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SIGMA RADIO TELEVISION LTD. v. CYPRUS - 32181/04 [2011] ECHR 1179 (21 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1179.html
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[2011] ECHR 1179
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FIFTH
SECTION
CASE OF SIGMA RADIO TELEVISION LTD. v. CYPRUS
(Applications
nos. 32181/04 and 35122/05)
JUDGMENT
STRASBOURG
21 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sigma Radio
Television Ltd v. Cyprus,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power,
Ganna Yudkivska,
judges,
Stelios Nathanael, ad hoc judge,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 21 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 32181/04 and 35122/05)
against the Republic of Cyprus lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Sigma Radio Television
Ltd, a company registered in Cyprus (“the applicant”), on
13 August 2004 and 13 September 2005 respectively.
The applicant was represented by Mr A. S. Angelides, a
lawyer practising in Nicosia. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
The
applicant alleged a violation of Articles 6 § 1, 10, 13 and 14
of the Convention, Article 1 of Protocol No. 1 and Article No. 1 of
Protocol No. 12 with regard to (i) the proceedings
before and various decisions of the Cyprus Radio and Television
Authority (“CRTA”) concerning a number of broadcasts
transmitted by its television and radio stations; (ii) the
relevant domestic court proceedings; and (iii) the
allegedly different treatment it received vis-à-vis the public
service broadcaster CyBC.
On
18 and 19 October 2006 respectively the Court decided to communicate
to the Government the complaints concerning Article 10 of the
Convention, Article 1 of Protocol No. 1 and Article 14 taken together
with the former two provisions, as well as the complaint raised in
application no. 32181/04 under Article 6 § 1 of the Convention
as to the objective impartiality of one of the Supreme Court judges.
On
13 October 2008 the Court decided to communicate to the Government
the complaint under Article 6 § 1 of the Convention as to the
fairness of the proceedings before the CRTA and the alleged
insufficiency of the scope of jurisdiction of the domestic courts,
and to invite the parties to submit further written observations in
respect of the complaints under Article 14 of the Convention taken
together with Article 10 of the Convention and Article 1 of Protocol
No. 1. It was also decided to examine the merits of the applications
at the same time as their admissibility.
Mr George Nicolaou, the judge elected in respect of
Cyprus, was
exempted from sitting in the case (Rule 28 of the Rules of Court).
The Government accordingly appointed Mr Stelios Nathanael to sit as
an ad hoc judge (Article 27 § 2 of the Convention and
Rule 29 § 1 as in force at the time).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case: proceedings before the
Cyprus Radio and Television Authority
The
applicant company operates a television station, “Sigma TV”,
and a radio station, “Radio Proto”, in Cyprus.
As
follows from the materials submitted by the parties, between 2000 and
2002, the CRTA, exercising the functions attributed to it by the
Radio and Television Stations Law (Law 7(I)/1998, as amended;
hereinafter “the Law”) and the Radio and Television
Stations Regulations of 2000 (Regulatory Act 10/2000;
hereinafter “the Regulations”), examined a number of
different broadcasts (advertisements, various programmes, films,
trailers and news reports) transmitted by the applicant’s
television and radio stations. In some of the cases the CRTA was
acting on complaints and in others ex proprio motu, pursuant
to section 3(1) of the Law. The applicant was informed of the
possibility of contraventions on its part and was invited by the CRTA
to make written and/or oral submissions if it so wished. Hearings
were held in all cases.
The applicant did not make written and/or oral submissions in all
the cases, however.
During
the abovementioned period the CRTA issued twenty-seven separate
decisions finding the applicant in violation of one or more
provisions of the Law and/or the Regulations.
The CRTA imposed fines in all the cases. In certain cases separate
decisions were taken as to the merits and the fine. In these cases,
following notification of the decisions, the applicant was given the
opportunity to make submissions as to the imposition of a fine.
The
applicant paid all the fines between 2001 and 2008.
Furthermore,
in January 1999, the CRTA called upon the applicant to pay the
licence fee due for operating its television station.
Administrative
and/or civil proceedings resulted from the above decisions.
A
list with details of the relevant broadcasts and the CRTA proceedings
is annexed to the present judgment.
1. Summary of the CRTA’s decisions concerning
various broadcasts on “Sigma TV” and “Radio-Proto”
(a) Advertisements for children’s
toys by “Sigma TV” [CRTA cases nos. 129/2000(3);
148/2000(3); 135/2001(3) and 3/2002(3)]
The
CRTA found in a number of cases that the applicant had breached the
provisions of the Law. In some cases the applicant admitted the
violations in the submissions it made before the CRTA.
In
all the cases the CRTA held that “Sigma TV” had broadcast
advertisements for children’s toys at times prohibited by
section 34 of the Law. The CRTA also found that some of the
advertisements exploited children’s inexperience and credulity
by directly inciting them to purchase the products advertised, in
violation of section 33(7)(a)(i) of the Law, and that some of the
advertisements contained exaggerated or unfounded claims, in
violation of paragraph B.1 of appendix IX of the Regulations.
Moreover, the CRTA held that in some of the advertisements the
products aimed at children had been promoted by offering gifts, in
violation of paragraph D.10(o) of appendix IX of the
Regulations.
In
two of its decisions (cases nos. 135/2001(1) and 3/2002(3)) the CRTA
stressed that it had repeatedly indicated in the past, through its
decisions, circulars and directives to stations, the significance of
protecting minors from the messages they received through
advertising, and had underlined the seriousness of such violations.
Further, the CRTA noted that advertisements for children’s toys
were not completely prohibited by the legislation but were subject to
limitations (concerning broadcasting times, approach, methods of
promotion, techniques employed, visual and audio material used) as
children were vulnerable and credulous consumers because of their
lack of experience and judgment.
(b) Interruption of programmes for the
broadcasting of advertisements [CRTA cases nos. 173/2001(3) and
19/2001(3)], promotion of sponsors during news bulletins [CRTA case
no. 19/2001 (3)] and surreptitious advertising [CRTA case nos.
18/2000(3) and 113/2000(3)]
In
case no. 173/2001(3) the CRTA found that on 22 occasions the times at
which “Sigma TV” had interrupted programmes to broadcast
advertisements had not been in accordance with section 33(2)(g) of
the Law. Furthermore, the CRTA found that on 325 occasions the
duration of the advertising breaks within programmes had been longer
than three and a half minutes, in violation of paragraph F.3 of
appendix IX of the Regulations. In its decision the CRTA held that
the need to regulate the frequency and duration of television breaks
derived both from the right of a viewer to watch a programme
unhampered, without long and frequent interruptions, and from the
need to show respect for the programme, which should be broadcast in
its entirety as a human creation. The applicant admitted the
violations in the submissions it made before the CRTA.
In
case no. 19/2001(3) the CRTA found that “Sigma TV” had
interrupted
a news bulletin twice in order to broadcast advertisements, in
violation of section 33(2)(i) of the Law. The
CRTA also found that during certain news items concerning the stock
exchange and the exchange rate, transmitted as part of the news
programmes, the names and logos of the sponsors of the bulletins had
been shown on the screen for promotion purposes,
in
violation of paragraph E.3 of appendix IX of the Regulations. Lastly,
the CRTA held that there had been surreptitious advertising in
violation of section 33(2)(d) during a sports bulletin transmitted as
part of the main news programme. The applicant admitted a violation
of the Law on that account.
In
cases nos. 18/2000(3) and 113/2000(3)
the CRTA found that the transmission of clear images of various
products of real brands in a comedy series had been done in a
provocative manner and had clearly been for advertising purposes,
contrary to section 33(2)(d) of the Law. Further, the CRTA considered
that the images used had not been a necessary part of the set of the
series, as the applicant maintained. When imposing the fines the CRTA
took into account the fact that in spite of previous decisions
finding similar violations and imposing fines, the applicant had
shown no willingness to comply. In spite of previous findings of
violations, for example, the applicant had broadcast repeats of some
episodes of the series.
(c) News reports included in news
bulletins [CRTA case nos. 75/2000(3), 98/2000(3), 152/2000(3),
9/2001(3), 43/2001(3), 44/2001(3) and 108/001(3)]
In
seven cases the CRTA found that the applicant had infringed a number
of provisions of the Law and/or the Regulations with regard to items
broadcast during news bulletins.
(i) Case no. 75/2000(3)
“Sigma TV” broadcast a report in a news
bulletin concerning the arrest of a teacher for photographing naked
minors. The CRTA found a violation of Regulations 21(3), 24(1)(a) and
paragraph 10 of Part II of appendix VIII of the Regulations in that
insufficient measures had been taken to conceal the suspect’s
identity, the information given concerning the reasons for the
suspect’s arrest had not been accurate and certain statements
which had been made during the report ran contrary to the principle
of presumption of innocence.
(i) Case no. 98/2000(3)
“Sigma TV” broadcast a news bulletin that
included a report on the drug problem of a Cypriot family. The CRTA
noted that the report included scenes which were taken possibly from
a film or documentary and illustrated in detail the procedure of
preparing and consuming drugs. The CRTA considered that the images
shown had not been suitable for transmission during the “family
zone” (see definition in paragraph 88 below) and had possibly
been dangerous for minors. It found a violation of Regulations 21(6),
24(1)(a) and 24(2)(d) as the applicant had not ensured that the
material shown was suitable for minors, had not prepared and aired
the particular news report with accuracy and had not issued a visual
and/or verbal warning for viewers. The CRTA drew attention to the
fact that minors tended to imitate acts out of curiosity and an
inclination to experiment. It stressed that it was its duty to take
due steps to protect minors from programmes that could cause them any
mental or physical harm. In its submissions before the CRTA the
applicant claimed that the purpose of the images had been to
accompany the news story with visual material.
(iii) Case no. 152/2000(3)
23. In
one of its news bulletins “Sigma TV” aired a news report
concerning two murders. The CRTA noted that the report contained
close-ups of the dead body of the victim covered in blood and of the
grieving relatives. Furthermore, no visual or verbal warning had been
given to viewers. It found a violation of Regulations 24(2)(a)–(d)
and of paragraph 6 of part II of appendix VIII of the Regulations.
(iv) Case no. 9/2001(3)
24. “Sigma
TV” broadcast a report in a news bulletin about
the transfer to court of three young men suspected of drug use. The
CRTA considered that the news story had lacked objectivity,
impartiality, accuracy and pluralism, in violation of Regulation
24(1)(a). It noted in this regard that although the allegations made
over the phone by the mother of one of the accused as to the
effectiveness of the relevant institutions and the attitude of the
competent medical authorities towards drug addicts had been
transmitted, the institutions and medical authorities concerned had
not been given the opportunity to express their views. In this
connection, the applicant had argued, inter alia, that the
issues in question concerned society and that the report should have
been evaluated on the basis of the data and information the station
had had at its disposal. The applicant further admitted that it did
not have a delay unit allowing live telephone conversations to be
interrupted when something unsuitable was said.
In
addition, the CRTA found that the news report had gone beyond the
scope of information as comments, conclusions and information
concerning private matters of the suspects had been broadcast,
without the appropriate sensitivity towards human pain or respect for
the suspects’ personality, honour, reputation and private
lives, in violation of Regulation 21(3) and paragraph 8(2), of
part I of appendix VIII of the Regulations. The CRTA did not accept
the station’s allegations that the suspects had turned towards
the cameras seeking help, as certain shots showed the suspects
covering up their faces and making every effort to avoid the cameras.
Even if the suspects had chosen to publicise their problem, the CRTA
considered that the applicant should have taken into account that
they had not been fully aware of their actions and had been in
despair, vulnerable and under the influence of strong substances. In
addition, the CRTA noted that the disclosure of the identity of the
persons involved, their media exposure as well as the extensive
coverage of their private lives, could stigmatise them in a society
such as that of Cyprus. In the CRTA’s view the promulgation of
the drug problem could have been accomplished without revealing the
suspects’ identity and without disclosing information about
their private lives.
(v) Case no. 43/2001(3)
The CRTA found that during a news bulletin broadcast
on “Sigma TV” the name of the victim of a car accident
had been mentioned before it had been ascertained whether the
victim’s parents had been informed, in violation of Regulation
24(3). The applicant submitted before the CRTA that it was standard
practice to obtain confirmation by the police and this case had not
been an exception.
(vi) Case no. 44/2001(3)
The CRTA held that an interview aired during a news
bulletin on “Sigma TV”, with a female witness for the
prosecution in pending criminal proceedings, advocating the innocence
of a man under criminal charges, had lacked accuracy, objectivity,
impartiality and pluralism. It was noted that although the
interviewee had testified against the suspect in court, in the
interview she had given information that pointed to the suspect’s
innocence. The CRTA held that the manner in which the interview had
been presented essentially exonerated the defendant in the
proceedings. The CRTA found that the broadcasting of such information
violated paragraph 10 of part II of appendix VIII of the Regulations.
Further, the CRTA pointed out that during the interview the
interviewee had claimed that the investigating authorities had used
her to put pressure on the arrested man to give them information.
However, the views of authorities involved had not been stated, in
violation of Regulation 24(1)(a), and no mention had been made in the
interview of any attempts by the applicant to secure them.
(vii) Case no. 108/2001(3)
In another news bulletin “Sigma TV”
broadcast a news report concerning a car accident, as well as a
trailer for the report. The CRTA considered that the report contained
an inappropriate and unnecessary description of the circumstances of
the accident. In particular the CRTA held that the applicant had not
shown due respect for the personality, honour, reputation and privacy
of the female driver of the car involved in the accident as it had
overstepped the bounds of information and transmitted unnecessary
details, comments and conclusions about the accident, in violation of
Regulation 21(3). In addition, the CRTA found that remarks had been
made in the news report that were an insult to the personality, the
reputation and the privacy of the driver, in violation of section
26(1)(e) of the Law, and that a clear distinction had not been drawn
between fact, comment and speculation, in violation of paragraph 1(2)
of part II of appendix VIII of the Regulations. In respect of the
above, the CRTA, noted inter alia, that it had been stated in
the news report that a young lady had been found injured and
half-naked in the driver’s seat wearing only underwear on the
lower part of her body, that eye-witnesses had claimed that they had
seen two young men, fleeing from the accident scene and heading
towards the fields and that two doors of the young woman’s car,
and more specifically the front passenger door and the rear door,
were open. The CRTA further pointed out that the information given in
the report, which included video footage of the cars involved in the
accident and reference to the place and time the accident occurred,
had been sufficient to enable recognition, in particular, of the
identity of the female driver. In its submissions before the CRTA,
the applicant claimed that there was only a slender possibility of
recognising the persons involved. In reaching its decision, the CRTA
also took into account the unpleasant consequences the report had had
on the driver’s personal, family and social life, and that the
persons involved in the case had not been public figures or public
officials and the publication of information concerning their private
lives had not served the public interest.
(d) Films, series, programmes and trailers
[CRTA cases nos. 88/2000(3), 117/2000(3), 141/2000(3),
1/2001(12), 13/2001(3), 125/2001(3), 133/2001(3), 143/2001(3) and
5/2002(3)]
(i) Violent scenes [CRTA cases nos.
88/2000(3), 141/2000(3), 13/2001(3), 125/2001(3), 133/2001(3),
143/2001(3) and 5/2002(3)]
29. The
CRTA found in a number of cases that the applicant had breached the
provisions of the Law and/or the Regulations by
broadcasting on “Sigma TV”, within or partly within
family viewing hours, certain films and series and trailers thereof
which included scenes of violence unsuitable for children. The CRTA
held that the scenes in question were
likely to impair the physical, mental or moral development of minors,
in violation of Regulation 32(3)(a). In one of the cases the CRTA
found that the film in question contained scenes of
humiliation and cruel treatment, in violation of regulation 32(2) (a
rape scene). Furthermore, the CRTA
found in these cases either that the viewers had not
been informed of the true content of the programmes
as the acoustic and visual warnings given did not
correspond to their content, in violation of Regulation 21(5) and
(b), with a rating of “15” and “18” had been
shown during the family zone, in violation of Regulation 22(2)
(see paragraph 90 below). The CRTA held that the applicant had not
ensured that programmes transmitted during the family zone had been
suitable for all ages, in violation of Regulation 21(6).
The
applicant admitted the violations in two of the cases.
In
its decisions concerning cases nos. 125/2001(3), 133/2001(3),
143/2001(3) and 5/2002(3) the CRTA noted, inter alia, that the
content of all broadcasts during the family zone had to be suitable
for the whole family. It stressed that the protection of minors was
the primary concern of everyone, including the European Community and
the Council of Europe, and that the Cypriot legislator had set
limitations as to the content of programmes which could be
transmitted for family viewing in order to protect children from
programmes that were unsuitable for them because they contained
violent or erotic scenes, or verbal material or subject matter
unsuitable for minors. The CRTA pointed out that it attached great
weight to the above matters and to compliance with the relevant legal
provisions.
(ii) Offensive remarks and inappropriate
language [CRTA case nos. 117/2000(3) and 1/2001(12]
In
case no. 117/2000(3), following a complaint, the CRTA found, in
respect of an episode of an entertainment series, “Prison Bars”
(“Tis Filakis ta Sidera”) produced and broadcast by
“Sigma TV”, (i) that it included offensive
remarks for various social groups which did not comply with the
generally accepted rules of decency and good taste in language and
behaviour, in violation of Regulation 21(4); (ii) that the
applicant had not ensured that the honour, the reputation and the
professional and social lives of people as individuals or as members
of a specific group (in particular, the residents of the towns of
Paphos and Limassol, Arabs, Russian women and women in general) were
respected, in violation of Regulation 21(3); and (iii) that
the programme contained offensive material for the dignity of both
genders, in violation of Regulation 26(l). The CRTA noted that in the
episode in question it had been stated in the context of a dialogue
between characters of the series, inter alia, that “according
to recent excavations in Paphos, it was probable that the town had a
lot of brothels, not for the locals, of course, but for foreigners”,
“during the 50’s, 60’s and part of the 70’s
most of the whores were from the town of Paphos”, “in the
old times, in Limassol it was all Arabs, phoenicians, houllou, ya
habibi, all of them. Most of them were darker than chocolate and some
of them were very snobbish”, “the town of Paphos was a
whores’ town, with thousands of whores. All of them Greek
(“καλαμαρούδες”),
which we imported then, like we import Russian women nowadays”.
The CRTA noted that following the broadcast of the episode a Paphos
newspaper had criticised the series as being crudely offensive to
people from Paphos and completely unacceptable. The repeated
violations by the applicant in other episodes of the same series were
taken into account when imposing the fine.
In
case no. 1/2001(12) the CRTA found that “Radio Proto” had
broadcast a programme containing inappropriate language unsuitable
for minors. More specifically, it noted that the presenters had used
sexually explicit Greek slang. The CRTA found that the programme
contained remarks that did not comply with the generally accepted
rules of decency and good taste in language and behaviour, in
violation of Regulation 21(4) and that the applicant had failed, in
violation of Regulation 21(6), to ensure that the programme,
transmitted during family listening hours, was suitable for children.
(e) “Social
documentaries” [CRTA cases nos. 10/2001(3), 11/2001(3) and
60/2001(3)]
(i) Documentary about drug use
In
cases nos. 10/2001(3) and 11(2001)(3) the CRTA found that during the
family zone “Sigma TV” had broadcast and shown a repeat
of a “social documentary” concerning the drug problem in
Cyprus, as well as a trailer for the programme, containing visual and
audio material unsuitable for children under the age of fifteen, in
violation of Regulation 21(6), and which could seriously
impair the physical mental or moral development of minors, in
violation of Regulation 32(3)(a). In particular, the programme
included scenes showing, inter
alia, the
consumption and trading of illegal drugs and statements made by drug
addicts concerning the consumption of drugs. Moreover, the CRTA held
that the trailer for the documentary contained visual and audio
material that might offend the sensitivity of viewers, in violation
of Regulation 24(2)(d). It further found that the visual and acoustic
warning that had been given did not correspond to the actual content
of the trailer and documentary, in violation of Regulations 21 (5)
and 22, and that information transmitted about one of the drug
addicts had not shown the appropriate sensitivity towards human
suffering, in violation of paragraph 8(2) of part I of appendix VIII
of the Regulations.
