AS TO THE ADMISSIBILITY OF
Application No. 17227/90
by RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA and
MODERATA SAMLINGSPARTIET, TROSA-VAGNHÄRAD
against Sweden
The European Commission of Human Rights sitting in private on
10 February 1992, the following members being present:
MM.C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
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;
Having regard to the application introduced on 30 July 1990 by
RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA and MODERATA SAMLINGSPARTIET,
TROSA-VAGNHÄRAD against Sweden and registered on 27 September 1990
under file No. 17227/90;
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 first applicant is the local youth section of a non-profit
association, and the second applicant is the local section of a
political party. Before the Commission they are represented by
Mr. Percy Bratt, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A local radio transmitter at Vagnhärad/Nyköping is run by a non-
profit association, Ö.S. The applicants, with other non-profit
associations, are members of Ö.S. and were licenced to broadcast local
radio over the transmitter.
Through the press and by several letters from Ö.S. to the Local
Radio Board (närradionämnden), it had come to the knowledge of the
Board that Ö.S. intended to broadcast commercial advertising over the
transmitter at Vagnhärad/Nyköping.
By letter of 25 June 1990 the Local Radio Board informed all the
organisations in possession of a licence to broadcast local radio over
the transmitter in question, that the secretariat of the Board had
registered radio programmes containing commercials on 20 and 21 June
1990. In the letter the Board advised that commercial advertising was
prohibited according to Section 10 of the Local Radio Act
(närradiolagen) and that therefore the licences of the organisations
responsible might be withdrawn in accordance with Section 13 of the
same Act. Furthermore, the Local Radio Board invited the associations
to submit their written observations on the matter at the latest on
3 July 1990 or orally to the Board at its meeting on 5 July 1990, at
which the question of a withdrawal of the broadcasting licences was to
be examined.
By letter of 26 June 1990 the applicants, represented by Ö.S.,
requested an extension of the time-limit for their reply until mid-
August 1990 in order to be able to contact a legal adviser and to
prepare their observations.
The Local Radio Board, by letter of 2 July 1990, informed the
applicants that their request for an extension of the time-limit was
not granted. Furthermore, the Board informed the applicants that on
1 July 1990 it had registered more commercials broadcast over the
transmitter at Vagnhärad/Nyköping and that it intended to examine these
also at the meeting on 5 July 1990. The Board invited the applicants
to submit written observations before the start of the meeting or
orally at the meeting.
On 5 July 1990 the Local Radio Board held the meeting at which
three persons, representing Ö.S., and the applicants were present.
The applicants again requested an extension of the time-limit in
order to find a lawyer and to prepare their observations. After
deliberations in camera, the Board rejected the request as it found
that it had sufficient information for making a decision in the case.
The Local Radio Board accordingly continued the meeting. The
applicants, through their representatives, argued in the main issue
that the licences should not be withdrawn as the prohibition against
broadcasting commercials was incompatible with the Instrument of
Government (regeringsformen) and with the European Convention on Human
Rights.
After deliberations in camera, the Local Radio Board decided to
withdraw the applicants' licences to broadcast for one year. It found
that the applicants deliberately and systematically had infringed the
prohibition to broadcast commercials. It stated that the prohibition
as such was not incompatible with the Instrument of Government or any
other Swedish legislation.
The applicants appealed against the decision to the
Administrative Court of Appeal (kammarrätten) of Stockholm, requesting
that the decision of the Local Radio Board be quashed with immediate
effect.
In a decision of 17 July 1990 the Administrative Court of Appeal
rejected the request immediately to quash the Local Radio Board's
decision.
The applicants appealed against this decision to the Supreme
Administrative Court (regeringsrätten) which on 27 July 1990 refused
leave to appeal.
During the continuing proceedings before the Administrative Court
of Appeal the applicants were represented by the same lawyer as before
the Commission. In two petitions (16 and 4 pages, respectively) to the
Court they argued that the prohibition against broadcasting commercials
in the Local Radio Act was incompatible with the Instrument of
Government and with the European Convention on Human Rights.
