21
GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
adapt his behaviour to them - even after consulting a lawyer, if necessary.
The applicants added that international telecommunications law was binding
only on the States parties to the instruments in question; as Groppera Radio
AG’s transmitter came under Italian jurisdiction, any problem with applying
that law therefore had to be resolved at inter-State level, if need be by
resorting to the machinery provided for in Article 50 of the International
Telecommunication Convention. In short, they claimed that the interference
complained of was not "prescribed by law".
66. The Commission reached a similar conclusion. It noted that neither
Article 78 § 1 (a) of the 1983 Ordinance nor the decision taken by the
Zürich area telecommunications office of the PTT on 21 March 1984 (see
paragraphs 17 and 19 above) mentioned any particular rule of international
telecommunications law. The Commission also referred to the Swiss
Federal Court’s and the Italian Constitutional Court’s judgments of 14 June
1985 and 6 May 1987 (see paragraphs 25 and 32 above) in order to advance
the view that the question whether Groppera Radio AG was validly in
possession of a "licence" within the meaning of number 2020 of the Radio
Regulations (see paragraph 35 above) had not been resolved. To hold that in
the instant case the persons concerned could know what the legal basis of
the measure affecting Sound Radio was would amount to giving the
authorities a quasi-discretionary power to ban any programme alleged to be
contrary to public international law.
67. The Government submitted that, on the contrary, the national and
international rules in issue satisfied the criteria of precision and accessibility
identified in the Convention institutions’ case-law.
On the first point the Government argued that the decision taken on 31
July 1984 by the national head office of the PTT referred to Article 78 § 1
(a) of the 1983 Ordinance and to several specific provisions of international
telecommunications law (Article 35 of the International Telecommunication
Convention and numbers 584 and 2666 of the Radio Regulations). They
also emphasised the monistic concept followed in the Swiss legal system;
this allowed individuals to rely on rules of international law in order to
assert rights and obligations vested in or incumbent on the authorities or
other individuals. Lastly, they stated that the applicants were by no means
unaware of the international rules applicable in Switzerland. This was
evidenced by two documents: the letter of 29 January 1980 from the PTT’s
national head office to all licensed community-antenna companies in the
area in which Radio 24 (Sound Radio’s predecessor) could be received and
the Federal Court’s judgment of 12 July 1982 in the case of Radio 24
Radiowerbung Zürich AG gegen Generaldirektion PTT (Judgments of the
Swiss Federal Court, vol. 108, Part 1b, p. 264). These documents had
clearly defined a legal position which the 1983 Ordinance expressed in
legislative form.