AS TO THE ADMISSIBILITY OF
Application No. 17505/90
by Claes NYDAHL
against Sweden
The European Commission of Human Rights sitting in private on
11 January 1993, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 November 1990
by Claes NYDAHL against Sweden and registered on 29 November 1990 under
file No. 17505/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 29 April and 17 September 1992, and the observations
submitted by the applicant on 21 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1946. By profession
he is an editor and the secretary to a private local radio association
(Östra Sörmlands Närradioförening) consisting of a number of different
organisations. He resides at Vagnhärad. Before the Commission he is
represented by Mr. Percy Bratt, a lawyer practising in Stockholm.
A. The particular facts of the case
I
In November 1989 the applicant applied for a licence to broadcast
community radio (närradio) in his personal capacity in the area of
Vagnhärad. On 15 November 1989 the Community Broadcasting Commission
(närradionämnden), hereinafter the CBC, refused the application on the
grounds that according to Section 4 of the Community Radio Act
(närradiolagen) a licence to broadcast community radio could only be
granted to associations which fulfilled certain conditions set out in
the Act and that, in the preparatory works to the Community Radio Act
(Government Bill No. 1984/85:145, p. 20), it was expressly stated that
individual persons could not be granted such a licence.
The applicant appealed against this decision to the
Administrative Court of Appeal (kammarrätten) of Stockholm arguing that
his basic right to freedom of expression as guaranteed by Chapter 2,
Section 1, of the Instrument of Government (regeringsformen) had been
violated and that Section 4 of the Community Radio Act could not,
therefore, be applied against him. By judgment of 19 March 1990 the
Administrative Court of Appeal found that the impugned provision of the
Community Radio Act could not be considered to be in conflict with the
Instrument of Government and it agreed with the assessment made by the
CBC. The appeal was accordingly rejected.
On 7 June 1990 the Supreme Administrative Court (regerings-
rätten) refused leave to appeal.
II
In 1986 a number of organisations obtained licences to broadcast
community radio under the Community Radio Act. These organisations
formed the association "Östra Sörmlands Närradioförening" and this
association, under the name of "Radio Nova", obtained a broadcasting
licence on 5 November 1986. The applicant was appointed secretary to
Radio Nova and as programme supervisor he was responsible for Radio
Nova's broadcasts in accordance with the Community Radio Act.
On 31 May 1991 the applicant, in his capacity as station chief
and the person responsible for the activities of Östra Sörmlands
Närradioförening, was charged with having broadcast information over
the association's transmitter (Radio Nova) although all broadcasting
licences obtained by the different member organisations of the
association as well as the licence of the association itself had been
withdrawn for non-compliance with the provisions of the Community Radio
Act.
By judgment of 23 September 1991 the District Court (tingsrätten)
of Nyköping, before which the applicant relied on his right to freedom
of expression under Article 10 of the Convention, found the applicant
guilty of the charge brought against him and sentenced him to pay fines
totalling 2000 SEK. The applicant appealed against the judgment to the
Svea Court of Appeal (Svea Hovrätt) which upheld the judgment on
1 April 1992. Leave to appeal to the Supreme Court (Högsta domstolen)
was refused on 15 July 1992.
B. Relevant domestic law and practice
Constitutional legislation
Prior to 1 January 1992, i.e. during the period relevant to the
present case, freedom of expression in radio and television was
provided for primarily by the Instrument of Government and by ordinary
legislation with particular regard to radio and television.
Chapter 2, Section 2, of the Instrument of Government, as it was
in force at the material time, read in its relevant parts as follows:
(translation)
"All citizens shall be guaranteed the following in their
relations with the public administration:
1. freedom of expression: the freedom to communicate
information and to express ideas, opinions and emotions,
whether orally, in writing, in pictorial representations,
or in any other way;
2. freedom of information: the freedom to obtain and
receive information and otherwise acquaint oneself with the
utterances of others;
..."
