Professional Documents
Culture Documents
JUDGMENT
STRASBOURG
11 December 2012
FINAL
29/04/2013
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
NENKOVA-LALOVA v. BULGARIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 35745/05) against the
Republic of Bulgaria lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Bulgarian national, Ms Antoaneta Alexandrova
Nenkova-Lalova (“the applicant”), on 21 September 2005.
2. The applicant was represented by Ms S. Margaritova-Vuchkova, a
lawyer practising in Sofia. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
3. The applicant, a radio journalist, complained, in particular, about her
disciplinary dismissal from work and about the alleged unfairness and the
length of the proceedings in which she had challenged that dismissal.
4. On 17 December 2009 the Court (Fifth Section) decided to give the
Government notice of the complaints concerning the alleged interference
with the applicant’s right to freedom of expression and the length of the
proceedings in which she had challenged her dismissal. It was also decided
to rule on the admissibility and merits of the application at the same time
(Article 29 § 1 of the Convention).
5. Following the re-composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section.
2 NENKOVA-LALOVA v. BULGARIA JUDGMENT
THE FACTS
an interlocutor, and that that resolution had been noted in the minutes and
signed by the board’s members. In her explanation Ms M.P. said that the
board had rejected Ms V.N.’s participation in the show, and that Mr A.M.
had noted his disagreement with that and had requested a resolution on that
point, which had been taken by means of a vote.
12. The same day Mr I.R. and Ms M.P. also asked the applicant to
explain, in writing and not later than 4 p.m., why she had disregarded the
“resolution of the [editorial board] of 5 October [1998] which did not allow
the participation of [Ms V.N.]” in the show.
13. In her reply, addressed to Mr I.R., the applicant pointed out that
Ms V.N. had not taken part in the show as an interlocutor, but as one of the
authors, together with three other journalists. She went on to specify that
Ms V.N.’s participation had altogether lasted one hundred and thirteen
minutes.
14. The same day the BNR management board met to consider
“technical discipline” during the show on 9 October 1998. It found that by
allowing Ms V.N. to in effect host the show the applicant had breached the
editorial board’s resolution and the programme’s weekly schedule. It further
found that Ms V.N. had taken part in the show in disregard of the board’s
resolution, that Mr E.I., the show’s editor, had also breached the board’s
resolution and the weekly schedule, and that the editors-in-chief, Mr A.M.,
Mr I.R. and Ms M.P., had failed to exercise sufficient control over the
preparation and the running of the show. The board resolved to impose
disciplinary punishments on all them, to be determined in line with their
varying degrees of fault. It entrusted the execution of its resolution to the
BNR director general.
15. On 12 October 1998 the BNR director general, relying on
Article 187(3), (7) and (10), Article 188(3), Article 190 § 1 (6) and
Article 330 § 2 (5) of the Labour Code 1986 (see paragraph 39 below),
dismissed the applicant on disciplinary grounds. The reasons given were
that she had allowed Ms V.N. to host the show in her stead, thus breaching
the technical rules on the operation of radio programmes, that she had
breached the programme coordination rules, that she had disregarded the
editorial board’s resolution rejecting the proposal for Ms V.N. to take part in
the show, and that she had breached Rule 7 of the “Hristo Botev”
programme and point 1 of order no. 4 of 9 June 1998 of the programme’s
director (see paragraphs 37 and 38 below).
16. The BNR director general also dismissed Ms V.N. and Mr E.I.,
giving similar reasons.
17. On 12 October 1998, during the regular Monday meeting of the
“Hristo Botev” programme’s editorial board, Mr A.M. (see paragraph 9
above) tendered his resignation, citing, among other things, the lack of clear
rules on who could and who could not host radio shows.
4 NENKOVA-LALOVA v. BULGARIA JUDGMENT
22. In conclusion, the NRTC said that it did not accept the supplanting
of the pre-ordained rules for the operation of the BNR by administrative
actions and sanctions. However, that did not mean that the NRTC accepted
the attempts of some journalists to place themselves above the established
principles of work in the national media.
adjourned because on that date the court’s building was sealed off by the
police due to a bomb threat, and took place on 8 May 2002.
