THIRD SECTION
DECISION
Application no. 33104/15
AGONSET SH.P.K.
against Albania
The European Court of Human Rights (Third Section), sitting on 10 May 2022 as a Committee composed of:
Andreas Zünd, President,
Darian Pavli,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 33104/15) against Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 June 2015 by Agonset SH.P.K., a company registered in Albania (“the applicant company”) which was represented by Mr A. Saccucci, a lawyer practising in Rome;
the decision to give notice of the complaints concerning the applicant company’s right to freedom of expression and its right not to be discriminated against to the Albanian Government (“the Government”), represented by their Agent, Mr Artur Metani, State Advocate general, and to declare inadmissible the remainder of the application;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present case concerns inability of the applicant company to participate in a “beauty contest” procedure for the allocation of a nationwide digital broadcasting license and its inability to apply for it.
2. The applicant company was incorporated on 3 May 2012 and on 5 April 2013 Agon Channel Albania was officially launched. It obtained approval to provide satellite audio-visual program service which allowed the applicant company to broadcast its programming on licensed networks. The 2013 Audio-visual Media Act (“AVMA”) established the Audio-visual Media Authority (“AMA”) as the national regulatory and licensing body. In 2013 AMA, pursuant to section 139 of the AVMA, adopted a regulation on the licencing of national digital networks and programs through a “beauty contest procedure” (“the regulation”). According to section 4 of the regulation, only privately-owned operators, which had been granted licences previously for a nationwide coverage of territory (“national broadcasters”), were invited to participate in the procedure. In July 2013 it launched the beauty contest procedure.
3. Following an action by three national broadcasters, on 31 July 2013 the Tirana District Court ordered AMA to stay the procedure for the allocation of national digital licences until the examination of the action concerning the annulment of section 16 of the regulation. On 8 October 2014 the Tirana Administrative Court of Appeal, hearing the case as a first-instance court, pursuant to section 10 § 2 (b) of the Administrative Courts Act, decided to annul section 16 of the regulation insofar as the financial requirements to participate in the beauty contest procedure were concerned and ordered AMA to adopt a new regulation.
4. On 30 October 2014 the applicant company complained to AMA on three grounds about the beauty contest procedure launched in July 2013. Firstly, it argued that the ban on non-national broadcasters to participate in the beauty-contest procedure, despite having the technical capacities to provide for national coverage, was arbitrary and unfair. Secondly, since the national broadcasters did not cover a major part of the national territory, the applicant company alleged that AMA, through its actions, had allowed them to take advantage of their unlawfully retained position. Thirdly, the stay of the beauty contest procedure and the prolonged inactivity of AMA had prevented the regulator from allocating a digital licence to the applicant company to broadcast its digital programs.
5. On 16 April 2015 AMA adopted a new regulation on the licencing of national digital networks and programs through a beauty contest procedure and invited five national broadcasters to participate in it. No invitation had been extended to the applicant company.
6. On 19 May 2015 the applicant company re-sent its letter of 30 October 2014 to AMA, because it had gone missing. No reply has been given.
THE COURT’S ASSESSMENT
7. The applicant company complained that its right to freedom of expression under Article 10 of the Convention and its right not to be discriminated against under Article 14 of the Convention and Article 1 of Protocol No. 12 were violated because it was not invited to participate in the “beauty contest” procedure and because it could not apply for allocation of a digital broadcasting licence.
8. On 8 June 2016 the applicant company submitted further complaints under Article 6 § 2 and Article 10 of the Convention and Article 1 of Protocol No. 1 to the Convention in connection with the seizure of its equipment and other property and the institution of criminal proceeding against some of its shareholders. These complaints were not submitted on a proper application form and were not communicated.
9. The Court notes that the Government raised the objection that the applicant had not exhausted domestic remedies. Indeed, the applicant company has not lodged any complaint before the national courts.
10. The general principles concerning the exhaustion of domestic remedies and the principle of subsidiarity have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
11. In the present case the applicant company alleges that it had submitted a complaint with AMA on 30 October 2014 but received no answer to it. However, the applicant company was able to lodge an action with the Administrative Court for AMA’s failure to act on that complaint. It could have also challenged the new regulation adopted by AMA on 16 April 2015. The practice of the administrative courts submitted by the Government shows that they can review complaints concerning the legality of a regulation. The applicant company could have also raised any issue concerning the constitutionality of the applicable legislation before the Administrative Court which had the power to stay the proceedings and refer the constitutional question to the Constitutional Court.
12. As regards the applicant company’s doubts about the prospect of success of any of the remedies mentioned above, the Court has pointed out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust them (see, inter alia, Tamm v. Estonia (dec.), no. 15301/04, 2 September 2008, and Mendrei v. Hungary (dec.), no. 54927/15, § 26, 19 June 2018).
13. The Court notes that under Article 122 of the Albanian Constitution any ratified international agreement constitutes part of the internal legal system (after it is published in the Official Journal), is directly applicable in principle and has priority over the laws of the country that are incompatible with it. Under Article 17 § 2 of the Constitution, any restriction of constitutional rights and freedoms “in no case may exceed the limitations provided for in the European Convention on Human Rights”.
14. Thus, the Convention forms an integral part of the Albanian legal system, where it takes precedence over contrary statutory provisions and is directly applicable. Therefore, it was open to the applicant company in the present case to argue before the national authorities that in the circumstances of the case at issue its right to freedom of expression and its right not to be discriminated against had been violated, contrary to the relevant constitutional provisions and Articles 10 and 14 of the Convention (see Shpata v. Social Insurance Institute, Supreme Court of Albania, judgment of 22 July 2021, where the Supreme Court directly applied Article 6 of the Convention, relying on the case of Dauti v. Albania, no. 19206/05, 3 February 2009). The national authorities would thus have had the opportunity to give a reply to such arguments. In view of this, the applicant company’s argument that they had no prospect of success because part of their complaint stemmed from a statutory provision and the other part from a secondary regulation cannot be accepted (compare Habulinec and Filipović v. Croatia (dec.), no. 51166/10, § 30, 4 June 2013).
15. Had the applicant company complied with this requirement, it would have given the domestic courts the opportunity which the rule of exhaustion of domestic remedies is designed to afford States, namely to determine the issue of compatibility of the impugned national measures, or omissions to act, with the Convention and, should the applicant company nonetheless have pursued its complaints before the European Court, this Court would have had the benefit of the views of the national courts. Thus, the applicant company failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the European Court being subsidiary to theirs (see, among other authorities, Vučković, cited above, § 90). Nor does the Court discern any special reasons for dispensing the applicant company from the requirement to exhaust domestic remedies in accordance with the applicable rules and procedure of domestic law.
16. Against the above background, the Court concludes that the applicant company should have, in accordance with the principle of subsidiarity, before bringing its application to the Court, presented its arguments before the national authorities and thus given them the opportunity of remedying the alleged violations of the Convention.
17. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 June 2022.
Olga Chernishova Andreas Zünd
Deputy Registrar President