CASE OF NENKOVA-LALOVA v. BULGARIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1961 and lives in Sofia. She is a journalist by profession. At the relevant time she was employed by the Bulgarian National Radio (“BNR”). She is now working for the Bulgarian section of Deutsche Welle. 7. At the material time the applicant was an editor in the BNR’s “Hristo Botev” programme, working as a member of the current affairs team. She hosted a weekly radio show, “Good Day” („Добър ден”), which was broadcast each Friday morning between 9 a.m. and 11 a.m. 8. The BNR is a public broadcaster owned by the State. At the relevant time its operations were regulated by the Radio and Television Act 1996 (see paragraphs 3235 below). 9. On Monday 5 October 1998 the editorial board of the “Hristo Botev” programme met to discuss various issues arising in relation to shows intended to be broadcast during the week. One of the programme’s editorinchief, Mr A.M., put before the board a proposal for the applicant’s show due for broadcast on 9 October 1998. The proposal was for the show to include a discussion with another journalist employed as an editor by BNR, Ms V.N. According to the minutes of the meeting, the board “reject[ed] the proposed interlocutor [Ms V.N.]. [Mr A.M. was] against and want[ed] a resolution by the [board].” 10. On the morning of Friday 9 October 1998 the applicant hosted her regular weekly show. Ms V.N. and several other journalists took part in it. They discussed a number of journalistic investigations carried out by them. They concerned, among other things, allegations of improper sales of municipal land, alleged corruption by government officials, and the alleged financing of the then ruling political party, the Union of Democratic Forces, through the unlawful diversion of money from the customs. Several of the items discussed during the show had been prepared by Ms V.N. 11. Later that day, 9 October 1998, two of the “Hristo Botev” programme’s editorsinchief, Mr I.R. and Ms M.P., gave written explanations about the incident to the BNR director general. In his explanations Mr I.R. said that the programme’s editorial board had resolved at its meeting that Ms V.N. should not take part in the show as a host or as an interlocutor, and that that resolution had been noted in the minutes and signed by the board’s members. In her explanation Ms M.P. said that the board had rejected Ms V.N.’s participation in the show, and that Mr A.M. had noted his disagreement with that and had requested a resolution on that point, which had been taken by means of a vote. 12. The same day Mr I.R. and Ms M.P. also asked the applicant to explain, in writing and not later than 4 p.m., why she had disregarded the “resolution of the [editorial board] of 5 October [1998] which did not allow the participation of [Ms V.N.]” in the show. 13. In her reply, addressed to Mr I.R., the applicant pointed out that Ms V.N. had not taken part in the show as an interlocutor, but as one of the authors, together with three other journalists. She went on to specify that Ms V.N.’s participation had altogether lasted one hundred and thirteen minutes. 14. The same day the BNR management board met to consider “technical discipline” during the show on 9 October 1998. It found that by allowing Ms V.N. to in effect host the show the applicant had breached the editorial board’s resolution and the programme’s weekly schedule. It further found that Ms V.N. had taken part in the show in disregard of the board’s resolution, that Mr E.I., the show’s editor, had also breached the board’s resolution and the weekly schedule, and that the editorsinchief, Mr A.M., Mr I.R. and Ms M.P., had failed to exercise sufficient control over the preparation and the running of the show. The board resolved to impose disciplinary punishments on all them, to be determined in line with their varying degrees of fault. It entrusted the execution of its resolution to the BNR director general. 15. On 12 October 1998 the BNR director general, relying on Article 187(3), (7) and (10), Article 188(3), Article 190 § 1 (6) and Article 330 § 2 (5) of the Labour Code 1986 (see paragraph 39 below), dismissed the applicant on disciplinary grounds. The reasons given were that she had allowed Ms V.N. to host the show in her stead, thus breaching the technical rules on the operation of radio programmes, that she had breached the programme coordination rules, that she had disregarded the editorial board’s resolution rejecting the proposal for Ms V.N. to take part in the show, and that she had breached Rule 7 of the “Hristo Botev” programme and point 1 of order no. 4 of 9 June 1998 of the programme’s director (see paragraphs 37 and 38 below). 16. The BNR director general also dismissed Ms V.N. and Mr E.I., giving similar reasons. 17. On 12 October 1998, during the regular Monday meeting of the “Hristo Botev” programme’s editorial board, Mr A.M. (see paragraph 9 above) tendered his resignation, citing, among other things, the lack of clear rules on who could and who could not host radio shows. 