NGOs under European Convention on Human Rights / Tymofeyeva

violated its right to freedom of expression. The Court divided the circumstances of the case into a few periods. As to the first period (before the entry into force of the Cable and Satellite Broadcasting Act), the Court noted that during this period there was no legal basis whereby a licence to set up and operate a television transmitter could be granted to any station other than the one belonging to the state (‘ORF’). Therefore, the situation of the applicant was no different from that of the applicants in the Informationsverein Lentia and Others v. Austria. 917 The second period included the time when the private broadcasters were free to create and transmit their own programmes via cable net, while terrestrial television broadcasting was still reserved to the ORF. The Court ruled that such a situation is in compliance with Article 10 of the Convention, given that the cable television broadcasting offered private broadcasters a viable alternative to terrestrial television broadcasting. In the case of Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria , 918 the Bulgarian government was held liable for a violation of Article 10 for failure to give reasons for refusing to grant a broadcasting licence and lack of judicial review of that decision. The circumstances of the case were, as follows. The limited liability company Glas Nadezhda EOOD applied to the National Radio and Television Committee (‘NRTC’) for a licence to set up a radio station to broadcast Christian programmes in and around Sofia. The NRTC refused to provide an applicant company with a broadcasting licence based on a decision finding that the radio did not fully meet its requirements. In the course of making the decision, it had not held any form of public hearing and its deliberations had been kept secret. In addition, the NRTC did not give any reasons explaining why it considered that the applicant company had failed to meet its requirements. The applicant company sought judicial review of this decision before the Supreme Administrative Court of Bulgaria, which ruled that the NRTC’s discretion was not open to judicial scrutiny. All of this led the Court to the conclusion that the interference with the applicant’s freedom of expression had not been lawful. The case of Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC] 919 concerned an Italian TV company’s inability to broadcast, despite having a broadcasting licence, because no television frequencies were allocated to it. The authorities’ failure to allocate frequencies to the applicant company had deprived its licence of all practical purpose since the activity it authorised had been de facto impossible to carry out for nearly ten years. This also had the effect of preventing operators without broadcasting frequencies from accessing the television broadcasting market even though they had a licence. From 2000 onwards, the applicant company made several submissions to the administrative courts, complaining about the failure to allocate it any broadcasting frequencies; however, it was not successful until the last decision in 2009. For that reason, the Court ruled that the applicant company had not been afforded sufficient guarantees against arbitrariness. This shortcoming led to reduced competition in the audiovisual sector and, therefore, amounted to a failure by the state to comply with

Informationsverein Lentia , cited above. Glas Nadezhda EOOD , cited above. Centro Europa 7 S.r.l., cited above.

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