As of 1 January 1992, a new constitutional law entered into
force, the Freedom of Expression Act (yttrandefrihetsgrundlagen). An
amendment to Chapter 2, Section 2, of the Instrument of Government was
made at the same time in that the following was added:
(translation)
"In the case of the freedom of the press and the
corresponding freedom of expression with regard to radio,
television and certain similar transmissions, films,
videogrammes and other recordings of moving pictures and
sound recordings, the provisions of the Freedom of the
Press Act [tryckfrihetsförordningen] and the Freedom of
Expression Act shall apply."
The rights and freedoms safeguarded in the Instrument of
Government may only be restricted if certain criteria are fulfilled.
These are found in Chapter 2, Section 12, which in its relevan
provides:
(translation)
"The rights and freedoms referred to in Section 1,
subsection 1 - 5, in Sections 6 and 8, and in Section 11,
subsection 2, may be restricted by law to the extent
provided for in Sections 13 - 16. After authorisation in
law, they may be restricted by statutory order in the cases
referred to in Chapter 8, Section 7, subsection 1, no. 7,
and in Chapter 8, Section 10. Freedom of assembly and the
freedom to demonstrate may similarly be restricted also in
the cases referred to in Section 14, subsection 1, second
sentence.
The restrictions referred to in the preceding paragraph may
be imposed only to achieve a purpose acceptable in a
democratic society. The restriction may never exceed what
is necessary having regard to the purpose which occasioned
it, nor may it be carried so far as to constitute a threat
to the free formation of opinion as one of the foundations
of democracy. No restriction may be imposed solely on
grounds of political, religious, cultural or other such
opinions."
As regards freedom of expression Chapter 2, Section 13, of the
Instrument of Government furthermore provides:
(translation)
"Freedom of expression and freedom of information may be
restricted having regard to the security of the Realm, the
national supply, public safety and order, the integrity of
the individual, the sanctity of private life, or the
prevention and prosecution of crime. Freedom of expression
may also be restricted in economic activities. Freedom of
expression and freedom of information may otherwise be
restricted only where particulary important reasons so
warrant.
In judging what restrictions may be made by virtue of the
preceding paragraph particular regard shall be paid to the
importance of the widest possible freedom of expression and
freedom of information in political, religious,
professional, scientific and cultural matters.
The issuing of rules and regulations which govern in detail
a particular manner of disseminating or receiving
information without regard to its content shall not be
deemed to restrict freedom of expression or freedom of
information."
According to Chapter 1, Section 1, of the Freedom of Expression
Act which, as mentioned above, entered into force on 1 January 1992,
all citizens are guaranteed the freedom publicly to express ideas,
opinions and emotions and otherwise to impart information, on any
subject, in radio, television and certain similar transmissions, films,
videogrammes and other recordings of moving pictures and sound
recordings. The purpose of freedom of expression according to the Act
is to secure a free exchange of opinions, free and pluralistic
information and free artistic creation. No restrictions on these
freedoms other than those the Act allows for may be made.
As regards licensing of commercial radio the Freedom of
Expression Act provides in Chapter 3, Section 2, that there may be
provisions in law on licences and conditions for broadcasting.
Furthermore, it states that what should be aimed at is that radio
frequencies are utilised in a manner that will lead to the widest
possible freedom of expression. In its last paragraph, there is a
provision to the effect that there shall be possibilities for
associations to receive permits to broadcast radio programmes locally
to the extent permissible by available radio frequencies. According to
Chapter 3, Section 3, of the Act, restrictions on broadcasting allowed
for by Section 2 are to be subjected to the limitations prescribed in
the Instrument of Government, Chapter 2, Section 12, subsection 2, and
Section 13.
The Community Radio Act
The Community Radio Act of 10 June 1982 reads as follows:
(translation)
"Section 1. This Act contains provisions concerning the
right of certain associations to transmit community radio.
