THIRD SECTION
DECISION
Application no. 36398/08
SOCIETATEA ROMÂNĂ DE TELEVIZIUNE
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 15 October 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 1 August 2008,
Having regard to the formal declaration accepting a friendly settlement of the case,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Societatea Română de Televiziune (“SRTV”), is the Romanian public television company.
The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
The applicant company’s television programs were broadcast on the territory of Moldova throughout the entire existence of the Republic of Moldova.
In 2007 the previous arrangements for the financing of the SRTV programs’ broadcast expired and the parties started to negotiate in order to find new arrangements. During the negotiations process, in spite of the fact that the applicant company’s license was still valid, the Moldovan Government decided to rent out the network used by the applicant company to a third company. The broadcast of the applicant company’s programs was interrupted.
The applicant company initiated proceedings in the Moldovan courts but was not successful and its action was finally dismissed by a decision of the Supreme Court of Justice of 10 July 2008.
Before the Court the applicant company complained under Article 10 of the Convention that the measures applied to it by the Moldovan authorities breached its right to impart information. It further submitted that the impossibility to exercise its right to broadcast on the territory of Moldova in accordance with its license amounted to a breach of its right guaranteed by Article 1 of Protocol No. 1 to the Convention.
The application was communicated to the Moldovan Government on 6 November 2008.
The Romanian Government exercised their right to intervene in the proceedings before the Court (Article 36 § 1 of the Convention).
THE LAW
On 16 September 2013 the Court received the following friendly settlement agreement signed by both parties:
“The present act is an agreement for a friendly settlement, concluded between the Government of the Republic of Moldova and the relevant authorities of the Republic of Moldova, taken as a whole and individually (hereinafter referred to as "the Government" or "the authorities of the Republic of Moldova"), being represented by their Agent, Mr. Lilian Apostol, on the one hand, and the Romanian Broadcasting Society - Societatea Română de Televiziune (hereinafter referred to as "the applicant company" or "SRTv"), being represented by Mr. Claudiu Săftoiu, Chairman - General Director of the applicant company, on the other hand, both referred to as "Parties".
Given the existence of the application no. 36398/08, SRTv versus Republic of Moldova, lodged with the European Court of Human Rights (hereinafter referred to as "the European Court"), in which the applicant company alleges the infringement of its rights, as guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"), as well as Article 1 of Protocol no. 1 to the Convention,
Considering that the right to use State TV network no. 2, previously held by the applicant company, can no longer be restored due to legal impediments,
Noting that, at the present moment, there is still a technical incapacity of the authorities of the Republic of Moldova to immediately provide another network for the analogue TV signal by means of the existing network, under similar conditions, to the one that was previously held,
Complying with the decisions of the Regional Radiocommunication Conference, 2006 session in Geneva (RRC-06), according to which, both in the Republic of Moldova and Romania, the commitments were taken for ceasing the analogue broadcasting and for securing a transition to digital broadcasting until 2015,
Taking into account the strategies for development undertaken by the relevant authorities of the Republic of Moldova to create a digital terrestrial TV network by the end of 2015,
In order to ensure the return of SRTv’s programs into the Republic of Moldova media environment, with a grid of programs of a mainly cultural-educational-social and entertaining nature, which will be determined by the applicant company (hereinafter "the SRTv programs"),
Pursuant to and in accordance with the procedure set forth in Article 39 of the Convention and in Rule 54A in conjunction with Rule 62 of the Rules of the European Court, as well as according to Article 13 of Law no. 353-XV of the Republic of Moldova of 28 October 2004 on the Governmental Agent, have agreed and concluded the present agreement, as follows:
1. The Government acknowledge unconditionally that in the present case there has been a breach of the applicant company’s rights as guaranteed by Article 10 of the Convention and by Article 1 of Protocol no. 1 to the Convention, as it was set out and communicated by the European Court in the statement of facts and questions to the Parties.
2. The Government, as a remedy for the acknowledged violations, undertake the following:
3. The Government and the relevant authorities of the Republic of Moldova directly concerned by the present case shall grant to the applicant company a segment (hereinafter a “slot”) in the first multiplexer with national coverage within the new digital system, which has currently started to be implemented in the Republic of Moldova.
