Case No.: CH/01/7248
Applicant: "ORDO" - RTV "Sveti Georgije"
Respondent Party: Bosnia and Herzegovina
Date Delivered: 5 July 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicant is a private radio and television station in Banja Luka in the Republika Srpska named "ORDO" - RTV "Sveti Georgije" ("RTV Sveti Georgije"). It obtained a provisional broadcasting license on 30 August 1999 from the Independent Media Commission, which was later succeeded by the Communications Regulatory Agency ("CRA"), both institutions established by decisions of the High Representative to regulate communications and the media.

On 7 May 2001, violent protests occurred in the city centre of Banja Luka which prevented the groundbreaking ceremony for the laying of the cornerstone to reconstruct the former Ferhadija mosque destroyed in 1993. On 8 May 2001, RTV Sveti Georgije broadcast a live call-in television programme concerning the events of the previous day. During this programme, numerous inappropriate statements were made against both the Islamic and international communities by viewers who called in. Many callers were outraged that the groundbreaking ceremony for reconstruction of the Ferhadija mosque was planned on St. George's Day, a major Orthodox religious holiday.

In response to the programme the CRA, in a decision of 17 May 2001, suspended the provisional broadcasting license of RTV Sveti Georgije. In that decision the CRA found that RTV Sveti Georgije violated applicable provisions of the Broadcasting Code of Practice and the Terms and Conditions of its license. The CRA concluded that, "the station has given a tendentious, partially incorrect and one-sided view of an important event in ŠBosnia and HerzegovinaC". Moreover, "the programme, through the failure of responsible editorial and management control, did not only denigrate the religious beliefs of others, but it also caused a considerable risk of public harm". Thereafter, when RTV Sveti Georgije violated the terms of its suspension, the CRA, in a decision of 27 July 2001, revoked RTV Sveti Georgije's provisional broadcasting license. After pursuing an appeal process within the CRA, those decisions became final and binding. In its application before the Chamber, RTV Sveti Georgije challenged the legality and validity of these decisions of the CRA on both substantive and procedural grounds.

Admissibility

Considering that the applicant had exhausted all available avenues for appeal before the CRA and considering that no Court of Bosnia and Herzegovina was functioning during the relevant time period and the deadline for filing such an appeal appears to have expired, the Chamber decided that the applicant had exhausted all effective remedies. The Chamber found that the CRA is an agency of Bosnia and Herzegovina and that Bosnia and Herzegovina is thereby responsible for its actions.

Merits

Article 10 of the Convention

The Chamber took particular note of the prevailing circumstances in Bosnia and Herzegovina and its status as a country seeking to promote the peace implementation process. It further noted that the programme was broadcast only one day after the extensive violent protests in the city centre of Banja Luka. The Chamber found that the programme, taken as a whole, objectively could be seen as inciting violence and as promoting religious and ethnic intolerance. Therefore, the CRA acted within its margin of appreciation when it determined that RTV Sveti Georgije had committed a breach of the applicable broadcasting Code of Practice, which warranted sanctions. The Chamber concluded that the CRA's suspension and later revocation of RTV Sveti Georgije's provisional broadcasting license was proportionate to the legitimate aims of protecting the rights of others, protecting public safety, and preventing disorder or crime. Thus, the Chamber determined that the interference with the applicant's freedom of expression was "prescribed by law", pursued a legitimate aim, and was "necessary in a democratic society", within the meaning of paragraph 2 of Article 10. Accordingly, the Chamber concluded that the respondent Party had not violated the applicant's rights guaranteed under Article 10.

Article 1 of Protocol No. 1 to the Convention

For the reasons explained above with respect to Article 10, the Chamber concluded that the respondent Party had not violated the rights of the applicant protected by Article 1 of Protocol No. 1 because the CRA's suspension and later revocation of the applicant's provisional broadcasting license were "subject to the conditions provided by law" and "in the public interest". The CRA was acting to enforce laws "necessary to control the use of property" for the "general interest". In reaching this conclusion, it was not necessary for the Chamber to decide whether the applicant's provisional broadcasting license constituted a protected "possession" or "property", within the meaning of Article 1 of Protocol No. 1. Chamber expressly left this question open.

