CASE OF GLAS NADEZHDA EOOD AND ANATOLIY ELENKOV v. BULGARIA
Violation of Art. 10;Not necessary to examine Art. 9;Violation of Art. 13+10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
5. Mr Elenkov, who was born in 1972 and lives in Sofia, is a Christian and a follower of the Protestant Church in Bulgaria. In 2000 he decided to set up Glas Nadezhda EOOD, through which he would apply for a broadcasting licence for a religious radio station. He obtained support for this initiative from many domestic and foreign religious figures of various denominations, as well as from the Directorate of Religious Denominations at the Council of Ministers. 6. On 1 June 2000 the Council of Ministers announced that a number of frequencies for local radio broadcasting would be made available to private operators in several cities. Ten such licences were available for Sofia. 7. On 16 August 2000 Glas Nadezhda EOOD applied to the State Telecommunications Commission (“the STC” – see paragraphs 24 and 25 below) for a broadcasting licence for a radio station with Christian religious programming for the Sofia City Region. In support of its application it presented, inter alia, a business plan, a programme project, a programme concept, a programme profile, and a programme scheme. It was apparent from these that it intended to broadcast mainly Christian religious programming. 8. In line with the established procedure, the application was forwarded to the National Radio and Television Committee (“the NRTC” – see paragraph 27 below). After deliberating on the application on 26 September 2000, the Committee refused in a decision of 2 October 2000, which was not notified to Glas Nadezhda EOOD, to grant a broadcasting licence. It stated, without adding further detail, that although the company had submitted all the requisite documents, its programme documents did not correspond to points 3.4, 3.5 and 4.3 of the NRTC's criteria for licensing regional overtheair radio operators, and only partly corresponded to points 3.1, 3.2, 3.3, 4.1 and 4.2 (see paragraph 28 below). Furthermore, Glas Nadezhda EOOD had no prior experience of creating programmes in the region. 9. In accordance with the established procedure (see paragraph 26 below), this decision was sent to the STC. 10. In a decision of 2 November 2000 the STC refused to grant a broadcasting licence to Glas Nadezhda EOOD. It stated that its refusal was based on the NRTC's decision of 2 October 2000. 11. Glas Nadezhda EOOD lodged an application for judicial review of the STC's decision with the Supreme Administrative Court. It submitted that, since it was not clear whether the NRTC's decision was subject to direct review, the court should first examine its lawfulness before ruling on the lawfulness of the STC's decision. Glas Nadezhda EOOD further argued that it had produced all of the requisite documents, each of which corresponded to the NRTC's criteria. The fact that no reasons had been given on how, in the NRTC's view, these documents failed to meet the criteria, was in breach of the rules of procedure and the requirement that administrative decisions be reasoned. On the contrary, all of the NRTC's criteria had been complied with. The decisions had also been in breach of the substantive law and did not correspond to the latter's object and purpose. In a supplementary memorial Glas Nadezhda EOOD made detailed submissions in respect of each of its alleged failures to comply with the relevant NRTC criteria. 12. In a judgment of 12 March 2001, a threemember panel of the Supreme Administrative Court dismissed the application. It held that the NRTC's decision was subject to review in separate proceedings. However, Glas Nadezhda EOOD had not sought such review, whereas indirect review of that decision in proceedings against the STC's decision was impossible. The court went on to say that the STC's decision concerned the allocation of the radio spectrum, whereas the NRTC's decision related to the broadcasting content. It was therefore impossible to grant a broadcasting licence without a prior finding by the NRTC that it would be used for broadcasting quality programmes. In issuing its decision, the STC was therefore bound by the NRTC's decision and the latter's refusal had effectively precluded the former from granting the requested licence. 13. Glas Nadezhda EOOD appealed on points of law to a five-member panel of the Supreme Administrative Court. It argued, inter alia, that while it could be accepted that the NRTC's refusal was binding on the STC, the former was bound to give reasons for its decision. 14. In a final judgment of 11 July 2001 the fivemember panel of the Supreme Administrative Court upheld the three-member panel's judgment, holding, inter alia, that the STC was bound by the NRTC's decision and could not have reviewed its lawfulness. Nor could the court, in proceedings against the STC's decision, examine the lawfulness of the NRTC's decision. It could do so only pursuant to an application for judicial review of the latter's decision. 15. Having been apprised of the tenor of the NRTC's decision in the course of the proceedings for judicial review of the STC's decision, on 1 March 2001 Glas Nadezhda EOOD made an application for its judicial review. It submitted that it had provided all necessary documents, thus establishing that it had complied with the NRTC's licensing criteria. However, that body had not pointed out any perceived deficiencies, thus failing to provide a duly reasoned decision and acting in breach of the rules of administrative procedure. 