4. The granting, under the provisions of paragraph 3 above, to the applicant company of the slot in the first multiplexer with national coverage within the new digital system, will be achieved by issuing a broadcasting license as follows:
4.1. The competent Broadcast Licensing Authority of the Republic of Moldova shall issue a broadcasting license, within 30 days after an official request of the applicant company, subject to and in accordance with the provisions of the Romanian legislation governing the organization and functioning of the SRTv, including Article 43 of the Law no. 41/1994 on the organization and functioning of the Romanian Radio Broadcasting Society and the Romanian Television Broadcasting Society, republished, with the subsequent amendments and additions, and with the provisions of the Republic of Moldova’s legislation, in particular of the Broadcasting Code of Republic of Moldova no. 260 of 27.07.2006, in the relevant part of the conditions set out under Articles 2 letter c) and 4;
4.2. After the entry into force in the Republic of Moldova of the legislative amendments meant to regulate the actual implementation of the multiplexer with national coverage within the new digital system, the competent Broadcast Licensing Authority of the Republic of Moldova shall amend the content of the license, within 30 days after an official request of the applicant company, for the purposes of updating the license’s content according to the legislative and technical changes required for the functioning of the multiplexer, including the identification of the assigned slot of the national multiplexer.
5. The granting, under paragraphs 3 and 4 above, of the broadcasting license, as well as of the slot to be allocated at the time of updating the license, in accordance with paragraph 4.2 above, shall be exempted from the applicant company’s participation in a competition and will be subject to the following guarantees:
5.1. The granting and the exemption from the condition to participate in a competition shall take place through the direct application of the terms of the present agreement, as an exception to the procedure and to the regulatory framework regarding the allocation of broadcasting licenses, existing at the time of issue or at the time of the license’s update, especially in derogation of the Broadcasting Code of the Republic of Moldova, cited above, in the relevant part of the conditions provided under Article 23 et seq., and shall be equalled to execution of an international enforcement warrant binding for all authorities of the Republic of Moldova, as described below (see paragraph 16).
5.2. The broadcasting license related to the use of the slot referred to in paragraph 3 above shall be issued for a maximum period provided by the national legislation of the Republic of Moldova at the time of issuance.
5.3. Any change to the content of the license, including for the purposes of paragraph 4.2 above, shall also be subject to the exception of the applicant company’s participation in a competition, the guarantees provided in paragraph 5.1 above being applied accordingly. Any change to of the license’s content shall not undermine its validity.
5.4. The broadcasting license shall not be withdrawn or suspended during the period of its validity, and the broadcasting shall not be suspended, nor shall the service of programs be affected either as a result of sanctions, or for any other reason, as an effect of the direct and exceptional application of the clauses of the present agreement, equalled to the execution of an international enforcement warrant. No other applicable sanction according to the Broadcasting Code of the Republic of Moldova, cited above, shall undermine of the broadcasting license’s validity.
Any further extension of the license issued under the present paragraph, after its expiry, shall not be subject to the provisions and guarantees set in the present paragraph and shall observe the legal framework in force at the time of the granting of that extension.
6. The applicant company, in turn, is committed to observe the legislation of the Republic of Moldova relevant to the license-holding conditions and to fulfil the obligations of a broadcaster established by law and under the law, to that extent as such conditions and requirements do not conflict with the present agreement, including by taking into account the guarantees set in paragraph 5 above.
7. The Government and any other authority of the Republic of Moldova shall not bear any responsibility, outside the clauses of the present agreement, for other possible litigations brought against the applicant company by third parties. If the scope of a dispute between third parties and the applicant company will, directly or implicitly, concern the issuance of the broadcasting license without the applicant company’s participation in a competition, the Government assume their duty to intervene in the proceedings upon request of the applicant company and to plead in favour of the observance of the present agreement’s conditions, as set in paragraphs 4 and 5 above.