By judgment of 1 October 1990 the Administrative Court of Appeal
upheld the decision of the Local Radio Board, giving the following
reasons:
(translation)
"The prohibition in the Local Radio Act against
broadcasting commercials has been considered [by the
Supreme Administrative Court] not to be incompatible with
Chapter 2, Sections 12 and 13, of the Instrument of
Government; the prohibition has not on any other ground
been considered incompatible with Swedish law (RÅ 1983
2:5). The European Convention on Human Rights is not
directly applicable in the Swedish legal system. Taking
this into consideration, the Administrative Court of Appeal
cannot legally set aside the prohibition on commercial
advertising.
It is not in dispute that the broadcasts at issue have
contained commercial advertising.
As to the question of which measures are suitable in view
of the violations of the prohibition, the Court finds that
a withdrawal of the permits is the only available measure.
As [the applicants] infringed the prohibition on purpose,
the period for the withdrawal, as decided by the Local
Radio Board, should not be changed."
The applicants appealed to the Supreme Administrative Court,
which on 31 January 1991 refused leave to appeal.
COMPLAINTS
The applicants complain that they did not get a fair
hearing, contrary to Article 6 of the Convention, as the Local Radio
Board did not grant them an extension of the time-limit in order to
enable them to obtain legal advice and to prepare their observations.
THE LAW
The applicants complain that they did not get a fair hearing as
the Local Radio Board did not grant them sufficient time to prepare
their observations. They invoke Article 6 paras. 1 and 3 (b)
(Art. 6-1, 6-3-b) which in their relevant parts read as follows:
"1.In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.
...
3.Everyone charged with a criminal offence has the
following minimum rights:
...
b. to have adequate time and facilities for the preparation
of his defence; ..."
The Commission recalls that Article 6 (Art. 6) of the Convention
only applies to proceedings in which a determination of civil rights
and obligations or of a criminal charge is at issue.
The proceedings in the present case did not concern the
determination of a criminal charge. Accordingly, in so far as the
applicants invoke Article 6 para. 3 (b) (Art. 6-3-b) of the Convention,
this part of the application is inadmissible as being incompatible with
the Convention ratione materiae.
As regards the complaint under Article 6 para. 1 (Art. 6-1) of
the Convention the Commission does not find it necessary to determine
whether the withdrawal of a licence to broadcast local radio concerns
a civil right, because even assuming this to be the case, the complaint
is inadmissible for the following reasons.
According to constant case-law Article 6 para. 1 (Art. 6-1) of
the Convention does not oblige States to submit "contestations" over
civil rights and obligations to a judicial procedure which at each
stage conforms with Article 6 (Art. 6) of the Convention. It may be
sufficient that administrative or professional bodies determine the
dispute at first instance, provided that their decisions are subject
to review thereafter by a judicial procedure which satisfies the
conditions of Article 6 (Art. 6) (cf. Eur. Court H.R., Le Compte, Van
Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, pp. 22
and 23, para. 51, and Öztürk judgment of 21 February 1984, Series A no.
73, pp. 21 and 22, para. 56).
The Commission notes that the decision of the Local Radio Board
was subject to review by the Administrative Court of Appeal, which also
was the last national instance to determine both the questions of facts
-which were not in dispute - and the legal issues.
In order to comply with Article 6 (Art. 6) of the Convention it
was accordingly sufficient in the present case that the examination
of the issue in question by the Administrative Court of Appeal met the
requirements set out in that Article. The applicants' complaint is only
directed against the proceedings at the Local Radio Board; it is not
alleged that the subsequent court proceedings failed to comply with the
requirements set out in Article 6 para. 1 (Art. 6-1) of the Convention.
In these circumstances the Commission finds that, considering the
proceedings as a whole, the applicants received a fair hearing within
the meaning of Article 6 para. 1 (Art. 6-1) 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy