FIFTH SECTION

DECISION

Application no . 4255/07 Mustafa DIBIROV against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 31 January 2017 as a Committee composed of:

Erik Møse , President, Yonko Grozev , Lәtif Hüseynov , judges, and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 9 January 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mustafa Dibirov , is an Azerbaijani national who was born in 1958 and lives in Balakan . He was represented before the Court by Mr S. Bagirov and Mr I. Aliyev, lawyers practising in Azerbaijan.

2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. In 1991 the applicant established the Krosna Television and Radio Company (“the company”) in the Balakan region, with the aim of operating a regional television channel and a radio station. The applicant was the sole founder of the company. On 15 October 1991 the company was registered as a legal entity by the Ministry of Justice and on 16 October 1996 as a mass media outlet by the Ministry of Press and Information.

5. In 1998 the company was renamed the DM-TRV Independent Television and Radio Programmes Company (hereinafter “DM-TRV”). The renamed and reorganised company was registered by the Ministry of Justice on 2 March 1998.

6. It appears that several times in the 1990s the company asked the Ministry of Communications and other relevant authorities to allocate it television and radio broadcasting frequencies, but to no avail.

7. It also appears that, despite having no broadcasting licence and no officially awarded frequencies, DM-TRV did broadcast television programmes in the Balakan region in the late 1990s and the early 2000s. In connection with this, the company received several warnings from the Ministry of Communications. In September 2001 DM-TRV ceased broadcasting.

8. In June 2002 the National Assembly adopted a new Law on Television and Radio Broadcasting (“the Broadcasting Act”) stipulating a procedure for the licensing of private television and radio companies. In 2003 a new authority, the National Television and Radio Commission (“the NTRC”), was established, in accordance with the Broadcasting Act, and was vested with authority to, inter alia , regulate licensing.

9. According to the applicant , o n an unspecified date in 2003 he applied to the NTRC for a licence and broadcasting frequency for DM-TRV. About a year after the date of the application, the applicant was informed that the licence request had not been approved.

10. According to the Government, the applicant had not formally applied for a licence in 2003 and in fact had never formally contacted the NTRC until October 2006 (see below).

11. In October 2005 the applicant lodged a claim against the State Radio Frequencies Commission, the State Radio Frequencies Department of the Ministry of Communications and Information Technologies, and the NTRC. He complained, in general terms, that, despite numerous (unspecified) applications to various authorities in this regard, DM-TRV could not operate because it did not have a radio frequency and requested the court to order the relevant authorities to allocate DM-TRV a radio frequency.

12. On 31 January 2006 the Sabail District Court refused to allow the claim and issued a decision terminating the proceedings. The court noted that, in order to obtain a broadcasting frequency, DM-TRV had to have a broadcasting licence; under the Broadcasting Act such licences were granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies submitted to it by the State Radio Frequencies Commission. As the NTRC had informed the court during the above-mentioned proceedings, a call for tenders would be announced in due course by means of the publication of announcement in the official press, and DM-TRV would then be eligible to apply for a licence . On the basis of the above, the court concluded that the matter of granting a broadcasting licence to DM-TRV was within the jurisdiction of the NTRC and was to be resolved by means of a future call for tenders, to be conducted by the NTRC, in which DM-TRV would be able to participate. Therefore, the applicant ’ s claim was not admissible.

13. The applicant appealed against this decision to the higher courts. On 2 June 2006 the Court of Appeal, and on 6 September 2006 the Supreme Court, dismissed the applicant ’ s appeals and upheld the Sabail District Court ’ s decision.

14. On 14 September 2006 the applicant sent identical requests for information to the State Radio Frequencies Department of the Ministry of Communications and Information Technologies and the State Radio Frequencies Commission, enquiring about the rules and deadlines in respect of applications and decisions regarding the allocation of radio frequencies, as well as requesting information about frequencies previously allocated to independent broadcasters.

15. On 15 September 2006 the State Radio Frequencies Department of the Ministry of Communications and Information Technologies responded that it was not authorised to provide the information requested.

16. On 9 October 2006 the State Radio Frequencies Commission responded that matters regarding the granting of licences and the allocation of frequencies to private broadcasters lay within the authority of the NTRC and that the applicant should therefore request clarification directly from the NTRC.

17. In the meantime, on 4 October 2006 the applicant sent a similar request for information to the NTRC; he also requested the NTRC for information concerning any future tenders for broadcasting licences.