35. The
CRTA also noted that the personal information concerning the drug
addicts in the documentary had been broadcast without due respect for
their personality, honour, reputation and private lives, in violation
of Regulation 21(3). For example, the identity of a caller, a light
drug user, had been displayed on screen, despite his
wish to remain anonymous. The CRTA considered that the drug addicts
who had participated in the programme did not appear to have been
fully aware of their actions, and that their free consent and
decision should therefore not have been taken into full account
because they had been in a state of despair, vulnerable and under the
influence of strong substances that had affected their judgment. In
any event, the disclosure of their identity, the media exposure and
the extensive coverage of their private lives was likely to have
numerous negative consequences for them. The CRTA stated that it was
also concerned about the personalisation of the drug problem through
the disclosure of the identity of certain drug addicts, as this might
lead to their becoming role models or even “heroes” for
vulnerable people who would like to identify with them. According to
the CRTA the documentary had also lacked objectivity and pluralism,
as criticisms and negative comments had been made against the medical
authorities, the police drug squad, the Minister of Health and the
Director of a Psychiatric Clinic, without them having been given the
opportunity to present their position on the matter, in violation of
section 26(2) of the Law.
The
applicant argued before the CRTA that the social content of the
documentary was of interest to families. It admitted that a mistake
had been made with regard to the disclosure of the identity of one of
the callers in question and informed the CRTA that measures had been
taken to restore the name and honour of a nurse in respect of whom
allegations had been made in the programme.
(ii) Other documentary
In
case no. 60/2001(3) the CRTA found that a “social documentary”
broadcast by “Sigma TV” had not been characterised by
objectivity and pluralism, as opinions and allegations had been
voiced against doctors and officials working in an institution that
had a bone marrow bank, without a complete picture or opposing views
being presented, in violation of section 26(2) of the Law. The
CRTA considered that the discussion, the direction it had taken and
the manner in which it had developed indicated that it had been
orchestrated to favour the views of the presenter and, more broadly,
the station’s views on the issues raised, to the disadvantage
of participants with opposing views.
2. Unpaid licence fee: CRTA case no. 8.1.09
By
a letter dated 15 January 1999, the CRTA requested the applicant to
pay the licence fee due for operating “Sigma TV” between
13 November 1998 and 31 January 1999, as required by section 24
of the Law. The fee amounted to 6,416.65 Cyprus pounds (CYP) for the
period in question. The applicant paid the licence fee on 5 August
1999.
B. Legal proceedings
1. Judicial Review proceedings (Application no.
32181/04)
The
applicant brought separate recourses (appeals for judicial review)
before the Supreme Court, seeking the annulment of twenty-five of the
above decisions (recourses nos. 809/00, 299/01, 300/01, 301/01,
302/01, 303/01, 304/01, 348/01, 448/01, 912/01, 913/01, 914/01,
922/01, 966/01, 1097/01, 279/02, 328/02, 330/02, 331/02, 445/02,
663/02, 803/02, 815/02, 817/02 and 819/02).
It further lodged a recourse challenging the licence fee requested by
the CRTA for the period 13 November 1998 to 31 January 1999
(recourse no. 320/99).
Although
the recourses concerned different decisions of the CRTA, the
applicant relied on the same main points, including the same
constitutional issues. These may be summarised as follows:
(a) The
applicant alleged a breach of the rules of natural justice on the
ground that in the proceedings the CRTA had acted in many capacities,
namely, as prosecutor, investigator-witness and, at the same time,
judge. The CRTA had then imposed fines, which were paid into its own
Fund.
(b) The
applicant claimed that the applicable Law, and by extension the
Regulations, were contrary to the Constitution. In this respect it
alleged a breach of Articles 12, 19, 25, 26, 28 and 35 of the
Constitution. The main body of its arguments, however, was based on
Articles 12 and 19 of the Constitution and, in particular, on the
imposition of pecuniary sanctions/fines by an administrative body and
the exercise of regulatory authority under Article 19 by a public
authority other than the State itself. The applicant also argued that
the applicable Law interfered with its right to enter into contracts
freely with producers and directors (Article 26). Further, in
recourse no. 320/99 the applicant alleged a violation of Article 23
of the Constitution and complained of discriminatory treatment
vis-à-vis the Cyprus Broadcasting Corporation (“CyBC”),
which was not burdened with the same charges.
(c) The
applicant raised a number of points concerning the interpretation of
the relevant legal provisions relating to the imposition of sanctions
for the infringement of the Regulations.
(d) Lastly,
the applicant challenged the decisions of the CRTA on a number of
other grounds, claiming, for example, that the procedure had not been
followed in accordance with the law because there had been no
proper inquiry, and insufficient reasoning had been given.
In
view of the fact that issues as to constitutionality, natural justice
and the interpretation of the provisions of the applicable Law were
raised in all the recourses and because of their significance, the
Supreme Court decided that they should be heard in priority, together
and by the Full Bench (that is, all thirteen judges of the Supreme
Court).
The
hearing took place on 5 November 2003. Judgment was then reserved.
On
10 February 2004 the applicant applied for the reopening of the
hearing of the recourses for the purpose, firstly, of submitting
further arguments concerning its claim for the annulment of the
decisions in question in the light of the Court’s judgment in
the case of Kyprianou v. Cyprus (no. 73797/01, 27 January
2004)
and, secondly, in order to request the exclusion of one of the judges
from the bench on the ground that he had given a first-instance
judgment, following reservation of the judgment by the Full Bench, in
another recourse brought by the applicant raising similar issues.
On
24 February 2004 the Supreme Court dismissed the application. The
court first noted that in accordance with its settled case-law it
could order the reopening of a recourse or an appeal only in
exceptional cases and, in particular, only where it decided that it
was necessary in the interest of justice in the light of facts which
came to light after judgment had been reserved. In the present case
no new fact had been put forward which could justify the re-opening
of the recourses. A new fact might be an event which touched on the
elements which composed the dispute. The putting forward of further
arguments with reference to jurisprudence subsequent to the
reservation of the judgment was not such an event. With regard to the
request for the exclusion of one of the judges, the Supreme Court
held that in accordance with its settled case-law the solution of a
legal question at first instance or on appeal did not exclude the
participation of a judge in the composition of the court who had
heard the same, or a similar or closely related legal question in the
context of other proceedings. The Supreme Court therefore concluded,
unanimously, that no reason had been shown which could justify
contemplating reopening the hearing in cases before it in which its
judgment had already been reserved.
On
the same date, the Supreme Court gave judgment dismissing, by a
majority (11 to 2), twenty-four of the twenty-six recourses. The
CRTA’s decisions challenged in recourses nos. 809/00 and 304/01
were annulled.
First
of all, with regard to the joining of the recourses, the Supreme
Court noted:
“Matters which were put forward in a number of
recourses against decisions of the Radio and Television Authority of
Cyprus, in compliance with the Radio and Television Stations Law of
1998 (Law 7(1)/98, as amended), were examined at first instance by
different judges, the result in each case being a dismissal. Appeals
were filed which because of similarity we finally fixed to be heard
together. In their course before the Court it was ascertained that
many recourses on similar matters of constitutionality, natural
justice and interpretation of provisions of the Law were pending and
were ready for hearing. Whereupon, because of their significance, it
was decided that the proper course was that they should be heard, in
priority, by the Full Bench of the Court since in the Revisionary
Appeals the participation of all judges would be impossible.
Therefore the list was prepared of the 26 recourses heard together to
which this judgment relates.”
The
Supreme Court then noted that, with the exception of recourse 320/99,
which concerned the payment of a licence fee under section 24 of the
Law, the disputed CRTA decision in each recourse had found the
applicants
guilty of infringement of one or more provisions of the Law and/or
the Regulations. After referring to the relevant legal provisions and
Regulations, the Supreme Court proceeded to divide the issues that
arose in the recourses into (a) general matters which
broke down into three groups, and (b) specific matters.
The relevant excerpt of the Supreme Court’s judgment reads as
follows:
“The more general matters are classified in three
groups. The first includes matters of interpretation of provisions
which relate to the imposition of sanctions for the infringement of
regulations. It is the case of the applicants that section 3(2)(f) of
the Law, whereby power is conferred on the Authority to impose
sanctions/penalties as the applicants describe them, restricts that
power solely to cases where there is an infringement of the Law
itself and the terms of the operating licence and not of the
Regulations “... which cannot by themselves (outside the
authority of the Law) define infringements and sanctions”. In
this connection reference is made to section 51(2)(n) of the Law –
which confers authority to issue Regulations – as well as to
relevant provisions of the Regulations.
The second group concerns matters of natural justice. It
is argued that in the proceedings which resulted in the imposition of
a fine the necessary distinction of roles did not exist, with the
result that the Authority was all at once prosecutor,
investigator-witness and at the same time judge. It is added that the
possibility of ex proprio motu examination conferred by
section 3(1)(c) of the Law intensifies the objection. Furthermore,
according to the applicants, the Authority cannot be regarded as
impartial because it has an economic interest since, according to
section 38(1)(d) of the Law, the fine is deposited in its own Fund.
In the third group there are matters which concern the
constitutionality of the Law, and by extension the Regulations which
were issued in accordance with the Law. It is submitted that the
following provisions of the Constitution are violated: (a) Article
19, by which the right to freedom of speech and expression in any
form is safeguarded; (b) Article 12.2, in accordance with which a
person cannot be tried or punished twice for the same offence –
but for one exception which does not apply here; (c) Article 26,
which refers to the right to enter into a contract; (d) Article 24,
which refers to taxation; (e) Article 25, which refers to the right
to employment, inter alia; (f) Article 28, which refers
to equality, and (g) as regards Recourse No. 320/99, Article 23,
which refers to property.
In the recourses, in addition to these more general
matters of great importance, other, more specific matters are also
raised, connected to the particularity of each case, namely (a)
whether the procedure was carried out in accordance with the law, (b)
whether a proper enquiry was conducted and (c) whether the decision
was reasoned.”
Before
examining the above issues, the Supreme Court dealt with and
dismissed various additional points raised by the applicant in some
of the recourses, concerning, inter alia, the composition of
the CRTA.
In
relation to the matters of natural justice, proper enquiry and
reasoning, the Supreme Court considered it useful to refer to
specific instances, so that the procedural course common to most of
the recourses and the manner in which the CRTA dealt with the
violations was indicatively outlined. It took recourse no. 913/01,
the first of the three recourses, which, after agreement between
counsel, formed the basis of the discussion before it. The Supreme
Court noted that in that case, as in those at issue in sixteen other
recourses, the CRTA had acted following a complaint, whereas in eight
other cases it had acted ex proprio motu when the respective
programmes had come to its notice. However, it distinguished recourse
no. 320/99, which did not concern a violation, and recourse
no. 304/01, in which a different procedure had been followed.
It
also held, in respect of recourses nos. 809/00 and 304/01, that the
procedure provided for in the relevant Regulations had not been
complied with by the CRTA, and had therefore been defective. It
accordingly found that the CRTA decisions challenged in these two
recourses lacked the necessary legal basis.
The
Supreme Court proceeded to look at the procedure followed by the
CRTA, the proceedings before it and its decision in case no.
11/2001(3) challenged by recourse no. 913/01.
It
then examined the specific matters and the general matters raised by
the applicant in the recourses. With regard to the specific matters,
it held as follows:
“With regard to the question of proper enquiry,
with the exception of the two recourses which we have mentioned –
nos. 809/00 and 304/01 – we have not ascertained a vacuum. On
the contrary, it seems to us that the enquiry covered everything,
indeed in detail. In some of the recourses the applicants submitted,
in this connection, that a legal problem arose because the
investigating official who conducted the enquiry put a second report
before the Authority, whereas he should have submitted only one. They
invoked Reg. 42(5) which provides that “the official states his
conclusion to the Authority fully reasoned ...”. However, the
second document contained no material as regards the alleged
violations other than that which had already been brought to the
notice of the applicants. He simply unified it for the convenience of
the Authority. We do not consider this reprehensible. With regard to
the question of reasoning, it seems to us that in each case,
including those concerning the suitability of programmes or the
definition of meanings – such as toy or game, surreptitious
advertising, close-ups – adequate explanation was given to the
applicants both as to the finding of the official (who conducted the
enquiry) and as to the conclusions of the Authority, which, in our
view, were all the result of a correct interpretative approach to the
relevant provisions and reasonably arrived at, coming within the
recognised boundaries of the essential appraisal of the
administration, and in some cases, indeed, also unavoidable.”
With regard to the general matters, it held as
follows:
“The first group
Section 3(2)(f) of the Law provides that the Authority
has the power to:
... [provision set out]
We observe that while in the first part of the provision
the legal basis of the violations for which sanctions are imposed is
analysed on four legal grounds, in the part where the sanctions are
set out, after the last one – which is the administrative fine
– the violation is related not to the four legal grounds but
only to two, namely the Law and the terms of the licence. In our
opinion this is merely a drafting inadequacy which in this case does
not subtract from the clear meaning of the provision which,
interpreted in its entirety, leaves no doubt about the uniform range
of the sanctions in all the violations.
Section 51(2)(n) to which the applicants referred
confers power to issue Regulations ...
...
Counsel for the applicants suggested that in the
abovementioned Section 51(2)(n) in the phrase “of (the) Law and
the Regulations ...” the “and” is conjunctive, with
the result that a violation of both the Law and the Regulations is
required as a precondition for the imposition of a fine. We are of
the contrary opinion. By the word “and” the whole is
defined without the independence of the parts being affected. The
“and” functions essentially as a disjunction. We note
also Regulation 42(10), issued in consequence, by which it is
provided that the Authority may impose “any of the sanctions
which are provided by the Law” when it considers, in a
procedure by virtue of Part III of the Law, that “the
provisions of the Law and the Regulations” were not complied
with. There again we see a reference to the Regulations as a legal
basis for the imposition of sanctions.
The second group
We do not share the view that the stipulated procedure,
which the Authority pursued, is in conflict with the rules of natural
justice, which require (a) that the judge be impartial and (b) that
the person judged be afforded the opportunity to be heard. We firstly
note their embodiment in Article 6(1) of the European Convention on
Human Rights, which was ratified by Cyprus by Law No. 39/62, and the
essential reproduction of that provision in Article 30.2 of the
Constitution. The relevant jurisprudence of the European Court of
Human Rights (ECHR) was not invoked during the discussion of the
recourses. This is explained, however, by the inherent difficulty in
the evaluation of the factors on the basis of which the
classification is made, since in the variform sphere of activity of
the administrative organs it is sometimes difficult to decide,
firstly, whether the case falls within article 6(1) of the European
Convention and secondly, if it does, whether its provisions have been
complied with. With regard to the first decision, bearing in mind the
tendency of the ECHR to lay emphasis on rights under private law as
opposed to factors of public law, which means beneficial
interpretation in favour of the citizens, we are of the view that we
must approach the recourses before us on the basis of the right to
impartiality. This granted, we proceed to examine whether the
procedure fulfilled the safeguards of impartiality. In our opinion
the affirmative answer is justified. It appears to us that in all the
cases, without exception, there has been a satisfactory distinction
between the various stages, which consisted in the collection of the
facts, their preliminary examination, the briefing of the applicants
in relation to these, affording them the right to be heard, in
writing or orally, and the final adjudication. The fact that
according to section 38(1)(d) of the Law “... income which
accrues from the imposition of administrative fines on the stations
...” is deposited with the Authority is not, in our view,
inconsistent with impartiality. No private or personal financial
interest is involved. The Authority, as a legal person under public
law, acts impersonally to further the purposes of the Law. According
to the same provision, other income also is deposited with the
Authority, including fees from the grant of licences, the examination
of applications, etc., as well as the State grant, which, in any
event, ensures the financial sufficiency of the Authority so that it
may carry out its work of particular significance in contemporary
society.
Everything we have mentioned on the subject takes into
account the fact that it is the procedure of an administrative organ
and not a judicial one. Article 6 (1) of the European Convention
refers to a procedure before a court. What is needed in cases where
decisions determining civil rights and obligations are issued by
administrative organs is the possibility of access to a court to
challenge the administrative decision: see Albert and Le Compte v.
Belgium Series A Vol. 58 (1983). Where such possibility is
offered, then the extent of the jurisdiction of the Court acquires
significance. In cases concerning decisions by professional
disciplinary bodies the ECHR has considered full jurisdiction of the
National Court indispensable in relation to both factual and legal
matters. Certain decisions of state administrative organs were
approached in the same manner later, whereas in other decisions
which, as it was held, belonged to a domain where the need for
recognition of the state authority in the determination of policy
ought to prevail, it was decided that judicial review was sufficient.
Harris, O’Boyle and Warbrick deal with this aspect in their
work “Law of the European Convention on Human Rights”
(1995) page 194. We quote the following passages which have as a
point of reference the judgment of the ECHR in the case of Zumtobel
v. Austria, Series A Vol. 268 (1993):
“A
problem with the application of Article 6 to administrative
decision-making is that in some areas there are policy considerations
that suggest that the final decision on the merits should rest with
the executive, rather than a court, despite the impact upon an
individual΄s civil rights and obligations that the decision may
have. Decisions concerning the expropriation of land for a road or
for public housing are obvious cases where this can be argued.
Whereas the Court΄s jurisprudence concerning decisions on such
matters as the disciplining of doctors, access to children and the
dismissal of employees require a right of appeal to a tribunal with
΄full jurisdiction’, it is noticeable that in the Zumtobel
case, concerning expropriation, the Court stated that Article 6 was
complied with, regard being had, inter alia, ‘to the respect
which must be accorded to decisions taken by the administrative
authorities on the grounds of expediency’... The Zumtobel
case
was interpreted in this sense in Ikscon
v. UK ...The only judicial remedy then available to the applicant in
respect of the resulting interference with their property rights was
recourse to the English High Court ‘on a point of law’;
the High Court did not have a full right of appeal on the law and the
facts. The Commission held that this limitation on the High Court΄s
jurisdiction did not infringe Article 6. The applicant society had
appealed to the High Court and had been able to put and have
considered by the Court all of the arguments that it wished to make.
Rejecting the applicant΄s, argument that the High Court had
lacked the ‘full jurisdiction’ that Article 6 required,
the Commission stated that it is ‘not the role of Article 6 to
give access to a level of jurisdiction which can substitute its
opinion for that of the administrative authorities on questions of
expediency and where the courts do not refuse to examine any of the
points raised’.”
We are of the view that in the case where the
infringement of the regulatory provisions of the law is examined in
the particularly sensitive and significant domain of radio and
television, the decision in matters which by their nature may be
characterised by subtle nuances and many gradations is justifiably
left, as a matter of state policy, to a special independent Public
Authority. We are of the view that the judicial review provided for
in our system is adequate. We do not, therefore, discern a violation
of the rules of natural justice which are embodied in Article 6 (1)
of the European Convention and Article 30.2 of the Constitution.
The third group
With regard to Article 19 of the Constitution, the
matter of constitutionality that is raised is centred on the position
that the power conferred on the Republic, on the basis of paragraph
5, to require an operating licence in the field of radio and
television broadcasting and cinema, comes within and is not outside
everything included in paragraph 3 as regards the boundaries of the
fundamental right to which paragraphs 1 and 2 refer.
...
According to the applicants, since paragraph 5 is
subject to paragraph 3, the obligations which are imposed by the
operating licence cannot depend on the judgment of the Administrative
Authority. They arise only with reference to all that paragraph 3
subtracts from the fundamental right of paragraphs 1 and 2. Where a
difference appears in relation to the observance of the limits, the
matter is decided by the court. They add, with reference to paragraph
5, that the power to require a licence belongs to the Republic itself
and cannot be transferred to a legal person of public law, such as
the Radio and Television Authority. Their basic position however has
as its core paragraph 3 and more specifically the part of it which
refers to “... penalties prescribed by law ...”.
“Penalties”, according to the applicants, are only
sanctions which are imposed by a criminal Court. And since –
they continue – the sanctions under consideration for violation
of the Law and the Regulations can be viewed only by reference to the
said part of paragraph 3, the entrusting of their imposition to an
administrative organ is not conceivable.
In relation to the meaning of “penalty”,
learned counsel for the applicants referred to Article 12 of the
Constitution, where reference is made to “penalty” in the
context of criminal liability. He also referred to Articles 150 and
162 of the Constitution by which the power of imposing punishment for
contempt is conferred on the court. The advocate contrasted the
administrative fine which, according to his suggestion, “... is
only the specific sum fixed by the Law, as an automatic consequence
(without an administrative procedure and decision taken in accordance
with any free discretionary power of the administrative organ).”
