PARTLY DISSENTING OPINION OF JUDGES ZIEMELE, NICOLAOU AND BIANKU

While we agree with the conclusion that there has been a breach of Article 6 § 1 of the Convention on account of unreasonable length of proceedings in the applicant ’ s case, to our regret we are unable to agree with the opinion of the majority that there has been no violation of Article 10 of the Convention.

The majority accepts that the applicant, as a journalist employed by the BNR, a public broadcaster, enjoys the protection of Article 10 of the Convention (see the reference in paragraph 50 of the judgment to Manole and Others v. Moldova , no. 13936/02, § 103, 17 September 2009). Therefore, any interference with her employment require s the closest scrutiny on the part of the Court, involving all the circumstances surrounding the dismissal of the applicant. The following are the reasons for our concern over her dismissal and for our view that there has been a violation of Article 10.

First, we recall the fact that the BNR is a public broadcaster. The place of public broadcasting in a democratic society is of special importance. The Court highlighted this in paragraph 101 of Manole and Others (cited above) :

“Where a State does decide to create a public broadcasting system, it follows from the principles outlined above that domestic law and practice must guarantee that the system provides a pluralistic service. Particularly where private stations are still too weak to offer a genuine alternative and the public or State organisation is therefore the sole or the dominant broadcaster within a country or region, it is indispensable for the proper functioning of democracy that it transmits impartial, independent and balanced news, information and comment and in addition provides a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed.” [ see also § 107 of the same judgment ] .

In Manole and Others the Court took into consideration several Council of Europe documents which deal in depth with this issue, [1] and we note their further development since that judgment [2] . Most of these documents underline the importance of a proper legislative and regulatory framework for the functioning of public media enterprises for the purposes of Article 10 of the Convention. The Declaration of the Committee of Ministers on Public Service Media Governance provides:

“Public service media need to show that their own governance systems subject any decision to proper scrutiny, while ensuring that any external oversight (by governments or independent regulators) do not undermine the organisation ’ s independence. As is also the case for public service media undergoing a transition from State to public institutions, it is essential to define the necessary levels of independence from the State. This should be balanced by accountability to a wide range of stakeholders and coupled with a culture that is open to new ideas and which demonstrates high levels of professional integrity.”

In the present case, t he organisation and the functioning of the BNR were open to doubt. The first to raise these concerns was the NRTC, the chief media regulatory body in Bulgaria . A s indicated in paragraph 21 of the judgment, it pointed out that were no mechanisms governing the functioning of the BNR collective bodies and journalists ’ rights and obligations and that there was “confusion between the administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows”.

While in making a distinction with the above ‑ mentioned Manole and Others case , the majority sees “ ... nothing in the facts of the present case to suggest that the decisions of the BNR ’ s management in relation to the applicant ’ s show were taken under pressure from outside”, we think that there is ground for concern, also expressed by the NRTC as indicated above, that the functioning of the BNR and especially the manner in which decisions relevant to editorial choices of journalists hosting programmes were dealt with, did not offer the necessary safeguards . A s the Court stated in Manole and O thers :

“ ... it was, as set out in the above ‑ mentioned Guidelines developed by the Committee of Ministers, essential to put in place a legal framework which ensured TRM ’ s independence from political interference and control.”

It is against this background of lack of a precise framework for the functioning o f the BNR and for its independence, which obviously reflected on the rights and duties of the journalists in their relationship with the public television employer, that the dismissal of the applicant must be viewed .

Secondly, although the majority is ready to accept that in the applicant ’ s case Article 10 of the Convention is applicable (see paragraph 53 of the judgment), it does not attribute to this the importance that we think is necessary in the context of disputes surrounding the activity and the performance of journalists. N otwithstanding the fact that these are regulated by labour legislation, they do require particular attention so as not to render nugatory or to substantially diminish the freedom of expression protected by Article 10 of the Convention. D isputes surrounding journalistic activities should not be viewed only or mainly in terms of labour legislation which, although significant, does not constitute the whole picture. It is equally significant to have regard to the particular feature at play in the professional activity of the journalist, bearing in mind his or her role in conveying ideas and opinions. That is why we consider important that in cases of dismissal or other measures taken by employers against journalists, particular attention should be given to rights protected by Article 10 of the Convention.

In the case before us the domestic authorities have had no regard at all to this aspect . The Bulgarian courts consider ed the issue as only a labour dispute and did not take into account the problems in the function ing of the BNR and the rights and duties of the journalists employed by it. There was an absolute lack of an Article 10 analysis at domestic level . T his is crucial to our way of thinking . In the absence of such analysis the majority prefers to undertake this task itself . W e remain firmly of the opinion that it is not for this Court to embark upon such analysis when this has not taken place at domestic level and its elements were not examined and balanced by the authorities when deciding the case .

Thirdly, in the absence of an Article 10 analysis at domestic level , it is not in the circumstances possible to uphold the proportionality of the measure . Indeed, in our opinion the measure of dismissal has been quite extreme . It does not seem that other measures or sanctions were considered by the BNR Director or the BNR Management B oard. The majority has relied on the case of Palomo Sánchez and Others v. Spain ([GC], no s . 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011 ‑ ...) for finding the measure proportiona te (see paragraph 60 of the judg ment). The relevance of that case, whose circumstances were clearly differ ent from th ose in the present case, seem s to us very limited. In the present case we are talking firstly about journalistic activity and, secondly, about activity which did not entail conduct that was offensive in any way. The act attributed to the applicant taken within the context of rather unclear division of responsibilities as concerns editorial choices within a given programme does not appear to have been so grave or so far ‑ reaching in its effects as to irrevocably have breach ed the mutual trust between employer and employee.

We would therefore conclude that in this case there has been a violation of the applicant ’ s rights under Article 10 of the Convention.

[1] . See the reference in paragraph 102 of the Manole and Others judgement to Resolution No. 1 on “ The Future of Public Service Broadcasting ” (1994), to Recommendation no. R(96)10 on “ The Guarantee of the Independence of Public Service Broadcasting ” (1996), and to the Appendix to Recommendation Rec(2000)23 on “ The Independence and Functions of Regulatory Authorities for the Broadcasting Sector ”

[2] . See Recommendation CM/Rec(2012)1 of the Committee of Ministers to Member States on public service media governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers ’ Deputies) (with Appendix to Recommendation CM/Rec(2012)1 on Guiding principles for public service media governance), and Declaration of the Committee of Ministers on Public Service Media Governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers ’ Deputies)