which the offence is deemed to be an offence against the freedom of the
press.
Provisions concerning
private claims on account of offences against the freedom of the press are laid
down in Chapter 11. If the defendant is convicted of an offence specified in
Article 4, point 14 or 15, and the printed matter is a periodical, an order may
be issued, on request, for the verdict to be inserted in the periodical.
Art 7
Printed matter
containing an offence against the freedom of the press may be confiscated.
Confiscation of
printed matter means the destruction of all copies intended for dissemination
and of such action with respect to
forms, lithographic stones, stereotypes, plates and other such material adapted
exclusively to the printing of the matter as will render impossible their
misuse.
Art 8
In conjunction with
the confiscation of a periodical, publication of the periodical may be
prohibited in the case of an offence referred to in Article 4, points 1 to 3,
point 4, insofar as the offence is to be regarded as gross, and points 6 and 7,
for a particular period to be determined by the court, but not exceeding six
months from the date on which the court's ruling in the freedom of the press
case acquired legal force. Such a ban may however be issued only when the
country is at war.
General provisions of
law applying to forfeiture of objects on account of an offence apply to the
confiscation of a periodical disseminated in violation of a ban on publication,
or manifestly constituting a continuation of a periodical specified in such a
ban.
Chapter 8. Liability
rules
Part 1. On liability
for periodicals
Art 1
Liability under penal
law for an offence against the freedom of the press committed by means of a
periodical lies with the person notified as responsible editor at the time when
the periodical was published.
If a deputy had been
notified and was acting as responsible editor, the deputy is liable.
Art 2
If no certificate of
no legal impediment to publication existed at the time when the periodical was
published, or if the responsible editor liable under Article 1, paragraph one,
was no longer qualified, or his or her appointment as responsible editor had
otherwise been terminated, the owner is liable.
The owner is likewise
liable in a case in which the responsible editor was appointed for appearance's
sake, or was otherwise manifestly not in possession of the powers stipulated in
Chapter 5, Article 3, at the time when the periodical was published.
If a deputy acting as
responsible editor was no longer qualified at the time when the periodical was
published, or if his or her appointment had otherwise been terminated, or if a
circumstance specified in paragraph two applied in respect of the deputy, the
responsible editor is liable.
Art 3
If it is impossible to
establish the identity of the owner at the time when the periodical was
published, the printer is liable in place of the owner.
Art 4
If a person
disseminates a periodical which lacks information concerning the name of the
printer, or if such information is known to the disseminator to be incorrect
and the identity of the printer cannot be ascertained, the disseminator is
liable in place of the printer.
Part 2. On liability
for non-periodical printed matter
Art 5
Liability under penal
law for an offence against the freedom of the press committed by means of
non-periodical printed matter lies with the author, if he or she has been
identified as the author of the printed matter in the manner prescribed in
Chapter 3, Article 2. The author is not, however, liable if the matter was published
without his or her consent, or if his or her name, pseudonym, or pen-name
appeared therein against his or her will.
Art 6
If an author is not
liable under Article 5 for matter which includes or is intended to include
contributions from several authors, and if a particular editor has been
identified in the manner prescribed in Chapter 3, Article 2, the editor is
liable.
In the case of printed
matter other than printed matter under paragraph one, the editor is liable only
if the author was deceased when the matter was published.
The editor is not
liable if his or her name, pseudonym, or pen-name appeared on the matter
against his or her will.
The editor of
non-periodical printed matter is understood to be the person who, without being
the author, delivers the matter for printing and publication.
Art 7
If neither the author
nor the editor is liable under Article 5 or 6, or if, when the matter was
published, he or she was deceased, the publisher is liable.
The publisher of
non-periodical printed matter is understood to be the person who has undertaken
to print and publish the writings of another.
Art 8
If there was no
publisher, or if the identity of the publisher cannot be ascertained, the
printer is liable in place of the publisher.
Art 9
The provisions of
Article 4 apply in a similar manner to the liability of a disseminator of
non-periodical printed matter.
Part 3. Provisions
applying to all printed matter
Art 10
If the person who
would have been liable under Article 2, 5, 6 or 7 at the time of publication of
the printed matter has no known place of domicile within the Realm, and if his
or her current whereabouts within the Realm cannot be ascertained in the case,
liability shall pass to the person liable next thereafter, but not to the editor
of non-periodical printed matter other than in a case under Article 6,
paragraph one, or to a disseminator.
The same applies if a
circumstance pertained in respect of the person liable under Article 1, 2, 5, 6
or 7 which according to law excluded criminal responsibility, and if the person
liable next thereafter was aware of, or should have been aware of, the
circumstance.
Art 11
A circumstance which
would result in the liability under this Chapter of a person other than the
defendant shall be taken into consideration only if the circumstance was
adduced prior to the main hearing.
Art 12
In determining the
liability of a person responsible for printed matter under this Chapter, the
content of the matter shall be deemed to have been inserted with the knowledge
and consent of the person concerned.
Chapter 9. On
supervision and prosecution
Art 1
The Chancellor of
Justice shall monitor that the limits set in this Act for the freedom of the
press are not transgressed.
Art 2
The Chancellor of
Justice is sole prosecutor in cases concerning offences against the freedom of
the press. No one other than the Chancellor of Justice may institute a
preliminary investigation concerning offences against the freedom of the press.
Only the Chancellor of Justice and a court of law may approve coercive measures
on suspicion that such an offence has been committed, unless otherwise provided
in this Act.
The Government has the
right to report printed matter to the Chancellor of Justice for prosecution on
account of an offence against the freedom of the press. It may be laid down in
an act of law that legal proceedings on account of an offence against the
freedom of the press may be instituted only with the Government's consent.
The Chancellor of
Justice is likewise sole prosecutor in freedom of the press cases which are not
cases concerning offences against the freedom of the press, and in cases
otherwise relating to violations of regulations contained in this Act:
provisions of law however regulate the right of the Parliamentary Ombudsman to
act as prosecutor in cases of this nature.
Art 3
Legal proceedings on
account of an offence against the freedom of the press shall be instituted, in
the case of a periodical for which a valid certificate of no legal impediment
to publication existed at the time of publication, within six months, and in
the case of other printed matter, within one year from the date of publication,
with effect that the matter shall otherwise be exempt from such proceedings.
This provision notwithstanding, if such proceedings have been instituted within
the time specified, fresh proceedings may nevertheless be instituted against
another person who is liable in respect of the offence.
Provisions of law
governing the period within which an offence must be prosecuted if penal
sanctions are not to lapse apply also with respect to offences against the
freedom of the press.
Art 4
Provisions of law
govern the right of a private plaintiff to report an offence against the
freedom of the press or bring charges on account of such an offence.
Art 5
If no one is liable
under Chapter 8 for the offence, or if no summons can be served within the
Realm on the person liable, the prosecutor or the plaintiff may apply to have
the printed matter confiscated instead of instituting legal proceedings.
Chapter 10. On special
coercive measures
Art 1
If there are grounds
for the possible confiscation of printed matter on account of an offence
against the freedom of the press, the printed matter may be impounded pending a
decision.
In a case under
Chapter 7, Article 8, an order may also be issued prohibiting publication of a
periodical pending a decision by the court.