By community radio is meant limited-range broadcast
transmissions of sound radio programmes.
In this Act, the terms broadcasting, radio transmitters and
radio programmes shall be understood in the same way as in
the Radio Act (1966:755).
Section 2. A Community Broadcasting Commission shall be
appointed to review issues relating to community radio, and
to exercise supervision over community radio activities.
The Chairman and Vice Chairman of the Commission shall be
learned in law and experienced in judgment.
More detailed provisions concerning the Commission are to
be published by the Government.
Section 3. Community radio may not be transmitted without
the permission of the Community Broadcasting Commission.
Section 4. Permission to transmit community radio can be
extended to associations that are legal persons, although
not to other such persons than:
1. Local voluntary associations that conduct activities
within the transmission area. Unless particular reasons
suggest otherwise, permission may be extended only on
condition that the activities in question have been
conducted for at least one year prior to the date of
application,
2. Local voluntary associations that have been formed in
order to transmit programmes on community radio, that
constitute part of an activity conducted within the
transmission area by a national organisation. Permission
may be granted on condition that the national organisation
has conducted activities within the transmission area for
at least one year prior to the date of application. If
special grounds exist, permission may be granted also if
the activity in question has not been conducted for at
least one year,
3. Congregations within the Swedish (Lutheran) Church,
4. Compulsory associations of students at universities and
colleges of higher education,
5. Associations of several licence-holders for joint
purposes relating to community radio (community radio
associations).
Section 5. Permission to transmit community radio is
extended only after the association in question has stated
who has been appointed programme supervisor in accordance
with the Act (1982:460) concerning Liability for Community
Radio.
Section 6. Community radio may only be transmitted via
such radio transmitters as the Swedish Telecommunications
Administration makes available.
Section 7. For each transmitter, the Community Broad-
casting Commission shall decide what associations shall be
permitted to transmit, and during which times transmissions
may take place.
Section 8. Transmission time shall be distributed as far
as possible in accordance with the wishes of the
associations. If their wishes are incompatible, priority
shall be given to the association judged to have the
greatest interest in being permitted to transmit at a
certain time.
All decisions on broadcasting times shall be valid until
further notice, up to a maximum of one year.
Section 9. Sections 6 and 7 of the Radio Act(1966:755) do
not apply to community radio.
Section 10. Commercial advertising shall not be trans-
mitted by community radio.
A programme or item of a programme transmitted in community
radio shall not be paid for by money or other goods made
available to the association on condition that the
programme or element of that programme is transmitted.
Section 11. The association's programme supply may not
contain material that has not been produced entirely for
its own activities, other than to a limited extent.
The programme supply of a community radio association may
contain only:
1. information on programmes and transmission times, and
other information relating to community radio activities in
the area,
2. transmissions from events of common interest to licence-
holders in the area,
3. information, to a limited extent, on local municipal
activities, and
4. trial transmissions of programmes produced by
associations without a licence to transmit, for a maximum
of three months in each case.
Section 12. The Government, or such authority as the
Government may nominate, shall publish regulations
concerning charges in matters affecting community radio.
Section 13. Permission to transmit community radio may be
revoked if the association
1. no longer fulfils the requirements laid down in
Section 4,
2. is in breach of a decision concerning transmission
times, and allows another party to use transmission time
that has been assigned to the association in its place,
3. transmits a programme despite the fact that there exists
neither a duly appointed programme supervisor, nor a
substitute for a programme supervisor, in accordance with
the Act (1982:460) concerning Liability for Community
Radio, or despite the fact that no notice has been given of
who has been appointed programme supervisor,
4. has transmitted a programme that has been found, in a
judgment that has acquired legal force, to contain a breach
of the rules regarding freedom of speech, and which
constitutes a serious abuse of the freedom of speech in
community radio,
5. is in breach of the provisions laid down in Sections 10
or 11,
6. fails to utilise its right to transmit for three
consecutive months, or
7. fails to pay a charge relating to community radio within
the prescribed time, if the association had been ordered to
pay such charge on pain of loss of licence.
