AS TO THE ADMISSIBILITY OF
Application No. 9675/82
by Freie Rundfunk AG i GR
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 4 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mr. F. MARTINEZ
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to
- Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms;
- the application introduced on 3 December 1981 by
Freie Rundfunk AG i Gr against the Federal Republic of Germany and
registered on 1 February 1982 under file N° 9675/82;
- the Commission's decision of 17 October 1985 that the
respondent Government should be invited to submit written observations
on the applicant company's complaint under Article 10 of the
Convention;
- the Government's observations of 6 March 1986;
- the appalicant company's reply of 13 May 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows:
I.
In proceedings which lasted from 1967 until 1984, the
applicant company - represented by Dr W. Theisen, Rechtsanwalt at
Coblenz - claimed a licence to broadcast under Articles 38 et seq. of
the Saarland Broadcasting Act (Gesetz über die Veranstaltung von
Rundfunksendungen im Saarland) of 7 June 1967.
The course of these proceedings was as follows:
1. In 1967 the applicant company requested a licence to
broadcast. In November 1971 it instituted proceedings before the
Administrative Court (Verwaltungsgericht) of the Saarland complaining
that the Land Government had failed to determine the request. Noting
that Article 39 para. 1 sentence 5 excluded any legal entitlement to
the granting of a licence ("Ein Rechtsanspruch auf ihre Erteilung
besteht nicht") the applicant company also relied on Article 5 para. 1
sentence 2 of the Basic Law (Grundgesetz), which guarantees "freedom
of reporting by means of broadcasts".
The Administrative Court dismissed the action
(Untätigkeitsklage) as ill-founded on 30 June 1972. The Court found no
error in the exercise of the Government's discretion (Ermessensfehler)
and held that the company's claim could not be based on Article 5 of
the Basic Law.
2. In the appeal proceedings the Administrative Court of Appeal
(Oberverwaltungsgericht) of the Saarland, on 25 April 1974, held that
Art 38 and other relevant provisions of the Act were unconstitutional
and referred the case to the Federal Constitutional Court
(Bundesverfassungsgericht) under Article 100 para. 1 of the Basic Law.
This provision states:
"If a court considers unconstitutional a law the validity
of which is relevant to its decision, the proceedings shall
be stayed, and a decision shall be obtained from the (...)
Federal Constitutional Court if this Basic Law is held to
be violated. This shall also apply if this Basic Law is held
to be violated by Land Law (...)"
3. The Federal Constitutional Court having declared this
reference inadmissible on 24 March 1976 (BVerfGE 42, 42), the
Administrative Court of Appeal, by judgment of 20 May 1976, ordered
the Land Government to determine the applicant company's request for a
broadcasting licence; this order was based on the assumption that the
relevant provisions of the Broadcasting Act were valid. The Court
dismissed the appeal (Berufung) in so far as the applicant company
claimed a licence to broadcast under Article 5 of the Basic Law. It
decided that each party should bear half of the costs of the
proceedings. Leave to appeal on points of law (Revision) was refused.
4. On 26 October 1976 the Land Government refused the applicant
company's request for a licence and on 26 November 1976 the applicant
company again brought proceedings before the Administrative Court.
Written submissions were filed by the applicant company on 1 March
1977 and a hearing was held on 21 August 1978. The Administrative
Court again referred the case to the Federal Constitutional Court. It
held that Articles 38, 40 para. 1, 46 and 46 (b) of the Broadcasting
Act concerning private broadcasting were unconstitutional and further
stated that, in the absence of a valid legal provision, the applicant
company could not claim a broadcasting licence.
The applicant company's appeal (Beschwerde) against this
decision was on 29 November 1978 declared inadmissible by the
Administrative Court of Appeal.
5. The Federal Constitutional Court, following a hearing on 24
March 1981, decided on 16 June 1981 that Articles 38 to 46 (e) of the
Broadcasting Act were incompatible with Article 5 para. 1 sentence 2
and Article 3 para. 1 (equality before the law) of the Basic Law and
therefore null and void in so far as they concerned private
broadcasting (BVerfGE 57,295).
The Court held that, under Article 5 para. 1 sentence 2 of the
Basic Law, private broadcasting can only be licensed on the basis
of specific legislation guaranteeing the freedom of broadcasting. The
Court did not determine the question whether Article 5 of the Basic
Law grants an individual right to private broadcasting. It stated
(loc. cit. p. 318):
"With the provisions to be examined the Saarland legislature has
on principle authorised private broadcasting. Hence the validity
of the private broadcasting provision in the Saarland
Broadcasting Act cannot depend on the questions dealt with in
submissions, in experts' reports and in arguments during the oral
hearing - as to whether exclusion of private broadcasting in
favour of institutions established under public law is still
compatible with the Basic Law under present-day and future
technical conditions and whether in connection therewith a duty
exists under constitutional law to introduce private
broadcasting. The examination to be carried out under
constitutional law must rather be restricted to the question
whether the Saarland provisions are compatible with the Basic
Law. For an examination of this question there is also no need
for a decision on the issue - dealt with in the written and oral
submissions - of a basic right to organise private radio
broadcasts."
6. The applicant company thereupon pursued its claim before the
Administrative Court. It argued primarily that the judgment of the
Federal Constitutional Court was void and that its claim had to be
determined on the basis of the judgment of the Administrative Court of
Appeal of 20 May 1976. In the alternative, it submitted that the
Saarland legislator had failed to comply with its obligation, under
Article 5 of the Basic Law, to enact new legislation, in conformity
with the guidelines formulated by the Federal Constitutional Court,
concerning private broadcasting.
The Administrative Court heard the case on 13 November 1981
and dismissed the action. It held that it was not competent to review
the Federal Constitutional Court's judgment, which was binding. The
validity of the relevant provisions of the Broadcasting Act could not,
contrary to that judgment, be assumed in favour of the applicant
company on the ground that the judgment of the Administrative Court of
Appeal of 20 May 1976 had acquired the force of res judicata. The
Administrative Court concluded that the applicant company could not
claim a licence under the invalid provisions of the Broadcasting Act
of 1967.
Finally the Court examined whether the applicant company could
claim a broadcasting licence under Article 5 of the Basic Law and
whether the Court in its determination of this claim should act as a
"substitute legislator" in view of the Land legislature's inaction
since the Federal Constitutional Court's judgment (pages 29 - 34 of
the Administrative Court's judgment). The Administrative Court denied
this. It found inter alia that, even if there was a duty of the Land
to legislate as claimed by the applicant company, the time which had
elapsed since the Federal Constitutional Court's judgment was not
unreasonably long. In conclusion the Administrative Court referred
the applicant company to "the possibility of lodging a constitutional
complaint (Verfassungsbeschwerde) against a judgment of last instance
dismissing the action".
