The ECHR judgment of 13 February 2018 in the case of Aidogan and the company Dara Radjo Televizion Yayinzhilyk Anonim Sirketi against Turkey "( аpplication No. 12261/06).
In 2006, the company-applicant and the applicant-director of the company were assisted in the preparation of the аpplication. Subsequently, the аpplication was communicated to Turkey.
The case successfully examined the complaint of the applicants for insufficient judicial control regarding the refusal to issue a broadcasting permit on grounds that were not disclosed for reasons of national security. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants in the present case are the television and radio broadcasting company and its director. In 2000, the company applied for a national security certificate (which was a prerequisite for obtaining a broadcasting permit). After the security investigation was completed, the Cabinet of the Prime Minister, without giving explanations, demanded the replacement of three members of the company's board of directors (including the first applicant). Administrative administration was provided with secret results of the security investigation, but the administrative court dismissed the complaint of the applicants without informing them of these results. Due to the lack of a necessary security certificate, the Supreme Council for Radio and Television (RTÜK) refused to issue a broadcasting permit.
ISSUES OF LAW
Concerning compliance with Article 10 of the Convention. The task of the European Court is to verify the following: (i) whether the administrative authorities were convincing and, based on relevant and sufficient grounds, the need to refuse the issuance of a security certificate necessary for obtaining a license for audiovisual broadcasting; (ii) whether the applicants had received adequate guarantees in the course of domestic proceedings.
At the same time, the decision of the administrative court does not contain any assessment concerning the nature of the contentious issue and is based on documents that were not brought to the attention of the applicants, at least in a generalized form.
In the event that the security concerns of the state lead to the restriction of certain procedural rights, it should be ascertained whether the due process still provides adequate guarantees (see Regner v. Czech Republic, judgment of the Grand Chamber of the European Court of Justice) 19 September 2017, complaint No. 35289/11, in which the Court found no violation of Article 6 § 1 of the Convention as regards the impossibility of acquainting itself in the administrative dispute with the key evidence, hay to the confidential category, considering that it is an infringement on the principles of competition and equality of parties to the case have been sufficiently compensated by other factors).
However, unlike the case of Regner v. The Czech Republic, the reasons for the court judgments in the present case do not indicate that the courts examined: (i) whether the documents and information referred to by the administration were confidential, (ii) whether three the persons in question are reasonably considered to constitute a threat to national security, and (iii) whether the arguments referred to by the administration could not be brought to the attention of the applicants, at least in brief.
Although this can be regarded as the right step, the court's appeal to the administration to obtain confidential documents did not change anything in that the main reason for the disputed refusal remained unknown to the applicants, which definitely did not allow them to effectively develop any line of defense. Thus, unlike the case of Regner v. The Czech Republic, no answer was given to the arguments of the applicants, according to which three members of the board of directors of the company whose resignations the administration required were targeted because of their association with the rights protection association rights.
Assuming that the national security requirements could prevent the transfer of sensitive information to the applicants, it appears that the administrative court did not take any measures capable of compensating for the complete lack of motivation for the controversial decision to refuse broadcasting and the complete absence of the applicants' access to the underlying decisions data. Moreover, the Council of State of Turkey, which is the cassation court for administrative disputes, could not eliminate this shortcoming.
Without comparing the reliability of the arguments received from the administration with the possible arguments of the applicants, the domestic courts failed to fulfill (i) neither their task of balancing the various affected interests, (ii) nor their duty to prevent any abuse by the administration. At least, they did not demonstrate this.
The same shortcomings do not allow the European Court to effectively exercise its European control, since it also does not know the main reason for the restriction of the applicants' right to freedom of expression and freedom of information, nor the possible way for domestic courts to fulfill their role.
In other words, the judicial control of the contested measure was insufficient.
There has been a violation of the requirements of Article 8 of the Convention (unanimously).
In the application of Article 41 of the Convention. The Court awarded both applicants jointly 1,500 euros in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.