Case Summary and Outcome

The Third Section of the European Court of Human Rights unanimously held that Azerbaijan violated Article 10 (freedom of expression) of the European Convention on Human Rights when its National Television and Radio Council (NTRC) denied a broadcasting license to Objective Television and Radio Broadcasting Company LLC. The case concerned a 2010 tender for an FM radio frequency license in Baku, where the applicant company (founded by journalists Mehman Aliyev and Emin Huseynov) proposed ‘Objective Radio’ with diverse programming. Despite their experience in media, the NTRC awarded the license to Golden Prince LLC for ‘Free News Radio’, citing preferences that were not disclosed in the tender announcement. The Court found that the NTRC failed to provide a duly reasoned decision as required by domestic law, issued only minimal justification for selecting Golden Prince LLC’s news-focused proposal over the applicants’ more diverse programming plan, refused to share complete meeting minutes until Court proceedings, and concealed serious conflicts of interest—notably that an NTRC member, S.V., participated in awarding the license to a company connected to her family. The Court criticized the NTRC’s composition, as the President directly appointed its members without public consultation, contrary to the Council of Europe’s recommendations on regulatory independence. These transparency, reasoning, and impartiality deficiencies led the Court to conclude that the interference with the applicant’s freedom of expression did not meet the Convention’s “prescribed by law” requirement, as the licensing procedure lacked adequate safeguards against arbitrary interference by public authorities.

Facts

The applicant company, Objective Television and Radio Broadcasting Company LLC, was registered in 2010 in Baku, Azerbaijan. It was founded by the second applicant, Mehman Aliyev, an Azerbaijani journalist born in 1957, and the third applicant, Emin Huseynov, a stateless journalist born in 1979. At the time, Mehman Aliyev also owned and directed the Turan Information Agency and was the founder and editor of various internet media platforms, including contact.az and top.az. Emin Huseynov was the chairman of the Institute for Reporters’ Freedom and Safety (IRFS), an NGO working for press freedom. The fourth applicant, Rasul Jafarov, born in 1984, was an Azerbaijani civil society activist.

On November 23, 2010, the National Television and Radio Council (NTRC) announced a tender for a broadcasting license for the 103.3 FM radio frequency covering Baku and the Absheron peninsula. The announcement specified required documentation but did not indicate preferences for programming content. Three entities submitted bids: the applicant company proposed “Objective Radio,” promising diverse programming with daily news (20%), analytical content (10%), culture news (10%), arts programs (15%), educational content (20%), music and talk shows (15%), and sports news (5%). The company identified five staff members, including Aliyev as chief editor and Huseynov as producer. Jafarov independently submitted a bid for “Alternative Radio” with a similar content mix, while Golden Prince LLC proposed “Free News Radio” (later “Araz FM”), dedicating 90% of airtime to news programming and employing twelve staff members. 

The NTRC convened on January 18, 2011, to hold an open meeting where bidders presented their proposals, followed by a closed deliberation among seven NTRC members. During the open session, Aliyev and Huseynov explained their vision for addressing the lack of objectivity and pluralism in current broadcasting, acknowledging they would need to hire additional staff beyond the five initially listed. Jafarov similarly addressed staffing concerns, while Golden Prince representatives emphasized their “very high-quality” equipment and ability to begin broadcasting within three months. In the closed meeting, five NTRC members explicitly supported Golden Prince LLC, citing concerns about the applicant company’s limited staff, while praising Golden Prince’s technical capabilities, modern equipment, and programming concept. The NTRC unanimously voted to award the license to Golden Prince LLC. 

Following the decision, the applicants sought additional information about the selection process. On January 21, 2011, the applicant company requested a copy of the NTRC’s formal decision. The NTRC responded on January 31, 2011, stating they selected Golden Prince LLC because “a purely news radio station would be a novelty for the television and radio space,” but only included an extract from the meeting minutes with the operative part of the decision. When the applicant company requested the full minutes on February 2, 2011, the NTRC refused, claiming it was not “expedient” to provide them as they were for internal use and cited “the interests of other legal persons.” The NTRC similarly declined the applicant company’s February 4, 2011, request for Golden Prince LLC’s bid documents and authorization credentials, and only disclosed the names of Golden Prince’s representatives. 