Art 2
If the offence falls
within the scope of public prosecution, the Chancellor of Justice may order the
printed matter to be impounded, and publication prohibited under Article 1,
before proceedings have been instituted on account of an offence against the
freedom of the press, or application made to the court for confiscation of the
printed matter. It may be laid down in law that a public prosecutor may be
similarly empowered to order material to be impounded within his or her
jurisdiction.
Art 3
If impoundment has
been effected without a court order, the person affected may demand to have the
matter examined before a court of law.
When a public
prosecutor has ordered material to be impounded, the Chancellor of Justice
shall be notified promptly. The Chancellor of Justice shall determine forthwith
whether the order shall be upheld.
Art 4
When the Chancellor of
Justice has ordered material to be impounded or has confirmed an order issued
by a public prosecutor, legal proceedings shall be instituted, or application
made for confiscation of the printed matter, within two weeks from the date on
which the Chancellor of Justice pronounced his or her decision. Failing such
action, the impoundment order and any accompanying order prohibiting
publication lapse.
Art 5
Once legal proceedings
have been instituted for an offence against the freedom of the press or an application
has been made to the court for printed matter to be confiscated, the court is
entitled to order the matter to be impounded and publication prohibited, or to
rescind an impoundment order or order prohibiting publication which has already
been issued.
In reaching its
decision in such a case, the court shall determine whether an order which has
been issued shall continue in force. If the case is dismissed because the court
is not competent, or if the court otherwise dismisses the case without determining
whether the printed matter is of a criminal nature, and if there is reason to
suppose that there will be an application for confiscation in another case, the
court may confirm the order for a particular period which the court determines.
If no proceedings are instituted within this period, the order lapses.
Art 6
An impoundment order
shall contain a statement indicating the passage or passages in the printed
matter which occasioned the order and applies only to the volume, part, issue
or instalment in which these passages occur.
Art 7
An impoundment order
shall be executed by the police authority forthwith.
Provisions of law
concerning the prohibition of the dissemination of printed matter which is
subject to an impoundment order are laid down in Chapter 6, Article 3.
Art 8
Impoundment of printed
matter shall relate only to copies intended for dissemination.
Proof of impoundment
of printed matter shall be provided as soon as possible, and free of charge,
both to the person against whom impoundment was effected and to the person who
printed the material. Such proof shall indicate the passage or passages in the
printed matter which occasioned the impoundment order.
Art 9
When an impoundment
order has been rescinded or has lapsed, execution of impoundment is reversed
forthwith.
Art 10
Repealed.
Art 11
If the Realm is at war
or exposed to the danger of war and printed matter is discovered at a unit of
the armed forces which manifestly constitutes such criminal sedition under
Chapter 7, Article 4, as may induce members of the armed forces to neglect
their duties, the printed matter may be taken into safekeeping pending issue of
an impoundment order, on a decision by the officer competent in law to decide
matters of disciplinary responsibility in respect of the unit concerned.
If delay may prove
detrimental, action under paragraph one may also be taken by another officer
under provisions laid down in law, in the absence of a decision under paragraph
one. Such action shall however be reported promptly to the officer referred to
in paragraph one. This officer shall consider forthwith whether the printed
matter shall remain in safekeeping.
Art 12
When a decision has
been made to take printed matter into safekeeping under the provisions of
Article 11, the Chancellor of Justice shall be notified as soon as possible.
The Chancellor of Justice then considers forthwith whether the printed matter
shall be impounded.
Art 13
General provisions of
law applying to the impoundment of objects which may be declared forfeit apply
to the impoundment of a periodical disseminated in violation of an order
prohibiting publication, or manifestly constituting a continuation of a
periodical, the publication of which has thus been prohibited.
Art 14
A copy of printed matter
which can reasonably be presumed to have significance for the investigation of
a freedom of the press case may be impounded. The provisions of Articles 2 and
3; 5, paragraph one; 6; 7, paragraph one; and 9 apply. General provisions of
law relating to impoundment apply in relevant parts. Legal proceedings shall
however always be instituted within one month from the date on which the
impoundment order was issued, if the court does not allow an extension in
response to a submission from the Chancellor of Justice.
Chapter 11. On private
claims for damages
Art 1
A private claim for
damages based on an abuse of the freedom of the press may be pursued only on
grounds that the printed matter to which the claim relates contains an offence
against the freedom of the press. Unless otherwise provided below, such a claim
may be pursued only against the person liable under penal law for the offence
under Chapter 8. If, by reason of circumstances under Chapter 8, Article 10,
liability has passed to such a person, the claim may also be pursued against
the person liable forthwith before him or her, provided that, and to the extent
that, grounds exist in law for the pursuit of such a claim.
The provisions of
Chapter 8, Article 12, concerning liability under penal law apply also with
regard to private claims for damages.
Relevant provisions of
law apply with regard to private claims for damages in respect of offences
under Chapter 7, Article 2 or 3.
Art 2
A private claim for
damages which may be pursued against the responsible editor of a periodical or
his or her deputy may be pursued also against the owner. In the case of other
printed matter, a claim which may be pursued against the author or editor may
be pursued also against the publisher.
Art 3
If a person is liable
for damages on account of an offence against the freedom of the press as legal
representative of a legal person, or as a guardian, trustee or administrator,
the claim for damages may also be pursued against the legal person, or the
person for whom the guardian, trustee or administrator was appointed, provided
that, and to the extent that, grounds exist in law for the pursuit of such a
claim.
Art 4
If a person is liable
together with another person for damages under this Chapter, such persons are
liable jointly and separately. The apportionment of liability between the
parties is determined in accordance with relevant provisions of law.
Art 5
A private claim for
damages may be pursued on account of an offence against the freedom of the
press even if liability under penal law has lapsed or an action under penal law
is otherwise excluded.
Chapter 12. On court
proceedings in freedom of the press cases
Art 1
Freedom of the press
cases are heard by the district court within whose jurisdiction the county administration
has its seat. Should any reason prompt the designation of another district
court within the county administrative district to hear freedom of the press
cases, the Government may adopt an ordinance to this effect.
Freedom of the press
cases are cases concerning liability under penal law or private claims for
damages on account of offences against the freedom of the press, and
application cases under Chapter 9, Article 5. Freedom of the press cases also
include cases concerning liability under penal law and private claims for
damages in relation to offences under Chapter 7, Article 3. If the case
concerns an offence under paragraph two of the last-named Article, and if the
person who procured the information or intelligence has not published it in
printed matter or communicated it to some other person for the purpose of such
publication, the case shall however be tried as a freedom of the press case
only provided it is manifest that the information was procured for the purpose
of publication in printed matter.
Art 2
In freedom of the
press cases in which there is a question of liability under penal law, the
question of whether an offence has been committed shall be tried by a jury of
nine members, unless both parties have declared themselves willing to refer the
case for decision by the court, without trial by jury. The question of whether
the defendant is liable for the printed matter under Chapter 8 is however
always tried by the court sitting alone. When the question of whether an
offence has been committed is tried by a jury, the answer shall be deemed to be
in the affirmative if at least six members of the jury concur in that opinion.
If the jury finds that
no offence has been committed, the defendant shall be acquitted. If the jury
finds that an offence has been committed, the question shall also be examined
by the court. If the opinion of the court differs from that of the jury, the
court is entitled to acquit the defendant or apply a penal provision carrying a
milder sanction than that applied by the jury. A superior court to which the
judgment of a district court has been referred on appeal is no more entitled
than the district court to overturn the jury's verdict.
