AS TO THE ADMISSIBILITY OF

                  Application No. 9675/82

                  by Freie Rundfunk AG i GR

                  against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 4 March 1987,  the following members being present:

              MM. C. A. NØRGAARD, President

                  G. SPERDUTI

                  J. A. FROWEIN

                  G. JÖRUNDSSON

                  S. TRECHSEL

                  B. KIERNAN

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  H. VANDENBERGHE

             Mr.  F. MARTINEZ

              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;

-       the application introduced on 3 December 1981 by

Freie Rundfunk AG i Gr against the Federal Republic of Germany and

registered on 1 February 1982 under file N° 9675/82;

-       the Commission's decision of 17 October 1985 that the

respondent Government should be invited to submit written observations

on the applicant company's complaint under Article 10 of the

Convention;

-       the Government's observations of 6 March 1986;

-       the appalicant company's reply of 13 May 1986;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case as submitted by the parties may be

summarised as follows:

                          I.

        In proceedings which lasted from 1967 until 1984, the

applicant company - represented by Dr W. Theisen, Rechtsanwalt at

Coblenz - claimed a licence to broadcast under Articles 38 et seq. of

the Saarland Broadcasting Act (Gesetz über die Veranstaltung von

Rundfunksendungen im Saarland) of 7 June 1967.

        The course of these proceedings was as follows:

1.      In 1967 the applicant company requested a licence to

broadcast.  In November 1971 it instituted proceedings before the

Administrative Court (Verwaltungsgericht) of the Saarland complaining

that the Land Government had failed to determine the request.  Noting

that Article 39 para. 1 sentence 5 excluded any legal entitlement to

the granting of a licence ("Ein Rechtsanspruch auf ihre Erteilung

besteht nicht") the applicant company also relied on Article 5 para. 1

sentence 2 of the Basic Law (Grundgesetz), which guarantees "freedom

of reporting by means of broadcasts".

        The Administrative Court dismissed the action

(Untätigkeitsklage) as ill-founded on 30 June 1972.  The Court found no

error in the exercise of the Government's discretion (Ermessensfehler)

and held that the company's claim could not be based on Article 5 of

the Basic Law.

2.      In the appeal proceedings the Administrative Court of Appeal

(Oberverwaltungsgericht) of the Saarland, on 25 April 1974, held that

Art 38 and other relevant provisions of the Act were unconstitutional

and referred the case to the Federal Constitutional Court

(Bundesverfassungsgericht) under Article 100 para. 1 of the Basic Law.

        This provision states:

        "If a court considers unconstitutional a law the validity

        of which is relevant to its decision, the proceedings shall

        be stayed, and a decision shall be obtained from the (...)

        Federal Constitutional Court if this Basic Law is held to

        be violated.  This shall also apply if this Basic Law is held

        to be violated by Land Law (...)"

3.      The Federal Constitutional Court having declared this

reference inadmissible on 24 March 1976 (BVerfGE 42, 42), the

Administrative Court of Appeal, by judgment of 20 May 1976, ordered

the Land Government to determine the applicant company's request for a

broadcasting licence;  this order was based on the assumption that the

relevant provisions of the Broadcasting Act were valid.  The Court

dismissed the appeal (Berufung) in so far as the applicant company

claimed a licence to broadcast under Article 5 of the Basic Law.  It

decided that each party should bear half of the costs of the

proceedings.  Leave to appeal on points of law (Revision) was refused.

4.      On 26 October 1976 the Land Government refused the applicant

company's request for a licence and on 26 November 1976 the applicant

company again brought proceedings before the Administrative Court.

Written submissions were filed by the applicant company on 1 March

1977 and a hearing was held on 21 August 1978.  The Administrative

Court again referred the case to the Federal Constitutional Court.  It

held that Articles 38, 40 para. 1, 46 and 46 (b) of the Broadcasting

Act concerning private broadcasting were unconstitutional and further

stated that, in the absence of a valid legal provision, the applicant

company could not claim a broadcasting licence.

        The applicant company's appeal (Beschwerde) against this

decision was on 29 November 1978 declared inadmissible by the

Administrative Court of Appeal.

5.      The Federal Constitutional Court, following a hearing on 24

March 1981, decided on 16 June 1981 that Articles 38 to 46 (e) of the

Broadcasting Act were incompatible with Article 5 para. 1 sentence 2

and Article 3 para. 1 (equality before the law) of the Basic Law and

therefore null and void in so far as they concerned private

broadcasting (BVerfGE 57,295).

