AS TO THE ADMISSIBILITY OF
Application No. 12734/87
by Stiftelsen CONTRA
against Sweden
The European Commission of Human Rights sitting in private
on 9 December 1988, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
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 5 June 1986
by Stiftelsen CONTRA against Sweden and registered on 13 February 1987
under file No. 12734/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, Stiftelsen Contra, is a foundation with the aim
of disseminating information on political issues. It publishes a
periodical called Contra and three to four books per year. Before the
Commission, the applicant foundation is represented by Mr. Anders
Fjällström, who is the responsible editor of Contra and a member of
the board of the foundation.
On 30 June 1986 the agreement between the Swedish Radio and
the Swedish State came to an end. With reference thereto the applicant
foundation, on 18 November 1985, submitted a request to the Government
that it be given a permit to broadcast radio and television programmes
either by taking over the agreement of the Swedish Radio with the
State or by entering into a separate agreement with the State. In its
application the foundation referred to Article 10 of the Convention.
On 12 December 1985 the Government (the Ministry of Education)
rejected the application.
Under Section 5 of the Radio Act (radiolagen) it is a
condition for the right to make television and radio broadcasts in
Sweden to the public that the Government grant a licence. Such a
licence which was previously granted to the Swedish Radio is now
granted only to its subsidiary companies, the Swedish Television, the
Swedish National Radio, the Swedish Local Radio and the Swedish
Educational Radio.
However, local radio and television broadcasts may also be
carried out on the basis of the provisions of the Local Radio Act
(närradiolagen) and the Act on Local Cable Broadcasting (lagen om
lokala kabelsändningar). Under the Local Radio Act, various private
associations may be granted a broadcasting licence. Moreover,
television and radio broadcasts from abroad, notably by satellite, may
also be received in Sweden.
COMPLAINTS
The applicant foundation complains that there has been a
violation of Article 10 of the Convention since the Government
rejected its application without giving any reasons for it.
THE LAW
Article 10 (Art. 10) of the Convention 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 responsibiities, 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."
In a previous case against Sweden (No. 9297/81, Dec. 1.3.82,
D.R. 28 p. 204) the Commission stated:
"It is true that Article 10 (Art. 10) of the Convention guarantees
to everyone the right to freedom of expression and that this
right includes freedom to hold opinions and to receive and
impart information and ideas without interference by any
public authority. However, it is also provided that Article 10
(Art. 10) does not prevent a State from requiring the licensing of
broadcasting, television or cinema enterprises. This
last-mentioned provision does of course imply that for
practical reasons the first-mentioned rights will be of a more
limited scope in a State which requires licensing of radio and
television. It should however be noted that a State that
establishes a system requiring licensing has special duties to
ensure that the rights under Article 10 (Art. 10) of the Convention
remain protected."
In an earlier decision (No. 4515/70, Dec. 12.7.71,
Yearbook 14 p. 538) the Commission stated as follows:
"It is evident that the freedom to 'impart information and
ideas' included in the right to freedom of expression under
Article 10 (Art. 10) of the Convention, cannot be taken to include
a general and unfettered right for any private citizen or
organisation to have access to broadcasting time on radio or
television in order to forward its opinion. On the other hand,
the Commission considers that the denial of broadcasting time
to one or more specific groups or persons may, in particular
circumstances, raise an issue under Article 10 (Art. 10) alone
or in conjunction with Article 14 (Art. 14) of the Convention.
Such an issue would, in principle, arise, for instance, if one
political party was excluded from broadcasting facilities at
election time while other parties were given broadcasting time."
The fact that, in the present case, the applicant foundation
was refused a permission to broadcast radio and television programmes
does not as such raise an issue under Article 10 (Art. 10) of the Convention
since the third sentence of the first paragraph authorises a State to
refuse permission to such broadcasting (cf. No. 10746/84, Dec. 16.10.86,
to be published in D.R.).
The Commission considers that an issue could arise under
Article 10 (Art. 10) if such a refusal were arbitrary, discriminatory or
otherwise contrary to the requirements of objectivity and impartiality
(cf. No. 12439/86, Dec. 15.10.87, unpublished). The Commission notes
that the present case concerns a request for broadcasting on a
nationwide basis and not any request under the Local Radio Act or the
Act on Local Cable Broadcasting. Given the Swedish legislation with
regard to broadcasting of radio and television programmes on a
nationwide basis, and the practice based thereon, which limits the
right of broadcasting radio and television to the subsidiary companies
of the Swedish Radio, the refusal must have been foreseeable for the
applicant foundation. Consequently, and in the absence of any elements
to the contrary, the Commission considers that the refusal, although
no reasons were given for it, cannot be regarded as having any purpose
or effect that could raise an issue under Article 10 (Art. 10) of the
Convention.
It follows that 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)