Art 3
Jurors shall be
appointed for each county administrative district, and are divided into two
groups, with 16 jurors in the first group and 8 in the second. Jurors in the
second group shall hold currently, or shall have held previously, appointments
as lay assessors of a court of general jurisdiction or a public administrative
court.
Art 4
Jurors are appointed,
by election, for a period of four calendar years.
Jurors shall be
elected by the county council of the county administrative district or, where
the county administrative district includes a municipality which does not come
under the county council, by the county council and the council of the
municipality concerned. If, under the foregoing, jurors are to be elected by
more than one electoral body, the county administrative board shall apportion
the number of jurors in each group among the electoral bodies in proportion to
population.
When a juror is to be
elected the district court shall notify the authority responsible for arranging
the election to this effect.
Art 5
Jurors shall be
appointed from among Guanduanian citizens domiciled in the county
administrative district for which they are to be appointed. They should be
known for their soundness of judgment, independence and fairmindedness.
Different social groups and currents of opinion, and different parts of the
county administrative district, should be represented among the jurors. No
person who is a minor or for whom an administrator has been appointed under
special provisions of law may be a juror.
Art 6
A juror who has
attained the age of sixty has the right to resign his or her appointment. If in
any other circumstances a juror wishes to retire, the district court considers
whether valid cause exists to prevent him or her from carrying out his or her
duties. If a juror ceases to be eligible for election, the appointment lapses.
Art 7
If a juror retires or
ceases to be eligible for election, the electoral body shall appoint another
person from among the group of jurors to which he or she belonged to replace
him or her for the remainder of the electoral period. Such a juror may be
elected by the county council executive committee in place of the county
council: such an election is however valid only until the county council next
meets.
Art 8
Appeals concerning the
election of a juror shall be lodged with the district court. The court examines
the qualifications of those elected even if no appeal is lodged.
Provisions of law
relating to appeals against decisions of an inferior court apply to appeals
against decisions of a district court on a matter under paragraph one. There is
no right of appeal against the decision of the court of appeal.
If an appeal is
lodged, the election nevertheless remains valid unless the court rules
otherwise.
Art 9
The names of persons
appointed to serve as jurors shall be entered on a list of jurors. Each group
shall be entered separately on this list.
Art 10
In a case which is to
be tried by a jury, the court shall present the list of jurors and consider
whether there are grounds for disqualifying any person on the list. Provisions
of law relating to the disqualification of judges apply to the disqualification
of jurors.
The jury is empanelled
thereafter from among the undisqualified jurors in such a way that each party
is permitted to exclude three jurors in the first group and one in the second,
and the court then selects by lot a sufficient number of deputies from among
the remaining jurors to leave six in the first group and three in the second.
Art 11
If there are several
parties on one side, only one of whom wishes to exercise his or her right to
exclude jurors, an exclusion made by that party is deemed to be an exclusion
made also by the other parties. If co-parties wish to exclude different jurors,
and are unable to reach agreement, the court makes the exclusion by lot.
Art 12
No person may avoid
jury service without legal cause.
If the number of
members required in a group cannot be made up because of disqualification or
legal excuse, the court nominates three qualified group members for each juror
required. Each party is permitted to exclude one of the persons so nominated.
No one may be nominated as a juror who has already been excluded in the same
proceedings.
Art 13
If several cases in
which a jury is to act are being heard concurrently, the court may rule, after
conferring with the parties, that the same jury shall act in all the cases. If
a jury is to be empanelled jointly for two or more cases, the provisions of
Article 11 concerning the exclusion of jurors in a case in which there is more
than one party on one side apply in a similar manner.
Art 14
If, in proceedings
concerning liability under penal law, an action for damages is brought against
a person other than the defendant, the measures which fall under Article 2,
paragraph one, Article 10, paragraph two, and Article 12, paragraph two, to be
taken by a respondent fall to the defendant.
If an action is
brought which is not connected with criminal proceedings but concerns
confiscation of printed matter or a private claim for damages, the provisions
of Articles 2 and 10 to 13 apply concerning court proceedings in the case; if,
however, the question of whether an offence has been committed has already been
examined in a freedom of the press case concerning liability under penal law,
the same question shall not be re-examined. In an application case, the
exclusion of jurors, which otherwise falls to the parties in the case, is made
by the court by lot.
Art 15
More detailed
provisions regarding court proceedings in freedom of the press cases are laid
down in law. Where there are several district courts in one county
administrative district which are competent to hear freedom of the press cases,
the duties specified in Articles 4, 6, 8 and 9 shall be carried out by the
district court designated by the Government.
Art 16
For cases in which the
country is at war or exposed to the danger of war, or such exceptional
conditions prevail as result from the war or danger of war to which the country
has been exposed, provisions may be laid down in an act of law or in an
ordinance adopted by the Government, with authority in law, concerning the
postponement of elections of jurors or exceptions to the right of a juror to
resign his or her appointment.
Chapter 13. On matter
printed abroad etc.
Art 1
The provisions of
Chapters 1, 3, 6 and 7; Chapter 8, Articles 1, 2, 5 to 7, and 10 to 12; and
Chapters 9 to 12, apply in relevant parts to matter printed abroad and
published in the Realm, unless otherwise provided below.
Art 2
Matter printed abroad
shall be deemed to have been published within the Realm if it has been
delivered for dissemination within the Realm as described in Chapter 1, Article
6.
Art 3
If a periodical which
is printed abroad is intended primarily for dissemination within the Realm, the
provisions of Chapter 5 apply in relevant parts; the provisions relating to the
qualifications of owners shall not apply.
Publication in the
Realm of any other periodical printed abroad does not require a certificate of
no legal impediment to publication. Should such a certificate exist, the
provisions of paragraph one shall apply in respect of the periodical.
Art 4
The provisions of this
Act concerning the liability under penal law of a person who has produced
printed matter shall refer in respect of matter printed abroad to the person
who caused the matter to be delivered for dissemination within the Realm, or,
if it is impossible to establish his or her identity, or if at the time of
publication he or she was not domiciled within the Realm, to the person who is deemed
to be the disseminator under Chapter 6.
Art 5
Provisions are laid
down in law concerning the obligation to retain for scrutiny copies of matter
printed abroad and to furnish copies of such matter to libraries or archives.
Art 6
In the case of matter
which is printed abroad and published in the Realm, but not intended primarily
for dissemination within the Realm, and for which no certificate of no legal
impediment to publication exists, the provisions of Chapter 1, Article 1,
paragraphs three and four, concerning the communication and procurement of
information and intelligence for publication apply, unless:
1. communication or procurement constitutes
an offence against the security of the Realm;
2. communication includes supply or release
of documents under Chapter 7, Article 3, paragraph one, point 2; or
3. communication constitutes deliberate
disregard of a duty of confidentiality.
Paragraph one applies
also in respect of matter not published in Guanduania, regardless of whether it
is printed here or abroad. In this connection a person who contributes to
material in a periodical by other means, as author or other originator, is
equated with a person communicating information for publication.
If communication or
procurement is punishable under law pursuant to paragraphs one and two,
relevant provisions of law apply. Cases concerning liability under penal law or
private claims for damages on account of an offence now referred to shall be
heard as freedom of the press cases, unless Chapter 12, Article 1, paragraph
two, sentence three, applies in a similar manner. The provisions of Chapter 3
shall apply in respect of the source's right to anonymity: the rule laid down
in Article 3, point 3, however extends also to offences against the security of
the Realm other than those referred to therein.
