NOYAN TAPAN LTD v. ARMENIA
Inadmissible
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
The applicant, Noyan Tapan Ltd, is a private Armenian news agency and television company (“the applicant company”) that was set up in 1991 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr M. Muller, Mr T. Otty, Ms J. Gordon, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers practising in London, Mr T. Ter-Yesayan and Ms N. Gasparyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant company was established in 1991 and initially operated as a news agency, with its own publishing house, newspaper and internet network. According to the applicant company, since 1997 it had applied on several occasions to the relevant public authorities to obtain a broadcasting licence with the intention of getting involved in television broadcasting, but was repeatedly refused a licence. On 1 November 1999 the applicant company entered into an agreement with another private company, the Lotus television company (“Lotus”), to jointly produce a set of the applicant company's television programmes, which included re-broadcasts of the TV6 Russian television channel and its own programmes, comprising news, political and economic analysis and constituting 25% of the whole content. Under the terms of the agreement, Lotus allowed the applicant company to broadcast over band 35, for which Lotus held a broadcasting licence due to expire on 22 January 2002. In 2000-2001 legislative changes were introduced in the sphere of television and radio broadcasting. The Television and Radio Broadcasting Act («Հեռուստատեսության և ռադիոյի մասին» ՀՀ օրենք – “the Broadcasting Act”), passed in October 2000, established a new authority, the National Television and Radio Commission (Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies. The NTRC was a public body composed of nine members appointed by the President of Armenia. The Broadcasting Act also introduced a new licensing procedure, according to which a broadcasting licence was granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies. During 2001 all existing broadcasting licences were temporarily re-registered by the NTRC until the relevant calls for tenders were announced. On an unspecified date in 2001 the NTRC decided to postpone the call for tenders for band 35 until the adoption of appropriate rules and regulations and to permit Lotus to continue to operate on band 35 for an indefinite period of time until such call for tenders was issued. On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 35. The NTRC issued a notice in which it defined the conditions for participation in the call for tenders for band 35 and the information and documents to be submitted. The information required included data on the technical facilities, the financial sources, the staff and the programme policy of an applicant. The applicant company and two other companies, Shoghakat and Yan TV, submitted bids for band 35. The applicant company alleged that Shoghakat was a company producing predominantly clerical programmes, while Yan TV focused mostly on entertainment programmes. On 2 April 2002 the NTRC held a points-based vote and recognised Shoghakat as the winner of the call for tenders for band 35. The decision stated: “Based on [the relevant provisions the Broadcasting Act and other complementary legal acts], and taking into account the results of the call for tenders for television broadcasting on decimetric band 35 in the area of Yerevan, [the NTRC] decides (1) to recognise Shoghakat TV Company Ltd as the winner of the call for tenders for television broadcasting on decimetric band 35 in the area of Yerevan, and (2) to grant a television broadcasting licence to Shoghakat TV Company Ltd.” On an unspecified date the manager of the applicant company, Mr T.H., lodged an application with the Commercial Court (ՀՀ տնտեսական դատարան), claiming that the tender procedure had been conducted with violations of the law and seeking to invalidate its results. In particular, he argued that the NTRC, by announcing separate calls for tenders for different bands as opposed to a single one for all bands, had restricted the applicant company's right to win a licence for any of the unoccupied bands. He further argued that the information required by the NTRC had not been consistent with the information to be contained in a bid for a broadcasting licence as defined by law. Moreover, the NTRC had not been authorised by law to define the information to be contained in a bid. Furthermore, he submitted that the NTRC had failed to inform the applicant company in writing about the reasons for the refusal of a licence. On 24 May 2002 the Commercial Court examined the applicant company's application. The applicant company was represented at this hearing by three lawyers, A.D., T.T.-Y. and L.S., who made submissions on its behalf. The Commercial Court decided to dismiss the application, finding that the fact that the NTRC had announced separate calls for tenders as opposed to a single one did not contravene the law. Nothing had precluded the applicant company from submitting bids for all these calls for tenders. The court further found that the NTRC had been authorised by law to define the procedures and conditions of the tender process and that it had acted in accordance with the law in doing so. Nothing in the information required by the NTRC in its notice issued following the announcement of the call for tenders on 19 February 2002 had conflicted with the requirements of the law. As to the requirement to provide a written notification of the reasons for the refusal of a licence, the court found that the NTRC, having recognised Shoghakat as the winner of the competition, had informed the applicant company about this in writing on 3 April 2002. On an unspecified date Mr T.H. lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In his appeal, he raised the same arguments as before the Commercial Court On 28 June 2002 the Court of Cassation notified the applicant company that its hearing was scheduled for 12 July 2002 at 11 a.m. On 10 July 2002 lawyer L.S. informed the Court of Cassation in writing that on 12 July 2002 at 12 noon he had to appear at another court hearing. In order to avoid an overlap between the two hearings, lawyer L.S. requested the Court of Cassation to notify him of the exact time when the applicant company's claim would be examined. It appears that no reply was received to this letter. On 12 July 2002 at 11 a.m. Mr T.H., accompanied by lawyers L.S. and T.T.-Y., appeared at the Court of Cassation. The latter had 85 cases scheduled for that date with all the parties involved being notified to appear at the same hour. The hearings started at 11 a.m. The applicant company alleged that at 11.30 a.m. lawyer L.S. requested the presiding judge to inform him as to when the hearing on the applicant company's claim would commence. The presiding judge replied that the hearing would commence “whenever the court found it necessary”. The lawyer repeated his request, explaining about the need to prevent any overlap between the two hearings, whereupon he was removed from the courtroom upon the instruction of the presiding judge for violating order in court. At 4 p.m. the Court of Cassation proceeded to examining the applicant company's case. The NTRC was represented at the hearing by three lawyers, while the applicant company was represented only by Mr T.H. since lawyer T.T.