16. In a judgment of 21 March 2002 a threemember panel of the Supreme Administrative Court dismissed the application. It held that the NRTC's assessment of whether the licence application met its criteria was not subject to judicial scrutiny, since the NRTC enjoyed discretion in that respect. In the instant case it had found that the programme documents submitted by Glas Nadezhda EOOD did not meet its requirements for regional targeting, societal function and business perspective of the programming, and only partially met its criteria regarding the justification and uniqueness of its programme profile, conformity with the audience's expectations and professional and technological resources. These findings fell within the exclusive province of the NRTC. 17. Glas Nadezhda EOOD appealed on points of law to a fivemember panel of the Supreme Administrative Court, reiterating its arguments. 18. In a final judgment of 28 December 2002 the five-member panel of the Supreme Administrative Court upheld the threemember panel's judgment, fully endorsing its reasoning. 19. On 16 November 2000 Mr Elenkov, acting on behalf of Glas Nadezhda EOOD, requested the NRTC to provide it with a copy of the minutes of the deliberations at which it had examined its application for a broadcasting licence. He relied on the Access to Public Information Act 2000 (“Закон за достъп до обществена информация”). 20. As the NRTC did not reply within the statutory timelimit, Mr Elenkov asked the Sofia City Court to review its tacit refusal. 21. In a judgment of 2 July 2001 the Sofia City Court quashed the NRTC's tacit refusal and ordered it to reply to the request for information. It held that the minutes of the NRTC's deliberations were public information within the meaning of the Access to Public Information Act 2000. 22. The NRTC did not appeal and shortly afterwards the judgment entered into force. However, at the time of the latest receipt of information from the applicants (26 June 2006) the NRTC had still not complied with the judgment and had not replied to the applicants' request for information. 23. The relevant provisions of the Constitution of 1991 read as follows: “1. Freedom of conscience, freedom of thought and choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. 2. Freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” “1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” “1. The press and the other mass media shall be free and not subject to censorship. 2. Printed matter or another information medium may be stopped or confiscated only pursuant to an act of the judicial authorities, where it encroaches on good morals or incites to a forcible change of the constitutionally established order, the perpetration of a crime or an act of violence against the person. ...” “1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals. 2. Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.” 24. At the material time the Telecommunications Act 1998 (“Закон за далекосъобщенията”) regulated all forms of telecommunication, such as telephony and radio and television broadcasting. The main regulatory body having authority under the Act was the STC (renamed Telecommunications Regulation Commission in February 2002). At the relevant time it had the power to, inter alia, grant, amend, supplement, freeze, discontinue and withdraw radio and television broadcasting licences, following a decision by the NRTC (section 27(5) of the Act, as in force at the material time). 25. The STC was a collective body attached to the Council of Ministers (section 22(1) of the Act, as in force at the material time). It had five members, nominated by the Council of Ministers and appointed by the prime minister for a term of seven years, renewable once (section 23(1) and (2) of the Act, as in force at the material time). The members could be dismissed prematurely only if they resigned, seriously breached the provisions of the Act, seriously or systematically violated their official duties, committed a wilful publicly prosecutable criminal offence, or were unable to perform their duties for more than six months (section 23(4) of the Act, as in force at the material time). The organisation and the operation of the STC and of its secretariat were laid down in regulations issued by the Council of Ministers (section 26(1) of the Act, as in force at the material time). 26. Under section 105(1) of the Radio and Television Act 1998 (“Закон за радиото и телевизията”), as in force at the relevant time, radio and television broadcasting was only allowed under a licence granted by the STC. The application for a licence had to be filed with the STC and accompanied by, as relevant, a programme project, a programme concept, a programme profile and a programme scheme (section 111 of the Act, as in force at the relevant time). A STC official checked the submitted documents and, if he or she found any irregularities, advised the applicant, which then had seven days to rectify them. If the applicant failed to do so, the application was not considered (section 112 of the Act, as in force at the relevant time). The STC was to transmit the accepted application, plus enclosures, to the NRTC (section 113 of the Act, as in force at the relevant time), which then had to make a reasoned decision on the application within one month (section 115(1) of the Act, as in force at the relevant time). The decision was then transmitted to the STC within seven days (section 115(2) of the Act, as in force at the relevant time), which issued the licence, where appropriate, within one month (section 115(4) of the Act, as in force at the relevant time). 