NEDERLANDSE OMROEPPROGRAMMA STICHTING v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 16844/90

                      by NEDERLANDSE OMROEPPROGRAMMA STICHTING

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 Mr.  K. ROGGE, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 31 May 1990 by

NEDERLANDSE OMROEPPROGRAMMA STICHTING against the Netherlands and

registered on 10 July 1990 under file No. 16844/90;

      Having regard to the observations submitted by the respondent

Government on 21 January 1993 and the observations in reply submitted

by the applicant on 3 May 1993;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, the Netherlands Broadcasting Programme Foundation

(Nederlandse Omroepprogramma Stichting), is a non-profit co-operative

organ of broadcasting institutions in the Netherlands.  Its registered

seat is in Hilversum, the Netherlands.  Before the Commission the

applicant is represented by Mr. E.J. Dommering, a lawyer practising in

The Hague.

      The facts of the case, as submitted by the parties, may be

summarised as follows.

      One of the applicant's tasks is to produce and broadcast certain

collective programmes of a general interest, such as, inter alia, daily

news broadcasts and sport programmes.

      On 14 May 1988 in the applicant's broadcast "News for young

people" (Jeugdjournaal), which aims at an audience between 9 and 12

years old, a programme was presented regarding holiday resorts and

young people, in which a holiday at a "Centreparcs" resort where

specifically organised activities are proposed was set out against a

holiday at a camping site where no specifically organised activities

are proposed.  The item included a short impression of a "Centreparcs"

resort and a camping, an interview with the managers of both places and

a discussion between two children who habitually pass their holiday in

either one of these places. In the presentation of this programme the

name "Centreparcs", the exploiting company, was mentioned several

times.

      On  16 July 1988 the applicant broadcast its programme "Klokhuis"

on everyday issues, which aims at an audience between 9 and 13 years

old.  In the context of a feature on the recycling of glass, a sketch

was presented, in which someone drank "Coca-Cola" from several small

returnable bottles simultaneously through straws expressing the

intention to buy a bag of "Wokkels", a savoury snack, with the deposit

money to be received upon the return of these bottles to the shop. In

the course of this sketch the names of "Coca-Cola" and "Wokkels" were

mentioned several times and "Coca-Cola" bottles were visible during

almost the entire duration of the sketch.

      By letter of 15 August 1988 the Commissariat for the Media

(Commissariaat voor de Media) informed the applicant that it intended

to impose a sanction on the applicant, as it considered these and

certain other broadcasts, in view of the extensive attention given to

"Centreparcs", the lengthy display of "Coca-Cola" bottles and the

repetitive mention of "Wokkels", to be in violation of Section 52 of

the Media Act (Mediawet), which, inter alia, provides that broadcasts

must not contain direct or indirect commercial publicity unless

authorised under the Media Act or unavoidable.

      Following a hearing and after having considered advice of the

Commission of Experts (Deskundigen Commissie), the Commissariat for the

Media, on 11 November 1988, imposed a fine of 8,000 guilders for the

news broadcast and a fine of 7,000 guilders for the "Klokhuis"

broadcast on the applicant for having violated Section 52 of the Media

Act.

      The applicant's appeal under the Administrative Decisions Appeals

Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen) to the

Judicial Division of the Council of State (Afdeling Rechtspraak van de

Raad van State) against the two fines was rejected on 5 December 1989.

      Insofar as the applicant invoked Article 6 of the Convention, the

Judicial Division held that this provision requires that a sanction

imposed must be proportionate to the committed offence. Noting that the

fines were set at 10% of the normal amounts, as it was the first time

the applicant was fined in this respect, the Judicial Division did not

consider the fines to be disproportionate to the offence.

      Concerning the applicant's complaint under Article 10 of the

Convention, the Judicial Division held that a prohibition on commercial

publicity constituted a condition for a broadcasting licence within the

meaning of the last sentence of Article 10 para. 1 of the Convention

and that, therefore, this prohibition did not contravene Article 10.

      The Judicial Division added, however, that the authorities in

this respect do not enjoy an unlimited freedom, as in view of Articles

14, 17 and 18 of the Convention, the use of a licence system should not

give rise to arbitrariness, discrimination, unnecessary restrictions

or abuse of power. It should be subject to supervision by an

independent and impartial judge or administrative appeal organ.  The

Judicial Division considered that the rules at issue complied with

these requirements.

