Wednesday 18 June 2008

Television judgment

Yesterday, the Court unanimously found a violation of Article 10 ECHR (freedom of expression) in an Armenian media case: Meltex Ltd & Mesrop Movsesyan v. Armenia. The case concerned the sevenfold refusal of the Armenian authorities to grant a broadcasting license to the Meltex broadcasting company. No reasons were given for the refusals, apart from the general statement that the National Radio and Television Committee only made decisions as to which was the best company. The owner of the company had earlier run into difficulties with the state when he refused, with his previous television company, to broadcast only Government propaganda during the 1995 presidential campaign.

The case focuses on a relatively unknown part of Article 10: "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises." For references to earlier case law, see para. 74 of the judgment. Whereas most freedom of expression cases would focus on the issue whether the interference by the state was "necessary in a democratic society", the Court did not even get to assess that point. It held that the interference had not been prescribed by law. It is remarkable that the authorities did follow the applicable Armenian law, but that that law was not of sufficient quality in the Court's view. Referring to its own earlier case law, and documents of other Coucil of Europe bodies, the Court held that (para. 83) "a licensing procedure whereby the licensing authority gives no reasons for its decisions does not provide adequate protection against arbitrary interferences by a public authority with the fundamental right to freedom of expression." Although the European Court cannot strike down laws directly, this is a clear example where the state concerned will have to amend the law in order to prevent further violations of the ECHR. Not the television station, but the law should therefore be taken 'off the air' in a way.

It is also to be noted that the complaints of the second applicant, the chairman of Meltex, were not deemed admissible, since the Court held that the only company and not its chairman was a victim. As to the damages, Meltex was awarded 20,000 euros for non-pecuniary damages. To award non-pecuniary damages to a legal entitry might seem somewhat awkward to outsiders, but it is fully in line with the Court's case law (see especially Comingersoll SA v. Portugal). In this particular case, no causal link between pecuniary damage and the violation could be established and the Court considered that merely finding a violation was not sufficient.

The press release of the case can be found here.