AS TO THE ADMISSIBILITY OF
Application no. 13936/02
by Larisa MANOLE and 8 Others
The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 19 March 2002,
Having regard to the Fourth Section’s partial decision of 15 June 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the parties’ oral submissions at the hearing on 7 March 2006,
Having deliberated, decides as follows:
The applicants, Larisa Manole, Corina Fusu, Mircea Surdu, Dinu Rusnac, Viorica Cucereanu-Bogatu, Angela Aramă-Leahu, Ludmila Vasilache, Leonid Melnic and Diana Donică, are Moldovan nationals who live in Chişinău. All are or were journalists at the “Teleradio Moldova” Company, which is a Public Company registered in Moldova. On 23 February 2004, the applicants submitted powers of attorney in favour of Mr V. Nagacevschi and Mr V. Gribincea acting on behalf of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
The applicants are or were television journalists from the “Teleradio-Moldova” Company (“the Company”), which runs the only Moldovan public television channel and radio station with nationwide coverage.
The State Company “Teleradio-Moldova” was created in 1994 out of the previously existing Radio and Television of the Republic of Moldova. Its statutes were changed successively in 1995, 1996 and 2002, when the State Company was transformed into a Public Company.
2. The applicants’ submissions
According to the applicants the Company has been subjected to censorship throughout its entire existence. However, after February 2001, when the Communist Party won a large majority in the parliamentary elections, the censorship allegedly became unbearable. The censorship was usually imposed in the form of an oral instruction by means of a hierarchical order coming from the President of the Company to the editors.
All the applicants made submissions containing specific acts of alleged censorship. Details of their submissions can be found below and in the Court’s partial decision in Manole and Others v. Moldova, of 15 June 2004.
They submitted the following evidence in support of their allegations: statements of national television journalists, scripts of news programmes with paragraphs allegedly crossed out from their superiors, etc. They stressed that it would be impossible for them to produce more evidence in circumstances in which the alleged censorship was not official, but rather was carried out by way of oral instruction by their superiors.
In particular, the applicants alleged that since February 2001, no opposition party, either parliamentary or extra-parliamentary, had had access to air-time; any reporting containing a different point of view from that of the Communist Party, had been banned; a number of prominent persons from the political, cultural and scientific spheres who did not support the Communist Party were put on a black-list and had been banned both from national television and national radio; words and phrases such as “Romanian”, “Romanian language”, “Bessarabia”, “History of Romanians”, “totalitarian regime”, etc. had been prohibited; it was prohibited to refer to certain historical periods such as the period between the two World Wars, the organised famine in the USSR, the Stalinist regime, the GULAG deportations and the period of national revival of 1989. The events to be reflected in the news bulletins were carefully selected and only a limited number of journalists had the right to make feature reports about public authorities. Only the State-owned news agency “Moldpres” could be referred to and the opposition was denigrated. If there was any feature report in which representatives of the opposition were included, the interviews were truncated, or any speech was substituted by the declarations of the journalists or by text written at the “Moldpres” News Agency. The feature reports about the activity of the Government were 3-5 minutes long. The rest of the reports were 60-90 seconds long.
From 9 January to May 2002 the parliamentary faction of the Christian Democratic People’s Party organised on a daily basis massive demonstrations in front of the seat of the Government, in which tens of thousands of people had participated. On 22 February 2002 Parliament held a debate about the protests; however, the evening news entirely omitted the views expressed by the opposition during that debate. During a long period of time it was forbidden to give any information in the news bulletins about the demonstrations. This situation continued until 25 February 2002, when 331 members of the staff of the Company signed a declaration of protest against the censorship which read as follows:
“We, the employees of Teleradio-Moldova, note that after the Communist Party’s victory in the elections, our freedom of expression has been impaired. Our viewers and listeners have been deprived of the right to accurate and impartial information. In fact, the authorities have restored in National Radio and Television a Soviet-style political censorship, prohibited by the Constitution of Moldova. As a result ‘Teleradio-Moldova’ has become an instrument for the brainwashing and manipulation of public opinion, а mouthpiece of the ruling party. We protest against the totalitarian actions, which infringe the rights of television viewers and radio listeners and the freedom of the press as a whole. Such anti-democratic deviations are dangerous, because they destabilise the political situation within our society. We express our solidarity with the actions of the demonstrators, aimed against the forced russification and deliberate destruction of the democratic system. We demand the abolition of censorship within the State Company ‘Teleradio-Moldova’ and respect for the people’s right to accurate, reliable and impartial information. We demand that the authorities respect the democratic and pro-European policy which our country opted for.”
On 26 February 2002 the declaration was forwarded to all the news agencies and on the same day several thousand people gathered in front of the Company headquarters to protest against censorship. From that day on, protesters gathered in front of the Company for several weeks.
In the evening of 26 February 2002, the fourth applicant Dinu Rusnac, news-caster of the 7 p. m. news bulletin was replaced by another person (N.L.), as a result of his refusal to present a censored version of the news about the protests in front of the Company headquarters. Military personnel was present in the studio. The news crew, however, broadcast the uncensored version of the feature report and after a few minutes the news bulletin was interrupted and replaced with a documentary film.
On account of these events the administration of the Company forbade on that date satellite retransmission for the European Broadcasting Union.
On 27 February 2002, during a meeting, the staff of the Company decided to go on a passive strike and a Strike Committee was elected for that purpose.
The Strike Committee submitted to the administration of the Company and to the Government a list of demands regarding the abolition of censorship at the National Television and Radio. At the same time the editors and news-casters, despite pressure from the administration of the Company, started to present “uncensored” news.
