Professional Documents
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CASE OF NIT S.R.L. v. THE REPUBLIC OF MOLDOVA
CASE OF NIT S.R.L. v. THE REPUBLIC OF MOLDOVA
JUDGMENT
STRASBOURG
5 April 2022
PROCEDURE
1. The case originated in an application (no. 28470/12) against the
Republic of Moldova lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a company incorporated in Moldova, ÎM “Noile Idei
Televizate” S.R.L. - NIT S.R.L. (“the applicant company”), on 11 May 2012.
2. The applicant company was represented successively by
Ms A. Răileanu and Ms Z. Curuci, its general managers, and Mr P. Bălan, a
lawyer practising in Chişinău, and was granted leave to have its case
presented in the oral hearing proceedings before the Court by Ms A. Nica, an
adviser (Rule 36 of the Rules of Court). The Moldovan Government (“the
Government”) were represented by their Agent, Mr O. Rotari, of the Ministry
of Justice.
3. The applicant company alleged that the revocation by the Audiovisual
Coordinating Council (“the ACC”) of the broadcasting licence of its
television channel of the same name (NIT) on 5 April 2012 had amounted to
a violation of Article 10 of the Convention and that, as a result, its right to the
peaceful enjoyment of its possessions had been violated, contrary to Article 1
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
THE FACTS
channel NIT operated in Moldova from 1997. From 2004 NIT began
broadcasting nationally.
A. Historical background
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
the legislative framework was flawed (ibid., § 111) and held that there had
been a violation of that Article.
14. Against the background of the events described above and as a result
of internal and external reactions to them, the government decided to draft
new broadcasting legislation. The “Informative Note” appended to the draft
Audiovisual Code of 2006 (“the Code”) stated, inter alia, the following:
“This bill aims at establishing the democratic principles of functioning of the
audiovisual [sector] of the Republic of Moldova, ensuring protection of the
rights of programme consumers ...”. And: “The draft seeks to balance
broadcasting freedom with ‘more responsibility’ on the part of broadcasters,
especially with regard to observing ‘the rights of the programme consumer’,
who will now have ‘the possibility to address the competent authorities to
ensure the appropriate conditions for free formation of opinion’.”1
15. The Council of Europe’s Media Division was involved in the
legislative process. It requested two media experts to analyse and comment
on the draft bill. These experts, in their report of May 2006, welcomed,
inter alia, the fact that the draft bill specified procedures and criteria for
licensing private broadcasters.
16. As regards Article 7 of the draft Code on political and social balance
and pluralism (see paragraph 85 below), the experts expressed the view that
the principle set out in the second paragraph was “commendable”. No
comment was made by the experts in respect of what became Article 7 § 4 of
the final text of the draft Code.
17. As regards Article 27 on revocation of a broadcasting licence and
Article 38 on sanctions, the experts suggested that the ACC should have
discretion as to what, if any, sanction to apply rather than instituting an
obligation for it to withdraw a licence. They also suggested that the initial list
of three sanctions (public warning, fine and licence revocation) be extended
to five sanctions (public warning, fine, deprivation of the right to broadcast
advertisements, temporary suspension of licence and revocation of licence)
and that revocation of a licence could happen only in cases of repeated serious
violations of the Code. Those suggestions were incorporated in the final text
of the Code (see paragraph 85 below).
18. The Council of Europe experts also identified a number of
shortcomings in the draft Code, inter alia in relation to the structure of the
ACC. In their view the proposed structure gave the government the ability to
exert undue influence and control over the ACC and, through it, over all
broadcasters. The experts made several proposals to improve the draft bill,
which were all accepted by the Moldovan Parliament and were included in
the final text of the Code (see paragraph 85 below). In particular, Parliament
excluded from the draft bill the idea that the nomination of the ACC members
should be done by “taking into account the number of mandates held by the
legally established parliamentary factions”. Parliament also accepted the
suggestions to extend the class of potential nominators to include major
sectors of civil society, to provide a detailed job description, to introduce
staggered terms for ACC members and to remove their status as “public
officials”, and the suggestions concerning the ACC’s funding.
19. The Code was adopted by Parliament on 27 July 2006 and was in force
until 1 January 2019, on which date it was replaced by the Audiovisual Code
of 2018.
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29. From the materials submitted to the Court by the parties it appears that
between 2009 and 2011, on the basis of monitoring carried out by the ACC
either of its own motion or after complaints submitted to it, the ACC imposed
eleven sanctions on the applicant company because NIT had breached
Article 7 of the Code. In particular, NIT was found guilty of being one-sided
and politically biased in favour of the PCRM in its news bulletins, contrary
to the provisions of Article 7 § 2, and of failing to give an opportunity to other
parties to comment on the accusations made against them, contrary to
Article 7 § 4. The following sanctions were imposed:
(i) on 24 March 2009, a public warning for breaching Article 7 §§ 1, 2, 3
and 4(b) and (c); the applicant company did not challenge this sanction;
(ii) on 6 November 2009, a fine of MDL 5,400 (approximately EUR 330)
for breaching Article 7 §§ 1, 2, 3 and 4(b) and (c); the applicant company
unsuccessfully challenged the sanction in the courts and the court judgments
became final;
(iii) on 30 March 2010, a public warning for breaching Article 16 §§ 2
and 3; the applicant company unsuccessfully challenged it in the courts and
the court judgments became final;
(iv) on 15 September 2010, a fine of MDL 5,400 for breaching Article 7
§ 4(b) and (c); the applicant company unsuccessfully challenged it in the
courts and the court judgments became final;
(v) on 29 October 2010, deprivation of the right to broadcast
advertisements for three days for breaching Article 7 §§ 1 and 4(b) and (c);
the applicant company challenged the decision in the courts and had it
quashed on procedural grounds;
(vi) on 10 November 2010, a fine of MDL 5,400 for breaching Article 7
§§ 1, 2, 3 and 4(c); the applicant company challenged the decision in the
courts and had it quashed on procedural grounds;
(vii) on 19 November 2010, deprivation of the right to broadcast
advertisements for five days for breaching Article 7 §§ 1, 2, 3 and 4(c); the
applicant company challenged the decision in the courts and at the same time
asked the courts to suspend the enforcement of the decision pending the
outcome of the proceedings on the merits. Even though by an interlocutory
judgment of 13 December 2010, amenable to an appeal together with the
merits of the case, the courts dismissed the applicant company’s application
to have the enforcement of the decision suspended, they eventually quashed
the aforementioned ACC decision on procedural grounds;
(viii) on 18 May 2011, a public warning for breaching Article 7 §§ 1, 2, 3
and 4(c); the applicant company did not challenge it. Along with NIT,
six other television channels were warned about a breach of Article 7 of the
Code in their news bulletins;
(ix) on 27 May 2011, a fine of MDL 5,400 for breaching Article 7 §§ 1,
2, 3 and 4(c); the applicant company did not challenge it in the courts and
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paid the fine. Along with NIT, two other television channels were warned
about a breach of Article 7 of the Code in their news bulletins;
(x) on 3 June 2011, deprivation of the right to broadcast advertisements
for five days for breaching Article 7 §§ 1, 2, 3 and 4(b) and (c); the applicant
company unsuccessfully challenged the decision in the courts and the court
judgments became final after the revocation of its licence. Along with NIT,
two other television channels, including the national channel, were warned
about a breach of Article 7 of the Code in their news bulletins; and
(xi) on 24 June 2011, suspension of its broadcasting licence for five days
for breaching Article 7 §§ 1, 2, 3 and 4(a), (b) and (c); the applicant company
unsuccessfully challenged the decision in the courts and the court judgments
became final after the revocation of its licence. Along with NIT, another
television channel was fined for breaching Article 7 of the Code in its news
bulletins.
30. In addition to the above-mentioned sanctions, NIT received sanctions
on two other occasions between 2009 and 2011 for breaching other provisions
of the Code. Furthermore, on two occasions in 2010 NIT was given deadlines
to comply with the provisions of the Code without any sanctions being
applied.
31. However, from information submitted to the Court by the parties it
also appears that the ACC dismissed complaints directed against NIT. For
instance, on 29 October 2010 the ACC dismissed a complaint of 22 October
2010 by the representative to the Central Electoral Commission of one of the
PCRM’s rival political parties alleging that one of NIT’s shows had failed to
comply with the principles of impartiality and pluralism of opinion and that
the political party he was representing had been denied the right to respond.
Also, on 7 January 2012 the ACC dismissed an application of 16 December
2011 by the State Inspectorate for the Supervision of Alcoholic Production to
have NIT punished for breaching the relevant legislation on advertising. In
addition, on 29 March 2012 the ACC dismissed an application of 15 March
2012 by a member of parliament to have NIT punished for broadcasting
during its evening news an allegedly propagandistic report by a Russian news
agency stating that incidents entailing mass disorder were to take place in
Moldova on the occasion of the presidential election and that the Prime
Minister and the President had prepared their escape from the country.
33. In accordance with Article 37 § 1, Article 40 § 1(a), (b) and (d) and
Article 41 § 1(a) of the Code, the main news bulletins of the Vocea Basarabiei
private radio station (Ştiri – aired at 6 p.m.), of the public television channel
Moldova 1 (Mesager – aired at 7 p.m.), and of the private television channels
Prime (Primele ştiri – aired at 9 p.m.), EuroTV Chişinău (Ştiri – aired at
8.30 p.m.), NIT (Curier – aired at 10 p.m.) and 2 Plus (Reporter – aired at
7 p.m.) were subjected to monitoring. The monitoring was carried out over a
period of five days.
34. The methodology of the monitoring, involving comparative and
chronometric measurements of contents, had been devised by the ACC in
collaboration with experts from the European Union (EU) and the Council of
Europe. Two international experts participated as observers in the monitoring
carried out in accordance with the above methodology between 2010 and
2011 and confirmed the monitoring results presented by the ACC in those
years.
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
37. The report also recorded that NIT’s news bulletins had publicised the
protest actions organised by the PCRM against the government, had included
an anti-government propaganda video clip and had featured captions
amounting to manipulation. In presenting a news item about an opinion poll
conducted by NIT reporters on the streets of Chişinău, Hânceşti and Străşeni,
NIT had, for example, presented exclusively the opinions of PCRM
supporters who had expressed critical views about the government. This was
found to be a breach of Article 7 § 4(c) of the Code.
38. It was further noted that in reporting about protests organised by the
PCRM, NIT had used captions and cited official declarations from those
protests without showing images of the actual documents referred to. Thus, it
was concluded that NIT had breached Article 7 § 4(a) of the Code, which
requires each news story to be accurate. Moreover, NIT was found to have
acted in breach of Article 7 § 4(b) because the news anchor had introduced
an item by saying: “Disturbed by the cynicism of the AEI, the Căuşeni local
councillors demand the resignation of the incompetent government”, before
reading out a declaration by members of the aforementioned local council.
39. Lastly, it was found that NIT had promoted aggressive journalistic
language, had often not complied with the requirements concerning the
diversification of sources, and had also used images, editing tricks or
comments in order to distort the real facts or to denigrate the image of other
subjects.
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By the ACC’s decision ... of 27 May 2011, a fine ... was imposed ... for repeated
breaches of the provisions of Article 7 ... of the ... Code. By the ACC’s decision ... of
3 June 2011, a sanction was applied ... in the form of suspension of the right to broadcast
commercial advertising ..., for repeated breaches of the provisions of Article 7 ... of the
... Code, and by the ACC’s decision ... of 24 June 2011, the ... [channel]’s broadcasting
licence was suspended ... for repeated breaches of the provisions of Article 7 ... of the
... Code.
Taking into account the ACC’s decisions ... of 6 November 2009, ... 15 September
2010, ... 18 May 2011, ... 27 May 2011, ... 3 June 2011 and ... 24 June 2011, as a result
of the examination of the monitoring report ..., [and] the public debates, on the basis of
the provisions of the ... Code..., the [ACC]
Decides:
... To approve the monitoring report ...
