An interview with Mr. Ara Ghazaryan, lawyer for the “A1+” and “Noyan Tapan” T.V. stations

Mr. Ghazaryan, are you satisfied with the judgment of the European Court?

It is satisfactory to the extent that the Court understood the crux of the case; that there was a violation of Article 10 Principle 1, of the European Convention on Human Rights.

It is not complete because we had raised other issues that the Court didn’t deal with. We challenged the fact that the State Committee on TV and Radio isn’t an independent body and that its decisions weren’t substantiated.

Nevertheless, I am glad that the European Court made a judgment based on a precedent dealing with a case in Bulgaria that examined whether the decisions of the regulatory agency were substantiated or not. Given that a precedent existed, I was sure that we would win the “A1+” case.

On November 6th the government passed a resolution to allocate 30,000 Euros from the state budget to “A1+”. Can we say that by doing so the government has satisfied the demands of the European Court?

Naturally, no, but the Court, as an international tribunal, which doesn’t operate as an appeals court, can directly pass decisions as to whether or not the Convention has been violated. Now, the Court has specified 30,000 Euros in compensation which is easy to pay and which will be paid, but it will neither satisfy “A1+” or various European institutions. These institutions will sit down with the Armenian government to draft a program of action and they will move forward and this can take a few years. The government will take certain steps and announce them to the Ministers Committee. But will all this be considered satisfactory we still do not know given that this fulfillment process has just started.

In other words the judgment doesn’t call for the reopening of “A1+”

First, nothing of the kind is written in the judgment nor could it be. It is a question for the state bodies to decide given that we are dealing with a sovereign government. The European Court is not in a position to demand that a broadcast license be granted, it merely registers that a violation has been committed. The more important process begins afterwards, the fulfillment stage. Which is overseen by the Ministers Committee and can turn into a drawn out affair given that until the violated right isn’t reestablished the European Council will not proclaim that the fulfillment procedure has been completed. But the government must decide what it must do in order to restore the violated right of the individual or organization.

As a result of the recent reforms in the laws regarding TV and radio there will be no competitive tenders for frequencies in the next two years. What effect will this have on the fulfillment phase of the process?

In September there should have been a tender and it could have been considered as a step by the government as a restoration of the violated right and it would have surely been registered on the part of the Council of Ministers. It didn’t take place however. Of course this will not be viewed as a positive step by the Council of Ministers and the government must present explanations as to why such a decision was formulated and if it actually assists in the restoration of the violated rights. In addition, on an individual basis, “A1+” can petition the court and ask that it take into consideration the verdict of the European Court as a new factor so that the case is reinitiated. This is an important method in the restoration of violated rights and I believe that “A1+” will take advantage of the opportunity.

Why didn’t the “A1+” precedent serve as a basis for the “Noyan Tapan” case?

“A1+” obtained a verdict while “Noyan Tapan” did not; it didn’t pass the acceptance phase. Here, the director of “Noyan Tapan” made a big mistake. It was a few years back when the “Noyan Tapan” case was first presented to the court and the court rejected the claims of the company regarding the competition for frequencies since it still hadn’t petitioned the national courts. Put more correctly, it hadn’t exhausted all possible avenues. If it had gone through all the tribunals in Armenia at the time and then petitioned the European Court it would have definitely won given that the questions and facts regarding the law were the same in both cases. The European Court noted this on two instances in decisions relating to “Noyan Tapan” As far back as in the 2004 decision the Court noted that, “The fact that the internal state courts refused the petitions which are similar to the ones that the petitioner intends to present doesn’t at all signify that those legal defense methods were in effect non-effective and the petitioning party might not have fully exhausted them all.”

In your opinion will the State Committee onTV and Radio cull any lessons from the “A1+” verdict?

It will cull lessons to the extent that it will now recognize that hereafter it must implement competitions in such a fashion as specified in the “A1+” verdict. The European Court focused attention on the point that the Committee has limitless discretionary power. In other words, public review isn’t spread on the decision of the Committee despite the fact that it is a public body. The Committee doesn’t rationalize its decisions and thus the possibility for public review is neutralized. But I believe that the Committee will no longer implement such a practice given that the TV stations can petition the national court, citing the verdict of the “A1+” case, and European decisions are obligatory in such pursuits.

For a long time the Armenian authorities were claiming that in reality “A1+” didn’t win in the European Court given that only one of its demands was sustained. What’s your view of this approach?

They have reduced jurisprudence to basic arithmetic and this isn’t the correct approach to take. The question to be asked is whether or not there was a violation. The European Court, finding a violation as per Article 10, Part 1, found that it was pointless to pursue the other claims. The European Court often works in this way and it wasn’t anything particular to the “A1+” case. I take what the government said as a joke. But even the government clearly stated that “A1+” emerged the winner.

Astghik Khachatryan