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Glas Nadezhda EOOD & Elenkov v Bulgaria

Reference Application No. 14134/02
Court European Court of Human Rights

Judge Lorenzen (President), Botoucharova, Jungwiert, Butkevych, Tsatsa-Nikolovska, Maruste & Villiger JJ

Date of Judgment 11 Oct 2007


Summary

Freedom of expression – European Convention for the Protection of Human Rights, Article 10 – Broadcasting – Licences – Article 13, ECHR – Effective remedy


Facts

An application by the complainant company and its manager wishing to set up a Christian radio station was refused a licence by the relevant state body on the basis of a decision by the national radio and television committee. The committee rejected the application on the basis that the company did not fully meet programming requirements. No reasons for its decision were provided. The complainant sought judicial review of this decision, whereupon the domestic court found that the state body had been bound to follow the committee decision. The committee’s discretion was found in related proceedings subsequently brought by the complainants to be complete and unreviewable. The complainants submitted that the committee’s evaluation had been arbitrary and that the failure by the domestic courts to interfere with the committee’s discretion had deprived them of an effective remedy.


Issue

(1) Whether the refusal of the licence was a lawful interference with the complainants’ freedom to impart information and ideas;

(2) Whether the ruling by the Supreme Administrative Court that the committee’s decision was not judicially reviewable was a breach of the complainants’ right to an effective remedy for breach of a convention right.


Held

(1) Refusal of the licence was an interference with the complainants’ freedom to impart information and ideas. The lawfulness of the refusal had to be assessed in the light of the requirements of Art 10(2). The committee had held no public hearings in making its decision to refuse the licence and failed to produce its minutes despite a court order. Further, it failed to give reasons for its finding that the complainant did not meet its criteria. The ensuing judicial review process did not provide a remedy for this failure. Accordingly, the interference had not been lawful and there had been a breach of Art 10. (2) By declining to interfere with the refusal, the domestic court had failed to examine the substance of the Convention complaint, not looking at whether the interference answered a pressing social need or was proportionate to legitimate aims pursued. Thus, there had been a violation of Art 13. €5,000 for non-pecuniary damage and €2,500 for costs and expenses were awarded.


Comment

The Court draws analogy in its Art 13 assessment of the failings of the respondent state’s judicial review process with the defective approach to judicial review evidenced both in Peck v UK and Hatton & Ors v UK.


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