MELTEX LTD v. ARMENIA
Inadmissible
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
The applicant, Meltex Ltd, is a private Armenian broadcasting company (“the applicant company”) that was set up in 1995 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. In 1995 the applicant company established the A1+ television company within its structure, with the intention of getting involved in television broadcasting. On 1 January 1996, in preparation for broadcasting, the applicant company opened a school to train personnel, such as journalists, cameramen and technicians who were later employed by the applicant company. On 25 August 1996 the applicant company started television broadcasting through its A1+ channel, first sharing capacity and content with Moscow “REN” TV, a Russian television company. Over time, the volume of the content produced by the applicant company increased significantly. On 22 January 1997 the applicant company was granted a license by the then Ministry of Communication (ՀՀ կապի նախարարություն) permitting it to install a television transmitter in Yerevan and to broadcast within the decimetric wave band. The license was granted for a period of five years. In September 1999 the applicant company established “Hamaspyur”, a network of nine private licensed regional television companies, broadcasting 24 hours a day. The content of the A1+ television channel included international and domestic news analysis (30%), advertising (32%) and various entertainment programmes. The applicant company submitted that the A1+ television channel was widely recognised as one of the few independent voices in television broadcasting in Armenia. 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 license 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 licenses were temporarily re-registered by the NTRC until the relevant calls for tenders were announced. On 3 September 2001 the NTRC replaced the applicant company's license with a new license. The new license was granted for band 37 and was due to expire on 22 January 2002. On 23 November 2001 the NTRC decided to postpone the call for tenders for band 37 until the adoption of appropriate rules and regulations and to permit the applicant company to continue to operate in band 37 for an indefinite period of time until such call for tenders was put out. On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 37. The applicant company and two other companies, Sharm Ltd and Dofin TV Ltd, submitted bids for band 37. The applicant company alleged that Sharm Ltd had never previously operated in the field of television broadcasting and its main focus had been as the organiser of entertainment shows for young people and students. None of its employees had a background in professional journalism and the company had no premises, equipment and financial or technical infrastructure to commence broadcasting at the time of its bid. It further alleged that Dofin TV Ltd had been registered less than a month before the tender process took place and had had no previous experience of any sort in the field of broadcasting. On 1 April 2002, before the winners of the tender process were announced, the applicant company instituted proceedings against the NTRC before the Commercial Court (ՀՀ տնտեսական դատարան). In its application to the court, the applicant company argued that the NTRC had unlawfully postponed the call for tenders for band 37, that the NTRC had violated the law and restricted the applicant company's opportunities by announcing separate calls for tenders for different bands as opposed to a single one for all bands and that the NTRC had exceeded its authority when defining the terms and conditions of the tendering procedure. On 2 April 2002 the NTRC held a points-based vote and recognised Sharm Ltd as the winner of the call for tenders for band 37. The decision stated: “Based on sections 37 and 50 of [the Broadcasting Act], sections 30, 31 and 63 of [the NTRC] Regulations Act and Paragraph 19 of Decision no. 4 of [the NTRC] of 24 January 2002 Approving the Tendering Rules for Television and Radio Broadcasting Licences, and taking into account the results of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, [the NTRC] decides (1) to recognise Sharm Ltd as the winner of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, and (2) to grant a television broadcasting license to Sharm Ltd.” On 16 April 2002 the applicant company lodged an additional application with the Commercial Court seeking, inter alia, to annul the decision of 2 April 2002. The applicant company also alleged that it had unsuccessfully requested the court to oblige the NTRC to present the minutes of their meeting which provided basis for this decision. On 25 April 2002 the Commercial Court rejected the applicant company's applications. The court found that, even though the NTRC should have announced the call for tenders two months prior to the expiration of the applicant company's license, this had not been done as certain legal acts, which were necessary for the proper conduct of the tender process, had not been adopted by that time. The court further found that the fact that