Nr. 08/02071 E Mr. Vegter Zitting: 22 september 2009 (bij vervroeging) Conclusie inzake: [Verdachte] 1. Verdachte is door het Gerechtshof te 's-Gravenhage wegens opzettelijke overtreding van een voors

§ 1(art.

10-1) is applicable in the present case. What has to be determined is the scope of its application.

1. The insertion of the sentence in issue, at an advanced stage of the preparatory work on the Convention, was clearly due to technical or practical considerations such as the limited number of available frequencies and the major capital investment required for building transmitters. It also reflected a political concern on the part of several States, namely that broadcasting should be the preserve of the State. Since then, changed views and technical progress, particularly the appearance of cable transmission, have resulted in the abolition of State monopolies in many European countries and the establishment of private radio stations - often local ones - in addition to the public services. Furthermore, national licensing systems are required not only for the orderly regulation of broadcasting enterprises at the national level but also in large part to give effect to international rules, including in particular number 2020 of the Radio Regulations (see paragraph 35 above).
2. The object and purpose of

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10-1) and the scope of its application must however be considered in the context of the Article as a whole and in particular in relation to the requirements of paragraph 2 (art. 10-2). There is no equivalent of the sentence under consideration in the first paragraph of Articles 8, 9 and 11 (art. 8, art. 9, art. 11), although their structure is in general very similar to that of Article 10 (art. 10). Its wording is not unlike that of the last sentence of Article 11 § 2 (art. 11-2). In this respect, however, the two Articles (art. 10, art. 11) differ in their structure. Article 10 (art. 10) sets out some of the permitted restrictions even in paragraph 1 (art. 10-1). Article 11 (art. 11), on the other hand, provides only in paragraph 2 (art. 11-2) for the possibility of special restrictions on the exercise of the freedom of association by members of the armed forces, the police and the administration of the State, and it could be inferred from this that those restrictions are not covered by the requirements in the first 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

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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

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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).

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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. Na te hebben vastgesteld dat de "interference" bij wet was voorzien overwoog het Hof: "(