18. On 12 October 2006 the NTRC responded that under the Broadcasting Act broadcasting licences were granted on the basis of a tender procedure, that the rules and conditions for any tender were published in the official media at least a month before the deadline for the submission of applications, and that in 2006 the NTRC had already issued a call for tenders for the broadcasting licences for the Khachmaz , Sheki and Yevlax regions.

19. According to the information submitted by the Government, in August 2006, the NTRC called for tenders for awarding a television broadcasting licence for the Sheki region and adjacent regions, which included the Balakan region. In July 2007 the NTRC called for tenders for television and radio broadcasting in the Zaqatala region (which neighbours the Balakan region). Moreover, a number of other calls for tenders were issued by the NTRC for television and/or radio broadcasting in various other regions.

20. DM-TRV did not submit a tender in respect of any of the calls for tenders issued by the NTRC.

B. Relevant domestic law

21. The Broadcasting Act of 2002 provides as follows, in the relevant parts:

Article 14. Special permit (licence) for television and radio broadcasting

“14.1. Television and radio broadcasting on the territory of the Republic of Azerbaijan shall be carried out on the basis of a special permit (licence) granted in accordance with this Law. ...”

Article 15. Tender for a special permit (licence)

“15.1. A special permit (licence) for broadcasting, except for State and public television and radio broadcasting, shall be granted on the basis of a competition.

15.2. The terms and conditions of the competition shall be published in an official newspaper not later than one month before the expiry of the time allowed for lodging applications.

15.3. The interests of the audience and the State shall be taken into account while determining the conditions of the competition for a special permit (licence) ...”

COMPLAINTS

22. The applicant complained that the authorities ’ failure to grant a broadcasting licence to DM-TRV amounted to a violation of his rights under Article 10 of the Convention. He submitted that while under the domestic law licences could be granted on the basis of a call for tenders and that no licence applications submitted by DM-TRV outside of the tender process could be accepted, no such call for tenders had been announced for the Balakan region since the establishment of NTRC, thus effectively depriving DM-TRV of the opportunity to obtain the required broadcasting licence.

23. The applicant complained under Articles 6 and 13 of the Convention that there were no effective remedies against the infringement of his and his company ’ s rights by the licensing authorities and that the domestic courts had refused to examine the merits of his complaint.

24. The applicant complained under Article 14 of the Convention that his company had been subjected to discriminatory treatment, as about ten other (unspecified) private television and radio companies had been granted licences outside of the tender process, while a similar request from DM ‑ TRV had been refused.

THE LAW

A. Complaint under Article 10 of the Convention

25. The applicant complained that his broadcasting company ’ s inability to obtain a broadcasting licence amounted to a violation of his freedom of expression under Article 10 of the Convention.

26. The Government submitted that there had been no interference with the applicant ’ s rights under Article 10. They noted that DM-TRV had never participated in any calls for tenders issued by the NTRC. They further denied the applicant ’ s claim that in 2003, before the relevant calls for tenders, DM-TRV had individually applied to the NTRC for a licence. According to the Government, the applicant had first contacted the NTRC only on 4 October 2006, with a request for information. Even the applicant ’ s claim of October 2005 (see paragraph 11 above) had been brought in order to seek an order for a broadcasting frequency to be allocated and had not concerned any refusal to grant a licence. In their respective decisions, the domestic courts had explained to the applicant that a frequency could only be allocated on the b asis of a licence, for which DM ‑ TRV had never applied.

27. In his comments on the Government ’ s observations, without submitting any additional relevant information or documents, the applicant reiterated his grievances concerning DM-TRV ’ s inability to operate due to its lack of a broadcasting licence and a broadcasting frequency and concerning the authorities ’ allegedly unlawful actions and alleged failure to act with regard to this issue.

28. The Court notes, at the outset, that the application was submitted by the applicant on his own behalf, and not on behalf of DM-TRV, whose rights had allegedly been breached. In this connection, the Court reiterates that the term “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see Eckle v. Germany , 15 July 1982, § 66, Series A no. 51) . While in certain circumstances the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention in so far as the impugned measures taken with regard to his or her company are concerned (see, among other authorities, Groppera Radio AG and Others v. Switzerland , 28 March 1990, § 49, Series A no. 173; Ankarcrona v. Sweden ( dec. ), no. 35178/97, 27 June 2000; and Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria , no. 14134/02, § 40, 11 October 2007) , when that is not the case disregarding a company ’ s legal personality as regards the question of being a “victim” will only be justified in exceptional circumstances (see Agrotexim and Others v. Greece , 24 October 1995, § 66, Series A no. 330 ‑ A; Camberrow MM5 AD v. Bulgaria ( dec. ), no. 50357/99, 1 April 2004; and Capital Bank AD v. Bulgaria ( dec. ), no. 49429/99, 9 September 2004).