He referred in this connection to the case Director of Social
Security v. Georgiades (1988) 2 Α.Α.Δ.
74, which concerned delays in the payment of social security
contributions. The advocate also referred to the judgment of the Full
Bench in The Republic v. Demand Shipping Co. Ltd. (1994) 3
Α.Α.Δ. 460, which he characterised as another
example of the automatic imposition of sanctions by law. At the same
time, however, he suggested that if the decision in Demand
Shipping Co. Ltd. cannot be viewed in this way, then the
deviation from its reasoning is justified.
In relation to Article 12 a matter was raised from
another angle as well, namely that of dual liability, disciplinary
and criminal. In paragraph 2 of Article 12 it is stated that:
The position of the applicants on this is summarised in
that while section 3(2) (f) of the Law, which is the basic provision
from which the challenged decisions arise, provides for
administrative sanctions for various violations, section 48(6)
nevertheless establishes parallel criminal liability.
In the written addresses the advocate expressed
criticism in relation to the said established system and raised a
query with regard to how the Authority chooses one procedure or the
other, and also about the consequences. This aspect, however, was not
raised in the legal points of the recourses and cannot occupy us. We
observe, in any case, from the standpoint of more general
classification, that while the parallel criminalisation creates
disharmony from which problems could arise, the characterisation of
the cases as administrative is nevertheless not reversed. It is not
necessary for us to go into the potential problems.
We consider that, subject to the scope of the exercise
of the power conferred by paragraph 5 of Article 19 for the
regulation of radio and television broadcasting, the said power comes
within the boundaries of paragraph 3 and cannot exceed them.”
The
Supreme Court then referred, in connection with the third group of
issues raised, to Article 10 of the Convention in the context of the
regulation of radio and television broadcasting, with particular
emphasis on the Court’s judgments in the cases of
Informationsverein Lentia and Others v. Austria, 24 November
1993, § 42, Series A no. 276, and Vgt Verein gegen
Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001 VI. It
further referred to relevant European Community legislation and
case-law, namely the 8th recital of the preamble of
Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by Law, Regulation or
Administrative Action in
Member States concerning the pursuit of
television broadcasting activities – specifically advertising,
sponsors and telemarketing and the judgment of the European Court of
Justice in RTL Television GmbH v. Niedersächsische
Landesmedienanstalt für privaten Rundfunk, Case C-245/01, 23
October 2003.
It
went on to hold as follows:
“... we do not share the opinion of the applicants
that the supervisory prevalence of paragraph 3 of Article 19 over
paragraph 5 excludes administrative sanctions for infringements of
provisions in consequence of arrangements made on the basis of
paragraph 5. By the Radio and Television Stations Law of 1998 and the
Regulations issued in accordance with it, the domain to which
paragraph 5 refers is regulated in a manner which in our opinion is
not in conflict with paragraph 3. Because even if it is identified
with the criminal meaning of Article 12 or the quasi-criminal meaning
of Articles 150 and 162, the sanctions which are provided for by the
Law and Regulations in question are related not to the possibility of
penalties provided for in paragraph 3 but to non-compliance with the
provisions of the Law and the Regulations, which constitute the basis
for the issue of the broadcasting licence. And these provisions are
in harmony with what paragraph 3 permits as terms and restrictions of
the right to freedom of speech and expression in any form, with
reference inter alia to the protection of the rights of others as
well, as it was said also in RTL Television GmbH (supra).
As to the meaning of administrative sanctions, the case
of Demand Shipping Co. Ltd. (supra), like the cases
before us, shows clearly the latitude with which it is viewed. It is
not confined to the financial charge which is automatically imposed
by the Law for non-fulfilment of the stipulated obligation. In Demand
Shipping Co. Ltd. (supra) as in the cases before us, a decision
was issued by the competent Authority whereby a violation was found
in relation to which the fine was imposed: an “administrative
penalty” as the full bench described it there. We see no reason
for divergence from that approach.
Nor do we share the view of the applicants that the
regulatory powers conferred on the Republic by paragraph 5 of Article
19 cannot be exercised on behalf of the State by a public Authority
established by Law. On the contrary, we are of the opinion that the
role of the State is expressed more effectively and more objectively
through such an Authority than through a government service. The same
was done in Greece in 1989 with the establishment of the National
Council of Radio and Television before Article 15.2 of the Greek
Constitution was amended in 2001.
With reference to Article 26 of the Constitution, the
position of the applicants, as their learned counsel explained in the
written submissions, is basically as follows:
“Law
7(1)/98 is an unconstitutional intervention there where the
applicants carry out their work, in the course of which they are
entitled to deal freely (Article 26 of the Constitution) with
producers and directors who provide information, familiarisation,
entertainment through television to any television viewer who may
watch their programme – free of charge –, with the
obligation of course NOT to violate any of the “benefits”
which Article 19(3) of the Constitution listed specifically, which
alone could restrict the right to freedom of information.
It is, we believe, obvious that this position does not
extend beyond what has been put forward in relation to Article 19,
and in particular as regards the relationship between paragraphs 3
and 5. This we have already decided. The same is also valid for
Article 25 (Employment), which has been included in the formulation
of certain arguments. Article 26 (Equality) was argued in particular
in recourse No. 320/99 in connection on the one hand with the said
Articles 25 and 26 and on the other hand with Articles 23 (Property)
and 24 (Taxation). However the same discussion has been included to
some extent in other recourses also.”
Finally,
with regard to recourse no. 320/99, the Supreme Court examined the
applicant’s arguments concerning differential treatment
vis-à-vis the CyBC. The Supreme
Court held as follows:
“The applicants complain that the Cyprus
Broadcasting Corporation, which is a State institution, is not
burdened with the same charges and furthermore that it is supported
financially. They present the charges as an unacceptable deprivation
of property, as the imposition of tax and as an interference with
their work and the contracts they enter into. We do not discern any
unconstitutionality in the imposition of charges. Obviously this is
not taxation. Next, objection to the co-existence of a public
television station and private ones may not in principle be put
forward since the right which is safeguarded by Article 19 may be
promoted more fully and more effectively by this co-existence. In
Antenna T.V. Ltd and another v. 1.The Electricity Authority of
Cyprus and 2. Cyprus Broadcasting Corporation, A.E. 28th
November 2002, the Full Bench, by the judgment of Kallis J., said the
following in this connection:
“We
therefore hold that the existence and operation in our country of
public radio and television, which does not aim at profit,
constitutes a form of indirect state control which also aims at
guaranteeing the objectivity of private radio and television. Such a
guarantee serves the public interest. Therefore the existence and
operation of the CyBC., which is a public utility, serves the public
interest. And as stated in the preamble of Law 14/79, the operation
of the CyBC. fulfils an essential social function in the contemporary
state. Consequently we hold that the need to secure income which will
ensure its viability continues to exist even after the enactment of
Law 120/90.”
Public and private radio and television differ in their
nature and mission. This justifies different arrangements for each
case concerning the viability and the adequacy of their operation and
also the financial needs of the independent Authority which the Law
established to safeguard the right referred to in Article 19 of the
Constitution.”
In
conclusion, the Supreme Court held that recourses nos. 809/00 and
304/01 were successful and annulled the corresponding CRTA decisions
on the basis of Article 146 (4)(b) of the Constitution. The remaining
recourses were however dismissed and the respective CRTA decisions
were upheld on the basis of Article 146 (4)(a) of the Constitution.
Two
judges delivered dissenting opinions in which they focused on the
applicant’s arguments concerning the impartiality of the CRTA
in view of the different capacities in which it acted in the
proceedings. The judges expressed the view that in the circumstances
the disputed procedure violated Article 30 of the Constitution and
Article 6 of the Convention and consequently should be annulled. In
their opinion, the cumulative result of the convergence of so many
different competences by the CRTA and especially the fact that the
imposed fine was collected by the authority itself, might reasonably
create doubts about its independence and impartiality. They noted
that the whole climate was aggravated as the CRTA’s decision
was liable to nullification procedure without the right to dispute
the substance. The recourse under Article 146 of the Constitution had
only a nullifying character and the Supreme Court could not go into
the essence of the case. For example, it could not examine the amount
of the fine in terms of proportionality. The dissenting judges
stressed, however, that the above conclusions had no bearing on the
constitutionality of administrative fines.
Following
the judgment, the applicant was reimbursed the sums it had paid in
fines on the basis of the decisions in cases nos. 18/2000(3)
and 113/2000(3) which were annulled by the Supreme Court.
2. Civil proceedings (Application 35122/05)
(a) First-instance proceedings before the
Nicosia District Court
On
20 May 2002 the CRTA brought civil proceedings against the applicant
before the Nicosia District Court seeking payment of the fines it
imposed by three of its abovementioned twenty-seven decisions, namely
the decisions in CRTA cases nos. 18/2000(3), 75/2000(3) and
88/2000(3) (civil actions nos. 5197/2002, 5187/2002 and 5188/2002).
The
applicant’s recourse concerning case no. 18/2000(3) was still
pending before the Supreme Court at the time (recourse no. 809/2000)
whilst its recourse against the decision in case no. 75/2000
(recourse no. 1622/00) had been dismissed by the Supreme Court
on 16 July 2001 as the applicant had failed to file written
observations. The applicant did not bring a recourse against the
decision taken in case no. 88/2000(3).
The
applicant appeared and filed its defence in the actions on 27 May
2002. In its submissions the applicant raised pre-trial objections
alleging that the claims, and consequently the actions, were based on
an unconstitutional law. According to the applicant the legal
provisions for the imposition of the administrative fines in question
were unconstitutional. Further, the applicant claimed that the CRTA
had imposed penalties and not administrative fines and that the
imposition of such penalties infringed the rules of natural justice
and Article 12 of the Constitution as the plaintiffs had acted as
prosecutors, witnesses and judges.
On
1 August 2002 the CRTA filed three separate applications for summary
judgments.
On
21 October 2002 the applicant filed objections to these applications.
It pleaded, amongst other things, that it had a good defence as (a)
the dispensation of justice was complete only when the arguments of
all the parties had been heard in toto; (b) the claims of the
plaintiff were based on an unconstitutional law; (c) the legal
provisions for the imposition of monetary penalties and the claims
for the specific monetary penalties were based on an unconstitutional
law; and (d) it was a penalty which was imposed on the appellants and
not an administrative fine, in violation of the Constitution, which
granted the power of imposing penalties only to the courts (Articles
12 and 19(3) of the Constitution). The applicant’s objections
were accompanied by affidavits from one of its directors stating,
inter alia, that the matter of the constitutionality of the
relevant law was pending before the Supreme Court.
The
hearing of the applications for summary judgments took place on 29
January 2003.
On
21 August 2003 the District Court gave judgment in favour of the
CRTA.
The
District Court, having set out the principles governing summary
proceedings and having referred to the relevant Cypriot and English
jurisprudence, came to the conclusion that the plaintiff
had satisfied all three conditions set by Order 18 r. 1 of the civil
procedure rules. Consequently, the burden of proof shifted to the
defendant to put before the court such facts as would show that it
was right and just to allow it to put forward its defence. It
therefore proceeded to examine the main points raised by the
applicant.
The
District Court analysed the remit of the CRTA under section 3(2)
of the Law by which it had been established and made reference to the
relevant Regulations. Referring to the relevant case-law, the court
emphasised that the decisions of the CRTA by which administrative
fines had been imposed on the applicant were executory administrative
acts which produced legal results until their annulment by the
Supreme Court. Consequently, the fact that a recourse was pending
before the Supreme Court did not constitute a good defence for an
action for the collection of a pecuniary fine imposed by an
administrative decision. The court also made reference to a number of
first-instance judgments of the Supreme Court in recourses brought by
the applicant against certain decisions of the CRTA in which the
applicant’s allegations as to a breach of the rules of natural
justice and the unconstitutionality of the Law had been rejected. In
conclusion, the District Court decided, on the basis of the material
relied upon by the applicant, that an arguable defence had not been
made out.
(b) Appeal proceedings before the Supreme
Court
On
2 September 2003 the applicant lodged appeals before the Supreme
Court against the first-instance judgments (civil appeals nos. 11803,
11804 and 11805).
The
applicant claimed, inter alia, that it had been deprived of
the right to a fair trial in violation of Articles 30 and 35 of the
Constitution given, firstly, that the first-instance judgments had
been given on the basis of Order 18 r. 1 (a) of the Rules of Civil
Procedure, which circumvented its constitutional right to have
recourse to a court and to present its defence in full, and secondly,
that the first-instance court had wrongly decided that the applicant
did not have a good defence despite the fact that matters concerning
the constitutionality of Law 7(1)/98 were pending before the Supreme
Court.
On
18 March 2005 the Supreme Court gave judgment dismissing the appeals.
It concluded as follows:
“(a) The procedure for the issuance of a summary
judgment which is provided for by Order 18 of the Rules of Civil
Procedure secures the right to a fair trial and provides sufficient
guarantee to the parties for the presentation of their case within a
settled framework. In this connection, we observe that, according to
the jurisprudence, only in cases where the defendant fails to show
that he has an arguable defence is summary judgment given against
him.
(b) The decisions of the respondents
were for the imposition of administrative fines on the appellants by
virtue of Law 7(1)/98 and constitute executory administrative acts,
the legality of which may only be disputed according to Article 146
of the Constitution by recourse before the Supreme Court. Until an
administrative act is annulled it remains in force and produces legal
results. In this case the administrative acts were not annulled.
(c) The monetary claims of the appellants, in the
aforementioned actions, were based completely on the aforementioned
administrative acts. The appellants did not succeed in showing in
sufficient detail, as they should have (since the respondents had
satisfied the conditions of Order18), that they had an arguable
defence.
(d) With reference to the constitutionality of Law
7(1)/98 we observe that every law is presumed to be constitutional
until the opposite is proved. This law has not been judged
unconstitutional.
We consider the decisions of the Court of First Instance
to be correct and the grounds of appeal unfounded. The respondents
satisfied the conditions of Order 18 of the Rules of Civil Procedure
while the appellants failed to show that they had a good defence
against the claims or to put before the Court such facts which would
show that it was right and just to allow them to put forward their
defence. Correctly, also, the Court of First Instance did not take
into consideration the defence statements already filed by the
appellants since in applications for summary judgment the facts which
are taken into consideration are those which are set out, in the
correct procedural form, in the application and the objection and the
affidavits which accompany them. The filing of a defence by a
defendant cannot deprive the plaintiff of his right to submit an
application for summary judgment, in the appropriate case, as was
this one.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Revisional jurisdiction of the Supreme Court
Article
146 of the Constitution provides as follows:
“1. The Supreme Constitutional Court shall have
exclusive jurisdiction to adjudicate finally on a recourse made to it
on a complaint that a decision, an act or omission of any organ,
authority or person, exercising any executive or administrative
authority is contrary to any of the provisions of this Constitution
or of any law or is made in excess or in abuse of powers vested in
such organ or authority or person.
2. Such a recourse may be made by a person whose any
existing legitimate interest, which he has either as a person or by
virtue of being a member of a Community, is adversely and directly
affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five
days of the date when the decision or act was published or, if not
published and in the case of an omission, when it came to the
knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision:
(a) confirm, either in whole or in part, such decision
or act or omission; or
(b) declare, either in whole or in part, such decision
or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in
part, ought not to have been made and that whatever has been omitted
should have been performed.
5. Any decision given under paragraph 4 of this Article
shall be binding on all courts and all organs or authorities in the
Republic and shall be given effect to and acted upon by the organ or
authority or person concerned.
6. Any person aggrieved by any decision or act declared
to be void under paragraph 4 of this Article or by any omission
declared thereunder that it ought not to have been made shall be
entitled, if his claim is not met to his satisfaction by the organ,
authority or person concerned, to institute legal proceedings in a
court for the recovery of damages or for being granted other remedy
and to recover just and equitable damages to be assessed by the court
or to be granted such other just and equitable remedy as such court
is empowered to grant.”
73. The
jurisdiction of the Supreme Court under Article 146 is limited to
review of the legality of the act, decision or omission in question
on the basis of the facts and circumstances existing at the time the
act, decision or omission occurred. Paragraph 1 of Article 146 sets
out four grounds upon which annulment is justified: (i) failure
to comply with the Constitution, (ii) failure to comply
with the Law, (iii) acting in excess of or (iv) abuse
of powers. Challenges for annulment under the first three headings
include, inter alia,
lack of competence or jurisdiction, errors or misconception of law or
fact, lack of proper enquiry – that is, failure to ascertain
the facts properly –, lack of due reasoning and failure to
comply with the rules of natural justice and good administration.
Challenges under the fourth head include the use of legal power to
achieve a purpose not contemplated by the law. Should the recourse
succeed, the power of the Supreme Court is confined to declaring an
act or decision null or void, or, in the case of an omission, that it
ought not to have occurred, so that what had not been done should now
be done (Article 146.4). The Supreme Court will not go into the
merits of the decision and substitute the decision of the
administrative authority or organ concerned with its own decision; it
will not decide the matter afresh. If the Supreme Court annuls the
act or decision in question, the matter is automatically remitted to
the appropriate administrative authority or organ for re-examination
(see, amongst numerous authorities, Papakyriakou
v. the Public Service Commision,
(1999) 3 C.L.R 720; Yiannis
Koursaros v. the Cyprus Ports Authority
(1999) 3 CLR 345; Vrahimis
Hatzihannas v. the Republic
(1999) 3 CLR 216; Andreas
Kamenos v. the Republic (1998)
3 C.L.R. 25; Stavros
Loizides v. the Minister of Foreign Affairs
(1995) 3 CLR 233; Eleourghia
Pettemeridi Ltd v. the Republic (1994)
3 C.L.R.199; the Republic
v. Theodolou Pantazi
(1991) 3 C.L.R 47; G.& L. Galibers Ltd v. the
Republic (1990) 3 C.L.R 533; Damianos and Another v. the CyBC
(1987) 3 C.L.R. 848; Constantinos Ioannides v. the Republic
(1972) 3 C.L.R 318; Pancyprian Federation of Labour v. the
Board of Cinematograph Films Censors and the Minister of
Interior(1965) 3 CLR 27; Yiallourides v. the
Republic (1969) 3 CLR 379; Constantinou v. the Republic
(1966) 3 CLR 793; Costas M. Pikis v. the Republic (1965)
3 C.L.R. 131; Morsis v. the Republic (1965) 3 C.L.R. 1;
Photos Photiades and Co. v. the Republic (1964) C.L.R. 102;
Stavros Rallis v. the Greek Communal Chamber , 5 R.S.C.C.1;
Argiris Mikrommatis v. the Republic 2 R.S.C.C. 123).
B. The relevant legal framework and administrative
regulations concerning broadcasting
1. Constitutional provisions
Article
19 of the Constitution guarantees freedom of expression. It also
stipulates that this right does not prevent the authorities from
requiring licensing for audio, audiovisual and cinema enterprises. It
provides as follows, in so far as relevant:
“1. Every person has the right to freedom of
speech and expression in any form.
2. This right includes the freedom to hold opinions and
receive and impart information and ideas without interference by any
public authority and regardless of frontiers.
3. The exercise of the rights provided in paragraphs 1
and 2 of this Article may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
only in the interests of the security of the Republic or the
constitutional order or the public safety or the public order or the
public health or the public morals or for the protection of the
reputation or rights of others or for preventing the disclosure of
information received in confidence or for maintaining the authority
and impartiality of the judiciary.
(...)
5. Nothing in this Article contained shall prevent the
Republic from requiring the licensing of sound and vision
broadcasting or cinema enterprises.”
2. The Radio and Television Stations Law of 1998 (Law
7(I)/1998) (Ο περί Ραδιοφωνικών
και Τηλεοπτικών
Σταθμών Νόμος
του 1998) as applicable at the time
Law
7(I)/1998 on the establishment, installation and operation of radio
and televisions stations amended and consolidated Laws 120/1990
and 29(I)/1992 on radio and television respectively. The Law
incorporates basic provisions of the European Directive of 3 October
1989 on the coordination of certain provisions laid down by Law,
Regulation or Administrative Action in Member States concerning the
pursuit of television broadcasting activities, as amended by
Directive 97/36 EC of
30 June 1997. These provisions concern procedures and criteria for,
inter alia, granting broadcasting licences, protecting minors
and restricting the duration and content of advertisements,
telemarketing and sponsorship. Prior to the amendment of the Law in
April 2004 by Amending Law 97(I)/2004 of 30 April 2004, Law 7(I)/1998
applied only to commercial/private broadcasting and not to the public
service broadcaster CyBC. A dual public/private broadcasting system
therefore existed before this amendment. The provisions were also
limited to broadcasters licensed by the CRTA.