        The Court held that, under Article 5 para. 1 sentence 2 of the

Basic Law, private broadcasting can only be licensed on the basis

of specific legislation guaranteeing the freedom of broadcasting.  The

Court did not determine the question whether Article 5 of the Basic

Law grants an individual right to private broadcasting.  It stated

(loc. cit. p. 318):

"With the provisions to be examined the Saarland legislature has

on principle authorised private broadcasting.  Hence the validity

of the private broadcasting provision in the Saarland

Broadcasting Act cannot depend on the questions dealt with in

submissions, in experts' reports and in arguments during the oral

hearing - as to whether exclusion of private broadcasting in

favour of institutions established under public law is still

compatible with the Basic Law under present-day and future

technical conditions and whether in connection therewith a duty

exists under constitutional law to introduce private

broadcasting.  The examination to be carried out under

constitutional law must rather be restricted to the question

whether the Saarland provisions are compatible with the Basic

Law.  For an examination of this question there is also no need

for a decision on the issue - dealt with in the written and oral

submissions - of a basic right to organise private radio

broadcasts."

6.      The applicant company thereupon pursued its claim before the

Administrative Court.  It argued primarily that the judgment of the

Federal Constitutional Court was void and that its claim had to be

determined on the basis of the judgment of the Administrative Court of

Appeal of 20 May 1976.  In the alternative, it submitted that the

Saarland legislator had failed to comply with its obligation, under

Article 5 of the Basic Law, to enact new legislation, in conformity

with the guidelines formulated by the Federal Constitutional Court,

concerning private broadcasting.

        The Administrative Court heard the case on 13 November 1981

and dismissed the action.  It held that it was not competent to review

the Federal Constitutional Court's judgment, which was binding.  The

validity of the relevant provisions of the Broadcasting Act could not,

contrary to that judgment, be assumed in favour of the applicant

company on the ground that the judgment of the Administrative Court of

Appeal of 20 May 1976 had acquired the force of res judicata.  The

Administrative Court concluded that the applicant company could not

claim a licence under the invalid provisions of the Broadcasting Act

of 1967.

        Finally the Court examined whether the applicant company could

claim a broadcasting licence under Article 5 of the Basic Law and

whether the Court in its determination of this claim should act as a

"substitute legislator" in view of the Land legislature's inaction

since the Federal Constitutional Court's judgment (pages 29 - 34 of

the Administrative Court's judgment).  The Administrative Court denied

this.  It found inter alia that, even if there was a duty of the Land

to legislate as claimed by the applicant company, the time which had

elapsed since the Federal Constitutional Court's judgment was not

unreasonably long.  In conclusion the Administrative Court referred

the applicant company to "the possibility of lodging a constitutional

complaint (Verfassungsbeschwerde) against a judgment of last instance

dismissing the action".

7.      The applicant company's appeal (Berufung) of 5 February 1982 was

heard by the Administrative Court of Appeal on 7 October 1982.  The

Appeal Court dismissed the appeal.  It confirmed the Administrative

Court's findings that there was no legislation, as required by the

Federal Constitutional Court, for private broadcasting, and that the

applicant company could not rely on the Appeal Court's judgment of 20

May 1976 ordering the Land Government to determine the application for

a licence;  it observed in this connection that, in view of the

previous history of the case, the applicant company could not in 1976

have expected a determination in its favour (pages 21 - 23 of the

judgment).  The Appeal Court also denied a clear judicial obligation

to act as a "substitute legislator" and further stated with reference

to Article 5 of the Basic Law that the statutory regulation of radio

broadcasting in 1976 - apart from the unconstitutional provisions

concerning private broadcasting - had been compatible with the

constitution in the light of the technical and financial situation.

The Appeal Court then observed (page 27 of the judgment):

"This statutory regulation of private broadcasting can become

unconstitutional as a result of a positive change in

circumstances.  It may then - as expressly left open by the

Federal Constitutional Court (BVerfGE 57, 318) - be necessary for

private radio broadcasting to be authorised as well, whether

alone on account of Article 5 para. 1 sentence 2 of the Basic Law

or on account of additional claims to basic rights under Article 3,

Article 5 para. 1 sentence 1 and Article 12 of the Basic Law.  In

the light of the statutory position indicated it is obvious that

consideration must be given not to a case of absolute omission on

the part of the legislature but rather to one of inaction in

regard to a constitutional duty subsequently to improve

provisions that were originally to be seen as being in conformity

with the constitution (see, in particular, BVerfGE 56, 54 - 72,

78 et seq.)."

