CEDH · CASELAW;CLIN;ENG — 17 septembre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 122 August-September 2009 Manole and Others v. Moldova - 13936/02 Judgment 17.9.2009 [Section IV] Article 10 Article 10-1 Freedom of expression Insufficient statutory guarantees of independence of public broadcaster: violation   Facts – The applicants were employed by Teleradio-Moldova (TRM), a State-owned company which at the material time was the only national television and radio station in Moldova. According to the applicants, TRM had, throughout its existence, been subjected to political control. This had worsened after February 2001 when the Communist Party won a large majority in Parliament. In particular, senior managers were removed and replaced by persons loyal to the Government. Only a trusted group of journalists were used for reports of a political nature, which were edited to present the ruling party in a favourable light. Journalists were reprimanded for using expressions which reflected negatively on the Soviet period or suggested cultural and linguistic links with Romania. Interviews were cut and programmes were taken off the air for similar reasons. Opposition parties were allowed only very limited opportunity to express their views. Journalists transgressing these policies were subjected to disciplinary measures and even interrogated by the police. In the first half of 2002, following a strike by TRM staff demanding an end to censorship, two of the applicants were subjected to disciplinary sanctions. In April 2002 the Moldovan Audiovisual Coordinating Council published its conclusions on the question of alleged TRM censorship. It found that certain words and topics were indeed prohibited in TRM’s reports, but dismissed other allegations of censorship as excuses used by the journalists to cover their lack of professionalism. In July 2002 following the transformation of TRM into a public company, its staff were required to sit examinations to be confirmed in their posts. Four of the applicants, together with a large number of the journalists who had been on strike earlier that year, were not retained. Their appeals were dismissed. Nineteen members of staff who attended a press conference in the wake of the dismissals were banned from entering TRM premises. TRM’s change of status had followed a resolution by the Parliamentary Assembly of the Council of Europe calling on Moldova to reform its broadcasting service and end television censorship. Although an independent expert was appointed to appraise the draft legislation, his recommendations were not taken into account and continued to allow many forms of direct political interference. In their complaint to the European Court, the applicants alleged that, while working as journalists for TMC, they had been subjected to a regime of censorship by the State. Law – Article 10: Where a State decided to create a public broadcasting system, domestic law and practice had to guarantee that the system provided a pluralistic service. Particularly where private stations were still too weak to offer a genuine alternative and the public or State organisation was therefore the sole or the dominant broadcaster within a country or region, it was indispensable for the proper functioning of democracy that it transmit impartial, independent and balanced news, information and comment and provide a forum for public discussion in which as broad a spectrum as possible of views and opinions could be expressed. The standards agreed by the Contracting States through the Committee of Ministers of the Council of Europe on public service broadcasting provided guidance here. The participating States had undertaken to guarantee the independence of public service broadcasters against political and economic interference. The Committee of Ministers’ guidelines indicated that independence could be assured by a clear assertion of editorial independence and institutional autonomy in the broadcaster’s legal framework, in particular as regards the editing and presentation of news and current affairs programmes and the recruitment, employment and management of staff. News programmes had to present facts and events fairly and encourage the free formation of opinions while the cases in which public service broadcasters could be compelled to broadcast official information or events were to be confined to exceptional, statutorily defined, circumstances. Rules governing the status and appointment of management and supervisory bodies were to be defined in such a way as to avoid any risk of political or other interference. For the purposes of the applicants’ case, the Court considered the period from February 2001, when the applicants alleged the problem of political control over editorial policy had become acute, to 26   September 2006, the date of the Court’s admissibility decision. It noted that there had been a significant bias by TRM towards reporting on the activities of the President and Government, with insufficient access being given to opposition parties. There was also evidence of a policy of restricting discussion or mention of certain topics considered politically sensitive or to reflect badly on the Government. For example, the Audiovisual Council had reported that it was TRM policy to prohibit the use of certain words and phrases, in particular words relating to the shared culture and language of Romania and Moldova and human-rights violations during the Soviet era and independent data showed a consistent pattern of disproportionate airtime being given to the activities of the President and the Government. The applicants had thus experienced a continuing interference with their rights to freedom of expression throughout the period in question. Further, since for most of the period in question TRM had enjoyed a virtual monopoly over audiovisual broadcasting in Moldova, it had been vital from the democratic perspective that it transmit accurate and balanced news and information reflecting the full range of political opinion and debate. Having decided to create a public broadcasting system, the State had been under a strong positive obligation to guarantee a pluralistic audiovisual service by putting in place a legal framework to ensure TRM’s independence from political interference and control. This, however, it had failed to do during the relevant period when one political party controlled the Parliament, the Presidency and Government. Thus, although TRM’s Statute had been amended to provide that its creative and editorial activity would be protected by law from interference, no suitable structure had been put in place. The Audiovisual Council, which acted as the supervisory body, was composed of members appointed by the Parliament, the President of Moldova and the Government, with no guarantee against dismissal. TRM’s management was appointed by Parliament on the proposal of the Audiovisual Council. Even after the replacement of the management board by the Observers’ Council, there had been no safeguard to prevent all but one of that body’s fifteen members from being appointees loyal to the ruling party. In sum, the legislative framework had been flawed throughout, in that it did not provide sufficient safeguards against the control of TRM’s senior management, and thus its editorial policy, by the political organ of the Government. As to the Government’s preliminary objection that the applicants had failed to exhaust domestic remedies, the Court considered that the examples of political bias and restrictions on reporting it had found were sufficient to support the conclusion that there had been a pattern or system of using TRM to promote the policies of the ruling party, amounting to an administrative practice. The applicants were therefore exempted from the requirement to exhaust domestic remedies. In any event, it was not satisfied that the applicants had had access to an effective domestic remedy in respect of a central part of their complaint. Conclusion : violation (unanimously). Articles 41 and 46: Respondent State to take general measures, including legislative reform, to ensure that the legal framework complied with the requirements of Article   10. The question of just satisfaction was reserved.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes