AS TO THE ADMISSIBILITY OF
Application No. 11707/85
by Stig NISSEN
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 5 June 1985 by
Stig NISSEN against Sweden and registered on 19 August 1985 under file
No. 11707/85;
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 applicant, may be summarised as
follows.
The applicant is a Swedish national, born in 1946 and resident
at Vintrie. He is a taxi owner and member of ROYSTAXI Economic
Association. Before the Commission the applicant is 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 provisions of the then applicable 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 applicant together with some other
taxi owners founded a new taxi organisation, the ROYSTAXI Economic
Association. The applicant resigned from MTEA on 31 December 1981,
but some of the others upheld membership in both associations.
The question arose in 1981 whether there was still a valid
exemption for MTEA and its members to operate freely from Sturup
International Airport, since the Decree, which allowed long term
exemptions, was no longer in force. The County Administrative Board,
in a letter of 24 April 1981, informed Mr. Roy Gasper, member of
ROYSTAXI, that the exemption was still valid and that it did not
include him since he was no longer a member of MTEA.
The applicant, together with Mr. Gasper and another member of
ROYSTAXI, Mr. Lars-Erik Hjelm, then 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 the Sturup Airport taxi zone. The same right was given to the
licence-holders affiliated to the common dispatch exchange in the
Malmö zone.
The applicant did not subscribe to the common dispatch
exchange, nor did Mr. Gasper and Mr. Hjelm, 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 applicant and his colleagues had not been dealt
with by that Board. On 2 March 1984 the County Administrative Board
decided that the applicant as well as Mr. Gasper and Mr. Hjelm were
entitled to operate in the Sturup Airport traffic zone.
However, in the meantime, the applicant had been prosecuted
for having, on 27 August, 2 October and 10 November 1982, operated
transportation of passengers at Sturup Airport. He was convicted
for violation of the Ordinance on Commercial Transportation by the
District Court (tingsrätten) of Trelleborg on 1 February 1984 and
sentenced to a fine.
The Court stated as follows in its reasons:
"It is established that Mr. Nissen has permission to
transport passengers within the Malmö municipality and
that Mr. Nissen has applied for permission to transport
passengers from Sturup Airport and that the County
Administrative Board of Malmöhus County on 9 March 1982
refused to grant the application.
Mr. Nissen has not disputed the facts but denied that he is
criminally liable since there has been no criminal offence.
He considers that he returned to Malmö as soon as possible
after having terminated the transport order. Being heard he
has said: On 27 August 1982 and on 10 November 1982 he had
terminated a transport order at Sturup Airport and then
queued up in the taxi queue to wait for passengers. On both
occasions he knew that airplanes would soon land. On
2 October 1982 he had driven passengers to Svaneholm castle
and on his way back to Malmö driven to Sturup Airport
since he knew that an airplane would land at that time. He
waited with his car in the taxi queue for passengers.
On the occasions at issue he has received and executed
driving orders from Sturup Airport. The orders were not
booked in advance.
At the request of the Public Prosecutor evidence has been
given by Mr. KF. The evidence supports the information on
the factual circumstances submitted by the Public Prosecutor.
The District Court finds it established that Mr. Nissen, on
each occasion at issue, has violated through his actions the
provision in Chapter 4 Section 7 of the Ordinance on
Commercial Transportation. The charge is therefore well-
founded."
The conviction was upheld by the Court of Appeal (hovrätten)
for Scania (Skåne) and Blekinge on 17 October 1984. The applicant's
appeal to the Supreme Court (högsta domstolen) was unsuccessful. On
16 January 1985 the Supreme Court refused to grant leave to appeal.
COMPLAINTS
The applicant complains that he has been discriminated against
as a result of the decision by the Public Prosecutor to institute
criminal proceedings against him and his 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 applicant therefore
considers that the operating of taxi traffic from Sturup Airport by
MTEA was also illegal.
The applicant further complains that the fact that he was
prosecuted for having transported passengers in violation of the 1979
Ordinance, whereas the officials of the County Administrative Board
who in other respects had violated Swedish law and the Ordinance were
not prosecuted, constitutes a discrimination against him. The
applicant complains that this is a violation of his right to negative
freedom of association. He invokes Articles 11 and 14 (Art. 11, Art. 14)
of the Convention.
THE LAW
The applicant complains of being a victim of discrimination,
in that he and his associates in ROYSTAXI and no one from MTEA were
prosecuted and convicted for offences allegedly committed by the taxi
owners, who were members of MTEA, since the licences granted to MTEA
members were illegal. He also complains of being the victim of
discrimination as he was prosecuted for having committed offences
under the 1979 Ordinance, while the officials of the County
Administrative Board were not prosecuted, although they had violated
the Ordinance in other respects. The applicant submits that he has
also, as a result of the prosecution and conviction, been a victim of
a breach of his right to negative freedom of association. He invokes
Articles 11 and 14 (Art. 11, Art. 14) of the Convention.
The Commission notes that the applicant's complaint is
primarily directed against his prosecution and subsequent conviction
by the District Court as upheld by the Court of Appeal and finally by
the Supreme Court on 16 January 1985. The Commission observes that
the Swedish courts, which convicted the applicant for violation of the
Ordinance on Commercial Transportation, had no competence to decide on
anything but the criminal charge against the applicant. They were not
competent to pronounce any opinion on whether other persons had
committed similar offences, whether the applicant ought to have been
granted a licence to operate at Sturup Airport or whether he had been
discriminated against as a result of the granting of licences to other
taxi drivers or in any other respect.
The Commission here recalls that there is no right under the
Convention to have criminal proceedings instituted by the State
against other persons.
The Commission notes that the applicant's conviction was based
on the fact that he did not have the requisite licence to operate
traffic at Sturup Airport. There is no indication that the
prosecution and conviction of the applicant for having illegally
operated taxi traffic at Sturup Airport were as such based on his
membership in ROYSTAXI or on his not being a member of MTEA. The
applicant's complaint of discrimination against him as compared to
the officials of the County Administrative Board is wholly unfounded.
The applicant's 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
applicant's right to freedom of association under Article 11 (Art. 11) or of
the prohibition of discrimination in Article 14 (Art. 14) of 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)