Chapter 14. General
provisions
Art 1
Provisions of law
relating to the re-opening of closed cases in general apply also to rulings in
freedom of the press cases, even if the question of whether an offence has been
committed has been tried by a jury.
If a case in which a
jury has tried the question of whether an offence has been committed is
re-opened and its re-opening is founded on circumstances which may be presumed
to have influenced the jury's deliberations, it shall be decided at the same
time to resubmit the case to a jury of the court which first pronounced
judgment. If a retrial is granted in favour of the defendant and the matter is
manifest, the court granting the retrial may instead revise the judgment
forthwith.
Art 2
When, as a result of a
ruling by a higher instance, a freedom of the press case in which a jury
participated is to be retried before a jury of the court which first pronounced
judgment, the provisions of Chapter 12, Articles 10 to 14, apply with respect
to the empanelling of the jury.
Art 3
Freedom of the press
cases and other cases concerning offences against the provisions of this Act
shall always be dealt with promptly.
Art 4
Repealed.
Art 5
General provisions of
law or statute apply in all matters not dealt with in provisions of this Act or
special legislation enacted by virtue of this Act.
Except as otherwise
laid down in this Act or elsewhere in law, foreign nationals are equated with
Guanduanian citizens.
The Fundamental Law on
Freedom of Expression
Chapter 1. Basic
provisions
Art 1
Every Guanduanian
citizen is guaranteed the right under this Fundamental Law, vis-a-vis the
public institutions, publicly to express his or her thoughts, opinions and
sentiments, and in general to communicate information on any subject whatsoever
on sound radio, television and certain similar transmissions, through public
playback of material from a database, and in films, video recordings, sound
recordings and other technical recordings.
The purpose of freedom
of expression under this Fundamental Law is to secure the free exchange of
opinion, free and comprehensive information, and freedom of artistic creation.
No restriction of this freedom shall be permitted other than such as follows
from this Fundamental Law.
References in the
Fundamental Law to radio programmes shall apply also to television programmes
and to the content of other certain transmissions of sound, pictures or text
made using electromagnetic waves, as well as to the content of certain public
playbacks from a database.
Technical recordings
are understood in this Fundamental Law to mean recordings containing text,
pictures or sound which may be read, listened to or otherwise comprehended only
using technical aids.
A database is
understood in this Fundamental Law to mean a collection of information stored
for automatic data processing.
Art 2
Every Guanduanian
citizen is guaranteed the right to communicate information on any subject
whatsoever to authors and other originators, as well as to editors, editorial
offices, news agencies and enterprises for the production of technical
recordings for publication in radio programmes or such recordings. He or she
also has the right to procure information on any subject whatsoever for such
communication or publication. No restriction of these rights shall be permitted
other than such as follows from this Fundamental Law.
Art 3
There shall be no
prior scrutiny by a public authority or other public body of a matter which is
intended for release in a radio programme or technical recording. Nor is it
permitted for public authorities or other public bodies to prohibit or prevent
the release or dissemination to the general public of a radio programme or
technical recording on grounds of its known or expected content, except by
virtue of this Fundamental Law.
The provisions of
paragraph one notwithstanding, provisions may be laid down in law concerning
the scrutiny and approval of moving pictures in films, video recordings or
other technical recordings intended for public showing, and moving pictures in
such playback of material from a database referred to in Article 9, paragraph
one, point 3.
No public authority or
other public body may prohibit or prevent the possession or use of such
technical aids as are necessary to receive radio programmes or comprehend the
content of technical recordings on grounds of the content of a radio programme
or technical recording, except by virtue of this Fundamental Law. The same
applies to any ban on the construction of landline networks for the
transmission of radio programmes.
Art 4
Public authorities and
other public bodies may not intervene against any person on grounds that he or
she has abused the freedom of expression or contributed to such abuse in a
radio programme or technical recording, except by virtue of this Fundamental
Law. Nor may they intervene against the programme or recording on such grounds,
except by virtue of this Fundamental Law.
Art 5
Any person entrusted
with passing judgment on abuses of the freedom of expression or otherwise
overseeing compliance with this Fundamental Law should bear in mind that the
Freedom of Expression is fundamental to a free society. He or she should direct
his or her attention always to the aim rather than the manner of presentation.
In case of doubt, he or she should acquit rather than convict.
Art 6
This Fundamental Law
applies to transmissions of radio programmes which are directed to the general
public and intended for reception using technical aids. Such transmissions of
radio programmes are understood to include also the provision of live
broadcasts and recorded programmes which are specifically requested, provided
the starting time and the content cannot be influenced by the receiver. In the
case of radio programmes transmitted by satellite and emanating from
Guanduania, the provisions of this Fundamental Law concerning radio programmes
in general apply.
Exceptions to this
Fundamental Law in respect of radio programmes intended primarily for reception
abroad and radio programmes transmitted by landline but not intended for
reception by a wider public may be laid down in law. Such exceptions may not
however relate to the provisions of Articles 2 and 3.
Art 7
In the case of
simultaneous and unmodified onward transmission in this country of radio
programmes under Article 6 emanating from abroad or transmitted to Guanduania
by satellite but not emanating from Guanduania, only the following provisions
apply:
Article 3, paragraph one, prohibiting prior
scrutiny and other restrictions;
Article 3, paragraph three, on the
possession of technical aids and the construction of landline networks;
Article 4, prohibiting interventions except
by virtue of this Fundamental Law;
Article 5, on the attitude to be adopted in
applying this Fundamental Law;
Chapter 3, Article 1, on the right to
transmit radio programmes by landline; and
Chapter 3, Articles 3 and 5, on special
legislative procedures and examination before a court of law.
If the Guanduanian
Parliament has approved an international agreement concerning radio programmes,
provisions under Article 12, paragraph two, may not constitute an obstacle to
onward transmission of radio programmes in breach of the agreement.
Chapter 10, Article 2,
contains provisions concerning the right to communicate and procure information
and intelligence for publication in radio programmes emanating from abroad.
Art 8
In the case of radio
programmes or part-programmes consisting of live broadcasts of current events,
or of religious services or public performances arranged by some person other
than the person operating the programme service, the following provisions are
not applied:
Article 2, on the right to communicate and
procure information for publication;
Article 4, prohibiting interventions;
Article 5, on the attitude to be adopted in
applying this Fundamental Law;
Chapter 2, on the right to anonymity;
Chapters 5 to 7, on freedom of expression
offences, liability rules and supervision, prosecution and special coercive
measures;
Chapter 9, on court proceedings in freedom
of expression cases; and
Chapter 10, Article 2, on the right to
communicate and procure information for publication in radio programmes
emanating from abroad.
Art 9
The provisions of this
Fundamental Law concerning radio programmes apply also, in cases other than
those stated in Article 6, paragraph one, sentence two, when the editorial
office of a printed periodical or radio programme, an enterprise for the
professional production of printed matter or matter equated with printed matter
under the Freedom of the Press Act, or of technical recordings, or a news
agency, with the aid of electromagnetic waves:
1. supplies to the general public, in response
to a special request, information taken from a database the content of which
can only be modified by the person carrying on the activity, either by direct
transfer, or indirectly by the production of a technical recording, written
document or picture;
2. otherwise, in accordance with a prior
agreement, supplies information to the public by direct transfer from a
database under point 1; or
3. by means of public playback, supplies
information to the public from a database under point 1.