Although
Law 7(I)/1998 has been subject to a number of amendments since 2004,
most recently in 2010 by Law 118(I)/2010 in order to incorporate
provisions of the European Audiovisual
Media Services Directive of 10 March 2010, the
relevant legal provisions set out below are those which were
applicable at the material time the relevant CRTA decisions were
taken and do not, therefore, include these subsequent amendments.
(a) Relevant provisions concerning the
establishment and remit of the CRTA
77. The
CRTA was established under section 3 of Law 7(I)/1998 which sets out
its functions. It provides, as follows, in so far as relevant:
“(1) An independent Authority, called the “Radio
and Television Authority of Cyprus” is established.
(2) The Authority shall have the following powers:
(a) to grant, revoke, renew and amend licences for the
purpose of serving the public interest;
(b) to issue circulars, instructions and recommendations
for the observance of the principles of the press ethics code with
which the stations should comply;
(c) to examine, ex proprio motu or following
representations, matters concerning compliance with the principles
set out in section 26;
...
(f) to impose sanctions, having heard the interested
parties about a violation of :
(i) the provisions of this Law or the Regulations which
are issued thereunder;
(ii) the journalistic code of conduct, following an
application by the Media Complaints Commission;
(iii) the conditions of the licence;
(iv) circulars, directives or recommendations which are
issued on the basis of paragraph (b) of this section.
For the purposes of the present paragraph the term
“sanction” includes a recommendation, warning, temporary
suspension of service of a station for a period not exceeding three
months, revocation of the licence as set out in section 25 of the
present law, as well as the imposition of an administrative fine for
every day of violation by the station of this law or of the terms of
its licence, as follows:
(i) not exceeding 5,000 Cypriot pounds in respect of a
Cyprus-wide television station;
(ii) not exceeding 2,000 Cypriot pounds in respect of a
radio station;
(iii) not exceeding 1,000 Cypriot pounds in respect of a
local television or radio station;
(iv) not exceeding 500 Cypriot pounds in respect of a
small local radio station.
...
(i) To exercise the powers and to carry out the duties
entrusted to it by this Law and the Regulations issued under it.
(j) To deal with matters concerning improved
implementation of the legislation governing stations and to submit
relevant suggestions.
(k) To monitor compliance by the stations with the
provisions of this Law and the Regulations issued under it, as well
as with the circulars or recommendations issued by the Authority
itself on the basis of paragraph (b) of this subsection.
3. The Authority may:
(a) Sue or be sued;
...
(d) take any step which is required for the fulfilment
of its objectives under this Law or which contributes to the
attainment of its objectives.”
Section
4 concerns the composition and appointment of the CRTA. It provides
as follows, in so far as relevant:
“(1) The Authority consists of the president,
vice-president and five members, appointed by the Council of
Ministers.
(2) The president, vice-president and members of the
Authority are appointed for a period of six years and come from the
fields of literature, art, science or technology; or are persons with
expertise in matters concerning the media, of a high professional and
moral standard.
(3) No person shall be appointed as a member of the
Authority, if he has a direct or indirect interest in any radio or
television enterprise or in the Cyprus Broadcasting Corporation.
...”
Section
9 provides for the services of the CRTA. Paragraph 7 provides that
the CRTA may transfer its functions to its director or to committees
composed of its members and in which the director as well as other of
its officials may participate.
Section
12 provides that the CRTA shall grant a licence for the
establishment, installation and operation of a television or radio
station.
Section
24 provides for the payment of fees for the grant of a licence and
the creation, installation and operation of a radio or television
station, and for the payment of a percentage of the income from
advertisements:
“...
(a) for a Cyprus-wide/pancyprian television station
£30,000;
(b) for a local television station £7,000;
(c) for a pancyprian radio station £3,000; and
(d) for a small local radio station £500.
0.5% of the income of the stations from advertisements
which they broadcast in their programmes, shall also be paid to the
Authority as a fee.”
Section
38 concerns the revenue of the CRTA and provides as follows:
“(1) The Authority shall have a separate Fund into
which the following shall be deposited:
(a) Fees from the issue of licences;
(b) Fees from the examination of applications for the
issue, renewal or amendment of licences;
(c) Any grant or other revenue which is given to,
or collected by, the Authority;
(d) Revenue from the imposition of administrative fines
on stations in accordance with section 3 of this Law;
(e) All the revenue produced by the assets of the
Authority;
(f) Any government grant;
(2) The Fund of the Authority shall pay:
(a) All the salaries of its staff and the remuneration
of its members;
(b) The contributions of the Authority to other related
organizations;
(c) The interest on any loan contracted by the
Authority;
(d) Any other amount legally owed by the Authority.
(3) The monies of the Authority which are not
immediately needed for its legal payments may be invested in any
manner that may be decided by the Authority.”
(b) Provisions concerning broadcasting
Section
26 sets out the principles governing broadcasts. It provides as
follows:
“(1) The broadcasts of every licensed station
should be governed
(a) by the principles
of objectivity, fullness and topicality of information. The fullness
of the programme of a non-thematic station, is indicated:
(i) by the percentage of informative programmes,
excluding news bulletins, which are broadcast between the hours of
12.00 to 24.00, which should not be lower than 7% of the total
broadcasting time during one week;
(ii) by the percentage of the cultural programmes which
are broadcast between the hours of 12.00 to 24.00, which should
constitute of at least 2% of the broadcasting time excluding the time
for news, sport events, television/radio games, advertisements or
teleshopping services.
Provided that the above percentages shall apply also to
encoded broadcast stations only as regards their programme which is
broadcast in a non-encoded form.
(b) by high quality,
(c) by pluralism and the greatest possible access to the
public and its agencies,
(d) by the safeguarding of the quality of the language,
(e) by respect for the personality, reputation and
privacy of individuals;
(f) by respect for the ideals of democracy and human
rights;
(g) by the safeguarding of the national identity and the
cultural heritage of the people of Cyprus.
(2) News bulletins and topical/current affairs
programmes should be characterised by objectivity and pluralism,
particularly regarding political issues but also regarding any social
matters which occupy public opinion.
(3) The broadcasting of programmes in which techniques
directed at the subconscious are used is prohibited.”
Section
33 sets out the conditions concerning the broadcasting of
advertisements and telemarketing. It provides as follows, in so far
as relevant:
“...
(2) The broadcast of advertisements and teleshopping
messages by a station should be in keeping with, or, depending on the
case, should not violate, the following provisions:
...
(d) Surreptitious advertising and telemarketing are
prohibited.
...
(h) When advertisements or telemarketing messages are
shown in broadcasts other than those envisaged in paragraph (f), a
period of at least twenty minutes between two successive breaks in
the broadcasts should be allowed.
...
(j) News bulletins may be interrupted only once, in
their middle, for the broadcasting of advertisements or telemarketing
messages.
...
(4) Any form of advertisement and telemarketing of
cigarettes and other tobacco products is prohibited.
(5) (a) The advertisement of medicines and medical
treatments which are dispensed only on the basis of a doctor’s
prescription shall be prohibited as shall be the telemarketing of
medical treatments.
(b) Telemarketing of medicines for which a marketing
licence is required under the Human Use Medicines (Control of
Quality, Supply and Prices) Laws of 1967 to 1995 by stations coming
under the jurisdiction of the Republic is prohibited.
...
7. (a) The advertisement should not harm minors morally
or physically and, specifically, for the purpose of their protection,
it should meet the following conditions:
(i) It should not directly incite minors to purchase a
product or a service, exploiting their inexperience and credulity.
...”.
Section
34 sets out the conditions concerning the duration of advertisements
and telemarketing and the advertisement of children’s toys. It
provides as follows, in so far as relevant:
“...
(4) The advertisement of children’s toys by
stations coming under the jurisdiction of the Republic, is
prohibited:
(a) From morning until ten in the evening daily;
(b) From morning until eleven in the evening during
(i) school holidays as they are defined at any time in
the Regulations on the Operation of State Schools of Secondary and
Primary Education;
(ii) Saturday and Sunday;
(iii) The days preceding the above.”
(c) Provisions concerning criminal
offences
Sections
48 and 49 provided for criminal offences and criminal responsibility
of legal persons. They read as follows:
“48 (1) Any person who establishes, installs or
operates a station without the licence of the Authority or in
violation of the terms which are set out in his licence is guilty of
a criminal offence and, in the event of conviction, is liable to
imprisonment up to three years or a fine which does not exceed twenty
thousand pounds or to both penalties.
(2) A person who intentionally and systematically
interferes with the transmission of a licensed station is guilty of a
criminal offence and, in the event of conviction, is liable to
imprisonment up to three years or a fine which does not exceed twenty
thousand pounds or to both penalties.
(3) A person who intentionally seeks to influence a
member of the Authority or of the Advisory Radio and Television
Committee in the exercise of his responsibilities is guilty of a
criminal offence and, in the event of conviction, is liable to
imprisonment up to three years or a fine which does not exceed twenty
thousand pounds or to both penalties.
(4) In the event of the conviction of a person for an
offence committed in violation of this Law and the Regulations issued
on the basis thereof, the Court may in addition to the imposition of
any other penalty order the immediate termination of the operation of
the station which belongs to the said person, for so long as and on
such terms as the Court may deem expedient to impose.
(5) A person against whom an order has been issued by
virtue of the above sub-section and who neglects, omits or refuses to
conform commits an offence and, in the event of conviction, is liable
to imprisonment for a period which does not exceed two years or a
fine which does not exceed two thousand pounds or to both penalties.
(6) A person who violates any provision of this Law or
the Regulations issued on the basis thereof is guilty of a criminal
offence and, in the event of conviction, is liable to imprisonment
for a period which does not exceed three years or a fine which does
not exceed twenty thousand pounds or to both penalties.”
“49. In the event that any of
the offences referred to in this Law are committed by a legal person,
the responsibility for the said offence is borne by, apart from the
legal persons themselves:
(a) all the members of the Administrative or Management
Board or Committee which manages the affairs of the legal person;
(b) the general manager or the manager or the managing
director of the legal person,
and the criminal prosecution for the offence may be
brought against the company and against all or any of the above
persons.”
The
above sections were abolished by section 24 of Amending Law
97(1)/2004.
87. Under
Section 51 the CRTA is given the authority to issue Regulations, for
the improved implementation of the Law and following the approval of
the Council of Ministers, to regulate a number of matters, including,
the imposition of fines for violation of the provisions of the Law
and the Regulations, where these are not envisaged by the Law
(section 51(2(n)).
3. The Radio and Television Stations Regulations of 2000,
(Regulatory Act 10/2000) (Οι Περί
Ραδιοφωνικών
και Τηλεοπτικών
Σταθμών Κανονισμοί
του 2000) as applicable at the time
Part
I of the Regulations sets outs the definition of certain of the terms
used in the Regulations. In this the term “family zone”
is defined as the hours during which non-encoded programmes suitable
for persons under the age of fifteen are broadcast. It starts at 5.30
a.m. and ends at 9.00 p.m. on nights which are followed by working
days and at 10.00 p.m. on nights which are followed by non-working
days (Saturday, Sunday, public holidays and school breaks as these
are defined by the current Regulations concerning the Operation of
State Schools of Secondary and Primary Education.
Part
II of the Regulations concerns the licence for the establishment,
installation and operation of a station. Regulation 5 sets out the
fees to be paid for such a licence.
Part
VI of the Regulations concerns the supervision of programme content.
The relevant Regulations, at the material time, provided as follows:
Regulation 21 (Introductory provisions)
“...
(3) Stations are obliged in all broadcasts (including
advertisements) to show respect for the personality, honour,
reputation, private life, professional, scientific, social, artistic,
political or other related activity of every person whose image
appears on the screen or whose name is broadcast by a station or is
mentioned, or about whom such details are transmitted as enable the
recognition of his identity. The above obligation extends to every
individual or the image generally of a person as an individual or a
member of a group.
(4) Stations shall take the necessary steps to maintain
generally acceptable standards of propriety and good taste of
language and behaviour, taking into account the type and context of
each broadcast. Special care is imperative in programmes which are
transmitted at a time when minors may be watching.
(5) Stations have the responsibility of ensuring that
the viewers or listeners are always informed of the content of the
programme which they are watching.
(6) Stations shall ensure that the programmes which are
broadcast in the family zone are suitable for children under fifteen.
...”
Regulation 22 (classification of films, warnings for
television programmes)
“(1) On the basis of the criteria set forth in
these Regulations, warnings shall be given in relation to the nature
of the broadcast, irrespective of whether it is aired in the family
zone or outside it. This warning shall be of three kinds:
(a) Written notice in the daily press and in radio and
television magazines;
(b) Spoken notice before the commencement of the
broadcast;
(c) Visual notice, with a visual indication every ten
minutes in the bottom left-hand corner of the screen as follows:
(i) (K) in brackets, in green, for programmes suitable
for general viewing;
(ii) (12) in brackets, in yellow, for programmes
unsuitable for persons under twelve years of age.
(iii) (15) in brackets, in blue, for programmes
unsuitable for persons under fifteen years of age.
(iv) (18) in brackets, in red, for programmes unsuitable
for persons under eighteen years of age.
(v) (A) in brackets, for programmes of intense erotic
content.
(2) The programmes which come under categories (15) and
(18) may be shown only outside the family zone.
...”
Regulation 24 (News bulletins)
“(1) (a) The news bulletins shall be prepared in
advance and transmitted with accuracy, objectivity, impartiality,
multifariousness and the greatest possible fullness.
...
(2) ...
(d) the broadcasting of scenes that may be unsuitable
for minors or touch the sensitivities of the viewers shall be brief
and be accompanied by visual or spoken warning;
...
(3) The transmission of the names of persons dead,
wounded or missing [as the result of hostilities], victims of
shipwrecks and missing persons is prohibited before it is absolutely
certain that their next of kin have been informed.”
Regulation 26 (Contents of entertainment programmes)
“...
(l) [In entertainment programmes] the transmission of
broadcasts which offend against the dignity of either sex, racial,
national, religious groups or persons with special needs is
prohibited.”
Regulation 32 (Protection of minors)
“...
(2) Non-news broadcasts which project degrading or cruel
treatment of human beings or animals, or other unacceptable or
condemnable behaviour or displays of violence shall not be
transmitted within the family zone.
(3) (a) The broadcast of programmes within the family
zone which may seriously harm the physical, intellectual or moral
development of minors and particularly programmes which contain
erotic scenes or scenes of violence is prohibited.
...”
Part
VII of the Regulations concerns the examination by the CRTA of
complaints and violations. The relevant Regulations provide as
follows:
Regulation 41 (Powers of the Authority)
“(1) The Authority has the power to examine
complaints from the public which are submitted to it:
(a) for unfair treatment by stations in informative or
entertaining programmes;
(b) for a violation of private life by the screening of
material contained in such programmes;
(c) for the transmission, in violation of the Law and
the Regulations, of sexual activity or excessive and unjustified
violence in informative or entertaining or other programmes;
(d) for the inability of the television station to
maintain acceptable levels of decorum vis-à-vis the public, in
accordance with the provisions of the Law and the Regulations;
(e) for interference with radio waves and for any other
problems relating to the transmission of the signal.
(2) The Authority has power, ex proprio motu and
independently of complaints from the public, to examine violations by
any station if it comes to its notice that the provisions of the Law
and Regulations may not have been complied with.
...”.
Regulation 42 (Procedure for examination of
violations)
“(1) The Authority may, on each occasion, appoint
a committee or committees consisting of at least four (4) members to
examine complaints or violations as provided below.
(2) Without prejudice to the power conferred on the
Authority by the Law to transfer its powers, the Authority may
transfer any of its powers by virtue of this Part to a committee
composed of servants of the Authority.
(3) When a complaint is submitted or violations of the
Law or of the Regulations come to the notice of the Authority, the
Authority appoints an official to investigate each complaint or
violation.
(4) The official has power to hear any witnesses and to
take written statements from the persons involved, who are obliged to
give all relevant information or facts.
(5) After the completion of the investigation, the
official reports his finding to the Authority, fully reasoned,
submitting at the same time all the relevant material.
(6) The procedure before the Authority is conducted as
appointed below:
(a) A copy of the probable violation or the complaint is
sent to the station against whom the charge is made.
(b) The station against whom the charge is made (the
respondent) is invited to submit its representations either in person
or in writing.
(c) The Authority has power:
(i) To summon witnesses and to require their attendance,
as well as the attendance of the respondent and also the complainant.
(ii) To admit any evidence, written or oral, even if it
would not have been admitted in civil or criminal proceedings.
(iii) To require production of every document or other
exhibit which is relevant to the case.
7. The respondent is obliged, if so required by the
Authority:
(a) to submit to the Authority and/or to the complainant
a written statement in answer to the complainant;
(b) to supply the Authority with a visual or audio
recording of the programme under accusation or of any specific part
thereof;
(c) to make suitable arrangements, to enable the
complainant to see or hear the programme under accusation or any
specific part thereof;
(d) to supply to the Authority and the complainant the
transcript of the programme under accusation or any specific part
thereof;
(e) to supply to the Authority and the complainant
copies of any relevant documents which are in its possession –
either the originals or certified copies – and any
correspondence which may have taken place between the accused and the
complainant in connection with the specific complaint;
(f) where the accused is a station, to arrange together
with one or more members of the Administrative Board or with members
of its staff to cooperate with the Authority in order to assist with
the examination of the complaint;
(g) where the accused is a private production or
distribution company, to ensure that one or more members of its staff
cooperate, in order to assist with the examination of the complaint.
(8) Every decision of the Authority must be reasoned and
signed by its chairman and be communicated in writing to the person
against whom the accusation was made and, in the case of a complaint,
to the complainant.
...
(10) The Authority may by its decision either find the
person against whom the accusation was made guilty and impose on him
any of the sanctions provided for in the Law, or discharge him of the
charge.”
Part
VIII includes, inter alia, Regulations on the payment of fees
and fines and the taking of legal action when payment has not been
made. The relevant Regulations provide as follows:
Regulation 47 (Method of payment)
“The fees or administrative fines or any other
debts are paid to the Authority irrespective of any objection or
recourse.”
Regulation 48 (Judicial or legal measures)
“(1) The Authority may take legal steps to secure
payment of any charges, administrative fines or any other debts
against any person and may collect such sums with all legal costs as
a debt owed to the Authority.”
Appendix
VIII of the Regulations sets out the journalistic code of conduct for
the electronic mass media. Paragraph 8 of Part I provides as follows:
“Journalists in the performance of their function:
...
(2) Shall display fitting sensitivity in matters which
concern national security and shall be particularly careful in the
presentation of matters such as violence, crime, human pain and
death, as well as information or pictures which may cause panic,
horror or revulsion.”
Paragraphs
1, 6 and 10 of Part II of Appendix VIII concern accuracy,
mourning/grief and the principle of presumption of innocence. They
provide as follows, in so far as relevant:
Paragraph 1 (Accuracy)
“...
(2) the electronic mass media, even though they have the
right to support specific views, are obliged to make clear the
distinction between fact, comment and conjecture.
Paragraph 6 (Mourning/grief)
“In the case of mourning, grief or shock,
close-ups shall be prohibited and the most discreet coverage of the
event is expected. The approach to be adopted should be characterised
by the utmost discretion and sympathy and the avoidance of any act
likely to increase human suffering.”
Paragraph 10 (presumption of innocence)
“Journalists shall fully respect the principle
that a person suspected or accused of committing an offence is
innocent until proof, in accordance with the law, of the contrary and
shall consequently avoid publishing anything which will lead to a
conclusion about the guilt or innocence of the suspect and/or accused
or tends to malign or pillory him.”
Appendix
IX of the Regulations sets out the code for advertisements,
telemarketing messages and sponsorship of radio and television
programmes. Paragraph 3 of Part E concerns sponsorship and provides
as follows:
“Programmes which are sponsored must be identified
by the name and/or the logo of the sponsor, featured at the beginning
and/or the end of the programmes. The constant or intermittent
display on screen of the name, distinctive title and/or trademark of
products or services offered by the sponsor is prohibited and in any
event shall constitute an advertisement which is subject to the
corresponding restrictions.”
