AS TO THE ADMISSIBILITY OF
Application No. 12576/86
by Roy GASPER and Lars-Erik HJELM
against Sweden
The European Commission of Human Rights sitting in private
on 11 July 1988, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 June 1986 by
Roy GASPER and Lars-Erik HJELM against Sweden and registered on
1 December 1986 under file No. 12576/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the applicants, may be summarised
as follows.
The first applicant, Mr. Gasper, was born in 1940 and is
resident at Åkarp. The second applicant, Mr. Hjelm, was born in 1935
and is resident at Malmö. Both applicants are Swedish citizens. They
are taxi owners and members of the ROYSTAXI Economic Association.
Before the Commission the applicants are represented by Mr. Göran
Ravnsborg, a university lecturer at Lund.
According to Chapter 2 Section 1 of the 1979 Act on
Commercial Transportation (yrkestrafiklagen) commercial transportation
of passengers may only be conducted on the condition that a licence
has been granted. A licence to run a taxi business is issued by the
County Administrative Board (länsstyrelsen) and is limited to a
specific transportation zone. The licence-holder is allowed to
operate everywhere in or outside his transportation zone on orders
received within this zone. Outside the zone he is allowed only to
accept orders which involve taking the passenger back to, or in the
direction back to, his transportation zone. He is obliged to bring
the vehicle back to his transportation zone as soon as possible.
Exceptions to this rule, which is laid down in Chapter 4 Section 7 of
the 1979 Ordinance on Commercial Transportation (yrkestrafikförordningen),
may be granted by the County Administrative Board if it is needed in
order to satisfy a temporary need for transportation of passengers.
The Act and the Ordinance entered into force on 1 January
1980. Before that date commercial transportation was regulated by the
1940 Royal Decree on Commercial Automobile Traffic. The Decree
contained provisions concerning commercial transportation of
passengers similar to those mentioned above, one difference being that
the County Administrative Board could issue exemptions from the
provisions of the Decree valid for a long period of time or until
further notice.
In the Malmö transportation zone there are about 220 licences.
ROYSTAXI has four of these and the members of Malmö Taxi Economic
Association (MTEA) have the remaining licences.
As a result of the opening of Sturup International Airport,
situated outside the Malmö transportation zone, the County
Administrative Board of Malmöhus County decided on 24 November 1972
that as from 1 December 1972 and until further notice MTEA, at that
time the only transport organisation in Malmö, as well as each member
of MTEA, were exempted from the then applicable provisions in the 1940
Decree. Accordingly, taxi drivers of MTEA were able to operate freely
from Sturup Airport. On 28 June 1973 the County Administrative Board
granted MTEA continued exemption, until further notice, from the said
rule.
In the summer of 1981 the applicants together with some other
taxi owners founded a new taxi organisation, the ROYSTAXI Economic
Association. The applicants resigned from MTEA on 31 December 1980
and 31 December 1981 respectively.
The applicants together with another member of ROYSTAXI,
Mr. Stig Nissen, on 7 December 1981 requested that they be granted
exemption from the provisions of Chapter 4 Section 7 of the Ordinance
on Commercial Transportation until further notice so as to enable them
to operate taxi traffic at Sturup Airport.
On 9 March 1982 the County Administrative Board refused to
grant the exemption requested. The Board declared, with reference to
the 1979 Ordinance, that it had competence to issue exemptions for
temporary needs only and that there was no temporary need.
In 1983 a joint stock company (Malmöhus läns taxiservice AB)
was founded. It was planned to have all the taxi economic
associations within the Malmöhus County as its shareholders. When
negotiating with ROYSTAXI and MTEA on co-operation the company
requested a permit for its associates to operate taxi traffic at
Sturup Airport.
On 5 October 1983 the County Administrative Board decided that
all the licence-holders in the County, who through their association
or in another way were joint owners of the company, could operate
from Sturup Airport taxi zone. The same right was given to the
licence-holders affiliated to the common dispatch exchange in the
Malmö zone.
Mr. Gasper and Mr. Hjelm did not subscribe to the common
dispatch exchange, nor did Mr. Nissen, since only members of MTEA
could subscribe to it.