Before a judgment as referred to in subsection 1 no. 4 has
acquired legal force, the Community Broadcasting Commission
may temporarily rescind permission to transmit.
When a licence is revoked, the Commission may determine a
period of at least one year within which the association
cannot be granted a new licence.
Section 14. At the request of the community broadcasting
authority, an association shall make available to it a
recording as referred to in Section 8 of the Act (1982:460)
concerning Liability for Community Radio.
If the association fails to comply with such a request, the
authority may impose a fine.
Section 15. The decisions of the Community Broadcasting
Commission regarding permission under Sections 4 and 13, or
the distribution of transmission time under Sections 7
and 8, may be appealed against to the Administrative Court
of Appeal; the said appeal to be lodged in the form of a
grievance. Other decisions made under this Act are not
subject to appeal.
Unless otherwise so prescribed, decisions made in
accordance with this Act shall enter into force
immediately."
It follows from the Act that community radio may not be
transmitted without permission of the CBC, cf. Section 3, and that a
licence may only be granted to associations which are legal entities,
cf. Section 4.
Other legislation
A Bill regarding the establishment of a system of so-called
private local radio (privat lokalradio), which may be commercially
financed, has been submitted to Parliament. The new legislation will,
if adopted by Parliament, enter into force in 1993. Under the new
system, the community radio could also be commercially financed.
COMPLAINTS
The applicant complains of a violation of Article 10 of the
Convention on the ground that he was not granted a community
broadcasting licence. He submits that the scope and purpose of
Section 4 of the Community Radio Act goes beyond what ought to be
considered a justified interference with the freedom of expression
under Article 10 of the Convention as interpreted by the European Court
of Human Rights. He maintains that freedom of speech is, by its very
nature, an individual right and that a regulation which means that an
individual cannot exercise this right constitutes a violation of
Article 10.
In his observations of 21 August 1992 the applicant also
complains of a violation of Article 14 read in conjunction with
Article 10 of the Convention, referring to the principle of equal
treatment.
Finally, he invokes in his observations of 21 August 1992
Article 13 of the Convention complaining that the Swedish courts in the
criminal proceedings brought against him convicted him only with
reference to domestic law and without examining his case also under
Article 10 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 November 1990 and registered
on 29 November 1990.
On 10 February 1992 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
The Government submitted their observations on admissibility and
merits on 29 April 1992. The applicant's observations in reply were
submitted on 21 August 1992. Further observations were submitted by the
Government on 17 September 1992.
THE LAW
1. The applicant complains of a violation of Article 10 (Art. 10)
of the Convention which reads:
"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."
The first question the Commission must examine is whether there
has been an interference with the applicant's rights under Article 10
para. 1 (Art. 10-1) of the Convention.
The present case concerns the refusal by the Swedish authorities
to grant a broadcasting licence to the applicant. It relates
principally to the freedom enshrined in Article 10 para. 1 (Art. 10-1)
"to ... impart information and ideas without interference by public
authority".
However, according to the third sentence of Article 10 para. 1
(Art. 10-1) of the Convention, Article 10 (Art. 10) does "not prevent
States from requiring the licensing of broadcasting ... enterprises".
The third sentence refers to "broadcasting" rather than the reception
of broadcasts. By envisaging a licensing system, the third sentence
appears to limit the protection afforded by the rights in the first and
second sentences of Article 10 para. 1 (Art. 10-1).
In its earlier case-law on Article 10 para. 1 (Art. 10-1), third
sentence, the Commission found that there existed in many Convention
States a system of monopoly enterprises for radio and television, and
that Article 10 para. 1 (Art. 10-1), third sentence, could not be
understood as excluding a broadcasting monopoly as such (see
No. 3071/67, Dec. 7.2.68, Collection 26 p. 71; No. 6452/74, Dec.
