Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27388/95

by Nicola GRAUSO

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 March 1995 by

Nicola GRAUSO against Poland and registered on 23 May 1995 under file

No. 27388/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Italian citizen born in 1949, is a businessman

and resides in Cagliari, in Italy. Before the Commission he is

represented by Mr R. Smoktunowicz, a lawyer practising in Warsaw.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

Particular circumstances of the case

In 1991 the applicant set up a Polish-Italian joint-venture

television broadcasting company in Poland.

In the meantime, as a new law on television broadcasting was due

to be passed by the Polish Parliament, the applicant's company

commenced broadcasting its programme without any licence.

On 29 December 1992 the Polish Parliament passed the new Law on

Radio and Television Broadcasting (see Relevant domestic law).

On 2 June 1993 the National Council of Radio and Television

Broadcasting (Krajowa Rada Radiofonii i Telewizji), in accordance with

the above-mentioned new Law of 29 December 1992, issued an ordinance

which established, inter alia, the requirements for applications for

obtaining a broadcasting licence and rules of procedure in respect of

the granting and withdrawal of broadcasting licences.

On 28 June 1993 the President of the National Council of Radio

and Television Broadcasting announced in the press that the process

of granting licences for national, regional and local radio and

television broadcasting had commenced. This process was based on the

provisions of the Law on Radio and Television Broadcasting of 29

December 1992 and the Code of Administrative Procedure. The Council

indicated that in the first stage of the procedure priority would be

given to applications for licences to broadcast national television

programmes by means of high-power transmitters. The Council also

stated that it was making efforts to obtain a larger number of

frequencies and channels, and that the possibility of supplementing the

list of available frequencies was not excluded. The announcement in

question contained a list of currently available frequencies and

television channels for low-power and high-power transmitting stations

as well as the locations of the respective stations.

On an unspecified date, the applicant's Polish-Italian joint-

venture broadcasting company applied for the licence for local

television broadcasting by means of low-power transmitters.

On 22 October 1993 the National Council of Radio and Television

Broadcasting announced in the press a list of applicants seeking the

licence for broadcasting by means of low-power transmitters.

On 24 November 1993 a deed of association was concluded between

eighteen broadcasting companies. Among them were companies in which

the applicant was the principal shareholder. They established a new

joint-stock broadcasting company, i.e. Polish Private Television S.A.

On 30 November 1993 Polish Private Television S.A. applied for

a licence for national television broadcasting by means of high-power

transmitters.

On 15, 16 and 17 January 1994 the National Council of Radio and

Television Broadcasting examined applications for national television

broadcasting licences. The applicants presented their applications in

public. They were also entitled to make oral submissions and

supplement their applications.

On 11 February 1994 the National Council of Radio and Television

Broadcasting issued a resolution which was published in the press. The

resolution indicated that, following the examination of all

applications, it was intended to grant the national television

broadcasting licence to Polish Satellite Television "Polsat" since this

company offered the best technical and programme conditions required

for a national television broadcasting. The Council indicated that,

due to the limited number of high-power television channels, certain

low-power-operated channels were to be temporarily granted for the use

of this company.

On 1 March 1994 the President of the National Council of Radio

and Television Broadcasting granted the licence for national television

broadcasting to Polish Satellite Television "Polsat". The decision was

based on, in particular, sections 33 and 35 of the Law of 29 December

1992 on Radio and Television Broadcasting. According to para. XXV of

the decision, Polish Private Television S.A. was, along with the eight

other applicants, refused the licence. In his grounds for refusal, the

President referred in particular to the fact that a considerable number

of companies in the group Polish Private Television S.A. had previously

broadcast their programmes without any licence.

On 7 March 1994 the Polish Private Television S.A. and other

companies lodged a complaint against the above decision with the

Supreme Administrative Court (Naczelny S*d Administracyjny). The

complaint contested the lawfulness of the decision in question and

alleged errors of law. It also contained submissions contesting the

fact that certain low-power television channels had been granted to

Polish Satellite Television "Polsat", which, in the complainants' view,

made it impossible to obtain a further licence for local broadcasting

by means of low-power transmitters.

On 5 August 1994 the Supreme Administrative Court, on the

complainants' request, decided to stay the enforcement of the decision

of 1 March 1994 until the date of the final judgment.

