In the case of Informationsverein Lentia and Others v.
Austria*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mrs E. Palm,
Mr F. Bigi,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 May and 28 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 36/1992/381/455-459. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 26 October 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in five
applications (nos. 13914/88, 15041/89, 15717/89, 15779/89 and 17207/90)
against the Republic of Austria lodged with the Commission under
Article 25 (art. 25) by "Informationsverein Lentia", Mr J�rg Haider,
"Arbeitsgemeinschaft Offenes Radio", Mr Wilhelm Weber and "Radio Melody
GmbH", all Austrian legal or natural persons, on 16 April 1987,
15 May 1989, 27 September 1989, 18 September 1989 and 20 August 1990.
2. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request 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 14 (art. 10, art. 14) of the
Convention.
3. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30); the President gave the lawyers in
question leave to use the German language (Rule 27 para. 3).
4. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 13 October 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr L.-E. Pettiti, Mr A. Spielmann,
Mrs E. Palm, Mr F. Bigi, Mr A.B. Baka and Mr G. Mifsud Bonnici
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
5. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the applicants' lawyers and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 15 April and the
applicants' memorials - with their claims under Article 50 (art. 50)
of the Convention - on 29 and 31 March and on 13 April 1993.
On 27 April the Commission produced various documents, which the
Registrar had requested on the President's instructions.
6. On 29 March 1993 the President had authorised, by virtue of
Rule 37 para. 2, "Article 19" and "Interights" (two international human
rights organisations) to submit written observations on specific
aspects of the case. Their observations reached the registry on
11 May.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 May 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr F. Cede, Ambassador, Legal Adviser at
the Ministry of Foreign Affairs, Agent,
Mrs S. Bernegger, Federal Chancellery, Adviser;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) for the applicants
Mr D. B�hmdorfer, Rechtsanwalt,
Mr W. Haslauer, Rechtsanwalt,
Mr T. H�hne, Rechtsanwalt,
Mr G. Lehner, Rechtsanwalt,
Mr H. Tretter, Counsel.
The Court heard addresses by the above-mentioned
representatives, as well as their replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
A. Informationsverein Lentia
8. The first applicant, an association of co-proprietors and
residents of a housing development in Linz, comprising 458 apartments
and 30 businesses, proposed to improve the communication between its
members by setting up an internal cable television network. The
programmes were to be confined to questions of mutual interest
concerning members' rights.
9. On 9 June 1978 the first applicant applied for an operating
licence under the Telecommunications Law (Fernmeldegesetz, see
paragraph 17 below). As the Linz Regional Post and Telecommunications
Head Office (Post- und Telegraphendirektion) had not replied within the
six-month time-limit laid down in Article 73 of the Code of
Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), the
association applied to the National Head Office (Generaldirektion f�r
die Post- und Telegraphenverwaltung), attached to the Federal Ministry
of Transport (Bundesministerium f�r Verkehr).
The National Head Office rejected the application on
23 November 1979. In its view, Article 1 para. 2 of the Constitutional
Law guaranteeing the independence of broadcasting
(Bundesverfassungsgesetz �ber die Sicherung der Unabh�ngigkeit des
Rundfunks, "the Constitutional Broadcasting Law", see paragraph 19
below) had vested in the federal legislature exclusive authority to
regulate this activity; it had exercised that authority only once, by
enacting the Law on the Austrian Broadcasting Corporation (Bundesgesetz
�ber die Aufgaben und die Einrichtung des �sterreichischen Rundfunks,
see paragraph 20 below). It followed that no other person could apply
for such licence as any application would lack a legal basis.
Furthermore there had been no violation of Article 10 (art. 10) of the
Convention since the legislature - in its capacity as a maker of
constitutional laws (Verfassungsgesetzgeber) - had merely availed
itself of its power to set up a system of licences in accordance with
the third sentence of paragraph 1 (art. 10-1).
10. Thereupon the first applicant complained to the Constitutional
Court of a breach of Article 10 (art. 10); the court gave judgment on
16 December 1983.
It took the view that the freedom to set up and operate radio
and television broadcasting stations was subject to the powers accorded
to the legislature under paragraph 1 in fine and paragraph 2 of
Article 10 (art. 10-1, art. 10-2) (Gesetzesvorbehalt). Accordingly,
an administrative decision could infringe that provision only if it
proved to have no legal basis, or its legal basis was unconstitutional
or again had been applied in an arbitrary manner (in denkunm�glicher
Weise an[ge]wendet). In addition, the Constitutional Broadcasting Law
had instituted a system which made all activity of this type subject
to the grant of a licence (Konzession) by the federal legislature.