In applying these considerations to the present case the Appeal Court

found no manifest obligation to improve the existing provisions and

therefore no basis for referring the matter to the Federal

Constitutional Court.  The Appeal Court also drew the applicant

company's attention to the possibility of bringing a constitutional

complaint concerning the Land legislature's inaction (page 26 of the

judgment).

8.      The applicant company then lodged an appeal against the

refusal, in the Appeal Court's judgment, of leave to file a further

appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision).  In the memorial of 6 December 1982 setting out the reasons

for this appeal the company relied on the argument that the judgment

of the Appeal Court of 20 May 1976, requiring the Land Government to

determine the application for a licence, was final and binding.

        This appeal was on 23 December 1983 dismissed by the Federal

Administrative Court (Bundesverwaltungsgericht) on the grounds (1)

that it did not raise any issue of fundamental importance, (2) that

the judgment of the Court of Appeal was not, as alleged, contrary to

case- law of the Federal Administrative Court, and (3) that the

applicant company's right to a hearing in accordance with the law had

not, as alleged, been disregarded by the Court of Appeal.  This

decision of the Federal Administrative Court was sent to the applicant

on 13 January 1984.

                           II.

9.      On 28 November 1984 the Diet of the Saarland adopted a new

Broadcasting Act (Landesrundfunkgesetz) which provides both for public

(Part A) and private broadcasting (Part B).  Applications for a

licence for private broadcasting are to be determined by the Land

Authority (Landesanstalt) set up under the new Act (Article 50 para.

2).  They may be filed within a period of at least three months to be

fixed by the Authority (Article 39 para. 1).

10.     In June 1985 the applicant company was officially informed

that the Land Authority might adjourn its determination of the above

period pending an amendment of the Broadcasting Act.  This amendment

should be coordinated with negotiations concerning a Länder Agreement

on the Reform of Broadcasting (Staatsvertrag zur Neuordnung des

Rundfunkwesens).  It could not be foreseen whether and when these

negotiations would succeed.  (Letter from the Prime Minister's Office

of 28 June 1985)

11.     By letter of 1 October 1985 the Land Authority informed the

applicant company that the period for filing applications for

licences, once fixed, would be announced in the Official Gazette

(Amtsblatt) of the Saarland.

COMPLAINTS

        The applicant company invokes Articles 6 para. 1, 10, and 14

of the Convention.

        It mainly complains, under Articles 10 and 14 of the Convention,

that its earlier request for a broadcasting licence has not been

granted.  In this connection it also relies on the judgment of the

Administrative Court of Appeal of 20 May 1976 and on the principle of

res judicata.  It further complains that it is prevented, by the Land

Authority's failure to fix a period under Article 39 para. 1, from

seeking a licence under the new Broadcasting Act.  It considers that

the course of events described under I and II of the above statement

of facts cannot be justified under Article 10 para. 1, second

sentence.

        The applicant company also complains, under Article 6 para. 1

of the Convention, of the length of the proceedings concerning the

determination of its earlier request for a licence.  It submits that

those proceedings concerned a "civil right" within the meaning of

Article 6.

        It submits that it must be considered as having exhausted all

domestic remedies.

PROCEEDINGS BEFORE THE COMMISSION

        The applicant company initially asked that examination of the

application be adjourned, pending the exhaustion of domestic remedies,

but finally agreed that the case should go before the Commission.

        On 13 December 1983 the Commission considered the application.

It noted that appeal proceedings were pending before the Federal

Administrative Court and decided, after having deliberated, to adjourn

its further examination.

        Under cover of a letter of 23 January 1984 the applicant

company submitted a copy of the Federal Administrative Court's

decision of 23 December 1983.

        By letter of 9 February 1984 the applicant company was invited

to state whether a constitutional complaint had been lodged against

that decision.

        The applicant company replied on 24 February 1984 that a

constitutional complaint had not been brought.  It submitted that:

- the time-limit for filing such a complaint had not yet expired;

- the application had been admissible since 1982.  This admissibility

  could not be affected by a subsequent domestic decision.  As

  already stated in the provisional application of 19 October

  1981 (page 2), the applicant company was entitled to bring the

  present application after the Federal Constitutional Court's

  judgment of 16 June 1981, in view of the binding effect of

  that judgment under Article 79 para. 2 sentence 2 of the Act

  on the Federal Constitutional Court (Bundesverfassungsgerichts-

  gesetz);

- Article 26 of the Convention did not without exception require

  prior recourse to the Federal Constitutional Court.  The Federal

  Administrative Court, in its decision of 23 December 1983, had

  relied on a decision of the joint panel (Gemeinsamer Senat) of

  the highest courts of the Federation dated 6 February 1973

  (BVerwGE 41, 363).  Exhaustion of all domestic remedies was not

  required where the legal position was very much open to doubt.