27. On 9 July 2002 the Sofia City Court quashed the lower court’s
judgment and refused the applicant’s claims. It found that the applicant had
been duly asked for an explanation by a competent disciplinary authority –
her line manager – prior to the imposition of her punishment. The court
went on to say that the order for the applicant’s dismissal had been issued in
line with the applicable requirements, had indicated the offender, the
offence, the punishment, and the legal provisions on which it had been
based. Moreover, the applicant had in fact committed the disciplinary
offence alleged against her. By allowing Ms V.N. to in fact host her show
for one hundred and thirteen minutes the applicant had not only breached
employment discipline but had also grossly violated basic rules of her work,
such as compliance with the resolutions of the editorial board. By trying to
present Ms V.N. as a “co-author” instead of an “interlocutor”, she had tried
to circumvent the editorial board’s resolution. Under Rule 7 of the “Hristo
Botev” programme (see paragraph 37 below), any changes in the content or
in the organisation of shows that had already been approved could be made
only by written decision of the appropriate manager. Therefore, after the
editorial board had approved the show on 9 October 1998, the applicant
should have informed it about the intended participation of Ms V.N. as a
co-author. By failing to do so, she had grossly breached the rules of the
“Hristo Botev” programme and had accordingly correctly been given the
harshest disciplinary punishment – dismissal.
28. On 17 September 2002 the applicant appealed on points of law. She
raised several points, the bulk of which concerned alleged breaches of the
rules of disciplinary procedure. She also asserted, based on a number of
arguments concerning the lawfulness of the editorial board’s decision of
5 October 1998 and the lawfulness of the order for her dismissal, that she
had not committed a disciplinary offence. One of those arguments was
framed as follows:
“Disregarding ... [my] arguments concerning the lack of duly adopted rules
governing the workings of the ‘Hristo Botev’ programme at the time of [my]
dismissal, as well as the arguments concerning the unlawfulness of point 7 of those
Rules [see paragraph 37 below] on account of its being contrary to section 4(1)
and (2) of the Radio and Television Act [1996], Article 39 of the Constitution of the
Republic of Bulgaria [see paragraph 31 below] and Article 10 of the [Convention], the
[lower] court came to the erroneous conclusion that [I] had broken point 7 of the
Rules and that [my] punishment had therefore been lawful.”
29. After hearing the appeal on 21 February 2005, in a judgment of
23 March 2005 (реш. № 346 от 23 март 2005 г. по гр. д. № 3642/2002 г.,
ВКС, ІІІ г. о.) the Supreme Court of Cassation (Върховен касационен съд)
upheld the lower court’s judgment. In its view, that court’s ruling that the
order for the applicant’s dismissal had been lawful corresponded to the
NENKOVA-LALOVA v. BULGARIA JUDGMENT 7
evidence, which showed that the order had been issued by a competent
disciplinary authority in line with the applicable rules of procedure and had
been duly reasoned. The court further found that the decision to dismiss the
applicant had been correct. By knowingly failing to comply with the
decision that Ms V.N. should not take part in her show, the applicant had
breached employment discipline within the meaning of the Labour Code
1986 (see paragraph 39 below). It was true that the BNR’s internal rules had
not envisaged an editorial board, but it could not be overlooked that the
meeting on 5 October 1998 had been attended by Mr I.R. and Ms M.P., both
of whom had been entrusted by the directors general of the BNR and the
“Hristo Botev” programme with managerial functions. Mr I.R. and Ms M.P.
had indicated that they did not agree with Ms V.N.’s intended participation
in the applicant’s show. Although the applicant had been aware of that, she
had allowed Ms V.N. to take part in her show, thus breaching employment
discipline within the meaning of Article 190 § 1 (6) of the Labour Code
1986 (see paragraph 39 below). The court went on to say that the applicant
should have also been aware of the orders of the directors general of the
BNR and of the “Hristo Botev” programme, which had been public and
available upon request. Lastly, the court held that the applicant’s dismissal
had not been contrary to Article 10 of the Convention, because that Article
allowed the licensing of broadcasting enterprises. Therefore, neither its
letter nor its spirit proscribed the existence of disagreements between those
entrusted with the task of framing a radio’s programme and those in charge
of current and operative issues. The same went for Article 39 of the
Constitution and section 4 of the Radio and Television Act 1996
(see paragraphs 31 and 33 below).
