CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 décembre 2012

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font-size:8pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FOURTH SECTION           CASE OF NENKOVA ‑ LALOVA v. BULGARIA   (Application no. 35745/05)         JUDGMENT             STRASBOURG   11 December 2012   FINAL   29/04/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nenkova ‑ Lalova v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President ,   David Thór Björgvinsson,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Paul Mahoney,   Krzysztof Wojtyczek, judges , and Lawrence Early, Section Registrar , Having deliberated in private on 20 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35745/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Antoaneta Alexandrova Nenkova ‑ Lalova (“the applicant”), on 21 September 2005. 2.     The applicant was represented by Ms S. Margaritova ‑ Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3.     The applicant, a radio journalist, complained, in particular, about her disciplinary dismissal from work and about the alleged unfairness and the length of the proceedings in which she had challenged that dismissal. 4.     On 17 December 2009 the Court (Fifth Section) decided to give the Government notice of the complaints concerning the alleged interference with the applicant’s right to freedom of expression and the length of the proceedings in which she had challenged her dismissal. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.     Following the re ‑ composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 6.     The applicant was born in 1961 and lives in Sofia. She is a journalist by profession. At the relevant time she was employed by the Bulgarian National Radio (“BNR”). She is now working for the Bulgarian section of Deutsche Welle. 7.     At the material time the applicant was an editor in the BNR’s “Hristo Botev” programme, working as a member of the current affairs team. She hosted a weekly radio show, “Good Day” („ Добър ден” ), which was broadcast each Friday morning between 9 a.m. and 11 a.m. 8.     The BNR is a public broadcaster owned by the State. At the relevant time its operations were regulated by the Radio and Television Act 1996 (see paragraphs 32 ‑ 35 below). B.     The radio show on 9 October 1998 9 .     On Monday 5 October 1998 the editorial board of the “Hristo Botev” programme met to discuss various issues arising in relation to shows intended to be broadcast during the week. One of the programme’s editor ‑ in ‑ chief, Mr A.M., put before the board a proposal for the applicant’s show due for broadcast on 9 October 1998. The proposal was for the show to include a discussion with another journalist employed as an editor by BNR, Ms V.N. According to the minutes of the meeting, the board “reject[ed] the proposed interlocutor [Ms V.N.]. [Mr A.M. was] against and want[ed] a resolution by the [board].” 10 .     On the morning of Friday 9 October 1998 the applicant hosted her regular weekly show. Ms V.N. and several other journalists took part in it. They discussed a number of journalistic investigations carried out by them. They concerned, among other things, allegations of improper sales of municipal land, alleged corruption by government officials, and the alleged financing of the then ruling political party, the Union of Democratic Forces, through the unlawful diversion of money from the customs. Several of the items discussed during the show had been prepared by Ms V.N. C.     The applicant’s disciplinary dismissal 11 .     Later that day, 9 October 1998, two of the “Hristo Botev” programme’s editors ‑ in ‑ chief, Mr I.R. and Ms M.P., gave written explanations about the incident to the BNR director general. In his explanations Mr I.R. said that the programme’s editorial board had resolved at its meeting that Ms V.N. should not take part in the show as a host or as an interlocutor, and that that resolution had been noted in the minutes and signed by the board’s members. In her explanation Ms M.P. said that the board had rejected Ms V.N.’s participation in the show, and that Mr A.M. had noted his disagreement with that and had requested a resolution on that point, which had been taken by means of a vote. 12 .     The same day Mr I.R. and Ms M.P. also asked the applicant to explain, in writing and not later than 4 p.m., why she had disregarded the “resolution of the [editorial board] of 5 October [1998] which did not allow the participation of [Ms V.N.]” in the show. 13 .     In her reply, addressed to Mr I.R., the applicant pointed out that Ms   V.N. had not taken part in the show as an interlocutor, but as one of the authors, together with three other journalists. She went on to specify that Ms   V.N.’s participation had altogether lasted one hundred and thirteen minutes. 14 .     The same day the BNR management board met to consider “technical discipline” during the show on 9 October 1998. It found that by allowing Ms V.N. to in effect host the show the applicant had breached the editorial board’s resolution and the programme’s weekly schedule. It further found that Ms V.N. had taken part in the show in disregard of the board’s resolution, that Mr E.I., the show’s editor, had also breached the board’s resolution and the weekly schedule, and that the editors ‑ in ‑ chief, Mr A.M., Mr I.R. and Ms M.P., had failed to exercise sufficient control over the preparation and the running of the show. The board resolved to impose disciplinary punishments on all them, to be determined in line with their varying degrees of fault. It entrusted the execution of its resolution to the BNR director general. 