      In respect of the applicant's complaint under Article 14 of the

Convention that the restrictions imposed on Dutch broadcasting

institutions are more severe than those of foreign broadcasting

institutions whose programmes can be received in the Netherlands, the

Judicial Division considered that the Netherlands authorities cannot

control restrictions imposed on foreign broadcasting institutions. The

Judicial Division, therefore, rejected the argument that Article 14 was

violated.

RELEVANT DOMESTIC LAW

      The task of the Dutch Broadcasting Programme Foundation is set

out in Section 16 para. 2 of the Media Act, which provides, inter alia:

      "Apart from other tasks of the Foundation under this Act,

      it is entrusted with:

      a.  the co-ordination of the programmes of the institutions

          which have obtained broadcasting time for national

          broadcasts;

      b.  the producing and broadcasting of a programme;"

      Section 40 para. 1 of the Media Act provides, inter alia:

      "1. The Commissariat for the Media allocates [...]

      broadcasting time to broadcasting institutions, [...] and

      the Foundation on the understanding that [...]

      c.  the Foundation will be allocated twice as much

          broadcasting time for television broadcasts as a

          broadcasting institution A [...]."

      Section 51 of the Media Act provides, inter alia:

      "1.  The Foundation uses the broadcasting time, allocated

      in accordance with Section 40 para. 1, for national

      broadcasts entirely for a collective programme.

      2.  The programme consists of items, which satisfy existing

      social, cultural, religious or spiritual needs of the

      people, which needs are insufficiently met by programmes of

      other institutions, which have broadcasting time [...].

      3.  Apart from the items mentioned under para. 2 the

      programme includes items pre-eminently suitable for a

      collective production.  To this category belong those

      programme items, which require a high frequency and set

      regularity of broadcasting, which are of a general service

      nature [...]."

      Section 50 para. 6 of the Media Act, insofar as relevant,

provides:

      "The television and radio advertising association

      (Stichting Etherreclame) uses its broadcasting time for a

      programme consisting of commercials offered by third

      parties. (...). The programme of the television and radio

      advertising association is as such recognisable and clearly

      distinct from programmes of other institutions having

      obtained broadcasting time."

      Section 52 paras. 1 and 2 of the Media Act provide as follows:

      "1. The programmes of institutions which have obtained

      broadcasting time will not contain any commercial publicity

      unless this is explicitly allowed under this Act.

      2.  Furthermore the programmes referred to in para. 1 do

      not contain other commercial utterances unless this is

      unavoidable.  It can be determined by Order in Council

      (algemene maatregel van bestuur) in which cases a

      commercial utterance in a programme can be considered as

      being unavoidable, as well as when it is permitted that

      programmes contain commercial utterances."

      Section 1 of the Media Act, insofar as relevant, provides as

follows:

      "1. (...)

      r.   commercials (reclameboodschappen): communications

      which unmistakably aim at encouraging the public to

      purchase a particular product or use a particular service,

      or at giving it a favourable image of a particular company,

      branch of industry of institution in order to promote the

      sale of products or the use of services;

      s.   commercial utterances (reclame-uitingen): commercials

      and other utterances which unmistakably result in the

      public being encouraged to buy a particular product or to

      use a particular service, or being given a favourable image

      of a particular company, branch of industry or institution

      so that the sale of products or the use of services will be

      promoted.

      2.   The calling for support for or the giving of a

      favourable view to institutions with a scientific,

      cultural, spiritual, religious, political or charitable

      character is not considered as a commercial or other

      commercial utterance, insofar as it does not refer to

      buying a certain product or the use of a particular service

      which can be obtained at the commercial market."

      The Order in Council of 19 November 1987 implements the general

rules of the Media Act. Sections 26 up to and including 32 of this

Media Decree (Mediabesluit) deal with direct or indirect commercial

publicity within the meaning of Section 52 of the Media Act.

      The Media Decree rules divide such publicity in unavoidable

publicity, being, generally speaking, commercial utterances belonging

to the normal street scene and which occur unintentionally and without

emphasis for some seconds in a programme, and avoidable publicity, the

latter category being either permitted under certain conditions in

educational, informative or sport programmes, or not permitted.