This system was intended to ensure objectivity and diversity of
opinions (Meinungsvielfalt), and would be ineffective if it were
possible for everybody to obtain the requisite authorisation. As
matters stood, the right to broadcast was restricted to the Austrian
Broadcasting Corporation (�sterreichischer Rundfunk, ORF), as no
implementing legislation had been enacted in addition to the law
governing that organisation.
Contrary to its assertions, the first applicant had in fact
intended to broadcast within the meaning of the constitutional law,
because its programmes were to be directed at a general audience of
variable composition. The broadcasting law therefore provided a legal
basis for the decision in issue.
Consequently, the Constitutional Court rejected the complaint
and remitted it to the Administrative Court.
11. On 10 September 1986 the Administrative Court in substance
adopted the grounds relied on by the Constitutional Court and in its
turn dismissed the first applicant's claim.
B. J�rg Haider
12. From 1987 to 1989 the second applicant elaborated a project
for the setting up, with other persons, of a private radio station in
Carinthia. He subsequently gave up the idea after a study had shown
him that according to the applicable law as interpreted by the
Constitutional Court he would not be able to obtain the necessary
licence. As a result he never applied for one.
C. Arbeitsgemeinschaft Offenes Radio (AGORA)
13. The third applicant, an Austrian association and a member of
the F�d�ration europ�enne des radios libres (FERL - European Federation
of Free Radios), plans to establish a radio station in southern
Carinthia in order to broadcast, in German and Slovene, non-commercial
radio programmes, whose makers already operate an authorised mobile
radio station in Italy.
14. In 1988 AGORA applied for a licence. Its application was
refused by the Klagenfurt Regional Post and Telecommunications Head
Office on 19 December 1989 and by the National Head Office in Vienna
on 9 August 1990. On 30 September 1991, on the basis of its own
case-law (see paragraph 10 above), the Constitutional Court dismissed
an appeal from that decision.
D. Wilhelm Weber
15. The fourth applicant is a shareholder of an Italian company
operating a commercial radio which broadcasts to Austria and he wishes
to carry out the same activity in that country. However, in view of
the legislation in force, he decided not to make any application to the
appropriate authorities.
E. Radio Melody GmbH
16. The fifth applicant is a private limited company incorporated
under Austrian law. On 8 November 1988 it asked the Linz Regional Post
and Telecommunications Head Office to allocate it a frequency so that
it could operate a local radio station which it hoped to launch in
Salzburg. On 28 April 1989 its application was rejected, a decision
confirmed on 12 July 1989 by the National Head Office and on
18 June 1990 by the Constitutional Court, which based its decision on
its judgment of 16 December 1983 (see paragraph 10 above).
II. The relevant domestic law
A. The Telecommunications Law of 13 July 1949
("Fernmeldegesetz")
17. According to the Telecommunications Law of 13 July 1949, "the
right to set up and operate telecommunications installations
(Fernmeldeanlagen) is vested exclusively in the federal authorities
(Bund)" (Article 2 para. 1). The latter may however confer on natural
or legal persons the power to exercise that right in respect of
specific installations (Article 3 para. 1). No licence is required in
certain circumstances, including the setting up of an installation
within the confines of a private property (Article 5).
B. The Ministerial Ordinance of 18 September 1961 concerning
private telecommunications installations ("Verordnung des
Bundesministeriums f�r Verkehr und Elektrizit�tswirtschaft
�ber Privatfernmeldeanlagen")
18. The Ministerial Ordinance of 18 September 1961 concerning
private telecommunications installations lays down inter alia the
conditions for setting up and operating private telecommunications
installations subject to federal supervision. According to the
case-law, it cannot however constitute the legal basis for the grant
of licences.
C. The Constitutional Law of 10 July 1974 guaranteeing the
independence of broadcasting ("Bundesverfassungsgesetz �ber
die Sicherung der Unabh�ngigkeit des Rundfunks")
19. According to Article 1 of the Constitutional Law of
10 July 1974 guaranteeing the independence of broadcasting,
"...
2. Broadcasting shall be governed by more detailed rules
to be set out in a federal law. Such a law must inter alia
contain provisions guaranteeing the objectivity and
impartiality of reporting, the diversity of opinions,balanced
programming and the independence of persons and bodies
responsible for carrying out the duties defined in
paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall
be a public service."
D. The Law of 10 July 1974 on the Austrian Broadcasting
Corporation ("Bundesgesetz �ber die Aufgaben und die
Einrichtung des �sterreichischen Rundfunks")
20. The Law of 10 July 1974 on the National Broadcasting
Corporation established the Austrian Broadcasting Corporation with the
status of an autonomous public-law corporation.