In the evening of 27 February 2002 the President of the Republic of Moldova came to the Company and had a meeting with representatives of the Strike Committee. He dismissed any accusations of political involvement in the Company’s activity. However, he allegedly promised to put an end to the censorship there. He also rejected the request to offer the opposition one hour of air-time, on the ground that their protests were illegal.
On 5 March 2002 the fourth applicant, Dinu Rusnac, included in the script of the 7 p.m. news bulletin, information about the attitude of the Strike Committee vis-à-vis some declarations of the President of Moldova, and an interview with the opposition leader Iurie Roşca. His superior, V.T., censored the text of the news by crossing out the paragraphs concerned. During the news bulletin the applicant informed the audience about the censorship of the news and showed the script of the news with passages struck out and signed by V.T. Immediately, the head of the News Department ordered the sound technician to cut the sound. The applicant spoke for two minutes without any sound.
On 7 March 2002 Parliament created a special Parliamentary Commission to elaborate a “strategy for improving the work of [the Company]”.
Immediately after the beginning of the strike in February 2002 the administration of the Company and the Government appeared to be willing to reach a compromise and for a few days allowed non-censored feature reports about the journalists’ protests; later, however, a state of emergency was introduced at the Company and military troops were moved into its premises. One after another the leaders of the strike movement began to be dismissed by different methods from their positions, and to be subjected to disciplinary sanctions. For instance, various disciplinary sanctions were imposed on the applicants Larisa Manole and Dinu Rusnac. The Company refused to enforce the court judgment of 11 September 2002 cancelling the sanctions imposed on Mrs Manole. All the Romanian-language and one Russian-language news-caster from the evening news bulletin “Mesager” were replaced and the censorship continued.
A video-tape sent by the applicants to the Court shows the anti-censorship demonstrations of February and March 2002, the statements made by the Strike Committee and their negotiations with the President of Moldova regarding the abolition of censorship.
In March and April 2002 the leaders of the Strike Committee were questioned by criminal investigators about the protests organised by them in front of the Company building.
On 29 April 2002 the Audio-visual Coordinating Council made public a report concerning the monitoring of the Company’s activity. The monitoring consisted in twelve meetings with staff from 16 to 19 April 2002. The report focused on the existence of censorship and stated inter alia:
“The fact that some journalists were favourable to the events that took place in the Square of the Great National Assembly [the opposition demonstrations] is a sign of their political bias.
As to the use of the word ‘censorship’... it is noted that there is a tendency to call ‘censorship’ any elementary requirements pertaining to the fulfilment of official duties... There was an attempt to excuse personal incompetence and lack of professionalism by the existence of censorship. The journalists give a distorted interpretation of the objectives put before them by their superiors... Basic professional requirements are interpreted as orders and censorship. Of course, one should not exclude the possibility that some leaders of the Company work the system in favour of the majority in the Parliament. There are also repeated attempts by State officials to influence the message of the programmes. However, the Audio-visual Coordinating Council cannot point to any examples of this. But it is understandable that such abusive influences aroused feelings of protest on the part of the creative staff.
It has not been found that the administration of the Company forbade the use of terms like “Bessarabia”, “Romanian”, “Romanian Language”, “History of Romanians” and “totalitarian regime” in a historical context. These terms were banned only from reporting on subjects concerning current events from the life of the country...
Consequently, having examined the situation in the Company, the Audio-visual Coordinating Council finds that:
(1) the practice of constantly changing the leaders, as well as the pressure put upon the creative activity within the Company, which is interpreted as censorship, are incompatible with the activity of a creation team;
(3) the provisions of the Statutes should be strictly respected by the Company, who should also create an all-round Executive Board.”
On 7 June 2002 the Moldovan President, Mr Voronin, made a statement to the press concerning the Company. He expressed his reservations vis-à-vis the Resolution of the Parliamentary Assembly of the Council of Europe no. 1280 (2002) calling upon the Moldovan authorities to transform the State company Teleradio Moldova into a public company, but declared that, as President, he would have to agree in the event of such a change. He finally stated that the anti-communist protests organised between January and April had been organised by “uneducated persons, savage people, pithecanthropi”.
On 26 July 2002 Parliament enacted Law no. 1320-XV on the Public Audio-visual Institution, “Teleradio-Moldova”, by which the State Company “Teleradio-Moldova” became a Public Company. According to the new law, the staff of the old State Company had to pass an examination in order to be employed at the Public Company.
The examination was organised in 2004. However, the criteria for hiring or confirming the persons already working in the Company were not made public.
On 26 July 2004 the results were made public. None of the applicants who had worked at the News Department was confirmed in his or her job; nor were the majority of the persons who were active during the 2002 strike.
On 27 July 2004 the journalists who had not been hired organised a press conference at which they advanced the idea that they had been dismissed for political reasons. A feature report about that press conference was scheduled for the 7 p.m. news bulletin; however, the Director of the newly-established Public Company replaced the news bulletin with a documentary about the mating habits of elephants.
On the same date, the President of the Company issued an order by which nineteen participants at the press-conference, including five of the applicants were suspended and banned from entering the premises of the Company.
The applicants Corina Fusu, Angela Aramă-Leahu, Dinu Rusnac and 57 other individuals complained to the Administrative Chamber of the Chişinău Court of Appeal about the unlawfulness of the examination which had ended on 26 July 2004, claiming in particular that the Examination Panel had been unlawfully constituted. The Court dismissed the action on 24 September 2004 on the ground that it was not competent to examine such an action. It found that the Examination Panel had been constituted pursuant to Law No. 1320-XV of 26 July 2002, and that this Law did not grant the applicants any specific right as to the organisation of the examination. Therefore, an action for liability under the Law on Administrative Disputes was inadmissible. Moreover, the State could not be held responsible for torts committed by reason of the laws which it had enacted.
The applicants did not inform the Court whether they filed an appeal against the decision of 24 September 2004.
3. The Government’s submissions
The Government argued that there was no censorship within the Company They relied on the findings of the Audio-visual Coordinating Council in its report of 29 April 2002, according to which the applicants had never been prevented from imparting information to the public.
The Government denied the applicants’ submission according to which no opposition political parties had access to national television. They asserted that all political parties, both parliamentary and extra-parliamentary, had the possibility of expressing their opinions, their ideology and their electoral programmes on National Television. In support of their submissions the Government submitted copies of TV Guides, from which it appears that: on 14 May 2004 National Television hosted a programme entitled “The Tribune of Political Parties”; on 12 July 2004 National Television hosted a programme entitled “Public Life” with the participation of the President of the Republic of Moldova, who was also the leader of the Communist Party; and on 15 July 2004 the National Television hosted a programme entitled “The Democratic Process and Freedom of the Media” with the participation of Mr. V. Stepaniuc – the leader of the Communist parliamentary faction, Mr. D. Braghiş – the leader of the Parliamentary faction “Moldova Democrată”, M. Petrache – the leader of an extra-parliamentary party called “Centrist Union”, and other persons who were not representatives of any political parties.
The Government also rejected the applicants’ allegations that a number of personalities unfavourable to the ruling Communist Party had been banned from National Television and Radio and that the use of certain words such as “Romanian language”, “Romanian”, “Bessarabia”, “Romanian history” and “totalitarian regime” had been banned.
They submitted that in a programme of 26 February 2002 the second applicant, Corina Fusu, presented a feature report in which well-known sculptors and other talented young artists were present, while in another programme presented by the applicant Viorica Cucereanu-Bogatu on an unspecified date a writer was interviewed. They also submitted a copy of the script of a news bulletin, undated, in which expressions such as “Romanian language” and “Romanian Literature” and the name of a Romanian writer had been used.
Referring to the allegations made by the applicant Dinu Rusnac about the evening news of 5 March 2002 when the sound was cut during the live broadcast in order to prevent him from informing the audience about the censorship of the text of the news bulletin, the Government admitted that such events took place. However, they argued that cutting the sound was justified by the fact that Mr Dinu Rusnac had infringed the internal regulations and the relevant legislation by modifying the text of the news bulletin without any prior authorisation. Therefore, the applicant expressed his own opinion in front of a large audience, and this was not information which could be said to meet the requirements of objectivity and impartiality. Therefore, his superior had been entitled to cut the sound. Moreover, the applicant’s opinion was brought to the attention of the public in a programme entitled “The President’s Hour”.
The Government denied the applicants’ allegation that the Company did not broadcast any news about the protests organised by the opposition in the centre of Chişinău starting on 9 January 2002. They submitted that the protests were largely reflected in the news bulletins, which were accompanied by comments about the course of events. Moreover, the majority of the feature reports broadcast had been the work of the applicant Corina Fusu.
As to the protests in front of the Company building, they were also largely reported on in programmes presented by the applicant Mircea Surdu. The Government presented a copy of an undated request by Mircea Surdu to allow him to organise a talk-show about the protests from the Company, which did not have the approval signature from his superior.
The Government argued that, according to the administration of the Company, the majority of programmes with debates on political topics, with the participation of all the opposition forces, were live programmes and accordingly they could not be censored.
B. Relevant domestic law and jurisprudence
1. The relevant provisions of the Constitution of the Republic of Moldova read as follows:
(1) Every citizen has the right to obtain effective protection from competent courts of justice against actions infringing his or her legitimate rights, freedoms and interests.
(2) No law may restrict access to justice.
“(1) Parliament shall be the supreme representative body of the people and the sole legislative authority of the State in the Republic of Moldova.”
“(1) The Constitutional Court shall be the sole body of constitutional jurisdiction in the Republic of Moldova.”
2. The relevant provisions of the Audio-visual Broadcasting Act (Law no. 603-XIII of 3 October 1995), read as follows:
“(3) The Audio-visual institutions shall not be subjected to censorship.
Freedom of Audio-visual expression implies strict observance of the Constitution and it cannot be exercised to the detriment of another person’s dignity, honour, private life or image.
(1) The State shall guarantee all the necessary conditions for the activity of the public Audio-visual institutions.
(2) The State shall guarantee the endowment of the public Audio-visual institutions with the necessary technical equipment for their broadcasting.
A journalist from an Audio-visual institution, who acts on its behalf, shall have the right:
(h) to have access to the courts at all levels.”
(1) The Audio-visual Coordinating Council shall be composed of 9 members, appointed by:
(a) the Parliament – 3 members (including one Audio-visual specialist);
(b) the President of the Republic of Moldova – 3 members (including one Audio-visual specialist);
(c) the Government - 3 members (including one specialist in telecommunications).
3. Decision of the Government No. 502 of 12 September 1996 on the Statute of the State Company “Teleradio-Moldova” provides:
“The Company is a public Audio-visual institution. The creative and editorial activity of the Company shall be protected by law from interference by the public authorities and pressure from political parties.
“Teleradio-Moldova” shall have the status of a State Company.
The founder of the Company is the Government, in the name of the State of the Republic of Moldova. The activity of the Company shall be conducted by the State through the Audio-visual Coordinating Council.
The Company shall have the following objectives:
To provide truthful and objective information about the socio-political, economic and cultural life of the country and the external relations of the State;
To promote the interests of all strata of society, to propagate the values of peace and humanism, democratic values and respect for human rights;
To create, accumulate, preserve and promote cultural and artistic values.