      Section 134 of the Media Act entrusts the supervision of the

observance of the Media Act to the Commissariat of the Media. Section

135 of the Media Act entitles the Commissariat to impose an

administrative fine of up to 200,000 Dutch guilders per offence for the

non-observance of, inter alia, Section 52 of the Media Act.

      Under Section 137 of the Media Act such a fine can be collected

either by way of an enforcement order (dwangbevel) or by way of

deducing the amount of the fine from the compensation paid by the

Commissariat of the Media to broadcasting institutions for the costs

of radio and television facilities.

COMPLAINTS

1.    The applicant complains under Article 10 of the Convention that

its right to freedom of expression has been unjustly interfered with.

It submits that the rules of the Media Act on indirect commercial

publicity lack both clarity and precision, that the interference with

its right to freedom of expression lacks a legitimate aim and that it

was not necessary in a democratic society.

2.    The applicant complains under Article 14 of the Convention in

conjunction with Article 10 that regulations on broadcasting

institutions imposed by the Dutch authorities are more stringent than

those imposed by authorities over foreign broadcasting institutions

whose broadcasts can be received in the Netherlands.

3.    The applicant complains under Article 6 para. 1 of the Convention

that the criminal charge against it was determined by the Commissariat

for the Media, which is not an independent and impartial tribunal.  The

applicant submits in particular that the Commissariat for the Media

does not only impose a sanction, i.e. a fine, but also immediately

executes this sanction, whereas an appeal to a judicial authority has

no suspensive effect.

4.    The applicant complains under Article 6 para. 2 of the Convention

that the words "until proved guilty according to law" imply the

principle that a prosecuting authority carries the burden of proof in

respect of the facts with which an accused is charged, in the present

case, whether the commercial utterances were conducive to the sale of

the products at issue.  The applicant complains that this proof was not

required in the present proceedings.

5.    The applicant finally complains under Article 6 para. 3 (a) of

the Convention that the charges against it lacked both clarity and

precision as it could not be established from the charges against it

which part of the broadcasts was considered to constitute an offence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 31 May 1990 and registered on

10 July 1990.

      On 14 October 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

      The Government's observations were submitted on 21 January 1993

and the applicant's observations in reply were submitted on 3 May 1993.

THE LAW

1.    The applicant complains under Article 10 (Art. 10) of the

Convention that its right to freedom of expression has been unjustly

interfered with by the imposition of a fine in respect of two of its

broadcast programmes.

      Article 10 (Art. 10) of the Convention reads 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

      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

      (...) for the prevention of disorder (...), for the

      protection of the (...) rights of others (...)."

      The Government submit that the legal framework of the Dutch

broadcasting system is based on the principles of openness, diversity,

non-commerciality and co-operation. Under the Media Act the currently

eight Dutch broadcasting institutions are bound by several constraints,

among which the obligation to eschew advertising. They are allocated

national broadcasting time by the Commissariat for the Media, which

also allocates time to a number of educational institutions, political

parties and other groupings, such as organisations based on religious

or other philosophical principles, thereby guaranteeing a programming

schedule which permits the various shades of political, social and

religious or philosophical opinions in the Netherlands full expression.

      The Government state that under the Media Act only the television

and radio advertising association "STER" (Stichting Ether Reclame) is

allowed to broadcast commercials. The "STER" does not produce the

commercials itself, but merely provides for the transmission of

commercials offered by third parties. Its revenue is passed on to the

Government, which uses it to defray the costs of implementing the Media

Act.

      The Government observe that the requirement under the Media Act,

that advertising shall be clearly distinguishable as such and separate

from other programmes, is also laid down in Directive no 89/552/EEC of

3 October 1989 of the Council of the European Communities and the

European Convention on Transfrontier Television of 5 May 1989 of the

Council of Europe, given that throughout Europe advertising is becoming

an increasingly important source of financing for broadcasting

organisations.

      The Government are of the opinion that Article 10 (Art. 10) of

the Convention does not include the right to introduce surreptitious

advertising in programmes such as news broadcasts. The right to provide

and disseminate information does not confer a general right of access

to broadcasting time on radio and television. The Government consider

that the Netherlands' choice for a system in which a licence for

broadcasting commercials is exclusively granted to the "STER" is in

accordance with the aim contained in the third sentence of para. 1 of

Article 10 (Art. 10) of the Convention. Therefore, not to permit an

unexpected appearance of advertising as an integral part of a programme

by another broadcasting institution than the "STER" does not constitute

an interference with the right to freedom of expression.