4. The Cyprus Broadcasting Corporation and Law, Cap.
300 A, (Ο Περί Ραδιοφωνικού
Ιδρύματος Κύπρου
(ΡΙΚ) Νόμος)
The
Cyprus Broadcasting Corporation Law, Cap. 300A, provides for the
establishment of the CyBC, its powers and functions, the procedures
for appointing its personnel and their status. The CyBC is a public
service institution (Article 122 of the Constitution) and is
State-funded. It is the public broadcaster of
the Republic.
Section
2 of Cap. 300A, as amended by Amending Law 116(I)/2003, stipulates
that the mission of the CyBC is to provide public
broadcasting services within the Republic, responding directly to the
democratic, social and cultural needs of Cypriot society and to the
need to secure pluralism of, inter
alia, cultural and linguistic
diversity in the mass media, including a balanced package of services
consisting of informative, cultural and entertainment programmes,
social service programmes, programmes addressed to overseas Cypriots,
and transmissions related to national emergencies and civil
protection efforts. The functions of the CyBC are set out in
section 17 of Cap. 300A.
The
Regulations on Public Service Broadcasting of 2003 (Περί
Ραδιοφωνικού
Ιδρύματος Κύπρου
(Δημόσια Ραδιοτηλεοπτική
Υπηρεσία) Κανονισμοί
του 2003) define the criteria the CyBC should
satisfy in order to qualify for the title of public service
broadcaster. These criteria are based on the need to respect specific
quotas for each category of programmes.
The
CyBC is governed by a Board of Directors which is appointed for a
three-year term by the Council of Ministers (section 5). One of the
members of the Board is appointed as President by the Council of
Ministers (section 5). The Director General is the chief executive
officer, appointed by the Board of Directors and endorsed by the
Council of Ministers (section 9). The General Auditor performs an
annual audit of the accounts of the CyBC in order to ensure that the
public funding received was not used in a way that would harm
competition against the public interest (section 24B (1) Amending
Law 116(I)/2003 and Article 116 of the Constitution). The CyBC
can also have its accounts examined by a certified private auditor
appointed by the corporation and approved by the General Auditor
(section 24B(1)). The CyBC’s budget is approved by the Council
of Ministers and the House of Representatives.
Cap.
300 A sets out, inter alia, a number of conditions and
obligations concerning broadcasting. At the material time, the
conditions concerning the broadcasting of advertisements and
telemarketing, including those concerning the broadcasting of
advertisements of children’s toys [section 17A as introduced by
section 5 of Amending Law 8(I)/1998)] were the equivalent of those
set out in sections 33 and 34 of Law 7(I)/1998 (see paragraphs 84 and
85 above). Further, section 19 defines the obligations of the CyBC to
provide programmes which, inter alia, are not likely to stir
feelings of hatred based on race, gender, religion or nationality, or
impair the physical, mental or moral development of minors, and to
use appropriate acoustic and visual warnings.
Amending
Law 96(I)/2004 of 30 April 2004 extended the watchdog powers of the
CRTA to the CyBC. In particular, it gave the CRTA the power to
investigate possible breaches of the law and impose sanctions for
breaches of the law relating, inter alia, to advertising,
sponsorship and telemarketing, and to the protection of minors
(sections 22B and C of the Amending Law). Cap, 330A has been subject
to a number of amendments since 2004, the most recent being in 2010,
by Law 117(I)/2010.
C. Relevant Constitutional provisions concerning the
protection of human rights
Article 12 of the Constitution safeguards the right of the accused.
It provides as follows, in so far as relevant:
“1. No person shall be held guilty of any offence
on account of any act or omission which did not constitute an offence
under the law at the time when it was committed; and no person shall
have a heavier punishment imposed on him for an offence other than
that expressly provided for it by law at the time when it was
committed.
2. A person who has been acquitted or convicted of an
offence shall not be tried again for the same offence. No person
shall be punished twice for the same act or omission except where
death ensues from such act or omission.
3. No law shall provide for a punishment which is
disproportionate to the gravity of the offence.”
Article
28 of the Constitution safeguards equality before the law and
prohibits discrimination. Unlike Article 14 of the Convention, it is
an independent provision. It reads as follows, in so far as relevant:
Article 28 (equality/prohibition of discrimination)
“1. All persons are equal before the law, the
administration and justice and are entitled to equal protection
thereof and treatment thereby.
2. Every person shall enjoy all the rights and liberties
provided for in this Constitution without any direct or indirect
discrimination against any person on the ground of his community,
race, religion, language, sex, political or other convictions,
national or social descent, birth, colour, wealth, social class, or
on any ground whatsoever, unless there is express provision to the
contrary in this Constitution.”
Article
35 of the Constitution provides that the legislative, executive and
judicial authorities of the Republic shall be bound to secure, within
the limits of their respective competence, the efficient application
of the provisions of the Constitution concerning fundamental rights
and liberties.
D. Relevant Rules of Civil Procedure
Order
18 r.1(a), concerning summary judgment and leave to defend where the
writ has been specially indorsed, provides as follows:
“1.(a) Where the defendant appears to a writ
of summons specially indorsed under Order 2, Rule 6, the plaintiff
may, on affidavit made by himself or by any other person who can
swear positively to the facts, verifying the cause of action, and the
amount claimed (if any), and stating that in his belief there is no
defence to the action, apply for judgment for the amount so indorsed,
together with interest (if any), or for the recovery of the land
(with or without rent), or for the delivering up of a specific
chattel, as the case may be, and costs. And judgment for the
plaintiff may be given thereupon, unless the defendant shall satisfy
the Court that he has a good defence to the action on the merits, or
disclose such facts as may be deemed sufficient to entitle him to
defend.”
THE LAW
I. JOINDER OF THE APPLICATIONS
In
the applications the applicant submitted various complaints about the
proceedings before and various decisions of the CRTA, the judicial
review proceedings and civil proceedings and the allegedly different
treatment it received vis-à-vis the public service broadcaster
CyBC. It invoked Articles 6 § 1, 10, 13 and 14 of the
Convention, Article 1 of Protocol No. 1 and Article No. 1 of Protocol
No. 12.
Given
the similar factual and legal background of the applications and
complaints, the
Court decides that they should be joined pursuant to Rule 42 § 1
of the Rules of Court.
II. ADMISSIBILITY OF THE APPLICATION WITH REGARD TO CRTA
CASES nos. 18/2000(3), 75/2000(3), 88/2000(3) and 113/2000(3)
A. Compatibility ratione personae: complaints as to the
proceedings concerning the CRTA’s decisions in cases nos.
18/2000(3) and 113/2000(3)
1. The parties’ submissions
The
Government submitted that the applicant could not claim to be a
victim, within the meaning of Article 34 of the Convention, of a
violation of its rights under the Convention to the extent that its
complaints were directed against the CRTA’s decisions in cases
nos. 18/2000(3) and 113/2000(3), which had been annulled by the
Supreme Court and the amount paid as a fine by the applicant
refunded. This applied to both the judicial review proceedings and
the civil proceedings
The
applicant made no submissions in this respect.
2. The Court’s assessment
The
Court notes that on 24 February 2003 the Supreme Court annulled the
abovementioned CRTA decisions challenged with recourses 809/00 and
304/01 as it found the procedure followed by the CRTA defective and,
therefore, that the decisions lacked the necessary legal basis. The
decisions were consequently declared null and void and the applicant
was reimbursed the fines paid, including the fine that had been the
subject of civil proceedings (civil action no. 5197/2002 and
civil appeal no. 11804). Even though the CRTA had been successful in
the civil proceedings taken against the applicant for the payment of
the fine imposed by the decision in case no. 18/2000(3), in the end
that decision was annulled in the context of the judicial review
proceedings, so these proceedings were eventually of no consequence.
In
these circumstances, the Court considers that the applicant cannot
claim, within the meaning of Article 34 of the Convention, to be a
victim of a violation of his rights guaranteed by the Convention and
the protocols thereto. Accordingly, this part of the application must
be rejected pursuant to Article 35 § 4.
B. Exhaustion of domestic remedies: complaints as to
the proceedings concerning the CRTA’s decisions in cases
nos. 88/2000(3) and 75/2000(3)
1. The parties’ submissions
The
Government submitted that in so far as the applicant’s
complaints concerned the CRTA’s decisions nos. 88/2000(3)
and 75/2000(3), the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention. The
decisions constituted executory administrative acts the legality of
which should have been challenged by way of administrative recourse
under Article 146 of the Constitution. The Government first pointed
out that the applicant had not brought a recourse against the
decision in case no. 88/2000(3), on the basis of which the fine
sought to be recovered in the civil proceedings was imposed.
Secondly, although the applicant had brought a recourse against the
decision in case no. 75/2000(3), this had been dismissed by the
Supreme Court for failure on the part of the applicant to file
written submissions. No attempt had been made by the applicant to
have the above recourse reinstated. Instead, the applicant had tried
to challenge the above decisions in the context of its defence in the
civil proceedings brought against it by the CRTA for the payment of
the fines. In such proceedings, however, grounds pertaining to the
legality of an administrative decision, including issues as to the
proportionality of the fine imposed by such a decision, could not be
put forward as a defence to the debt claim and could not be examined
by the civil courts, as they were matters that fell within the
revisional jurisdiction of the Supreme Court. The Government
underlined that decisions of administrative authorities giving rise
to rights and obligations were considered to be legal and enforceable
unless and until they were declared null and void by the Supreme
Court in a recourse brought under Article 146.
The
applicant disputed the Government’s submissions. It maintained
that in view of the findings of the full bench in its judgment of 24
February 2003, there was no point in bringing a recourse against the
decision in case no. 88/2000(3) or an appeal against the decision in
case no. 75/2000(3). It was also for this reason that it had put
forward its arguments in the civil proceedings brought by the CRTA.
However these had been dismissed by both the District Court and the
Supreme Court.
2. The Court’s assessment
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system before turning to the Court. The rule is based on the
assumption that the domestic system provides an effective remedy in
respect of the alleged breach. While in the context of machinery for
the protection of human rights the rule of exhaustion of domestic
remedies must be applied with some degree of flexibility and without
excessive formalism, it does not require merely that applications
should be made to the appropriate domestic courts and that use should
be made of remedies designed to challenge impugned decisions which
allegedly violate a Convention right. It normally requires also that
the complaints intended to be made subsequently at the international
level should have been aired before those same courts, at
least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among many other
authorities, Fressoz and Roire v. France [GC], no.
29183/95, § 37, ECHR 1999 I).
The
Court notes that the CRTA’s decisions in question are executory
administrative acts the legality of which should be challenged with a
recourse under Article 146 of the Constitution. As the Government
point out, however, the applicant failed to use this remedy. The
applicant relies on the Supreme Court’s judgment of 24 February
2003 as a ground for absolving it from doing so. The Court firstly,
notes that the two decisions of the CRTA were taken in November 2000,
that is, more than two years before the Supreme Court gave its
judgment in the joint recourses. Secondly, the CRTA decisions
constitute separate executory administrative acts which do not
necessarily give rise to the same grounds for annulment. It cannot be
said therefore that the applicant would have been unsuccessful if he
had brought recourses against these decisions and that the Supreme
Court would have found, in its examination of the legality of the
relevant decisions, that annulment was not justified on any ground.
In this respect the Court notes in particular that the applicant was
successful in two of the twenty-six recourses he had brought. In so
far as the applicant can be taken to claim that he had exhausted
domestic remedies as he had aired his complaints concerning the CRTA
decisions in the civil proceedings brought against him, the Court
notes that the civil courts did not have the competence to examine
matters which fell within the exclusive revisional jurisdiction of
the Supreme Court.
In
these circumstances, it cannot be said that the applicant exhausted
domestic remedies in so far as its complaints under the Convention
and the Protocols thereto concern these two CRTA decisions and the
sufficiency of the scope of review of those decisions by the civil
courts. This part of the application must therefore be rejected under
Article 35 § 1 of the Convention for non-exhaustion of
domestic remedies.
The
Court notes, however, that this conclusion does not concern the
applicant’s complaint of a breach of the principle of equality
of arms in the relevant civil proceedings (see
paragraph 119 below).
III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention
concerning a number of aspects of the proceedings before the CRTA and
the domestic courts. This provision read as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.”
A. The applicant’s complaints under this
provision
The
applicant complained that the proceedings before the CRTA did not
satisfy the independence and impartiality requirement of
Article 6 § 1 of the Convention, and that this
defect had not been remedied by the domestic courts, as in both the
judicial review proceedings and the civil proceedings they did not
have “full jurisdiction” to consider its claims and had
not provided the guarantees of that provision. With respect to the
latter, the applicant raised a number of complaints. In so far as the
judicial review proceedings were concerned, the applicant complained
about a lack of impartiality on the part of the Supreme Court (see
paragraph 134 below), the joint examination of its recourses (see
paragraph 121 below) and the dismissal of its application to submit
further arguments before the full bench. In so far as the civil
proceedings were concerned, the applicant complained of a violation
of the principle of equality of arms.
Further,
in its observations of 30 July 2007, the applicant complained
under Article 13 of the Convention that its cases before the Supreme
Court had not been adequately examined. The Court, however, notes
that this complaint is the same in substance as that raised under
Article 6 § 1 concerning the alleged insufficiency of the scope
of jurisdiction of the domestic courts. The Court reiterates that the
role of Article 6 § 1 in relation to Article 13 is that of a lex
specialis,
the requirements of Article 13 being absorbed by the more stringent
requirements of Article 6 § 1 (see Brualla Gómez de la
Torre v. Spain, 19 December 1997, § 41, Reports of
Judgments and Decisions 1997-VIII). Consequently, it will
consider this part of the application solely under Article 6 § 1
of the Convention.
B. Admissibility of complaints
1. Six months
In
its observations of 30 July 2007 the applicant introduced a new
complaint. In particular, it complained that the joint examination of
its recourses by the Supreme Court sitting as a full bench had
rendered the proceedings unfair as it had been deprived of the
possibility to appeal and it had been denied a fair examination of
pending appeals in other recourses.
The
Court notes that the above complaint was not raised in the
applicant’s application form to the Court but was first
submitted by the applicant in its abovementioned observations. As the
final judgment of the Supreme Court in the recourses was delivered on
24 February 2004, this complaint was not submitted within the
six-month time-limit and must therefore be rejected as inadmissible
pursuant to Article 35 §§ 1 and 4.
2. Compatibility ratione materiae – the
applicability of Article 6 § 1 to the proceedings
(a) The parties’ submissions
The
parties did not contest the applicability of Article 6 § 1 of
the Convention under its civil head to the judicial review and civil
proceedings in question.
Notwithstanding,
the applicant argued, that the fines imposed by CRTA were in fact of
a criminal nature and that therefore their complaints could also be
examined under the criminal head of the Article 6 § 1.
In this connection the applicant drew the Court’s attention to
Section 48 (6) of the Law and relied on the findings of the Court in
the case of Jussila v. Finland ([GC], no. 73053/01, ECHR
2006 XIII).
In
the Government’s submission it was quite clear that Article 6 §
1 of the Convention was not applicable under its criminal head. In
brief, they argued firstly that according to domestic law and the
Supreme Court’s case-law the fines imposed by the CRTA had been
administrative fines – they came within the ambit of
administrative law and were subject to a recourse under Article 146
of the Constitution; secondly, the Law and Regulations were
applicable to a limited and very specific group operating radio and
television stations under the provisions of the applicable law.
Thirdly, the aim of the Law and, by analogy, of the fines was to
ensure that the interests of viewers and listeners were safeguarded
and to discourage non-compliance; its aim was not to collect funds
and to punish stations who failed to comply. The situation was
therefore not akin to that in the Jussila case (cited
above). Furthermore, the administrative procedure was distinguishable
from the criminal procedure set out in section 48 of the Law. Fines
imposed under the administrative procedure were viewed as debts and
could only be recovered through civil proceedings.
(b) The Court’s assessment
Having
regard to the applicant’s complaints, the Court does not find
it necessary to determine whether the criminal limb of Article 6 §
1 is applicable as paragraph 1 of Article 6, violation of which is
alleged by the applicant, applies in civil matters as well as in the
criminal sphere (see Albert and Le Compte v. Belgium, 10
February 1983, § 30, Series A no. 58).
As
the parties do not dispute the applicability to the proceedings at
issue of Article 6 § 1 under its “civil” head, the
Court, seeing no reason to differ, shall examine the present case
under that head.
3. The well-foundedness of the complaints
(a) The parties’ submissions
(i) The applicant
The
applicant alleged that he had been denied a fair hearing before an
independent and impartial tribunal. In this connection he complained
about (a) the proceedings before the CRTA, (b) the judicial review
proceedings before the Supreme Court and (c) the civil proceedings
before the Nicosia District Court and the Supreme Court.
First,
the applicant considered that due to its multiplicity of functions in
prosecuting, investigating, trying and deciding, the CRTA did not
fulfil the requirements of independence and impartiality set out in
Article 6: the CRTA could initiate an investigation not only upon
complaint but also ex proprio motu; the investigation was
carried out by an investigating officer who was an employee of the
CRTA; the CRTA then played the part of the prosecution, and its
members determined the violation of the legislation; and lastly, the
fine which was imposed was paid into its own Fund from which, inter
alia, the salaries of its staff and the remuneration of its
members were paid. In support of its assertions the applicant pointed
to sections 38(1)(d) and 38(2)(a) of the Law. It was the applicant’s
submission, therefore, that the CRTA’s staff and members had a
direct and personal interest in the imposition of fines. The
applicant also claimed that the income generated by fines formed a
substantial part of the annual budget of the CRTA, and that the
continuing operation of the CRTA was therefore dependent upon that
income. The applicant relied on figures given in press releases
issued by the CRTA concerning fines imposed during the first six
months of 2006. There were no figures available for the fines imposed
during the rest of that year or for the period in which the CRTA had
issued decisions against and imposed fines on the applicant.
It
was the applicant’s submission that the review carried out by
the domestic courts had not remedied the defects of the proceedings
before the CRTA to such a degree as to justify a finding that the
proceedings as a whole had been in conformity with Article 6. The
domestic courts did not have “full jurisdiction” to
consider its claims and did not provide the fairness guarantees
required under Article 6 § 1.
With
regard to the judicial review proceedings, the applicant emphasised
that the Supreme Court, in its judicial review capacity, could only
determine the legality of the administrative decisions in question
and could not look into their merits, hear evidence or decide on
matters afresh. The applicant submitted that the Supreme Court did
not and was not able to examine the facts of the case, whether the
CRTA had made correct or adequate findings of fact and whether it had
adequately reasoned its decisions.
The
applicant also stressed that the Supreme Court could not decide upon
the necessity of the imposition of the fines by the CRTA and the
amounts of the fines on the basis of proportionality; it was the
applicant’s submission that this had been the essence of its
cases. The applicant relied on the dissenting opinion given by two of
the Supreme Court judges in the joint recourses to support his
arguments that the Supreme Court could not consider issues pertaining
to the fines.
In
view of the above, the applicant claimed that, as in the case of
Tsfayo v. the United Kingdom (no. 60860/00, 14 November 2006),
the Supreme Court could not be said to have examined the crux of its
case, and that it had not had the benefit of a full review. In
support of its arguments the applicant also relied on the cases,
inter alia, of Albert and Le Compte, cited above;
Belilos v. Switzerland, 29 April 1988, Series A no. 132; and
Gradinger v. Austria, 23 October 1995, Series A no. 328 C.
The
applicant also maintained that the Supreme Court had not been
impartial in the judicial review proceedings, as one of the judges
who had sat on the full bench, had given judgment, at first instance,
in another recourse brought by the applicant raising the same and/or
similar questions.
The applicant noted that it had unsuccessfully raised this issue with
the Supreme Court in its application of 10 February 2004. In its
observations of 30 July 2007 the applicant extended this complaint to
another three judges on the same grounds.
All the first-instance judgments referred to by the applicant had
been given before the Supreme Court’s judgment of 24 February
2004 was delivered.
The applicant argued that as these judges had already issued
judgments rejecting identical and/or similar arguments put forward by
the applicant in other cases, they had the same preconceived opinions
on how to decide the recourses, and could reasonably be expected not
to rule against their initial decisions. As a result the whole bench
had been tainted.
Finally,
with regard to the civil proceedings, the applicant claimed that the
civil courts had also not examined the merits of its claims as they
had decided that the decisions of the CRTA could not be examined in
the context of the civil proceedings.