The creative and editorial activity of the Company shall be independent. Television and radio programmes shall be protected by law from interference by the public authorities and influence and pressure from any political party.
The Company shall be obliged:
To present in an objective and impartial manner the realities of national and international socio-political life; to ensure the peoples’ right to information; to promote the authentic values of the national culture, of the culture of the national minorities and of universal culture;
To ensure freedom of expression, freedom of thought and freedom of circulation of information;
To ensure respect for the rights of journalists in accordance with the national legislation and with international practice; to ensure the presence of persons with different political and confessional views within its broadcasts;
To give priority to and broadcast free of charge the press releases of the Parliament, Government and President of Moldova...
The research and creation sub-units of the Company shall ensure a journalist’s right to an opinion and to his or her own position. The Company cannot oblige a journalist to promote any ideas which are in contradiction with his or her moral values.
The programmes broadcast by the Company must not propagate war, aggression, ethnic, racial, class or religious hatred, violent anti-State violent actions, terrorism, public disobedience, territorial separatism or any ideas and opinions contrary to moral standards.
The President of the Company, the General Director of Television and the General Director of Radio shall be appointed by Parliament, on the proposal of the Audio-visual Coordinating Council or on its own initiative. The term of office shall be five years. The Vice-President of the Company shall be appointed by the Audio-visual Coordinating Council, on the proposal of the President of the Company for a period of five years.
The President of the Company shall:
Run the Company; ...
Employ and dismiss the employees of the Company;
Supervise the activity of the Company’s Board of Directors; ...
The Board of Directors is a collegial and consultative administrative body of the Company. It shall be composed of thirteen members, who shall act in accordance with the Regulations of the Board of Directors.
The President of the Company shall automatically be a member of the Board of Directors. The other members shall be the representatives of the Government and of the Audio-visual Coordinating Council.”
4. Law no. 1320-XV of 26 July 2002 on the public institution of the “Teleradio-Moldova” Company reads as follows:
“The national public Audio-visual institution – the “Teleradio-Moldova” Company - is hereby created. It shall be an institution with legal personality and with functional autonomy and editorial independence which shall ensure the right to the freedom to impart truthful and objective information throughout the territory of the Republic of Moldova...
(2) The Company must ensure a large diversity of broadcasts covering the interests of different social, national, religious and political categories.
(3) The Company must ensure respect for the principle of objectivity and impartiality within its news and documentary broadcasts.
(1) The Company’s Observers’ Council is an autonomous body which shall be responsible for ensuring observance of the right of the people and of society to receive truthful, complete and objective information. It shall be charged with monitoring the Company’s observance of law and of its statute.
(2) The Observers’ Council shall be composed of 15 members who are well-known persons from the cultural, scientific, educational, media and other spheres. Their term of office shall be five years and they shall be appointed by:
(a) Parliament – 2 members (1 from the opposition) ...;
(b) The President of the Republic of Moldova – 2 members;
(c) The Government – 2 members;
(d) The High Council of the Judiciary – 1 member;
(e) The creative staff of the Company – 1 member;
(f) The national minorities’ organisations – 2 members;
(g) The Confederation of the Trade Unions of Moldova – 1 member;
(h) The Confederation of the Free Trade Unions ‘Solidarity’ – 1 member;
(i) The Creative Unions (the Union of Writers, the Union of Plastic Artists, the Union of Cinema Workers, the Union of Composers, the Union of Theatre Workers) – 1 member;
(j) The media organisations (the Union of Journalists, the Association of the Free Press, the Association of the Electronic Press, the Committee for the Freedom of Press, the Independent Journalism Centre, the Mass-media Association) – 1 member;
(k) The Association of Veterans – 1 member.
The Observers’ Council shall
Appoint the president of the Company, the vice-president, the executive director of television and the executive director of Radio;
Confirm the composition of the of the Board of Directors;
Supervising the Company’s activity
(1) Supervision of the Company’s activity shall be exercised by the Observers’ Council.
(2) If the Observers’ Council is not discharging its supervisory functions properly, Parliament may, by way of a special parliamentary commission, demand from any organ of the Company written information about the actions or omissions which in Parliament’s view breach the present law. The special parliamentary commission shall be composed of representatives of all the parliamentary factions, which shall be represented proportionally to the representation of their parties in Parliament.
(4) Parliament, together with the Audio-visual Coordinating Council, may order the Company to take adequate measures to eliminate the breaches of law found.
(5) The Company shall have the right to challenge in the courts, in accordance with the legislation in force, the legality of the orders received...
(7) Any measure taken under the present Article shall not infringe the Company’s freedom of information and the right to freedom of expression.”
5. The Government submitted a letter of 29 September 2004, in which the President of the Bălţi Distict Court informed the Ministry of Justice that his court had never received complaints regarding censorship at the National Television. The letter further stated that if received, such complaints would certainly be examined on the merits.
C. Relevant non-Convention material
1. Council of Europe
1. In his follow-up report to the Recommendations following his visit to Moldova from 16 to 20 October 2000, the Commissioner for Human Rights stated:
“...The Commissioner finds it however worrying that despite the stated political will to involve all parts of Moldovan society in the action plan for human rights and social cohesion, basic elements of democratic dialogue seem to suffer unnecessary restrictions.
Thus, freedom of the media seems affected by the lack of appropriate guarantees for the independence of the national public broadcasting company (Teleradio-Moldova) ...”