      The Government, alternatively, argue that, if the measure

complained of should be regarded as an interference with the

applicant's rights under Article 10 (Art. 10) of the Convention, the

interference must be considered as being justified under para. 2 of

this provision as being prescribed by law and necessary in a democratic

society for the prevention of disorder and for the protection of the

rights of others, namely the rights of the general public - in

particular the vulnerable category of young people -, who must be

protected from misleading practices, the rights of other broadcasting

institutions subject to the same rules and the rights of other

advertisers. According to the Government the protection of third

parties also includes the promotion of pluralism in respect of

information.

      The Government submit that both the Media Act and the Media

Decree are accessible to all, that their rules are sufficiently clear

and precise and that the consequences of their rules are readily

foreseeable, in particular having regard to the legal and technical

expertise the restricted group of broadcasting institutions in the

Netherlands may be expected to have. The Government admit that the

rules of the Media Act and the Media Decree sometimes need

clarification, but do not consider that the fact that legislation needs

interpretation is contrary to the Convention.

      Having regard to their margin of appreciation the Government are

of the opinion that the interference complained of is proportionate to

the legitimate aim pursued. The restrictions on advertising contained

in the applicable rules do not deprive the broadcasting institutions

of the right to provide information. These rules do not regard the

contents of the information, but the way it is presented. The

programmes at issue were both recorded in advance and the emphatical

mention of "Centreparcs" and the focus on "Coca-Cola" and "Wokkels" was

unnecessary for the presentation of the programme items.

      The applicant points out that the Dutch rules on advertisement

are more strict than those set out in the European Convention on

Transfrontier Television in the sense that the former also prohibit

commercial utterances, which are very broadly defined. The applicant

submits that in its decision of 5 December 1989 the Judicial Division

of the Council of State extended this broad definition by considering

that a "sales-boosting" effect is already present if products or

services are shown or the name of a product or service is mentioned in

a broadcast. Under Dutch law a commercial utterance can be judged as

prohibited without any examination of the intention of the broadcasting

institution, the context in which the utterance was made and whether

or not a payment in money or kind was received in return.

      The applicant considers that the Dutch and the European rules on

surreptitious advertising are fundamentally different. The former

system drastically restricts the freedom of expression. Furthermore a

comparison with the systems used in other European States shows that,

contrary to the situation in the Netherlands, in general the monitoring

of surreptitious advertising in the public broadcasting service is left

largely to the broadcasting institutions themselves and that, where a

system provides the possibility to impose sanctions, sanctions are in

practice hardly ever imposed.

      The applicant refutes the Government's argument that there has

been no interference with its rights under Article 10 (Art. 10) of the

Convention, since the restrictive Dutch rules in respect of commercial

utterances directly interfere with the applicant's freedom of

expression. Referring to the Court's reasoning in the Barthold case

(Eur. Court H.R., judgment of 25 March 1985, Series A no. 90, paras.

42 and 55) and the dissenting opinion of Judge Martens, approved by

Judge Macdonald, in the case of Markt Intern Verlag Gmbh and Klaus

Beermann (Eur Court H.R., judgment of 20 November 1989, Series A no.

165), the applicant considers that the contents of the programmes at

issue cannot be regarded as constituting "advertisement" and that a

Contracting State's margin of appreciation in respect of commercial

utterances must be examined in the light of a European standard.

      The applicant further submits that directors, producers and

journalists of broadcasting institutions, when making programmes, are

either hampered in the exercise of their editorial freedom or risk

large fines when exercising this freedom as a result of the

inaccessibility and unpredictability of the criteria in the Dutch media

regulations. Producers do not have the time for repeated consultations

of specialised lawyers in order to prevent the imposition of large

fines, which entails the risk of self-censorship and results in

requesting the Commissariat for the Media's prior consent for

particular programme parts already during the production thereof.