It is under a duty to provide comprehensive news coverage of
major political, economic, cultural and sporting events; to this end,
it has to broadcast, in compliance with the requirements of objectivity
and diversity of views, in particular current affairs, news reports,
commentaries and critical opinions (Article 2 para. 1 (1)), and to do
so via at least two television channels and three radio stations, one
of which must be a regional station (Article 3). Broadcasting time
must be allocated to the political parties represented in the national
parliament and to representative associations (Article 5 para. 1).
A supervisory board (Kommission zur Wahrung des
Rundfunkgesetzes) rules on all disputes concerning the application of
the above-mentioned law which fall outside the jurisdiction of an
administrative authority or court (Articles 25 and 27). It is composed
of seventeen independent members, including nine judges, appointed for
terms of four years by the President of the Republic on the proposal
of the Federal Government.
E. The case-law concerning "passive" cable broadcasting
21. On 8 July 1992 the Administrative Court decided that the
Constitutional Law of 10 July 1974 (see paragraph 19 above) did not
cover "passive" broadcasting via cable, in other words the broadcasting
in their entirety by cable of programmes picked up by an aerial.
Consequently, the mere fact that such programmes originated from a
foreign station and were directed principally or exclusively at an
Austrian audience could not constitute grounds for refusing the licence
necessary for this type of operation.
F. Subsequent developments
22. On 1 January 1994 a Law on regional radio stations is to enter
into force (Regionalradiogesetz, Official Gazette (Bundesgesetzblatt)
no. 1993/506). It will allow the authorities under certain conditions
to grant private individuals or private corporations licences to set
up and operate regional radio stations.
PROCEEDINGS BEFORE THE COMMISSION
23. The applicants lodged applications with the Commission on
various dates between 16 April 1987 and 20 August 1990 (applications
nos. 13914/88, 15041/89, 15717/89, 15779/89 and 17207/90). They
maintained that the impossibility of obtaining an operating licence was
an unjustified interference with their right to communicate information
and infringed Article 10 (art. 10) of the Convention. The first and
third applicants also complained of a discrimination contrary to
Article 14, read in conjunction with Article 10 (art. 14+10). The
fifth applicant alleged in addition a breach of Article 6 (art. 6),
inasmuch as it had not been able to bring the dispute before a
"tribunal" within the meaning of that provision.
24. The Commission ordered the joinder of the applications on
13 July 1990 and 14 January 1992. On 15 January 1992 it found the
complaints concerning Articles 10 and 14 (art. 10, art. 14) admissible,
declaring that relating to Article 6 (art. 6) inadmissible. In its
report of 9 September 1992 (made under Article 31) (art. 31), it
expressed the following opinion:
(a) that there had been a violation of Article 10 (art. 10)
(unanimously as regards the first applicant and by fourteen
votes to one for the others);
(b) that it was not necessary also to examine the case from the
point of view of Article 14 (art. 14) (unanimously as regards
the first applicant and by fourteen votes to one for the
third applicant).
The full text of the Commission's opinion and of the separate
opinions contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 276 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
THE GOVERNMENT'S FINAL SUBMISSIONS
25. The Government asked the Court "to find that there had been
no violation of Article 10 (art. 10), either taken on its own or in
conjunction with Article 14 (art. 14+10)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
26. The applicants complained that they had each been unable to
set up a radio station or, in the case of Informationsverein Lentia,
a television station, as under Austrian legislation this right was
restricted to the Austrian Broadcasting Corporation. They asserted
that this constituted a monopoly incompatible with Article 10
(art. 10), which provides as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference
by public authority and regardless of frontiers. This
Article (art. 10) shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of
the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The Government contested this claim, whereas the Commission
in substance accepted it.
27. The Court observes that the restrictions in issue amount to
an "interference" with the exercise by the applicants of their freedom
to impart information and ideas; indeed this was common ground between
the participants in the proceedings. The only question which arises
is therefore whether such interference was justified.
In this connection the fact that Mr Haider and Mr Weber never
applied for a broadcasting licence (see paragraphs 12 and 15 above) is
of no consequence; before the Commission the Government accepted that
those two applicants could be regarded as victims and the Government
did not argue to the contrary before the Court.
28. In the Government's contention, sufficient basis for the
contested interference is to be found in paragraph 1 in fine, which,
in their view, has to be interpreted autonomously. In the alternative,
they argued that it also satisfied the conditions laid down in
paragraph 2.