A. The Constitution
31. The relevant provisions of the 1991 Constitution read as follows:
Article 39
2. This right shall not be used to the detriment of the rights and reputation of others,
or for the incitement of a forcible change of the constitutionally established order, the
perpetration of a crime, or the incitement of enmity or violence against anyone.”
Article 40 § 1
“The press and the other mass media shall be free and not subject to censorship.”
Article 41 § 1
“Everyone has the right to seek, receive and impart information. The exercise of that
right may not be directed against the rights and the good name of other citizens, nor
against national security, public order, public health or morals.”
THE LAW
during her radio show on 9 October 1998. She submitted that that dismissal
had been unlawful, had not pursued a legitimate aim and had not been
necessary in a democratic society.
41. Article 10 of the Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
1. The Government
42. The Government submitted that the case concerned an employment
dispute and the applicant’s dismissal for breaching employment discipline,
and that there had therefore been no interference with her freedom of
expression. They pointed out in that connection that the Court had many
times said that it was not its task to act as a court of appeal from the national
courts or to re-examine the merits of cases before those courts. It could not
therefore re-examine points touching upon the lawfulness of the order for
the applicant’s dismissal.
43. In the alternative, the Government submitted that any interference
with the applicant’s right to freedom of expression had been prescribed by
law – Article 330 § 2 (5) of the Labour Code 1986 – and based on clear and
foreseeable rules. The applicant had been aware of the BNR management’s
decision, but had deliberately chosen to disregard it. She must have known
that such conduct could have attracted serious sanctions. The interference
had therefore been prescribed by law and had sought to protect the
reputation and rights of others.
44. The interference had also been necessary in a democratic society. It
was clear that the applicant had committed a disciplinary offence. The
sanction had been proportionate to the gravity of that offence. The applicant
had had a domestic remedy allowing her to challenge her dismissal in court,
and had availed herself of that opportunity. It was also important to point
out that the BNR management had not voiced disagreement with the topics
intended to be included in the applicant’s show, had not tried to ban the
airing of any material – such as those concerning alleged corruption and the
NENKOVA-LALOVA v. BULGARIA JUDGMENT 11
customs –, and had not sought to impose any changes to the show’s script
with a view to censoring it. The show had not been taken off the air. The
editorial board’s resolution of 5 October 1998 had prohibited only the
intended participation of Ms V.N. in the show, for reasons which could be
deduced from the ensuing explanations of Mr I.R. and Ms M.P. to the BNR
director general, as well as from the position taken by the NRTC. The BNR
was a national media which had a large number of listeners, traditions and
authority, and no real competitors in the sphere of political journalism on
radio. Such a media had to abide by certain internal rules enforced by its
management, and decisions as to the content of its shows could not be taken
single-handedly. Contrary to what she was alleging, the applicant had been
acquainted with the editorial board’s resolution that Ms V.N. should not
take part in her show, which had apparently been adopted after a vote. All of
that showed that the conflict between the applicant and the BNR
management was rather the result of differences of principle, and did not
concern the journalistic investigations conducted by Ms V.N. and the three
other journalists. The applicant had in effect allowed Ms V.N. to take over
her show, thus circumventing the editorial board’s resolution. That
resolution could not be regarded as a form of censorship because it had not
proscribed the discussion of any topics or changes to the substantive content
of the show. It had merely barred Ms V.N. – not the applicant or the other
journalists who had taken part in the journalistic investigations discussed
during the show – to be put on air.
