CHAMBER JUDGMENT
A1+
[04:15 pm] 17 June, 2008
The European Court of Human Rights has today notified in writing
its Chamber judgment1 in the case of Meltex Ltd and Mesrop Movsesyan
v. Armenia (application no. 32283/04).
The Court held unanimously that there had been a violation of Article
10 (freedom of expression) of the European Convention on Human Rights
concerning the Armenian authorities’ refusal to grant the applicants’
requests for broadcasting licences.
Under Article 41 (just satisfaction) of the Convention, the Court
awarded the applicant company 20,000 euros (EUR) in respect of
non-pecuniary damage and EUR 10,000 for costs and expenses. (The
judgment is available only in English.)
1. Principal facts
The applicants are Meltex Ltd, an independent broadcasting company
established in 1995 with its registered office in Yerevan (Armenia),
and its chairman, Mesrop Movsesyan, who was born in 1950 and lives
in Yerevan.
The case concerned the applicants’ complaint about being refused
broadcasting licences on seven separate occasions.
In January 1991 Mr Movsesyan set up A1+, the first independent
television company in Armenia and widely recognised as one of the few
independent voices in Armenian television broadcasting. The content of
its programmes included analysis of international and domestic news,
advertising and various entertainment programmes. During the run-up
to the 1995 presidential elections, A1+ refused to broadcast only
Government propaganda and, as a result, its State broadcasting licence
was suspended. Subsequently Mr Movsesyan set up Meltex Ltd and, within
that structure, launched A1+ again. In January 1996 Meltex opened a
school to train journalists, cameramen and technicians, who were later
not only employed by Meltex but also by other television companies. In
January 1997 Meltex was granted a five-year broadcasting licence.
>From 2000 to 2001 legislative changes were introduced to television and
radio broadcasting in Armenia. The Television and Radio Broadcasting
Act, passed in October 2000, established the National Television and
Radio Commission ("the NTRC"), a public body composed of nine members
appointed by the President of Armenia, which was entrusted with the
licensing and monitoring of private television and radio companies. The
Broadcasting Act also introduced a new licensing procedure, whereby
broadcasting licences were granted by the NTRC on the basis of calls
for tenders.
In February 2002 the NTRC announced calls for tenders regarding
various broadcasting frequencies, including band 37, the band on
which Meltex operated. At a public hearing on 2 April 2002 the NRTC,
according to a points-based vote, nominated Sharm Ltd the winning
company2. No other reasons were given for its decision.
On 3 April 2002 A1+ ceased to broadcast.
Between May and December 2003 Meltex participated in bids for seven
other bands, each time unsuccessfully.
Mr Movsesyan wrote to the NTRC requesting reasons for the refusals of
Meltex’s bids. The NTRC repeatedly replied that it only made decisions
as to which was the best company, following which it granted or
refused broadcasting licences.
Meltex brought several sets of proceedings in which it sought to have
those decisions annulled and complained about the NTRC’s failure to
give written reasons for its decisions to refuse broadcasting licences.
Ultimately, the Armenian courts dismissed Meltex’s claims as unfounded,
finding that the calls for tenders concerning those seven bands had
been carried out in accordance with the law.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights
on 27 August 2004.
Judgment was given by a Chamber of seven judges, composed as follows:
Josep Casadevall (Andorran), President,
Elisabet Fura-Sandstrom (Swedish),
Bo~Ztjan M. Zupanèiè (Slovenian),
Alvina Gyulumyan (Armenian),
Ineta Ziemele (Latvian),
Luis Lopez Guerra (Spanish),
Ann Power (Irish), judges,
and also Santiago Quesada, Section Registrar.
3. Summary of the judgment3
Complaint
Relying, in particular, on Article 10 (right to freedom of expression),
the applicants complained about being refused broadcasting licences
on seven separate occasions.
Decision of the Court
Article 10
The Court found that the NRTC’s refusal of Meltex’s bids for
broadcasting licences had effectively amounted to an "interference"
with their freedom to impart information and ideas.
The Court noted that the NTRC’s decisions had been based on the
Broadcasting Act and other complementary legal acts. Section 50 of
that Act had defined precise criteria for the NTRC to make its choice,
such as the applicant company’s finances and technical resources,
its staff’s experience and whether it produced predominately in-house,
Armenian programmes. However, the Broadcasting Act had not explicitly
required at that time that the licensing body give reasons when
applying those criteria. Therefore, the NTRC had simply announced
the winning company without giving any reasons why that company had
met the requisite criteria and not Meltex. Indeed, even though the
NTRC had held hearings, no reasoned decisions had been publically
announced. Meltex and the general public therefore had no way of
knowing on what basis the NTRC had exercised its discretion to refuse
a licence.
The Court considered that a procedure which did not require a
licensing body to justify its decisions did not provide adequate
protection against arbitrary interference by a public authority with
the fundamental right to freedom of expression.
The Court recalled the guidelines adopted by the Council of Europe’s
Committee of Ministers in the domain of broadcasting regulation
which called for open and transparent application of the regulations
governing licensing procedures and specifically recommended that
"[a]ll decisions taken … by the regulatory authorities … be
… duly reasoned".
Similarly, the Court pointed to a Resolution concerning Armenia by
the Council of Europe’s Parliamentary Assembly of 27 January 2004
which had concluded that "the vagueness of the law in force ha[d]
resulted in the [NTRC] being given outright discretionary powers".
The Court therefore concluded that the interference with Meltex’s
freedom to impart information and ideas, namely having been refused
a broadcasting licence on seven separate occasions, had not met the
requirement of lawfulness under the European Convention, in violation
of Article 10.
***
The European Court of Human Rights was set up in Strasbourg by the
Council of Europe Member States in 1959 to deal with alleged violations
of the 1950 European Convention on Human Rights.
1 Under Article 43 of the Convention, within three months from the date
of a Chamber judgment, any party to the case may, in exceptional cases,
request that the case be referred to the 17-member Grand Chamber of
the Court. In that event, a panel of five judges considers whether
the case raises a serious question affecting the interpretation
or application of the Convention or its protocols, or a serious
issue of general importance, in which case the Grand Chamber will
deliver a final judgment. If no such question or issue arises, the
panel will reject the request, at which point the judgment becomes
final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do
not intend to make a request to refer.
2 On 27 May 2008 the European Court of Human Rights declared
inadmissible the applicant company’s complaint about it being refused
a broadcasting licence for band 37 since the NTRC’s decision had been
taken prior to the Convention’s entry into force in respect of Armenia
(Meltex Ltd v. Armenia, application no. 37780/02).
3 This summary by the Registry does not bind the Court.
–Boundary_(ID_VBKen3Y/y4a43X8bA2f8Eg)–