12.3.76, D.R. 5 p. 43). Subsequently, the Commission found that if
Article 10 para. 1 (Art. 10-1), third sentence, permitted a State to
enact legislation requiring the licensing of broadcasting enterprises,
the State could also enact legislation ensuring compliance with the
licence in question (see No. 10799/84, Dec. 17.5.84, D.R. 37 p. 236).
On the other hand, the Commission found that, while broadcasting
enterprises have no guarantee of any right to a licence under the
Convention, the rejection by a State of a licence application must not
be manifestly arbitrary or discriminatory (see No. 10746/84, Dec.
16.10.86, D.R. 49 p. 126).
The European Court of Human Rights was confronted with the
interpretation of Article 10 para. 1 (Art. 10-1), third sentence, in
the Groppera case, where it held:
"... the third sentence of Article 10 para. 1
(Art. 10-1), insofar as it amounts to an exception to the principle set
forth in the first and second sentences, is of limited scope ... (T)he
purpose of the third sentence of Article 10 para. 1 (Art. 10-1) of the
Convention is to make it clear that States are permitted to control by
a licensing system the way in which broadcasting is organised in their
territories, particularly in its technical aspects. It does not,
however, provide that licensing measures shall not otherwise be subject
to the requirements of paragraph 2, for that would lead to a result
contrary to the object and purpose of Article 10 (Art. 10) taken as a
whole" (see Eur. Court H.R., Groppera Radio AG and Others judgment of
28 March 1990, Series A no. 173, p. 24, para. 61; see also Autronic AG
judgment of 22 May 1990, Series A no. 178, p. 24, para. 52).
Thus, the third sentence of Article 10 para. 1 (Art. 10-1) is
made subject to the requirements under Article 10 para. 2 (Art. 10-2)
for the justification of any interference with the right to freedom of
expression. Therefore, the Commission does not consider that the
licensing requirement limits in principle the rights guaranteed by the
first and second sentences of Article 10 para. 1 (Art. 10-1). The
freedom to impart information also through duly licensed broadcasting
is, for these reasons, in principle guaranteed by Article 10 (Art. 10)
of the Convention.
In the present case the applicant cannot as a private individual
obtain under Swedish law a licence to broadcast community radio. It
follows that there has been an interference with the applicant's rights
under Article 10 para. 1 (Art. 10-1) of the Convention. Nevertheless
Article 10, para. 1 (Art. 10-1), third sentence, remains relevant in
that States are permitted to control by a licensing system the way in
which broadcasting is organised in their territories, particularly in
its technical aspects, for instance in the determination and allocation
of frequencies, without interfering with the rights under Article 10
para. 1 (Art. 10-1) of the Convention (see the Groppera judgment, loc.
cit., p. 24, para. 61).
In the present case, it was not on technical grounds that the
applicant was refused a broadcasting licence. It follows that the third
sentence of Article 10 para. 1 (Art. 10-1), in the interpretation given
to it by the European Court of Human Rights, does not cover the
interference with the applicant's rights under Article 10 para. 1
(Art. 10-1) to freedom of expression, in particular the freedom to
impart information. The Commission must therefore examine whether the
interference satisfied the conditions of Article 10 para. 2
(Art. 10-2) of the Convention.
It is not in dispute between the parties that the interference
was prescribed by law. It follows from the Community Radio Act that the
applicant cannot be granted a licence to broadcast community radio. The
Commission is furthermore satisfied that this legislation is
sufficiently clear and precise to consider the interference to be
"prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
The next question to be examined under Article 10 para. 2
(Art. 10-2) of the Convention is whether the interference had an aim
which is legitimate.
In the Government's submissions, which the applicant contests,
the legislation concerned aims at preserving the purpose of community
radio, i.e. to enable local associations to broadcast, within their
communities, messages concerning their activities. Furthermore, the
Government refer to the problems arising if, in the technical sense,
a completely free use of radio frequencies would be allowed.