The applicants challenged the NTRC’s decision in court on March 2, 2011, arguing that the selection violated Article 32 of the Broadcasting Law and Article 4.7 of the Licensing Rules. They contended that the assessment ignored legal criteria requiring priority for educational and cultural programs and the prevention of programming homogeneity. The applicants emphasized that the NTRC’s preference for news programming was neither announced in advance nor aligned with established criteria. They further noted that the NTRC failed to provide a written, reasoned decision within the legally mandated fifteen-day period. The applicants also highlighted the NTRC’s history of fostering “monopolistic” conditions by favoring state-controlled entities. Despite gaining access to the full minutes during proceedings, the Baku Court of Appeal dismissed their appeal on March 28, 2011, considering the NTRC’s decision lawful as Golden Prince LLC’s proposal included 32% educational and cultural news content, satisfying legal requirements. 

The applicants appealed to the Supreme Court, challenging the lower court’s assessment regarding Golden Prince LLC’s programming. They argued that the purported 32% of “cultural and educational news” still constituted news programming and did not represent the diverse content mix required by law. The applicants highlighted their own extensive media experience and questioned the NTRC’s preference for Golden Prince LLC’s staff, which included non-creative positions like drivers, technicians, and accountants. They further alleged a pattern of the NTRC denying access to independent media in favor of unknown companies like Golden Prince LLC with no prior media experience. The Supreme Court dismissed their appeal on May 25, 2011, upholding the appellate court’s reasoning. 

Subsequent developments revealed profound conflicts of interest within the tender process. The applicants initially noted that “no one knew who founded Golden Prince” during the tender process, but later discovered its owner was A.V., who had connections to businesses reportedly owned by family members of A.H., the head of the Department of Public Policy Issues in the President’s Office. Critically, A.H.’s wife, S.V., served as an NTRC member and voted to award the license to Golden Prince LLC. A 2014 investigation by the Organized Crime and Corruption Reporting Project exposed these connections, revealing that A.H. and S.V.’s son, S.H., served as the general director of Araz FM. The investigation uncovered that Araz FM was owned by Araz Teleradio, which had been incorporated by Golden Prince LLC and an individual named E.K. Furthermore, Golden Prince LLC itself was incorporated in 2008 by an Iranian citizen (S.G.) and A.V., reportedly a relative of S.V. At Araz FM’s studio opening, S.H. was introduced as the general director and cut the ceremonial ribbons. 

When confronted with these findings in a June 27, 2014, BBC interview, A.H. confirmed his family’s ownership of the companies, including Golden Prince LLC. He stated that “those companies had been created through his family’s hard work, that his wife and his son had created them and were involved in their functioning, and that there was nothing that he had to be ashamed of in this respect.” Additional information revealed that N.M., who chaired the NTRC from 2003 to 2020, previously worked at the Department of Public Policy Issues of the President’s Office from 1996 to 2003—the very department that A.H. later headed. In 2022, following legislative amendments, the government abolished the NTRC and replaced it with the Audiovisual Council. 

The applicants, aggrieved by the decision of the NTRC and the subsequent dismissal of their appeals by the Baku Court of Appeal and the Supreme Court of Azerbaijan, filed a complaint before the European Court of Human Rights (ECtHR) arguing that the authorities’ refusal to grant the applicant company a broadcasting licence amounted to a violation of their right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

Decision Overview

The Third Section of the European Court of Human Rights (ECtHR) unanimously delivered the decision. The main question for the Court was whether Azerbaijan violated Article 10 (freedom of expression) of the ECHR when its National Television and Radio Council denied a broadcasting license to Objective Television and Radio Broadcasting Company LLC without providing adequate reasoning and while concealing conflicts of interest.

The applicants argued that the NTRC’s decision failed to comply with Article 32 of the Broadcasting Law and Article 4.7 of the Licensing Rules. They contended that the NTRC did not assess the bids according to legally established criteria, particularly Article 32.0.1’s requirement to prioritize educational and cultural programs and prevent airwave saturation with similar content types. The NTRC’s stated preference for a news-focused station had not been announced before the tender, contradicted the established criteria, and appeared arbitrary. Moreover, the applicants highlighted that contrary to Article 18.5 of the Broadcasting Law, the NTRC failed to provide them with a properly written decision containing reasons for the license refusal within fifteen days of announcing the results—instead sending only an extract from meeting minutes without any substantive explanation. They further alleged a pattern of decisions, issued by the NTRC, fostering “monopolistic” conditions in the broadcasting sector—citing previous instances where licenses for new television stations were questionably awarded to the State-controlled Azerbaijan Television and Radio Broadcasting Closed Joint-Stock Company. 