15 .     On 12 October 1998 the BNR director general, relying on Article   187(3), (7) and (10), Article 188(3), Article 190 § 1 (6) and Article   330 § 2 (5) of the Labour Code 1986 (see paragraph 39 below), dismissed the applicant on disciplinary grounds. The reasons given were that she had allowed Ms V.N. to host the show in her stead, thus breaching the technical rules on the operation of radio programmes, that she had breached the programme coordination rules, that she had disregarded the editorial board’s resolution rejecting the proposal for Ms V.N. to take part in the show, and that she had breached Rule 7 of the “Hristo Botev” programme and point 1 of order no. 4 of 9 June 1998 of the programme’s director (see paragraphs 37 and 38 below). 16 .     The BNR director general also dismissed Ms V.N. and Mr E.I., giving similar reasons. 17.     On 12 October 1998, during the regular Monday meeting of the “Hristo Botev” programme’s editorial board, Mr A.M. (see paragraph 9 above) tendered his resignation, citing, among other things, the lack of clear rules on who could and who could not host radio shows. 18.     Those events sparked a vigorous reaction in the media community and prompted the publication of several articles deploring what the journalists saw as an unjustified interference with their colleagues’ freedom of expression. In a declaration of 14 October 1998 the Union of Bulgarian Journalists protested against the dismissals of the applicant, Ms V.N. and Mr E.I., saying that they were an example of “the appetite of forces alien to the journalist profession to gag it”. D.     The position of the National Radio and Television Committee 19.     The National Radio and Television Committee (“the NRTC”), the chief media regulatory body in Bulgaria (see paragraph 36 below), discussed the above events at a meeting on 26 October 1998. 20.     It observed that the dismissal orders did not cite any provisions of the Radio and Television Act 1996, and that there was therefore no scope for the NRTC to assess whether the radio show had complied with those provisions. On the face of it, there existed a purely employment dispute, which could be examined only by a court. However, the NRTC was competent to verify whether the dismissals were consistent with the 1996   Act and the freedom of expression which it guaranteed. 21.     In the NRTC’s view, the main safeguard against encroachments on freedom of expression in the national electronic media was the existence of internal regulations and their proper implementation. The NRTC noted that at three of its previous meetings it had discussed draft regulations drawn up by the BNR management board, and had noted that they did not envisage any mechanism governing the workings of the BNR collective bodies and the journalists’ rights and obligations. The NRTC’s recommendation for those matters to be addressed had not been heeded. The lack of precise regulations was somewhat offset by the existence of rules governing the workings of individual BNR programmes. However, the rules of the “Hristo Botev” programme did not say on which legal provision they were based and pre ‑ dated the BNR regulations on which they were supposed to be based. Those rules did not define clearly the competencies of the journalists in their various professional capacities as authors, hosts, editors, reporters and so on. Neither the BNR regulations nor the individual programmes’ rules dealt with the powers of collective bodies such as management and editorial boards. The applicant’s and the two other journalists’ dismissals showed that there existed confusion between administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows. Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), mentioned in the dismissal orders, was an example of that, because it said that changes in a show’s content could be made solely by written order of the respective manager. The editorial board’s resolution of 5 October 1998 as to who could and who could not be an interlocutor in the show was also an example of that. 22.     In conclusion, the NRTC said that it did not accept the supplanting of the pre ‑ ordained rules for the operation of the BNR by administrative actions and sanctions. However, that did not mean that the NRTC accepted the attempts of some journalists to place themselves above the established principles of work in the national media. E.     The proceedings against the applicant’s dismissal 23 .     On 1 March 1999 the applicant brought a civil claim against the BNR, seeking annulment of the order for her disciplinary dismissal, reinstatement and lost wages. She argued, among other things, that her dismissal in connection with the show on 9 October 1998 and the statements which Ms V.N. had made during the show had been in breach of Article 39 of the Constitution, section 4 of the Radio and Television Act 1996 (see   paragraphs 31 and 33 below) and Article 10 of the Convention. 24.     The Sofia District Court ( Софийски районен съд ) held hearings in the case on 2 June, 29 September, 3 November and 15 December 1999, and 8 March, 14 April, 2 June and 13 October 2000. It heard a number of witnesses, admitted in evidence various documents, and obtained several expert reports. 25 .     