The three of them appealed to the Board of Transport
(transportrådet) requesting that they be included in the decision on
the taxi traffic at Sturup Airport or, alternatively, that all the
licence-holders of the Malmö traffic zone be included. The Board of
Transport returned the appeal to the County Administrative Board since
the requests of the applicants and Mr. Nissen had not been dealt with
by that Board. On 2 March 1984 the County Administrative Board
decided that the applicants as well as Mr. Nissen were entitled to
operate in the Sturup Airport traffic zone.
However, in the meantime, the applicants had been prosecuted
for having on 28 July 1982 and 2 October 1982 respectively operated
transportation of passengers at Sturup International Airport. They
were convicted of violation of the Ordinance on Commercial
Transportation by the District Court (tingsrätten) of Trelleborg on
10 October 1983 and sentenced to a fine.
The convictions were upheld by the Court of Appeal (hovrätten)
for Scania (Skåne) and Blekinge on 2 February 1984. The applicants
appealed unsuccessfully to the Supreme Court (högsta domstolen) which
on 4 April 1986 refused to grant leave to appeal.
COMPLAINTS
The applicants complain that they have been discriminated
against as a result of the decision by the Public Prosecutor to
institute criminal proceedings against the applicants and their
associates in ROYSTAXI and not against any of the members of MTEA.
The decision of the County Administrative Board of 28 June 1973 had
become null and void by 1 January 1980, due to the fact that the 1979
Ordinance, that entered into force on that date, did not allow
exemptions from its provisions for long periods or until further
notice. The applicants consider that also the operating of taxi
traffic from Sturup International Airport by MTEA was illegal.
Alternatively, the applicants claim that they had a legal right to
operate from Sturup International Airport at the time of the
prosecution since the exemption granted by the County Administrative
Board on 28 June 1973 was still valid for licence-holders irrespective
of their resignation from MTEA.
The applicants allege that the decisions complained of also
violated their rights to negative freedom of association and that this
violation caused discrimination and infringements of their rights to
peaceful enjoyment of their possessions, since it became difficult for
them to retain their passengers. They also submit that the fine which
was imposed on them violated their right to peaceful enjoyment of
possessions.
The applicants invoke Articles 11 and 14 (Art. 11, Art. 14) of the
Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.
THE LAW
The applicants complain of being victims of discrimination,
in that they and their associates in ROYSTAXI and no one from MTEA
were prosecuted for and convicted of offences allegedly committed by
the taxi owners, who were members of MTEA, since the licences granted
to MTEA members were illegal. The applicants submit that they have
also as a result of the prosecution and conviction been victims of a
breach of their right to negative freedom of association. They invoke
Articles 11 and 14 (Art. 11, Art. 14) of the Convention.
The Commission notes that the applicants' complaints are
directed against their prosecution and subsequent conviction by the
District Court, as finally confirmed by the Supreme Court on 4 April
1986. The Commission observes that the Swedish courts, which
convicted the applicants of violation of the Ordinance on Commercial
Transportation, had no competence to decide on anything but the
criminal charge against the applicants. They were not competent to
pronounce any opinion on whether other persons had committed similar
offences, whether the applicants ought to have been granted licences
to operate at Sturup Airport or whether they had been discriminated
against as a result of the granting of licences to other taxi drivers
or in any other respect.
The Commission recalls in this context that there is no right
under the Convention to have criminal proceedings instituted by the
State against other persons.
The Commission notes that the conviction of the applicants was
based on the fact that they did not have the requisite licence to
operate traffic at Sturup Airport. There is no indication that the
prosecution and conviction of the applicants for having illegally
operated taxi traffic at Sturup International Airport were as such
based on their membership in ROYSTAXI or on their not being members of
MTEA. The applicants' allegation that Swedish law has been violated by
granting the exemption to MTEA members is unsubstantiated.
Accordingly there is no appearance of a violation of the
applicants' right to freedom of association under Article 11 (Art. 11) or of
the prohibition of discrimination in Article 14 (Art. 14) of the Convention.
The Commission finds no issue under Article 1 of Protocol No.
1 (P1-1) to the Convention.
It follows that the application 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. KRUGER) (C.A. NØRGAARD)