2. The applicant
45. The applicant submitted that her dismissal had been the result of the
airing in her show of the results of journalistic investigations that revealed
unpleasant facts about the then ruling political party. There had been a
direct causal link between her show and the ensuing disciplinary measures
against her. Those measures had infringed her freedom of expression. She
had had the right to select the persons who were to take part in the show,
and had not breached the technical rules or the weekly schedule, because
she had obtained the agreement of the editor in charge, who had approved
the show’s script, topics and participants. Her disciplinary dismissal had had
nothing to do with the breaches set out in the order of the BNR director
general, and the ensuing dispute had been an employment one only
ostensibly, while in reality having a deeply political subtext. That
assessment had been shared by the entire journalistic guild, and had been
reflected in declarations made by the Union of Bulgarian Journalists and
other organisations. Even the Supreme Court of Cassation had, by saying in
its judgment in the applicant’s case that Article 10 of the Convention
allowed limitations on the exercise of freedom of expression, acknowledged
that the applicant’s dismissal had related to the exercise of her freedom of
expression. That dismissal had been a direct result of the exercise of the
12 NENKOVA-LALOVA v. BULGARIA JUDGMENT
1. Admissibility
49. In as much as the Government asserted that the case concerned a
purely employment dispute and the applicant’s dismissal had not amounted
to an interference with her rights under Article 10 of the Convention, the
Court considers that this issue is closely linked to the substance of the
applicant’s complaint under that provision and is more appropriately
addressed at the merits stage. The Court further considers that the complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
50. The Court starts by observing that the applicant’s status as an
employee of the BNR did not deprive her of the protection of Article 10 of
the Convention (see Manole and Others v. Moldova, no. 13936/02, § 103,
17 September 2009). Far from it – having regard to the applicant’s position
as a journalist, any interference with her freedom of expression calls for
close scrutiny on the part of the Court. However, to determine whether the
applicant’s rights under Article 10 have been infringed, the Court must first
ascertain whether her disciplinary dismissal amounted to an interference –
in the form of a “formality, condition, restriction or penalty” – with the
exercise of her freedom of expression, or whether it lay within the sphere of
the right to employment, a right not secured in the Convention or its
Protocols. To answer that question, the Court needs to determine the scope
of the measure by putting it in the context of the facts of the case and of the
relevant legislation (see Glasenapp v. Germany, 28 August 1986, § 50,
Series A no. 104; Kosiek v. Germany, 28 August 1986, § 36, Series A
no. 105; Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999-VII;
Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004; and
Otto v. Germany (dec.), no. 27574/02, 24 November 2005).
51. The Court considers that the reasons given for the applicant’s
dismissal should be at the centre of its attention when carrying out the above
inquiry. However, the measure taken against the applicant has to be seen
also in the light of the subsequent proceedings in which she challenged that
dismissal.
52. The Court observes, firstly, that the applicant’s dismissal was based
on her failure to heed an editorial decision concerning an issue of internal
organisation of the BNR, namely the choice of BNR employees who were
to take part in a radio show and their respective roles. The Court secondly
notes that the focus of the ensuing proceedings was on whether that
dismissal had complied with the substantive and procedural rules governing
14 NENKOVA-LALOVA v. BULGARIA JUDGMENT
not sought to argue that that the relevant provisions of the Labour Code
1986 were not sufficiently accessible or foreseeable.
55. The Court is further satisfied that the measure against the applicant,
in as much as it was intended to ensure that the broadcasts of the BNR were
in line with the editorial decisions taken by the radio’s governing bodies in
the interests of listeners and with the requirements of balanced reporting
expected of a public broadcasting organisation, sought to protect the rights
of others.
56. It remains to be established whether the interference was “necessary
in a democratic society”.
57. More specifically, the Court has to determine whether the sanction
imposed on the applicant – disciplinary dismissal – was proportionate in
relation to the circumstances of the case. In dealing with this point, the
Court will take particular account of the reasons given for the applicant’s
punishment, the context in which that punishment was imposed, and the
applicant’s “duties and responsibilities” as a journalist in a public
broadcasting organisation. The Court will also have regard to the general
principles concerning pluralism in the audiovisual media, which were
recently set out in paragraphs 95-102 of its judgment in the case of
Manole and Others (cited above) and paragraphs 129-34 of its judgment in
the case of Centro Europa 7 S.R.L. and di Stefano v. Italy ([GC],
no. 38433/09, ECHR 2012-...). It will also have regard to the right of public
broadcasters to set their editorial policy, in line with the public interest.