27. The NRTC was an independent body responsible for protecting freedom of expression, the independence of radio and television operators and the interests of the audience (section 20(1) of the Act, as in force at the relevant time). Five of its nine members were elected by the National Assembly, and the remaining four were appointed by the President of the Republic (section 24(1) of the Act, as in force at the relevant time). Alongside some consultative powers, it was entrusted with supervising the activities of radio and television operators and granting, modifying and withdrawing broadcasting licences (section 32(1)(1) and (9) of the Act, as in force at the relevant time). In November 2001 the NRTC was renamed the Electronic Media Council. 28. In issue 5/6 of 2000 of its bulletin, the NRTC published its “Programme criteria for the licensing of regional overtheair radio operators”. They read as follows: “1. Legal status 1.1. Conformity to the requirements of section 105 of the Radio and Television Act 1998. Note: compliance with this criterion is mandatory for admitting the applicant to assessment under the remainder of the criteria. 1.2. Transparency and structure of the [operator's] capital 0 to 5 points 2. Experience in setting up radio programmes 2.1. Degree of legality of the previous experience 0 to 10 points Note: the assessment is made on an inverse scale; an applicant which has received 0 points is not assessed under criteria 2.2., 2.3. and 2.4. 2.2. Population coverage ratio of the [radio station's] communication 0 to 5 points Note: the population coverage ratio of the communication is assessed on the basis of the audience for the region in percentage points. 2.3. Uniqueness of the form of communication 0 to 3 points 2.4. Societal function 0 to 3 points – information and commentary – culture and education – programming for disadvantaged groups 2.5. Previously established violations of the [Radio and Television Act] 0 to 5 points Note: the assessment is made on an inverse scale, on the basis of a report by the NRTC's monitoring department. 3. Programme aims 3.1. Justification of the selected programme profile 0 to 10 points Note: [If awarded] 0 points the applicant is not assessed under the other criteria. 3.2. Uniqueness (for the region) of the programme profile 0 to 10 points 3.3. Conformity with the audience's expectations 0 to 5 points 3.4. Regional targeting of the programme 0 to 5 points 3.5. Societal function 0 to 10 points – information and commentary – culture and education – programming for disadvantaged groups 4. Capacity to produce the programme 4.1. Professional resources 0 to 5 points 4.2. Technological resources 0 to 5 points 4.3. Business perspective 0 to 10 points 5. Setting up of radio networks in more than one region 5.1. Programme capabilities for supra-regional communication 5.2. Regional targeting of the individual programmes Note: the assessment under [criteria] 5.1. and 5.2. is from 0 to 3 points and is made by multiplying the two results. The maximum number of points under all criteria is 100.” 29. On 25 June 1999 the Constitutional Court gave judgment (реш. № 10 от 25 юни 1999 г. по к.д. № 36 от 1998 г., обн. ДВ, бр. 60 от 2 юли 1999 г.) in proceedings brought by fiftytwo members of Parliament who considered that a number of provisions of the Radio and Television Act 1998 should be declared contrary to the Constitution. The court held, as relevant: “Under the Telecommunications Act [1998], licences are granted by the STC and approved by the Council of Ministers. Whereas this licensing relates to the setting up of telecommunication networks and to the use of the radio frequency spectrum and its allocation, the NRTC's decision under the [Radio and Television Act 1998] relates to the content of the services which will be broadcast. The provisions of the [Telecommunications Act 1998] relate to licensing for the setting up of telecommunications networks and the provision of services through the radio frequency spectrum. Supervision of the preparation, creation and broadcasting of radio and television programmes ... falls outside the competence of the STC. As regards the media, and radio and television in particular, there exists the instruction [implicit] in Article 40 § 1 of the Constitution that they be transformed into autonomous public institutions, freed of the tutelage of a specific government agency. For this reason the regulation of radio and television is entrusted ... to the NRTC, which is not a government agency. Over recent years Bulgarian law has for the first time differentiated between the regimes for establishing telecommunications operators and those for establishing radio and television operators. The licensing of telecommunication operators is governed by the [Telecommunications Act 1998], whereas the licensing in respect of programme content is governed by the [Radio and Television Act 1998]. These are two differing types of activity: the first mainly monitors compliance with technological