Court rejects appeal over frequencies from Channel 5, TVi and STB

Ukraine’s High Administrative Court has turned down the cassation appeal over broadcasting frequencies lodged by the TV channels Channel 5, TVi and STB. The judgment, upholding the ruling of the Kyiv Administrative Court of Appeal, was handed down by a panel of judges on 26 January, with the full text to be prepared within the next five days. It takes effect immediately and can be reviewed only by the Supreme Court.

As reported, the Kyiv Administrative Court of Appeal found that the decision of the National Television and Radio Broadcasting Council from 27 January 2010 on the winners of a tender for broadcasting frequencies had been unlawful. It declared voice the licence of Channel 5 and additions to the licence of TVi.

TVi General Director Mykola Knyazhytsky and representative of Channel 5 in the court, Tetyana Malashenkova, told Telekritika that they plan to appeal against the High Administrative Court judgment in the Supreme Court, as well as in to the European Court of Human Rights.

Mykola Knyazhytsky:  “We will turn both to the European Court and to the High Administrative Court asking it to pass the case to the Supreme Court. Specifically this judgment is so absurd and unlawful and it is impossible even to enforce. We will fight on and carry out various radical actions in order to change the country"

Tetyana Malashenkova says that according to current legislation, access to the Supreme Court is provided by the High Administrative Court. “That is, if the High Administrative Court agrees that it made a mistake in passing the judgment, they can pass it on for review to the Supreme Court. The question arises, how many such judgments they will hand on for review. However we have used all measures allowed for in domestic legislation to defend our rights, and therefore we will first go to the Supreme Court and then to the European Court.”

On the other hand, representative of the claimants in this case, the TV channels HTH and Enter Film (part of the Inter Media Holding, owned by Head of the Security Service, Valery Khoroshkovsky – translator), Valery Simchuk reminded Telekritika that his clients had fully supported the previous court rulings and therefore also the 26 January judgment.

During the examination of the case, TVi and Channel 5 announced amendments to their cassation appeals. TVi added grounds for revoking the court rulings at the previous levels and for sending the case for re-examination. It cited, for example, some judgments from the European Court of Human Rights and Article 10 of the European Convention on Human Rights. On 26 January Express Inform (Channel 5) changed the demand to send the appeal for re-examination, asking instead for a new ruling in the case, while NBM (the second legal entity of Channel 5) added grounds coinciding with those added by TVi. Both channels asked for a break due to the amendments, however the court did not allow this and issued their judgment on 26 January. The claimants had called the actions involving amendments aimed at dragging out examination of the case.

During the hearing, Mykola Knyazhytsky asserted that according to his information as a journalist, Valery Khoroshkovsky had phoned the court and said that there would be a judgment that day and it would be in his favour. When asked by the judges specifically who Mr Khoroshkovsky had phoned, he refused to answer.

The court had refused to allow direct transmission of the court hearing.

In a statement issued on 24 January, the media organization Article 19 expressed concern over this case.

“The High Administrative Court in Kyiv is set to decide on the revocation of the broadcasting licenses of TVi and Channel 5 - two independent Ukrainian broadcasters operating in the country. The court hearing, set to take place on 25 January 2011, highlights the extent to which independent media and media pluralism is under threat in Ukraine. ARTICLE 19 is concerned by the situation as termination of broadcasting licenses constitute a serious infringement of freedom of expression of the media.”