CYIL vol. 12 (2021)

alla tymofeyeva CYIL 12 (2021) corporation, Radio-télévision belge de la communauté française (RTBF) 25 and; neither the government, nor the ECtHR contested its victim status in the proceedings at issue. European standards require the existence of a legislative framework, which ensures that public service broadcasting preserves pluralism and diversity in the media and provision of information on all matters of public interest. 26 They stress the importance of public service broadcasters’ independence and demand their proper funding by public financial means. When public service media is confronted with political control over editorial policy as in restricting discussion or the mentioning of certain topics considered politically sensitive, the state may be found liable for the activity of such broadcasters. 27 In theory, if such a broadcaster would apply to the ECtHR claiming a violation of its human rights, there is an excellent chance that this application would be dismissed for incompatibility ratione personae . State-owned companies may apply to the ECtHR if they enjoy sufficient institutional and operational independence from the state. 28 By contrast, if the state-owned corporations are dependent on the state, they will be considered ‘governmental organisations’ for the purposes of the ECHR and their applications will be declared inadmissible. 29 Furthermore, in the context of inter-state applications, the ECtHR observed that Article 33 of the ECHR does not allow an applicant government to vindicate the rights of a legal entity that would not qualify as a ‘non-governmental organisation’ and therefore would not be entitled to lodge an individual application under Article 34. 30 This conclusion was based on the fact that the ECHR is a treaty, whose purpose is the protection of individual human rights and consequently the provisions of Article 34 of the ECHR should be applied when deciding on who can claim to be a victim of human rights infringements. This means the ECtHR will examine an inter-state application submitted with a view to protecting the rights and interests of a public corporation only if it qualifies as a ‘non-governmental organisation’ within the meaning of Article 34 of the ECHR. An analysis of the case-law of the ECtHR confirms that the applications of public corporations, apart from those which are clearly inadmissible (by state organs and the territorial authorities), are examined on a case-by-case basis. The key issue for the ECtHR is whether an entity could be regarded as a ‘non-governmental organisation’ with a corresponding locus standi. To determine whether an entity is a ‘non-governmental’ organisation for the purposes of the ECHR, the so called ‘NGO test’ was developed. This test is comprised of an evaluation of four key elements: 1) the company’s legal status (under public or private law); 25 RTBF v. Belgium , no. 50084/06, § 1, ECHR 2011 (extracts). 26 Recommendation CM/Rec(2012)1 of the Committee of Ministers to Member States on public service media governance, adopted on 15 February 2012 and Draft Declaration of the Committee of Ministers on Public Service Media Governance. 27 Manole and Others v. Moldova , no. 13936/02, § 114, ECHR 2009 (extracts). 28 See e.g., Ukraine-Tyumen v. Ukraine, no. 22603/02, §§ 25–28, 22 November 2007; Islamic Republic of Iran Shipping Lines v. Turkey , no. 40998/98, §§ 80-81, ECHR 2007-V; Unédic v. France , no. 20153/04, §§ 48–59, 18 December 2008. 29 See Transpetrol, a.s., v. Slovakia (dec.), no. 28502/08, 15 November 2011; Zastava It Turs v. Serbia (dec.), no. 24922/12, 9 April 2013; State Holding Company Luganskvugillya v. Ukraine (dec.), no. 23938/05, 27 January 2009. 30 Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 70, 18 November 2020.

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