-Y. had not been instructed to represent the applicant company. The hearing lasted about five minutes. The parties were not asked any questions and did not make any submissions. The Government contested this allegation, claiming that the applicant company's lawyer was never removed from the courtroom. The Court of Cassation had 85 cases scheduled to be examined on 12 July 2002, starting at 11 a.m. Priority was given to cases involving parties coming from distant regions and women. Having found out about this order, the lawyer informed the court that he had another hearing to attend at 12 noon and requested that the applicant company's case be heard in a priority order. This request was refused so the lawyer voluntarily left the courtroom. The Government further alleged that the applicant company was represented by two other lawyers, while the NTRC had no representative. Commercial Court, and concluded by dismissing the applicant company's appeal, finding that: “...the arguments put forward in the appeal concerning a violation by the Commercial Court of [the relevant legal acts] are groundless, as [the NTRC], acting within the authority vested in it by the above legal acts ... defined the tender procedure for licensing of television broadcasting, which contains the rules on the conditions, procedures and time-limits of a call for tenders, submission of bids, recognising the winner of the call for tenders and declaring the call for tenders void. On 19 February 2002 [the NTRC] ... announced separate calls for tenders for unoccupied frequencies and on 2 April 2002 in its decision no. 36 recognised Shoghakat Ltd as the winner, about which it informed [the applicant company in its letter] of 3 April 2002. ...Article 10 [of the Convention] guarantees the right to freedom of expression. This Article, however, does “not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”. The arguments [concerning a violation of Article 10] are also groundless, as the Commercial Court did not violate the requirements of [this Article]. ... [As to the improper examination of the applicant company's claims by the Commercial Court, this argument is also groundless] ... as the [court] ... evaluated each piece of evidence of the case in a detailed, thorough and objective manner.” The relevant provisions of the Code, as in force at the material time, read as follows: “1. [The Commercial Court] shall adopt a judgment when deciding on the merits of a dispute.” “1. When adopting a judgment [the Commercial Court] shall: (1) assess the evidence; (2) determine which circumstances significant for the case have or have not been disclosed; (3) determine the laws and other legal acts applicable to the case; and (4) decide to fully or partially grant the claim or to dismiss it.” “Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant's rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.” “1. An application seeking to annul the unlawful acts of public authorities, local self-government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over the case. ... 3. The submission of an application to a court does not suspend the effect of the contested act...” “An appeal on points of law can be lodged on ... the ground of a material or a procedural violation of the parties' rights...” “1. The President of the Court of Cassation shall instruct one of the judges of the chambers of the Court of Cassation to study the appeal and the case file... 2. The judges of the Court of Cassation shall be entitled to get acquainted with the appeal and the case file.” “1. The examination of a case in the Court of Cassation shall start with the presentation by the judge rapporteur... The judge rapporteur shall [contested] judgment and the arguments raised in the appeal. The judges of the Court of Cassation shall be entitled to ask questions to the judge rapporteur. 2. The appellant shall have the right to be present at the hearing before the Court of Cassation. 3. If explanations are necessary, the appellant and other parties may be summoned to the hearing ... Their failure to appear shall not preclude the examination of the case.” “The chamber of the Court of Cassation shall review judgments and decisions within the grounds presented in the appeal.” “Having examined a case, the Court of Cassation has the right: (1) to uphold the court judgment and to dismiss the appeal...; (2) to quash the whole or part of the judgment and to remit the case for a new examination...; (3) to terminate the proceedings or to leave the claim unexamined, if the grounds for [doing so] were disclosed during the proceedings in the court of first instance, the Commercial Court or the Court of Appeal.” “1. The Court of Cassation shall adopt a decision based on the results of the examination of the case. ... 3. The decision shall be adopted in the absence of the appellant and other persons summoned to the hearing to give explanations. 4. The Court of Cassation shall be competent to adopt a decision if the majority of judges of the chamber of the Court of Cassation are present. 5. The decision shall be adopted by an open vote. The decision shall be considered adopted if the majority of the total number of judges present at the hearing voted for it. ... 7. The operative part of the Court of Cassation's decision shall be pronounced at the hearing.” “3. The Court of Cassation is not entitled to establish or consider as proven circumstances which have not been established by the judgment [of the Commercial Court] or have been rejected by it, to determine whether or not this or that piece of evidence is trustworthy, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.” The relevant provisions of the Broadcasting Act, as in force at the material time, read as follows: “In Armenia television and radio broadcasting shall be conducted on the basis of a licence.” “The National Television and Radio Commission (hereafter, the National Commission) is an independent body with the status of a public agency whose activity is regulated by this law, its regulations and the legislation of Armenia. The National Commission deals with licensing and monitoring of only private television and radio companies (television companies or radio companies). The National Commission: (a) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders; ... (c) shall grant licences...” “A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders...” “When selecting the licence-holder, the National Commission shall take into account: (a) the predominance of programmes produced in-house; (b) the predominance of programmes produced in Armenia; (c) the technical and financial capacity of the applicant; and (d) the professional level of the staff.” “A licence shall not be granted if: (a) the applicant cannot be a licence-holder pursuant to this law; (b) the information contained in the bid is inaccurate; or (c) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient. An applicant shall be informed in writing of the reasons for the refusal of a licence within ten days from the date of the decision. The refusal of a licence can be contested before the courts.” The relevant provisions of the NTRC Regulations Act read as follows: “In order to grant a broadcasting licence, the Commission, at its meeting and within the period prescribed by the tendering rules, shall adopt a decision on the basis of the results of a call for tenders.”