7. The applicant company's appeal (Berufung) of 5 February 1982 was
heard by the Administrative Court of Appeal on 7 October 1982. The
Appeal Court dismissed the appeal. It confirmed the Administrative
Court's findings that there was no legislation, as required by the
Federal Constitutional Court, for private broadcasting, and that the
applicant company could not rely on the Appeal Court's judgment of 20
May 1976 ordering the Land Government to determine the application for
a licence; it observed in this connection that, in view of the
previous history of the case, the applicant company could not in 1976
have expected a determination in its favour (pages 21 - 23 of the
judgment). The Appeal Court also denied a clear judicial obligation
to act as a "substitute legislator" and further stated with reference
to Article 5 of the Basic Law that the statutory regulation of radio
broadcasting in 1976 - apart from the unconstitutional provisions
concerning private broadcasting - had been compatible with the
constitution in the light of the technical and financial situation.
The Appeal Court then observed (page 27 of the judgment):
"This statutory regulation of private broadcasting can become
unconstitutional as a result of a positive change in
circumstances. It may then - as expressly left open by the
Federal Constitutional Court (BVerfGE 57, 318) - be necessary for
private radio broadcasting to be authorised as well, whether
alone on account of Article 5 para. 1 sentence 2 of the Basic Law
or on account of additional claims to basic rights under Article 3,
Article 5 para. 1 sentence 1 and Article 12 of the Basic Law. In
the light of the statutory position indicated it is obvious that
consideration must be given not to a case of absolute omission on
the part of the legislature but rather to one of inaction in
regard to a constitutional duty subsequently to improve
provisions that were originally to be seen as being in conformity
with the constitution (see, in particular, BVerfGE 56, 54 - 72,
78 et seq.)."
In applying these considerations to the present case the Appeal Court
found no manifest obligation to improve the existing provisions and
therefore no basis for referring the matter to the Federal
Constitutional Court. The Appeal Court also drew the applicant
company's attention to the possibility of bringing a constitutional
complaint concerning the Land legislature's inaction (page 26 of the
judgment).
8. The applicant company then lodged an appeal against the
refusal, in the Appeal Court's judgment, of leave to file a further
appeal on points of law (Beschwerde gegen die Nichtzulassung der
Revision). In the memorial of 6 December 1982 setting out the reasons
for this appeal the company relied on the argument that the judgment
of the Appeal Court of 20 May 1976, requiring the Land Government to
determine the application for a licence, was final and binding.
This appeal was on 23 December 1983 dismissed by the Federal
Administrative Court (Bundesverwaltungsgericht) on the grounds (1)
that it did not raise any issue of fundamental importance, (2) that
the judgment of the Court of Appeal was not, as alleged, contrary to
case- law of the Federal Administrative Court, and (3) that the
applicant company's right to a hearing in accordance with the law had
not, as alleged, been disregarded by the Court of Appeal. This
decision of the Federal Administrative Court was sent to the applicant
on 13 January 1984.
II.
9. On 28 November 1984 the Diet of the Saarland adopted a new
Broadcasting Act (Landesrundfunkgesetz) which provides both for public
(Part A) and private broadcasting (Part B). Applications for a
licence for private broadcasting are to be determined by the Land
Authority (Landesanstalt) set up under the new Act (Article 50 para.
2). They may be filed within a period of at least three months to be
fixed by the Authority (Article 39 para. 1).
10. In June 1985 the applicant company was officially informed
that the Land Authority might adjourn its determination of the above
period pending an amendment of the Broadcasting Act. This amendment
should be coordinated with negotiations concerning a Länder Agreement
on the Reform of Broadcasting (Staatsvertrag zur Neuordnung des
Rundfunkwesens). It could not be foreseen whether and when these
negotiations would succeed. (Letter from the Prime Minister's Office
of 28 June 1985)
11. By letter of 1 October 1985 the Land Authority informed the
applicant company that the period for filing applications for
licences, once fixed, would be announced in the Official Gazette
(Amtsblatt) of the Saarland.
COMPLAINTS
The applicant company invokes Articles 6 para. 1, 10, and 14
of the Convention.
It mainly complains, under Articles 10 and 14 of the Convention,
that its earlier request for a broadcasting licence has not been
granted. In this connection it also relies on the judgment of the
Administrative Court of Appeal of 20 May 1976 and on the principle of
res judicata. It further complains that it is prevented, by the Land
Authority's failure to fix a period under Article 39 para. 1, from
seeking a licence under the new Broadcasting Act. It considers that
the course of events described under I and II of the above statement
of facts cannot be justified under Article 10 para. 1, second
sentence.
The applicant company also complains, under Article 6 para. 1
of the Convention, of the length of the proceedings concerning the
determination of its earlier request for a licence. It submits that
those proceedings concerned a "civil right" within the meaning of
Article 6.
It submits that it must be considered as having exhausted all
domestic remedies.
PROCEEDINGS BEFORE THE COMMISSION
The applicant company initially asked that examination of the
application be adjourned, pending the exhaustion of domestic remedies,
but finally agreed that the case should go before the Commission.
On 13 December 1983 the Commission considered the application.
It noted that appeal proceedings were pending before the Federal
Administrative Court and decided, after having deliberated, to adjourn
its further examination.
Under cover of a letter of 23 January 1984 the applicant
company submitted a copy of the Federal Administrative Court's
decision of 23 December 1983.
By letter of 9 February 1984 the applicant company was invited
to state whether a constitutional complaint had been lodged against
that decision.
The applicant company replied on 24 February 1984 that a
constitutional complaint had not been brought. It submitted that:
- the time-limit for filing such a complaint had not yet expired;
- the application had been admissible since 1982. This admissibility
could not be affected by a subsequent domestic decision. As
already stated in the provisional application of 19 October
1981 (page 2), the applicant company was entitled to bring the
present application after the Federal Constitutional Court's
judgment of 16 June 1981, in view of the binding effect of
that judgment under Article 79 para. 2 sentence 2 of the Act
on the Federal Constitutional Court (Bundesverfassungsgerichts-
gesetz);
- Article 26 of the Convention did not without exception require
prior recourse to the Federal Constitutional Court. The Federal
Administrative Court, in its decision of 23 December 1983, had
relied on a decision of the joint panel (Gemeinsamer Senat) of
the highest courts of the Federation dated 6 February 1973
(BVerwGE 41, 363). Exhaustion of all domestic remedies was not
required where the legal position was very much open to doubt.
Moreover, the case had previously been before the Federal
Constitutional Court on two occasions. An obligation to have
recourse to that Court a third time would amount to refusing
access to the Convention organs.
By letter of 18 April 1984 the applicant company was, with
reference to the judgment of the Administrative Court of Appeal of
7 October 1982, invited to clarify its position as to the possibility
of a constitutional appeal, concerning the alleged failure of the Saar
Diet to legislate in the matter of private broadcasting, and, if it
wished, to comment on a press report concerning a draft Bill of the
Saar Government providing for private broadcasting.
