FOURTH SECTION
CASE OF NENKOVA‑LALOVA v. BULGARIA
(Application no. 35745/05)
JUDGMENT
STRASBOURG
11 December 2012
FINAL
29/04/2013
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nenkova‑Lalova v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35745/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Antoaneta Alexandrova Nenkova‑Lalova (“the applicant”), on 21 September 2005.
2. The applicant was represented by Ms S. Margaritova‑Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
3. The applicant, a radio journalist, complained, in particular, about her disciplinary dismissal from work and about the alleged unfairness and the length of the proceedings in which she had challenged that dismissal.
4. On 17 December 2009 the Court (Fifth Section) decided to give the Government notice of the complaints concerning the alleged interference with the applicant’s right to freedom of expression and the length of the proceedings in which she had challenged her dismissal. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
5. Following the re‑composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
6. The applicant was born in 1961 and lives in Sofia. She is a journalist by profession. At the relevant time she was employed by the Bulgarian National Radio (“BNR”). She is now working for the Bulgarian section of Deutsche Welle.
7. At the material time the applicant was an editor in the BNR’s “Hristo Botev” programme, working as a member of the current affairs team. She hosted a weekly radio show, “Good Day” („Добър ден”), which was broadcast each Friday morning between 9 a.m. and 11 a.m.
8. The BNR is a public broadcaster owned by the State. At the relevant time its operations were regulated by the Radio and Television Act 1996 (see paragraphs 32‑35 below).
B. The radio show on 9 October 1998
9. On Monday 5 October 1998 the editorial board of the “Hristo Botev” programme met to discuss various issues arising in relation to shows intended to be broadcast during the week. One of the programme’s editor‑in‑chief, Mr A.M., put before the board a proposal for the applicant’s show due for broadcast on 9 October 1998. The proposal was for the show to include a discussion with another journalist employed as an editor by BNR, Ms V.N. According to the minutes of the meeting, the board “reject[ed] the proposed interlocutor [Ms V.N.]. [Mr A.M. was] against and want[ed] a resolution by the [board].”
10. On the morning of Friday 9 October 1998 the applicant hosted her regular weekly show. Ms V.N. and several other journalists took part in it. They discussed a number of journalistic investigations carried out by them. They concerned, among other things, allegations of improper sales of municipal land, alleged corruption by government officials, and the alleged financing of the then ruling political party, the Union of Democratic Forces, through the unlawful diversion of money from the customs. Several of the items discussed during the show had been prepared by Ms V.N.
C. The applicant’s disciplinary dismissal
11. Later that day, 9 October 1998, two of the “Hristo Botev” programme’s editors‑in‑chief, Mr I.R. and Ms M.P., gave written explanations about the incident to the BNR director general. In his explanations Mr I.R. said that the programme’s editorial board had resolved at its meeting that Ms V.N. should not take part in the show as a host or as an interlocutor, and that that resolution had been noted in the minutes and signed by the board’s members. In her explanation Ms M.P. said that the board had rejected Ms V.N.’s participation in the show, and that Mr A.M. had noted his disagreement with that and had requested a resolution on that point, which had been taken by means of a vote.
12. The same day Mr I.R. and Ms M.P. also asked the applicant to explain, in writing and not later than 4 p.m., why she had disregarded the “resolution of the [editorial board] of 5 October [1998] which did not allow the participation of [Ms V.N.]” in the show.
13. In her reply, addressed to Mr I.R., the applicant pointed out that Ms V.N. had not taken part in the show as an interlocutor, but as one of the authors, together with three other journalists. She went on to specify that Ms V.N.’s participation had altogether lasted one hundred and thirteen minutes.
14. The same day the BNR management board met to consider “technical discipline” during the show on 9 October 1998. It found that by allowing Ms V.N. to in effect host the show the applicant had breached the editorial board’s resolution and the programme’s weekly schedule. It further found that Ms V.N. had taken part in the show in disregard of the board’s resolution, that Mr E.I., the show’s editor, had also breached the board’s resolution and the weekly schedule, and that the editors‑in‑chief, Mr A.M., Mr I.R. and Ms M.P., had failed to exercise sufficient control over the preparation and the running of the show. The board resolved to impose disciplinary punishments on all them, to be determined in line with their varying degrees of fault. It entrusted the execution of its resolution to the BNR director general.
15. On 12 October 1998 the BNR director general, relying on Article 187(3), (7) and (10), Article 188(3), Article 190 § 1 (6) and Article 330 § 2 (5) of the Labour Code 1986 (see paragraph 39 below), dismissed the applicant on disciplinary grounds. The reasons given were that she had allowed Ms V.N. to host the show in her stead, thus breaching the technical rules on the operation of radio programmes, that she had breached the programme coordination rules, that she had disregarded the editorial board’s resolution rejecting the proposal for Ms V.N. to take part in the show, and that she had breached Rule 7 of the “Hristo Botev” programme and point 1 of order no. 4 of 9 June 1998 of the programme’s director (see paragraphs 37 and 38 below).
16. The BNR director general also dismissed Ms V.N. and Mr E.I., giving similar reasons.
17. On 12 October 1998, during the regular Monday meeting of the “Hristo Botev” programme’s editorial board, Mr A.M. (see paragraph 9 above) tendered his resignation, citing, among other things, the lack of clear rules on who could and who could not host radio shows.
18. Those events sparked a vigorous reaction in the media community and prompted the publication of several articles deploring what the journalists saw as an unjustified interference with their colleagues’ freedom of expression. In a declaration of 14 October 1998 the Union of Bulgarian Journalists protested against the dismissals of the applicant, Ms V.N. and Mr E.I., saying that they were an example of “the appetite of forces alien to the journalist profession to gag it”.
D. The position of the National Radio and Television Committee
19. The National Radio and Television Committee (“the NRTC”), the chief media regulatory body in Bulgaria (see paragraph 36 below), discussed the above events at a meeting on 26 October 1998.
