CASE OF CROATIAN RADIO-TELEVISION v. CROATIAJOINT PARTLY DISSENTING OPINION OF JUDGES PACZOLAY, WOJTYCZEK AND POLÁČKOVÁ

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CASE OF CROATIAN RADIO-TELEVISION v. CROATIAJOINT PARTLY DISSENTING OPINION OF JUDGES PACZOLAY, WOJTYCZEK AND POLÁČKOVÁ

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Document date: March 2, 2023

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JOINT PARTLY DISSENTING OPINION OF JUDGES PACZOLAY, WOJTYCZEK AND POLÁČKOVÁ

1. We respectfully disagree with the view that the complaint concerning divergent case-law is admissible. In our view, the applicant company does not have locus standi in the instant case.

2. The point of departure is the power of the State to define the organisation of its apparatus and different public services. The State may freely create entities providing public services, define their status, in particular the level of their autonomy, the scope of the formal guarantees for this autonomy and the extent to which they operate on a market. The State may decide to create entities without any autonomy, with wide autonomy, or with limited autonomy. It may decide that a specific entity will enjoy no fundamental rights, or a wide scope of fundamental rights, or only some specifically enumerated fundamental rights but not other rights. In these cases, the respective public entities derive their status from the decision of the State not from any nature pre-existing the State decision. The State may decide to place an entity outside the personal scope of fundamental rights. It may create and abolish State entities or modify their status. In particular, it may decide that some fundamental rights discretionarily granted to an entity in the past will no longer apply to such entity.

3. The majority rely on the existing case law concerning public radio and television companies ( Radio France and Others v. France (dec.), no. 53984/00, ECHR 2003 ‑ X (extracts); Österreichischer Rundfunk v. Austria , no. 35841/02, 7 December 2006; MacKay and BBC Scotland v. the United Kingdom , no. 10734/05, 7 December 2010; Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland , no. 34124/06, 21 June 2012; and Schweizerische Radio- und Fernsehgesellschaft and publisuisse SA v. Switzerland , no. 41723/14, 22 December 2020). If we understand this approach correctly, as endorsed and developed by the majority, the Convention sets forth limitations upon State power in defining its own structure. The State may create entities placed under Governmental control which are not holders of Convention rights. The State may also create entities with guarantees of autonomy and operating on the market. In this latter case, the entity automatically becomes a holder of Convention rights. The State is not empowered to extract such entities from the scope of protection of the Convention by creating entities which, while being autonomous and operating on the market, are not holders of Convention rights. Thus the Convention enters to some extent the domain of State internal organisation and governs the status of some State entities, whether the State decided to institute them as holders of Convention rights or not.

4. In our view, the Convention system is based inter alia on the implicit distinction between institutional autonomy and Convention rights and freedoms. The two are mutually exclusive. Convention rights and freedoms belong to individuals and their groups, whereas institutional autonomy may be granted to State organs or other State or public law entities.

The status of Convention right-holder stems from the nature of an entity as a grouping of individuals and derives ultimately from human nature and human dignity. The status of Convention right-holder has to be respected by the State, it cannot be denied or withdrawn and it is not gradable. It encompasses the protection of the existence of the right-holder. The notion of human rights and fundamental freedom holders denotes separation from the State.

Institutional autonomy stems from the decision of the State and is gradable. It is matter of choosing the optimal State organisation for the purpose of best serving the citizen. Autonomy may be granted in a discretionary way by the State, which freely defines its scope and the relevant guarantees. It is not granted in the interest of the entity providing the service but in the interests of the persons to whom the entity will provide its services and this autonomy is instrumental to those interests. The very notion of institutional autonomy points to an indissoluble link with the State.

Holders of Convention rights do not need any institutional autonomy because such rights are much stronger, whereas entities with institutional autonomy cannot have Convention rights because of the existing indissoluble link with the State.

5. The approach adopted by the majority blurs the distinction between institutional autonomy and Convention rights and establishes a necessary link between the institutional autonomy granted to an entity and the status of Convention right-holder. Under this approach, institutional autonomy granted to entities operating on the market cannot be disconnected from the status of Convention right-holder. The Convention automatically converts institutional autonomy into a fundamental human right which can be invoked against the State. The Convention thus becomes an instrument protecting, without distinction, fundamentally different legal positions: rights and freedoms anchored in human dignity, principles of State organisation, empowerments granted to State bodies, relations between various State bodies, and so forth. As a result, fundamental human rights stemming from human dignity are diluted in a legal cocktail which becomes indigestible.

6. In the instant case, the respondent State decided to create a public radio and television company with some institutional autonomy and formal guarantees for this autonomy. At the same time, there are no clear indications that the State decided to institute this company as a holder of at least some constitutional rights, or at least some Convention rights. We further note that private radio and TV broadcasters enjoy broad freedom of expression and can in principle choose and change their political engagements and orientation. This freedom of choice belongs to the core of freedom of expression. The applicant company is bound by detailed guidelines regulating the content of broadcasts and thus excluding such freedom of choice and interfering with the very core of the Convention freedom.

In our view, there are no sufficient reasons to contest the choice made by the respondent State in so regulating the status of the applicant company and to extend to it the scope of application of the Convention.

7. To sum up: how is it possible that a legal entity created by the State to serve citizens by providing services to them, owned by the State, and whose legal status has been defined by the State and can be redefined by the State, can have human rights protected by the Convention?

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

52132/19