On 13 November 2000 the Sofia District Court set the applicant’s dismissal aside and partly allowed her claim for lost wages, awarding her 578.06 Bulgarian levs, plus interest, but refused her claim for reinstatement. It found that the rules of disciplinary procedure had been breached in that the applicant had not been properly invited to explain her actions before a competent disciplinary authority. It went on to say that the order for the applicant’s dismissal did not point to the specific disciplinary offences committed by her, save for the breach of the editorial board’s resolution of 5   October 1998. However, the minutes of the board’s meeting showed that it was far from clear whether any resolution had been adopted with regard to the participation of Ms V.N. in the show. Lastly, the court found that, despite having the duty to do so under Article 189 of the Labour Code 1986 (see paragraph 39 below), the BNR had failed to consider whether the severity of the punishment corresponded to the gravity of the applicant’s offence. The order for the applicant’s dismissal was therefore unlawful and had to be set aside. She was accordingly entitled to lost wages, plus interest. However, she could not be reinstated because the term of her employment contract had come to an end on 31 December 1999, while the judicial proceedings were pending. 26 .     On 22 November 2000 the applicant appealed against the refusal of her claim for reinstatement and the partial refusal of her claim for lost wages. On 19 December 2000 the BNR also appealed, and on 29 January 2001 it rectified its appeal pursuant to instructions by the court. The Sofia City Court ( Софийски градски съд ) held two hearings. The first took place on 15 June 2001. The second, initially listed for 7 December 2001, was adjourned because on that date the court’s building was sealed off by the police due to a bomb threat, and took place on 8 May 2002. 27 .     On 9 July 2002 the Sofia City Court quashed the lower court’s judgment and refused the applicant’s claims. It found that the applicant had been duly asked for an explanation by a competent disciplinary authority – her line manager – prior to the imposition of her punishment. The court went on to say that the order for the applicant’s dismissal had been issued in line with the applicable requirements, had indicated the offender, the offence, the punishment, and the legal provisions on which it had been based. Moreover, the applicant had in fact committed the disciplinary offence alleged against her. By allowing Ms V.N. to in fact host her show for one hundred and thirteen minutes the applicant had not only breached employment discipline but had also grossly violated basic rules of her work, such as compliance with the resolutions of the editorial board. By trying to present Ms V.N. as a “co ‑ author” instead of an “interlocutor”, she had tried to circumvent the editorial board’s resolution. Under Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), any changes in the content or in the organisation of shows that had already been approved could be made only by written decision of the appropriate manager. Therefore, after the editorial board had approved the show on 9 October 1998, the applicant should have informed it about the intended participation of Ms V.N. as a co ‑ author. By failing to do so, she had grossly breached the rules of the “Hristo Botev” programme and had accordingly correctly been given the harshest disciplinary punishment – dismissal. 28 .     On 17 September 2002 the applicant appealed on points of law. She raised several points, the bulk of which concerned alleged breaches of the rules of disciplinary procedure. She also asserted, based on a number of arguments concerning the lawfulness of the editorial board’s decision of 5   October 1998 and the lawfulness of the order for her dismissal, that she had not committed a disciplinary offence. One of those arguments was framed as follows: “Disregarding ... [my] arguments concerning the lack of duly adopted rules governing the workings of the ‘Hristo Botev’ programme at the time of [my] dismissal, as well as the arguments concerning the unlawfulness of point 7 of those Rules [see paragraph 37 below] on account of its being contrary to section 4(1) and   (2) of the Radio and Television Act [1996], Article 39 of the Constitution of the Republic of Bulgaria [see paragraph 31 below] and Article 10 of the [Convention], the [lower] court came to the erroneous conclusion that [I] had broken point 7 of the Rules and that [my] punishment had therefore been lawful.” 29 .     After hearing the appeal on 21 February 2005, in a judgment of 23   March 2005 (реш. № 346 от 23 март 2005 г. по гр. д. № 3642/2002 г., ВКС, ІІІ г. о.) the Supreme Court of Cassation ( Върховен касационен съд ) upheld the lower court’s judgment. In its view, that court’s ruling that the order for the applicant’s dismissal had been lawful corresponded to the evidence, which showed that the order had been issued by a competent disciplinary authority in line with the applicable rules of procedure and had been duly reasoned. The court further found that the decision to dismiss the applicant had been correct. By knowingly failing to comply with the decision that Ms V.N. should not take part in her show, the applicant had breached employment discipline within the meaning of the Labour Code 1986 (see paragraph 39 below). It was true that the BNR’s internal rules had not envisaged an editorial board, but it could not be overlooked that the meeting on 5 October 1998 had been attended by Mr I.R. and Ms M.P., both of