... To publicly warn ... the founder of the Moldova 1 television channel, for breaches
of the provisions of Article 7 § 2 of the Audiovisual Code, in accordance with Article 38
§ 3 ... (a) of the Audiovisual Code.
... To withdraw the broadcasting licence ... for the television channel NIT, in
accordance with Article 27 § 1 ... (a) and (b) and § 2 and Article 38 § 1 ... (e), § 2 ... (b)
and (f), § 3 of the ... Code, for repeated breaches of the provisions of Article 7 §§ 1, 2
and 4, ... (a), (b) and (c) and Article 10 § 5 of the ... Code and point 3.1, letters (a) and
(e) of the terms of the broadcasting licence.
...”
44. The ACC’s decision was published in the Official Gazette on 6 April
2012.
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
would be stopped and that one of the ACC members had confirmed in a press
statement the company’s concerns that the broadcasting frequencies covered
by the revoked licence would be advertised by way of public competition.
51. By an interlocutory judgment of 11 April 2012 the Court of Appeal
dismissed this application. It held:
“Having reviewed the arguments raised [by the applicant company] in its repeated
application ..., [it] considers that the application is ill-founded and has to be dismissed
...
... On 9 April 2012 the [court] dismissed a similar application by the applicant
company ...
... the interlocutory judgment ... of 9 April 2012 ... was served on the applicant
company’s representative on the same date, [together] with an explanation that [the
applicant company] could lodge an appeal on points of law [against the interlocutory
judgment] within fifteen days ... if [it] disagreed with that ... judgment.”
52. The applicant company appealed on points of law against both
interlocutory judgments. It argued that on 9 April 2012 the Court of Appeal
had dismissed its application of 6 April while ignoring its arguments about
the damage it would suffer if the ACC decision was enforced and the need
for protective measures in order to avoid making the enforcement of a
favourable judgment impossible. In addition, the applicant company argued
that the court’s observation that by staying the enforcement it would risk
prejudging the merits of the case was irrelevant. In the applicant company’s
submission, the court had ignored the fact that by dismissing the application
it had expressed an opinion on the outcome of the case in favour of the ACC.
53. The applicant company further argued that on 11 April 2012 the court
had dismissed its application of 10 April on the ground that that application
had been similar to the one of 6 April even though the applicant company’s
arguments and evidence showed that the former application had relied on
different circumstances from those referred to in the latter one, including the
fact that the television channel’s broadcasting activity had been stopped. No
explanation had been provided as to why the circumstances indicated by the
applicant company could not be characterised as being new.
54. By a judgment of 10 May 2012, not amenable to appeal, the Supreme
Court of Justice (“the Supreme Court”) dismissed the applicant company’s
appeal on points of law and upheld the lower court’s interlocutory judgments.
It held:
“... the solutions adopted by the [lower] courts were correct and complied with the
legal norms in force.
[Under Article 174 of the CCP], the court or the judge may take protective measures
in the case following a request by the parties to the proceedings. Protective measures
may be granted at any stage of the proceedings in circumstances where not taking such
measures would create judicial difficulties or would render impossible the enforcement
of the court judgment.
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
The applicant [asking] for protective measures has not presented the first-instance
court with evidence that could confirm a possible difficulty or impossibility in enforcing
a future favourable court judgment. However, the provisions of the cited norm can be
applied by the first-instance court which examines the application only in circumstances
where the parties to the proceedings who have asked for the [measure to be granted]
prove the possible existence of such consequences. Otherwise, an arbitrary application
of the cited norm could affect the rights and interests of another party to the proceedings
and breach one of the fundamental principles of civil proceedings as set out in Article 22
of the CCP.
Under section 21(1) of Law no. 793-XIV/2000, the applicant [company] may request
the administrative court to stay the enforcement of the contested administrative act at
the same time as lodging its application against that act.
Under subsection 2 of the [same] section [the court may also order a stay of
enforcement] of its own motion, but in such a case the court must establish damage that
is imminent and this finding must be well justified.
As transpires from ... section 21(2) of the Law ... [text], ... it falls within the court’s
discretion to assess how justified the need to order the stay ... is and [whether] this
intervention is going to prevent ... imminent damage.
The documents of the case confirm that ... the damage the applicant [company] claims
to have sustained ... [concerns] the losses it suffered ... [because of] the termination of
its commercial activities, which in turn was the result of the ACC’s decision whose
lawfulness and well-founded [nature] is contested and forms the scope of the case.
In other words, the administrative court is [called upon to examine] the [proceedings]
challenging the lawfulness of the administrative act, the results of which ... [are going
to be decisive] for the continuation of the [applicant company’s] activities.
Starting from the aforementioned considerations, the Court considers that the [first-
instance] court has correctly concluded that by the ACC’s decision ... of 5 April 2012
the activity of the NIT television channel had in fact been stopped and that by staying
[the enforcement of] the contested administrative act the court would expose itself [to
the risk] of determining the merits of the case, [a step] which is inadmissible at this
stage of the proceedings in accordance with the provisions of the CCP.
Moreover, the manner of recovering a loss suffered because of an administrative act
is provided for by Law [no. 793-XIV/2000] and was to be examined in the event that
the [applicant company’s action against the ACC] was allowed ...
For these reasons, the Court considers that the [applicant company’s] arguments
supporting its ... appeals on points of law cannot [be considered valid] grounds for
quashing the interlocutory judgments of the [lower] court ...
The applicant [company’s] allegation that the right to freedom of expression,
including the public’s right of access to information, might potentially be affected ... is
also [considered] by the court [to be] declaratory and unproven because ... there is no
evidence confirming such a situation.
The argument that the sale of the broadcasting frequencies could prevent the
enforcement of a possible judgment cannot be accepted and was correctly dismissed by
the [lower] court because it was grounded on mere suppositions.
Moreover, the legal provisions cited above give the court, where necessary, the
possibility of reconsidering throughout the judicial debates the issues deemed important
[in the case].
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
...”
55. The applicant company argued that the ACC’s decision of 5 April
2012 had been unlawful on substantive and procedural grounds. It stressed
that, according to the findings of the monitoring report, it had also referred to
the PCRM in a negative manner for forty-four seconds in its news bulletins.
It admitted that its news bulletins had been critical or even defamatory
towards the AEI. However, it pointed out that under the Convention it was
acceptable to criticise the government and that the freedom of the media
allowed journalists the right to exaggerate and act in a provocative manner.
According to the applicant company, it had thus acted in conformity with
Article 10 of the Convention. It expressed the view that the method chosen
by the State to ensure pluralism – as enacted in Article 7 of the Code – was
contrary to that Convention provision. It further submitted that the ACC’s
decision had not been lawful within the meaning of Article 10 as the law on
the basis of which the licence had been revoked had not made it clear that
such a serious sanction as the revocation of the licence could be imposed for
criticising the government. Nor had the ACC’s decision pursued a legitimate
aim, since the only aim pursued by the authorities had been to eliminate it
from the media market and get rid of a television channel critical of the
government. It stressed that the criticism of the government related to matters
of important public interest, such as foreign policy and domestic affairs. The
sanction imposed had been disproportionately harsh and the ACC had not
provided sufficient and pertinent reasons for that decision.
56. The applicant company also argued that the revocation of its licence
had been contrary to its rights guaranteed by Article 1 of Protocol No. 1 to
the Convention.
57. As regards the procedure, the applicant company submitted that
pursuant to Article 40 § 3 of the Code, the ACC’s decision of 29 March 2012
to carry out a monitoring process had entered into force on the date on which
it had been published in the Official Gazette, namely on 31 March 2012. The
monitoring report had been debated by the ACC at its meeting of 5 April
2012. The ACC had not observed the time-limits prescribed by
sections 3(2)(a) and 9 of Law no. 239-XVI/2008 on transparency in
decision-making (see paragraph 88 below). In addition, when adopting its
decision of 5 April 2012, as well as its decision of 24 June 2011, the ACC
had not acted in conformity with Article 27 § 2 of the Code in that it had
omitted to observe procedural requirements laid down in other laws before
suspending or revoking the licence. In particular, it had failed to apply to a
court within three working days from adopting its decisions, including the
one of 5 April 2012, as required by the CCP and section 17(3) of Law
no. 235-XVI/2006 on the basic principles of regulating entrepreneurial
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
activity. Also, the ACC had not provided any recommendations for
remedying the violations found following the monitoring and had not warned
the applicant company of the possible suspension or revocation of the licence
if the violations found were not remedied in due time, as required by
section 16(6)(e) of Law no. 235-XVI/2006 and section 19 of Law
no. 451-XV/2001 on regulating entrepreneurial activity through licensing.
Furthermore, the Constitutional Court had confirmed in its ruling of
6 December 2012 (see paragraphs 89-92 below) that the immediate
enforcement of the ACC’s decision of 5 April 2012 without waiting for the
outcome of the court proceedings examining the challenge against that
decision had been contrary to national legal and constitutional principles and
to the Convention.
58. The applicant company lastly contended that the ACC had been
politically biased and that certain leading politicians had influenced the
decision to revoke its licence.
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
radio stations an obligation to give that person the opportunity to react. The choice made
by the State is compatible with the so-called margin of appreciation under Article 10 of
the Convention ...
In this context, reference is made to ... the third sentence of paragraph 1 of Article 10
of the Convention, according to which: ‘This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.’
... audiovisual broadcasting is regulated by the Code, which is in line with
international standards and which received the approval of international bodies at the
time of its adoption ...
The law on the basis of which the television channel’s licence was revoked was
accessible and foreseeable, and NIT could have foreseen the consequences of its
behaviour.”
62. The court took the view that a broadcaster’s editorial independence
had to comply with the lawful requirements in the field and with society’s
interests.
63. The court accepted that the sanction imposed on the applicant
company had been very harsh. However, it considered it important that the
revocation of the licence had not been a spontaneous act which could not have
been foreseen by NIT. It noted that before imposing that sanction, the ACC
had made unsuccessful efforts for three years, between 2009 and 2012, to
make the television channel abide by the provisions of Article 7 of the Code.
The television channel had received sanctions on thirteen occasions between
2009 and 2012 for similar breaches and all those sanctions had been
ineffective:
“It is undisputed that the attempts undertaken by the ACC and the chances given to
the NIT television channel to return to legality, in conjunction with the sanctions
imposed, in the opinion of the court, were more than enough for NIT to draw the
appropriate conclusions and start complying with the law.
However, the court notes that NIT presented obvious characteristics of a violator of
the imperative norms in the field, ignoring all the attempts undertaken by society, in the
person of the [ACC], to keep NIT on the market of broadcasters in the Republic of
Moldova.”
64. The court noted that although all the legal conditions for the
revocation of the licence had been met much earlier (in 2010), the ACC had
imposed milder sanctions on two occasions instead of revoking the licence,
thus giving the applicant company additional chances to comply with the law
and avoid having its licence revoked. The court further noted that in 2011 the
television channel had contested only two of the five sanctions imposed on
it: the two official warnings had not been contested, and the fine had been
paid without being contested.
65. The Court of Appeal also took into account the fact that at the time of
the revocation of the licence, six of the sanctions imposed by the ACC had
been final, and that by the time of the adoption of its judgment, another four
sanctions had become final by way of final court judgments. Moreover, on
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
two occasions, the ACC had given NIT deadlines to comply with the law
without imposing any sanctions on it:
“... the court concludes that, by the date of the ACC’s decision no. 42 of 5 April 2012
regarding the revocation of NIT’s licence, out of all the sanctions applied to the NIT
television channel, six sanctions were in force and had legal effect, and subsequently,
by the time of the adoption of the decision in the case under examination, the legality
of four other sanctions imposed as a result of the ACC’s decisions has been confirmed
by irrevocable court decisions.”