      Under para. 2 of Article 10 (Art. 10-2) of the Convention, the

applicant submits that nothing in the draft history, text and practical

application of Dutch media regulations suggests that they seek to

protect consumers against misleading or deceptive practices and

companies against unfair competition. Furthermore, not the rules on

advertisement, but other Sections of the Media Act seek to guarantee

pluralism in the Dutch broadcasting system. The applicant finally

complains that it has not been examined in which context the utterances

were made, whether payment has been received in return and which impact

the utterances at issue had on the audience, and that the fines imposed

are disproportionate to the aim pursued.

      The Commission recalls at the outset that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, 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 (cf. No. 11941/86, Dec. 5.10.88, D.R. 57, p. 100).

      The Commission notes that the commercial utterances at issue were

made in the context of television programmes containing information of

a general nature and which were primarily aimed at a young audience.

Such programmes cannot be excluded from the scope of Article 10

(Art. 10) of the Convention, which does not apply solely to certain

types of information or ideas or forms of expression (cf. Eur. Court

H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 20

November 1989, Series A no. 165, para. 26).

      The Commission is of the opinion that the fines imposed for

having broadcast prohibited commercial utterances in the context of

informative television programmes constituted an interference with the

applicant's right under Article 10 para. 1 (Art. 10-1) of the

Convention. Such an interference is contrary to the Convention unless

it is "prescribed by law", has an aim or aims that is or are legitimate

under para. 2 of Article 10 (Art. 10-2) and is "necessary in a

democratic society" for the aforesaid aim or aims.

      As regards the condition "prescribed by law", the Commission

considers that the interference had a legal basis in Sections 1 and 52

of the Media Act and in Sections 26 to 33 of the Media Decree, which

indicate with sufficient clarity under which circumstances commercial

utterances can be regarded as permitted. Moreover, the mere fact that

a legislative provision may give rise to problems of interpretation

does not mean that it is so vague and imprecise as to lack the quality

of "law" (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51, p. 136).

      The Commission is satisfied that the texts of these provisions

were "adequately accessible" to the applicant (as to this criterion cf.

Eur. Court H.R., Sunday Times (No.1) judgment of 26 April 1979, Series

A no. 30, para. 49). As to foreseeability, the Commission considers

that the applicant, as a co-operative organ of broadcasting

institutions in the Netherlands, could reasonably foresee that the

utterances at issue might be considered as being contrary to the Media

Act and the Media Decree.

      The Commission accepts that the interference complained of

pursued a legitimate aim, in that it was intended to protect the rights

of others and, in particular, the right of children to be protected

against indirect advertisement in television programmes primarily aimed

at a young audience and the right of companies to be protected against

unfair competition.

      Finally the Commission must examine whether the interference

complained of was necessary in a democratic society. The Commission

recalls that the Contracting States have a certain margin of

appreciation in assessing the existence and extent of the necessity of

an interference, but this margin is subject to a supervision by the

Convention organs. The margin of appreciation is particularly important

in commercial matters and in an area as complex as that of unfair

competition, where the Convention organs must confine their review to

the question whether the measures taken on a national level are

justifiable in principle and proportionate (Markt Intern Verlag GmbH

and Klaus Beermann judgment, ibid., para. 33). The Commission considers

that the same principle applies in the present case concerning indirect

advertisement in television programmes.

      The Commission notes that the two programmes at issue were

prerecorded and concerned alternative possibilities to spend holidays

and information on the recycling of glass respectively. Although the

Commission finds nothing to suggest that the applicant was

intentionally seeking to promote "Centreparcs" resorts, "Coca-Cola" or

"Wokkels", it is of the opinion that, in view of the target audience

of these programmes, the specific position of the applicant in the

Netherlands broadcasting system and the respective amounts of the fines

imposed, the interference at issue cannot be said to be beyond the

Netherlands margin of appreciation or to be unreasonable or

disproportionate.

      The Commission, therefore, concludes that the interference

complained of was a measure prescribed by law and could reasonably be

considered as necessary in a democratic society for the protection of

the rights of others.

      It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicant further complains under Article 14 of the

Convention in conjunction with Article 10 (Art. 14+10) that regulations

on broadcasting institutions imposed by the Dutch authorities are more

stringent than those imposed by authorities on foreign broadcasting

institutions whose broadcasts can be received in the Netherlands.