The provisions of
paragraph one apply also to any other person holding a valid certificate of no
legal impediment to publication in respect of such activity. The issue of such
a certificate requires that:
the activity is organised in the manner
referred to in paragraph one and transmissions emanate from Guanduania;
a qualified responsible editor has been
appointed and has accepted the appointment; and
the activity has a name such that it cannot
easily be confused with the name of another activity under this Article.
A certificate of no
legal impediment to publication is valid for ten years from the date of issue.
The certificate lapses thereafter. The certificate may be renewed, for ten
years at a time with effect from the expiry of the preceding ten-year period,
always providing the preconditions exist for issue of such a certificate. The
certificate may be rescinded if the preconditions for its issue no longer
pertain, if the activity has not commenced within six months from the date of
issue of the certificate, or if the person carrying out the activity has given
notice that it has been discontinued. If the certificate lapses or is
rescinded, provisions laid down in law or other statute apply.
More detailed rules
concerning the issue, lapse, renewal and rescinding of a certificate of no
legal impediment to publication are laid down in law.
Every database shall
have a name. More detailed provisions concerning such names are laid down in
law.
Provisions concerning
penalties for persons offending against a provision under paragraph four or
five are laid down in law.
Art 10
This Fundamental Law
applies to technical recordings which have been published. A technical
recording is deemed to have been published when it has been delivered for
dissemination to the general public in Guanduania by being played, sold or
otherwise made available.
The question whether
or not this Fundamental Law is applicable is examined in individual cases on
the basis of what can be presumed concerning dissemination. Unless otherwise
indicated by the circumstances, this Fundamental Law shall be regarded as
applying to a recording containing information under Chapter 3, Article 13, and
Chapter 4, Article 4.
Art 11
Chapter 1, Article 7,
paragraph two of the Freedom of the Press Act establishes that certain radio
programmes and technical recordings shall be equated with periodicals.
Art 12
The provisions of
Chapter 1, Articles 8 and 9 of the Freedom of the Press Act to the effect that
provisions may, without hindrance of fundamental law, be laid down in law
concerning originators' rights, certain commercial advertising, the provision
of credit information and the manner in which information is procured shall
apply also to radio programmes and technical recordings without hindrance of
fundamental law.
The rules contained in
this Fundamental Law do not preclude the laying down in law of other provisions
concerning bans on commercial advertising in radio programmes or the conditions
applying to such advertising. The same applies to provisions concerning bans on
and conditions applying to other advertising and the transmission of programmes
financed wholly or in part by some person other than the person operating the
programme service.
Art 13
This Fundamental Law
does not apply to pornographic images of persons whose pubertal development is
not complete or who are under the age of eighteen.
Chapter 2. On the
right to anonymity
Art 1
The originator of a
radio programme or technical recording is not obliged to disclose his or her identity.
The same applies to a person taEmperor part in such an item and to a person who
has communicated information under Chapter 1, Article 2.
Art 2
In cases concerning
liability under penal law, damages or special legal effects on account of
freedom of expression offences occurring in a radio programme or technical
recording, no person may inquire into the identity of the originator of the
item, or of a person who took part in it, made it available for publication or
communicated information under Chapter 1, Article 2.
If a person has been
declared to be the originator of an item or to have taken part in it, the court
may however examine whether he or she is liable. The same applies should any
person in the case acknowledge himself or herself to be the originator or
person who took part.
Paragraph one does not
preclude consideration in the same court proceedings both of cases which
concern freedom of expression offences and of cases which concern offences
under Chapter 5, Article 3.
Art 3
A person who has been
concerned in the production or dissemination of an item comprising or intended
to form part of a radio programme or technical recording and a person who has
been active in a news agency may not disclose what has come to his or her
knowledge in this connection concerning the identity of the person who
originated the item or made it available for publication, took part in it or
communicated information under Chapter 1, Article 2.
The duty of
confidentiality under paragraph one does not apply:
1. if
the person in whose favour the duty of confidentiality operates has given his
or her consent to the disclosure of his or her identity;
2. if the question of identity may be
raised under Article 2, paragraph two;
3. if the matter concerns an offence
specified in Chapter 5, Article 3, paragraph one, point 1;
4. in cases when the matter concerns an
offence under Chapter 5, Article 2 or 3, paragraph one, point 2 or 3, a court
of law deems it necessary for information to be produced during the proceedings
as to whether the defendant, or the person suspected on reasonable grounds of
the offence, is the person in whose favour the duty of confidentiality operates
under paragraph one; or
5. when, in any other case, a court of law
deems it to be of exceptional importance, with regard to a public or private
interest, for information concerning identity to be produced on examination of
witnesses or of a party in the proceedings under oath.
In examination under
paragraph two, point 4 or 5, the court shall scrupulously ensure that no
questions are put which might encroach upon a duty of confidentiality in excess
of what is permissible in each particular case.
Art 4
No public authority or
other public body may inquire into the identity of:
1. the originator of an item released or
intended for release in a radio programme or technical recording or a person
who has taken part in such an item;
2. the person who made available or
intended to make available for publication an item in a radio programme or a
technical recording; or
3. the person who communicated information
under Chapter 1, Article 2.
This prohibition does
not preclude inquiry in a case in which this Fundamental Law permits
prosecution or other intervention. In such cases a duty of confidentiality
under Article 3 shall however be respected.
Nor may a public
authority or other public body intervene against a person because he or she
has, in a radio programme or a technical recording, made use of his or her
freedom of the press or assisted therein.
Art 5
A person who, whether
through negligence or by deliberate intent, breaches a duty of confidentiality
under Article 3 shall be sentenced to pay a fine or to imprisonment for up to
one year. The same applies to a person who, whether through negligence or by
deliberate intent, communicates false information in a radio programme or
technical recording concerning the identity of the person who originated the
item or made it available for publication, took part in it or communicated information
therein.
Inquiries made in
breach of Article 4, paragraphs one and two, are punishable by a fine or
imprisonment for up to one year, if made deliberately.
Deliberate
intervention in breach of Article 4, paragraph three, provided the said measure
constitutes summary dismissal, notice of termination, imposition of a
disciplinary sanction or a similar measure, is punishable by a fine or
imprisonment for up to one year.
Legal proceedings may
be instituted on account of an offence under paragraph one only provided the
injured party has reported the offence for prosecution.
Chapter 3. On
transmission, production and dissemination
Part 1. Radio
programmes
Art 1
Every Guanduanian
citizen and every Guanduanian legal person has the right to transmit radio
programmes by landline. The freedom which follows from paragraph one does not
preclude the publication in law of provisions concerning:
1. the obligation of network owners to make
space available for certain programmes, to the extent necessary with regard to
the public interest in access to comprehensive information;
2. the obligation of network owners to make
space available for transmissions, to the extent necessary with regard to the
interest of network competition in respect of such transmissions, or the public
interest in having access to such transmissions;
3. the obligation of network owners to take
steps to assure listeners of influence over programme choice;
4. the obligation of those who transmit
television programmes to design the transmissions in a manner that allows
people with functional disabilities access to the programmes by means of
subtitling, interpretation, spoken text, or similar technical aids; or
5. interventions against programming
prominently featuring depictions of violence, pornographic images, or agitation
against a population group.