66. The court further noted that in spite of all the efforts by the ACC to
make NIT stop violating the law and thus keep it on the market, the latter had
obstinately continued to do so, thus leaving no other option to the ACC but
to revoke the licence. It held:
“Had the ACC not imposed the harshest sanction on the television channel, it would
have sent the wrong signal to other broadcasters, which would have been led to believe
that failure to observe the law could not have serious consequences. Thus, the
imposition of the harshest sanction on the television channel corresponded to a strong
necessity in a democratic society, a necessity dictated by the obligation to impose
pluralism of opinions and the need to comply with the audiovisual legislation.”
67. The court also dismissed the applicant company’s allegations
concerning the breach of its rights under Article 1 of Protocol No. 1 to the
Convention. It noted that the licence had been revoked for repeated breaches
of the law and that therefore, the revocation had been lawful, had pursued a
legitimate aim and had been necessary in a democratic society. The court also
considered unfounded the applicant company’s argument that the interference
had been disproportionate because of its exceptional and unjustifiably harsh
nature, which had ruined the applicant company’s entire professional activity,
depriving it of all the possible income from audiovisual activities, on the
grounds that during the years 2009 to 2012 NIT had not taken any measures
recommended by the ACC but had continued to breach the Code, a fact which
had eventually led to the revocation of the licence.
68. The court held, moreover, that the applicant company had not
submitted conclusive and pertinent evidence before it that could confirm the
damage alleged by it and that any losses suffered, including those from its
inability to honour its contractual obligations, were attributable to NIT’s
unlawful actions and therefore it had to accept responsibility for them.
69. As regards the procedural complaints, the court held that the ACC had
adopted the impugned decision in compliance with Articles 7, 10, 37, 38 and
40 of the Code and Articles 4, 5, 7, and 8 of the ACC’s articles of association
(see paragraphs 85-86 below) and by exercising its powers as set out in
Articles 37 and 40 of the Code. On 29 March 2012 the ACC had lawfully
ordered the monitoring of the news bulletins in accordance with the
provisions of Article 38 §§ 2(f) and 7 and Article 40 § 1(d) of the Code. In
line with the provisions of Article 38 § 7 of the Code, the applicant company
had been given a copy of the report on 2 April 2012 and had been informed
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
with sufficient advance notice of the date, place and time of the ACC’s
meeting at which the report was to be discussed. Its representative had had
sufficient time to become familiar with the contents of the report and to
prepare a defence, had attended the meeting of 5 April 2012 and had been
allowed to present the applicant company’s position without any restrictions.
The representative had not asked for an adjournment of the meeting in order
to have more time to study the report or to prepare his submissions, even
though he had had the right to do so. Therefore, the applicant company could
no longer claim that its rights had been affected because it had had insufficient
time for preparation.
70. The court further held in this connection that the applicant company’s
argument to the effect that the ACC’s decision had breached section 9 of Law
no. 239-XVI/2008 was ill-founded. The court observed that the applicant
company had never challenged the lawfulness of the ACC’s decision of
29 March 2012, so that it had not ceased to have effect. Moreover, the
lawfulness of that decision had not been the subject of the instant case. The
court also took the view that the Code was lex specialis and that therefore,
the provisions of the Law on regulating entrepreneurial activity through
licensing and the Law on the basic principles of regulating entrepreneurial
activity were not applicable to the case:
“The court considers unfounded the opinion of the representative of NIT according to
which the ACC’s decision no. 42 of 5 April 2012 is unlawful in that other decisions
previously adopted by the [ACC] do not include provisions on requirements and
recommendations for removing the violations found, which should be implemented
pursuant to the Law on regulating entrepreneurial activity through licensing (no. 451-
XV of 30 July 2001), because, in its activity, the [ACC] is governed by the provisions
of the special law, namely the Code, which lays down the conditions and procedure for
withdrawing the licence, and the provisions of the Code in this regard have been
observed.
At the same time, it is a well-known fact that, on the basis of the type of activity carried
out by [NIT], in the light of the present dispute, the Law on regulating entrepreneurial
activity through licensing (no. 451-XV of 30 July 2001) and the Law on the basic
principles of regulating entrepreneurial activity (no. 235-XVI of 20 July 2006) are not
applicable to the present case; thus, the references made to the provisions of those Laws
are likewise unfounded.”
71. As regards the applicant company’s argument that the findings of the
Constitutional Court in its ruling of 6 December 2012 (see paragraphs 89-92
below) on the constitutionality of the amendment to Article 38 of the Code
enacted on 29 May 2012, were relevant and applicable to its case, the Court
of Appeal found that those findings were not applicable and dismissed the
applicant company’s argument by making reference to the Law on the
Constitutional Court, which stated that the rulings of the Constitutional Court
did not have retroactive effect:
“It should be mentioned that, in accordance with the provisions of section 26(7) of
Law no. 317 of 13 December 1994 on the [Constitutional Court] of the Republic of
Moldova, the decisions of the [Constitutional Court] take effect only for the future, and
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
73. The applicant company appealed on points of fact and law against the
Court of Appeal’s judgment and argued, in so far as relevant to the case before
the Court, that it had misinterpreted and misapplied the relevant provisions
concerning its right to freedom of expression. It repeated the arguments
submitted to the Court of Appeal (see paragraph 55 above) and added that all
the insults directed at the government had been shouted out by the protesters
at meetings organised by the PCRM and that NIT had merely reported on the
events in question. Therefore, the television channel was not responsible for
the slogans shouted during those events. Moreover, the persons in respect of
whom criticism had been expressed had not been offered an opportunity to
react to that criticism because they had not asked for such an opportunity.
74. In addition, the applicant company submitted that the lower court had
wrongly concluded that the ACC had not failed to observe the principle of
gradual application of the sanctions when revoking its licence. It noted in
particular that the harshest sanction had been applied at a time when the
previous two sanctions were still being disputed in the courts. It was the
applicant company’s position that the ACC could only apply the next sanction
after the courts had ruled on the previous ones. Otherwise, its right to an
effective remedy within the meaning of Article 13 of the Convention would
be breached. The applicant company also contended that through its judgment
the Court of Appeal had breached Article 6 of the Convention and Article 1
of Protocol No. 1 to the Convention and had ignored the Court’s relevant
case-law in that regard.
75. Furthermore, the applicant company repeated its argument relating to
the time-limit set out in section 9 of Law no. 239-XVI/2008 (see paragraph 57
above), adding that the ACC had not been exempted from observing it even
though the applicant company had not asked for the meeting of 5 April 2012
to be adjourned.
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
76. The applicant company also submitted that the lower court had
wrongly established that the licence revocation procedure provided for in
Laws nos. 235-XVI/2006 and 451-XV/2001 had not been applicable to the
case. The lower court’s finding had ignored an explanation provided by the
Plenary of the Supreme Court in a judgment of 28 May 2012 to the effect that
all licensing bodies had to initiate court proceedings after they had issued
decisions suspending or revoking an entrepreneurial licence. In addition,
according to the Constitutional Court’s judgment of 6 December 2012, the
type of activity carried out by NIT could not exempt the licensing body from
initiating the aforementioned court proceedings.
6. Subsequent developments
82. After the revocation of its broadcasting licence, NIT continued to
share content such as news bulletins, reports and videos through its Internet
homepage and its YouTube channel until the end of 2014.
83. The applicant company did not reapply for a broadcasting licence.
A. Domestic law
1. The Constitution
84. The relevant provisions of the Constitution of the Republic of
Moldova, as in force at the material time, read as follows:
Article 32
Freedom of opinion and expression
“1. Every citizen shall be guaranteed the freedom of thought and opinion, as well as
the freedom of expression in public by way of word, image or other possible means.
2. Freedom of expression may not prejudice the honour, dignity or right of another
person to his or her own vision.
3. It shall be prohibited and punished by law to challenge and defame the State and
the people, to call for a war of aggression or national, racial or religious hatred, to incite
discrimination, territorial separatism, or public violence, and to engage in other actions
that threaten the constitutional regime.”
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Article 46
The right to private property and its protection
“1. The right to private property, as well as claims against the State, are guaranteed.
2. No one may be subjected to expropriation except in the public interest, established
in accordance with the law, in return for just and prior compensation.
3. Lawfully acquired assets may not be confiscated. The lawful nature of the
acquisition shall be presumed.
4. Goods intended for, used for or resulting from criminal or administrative offences
may be seized only in accordance with the law.
5. The right to private property shall oblige the owner to comply with the duties
relating to the protection of the environment and the provision of good neighbourliness,
as well as to the other duties which, in accordance with the law, fall to the owner.
6. The right to inherit private property shall be guaranteed.”
Article 7
Political and social balance and pluralism
“1. In keeping with respect for fundamental freedoms and human rights, political and
social pluralism, cultural, linguistic and religious diversity, information, education and
entertainment of the public shall be realised and ensured through the transmission and
retransmission of programme services.
2. When giving airtime to a political party or movement for the propagation
(propagarea) of its position, a broadcaster shall also give airtime to other political
parties and movements within the same type of programme and in the same time slot,
without any unjustified delay and without favouring a certain party, regardless of the
percentage of its parliamentary representation.
...
4. In order to ensure the observance of the principles of social and political balance,
fairness and objectivity within [their] news programmes, [broadcasters] shall ensure
that:
(a) each news story is accurate;
(b) the sense of reality is not distorted by means of editing tricks, comments, wording
or headlines;
(c) the principle of multi‐source information is observed in cases of news stories
covering conflict situations.
...”
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
Article 8
Independence and editorial freedom
“1. Broadcasters under the jurisdiction of the Republic of Moldova have the right to
decide freely on the content of their broadcasts and programmes, respecting the
principle of plurality of opinions in accordance with the legal framework and the
conditions set out in the broadcasting licence.
...”
Article 10
Programme consumer rights
“...
5. Broadcasters shall ensure that information given to the public is presented
objectively and shall favour the free formation of opinions.
...”
Article 23
Broadcasting licences
“1. Licences for broadcasting programme services by means of terrestrial
radio-electric waves shall be issued by the Audiovisual Coordinating Council following
a competitive process ...
...
3. The Audiovisual Coordinating Council shall issue a broadcasting licence subject
to the following conditions:
(a) the issuing of a broadcasting licence shall be conditional on a subsequent
observance of the objectives set out in the Strategy on covering the national territory
with audiovisual programme services, in compliance with the National Plan of Radio
Frequencies;
(b) the issuing of a broadcasting licence shall be deemed to meet the principles of
ensuring pluralism in the audiovisual field, precluding the creation of any potential
conditions for monopolistic ownership and media concentration in the audiovisual
sector in particular and in the mass media in general, taking into consideration the
degree of compliance with this requirement of the broadcasters already issued with a
licence;
(c) a decision granting a licence shall be made taking into consideration the
applicant’s financial viability and the extent to which the applicant’s proposals coincide
with his or her real financial potential;
(d) applicants offering programmes of domestic production and European works
shall take precedence in the competitive process for a broadcasting licence.
4. The licensing terms and the procedure shall be published in the Official Gazette of
the Republic of Moldova and on the Audiovisual Coordinating Council’s website.
5. A broadcasting licence for terrestrial radio and/or television programme services
shall be granted for a seven-year period, whereas for cable radio or television
programme services [it shall be granted] for a six-year period;
6. In accordance with the Strategy on covering national territory with audiovisual
programme services, the Audiovisual Coordinating Council shall publish an
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
Article 27
Revocation of a broadcasting licence
“1. The Audiovisual Coordinating Council may revoke a broadcasting licence if:
(a) the licensee continually fails to fulfil the conditions specified in the licence;
(b) the licensee violates the requirements of this Code;
...
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
Article 37
Supervision and monitoring
“1. The Audiovisual Coordinating Council shall supervise the implementation and
observance of the provisions of this Code.