18. Those events sparked a vigorous reaction in the media community and prompted the publication of several articles deploring what the journalists saw as an unjustified interference with their colleagues’ freedom of expression. In a declaration of 14 October 1998 the Union of Bulgarian Journalists protested against the dismissals of the applicant, Ms V.N. and Mr E.I., saying that they were an example of “the appetite of forces alien to the journalist profession to gag it”. 19. The National Radio and Television Committee (“the NRTC”), the chief media regulatory body in Bulgaria (see paragraph 36 below), discussed the above events at a meeting on 26 October 1998. 20. It observed that the dismissal orders did not cite any provisions of the Radio and Television Act 1996, and that there was therefore no scope for the NRTC to assess whether the radio show had complied with those provisions. On the face of it, there existed a purely employment dispute, which could be examined only by a court. However, the NRTC was competent to verify whether the dismissals were consistent with the 1996 Act and the freedom of expression which it guaranteed. 21. In the NRTC’s view, the main safeguard against encroachments on freedom of expression in the national electronic media was the existence of internal regulations and their proper implementation. The NRTC noted that at three of its previous meetings it had discussed draft regulations drawn up by the BNR management board, and had noted that they did not envisage any mechanism governing the workings of the BNR collective bodies and the journalists’ rights and obligations. The NRTC’s recommendation for those matters to be addressed had not been heeded. The lack of precise regulations was somewhat offset by the existence of rules governing the workings of individual BNR programmes. However, the rules of the “Hristo Botev” programme did not say on which legal provision they were based and predated the BNR regulations on which they were supposed to be based. Those rules did not define clearly the competencies of the journalists in their various professional capacities as authors, hosts, editors, reporters and so on. Neither the BNR regulations nor the individual programmes’ rules dealt with the powers of collective bodies such as management and editorial boards. The applicant’s and the two other journalists’ dismissals showed that there existed confusion between administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows. Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), mentioned in the dismissal orders, was an example of that, because it said that changes in a show’s content could be made solely by written order of the respective manager. The editorial board’s resolution of 5 October 1998 as to who could and who could not be an interlocutor in the show was also an example of that. 22. In conclusion, the NRTC said that it did not accept the supplanting of the preordained rules for the operation of the BNR by administrative actions and sanctions. However, that did not mean that the NRTC accepted the attempts of some journalists to place themselves above the established principles of work in the national media. 23. On 1 March 1999 the applicant brought a civil claim against the BNR, seeking annulment of the order for her disciplinary dismissal, reinstatement and lost wages. She argued, among other things, that her dismissal in connection with the show on 9 October 1998 and the statements which Ms V.N. had made during the show had been in breach of Article 39 of the Constitution, section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below) and Article 10 of the Convention. 24. The Sofia District Court (Софийски районен съд) held hearings in the case on 2 June, 29 September, 3 November and 15 December 1999, and 8 March, 14 April, 2 June and 13 October 2000. It heard a number of witnesses, admitted in evidence various documents, and obtained several expert reports. 25. On 13 November 2000 the Sofia District Court set the applicant’s dismissal aside and partly allowed her claim for lost wages, awarding her 578.06 Bulgarian levs, plus interest, but refused her claim for reinstatement. It found that the rules of disciplinary procedure had been breached in that the applicant had not been properly invited to explain her actions before a competent disciplinary authority. It went on to say that the order for the applicant’s dismissal did not point to the specific disciplinary offences committed by her, save for the breach of the editorial board’s resolution of 5 October 1998. However, the minutes of the board’s meeting showed that it was far from clear whether any resolution had been adopted with regard to the participation of Ms V.N. in the show. Lastly, the court found that, despite having the duty to do so under Article 189 of the Labour Code 1986 (see paragraph 39 below), the BNR had failed to consider whether the severity of the punishment corresponded to the gravity of the applicant’s offence. The order for the applicant’s dismissal was therefore unlawful and had to be set aside. She was accordingly entitled to lost wages, plus interest. However, she could not be reinstated because the term of her employment contract had come to an end on 31 December 1999, while the judicial proceedings were pending. 