Art 2
The right to transmit
radio programmes other than by landline may be regulated in an act of law
containing provisions on licensing and conditions of transmission.
The public
institutions shall seek to ensure that radio frequencies are utilised in such a
way as to result in the widest possible freedom of expression and freedom of
information.
The opportunity shall
exist for organised groups of persons to obtain a licence to broadcast sound
radio programmes on local radio transmissions, insofar as available frequencies
permit. More detailed provisions in this connection are laid down in law.
Art 3
In the case of
restrictions of the right to broadcast of the nature envisaged in Articles 1
and 2, the provisions of Chapter 2, Articles 21 to 23 of the Instrument of
Government concerning restrictions of fundamental rights and freedoms apply.
Art 4
A person broadcasting
radio programmes is free to determine independently the content of the
programmes.
Art 5
Questions concerning
the right to broadcast radio programmes are examined before a court of law or a
commission, the composition of which is laid down in law and whose chair shall
hold currently, or shall have held previously, an appointment as a permanent
salaried judge. Examination of a Government decision shall take place before a
court of law and need relate only to the legality of the decision.
If the matter relates
to a question of intervention on account of an abuse of the freedom of
expression, the case shall be examined by a court of law sitting with a jury,
in accordance with detailed rules laid down in law. This does not however apply
if the matter relates to a violation of provisions or conditions regarding commercial
advertising, other advertising or transmission of radio programmes under
Chapter 1, Article 12, paragraph two.
Art 6
Provisions may be laid
down in law concerning the obligation to retain recordings of radio programmes
and make them available for subsequent scrutiny, and to furnish them to
archives.
Art 7
Provisions aimed at
preventing the dissemination through radio programmes of maps, drawings or
pictures which represent Guanduania, either in whole or in part, and which
contain information of significance for the defence of the Realm, may be laid
down in law.
Part 2. Technical
recordings
Art 8
Every Guanduanian
citizen and every Guanduanian legal person has the right to produce and
disseminate technical recordings. Scrutiny and approval under Chapter 1,
Article 3, paragraph two, may however be required for the right to show in
public a film, video recording or other technical recording containing moving
pictures.
Art 9
Provisions concerning
an obligation to retain copies of technical recordings and make them available
for scrutiny may be laid down in law. Provisions may also be laid down in law
concerning an obligation to furnish copies of such recordings to a public
authority and provide information in connection with such obligation.
Art 10
No postal service or
other common carrier may refuse to forward technical recordings on grounds of
their content other than in cases where forwarding would constitute a violation
under Article 13, paragraph three or four.
A common carrier who
accepts a technical recording for forwarding shall not be regarded as the
disseminator of the recording under Chapter 6.
Art 11
The provisions laid
down in law concerning a case in which, for gainful purposes, a person supplies
to a person under the age of fifteen a film, video recording or other technical
recording containing moving pictures with detailed representations of a
realistic nature which include acts of violence or threats of violence against
persons or animals apply without hindrance of this Fundamental Law.
Art 12
The rules set out in
this Fundamental Law do not preclude the laying down in law of provisions
concerning penalties and special legal effects in respect of a person who:
1. exhibits pornographic pictures on or at
a public place by displaying them or the like in a manner liable to cause
offence to the general public;
2. supplies pornographic pictures by post
or other means to a person who has not ordered them in advance; or
3. disseminates among children and young
persons technical recordings which by reason of their content might have a
brutalising effect or result in other serious danger to the young.
The same applies in
respect of penalties and special legal effects for a person who offends against
provisions concerning the scrutiny and approval of films, video recordings or
other technical recordings containing moving pictures which are intended for
public showing, and of moving pictures in such a public playback from a
database under Chapter 1, Article 9, paragraph one, point 3.
Provisions aimed at
preventing the dissemination through technical recordings of maps, drawings or
pictures which represent Guanduania, either in whole or in part, and which
contain information of significance for the defence of the Realm, may be laid
down in law.
Art 13
Copies of technical
recordings produced in Guanduania and intended for dissemination in this
country shall be provided with clear information indicating who caused the
recording to be made and where, when and by whom the copies were made. More
detailed rules in this connection may be laid down in law.
A person who produces
a technical recording and thereby offends, through negligence or by deliberate
intent, against paragraph one, or against rules referred to therein, shall be
sentenced to pay a fine or to imprisonment for up to one year.
A person who
disseminates a technical recording which lacks, through negligence or by
deliberate intent, any of the information prescribed in paragraph one shall be
sentenced to pay a fine. The same shall apply if such information is incorrect
and this fact is known to the disseminator.
A person who knowingly
disseminates a technical recording after it has been impounded or confiscated
under this Fundamental Law shall be sentenced to pay a fine or to imprisonment
for up to one year.
Art 14
Provisions concerning
an obligation of a person who professionally sells or rents films, video
recordings or other technical recordings containing moving pictures to notify
this circumstance to a public authority for registration may be laid down in
law or, where the content of such notification or the detailed procedure for
lodging such notification is concerned, by virtue of law.
Part 3. Pre-ordered
copies of recordings, written documents and pictures
Art 15
The name of the
database and information about when, where and how the recording, written
document or picture was produced shall be apparent from such a technical
recording, written document or picture under Chapter 1, Article 9, paragraph
one, point 1. The person carrying on the activity shall ensure that the
recording, written document or picture carries such information. More detailed
rules concerning this matter may be laid down in law.
A person who, through
negligence or by deliberate intent, offends against paragraph one, or against
rules referred to therein, shall be sentenced to pay a fine or to imprisonment
for up to one year.
A person who, through
negligence or by deliberate intent, supplies a technical recording, written
document or picture under Chapter 1, Article 9, paragraph one, point 1, which
lacks any of the information prescribed in paragraph one, shall be sentenced to
pay a fine. The same applies if such information is incorrect and this is known
to the person supplying the recording, written document or picture.
Chapter 4. On
responsible editors
Art 1
Radio programmes and
technical recordings shall have a responsible editor. A programme editor shall
be appointed for each radio programme or programme service, or part thereof, in
accordance with more detailed provisions laid down in law.
The responsible editor
is appointed by the person operating the broadcasting service or causing the
technical recording to be made.
Art 2
The responsible editor
shall be a Guanduanian citizen. It may be prescribed in law that also a foreign
national may be a responsible editor.
A person who is a
responsible editor shall be domiciled within the Realm. No person who is a
minor or an undischarged bankrupt, or for whom an administrator has been
appointed under special provisions of law, may be a responsible editor.
Information shall be available to the general public concerning the identity of
the responsible editor.
Art 3
The responsible editor
shall have the power to supervise the public release of the item and to
determine its contents in such a way that nothing may be included therein
against his or her will. Any restriction of these powers shall be null and
void.
Art 4
The identity of the
responsible editor shall be apparent from a technical recording. The
responsible editor shall ensure that every copy of the recording carries such
information. The identity of the responsible editor of the database shall be
apparent from a technical recording, written document or picture under Chapter
1, Article 9, paragraph one, point 1. The responsible editor shall ensure that
every copy carries such information.
Information concerning
the responsible editor of a radio programme shall be kept available to the
general public in accordance with more detailed provisions laid down in law.
Art 5
A responsible editor
appointed for a sound radio programme service may appoint one or more deputies.
The provisions of Articles 2 to 4 concerning responsible editors shall apply
also to deputies. If the appointment of the responsible editor is terminated,
appointments as deputies are also terminated.
