CASE OF FRĂSILĂ AND CIOCÎRLAN v. ROMANIA [Extracts]
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
6. The first applicant was born in 1957 and lives in Piatra-Neamţ (Romania); the second was born in 1972 and lives in Jakobstad (Finland). They are both journalists. 7. In 1995 the first applicant set up the limited corporation Tele M, whose registered purpose was the production and broadcasting of radio and television programmes. The first applicant was the majority shareholder and manager. The company obtained broadcasting licence no. 246/1997 and was granted television operation rights for the Neamţ region. 8. In 1999 the first applicant set up the private limited liability company Radio M Plus, whose main registered purpose was the production of audiovisual programmes. The first applicant was its sole shareholder and manager. A change in share capital in 2000 reduced his interest to 20%. 9. The first applicant’s intention was to separate the television activities from those of radio broadcasting, with Radio M Plus dealing solely with the latter. Pending the change in audiovisual legislation which would enable the assignment of the radio-broadcasting licence (amendment finally adopted on 8 August 2002), the relevant activities were divided between Radio M Plus, which produced the radio programmes, and Tele M, which was responsible for broadcasting. The equipment necessary for the radio activity (including broadcasting) belonged to the company Radio M Plus. 10. In January 2002 the television station Tele M broadcast two documentaries; one concerned a protégé of I.T. who was wanted by the police, and the other was about one of I.T.’s business ventures, namely a hotel where traces of mercury had been found in food. In the first applicant’s submission, after those two documentaries I.T. threatened to make his companies insolvent as a result of inspections by the financial authorities. According to the information provided by the first applicant, I.T. was at the time a member of parliament affiliated to the party in power, and was referred to in the press as a “local baron”. 11. On 25 January 2002 the local financial authorities of Piatra-Neamţ attempted to carry out an unannounced inspection at the head offices of Tele M. In view of the first applicant’s opposition, he was fined by the financial authorities. The fine was, however, subsequently annulled, because it had been imposed, according to the applicant, in breach of the statutory provisions which required giving 15 days’ notice to the company concerned before an inspection could be carried out. An inspection was subsequently carried out, however, and the authorities found that the company owed significant amounts to the State budget. An agreement for the staggered repayment of the sums due was entered into with the first applicant. In his submission, the inspection had followed a request made by I.T. to V.M., who was head of the local public finance directorate and who, at the time, was an associate of I.T. in a number of commercial companies. 12. The first applicant explained that, having regard to the high amount of the aggregate debt and the fact that it was repayable immediately, and in order to avoid insolvency, he had been persuaded to sell his majority interest in the company Tele M. to I.T. and to the company I., which belonged to the wife and son of V.M. He thus ceased to be a shareholder on 1 August 2002. On the same day the applicant was dismissed from his duties as manager of the company. 13. On the same day, the company Radio M Plus, of which the first applicant was still the manager, and the company Tele M, set up a partnership for the production and broadcasting of radio programmes. Under the partnership agreement, Tele M was to provide movable and immovable property, programmes, licences and contracts, whilst Radio M Plus was to provide specialised equipment, financial resources and programmes, and was to take charge of the management. In accordance with the technical broadcasting permit of 16 September 1998, issued by the Communications Ministry, the radio station Radio M Plus was to broadcast from its head office at 80, Stefan cel Mare, Piatra-Neamţ. 14. In a decision of 2 August 2002, the company Radio M Plus appointed the first applicant as manager of the partnership. The radio activities were located on the second floor of the building at 80, Stefan cel Mare, Piatra-Neamţ, which housed studios for production and for radio broadcasting, and one for guests. 15. The second applicant was the radio station’s editor and, from 1 October 2002, its programme director. 16. From 2 October 2002, following certain disagreements between the representatives of the two above-mentioned companies, the applicants were denied access to the radio station’s newsroom by representatives of Tele M. 17. On 16 October 2002 the applicants brought urgent proceedings seeking a right of access to the radio station’s newsroom. 18. In a decision of 6 December 2002 the Neamţ County Court upheld the applicants’ claim and ordered Tele M to give them access to the newsroom of Radio M Plus, at 80, Stefan cel Mare, Piatra-Neamţ. This decision was upheld at last instance by the Bacău Court of Appeal, on 11 March 2003. The courts noted, in particular, that the head offices of Radio M Plus and Tele M were located in the same building and that the companies were therefore entitled to make use of it for their activities. They concluded that the barring of the applicants from the radio’s newsroom by Tele M. constituted an unlawful action that was likely to cause prejudice to the activities of the radio station, in which the applicants held the posts of manager and editor, respectively. 