Article 6 of the Convention

The Chamber found that Bosnia and Herzegovina had violated the right of the applicant to a public hearing by an independent and impartial tribunal, as protected by paragraph 1 of Article 6. The Chamber concluded that the challenged proceedings before the CRA involving the suspension and revocation of the applicant's provisional broadcasting license had involved the determination of "civil rights and obligations"; therefore, Article 6 was applicable to those specific proceedings. The Chamber further concluded that the CRA was "established by law", but considered the CRA not an "independent and impartial tribunal", and it did not provide a "public hearing", within the meaning of paragraph 1 of Article 6. The Chamber highlighted, however, that if there had been a court (i.e., the Court of Bosnia and Herzegovina) which had had proper procedural guarantees, had functioned during the relevant time period in Bosnia and Herzegovina, and could have decided upon an appeal filed against the challenged final administrative decisions of the CRA, then the Chamber would have been satisfied that the CRA, as an administrative body, had acted within the scope of its competence and its proceedings had been entirely proper and fair.
Article 13 of the Convention
Taking into consideration its conclusion that the respondent Party had violated the applicant's rights protected by Article 6 of the Convention, the Chamber decided that it was not necessary to examine the application under Article 13 of the Convention, as the requirements of Article 13 are less strict than, and in the context of this case were absorbed by, the requirements of paragraph 1 of Article 6.

Dissenting/Concurring Opinions

In his concurring opinion Mr. Andrew Grotrian added some further thoughts to the Chamber's reasoning that the challenged proceedings before the CRA involved the determination of the applicant's "civil rights and obligations" within the meaning of Article 6 paragraph 1 of the Convention, and that Article 6 was therefore applicable to those proceedings. Furthermore he pointed out that it does not necessarily follow from the Chamber's decision that Article 6 would apply to other functions of the CRA, such as the allocation of licences.

Mme. Michèle Picard attached a concurring opinion, joined by Mr. Andrew Grotrian, in which she states that she found the reasoning of the majority not very clear. In her opinion, it is the whole system that lacks the appearance of independence and impartiality. She argued that the confusion of powers in the same organ was sufficient to give the whole institution an appearance of partiality.

Mr. Manfred Nowak argued in his partly dissenting opinion, joined by Mr. Dietrich Rauschning, that the provisional license did not grant any civil right. Consequently, Article 6 was not applicable in the proceedings regarding the granting or the revocation of both provisional and long-term broadcasting licenses. He also explained why he disagreed with the reasoning of the majority that the CRA did not qualify as an independent and impartial tribunal as required by Article 6 (if this provision was deemed to be applicable).

Mr. Miodrag Pajic attached a dissenting opinion, in which he concluded that there was a violation of Article 10 of the Convention. He did not find the revocation of the provisional license by the CRA proportionate to the pursuit of the legitimate aim of protecting the rights of others nor to the purpose of protecting the public safety. In addition he found that the provisional license constituted a "possession" protected by Article 1 of Protocol No. 1 to the Convention and found a violation of this article. Lastly, he could not agree that the sole finding of a violation of human rights guaranteed by Article 6 of the Convention was sufficient satisfaction.

Mr. Vitomir Popovic reasoned in his dissenting opinion that the Chamber should have issued a decision finding a violation of Article 10 of the Convention, and, moreover, should have earlier issued an order for provisional measures to render out of force the CRA's suspension and later revocation of the applicant's provisional broadcasting license. With respect to the ordered remedy he concluded that the finding of a violation of paragraph 1 of Article 6 of the Convention was manifestly disproportionate to the established violation.

Decision adopted 3 June 2002
Decision delivered 5 July 2002