26. On 22 November 2000 the applicant appealed against the refusal of her claim for reinstatement and the partial refusal of her claim for lost wages. On 19 December 2000 the BNR also appealed, and on 29 January 2001 it rectified its appeal pursuant to instructions by the court. The Sofia City Court (Софийски градски съд) held two hearings. The first took place on 15 June 2001. The second, initially listed for 7 December 2001, was adjourned because on that date the court’s building was sealed off by the police due to a bomb threat, and took place on 8 May 2002. 27. On 9 July 2002 the Sofia City Court quashed the lower court’s judgment and refused the applicant’s claims. It found that the applicant had been duly asked for an explanation by a competent disciplinary authority – her line manager – prior to the imposition of her punishment. The court went on to say that the order for the applicant’s dismissal had been issued in line with the applicable requirements, had indicated the offender, the offence, the punishment, and the legal provisions on which it had been based. Moreover, the applicant had in fact committed the disciplinary offence alleged against her. By allowing Ms V.N. to in fact host her show for one hundred and thirteen minutes the applicant had not only breached employment discipline but had also grossly violated basic rules of her work, such as compliance with the resolutions of the editorial board. By trying to present Ms V.N. as a “coauthor” instead of an “interlocutor”, she had tried to circumvent the editorial board’s resolution. Under Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), any changes in the content or in the organisation of shows that had already been approved could be made only by written decision of the appropriate manager. Therefore, after the editorial board had approved the show on 9 October 1998, the applicant should have informed it about the intended participation of Ms V.N. as a coauthor. By failing to do so, she had grossly breached the rules of the “Hristo Botev” programme and had accordingly correctly been given the harshest disciplinary punishment – dismissal. 28. On 17 September 2002 the applicant appealed on points of law. She raised several points, the bulk of which concerned alleged breaches of the rules of disciplinary procedure. She also asserted, based on a number of arguments concerning the lawfulness of the editorial board’s decision of 5 October 1998 and the lawfulness of the order for her dismissal, that she had not committed a disciplinary offence. One of those arguments was framed as follows: “Disregarding ... [my] arguments concerning the lack of duly adopted rules governing the workings of the ‘Hristo Botev’ programme at the time of [my] dismissal, as well as the arguments concerning the unlawfulness of point 7 of those Rules [see paragraph 37 below] on account of its being contrary to section 4(1) and (2) of the Radio and Television Act [1996], Article 39 of the Constitution of the Republic of Bulgaria [see paragraph 31 below] and Article 10 of the [Convention], the [lower] court came to the erroneous conclusion that [I] had broken point 7 of the Rules and that [my] punishment had therefore been lawful.” 29. After hearing the appeal on 21 February 2005, in a judgment of 23 March 2005 (реш. № 346 от 23 март 2005 г. по гр. д. № 3642/2002 г., ВКС, ІІІ г. о.) the Supreme Court of Cassation (Върховен касационен съд) upheld the lower court’s judgment. In its view, that court’s ruling that the order for the applicant’s dismissal had been lawful corresponded to the evidence, which showed that the order had been issued by a competent disciplinary authority in line with the applicable rules of procedure and had been duly reasoned. The court further found that the decision to dismiss the applicant had been correct. By knowingly failing to comply with the decision that Ms V.N. should not take part in her show, the applicant had breached employment discipline within the meaning of the Labour Code 1986 (see paragraph 39 below). It was true that the BNR’s internal rules had not envisaged an editorial board, but it could not be overlooked that the meeting on 5 October 1998 had been attended by Mr I.R. and Ms M.P., both of whom had been entrusted by the directors general of the BNR and the “Hristo Botev” programme with managerial functions. Mr I.R. and Ms M.P. had indicated that they did not agree with Ms V.N.’s intended participation in the applicant’s show. Although the applicant had been aware of that, she had allowed Ms V.N. to take part in her show, thus breaching employment discipline