2. On 24 April 2002 the Parliamentary Assembly adopted Resolution 1280 (2002) on the functioning of democratic institutions in Moldova, which stated:
“7. The Assembly notes that the scale of the protest movement by journalists and staff of Teleradio-Moldova underlines the need to carry out reforms quickly, so as to fully guarantee freedom of expression and promote a public broadcasting service. It urges the authorities to end the practice of censorship of television programmes and to afford all opposition political parties, both inside and outside parliament, generous access to discussion programmes. It asks the Moldovan Government and Parliament to embark without delay on work to transform Teleradio-Moldova into an independent public corporation.
10. The Assembly expects the Moldovan political forces to pursue genuine, constructive dialogue and to agree on a compromise which should include the following elements:
iv. the revision of radio/television legislation and amendment of the status of Teleradio-Moldova to make it an independent public corporation: an immediate start of work by the relevant parliamentary committee; the possible resumption of consideration of the draft legislation examined by the previous legislature; ... [completion of work] by the end of the current parliamentary Session, on 31 July 2002;
11. The Assembly calls upon the Moldovan Government and Parliament to take the above measures without delay.
14. The Assembly calls upon the Moldovan authorities to co-operate fully with the Council of Europe and its bodies, and in particular:
ii. to submit for Council of Europe expert appraisal the future bills for the reform broadcasting and transform the state company Teleradio-Moldova into an independent public service corporation; ...”
3. Also on 24 April 2002 the Parliamentary Assembly adopted Recommendation 1554 (2002) on the functioning of the democratic institutions in Moldova, containing the following request:
“5. The Assembly also asks the Committee of Ministers to step up co-operation with the Moldovan authorities concerning:
i. speedy expert appraisal of coming bills to reform broadcasting and transform the State Company Teleradio-Moldova into an independent public service corporation; ...”
4. On 26 September 2002 the Parliamentary Assembly adopted Resolution 1303 (2002) on the functioning of democratic institutions in Moldova, in which it made the following observations, among other:
2. On 24 April 2002, the Assembly adopted Resolution 1280 on the functioning of democratic institutions in Moldova, in which it invited the Moldovan political forces to pursue a genuine and constructive dialogue and it requested the Moldovan authorities to adopt a number of measures, listed in paragraph 10 of the resolution, which they agreed to implement as a matter of political compromise.
6. ... the Assembly expects the authorities to implement the decisions taken to the letter, without altering their content, and without breaching their commitments at a later date, particularly those regarding freedom of the media....
7. In addition, the Assembly notes that the authorities have sought to meet the other undertakings made in April, by adopting on 26 July 2002 a new law on the national public broadcasting company Teleradio-Moldova....
8. However, it is unable to consider that the authorities have fully satisfied their commitments as the content of these laws continues to draw comment and controversy. It invites the authorities to:
i. revise, during the autumn of 2002, the law on the national public broadcasting company Teleradio-Moldova, by genuinely involving civil society, associations representing the media and the political opposition in discussion, and by taking on board the recommendations made by the Council of Europe’s experts. In particular, it requests that revision of the provisions on the composition, appointment and powers of the observers’ council be the subject of the widest possible consultation...”
5. On 3 April 2003, the co-rapporteurs Mrs Josette Durrieu and Mr Lauri Vahtre presented to the Parliamentary Assembly of the Council of Europe an information report regarding the Implementation of Resolution 1303 (2002) on the Functioning of democratic institutions in Moldova, in which it is noted inter alia:
“68. We note a positive development in the political situation in Moldova since our previous visit. Dialogue with part of the political opposition has resumed. The Moldovan authorities have complied with the most important items of the Council of Europe recommendations. During our visit, we nevertheless asked the authorities to make an additional effort to bring the reforms embarked upon to final completion, and in particular:
- to amend and adopt the law on the Teleradio-Moldova public broadcasting service, taking our comments into account,
69. Since our mission, we find that these requirements have indeed been met:
- the law on Teleradio-Moldova was enacted on 14 March and promulgated on 21 March.”
6. Following Resolution 1303 (2002) three draft amendments to the Law on the Public Company were presented by the Government to the Council of Europe for approval. The central issue was the composition of the Observers’ Council of the Company. The Council of Europe approved one draft and suggested certain improvements to it relating in particular to the composition of the Observers’ Council; however, the final amendment adopted later by the Parliament of Moldova did not take into account this suggestion.
7. The following are relevant parts of a report prepared by the Secretariat of the Council of Europe subsequent to a visit to Chişinău on 28 September – 1 October 2004 (SG/Inf (2004) 29 final):
The restructuring of the state channel Teleradio-Moldova (TRM) into a national public service broadcaster has been a major source of concern in the media field since April 2004. The most dramatic developments occurred during July-September.
49. The Law on the national public service institution of Audio-visual Teleradio-Moldova, adopted in July 2002 and amended in March 2003, envisaged the transformation of the institution through its liquidation. This implied laying-off the old staff and carrying out a new recruitment procedure. The journalists of the state channel warned against the risks of a purely formal transformation of the company and the use of the liquidation option as a pretext for firing ‘disloyal’ journalists (see Moldova Azi, 21.01.2004, see also PACE, Doc. 10029 and Basa-Press 12.02.2004). The statute of the new TRM, presented for adoption in February 2004, had also been criticised by journalists for failure to establish clear mechanisms of implementation of the law, e.g. absence of the clear specification of the modality of employment and re-employment of staff members. In February 2004 the State Company TRM was liquidated and a new recruitment procedure commenced. Since 27 July 2004, many of journalists, led by the Committee for Defence of Human and Professional Dignity (CADUP), initiated protest action, contesting the modalities of the procedure, its results as well as the composition of the selection commission. Furthermore, the protestors called upon the Moldovan Parliament to amend Article 13 of the Law on TRM with respect to the composition of the Supervisory Board so as to increase the representation of media professionals within it. On 8th August TRM started functioning as a new legal entity. Protests took place in front of Radio House and Parliament during August-September. Since 22 August, and for 26 days, several journalists and representatives of civil society went on hunger strike (for more details see A19, ‘Open Letter to President Voronin on recent developments on Teleradio-Moldova’, 23 August 2004; A19, Moldova Bulletin, May-August 2004).
