Sunday, 15 December

A1+ and Noyan Tapan Expect European Court Verdicts This Year

Four years ago, on April 2, 2002 the A1+ TV Company was taken off the air. The company's attempts to defend its rights in the courts of Armenia were unsuccessful. In 2003 A1+ appealed to the European Court of Human Rights.

The following is an interview with lawyer Ara Ghazaryan who is representing A1+ and Noyan Tapan TV Companies in the European Court.

Mr. Ghazaryan, what is the status of the A1+ case?

There have been two applications lodged by A1+ TV with the European Court of Human Rights. The first application, challenging the results of the April 2, 2002 tender on licensing, was submitted on January 30, 2003, and the second, challenging the seven subsequent tenders, was submitted in September 2004. Both are under consideration by the court. Of course, the first application is at a more advanced stage - the Chamber (of seven judges) has considered the case in essence, and the application has been communicated to the government of Armenia. Which means that the Chamber determined both the admissibility and merits of the case. The government was invited to submit written observations, we submitted our counterarguments to the government's arguments, and in April 2005 the court made inquiries to the parties regarding whether they would prefer to make representations at a hearing or in writing. Both parties informed the court that they would prefer a hearing. Since then, we haven't heard from the court about the first case.

On the second case, which is more extensive, I would say, or stronger, we haven't heard from the court as of yet. I think that the court is considering the second application and will eventually combine both cases. But as of now, there are two separate applications from A1+ at the court. The second application relates to the tenders on licensing for broadcasting on the 37, 25, 31, 39, 51, 63, and 56 d ecimeter frequencies. There are two main issues disputed in the second case - the results of the tenders on all seven frequencies, and, separately, the scandalous story concerning ArmNews, where the TV Company, although it wasn't registered with the Ministry of Justice as a media organization, took part in the tender, presenting the necessary documents under the name of another organization, Cinemax, and won the tender.

In all, A1+ is contesting the results of eight frequency tenders.

It has been three years now since the A1+ case was submitted to the court. There is nothing else we can do-the parties have gone through all the procedural stages. The only remaining issue is the question of compensation. In this regard, Noyan Tapan TV Company is a step ahead - a decision on admissibility has in part been taken in its case. The court has requested that the applicant submit its request for compensation. But A1+ has not reached this stage yet. In my opinion, the reason is that the A1+ case is much more extensive.

Why do you think that the second case is stronger?

There are a number of reasons. First, the consideration of the results of seven tenders increase the volume of the case. Then, the more the National Council on Television and Radio (NCTR) held frequency tenders, the more it had to address our inquiries, and the deeper it got entangled in the maze of rights and facts. We are taking advantage of their responses to the European Court.

For example, there is an episode related to the second package: we appealed to the NCTR requesting certain documents which, in fact, are public documents, in other words we exercised our right to obtain information, and the commission responded that we could get those documents if we took our own technical equipment to copy them there. So we were supposed to take a Xerox machine to the commission office to copy the documents. More serious problems are, for example, related to the Law on Licensing, the Law Television and Radio, the comments on Procedure #4. The violations became more substantial in the course of these seven tenders.

Besides, when the first tender was held - on April 2, 2002 - the European Convention for the Protection of Human Rights and Fundamental Freedoms had not yet been ratified by Armenia. Thus, the violations were committed before the convention came into force, which is one of the criteria for case processing by the European Court. Though the court's examination began after April 2, 2002, the case was in a sense bisected. The respondent party used this argument to claim the application was inadmissible, arguing that the Convention has no retroactive force. This and some other circumstances make the second application stronger from the point of view of facts and arguments. But from the point of view of rights, the applications are identical. That is to say, freedom of speech, freedom of expression were restricted through the holding of licensing tenders with numerous procedural violations and though actions that broke a number of domestic laws.

Were there any absurdities in government's written observations submitted to the court?

Yes, there were. Paragraph 42 of the government response states that the Commission decisions are not subject to judicial review; only if a violation took place in the process of making a decision can it be appealed in court. In other words, a decision by a public institution is not a subject to an appeal in the court, which is absurd.

Has Noyan Tapan TV presented its request for compensation yet?

Yes it has, and it has received the government observations related to the request. Both Noyan Tapan and A1+ are waiting for the court ruling.

