YPC Weekly Newsletter

2008


PROVISION OF THE RA LAW “ON TELEVISION AND RADIO” IS RECOGNIZED TO BE CONTRADICTING THE CONSTITUTION YET IS IN FORCE TILL THE END OF THE YEAR

On May 13 the RA Constitutional Court heard the issue of compliance of Part 3 of Article 53 of the RA Law “On Television and Radio” with the RA Constitution. An appropriate appeal on this was submitted to the Constitutional Court by Radio “HAY” on December 24, 2007. In the opinion of the applicant, this Article of the broadcast law, stipulating that “the license holder pays an annual fee for the use of frequency, the amount of which is defined proceeding only from the expenses, necessary to service the frequency”, contradicts some provisions of the Constitution, in particular, Article 45. This Article imposes an obligation to pay “taxes, duties, make other mandatory payments through a procedure and in an amount, stipulated by law”.

As it has been reported, on January 25, 2007 Radio “HAY” and five other radio companies (“Vem”, “Impuls”, “City FM”, “Ardzagank”, FM 105.5) addressed the RA Economic Court with a suit to annul the clause 1 of the Decision of the RA Government No. 946-N, dated July 6, 2006. According to this clause, the RA Ministry of Transportation and Communication had received the competence to define and approve the amount of annual fee for servicing the broadcast frequency. The procedure for the payment and the new tariffs for servicing frequencies allocated to radio companies were introduced by the Decree of the Minister of Transportation and Communication on November 1, 2006. Following this Decree, the Republican Center of Telecommunications demanded to make the payment before December 25, 2006. In the opinion of the plaintiffs, the Minister’s Decree contradicted the Constitution and violated the legislation, primarily Article 9 of the RA Law “On Legal Acts”, according to which “the kinds, amounts and the procedures of tax, duty and other mandatory payments made by natural and legal persons” must be defined “by law only”. On May 11, 2007 the court refused the suit, ruling that the Government had not exceeded its competence. Radio companies challenged this decision with the RA Court of Cassation that did not secure the appeal on June 26, 2007 (see details in “On Freedom of Speech in Armenia” report for 2007 on YPC web-site, www.ypc.am, “Studies” section).

The head of Radio “HAY” Aram Mkrtchian explained to YPC that the appeal to the Constitutional Court challenged not the governmental decision, but the norm of the broadcast legislation quoted above, on the basis of which the court rulings were made: contrary to the Constitution, the law does not stipulate the procedure and the amount of the annual fee for using the frequency.

At the session of May 13 the Constitutional Court recognized Part 3 of Article 53 of the RA Law “On Television and Radio” to be contradicting the RA Constitution and invalid. At the same time, a reservation was made that the Article is in force till December 1, 2008. In the ruling of the Constitutional Court it was noted, in particular, that despite the incompliance of the existing legislative regulation to the principles of rule-of-law state, the commitment to pay for the use of the frequency is legitimate in itself. In the opinion of the Constitutional Court, on the one hand, imposing charges for providing air affects the issue of stable fiscal relations, on the other – its immediate abolishment can create unequal conditions for broadcasters.