2. In exercising its duties, the Audiovisual Coordinating Council may request the
necessary information from broadcasters or service providers, specifying the legal basis
and the purpose of the request and shall set the deadlines within which this information
should be delivered.
3. Monitoring activities shall be performed as follows: (a) [by the Council] of its own
motion; (b) at the request of a public authority; (c) following a complaint filed by a
natural or legal person claiming to have been directly affected by a violation of
legislation in this field.
4. The Audiovisual Coordinating Council shall examine the submitted claims and
requests within fifteen days from the date of receiving them. The results of the
monitoring and, where appropriate, the decision to apply a sanction shall be published
on the Council’s website.”
Article 38
Sanctions
“1. If a broadcaster violates the legal rules, one of the following sanctions shall be
applied:
(a) a public warning;
(b) withdrawal of the right to broadcast advertisements for a certain period of time;
(c) a fine;
(d) suspension of the broadcasting licence for a certain period of time;
(e) revocation of the broadcasting licence;
2. Under this Code the following shall constitute breaches:
...
(b) transmission of programme services violating the conditions of the broadcasting
licence;
...
(f) transmission of programme services which, as a consequence, lead to the violation
of the provisions of Article 6, Article 7 §§ 2 to 4, Article 10 §§ 1 and 5, Article 11 §§ 2
to 8, Article 17 ...
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
Article 40
Duties of the Audiovisual Coordinating Council
“1. The Audiovisual Coordinating Council shall:
(a) supervise the performance of the obligations of public and private broadcasters
specified in the broadcasting licence within the meaning of and in accordance with the
legal provisions;
(b) supervise the accuracy of the content of programmes provided by broadcasters
only after broadcast;
...
(d) monitor, in accordance with paragraph 1(b), the content of programmes provided
by broadcasters and programme service packages guaranteed by service providers on a
periodic basis and whenever the Council deems it necessary, and whenever a complaint
is filed with regard to a broadcaster’s failure to observe the legal provisions, regulation
standards in the field or obligations specified in the broadcasting licence;
...
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
3. In the exercise of its powers, the Audiovisual Coordinating Council shall adopt
binding decisions, which shall enter into force on the date of [their] publication in the
Official Gazette of the Republic of Moldova.
4. All decisions of the Audiovisual Coordinating Council shall be reasoned.
Decisions, including the reasons, shall be published in the Official Gazette of the
Republic of Moldova and on the [Council’s] website.
5. Decisions of the Audiovisual Coordinating Council may be challenged in
administrative courts by any person who considers himself or herself prejudiced by
them.”
Article 41
Obligations of the Audiovisual Coordinating Council
“1. As a guarantor of the public interest in the field of audiovisual communication
based on democratic principles and the protection of programme consumer rights, the
Council shall:
(a) supervise the observance of the pluralist expression of ideas and opinions in the
programmes aired by broadcasters under the jurisdiction of the Republic of Moldova;
...”
Article 42
Structure of the Audiovisual Coordinating Council
“1. The Council shall consist of nine members, appointed by the Parliament of the
Republic of Moldova.
2. Candidates for the office of the member of the Council shall be selected by the
corresponding parliamentary commission [on the media] and by the commission on
law, nominations and immunities, which afterwards shall submit these candidates to
Parliament for approval. The candidates may be proposed by public associations,
foundations, trade unions, employers’ associations and religious organisations. The
candidacies shall be submitted to the [media] commission. When the list of candidates
is submitted to Parliament, the commission [on the media] shall draw up a report, and
the law commission shall draw up a co-report.
3. The members of the Audiovisual Coordinating Council shall be approved by a
decision of Parliament. If a candidate for the office of ACC member does not receive
the necessary number of votes, the commission [on the media] and the commission on
law, nominations and immunities shall nominate another candidate within two weeks.
4. The position of member of the Council can be occupied by any person who meets
the following requirements:
(a) has a university degree and at least five years’ experience in one of the following
fields: audiovisual, communication technologies, law, finance, accounting,
management, or informational development in a creative team at any institution;
(b) is at least 25 years old and has not reached the legal age of retirement;
(c) speaks the official language of the Republic of Moldova;
(d) has no previous convictions;
...”
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Article 43
Members of the Audiovisual Coordinating Council
“1. The members of the Council shall be guarantors of the public interest and shall
not represent the authority that has nominated them.
2. The members’ term of office shall be six years. Their appointment shall be made
gradually: initially, three candidates shall be elected for a six-year term, three for a
four-year term and three for a two-year term. When the initial terms of office expire,
other candidates for the position of ACC member shall be appointed for a six-year term
upon proposals made by the parliamentary [media] commission and the commission on
law, nominations and immunities, after receiving a notification from the ACC.
3. During their term of office, the members of the Council may not be dismissed from
office, except during the period defined by this Code for forfeiture of office on grounds
of incompatibility.
4. No person shall serve two consecutive terms of office as a member of the
Audiovisual Coordinating Council.
5. The position of member of the Council shall become vacant in the following cases:
(a) resignation;
(b) expiry of the term of office;
(c) conviction by a final court judgement ...;
(d) loss of citizenship of the Republic of Moldova;
(e) physical or mental incapacity;
(f) reaching the age of retirement;
6. The members of the Council shall hold public dignity functions.
7. After being approved by Parliament, the members of the Audiovisual Coordinating
Council shall swear the following oath during a plenary meeting:
‘I swear to observe the Constitution and the laws of the Republic of Moldova, to
defend the rights and the fundamental freedoms of citizens, to accomplish the
prerogatives that this position bears with honour, consciously and without bias, [and]
not to make any political declarations during the validity of my mandate’.”
Article 47
Funding of the Audiovisual Coordinating Council
“1. The funding of the Audiovisual Coordinating Council shall cover the estimated
cost of all its activities, so that the Council may work effectively and efficiently, and
completely fulfil its duties.
2. The Audiovisual Coordinating Council’s budget shall be formed from the
following sources:
(a) government subsidies;
(b) income from the fees for licensing;
(c) income from the annual fee paid by broadcasters to cover regulatory expenses
amounting to 1% of their annual turnover;
(d) grants.
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
3. The share of the budget of the Audiovisual Coordinating Council that derives from
sources other than government subsidies shall constitute the Broadcasters’ Support
Fund, which shall have separate regulations, drawn up and published by the Council.
The Fund may not be used for remuneration of the Council’s members and employees.
31. State budget subsidies offered to public broadcasters in accordance with the
present Code shall not be taken into consideration when determining the tax covering
regulatory expenses.
4. The Audiovisual Coordinating Council shall annually present before Parliament a
budget proposal on the estimated costs of the activities planned by the Council to
accomplish its duties and obligations.
5. The proposals submitted by the Audiovisual Coordinating Council on the budget
and its organisational structure shall be considered and approved at a plenary meeting
of the Parliament of the Republic of Moldova.
6. The Audiovisual Coordinating Council shall publish an annual report on its
financial activity in the Official Gazette.”
Article 66
Private broadcasters
“...
3. A natural or legal person may hold a maximum of five broadcasting licences in the
same territorial administrative unit or zone, without the possibility of exclusivity.
4. A natural or legal person from Moldova or from abroad may be an investor or
majority shareholder, directly or indirectly, in a maximum of two broadcasting outlets
of different types.
...”
Article 4
“The members of the Council shall supervise:
(a) compliance by audiovisual institutions with the legislation and legal rules in force;
(b) external relations in the field;
(c) licensing of audiovisual programme genres;
(d) the activity of audiovisual institutions in the territory;
(e) the monitoring of audiovisual programmes;
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NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
(f) the prospects for the development of the domestic audiovisual [sector];
g) management of internal resources, and so on.”
Article 5
“1. The Council shall meet at public meetings twice a month or whenever necessary.
2. The agenda of the meeting, accompanied by the relevant documentation, shall be
forwarded to all members of the Council and, where appropriate, to the directorates
concerned at least seventy-two hours before the start of the meeting.
3. At the start of a meeting, the agenda may be supplemented, on a proposal from the
members of the Council, with the agreement of the majority.
4. The Council shall meet compulsorily when applications for broadcasting licences,
retransmission authorisations, regulatory decisions and proposals for sanctions are
submitted for approval and when monitoring and inspection reports are debated.”
Article 6
“...
2. The debates of the Council and the manner in which decisions and other measures
are taken shall be recorded in the minutes of the meeting, signed by the President of the
Council.”
Article 7
“The Council shall deliberate in the presence of at least six of its members and
decisions shall be taken if they receive the votes of at least five members.”
Article 8
“In the exercise of its powers, the Council shall adopt decisions, instructions or, where
appropriate, recommendations.”
Article 9
“Council decisions are administrative acts and shall be reasoned.”
Article 27
Revocation of a licence
“1. A broadcasting licence shall be revoked:
(a) in the cases mentioned in Article 27 of the Audiovisual Code;
...
2. Within fifteen working days, starting from the day the grounds are established, the
Council shall adopt a decision concerning the revocation of the licence and, within no
more than five working days from the date of adoption of the decision, it shall notify
the licence holder thereof, indicating the reasons for the revocation.
...
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
5. The owner of a licence that has been revoked may not apply for a new licence for
the same type of activity until twelve months have expired from the date on which the
revoked licence was returned to the Council.”
Section 3
Subject matter of administrative court proceedings
“(1) The subject matter of administrative court proceedings shall be administrative
acts, of a normative and individual nature, by which a right of a person, including a
third party, recognised by law has been violated, issued by:
(a) public authorities and authorities treated as equivalent for the purposes of this
Law;
...”
Section 14
Preliminary challenge
“(1) A person who considers that his or her rights recognised by law have been
violated by an administrative act shall, by means of a preliminary challenge, request the
issuing public authority, within thirty days of the date of notification of the act, to
revoke it, in whole or in part, unless otherwise provided for by law.
...”
Section 15
Procedure for examination of a preliminary challenge
“(1) A preliminary challenge shall be examined by the issuing body or the
hierarchically superior body within thirty days of the date of its registration, the
decision being communicated forthwith to the petitioner unless otherwise provided by
law.
...”
Section 16
Submission of an application for appeal to the administrative court
“(1) A person who considers that his or her rights recognised by law have been
violated by an administrative act and is not satisfied with the reply received to the
preliminary challenge, or has not received any reply within the time-limit laid down by
law, shall have the right to refer the matter to the administrative court competent to set
aside that act, in whole or in part, and to award compensation for the damage caused.
(2) The action may be referred directly to the administrative court in cases expressly
provided for by law and in cases where the person considers that his or her rights have
been violated by the failure to decide on [the preliminary challenge] within the legal
time-limit or by the dismissal of the preliminary challenge ...
33
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
...”
Section 21
Suspension of the execution of the contested administrative act
“(1) An applicant may request the court to suspend the execution of an administrative
act at the same time as lodging his application against that act.
(2) In justified cases and with a view to preventing imminent damage, the court may
order the suspension of an administrative act of its own motion.
(3) As a derogation from the provisions of subsections (1) and (2), the acts of the
National Commission on Financial Markets and the Court of Accounts cannot be
suspended before the examination of the case.
...”
Section 3
Scope of this Law
“(1) The scope of this Law shall be the totality of the legal relations established in
the decision-making process between citizens, associations established in accordance
with the law, or other interested parties, on the one hand, and public authorities, on the
other.
(2) The following shall be covered by this Law:
(a) central public authorities: Parliament and the authorities created by it
(... Audiovisual Coordinating Council, ....) ...
...”
Section 9
Announcement concerning the initiation of the decision-making process
“(1) Upon initiation of the decision-making process, the public authority shall, at
least fifteen working days before the decision is examined, place a notice on the official
website, send it by email to the interested parties, display it at its premises in a space
accessible to the public and/or disseminate it in the national or local media, as
appropriate.