20. It observed that the dismissal orders did not cite any provisions of the Radio and Television Act 1996, and that there was therefore no scope for the NRTC to assess whether the radio show had complied with those provisions. On the face of it, there existed a purely employment dispute, which could be examined only by a court. However, the NRTC was competent to verify whether the dismissals were consistent with the 1996 Act and the freedom of expression which it guaranteed.
21. In the NRTC’s view, the main safeguard against encroachments on freedom of expression in the national electronic media was the existence of internal regulations and their proper implementation. The NRTC noted that at three of its previous meetings it had discussed draft regulations drawn up by the BNR management board, and had noted that they did not envisage any mechanism governing the workings of the BNR collective bodies and the journalists’ rights and obligations. The NRTC’s recommendation for those matters to be addressed had not been heeded. The lack of precise regulations was somewhat offset by the existence of rules governing the workings of individual BNR programmes. However, the rules of the “Hristo Botev” programme did not say on which legal provision they were based and pre‑dated the BNR regulations on which they were supposed to be based. Those rules did not define clearly the competencies of the journalists in their various professional capacities as authors, hosts, editors, reporters and so on. Neither the BNR regulations nor the individual programmes’ rules dealt with the powers of collective bodies such as management and editorial boards. The applicant’s and the two other journalists’ dismissals showed that there existed confusion between administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows. Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), mentioned in the dismissal orders, was an example of that, because it said that changes in a show’s content could be made solely by written order of the respective manager. The editorial board’s resolution of 5 October 1998 as to who could and who could not be an interlocutor in the show was also an example of that.
22. In conclusion, the NRTC said that it did not accept the supplanting of the pre‑ordained rules for the operation of the BNR by administrative actions and sanctions. However, that did not mean that the NRTC accepted the attempts of some journalists to place themselves above the established principles of work in the national media.
E. The proceedings against the applicant’s dismissal
23. On 1 March 1999 the applicant brought a civil claim against the BNR, seeking annulment of the order for her disciplinary dismissal, reinstatement and lost wages. She argued, among other things, that her dismissal in connection with the show on 9 October 1998 and the statements which Ms V.N. had made during the show had been in breach of Article 39 of the Constitution, section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below) and Article 10 of the Convention.
24. The Sofia District Court (Софийски районен съд) held hearings in the case on 2 June, 29 September, 3 November and 15 December 1999, and 8 March, 14 April, 2 June and 13 October 2000. It heard a number of witnesses, admitted in evidence various documents, and obtained several expert reports.
25. On 13 November 2000 the Sofia District Court set the applicant’s dismissal aside and partly allowed her claim for lost wages, awarding her 578.06 Bulgarian levs, plus interest, but refused her claim for reinstatement. It found that the rules of disciplinary procedure had been breached in that the applicant had not been properly invited to explain her actions before a competent disciplinary authority. It went on to say that the order for the applicant’s dismissal did not point to the specific disciplinary offences committed by her, save for the breach of the editorial board’s resolution of 5 October 1998. However, the minutes of the board’s meeting showed that it was far from clear whether any resolution had been adopted with regard to the participation of Ms V.N. in the show. Lastly, the court found that, despite having the duty to do so under Article 189 of the Labour Code 1986 (see paragraph 39 below), the BNR had failed to consider whether the severity of the punishment corresponded to the gravity of the applicant’s offence. The order for the applicant’s dismissal was therefore unlawful and had to be set aside. She was accordingly entitled to lost wages, plus interest. However, she could not be reinstated because the term of her employment contract had come to an end on 31 December 1999, while the judicial proceedings were pending.
26. On 22 November 2000 the applicant appealed against the refusal of her claim for reinstatement and the partial refusal of her claim for lost wages. On 19 December 2000 the BNR also appealed, and on 29 January 2001 it rectified its appeal pursuant to instructions by the court. The Sofia City Court (Софийски градски съд) held two hearings. The first took place on 15 June 2001. The second, initially listed for 7 December 2001, was adjourned because on that date the court’s building was sealed off by the police due to a bomb threat, and took place on 8 May 2002.
27. On 9 July 2002 the Sofia City Court quashed the lower court’s judgment and refused the applicant’s claims. It found that the applicant had been duly asked for an explanation by a competent disciplinary authority – her line manager – prior to the imposition of her punishment. The court went on to say that the order for the applicant’s dismissal had been issued in line with the applicable requirements, had indicated the offender, the offence, the punishment, and the legal provisions on which it had been based. Moreover, the applicant had in fact committed the disciplinary offence alleged against her. By allowing Ms V.N. to in fact host her show for one hundred and thirteen minutes the applicant had not only breached employment discipline but had also grossly violated basic rules of her work, such as compliance with the resolutions of the editorial board. By trying to present Ms V.N. as a “co‑author” instead of an “interlocutor”, she had tried to circumvent the editorial board’s resolution. Under Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), any changes in the content or in the organisation of shows that had already been approved could be made only by written decision of the appropriate manager. Therefore, after the editorial board had approved the show on 9 October 1998, the applicant should have informed it about the intended participation of Ms V.N. as a co‑author. By failing to do so, she had grossly breached the rules of the “Hristo Botev” programme and had accordingly correctly been given the harshest disciplinary punishment – dismissal.
28. On 17 September 2002 the applicant appealed on points of law. She raised several points, the bulk of which concerned alleged breaches of the rules of disciplinary procedure. She also asserted, based on a number of arguments concerning the lawfulness of the editorial board’s decision of 5 October 1998 and the lawfulness of the order for her dismissal, that she had not committed a disciplinary offence. One of those arguments was framed as follows:
“Disregarding ... [my] arguments concerning the lack of duly adopted rules governing the workings of the ‘Hristo Botev’ programme at the time of [my] dismissal, as well as the arguments concerning the unlawfulness of point 7 of those Rules [see paragraph 37 below] on account of its being contrary to section 4(1) and (2) of the Radio and Television Act [1996], Article 39 of the Constitution of the Republic of Bulgaria [see paragraph 31 below] and Article 10 of the [Convention], the [lower] court came to the erroneous conclusion that [I] had broken point 7 of the Rules and that [my] punishment had therefore been lawful.”