29. In the present case, it can be seen from the documents available in the case file that, at the time of the establishment of DM-TRV, then named Krosna Television and Radio Company, the applicant was its sole owner. However, the applicant failed to respond to the specific question put to him by the Court regarding whether he was still the sole owner of the company at the time at which the alleged violations had taken place and at the time at which the present application had been lodged before the Court. Accordingly, an issue arises as to the application ’ s compatibility ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a). However, the Court finds that there is no need to rule on this issue because, even assuming that the applicant were a “victim” of the alleged violation, the application is in any event inadmissible for the reasons specified below.

30. The Court further notes that it only has the authority to examine complaints of violations of the Convention arising from events that have occurred after the Convention entered into force in respect of the High Contracting Party concerned (see, among other authorities, Ismayilov v. Azerbaijan , no. 4439/04, § 25, 17 January 2008). The Convention entered into force in respect of Azerbaijan on 15 April 2002. Accordingly, any events relating to the present complaint that took place before that date fall outside the Court ’ s competence ratione temporis , and the below examination will be limited to the events that took place after that date.

31. The refusal to grant a broadcasting licence constitutes an interference with the exercise of the rights guaranteed by Article 10 § 1 of the Convention (see, among other authorities, Informationsverein Lentia and Others v. Austria , 24 November 1993, § 27, Series A no. 276 ; Radio ABC v. Austria , 20 October 1997, § 27, Reports of Judgments and Decisions 1997 ‑ VI; and Demuth v. Switzerland , no. 38743/97, § 30, ECHR 2002 ‑ IX) . It is of little consequence whether a licence is refused following an individual application or participation in a call for tenders (see Meltex Ltd and Movsesyan v. Armenia , no. 32283/04, § 74, 17 June 2008) . Failure to allocate a broadcasting frequency to a company that has already been granted a licence also amounts to an interference under Article 10 § 1 of the Convention (see Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09 , § § 137-38, ECHR 2012).

32. Having regard to the circumstances of the present case, the Court finds, for the reasons outlined below, that DM-TRV was never refused or granted a licence because it never applied for a licence, either under the procedure provided by law or otherwise.

33. It is undisputed by the parties that DM-TRV never participated in a call for tenders. According to the Government, in 2006 and 2007 there were two calls for tenders for a licence to broadcast in territories that either included or neighboured the Balakan region, and DM-TRV did not participate in either of them. The applicant did not object to this submission by the Government.

34. The applicant ’ s complaint, insofar as it relates to events after April 2002, is essentially premised on the allegation that the interference had taken place when DM-TRV had been refused a licence following an individual application made in 2003. The Government disputed this assertion and claimed that DM-TRV had never submitted any individual applications to the NTRC for a licence.

35. Having had regard to the applicant ’ s submissions in the original application form and his subsequent observations on the admissibility and merits of the application, the Court notes that he has failed to submit any documentary evidence of the application that DM-TRV allegedly made to the NTRC in 2003, despite a specific request by the Court in this regard. There is no document in the case file, be it a copy of a formal licence application made by DM-TRV or any formal response by the NTRC relating to the alleged individual request for a broadcasting licence.

36. Furthermore, in the claim lodged by DM-TRV in October 2005 (see paragraph 11 above), the company complained of the relevant authorities ’ failure to allocate it a broadcasting frequency. The claim did not mention its alleged 2003 application to the NTRC for a licence and it contained no complaints concerning any refusal by the NTRC to grant a licence outside the tender procedure.

37. It is true that the applicant has sent various requests for information to the relevant authorities enquiring about the procedures for allocating a broadcasting frequency and awarding broadcasting licences. However, none of those requests for information constituted a formal application for a broadcasting licence.

38. Having regard to the above, the Court finds that the applicant has failed to demonstrate that DM-TRV has applied after April 2002 to the competent national authority NTRC for a broadcasting licence, by way of either an individual application or participation in a call for tenders. It follows that the domestic authorities have not refused to grant a licence to DM-TRV and that in the absence of a licence, the allocation of a broadcasting frequency was not possible under the domestic law. Therefore, no interference with DM-TRV ’ s rights can be established in the present case.

39. Accordingly, the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

40. Having regard to the above conclusion, the Court further finds that no separate issues arise under Articles 6, 13 or 14 of the Convention in the present case.

41. Accordingly, 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 February 2017 .

Anne-Marie Dougin Erik Møse Acting Deputy Registrar President