19. On 7 January 2003, on the applicants’ request, the Piatra-Neamţ Court of First Instance ordered the enforcement of the Neamţ County Court’s decision of 6 December 2002. 20. On 14 January 2003 a bailiff accompanied the applicants to the radio station’s head office. The representative of the company Tele M denied the applicants access to the second floor of the building, explaining that the newsroom had been transferred to the ground-floor of the building, to a room where they were received. Only the bailiff was able to visit the rooms on the second floor where the special equipment was located. 21. On 18 March 2003 the applicants reiterated their request for the enforcement of the final decision of 6 December 2002, as in the meantime an appeal by the defendant against that decision had been dismissed. 22. A fresh attempt at enforcement took place on 12 May 2003, but was unsuccessful. On that occasion, the bailiff noted that the decision to be enforced was clear and that it was not necessary to initiate court proceedings in order to clarify the meaning and scope of its operative provisions. 23. On 24 January 2003, on account of their inability to exercise their profession as journalists, following the refusal by Tele M to allow them access to the radio’s newsroom, the applicants filed a criminal complaint with the public prosecutor for opposition to the enforcement of a final decision. On 8 July 2003 the public prosecutor at the Piatra-Neamţ Court of First Instance gave a decision discontinuing the proceedings, finding that the dispute actually concerned the implementation of the partnership agreement signed on 1 August 2002. On 30 January 2004 the Principal Public Prosecutor confirmed the discontinuance. 24. On 23 February 2004 the applicants lodged an urgent application requesting the courts to order Tele M to comply with the partnership agreement of 1 August 2002 and, for that purpose, to hand over to them any radio production and broadcasting equipment that was necessary for the implementation of that agreement. They further sought an order that the company be fined 2 million Romanian lei (ROL) per day of non-compliance. 25. In a final decision of 12 October 2004 the Sibiu County Court dismissed the application, finding that it concerned the merits of the question of the performance of the agreement rather than a temporary or urgent situation justifying an immediate injunction. 26. On 25 October 2004 the company Tele M returned to the company Radio M Plus the equipment of which the latter was the owner. 27. On 25 March 2005 the first applicant filed a criminal complaint with the Piatra-Neamţ Court of First Instance against the shareholders and managers of Tele M for refusing to allow him access to the newsroom and to the equipment necessary for radio programmes, thus preventing him from exercising his profession as journalist. On 27 June 2007 the first applicant was informed that his criminal complaint had been referred to the public prosecutor at the Piatra-Neamţ Court of First Instance, which had opened criminal proceedings against three managers of the company Tele M for embezzlement. He was not kept informed of subsequent developments in the proceedings. 28. The Court has not been informed whether the applicants have brought civil-law proceedings for the performance of the partnership agreement of 1 August 2002 between the companies Radio M Plus and Tele M. 29. In their written observations of 9 June 2008 the Government informed the Court as follows: “According to the information notified by the bailiff N.T., he was unable to pursue the enforcement procedure, in view of the subject-matter of the claim – enforcement of an obligation ‘to perform’ – and the legal nature of the premises, and, moreover, having regard to the fact that the writ of execution did not precisely stipulate the location of the newsroom of Radio M Plus SRL or describe its composition. In those conditions, the bailiff stated that he was not competent to go beyond the above-mentioned legal framework.” 30. On 30 January 2003 the National Audiovisual Council (the “NAC”) ordered the company Tele M to terminate the assignment of audiovisual licence no. 246/1997 as provided for under the partnership agreement of 1 August 2002 and to ensure that its situation became lawful within thirty days, in view of the fact that the said agreement was in breach of the new Audiovisual Act (law no. 504/2002), which prohibited the exploitation of an audiovisual licence by anyone other than its legal beneficiary. There is no evidence in the file to show whether the order was followed by a decision by the NAC to withdraw the licence in accordance with the above-mentioned law. 31. However, on 9 June 2003, the company Tele M once again assigned the rights to audiovisual licence no. 246/1997 to a third company. In a decision of 14 November 2003 that company obtained a broadcasting permit, for the purpose of which it was to use a transmitter belonging to the company Radio M Plus. Nevertheless, it can be seen from the case file that, in a decision of 20 November 2003, the NAC temporarily suspended the licence assignment until the finalising of the dispute that had in the meantime arisen between the two companies. It was only on 9 November 2004 that the third company secured the right to use a new transmitter. 