1. b)Legitimate aim 69. The Government contended that the impugned interference pursued two aims recognised by the Convention. The first of these was the "prevention of disorder" in telecommunications, the order in question being laid down in the International Telecommunication Convention and the Radio Regulations and being universally binding. Sound Radio had disregarded three basic principles of the international frequency order: (
2. a)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 licence (number 2020 of the Radio Regulations), as Sound Radio had never received a licence from the Italian authorities; (
3. b)the co-ordination principle, which required special agreements to be concluded between States where the frequency used was between 100 and 108 MHz (number 584 of the Radio Regulations), because there was no such agreement between Switzerland and Italy; (
4. c)the principle of economic use of the frequency spectrum (Article 33 of the International Telecommunication Convention and number 2666 of the Radio Regulations), because the Pizzo Groppera had the most powerful VHF transmitter in Europe. The Government submitted, secondly, that the interference complained of was for the "protection of the ... rights of others", as it was designed to ensure pluralism, in particular of information, by allowing a fair allocation of frequencies internationally and nationally. This applied both to foreign radio stations, whose programmes had been lawfully retransmitted by cable long before the appearance of Radio 24, and to Swiss local radio stations, trials of which had been authorised in the Ordinance of 7 June 1982 (see paragraph 13 above). The applicants merely denied that their activities had adversely affected any of the interests listed in paragraph 2 (art. 10-2). The Commission expressed no view on this matter in its report, but before the Court its Delegate acknowledged the legitimacy of the first aim mentioned by the Government. 70. The Court finds that the interference in issue pursued both the aims relied on, which were fully compatible with the Convention, namely the protection of the international telecommunications order and the protection of the rights of others. (
5. c)"Necessary in a democratic society" 71. The applicants submitted that the ban affecting them did not answer a pressing social need; in particular, it went beyond the requirements of the aims being pursued. It was tantamount to censorship or jamming. The Government stated that they had had no other recourse seeing that their representations to the Italian authorities continued to be fruitless, whether made direct or through the International Telecommunication Union. The refusal to grant the co-operative a redistribution licence related only to Sound Radio's programmes and in no way affected the stations which complied with the criteria of Article 78 of the 1983 Ordinance; furthermore, it was dictated by technical necessity, since a cable's capacity was not unlimited. The Delegate of the Commission disagreed. 72. According to the Court's settled case-law, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary, but this margin goes hand in hand with European supervision covering both the legislation and the decisions applying it; when carrying out that supervision, the Court must ascertain whether the measures taken at national level are justifiable in principle and proportionate (see, as the most recent authority, the Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp. 19-20, § 33). 73. In order to verify that the interference was not excessive in the instant case, the requirements of protecting the international telecommunications order as well as the rights of others must be weighed against the interest of the applicants and others in the retransmission of Sound Radio's programmes by cable. The Court reiterates, firstly, that once the 1983 Ordinance had come into force, most Swiss cable companies ceased retransmitting the programmes in question (see paragraph 18 above). Moreover, the Swiss authorities never jammed the broadcasts from the Pizzo Groppera, although they made approaches to Italy and the International Telecommunication Union (see paragraphs 39-42 above). Thirdly, the impugned ban was imposed on a company incorporated under Swiss law - the Maur co-operative - whose subscribers all lived on Swiss territory and continued to receive the programmes of several other stations. Lastly and above all, the procedure chosen could well appear necessary in order to prevent evasion of the law; it was not a form of censorship directed against the content or tendencies of the programmes concerned, but a measure taken against a station which the authorities of the respondent State could reasonably hold to be in reality a Swiss station operating from the other side of the border in order to circumvent the statutory telecommunications system in force in Switzerland. The national authorities accordingly did not in the instant case overstep the margin of appreciation left to them under the Convention. C. Conclusion 74. In conclusion, no breach of Article 10 (art. 10) is made out, as the disputed measure was in accordance with paragraph 1 (art. 10-1) in fine and satisfied the requirements of paragraph 2 (art. 10-2)." 24. Dat de laatste volzin van het eerst lid van artikel 10 EVRM niet volledig onderworpen is aan het regime van het tweede lid van dit artikel, maar ook andere uitzondering toestaat blijkt uit EHRM 24 november 1993, Lentia e.a. tegen Oostenrijk, NJ 1994, 559, m.nt. EJD: "32. As the Court has already held, the purpose of that provision is to make it clear that States are permitted to regulate by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects (see the above-mentioned Groppera Radio AG and Others judgment, Series A no. 173, p. 24, § 61). Technical aspects are undeniably important, but the grant or refusal of a licence may also be made conditional on other considerations, including such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments. This may lead to interferences whose aims will be legitimate under the third sentence of paragraph 1, even though they do not correspond to any of the aims set out in paragraph 2. The compatibility of such interferences with the Convention must nevertheless be assessed in the light of the other requirements of paragraph 2." 25. Zoals al doorklonk in de bij de bespreking van het tweede middel vermelde (toelichting op
6. de)wet- en regelgeving heeft (ook) het Nederlandse vergunningenstelsel tot doel om (doorgaans) schaarse frequentieruimte te verdelen op een maatschappelijk wenselijke wijze. Ik citeer gemakshalve Geus in T&C Telecommunicatiewet, 2001, Inleidende opmerkingen bij Hoofdstuk 3: "Voor telecommunicatie en omroep wordt in en groot aantal gevallen gebruik gemaakt van frequenties. De toepassingsmogelijkheden voor de verschillende frequenties zijn verschillend (...). Wanneer frequenties op hetzelfde tijdstip in hetzelfde gebied worden gebruikt kan storing ontstaan (interferentie). Achtergrond frequentiebeleid; schaarste. Ontwikkelingen in de technologie maken het mogelijk om dezelfde frequenties steeds dichter ten opzichte van elkaar te gebruiken, om hogere frequenties te gaan exploiteren en, in geval van omroeptechnologie, om op een frequentie tegelijkertijd meerdere programma's uit te zenden. Ondanks deze ontwikkelingen hebben economische groei, liberalisering, mondialisering van de telecommunicatiesector, regionalisering van telecommunicatiediensten en de invoering van nieuwe digitale communicatiesystemen naast de analoge systemen, een schaarste aan frequenties veroorzaakt in bepaalde gedeeltes van het radiofrequentiespectrum. Ten gevolge van die schaarste aan frequenties, is de economische en maatschappelijke waarde ervan sterk toegenomen. Dit maakt een actieve rol van de overheid noodzakelijk op het gebied van de ordening van het frequentiespectrum, met name bij de verdeling van schaarse frequenties over categorieën van gebruik (en daarbinnen over verschillende gegadigden) en bij het toezicht op een doelmatig gebruik van toegewezen frequentieruimte. Doelstelling. Het frequentiebeleid heeft tot doel het bevorderen van een zodanig gebruik van het frequentiespectrum dat een adequate bijdrage wordt geleverd aan maatschappelijke, economische en culturele belangen in Nederland. Daarbij dienen de veiligheid van de staat en de internationale verplichtingen die Nederland heeft te worden gewaarborgd. In de Europese regelgeving wordt er eveneens vanuit gegaan dat frequentiebeleid en frequentieverdeling door de overheid worden gereguleerd." 26. Het oordeel van het Hof dat het Nederlandse vergunningstelsel voor omroepen, waarvan artikel 10.16 (oud) Tw deel uitmaakte