whom had been entrusted by the directors general of the BNR and the “Hristo Botev” programme with managerial functions. Mr I.R. and Ms M.P. had indicated that they did not agree with Ms V.N.’s intended participation in the applicant’s show. Although the applicant had been aware of that, she had allowed Ms V.N. to take part in her show, thus breaching employment discipline within the meaning of Article 190 § 1 (6) of the Labour Code 1986 (see paragraph 39 below). The court went on to say that the applicant should have also been aware of the orders of the directors general of the BNR and of the “Hristo Botev” programme, which had been public and available upon request. Lastly, the court held that the applicant’s dismissal had not been contrary to Article 10 of the Convention, because that Article allowed the licensing of broadcasting enterprises. Therefore, neither its letter nor its spirit proscribed the existence of disagreements between those entrusted with the task of framing a radio’s programme and those in charge of current and operative issues. The same went for Article 39 of the Constitution and section 4 of the Radio and Television Act 1996 (see   paragraphs 31 and 33 below). F.     The annulment of Ms V.N.’s and Mr E.I.’s dismissals 30.     Ms V.N. and Mr E.I., who were disciplinarily dismissed together with the applicant (see paragraph 16 above), also challenged their dismissals in court. It appears that Ms V.N.’s dismissal was eventually set aside in a judgment which became final on 10 July 2008, and that Mr E.I.’s dismissal was also eventually set aside. II.     RELEVANT DOMESTIC LAW A.     The Constitution 31 .     The relevant provisions of the 1991 Constitution read as follows: Article 39 “1.     Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2.     This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” Article 40 § 1 “The press and the other mass media shall be free and not subject to censorship.” Article 41 § 1 “Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals.” B.     The Radio and Television Act 1996 32 .     At the relevant time the operations of the BNR were governed by the Radio and Television Act 1996. In the end of November 1998 it was superseded by the Radio and Television Act 1998, which is still in force. 33 .     Section 4 of the 1996 Act provided that the creation and the broadcasting of radio programmes had to comply with, among others, the principles of freedom of expression and pluralism in the expression of opinion. 34 .     Section 46(1) provided that the BNR was a public organisation engaging in radio activities of national importance. It broadcast one international and two national programmes (section 47(1)). It was a legal person based in Sofia (section 46(2)), and an independent organisation; other bodies and authorities could not interfere with its activities except where provided for by law (section 48). Its governing bodies were the management board, the programme board and the director general (section   50(1)). 35 .     The editorial rights and duties of journalists employed by the BNR were to be governed by rules adopted by the BNR management board, following consultation with the BNR journalists’ trade unions (section   49(2)). Journalists’ rights could not be restricted on the basis of their political affiliations (section 49(1)). 36 .     The NRTC was an independent body responsible for protecting freedom of expression, the independence of radio and television operators and the interests of the audience (sections 8(2) of the 1996 Act). It was entrusted with, among other things, supervising the activities of radio and television broadcasters (section 15(1)), and with electing and dismissing the BNR director general (section 15(5)). C.     The rules and internal orders of the “Hristo Botev” programme 37 .     Rule 7 of the BNR “Hristo Botev” programme, as in force at the relevant time, provided that any changes in the content, the organisation or the technology of a radio show could be effected only by order of the respective manager. 38 .     Point 1 of order no. 4 of 9 June 1998 of the director of “Hristo Botev” provided that the hosts of live radio shows had to appear not less than twenty minutes in advance with a scenario prepared in advance and indicating the time bands and the connection of outside sources (such as mobile radio stations and telephones). They also had to acquaint the sound editor with the show’s scenario and organisation and give the editor timely and specific instructions for any necessary changes. D.     The Labour Code 1986 39 .     The disciplinary punishment of employees is regulated by Articles   186 ‑ 90 of the Labour Code 1986; Articles 192 ‑ 98 govern the applicable procedure. By Article 186, a failure to comply with one’s employment duties amounts to a breach of employment discipline. Article   187 sets out a non ‑ exhaustive list of such breaches, which may consist in a failure to comply with technical or technological rules (point 3), a failure to comply with a lawful order of one’s employer (point 7), or a failure to comply with other duties stemming from statutes, statutory instruments, internal regulations or collective labour agreements, or with duties laid down upon hiring (point 10). Article 188 provides that the disciplinary punishments available are a reprimand, a dismissal warning and dismissal. In choosing which of those punishments to impose, the employer must take into account the gravity of the breach, the circumstances in which it was made, and the employee’s conduct (Article 189 § 1). Article   190   §   1   (6), as in force at the relevant time (currently   Article   190   §   1   (7)), provided that an employee could be disciplinarily dismissed for serious breaches of employment discipline. Article   330   §   2   (5), as in force at the relevant time, provided that in case of disciplinary dismissal an employer was to terminate the employment without notice. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 40.     The applicant complained under Article 10 of the Convention that her disciplinary dismissal, ostensibly on technical grounds, had in reality been a sanction for the way in which she had exposed corrupt practices during her radio show on 9 October 1998. She submitted that that dismissal had been unlawful, had not pursued a legitimate aim and had not been necessary in a democratic society. 41.     Article 10 of the Convention provides: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     The parties’ submissions 1.     The Government 42.     The Government submitted that the case concerned an employment dispute and the applicant’s dismissal for breaching employment discipline, and that there had therefore been no interference with her freedom of expression. They pointed out in that connection that the Court had many times said that it was not its task to act as a court of appeal from the national courts or to re ‑ examine the merits of cases before those courts. It could not therefore re ‑ examine points touching upon the lawfulness of the order for the applicant’s dismissal. 43.     In the alternative, the Government submitted that any interference with the applicant’s right to freedom of expression had been prescribed by law – Article 330 § 2 (5) of the Labour Code 1986 – and based on clear and foreseeable rules. The applicant had been aware of the BNR management’s decision, but had deliberately chosen to disregard it. She must have known that such conduct could have attracted serious sanctions. The interference had therefore been prescribed by law and had sought to protect the reputation and rights of others. 44.     The interference had also been necessary in a democratic society. It was clear that the applicant had committed a disciplinary offence. The sanction had been proportionate to the gravity of that offence. The applicant had had a domestic remedy allowing her to challenge her dismissal in court, and had availed herself of that opportunity. It was also important to point out that the BNR management had not voiced disagreement with the topics intended to be included in the applicant’s show, had not tried to ban the airing of any material – such as those concerning alleged corruption and the customs –, and had not sought to impose any changes to the show’s script with a view to censoring it. The show had not been taken off the air. The editorial board’s resolution of 5 October 1998 had prohibited only the intended participation of Ms V.N. in the show, for reasons which could be deduced from the ensuing explanations of Mr I.R. and Ms M.P. to the BNR director general, as well as from the position taken by the NRTC. The BNR was a national media which had a large number of listeners, traditions and authority, and no real competitors in the sphere of political journalism on radio. Such a media had to abide by certain internal rules enforced by its management, and decisions as to the content of its shows could not be taken single ‑ handedly. Contrary to what she was alleging, the applicant had been acquainted with the editorial board’s resolution that Ms V.N. should not take part in her show, which had apparently been adopted after a vote. All of that showed that the conflict between the applicant and the BNR management was rather the result of differences of principle, and did not concern the journalistic investigations conducted by Ms V.N. and the three other journalists. The applicant had in effect allowed Ms V.N. to take over her show, thus circumventing the editorial board’s resolution. That resolution could not be regarded as a form of censorship because it had not proscribed the discussion of any topics or changes to the substantive content of the show. It had merely barred Ms V.N. – not the applicant or the other journalists who had taken part in the journalistic investigations discussed during the show – to be put on air. 2.     The applicant 45.     The applicant submitted that her dismissal had been the result of the airing in her show of the results of journalistic investigations that revealed unpleasant facts about the then ruling political party. There had been a direct causal link between her show and the ensuing disciplinary measures against her. Those measures had infringed her freedom of expression. She had had the right to select the persons who were to take part in the show, and had not breached the technical rules or the weekly schedule, because she had obtained the agreement of the editor in charge, who had approved the show’s script, topics and participants. Her disciplinary dismissal had had nothing to do with the breaches set out in the order of the BNR director general, and the ensuing dispute had been an employment one only ostensibly, while in reality having a deeply political subtext. That assessment had been shared by the entire journalistic guild, and had been reflected in declarations made by the Union of Bulgarian Journalists and other organisations. Even the Supreme Court of Cassation had, by saying in its judgment in the applicant’s case that Article 10 of the Convention allowed limitations on the exercise of freedom of expression, acknowledged that the applicant’s dismissal had related to the exercise of her freedom of expression. That dismissal had been a direct result of the exercise of the applicant’s profession as a journalist and of the disclosure of unpleasant facts about the then ruling political party. 