Last Updated on November 4, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Aydoğan and Dara Radyo Televizyon Yayıncılık Anonim Şirketi v. Turkey – 12261/06
Judgment 13.2.2018 [Section II]
Article 10
Article 10-1
Freedom of expression
Freedom to impart information
Refusal of broadcasting licence on undisclosed national security grounds without adequate review procedure: violation
Facts – The applicants were a broadcasting company and the Chair of its Board of Directors. In 2000 the applicant company applied for national security clearance (a prerequisite for obtaining a broadcasting licence). After a security investigation the Prime Minister’s Office informed the applicant company that its application would be examined subject to the replacement of three members of its board, including its Chair, without giving any further explanations. The Administrative Court obtained from the authorities the secret results of the security investigation, but dismissed the applicants’ appeal without disclosing those results to them. As the company had been unable to obtain clearance, the High Council for Radio and Television Broadcasting (RTÜK) denied it permission to broadcast.
Law – Article 10: The Court’s task consisted here of ascertaining: (i) whether the administrative authorities had established, in a convincing manner and based on relevant and sufficient reasons, the need to refuse the security clearance required for a broadcasting licence; and (ii) whether the applicants had enjoyed adequate safeguards in the national proceedings.
The judgment of the Administrative Court had not contained any assessment going to the merits of the question and was based on documents that had been withheld from the applicants, not even provided to them in summary form.
Where the State’s security concerns led to a reduction in certain procedural rights, it was necessary to ascertain whether the proceedings nevertheless afforded adequate safeguards (see Regner v. the Czech Republic [GC], 35289/11, 19 September 2017, Information Note 210, where the Court found that there had been no violation of Article 6 § 1 even though the applicant had been refused access to decisive evidence, classified as confidential, in the context of an administrative dispute, taking the view that the restrictions on the rights afforded to him in accordance with the principles of adversarial proceedings and equality of arms had been offset by other factors).
Unlike the situation in Regner, the reasons given for the judgments in the present case did not show that the courts had examined: (i) whether the documents and information relied on by the administration were actually confidential; (ii) whether the three individuals in question could reasonably be regarded as presenting risks for national security; and (iii) whether the grounds relied on by the administration could not be disclosed to the applicants, at least in summary form.
While it could be seen as a positive step, the court’s action in obtaining the production of the confidential documents by the administration had not altered the fact that the main reason for the refusal remained totally unknown to the applicants, thus completely preventing them from presenting any meaningful defence. Therefore in contrast, once again, to the Regner case, they had received no response to their argument that the three board members whose withdrawal was requested by the administration had been targeted because they belonged to a human rights association.
Even supposing that the national security imperatives had precluded the disclosure to the applicants of certain sensitive information, the Administrative Court did not seem to have taken any measure capable of compensating for the total lack of reasoning in the impugned rejection or for the applicants’ complete lack of access to the underlying data. Moreover, the Supreme Administrative Court had not cured that deficiency.
As they had been unable to confront the veracity of the observations thus produced by the administration with any observations by the applicants, the domestic courts had not been in a position to fulfil: (i) either their task of balancing the various interests at stake; or (ii) their obligation to prevent any unfairness on the part of the administration. In any event, they had not provided any indications to the contrary.
The same deficiencies had also prevented the Court from exercising its European supervision effectively, because it had no other way of knowing the main reason for the restriction on the applicants’ freedom of expression and access to information, or of assessing how the domestic courts had performed their task.
In sum, the judicial review of the impugned measure had not been sufficient.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 jointly in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
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