In submissions of 11 July 1984, enclosing a copy of the Bill,
the applicant company stated that the Saarland was proceeding to fulfil
its constitutional duty to legislate; the question whether Article 26
required a constitutional appeal alleging failure to fulfil this
legislative duty therefore no longer arose.
On 8 December 1984 the Commission noted that the Saar
Broadcasting Act had been adopted on 28 November 1984. It invited the
applicant company to indicate whether it intended to apply for a
licence under this Act.
The applicant company replied on 11 March 1985 that it wished
to apply and referred in subsequent correspondence (2 May, 25 June,
3 July, 3 September and 7 October 1985) to the development following
the March elections and the change of Government in the Saarland, as
described under II, 2 of the above statement of facts.
On 17 October 1985 the Commission decided to invite the
respondent Government to submit written observations on the applicant
company's complaint under Article 10 of the Convention. Examination
of the complaint under Article 6 para. 1 was adjourned.
By letter of 13 December 1985 the Government requested the
Commission to obtain certain documents and information from the
applicant company.
The Commission, on 24 January 1986, did not find that this
material was relevant for the determination of the applicant company's
complaint under Article 10, but decided that it would further consider
the Government's request in connection with the complaint under
Article 6 para. 1 of the Convention.
The Government's observations were received on 11 March 1986.
The applicant company's reply arrived on 14 May 1986.
SUBMISSIONS OF THE PARTIES
A. The Government
The Government submit that the applicant company's complaint
under Article 10 of the Convention is inadmissible under Article 26:
- both for non-exhaustion of domestic remedies and for non-observance
of the six months' rule, in so far as it relates to the proceedings
"concluded with final and binding effect" by the judgment of the
Administrative Court of Appeal of 20 May 1976;
- for non-exhaustion of domestic remedies as regards the subsequent
proceedings.
1. The Government argue that an entitlement on the part of the
applicant company to the licensing of private broadcasting, derived
from Article 5 of the Basic Law, was dismissed finally and with
binding effect by the Administrative Court of Appeal in its judgment
of 20 May 1976. In respect of that part of the judgment the applicant
company could have appealed against the refusal of leave to appeal on
points of law. A constitutional complaint alleging a violation of its
alleged right under Article 5 to make private broadcasts was also
possible. But the applicant company made no use of either remedy. On
the contrary, it accepted this judgment, which had turned to its
disadvantage, and the order requiring the Saarland Government to
determine the application for a licence, although it was foreseeable
that the determination would be negative.
The Government do not consider that the res judicata effect of
the above judgment, concerning the rejection of the applicant
company's claim under Article 5 of the Basic Law to make private
broadcasts, was affected by the subsequent proceedings. They point
out that the Administrative Court of Appeal, in its later judgment of
7 October 1982 at page 23, expressly referred to its earlier judgment
of 20 May 1976 and that it did not go into a new discussion of the
questions already decided with final and binding effect. The only
question that subsequently still had to be examined was the question
whether - following the declaration of nullity of the relevant
provisions of the Broadcasting Act of 1967 - there might be a claim
under constitutional law to renewed action on the part of the Saarland
legislature and whether technical developments that had taken place in
the interim might, for the first time, found such a claim.
In so far as the applicant company did not have recourse to
the available remedies it has failed to comply with the requirement
that domestic remedies must be exhausted. In addition, it also did
not apply to the Commission within the six months' time-limit, running
from the judgment given with final and binding effect by the
Administrative Court of Appeal on 20 May 1976, by virtue of which an
entitlement under Article 5 of the Basic Law to make private
broadcasts had been rejected under domestic law. Accordingly, an
examination of this question in the present application is excluded
under Article 26 of the Convention.
2. With regard to the domestic proceedings since 20 May 1976 the
Government submit in the first place that, when the application was
registered, administrative court proceedings were in progress at first
instance. Thus under German domestic law all opportunities for
judicial examination were still open to the applicant company, i.e.
proceedings before the Administrative Court, that had not yet given
its decision, before the Administrative Court of Appeal, the Federal
Administrative Court and the Federal Constitutional Court. On these
facts the complaint is inadmissible on the ground that it was lodged
before exhaustion of domestic remedies. An exceptional case in which
domestic remedies may be exhausted during Convention proceedings did
not exist here.
In its judgment in the Ringeisen case (Eur. Court H.R.,
judgment of 16 July 1971, Series A No. 13) the Court held that an
applicant is, as a rule, obliged before applying to the Commission to
avail himself of the various domestic remedies but that the Commission
may accept that the last instance of domestic remedies is reached
shortly after the lodging of the application but before a decision has
to be given on its admissibility. In that judgment the Court stated
(loc. cit. and Yearbook 14 p. 848 para. 91):
".... that the last stage of such remedies may be reached
shortly after the lodging of the application but before the
Commission is called upon to pronounce itself on
admissibility."
According to the Government the requirement that domestic
remedies must be exhausted serves, on the one hand, the purpose of
getting an applicant to have recourse in the first place to domestic
remedies that are as a rule quicker, cheaper and more pertinent to the
matter before turning to an international organ. Secondly, it is also
intended that the State against which action is being taken should
have the opportunity of having possible violations of the law examined
by its domestic courts and of remedying them if necessary - before
being called to account by an international instance. This also
presupposes that the State concerned is informed of the charge of
violating the Convention within a reasonable time and is thereby put
in a position to examine this charge and to comply with its
obligations under the treaty in good time. The rule of international
law that domestic remedies must be exhausted "is based on both justice
and common sense". It would become meaningless and the legitimate
interests of the Contracting States would be violated if it were
permissible for applications to be made pending in reserve - so to
speak - against possible future violations of the Convention and for
the Commission to be seized of a case at the same time as domestic
instances.
These considerations rule out the application being regarded
as admissible by way of exception. The margin of flexibility conceded
by the Court is limited to a short period of time and has been
overstepped in the present case. The fact that proceedings for a
remedy under the Convention - of which the Federal Government has no
knowledge and to which it therefore cannot react appropriately -
should be running parallel to domestic proceedings, as in the present
case, is not considered by the Federal Government to be compatible
with the rule of international law concerning exhaustion of domestic
remedies. The Government point out that extensive technical changes
have occurred particularly in the field of broadcasting over the last
years - changes which, according to decisions of the Federal
Constitutional Court, might also have an impact on the determination
of claims under Article 5 of the Basic Law to have private
broadcasting authorised. Thus the position concerning entitlement may
have changed fundamentally on the domestic level and similarly under
the law of the Convention. The Government do not accept "that an
application that was possibly inadmissible at the time it was lodged
or registered could be left for such a long time that it might - as a
result of the lapse in time - begin to offer prospects of success in
view of changes in the factual or legal circumstances."