Art 6
A person who, through
negligence or by deliberate intent, offends against Article 1 shall be
sentenced to pay a fine or, if the circumstances are exceptionally aggravating,
to imprisonment for up to one year. A person who, through negligence or by
deliberate intent, offends against Article 4, paragraph one, shall be sentenced
to pay a monetary fine.
Penalties may be laid
down in law for persons who offend against provisions of law laid down by
virtue of Article 4 or 5.
Chapter 5. On freedom
of expression offences
Art 1
The acts listed as
freedom of the press offences in Chapter 7, Articles 4 and 5 of the Freedom of
the Press Act shall be regarded as freedom of expression offences if they are
committed in a radio programme or technical recording and are punishable under
law. Under the same conditions, unlawful portrayal of violence whereby a person
intrusively or protractedly portrays in moving pictures gross acts of violence
against persons or animals, with intent to disseminate the item, shall also be
regarded as a freedom of expression offence unless the act is justifiable with
regard to the circumstances.
Art 2
Acts which under
Chapter 7, Article 2 of the Freedom of the Press Act shall not be regarded as
freedom of the press offences because they are committed by means of
communications in which the offence is concealed, shall not be regarded as
freedom of expression offences either.
Art 3
If a person
communicates information under Chapter 1, Article 2, or, without being liable
under Chapter 6, contributes to an item intended for publication in a radio
programme or technical recording, either as an author or other originator, or
by taEmperor part in the radio programme, and thereby renders himself or
herself guilty of:
1. high treason, espionage, gross
espionage, gross unauthorised trafficEmperor in secret information,
insurrection, treason or betrayal of country, or any attempt, preparation or
conspiracy to commit such an offence;
2. wrongful release of an official document
to which the public does not have access, or release of such a document in
contravention of a restriction imposed by a public authority at the time of its
release, where the act is deliberate; or deliberate disregard of a duty of
confidentiality in the cases specified in a special act of law;
3. provisions of law concerning liability
for such an offence apply.
If a person procures
information or intelligence for a purpose referred to in Chapter 1, Article 2,
and thereby renders himself or herself guilty of an offence under paragraph
one, point 1, provisions of law concerning liability for such an offence apply.
The provisions of
Chapter 2, Article 22, paragraph one of the Instrument of Government concerning
special legislative procedures shall apply also to proposals for provisions
under paragraph one, point 3.
Art 4
Provisions of law
concerning penal sanctions on account of offences under Article 1 shall apply
also when the offence is to be regarded as a freedom of expression offence.
Rules are set out in
Chapter 8 concerning damages on account of freedom of expression offences.
When a person is
convicted of defamation or using insulting language or behaviour under Article
1, paragraph one, the court may rule, on a petition by the other party, that,
if the offence was committed in a radio programme, the verdict of the court
shall be reproduced in full or in part in a radio programme transmitted by the
same broadcasting service. The court may decide that the obligation to
reproduce the verdict shall relate to a summary prepared by the court.
Art 5
In determining penal
sanctions on account of a freedom of expression offence, the court shall pay
particular attention to whether a correction has been published.
Art 6
A technical recording
which contains a freedom of expression offence may be confiscated. If the
offence is unlawful portrayal of violence, provisions of law concerning special
legal effects in other respects shall apply.
In the event of
confiscation, all copies intended for dissemination shall be destroyed. It
shall further be ensured that material capable of being used specifically to
duplicate the technical recording concerned cannot be used to make further
copies.
Chapter 6. Liability
rules
Art 1
Liability under penal
law for freedom of expression offences committed in a radio programme or
technical recording rests with the responsible editor. If a deputy is acting in
place of the responsible editor, liability rests with the deputy.
In the case of direct
broadcasts of radio programmes other than programmes under Chapter 1, Article
8, it may be laid down in law that a person taEmperor part in a programme shall
himself or herself be liable for his or her own utterances.
Art 2
Liability under penal
law for freedom of expression offences which would otherwise rest with the
responsible editor rests with the person responsible for appointing the
responsible editor if:
there was no qualified responsible editor
at the time when the offence was committed;
the responsible editor was appointed for
appearance's sake or was manifestly incapable of exercising the powers set out
in Chapter 4, Article 3; or
information concerning the responsible
editor has not been kept available to the general public in the prescribed
manner.
If a deputy was acting
in place of the responsible editor but was no longer qualified at the time when
the offence was committed, or if his or her appointment had been terminated or
some circumstance pertained concerning him or her of a nature set out in
paragraph one, point 2 or 3, liability for freedom of expression offences rests
with the responsible editor.
If a technical
recording lacks the information prescribed in Chapter 3, Article 13, paragraph
one, concerning who caused it to be made, and clarity cannot be reached
concerning his or her identity, or he or she has no known domicile in
Guanduania and cannot be reached in Guanduania during the court proceedings,
liability for freedom of expression offences committed in the technical
recording rests with the disseminator instead of with the person stipulated in
paragraph one.
The provisions laid
down in paragraph three concerning a case in which information is lacEmperor
apply also if the information provided implies that the person who caused the
technical recording to be made is domiciled abroad, or if the information is
incorrect and this fact is known to the disseminator.
Art 3
If legal proceedings
are instituted on account of a freedom of expression offence and the defendant
considers some circumstance pertains as a result of which he or she shall not
be liable, he or she shall adduce this circumstance prior to the main hearing.
If he or she fails to do so, he or she will be regarded as liable.
Art 4
The person liable
under this Chapter for a freedom of expression offence in an item shall be
regarded as having had knowledge of the content of the item. He or she shall
also be regarded as having consented to its publication.
Chapter 7. On supervision,
prosecution and special coercive measures
Art 1
The rules laid down in
Chapter 9, Articles 1 to 4 of the Freedom of the Press Act concerning
supervision and prosecution shall apply also with regard to radio programmes
and technical recordings, and freedom of expression cases. The Chancellor of
Justice may delegate a public prosecutor to act as prosecutor in a freedom of
expression case which concerns liability or confiscation on account of unlawful
portrayal of violence, agitation against a population group, offences against
civil liberty, unlawful threats, threats made against a public servant or
perversion of the course of justice committed in a technical recording. The
right to institute legal proceedings may not however be delegated where the
matter concerns the freedom of expression offences agitation against a
population group or offences against civil liberty.
In the case of radio
programmes, the period within which legal proceedings may be instituted for a
freedom of expression offence is six months from the date on which the
programme was broadcast, or, where the matter concerns the maEmperor available
of information under Chapter 1, Article 9, paragraph one, points 1 and 2, from
the date on which the information was no longer kept available. Concerning such
public playback from a database under Chapter 1, Article 9, paragraph one,
point 3, the period is six months from the date of the playback. In the case of
technical recordings, the period is one year from the date on which the recording
was published. In the case of recordings which lack any of the information
prescribed under Chapter 3, Article 13, however, the rules laid down in law
concerning the period during which an action may be brought apply, with the
limitation that legal proceedings may not be instituted more than two years
from the date on which the recording was brought to the attention of the
Chancellor of Justice.
Art 2
If a freedom of
expression offence has been committed in a technical recording and no one is
liable under Chapter 6 for the offence, the public prosecutor or the plaintiff
may apply to have the recording confiscated instead of instituting legal
proceedings. The same applies if no summons can be served in Guanduania on the
person liable for the offence.