50. The police were used to disperse the protesters’ actions on 1, 6 and 29 August. During the incident of 1st August several persons were injured and hospitalised (see IFG media release, 7 September 2004). Complaints were filed with the Prosecutor’s Office, the Ministry of Home Affairs and legal action was taken by the protesters relating to these events. The authorities’ response was that the police action was legitimate (to counter hooliganism), the Deputy Mayor’s authorisation for the protesters to assemble was suspended (see paragraph 40 above) and administrative proceedings were in turn initiated against the protestors for the organisation of unauthorised demonstrations.
51. Seized by the protesters, on 26 September, the court ruled in favour of the authorities of TRM. The protestors are now, so it is understood, appealing this decision to the Supreme Court of Justice.
52. The protestors have requested the Council of Europe and the OSCE to monitor the reorganisation of TRM and to investigate action taken by the authorities against the protestors.
53. On 30 July, the OSCE Mission to Moldova issued a statement questioning the transparency of the selection process and subsequently, on 1st October 2004, Heads of Diplomatic Missions in Moldova, the OSCE Mission to Moldova and the Special Representative of the Secretary General of the Council of Europe (SRSG), made a joint statement, expressing the view that the process of transformation was not carried out in accordance with guidelines issued on public broadcasting and urged everyone involved to engage a constructive dialogue to find a mutually acceptable solution of this problem (See Appendix II). The representatives of the OSCE mission to Moldova and the SRSG are currently mediating between the TRM administration and the protesters.
54. The developments on Teleradio-Moldova had - understandably - been the focus of the Delegation’s discussions with interlocutors from Parliament, the Government, the Presidential Administration, TMR management and the protesting journalists / strikers (see Appendix I).
55. It is interesting to note that the perception of the conflict by the authorities seems to be limited to either a ‘labour dispute’ vision or to that of an alleged well-orchestrated campaign by the political opposition. Insofar as the protesting journalists are concerned, they claim that the main point of the protests concerns their struggle to create an authentic independent national public service broadcaster. During a meeting with the Secretariat Delegation, the strikers drew the Delegation’s attention to the fact that the TRM editorial policy was regularly being monitored by the local Centre of the Independent Journalism (IJC) and the Centre of Sociological, Politological and Psychological Investigations (CIVIS). According to IJC and CIVIS the editorial policy of the TRM fails to comply with the requirements of the Law on National Public Broadcaster, with a tendency of bias towards the authorities being more and more evident (for details see http://ijc.iatp.md).
56. The transformation of TRM should be carried out in full compliance with Moldova’s undertakings and in accordance with the OSCE and Council of Europe’s “Benchmarks for the Operation of Public Broadcasters in the Republic of Moldova”, which were specifically tailored to the Moldovan situation. (For Council of Europe analyses of the Law on the public broadcasting institution Teleradio-Moldova and amendments thereto consult: http://www.coe.int/T/E/human_rights/media/).
57. The Secretariat Delegation noticed that there was a will, on all sides, to settle the conflict. The TRM managers have established a commission to negotiate with the protestors. The position of TRM’s management is that the procedure cannot start from scratch; the idea of creating an independent TV channel, or a separate press agency, to which a number of journalists could be recruited, was suggested by the management of TRM.
58. Dialogue must continue so that a mutually acceptable solution to this problem is found. That said, it has been recognised that there is a need to provide additional assistance to ensure that the new Law is in full conformity with the notion of a ‘public service broadcaster’; Council of Europe expert assistance could also be provided for the implementation of this Law, in the light of experience of other countries.
(b) Legislation in the Audio-visual sector
59. During the meeting with the Delegation, the President of the Coordinating Council of Television and Radio (CCA) stressed the urgent need to adopt legislation in the Audio-visual sector as the current legislation of 1995 is now outdated.
60. Two draft laws were submitted to the Council of Europe appraisal, one from the Parliament, the other from the Association of the Electronic Press APEL. The Council of Europe experts concluded that the text submitted by the authorities fell short of relevant European standards, while the APEL’s project trigged a positive echo. The most controversial question is that of the composition of the CCA. The authorities’ draft is based on the political nomination model, while the APEL’s draft provides for inclusion of representatives of the civil society. On 9 September 2004, the authorities asked the Secretariat to organise further discussions, bringing together the experts and the drafters, including APEL. A suitable date for the meeting has not yet been found. The laws will be examined by Parliament during the autumn-winter session.
61. Insofar as the Local Public Service Broadcasting Law is concerned, the Council of Europe expert recommended a revision of the Law as the text is not fully consistent with European standards (problematic points: way in which Supervisory Boards are appointed, intervention of the local authorities in the activity of the broadcasters, etc).
8. On 4 October 2005 the Parliamentary Assembly adopted Resolution 1465 (2005) on the functioning of the democratic institutions in Moldova, in which it made the following observations, among others:
“6. ... However, genuine involvement of civil society requires a pluralist and dynamic media sector, particularly with regard to television. The conditions must also be created for a genuinely independent and professional public broadcasting service.
14. The Assembly further urges the Moldovan authorities, with regard to the protection of human rights, to ...
14.1.1. revise legislation regarding public service broadcasting (both national and local) and the Audio-visual sector in general;
14.1.2. pursue the transformation of Teleradio-Moldova into a genuine public service broadcaster, as defined in Assembly Recommendation 1641 (2004) on public service broadcasting; ...”