On 22 September 1994 the Supreme Administrative Court annulled

para. XIII of the contested decision (concerning the granting of the

licence with respect to certain high-power television channels which

were not yet available) and upheld the remainder of the decision. The

court held that a decision to grant a broadcasting licence had a

discretionary character although the organ issuing such a decision had

to comply with the criteria set out in the Law of 29 December 1992 on

Radio and Television Broadcasting. The court did not find a violation

of the provisions of the relevant Law. Also, the court stressed that

the whole licensing process was fundamentally affected by the limited

number and category of frequencies and channels, which the Minister of

Communication was gradually transferring into the hands of the National

Council of Radio and Television Broadcasting. Finally, the court found

that as the process of transferring channels and frequencies was

pending, the complainants had not lost the possibility of applying for

a broadcasting licence in the future.

On an unspecified date the police seized certain movables

(apparently, the transmitters and other broadcasting devices) belonging

to the applicant's companies.

Relevant domestic law and practice

The Law of 29 December 1992 on Radio and Television Broadcasting

was the first legal instrument to set up the rules of granting

broadcasting licences for private companies. Until this date, the

existing public radio and television had an absolute monopoly in the

broadcasting sector.

Section 33 of the Law provides:

"1. Radio and television broadcasting, except by public radio

and television, shall be subject to obtaining a licence.

2. The President of the National Council of Radio and

Television Broadcasting shall be competent to grant a

broadcasting licence.

3. The President shall grant the licence on the basis of a

resolution of the Council. His decision shall be final."

Section 35, insofar as relevant, provides:

"1. A licence may be granted in favour of an individual who is

a Polish citizen and who permanently resides in Poland. It may

also be granted in favour of a legal person having its registered

office in Poland.

2. A licence may be granted in favour of a company of which one

or more of the members is a foreign national, provided that:

(1) Not more than 33% of the whole capital of the company is put

up by a foreign national or by foreign nationals."

At the time of the enactment of the Law of 29 December 1992 the

National Council of Radio and Television Broadcasting had at its

disposal a limited number and category of frequencies which could

potentially be used for broadcasting. The frequencies and channels

were gradually transferred by the Minister of Communications for the

purposes of broadcasting by private companies. This process is still

continuing.

COMPLAINTS

1. The applicant complains under Article 10 of the Convention that

the refusal to grant a broadcasting licence to his companies violated

his right to impart information and ideas and his right to conduct

broadcasting.

2. Under Article 11 of the Convention the applicant complains that

the Polish authorities violated his right of free association with

others as the refusal to grant the broadcasting licence prevented his

companies from grouping their broadcasting stations in a network.

3. He further complains under Article 14 of the Convention that, in

the course of the licence-granting process, he was discriminated

against on the ground of his Italian nationality, as Polish law

provides that a foreign person cannot hold more than 33% of the shares

in a radio or television broadcasting company.

4. The applicant also complains under Article 6 of the Convention

that the Supreme Administrative Court failed to examine many of his

arguments raised in his complaint against the unfavourable decision on

the broadcasting licence.

5. Finally, the applicant complains under Article 1 of Protocol

No. 1 to the Convention that certain possessions belonging to his

companies were seized by the Polish authorities following the refusal

to grant a broadcasting licence.

THE LAW

1. The applicant complains that the refusal to grant a broadcasting

licence to his companies violated his right to freedom to impart

information and ideas and his right to conduct broadcasting.

Article 10 (Art. 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 interest of

national security, territorial integrity or public safety, for

the prevention of disorder and crime, for the protection of

health and 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 Commission recalls that the right to freedom of expression

guaranteed in Article 10 (Art. 10) includes among other things the

freedom to impart information and ideas through broadcasting (see,

inter alia, No. 10746/84, Dec. 16.10.86, D.R. 49, p. 139). It also

notes that the applicant does not complain about the existence in

Poland of a licensing system per se, whereby, according to the

Convention organs' case-law, the States are permitted to regulate the

way in which broadcasting is organised in their territories,

particularly in its technical aspects (see Eur. Court HR,

Informationsverein Lentia and Others v. Austria judgment of 24 November

1993, Series A no. 276, p. 14, para. 32).