58. Bearing in mind all of the above factors, the Court finds that the
applicant’s dismissal cannot be regarded as a disproportionate measure, for
two reasons.
59. First, the applicant’s dismissal was based on her wilful disregard of
an editorial decision concerning an issue of internal organisation of the
BNR, namely the choice of BNR employees who were to take part in a
radio show (see paragraphs 11-13 and 15 above). Indeed, when taking
disciplinary action against the applicant the BNR management board and
the BNR director general specifically noted that she had in effect allowed
Ms V.N. to host her show in her stead (see paragraphs 14 and 15 above)
Neither the editorial decision nor the order for the applicant’s dismissal
mentioned or imposed any limitations on the topics to be discussed during
her show, or on the substantive content or manner of presentation of the
information broadcast during the show (contrast, mutatis mutandis,
Purcell and Others v. Ireland, no. 15404/89, Commission decision of
16 April 1991, Decisions and Reports 70, p. 262; Brind and Others
v. the United Kingdom, no. 18714/91, Commission decision of 9 May 1994,
unreported; and Fuentes Bobo v. Spain, no. 39293/98, § 45, 29 February
2000). The Court cannot therefore agree with the applicant that her
dismissal was intended to prevent the dissemination of information of
public interest. The situation in the present case thus appears far removed
16 NENKOVA-LALOVA v. BULGARIA JUDGMENT
from that obtaining in Manole and Others (cited above, §§ 104-06 and 112),
where the Court was faced with a situation where a public broadcasting
organisation was systematically required to avoid certain topics considered
harmful to the Government and to devote a disproportionate amount of
airtime to reporting on the acts of members of the ruling political party, with
little or no coverage of the acts and views of opposition parties. By contrast,
in the present case the applicant’s dismissal appears to have been a result of
her failure to abide by the “duties and responsibilities” undertaken as a
journalist employed by a public broadcasting organisation. Her capacity as
such a journalist did not automatically entitle her to pursue, unchecked, a
policy that ran counter to that outlined by her employer, to flout legitimate
editorial decisions taken by the BNR’s management and intended to ensure
balanced broadcasting on topics of public interest, or to have unlimited
access to BNR’s air. There is 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 the outside or that the
BNR’s management was subject to outside interferences.
60. Secondly, employers generally enjoy a broad discretion in
determining the sanction that is best adapted to breaches of employment
discipline (see, mutatis mutandis, Palomo Sánchez and Others v. Spain
[GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 75,
ECHR 2011-...). In the instant case, the BNR management board entrusted
that decision to the BNR director general, instructing him to take into
account the degree of the applicant’s fault (see paragraph 14 in fine above).
The director general came to the view that the appropriate disciplinary
punishment was dismissal (see paragraph 15 above). His decision in that
respect was subjected to scrutiny by the domestic courts. The first-instance
court found that he had failed to consider whether the severity of the
punishment corresponded to the gravity of the applicant’s offence
(see paragraph 25 above). The appellate and the cassation courts were, on
the contrary, satisfied that the gravity of the disciplinary breach committed
by the applicant was sufficient to warrant her dismissal (see paragraphs 27
and 29 above). The Court, for its part, observes that it is true that dismissal
by way of disciplinary sanction is a severe measure (see Fuentes Bobo, cited
above, § 49). However, it cannot be overlooked that it was prompted by
concrete and deliberate actions on the part of the applicant – who in effect
allowed Ms V.N. to host her show in her stead, letting her speak for one
hundred and thirteen minutes out of one hundred and twenty (see
paragraphs 13-15 above) – which showed that her employer could not trust
her to perform her duties in good faith (contrast Vogt v. Germany,
26 September 1995, § 60, Series A no. 323, and Wille v. Liechtenstein [GC],
no. 28396/95, § 69, ECHR 1999-VII). The Court has already had occasion
to observe, although in a different context, that the national authorities may
be justified in insisting that employment relations should be based on
NENKOVA-LALOVA v. BULGARIA JUDGMENT 17
mutual trust (see Palomo Sánchez and Others, cited above, § 76); this is
even more so when it comes to journalists employed by a public
broadcasting organisation. It should be noted in this connection that BNR,
as a public broadcaster, bore responsibility for statements made on air
(see, mutatis mutandis, Radio France and Others v. France, no. 53984/00,
§ 24, ECHR 2004-II).
