FIFTH SECTION

DECISION

Application no. 55592/13 MISKA TELERADIOKOMPANIYA CHERNIVTSI, TOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 1 September 2022 as a Committee composed of:

Stéphanie Mourou-Vikström , President,

Lado Chanturia ,

Mykola Gnatovskyy , Judges,

and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 55592/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2013 by a Ukrainian company, Miska Teleradiokompaniya Chernivtsi, Tov, based in Chernivtsi (“the applicant company”), which was represented before the Court by Ms L.V. Opryshko, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr Ivan Lishchyna, of the Ministry of Justice;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the refusal of the national authorities to issue the applicant company a license for digital broadcasting. It raises issues under Articles 10 and 13 of the Convention.

2. The applicant company held a licence for analogue broadcasting, issued on 28 May 2010 and valid until 28 May 2017.

3. In 2008 the Cabinet of Ministers of Ukraine decided that Ukraine was to change from analogue to digital broadcasting by 2015 and that, as of 2015, analogue television and radio transmitters would stop functioning. However, television broadcasting did not fully switch from analogue to digital until 2019. As a result analogue television and radio transmitters could operate under their existing licenses for analogue broadcasting until 2019.

4. On 15 April 2011 the National Council of Television and Radio Broadcasting (“the Council”) announced a competition for licences for regional digital broadcasting on free frequencies and adopted the rules of the competition.

5. The applicant company participated in the competition. It wished to obtain a licence for digital broadcasting because it assumed that after 2015 it would no longer be able to operate using its licence for analogue broadcasting (see paragraph 3 above).

6. Between 16 and 18 August 2011, the Council adopted more than 500 decisions in respect of the results of the competition.

7. The applicant company was not granted a licence for digital broadcasting.

8. The applicant company appealed to the courts against the results of the competition, but to no avail (the final decision was given by the Higher Administrative Court on 14 February 2013).

9. The applicant company held a valid licence for analogue broadcasting and continued broadcasting in analogue format until December 2019 when it received a license for digital broadcasting. Since December 2019 the applicant company has broadcasted in digital format.

10. The applicant company complained that the authorities’ unlawful and unfounded refusal to grant it digital broadcasting licence following the competition held in 2011 had breached its right to freedom of expression under Article 10 of the Convention.

11. It further complained that it had no effective remedy in respect of that complaint, as required by Article 13 of the Convention.

THE COURT’S ASSESSMENT

12. The Government submitted that the applicant company’s complaints were manifestly ill-founded and that it did not have a victim status because, after not having obtained a licence in 2011, it had continued to broadcast. The Government further contended that the applicant company had not exhausted domestic remedies because it had not availed itself of the procedure for exchanging the licence outside the competition, which had been established for entities which already held licences for analogue broadcasting and were technically ready to switch to digital broadcasting, and also because it had not participated in a competition for licences for digital broadcasting on free frequencies organised by the Council in 2012.

13. The applicant company maintained its complaints. It asserted that the competition of 2012 had not concerned the region in which it operated and that no other competitions of the same kind had been organised.

14. The Court observes that after the applicant company failed to obtain the licence for digital broadcasting following the competition in 2011, it continued to broadcast until 2019 using its licence for analogue broadcasting. In 2019 the applicant company obtained a license for digital broadcasting and continued to broadcast in digital format. There is no material in the case file showing that the applicant company had to interrupt its activities even for a short period of time because it did not have a valid broadcasting licence (for analogue or digital broadcasting) or for any other reason. Thus, the applicant company has never been deprived of the possibility of imparting information or ideas to its audience during the period under examination.

It follows that the applicant company cannot be considered a victim of the alleged violations for the purposes of Article 34 of the Convention.

15. Consequently, the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 3 (a) thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 September 2022.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President