The Government, for its part, acknowledged that refusing the applicant company’s license interfered with its Article 10(1) rights but argued that the interference was justified under the Broadcasting Law and Licensing Rules, which were clear and precise. The NTRC explained it held an open meeting with all bidders, provided meeting minutes, and explained its decision to award the license to Golden Prince LLC, which domestic courts later reviewed and approved. The Government asserted that licensing requirements for broadcasting fell within the State’s margin of appreciation under Article 10. It maintained that the NTRC operated independently under its regulations, as its members had fixed terms, elected their leadership, and could not be arbitrarily removed, ensuring compliance with international standards. The Government dismissed claims that the NTRC followed government instructions, arguing that the applicants failed to provide evidence supporting this allegation. 

The Court began its analysis by recognizing that the NTRC’s rejection of the applicant company’s bid for a broadcasting license constituted an interference with their freedom to impart information and ideas. To further this point, the ECtHR referenced cases such as Informationsverein Lentia v. Austria, (1993), and Radio ABC v. Austria, and others, (1997). According to the Court, this interference required examination under Article 10 to determine if it was prescribed by law, pursued legitimate aims, and was necessary in a democratic society.  The Court emphasized that while States are permitted to regulate broadcasting through licensing systems, especially technical aspects, such regulations must comply with Article 10 requirements. 

The Court analyzed whether the interference was prescribed by law, focusing on the accessibility, foreseeability, and quality of the relevant laws. It cited Magyar Kétfarkú Kutya Párt v. Hungary, (2020) and other cases to argue that laws must be precise enough to enable individuals to regulate their conduct and must include adequate safeguards against arbitrary interferences by public authorities. Regarding licensing procedures specifically, the Court referenced Glas Nadezhda EOOD, (2008) and Elenkov v. Bulgaria, (2008) to establish that licensing criteria must provide sufficient guarantees against arbitrariness, including the duty to provide proper reasoning on behalf of licensing authorities when denying broadcasting licenses. 

The Court found that while some of the NTRC’s selection criteria appeared clear and specific, others were less so and could be subject to highly subjective assessments. Despite this, the Court was prepared to accept that the relevant domestic law was sufficiently accessible and precise for the purposes of this complaint. However, the ECtHR determined that the NTRC failed to provide the applicants with a duly reasoned decision within the time limit specified by the law, as required by Article 18.5 of the Broadcasting Law and recommended by the Committee of Ministers of the Council of Europe. 

The Court criticized the NTRC’s decision-making process too, noting that its letter to the applicants contained inadequate reasoning, arguing only that the winning bid would be “a novelty for the television and radio space” without addressing other selection criteria. [para. 78] The ECtHR emphasized that this demonstrated that the NTRC exercised “very wide, virtually unlimited discretionary powers,” heavily favoring a single factor without forewarning bidders of this preference. Additionally, as highlighted by the Court, the NTRC refused to provide the applicants with the full minutes of the meeting, which was contrary to the requirements of the Broadcasting Law. 

The ECtHR further determined that even eventually disclosing the meeting minutes did not constitute a duly reasoned decision as they contained only general, brief remarks without specifics about why the winning bid better corresponded to the selection criteria. There were no references, the Court said, to any comprehensive points-based assessments of each criterion, no information about the weight given to different criteria, and no clear standards by which technical capabilities or staffing potential were evaluated. Thus, the ECtHR concluded that these minutes did not demonstrate that a comprehensive and objective evaluation had been conducted. 

The Court also expressed serious concerns about the links between the winning bidder, Golden Prince LLC, and the family of one NTRC member, S.V. Referencing Meltex Ltd. v Armenia, (2008) and Movsesyan v. Armenia, (2018), the ECtHR concluded that the interference with the applicants’ freedom of expression, in this case, did not meet the Convention requirement of lawfulness, as “a licensing procedure whereby the licensing authority issues decisions that are not duly reasoned does not provide adequate protection against arbitrary interferences by a public authority with the fundamental right to freedom of expression.” [para. 82] The Court further criticized how NTRC members were appointed: directly by the President without any public consultative process, contrary to the guidelines in Recommendation Rec(2000)23 by the Committee of Ministers. [para. 83] In light of these findings, the ECtHR determined that Azerbaijan violated Article 10 of the ECHR and awarded pecuniary damages to the applicant company and the second and third applicants, and costs and expenses in favor of all the plaintiffs.