61. In sum, the Court does not consider that the applicant has established
that her dismissal was intended to stifle her freedom to express herself
rather than enable the public broadcasting organisation by which she was
employed – the BNR – to ensure the requisite discipline in its broadcasts, in
line with its “duties and responsibilities” under Article 10 of the
Convention.
62. There has therefore been no violation of that provision.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
77. The Court observes that although the Sofia District Court ruled
partly in favour of the applicant and awarded her lost wages, plus interest,
its judgment was subsequently overturned, in the context of the same
proceedings and without having acquired legal force, by higher courts at
two levels of jurisdiction. The Court, which has only limited power to deal
with alleged errors of fact or law committed by the national courts, finds no
appearance of arbitrariness in the way in which those higher courts decided
the applicant’s case. The Sofia District Court’s judgment did not therefore
give rise to a possession within the meaning of Article 1 of Protocol No. 1
(see Kopecký v. Slovakia [GC], no. 44912/98, § 59, ECHR 2004-IX).
A judgment which is not final but subject to review by two superior courts
cannot be regarded as giving rise to a debt that is sufficiently established to
20 NENKOVA-LALOVA v. BULGARIA JUDGMENT
A. Damage
80. The applicant claimed 10,000 euros (EUR) in compensation for
non-pecuniary damage. She submitted that following her dismissal she had
for two years been unable to find employment, with many media owners
being reluctant to hire her while the political party that she had criticised
was still in power, and had fallen into social isolation. She had felt unjustly
punished for having carried out her duty as a journalist. The lengthy
proceedings against her dismissal, with all the insecurity entailed by them,
had added to her frustration. The memory of the impugned events and of the
ensuing long period of unemployment was still haunting her.
81. The applicant also claimed 1,477 Bulgarian levs (BGR)
(the equivalent of EUR 755.18) in compensation for pecuniary damage. She
submitted that this was the amount of compensation awarded to her by the
Sofia District Court for loss of wages, plus interest.
82. The Government submitted that the applicant’s claim in respect of
non-pecuniary damage was exorbitant, and that any award made by the
Court under this head should not exceed the awards made in previous
similar cases. They left it to the Court to determine in equity the award in
respect of pecuniary damage.
83. The Court observes that in the present case an award of just
satisfaction can be based only on the breach of the reasonable-time
requirement of Article 6 § 1 of the Convention. As the Court finds no causal
link between that breach and the pecuniary damage allegedly suffered by
the applicant, it makes no award under this head. By contrast, the Court
considers that the applicant must have sustained some non-pecuniary
damage on account of the breach, and that that damage cannot be made
good solely by the finding of a violation. Ruling in equity, as required under
Article 41 of the Convention, the Court awards the applicant EUR 585, plus
any tax that may be chargeable.
NENKOVA-LALOVA v. BULGARIA JUDGMENT 21
C. Default interest
89. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
5. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into the currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR 585 (five hundred and eighty-five euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros) and BGR 320 (three hundred
and twenty Bulgarian levs), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, the former sum to be
paid directly to the applicant’s legal representative,
Ms S. Margaritova-Vuchkova;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
I.Z.
T.L.E.
24 NENKOVA-LALOVA v. BULGARIA JUDGMENT – SEPARATE OPINION
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, the 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. As 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. As the Court stated
in Manole and Others:
“... 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 of 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. Notwithstanding 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. Disputes surrounding journalistic activities
should not be viewed only or mainly in terms of labour legislation which,
26 NENKOVA-LALOVA v. BULGARIA JUDGMENT – SEPARATE OPINION