DISSENTING OPINION OF JUDGE BERNHARDT

Unlike the majority of the Court, I think that the legal basis for the interference by the Swiss authorities with freedom of expression in the present case is not sufficient under the Convention.

Admittedly, the case raises most difficult questions concerning the correct interpretation of Article 10 (art. 10) of the Convention. In the actual context, three points are of primary importance. (1) The second sentence of the Article expressly mentions freedom to receive and impart information "regardless of frontiers".  This freedom of cross-boundary communication is an essential element of present-day democracy and must be taken into account when interpreting the other provisions in Article 10 (art. 10).  (2) The third sentence of the first paragraph of this Article (art. 10-1) expressly permits the licensing of broadcasting enterprises.  Even if modern technical developments permit a far greater number of radio and television enterprises and channels than was the case when the Convention was drafted, States still have the right and the duty to ensure the orderly regulation of communications, and this can only be achieved by a licensing system.  Whether a licensing system can be used for preserving a State monopoly in this field in spite of the modern developments can be left open in the present context, since such a monopoly no longer exists in Switzerland .  It seems also to be undisputed that a licensing system cannot be used for imposing censorship and cannot justify the suppression of legally permitted information and ideas.  I further agree with the majority of the Court that the retransmission of radio programmes by cable can be made conditional on a licence, although under the terms of the third sentence of Article 10 § 1 (art. 10-1) this is by no means beyond doubt.  It can hardly be doubted that the prohibition of such retransmission cannot be left to the unfettered discretion of the executive.  This implies that the second paragraph of Article 10 (art. 10-2) comes into play and must be respected when a State operates a licensing system.  (3) The question, therefore, is whether the interference by the Swiss authorities in the present case satisfies the requirements of Article 10 § 2 (art. 10-2), as developed in the case-law of the Convention organs.  Among these requirements, a first condition is that a restriction must be "prescribed by law".

Here a first problem arises which has been discussed neither by the parties nor in the present judgment, but which needs further consideration.  As far as can be seen, the Swiss legislature has until now never enacted any substantive provisions on broadcasting licences; instead it has given the Government, by means of Federal Act of 1922 governing correspondence by telegraph and telephone as interpreted in practice, complete freedom to regulate this field.  (The Act primarily concerns telegraph and telephone communications, since in 1922 radio did not yet exist).  Is the requirement in Article 10 § 2 (art. 10-2) that restrictions must be "prescribed by law" really satisfied when a parliament confers unlimited or extremely broad powers on the executive, which becomes the law-making as well as the law-executing authority?  I have doubts in this respect, but it is not necessary to discuss this question in extenso since I am convinced that the legal basis for the interference in question is not sufficient even if Article 78 of the Government's Ordinance of 17 August 1983 is taken as the starting-point.  This Article merely refers to "the provisions of the International Telecommunication Convention and the international Radio Regulations", without giving any further details.  I accept that under the Swiss system treaty law is part of domestic law.  I also think that technical provisions contained in international texts do not all have to be published in the official gazette; it suffices that they are accessible, which is the case here.  But what do these international norms mean and prescribe in the present context?  It has never been clarified whether Italy violated its international obligations by permitting or tolerating the radio broadcasts in question.  It has never been clarified whether Groppera Radio violated Italian law, including any international norm which is self-executing in Italy .  It seems to me to be beyond doubt that Switzerland would not be in breach of any international obligation if it were to permit the retransmission by cable of the programme in question.  Under international law it may have the right, but it clearly has no duty, to intervene and to prohibit such retransmission.  Taking the foregoing into account and having regard to the only Swiss decision which explains in some detail the situation under Swiss law - that is the decision of 31 July 1984 of the head office of the Swiss Post and Telecommunications Authority -, I see no adequate and sufficiently clear legal provision which can be regarded as a basis for the interference in question.

In view of this conclusion, it is not necessary for me to inquire whether the other requirements of Article 10 § 2 (art. 10-2) are satisfied (purpose and necessity of the interference).  I would not exclude that the interference in question could in the final event be found to be justified if it had had a solid legal basis.  But this is not the case.

DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

I.      The licensing power of States in respect of radio and television broadcasting cannot be arbitrary or even discretionary.  It can only be justified inasmuch as the exercise of it is necessary in order that over-the-air communications may function in an efficient and orderly manner and, above all, in order that freedom of expression should be secured as fully as possible [1] .

It is only a policing power, under which States may at most take the measures necessary, having regard to the technical characteristics of the type of communication concerned, for satisfying as far as possible the needs and wishes of all interested parties and to enable them as far as possible to broadcast and receive what they wish to broadcast and receive, just as, in the same spirit, States may take measures to regulat e the practical arrangements [2] for this kind of communication. The power can only affect radio and television broadcasting as means of communication and not the communication by these means itself - it cannot include a right to interfere with what is communicated, the content of the communication.

States' licensing power does not, as such, imply a power to deny certain individuals or categories of individual the right to avail themselves of freedom of expression by means of the media in question or to prohibit certain things or certain categories of things from being broadcast, transmitted or, above all, received in that way.

Complete or partial exclusions of this kind are not legitimate if they are not justified other than by the licensing power itself.

They are not legitimate unless they are restrictions which answer a pressing social need, which are proportionate to the legitimate aim pursued and which are justified on grounds that are not merely reasonable but relevant and sufficient [3] ; or else are non-discriminatory distinctions, that is to say distinctions which are objectively and reasonably justified and likewise proportionate t o the legitimate aim pursued [4] .

II.     The right to freedom of expression exists "regardless of frontiers".

In the field of radio and television broadcasting, it follows from this that the broadcasting of programmes that can be received on the territory of other States and the reception of programmes broadcast from the territory of other States can, as such, be made subject to exclusions or restrictions.

This is so, however, only if the exclusions or restrictions were quite as justified and necessary in respect of programmes broadcast or received only within the frontiers of the State taking the measures and if the measures were also applied to such programmes.

III.    In the instant case there is no doubt that by prohibiting the retransmission of the broadcasts in issue, which they considered to be unlawful, the authorities of the respondent State were, in all good faith, pursuing legitimate aims, and more particularly "the prevention of disorder" and the "protect ion of the rights of others" [5] .

But it was not certain that these broadcasts were unlawful.  They were still the subject of proceedings in Italy and, moreover, none of the methods of settlement provided for in Article 50 of the International Telecommunication Convention had been used [6] . "Due regard being had to the importance of freedom of express ion in a democratic society" [7] , such unlawfulness could not, so long as it had not been established with certainty, be relied on to justify the ban on retransmitt ing the programmes [8] or, a fortiori, the need for such a ban in a democratic society.

Since the respondent State did not put forward any other justification, there was, in my opinion, a breach of the applicants' right to freedom of expression.

Ultimately, even if the unlawfulness of the broadcasts in issue had been duly established, it could not have sufficed on its own to justify the ban on retransmitting the programmes.  It would still have been necessary to show why, in March and July 1984 [9] , it was essential to put an end to the reception , via a local cable network [10] , of programmes broadcast from the territory of another State and which had in fact, since November 1979, been able to be received over a wide area of the respondent State's territory, containing nearly a thir d of the State's population [11] , when, in particular, the financial viability of the broadcasts in issue had already been seriously jeopardised by the operation since November 1983 of local radio stations, which had b een made legal in June 1982 [12] .