(2) The notice of initiation of the decision-making process shall necessarily indicate:
(a) the need to adopt the decision;
(b) the deadline, the place and the manner in which citizens, associations established
in accordance with the law and other interested parties may have access to the draft
decision and submit or send recommendations;
(c) the contact details of the persons responsible for receiving and examining the
recommendations.”
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the specificities of the audiovisual field and its importance for communicating
information and ideas to the public, such severe measures as the suspension or
revocation of a licence have to be reviewed concretely by the court prior to their
enforcement.
59. In reviewing the ‘fair balance’ between the competing interests at stake – the
general public interest, which, in the present case, would be that of preventing possible
culpable actions by the broadcaster in bad faith, of such a kind as to create or amplify
the situations which led to the interference, and the individual interests of the
broadcaster – the authorities have not argued, and the Court does not find any other
arguments [to this effect], that there is a risk of serious imminent damage to the public,
which would justify the need to immediately enforce such decisions of the Audiovisual
Coordinating Council, in the absence of a decision of a court or, at the very least, of the
possibility of challenging [them] in court prior to enforcement.
60. The [Constitutional] Court, in this particular situation, considers that the
immediate enforcement of the sanction ... of suspension or revocation of the licence is
not justified ... [by] a major [public] interest ...
61. For these reasons ..., the Court considers that the provisions of Article 38 § 8 of
the ... Code, ... in the part relating to the imposition of sanctions in the form of
suspension or revocation of licences, does not strike a fair balance between the interests
of the community and those of broadcasters, imposing an excessive individual burden
on [the latter] ...
62. In the light of the above, the Court concludes that the provisions of paragraph 8
of Article 38 relating to the immediate enforcement, pending an appeal to a court, of
the decisions of the Audiovisual Coordinating Council concerning the suspension and
revocation of a licence contravene not only the basic principles concerning
entrepreneurial activity, but also the constitutional guarantees regarding the right to
property of the founders of audiovisual institutions and its protection, enshrined in
Article 46 of the Constitution, and represent ‘an interference with the right to enjoy
property’, taking into account the immediate effect of these decisions and, as a result,
the prevention of the holder from continuing his or her [activity] ...”
92. Secondly, with regard to the allegations that the impugned amendment
breached the right of broadcasters to freedom of expression, the
Constitutional Court held, amongst other things:
“...
72. ... the [Constitutional] Court considers that the measure of suspension or
revocation of the broadcaster’s licence is liable to affect the substance of the procedural
guarantees which broadcasters should enjoy under Article 10 of the Convention and is
incompatible with the principle of the rule of law.
73. Consequently, the [Constitutional] Court considers that, under the specific
circumstances ..., such interference with the broadcasters’ right to freedom of
expression does not satisfy the condition ‘of being necessary in a democratic society’
and is therefore contrary to Article 32 of the Constitution and Article 10 of the ...
Convention.
...
75. Taking into account the fact that the Audiovisual Coordinating Council is a body
susceptible to politicisation, its decision to suspend or revoke the licence of a
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
37
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
powerful effect than the written press. The Court has ignored the arguments of the
authorities concerning possible calls for protests during election campaigns or political
events – protests that can turn into violent actions and require the immediate application
of the sanctions in question.
The major impact of broadcasting services on the public, in my opinion, justifies
Parliament’s interference with the exercise of the right to property in order not to allow
‘culpable actions by the broadcaster in bad faith, of such a kind as to create or amplify
the situations which led to the interference’, as well as to avoid a ‘risk of serious
imminent damage to the public’, in respect of which the Court has not found any
arguments in paragraph 59 of the ruling.
4. In paragraph 57 the Court makes an incorrect deduction on the procedural
guarantees afforded by the law against the Audiovisual Coordinating Council’s
arbitrary actions and for the protection of broadcasters against the power of assessment
of this institution ...
5. I consider unfounded the Court’s deduction set out in paragraph 61 according to
which the immediate application of the sanctions of suspension or of revocation of a
licence amounts to an ‘excessive individual burden’ for broadcasters. The Court has
ignored the provisions of [paragraph] 3 of Article 38 of the Code ..., which states that
‘the sanctions provided for in paragraph 1 shall be applied gradually’. In my view, this
provision is ‘the key’ to a ‘fair balance’ between the competing interests of society and
of broadcasters, convincingly proving the lawmaker’s intention, an intention which falls
within the limits of the constitutional provisions.
The Code, in [paragraph] 1 of Article 38, specifies the sanctions which may be applied
to broadcasters, in the following order: ... According to the meaning of [paragraph] 3 of
Article 38 ..., the Audiovisual Coordinating Council cannot ignore a less severe
sanction in order to impose a more severe one. I must stress that, under [paragraph] 9
of Article 38 ..., any sanction can be challenged by the broadcaster before a court of
law. Thus, in order for the sanctions of suspension and revocation of the licence to be
imposed there [must have been] at least three previous sanctions, whose lawfulness has
been acknowledged by a final judgment of a court of law.
In addition, an even more rigid procedure is provided for imposing the last sanction –
revocation of the licence. Thus, in accordance with ... Article 38, ‘the broadcasting
licence shall be withdrawn in accordance with Article 27 only if a recurrent and serious
violation of the provisions of the Code [has] occurred’...
Having regard to the manner in which the sanctions are applied, I consider that clear
procedural guarantees are provided for by the law ‘against arbitrariness’ and for the
protection of broadcasters against the power of assessment of the Audiovisual
Coordinating Council. In addition, I consider that, by forcing the Audiovisual
Coordinating Council to apply gradually the sanctions [taken] against broadcasters, the
restrictions in the form of suspension and revocation of the licence are set out by the
lawmaker ‘in a convincing manner’, in compliance with the Court’s case-law as set out
in the case ..., cited in paragraph 70 of the Constitutional Court’s ruling.
6. I agree with the Court’s remark that the financial field is of major importance to
society, in respect of which ‘the discretion enjoyed by the State presupposes its right to
establish separate rules in relation to other similar areas subject to regulation’, but when
it states that ‘such severe measures as the suspension or revocation of a licence have to
be reviewed concretely by the court prior to their enforcement’, the Court has failed to
take account of the fact that in the banking field the law imposes rules which are much
more stringent than in the audiovisual field. Thus, in the banking system, by contrast to
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
Article 11
Respect for fundamental rights and freedoms
“...
2. The following audiovisual programmes shall be prohibited:
(a) those likely to propagate, incite, promote or justify racial hatred, xenophobia,
antisemitism or other forms of hatred based on intolerance or discrimination on grounds
of sex, race, nationality, religion, disability or sexual orientation;
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Article 17
Protecting the national audiovisual space
“1. Radio frequencies intended for the provision of audiovisual media services in
terrestrial digital or analogue systems shall constitute public assets and shall be used on
the basis of broadcasting licences issued under the law.
2. The national audiovisual space shall be used under the terms of this Code, with a
view to:
(a) favouring the free movement of information;
(b) contributing to ensuring freedom of expression;
(c) contributing to the coverage of social information needs;
(d) contributing to ensuring the professional and social integrity of media service
providers.
3. In the national audiovisual space, the broadcasting of audiovisual programmes
constituting hate speech shall be prohibited.
...”
Article 27
Revocation of a broadcasting licence
“1. A broadcasting licence shall be revoked in the following cases:
(a) the media service provider notifies the Audiovisual [Coordinating] Council of the
abandonment of broadcasting of the audiovisual media service;
(b) the media service provider has not started broadcasting within six months from
the [time] the broadcasting licence was issued in analogue format and three months in
the terrestrial digital system;
(c) the media service provider has not paid the fee for the broadcasting licence,
established in accordance with Law no. 160/2011 ..., after being warned twice, in
writing, by the Audiovisual [Coordinating] Council;
(d) the media service provider has submitted false information to the Audiovisual
[Coordinating] Council, which has led to a breach of the legal regime of ownership in
the field of audiovisual media services;
(e) the media service provider has refused to submit or for any other reason has not
submitted information on the legal regime of ownership in the field of audiovisual
media services to the Audiovisual [Coordinating] Council;
(f) the media service provider has repeatedly infringed the provisions of Article 11
§ 2 and Article 17 of this Code after the sanctions provided for in Article 84 § 9 of this
Code have been gradually applied to it;
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
(g) the media service provider, following the suspension of its broadcasting licence
in accordance with Article 84 § 10 of this Code, does not remedy the infringement in
respect of which the sanction of suspension was imposed and/or it has received more
than two sanctions within twelve months of the expiry of the sanction of suspension.”
Article 84
Sanctions
“1. Media service providers, video-sharing platform service providers and media
service distributors shall be liable for infringements of audiovisual legislation in
accordance with this Article and the legislation in force.
2. For infringements of the provisions of this Code, the Audiovisual [Coordinating]
Council shall apply individually determined sanctions, depending on the seriousness of
the infringement, its effects and the frequency of infringements committed in the last
twelve months.
...
9. A fine of between 40,000 lei and 70,000 lei shall be imposed on media service
providers and media service distributors which have infringed the provisions of
Article 11 § 2 and Article 17. For repeated violations of these provisions, the fine shall
be between 70,000 lei and 100,000 lei. The revocation of the broadcasting licence for
an infringement of the provisions of Article 11 § 2 and Article 17 shall be applied after
the sanctions provided for in this paragraph have been gradually applied.
10. A media service provider or media service distributor who has repeatedly
committed the infringements referred to in paragraph 8 within twelve months shall
receive the sanction of suspension of the broadcasting licence ... The suspension of the
broadcasting licence ... shall be applied after the sanctions referred to in paragraphs 4-8
have been gradually applied.
...
14. The broadcasting licence shall be revoked in accordance with Article 27 ...
15. The decision of the Audiovisual [Coordinating] Council on the application of the
sanction shall be reasoned and shall become enforceable from the date of its publication.
Decisions of the Audiovisual [Coordinating] Council on the application of the sanction
may be appealed against to a court by the media service provider or distributor against
which the sanction has been imposed.
16. In order to protect the national audiovisual space, the court shall examine disputes
arising from infringements of Article 11 § 2 and Article 17 within thirty days. An
appeal, or an appeal on points of law, shall be lodged within three days of the date of
the decision and shall be examined within ten days.
17. If, within twelve months of the date of the last sanction, the media service
provider or the media service distributor does not commit any other infringements of
the provisions of this Code, the previous sanctions shall be deemed null and void.”
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20. This would amount to transforming the media and journalism into authorities or
counter-authorities (‘mediocracy’), even though they would not be representative of the
citizens or subject to the same democratic controls as the public authorities, and would
not possess the specialist knowledge of the corresponding cultural or educational
institutions.
21. Therefore journalism should not alter truthful, impartial information or honest
opinions, or exploit them for media purposes, in an attempt to create or shape public
opinion, since its legitimacy rests on effective respect for the citizen’s fundamental right
to information as part of respect for democratic values. To that end, legitimate
investigative journalism is limited by the veracity and honesty of information and
opinions and is incompatible with journalistic campaigns conducted on the basis of
previously adopted positions and special interests.
22. In journalism, information and opinions must respect the presumption of
innocence, in particular in cases which are still sub judice, and must refrain from
making judgments.
23. The right of individuals to privacy must be respected. Persons holding office in
public life are entitled to protection for their privacy except in those cases where their
private life may have an effect on their public life. The fact that a person holds a public
post does not deprive him of the right to respect for his privacy.
24. The attempt to strike a balance between the right to respect for private life,
enshrined in Article 8 of the European Convention on Human Rights, and the freedom
of expression set forth in Article 10, is well documented in the recent case-law of the
European Commission and Court of Human Rights.
25. In the journalist’s profession the end does not justify the means; therefore,
information must be obtained by legal and ethical means.
26. At the request of the persons concerned, the news media must correct,
automatically and speedily, and with all relevant information provided, any news item
or opinion conveyed by them which is false or erroneous. National legislation should
provide for appropriate sanctions and, where applicable, compensation.”