2. Non-Governmental Organisations
The following is a passage from a report prepared by “Article 19”, the international freedom of expression NGO in October 2003:
“... In February 2002 the staff of Tele-Radio Moldova started protests against the growing direct interference by the authorities in their editorial decisions. Among other things, they referred to pressure by the authorities to completely exclude from news items mentions of Romania and crimes (such as deportations) committed during the Soviet period. They also denounced the fact that, although Article 7 of the Law on Audio-visual establishes that the company is a public one, it remained under the control of the authorities, with cases of direct censorship in the State radio.
Demonstrations were held in Chişinău central square, and coincided with the start of a strike by over 380 employees of Teleradio-Moldova. On 27 February 2002 a Strike Committee was established. Journalists subsequently compiled a file with evidence of censorship under the title ‘Citizens versus the Republic of Moldova’, which was sent to the European Court of Human Rights. On the same day President Voronin visited Teleradio-Moldova and dismissed the accusations of interference with journalists’ editorial independence. Long periods of negotiations followed and a parliamentary committee was set up and tasked with the development of a ‘concept for the company’s improvement.’ However, most journalists did not accept the final product, as it was compiled without collaboration and input from the protesters. The authorities also attempted to openly discredit the protesters, and later to intimidate them by summoning members of the Strike Committee to investigative bodies. Despite the authorities’ counter-actions, the protests attracted wide international attention and prompted the intervention of the Council of Europe, with the adoption of PACE Resolutions 1280 (2002) and 1303 (2002) on the functioning of democratic institutions, containing recommendations on the establishment of public service broadcasting in Moldova.
The applicants complained under Article 10 of the Convention that the censorship imposed on the Teleradio-Moldova constituted an unjustifiable interference with their right to freedom of expression and was a serious infringement of their right in a democratic society to impart information to the public.
A. The Government’s preliminary objection
1. The parties’ submissions
The Government submitted that the applicants had not exhausted remedies available to them under Moldovan Law, as required by Article 35 § 1 of the Convention. In particular, they could have complained to the national courts about the alleged breach of their right to freedom of expression, relying on the provisions of Article 20 of the Constitution, of Article 2 paragraph 3, and Articles 3, 6 and 29 (h) of Law no. 603-XIII of 30 October 1995 on Audio-visual Broadcasting and on the provisions of Law no. 1320-XV of 26 July 2002 on the public institution of “Teleradio-Moldova”.
The Government stated that they were unable to point to any similar cases previously examined by the domestic courts, owing to the fact that, as a young State, the Republic of Moldova had not had enough time to develop any case-law in this field. However, if such an application were to be lodged, it would certainly be examined on the merits.
The Government pointed out that it was also open to the applicants to complain to the Observers’ Council of the Company, which, according to Article 20 of Law no. 1320-XV of 26 July 2002, was competent to supervise the Company’s compliance with its internal regulations and with legislation in general.
Denying the existence of censorship at the Teleradio-Moldova, they made a general statement that the rectification of the scripts of certain programmes and feature reports was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. Referring specifically to the incident of 5 March 2002 involving the applicant Dinu Rusnac, they asserted that it was due to a breach by the applicant of the internal regulations, i.e. modifying the news bulletin without prior authorisation. The Government submitted copies of several TV Guides showing that on one occasion in 2004 several political opposition leaders had taken part in a television programme and that several allegedly banned words had been used in an undated feature report.
The applicants submitted that there was an administrative practice of censorship at the Teleradio-Moldova and that, accordingly, they were dispensed from the obligation to exhaust domestic remedies. In any event, the remedies suggested by the Government were not effective:
- the Audio-visual Coordinating Council was not an independent body, since it consisted of nine members, of which three were appointed by the Parliament, three by the Government and three by the President of Moldova. Moreover, in its report of 29 April 2004, the Audio-visual Coordinating Council had examined their complaints about censorship. Although the applicants had submitted to it all the alleged specific acts of censorship complained about in their application to the Court, none of those allegations had been examined in the report, which instead had limited itself to drawing the general conclusion that there was no censorship at the Company.
- the Observers’ Council of the Company was an organ of the newly established Public Company, which had begun its activity only in August 2004 and could not examine complaints concerning events prior to its establishment, as was the case with many of those complained of in the present application. Moreover, neither the Audio-visual Coordinating Council nor the Observers’ Council of the Company could afford any redress in the form of just satisfaction to the applicants.
- as to the possibility of bringing their complaints before the domestic courts, the applicants argued that the Government had failed to present any examples of similar cases examined by the domestic courts earlier. The letter from the President of the Bălţi District Court was totally irrelevant, since the Bălţi District Court did not have territorial or substantive jurisdiction to hear such cases. In any event, assuming that, theoretically, a national judge could find a specific instance of censorship, he or she would be unable to prevent future instances of censorship in the context of an administrative practice within the Company. Moreover, it would be impossible to enforce such a judgment, because the bailiff had no power to prevent future instances of censorship by supervising the activity of the Company and deciding what constituted censorship and what did not constitute censorship. The bailiff could act only within the limits of the enforcement warrant and it would be impossible to issue an enforcement warrant containing an exhaustive list of actions which constituted censorship.
The applicants alleged that in any event, having regard to the practice of censorship in the Company and to the lack of structural independence of the Company from the Government, none of the above-mentioned remedies would be susceptible of affording appropriate redress.
2. The Court’s assessment
In the light of the parties’ submissions, the Court notes that there is a close connection between the Government’s preliminary objection and the merits of the complaints made by the applicants under Article 10 of the Convention. It accordingly joins the Government’s objection to the merits of the case.