32. According to an NAC certificate of 4 June 2008, issued at the request of the Romanian Government’s Agent, the company Radio M Plus held audiovisual licence no. 524, dated 17 May 2004, for the city of Târgu-Neamţ in respect of the radio station of the same name, and a broadcasting licence of 5 May 2005 issued by the National Regulatory Authority for Communications. The company also held two audiovisual licences obtained in 2004 for two television stations, which were authorised to broadcast in the cities of Piatra-Neamţ and Roman, respectively. Audiovisual licence no. 246/1997 issued for the radio station Radio M Plus belonged to the company Tele M Invest. The NAC concluded that the radio station Radio M Plus had not carried on any radio broadcasting activity in 2002-2004. 33. In October 2002 the second applicant published an article in the national newspaper România liberă about the various businesses run by I.T. 34. From November 2003 onwards the first applicant became the director of the regional weekly newspaper Lumea Nemţeanului. The second applicant was appointed as its editor-in-chief. According to the information provided by the applicants, the weekly had to close after five issues because of pressure exerted on the companies that distributed the newspaper and those with which it had signed advertising agreements. 35. The Audiovisual Act (Law no. 504) was enacted on 11 July 2002 and entered into force on 22 July 2002. This law set up the National Audiovisual Council, an autonomous public authority in the public interest, under parliamentary supervision, with the responsibility, under section 17(c) of that law, for granting audiovisual licences. Under section 57(b), the Council withdraws an audiovisual licence if its holder stops broadcasting programmes for 45 days, for technical reasons, and for 96 hours, for any other reason. Under section 59(1) of the law, in cases where the broadcasting of programmes requires the use of a terrestrial radio frequency, the audiovisual licence must be accompanied by a broadcasting permit issued by the National Regulatory Authority for Communications. 36. The relevant articles of the Code of Civil Procedure read as follows: ... “In respect of enforcement proceedings or any act of enforcement, any person who has an interest therein or is aggrieved as a result thereof is entitled to lodge an objection. Similarly, ... an objection may be lodged when it is necessary to clarify the meaning, scope or terms of implementation of the writ of execution, or where the authority responsible for enforcement refuses to perform an act of enforcement as provided for by law.” ... “Should the obligor refuse the enforcement of the obligation to act provided for in the writ of execution within ten days after receiving the order, the court, by a final interlocutory decision, after summoning the parties, may authorise the obligee to enforce the obligation himself or to have it enforced by third parties at the obligor’s expense.” “Should the obligation ‘to act’ require the obligor’s personal intervention, he may be coerced into performing the obligation by means of a civil-law coercive. The court, on an application by the obligee, may order the obligor, in a final interlocutory decision, after summoning the parties, to pay the State a fine of between 200,000 and 500,000 Romanian lei for each day until the obligation provided for in the writ of execution has been performed. The obligee may request the court to award him damages against the obligor in order to make good the loss incurred by the failure to perform the obligation ... Article 574 shall be applicable in such matters.” ... 39. A number of national and international non-governmental organisations, together with the European Commission, have drawn up reports on the freedom of the press in Romania in the period 2002 to 2004. ... 43. In its “2004 Regular Report on Romania’s progress towards accession” the European Commission added as follows: “Despite this progress, certain structural problems may affect the practical realisation of the freedom of expression. Many media organisations are not economically viable and their continued existence can depend on the support of political or business interests. External studies have concluded that journalists’ reporting can often be influenced by financial inducements leading to self-censorship. Against this background, the state has tolerated the accumulation of significant arrears by a number of the largest media companies, including most major private TV stations. Such a situation may compromise editorial independence and media monitoring studies have observed that the TV news is notably less critical of the government than the written press. There are also credible reports of locally elected officials using public office to influence the editorial policy of local newspapers, radio and TV stations, e.g. through the selective award of public advertising contracts.”