Accordingly, the Government rely on the prevention of disorder and the
protection of the rights of others as legitimate aims.
The Commission finds that generally speaking broadcasting must
be organised in such a manner as to prevent disorder. This is confirmed
by the reference to licensing in the third sentence of Article 10,
para. 1 (Art. 10-2) of the Convention which concerns the technical
aspects of broadcasting. This regulation in the technical sense must
be understood as leaving the Contracting States with a possibility of
creating a licensing structure which would avoid harmful consequences
and secure an orderly functioning of broadcasting in areas where it
would be technically impossible to allow an unlimited access to the
available radio frequencies. Having regard to this, the Commission is
satisfied that, within these technical limitations, the licensing
system as adopted by Sweden served the purpose of protecting the rights
of others which is one of the legitimate aims envisaged by Article 10
para. 2 (Art. 10-2) of the Convention.
What remains is accordingly to examine whether the interference
was "necessary in a democratic society" within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention.
The Government submit in summary that, when examining the
necessity test, the overall purpose of Swedish community radio should
be borne in mind and that it ought to be justified, also for technical
reasons, to limit licensing in the manner employed by the Community
Radio Act. Furthermore, the Government submit that the applicant could
resort to other means if he wanted to voice his opinion publicly. They
also stress that the refusal to grant the applicant an individual
community radio broadcasting licence did not amount to any form of
censorship and, having regard to the fact that the applicant's freedom
of expression was not seriously hampered, they consider that no
excessive burden was placed on him. Therefore the Government conclude,
having regard to the States' margin of appreciation, that the
interference was "necessary" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
The applicant submits in summary that the prohibition in question
amounted to his total exclusion from a community radio broadcasting
licence, something which he considers to be disproportionate to any
legitimate aim. Furthermore, he submits that, having regard to the
state of technology today, there is no compelling reason for treating
electronic media in substance differently from print media. With
reference to the European Convention on Transfrontier Television the
applicant also considers that a blanket prohibition on radio
broadcasting by private individuals is inconsistent with the tenor of
this Convention which emphasises the principles of the free flow of
information and ideas. Finally, the applicant maintains that the
Government have failed to demonstrate any pressing social need or other
compelling reasons why the aim of fairly distributing scarce frequency
resources could not be pursued by a system of licensing which permitted
private individuals to apply for a licence. Thus the applicant
considers that a necessity for the interference has not been
convincingly established.
The Commission recalls that the term "necessary in a democratic
society" within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention implies that the interference must correspond to a "pressing
social need" and be proportionate to the legitimate aim pursued. In
determining whether an interference is "necessary in a democratic
society" the Convention organs must also take into account that a
margin of appreciation is left to the Contracting States (see Eur.
Court H.R., Autronic AG judgment, ibid., p. 26, et seq., para. 61;
Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November
1989, Series A no. 165, p. 19 et seq., para. 33).
In the Commission's opinion, this margin of appreciation is of
particular relevance in an area as complex and fluctuating as that of
radio or television broadcasting. Article 10 (Art. 10) of the
Convention itself confirms the need for a broad margin of appreciation
in that it envisages in the third sentence of para. 1 a licensing
system for broadcasting enterprises.
The Commission is aware of the different solutions adopted in the
member States of the Council of Europe with regard to broadcasting in
general. These solutions include systems whereby private broadcasting
licences are granted within a system of public broadcasting, for
instance by limiting them to special times or features. The possibility
to obtain a licence may also vary as to local, regional or nationwide
broadcasting. The present case concerns a system of private
broadcasting at a local level and it is clear, therefore, that the
system adopted by Sweden in general makes allowance for private
initiative which would enable private licence holders to enjoy their
freedom to impart information within the meaning of Article 10
(Art. 10) of the Convention.