      The Commission notes that the applicant seeks to compare its

situation with that of a foreign broadcasting institution which is

subject to the national laws of another country. The Commission does

not find that these two situations can be considered as being analogous

and, therefore, no question of discrimination within the meaning of

Article 14 (Art. 14) of the Convention arises in the present case (cf.

Eur. Court H.R., Van der Mussele judgment of 23 November 1983, Series

A no. 70, para. 46).

      It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant finally complains under Article 6 para. 1

(Art. 6-1) of the Convention that the criminal charge against it was

determined by the Commissariat for the Media, which is not an

independent and impartial tribunal. It also complains that the fines

imposed violated Article 6 para. 2 (Art. 6-2) of the Convention in that

the Commissariat for the Media does not have to prove that the

commercial utterances were in fact conducive to the sale of the

products at issue. The applicant finally complains under Article 6

para. 3 (a) (Art. 6-3-a) of the Convention that the charges against it

lacked both clarity and precision.

      Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

      "1.  In the determination of his civil rights and

      obligations or of any criminal charge against him, everyone

      is entitled to a fair (...) hearing (...) by an independent

      and impartial tribunal established by law. (...).

      2.   Everyone charged with a criminal offence shall be

      presumed innocent until proved guilty according to law.

      3.   Everyone charged with a criminal offence has the

      following minimum rights:

      a. to be informed promptly (...) of the nature and cause of the

      accusation against him;"

      The Government submit that Article 6 (Art. 6) of the Convention

does not apply to the proceedings at issue.

      The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention only applies to proceedings in which a "civil right or

obligation" or a "criminal charge" is determined. The applicant does

not rely on the notion of "civil right" and the Commission finds that

no "civil right" is at issue. It observes in this respect that

disciplinary proceedings may involve the determination of a civil

right, when such proceedings can lead to someone being deprived of his

right to exercise his profession (cf. No. 11504/85, Dec. 7.11.88, D.R.

58, p. 48 and No. 12458/86, Dec. 18.1.89, D.R. 59, p. 113). This

situation does not arise in the present case.

      The Commission does not find it necessary to resolve the question

whether or not the proceedings at issue concerned a determination of

a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention, as this part of the application is in any event

inadmissible for the following reasons.

      Assuming that the proceedings at issue involved a determination

of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention, the Commission notes that, under the Administrative

Decisions Appeals Act, the applicant could, and in fact did, file an

appeal with the Judicial Division of the Council of State, a judicial

organ the independence and impartiality of which is not contested by

the applicant.

      The Commission considers that where criminal charges have been

successively examined by different organs, Article 6 para. 1 (Art. 6-1)

does not necessarily demand that the first of them satisfies the

requirements of that provision (cf. mutatis mutandis, No. 111798/84,

Dec. 9.7.86, D.R. 48 p. 207). The Commission therefore finds that the

applicant's case was examined by an independent and impartial tribunal

as required by Article 6 para. 1 (Art. 6-1).

      The Commission does not find that the facts of the case raise an

issue under Article 6 para. 2 (Art. 6-2) of the Convention (cf., as

regards presumptions in criminal proceedings, Eur. Court H.R.,

Salabiaku judgment of 7 October 1988, Series A no. 141-A, pp. 14ff.,

paras. 26ff.).

      As regards the applicant's complaint under Article 6 para. 3

(Art. 6-3) of the Convention that the charges against it lacked both

clarity and precision, the Commission notes that the Commissariat for

the Media by letter of 15 August 1988 informed the applicant that it

intended to impose a sanction on the applicant for having violated

Section 52 of the Media Act in view of, inter alia, the extensive

attention given to "Centreparcs", the lengthy display of "Coca-Cola"

bottles and the repetitive mention of "Wokkels" in two identified

broadcasts.

      The Commission recalls its findings under Article 10 (Art. 10)

of the Convention that the Media Act and the Media Decree indicate with

sufficient clarity under which circumstances commercial utterances can

be regarded as permitted and that the applicant - as a co-operative

organ of broadcasting institutions in the Netherlands - could

reasonably foresee that the utterances at issue might be considered as

being contrary to the Media Act and the Media Decree.

      In these circumstances the Commission finds that the letter of

15 August 1988 from the Commissariat for the Media to the applicant

contained sufficiently clear information for the purposes of Article

6 para. 3 (a) (Art. 6-3-a) of the Convention.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber      President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)

 

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