(ii) The Government
The
Government argued that the present case differed from the Tsfayo
case. The CRTA did not act as a reviewing body in respect of
decisions taken by other administrative bodies but was an independent
body set up by Law 7(I)/1998 with the purpose of giving effect to its
provisions concerning the standards and principles to be adhered to
in the public interest by television and radio stations. Unlike in
Tsfayo, the applicant had not submitted any evidence
showing a lack of impartiality on the part of the CRTA. In this
connection, the Government submitted that the applicant’s
arguments concerning the alleged financial interest of the CRTA in
imposing fines were flawed. They noted that the members of the CRTA,
including the President and Vice President, did not receive a fixed
salary and were not engaged on a full time basis. All the members
received an amount as compensation for attending meetings, plus
travel expenses. This was the usual practice in Cyprus with members
of public benefit bodies and organisations. In addition the President
of the CRTA received an additional annual amount as compensation
and/or reimbursement for attendance costs.
Furthermore,
the Government pointed out that the CRTA, being a licensing
authority, received various fees, including, annual licence fees, an
annual fee of 5% on the proceeds received by stations from
advertising, as well as fees for the examination, issuing, renewal
and amendment of licences. The sums received went into a separate
fund and could be used by the CRTA to pay its operational costs. The
Government referred to sections 24 and 38 of the Law and
Regulation 5. It could not therefore be said that the CRTA was
dependent on administrative fines to cover its operating costs,
including salaries and compensation paid for attending meetings. The
Government considered that the figures the applicant relied on
concerning fines, licence fees and operational costs were irrelevant
as they concerned a different period in time.
Notwithstanding,
the Government argued that even if the Court considered that the
proceedings before the CRTA did not comply with Article 6 of the
Convention, they had been challenged before the Supreme Court, which
had sufficient jurisdiction to ensure that the process as a whole
complied with the guarantees of that provision. In this regard the
Government submitted that the general principles of administrative
law developed in civil law jurisdictions by, for example, the French
Conseil d’Etat, the Greek Council of State and the
German constitutional and administrative courts, were applicable to
judicial review proceedings under Article 146, and that the grounds
of invalidity set out in that provision were broadly interpreted. For
example, the Supreme Court would declare a decision to be null and
void, where, inter alia, it lacked adequate reasoning, where
it was based on a misconception of the facts or a mistake of law, or
where there had been a breach of natural justice or a breach of the
principle of proportionality. A misconception of the facts would be
found to exist in a number of situations, including where the
administration had failed to take into account material facts or had
taken irrelevant facts into consideration. In support of its
submissions the Government relied on a number of Supreme Court
judgments (Yiallourides v. the Republic (1969) 3 CLR 379);
Kontos v. the Republic (1974) 3 CLR 112; Constantinou v.
the Republic (1966) 3 CLR 793; Christides v. the Republic
(1966) 3 CLR 732; Hadjisavva v. the Republic (1972) 3 CLR 174;
Meletiou v. the Republic (1969) 3 CLR 578; Thalassinos v.
the Republic (1974) 3 CLR 290).
Unlike
the applicant in the Tsfayo case, in the present case, the
applicant had not alleged or shown that its recourses raised a core
issue which was not and could not be determined by the Supreme Court.
On the contrary, the Government emphasised, that all the main legal
issues raised by the applicant had been fully examined, including the
issues as to constitutionality, the interpretation of the applicable
Law, the rules of natural justice, and the lack of a proper enquiry
and adequate reasoning. That the Supreme Court had made detailed
reference to one particular case was due to the fact that the
parties, having agreed with the court, put forward their arguments
with reference to that case. Despite that, it was evident from the
Supreme Court’s judgment that specific grounds of annulment,
such as lack of due enquiry and reasoning, were examined by the
Supreme Court in relation to each case.
The
Government further submitted that the applicant had not alleged in
its recourses that the decisions of the CRTA had been based on
findings of fact that had been wrong or that the CRTA had relied on
any specific facts that had been wrong. The arguments put forward by
the applicant in its attempt to show that the Supreme Court lacked
full jurisdiction did not concern facts or the credibility of
evidence before the CRTA but rather the conclusions of the CRTA as
to, for example, whether a particular broadcast was unsuitable for
children or did not respect the private life or reputation of others.
The Government also pointed out that the applicant had not raised in
its recourses before the Supreme Court as a ground for annulment of
the CRTA’s decisions issues pertaining to the necessity of the
imposition of the fines or their proportionality. In this respect
they submitted that the applicant’s claim that the Supreme
Court could not examine such arguments in its judicial review
capacity was unfounded. The Government relied on a number of
judgments of the Supreme Court, mainly concerning the imposition of
fines by the Cyprus Securities and Exchange Commission (“CySec”),
in which the court examined allegations concerning, inter alia,
the amount and proportionality of the fines and the reasoning
justifying their imposition (Cyprus Stock Exchange v. Lordos
Hotels (Holdings) Ltd, revisional appeal no. 3623, judgment of 26
January 2004, (2004) 3 CLR 48; Sharelink Securities Ltd v. CySec,
recourse no. 641/2002, judgment of 30 April 2004; AAA United
Stockbrokers Ltd v. CySec, recourse no. 642/2002, judgment of 5
August 2003; Costas Kirkos v. CySec, recourse
no. 194/2005, judgment of 20 September 2006; CySec v. Exelixi
Ependitiki Ltd, revisional appeal no. 3721, judgment of 2
June 2006, (2006) 3 CLR 310).
Moreover,
referring to two Supreme Court judgments, the Government highlighted
that it was possible to bring a separate recourse under Article 146
of the Constitution against an administrative decision imposing a
fine (Michalakis Ioannides v. CySec, recourse no. 729/2003,
judgment of 22 February 2005; Elma Holdings Ltd v. CySec,
recourse no. 728/2003, judgment of 14 July 2005). The Government
also pointed out that the applicant had chosen not to make oral or
written submissions in a number of the cases against it, including
submissions on the imposition of the fines.
Relying
on the case of Bryan v. the United Kingdom (22 November 1995,
Series A no. 335 A), the Government submitted that although the
Supreme Court did not have jurisdiction to substitute its own views
for those of the administration, such an approach on questions of
fact by an administrative law tribunal was common in relation to
appeals against administrative decisions in the Council of Europe
Member States and could be reasonably expected, particularly where
the facts had already been established in the course of a quasi
judicial procedure governed by many of the safeguards of Article 6
and the issues required a measure of professional knowledge or
experience, and exercise of administrative discretion pursuant to
wide policy aims.
With
regard to the impartiality issue, the Government submitted that the
applicant had raised an objection before the Supreme Court only in
respect of one of the judges and not in relation to any of the other
members of the bench. The Supreme Court had therefore never decided
on the matter. Consequently, the Government argued that to the extent
the applicant complained about these other judges, it had not
exhausted domestic remedies.
Furthermore,
the Government considered that the applicant’s claims as to the
impartiality of the judge in question were groundless. In the
Government’s view there was no merit in the argument that a
judge was not impartial or might taint a bench because he had given
judgment in another case in which the parties and some of the legal
grounds had been the same. According to the domestic court’s
case-law, pronouncement on a legal issue should not disqualify a
judge from entertaining the same legal question in a subsequent case,
whether between the same parties or other parties. A judge’s
role was to solve legal and factual points that arose in each case on
the basis of the Constitution and the law. A previous decision or
opinion by a judge on a specific matter did not necessarily prejudge
his or her opinion on constitutional and legal issues. This was
applicable to the present case, the consideration and outcome of
which depended on the particular facts of each case, the
investigation that had been carried out by the CRTA, the procedure
and the reasoning given in each decision. In this regard the
Government noted that the applicant had been successful in two of the
recourses.
The
Government accordingly concluded that the Supreme Court, in its
judicial review capacity, had had “full jurisdiction” in
respect of the applicant’s complaints and that these had been
determined by an independent and impartial tribunal which provided
the guarantees of Article 6.
Finally,
with regard to the applicant’s complaints as to the scope of
jurisdiction of the civil courts, the Government, referring to their
submissions concerning non-exhaustion of domestic remedies (see
paragraph 112 above), underlined that the civil courts did not have
jurisdiction to examine allegations that had been made by the
applicant, in the context of its defence, which were directed against
the legality of the CRTA’s decisions.
(b) The Court’s assessment
(i) The proceedings before the CRTA and
the scope of the judicial review proceedings
The
Court observes that the applicant’s grievance as to the
proceedings before the CRTA concentrated on its dissatisfaction with
that body and, in particular, the multiplicity of its functions in
prosecuting, investigating, trying and deciding cases and imposing
sanctions. In addition, the applicant complained that the members and
staff of the CRTA had a direct and personal interest in imposing
fines as the amounts thus collected were deposited in the CRTA’s
Fund from which their salaries and/or remuneration were paid.
However, no allegation of personal bias on the part of specific
members or staff of the CRTA was made.
The
applicant’s complaint is therefore directed at the CRTA’s
“structural impartiality” and raises, as such, questions
of objective impartiality rather than problems of actual bias or
independence. In fact, the Court has not found any evidence to
suggest any irregularities in these respects.
The
Court notes the presence of a number of procedural guarantees in the
proceedings before the CRTA. For example, the station in
question is provided with details of the probable violation or the
complaint made against it and is given the opportunity to make
written and/or oral submissions during the hearing of the case
(Regulation 42). Such submissions may also be made with regard to the
imposition of a fine (see paragraph 9 above). Further, the CRTA is
required to give a reasoned decision (Regulation 42).
Despite
the existence of these safeguards, the combination of
different functions of the CRTA and, in particular, the fact that all
fines are deposited in its own fund for its own use, gives rise, in
the Court’s view, to legitimate concerns that the CRTA lacks
the necessary structural impartiality to comply with the requirements
of Article 6.
Nonetheless,
the Court reiterates that even where an adjudicatory body, including
an administrative one as in the present case, which determines
disputes over “civil rights and obligations” does not
comply with Article 6 § 1 in some respect, no violation of the
Convention can be found if the proceedings before that body are
“subject to subsequent control by a judicial body that has
“full” jurisdiction and does provide the guarantees of
Article 6 § 1 (see Albert and Le Compte, cited above, §
29).
Both
the Commission and the Court have acknowledged in their case-law that
the requirement that a court or tribunal should have “full
jurisdiction” will be satisfied where it is found that the
judicial body in question has exercised “sufficient
jurisdiction” or provided “sufficient review” in
the proceedings before it (see, amongst many authorities, Zumtobel
v. Austria, 21 September 1993, § §§ 31-32, Series
A no. 268 A; Bryan, cited above, §§
43-47; Müller and others v. Austria (dec.), no. 26507/95,
23 November 1999; and Crompton v. the United Kingdom,
no. 42509/05, §§ 71 and 79, 27 October 2009).
In
adopting this approach the Convention organs have had regard to the
fact that it is often the case in relation to administrative law
appeals in the Member States of the Council of Europe, that the scope
of judicial review over the facts of a case is limited and that it is
the nature of review proceedings that the reviewing authority reviews
the previous proceedings, rather than taking factual decisions. It
can be derived from the relevant case-law that it is not the role of
Article 6 of the Convention to give access to a level of jurisdiction
which can substitute its opinion for that of the administrative
authorities. In this regard, particular
emphasis has been placed on the respect which must be accorded to
decisions taken by the administrative authorities on grounds of
“expediency” and which often involve specialised
areas of law (for example, planning – Zumtobel, §§
31 and 32, and Bryan, § 47, both cited above;
environmental protection – Alatulkkila and Others
v. Finland, no. 33538/96, § 52, 28 July 2005; regulation of
gaming – Kingsley v. the United Kingdom [GC],
no. 35605/97, § 32, ECHR 2002-IV).
In
assessing the sufficiency of a judicial review available to an
applicant, the Court will have regard to the powers of the judicial
body in question (see for example, Gradinger, § 44, and
Bryan, §§ 44-45, both cited above; Potocka
and Others v. Poland, no. 33776/96, § 55, ECHR 2001 X;
and Kingsley, § 32, cited above), and to such
factors as (a) the subject-matter of the decision appealed
against, in particular, whether or not it concerned a specialised
issue requiring professional knowledge or experience and whether it
involved the exercise of administrative discretion and if, so, to
what extent; (b) the manner in which that decision was arrived at, in
particular, the procedural guarantees available in the proceedings
before the adjudicatory body; and (c) the content of the dispute,
including the desired and actual grounds of appeal (see, inter
alia, Bryan, §§ 44, 45 and 47, and
Crompton §§ 71-73 and 77, both cited above).
Whether
the review carried out is sufficient for the purposes of Article 6
will very much depend on the circumstances of a given case: the Court
will confine itself as far as possible to examining the question
raised in the case before it and to determining if, in that
particular case, the scope of the review was adequate.
The
Court has held in a number of cases, where the court in question did
not have full jurisdiction as such but examined the issues raised
before it concerning the adjudicatory body’s decision, that the
judicial review in the case was sufficient and that the proceedings
complied with Article 6 § 1 of the Convention. This has been the
case, for example, where upon judicial review the applicants’
submissions on their merits or grounds of appeal were examined point
by point, without the court having to decline jurisdiction in
replying to them or in ascertaining various facts (see inter alia,
Zumtobel, § 32, cited above; Fischer v. Austria,
26 April 1995, § 34, Series A no. 312; and Bryan, §
47, Müller and Potocka, §§ 56-58,
cited above; see also the Commission decisions in Kristavcnik
– Reutterer v. Austria, no. 22475/93, 10 September
1993; ISKCON and 8 others v. the United
Kingdom, no. 20490/92, 8 March
1994; Stefan v. the United Kingdom, no.
29419/95, 9 December 1997; Wickramsinghe
v. the United Kingdom, 9
December 1997 no. 31503/96; and X. v. the United
Kingdom, no. 28530/95, 19 January 1998). Similarly, in the case
of Crompton (cited above, §§ 78-80) the Court
held that there had been no violation of Article 6 § 1 as the
High Court had examined the central issue in the case before it.
Where,
however, the reviewing court is precluded from determining the
central issue in dispute, the scope of review will not be considered
sufficient for the purposes of Article 6 (see Tsfayo, cited
above, § 48). The Court has therefore found violations of
Article 6 § 1 in cases where the domestic courts considered
themselves bound by the prior findings of administrative bodies which
were decisive for the outcome of the cases before them, without
examining the issues independently (see, amongst many authorities,
Obermeier v. Austria, 28 June 1990, §§ 69-70, Series A
no. 179; Terra Woningen B.V. v. the Netherlands, 17 December
1996, § 46 and §§ 50-55, Reports 1996 VI;
I.D. v. Bulgaria, no. 43578/98, §§ 50-55, 28 April
2005; Capital Bank AD v. Bulgaria, no. 49429/99, §§ 99-108
ECHR 2005 XII (extracts); Tsfayo, cited above; and
DruZstevní záloZna Pria and Others v. the Czech
Republic, no. 72034/01, § 112-115, 31 July 2008).
In addition the Court has found a violation of Article 6 where a
ground of challenge has been upheld by the reviewing court but it was
not possible to remit the case for a fresh decision by the same or a
different body (see Kingsley, cited above, § 32).
Accordingly,
in the present case, the Court must first decide whether, in the
circumstances, the scope of review exercised by the Supreme Court met
the requirements of Article 6, taking into consideration all relevant
factors (see paragraph 154 above), and, whether that court provided
the safeguards required by that provision (see paragraph 151 above).
At
the outset, it is common ground that the power of review of the
Supreme Court under Article 146 of the Constitution was not capable
of embracing all aspects of the CRTA’s decisions. In
particular, as is usually the case in the systems of judicial control
of administrative decisions found throughout the Council of Europe’s
Member States (see paragraph 153 above; see also Bryan, cited
above, § 44), the Supreme Court could not substitute its
own decision for that of the CRTA and its jurisdiction over the facts
was limited. Notwithstanding, it could have annulled the decisions on
a number of grounds, including if the decision had been reached on
the basis of a misconception of fact or law, there had been no proper
enquiry or a lack of due reasoning, or on procedural grounds.
Such
an approach by an appeal tribunal conducting the review of a decision
of an administrative body can reasonably be expected, having regard
to the nature of review proceedings and the respect which must be
given to decisions taken by administrative authorities on grounds of
“expediency” (see paragraph
153 above; see also, for example, Bryan, § 47 and Müller,
both cited above).
As
to the subject-matter of the decision appealed against, the Court
notes that the decisions challenged before the Supreme Court were
taken by the CRTA, which was set up to regulate broadcasting pursuant
to, and to monitor compliance with, the relevant legislation. In its
decisions the CRTA had found that the applicant had violated certain
provisions of the Law and Regulations in various broadcasts. Their
subject matter was therefore a classic exercise of administrative
discretion in the specialised area of law concerning broadcasting
taken in the context of ensuring standard setting and compliance with
the relevant legislation and regulations pursuant to public interest
aims (contrast Tsfayo and Crompton, both cited
above).
In
connection with the manner in which the decisions were arrived at,
the Court observes, as it noted above (see paragraph 149), that a
number of uncontested procedural guarantees were available to the
applicant in the proceedings before the CRTA: the applicant was given
details of the probable violation or the complaint made against it
and the decisions were arrived at after a hearing had been held. The
applicant was able to make written submissions and/or oral
submissions during the hearing of the cases although it chose not to
do so in some of the proceedings (see Annex). Further, it was open to
the applicant to make a wide range of complaints in the context of
the judicial review proceedings before the CRTA. It is noted in this
respect that the applicant’s allegations as to shortcomings in
the proceedings before the CRTA, including those concerning objective
partiality and the breach of the principles of natural justice, were
subject to review by the Supreme Court.
Lastly,
with regard to the content of the dispute, the Court observes that in
its recourses to the Supreme Court the applicant raised a number of
points concerning the legality of the CRTA decisions (see paragraphs
40 and 41 above). In particular, it claimed:
(a) a
breach of the rules of natural justice on the grounds that in the
proceedings the CRTA had acted in many capacities and had then
imposed fines which had ended up in its own Fund;
(b)
that the applicable Law and the Regulations were unconstitutional
and, in particular, contrary to Articles 12, 19, 23 (in one of the
recourses) and 26 of the Constitution; and,
(c)
that it had been subjected to discriminatory treatment in the
exercise of its Constitutional rights in
comparison with the CyBC.
The
applicant also (d) raised various points concerning the
interpretation of the relevant legal provisions relating to the
imposition of sanctions for the infringement of the Regulations, and
(e) alleged certain shortcomings in the proceedings, such as a lack
of proper enquiry and due reasoning, and composition problems.
As
is evident from the extensive reasoning in its judgment the Supreme
Court examined all the above issues, point by point, without refusing
to deal with any of them. The Supreme Court gave clear reasons for
the dismissal of the applicant’s points. It should be noted in
this regard, that the applicant has not complained before this Court
that the Supreme Court’s judgment lacked adequate reasoning.
It
is also clear from the above that the applicant’s cases did not
centre on a fundamental question of fact which the Supreme Court did
not have jurisdiction to revisit (contrast Tsfayo, cited
above).
To
the extent that the applicant argues that the crux of its recourses
was the necessity and proportionality of the fines imposed by the
CRTA, questions the Supreme Court did not examine, the Court points
out that these issues were not raised by the applicant before that
court in the legal points on which its recourses were based. The
Court further notes that it is clear from a reading of the recourses
and the applicant’s written addresses and replies that any
submissions made by the applicant concerning the fines were related
to the legal points raised under Articles 12 and 19 of the
Constitution and the interpretation of the relevant legal provisions
relating to the imposition of sanctions for the infringement of the
Regulations (see points (b) and (d) above). These points were
examined by the Supreme Court.
Further,
to the extent that the applicant can be taken to suggest that, in any
event, the Supreme Court did not have jurisdiction to examine the
necessity and proportionality of the fines, the Court notes that it
is not its task to decide
in abstracto
that the Supreme Court would not have examined these issues if
raised or that it would have declined jurisdiction to deal with them.
Such an exercise would, in the circumstances of the present
application, be pure surmise. The applicant has not put forward any
case-law in support of its claim. The Government, however, have
referred the Court to a number of Supreme Court judgments in judicial
review proceedings which indicate that the Supreme Court has the
competence to examine such issues in its judicial review role. The
Court therefore cannot find that the applicant was justified in not
raising these issues in its recourses.
