GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
20
sentence of paragraph 2 (art. 11-2), except for that of lawfulness
("lawful"/"légitimes"). A comparison of the two Articles (art. 10, art. 11)
thus indicates that the third sentence of Article 10 § 1 (art. 10-1), in so far as
it amounts to an exception to the principle set forth in the first and second
sentences, is of limited scope.
The Court observes that Article 19 of the 1966 International Covenant on
Civil and Political Rights does not include a provision corresponding to the
third sentence of Article 10 § 1 (art. 10-1). The negotiating history of
Article 19 shows that the inclusion of such a provision in that Article had
been proposed with a view to the licensing not of the information imparted
but rather of the technical means of broadcasting in order to prevent chaos
in the use of frequencies. However, its inclusion was opposed on the ground
that it might be utilised to hamper free expression, and it was decided that
such a provision was not necessary because licensing in the sense intended
was deemed to be covered by the reference to "public order" in paragraph 3
of the Article (see Document A/5000 of the sixteenth session of the United
Nations General Assembly, 5 December 1961, paragraph 23).
This supports the conclusion that the purpose of the third sentence of
Article 10 § 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 (art. 10-2), for that would lead to a result
contrary to the object and purpose of Article 10 (art. 10) taken as a whole.
62. The sentence in question accordingly applies in the instant case
inasmuch as it permits the orderly control of broadcasting in Switzerland.
63. The Court notes that the Pizzo Groppera station as such admittedly
came under Italian jurisdiction, but that the retransmission of its
programmes by the Maur co-operative came under Swiss jurisdiction. The
ban on retransmission was fully consistent with the Swiss local radio system
established by the Federal Council in its Ordinance of 7 June 1982 (see
paragraphs 13-14 above).
64. In sum, the interference was in accordance with the third sentence
of paragraph 1 (art. 10-1); it remains to be determined whether it also
satisfied the conditions in paragraph 2 (art. 10-2), that is to say whether it
was "prescribed by law", had a legitimate aim or aims and was "necessary
in a democratic society" in order to achieve them.
2. Paragraph 2 of Article 10 (art. 10-2)
(a) "Prescribed by law"
65. The applicants did not object to the fact that the Ordinance of 17
August 1983 referred to the rules of international law, but they did not
consider these sufficiently accessible or precise for a citizen to be able to