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TV8, Pro TV Chisinau, and BTV Judicially Obtain the Annulment of the Sanctions Applied by the BC after the Second Round of the Electoral Campaign

28 December 2020
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TV8 attorney Vitalie Enachi has specified for Media Azi that he initially listed all the targeted TV channels in his application, but the courts insisted on individual applications. “The Broadcasting Council did not have the legal competence to sanction in this case; consequently, the entire decision is illegal in its essence and affects all the channels. Yet, due to its structure, the decision includes the paragraphs where the suppliers are targeted: 1, 2, 3, etc. Both the Court of Appeal and the Supreme Court of Justice have stated that each provider has the right to appeal only against a certain part or not to challenge the decision”, Enachi explains.

According to the attorney, the sanction applied by the BC was illegal because the broadcasting legislation does not provide for fines for breaching the provisions of the Electoral Code.

The Court of Appeal has issued a judgment against the TV channel, considering that the decision of the BC was a legal one. At the same time, the magistrate Anatol Minciuna had a separate opinion on the case, considering that the BC had not applied the law correctly in that case, and TV8’s claims were grounded. “As one can see from the conclusions of the Broadcasting Council, the applicant allegedly admitted the unbalanced media coverage of the electoral candidates, in which one of them had a greater negative connotation than the other. It should be mentioned that the allegations were not sufficiently substantiated to establish the alleged infringements. Moreover, the Council’s stated approach is subjective and affects the applicant’s right, i.e. the right of the press, to the publication of information and freedom of expression, as well as the public’s right to information,” Anatol Minciuna affirms.

Vitalie Enachi demanded annulling the decision of the Court of Appeal at the SCJ, where he won the case. In his request, the attorney specified that the sanction for non-compliance with the article of the Electoral Code for broadcasters was introduced as a suggestion only in the draft law (voted on December 16 in the final reading), which demonstrates that on the date of issuance of the contested decision TV8 was sanctioned  “in the absence of a legal provision.”

On December 8, the Supreme Court annulled the BC’s sanction regarding TV8. The SCJ judges considered that the magistrates of the Court of Appeal had not examined the case correctly and had failed to take into account the provisions of the law on freedom of expression. The SCJ also considered as incorrect the assessment of the Court of Appeal that the decision of the BC was motivated because the minutes of the session were enclosed to the decision. The SCJ magistrates consider that the reasons for the decision should be included in the decision itself.

Pro TV Chisinau also obtained the annulment of the sanction judicially, yet in this case, the Court of Appeal made the decision in favor of the broadcaster from the very start. There was also a separate opinion in the PRO TV Chisinau case. Judge Angela Bostan considered that the BC did the right thing, because “the media are also supposed to respect other people’s rights. This can only be justified to allow voters to form an opinion without unnecessary pressure or influence.”

The BC filed an appeal against the decision of Chisinau Court of Appeal, stating that it was guided by the provisions of the legislation on freedom of expression, "which were irrelevant to the case because, according to the contested decision, the Monitoring Report and the evidence attached to the case, FIE Pro Digital SRL (Pro TV Chisinau – editor’s note.) was sanctioned not for the content of the broadcast information, but for reflecting the electoral campaign in an unbalanced manner.”

The SCJ declared the appeal filed by the BC inadmissible by the decision of December 9.

BTV has also managed to annul the sanction. In their case, the SCJ magistrates mentioned that “the decision of the Broadcasting Council in the contested part does not contain the entire motivation, whereas this requirement must be fulfilled in a sufficiently detailed way, a condition which in the case brought before the court was not complied with.” Thus, it is established that the Broadcasting Council did not exercise its duty in accordance with the purpose stipulated by the legislation, and the infringement is revealed as the fact that the contested administrative act was issued in breach of the established procedure, which was disproportionate to the objective pursued, and it also denotes its basic illegality,” the SCJ magistrates concluded.

In their explanations in court, the BC claimed that it had applied the sanctions correctly and in compliance with the approved methodology. According to the BC Monitoring Department, several TV channels reflected the candidates who competed in the second round in an unbalanced manner.