29. The Court reiterates that the object and purpose of the third
sentence of Article 10 para. 1 (art. 10-1) and the scope of its
application must 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), to which licensing measures remain subject (see the
Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990,
Series A no. 173, p. 24, para. 61, and the Autronic AG v. Switzerland
judgment of 22 May 1990, Series A no. 178, p. 24, para. 52). It is
therefore necessary to ascertain whether the rules in question complied
with both of these provisions.
A. Paragraph 1, third sentence (art. 10-1)
30. In the Government's view, the licensing system referred to at
the end of paragraph 1 allows States not only to regulate the technical
aspects of audio-visual activities, but also to determine their place
and role in modern society. They argued that this was clear from the
wording of the third sentence of paragraph 1 (art. 10-1), which was
less restrictive than that of paragraph 2 and of Article 11 (art. 11-2)
and thus allowed more extensive interference by the public authorities
with the freedom in question. By the same token, it left the States
a wider margin of appreciation in defining their media policy and its
implementation. This could even take the form of a public broadcasting
service monopoly in particular in cases where, as in Austria, that was
the State's sole means of guaranteeing the objectivity and impartiality
of news, the balanced reporting of all shades of opinion and the
independence of the persons and bodies responsible for the programmes.
31. According to the applicants, the rules in force in Austria,
and in particular the monopoly of the Austrian Broadcasting
Corporation, essentially reflect the authorities' wish to secure
political control of the audio-visual industry, to the detriment of
pluralism and artistic freedom. By eliminating all competition, the
rules served in addition to protect the Austrian Broadcasting
Corporation's economic viability at the cost of a serious encroachment
on the freedom to conduct business. In short, they did not comply with
the third sentence of paragraph 1.
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, para. 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.
33. The monopoly system operated in Austria is capable of
contributing to the quality and balance of programmes, through the
supervisory powers over the media thereby conferred on the authorities.
In the circumstances of the present case it is therefore consistent
with the third sentence of paragraph 1. It remains, however, to be
determined whether it also satisfies the relevant conditions of
paragraph 2.
B. Paragraph 2 (art. 10-2)
34. The interferences complained of were, and this is not disputed
by any of the participants in the proceedings, "prescribed by law".
Their aim has already been held by the Court to be a legitimate one
(see paragraphs 32-33 above). On the other hand, a problem arises in
connection with the question whether the interferences were "necessary
in a democratic society".
35. The Contracting States enjoy a margin of appreciation in
assessing the need for an interference, but this margin goes hand in
hand with European supervision, whose extent will vary according to the
circumstances. In cases such as the present one, where there has been
an interference with the exercise of the rights and freedoms guaranteed
in paragraph 1 of Article 10 (art. 10-1), the supervision must be
strict because of the importance - frequently stressed by the Court -
of the rights in question. The necessity for any restriction must be
convincingly established (see, among other authorities, the Autronic
AG judgment, cited above, Series A no. 178, pp. 26-27, para. 61).
36. The Government drew attention in the first place to the
political dimension of the activities of the audio-visual media, which
is reflected in Austria in the aims fixed for such media under
Article 1 para. 2 of the Constitutional Broadcasting Law, namely to
guarantee the objectivity and impartiality of reporting, the diversity
of opinions, balanced programming and the independence of persons
and bodies responsible for programmes (see paragraph 20 above). In the
Government's view, only the system in force, based on the monopoly of
the Austrian Broadcasting Corporation, made it possible for the
authorities to ensure compliance with these requirements. That was why
the applicable legislation and the charter of the Austrian Broadcasting
Corporation made provision for the independence of programming, the
freedom of journalists and the balanced representation of political
parties and social groups in the managing bodies.
In opting to keep the present system, the State had in any
case merely acted within its margin of appreciation, which had remained
unchanged since the adoption of the Convention; very few of the
Contracting States had had different systems at the time. In view of
the diversity of the structures which now exist in this field, it could
not seriously be maintained that a genuine European model had come into
being in the meantime.
37. The applicants maintained that to protect public opinion from
manipulation it was by no means necessary to have a public monopoly in
the audio-visual industry, otherwise it would be equally necessary to
have one for the press. On the contrary, true progress towards
attaining diversity of opinion and objectivity was to be achieved only
by providing a variety of stations and programmes. In reality, the
Austrian authorities were essentially seeking to retain their political
control over broadcasting.