29. After hearing the appeal on 21 February 2005, in a judgment of 23 March 2005 (реш. № 346 от 23 март 2005 г. по гр. д. № 3642/2002 г., ВКС, ІІІ г. о.) the Supreme Court of Cassation (Върховен касационен съд) upheld the lower court’s judgment. In its view, that court’s ruling that the order for the applicant’s dismissal had been lawful corresponded to the evidence, which showed that the order had been issued by a competent disciplinary authority in line with the applicable rules of procedure and had been duly reasoned. The court further found that the decision to dismiss the applicant had been correct. By knowingly failing to comply with the decision that Ms V.N. should not take part in her show, the applicant had breached employment discipline within the meaning of the Labour Code 1986 (see paragraph 39 below). It was true that the BNR’s internal rules had not envisaged an editorial board, but it could not be overlooked that the meeting on 5 October 1998 had been attended by Mr I.R. and Ms M.P., both of whom had been entrusted by the directors general of the BNR and the “Hristo Botev” programme with managerial functions. Mr I.R. and Ms M.P. had indicated that they did not agree with Ms V.N.’s intended participation in the applicant’s show. Although the applicant had been aware of that, she had allowed Ms V.N. to take part in her show, thus breaching employment discipline within the meaning of Article 190 § 1 (6) of the Labour Code 1986 (see paragraph 39 below). The court went on to say that the applicant should have also been aware of the orders of the directors general of the BNR and of the “Hristo Botev” programme, which had been public and available upon request. Lastly, the court held that the applicant’s dismissal had not been contrary to Article 10 of the Convention, because that Article allowed the licensing of broadcasting enterprises. Therefore, neither its letter nor its spirit proscribed the existence of disagreements between those entrusted with the task of framing a radio’s programme and those in charge of current and operative issues. The same went for Article 39 of the Constitution and section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below).
F. The annulment of Ms V.N.’s and Mr E.I.’s dismissals
30. Ms V.N. and Mr E.I., who were disciplinarily dismissed together with the applicant (see paragraph 16 above), also challenged their dismissals in court. It appears that Ms V.N.’s dismissal was eventually set aside in a judgment which became final on 10 July 2008, and that Mr E.I.’s dismissal was also eventually set aside.
II. RELEVANT DOMESTIC LAW
A. The Constitution
31. The relevant provisions of the 1991 Constitution read as follows:
Article 39
“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.
2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”
Article 40 § 1
“The press and the other mass media shall be free and not subject to censorship.”
Article 41 § 1
“Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals.”
B. The Radio and Television Act 1996
32. At the relevant time the operations of the BNR were governed by the Radio and Television Act 1996. In the end of November 1998 it was superseded by the Radio and Television Act 1998, which is still in force.
33. Section 4 of the 1996 Act provided that the creation and the broadcasting of radio programmes had to comply with, among others, the principles of freedom of expression and pluralism in the expression of opinion.
34. Section 46(1) provided that the BNR was a public organisation engaging in radio activities of national importance. It broadcast one international and two national programmes (section 47(1)). It was a legal person based in Sofia (section 46(2)), and an independent organisation; other bodies and authorities could not interfere with its activities except where provided for by law (section 48). Its governing bodies were the management board, the programme board and the director general (section 50(1)).
35. The editorial rights and duties of journalists employed by the BNR were to be governed by rules adopted by the BNR management board, following consultation with the BNR journalists’ trade unions (section 49(2)). Journalists’ rights could not be restricted on the basis of their political affiliations (section 49(1)).
36. The NRTC was an independent body responsible for protecting freedom of expression, the independence of radio and television operators and the interests of the audience (sections 8(2) of the 1996 Act). It was entrusted with, among other things, supervising the activities of radio and television broadcasters (section 15(1)), and with electing and dismissing the BNR director general (section 15(5)).
C. The rules and internal orders of the “Hristo Botev” programme
37. Rule 7 of the BNR “Hristo Botev” programme, as in force at the relevant time, provided that any changes in the content, the organisation or the technology of a radio show could be effected only by order of the respective manager.
38. Point 1 of order no. 4 of 9 June 1998 of the director of “Hristo Botev” provided that the hosts of live radio shows had to appear not less than twenty minutes in advance with a scenario prepared in advance and indicating the time bands and the connection of outside sources (such as mobile radio stations and telephones). They also had to acquaint the sound editor with the show’s scenario and organisation and give the editor timely and specific instructions for any necessary changes.
D. The Labour Code 1986
39. The disciplinary punishment of employees is regulated by Articles 186‑90 of the Labour Code 1986; Articles 192‑98 govern the applicable procedure. By Article 186, a failure to comply with one’s employment duties amounts to a breach of employment discipline. Article 187 sets out a non‑exhaustive list of such breaches, which may consist in a failure to comply with technical or technological rules (point 3), a failure to comply with a lawful order of one’s employer (point 7), or a failure to comply with other duties stemming from statutes, statutory instruments, internal regulations or collective labour agreements, or with duties laid down upon hiring (point 10). Article 188 provides that the disciplinary punishments available are a reprimand, a dismissal warning and dismissal. In choosing which of those punishments to impose, the employer must take into account the gravity of the breach, the circumstances in which it was made, and the employee’s conduct (Article 189 § 1). Article 190 § 1 (6), as in force at the relevant time (currently Article 190 § 1 (7)), provided that an employee could be disciplinarily dismissed for serious breaches of employment discipline. Article 330 § 2 (5), as in force at the relevant time, provided that in case of disciplinary dismissal an employer was to terminate the employment without notice.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
40. The applicant complained under Article 10 of the Convention that her disciplinary dismissal, ostensibly on technical grounds, had in reality been a sanction for the way in which she had exposed corrupt practices during her radio show on 9 October 1998. She submitted that that dismissal had been unlawful, had not pursued a legitimate aim and had not been necessary in a democratic society.