3. The Government further submit with regard to the domestic
proceedings since 20 May 1976 that the applicant company not only had
not exhausted domestic remedies before the introduction of the
application but also failed to do so thereafter. According to the
case-law of the Convention organs an applicant is required to exhaust
all possible remedies available to him. Doubts concerning the
effectiveness of a remedy do not entitle him to refrain from seeking a
remedy. The examination of the question whether a remedy might
succeed is the task of the domestic courts. This question
must be resolved before there is recourse to an international forum.
(No. 712/60, Retimag v. Federal Republic of Germany, Dec. 16.12.61,
Collection 8 pp. 29, 38 = Yearbook 4 pp. 384, 400 with further
references; Eur. Court H.R., Van Oosterwijck judgment of 6 November
1980, Series A No. 40, paras. 26 et seq.).
In the present case the applicant company did not duly avail
itself of two possible domestic remedies in respect of the second
proceedings for the granting of a licence to make private broadcasts:
appeal against the refusal of leave to appeal on points of law, in the
judgment of the Administrative Court of Appeal of 7 October 1982, and
constitutional complaint.
It is true that, after the judgment of the Admnistrative Court
of Appeal of 7 October 1982, the applicant company appealed against
the refusal of leave to appeal on points of law. This appeal,
however, did not deal with questions relating to basic and human
rights but only with the allegedly binding effect of the first
judgment of the Administrative Court of Appeal of 20 May 1976. By
this restriction the applicant company denied the Federal
Administrative Court the opportunity of examining the fundamental
question it had already raised before the Commission - i.e. the
question of an entitlement under Article 10 of the Convention to a
licence for private radio broadcasting - and also the analogous
question under Article 5 of the Basic Law. As to the requirement that
an appeal must be lodged against refusal of leave to appeal on points
of law, before there is recourse to the Federal Constitutional Court
under Article 90 para. 2 sentence 1 of the Act on the Federal
Constitutional Court, the Government refer to BVerfGE 16, 1 (2 et
seq.) and BVerfGE 52, 369 (387).
In the Government's view the applicant company could have
tried to obtain leave to appeal on points of law in view of the
fundamental importance of the matter - particularly in the light of
the references made in the administrative court judgments during the
second proceedings to possible further developments in the technical
field and their effects on a possible entitlement under Article 5 and
also in the light of the fundamental issue of the courts' functioning
as a substitute legislator, which issue had been discussed at previous
instances.
The applicant company, in order to exhaust domemstic remedies,
should have referred the Federal Administrative Court to this
fundamental issue. Whether it would have succeeded with such
submissions on the fundamental importance of the case does not have to
be decided by the Commission here. If the applicant company had made
entitlement to a licence for private radio broadcasters the subject-
matter of proceedings before the Federal Administrative Court, the
latter - as the competent national instance - could have, and would
have had to, examine the prospects of success. The Federal
Administrative Court would then, in the light of given and also
foreseeable technical change, have had to go into the issue raised,
taking into account expositions in the relevant literature. This
applies both in respect of a direct entitlement to a licence for
private broadcasting and in respect of a claim to legislative action.
The Government further point out that, after judgment was
given by the Administrative Court of Appeal on 7 October 1982, the
applicant company did not lodge a constitutional complaint. In
failing to lodge such a complaint it denied the Federal Constitutional
Court the opportunity of examining the measure - to which it had
raised objection - with reference to an entitlement under Article 5 of
the Basic Law to a licence for private radio broadcasting. In its
judgment of 16 June 1981 the Federal Constitutional Court had
expressly left this question open (BVerfGE 57, 295/318). The Federal
Constitutional Court was confronted with numerous submissions on this
very question during the second proceedings to examine norm validity.
These submissions indicated a fundamental need for examination in view
of technical changes taking place. Nevertheless, the Federal
Constitutional Court did not have to express an opinion on this
question because it was not at issue in the given proceedings for
examination of norm validity. On the other hand, after the decision
of 16 June 1981 it was at the same time clear that constitutional
examination of the applicant company's cause could become necessary in
future. At any rate both the Administrative Court and the
Administrative Court of Appeal reflected on this.
After they had come to a conclusion adverse to the applicant
company, the latter should have referred the question of an
entitlement under Article 5 of the Basic Law to a licence for private
radio broadcasting, or to relevant legislative action, to the Federal
Constitutional Court, so as to exhaust all domestic remedies in
accordance with Article 26 of the Convention. In the Government's
view this applies all the more as the applicant company was referred
by both the Administrative Court (page 33 of the judgment of 13
November 1981) and the Administrative Court of Appeal (page 26 of the
judgment of 7 October 1982) to the possibility of a constitutional
complaint as a remedy available in this case for the attainment of
what is desired. Accordingly, and in the light of the statements made
by the Federal Constitutional Court in its judgment of 16 June 1981,
it is surprising that the applicant company should not have had
recourse to the Federal Constitutional Court.
One possible explanation for this, however, is that it may
have failed to observe the time-limit for lodging a constitutional
complaint pursuant to Article 93 para. 1 sentence 1 of the Act on the
Federal Constitutional Court. The order of events speaks in favour of
this assumption. The decision of the Federal Administrative Court of
23 December 1983 was sent to the applicant company on 13 January 1984
and would probably have come to its attention by 17 January at the
latest. The time-limit stipulated by Section 93 then expired on
17 February 1984 at the latest. Only after the time-limit had expired
did the applicant company contact the Commission. The statement, in
the letter of 24 February 1984 to the Commission, that the time
allowed for lodging a constitutional complaint had, at that stage, not
yet expired, is incorrect. According to para. 1 sentence 2 of
Section 93 the period of time allowed begins to run when service is
effected or when there is informal notification of the full decision
in those cases where the relevant procedural provisions require this
to be done ex officio. Accordingly, in the present case, the period
of time allowed began to run at the moment when the Federal
Administrative Court's decision of 23 December 1983 was informally
communicated to the applicant company.
4. The Government contest the applicant company's view that,
after there had been recourse on two previous occasions to the Federal
Constitutional Court by the Administrative Courts in proceedings under
Article 100 of the Basic Law, renewed recourse to the Federal
Constitutional Court would have served no purpose. In the
Government's view this submission fails to take account of the scope
of the Federal Constitutional Court's judgment of 16 June 1981 and of
the applicant company's function and status in such proceedings.
That the Federal Constitutional Court's decision of 24 March
1976 did not include an opinion on the possibility of the applicant
company's entitlement under Article 5 of the Basic Law to be
authorised to make private broadcasts is so obvious that no further
substantiation is needed here. But also in the proceedings leading up
to the decision of 16 June 1981 there was no reason - as already
explained - for discourse on this question. Indeed the question of a
possible entitlement under Article 5 to make private broadcasts was
expressly left open and thus held in reserve for future proceedings.