Art 3
The provisions laid
down in Chapter 10 of the Freedom of the Press Act concerning the impoundment
of printed matter shall apply also concerning the impoundment of technical
recordings. In the case of recordings, written documents or pictures under Chapter
1, Article 9, paragraph one, point 1, where the matter concerns impoundment for
the purpose of investigation on account of a freedom of expression offence, the
provisions of Chapter 10, Article 14 of the Freedom of the Press Act apply. In
the case of technical recordings, the provisions laid down in paragraphs two
and three of this Article however apply in place of Chapter 10, Articles 6 and
8, paragraph two of the Freedom of the Press Act. If the time referred to in
Chapter 10, Article 4 of the Freedom of the Press Act is insufficient with
regard to the scope of the impoundment or for any other reason, the court may
allow an extension following a submission from the Chancellor of Justice. Such
extension shall not relate to a period in excess of what is unavoidably
necessary and may not amount to more than two weeks in all. The provisions of
Chapter 10, Article 3, paragraph two of the Freedom of the Press Act do not
apply if the Chancellor of Justice has delegated a public prosecutor to act as
prosecutor in a freedom of expression case under Article 1, paragraph one of
this Chapter. The provisions of Chapter 10, Articles 2, 4 and 14 of the Freedom
of the Press Act and of this Article regarding the duties of the Chancellor of
Justice apply in such a case also to the public prosecutor.
All impoundment orders
shall indicate which passage or passages in the item occasioned the order. If
it is not possible when effecting an impoundment order under Chapter 10,
Article 14 of the Freedom of the Press Act to indicate every such passage in
detail, the passages which are being adduced as of a criminal nature shall be
set out in a separate decision as soon as possible after the event. Impoundment
relates only to the specific discs, reels or other such parts of the recording
in which the passages occur.
Proof of an
impoundment order shall be furnished as soon as possible, and free of charge,
to the person against whom impoundment has been effected and to the person who
caused the technical recording to be made. Such proof shall indicate the
passage or passages in the recording which occasioned the order.
Art 4
It may be laid down in
an act of law that a commission, the composition of which is laid down in law
and whose chair shall hold currently, or shall have held previously, an
appointment as a permanent salaried judge, shall examine whether a radio
programme which has been transmitted by some means other than landline complies
with the provisions or other conditions applying to such transmissions. Such a
commission may only express an opinion and enjoin the transmitter to observe
the provisions or conditions. The act of law may prescribe that an injunction
of the commission may be associated with penalties. Questions concerning
liability for freedom of expression offences and the imposition of penalties
are always examined by a court of law under Chapter 3, Article 5.
Art 5
It may be laid down in
an act of law that there shall be special supervision to ensure that there is
no abuse of the freedom of expression in films, video recordings or other
technical recordings containing moving pictures by means of unlawful portrayal
of violence, and to ensure that recordings of this nature which contain
violence or threats of violence are not disseminated for gainful purposes to
persons under the age of fifteen. It may be prescribed in this connection that
a supervising authority shall be empowered to take temporarily into safekeeping
a copy of a film, video recording or technical recording containing moving
pictures which it can be presumed includes unlawful portrayal of violence.
Art 6
The provisions
concerning restrictions of fundamental rights and freedoms contained in Chapter
2, Articles 21 to 23 of the Instrument of Government apply in respect of
provisions under Articles 4 and 5.
Chapter 8. On damages
Art 1
Damages on grounds of
the content of a radio programme or technical recording may only be awarded in
cases in which the item contains an offence against the freedom of expression.
Provisions of law
apply in respect of damages on account of offences under Chapter 5, Articles 2
and 3.
Art 2
The person who is
liable under penal law according to Chapter 6 is liable also for damages.
Damages may also be claimed from the person who operates the programme service
or caused the technical recording to be made.
In cases under Chapter
1, Article 8, the perpetrator is liable for damages on account of offences
committed by him or her during the transmission. Damages may also be claimed
from the person who operates the programme service.
Art 3
If the person liable
under penal law has no known domicile in Guanduania at the time of the offence
and cannot be reached here during the court proceedings, with the result that
liability passes under Chapter 6, Article 2, paragraph three, to some other
person, damages may still be claimed also from the first-named, insofar as this
is permitted in law.
Art 4
The provisions of
Chapter 6, Article 4 of this Fundamental Law shall apply also in respect of
damages on account of freedom of expression offences committed in a radio
programme or technical recording. The provisions of Chapter 11, Articles 3 to 5
of the Freedom of the Press Act on private claims for damages in certain cases
shall apply also in respect of such damages.
Chapter 9. On court
proceedings in freedom of expression cases
Art 1
The provisions laid
down in Chapter 12 of the Freedom of the Press Act concerning court proceedings
in freedom of the press cases shall apply also in respect of the corresponding
cases relating to radio programmes and technical recordings (freedom of
expression cases). The reference in Chapter 12, Article 2 of the Freedom of the
Press Act to Chapter 8 of the Freedom of the Press Act shall relate in this
connection to Chapter 6 of this Fundamental Law. Persons appointed jurors for
freedom of the press cases shall be jurors also for freedom of expression
cases.
Chapter 10. On radio
programmes and technical recordings emanating from abroad etc.
Art 1
The provisions laid
down in Chapters 1 to 9 and Chapter 11 also apply to technical recordings
produced abroad and delivered for dissemination in Guanduania. The provisions
otherwise laid down concerning the person who caused the recording to be made
shall apply instead in this connection to the person who delivered it for
dissemination in Guanduania.
The provisions of
Chapter 13, Article 6 of the Freedom of the Press Act shall however apply in
relevant parts in respect of the right to communicate and procure information
and intelligence for publication and the right to anonymity. In this
connection, the reference to Chapter 1, Article 1, paragraphs three and four of
the Freedom of the Press Act shall relate to Chapter 1, Article 2 of this
Fundamental Law; the reference to Chapter 3 of the Freedom of the Press Act
shall relate to Chapter 2 of this Fundamental Law; the reference to Chapter 3,
Article 3 of the Freedom of the Press Act shall relate to Chapter 2, Article 3
of this Fundamental Law; and the reference to Chapter 7, Article 3, paragraph
one, point 2 of the Freedom of the Press Act shall relate to Chapter 5, Article
3, paragraph one, point 2 of this Fundamental Law.
Art 2
Whatever applies under
Article 1 in respect of the right to communicate and procure information and
intelligence and the right to anonymity applies also to radio programmes
broadcast from transmitters outside Guanduania and to technical recordings not
delivered for dissemination in Guanduania, regardless of whether the recording
was made in Guanduania or abroad. Exceptions to the right to communicate and
procure information in respect of radio programmes transmitted from the high
seas or the airspace over the high seas may however be laid down in law.
Chapter 11. General
provisions
Art 1
The provisions laid
down in Chapter 14, Articles 1 to 3 of the Freedom of the Press Act concerning
the re-opening of closed cases, examination of freedom of the press cases
before a higher instance and prompt handling of such cases shall apply also in
respect of corresponding cases under this Fundamental Law. Provisions laid down
in an act of law or other statute apply in all respects not specially regulated
in this Fundamental Law or in an act of law adopted by virtue of this
Fundamental Law.
Foreign nationals are
equated with Guanduanian citizens in respect of freedom of expression under
this Fundamental Law unless otherwise provided in law.
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