  Moreover, the case had previously been before the Federal

  Constitutional Court on two occasions.  An obligation to have

  recourse to that Court a third time would amount to refusing

  access to the Convention organs.

        By letter of 18 April 1984 the applicant company was, with

reference to the judgment of the Administrative Court of Appeal of

7 October 1982, invited to clarify its position as to the possibility

of a constitutional appeal, concerning the alleged failure of the Saar

Diet to legislate in the matter of private broadcasting, and, if it

wished, to comment on a press report concerning a draft Bill of the

Saar Government providing for private broadcasting.

        In submissions of 11 July 1984, enclosing a copy of the Bill,

the applicant company stated that the Saarland was proceeding to fulfil

its constitutional duty to legislate;  the question whether Article 26

required a constitutional appeal alleging failure to fulfil this

legislative duty therefore no longer arose.

        On 8 December 1984 the Commission noted that the Saar

Broadcasting Act had been adopted on 28 November 1984.  It invited the

applicant company to indicate whether it intended to apply for a

licence under this Act.

        The applicant company replied on 11 March 1985 that it wished

to apply and referred in subsequent correspondence (2 May, 25 June,

3 July, 3 September and 7 October 1985) to the development following

the March elections and the change of Government in the Saarland, as

described under II, 2 of the above statement of facts.

        On 17 October 1985 the Commission decided to invite the

respondent Government to submit written observations on the applicant

company's complaint under Article 10 of the Convention.  Examination

of the complaint under Article 6 para. 1 was adjourned.

        By letter of 13 December 1985 the Government requested the

Commission to obtain certain documents and information from the

applicant company.

        The Commission, on 24 January 1986, did not find that this

material was relevant for the determination of the applicant company's

complaint under Article 10, but decided that it would further consider

the Government's request in connection with the complaint under

Article 6 para. 1 of the Convention.

        The Government's observations were received on 11 March 1986.

        The applicant company's reply arrived on 14 May 1986.

SUBMISSIONS OF THE PARTIES

A.      The Government

        The Government submit that the applicant company's complaint

under Article 10 of the Convention is inadmissible under Article 26:

- both for non-exhaustion of domestic remedies and for non-observance

  of the six months' rule, in so far as it relates to the proceedings

  "concluded with final and binding effect" by the judgment of the

  Administrative Court of Appeal of 20 May 1976;

- for non-exhaustion of domestic remedies as regards the subsequent

  proceedings.

1.      The Government argue that an entitlement on the part of the

applicant company to the licensing of private broadcasting, derived

from Article 5 of the Basic Law, was dismissed finally and with

binding effect by the Administrative Court of Appeal in its judgment

of 20 May 1976.  In respect of that part of the judgment the applicant

company could have appealed against the refusal of leave to appeal on

points of law.  A constitutional complaint alleging a violation of its

alleged right under Article 5 to make private broadcasts was also

possible.  But the applicant company made no use of either remedy.  On

the contrary, it accepted this judgment, which had turned to its

disadvantage, and the order requiring the Saarland Government to

determine the application for a licence, although it was foreseeable

that the determination would be negative.

        The Government do not consider that the res judicata effect of

the above judgment, concerning the rejection of the applicant

company's claim under Article 5 of the Basic Law to make private

broadcasts, was affected by the subsequent proceedings.  They point

out that the Administrative Court of Appeal, in its later judgment of

7 October 1982 at page 23, expressly referred to its earlier judgment

of 20 May 1976 and that it did not go into a new discussion of the

questions already decided with final and binding effect.  The only

question that subsequently still had to be examined was the question

whether - following the declaration of nullity of the relevant

provisions of the Broadcasting Act of 1967 - there might be a claim

under constitutional law to renewed action on the part of the Saarland

legislature and whether technical developments that had taken place in

the interim might, for the first time, found such a claim.

        In so far as the applicant company did not have recourse to

the available remedies it has failed to comply with the requirement

that domestic remedies must be exhausted.  In addition, it also did

not apply to the Commission within the six months' time-limit, running

from the judgment given with final and binding effect by the

Administrative Court of Appeal on 20 May 1976, by virtue of which an

entitlement under Article 5 of the Basic Law to make private

broadcasts had been rejected under domestic law.  Accordingly, an

examination of this question in the present application is excluded

under Article 26 of the Convention.