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3.1. Member States should consider introducing measures to promote and to monitor
the production and provision of diverse content by media organisations. In respect of
the broadcasting sector, such measures could be to require in broadcasting licences that
a certain volume of original programmes, in particular as regards news and current
affairs, is produced or commissioned by broadcasters.
3.2. Member States should consider the introduction of rules aimed at preserving a
pluralistic local media landscape, ensuring in particular that syndication, understood as
the centralised provision of programmes and related services, does not endanger
pluralism.”
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... this is however not to say that independence is the same concept as freedom, but
that there are specific links between the two. ...”
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and of media distribution (i.e. variety in media sources, outlets, suppliers and
distribution platforms).
...
Pluralism of media types refers to the co-existence of media with different mandates
and sources of financing, notably commercial media, community or alternative media,
and public service media, within and across media sectors, like print, television, radio
and internet. Pluralism of media genres refers to diversity in the media in relation to
media functions, including providing information, education, and entertainment.”
108. Referring to “political pluralism”, the report stated:
“The legal indicators for the risk domain ‘political pluralism’ assess the existence and
effectiveness of regulatory safeguards which, on the one hand, ensure access to the
media by the various political actors and groups, and, on the other hand, safeguard the
public’s right to become informed in a correct and complete way on the wide variety of
political viewpoints within society. In order to reach this goal, that of a politically
pluralistic media landscape, a difficult balance between political interference and
editorial independence needs to be struck in the different types of media. This balance
may evolve over time with the rise of new means of distribution.
The risk of political bias can be mitigated through both structural and behavioural
safeguards. Examples of the former include rules ensuring the fair representation of the
various political groups in management or board functions of media companies or
media councils, where these include political representatives. Behavioural rules can
prescribe, for instance, fair, balanced and impartial political reporting. Council of
Europe Recommendation (2007)2, on media pluralism and diversity of media content,
recommends that member states encourage the media to supply the public with a
diversity of media content capable of promoting critical debate and an increasingly
broad democratic participation of persons belonging to all communities and
generations. However, the Recommendation, by way of a disclaimer, states that they
should do so while respecting the principle of editorial independence. A careful balance
should be struck between stimulating political pluralism and respecting the editorial
independence of media outlets. Privately owned media are entitled to follow an editorial
line which might show a specific political preference. Therefore, impartiality as a
quality for political reporting cannot be required of this type of media. Nonetheless,
political coverage, even that by privately owned broadcasters and newspapers, should
at least be fair and accurate. Editorial independence cannot be used as an excuse for
incorrect reporting or defamation.
Political bias can also be tackled by providing tools for political actors and groups to
actively access the media in order to ‘personally’ expose their ideas, or to correct
misrepresentations of these ideas. The right to reply, or equivalent regulatory remedies
play, an important role in this respect.”
...
National media regulators play a key role in upholding and enforcing media pluralism.
As the 2020 Rule of Law Report emphasised, when implementing media-specific
regulation and taking media policy decisions, their independence from economic and
political interests has a direct impact on market plurality and on the political
independence of the media environment.”
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
113. The applicant company complained that the revocation of its licence
to broadcast had breached its right to freedom of expression under Article 10
of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.”
A. Admissibility
114. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
Lastly, the consequences of the measures were different in the two cases:
whereas in the case of NIT the television channel had had to shut down the
next day, in Demuth the applicant had merely been required to diversify his
channel’s programmes in order to obtain a licence.
116. The applicant company further submitted that the impugned measure
had not been prescribed by law as required by Article 10 § 2 of the
Convention. It followed from Article 38 § 10 of the Code that only an
uncontested decision of the ACC imposing a sanction on a broadcaster could
be enforced immediately. However, that had clearly not been the situation in
the present case because the applicant company had challenged the ACC’s
decision in court. In spite of the above, the Court of Appeal and the Supreme
Court had refused to order interim measures and to suspend the ACC’s
decision of 5 April 2012 pending the outcome of the proceedings, thus acting
in an unlawful manner.
117. The applicant company also provided an alternative interpretation of
the relevant domestic law, according to which the ACC’s decision of 5 April
2012 could not have been enforced until thirty days after its adoption at the
earliest. In this connection the applicant company relied on Article 40 § 5 of
the Code, which provided that any interested party could challenge the ACC’s
decisions, together with sections 14 and 21(1) of the Law on administrative
court proceedings, which provided that administrative acts could be
challenged within thirty days and that a challenge and a request for
suspension of an administrative act could be lodged at the same time.
118. The applicant company did not express a preference for any of the
above interpretations but argued that under the applicable domestic law the
decision of 5 April 2012 could not be enforced immediately and that,
therefore, the Court of Appeal had been under a duty to grant the interim
measures requested.
119. The applicant company submitted that the Constitutional Court’s
ruling of 6 December 2012 on the amendment to Article 38 of the Code which
had been enacted on 29 May 2012 (see paragraphs 89-92 above) could only
be interpreted in the sense that the immediate enforcement of the decision of
5 April 2012 on the basis of the legislation existing at that time had also been
contrary to the applicant company’s right to property and freedom of
expression. Thus, it concluded that the interference with its rights in the form
of the immediate enforcement of the ACC’s decision of 5 April 2012 had not
been prescribed by law.
120. The legal basis for the revocation of its licence was also problematic
from the point of view of accessibility, clarity and foreseeability. In
particular, the applicant company maintained that Article 7 § 2 of the Code
was discriminatory in its essence and unforeseeable and its scope was
uncertain. It did not regulate situations where politicians or political parties
refused to present their position when asked by NIT journalists. As to
Article 7 § 4, it was, in the applicant company’s view, contrary to the main
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media controlled by the government. NIT had received more than ten
sanctions from the ACC and was the only broadcaster to have had its licence
revoked. Many high-profile politicians had stated that the channel had to be
shut down. The criticism expressed by the NIT journalists in respect of the
government’s policies and representatives could be considered neither a
sufficient nor a relevant ground for the revocation of its licence.
126. The applicant company submitted that the domestic courts had
considered that the violation of legal norms by NIT consisted in the fact that
it had presented information about the demonstrations organised by the
PCRM. It could not be concluded from watching the news bulletins in
question that NIT had attempted to undermine the country’s national security
or its territorial integrity. The reporting about the protests had concerned
peaceful assemblies during which the participants had demanded the
resignation of the government and new elections. Thus, it was not the interests
of the State which were at stake but those of the governing coalition.
127. The applicant company was also of the view that it had received
sanctions from the ACC on the instructions of the government and stated that
there was no evidence that the material presented in its news bulletins was
propagandistic in nature or involved editing tricks.
128. The sanction imposed on NIT could not be reasonably regarded as
answering a pressing social need and the reasons relied upon by the ACC had
not been relevant and sufficient in circumstances in which the margin of
appreciation enjoyed by the State was very narrow for restricting political
speech and debate on matters of public interest.
129. The applicant company stated that the sanction imposed amounted
to a form of censorship intended to discourage NIT and other media from
criticising the government. Such a sanction was likely to deter journalists
from contributing to public debate on issues affecting the life of the country.
It also hampered the media in performing their task as a purveyor of
information and public watchdog.
130. Lastly, the harshest measure of revocation of the licence of a
broadcasting company could not in principle be regarded as corresponding to
a pressing social need, as falling within the State’s margin of appreciation and
as necessary in a democratic society. Such a measure was likely to undermine
pluralism of opinions and the principle of broad-mindedness and openness in
a democratic society whose nationals should be free to choose the information
they wished to receive. The situation was even more serious given the fact
that NIT had reflected the views of an opposition party, had been important
for a linguistic minority and had been critical of the government.
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132. They submitted, however, that the licensing system in place at the
time in Moldova had been capable of contributing to the quality and balance
of television programmes through the powers conferred on the national
authorities and had been consistent with the third sentence of paragraph 1 of
Article 10 of the Convention. The Code, as in force at the material time, had
regulated broadcasters’ rights and duties. In particular, it provided in Article 8
§ 1 for the right of broadcasters to freely choose the content of their
programmes. At the same time the Code had provided in Article 7 for an
obligation on the part of broadcasters to observe the principle of pluralism. It
had also authorised the ACC to monitor how broadcasters observed the
principle of pluralism of ideas and opinions within their programmes. Further,
the Code had provided for sanctions in the event of failure by broadcasters to
comply with their obligations and also for the procedure by which such
sanctions were to be imposed.
133. The Government stressed that it fell within the States’ margin of
appreciation to choose which approach to adopt with a view to achieving
pluralism of opinions. The national authorities were better placed than an
international court to choose which policy in the field of pluralism to be
followed. They stressed that the Code had been drawn up in cooperation with
the Council of Europe and the OSCE and that both organisations had
welcomed its adoption and praised it for corresponding to European and
international standards. The Government drew the Court’s attention in
particular to the Council of Europe’s experts’ comments concerning Article 7
§ 2 of the Code, according to which the principles set forth in it were
“commendable” (see paragraph 16 above).
134. They submitted that the interference in question had been prescribed
by law. The ACC’s decision of 5 April 2012, as well as the judgments of the
Court of Appeal and of the Supreme Court of 11 February and 2 May 2013,
respectively, had relied on Article 27 §§ 1 and 2, Article 38 §§ 1-3, Article 7
§§ 1, 2 and 4 and Article 10 § 5 of the Code and point 3.1 of the broadcasting
licence. The law had been accessible, clear and foreseeable as to its effects
and had complied with all the requirements of quality arising from the Court’s
case-law.
135. The aim of the interference in the present case had been legitimate
under the third sentence of the first paragraph of Article 10 (see
paragraph 132 above). Besides that, the revocation of NIT’s licence had also
pursued the legitimate aims provided for in Article 10 § 2 of the Convention
of protecting national security and public safety and preventing disorder and
crime. NIT had encouraged the audience to participate in protests which could
turn violent as a result of the misinformation which it had disseminated and
the feeling of anger which it had deliberately provoked among its audience.
136. The interference had also been necessary in a democratic society
because there had been a pressing social need to protect the pluralism of
opinions. The Government stressed the importance of pluralism in a
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
democratic society and submitted that the aim pursued by the Moldovan
authorities was that the audience should be presented with multiple sources
of information, and information covering different political views, without
anyone being allowed to gain an undue advantage due to control over a
television channel. The mechanism put in place by Article 7 of the Code was
also aimed at preserving fairness and equality and maintaining a high quality
of political debate. In the absence of such a mechanism, given the particular
political circumstances that had existed at the time, there would have been a
risk of political propaganda and indoctrination through television in favour
of political parties which had access to a television broadcasting channel.
137. According to the Government, Article 7 § 2 of the Code – by obliging
broadcasters to grant airtime to different political parties and movements in a
balanced manner – was aimed, inter alia, at supporting the integrity of
democratic processes, at obtaining a fair framework for political and public
debate, and at ensuring that those political entities who could afford to have
their positions promoted during television programmes did not obtain unfair
advantages through the possibility of using the most potent and pervasive
medium; this all helped to preserve the political impartiality of television
broadcasting. This legal duty of the audiovisual media was also aimed at
improving the quality of political debate in general, given that broadcasters
which promoted the positions of certain political parties or movements could
distort certain complex issues of general interest, taking into account the
powerful impact of television. The applicant company’s case served as a
genuine example in that regard. Finally, yet importantly, Article 7 § 2 of the
Code also allowed other minor political parties or movements the possibility
of having their opinions on matters of public interest presented to the general
public, a factor which improved the democratic processes even more, by
offering such entities a certain level of attention in nationally televised
coverage which they might not have been afforded in other conditions.