41. Article 10 of the Convention 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.”
A. The parties’ submissions
1. The Government
42. The Government submitted that the case concerned an employment dispute and the applicant’s dismissal for breaching employment discipline, and that there had therefore been no interference with her freedom of expression. They pointed out in that connection that the Court had many times said that it was not its task to act as a court of appeal from the national courts or to re‑examine the merits of cases before those courts. It could not therefore re‑examine points touching upon the lawfulness of the order for the applicant’s dismissal.
43. In the alternative, the Government submitted that any interference with the applicant’s right to freedom of expression had been prescribed by law – Article 330 § 2 (5) of the Labour Code 1986 – and based on clear and foreseeable rules. The applicant had been aware of the BNR management’s decision, but had deliberately chosen to disregard it. She must have known that such conduct could have attracted serious sanctions. The interference had therefore been prescribed by law and had sought to protect the reputation and rights of others.
44. The interference had also been necessary in a democratic society. It was clear that the applicant had committed a disciplinary offence. The sanction had been proportionate to the gravity of that offence. The applicant had had a domestic remedy allowing her to challenge her dismissal in court, and had availed herself of that opportunity. It was also important to point out that the BNR management had not voiced disagreement with the topics intended to be included in the applicant’s show, had not tried to ban the airing of any material – such as those concerning alleged corruption and the customs –, and had not sought to impose any changes to the show’s script with a view to censoring it. The show had not been taken off the air. The editorial board’s resolution of 5 October 1998 had prohibited only the intended participation of Ms V.N. in the show, for reasons which could be deduced from the ensuing explanations of Mr I.R. and Ms M.P. to the BNR director general, as well as from the position taken by the NRTC. The BNR was a national media which had a large number of listeners, traditions and authority, and no real competitors in the sphere of political journalism on radio. Such a media had to abide by certain internal rules enforced by its management, and decisions as to the content of its shows could not be taken single‑handedly. Contrary to what she was alleging, the applicant had been acquainted with the editorial board’s resolution that Ms V.N. should not take part in her show, which had apparently been adopted after a vote. All of that showed that the conflict between the applicant and the BNR management was rather the result of differences of principle, and did not concern the journalistic investigations conducted by Ms V.N. and the three other journalists. The applicant had in effect allowed Ms V.N. to take over her show, thus circumventing the editorial board’s resolution. That resolution could not be regarded as a form of censorship because it had not proscribed the discussion of any topics or changes to the substantive content of the show. It had merely barred Ms V.N. – not the applicant or the other journalists who had taken part in the journalistic investigations discussed during the show – to be put on air.
2. The applicant
45. The applicant submitted that her dismissal had been the result of the airing in her show of the results of journalistic investigations that revealed unpleasant facts about the then ruling political party. There had been a direct causal link between her show and the ensuing disciplinary measures against her. Those measures had infringed her freedom of expression. She had had the right to select the persons who were to take part in the show, and had not breached the technical rules or the weekly schedule, because she had obtained the agreement of the editor in charge, who had approved the show’s script, topics and participants. Her disciplinary dismissal had had nothing to do with the breaches set out in the order of the BNR director general, and the ensuing dispute had been an employment one only ostensibly, while in reality having a deeply political subtext. That assessment had been shared by the entire journalistic guild, and had been reflected in declarations made by the Union of Bulgarian Journalists and other organisations. Even the Supreme Court of Cassation had, by saying in its judgment in the applicant’s case that Article 10 of the Convention allowed limitations on the exercise of freedom of expression, acknowledged that the applicant’s dismissal had related to the exercise of her freedom of expression. That dismissal had been a direct result of the exercise of the applicant’s profession as a journalist and of the disclosure of unpleasant facts about the then ruling political party.
46. The applicant went on to argue that her dismissal had not been prescribed by law. The disciplinary proceedings against her had not complied with the Labour Code 1986 – a fact established by the first‑instance court – because she had not been properly asked to give explanations for her conduct and because the persons who had taken part in the proceedings had not been duly constituted disciplinary authorities. The alleged breaches of discipline to which the Government alluded in their observations had not been laid down in any statute or internal rule of the BNR; they had been breaches of non‑existent rules issued by bodies that by law did not exist. As evident from the minutes of its meeting of 5 October 1998, the editorial board had not formally resolved to bar Ms V.N. from taking part in the applicant’s show. However, even if it had done so, its resolution would have amounted to censorship and would have been invalid. The NRTC had found that the BNR’s internal rules had not clearly set out the powers of its collective bodies, and those rules did not identify clearly the roles of the various persons who were to take part in radio shows. There had therefore been no clear legal basis for holding the applicant liable.
47. The applicant also challenged the Government’s assertion that the measures taken against her had sought to protect the reputation and rights of others. It was unclear who those others were and what form of protection they needed. Her entire show had been devoted to informing the public about abuses committed by persons close to the then ruling political party. The public was entitled to know about the sale of municipal plots at reduced prices, abuses and the diversion of funds in the customs, and the strange restitutions of prime properties. The Government’s assertion was just evidence of the State’s wish to interfere with the free dissemination of information of current public interest. The applicant had not encroached on any of the interests protected under Article 10 § 2 of the Convention, and there had therefore been no need to take any measures against her.
48. Lastly, the applicant submitted that the measures taken against her had not been necessary in a democratic society. Contrary to what the Government suggested, there had been no formal resolution of the editorial board – which was anyway not a duly constituted body – as to who should or should not take part in her show, and no vote had been taken on that issue, as was evident from the minutes of the board’s meeting. An expert report obtained by the first‑instance court showed that the applicant had remained the show’s host.
B. The Court’s assessment
1. Admissibility
49. In as much as the Government asserted that the case concerned a purely employment dispute and the applicant’s dismissal had not amounted to an interference with her rights under Article 10 of the Convention, the Court considers that this issue is closely linked to the substance of the applicant’s complaint under that provision and is more appropriately addressed at the merits stage. The Court further considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
50. The Court starts by observing that the applicant’s status as an employee of the BNR did not deprive her of the protection of Article 10 of the Convention (see Manole and Others v. Moldova, no. 13936/02, § 103, 17 September 2009). Far from it – having regard to the applicant’s position as a journalist, any interference with her freedom of expression calls for close scrutiny on the part of the Court. However, to determine whether the applicant’s rights under Article 10 have been infringed, the Court must first ascertain whether her disciplinary dismissal amounted to an interference – in the form of a “formality, condition, restriction or penalty” – with the exercise of her freedom of expression, or whether it lay within the sphere of the right to employment, a right not secured in the Convention or its Protocols. To answer that question, the Court needs to determine the scope of the measure by putting it in the context of the facts of the case and of the relevant legislation (see Glasenapp v. Germany, 28 August 1986, § 50, Series A no. 104; Kosiek v. Germany, 28 August 1986, § 36, Series A no. 105; Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999‑VII; Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004; and Otto v. Germany (dec.), no. 27574/02, 24 November 2005).
51. The Court considers that the reasons given for the applicant’s dismissal should be at the centre of its attention when carrying out the above inquiry. However, the measure taken against the applicant has to be seen also in the light of the subsequent proceedings in which she challenged that dismissal.
52. The Court observes, firstly, that the applicant’s dismissal was based on her failure to heed an editorial decision concerning an issue of internal organisation of the BNR, namely the choice of BNR employees who were to take part in a radio show and their respective roles. The Court secondly notes that the focus of the ensuing proceedings was on whether that dismissal had complied with the substantive and procedural rules governing the disciplinary liability of employees. However, the applicant also formulated an allegation that her dismissal had been in breach of her right to freedom of expression, and the Supreme Court of Cassation dealt, albeit briefly, with that argument (see paragraphs 23, 28 and 29 in fine above).
53. It is therefore open to question whether the applicant’s dismissal lay within the sphere of the right to employment or amounted to an interference with her right to freedom of expression. Nonetheless, the Court is prepared to proceed on the basis that Article 10 of the Convention is applicable to the facts of the case, and that the applicant’s dismissal did amount to an interference with her rights under that provision. It must therefore be determined whether that interference was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 thereof, and was “necessary in a democratic society”.
54. The Court finds that the interference was “prescribed by law” – the relevant provisions of the Labour Code 1986 (see paragraph 15 above). In so far as the applicant claimed, based on the findings of the first‑instance court which dealt with her legal challenge against her dismissal, that the disciplinary proceedings against her had failed to comply with the procedural requirements laid down in that Code, the Court observes that the judgment of that court was later overturned, in the context of the same proceedings and without having acquired legal force, by higher courts at two levels of jurisdiction, and that those higher courts found that the disciplinary proceedings against the applicant had been in line with the relevant legal provisions (see paragraphs 27 and 29 above). The Court observes in this connection that it is primarily for the national courts to interpret and apply domestic law (see, among many other authorities, Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 58, Series A no. 239, and Casado Coca v. Spain, 24 February 1994, § 43, Series A no. 285‑A). Although the Court can and should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 10 of the Convention, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law except in cases of flagrant non‑observance or arbitrariness (see, mutatis mutandis, Weber and Saravia v. Germany (dec.), no. 54934/00, § 90, ECHR 2006‑XI, and Goranova‑Karaeneva v. Bulgaria, no. 12739/05, § 46, 8 March 2011). The Court does not consider that the Sofia City Court’s and the Supreme Court of Cassation’s judgments were arbitrary. Contrary to the applicant’s averment, those courts explained, albeit briefly, why they were of the view that she had acted in breach of employment discipline within the meaning of the relevant provisions of the Code (see paragraphs 27 and 29 above), and their rulings on this point cannot be regarded as manifestly erroneous or arbitrary. In view of these considerations, the Court concludes that the interference was lawful in terms of Bulgarian law. The applicant has not sought to argue that that the relevant provisions of the Labour Code 1986 were not sufficiently accessible or foreseeable.
55. The Court is further satisfied that the measure against the applicant, in as much as it was intended to ensure that the broadcasts of the BNR were in line with the editorial decisions taken by the radio’s governing bodies in the interests of listeners and with the requirements of balanced reporting expected of a public broadcasting organisation, sought to protect the rights of others.
56. It remains to be established whether the interference was “necessary in a democratic society”.
57. More specifically, the Court has to determine whether the sanction imposed on the applicant – disciplinary dismissal – was proportionate in relation to the circumstances of the case. In dealing with this point, the Court will take particular account of the reasons given for the applicant’s punishment, the context in which that punishment was imposed, and the applicant’s “duties and responsibilities” as a journalist in a public broadcasting organisation. The Court will also have regard to the general principles concerning pluralism in the audiovisual media, which were recently set out in paragraphs 95‑102 of its judgment in the case of Manole and Others (cited above) and paragraphs 129‑34 of its judgment in the case of Centro Europa 7 S.R.L. and di Stefano v. Italy ([GC], no. 38433/09, ECHR 2012‑...). It will also have regard to the right of public broadcasters to set their editorial policy, in line with the public interest.
58. Bearing in mind all of the above factors, the Court finds that the applicant’s dismissal cannot be regarded as a disproportionate measure, for two reasons.