2.      With regard to the domestic proceedings since 20 May 1976 the

Government submit in the first place that, when the application was

registered, administrative court proceedings were in progress at first

instance.  Thus under German domestic law all opportunities for

judicial examination were still open to the applicant company, i.e.

proceedings before the Administrative Court, that had not yet given

its decision, before the Administrative Court of Appeal, the Federal

Administrative Court and the Federal Constitutional Court.  On these

facts the complaint is inadmissible on the ground that it was lodged

before exhaustion of domestic remedies.  An exceptional case in which

domestic remedies may be exhausted during Convention proceedings did

not exist here.

        In its judgment in the Ringeisen case (Eur.  Court H.R.,

judgment of 16 July 1971, Series A No. 13) the Court held that an

applicant is, as a rule, obliged before applying to the Commission to

avail himself of the various domestic remedies but that the Commission

may accept that the last instance of domestic remedies is reached

shortly after the lodging of the application but before a decision has

to be given on its admissibility.  In that judgment the Court stated

(loc. cit. and Yearbook 14 p. 848 para. 91):

        ".... that the last stage of such remedies may be reached

        shortly after the lodging of the application but before the

        Commission is called upon to pronounce itself on

        admissibility."

        According to the Government the requirement that domestic

remedies must be exhausted serves, on the one hand, the purpose of

getting an applicant to have recourse in the first place to domestic

remedies that are as a rule quicker, cheaper and more pertinent to the

matter before turning to an international organ.  Secondly, it is also

intended that the State against which action is being taken should

have the opportunity of having possible violations of the law examined

by its domestic courts and of remedying them if necessary - before

being called to account by an international instance.  This also

presupposes that the State concerned is informed of the charge of

violating the Convention within a reasonable time and is thereby put

in a position to examine this charge and to comply with its

obligations under the treaty in good time.  The rule of international

law that domestic remedies must be exhausted "is based on both justice

and common sense".  It would become meaningless and the legitimate

interests of the Contracting States would be violated if it were

permissible for applications to be made pending in reserve - so to

speak - against possible future violations of the Convention and for

the Commission to be seized of a case at the same time as domestic

instances.

        These considerations rule out the application being regarded

as admissible by way of exception.  The margin of flexibility conceded

by the Court is limited to a short period of time and has been

overstepped in the present case.  The fact that proceedings for a

remedy under the Convention - of which the Federal Government has no

knowledge and to which it therefore cannot react appropriately -

should be running parallel to domestic proceedings, as in the present

case, is not considered by the Federal Government to be compatible

with the rule of international law concerning exhaustion of domestic

remedies.  The Government point out that extensive technical changes

have occurred particularly in the field of broadcasting over the last

years - changes which, according to decisions of the Federal

Constitutional Court, might also have an impact on the determination

of claims under Article 5 of the Basic Law to have private

broadcasting authorised.  Thus the position concerning entitlement may

have changed fundamentally on the domestic level and similarly under

the law of the Convention.  The Government do not accept "that an

application that was possibly inadmissible at the time it was lodged

or registered could be left for such a long time that it might - as a

result of the lapse in time - begin to offer prospects of success in

view of changes in the factual or legal circumstances."

3.      The Government further submit with regard to the domestic

proceedings since 20 May 1976 that the applicant company not only had

not exhausted domestic remedies before the introduction of the

application but also failed to do so thereafter.  According to the

case-law of the Convention organs an applicant is required to exhaust

all possible remedies available to him.  Doubts concerning the

effectiveness of a remedy do not entitle him to refrain from seeking a

remedy.  The examination of the question whether a remedy might

succeed is the task of the domestic courts.  This question

must be resolved before there is recourse to an international forum.

(No. 712/60, Retimag v.  Federal Republic of Germany, Dec. 16.12.61,

Collection 8 pp. 29, 38 = Yearbook 4 pp. 384, 400 with further

references;  Eur.  Court H.R., Van Oosterwijck judgment of 6 November

1980, Series A No. 40, paras. 26 et seq.).

        In the present case the applicant company did not duly avail

itself of two possible domestic remedies in respect of the second

proceedings for the granting of a licence to make private broadcasts:

appeal against the refusal of leave to appeal on points of law, in the

judgment of the Administrative Court of Appeal of 7 October 1982, and

constitutional complaint.

        It is true that, after the judgment of the Admnistrative Court

of Appeal of 7 October 1982, the applicant company appealed against

the refusal of leave to appeal on points of law.  This appeal,

however, did not deal with questions relating to basic and human

rights but only with the allegedly binding effect of the first

judgment of the Administrative Court of Appeal of 20 May 1976.  By

this restriction the applicant company denied the Federal

Administrative Court the opportunity of examining the fundamental

question it had already raised before the Commission - i.e. the

question of an entitlement under Article 10 of the Convention to a

licence for private radio broadcasting - and also the analogous

question under Article 5 of the Basic Law.  As to the requirement that

an appeal must be lodged against refusal of leave to appeal on points

of law, before there is recourse to the Federal Constitutional Court

under Article 90 para. 2 sentence 1 of the Act on the Federal

Constitutional Court, the Government refer to BVerfGE 16, 1 (2 et

seq.) and BVerfGE 52, 369 (387).

        In the Government's view the applicant company could have

tried to obtain leave to appeal on points of law in view of the

fundamental importance of the matter - particularly in the light of

the references made in the administrative court judgments during the

second proceedings to possible further developments in the technical

field and their effects on a possible entitlement under Article 5 and

also in the light of the fundamental issue of the courts' functioning

as a substitute legislator, which issue had been discussed at previous

instances.

        The applicant company, in order to exhaust domemstic remedies,

should have referred the Federal Administrative Court to this

fundamental issue.  Whether it would have succeeded with such

submissions on the fundamental importance of the case does not have to

be decided by the Commission here.  If the applicant company had made

entitlement to a licence for private radio broadcasters the subject-

matter of proceedings before the Federal Administrative Court, the

latter - as the competent national instance - could have, and would

have had to, examine the prospects of success.  The Federal

Administrative Court would then, in the light of given and also

foreseeable technical change, have had to go into the issue raised,

taking into account expositions in the relevant literature.  This

applies both in respect of a direct entitlement to a licence for

private broadcasting and in respect of a claim to legislative action.

        The Government further point out that, after judgment was

given by the Administrative Court of Appeal on 7 October 1982, the

applicant company did not lodge a constitutional complaint.  In

failing to lodge such a complaint it denied the Federal Constitutional

Court the opportunity of examining the measure - to which it had

raised objection - with reference to an entitlement under Article 5 of

the Basic Law to a licence for private radio broadcasting.  In its

judgment of 16 June 1981 the Federal Constitutional Court had

expressly left this question open (BVerfGE 57, 295/318).  The Federal

Constitutional Court was confronted with numerous submissions on this

very question during the second proceedings to examine norm validity.

These submissions indicated a fundamental need for examination in view

of technical changes taking place.  Nevertheless, the Federal

Constitutional Court did not have to express an opinion on this

question because it was not at issue in the given proceedings for

examination of norm validity.  On the other hand, after the decision

of 16 June 1981 it was at the same time clear that constitutional

examination of the applicant company's cause could become necessary in

future.  At any rate both the Administrative Court and the

Administrative Court of Appeal reflected on this.

        After they had come to a conclusion adverse to the applicant

company, the latter should have referred the question of an

entitlement under Article 5 of the Basic Law to a licence for private

radio broadcasting, or to relevant legislative action, to the Federal

Constitutional Court, so as to exhaust all domestic remedies in

accordance with Article 26 of the Convention.  In the Government's

view this applies all the more as the applicant company was referred

by both the Administrative Court (page 33 of the judgment of 13

November 1981) and the Administrative Court of Appeal (page 26 of the

judgment of 7 October 1982) to the possibility of a constitutional

complaint as a remedy available in this case for the attainment of

what is desired.  Accordingly, and in the light of the statements made

by the Federal Constitutional Court in its judgment of 16 June 1981,

it is surprising that the applicant company should not have had

recourse to the Federal Constitutional Court.

        One possible explanation for this, however, is that it may

have failed to observe the time-limit for lodging a constitutional

complaint pursuant to Article 93 para. 1 sentence 1 of the Act on the

Federal Constitutional Court.  The order of events speaks in favour of

this assumption.  The decision of the Federal Administrative Court of

23 December 1983 was sent to the applicant company on 13 January 1984

and would probably have come to its attention by 17 January at the

latest.  The time-limit stipulated by Section 93 then expired on

17 February 1984 at the latest.  Only after the time-limit had expired

did the applicant company contact the Commission.  The statement, in

the letter of 24 February 1984 to the Commission, that the time

allowed for lodging a constitutional complaint had, at that stage, not

yet expired, is incorrect.  According to para. 1 sentence 2 of

Section 93 the period of time allowed begins to run when service is

effected or when there is informal notification of the full decision

in those cases where the relevant procedural provisions require this

to be done ex officio.  Accordingly, in the present case, the period

of time allowed began to run at the moment when the Federal

Administrative Court's decision of 23 December 1983 was informally

communicated to the applicant company.