The Federal Constitutional Court had to proceed on the basis of the
decision taken by the Saarland legislature to render private
broadcasting possible. The Court only had to examine whether the
actual arrangements selected for the Act were in harmony with the
principles of "broadcasting freedom".
Thus it was a question of freedom of broadcasting as an
objective principle to be understood in the light of the other basic
rights guaranteed in Article 5 para. 1, in particular in the light of
freedom of information on the one hand and of expression of opinion on
the other. The Federal Constitutional Court infers the need for
statutory configuration of broadcasting freedom from this context.
The requirements, inferable from the guarantee of broadcasting
freedom, in respect of statutory regulation were not considered by the
Court to have been fulfilled. These questions must be distinguished,
however, from the question brought by the applicant company before the
Commission as to whether it may, for example, operate radio
broadcasting installations as an owner. It is not, moreover, apparent
that the applicant company, in the event of obtaining a licence, would
not be willing to carry out its broadcasting in a manner corresponding
to the requirements inferred from broadcasting freedom by the Federal
Constitutional Court in its judgment of 16 June 1981.
Hence it must be recorded that in the prior proceedings for
examination of norm validity the Federal Constitutional Court had not
yet had to deal with the question laid before the Commission by the
applicant company. Thus the company could reasonably be expected to
submit this question for the first time to the Federal Constitutional
Court for decision by filing a constitutional complaint.
The function of proceedings brought under Article 100 of the
Basic Law and the applicant company's status in these proceedings also
exclude the possibility of regarding a subsequent constitutional
complaint as being dispensable. Proceedings under Article 100 in a
concrete case only serve the purpose of clarifying the law to be
applied by the Court. The Federal Constitutional Court characterised
such proceedings as follows (BVerfGE 42, 90/91):
"In proceedings to examine the validity of norms in a concrete
case, brought before the Federal Constitutional Court under
Article 100 para. 1 of the Basic Law and Article 13 No. 11 of the
Act on the Federal Constitutional Court, the parties to the
original case are not accorded the status of a party to the
proceedings before the Federal Constitutional Court. Parties to
the original case cannot institute these proceedings, nor do they
have the power - which is fundamentally characteristic of the
status of a party to the proceedings - to apply for decisions.
Proceedings to examine the validity of norms in a concrete case
serve the constitutional court's guarantee that objective law
shall be observed; such proceedings are not an instrument for
the individual to obtain a legal remedy. The status of party
to the proceedings and, in particular, the power of making
applications during proceedings cannot be inferred from the
avenues of action conceded by Article 82 para. 3 of the Act to
parties to the original case during proceedings before the
Federal Constitutional Court for an examination of norm validity
in a concrete case. Hence parties to the original case are as
such generally debarred from introducing motions of challenge
under Section 19 of the Act."
If proceedings for an examination of norm validity in a
concrete case only serve the purpose of clarifying the norm to be
applied, then in the applicant company's case they cannot have had the
effect of clarifying actual claims. Rather, such clarification only
took place during the Administrative Court proceedings where referral
to the Federal Constitutional Court was decided on. In proceedings
for an examination of norm validity in a concrete case the Federal
Constitutional Court does not give a decision on actual facts but only
incidentally to such facts. With its decision the Federal
Constitutional Court helps to clarify the ordinary law that has to be
applied. In the case of post-constitutional statutes this means that
their nullity will be declared if they are held to be in violation of
the Basic Law. All this, however, means that it is not possible to
regard a subsequent constitutional complaint as being dispensable with
reference to exhaustion of all domestic remedies if previously the
Federal Constitutional Court has merely determined the ordinary Land
law that has to be applied.
The Government also contest the view that the applicant
company was entitled to have recourse to the Commission, before having
exhausted all domestic remedies, because of the binding effect
provided for in Article 79 para. 2 sentence 2 of the Act on the
Federal Constitutional Court. They submit that this provision, which
according to Article 82 para. 1 of the Act applies mutatis mutandis to
proceedings for examination of norm validity in a concrete case,
embraces rules concerning the effects of decisions of the Federal
Constitutional Court. Article 79 para. 2 sentence 1 lays down the
principle that decisions that are no longer open to challenge and that
are based on a norm that has been declared null and void shall
fundamentally remain unaffected. According to sentence 2 of this
provision there shall, however, no longer be any execution resulting
from such a decision no longer open to challenge.
What execution is meant here by the applicant company is not
apparent. The judgment of the Administrative Court of Appeal of
20 May 1976 was carried out by the authority ordered to determine the
application for a licence, in that the provisions of the Broadcasting
Act, which were subsequently declared null and void, were applied.
Any further execution based on this or on another unenforced decision
was not apparent.
That the Federal Constitutional Court's judgment of 16 June
1981 did not prejudge the question of possible entitlement, in the
nature of a basic right, to make private broadcasts already follows
from the fact that this question was expressly left open.
Accordingly, the Administrative Courts concerned also conducted an
independent examination of the position under constitutional law. A
"binding effect" followed - at the most - from the judgment of 16 June
1981 in so far as claims to authorisation of private radio
broadcasting could no longer be derived from the ordinary Land law
provisions of the Broadcasting Act that had been declared null and
void. Claims inferred from Article 5 of the Basic Law or Article 10
of the Convention were not affected by this.
The Government repeat that doubts as to the prospects of a
remedy's success do not absolve from the obligation to exhaust this
remedy. Particularly where the legal position is in doubt there
should in the first place be recourse to the national courts for
clarification. It would not be compatible with international law
principles relating to the exhaustion of domestic remedies if every
time the legal position was in doubt recourse to the courts could not
reasonably be expected.
The Government note the applicant company's reference to a
ruling of the Joint Panel of the Highest Courts of the Federation,
given on 6 February 1973. This ruling concerned the binding effect of
judgments and the principle of res judicata (cf. page 6 of the Federal
Administrative Court's decision of 23 December 1983). It is not
apparent to the Government to what extent doubts concerning such
matters of ordinary law may be a reason for dispensing with domestic
remedies where human rights violations are at issue before the
international instance concerned. Even if one accepts the view that
doubts as to the legal position make it possible to dispense with
exhaustion of domestic remedies, logically such doubts will have to
relate to those legal questions laid before the international instance
for decision. However, the questions of res judicata discussed
extensively in the prior domestic proceedings in this case were not
questions that form the subject-matter of the present human rights
application.