However, even though States are permitted to apply licensing

measures under Article 10 para. 1 (Art. 10-1), third sentence, the

refusal to grant a broadcasting licence may, as in the present case,

amount to an interference with the freedom of expression. Such

interference is in breach of Article 10 (Art. 10), unless it is

justified under paragraph 2 of Article 10 (Art. 10-2), i.e. it is

"prescribed by law", has an aim or aims which is or are legitimate and

is "necessary in a democratic society".

The Commission observes that the decision as to which of a number

of competing companies would be granted a broadcasting licence was

based on sections 33 and 35 of the Law of 29 December 1992 on Radio and

Television Broadcasting. The measure applied was therefore "prescribed

by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention.

Furthermore, given the continuing limitation on the number of

frequencies and channels available, the measure served "the prevention

of disorder", which is a legitimate aim under Article 10 para. 2

(Art. 10-2) of the Convention.

It remains to be examined whether the interference at issue was

"necessary in a democratic society" within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention. The Commission recalls that

this term implies that the interference must correspond to a "pressing

social need" and be proportionate to the legitimate aim pursued. Also,

in determining whether an interference is "necessary in a democratic

society" the Convention organs must take into account that a margin of

appreciation is left to the Contracting States (see Eur. Court HR,

Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990,

Series A no. 173, p. 28, para. 72 and Markt Intern Verlag GmbH and

Klaus Beermann v. Germany judgment of 20 November 1989, Series A

no. 165, pp. 19 et seq., para. 33).

In the present case, the Commission notes that, on the one hand,

the authorities were faced with the limited number of frequencies and

channels available at the material time and were obliged to choose

between different broadcasting enterprises. On the other hand, when

deciding to attribute the broadcasting licence to another company, they

considered that this company offered the best technical and programme

conditions required for a national private television broadcasting.

As a result, the applicant did not obtain the licence in question, at

least for a certain period of time.

The Commission finds that the authorities in their decisions

carefully balanced the competing interests at stake. If, in

consequence, they did not grant the applicant a broadcasting licence

for the time being, it cannot be said that their assessment went beyond

the margin of appreciation left to national authorities in such matters

(see Informationsverein Lentia and Others v. Austria judgment loc.

cit.).

It follows that the interference in question was justified under

Article 10 para. 2 (Art. 10-2) of the Convention as it could be

considered as "necessary in a democratic society ... for the prevention

of disorder" within the meaning of this provision.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains under Article 11 (Art. 11) of the

Convention that the Polish authorities violated his right to freedom

of association with others because the refusal to grant the

broadcasting licence prevented his broadcasting stations from grouping

in a network. Under Article 14 (Art. 14) of the Convention he

complains that in the course of the licensing process he was

discriminated against on the ground of his nationality. However, the

Commission observes that these complaints do not raise any separate

issue under the Convention.

It follows that this part of application is also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant also complains under Article 6 (Art. 6) of the

Convention that the Supreme Administrative Court failed to examine many

of his arguments raised in his complaint against the unfavourable

decision on the broadcasting licence.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. ... "

The Commission recalls that, according to the principles

established in the Convention organs' case-law, Article 6 para. 1

(Art. 6-1) of the Convention applies only to disputes over a "right"

which can be said, at least on arguable grounds, to be recognised under

domestic law. The dispute must be genuine and serious; it may relate

not only to the actual existence of a right but also to its scope and

the manner of its exercise; and finally, the result of the proceedings

must be directly decisive for the right in question (see Eur. Court HR,

Zander v. Sweden judgment of 25 November 1993, Series A no. 279, p. 38,

para. 22).

In the present case the applicant could not, even on arguable

grounds, claim under Polish law to have a right to obtain a

broadcasting licence. As a result, the proceedings in question did not

involve a determination of the applicant's "civil rights and

obligations" falling within the scope of Article 6 (Art. 6) of the

Convention. This provision is not, therefore, applicable in the

present case.

It follows that this part of application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

4. Insofar as the applicant complains under Article 1 of Protocol

No. 1 (P1-1) to the Convention that certain possessions belonging to

his companies were seized by the Polish authorities following the

refusal to grant the broadcasting licence, the Commission observes that

the applicant failed to sufficiently substantiate this complaint.

It follows that the remainder 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.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GRAUSO v. POLAND

GRAUSO v. POLAND

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