4.      The Government contest the applicant company's view that,

after there had been recourse on two previous occasions to the Federal

Constitutional Court by the Administrative Courts in proceedings under

Article 100 of the Basic Law, renewed recourse to the Federal

Constitutional Court would have served no purpose.  In the

Government's view this submission fails to take account of the scope

of the Federal Constitutional Court's judgment of 16 June 1981 and of

the applicant company's function and status in such proceedings.

        That the Federal Constitutional Court's decision of 24 March

1976 did not include an opinion on the possibility of the applicant

company's entitlement under Article 5 of the Basic Law to be

authorised to make private broadcasts is so obvious that no further

substantiation is needed here.  But also in the proceedings leading up

to the decision of 16 June 1981 there was no reason - as already

explained - for discourse on this question.  Indeed the question of a

possible entitlement under Article 5 to make private broadcasts was

expressly left open and thus held in reserve for future proceedings.

The Federal Constitutional Court had to proceed on the basis of the

decision taken by the Saarland legislature to render private

broadcasting possible.  The Court only  had to examine whether the

actual arrangements selected for the Act were in harmony with the

principles of "broadcasting freedom".

        Thus it was a question of freedom of broadcasting as an

objective principle to be understood in the light of the other basic

rights guaranteed in Article 5 para. 1, in particular in the light of

freedom of information on the one hand and of expression of opinion on

the other.  The Federal Constitutional Court infers the need for

statutory configuration of broadcasting freedom from this context.

The requirements, inferable from the guarantee of broadcasting

freedom, in respect of statutory regulation were not considered by the

Court to have been fulfilled.  These questions must be distinguished,

however, from the question brought by the applicant company before the

Commission as to whether it may, for example, operate radio

broadcasting installations as an owner.  It is not, moreover, apparent

that the applicant company, in the event of obtaining a licence, would

not be willing to carry out its broadcasting in a manner corresponding

to the requirements inferred from broadcasting freedom by the Federal

Constitutional Court in its judgment of 16 June 1981.

        Hence it must be recorded that in the prior proceedings for

examination of norm validity the Federal Constitutional Court had not

yet had to deal with the question laid before the Commission by the

applicant company.  Thus the company could reasonably be expected to

submit this question for the first time to the Federal Constitutional

Court for decision by filing a constitutional complaint.

        The function of proceedings brought under Article 100 of the

Basic Law and the applicant company's status in these proceedings also

exclude the possibility of regarding a subsequent constitutional

complaint as being dispensable.  Proceedings under Article 100 in a

concrete case only serve the purpose of clarifying the law to be

applied by the Court.  The Federal Constitutional Court characterised

such proceedings as follows (BVerfGE 42, 90/91):

"In proceedings to examine the validity of norms in a concrete

case, brought before the Federal Constitutional Court under

Article 100 para. 1 of the Basic Law and Article 13 No. 11 of the

Act on the Federal Constitutional Court, the parties to the

original case are not accorded the status of a party to the

proceedings before the Federal Constitutional Court.  Parties to

the original case cannot institute these proceedings, nor do they

have the power - which is fundamentally characteristic of the

status of a party to the proceedings - to apply for decisions.

Proceedings to examine the validity of norms in a concrete case

serve the constitutional court's guarantee that objective law

shall be observed;  such proceedings are not an instrument for

the individual to obtain a legal remedy.  The status of party

to the proceedings and, in particular, the power of making

applications during proceedings cannot be inferred from the

avenues of action conceded by Article 82 para. 3 of the Act to

parties to the original case during proceedings before the

Federal Constitutional Court for an examination of norm validity

in a concrete case.  Hence parties to the original case are as

such generally debarred from introducing motions of challenge

under Section 19 of the Act."