Having
regard to all the above, the Court finds that the scope of the review
of the Supreme Court in the judicial review proceedings in the
present case was sufficient to comply with Article 6 of the
Convention.
(ii) The fairness of the judicial review
proceedings
The
Court notes, however, that in addition to its complaint about the
scope of review of the Supreme Court, the applicant claims that that
court did not itself provide the guarantees of Article 6. In
particular, the applicant challenges the fairness of the judicial
review proceedings on two counts.
Its
first complaint concerns the alleged lack of impartiality on the part
of four of the judges who sat on the full bench on the ground that
they had already given judgment, at first instance, in different
recourses brought by the applicant against various CRTA decisions
raising identical or similar questions.
The
Court considers that it does not need to decide on the questions of
the six-month rule and exhaustion of domestic remedies that arise in
respect of three of the judges concerned by the above complaint (see
paragraph 134 above), as in any event it finds, for the reasons set
out below, that the applicant’s complaint as a whole is not
well-founded.
The
Court first of all finds that the applicant’s submissions do
not disclose any element to cast doubt on the impartiality of the
four judges in question under the subjective test.
As
regards the objective test, the Court observes that the mere fact
that a judge has been involved in other proceedings concerning the
same parties is not in itself reasonably capable of giving rise to
legitimate doubts as to his or her impartiality (see, for example,
Gillow v. the United Kingdom, 24 November 1986, Series A no.
109, p. 28, § 73; Schmid v. Austria, no. 11831/85,
Commission decision of 9 December 1987, Decisions and Reports (DR)
54, p. 144; Krone Verlag GmbH and Mediaprint Anzeigen GmbH &
Co KG v. Austria, no. 28977/95, Commission decision of 21 May
1997, unreported; Galya Pavlova v. Bulgaria
(dec.), no. 39855/03, 14 October 2004; and Anguelov v. Bulgaria
(dec.), no. 45963/99, 14 December 2004).
The
Court notes that the judgments referred to by the applicant concerned
different CRTA decisions and therefore constituted separate executory
administrative acts. Although it appears that some of the grounds for
annulment raised in those cases were akin to or the same as some of
those raised in the joint recourses, this does not, in the Court’s
view objectively justify any fears as to a lack of impartiality on
the part of the judges concerned in the latter proceedings. The Court
notes that it is a usual and inevitable occurrence in any judicial
system that judges deal with similar or identical issues in different
unrelated cases.
The
Court therefore finds that the applicants’ complaints as to a
lack of impartiality of the Supreme Court because of the presence of
these four judges on the bench, cannot be regarded as being
objectively justified.
The
applicant’s second complaint concerns the dismissal of its
application of 10 February 2004 (see paragraph 43 above). Taking into
account the grounds on which this application was requested and the
reasons given by the Supreme Court for its dismissal, the Court finds
that this complaint does not disclose any appearance of a violation
of the applicant’s rights under Article 6.
The
Court therefore finds that the Supreme Court fully satisfied the
requirements of independence and impartiality and provided the other
guarantees of Article 6 of the Convention.
(iii) The civil proceedings
To
the extent that the applicant contests the sufficiency of the review
carried out by the District Court and the Supreme Court in the civil
proceedings brought against it, the Court recalls its findings in
paragraphs 100-111 and 114-117 above.
As
regards the applicant’s complaint as to the infringement of the
principle of equality of arms, the Court finds, having regard to all
the material in its possession, and in so far as the matters
complained of are within its competence, that it does not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols.
(iv) Conclusion
In conclusion, the Court finds that the applicant’s
complaints under this head are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that its right to freedom of expression under
Article 10 of the Convention had been violated. This provision reads
as follows:
“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
The
Government maintained that there had been no violation of Article
10 of
the Convention. First of all, they submitted that the interference
complained of had been prescribed by law. It had been based on Law
7(I)/1998 and the relevant regulations. The relevant provisions were
clear and their effects reasonably foreseeable, especially with the
assistance of a lawyer. Secondly, the Government argued that the
interference with the applicant’s right pursued legitimate aims
and in particular the protection of the rights of others. In this
respect, they emphasised the need to safeguard the rights and
interests of viewers, including children, who were vulnerable, and to
protect them from abusive practices. The Government relied on the
reasoning given by the CRTA in its decisions concerning the
broadcasts in question. They further highlighted the need to regulate
the mass media in view of the significant influence they had on
people and society at large. The measures taken by the CRTA had been
necessary in securing compliance with the relevant legal provisions
and regulations.
As
to the proportionality of the fines, the Government emphasised that
the Law set out the maximum fines the CRTA could impose and the
factors to be taken into account when deciding upon the fines. This
exercise was subject to the principle of proportionality as
stipulated by the above provision. The CRTA always acted in a
transparent and fair manner, giving the broadcaster concerned the
opportunity to make submissions on the sanctions to be applied. The
fines imposed in the present cases had not been arbitrary taking into
account the nature and circumstances of the breaches of the relevant
legal provisions. They had been within the limits provided for by
Law.
In
the Government’s view, therefore, the interference was
necessary in a democratic society, in other words it corresponded to
a “pressing social need”, it was proportionate to the
legitimate aim pursued and the reasons given to justify it were
relevant and sufficient.
2. The applicant
The
applicant complained that the decisions of the CRTA finding that it
had violated the provisions of Law 7(I)/1998 and the relevant
regulations, and the imposition of a fine, constituted a violation of
Article 10 of the Convention.
First, the applicant submitted that the provisions of the above Law
and regulations had not been formulated
with sufficient
precision
and clarity for the applicant to be able to regulate its
conduct. They were drafted in general terms and covered all types of
broadcasts, without taking into account their different nature and
the need to apply varied standards depending on the particular
broadcast. They were also excessively rigid and did not keep
pace with
changing circumstances and evolving societal
attitudes.
Secondly,
the applicant maintained that the interference with its right did not
pursue a legitimate aim and, in particular, that it could not be
justified in order to protect the rights of others as the Government
suggested. Thirdly, the applicant considered that the interference
was not necessary in a democratic society; there was no “pressing
social need” to forbid the broadcasts in question and the
restriction to its right was not proportionate. In relation to the
above, the applicant submitted that there was an overriding need to
allow the broadcast in question. The applicant underlined, inter
alia, the importance of informing the Cypriot public of
significant issues affecting Cypriot society, such as drug abuse
[CRTA case no. 11/2001(3)] or the possible committing of an offence,
such as paedophilia [CRTA case no. 75/2000(3)]. In so far as
advertising was concerned, the applicant highlighted the need to take
into account the various economic interests involved and the fact
that advertising was its only source of income. In this connection,
it noted that it should be possible to transmit advertisements of
children’s toys at times when children were watching
television. The applicant also pointed out that in certain television
series the use of certain products was
essential to the set and contributed to a series’ success.
Further,
the applicant submitted that the decisions of the CRTA lacked
a factual basis and adequate reasoning. In this
connection, the applicant repeated the arguments it raised in
relation to Article 6 of the Convention that the proceedings before
the CRTA had been unfair. Finally, the applicant emphasised that the
fines imposed on it had been unnecessary and excessive, a matter that
had not been and/or could not be examined by the Supreme Court (see
paragraph 132 above).
B. The Court’s assessment
1. Admissibility
(a) CRTA case no. 8.1.09
The
Court notes that the CRTA case no. 8.1.09 concerned the payment of a
licence fee by the applicant for the period of 13 November 1998 to 31
January 1999. The applicant, however, has not complained under
Article 10 of the Convention about the imposition of such a fee. No
issue therefore arises under this provision in respect of this case.
(b) CRTA cases nos. 98/2000(3),
141/2000(3), 129/2000(3), 152/2000(3), 148/2000(3), 1/2001(12),
9/2001/(3), 10/2001(3), 11/2001(3), 13/2001(3), 19/2001(3),
43/2001(3), 44/2001(3), 60/2001(3), 108/2001(3), 125/2001(3),
133/2001(3), 135/2001(3), 143/2001(3), 173/2001(3), 3/2002(3) and
5/2002(3)
The
Court recalls that the twenty-two CRTA cases in question, concerned
various broadcasts consisting of advertisements, news reports
transmitted within news bulletins, films, series, programmes,
trailers and social documentaries (see paragraphs 14-37 above). The
applicant was found by the CRTA to have infringed a number of
different provisions of the Law and Regulations in relation to these
broadcasts. The CRTA then imposed fines on the applicant in respect
of those violations.
(i) Whether there was an interference
The
Court finds that the fines imposed on the applicant in the above
cases amounted to an “interference” with the applicant’s
freedom of expression, as guaranteed by Article 10 § 1 of the
Convention.
(ii) Whether the interference was
justified
The Court reiterates that in order to comply with
Article 10, the interference in question must be “prescribed by
law”, pursue one or more of the legitimate aims referred to in
paragraph 2 and be “necessary in a democratic society” in
order to achieve the aim or aims in question.
The
Court notes that the parties agree that the interference complained
of had a basis in domestic law, namely, Law 7(I)/1998 (as amended)
and the relevant regulations. The applicant, however, claimed in
general that the provisions of the legislation on which the findings
of a violation were based were not sufficiently foreseeable and were
extremely rigid.
In
this connection, the Court reiterates that one of the requirements
flowing from the expression “prescribed by law” is the
foreseeability of the measure concerned. A norm cannot be regarded as
a “law” unless it is formulated with sufficient precision
to enable the citizen to regulate his conduct: he must be able –
if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail. Those consequences need not be foreseeable
with absolute certainty: experience shows this to be unattainable.
Whilst certainty in the law is highly desirable, it may bring in its
train excessive rigidity and the law must be able to keep pace with
changing circumstances. Accordingly, many laws are inevitably couched
in terms which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice (see, for
example, Rekvényi v. Hungary [GC], no. 25390/94, §
34, ECHR 1999-III).
The
Court notes that Law 7(I)/1998 and the Regulations constitute a
detailed legislative scheme aimed at regulating broadcasting. The
violations found in respect of the various broadcasts in question
were based on an array of different provisions of the Law and
Regulations, some more specific than others. It cannot be said,
however, that any of these provisions or Regulations were so vague
and imprecise as to lack the required quality of law. The Court is
therefore satisfied that the interference with the applicant’s
rights under Article 10
§ 1 was “prescribed by law” within the
meaning of Article 10 § 2.
Further,
the Court agrees with the Government that the interference pursued at
least one of the legitimate aims set out in paragraph 2 of
Article 10, namely, the protection of the rights of others.
The
question therefore that arises is whether the interference was
“necessary in a democratic society”.
The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress. Subject to paragraph 2 of Article 10, it
is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic society”
(see Handyside v. the United Kingdom, 7 December 1976, §
49, Series A no. 24, and Jersild v. Denmark, 23 September
1994, § 37, Series A no. 298). This freedom is subject to the
exceptions set out in Article 10 § 2, which must, however, be
strictly construed. The need for any restrictions must be established
convincingly (see, for example, Lingens v. Austria, 8 July
1986, § 41, Series A no. 103, and Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
The
test of necessity requires the Court to determine
whether the interference corresponded to a “pressing
social
need”,
whether it was proportionate to the legitimate aim pursued and
whether the reasons given by the national authorities to justify it
were relevant and sufficient. In assessing whether such a need exists
and what measures should be adopted to deal with it, the national
authorities are left a certain margin of appreciation. This power of
appreciation is not, however, unlimited, but goes hand in hand with a
European supervision by the Court, whose task it is to give a final
ruling on whether a restriction is reconcilable with freedom of
expression as protected by Article 10. The Court’s task in
exercising its supervisory function is not to take the place of the
national authorities, but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant
to their margin of appreciation. In so doing, the Court has to
satisfy itself that the national authorities applied standards which
were in conformity with the principles embodied in Article 10
and, moreover, that they based their decisions on an acceptable
assessment of the relevant facts (see Karman v. Russia, no.
29372/02, § 32, 14 December 2006, and Grinberg v. Russia,
no. 23472/03, § 27, 21 July 2005, with further references).
Turning
to the cases in question, the Court notes that in each of its
decisions concerning the broadcasts the CRTA set out the grounds on
which violations of the Law and the Regulations were found. These in
general, included, the protection of consumers and children from
unethical advertising practices, including surreptitious advertising,
the protection of children from broadcasts containing violence or any
other material likely to impair their physical, mental or moral
development, the importance of ensuring that viewers were informed of
the true content of the broadcasts by the use of appropriate acoustic
and visual warnings, the protection of pluralism of information, the
need for a fair and accurate presentation of facts and events and the
protection of the reputation, honour, good name and privacy of
persons involved in or affected by the broadcast.
Having
regard to the broadcasts and their content and/or subject-matter, the
reasons given by the CRTA in its decisions for the findings of
violations against the applicant, the amount of the fines imposed and
the submissions of the parties before it, the Court considers that
the impugned interference was proportionate to the aim pursued, and
the reasons given to justify it were relevant and sufficient. The
Court finds therefore, that the interference with the applicant’s
exercise of their right to freedom of expression in these cases can
reasonably be regarded as having been necessary in a democratic
society for the protection of the rights of others.
It
follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
(c) CRTA case no. 117/2000(3)
After
a careful examination of the documents pertaining to the CRTA’s
decision no. 117/2000(3), the Court finds that the applicant’s
Article 10 complaint concerning this decision is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits (CRTA case no. 117/2000(3))
(a) Whether there was an interference
The
Court notes, from the material submitted by the parties, that the
broadcast in question was an episode from a Cypriot television
entertainment series produced by the applicant. A violation of
Regulations 21 (3) and (4) and 26 (l) was found by the CRTA
and a fine of CYP 2,000 was imposed on the applicant (see paragraph
32 above and point 26 of the Annex). As held in respect of the cases
examined above, the imposition of the fine constituted an
interference with its right to freedom of expression under Article 10
§ 1 of the Convention.
(b) Whether the interference was justified
The
Court further finds that this interference was “prescribed by
law” as it was based on Regulations 21 (3) and (4) and 26 (l),
which it considers to be sufficiently precise to enable the applicant
to foresee the consequences of its actions. As with regard to the
other cases, the Court considers that the interference pursued at
least one of the legitimate aims set out in paragraph 2 of Article
10, namely, the protection of the rights of others.
It
remains to be considered, having regard to the relevant principles
(see paragraphs 198-199 above), whether the interference was
“necessary in a democratic society” within the meaning of
Article 10 § 2 of the Convention.
The
Court observes that the series in question was an entertainment
series which appears, from the documents submitted, to have been
fictional. In the episode in question remarks were made which were
considered by the CRTA to be, in sum, offensive and disrespectful to
the residents of two local towns, and to Arabs, Russian women and
women in general, as well as undignified in respect of both sexes
(see paragraph 32 above). The remarks in question were made in the
context of a dialogue between characters of that series who
suggested, inter alia, that in the old days it was possible
that the town of Paphos had a lot of brothels, that during the 50’s,
60’s and part of the 70’s most of the whores were from
that town, that Limassol had been full of Arabs, most of them darker
than chocolate and some of them very snobbish, and that Paphos was a
whores’ town, with thousands of whores, all of them imported
from Greece at the time, just as Russian women were imported
nowadays.
The
Court takes note of the CRTA’s concerns about the racist and
discriminatory tone of the remarks made. It further emphasises that
it is particularly conscious of the vital importance of combating
racial and gender discrimination in all its forms and manifestations
(see Nachova
and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, § 145, ECHR 2005 VII).
Even though it appears that the remarks in question were made in the
context of a fictional entertainment series, the Court considers, in
view of their content, and in the absence of sufficiently detailed
information about the programme and specific observations on the part
of the applicant, that the CRTA could not be said in the
circumstances to have overstepped its margin of appreciation in view
of the profound analysis at the national level. In this connection,
the Court also attaches importance to the fact that the applicant did
not make any submissions at all in the proceedings before the CRTA in
the case (see point 26 of the Annex) and that it did not submit
observations before the Court disputing the necessity of the
interference with its right to freedom of expression in so far as
this programme was specifically concerned.
Lastly,
as to the proportionality of the impugned measure, the Court finds,
bearing in mind the amount of the fine and the fact that the CRTA,
when imposing the fine, took into account the repeated violations by
the applicant in other episodes of the same series, that the fine
imposed was proportionate to the aim pursued.
Accordingly,
there has been no violation of Article 10 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 10
The
applicant complained of a violation of Article 14 of the Convention,
taken in conjunction with Article 10, as the CyBC had not been
subjected to the same restrictions. In particular, in view of the
legal provisions applicable at the material time, the CybC was not
monitored by the CRTA and subjected to fines. Furthermore, the CyBC
did not have to obtain an annual licence.
Article
14 provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties’ submissions
1. The Government
The
Government submitted that the nature and the role of public service
broadcasting was very different to that of private broadcasting. In
contrast to private stations, the CyBC was not a profit-making
business or institution but received public funding used entirely for
the furtherance of its mission, namely, to provide objective
information, education and entertainment to the public of Cyprus.
Public service broadcasting was made for the public, which had the
right to control the terms and conditions of its operation. The CYBC
was therefore directly accountable to the public especially regarding
the accomplishment of its mission and the use of public resources. In
this connection, the Government observed that the CyBC was
accountable to the Auditor General and the House of Representatives
and that the CRTA, under Cap. 300A, monitored the quality as well the
type of programmes transmitted. An annual report was prepared by the
CRTA regarding the achieved quotas, which was submitted to the
Minister of Interior and then the General Auditor.
Furthermore,
the Government submitted that the CyBC was under an obligation at all
times to prove that it was fulfilling its public service role and to
honour its programme commitments. In case of improper conduct or
malfunction its operation could be restricted or even terminated by
law.
In
addition, the CyBC did not rely completely on advertising as a source
of revenue, which allowed it to offer alternative programmes such as
educational and news programmes and documentaries which were less
saleable to the mass audience. In contrast, the aim of private
stations was to provide popular shows that attracted larger audiences
in order to earn more revenue from advertising. The CyBC had been
established under a different legal framework and had a different
role and mission, different objectives as well as obligations, and
was subjected to another system of control and inspection. It had
been established under Cap. 300A. Thus, as it was authorised by law
to operate, it did not require a licence.
Private
stations were private or public companies, owned by individuals and
established under the Companies Act. Unlike the CyBC they were not
accountable to the Government. In order to operate they needed to use
frequencies which were considered as national assets. It was
therefore acceptable that the State should control private stations.
In addition, nothing prevented a Government from requiring a
broadcasting licence from private stations to cover the expenses of
the relevant licensing services and authorities.
In
view of all the above, it could not be said that private stations
like those run by the applicant were in an analogous position to the
CyBC.
The
Government also noted that at the time the CRTA had taken the
impugned decisions in respect of the applicant, Amending Laws 204 of
1991 and 8(I) of 1998 had been applicable, which incorporated
provisions subjecting the CyBC to additional control similar to, and
to some extent stricter than that applied to private stations.
Finally,
the Government noted that the applicant had not given an example of
an incident where the CyBC had acted like the applicant but, unlike
the applicant, had not been sanctioned. The applicant had not
therefore substantiated its allegations as to different treatment or
discrimination.
2. The applicant
The
applicant maintained that its stations were in a situation comparable
to the CyBC. Despite this, the CyBC was not subject to monitoring and
was not “prosecuted”. The CRTA did not interfere with its
transmissions. The CyBC was therefore able to transmit similar
broadcasts without supervision and sanction. Here, the applicant
referred in general to surreptitious advertising and the broadcasting
of information in news bulletins revealing the identity of a suspect.
As a result, the public were not protected from the CyBC’s
broadcasts. The applicant further submitted that the CyBC also
transmitted advertisements, despite receiving Government funding, and
unlike private stations, it did not have to pay the CRTA any
commission, percentage or royalties in respect of the advertisements.
The
applicant claimed that there was no reasonable and objective
justification for the differential treatment in the exercise of the
right to freedom of expression. The subsequent amendments in the
applicable law were evidence of this.
B. The Court’s assessment
The
Court reiterates that discrimination, for the purposes of both
Article 14 of the Convention and Article 1 of Protocol No. 12 to the
Convention, means treating differently, without an objective and
reasonable justification, persons in relevantly similar situations
(see Willis v. the United Kingdom, no. 36042/97, § 48,
ECHR 2002-IV). However, not every difference in treatment will amount
to a violation of these provisions. It must be established that other
persons in an analogous or relevantly similar situation enjoy
preferential treatment and that this distinction is discriminatory
(see Unal Tekeli v. Turkey, no. 29865/96, § 49, 16
November 2004).
