267 / 300
265
code. Most probably is, however, that the interference with the right would be based on
the domestic telecommunication law closely connected with the ITU framework.
In the (terrestrial communication-) 1990
Groppera
19
case, the Court relied on the
ITU rules as “law”: The non-conditional requirement of the authorities for a license
for broadcasting from abroad according to the national and ITU legislation was
found as both legitimate and proportionate by the Court. According to this judgment
(para 70), the State interference may be “fully compatible” with the Convention
if it protects “the international telecommunication order” and the “protection of
the rights of others”. In the given case, the applicant had disregarded “three basic
principles of the international frequency order” (para 69): the licensing principle,
whereby the establishment or operation of a broadcasting station by a private person or
by an enterprise was subject to the issue of a license (number 20.20 of the former RR);
the co-ordination principle, which required special arrangements to be concluded
between States where the frequency was used (number 5.84 of the former RR)
and the principle of economic use of frequency spectrum (Article 33 of the ITU
Convention and number 26.66 of the former RR).
In contrary to
Groppera
, in the
Autronic
case from the same year,
20
the Court expressed
doubts in evaluating the position of the ITU instruments as “law” allowing to limit
the right to impart information in the sense of Article 10 para 2 of the Convention,
“because it may be asked whether (these instruments) do not lack the required clarity
and precision” (para 57). However, the ITU instruments were created by technicians
for technicians and are well applied by them from the end of the 19-century. If necessary,
they are amended or specified by the World Radiocommunication Conferences as was
e.g. the case of the criterion of “bringing into use” of a satellite system in 2012.
21
. Selected Cases
The first case dealing explicitly with space communication was the above-
mentioned case
Autronic
decided by the Plenary of the Court in May 1990.
22
The
application was lodged by a Swiss company that complained against the rejection of
its application to demonstrate its capability to receive and impart information from
a Soviet telecommunication satellite by an aerial dish installed in a public exhibition.
The rejection was based on the different legal regime of the transmissions from
direct broadcasting and telecommunication satellites according to the provisions of
the ITU: Whereas the direct broadcasting satellites were intended to serve for direct
19
ECtHR,
Groperra Radio AG and Others v. Switzerland, op. cit.
20
ECtHR,
Autronic AG v. Switzerland, op. cit.
21
STUBE, P.: New Definition of ‚Bringing into Use’ in the Radio Regulations. In: Hofmann, M. (ed.),
International Regulations of Space Communications. Bruxelles,
2013, s. 81-101.
22
ECtHR,
Autronic AG v. Switzerland, op. cit.