SLP 07 (2014)

266

reception of signals by satellite dishes, the telecommunication satellite should guarantee

the secrecy of telecommunication and their signals should not be transmitted without

a permission of the telecommunication authority of the receiving State, in this case of

the Soviet Union. This last obligation flew from the provisions of the Constitution of the

International Telecommunication Union, which obliges the Member States to take all

possible measures to ensure the secrecy of international correspondence (Article 37),

as well as the Radio Regulations (17.1-17.3 RR) which still require the Administrations

to prohibit and prevent the unauthorized interception of radiocommunications

not intended for the general use of the public. The choice of the practical measures

ensuring the secrecy of telecommunications was left to the administrations of the

Member States, in this case of Switzerland.

The Court stated that Article 10 of the Convention applied not only to the content of

the information but also to the means of transmission or reception since any restriction

imposed on the means necessarily interferes with the right to receive and impart

information (para 47 of the decision). The limitation in the form of requirement to

obtain a license of broadcasting according to paragraph 1 of Article 10 is subject to the

general requirements of Article 10 paragraph 2 of the Convention.

Consequently,

the question whether the interference complained of was “prescribed by law” has to

be answered by the national legislation taken together with the relevant provisions

of the ITU Constitution and the Radio Regulations (para 5). Their status as law

however, remains doubtful, because they might lack the required clarity and precision,

leaving a substantial margin of appreciation on implementing measures to the national

authorities.

However, despite of the fact that the complained interference was in pursuance of the two

aims compatible with the Convention – the prevention of disorder in telecommunication

and the need to prevent the disclosure of confidential information (para 59) – the

prohibition to receive and impart the data from the Soviet telecommunication satellite –

violated the proportionality principle: The later technical developments – the appearance

of telecommunication satellites allowing direct reception of TV programs without the

consent of authorities of broadcasting States, together with the lack of protests of

ITU signatories against such reception (para 62) – made the specific legal regime of

telecommunication satellites obsolete; therefore, the interference was not “necessary” in

a democratic society.

Whereas the majority of judges (16:2) held that there was a breach of Article 10

by Switzerland and ordered to pay the applicant company costs and expenses in the

amount of 25.000 Swiss francs, the dissenting opinion considered the prohibitive

measure to be a reasonable response to the international undertakings entered by the

Switzerland in the ITU. Interesting is the reasoning of the majority of judges by the

At the time of the decision Article 22.

See judgment ECtHR,

Groperra Radio AG and Others v. Switzerland, op. cit.

, para 61.