Lexploria

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)

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NISSEN v. SWEDEN

NISSEN v. SWEDEN

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