8. Before the full implementation of the new digital system, the Government and the relevant authorities are compelled to adopt the following measures in order to ensure the applicant company’s return into the media environment:
8.1. Inclusion of the SRTv programs, dedicated for the retransmission on the territory of the Republic of Moldova, to be taken over by the cable broadcasting operators,
8.2. Assigning of a slot in the experimental multiplexer for the digital terrestrial broadcast, located in Chişinău and operated by the relevant authorities of the Republic of Moldova.
9. The issuing of the instructions for the inclusion of the SRTv programs within the meaning of the paragraph above shall be secured by the relevant authority, within 30 days from the date of the applicant company’s official request, lodged after the notification of the European Court’s decision taking note of the present agreement and striking the application out of the list.
10. Granting a slot in the experimental multiplexer, in accordance with paragraph 8 above, shall be made within 30 days from the date of the applicant company’s official request addressed to the relevant authority, lodged after the notification of the European Court’s decision taking note of this agreement and striking the application out of the list.
11. If for the inclusion of the SRTv programs, subsequently to the issuance of instructions for taking them over by the cable broadcasting operators, as well as for the granting of the slot in the experimental multiplexer or for the assigning of a slot in the first multiplexer with national coverage, taxes, guarantees, commissions or any other charges would be applicable, the applicant company shall be exempted from them, according to the present agreement, equalled to the execution of an international enforcement warrant.
The exemption from taxes, charges or guarantees cannot lead to a less favourable treatment for the applicant company than the one granted to other public or private companies.
12. Notwithstanding the provisions of paragraph 11 above, the applicant shall bear:
12.1. The inherent and absolutely necessary costs for the production of technical documentation for the inclusion of the SRTv programs in the broadcast by cable broadcasting operators under paragraph 8.1 above;
12.2. The inherent and absolutely necessary costs for the production of technical documentation, if any, for granting to the applicant company of the slot in the experimental multiplexer referred to in paragraph 8.2. above;
12.3. The technical operating costs of the slot in the experimental multiplexer referred to in paragraph 8.2. above, but not more than the amount required to cover the relevant parts of this slot of the total operating costs in the experimental multiplexer, as they are borne by the relevant authorities of the Republic of Moldova;
12.4. The rate for the use of the slot from the multiplexer with national coverage, which shall be calculated based on the actual costs incurred by the relevant authorities of the Republic of Moldova (multiplexers’ providers) and shall include a reasonable margin of profitability without exceeding the lowest rate applied to broadcasters in the Republic of Moldova.
12.5. The technical costs for the transportation of the signal to the multiplexing equipment located in the Republic of Moldova.
The Government undertake that the operating costs referred to in paragraph 12.3 above shall be equivalent to the costs actually paid by a broadcaster in a similar situation with the applicant company, they shall not be excessive, but necessary and real, and in no case they shall exceed the average costs incurred for the use of a slot in the multiplexer referred to in paragraph 12.3 above.
13. The Government, including by their Governmental Agent, supervise the compliance by the relevant authorities of the Republic of Moldova with the obligations incumbent upon them under the present agreement.
14. The monitoring exerted by the Committee of Ministers of the Council of Europe on the execution of the European Court’s decision in the present case is an efficient mechanism that guarantees the execution of the obligations undertaken by the parties.
15. The conclusion of the present agreement is the final and friendly settlement of the case SRTV versus Republic of Moldova. The applicant company declares that it waives any further claims in respect of its application no. 36398/08, lodged by it against the Republic of Moldova.
16. The present agreement, once accepted by the European Court by a Decision under Articles 37 and 39 of the Convention, and under Article 15 para. (4) of Law no. 353-XV of 28 October 2004 on the Government Agent, and according to Article 10 letter l) of the Enforcement Code of the Republic of Moldova no. 443 of 24.12.2004, constitutes a binding enforcement warrant to be enforced by all authorities of the Republic of Moldova.
17. The Parties shall immediately inform the European Court about the present agreement and they will request the urgent strike of the case out of its list.
This agreement was done in Bucharest, on the 12th of September 2013, in three originals (one for each party and one for the European Court to be submitted by the Government), in Romanian and English languages.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy