Lexploria

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. KRÃœGER, 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responsible might be withdrawn in accordance with Section 13 of the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 (RÃ… 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)

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RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA AND MODERATA SAMLINGSPARTIET, TROSA-VAGNHÄRAD v. SWEDEN

RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA AND MODERATA SAMLINGSPARTIET, TROSA-VAGNHÄRAD v. SWEDEN

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