It is true that in the present case the applicant could not, in
his capacity as a private individual, obtain a licence to broadcast
community radio. This did not mean, however, that he was completely
barred from taking advantage of the Swedish community radio system. The
present case exemplifies this. The applicant was station chief of an
association consisting of a number of organisations which were all
granted community radio broadcasting licences under the applicable
legislation, and it is undisputed that the applicant was the
responsible manager of the association's broadcasting. Thus, the
Commission does not find that the Swedish Community Radio Act placed
an excessive burden on the applicant to the extent that he wanted to
impart information through this medium. In these circumstances it is
not necessary to examine in further detail the overall purpose of
establishing and maintaining a community radio system as the one at
issue in this case. It suffices to recall that in Sweden it is possible
to obtain licences for community radio broadcasting and that the
applicant, within this system, had the possibility of taking advantage
thereof. Furthermore, the Commission does not find that Sweden
transgressed the margin of appreciation left to it under the Convention
when obliging private individuals to comply with the Community Radio
Act in order to allow them to impart information by way of community
radio broadcasts.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. In his observations of 21 August 1992 the applicant also
complains of a violation of Article 14 read in conjunction with
Article 10 (Art. 14+10) of the Convention.
The Commission considers that his complaint of discrimination
under Article 14 (Art. 14) of the Convention can be distinguished from
the complaint dealt with above. However, leaving aside the question
whether the applicant raised this complaint, either in form or in
substance, in the domestic proceedings, the Commission is not required
to decide whether or not the facts alleged by the applicant disclose
any appearance of a violation of this provision, as Article 26
(Art. 26) of the Convention provides that the Commission "may only deal
with the matter ... within a period of six months from the date on
which the final decision was taken".
In the present case the decision of the Supreme Administrative
Court, which was the final decision regarding the subject of this
particular complaint, was given on 7 June 1990, whereas the complaint
was submitted to the Commission on 21 August 1992, that is, more than
six months after the date of this decision. Furthermore, an examination
of the case does not disclose the existence of any special
circumstances which might have interrupted or suspended the running of
that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
3. Finally the applicant invokes, in his observations of
21 August 1992, Article 13 (Art. 13) of the Convention complaining that
the Swedish courts, in the criminal proceedings brought against him,
convicted him on the basis of domestic law only and without examining
his case from the point of view of Article 10 (Art. 10) of the
Convention. He did not therefore, have an effective remedy at his
disposal.
The Commission notes that the facts relating to this complaint
did not constitute part of the applicant's application concerning the
refusal of a broadcasting licence, but that the Government in their
observations of 29 April 1992 referred to the circumstances surrounding
the applicant's conviction and sentence. Furthermore, the Commission
recalls that the final decision in respect of the criminal proceedings
was the Supreme Court's refusal to grant leave to appeal of
15 July 1992 for which reason the Commission cannot reject this part
of the case with reference to Article 26 (Art. 26) of the Convention
as suggested by the Government.
However, the Commission recalls that neither Article 13 (Art. 13)
nor the Convention in general prescribes any particular manner in which
the Contracting States should ensure within their internal law the
effective implementation of the provisions of the Convention (cf. Eur.
Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976,
Series A no. 20, p. 18, para. 50). Furthermore the Court has stated the
following:
"By substituting the words `shall secure' for the words
`undertake to secure' in the text of Article 1 (Art. 1),
the drafters of the Convention also intended to make it
clear that the rights and freedoms set out in Section I
would be directly secured to anyone within the jurisdiction
of the Contracting States. That intention finds a
particularly faithful reflection in those instances where
the Convention
has been incorporated into domestic law" (Eur. Court. H.R.,
Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 91, para. 239).
It follows that Sweden is not obliged to transform the text of
the Convention into Swedish law.
Furthermore, there is no indication which would allow the
Commission to conclude that the national courts, in the criminal
proceedings instituted against the applicant, did not consider the
applicant's case also from the point of view of freedom of expression.
In these circumstances the Commission finds no appearance of a
violation of Article 13 (Art. 13) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy