GROPPERA RADIO AG AND OTHERS v. SWITZERLAND

• Judgment Date: 28 March 1990
• ECLI: ECLI:CE:ECHR:1990:0328JUD001089084
• Respondent State: Suiza
• Application Number: 10890/84
• Date: 28 March 1990
• Court: Plenary (European Court of Human Rights)
• Counsel: N/A
• Applied Rules: 25;25-1;10;10-1;10-2;13;34
• Official Gazette Publication: [object Object]

COURT (PLENARY)

CASE OF GROPPERA RADIO AG AND OTHERS v. SWITZERLAND

(Application no. 10890/84)

JUDGMENT

STRASBOURG

28 March 1990

In the case of Groppera Radio AG and Others[*],

The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr J. Pinheiro Farinha,

Mr L.-E. Pettiti,

Mr B. Walsh,

Sir Vincent Evans,

Mr R. Macdonald,

Mr C. Russo,

Mr R. Bernhardt,

Mr A. Spielmann,

Mr J. De Meyer,

Mr N. Valticos,

Mr S. K. Martens,

Mrs E. Palm,

Mr I. Foighel,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 23 and 24 November 1989 and 21 and 22 February 1990,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the Swiss Confederation ("the Government") on 16 November 1988 and 31 January 1989 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 10890/84) against Switzerland lodged with the Commission under Article 25 (art. 25) by a limited company incorporated under Swiss law, Groppera Radio AG, and three Swiss citizens, Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi, on 9 February 1984.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) of the Convention and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 10 and 13 (art. 10, art. 13).

2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio Mrs D. Bindschedler-Robert, the elected judge of Swiss nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 24 November 1988, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr L.-E. Pettiti, Mr J. De Meyer and Mrs E. Palm (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the lawyer for the applicants on the need for a written procedure (Rule 37 § 1). In accordance with the President’s Order and instructions, the Registrar received the applicants’ memorial on 8 May 1989 and the Government’s memorial on 30 May. On 21 July the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

5. Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 15 June that the oral proceedings should open on 21 November 1989 (Rule 38).

6. On 20 June the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50).

7. On 26 September the Commission’s secretariat filed documents at the registry concerning the proceedings before the Commission.

8. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr O. Jacot-Guillarmod, Assistant Director,

Federal Office of Justice, Head of the International Affairs Division, Agent,

Mr B. Münger, Federal Office of Justice,

Deputy Head of the International Affairs Division,

Mr P. Koller, Federal Department of Foreign Affairs,

Deputy Head of the Cultural Affairs Section,

Mr A. Schmid, Head Office of the PTT,

Head of the General Legal Affairs Division,

Mr H. Kieffer, Head Office of the PTT,

Head of the Frequency Management and Broadcasting

Rights Section,

Mr P. Nobs, Head Office of the PTT,

Telecommunications Rights and Criminal Law Section,

Mr M. Regnotto, Federal Department of Transport,

Communications and Energy - Radio and Television

Department, Counsel;

- for the Commission

Mr J. A. Frowein, Delegate;

- for the applicants

Mr L. Minelli, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Jacot-Guillarmod for the Government, by Mr Frowein for the Commission and by Mr Minelli for the applicants, as well as their replies to questions put by the Court and by three of its members individually.

9. The Agent of the Government and the representative of the applicants produced several documents at the hearing.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. Groppera Radio AG, a limited company incorporated under Swiss law, has its registered office at Zug (Canton of Zug) and produces radio programmes.

Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi are all Swiss nationals. Mr Marquard is a publisher and lives at Zug; he runs Groppera Radio AG and is its statutory representative and sole shareholder. Mr Fröhlich, who is a journalist and an employee of Groppera Radio AG, lives at Thalwil (Canton of Zürich). Mr Caluzzi is likewise employed by the company as a journalist and lives at Cernobbio in Italy but also has a home in Lucerne.

A. The background to the case

1. The Pizzo Groppera radio station

11. In 1979 an Italian private limited company, Belton s.r.l., built a radio station on the Pizzo Groppera - a 2,948 m peak in Italy, near Campodolcino, six kilometres from the Swiss border - for Groppera Radio’s predecessor, Radio 24 AG (see paragraphs 14-15 below). The station used a 50 kW transmitter and a directional aerial with a gain of about 100 kW, such that the apparent power radiated was of the order of 5,000 kW. Using this transmitter, the most powerful in Europe, the station broadcast to Switzerland over a distance of 200 km to the north-west and thus reached nearly a third of the country’s population, mainly in the Zürich area.

2. The situation from 13 November 1979 to 30 September 1983

12. From 13 November 1979 to 30 September 1983 the Pizzo Groppera station was managed by Belton s.r.l. but operated by its owner, Radio 24 AG, a company that Mr Roger Schawinski had set up in order to evade the State broadcasting monopoly in...