46.     The applicant went on to argue that her dismissal had not been prescribed by law. The disciplinary proceedings against her had not complied with the Labour Code 1986 – a fact established by the first ‑ instance court – because she had not been properly asked to give explanations for her conduct and because the persons who had taken part in the proceedings had not been duly constituted disciplinary authorities. The alleged breaches of discipline to which the Government alluded in their observations had not been laid down in any statute or internal rule of the BNR; they had been breaches of non ‑ existent rules issued by bodies that by law did not exist. As evident from the minutes of its meeting of 5 October 1998, the editorial board had not formally resolved to bar Ms V.N. from taking part in the applicant’s show. However, even if it had done so, its resolution would have amounted to censorship and would have been invalid. The NRTC had found that the BNR’s internal rules had not clearly set out the powers of its collective bodies, and those rules did not identify clearly the roles of the various persons who were to take part in radio shows. There had therefore been no clear legal basis for holding the applicant liable. 47.     The applicant also challenged the Government’s assertion that the measures taken against her had sought to protect the reputation and rights of others. It was unclear who those others were and what form of protection they needed. Her entire show had been devoted to informing the public about abuses committed by persons close to the then ruling political party. The public was entitled to know about the sale of municipal plots at reduced prices, abuses and the diversion of funds in the customs, and the strange restitutions of prime properties. The Government’s assertion was just evidence of the State’s wish to interfere with the free dissemination of information of current public interest. The applicant had not encroached on any of the interests protected under Article 10 § 2 of the Convention, and there had therefore been no need to take any measures against her. 48.     Lastly, the applicant submitted that the measures taken against her had not been necessary in a democratic society. Contrary to what the Government suggested, there had been no formal resolution of the editorial board – which was anyway not a duly constituted body – as to who should or should not take part in her show, and no vote had been taken on that issue, as was evident from the minutes of the board’s meeting. An expert report obtained by the first ‑ instance court showed that the applicant had remained the show’s host. B.     The Court’s assessment 1.     Admissibility 49.     In as much as the Government asserted that the case concerned a purely employment dispute and the applicant’s dismissal had not amounted to an interference with her rights under Article 10 of the Convention, the Court considers that this issue is closely linked to the substance of the applicant’s complaint under that provision and is more appropriately addressed at the merits stage. The Court further considers that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits 50.     The Court starts by observing that the applicant’s status as an employee of the BNR did not deprive her of the protection of Article 10 of the Convention (see Manole and Others v. Moldova , no. 13936/02, § 103, 17   September 2009). Far from it – having regard to the applicant’s position as a journalist, any interference with her freedom of expression calls for close scrutiny on the part of the Court. However, to determine whether the applicant’s rights under Article 10 have been infringed, the Court must first ascertain whether her disciplinary dismissal amounted to an interference – in the form of a “formality, condition, restriction or penalty” – with the exercise of her freedom of expression, or whether it lay within the sphere of the right to employment, a right not secured in the Convention or its Protocols. To answer that question, the Court needs to determine the scope of the measure by putting it in the context of the facts of the case and of the relevant legislation (see Glasenapp v. Germany , 28 August 1986, § 50, Series A no. 104; Kosiek v. Germany , 28 August 1986, § 36, Series A no.   105; Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999 ‑ VII; Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004; and Otto   v.   Germany (dec.), no. 27574/02, 24 November 2005). 51.     The Court considers that the reasons given for the applicant’s dismissal should be at the centre of its attention when carrying out the above inquiry. However, the measure taken against the applicant has to be seen also in the light of the subsequent proceedings in which she challenged that dismissal. 52.     