Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12576/86

by Roy GASPER and Lars-Erik HJELM

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 9 June 1986 by

Roy GASPER and Lars-Erik HJELM against Sweden and registered on

1 December 1986 under file No. 12576/86;

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 applicants, may be summarised

as follows.

The first applicant, Mr. Gasper, was born in 1940 and is

resident at Åkarp. The second applicant, Mr. Hjelm, was born in 1935

and is resident at Malmö. Both applicants are Swedish citizens. They

are taxi owners and members of the ROYSTAXI Economic Association.

Before the Commission the applicants are 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 then applicable provisions in the 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 applicants together with some other

taxi owners founded a new taxi organisation, the ROYSTAXI Economic

Association. The applicants resigned from MTEA on 31 December 1980

and 31 December 1981 respectively.

The applicants together with another member of ROYSTAXI,

Mr. Stig Nissen, on 7 December 1981 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 Sturup Airport taxi zone. The same right was given to the

licence-holders affiliated to the common dispatch exchange in the

Malmö zone.

Mr. Gasper and Mr. Hjelm did not subscribe to the common

dispatch exchange, nor did Mr. Nissen, 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 applicants and Mr. Nissen had not been dealt with

by that Board. On 2 March 1984 the County Administrative Board

decided that the applicants as well as Mr. Nissen were entitled to

operate in the Sturup Airport traffic zone.

However, in the meantime, the applicants had been prosecuted

for having on 28 July 1982 and 2 October 1982 respectively operated

transportation of passengers at Sturup International Airport. They

were convicted of violation of the Ordinance on Commercial

Transportation by the District Court (tingsrätten) of Trelleborg on

10 October 1983 and sentenced to a fine.

The convictions were upheld by the Court of Appeal (hovrätten)

for Scania (Skåne) and Blekinge on 2 February 1984. The applicants

appealed unsuccessfully to the Supreme Court (högsta domstolen) which

on 4 April 1986 refused to grant leave to appeal.

COMPLAINTS

The applicants complain that they have been discriminated

against as a result of the decision by the Public Prosecutor to

institute criminal proceedings against the applicants and their

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 applicants consider that also the operating of taxi

traffic from Sturup International Airport by MTEA was illegal.

Alternatively, the applicants claim that they had a legal right to

operate from Sturup International Airport at the time of the

prosecution since the exemption granted by the County Administrative

Board on 28 June 1973 was still valid for licence-holders irrespective

of their resignation from MTEA.

The applicants allege that the decisions complained of also

violated their rights to negative freedom of association and that this

violation caused discrimination and infringements of their rights to

peaceful enjoyment of their possessions, since it became difficult for

them to retain their passengers. They also submit that the fine which

was imposed on them violated their right to peaceful enjoyment of

possessions.

The applicants invoke Articles 11 and 14 (Art. 11, Art. 14) of the

Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.

THE LAW

The applicants complain of being victims of discrimination,

in that they and their associates in ROYSTAXI and no one from MTEA

were prosecuted for and convicted of offences allegedly committed by

the taxi owners, who were members of MTEA, since the licences granted

to MTEA members were illegal. The applicants submit that they have

also as a result of the prosecution and conviction been victims of a

breach of their right to negative freedom of association. They invoke

Articles 11 and 14 (Art. 11, Art. 14) of the Convention.

The Commission notes that the applicants' complaints are

directed against their prosecution and subsequent conviction by the

District Court, as finally confirmed by the Supreme Court on 4 April

1986. The Commission observes that the Swedish courts, which

convicted the applicants of violation of the Ordinance on Commercial

Transportation, had no competence to decide on anything but the

criminal charge against the applicants. They were not competent to

pronounce any opinion on whether other persons had committed similar

offences, whether the applicants ought to have been granted licences

to operate at Sturup Airport or whether they had been discriminated

against as a result of the granting of licences to other taxi drivers

or in any other respect.

The Commission recalls in this context that there is no right

under the Convention to have criminal proceedings instituted by the

State against other persons.

The Commission notes that the conviction of the applicants was

based on the fact that they did not have the requisite licence to

operate traffic at Sturup Airport. There is no indication that the

prosecution and conviction of the applicants for having illegally

operated taxi traffic at Sturup International Airport were as such

based on their membership in ROYSTAXI or on their not being members of

MTEA. The applicants' 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

applicants' right to freedom of association under Article 11 (Art. 11) or of

the prohibition of discrimination in Article 14 (Art. 14) of the Convention.

The Commission finds no issue under Article 1 of Protocol No.

1 (P1-1) to 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)

Menu

GASPER and HJELM v. SWEDEN

GASPER and HJELM v. SWEDEN

LEXI