the NTRC had announced separate calls for tenders instead of a single one did not contradict the law. The applicant company had not been precluded from submitting bids for all these calls for tenders. The court finally stated that the NTRC had been authorised under the law to define the terms and conditions of the tendering procedure and it had not exceeded its authority in doing so. The applicant company lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In its appeal, the applicant company raised the same arguments as before the Commercial Court, claiming that the latter had not interpreted the law correctly. It further complained about the court's rejection of its request concerning the minutes of the NTRC's meeting. On 14 June 2002 the Court of Cassation adopted a decision on the applicant company's appealinter alia, 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 tendering rules 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 a call for tenders and declaring a 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. 37 recognised the winner of the call for tenders. ... The applicant's representative submitted a motion in court requesting that '[the NTRC] present the minutes of decision no. 37'. [The Commercial Court], stating that the dispute concerned the lawfulness of [NTRC's] decision no. 37 and not the decision's minutes, justly dismissed this motion. ...a well-founded dismissal of a motion which is not relevant for the resolution of the dispute has nothing to do with ... the requirements of Article 6 of [the Convention]. ...the judgment of the Commercial Court ” On the same day as the announcement of the license winner, the NTRC issued a memorandum to the Ministry of Transport and Communication (ՀՀ տրանսպորտի և կապի նախարարություն) requesting it to terminate broadcasts by the A1+ television channel. On 3 April 2002, at 00h01, the Television Network of Armenia State-owned CJSC («Հայաստանի հեռուստատեսային ցանց» ՊՓԲԸ – “the TNA”), with whom the applicant company had earlier entered into a lease agreement to temporarily rent industrial premises for the purpose of installing transmitter equipment, cut the electricity supply of the applicant company's transmitter and the A1+ television channel ceased to broadcast. The applicant company contested the actions of the TNA before the Commercial Court claiming that they had been unlawful and in violation of the lease agreement. On 17 May 2002 the Commercial Court rejected the applicant company's claim, finding that the actions of the TNA had been lawful and that the applicant company should have ceased broadcasting voluntarily as it was no longer licensed. The applicant company lodged an appeal on points of law with the Court of Cassation. On 28 June 2002 the Court of Cassation dismissed the applicant company's appeal as unsubstantiated. On 15 October 2002 the NTRC announced a new call for tenders for five other bands. The applicant company submitted bids for three of the five bands, namely bands 31, 39 and 51. On 27 May 2003 the NTRC announced another call for tenders for band 25. The applicant company submitted its bid. On 11 June 2003 the NTRC recognised the winner of the call for tenders for band 25. The applicant company was again refused a license. On 18 July 2003 the NTRC recognised the winners of the call for tenders for bands 31, 39 and 51. The applicant company was again refused a license. On an unspecified date, the NTRC announced a call for tenders for bands 3 and 63. The applicant company submitted bids for both bands. On 13 October 2003 the NTRC recognised the winners of the call for tenders. The applicant company was again refused a license. On 19 November 2003 the NTRC announced a call for tenders for the last vacant band, namely band 56. The applicant company submitted its bid. On 29 December 2003 the NTRC recognised the winner of the call for tenders. The applicant company was again refused a license. The relevant provisions of the Code, as in force at the material time, read as follows: “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.” “An appeal on points of law can be lodged on: (1) the ground of a material or a procedural violation of the parties' rights; [and] (2) the ground of newly discovered circumstances.” “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.” “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...” “The National Commission shall have nine members appointed by the President of Armenia for a term of six years, with the exception of the first composition...” “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.” “... A licence to broadcast television and radio programmes or to produce and broadcast [such programmes] shall be granted to television and radio companies: (a) ...; (b) for a period of five years for on-air television and radio broadcasting.” 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.” “Following the consideration of a bid, the Commission shall adopt one of the following decisions: (a) to grant a licence; or (b) to refuse a licence.” “A copy of the decision granting or refusing a licence shall be duly sent to the applicant within ten days from its adoption.”