38. The Court has frequently stressed the fundamental role of
freedom of expression in a democratic society, in particular where,
through the press, it serves to impart information and ideas of general
interest, which the public is moreover entitled to receive (see, for
example, mutatis mutandis, the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30,
para. 59). Such an undertaking cannot be successfully accomplished
unless it is grounded in the principle of pluralism, of which the State
is the ultimate guarantor. This observation is especially valid in
relation to audio-visual media, whose programmes are often broadcast
very widely.
39. Of all the means of ensuring that these values are respected,
a public monopoly is the one which imposes the greatest restrictions
on the freedom of expression, namely the total impossibility of
broadcasting otherwise than through a national station and, in some
cases, to a very limited extent through a local cable station. The
far-reaching character of such restrictions means that they can only
be justified where they correspond to a pressing need.
As a result of the technical progress made over the last
decades, justification for these restrictions can no longer today be
found in considerations relating to the number of frequencies and
channels available; the Government accepted this. Secondly, for the
purposes of the present case they have lost much of their raison d'�tre
in view of the multiplication of foreign programmes aimed at Austrian
audiences and the decision of the Administrative Court to recognise the
lawfulness of their retransmission by cable (see paragraph 21 above).
Finally and above all, it cannot be argued that there are no equivalent
less restrictive solutions; it is sufficient by way of example to cite
the practice of certain countries which either issue licences subject
to specified conditions of variable content or make provision for forms
of private participation in the activities of the national corporation.
40. The Government finally adduced an economic argument, namely
that the Austrian market was too small to sustain a sufficient number
of stations to avoid regroupings and the constitution of "private
monopolies".
41. In the applicant's opinion, this is a pretext for a policy
which, by eliminating all competition, seeks above all to guarantee to
the Austrian Broadcasting Corporation advertising revenue, at the
expense of the principle of free enterprise.
42. The Court is not persuaded by the Government's argument.
Their assertions are contradicted by the experience of several European
States, of a comparable size to Austria, in which the coexistence of
private and public stations, according to rules which vary from country
to country and accompanied by measures preventing the development of
private monopolies, shows the fears expressed to be groundless.
43. In short, like the Commission, the Court considers that the
interferences in issue were disproportionate to the aim pursued and
were, accordingly, not necessary in a democratic society. There has
therefore been a violation of Article 10 (art. 10).
44. In the circumstances of the case, this finding makes it
unnecessary for the Court to determine whether, as was claimed by some
of the applicants, there has also been a breach of Article 14, taken
in conjunction with Article 10 (art. 14+10) (see, inter alia, the Airey
v. Ireland judgment of 9 October 1979, Series A no. 32, p. 16,
para. 30).
II. APPLICATION OF ARTICLE 50 (art. 50)
45. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
The Court examined the applicants' claims in the light of the
observations of the participants in the proceedings and the criteria
laid down in its case-law.
A. Damage
46. Only two applicants sought compensation for pecuniary damage:
"Informationsverein Lentia" in the amount of 900,000 Austrian
schillings and "Radio Melody" 5,444,714.66 schillings.
They based their claims on the assumption that they would not
have failed to obtain the licences applied for if the Austrian
legislation had been in conformity with Article 10 (art. 10). This is,
however, speculation, in view of the discretion left in this field to
the authorities, as the Delegate of the Commission correctly pointed
out. No compensation is therefore recoverable under this head.
B. Costs and expenses
47. As regards costs and expenses, the applicants claimed
respectively 136,023.54 schillings ("Informationsverein Lentia"),
513,871.20 schillings (Haider), 390,115.20 schillings ("AGORA"),
519,871.20 schillings (Weber) and 605,012.40 schillings ("Radio
Melody").
The Government took the view that the first of those amounts
was reasonable and that it should, however, in their view, be increased
to 165,000 schillings to take account of the proceedings before the
Court.
Making an assessment on an equitable basis, the Court awards
165,000 schillings each to the applicants "Informationsverein Lentia",
"AGORA" and "Radio Melody", for the proceedings conducted in Austria
and in Strasbourg. Mr Haider and Mr Weber, who appeared only before
the Convention institutions, are entitled to 100,000 schillings each.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10
(art. 10);
2. Holds that it is not necessary also to examine the case under
Article 14 read in conjunction with Article 10 (art. 14+10);
3. Holds that Austria is to pay, within three months, in respect
of costs and expenses, 165,000 (one hundred and sixty-five
thousand) Austrian schillings to each of the applicants
"Informationsverein Lentia", "AGORA" and "Radio Melody", and
100,000 (one hundred thousand) Austrian schillings each to
the applicants Haider and Weber;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 24 November 1993.
Signed: Rolv RYSSDDAL
President
Signed: Marc-Andr� EISSEN
Registrar