within the meaning of Article 190 § 1 (6) of the Labour Code 1986 (see paragraph 39 below). The court went on to say that the applicant should have also been aware of the orders of the directors general of the BNR and of the “Hristo Botev” programme, which had been public and available upon request. Lastly, the court held that the applicant’s dismissal had not been contrary to Article 10 of the Convention, because that Article allowed the licensing of broadcasting enterprises. Therefore, neither its letter nor its spirit proscribed the existence of disagreements between those entrusted with the task of framing a radio’s programme and those in charge of current and operative issues. The same went for Article 39 of the Constitution and section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below). 30. Ms V.N. and Mr E.I., who were disciplinarily dismissed together with the applicant (see paragraph 16 above), also challenged their dismissals in court. It appears that Ms V.N.’s dismissal was eventually set aside in a judgment which became final on 10 July 2008, and that Mr E.I.’s dismissal was also eventually set aside. 31. The relevant provisions of the 1991 Constitution read as follows: “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.” “The press and the other mass media shall be free and not subject to censorship.” “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.” 32. At the relevant time the operations of the BNR were governed by the Radio and Television Act 1996. In the end of November 1998 it was superseded by the Radio and Television Act 1998, which is still in force. 33. Section 4 of the 1996 Act provided that the creation and the broadcasting of radio programmes had to comply with, among others, the principles of freedom of expression and pluralism in the expression of opinion. 34. Section 46(1) provided that the BNR was a public organisation engaging in radio activities of national importance. It broadcast one international and two national programmes (section 47(1)). It was a legal person based in Sofia (section 46(2)), and an independent organisation; other bodies and authorities could not interfere with its activities except where provided for by law (section 48). Its governing bodies were the management board, the programme board and the director general (section 50(1)). 35. The editorial rights and duties of journalists employed by the BNR were to be governed by rules adopted by the BNR management board, following consultation with the BNR journalists’ trade unions (section 49(2)). Journalists’ rights could not be restricted on the basis of their political affiliations (section 49(1)). 36. 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 (sections 8(2) of the 1996 Act). It was entrusted with, among other things, supervising the activities of radio and television broadcasters (section 15(1)), and with electing and dismissing the BNR director general (section 15(5)). 37. Rule 7 of the BNR “Hristo Botev” programme, as in force at the relevant time, provided that any changes in the content, the organisation or the technology of a radio show could be effected only by order of the respective manager. 38. Point 1 of order no. 4 of 9 June 1998 of the director of “Hristo Botev” provided that the hosts of live radio shows had to appear not less than twenty minutes in advance with a scenario prepared in advance and indicating the time bands and the connection of outside sources (such as mobile radio stations and telephones). They also had to acquaint the sound editor with the show’s scenario and organisation and give the editor timely and specific instructions for any necessary changes. 39. The disciplinary punishment of employees is regulated by Articles 18690 of the Labour Code 1986; Articles 19298 govern the applicable procedure. By Article 186, a failure to comply with one’s employment duties amounts to a breach of employment discipline. Article 187 sets out a nonexhaustive list of such breaches, which may consist in a failure to comply with technical or technological rules (point 3), a failure to comply with a lawful order of one’s employer (point 7), or a failure to comply with other duties stemming from statutes, statutory instruments, internal regulations or collective labour agreements, or with duties laid down upon hiring (point 10). Article 188 provides that the disciplinary punishments available are a reprimand, a dismissal warning and dismissal. In choosing which of those punishments to impose, the employer must take into account the gravity of the breach, the circumstances in which it was made, and the employee’s conduct (Article 189 § 1). Article 190 § 1 (6), as in force at the relevant time (currently Article 190 § 1 (7)), provided that an employee could be disciplinarily dismissed for serious breaches of employment discipline. Article 330 § 2 (5), as in force at the relevant time, provided that in case of disciplinary dismissal an employer was to terminate the employment without notice.