Arrest EHRM inzake schotelverbod

[Gast Paullo]

 

Er is op 16 december 2008 een arrest uitgesproken door het EHRM waarbij de verbreking van de huurovereenkomst van een huurder omwille van het plaatsen van een schotelantenne ondanks een contractueel verbod strijdig werd bevonden met artikel 10 van het EVRM (recht op informatie).

 

Opgelet de huurders waren Irakezen en hadden gepleit dat de schotel voor hen de enige wijze was om naar programma's in hun taal te kijken. Bovendien was er in het gebouw geen alternatief voorhanden.

 

Hieronder een samenvatting in het Engels van op de website van het EHRM:

 

" KHURSHID MUSTAFA and/et TARZIBACHI - Sweden/Suède (No 23883/06)

Judgment/Arrêt 16.12.2008 [section III]

Facts: The applicants, a married couple of Iraqi origin with three minor children, rented a flat in Stockholm under a private tenancy agreement. The agreement included obligations by the tenant not to install “outdoor antennae and the like” and to maintain “order and good custom”. On moving in, the applicants made use of an existing satellite dish in order to receive television programmes in Arabic and Farsi. Following a change of landlord they were instructed to dismantle the dish and, when they failed to do so, were served with a notice terminating the tenancy. Although they took down the existing dish and replaced it with a mobile unit attached to an arm that could be passed through the kitchen window, the landlord issued proceedings. These were dismissed at first instance but on appeal by the landlord a court of appeal held, in accordance with subsection 42-1(2) of the Land Code, that the applicants had neglected their obligations to such an extent that they had forfeited the right for the tenancy agreement to be prolonged. The landlord offered to allow the applicants to stay if they agreed to remove the satellite dish, but they refused and had to move out. They complained to the European Court of a violation of their freedom to receive information.

Law: (a) Admissibility: In response to the Government's argument that the complaint was incompatible ratione materiae as the case concerned a contractual dispute between two private parties without any intervention by a public authority giving rise to a positive obligation on the part of the State, the Court noted that the court of appeal had applied and interpreted not only the tenancy agreement but also the relevant domestic legislation and the Constitution. Domestic law, as interpreted in the last resort by the court of appeal, had thus made lawful the treatment of which the applicants complained and their eviction was the result of the court's ruling. The responsibility of the respondent State for any resultant breach of Article 10 could consequently be engaged on that basis.

Conclusion: admissible (unanimously).

( Merits: Having found that there had been an interference prescribed by law with the legitimate aim of protecting the rights of others, the Court turned to the question of whether that interference had been necessary in a democratic society. The satellite dish had enabled the applicants and their three children to receive television programmes in Arabic and Farsi from their native country and region. That information – which included political and social news and, almost equally importantly, cultural expression and entertainment – was of particular interest to them as an immigrant family who wished to maintain contact with the culture and language of their country of origin. It had not been claimed that the applicants had any other means of receiving such programmes at the time or that they could have placed the satellite dish elsewhere. Nor could news obtained from foreign newspapers and radio programmes in any way be equated with information available via television broadcasts. The landlord's concerns about safety had been examined by the domestic courts, who had found that the installation did not pose any real safety threat. Moreover, the fact that the applicants had effectively been evicted from their home with their three children had been disproportionate to the aim pursued. The interference had not, therefore, been “necessary in a democratic society”.

Conclusion: violation (unanimously).

Article 41 – jointly, EUR 6,500 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage.

-"

 

Greets