138. Moreover, there had been a need to protect the public from the
negative impact of NIT’s unfair journalistic practices. In particular, the public
had to be protected from the misleading and false information broadcast by
the television channel and from the calls for hatred and xenophobia. In this
respect the Government pointed to the fact that it had been established by the
domestic courts that in its news bulletins NIT had reflected on the protests
organised by the PCRM during which calls for disobedience to the legal order
had been made and statements amounting to calls for division, intolerance
and even hatred towards Romania and the EU had been propagated, bordering
on xenophobia. The Government expressed the opinion, that, as in Sürek
v. Turkey (no. 1) ([GC], no. 26682/95, § 61, ECHR 1999-IV), NIT had incited
the audience to violence and fostered hostility among different social and
political groups, thus endangering democracy itself.
139. The Government argued that another important factor in determining
the necessity of the interference was the means of expression employed by
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the applicant company. They pointed out that the audiovisual media had a
more immediate and powerful impact than the print media and mentioned that
not only had NIT been an audiovisual media outlet, but it also used to
broadcast on a frequency with national coverage, a fact that had significantly
increased the impact of the content of its broadcasting.
140. Furthermore, some of the statements made in NIT’s news bulletins
amounted to nothing more than personal insults and none of the persons
criticised had ever been given a right to reply. The Government provided
copies of over twenty-five complaints submitted to the ACC by politicians,
political parties, private individuals and non-governmental organisations in
the media field in respect of NIT’s alleged misinformation and failure to
observe the rules concerning pluralism and fair journalism. The Government
also referred to instances when some politicians had been insulted by being
called “criminals”, “dictators”, “traitors”, “usurpers” and other names.
141. The Government further submitted that the necessity of the
interference in the present case was dictated by the recurrent nature of the
breaches committed by the applicant company. Over a period of three years
the applicant company had received sanctions on more than eleven occasions
for similar breaches, namely for promoting the position of only one political
party in its news bulletins and for refusing to reflect the opinions of other
political parties, as required by the law. The applicant company had not even
challenged all the sanctions imposed on it. It had preferred to pay the fines
and to continue breaching the law. Since all the above-mentioned sanctions
had been unable to convince the applicant company to comply with the law,
the ACC had had no other alternative but to take a measure of last resort. Had
the authorities not imposed the harshest sanction on the applicant company
after all other sanctions had turned out to be ineffective, society and other
broadcasters would have been given the wrong message that non-compliance
with the law was tolerated.
142. The Government contended that it had been open to the applicant
company to apply for a new licence twelve months after its licence had been
revoked. However, it had not done so. Instead, the applicant company had
preferred to continue broadcasting on the Internet. It had regularly posted
news items and videos on its YouTube channel until the end of 2014.
143. They concluded that the authorities had struck a fair balance between
the general interest in promoting pluralism of opinions and NIT’s right to
impart information.
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157. The Court reiterates that, as regards the words “in accordance with
the law” and “prescribed by law” which appear in Articles 8 to 11 of the
Convention, it has always understood the term “law” in its “substantive”
sense, not its “formal” one. “Law” must be understood to include both
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(see, among other authorities, Kudrevičius and Others, cited above, § 110,
and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 144).
Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s
role is confined to ascertaining whether the effects of that interpretation are
compatible with the Convention (see Radomilja and Others, § 149, cited
above, and Centre for Democracy and the Rule of Law v. Ukraine,
no. 10090/16, § 108, 26 March 2020, with further references). Also, it is not
for the Court to express a view on the appropriateness of methods chosen by
the legislature of a respondent State to regulate a given field. Its task is
confined to determining whether the methods adopted and the effects they
entail are in conformity with the Convention (see Gorzelik and Others
v. Poland [GC], no. 44158/98, § 67, ECHR 2004-I, and Delfi AS, cited above,
§ 127). Moreover, the level of precision required of domestic legislation –
which cannot provide for every eventuality – depends to a considerable
degree on the content of the law in question, the field it is designed to cover
and the number and status of those to whom it is addressed (see Delfi AS,
cited above, § 122; Kudrevičius and Others, cited above, § 110; and
Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, §144).
161. Persons carrying on a professional activity, who are used to having
to proceed with a high degree of caution when pursuing their occupation, can
on this account be expected to take special care in assessing the risks that such
activity entails (see Delfi AS, cited above, § 122, and Satakunnan
Markkinapörssi Oy and Satamedia Oy, cited above, § 145, with further
references).
164. In these circumstances the Court cannot agree with the applicant
company that the legal basis relied on by the national authorities for the
revocation of its licence was not accessible.
165. Turning to the foreseeability of the domestic legislation and its
interpretation and application by the domestic courts, the Court notes that the
language used by the Code was rather unambiguous: it provided (i) that
broadcasters were under a duty to observe the principle of political pluralism
in their programme services – by giving airtime to different political parties
or movements in a balanced manner – together with the principles of
objectivity and fairness within their news programmes by ensuring accuracy,
avoiding distortion and adhering to the principles of multi-source information
in cases of news stories covering conflict situations; (ii) that the ACC
supervised the manner in which the private and public broadcasters complied
with the obligations set out in their broadcasting licences, and the accuracy
of their programmes, and monitored the content of their programmes;
(iii) that in the event of breaches of the legal rules by broadcasters, the ACC
was to apply one of the five sanctions provided for in the Code, revocation of
the broadcasting licence being one of them; (iv) that the ACC had to apply
the sanctions gradually in a particular initial order; (v) that the broadcasting
licence was to be revoked only if a recurrent and serious violation of the
provisions of the Code occurred and only after the other available sanctions
had been exhausted; (vi) that the ACC’s decisions entered into force on the
date of their publication in the Official Gazette of the Republic of Moldova;
and (vii) that the ACC’s decision imposing a sanction constituted a writ of
enforcement.
166. The Court is of the view that the Code did not lack the necessary
precision to enable NIT to regulate its conduct. It does not find it
unreasonable in circumstances where the national authorities have discretion
on such matters that a professional broadcaster, such as NIT, could be
expected to proceed with caution in carrying out its professional activity and
to take additional care in assessing the risks that such activity entailed and to
mitigate them following the imposition of a sanction.
167. In NIT’s case, the latter’s repeated breaches of Article 7 of the Code
had prompted the ACC to apply successively each of the five types of
sanctions provided for by Article 38 of the Code. These variously consisted
of the issuing of a public warning, the withdrawal of the right to broadcast
advertisements for a defined period and the imposition of a fine, then
increasing gradually to the suspension of the right to broadcast for a certain
period and ultimately to the revocation of the licence (see paragraphs 29 and
40-43 above). Therefore, the Court does not discern any element in the ACC’s
actions suggesting that the manner in which it exercised its discretion in the
instant case could be regarded as unforeseeable under the Code.
168. Nor is the Court persuaded by the applicant company’s allegations
that the relevant national law prohibited the ACC from enforcing a sanction
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effect; it had effect only for the future. Therefore, it could not have had any
legal effects on the law and practice as applicable on 5 April 2012, when the
ACC had decided to revoke the applicant company’s licence, and on the
subsequent judicial proceedings reviewing the lawfulness of that decision
(see paragraph 71 above). This had also been confirmed in a press release
issued by the Constitutional Court on the day of its ruling by stating that the
provisions examined in its judgment had gained legal force only in May 2012
and had not been applicable at the time of the ACC’s decision concerning the
revocation of NIT’s licence (see paragraph 95 above).
171. Having regard to the above, the Court is of the view that the relevant
domestic law applicable in the applicant company’s case was formulated
sufficiently clearly in order to fulfil the requirements of precision and
foreseeability under Article 10 § 2 of the Convention.
172. The Court therefore concludes that the impugned interference was
“prescribed by law”.
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audiovisual media have a more immediate and powerful effect than the print
media (see Jersild, cited above, § 31, and Radio France and Others v. France,
no. 53984/00, § 39, ECHR 2004-II). The former have means of conveying
through images meanings which the print media are not able to impart (see
Jersild, cited above, § 31). The function of television and radio as familiar
sources of entertainment in the intimacy of the listener’s or viewer’s home
further reinforces their impact (see Murphy v. Ireland, no. 44179/98, § 74,
ECHR 2003-IX (extracts)).
183. At the same time, the methods of objective and balanced reporting
may vary considerably, depending among other things on the media in
question. It is not for this Court, nor for the national courts for that matter, to
substitute their own views for those of the press as to what technique of
reporting should be adopted by journalists. In this context the Court reiterates
that Article 10 protects not only the substance of the ideas and information
expressed, but also the form in which they are conveyed (see Jersild, cited
above, § 31; see also Stoll, cited above, § 146, and Gaunt v. the United
Kingdom (dec.), no. 26448/12, § 47, 6 September 2016).
186. Having regard to the powerful impact of the audiovisual media (see
paragraph 182 above), the Court reiterates that a situation whereby a powerful
economic or political group in society is permitted to obtain a position of
dominance over the audiovisual media, and thereby exercise pressure on
broadcasters and eventually curtail their editorial freedom, undermines the
fundamental role of freedom of expression in a democratic society. In such a
sensitive sector as the audiovisual media, in addition to its negative duty of
non-interference the State has a positive obligation to put in place an
appropriate legislative and administrative framework to guarantee effective
pluralism. This is especially relevant when the national audiovisual system is
characterised by a duopoly. Member States should adapt the existing
regulatory frameworks, particularly with regard to media ownership, and
adopt any regulatory and financial measures called for in order to guarantee
media transparency and structural pluralism as well as diversity of the content
distributed (ibid., §§ 133-34).
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and serious violation of the provisions of the Code [had] occurred” (see
paragraph 218 below). In cases such as the one at hand, the severity of the
sanction is a factor calling for closer scrutiny by the Court and for a narrower
margin of appreciation to be accorded to the State.
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had been approved by members of civil society operating in the field after
public deliberations (see paragraph 72 above). The Court sees no reason to
call into question the relevance or accuracy of the methodology used.
212. The monitoring report on which the ACC based its decision provided
a detailed review of the news bulletins broadcast by NIT. The result of the
comparative and chronometric measurements of the content of NIT’s news
bulletins was not disputed by NIT. The findings made by the ACC to the
effect that NIT had failed to comply with its duty to obey the principle of
political pluralism as reflected in the requirements under Article 7 § 2 of the
Code involved conclusions that the time devoted to one party, namely the
PCRM, had been positive or neutral whilst that devoted to its opponent, the
AEI, had been mostly negative. Moreover, the persons, institutions or
political parties referred to or mentioned in a negative light were not given a
platform to present their own points of view in response to the criticism and
attacks to which they had been subjected. In addition, the bulletins had
contained information promoting a unilateral point of view, sometimes not
supported by any evidence, and had made use of features capable of distorting
reality. Furthermore, they had promoted aggressive journalistic language.
Those findings were upheld by the national courts.
213. Whilst the applicant company contested some of the above findings,
the Court, bearing in mind its subsidiary role, sees no reason to call into doubt
the assessment of facts made in the monitoring report (see paragraphs 35-39
above), the findings made therein that NIT had breached its duties and
responsibilities as set out in Article 7 §§ 2 and 4(a), (b) and (c) and Article 10
§ 5 of the Code and the assessment of the domestic courts in this regard (see
paragraphs 60 and 77 above). In this context the Court cannot but note that
from the evidence, including recordings of the news bulletins relied on by the
ACC in imposing sanctions on NIT, it appears that for most of their duration
the news bulletins in question were devoted to political matters and that the
reporting was clearly biased in favour of the activities of the PCRM and its
members and supporters, without providing anyone else with an opportunity
to respond to criticism and attacks as described in paragraph 212 above. Any
suggestion to the contrary by the applicant company in the Convention
proceedings appears to contradict its own submission before the Supreme
Court to the effect that persons in respect of whom criticism had been
expressed had not been offered an opportunity to respond because they had
not asked for such an opportunity (see paragraph 73 above).