In
the present case the Court notes that the discriminatory treatment
alleged by the applicant lies in the distinction drawn between
private stations like its own and the CyBC, the public broadcaster of
the Republic of Cyprus. The applicant complains that the CyBC did not
have to pay a licence fee and that, at the material time, it was not
monitored by the CRTA and subjected to fines.
The
Court notes that the applicant seeks to compare the situation of the
stations it runs, which are private stations, with that of the public
broadcaster. Given, however, the differences in the legal status and
the applicable legal frameworks and the different objectives of
private stations and the CyBC in the Cypriot broadcasting system, it
cannot be said that they are in a comparable position for the
purposes of Article 14 of the Convention.
The Court finds, therefore,
that the present case does not disclose any appearance of
discrimination contrary to Article 14 of the Convention.
It follows that this part of
the application is inadmissible under Article 35 § 3 (a) as
manifestly ill-founded and must be rejected pursuant to Article 35
§ 4 of the Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 1 of Protocol No. 1 that its
ability to conduct business had been greatly inhibited as it had
often been subjected to excessive fines. The applicant further
invoked Article 14 of the Convention taken in conjunction with
Article 1 of Protocol No. 1. It complained of discriminatory
treatment vis-à-vis the CyBC which was not required to pay an
annual licence fee or fines. In application no. 35122/05
the applicant also relied on Article 1 of Protocol No. 12 in
respect of the last complaint.
Finally,
in its observations of 30 July 2007 the applicant invoked
Article 1 of Protocol No. 12 in respect of application no.
32181/04.
A. Complaint under Article 1 of Protocol No. 1
1. CRTA case no. 8.1.09
The Court notes that the applicant’s complaint
under Article 1 of Protocol No. 1 pertains to the fines imposed by
the CRTA. No issue arises therefore under this head in respect of
CRTA case no. 8.1.09 (licence fee).
2. CRTA cases nos. 98/2000(3), 141/2000(3),
129/2000(3), 152/2000(3), 148/2000(3), 1/2001(12), 9/2001/(3),
10/2001(3), 11/2001(3), 13/2001(3), 19/2001(3), 43/2001(3),
44/2001(3), 60/2001(3), 108/2001(3), 125/2001(3), 133/2001(3),
135/2001(3), 143/2001(3), 173/2001(3), 3/2002(3) and 5/2002(3)
The Court notes that the applicant raised the
argument concerning the proportionality of the fines in the context
of its complaint under Article 10 of the Convention, which was
declared inadmissible (see paragraphs 192-202 above). It follows that
this part of the application is also manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
3. CRTA case no. 117/2000(3)
The
Court notes that it declared admissible the applicant’s
complaint under Article 10 of the Convention in so far as it
concerned CRTA case no. 117/2000(3) and found no violation of that
provision in respect of that case. While finding this complaint as
regards the aforementioned case to be admissible, having regard to
its reasoning under Article 10, the Court considers that no separate
issue arises under Article 1 of Protocol No 1.
B. Complaints under Article 14 taken together with
Article 1 of Protocol No. 1 and under Article 1 of Protocol No. 12
The
Court notes that the applicant’s complaint about discriminatory
treatment vis-à-vis the CyBC under Article 14 taken with
Article 1 of Protocol No. 1 amounts in effect to the same complaint
as that examined and rejected in the context of Article 14 taken in
conjunction with Article 10 (see paragraphs 220-224 above).
Consequently, no separate issue arises and this part of the
applicant’s complaint is manifestly ill-founded. As the same
applies to the complaint under Article 1 of Protocol No. 12, the
Court does not need to examine the questions of ratione temporis
and the six-month rule that arise in relation to this provision.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join the applications;
Declares the complaints under Article 10 and
Article 1 of Protocol No. 1 concerning the decision in CRTA case no.
117/2000(3) admissible and the remainder of the applications
inadmissible;
Holds that there has been no violation of
Article 10 of the Convention in respect of CRTA case no. 117/2000(3)
and that no separate issue arises under Article 1 of Protocol No. 1
concerning that case.
Done in English, and notified in writing on 21 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
ANNEX
LIST WITH DETAILS OF
RELEVANT BROADCASTS AND
CRTA PROCEEDINGS
A. Advertisements for children’s toys
1. CRTA case no. 129/2000(3) - Recourse no. 300/2001
Broadcasting
details: broadcasting of 21 different advertisements for
children’s toys on 9, 10 and 11 November 2000 between 8.00 a.m.
and 11.00 p.m.
Examination:
on the CRTA’s initiative
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of Decision: 10 January 2001
Findings:
violation of sections 34(4)(a) and 34(4)(b) of Law 7(I)/1998
Fine:
CYP 3,000
2. CRTA case no. 148/2000(3) - Recourse no. 302/2001
Broadcasting
details: broadcasting of 102 different advertisements for
children’s toys on 15 and 16 December between 8.00 a.m. and
11.00 p.m.
Examination:
on the CRTA’S initiative; it was noted in the decision,
however, that complaints had been received by the public
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of Decision: 14 February 2001
Findings:
violations of sections 34(4)(b) and 33(7)(a)(i) of Law 7(I)/1998 and
paragraphs B.1 and D.10(ο) (“Δ10 (ιε)”)
of appendix IX of the Regulations
Fine:
CYP 3,750 (CYP 3000 for violation of section 34(4)(b) and CYP 750
for violation of section 33(7)(a)(i)
3. CRTA case no. 135/2001(3) - Recourse no. 328/2002
Broadcasting details: broadcasting of 13 different
advertisements for children’s toys on 4 August and 22 September
2001 between 9.30 a.m. and 11.00 a.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions and
attended the hearing. In its submissions the applicant admitted a
violation of section 33(7)(a)(i) in respect of one advertisement.
Date
of Decision: 6 February 2002
Findings:
Violations of sections 33(2)(d) (“33(2)(δ)”),
34(4)(b), 33(7)(a)(i) of Law 7(I)/1998 and paragraph D.10(ο)
(“Δ10(ιε)”) of appendix IX of the
Regulations for surreptitious advertising of “Pokemon”
products and for broadcasting advertisements promoting such products
by way of gifts for the purchase of other products.
Fine:
CYP 1,500
4. CRTA
case no. 3/2002(3) - Recourse no. 331/2002
Broadcasting
details: broadcasting of 492 different advertisements for
children’s toys between 1 December 2001 and 31 December 2001
from 9.00 a.m. to 10.00 or 11.00 p.m.
Examination:
on the CRTA’s initiative
Applicant’s
participation: The applicant did not make written submissions but
attended the hearing, during which the applicant’s
representatives accepted violations of sections 34(4) and 33(7)(a)(i)
of Law 7(I)/1998 but stated that in the applicant’s view
certain of the toys had been “educational toys”.
Date
of Decision: 13 February 2002
Findings:
violations of sections 34(4) and 33(7)(a)(i) of Law 7(I)/1998 in 492
cases for broadcasting the advertisements within the family zone over
a period of 31 days and, in 25 of these cases (during the same period
of time), inciting children to buy products. With regard to the
definition of “children’s toys” reference was made
to Council Directive
88/378/EEC of 3 May 1988 on the approximation of the laws of the
Member States of the European Communities concerning the safety of
toys.
Fine:
CYP 30,000
B. Interruption of programmes for broadcasting of
advertisements, promotion of sponsors during news bulletins and
surreptitious advertising
5. CRTA case no.
18/2000(3) – Recourse no. 809/2000, civil action
no. 5197/02 and civil appeal no. 11804
Broadcasting
details: broadcasting of episodes of a Cypriot series, “Sto
Parapente” (“Στο Παραπέντε”)
between 14 and 18 February 2000, from 7.40 p.m. to 8.30 p.m.,
containing clear images of various products of definite brands such
as Heineken, Carlsberg and Amstel, Coca-Cola, Schweppes and various
local products (biscuits, coffee).
Examination:
on CRTA’s initiative
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of decision: 5 April 2000
Findings:
violation of sections 33 (2)(d) of Law 7(I)/1998
Fine:
CYP 2,500
6. CRTA case no. 113/2000(3) - Recourse no. 304/2001
Broadcasting
details: broadcasting of repeats of episodes of a Cypriot series,
“Sto Parapente” (“Στο Παραπέντε”)
between 15 and 20 November 2000, from 4.10, 4.15 or 4.20 p.m. to 5.10
or 5.20 p.m., containing clear images of various products of definite
brands such as Heineken, Carlsberg, Budweiser, Beck’s and
Amstel, Finlandia and Virgin Vodka, Campari, Ballantine’s
scotch whisky, Coca-Cola and Kent cigarettes.
Examination:
on CRTA’s initiative
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of decision: 11 December 2000
Findings:
violation of sections 33 (2)(d) of Law 7(I)/1998
Fine:
CYP 4,000
7. CRTA case no. 173/2001(3) - Recourse no. 330/2002
Broadcasting
details: broadcasting of 347 advertisements from 15 to
30 November 2001 and 1 to 31 December 2001 between 6.00 p.m. and
12.00 midnight
Examination:
on the CRTA’s initiative
Applicant’s
participation: the applicant did not make written submissions but
attended the hearing of the case and admitted violations of section
33(2)(g) (“33 (2)(η)”) of Law 7(I)/1998 and violation
of F.3 appendix IX of the Regulations.
Date
of decision: 13 February 2002
Findings
: violations of section 33(2)(g) of Law 7(I)/1998 in 22 cases and
violation of St. 3 appendix IX of the Regulations in 325 cases
Fine:
CYP 32,000
8. CRTA case no.19/2001(3) - Recourse no. 966/2001
Broadcasting
details: broadcasting of news bulletins on 20 and 21 February
2001 between 8.10 and 9.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions and
attended the hearing. The applicant admitted a violation of section
33(2)(d).
Date
of decision: 5 September 2001
Findings:
violation of section 33(2)(d) and (i) of Law 7(I)/1998 and paragraph
E.3 of appendix IX of the Regulations
Fine:
CYP 2500 (CYP 500 for the violation of section 33(2)(i) and the
Regulations and CYP 2000 for the violation of section 33(2)(d))
C. News reports within news bulletins
9. CRTA case no. 75/2000(3) - Civil action no. 5187/02
and civil appeal no. 11805
Broadcasting
details: broadcasting of a news bulletin on 27 July 2000 between
8.20 p.m. and 9.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of decision: 15 November 2000
Findings:
violation of Regulations 21(3), 24(1)(a) and paragraph 10 of part II
of appendix VIII
Fine:
CYP 500
10. CRTA case no. 98/2000(3) - Recourse no. 448/2001
Broadcasting
details: broadcasting of a news bulletin on 2 October 2000
between 8.20 p.m. and 9.30 p.m.
Examination:
on the CRTA’s initiative
Applicant’s
participation: the applicant made written submissions and
attended the hearing
Date
of decision: 1 November 2000
Findings:
violation of Regulations 21(6), 24(1)(a) and 24(2)(d) (“24(2) (δ”))
Fine:
CYP 250
11. CRTA case no. 152/2000(3) - Recourse no. 301/2001
Broadcasting
details: broadcasting of a news bulletin on 27 December 2000
between 8.20 p.m. and 9.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing
Date
of decision: 14 February 2001
Findings:
violation of Regulations 24 (2)(a) –(d) and paragraph 6 of part
II of appendix VIII.
Fine:
CYP 1,500
12. CRTA case no. 9/2001(3) - Recourse no. 914/2001
Broadcasting
details: broadcasting of a news bulletin on 23 January 2001
between 8.20 p.m. and 9.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions and
attended the hearing
Date
of decision: 19 September 2001
Findings:
violation of Regulations violation of Regulations 24(1)(a), 21 (3)
and paragraph 8(2) of part I of appendix VIII
Fine:
CYP 1,000
13. CRTA case no. 43/2001(3) - Recourse no. 279/2002
Broadcasting
details: broadcasting of a news bulletin on 16 March 2001 between
11.00 p.m. and 11.20 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing. However, it subsequently made written
submissions concerning the imposition of a fine.
Date
of decision: 17 October 2001 and 12 December 2001 (decision
imposing the fine)
Findings:
violation of Regulation 24(3)
Fine:
CYP 500
14. CRTA case no. 44/2001(3)-Recourse no. 663/2002
Broadcasting
details: broadcasting of a news bulletin on 27 February 2001
between 8.20 p.m. and 9.00 p.m.
Examination:
upon CRTA’s initiative
Applicant’s
participation: the applicant made written submissions and
attended the hearing of the case. Subsequently, it also made written
submissions concerning the imposition of a fine.
Date
of decision: 22 May 2002 and 19 June 2002 (decision imposing the
fine)
Findings:
violation of Regulations 24(1)(a) and paragraph 10 of part II of
appendix VIII
Fine:
CYP 2,000
15. CRTA case no. 108/2001(3) - Recourse no. 819/2002
Broadcasting
details: broadcasting of a news bulletin trailer and a news
bulletin on 16 August 2001 between 6.25 p.m. and 6.51 p.m. and 8.16
p.m. and 9.01 p.m. respectively.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make any submissions in
writing and did not attend the hearing. However, it subsequently made
submissions in writing concerning the imposition of a fine.
Date
of decision: 8 May 2002 and 17 July 2002 (decision imposing the
fine)
Findings:
violation of Regulations 21(3) and paragraph 1(2) of part II of
appendix VIII of the Regulations and section 26(1)(e) of Law
7(I)/1998
Fine:
CYP 5,000
D. Films, series, programmes and trailers
16. CRTA case no. 88/2000(3) - Civil action no. 5188/02
and civil appeal no. 11803
Broadcasting
details: broadcasting of an episode of the series “The
Night Man” (“Ο ‘άνθρωπος
της νύχτας”) on 6
September 2000 between 2.00 p.m. and 3.00 p.m. without acoustic and
visual warning.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing
Date
of the decision: 22 November 2000
Findings:
violation of Regulations 21 (6) and 32(3)(a)
Fine:
CYP 500
17. CRTA case no. 141/2000(3) - Recourse no. 299/01
Broadcasting
details:
(a)
broadcasting of trailers of the “Highlander” series on 30
November and 6 December 2000 between 8.20 a.m. and 8.40 a.m. and
between 5.20 p.m. and 6.20 p.m.
(b)
broadcasting of an episode of the “Viper” series on 30
November 2000 between the hours of 5.20 p.m. and 6.20 p.m. with
acoustic and visual warning of “suitable for all viewers”
(c)
broadcasting of an episode of the “Highlander” series on
6 and 7 December 2000 between the hours of 5.20 p.m. and 6.20
p.m. and 6.10 p.m. and 7.20 p.m. with acoustic and visual
warning “suitable for all viewers”
Examination:
on the CRTA’s initiative
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing
Date
of decision: 8 February 2001
Findings:
violation of Regulations 21(5)(b), 21(6) and 32(3)(a)
Fine:
CYP 1,000
18. CRTA case no. 13/2001(3) - Recourse no. 348/2001
Broadcasting
details: broadcasting of the film “She fought alone”,
rated “K”, on 18 February 2001 between 6.00 p.m. and 8.20
p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing
Date
of decision: 9 March 2001
Findings:
violation of Regulations 21(5) and (6), 22(1), 32(2) and 32 (3)(a)
Fine:
CYP 5,000
19. CRTA case no. 125/2001(3) - Recourse no. 817/2002
Broadcasting
details: broadcasting of the film “Shadow Warriors II”,
rated “18”, on 25 August 2001 between 9.00 p.m. and 11.30
p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing. The applicant admitted that the film should not
have been shown in the family zone in view of its rating
Date
of decision: 14 June 2002 and 24 July 2002 (decision imposing the
fine)
Findings:
violation of Regulations 21(6), 22 (2) and 32(3)(a)
Fine:
CYP 500
20. CRTA case no. 133/2001(3) - Recourse no. 445/2001
Broadcasting
details: broadcasting of the film “Broken Arrow”,
rated “15”, on 22 September 2001 between 9.15 pm and
11.02 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing. However, it subsequently made written
submissions concerning the imposition of a fine.
Date
of decision: 23 January 2002 and 6 March 2002 (decision imposing
the fine)
Findings:
violation of Regulations 21(6), 22 (2) and 32(3)(a)
Fine:
CYP 3,000
21. CRTA case no. 143/2001(3) - Recourse no. 815/2002
Broadcasting
details: broadcasting of the film “No Holds Barred”,
rated “15”, on 1 September 2001 between the hours 9.00
p.m. and 11.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions but did not
attend the hearing.
Date
of decision: 14 June 2002 and 6 August 2002 (decision imposing
the fine).
Findings:
violation of Regulations 21 (6), 22 (2) and 32(3)(a).
Fine:
CYP 1,000.
22. CRTA case no. 5/2002(3) - Recourse no. 803/2002
Broadcasting
details: broadcasting of the trailer of the film “The Last
Boy Scout” 20 times on 4 October 2001 between 8.28 a.m. and
6.45 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions admitting
that the trailer contained scenes unsuitable for minors but did not
attend the hearing.
Date
of decision: 3 April 2002 and 10 July 2002 (decision imposing the
fine)
Findings:
violation of Regulations 21(6) and 32(3)(a)
Fine:
CYP 2,000
E. “Social
documentaries”
23. CRTA case no. 10/2001(3) - Recourse no. 912/2001
Broadcasting
details: broadcasting of a trailer 13 times, on 5, 7, 8, 10 and
11 February 2001 between 9.00 a.m. and 7.15 p.m., of the social
documentary “Pesta sto Mama” (Πέστα
στο Μάμα”).
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions but
attended the hearing
Date
of decision: 19 September 2001
Findings:
violation of Regulations 21(5) and (6), 22, 24(2)(d), 32(3)(a), and
paragraph 8(2) of part I of appendix VIII
Fine:
CYP 2,000
24. CRTA case no. 11/2001(3) - Recourse no. 913/2001
Broadcasting
details: broadcasting of the social documentary “Pesta sto
Mama” (Πέστα στο
Μάμα”) on 8 and 15 February 2001 between 9.30
p.m. and 12.00 p.m., and of repeats on 11 February and 18 February
2001 between 2.30 p.m. and 5.00 p.m.
Examination:
upon complaint
Date
of decision: 19 September 2001
Applicant’s
participation: the applicant did not make written submissions but
attended the hearing.
Findings:
violation of Regulations 21(3), (5) and (6), 22, 32 (3)(a) and
paragraph 8(2) of part I of appendix VIII; violation of section 26(2)
of Law 7(I)/1998.
Fine:
CYP 3,000
25. CRTA case no. 60/2001(3) - Recourse no. 1097/2001
Broadcasting
details: broadcasting of the social documentary “Pesta sto
Mama” (Πέστα στο
Μάμα”) on 3 May 2001 between 10.00 p.m. and
12.00 midnight
Examination:
upon complaint
Applicant’s
participation: the applicant made written submissions, attended
the hearing and made written submissions concerning the imposition of
a fine.
Date
of decision: 9 August 2001 and 10 October 2001 (decision imposing
the fine)
Findings:
violation of section 26(2) of Law 7(I)/1998
Fine:
CYP 5,000
F. Broadcasting of programmes containing offensive
remarks and inappropriate language
26. CRTA case no. 117/2000(3) - Recourse no. 303/2001
Broadcasting
details: broadcasting of an episode of the Cypriot series “Tis
Filakis ta Sidera” (“Της Φυλακής
τα Σίδερα”) on 8
November 2000 between 10.00 p.m. and 11.30 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions or
attend the hearing
Date
of decision: 24 January 2001
Findings:
violation of Regulations 21(3) and (4) and 26(l) (“26(ιβ)”)
Fine:
CYP 2,000
27. CRTA case no. 1/2001(12) - Recourse no. 922/2001
Broadcasting
details: broadcasting of a radio programme “Ola Kala”
(“Όλα Καλά”) on
19 December 2000 and 9 January 2001 between 1.00 a.m. and 1.00 p.m.
Examination:
upon complaint
Applicant’s
participation: the applicant did not make written submissions and
did not attend the hearing. However, it subsequently made written
submissions concerning the imposition of a fine.
Date
of decision: 5 September 2001 and 10 October 2001 (decision
imposing the fine)
Findings:
violation of Regulations 21(4) and (6)
Fine:
CYP 1,000