The Government also refer to the Commission's letter of
18 April 1984 to the applicant company inviting it to state whether it
had filed a constitutional complaint, alleging that Land legislature
had failed to fulfil its constitutional mandate of statutory
regulation of private radio broadcasting. The applicant company
replied to the effect that, because the Land legislature was working
on a relevant bill, there was no problem for the future and no
argument against exhaustion of domestic remedies. The Government
contest this view and observe that it may lead to the conclusion that
the applicant company is no longer a "victim" within the meaning of
Article 25 of the Convention because of the legislature's having
fulfilled a relevant claim. In the light of the view expressed,
however, prior recourse to the Federal Constitutional Court cannot
have become dispensable. Precisely because of the detailed discussion
of the question of a possible obligation incumbent on the Land
legislature to introduce a replacement for the statutory provisions
declared null and void there should have been prior recourse to the
Federal Constitutional Court - and also to the Federal Administrative
Court.
The Government state in this connection "that the new
statutory provisions that have been introduced in the Saarland in the
interim can by no means form the admissible subject-matter of the
application." Claims under this statute and objections to the statute
have not yet been raised before any German court, in particular the
Federal Constitutional Court, so that non-exhaustion of all domestic
remedies is manifest here. In a letter to the Commission dated
3 September 1985 the applicant company expressed the view that it
could successfully raise the matter before the Federal Constitutional
Court. It pointed out that new technical developments in the Federal
Postal Administration made that Administration's earlier submissions
before the Federal Constitutional Court seem open to attack.
The Government find no indication that the applicant company
has lodged an application with the Commission in respect of the new
Saarland Broadcasting Act of 1984. On the contrary, the Government's
attention has been drawn only to statements concerning the current
position with regard to the lodging of applications under, and
concerning a planned amendment of, the Act, whereby the new Saarland
Government shall endeavour to organise private radio broadcasting on
an internal pluralistic basis (cf. the applicant company's letter of
25 June 1985).
The Government do not consider that a ruling of the Federal
Constitutional Court in proceedings under Article 100 of the Basic
Law, such as the judgment of 16 June 1981, can be the subject of a
human rights application. The purpose of proceedings under Article
100 is not to clarify individual rights and to afford an individual
legal remedy but to clarify the law to be applied by the courts in a
concrete set of circumstances. Only when the court which referred the
matter to the Federal Constitutional Court actually applies the law
concerned is there actual regulation of the concrete circumstances of
the case. Such regulation alone can interfere with individual rights.
The Government finally contest the argument that it would be
unreasonable, in view of the applicant company's previous unsuccessful
efforts to obtain a licence, to require it to file a constitutional
complaint. They submit that this assumption also fails on account of
the fact that the applicant company did not at any point in time
submit the questions raised with the Commission to the Federal
Constitutional Court. That Court also did not give a decision on
these questions on account of there being other cause for doing so.
It cannot, however, be unreasonable to demand that before there is
recourse to the Commission the Federal Constitutional Court should
first be seized of the question in dispute in accordance with the
procedure laid down by statute.
B. The applicant company
1. The applicant company does not complain of the judgment of the
Administrative Court of Appeal of 20 May 1976. A further appeal on
points of law, or a constitutional complaint, against this judgment
were in its view excluded on the ground that the applicant company was
not aggrieved, having obtained a decision in its favour on the
essential issue. The Appeal Court's order, obliging the Land
Government to base its determination of the applicant company's
request for a broadcasting licence on the assumption that the relevant
provisions of the Broadcasting Act were valid, thus acquired the force
of res judicata. But in the subsequent proceedings the above order
was violated by the Administrative Court and this violation was even
approved by the Appeal Court.
In the applicant company's view the binding character of the
Appeal Court's judgment of 20 May 1976 was not affected by the fact
that the Appeal Court, when rendering that judgment, itself considered
the relevant provisions of the Broadcasting Act as unconstitutional,
but nevertheless had to apply them as a declaration of unconstitutionality
could only be pronounced by the Federal Constitutional Court.
2. The applicant company was prevented by Article 132 para. 2 of
the Administrative Courts' Act (Verwaltungsgerichtsordnung) from
raising constitutional issues in its appeal against the refusal, in
the judgment of the Administrative Court of Appeal of 7 October 1982,
of leave to file a further appeal on points of law.
3. There was no basis in law for a constitutional complaint to
the Federal Constitutional Court, either against the judgment of the
Administrative Court of Appeal of 7 October 1982 or against the
decision of the Federal Administrative Court of 23 December 1983. The
violation of the principle of res judicata, complained of by the
applicant company, was an issue of ordinary and not of constitutional
law (cf. Article 121 of the Administrative Courts' Act). Moreover,
the Federal Constitutional Court had already ruled on the matter in
its judgment of 16 June 1981 and was itself bound by that judgment,
cf. Article 31 of the Act on the Federal Constitutional Court and
Article 565 No. 2 of the Code of Civil Procedure
(Zivilprozessordnung).
4. The applicant company accepts that the defendant State should
be given the opportunity of having possible violations of the law
examined by domestic authorities and of remedying them, if necessary,
before being called to account by an international instance (No.
9578/81, Dec. 7.12.82, D.R. 31 pp. 217/218 = EuGRZ 1983 p. 559). In
its view, however, this rule was fully observed in the present case,
where the matter was first raised with the Land Government, then
before the Administrative Court, the Administrative Court of Appeal,
the Federal Constitutional Court, again before the Administrative
Court of Appeal, with the Land Government, before the Administrative
Court, the Federal Constitutional Court, and finally before the
Administrative Court, the Administrative Court of Appeal and the
Federal Administrative Court. The applicant company was not required
to exhaust any further remedies which could not be considered as
effective. To plead non-exhaustion of domestic remedies, after
proceedings which lasted fifteen years, means to obstruct the
application of the Convention.
THE LAW
The applicant company complains:
- under Articles 10 and 14 (Art. 10, 14) of the Convention that its attempts to
obtain a broadcasting licence in the Saarland remained unsuccessful, and
- under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the
relevant domestic proceedings.
I. As to Article 10 (Art. 10) and to the "fair hearing" clause in
Article 6 para. 1 (Art. 6-1)
1. Article 10 para. 1 (Art. 10-1) of the Convention provides:
"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
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises."
In its complaint under Article 10 (Art. 10) the applicant company also
relies on the judgment of the Administrative Court of Appeal of
20 May 1976 and on the principle of res judicata. In its examination
of this aspect of the complaint the Commission has had regard to
Article 6 para. 1 (Art. 6-1) of the Convention, in so far as it concerns the
right to a fair hearing.
2. The Government submit with regard to the applicant company's complaint
under Article 10 (Art. 10) that the relevant domestic proceedings, in so far as
they took place before the judgment of the Administrative Court of Appeal of 20
May 1976, were concluded by that judgment "with final and binding effect". The
applicant company, agreeing that the above judgment acquired the force of res
judicata in 1976, states that it does not complain of the said judgment.