214. In finding against the applicant company, the national authorities
held that the bulletins had used very strong language to describe the
government, the parties forming it and their leaders. Among other things, they
noted that one of the leaders of the AEI had been compared to “Hitler”, while
they had all been referred to as “criminals”, “bandits”, “crooks”, “swindlers”,
“group of criminals”, and so on. The domestic courts did not treat NIT’s
manner of reporting as a defamation case covered by Article 16 of the Civil
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was supported by reasons that were both relevant and sufficient for the
purposes of the “necessity” test under paragraph 2 of this Article.
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between 2009 and 2011, thus after a change of the political parties in power
(see paragraph 20 above). It observes that at that time NIT had become a
platform for criticism of the governing forces and for promoting the
opposition party. In the light of the foregoing, and given also the severity of
the sanction imposed on the applicant company, the Court must scrutinise
closely (see paragraph 196 above) whether the Code and its application in the
concrete circumstances provided effective safeguards against arbitrariness
and abuse (see paragraph 194 above). In this connection the Court first
reiterates its findings above that the Code contained detailed rules pertaining
to the ACC’s structure and the selection, appointment and functioning of its
members, designed to secure this media regulator’s independence and to
safeguard against undue governmental influence (see paragraphs 109 and 205
above). Also, as a result of the rule imposing staggered terms for ACC
members, six out of the nine members who formed the ACC in 2012 had been
appointed before the change of government in 2009 (see paragraphs 24 and
85 above). The Court further observes that the applicant company’s
allegations that in taking its revocation decision the ACC had been influenced
by leading politicians, and had as a consequence treated the company in a
discriminatory manner, were duly examined by the national courts. The Court
of Appeal dismissed the allegation of political influence as being
unsubstantiated and rejected NIT’s argument that it had been discriminated
against, holding that it had been monitored at the same time and under the
same conditions as other broadcasters, and that other broadcasters had also
been punished where breaches of the Code had been found (see paragraph 72
above). In this connection, the Court finds unpersuasive the applicant
company’s argument that some high-profile politicians had made public
statements calling for the channel to be shut down. Although it cannot be
ruled out that such statements may potentially have a certain impact, this
cannot alone be regarded as a sufficiently concrete and strong indication that
the ACC failed to act independently when taking the impugned measure in
the instant case. In conclusion, the Court cannot but note that no concrete
evidence has been adduced in the proceedings before the domestic courts and
in turn before the Court to support the allegation that the ACC sought to
hinder the applicant company’s television channel from expressing critical
views of the government or pursued any other ulterior purpose when revoking
the licence.
223. In the context of the proportionality assessment, the Court further
considers it of particular importance that the measure did not prevent NIT
from using other means, such as the Internet, to broadcast its programmes,
including news bulletins, and could not prevent the applicant company from
pursuing other income-generating activities. Indeed, the applicant company
confirmed in its submissions to the Court that it had continued to share
content through its Internet homepage and its YouTube channel until 2014
(see paragraph 82 above). Moreover, the impugned measure did not have a
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‒ Conclusion
229. Taking into account all the above circumstances, and having regard
in particular to the national context of the case (see paragraph 202 above), the
Court is satisfied that the decision to restrict the applicant company’s freedom
of expression was supported by reasons which were relevant and sufficient
for the purposes of the test of “necessity” under Article 10 § 2 of the
Convention and that the domestic authorities acted within their margin of
appreciation in achieving a reasonable relationship of proportionality
between the need to protect pluralism and the rights of others, on the one
hand, and the need to protect the applicant company’s right to freedom of
expression on the other hand.
230. The interference was thus “necessary in a democratic society” within
the meaning of Article 10 of the Convention. There has accordingly been no
violation of that Article in the present case.
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
A. Applicability
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B. Merits
censorship and political revenge. It was difficult to believe that closing down
a visible television channel that was generating income, paying taxes and
employing numerous people would have served any public interest.
According to the applicant company, that point of view had been confirmed
by the Constitutional Court in its ruling of 6 December 2012 (see
paragraphs 91-93 above).
239. The applicant company further submitted that the measure and its
immediate enforcement had been unlawful because the provisions of the
Code relied on by the ACC in imposing the sanction had not been clear,
accessible, and foreseeable as to their effect. NIT could not have reasonably
expected that its activities would be permanently stopped and that all its
property interests associated with the licence would become illusory.
240. The applicant company maintained that the interference with its right
of property had not been required in order to control the use of property and
had been disproportionate. In that connection it pointed out that NIT had been
the only broadcaster whose licence had been revoked, that soon after the
revocation its entire activity connected to television broadcasting had stopped
and that all contracts and agreements concluded in connection with that
activity had had to be terminated, entailing serious financial losses and the
redundancy of all NIT staff members. Even though the applicant company
had tried for some time to use the opportunities provided by the Internet, its
efforts had been in vain as it had been unable to reach the same level of
audience coverage and financial viability as before and therefore its activities
had had to be permanently terminated. The applicant company contended that
in order to avoid bankruptcy and to be able to pay off its existing loans
connected to NIT, it had been forced to continue operating in a sector that had
no connection with television broadcasting and generated a very low income.
241. In the proceedings before the Court the applicant company submitted
an expert report produced in November 2018 quantifying the damage
sustained by it following NIT’s closure. Referring to information concerning
the applicant company’s investments in fixed assets, or contained in its
financial statements submitted to the relevant national authorities from 2009
to 2011 and in the employment, rental, and advertising contracts existing at
that time, the report noted that the applicant company had not turned a profit
from 2009 to 2011. Nevertheless, it found that the damage sustained by the
company after NIT’s closure had consisted in the costs of its fixed assets
which remained unused and its other fixed costs and expenses.
242. According to the applicant company, the present case was similar to
other cases examined by the Court against Moldova concerning the
revocation of business licences. The authorities had not struck a fair balance
between the competing interests at stake and the applicant company had been
required to bear a disproportionate burden because of the harshness of the
measure and its discriminatory nature.
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the national courts found that the applicant company had failed to submit
conclusive and pertinent evidence before them that could confirm the damage
alleged by it, and that any losses sustained were attributable to its unlawful
conduct. In the proceedings before the Court the applicant company adduced
an expert report in which it was concluded that it had operated at a loss even
before the revocation of its licence (see paragraph 241 above). Consequently,
the Court does not find it established according to the general standard of
“proof beyond reasonable doubt” (see, for instance, Merabishvili v. Georgia
[GC], no. 72508/13, § 314, 28 November 2017) that the revocation of the
licence affected the applicant company’s proprietary interests to a degree
causing it to suffer an excessive individual burden. In this connection, the
Court notes, moreover, that even though the loss of the licence eventually led
to NIT’s demise as an analogue television network, it was not permanently
irreversible as the applicant company could have reapplied for a broadcasting
licence one year after its licence had been revoked (see paragraph 86 above).
It thus appears that the applicant company’s pecuniary and other proprietary
interests were sufficiently taken into account in the relevant proceedings.
255. In these circumstances, the Court is satisfied that the respondent
State, acting within its wide margin of appreciation in this area, struck a fair
balance between the general interest of the community and the property rights
of the applicant company, which was not made to bear a disproportionate
burden.
(d) Conclusion
256. In the light of the above, the Court concludes that there has been no
violation of Article 1 of Protocol No. 1 in the instant case.
1. The Government
258. The Government submitted that the proceedings in which the
applicant company had been involved after the revocation of its broadcasting
licence on 5 April 2012 had complied with the requirements set out in
Article 6 § 1 of the Convention.
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259. The national courts had examined all the arguments raised by the
applicant company and had dismissed them by providing relevant and
sufficient reasons. In addition, the authorities, including the courts, had acted
within the bounds of the applicable national legislation in force at the time
the measure against the applicant company was taken.
262. The Court considers that most of the applicant company’s grievances
(see paragraph 260 above) cover largely the same grounds as the complaints
under Article 10 of the Convention and Article 1 of Protocol No. 1. Given the
reasons set out above in this regard and the fact that the national courts
examined all the arguments raised by the applicant company and dismissed
them by providing reasons which do not appear arbitrary or manifestly
unreasonable, the Court cannot accept that these alleged shortcomings in the
proceedings affected their fairness in any way.
263. As to the specific complaint concerning the allegedly unlawful
amendment by the national authorities of Article 38 § 8 of the Code (see
paragraph 261 above), the Court notes that the impugned amendment came
into effect on 29 May 2012 – indeed, shortly after NIT’s licence had been
revoked. According to the available evidence, this amendment had no
influence or impact on the proceedings brought by the applicant company
before the national courts against the ACC’s decision of 5 April 2012 (see
paragraphs 89-95 above).
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT
264. Therefore, the Court is not persuaded that the amendment in question
rendered the proceedings in which the applicant company was involved
unfair.
265. It follows that this complaint is manifestly ill-founded, within the
meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of
the Convention.
266. The applicant company complained that it had not had access to an
effective remedy for its complaints because the Supreme Court had not
remedied the breach of its rights committed by the ACC and the Court of
Appeal. It relied on Article 13 of the Convention taken in conjunction with
Article 6 § 1 and Article 10. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
1. The Government
267. The Government contended that the applicant company had had
access to effective remedies at national level to raise its complaints under the
Convention. Therefore, they were of the opinion that no issues arose in this
case with regard to Article 13 of the Convention.
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1. The Government
272. The Government argued that the applicant company had failed to
exhaust the available domestic remedies because it had not raised this
complaint before the national courts.
273. In any event the applicant company had not been discriminated
against. The sanctions imposed by the authorities following breaches of the
Code were enforced in the same manner for all broadcasters in the country.
In addition, the authorities had imposed sanctions on all broadcasters which
were not complying with the requirements of the Code. The fact that the
authorities had revoked the applicant company’s broadcasting licence was
due to its repeated and serious breaches of the Code – which was not the case
for the other broadcasters – rather than to any discrimination.
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3. Holds, by fifteen votes to two, that there has been no violation of Article 1
of Protocol No. 1 to the Convention;
{signature_p_2}
R.S.O.
S.C.P.
NIT S.R.L. v. THE REPUBLIC OF MOLDOVA JUDGMENT – SEPARATE OPINION
A. General principles
2. This appears to be the first case in which the Court has been called upon
to review the revocation of the licence of a national broadcaster on grounds
of so-called internal pluralism, namely failure to provide balanced political
coverage. This made it necessary for the Court to clarify the relationship
between external pluralism – the overall pluralism of a country’s broadcasting
sector, which has been at the centre of much of our broadcasting
jurisprudence to date – and the requirements of internal pluralism, within
individual operators, which is a relatively novel issue for our case-law.
Today’s judgment seeks to address these general questions under the heading
of “the need to develop the Court’s case-law on media pluralism” (see
paragraphs 187-96 of the judgment). While we are generally in agreement
with the elucidation of the principles in this part of the judgment, we wish
that the Court had placed greater emphasis on the following key aspects.
3. First, any interferences with a broadcaster’s freedom of expression in
the name of internal pluralism should necessarily take into account their
implications for the overall pluralism of the country’s (or part of a country’s)
broadcasting offer. Internal pluralism is merely a tool for achieving the
ultimate goal of external pluralism, not necessarily an end in itself. In the
context of the current case, for example, it is highly relevant that the NIT
channel appeared to be the only national operator that gave prominence to the
views of the country’s only opposition party at the time. With its
disappearance from the broadcasting scene, it seems obvious that there was
an adverse impact on overall pluralism. This argument cannot translate into a
licence for minority voices to break the law with impunity, but it is
nevertheless an important consideration.
4. It is also important to highlight, secondly, that there are different
models of internal pluralism in the European legal space, as the judgment
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2. E Salomon and K. Jakubowicz, “Analysis and comments on the draft audiovisual Code
of the Republic of Moldova,” 15 May 2006, Doc. ATCM(2006)004, p. 29; available at:
http://old.parlament.md/download/expertises/ATCM(2006)004_en%20Moldova.pdf
3. Available at:
https://eeas.europa.eu/archives/docs/enp/pdf/docs/2013_enp_pack/2013_memo_moldova_e
n.pdf
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