In the event that the applications are granted, is it presumed that in addition to compensation, the results of the tenders will be declared invalid and the NCTR will be obligated to hold new tenders?

It depends on the court. During the procedure on the merits, the court offered negotiations aimed at securing a friendly settlement to be conducted through the Registrar. Both Noyan Tapan and A1+ have responded to the offer. Unfortunately, I cannot say what their responses were. Usually it is during friendly settlement that the parties decide what a reconciliation agreement should look like. In this case the applicant, for instance, might suggest holding a new tender, etc. But such issues have not been addressed yet. The ruling will either be a verdict (I say this based on precedents), say, in favor or A1+ or Noyan Tapan, or it might be a verdict and compensation - material or not - that the respondent party will have to render within three months, with the amount of compensation depending on the package presented by the applicant, or it will be a half measure such as the court has been employing lately. That is to say, a verdict satisfying the demand for compensation and calling upon the government to take measures at eliminating the infringements of the law. For example, in the Abdullah Ocalan case, the European court called upon the government to hold a new trial. Though Turkey considered the ruling to be interference in its internal affairs, the court took half a step forward. It cannot demand, it can only issue an appeal. If such an appeal is made in our case it will imply holding a new licensing tender.

Does a state member of the Council of Europe have an obligation to follow a call by the European Court?

If the jurisdiction of the European Convention is accepted as mandatory, it means that a European Court verdict is binding. At present the new draft Judicial Code of Armenia is under consideration and it is envisaged to make European Court decisions mandatory. The state also accepts moral responsibility - if it loses the case in the European Court it has to fulfill the requirements of the verdict.

In my opinion there will be a verdict and compensation. A1+ has applied in accordance with Article 6 of the European Convention, the Right to a Fair Trial, Article 10, Freedom of Expression , and Article 1 of the First Protocol to the Convention, Protection of Property, in relation to the unlawful entry into its property and deprivation of its offices of electricity. In the Noyan Tapan case, the court only considered and communicated to the government of Armenia the demand in accordance with Article 10. As regards A1+, we don't know the attitude of the court, but the strongest point is Article 10, since all the questions submitted to the government dealt with freedom of expression and freedom of speech, in other words, with the lawfulness of the licensing tender. One might expect that A1+'s demands for compensation will be greater since the damage incurred was greater.

I think that the European court will render its verdict this year at least vis-à-vis the Noyan Tapan case. As for A1+, it's hard to say, since the case is voluminous.

Have you been working on the A1+ and Noyan Tapan cases alone?

There are four lawyers involved in these cases: two from Armenia - Tigran Ter-Yesayan and myself, and two from England - Mark Muller and Kerim Yildiz. We have divided our responsibilities in the following way - we did the inquiry but we prepared the application with our British colleagues who have the experience of working with the European Court. They are members of the Human Rights Committee of the Bar of England and Wales and are working with us free of charge. I asked them to get involved in this case; they've both been to Armenia several times and are familiar with all aspects of the case.

Do you think it was right thing to do to appeal to the European Court with separate applications for A1+ and for Noyan Tapan?

Yes, I think it was right thing to do because A1+ and Noyan Tapan differ in terms of consistency. If you read the court decision on partial admissibility of the Noyan Tapan case, you'll see that it was turned down on many points since Noyan Tapan had not been consistent. That is to say, that though it went through the entire court system in Armenia appealing against the results of the first tender, it didn't do the same with regard to other three tenders, and just waited to see what would happen to the A1+ applications. When we suggested to the Noyan Tapan management to go to court, they told us. "There is no need, let's see what happens at the A1+ trials and then act." As a result, the European court noted that the fact that another similar case was being considered in the Armenian courts didn't mean that Noyan Tapan would get the same verdict if it appealed. That is why a part of Noyan Tapan's package was turned down. This is just one example. Second, the actual grounds were different. True, the legal aspects are the same, though not entirely, but the actual grounds were different. If we submitted a joint application, the court itself would separate them, as it did in the A1+ case. We submitted our appeal to the court against seven subsequent tender results as the continuation of our appeal against the first tender, but the court separated the application on its own initiative and accepted it for consideration as an individual application.

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