The Commission observes that the present application was
introduced on 3 December 1981, that is five-and-a-half years after the
above final decision. The Commission is thus in any case prevented, by the six
months' rule laid down in Article 26 (Art. 26) of the Convention, from
considering, in its examination of the applicant company's complaint under
Article 10 (Art. 10), the domestic proceedings which took place before 20 May
1976 and the compatibility, with Article 10 (Art. 10), of the final judgment of
the Administrative Court of Appeal of 20 May 1976.
3. With regard to the subsequent domestic proceedings and
decisions, the Commission has first noted that the applicant company,
relying on the judgment of 20 May 1976 as a final and binding
decision, complains of a violation of the principle of res judicata.
The parties agree that this is an issue of ordinary and not of
constitutional law. They disagree on the conclusions to be drawn, as
to the applicant company's claim for a broadcasting licence, from the
said judgment, seen in the light of the subsequent judgment of the
Federal Constitutional Court of 16 June 1981 and of various provisions of
ordinary German law, including Article 79 of the Act on the Federal
Constitutional Court.
The Commission here recalls, with regard to the domestic
decisions which in the applicant company's view violate the principle
of res judicata, that, in accordance with Article 19 (Art. 19) of the
Convention, the Commission's only task is to ensure the observance of
the obligations undertaken by the Parties in the Convention. In
particular, the Commission is not competent to deal with a complaint
alleging that errors of ordinary law have been committed by domestic
authorities, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its
constant jurisprudence (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;
No. 8417/78, Dec. 4.5.79, D.R. 16 pp. 200 (207); No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45; No. 10000/82, Dec. 4.7.83, D.R. 33 pp.
247, 255/256).
The Commission has examined the applicant company's
submissions, concerning the alleged violation of the principle of res
judicata, in the light of the relevant statements in the court
decisions complained of, and of the Government's submissions on this
issue. It finds no appearance of a violation of the Convention and in
particular, even assuming that a "civil right" was at issue, of the
fair hearing clause in Article 6 para. 1 (Art. 6-1).
It follows that the applicant company's complaint, concerning
its unsuccessful attempts to obtain a broadcasting licence, is
manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention, in so far as it is based on the judgment of the
Administrative Court of Appeal of 20 May 1976 and on the principle of
res judicata.
4. The Commission, recalling that the parties accept the judgment
of 20 May 1976 as final and binding, and that the Commission is
prevented by the six months' rule from examining its conformity with
the Convention (cf. 2 above), notes that, in this judgment, the
Administrative Court of Appeal dismissed the applicant company's claim
for a broadcasting licence, in so far as it was based directly on
Article 5 of the Basic Law.
5. In respect of the subsequent proceedings and decisions the
Government, invoking Article 26 (Art. 26) of the Convention, also rely on the
rule requiring the exhaustion of domestic remedies. They submit in
particular that the applicant company failed duly to exhaust two
domestic remedies: appeal against the refusal, in the judgment of the
Administrative Court of Appeal of 7 October 1982, of leave to appeal
on points of law, and constitutional complaint. The Commission does
not find it necessary to examine the question, disputed between the
parties, whether the applicant company has duly availed itself of the
first of these remedies as it is clear that is has not brought a
constitutional complaint and therefore failed to comply with Article
26 (Art. 26).
The parties agree that, in cases concerning the Federal
Republic of Germany, the constitutional complaint to the Federal
Constitutional Court, for matters within the competence of that Court,
is a domestic remedy which in principle must be exhausted; this is
confirmed by the case-law of the Convention organs (cf. No. 1086/81,
Dec. 9.3.62, Collection 9 pp. 11, 15 with further references; No.
5172/71, Dec. 9.7.73, Collection 44 p. 125; Eur. Court H.R.,
Glasenapp judgment of 28 August 1986, Series A No. 104, paras. 44/45).
The applicant company submits, however, that Article 26 (Art. 26) of the
Convention does not require the exhaustion of remedies which cannot be
considered as effective and that, in the circumstances of the present
case, a constitutional complaint would not have constituted an
effective remedy. The case had previously been before the Federal
Constitutional Court on two occasions, and an obligation to have
recourse to that Court a third time would amount to refusing access to
the Convention organs.
The Commission notes that the Federal Constitutional Court,
when acting in this case for the first time in its decision of 24 March
1976 (BVerfGE 42, 42), declared inadmissible the request of the
Administrative Court for a ruling under Article 100 of the Basic Law.
It is clear that this procedural ruling did not deal with the
applicant company's entitlement, if any, under Article 5 of the Basic
Law. The applicant company's argument that a constitutional complaint
would have been ineffective can therefore not be based on this ruling.
The Commission further notes that the Federal Constitutional
Court, when acting in this case for the second time in its judgment of
16 June 1981 (BVerfGE 57, 295), declared unconstitutional, and
therefore null and void, the relevant provisions of the Saarland
Broadcasting Act of 1967. However, the Court then saw "no need for a
decision on the issue - dealt with in the written and oral submissions
- of a basic right to organise private radio broadcasts" (loc. cit. p.
318).
The applicant company's argument, that a constitutional
complaint would have served no purpose, is nevertheless mainly based
on the above judgment of the Federal Constitutional Court.
The Commission accepts that a constitutional complaint by the
applicant company, alleging a violation of the principle of res
judicata, would indeed not have offered any prospects of success.
However, it has already found that the applicant company's complaint
is manifestly ill-founded, in so far as it is based on this principle
(see 3 above).
The Commission next notes the holding, in the Federal
Constitutional Court's judgment of 16 June 1981, that, under Article 5
of the Basic Law, private broadcasting can only be licensed on the
basis of specific legislation guaranteeing the freedom of broadcasting.
The Commission concludes from this that a constitutional complaint by
the applicant company would have offered little prospect of success if
its subject-matter had been a claim to a broadcasting licence based
directly on Article 5 of the Basic Law, in the absence or irrespective
of implementing legislation as required in the above judgment. The
Commission recalls, however, that such a claim by the applicant
company was already dismissed in the judgment of the Administrative
Court of Appeal of 20 May 1976, that the applicant company accepts
this judgment as binding, and that the Commission is in any case
prevented by the six months' rule from examining the compatibility of
this judgment with the Convention (see 4 above).
It remains to be examined whether a constitutional complaint by
the applicant company would also have served no purpose if it had been
based on an alleged failure of the Saarland legislature to enact a new
Broadcasting Act. The Commission notes that both the Administrative
Court (at page 33 of its judgment of 13 November 1981) and the
Administrative Court of Appeal (at page 26 of its judgment of 7 October
1982), when considering the applicant company's submission that the
Land was under a constitutional obligation to enact new broadcasting
legislation, referred to the possibility of a constitutional
complaint.
The applicant company argues that a constitutional complaint
to the Federal Constitutional Court, alleging a failure to legislate,
would not have offered any prospect of success in 1984. But this
submission is not supported by any reference to relevant previous
case-law of the Federal Constitutional Court. In particular, no
conclusion to this effect can be drawn from the Court's procedural
ruling of 24 March 1976, or from its judgment of 16 June 1981
declaring unconstitutional the relevant provisions of the Saarland
Broadcasting Act of 1967.