59. First, the applicant’s dismissal was based on her wilful disregard of an editorial decision concerning an issue of internal organisation of the BNR, namely the choice of BNR employees who were to take part in a radio show (see paragraphs 11‑13 and 15 above). Indeed, when taking disciplinary action against the applicant the BNR management board and the BNR director general specifically noted that she had in effect allowed Ms V.N. to host her show in her stead (see paragraphs 14 and 15 above) Neither the editorial decision nor the order for the applicant’s dismissal mentioned or imposed any limitations on the topics to be discussed during her show, or on the substantive content or manner of presentation of the information broadcast during the show (contrast, mutatis mutandis, Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262; Brind and Others v. the United Kingdom, no. 18714/91, Commission decision of 9 May 1994, unreported; and Fuentes Bobo v. Spain, no. 39293/98, § 45, 29 February 2000). The Court cannot therefore agree with the applicant that her dismissal was intended to prevent the dissemination of information of public interest. The situation in the present case thus appears far removed from that obtaining in Manole and Others (cited above, §§ 104‑06 and 112), where the Court was faced with a situation where a public broadcasting organisation was systematically required to avoid certain topics considered harmful to the Government and to devote a disproportionate amount of airtime to reporting on the acts of members of the ruling political party, with little or no coverage of the acts and views of opposition parties. By contrast, in the present case the applicant’s dismissal appears to have been a result of her failure to abide by the “duties and responsibilities” undertaken as a journalist employed by a public broadcasting organisation. Her capacity as such a journalist did not automatically entitle her to pursue, unchecked, a policy that ran counter to that outlined by her employer, to flout legitimate editorial decisions taken by the BNR’s management and intended to ensure balanced broadcasting on topics of public interest, or to have unlimited access to BNR’s air. There is nothing in the facts of the present case to suggest that the decisions of the BNR’s management in relation to the applicant’s show were taken under pressure from the outside or that the BNR’s management was subject to outside interferences.
60. Secondly, employers generally enjoy a broad discretion in determining the sanction that is best adapted to breaches of employment discipline (see, mutatis mutandis, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 75, ECHR 2011‑...). In the instant case, the BNR management board entrusted that decision to the BNR director general, instructing him to take into account the degree of the applicant’s fault (see paragraph 14 in fine above). The director general came to the view that the appropriate disciplinary punishment was dismissal (see paragraph 15 above). His decision in that respect was subjected to scrutiny by the domestic courts. The first‑instance court found that he had failed to consider whether the severity of the punishment corresponded to the gravity of the applicant’s offence (see paragraph 25 above). The appellate and the cassation courts were, on the contrary, satisfied that the gravity of the disciplinary breach committed by the applicant was sufficient to warrant her dismissal (see paragraphs 27 and 29 above). The Court, for its part, observes that it is true that dismissal by way of disciplinary sanction is a severe measure (see Fuentes Bobo, cited above, § 49). However, it cannot be overlooked that it was prompted by concrete and deliberate actions on the part of the applicant – who in effect allowed Ms V.N. to host her show in her stead, letting her speak for one hundred and thirteen minutes out of one hundred and twenty (see paragraphs 13‑15 above) – which showed that her employer could not trust her to perform her duties in good faith (contrast Vogt v. Germany, 26 September 1995, § 60, Series A no. 323, and Wille v. Liechtenstein [GC], no. 28396/95, § 69, ECHR 1999‑VII). The Court has already had occasion to observe, although in a different context, that the national authorities may be justified in insisting that employment relations should be based on mutual trust (see Palomo Sánchez and Others, cited above, § 76); this is even more so when it comes to journalists employed by a public broadcasting organisation. It should be noted in this connection that BNR, as a public broadcaster, bore responsibility for statements made on air (see, mutatis mutandis, Radio France and Others v. France, no. 53984/00, § 24, ECHR 2004‑II).
61. In sum, the Court does not consider that the applicant has established that her dismissal was intended to stifle her freedom to express herself rather than enable the public broadcasting organisation by which she was employed – the BNR – to ensure the requisite discipline in its broadcasts, in line with its “duties and responsibilities” under Article 10 of the Convention.
62. There has therefore been no violation of that provision.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
A. The alleged bias of the courts
63. The applicant complained under Article 6 § 1 of the Convention that the Sofia City Court and the Supreme Court of Cassation had been biased, because they had wrongly assessed the evidence, had grossly misconstrued the applicable law, including Article 10 of the Convention, and had not approached the case as neutral adjudicators, instead seeking to justify her dismissal.
64. Article 6 § 1 of the Convention provides, in so far as relevant:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
65. The Court considers that although the applicant sought to frame this complaint as a bias issue, it is in effect of a fourth‑instance character. Her criticism is directed against the manner in which the Sofia City Court and the Supreme Court of Cassation established the facts and construed and applied the law. However, the Court is not a court of appeal from the national courts, and it is not its function to deal with errors of fact or law allegedly committed by those courts (see, among other authorities, Rumyana Ivanova v. Bulgaria, no. 36207/03, § 39, 14 February 2008). The Court does not consider that the Sofia City Court’s and the Supreme Court of Cassation’s judgments were arbitrary, and reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (ibid., § 43).
66. The Court would also point out that according to its case‑law the fact that a judge hearing a litigant’s case rules against him or her does not in itself constitute proof of bias (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003‑VIII; Bracci v. Italy, no. 36822/02, § 52, 13 October 2005; Previti v. Italy (dec.), no. 45291/06, § 258, 8 December 2009; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). The Sofia City Court and the Supreme Court of Cassation gave reasons for their judgments, and those reasons do not evince any bias against the applicant (contrast Kyprianou v. Cyprus [GC], no. 73797/01, § 130, ECHR 2005‑XIII).
67. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The length of the proceedings
68. The applicant complained under Article 6 § 1 of the Convention of the length of the proceedings in which she had challenged her dismissal.
69. Article 6 § 1 of the Convention provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ...”
70. The Government submitted that there had been no delays in the examination of the applicant’s case by the first‑ and the second‑instance courts. The delay in the proceedings before the Supreme Court of Cassation had been entirely due to the large number of cases pending before that court at the time.
71. The applicant submitted that the proceedings in her case had lasted longer than permissible under Bulgarian law, which laid down strict time‑limits on the duration of employment proceedings. The Government had not explained why the proceedings before the second‑instance court, which had not gathered any fresh evidence, had taken more than a year and a half. The reason proffered for the delay before the Supreme Court of Cassation was not valid either.
72. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
73. The proceedings lasted in total six years and almost one month, for three levels of jurisdiction. There were no identifiable delays in the proceedings before the first‑instance court. The applicant criticised the second‑instance court for taking more than a year and a half to dispose of the case. The Court is unable to agree that that period was excessive. It notes that a hearing listed before that court for 7 December 2001 had to be adjourned on account of a bomb threat, for which the authorities cannot be held responsible (see paragraph 26 above). It is true that the period of adjournment – approximately six months – could have been shorter, but the Court does not consider that it in itself rendered the length of the proceedings unreasonable. Nor does the Court consider that the national courts’ failure to comply with the domestic‑law time‑limits on the duration of employment proceedings automatically rendered the length of the proceedings unreasonable. Failure to abide by time‑limits prescribed by domestic law does not in itself contravene the “reasonable time” requirement of Article 6 § 1 of the Convention (see Goranova‑Karaeneva, cited above, § 73, with further references). That said, the Court notes that recently, in Nikolov and Others v. Bulgaria (nos. 44184/05, 22250/06 and 37182/07, §§ 37‑42, 21 February 2012), it found that delays of about two years in the examination of appeals on points of law by the Supreme Court of Cassation, in proceedings in which the applicants had been challenging their dismissals from work, had been in breach of the reasonable‑time requirement, because a very high level of diligence was required of the authorities in such cases in view of the stakes involved. The Court sees no reason to hold otherwise in the present case, where the Supreme Court of Cassation took almost two and a half years to dispose of the applicant’s appeal on points of law.
74. There has therefore been a violation of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
75. The applicant complained under Article 1 of Protocol No. 1 that by refusing her claims, which had been allowed at first instance by the Sofia District Court, the Sofia City Court and the Supreme Court of Cassation had deprived her of the lost wages to which was entitled.
76. Article 1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
77. The Court observes that although the Sofia District Court ruled partly in favour of the applicant and awarded her lost wages, plus interest, its judgment was subsequently overturned, in the context of the same proceedings and without having acquired legal force, by higher courts at two levels of jurisdiction. The Court, which has only limited power to deal with alleged errors of fact or law committed by the national courts, finds no appearance of arbitrariness in the way in which those higher courts decided the applicant’s case. The Sofia District Court’s judgment did not therefore give rise to a possession within the meaning of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 59, ECHR 2004‑IX). A judgment which is not final but subject to review by two superior courts cannot be regarded as giving rise to a debt that is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §§ 60‑61, Series A no. 301‑B).
78. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
79. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
80. The applicant claimed 10,000 euros (EUR) in compensation for non‑pecuniary damage. She submitted that following her dismissal she had for two years been unable to find employment, with many media owners being reluctant to hire her while the political party that she had criticised was still in power, and had fallen into social isolation. She had felt unjustly punished for having carried out her duty as a journalist. The lengthy proceedings against her dismissal, with all the insecurity entailed by them, had added to her frustration. The memory of the impugned events and of the ensuing long period of unemployment was still haunting her.
81. The applicant also claimed 1,477 Bulgarian levs (BGR) (the equivalent of EUR 755.18) in compensation for pecuniary damage. She submitted that this was the amount of compensation awarded to her by the Sofia District Court for loss of wages, plus interest.
82. The Government submitted that the applicant’s claim in respect of non‑pecuniary damage was exorbitant, and that any award made by the Court under this head should not exceed the awards made in previous similar cases. They left it to the Court to determine in equity the award in respect of pecuniary damage.
83. The Court observes that in the present case an award of just satisfaction can be based only on the breach of the reasonable‑time requirement of Article 6 § 1 of the Convention. As the Court finds no causal link between that breach and the pecuniary damage allegedly suffered by the applicant, it makes no award under this head. By contrast, the Court considers that the applicant must have sustained some non‑pecuniary damage on account of the breach, and that that damage cannot be made good solely by the finding of a violation. Ruling in equity, as required under Article 41 of the Convention, the Court awards the applicant EUR 585, plus any tax that may be chargeable.
B. Costs and expenses
84. The applicant sought reimbursement of EUR 3,750 incurred in fees for sixty‑two and a half hours of work by her legal representative on the proceedings before the Court, at the rate of EUR 60 per hour. She submitted a fee agreement and a time sheet, and requested that any sum awarded by the Court under this head be made directly payable to her legal representative. The applicant also sought reimbursement of BGR 280 for the translation of documents and BGR 40 for postage. In support of those claims she presented a contract for translation services and postal receipts.
85. The Government submitted that the claim was exorbitant. They contested the number of hours spent by the applicant’s legal representative on the case, and suggested that in assessing the quantum of the award the Court should have regard to the realities in Bulgaria and its past practice.
86. According to the Court’s case‑law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum. When considering a claim in respect of costs and expenses for the proceedings before it, the Court is not bound by domestic scales or standards (see, as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 125, 25 November 2010).
87. Having regard to the materials in its possession, the above considerations, and the facts that the bulk of the application was declared inadmissible, the Court finds it reasonable to award the applicant EUR 500, plus any tax that may be chargeable to her, in respect of her legal costs. This sum is to be paid directly to the applicant’s legal representative.
88. Concerning the claim for other expenses, the Court, noting that the applicant has provided documents supporting the claim and that the Government have not contested it, considers it reasonable to award the entire sum claimed by the applicant. It therefore awards the applicant BGR 320, plus any tax that may be chargeable to her.
C. Default interest
89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares, by a majority, the complaint concerning the alleged interference with the applicant’s right to freedom of expression admissible;
2. Declares unanimously the complaint concerning the length of the proceedings in which the applicant challenged her dismissal admissible and the remainder of the application inadmissible;
3. Holds, by four votes to three, that there has been no violation of Article 10 of the Convention;
4. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the proceedings in which the applicant challenged her dismissal;
5. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 585 (five hundred and eighty‑five euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 500 (five hundred euros) and BGR 320 (three hundred and twenty Bulgarian levs), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the former sum to be paid directly to the applicant’s legal representative, Ms S. Margaritova‑Vuchkova;
(b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EarlyIneta Ziemele
RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Ziemele, Nicolaou and Bianku is annexed to this judgment.
I.Z.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGES ZIEMELE, NICOLAOU AND BIANKU
While we agree with the conclusion that there has been a breach of Article 6 § 1 of the Convention on account of unreasonable length of proceedings in the applicant’s case, to our regret we are unable to agree with the opinion of the majority that there has been no violation of Article 10 of the Convention.