The Court observes, firstly, that the applicant’s dismissal was based on her failure to heed an editorial decision concerning an issue of internal organisation of the BNR, namely the choice of BNR employees who were to take part in a radio show and their respective roles. The Court secondly notes that the focus of the ensuing proceedings was on whether that dismissal had complied with the substantive and procedural rules governing the disciplinary liability of employees. However, the applicant also formulated an allegation that her dismissal had been in breach of her right to freedom of expression, and the Supreme Court of Cassation dealt, albeit briefly, with that argument (see paragraphs 23, 28 and 29 in fine above). 53.     It is therefore open to question whether the applicant’s dismissal lay within the sphere of the right to employment or amounted to an interference with her right to freedom of expression. Nonetheless, the Court is prepared to proceed on the basis that Article 10 of the Convention is applicable to the facts of the case, and that the applicant’s dismissal did amount to an interference with her rights under that provision. It must therefore be determined whether that interference was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 thereof, and was “necessary in a democratic society”. 54.     The Court finds that the interference was “prescribed by law” – the relevant provisions of the Labour Code 1986 (see paragraph 15 above). In so far as the applicant claimed, based on the findings of the first ‑ instance court which dealt with her legal challenge against her dismissal, that the disciplinary proceedings against her had failed to comply with the procedural requirements laid down in that Code, the Court observes that the judgment of that court was later overturned, in the context of the same proceedings and without having acquired legal force, by higher courts at two levels of jurisdiction, and that those higher courts found that the disciplinary proceedings against the applicant had been in line with the relevant legal provisions (see paragraphs 27 and 29 above). The Court observes in this connection that it is primarily for the national courts to interpret and apply domestic law (see, among many other authorities, Thorgeir Thorgeirson v. Iceland , 25 June 1992, § 58, Series A no. 239, and Casado Coca v. Spain , 24 February 1994, § 43, Series A no. 285 ‑ A). Although the Court can and should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 10 of the Convention, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law except in cases of flagrant non ‑ observance or arbitrariness (see, mutatis mutandis , Weber and Saravia v. Germany (dec.), no. 54934/00, § 90, ECHR   2006 ‑ XI, and Goranova ‑ Karaeneva v. Bulgaria , no. 12739/05, § 46, 8 March 2011). The Court does not consider that the Sofia City Court’s and the Supreme Court of Cassation’s judgments were arbitrary. Contrary to the applicant’s averment, those courts explained, albeit briefly, why they were of the view that she had acted in breach of employment discipline within the meaning of the relevant provisions of the Code (see paragraphs 27 and 29 above), and their rulings on this point cannot be regarded as manifestly erroneous or arbitrary. In view of these considerations, the Court concludes that the interference was lawful in terms of Bulgarian law. The applicant has not sought to argue that that the relevant provisions of the Labour Code 1986 were not sufficiently accessible or foreseeable. 55.     The Court is further satisfied that the measure against the applicant, in as much as it was intended to ensure that the broadcasts of the BNR were in line with the editorial decisions taken by the radio’s governing bodies in the interests of listeners and with the requirements of balanced reporting expected of a public broadcasting organisation, sought to protect the rights of others. 56.     It remains to be established whether the interference was “necessary in a democratic society”. 57.     More specifically, the Court has to determine whether the sanction imposed on the applicant – disciplinary dismissal – was proportionate in relation to the circumstances of the case. In dealing with this point, the Court will take particular account of the reasons given for the applicant’s punishment, the context in which that punishment was imposed, and the applicant’s “duties and responsibilities” as a journalist in a public broadcasting organisation. The Court will also have regard to the general principles concerning pluralism in the audiovisual media, which were recently set out in paragraphs 95 ‑ 102 of its judgment in the case of Manole   and Others (cited above) and paragraphs 129 ‑ 34 of its judgment in the case of Centro Europa 7 S.R.L. and di Stefano v. Italy ([GC], no.   38433/09, ECHR 2012 ‑ ...). It will also have regard to the right of public broadcasters to set their editorial policy, in line with the public interest. 58.     Bearing in mind all of the above factors, the Court finds that the applicant’s dismissal cannot be regarded as a disproportionate measure, for two reasons. 59.     First, the applicant’s dismissal was based on her wilful disregard of an editorial decision concerning an issue of internal organisation of the BNR, namely the choice of BNR employees who were to take part in a radio show (see paragraphs 11 ‑ 13 and 15 above). Indeed, when taking disciplinary action against the applicant the BNR management board and the BNR director general specifically noted that she had in effect allowed Ms V.N. to host her show in her stead (see paragraphs 14 and 15 above) Neither the editorial decision nor the order for the applicant’s dismissal mentioned or imposed any limitations on the topics to be discussed during her show, or on the substantive content or manne