Joint Statement
Joint Statement by A1+TV Company and its Representatives
On June 17, 2008 the European Court made its well known decision concerning the A1+ television company, after which the case was forwarded to the Committee of Ministers of the Council of Europe. As of December 2008, the Committee began proceedings of supervision of the execution of the judgment by Armenia.
Two avenues for remedying the violated rights of the company have so far been proposed: a new competition, and a revision of domestic court decisions of 2003 and 2004. The first one was proposed by the RA government, while the second one - by the television company. It appears from the two decisions of the Committee of Ministers of September 16, 2009 and March 4, 2010 that both measures had come under close scrutiny of the Committee.
Under the case law of the European Court, the most effective way of remedying the violated rights is revision of court decisions which presumes that the respondent State shall take necessary measures to restore the situation that had pre-existed before the wrongful act was committed. With this principle in mind, in December 2008, the company applied to the RA Court of Cassation, requesting a judicial review of four judgments of the Commercial Court and the Court of Cassation passed in 2003 and 2004.
The main argument of the Company was based on the fact that, although the above courts found no violation in the process of judicial review of seven decisions of the National Television and Radio Commission (NTRC), the European Court, four years later, found that the NTRC had, in fact, violated Article 10 of the European Convention. Consequently, the Company argued, the domestic courts had misinterpreted and wrongly applied the Article 10 of the Convention during the judicial review proceedings, a fact that on its own merits provides sufficient ground for revision of the mentioned decisions. However, the Court of Cassation rejected the two applications of the Company demanding reopening of proceedings, and based its two decisions on a legal norm that, as was later confirmed by the decision of the Constitutional Court of 23 February 2010, had been declared unconstitutional long before the decisions of the Cassation Court were passed.
Thus, the Company regained an opportunity to reapply to the Court of Cassation requesting a new review. At present, the Court of Cassation has admitted the application. With its application for a new review, the Company demands recognition of the fact of violation of its rights by the seven decisions of the NTRC, as well as invalidation of the mentioned decisions. This approach emanates from the principle of rule of law which would directly ensure that the Company's violated rights be restored within a short period of time.
Instead of resorting to revision proceedings as an effective remedy, the RA government proposes to the Committee of Ministers the idea of holding a new competition. Although the television company might gain access to the communication channel as a result of a new competition, it does not stem from the principle of restitutio in integrum, since it cannot place the Company in the same conditions that had pre-existed at the time of the competitions held in 2003.
We are of the opinion that, if a new competition were to be held, it should involve re-evaluation of the bids considered by the NTRC during the previous competitions, i.e. their revision. It means that the NTRC must reconsider its former decisions by reviewing the competition bids in order to make a new, well-reasoned decision; the reasoning must be coherent with the current legislation, as well as the CoE standards, for it was because of a failure to provide proper reasoning that the legitimacy of the competitions had been challenged and the ECHR had found violation of the Company rights. By acting so, the Republic of Armenia could declare that it had ensured effective remedies against the rights violated.
However, not only the Government of Armenia, being a respondent party, has failed to propose an effective remedy, it also announced during the latest session of the Committee of Ministers that no measures other than conducting a new tender could be taken to remedy the Company , as it could infringe upon the rights of the third parties. Such approach does not stem from the principle of rule of law. In fact, it attempts to subordinate the rule of law to the rights of the third parties. Following this logic, RA courts would have to drop all cases involving interests of third parties, as they may be infringed in the process of vindicating the rights of the claimants. However, disbarment of such proceedings has never occurred to anyone, as rule of law prevails irrespective of the interests of any party.
Prior to the above statement, the argument about the rights of third parties had never been raised before the Committee of Ministers. We believe that the reason for such statement was the unexpected decision of the Constitutional Court of 23 February 2010, which, in fact, "revived" the possibility of A1+ to reapply to the Court of Cassation to demand a new review.
We are also concerned with inaction of the RA government. In its decision of 16 September 2009, the Committee of Ministers asked the RA government to provide full information concerning the judicial review proceedings initiated by the Company. After six months, on 4 March, 2010, the Committee repeated its request. In February of this year, having anticipated a delay in provision of the information by the government, Company representatives compiled the requested information in Armenian and English and forwarded it to the Committee. The information included two of the Company's applications to reopen the proceedings, the two decisions of the Court of Cassation admitting the applications, as well as two decisions of the Court of Cassation rejecting the applications. It took one week for the representatives of the Company to fulfill the above task. We hope the government has already sent the requested information to the Committee.
We would like to once again emphasize that the most effective, predictable avenue to remedy the infringed rights of the Company based on the rule of law is a judicial review of the former controversial court decisions, recognition of the fact of the violation by domestic court, as well as invalidation of the NTRC decisions. Any other proposed measure would be as unpredictable as the A1+'s fate was after 2 April 2002.
Ara Ghazaryan
Representative of the Company
Artak Zeynalyan
Representative of the Company
Movses Movsesyan
Chairman of Meltex Ltd.
Yerevan, Armenia
14/04/2010