requirements under the [Telecommunications Act 1998], whereas the second monitors aesthetical and artistic qualities under the [Radio and Television Act 1998]. At the same time, the media law does not allow the independence of the procedure for issuing radio and television licences to be called into question, because section 115 of the [Radio and Television Act 1998] instructs the NRTC to make a reasoned decision on each application for a licence for electronic media broadcasting. If the NRTC's decision is to allow the application, it encloses the draft licence. The assertion ... that 'the STC is not bound by the decision of the NRTC [and that i]t may grant a licence or deny one irrespective of the positive decision of the NRTC' is unfounded. The [STC] has no right to review compliance with the criteria laid down in the [Radio and Television Act 1998]. All questions relating to the granting, modification, or withdrawal of radio and television broadcasting licences, respectively to guaranteeing freedom of expression through the media, fall within the mandate of the NRTC. This court has many times ruled on the relations between the communications rights and the regulatory bodies in the information field. The connection between freedom of speech and the powers of the STC were examined in judgment no. 33 of 1998 [(решение № 33 от 8 декември 1998 г. по к.д. № 30 от 1998 г., обн., ДВ, брой 147 от 15 декември 1998 г.)], whose reasoning is also applicable in the instant case. This judgment states: 'As already found by [this court] in its judgment no. 7 of 1996 [(решение № 7 от 4 юни 1996 г. по к.д. № 1 от 1996 г., обн., ДВ , брой 55 от 28 юни 1996 г.)], State interference in the allocation of the radio frequency spectrum is inevitable. It follows that the freedom of the electronic media under Article 40 § 1 of the Constitution does not exclude State interference. The underlying principles of Article 40 § 1 may be complied with by making the licensing conditions and procedure public, accessible and preordained.'” 30. Under section 25(3) of the Telecommunications Act 1998, the decisions of the STC were subject to review by the Supreme Administrative Court. 31. Section 38 of the Radio and Television Act 1998, as worded at the material time, provided that the NRTC's decisions to grant, amend or withdraw a broadcasting licence were also subject to review by the Supreme Administrative Court. 32. Under section 41(3) of the Administrative Procedure Act 1979 (“Закон за административното производство”), which at the material time regulated, inter alia, the procedure for judicial review of administrative decisions, the reviewing court had to verify whether an administrative decision was lawful, that is, made by a competent body in due form, in compliance with the relevant procedural and substantive rules, and in conformity with the object and purpose of the law. Similarly, section 12 of the Supreme Administrative Court Act 1997 (“Закон за Върховния административен съд”), as in force at the relevant time, provided that the grounds for annulling administrative decisions were lack of competence of the body which had made the decision, its failure to make the decision in due form, a material breach of the rules of administrative procedure, a breach of the substantive law or nonconformity with the object and purpose of the law. 33. On 20 December 2000 the Committee of Ministers of the Council of Europe adopted Recommendation no. R (2000) 23 to Member States on the independence and functions of regulatory authorities for the broadcasting sector, in which it recommended that the Member States, inter alia, “include provisions in their legislation and measures in their policies entrusting the regulatory authorities for the broadcasting sector with powers which enable them to fulfil their missions, as prescribed by national law, in an effective, independent and transparent manner, in accordance with the guidelines set out in the appendix to this recommendation”. 34. The guidelines, featuring as an appendix to the recommendation, provide, as relevant: “... 3. The rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests. 4. For this purpose, specific rules should be defined as regards incompatibilities in order to avoid that: – regulatory authorities are under the influence of political power; – members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors, which might lead to a conflict of interest in connection with membership of the regulatory authority. 5. Furthermore, rules should guarantee that the members of these authorities: – are appointed in a democratic and transparent manner; – may not receive any mandate or take any instructions from any person or body; – do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them. ... 13. One of the essential tasks of regulatory authorities in the broadcasting sector is normally the granting of broadcasting licences. The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in the law. 14. The regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner. The decisions made by the regulatory authorities in this context should be subject to adequate publicity. ... 27. All decisions taken and regulations adopted by the regulatory authorities should be: – duly reasoned, in accordance with national law; – open to review by the competent jurisdictions according to national law; – made available to the public.”