B. The substance of the case
1. The parties’ submissions
The applicants complained that the censorship at Teleradio-Moldova breached their right to freedom of expression guaranteed by Article 10 of the Convention. Article 10 provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government denied that any censorship had been imposed on the applicants and accordingly submitted that no issue arose under Article 10 of the Convention.
According to the Government, the applicants had misconstrued the notion of freedom of expression. They understood it as giving them a carte blanche to say whatever they wished in the feature reports, in disregard of legal or moral norms.
The Government submitted that, contrary to all the applicants’ allegations, National Television was the most-watched television channel in the country and the evening news from Teleradio-Moldova was rated as the most popular news bulletin in Moldova with an audience of 20.4%. This was a sign that the population of Moldova liked National Television and believed it to be an independent, impartial and objective television channel.
According to a poll mentioned by the Government, the population of Moldova placed all their confidence, out of all the electronic media, in Teleradio-Moldova. This was a Company which broadcast throughout the territory of the Republic of Moldova and which ensured the people’s right to be informed in a spirit of pluralism. This implied a great amount of responsibility on the part of the State in order to ensure the free access of the population to information, complete and objective reporting on current events from the socio-political, economic and cultural life of the country and the right to freedom of expression and opinions.
The Government admitted nevertheless that some interference had taken place within the Company, notably the rectification of the texts of scenarios of certain programmes and feature reports, but considered that they were in accordance with the law, pursued a legitimate aim and were necessary in a democratic society.
The applicants maintained their submissions on the facts in respect of the exclusion of the use of certain words, personalities and political parties on television. They argued that the example given by the Government about the programme of 15 July 2004 in which several opposition leaders had taken part was an exception.
Referring to the protests organised in the centre of Chişinău by the opposition from 9 January 2002 onwards, the applicants submitted that the Government must have been misinformed by the administration of the Company, because until 25 February 2002 when the journalists started to disobey the orders of their superiors, the opposition protests had been either not reflected at all in the news or reflected in a distorted manner. From 25 February 2002 until the middle of March of the same year, while the journalists from the Company were on strike, the censorship of the news bulletins had been moderated by the administration.
Referring to the Government’s submissions according to which all the opposition parties had access to National Television, the applicants submitted various reports prepared by a non-governmental organisation, the Independent Journalism Centre, concerning the monitoring of the National Television programmes.
According to such a report for the period 1-31 August 2004, the Christian Democratic People’s Party, which was at the time one of the two parliamentary opposition Parties, never appeared on Television in programmes with a political subject during the period concerned; another parliamentary opposition party called “Moldova Democrată” had appeared only once for 95 seconds, while the ruling Communist Party had appeared seven times for a total duration of 889 seconds. The distribution of time between the Parliamentary Political Parties had been as follows: the governing Communist Party – 47.3%, the other two parliamentary parties – 0.2%.
The applicants argued that the Government had not refuted any of the submissions made by Larisa Manole, in particular her claim that she had been dismissed from the position of newscaster. They also submitted that on 2 March 2002 Larisa Manole’s programme “Nocturna” had been shut down by the administration of the Company without any explanation.
Referring to the submissions made by Corina Fusu, the applicants argued that the Government had also failed to refute any of her statements concerning the specific instances of censorship.
The Government had also failed to give any explanation about the cancellation of Mircea Surdu’s talk-show of 28 November 2003. On 20 August 2004 Mircea Surdu had requested approval for tackling the problem of the protests of the journalists from the National Radio in his “Bună Seara” talk-show. The administration of the Company had refused to approve the show and proposed that Mircea Surdu and his crew make an entertainment show instead. When Mircea Surdu and his crew refused, his talk-show had been taken off the screen between 20 August 2004 and 8 October 2004.
Referring to the statements of Dinu Rusnac, the applicants disputed the Government’s submission that the cutting of the sound during the live news bulletin of 5 March 2002 had been justified. They argued that Dinu Rusnac was entitled to read the answer of one of the parliamentary opposition leaders to accusations made by the President of the country, having regard to the fact that that leader did not have any access to the television.
Referring to the statements of Viorica Cucereanu-Bogatu, Angela Arama-Leahu and Ludmila Vasilache, the applicants argued that the Government had failed to refute any of their statements concerning the specific instances of censorship.
The applicants considered that the limitations and interferences complained of were contrary to Article 2 of Audio-visual Broadcasting Act and therefore lacked justification under Article 10 § 2 of the Convention.
The applicants referred to the positive obligations of the State to ensure through its legal system the protection of State-owned radio and television enterprises, and of journalists and the public at large from policies of editorial censorship as well as from interference by State agencies with freedom of expression. They claimed that the Government had not discharged their positive obligations in this respect because they had failed to enact legislation which would offer safeguards against abusive interferences by public authorities and which would clearly indicate the scope and the limits of the discretion enjoyed by those authorities. Moreover, the Parliament of Moldova, by refusing to modify Law no. 1320, had maintained the State’s control over the Public Company, which was precisely the cause of censorhip at this institution. By these actions and omissions the Government had also infringed the right of the population to be informed.
The applicants argued that the polls relied on by the Government, according to which National Television was the most-watched television channel in Moldova, was not indicative of the quality of its programmes but of the lack of alternative sources of information, because National Television was the only television with nation-wide coverage.
2. The Court’s assessment
The Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
For these reasons, the Court by a majority
Joins the Government’s objection of non-exhaustion of domestic remedies to the merits;
Declares the application admissible, without prejudging the merits.
T.L. Early Nicolas Bratza
MANOLE AND 8 OTHERS v. MOLDOVA DECISION
MANOLE AND 8 OTHERS v. MOLDOVA DECISION