Lexploria

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)

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Stiftelsen CONTRA v. SWEDEN

Stiftelsen CONTRA v. SWEDEN