The majority accepts that the applicant, as a journalist employed by the BNR, a public broadcaster, enjoys the protection of Article 10 of the Convention (see the reference in paragraph 50 of the judgment to Manole and Others v. Moldova, no. 13936/02, § 103, 17 September 2009). Therefore, any interference with her employment requires the closest scrutiny on the part of the Court, involving all the circumstances surrounding the dismissal of the applicant. The following are the reasons for our concern over her dismissal and for our view that there has been a violation of Article 10.
First, we recall the fact that the BNR is a public broadcaster. The place of public broadcasting in a democratic society is of special importance. The Court highlighted this in paragraph 101 of Manole and Others (cited above):
“Where a State does decide to create a public broadcasting system, it follows from the principles outlined above that domestic law and practice must guarantee that the system provides a pluralistic service. Particularly where private stations are still too weak to offer a genuine alternative and the public or State organisation is therefore the sole or the dominant broadcaster within a country or region, it is indispensable for the proper functioning of democracy that it transmits impartial, independent and balanced news, information and comment and in addition provides a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed.” [see also § 107 of the same judgment].
In Manole and Others the Court took into consideration several Council of Europe documents which deal in depth with this issue,[1] and we note their further development since that judgment[2]. Most of these documents underline the importance of a proper legislative and regulatory framework for the functioning of public media enterprises for the purposes of Article 10 of the Convention. The Declaration of the Committee of Ministers on Public Service Media Governance provides:
“Public service media need to show that their own governance systems subject any decision to proper scrutiny, while ensuring that any external oversight (by governments or independent regulators) do not undermine the organisation’s independence. As is also the case for public service media undergoing a transition from State to public institutions, it is essential to define the necessary levels of independence from the State. This should be balanced by accountability to a wide range of stakeholders and coupled with a culture that is open to new ideas and which demonstrates high levels of professional integrity.”
In the present case, the organisation and the functioning of the BNR were open to doubt. The first to raise these concerns was the NRTC, the chief media regulatory body in Bulgaria. As indicated in paragraph 21 of the judgment, it pointed out that were no mechanisms governing the functioning of the BNR collective bodies and journalists’ rights and obligations and that there was “confusion between the administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows”.
While in making a distinction with the above‑mentioned Manole and Others case, the majority sees “... nothing in the facts of the present case to suggest that the decisions of the BNR’s management in relation to the applicant’s show were taken under pressure from outside”, we think that there is ground for concern, also expressed by the NRTC as indicated above, that the functioning of the BNR and especially the manner in which decisions relevant to editorial choices of journalists hosting programmes were dealt with, did not offer the necessary safeguards. As the Court stated in Manole and Others:
“... it was, as set out in the above‑mentioned Guidelines developed by the Committee of Ministers, essential to put in place a legal framework which ensured TRM’s independence from political interference and control.”
It is against this background of lack of a precise framework for the functioning of the BNR and for its independence, which obviously reflected on the rights and duties of the journalists in their relationship with the public television employer, that the dismissal of the applicant must be viewed.
Secondly, although the majority is ready to accept that in the applicant’s case Article 10 of the Convention is applicable (see paragraph 53 of the judgment), it does not attribute to this the importance that we think is necessary in the context of disputes surrounding the activity and the performance of journalists. Notwithstanding the fact that these are regulated by labour legislation, they do require particular attention so as not to render nugatory or to substantially diminish the freedom of expression protected by Article 10 of the Convention. Disputes surrounding journalistic activities should not be viewed only or mainly in terms of labour legislation which, although significant, does not constitute the whole picture. It is equally significant to have regard to the particular feature at play in the professional activity of the journalist, bearing in mind his or her role in conveying ideas and opinions. That is why we consider important that in cases of dismissal or other measures taken by employers against journalists, particular attention should be given to rights protected by Article 10 of the Convention.
In the case before us the domestic authorities have had no regard at all to this aspect. The Bulgarian courts considered the issue as only a labour dispute and did not take into account the problems in the functioning of the BNR and the rights and duties of the journalists employed by it. There was an absolute lack of an Article 10 analysis at domestic level. This is crucial to our way of thinking. In the absence of such analysis the majority prefers to undertake this task itself. We remain firmly of the opinion that it is not for this Court to embark upon such analysis when this has not taken place at domestic level and its elements were not examined and balanced by the authorities when deciding the case.
Thirdly, in the absence of an Article 10 analysis at domestic level, it is not in the circumstances possible to uphold the proportionality of the measure. Indeed, in our opinion the measure of dismissal has been quite extreme. It does not seem that other measures or sanctions were considered by the BNR Director or the BNR Management Board. The majority has relied on the case of Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011‑...) for finding the measure proportionate (see paragraph 60 of the judgment). The relevance of that case, whose circumstances were clearly different from those in the present case, seems to us very limited. In the present case we are talking firstly about journalistic activity and, secondly, about activity which did not entail conduct that was offensive in any way. The act attributed to the applicant taken within the context of rather unclear division of responsibilities as concerns editorial choices within a given programme does not appear to have been so grave or so far‑reaching in its effects as to irrevocably have breached the mutual trust between employer and employee.
We would therefore conclude that in this case there has been a violation of the applicant’s rights under Article 10 of the Convention.
[1]. See the reference in paragraph 102 of the Manole and Others judgement to Resolution No. 1 on “The Future of Public Service Broadcasting” (1994), to Recommendation no. R(96)10 on “The Guarantee of the Independence of Public Service Broadcasting” (1996), and to the Appendix to Recommendation Rec(2000)23 on “The Independence and Functions of Regulatory Authorities for the Broadcasting Sector”
[2]. See Recommendation CM/Rec(2012)1 of the Committee of Ministers to Member States on public service media governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers’ Deputies) (with Appendix to Recommendation CM/Rec(2012)1 on Guiding principles for public service media governance), and Declaration of the Committee of Ministers on Public Service Media Governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers’ Deputies)
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