Lexploria

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)

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NYDAHL v. SWEDEN

NYDAHL v. SWEDEN