In any case, it is not for the Commission to rule on that
question - which has not yet been settled in German law - but the
Commission is obliged to confine itself to recording that the
applicant company has not clearly established that it was impossible
for it to appeal to the Constitutional Court on the grounds of an
alleged violation of the constitutional duty, under Article 5 (Art. 5) of the
Convention, to enact a new broadcasting act (cf. mutatis mutandis No.
712/60, Dec. 16.12.61, Collection 8 pp. 29, 41 = Yearbook 4 pp. 384,
406).
Having found that the applicant company has failed to show
that domestic remedies have been exhausted, the Commission concludes
that this part of the application must be declared inadmissible under
Article 27 para. 3 (Art. 27-3) of the Convention.
The Commission is therefore not called upon to examine the
substance of the applicant company's claim, i.e. the alleged right,
under Article 10 (Art. 10) of the Convention, to a broadcasting licence in a
particular Land of the Federal Republic of Germany. The Commission
nevertheless observes that the applicant company, while claiming a
broadcasting licence in the Saarland, has failed to show that it has
sought a broadcasting licence in any of the other Länder of the
Federal Republic (such as Baden-Wuerttemberg, Rhineland-Palatinate and
Lower Saxony), where legislation concerning private broadcasting has
been enacted and where licences for private broadcasting have been or
are being granted.
6. The Commission further notes that, after the introduction of
the present application, the Diet of the Saarland adopted a new
Broadcasting Act which, in Part B, provides for private broadcasting.
The Commission does not find, as suggested by the Government, that,
with the adoption of this Act, the applicant company ceased to be a victim, in
the sense of Article 25 (Art. 25) of the Convention. It here notes the
applicant company's complaint that it has so far been prevented, by the Land
authority's failure to fix a period, under Article 39 para. 1 (Art. 39-1) of
the new Broadcasting Act, from seeking a licence under this Act.
However, also in respect of this complaint, the Commission is
not called upon to examine the substance of the applicant company's
claim under Article 10 (Art. 10) of the Convention, as domestic remedies have
again not been exhausted. The Commission here recalls that, in 1971,
the applicant company brought proceedings before the Administrative
Court, complaining that the Land Government had failed to act under
the Broadcasting Act of 1967, and that this action (Untätigkeitsklage)
was admitted and examined as to its merits by the Court. The applicant
company has failed to show, with respect to the present complaint,
that an administrative court action, complaining of the Land
Authority's failure to fix a period for applications for broadcasting
licences under Article 39 of the Broadcasting Act of 1984, would have
offered no prospects of success. Nor has it been established that a
constitutional complaint, after unsuccessful administrative court
proceedings, would have served no purpose.
7. The Commission therefore concludes that the applicant
company's complaint under Article 10 (Art. 10) of the Convention is
inadmissible, under Article 27 para. 3 (Art. 27-3) read in conjunction with
Article 26 (Art. 26) of the Convention, for non-exhaustion of domestic
remedies, both as regards the proceedings which were concluded by the decision
of the Federal Administrative Court of 23 December 1983 and as regards the Land
Authority's failure to implement the Broadcasting Act of 1984.
II. As to Article 14 (Art. 14)
The Commission, recalling the conclusions reached under I
above, finds no issue under Article 14 (Art. 14) of the Convention.
III. As to Article 6 (Art. 6)
1. The applicant company also complains, under Article 6
para. 1 (Art. 6-1) of the Convention, of the length of the domestic proceedings
concerning its claim for a broadcasting licence under the Act of 1967.
Article 6 para. 1 (Art. 6-1) provides, inter alia, that, in the
determination of his civil rights, everyone is entitled to a hearing
within a reasonable time by a tribunal. The applicant company submits
that the above domestic proceedings concerned a "civil right" within
the meaning of this provision.
The Commission finds that it is not called upon to determine
this question. Even assuming that a "civil right" of the applicant
company was at issue, the Commission, for the reasons stated below,
sees no basis for a finding of a violation of Article 6 para. 1 (Art. 6-1).
2. The Commission first observes in this respect that it is not
competent to examine the applicant company's complaint under Article 6 para. 1
(Art. 6-1) with regard to the domestic proceedings which led to the
determination of the applicant company's first action by the judgment of the
Administrative Court of Appeal of 20 May 1976. It here recalls that the said
judgment became final in 1976 and further refers to the finding (under I, 2
above) that the present application was introduced after the expiry fo the six
months' time-limit as regards this final decision.
3. As regards the subsequent proceedings, which led to the
decision of the Federal Administrative Court of 23 December 1983, the
Commission finds that a distinction must be made between the
proceedings before the administrative courts and those before the
Federal Constitutional Court. It here notes the Federal
Constitutional Court's statement that proceedings under Article 100 of
the Basic Law "serve the constitutional court's guarantee that
objective law shall be observed" and that they "are not an instrument
for the individual to obtain a legal remedy" (BVerfGE 42, 90/91). The
Commission therefore finds that, in the present case, the proceedings
before the Federal Constitutional Court, which lasted from 29 November
1978 until 16 June 1981, did not involve the "determination" of civil
rights of the applicant company. It concludes that the applicant's
complaint, concerning the length of the proceedings as a whole, is
incompatible with Article 6 (Art. 6), in so far as it refers to the above
proceedings before the Federal Constitutional Court.
It follows that two periods remain for consideration under Article 6
para. 1 (Art. 6-1) - one of two years and one month (between the refusal of a
licence by the Land Government on 26 October 1976 and the decision of the
Administrative Court of Appeal of 29 November 1978 dismissing the applicant
company's appeal against the Administrative Court's decision of 21 August 1978
to bring the matter again before the Federal Constitutional Court) and one of
two-and-a- half years (between the judgment of the Federal Constitutional Court
of 16 June 1981 and the decision of the Federal Administrative Court of 23
December 1983).
The Commission notes that, during the first period, the case
was considered by the Administrative Court and the Administrative
Court of Appeal and that extensive written and oral proceedings took
place. During the second period the case was again considered, in the
light of the new legal situation created by the judgment of the
Federal Constitutional Court, by the Administrative Court, the
Administrative Court of Appeal and the Federal Administrative Court,
and extensive written and oral proceedings took place again. The
Commission moreover observes that the case was of considerable
complexity.
In these circumstances the Commission does not find that the
above periods were unreasonably long. It concludes that an
examination of the applicant company's complaint under Article 6
para. 1 (Art. 6-1), on the assumption that a "civil right" was involved in the
domestic proceedings, discloses no appearance of a violation of this
provision in the relevant proceedings. It follows that this complaint is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)