        If proceedings for an examination of norm validity in a

concrete case only serve the purpose of clarifying the norm to be

applied, then in the applicant company's case they cannot have had the

effect of clarifying actual claims.  Rather, such clarification only

took place during the Administrative Court proceedings where referral

to the Federal Constitutional Court was decided on.  In proceedings

for an examination of norm validity in a concrete case the Federal

Constitutional Court does not give a decision on actual facts but only

incidentally to such facts.  With its decision the Federal

Constitutional Court helps to clarify the ordinary law that has to be

applied.  In the case of post-constitutional statutes this means that

their nullity will be declared if they are held to be in violation of

the Basic Law.  All this, however, means that it is not possible to

regard a subsequent constitutional complaint as being dispensable with

reference to exhaustion of all domestic remedies if previously the

Federal Constitutional Court has merely determined the ordinary Land

law that has to be applied.

        The Government also contest the view that the applicant

company was entitled to have recourse to the Commission, before having

exhausted all domestic remedies, because of the binding effect

provided for in Article 79 para. 2 sentence 2 of the Act on the

Federal Constitutional Court.  They submit that this provision, which

according to Article 82 para. 1 of the Act applies mutatis mutandis to

proceedings for examination of norm validity in a concrete case,

embraces rules concerning the effects of decisions of the Federal

Constitutional Court.  Article 79 para. 2 sentence 1 lays down the

principle that decisions that are no longer open to challenge and that

are based on a norm that has been declared null and void shall

fundamentally remain unaffected.  According to sentence 2 of this

provision there shall, however, no longer be any execution resulting

from such a decision no longer open to challenge.

        What execution is meant here by the applicant company is not

apparent.  The judgment of the Administrative Court of Appeal of

20 May 1976 was carried out by the authority ordered to determine the

application for a licence, in that the provisions of the Broadcasting

Act, which were subsequently declared null and void, were applied.

Any further execution based on this or on another unenforced decision

was not apparent.

        That the Federal Constitutional Court's judgment of 16 June

1981 did not prejudge the question of possible entitlement, in the

nature of a basic right, to make private broadcasts already follows

from the fact that this question was expressly left open.

Accordingly, the Administrative Courts concerned also conducted an

independent examination of the position under constitutional law.  A

"binding effect" followed - at the most - from the judgment of 16 June

1981 in so far as claims to authorisation of private radio

broadcasting could no longer be derived from the ordinary Land law

provisions of the Broadcasting Act that had been declared null and

void.  Claims inferred from Article 5 of the Basic Law or Article 10

of the Convention were not affected by this.

        The Government repeat that doubts as to the prospects of a

remedy's success do not absolve from the obligation to exhaust this

remedy.  Particularly where the legal position is in doubt there

should in the first place be recourse to the national courts for

clarification.  It would not be compatible with international law

principles relating to the exhaustion of domestic remedies if every

time the legal position was in doubt recourse to the courts could not

reasonably be expected.

        The Government note the applicant company's reference to a

ruling of the Joint Panel of the Highest Courts of the Federation,

given on 6 February 1973.  This ruling concerned the binding effect of

judgments and the principle of res judicata (cf. page 6 of the Federal

Administrative Court's decision of 23 December 1983).  It is not

apparent to the Government to what extent doubts concerning such

matters of ordinary law may be a reason for dispensing with domestic

remedies where human rights violations are at issue before the

international instance concerned.  Even if one accepts the view that

doubts as to the legal position make it possible to dispense with

exhaustion of domestic remedies, logically such doubts will have to

relate to those legal questions laid before the international instance

for decision.  However, the questions of res judicata discussed

extensively in the prior domestic proceedings in this case were not

questions that form the subject-matter of the present human rights

application.

        The Government also refer to the Commission's letter of

18 April 1984 to the applicant company inviting it to state whether it

had filed a constitutional complaint, alleging that Land legislature

had failed to fulfil its constitutional mandate of statutory

regulation of private radio broadcasting.  The applicant company

replied to the effect that, because the Land legislature was working

on a relevant bill, there was no problem for the future and no

argument against exhaustion of domestic remedies.  The Government

contest this view and observe that it may lead to the conclusion that

the applicant company is no longer a "victim" within the meaning of

Article 25 of the Convention because of the legislature's having

fulfilled a relevant claim.  In the light of the view expressed,

however, prior recourse to the Federal Constitutional Court cannot

have become dispensable.  Precisely because of the detailed discussion

of the question of a possible obligation incumbent on the Land

legislature to introduce a replacement for the statutory provisions

declared null and void there should have been prior recourse to the

Federal Constitutional Court - and also to the Federal Administrative

Court.

        The Government state in this connection "that the new

statutory provisions that have been introduced in the Saarland in the

interim can by no means form the admissible subject-matter of the

application."  Claims under this statute and objections to the statute

have not yet been raised before any German court, in particular the

Federal Constitutional Court, so that non-exhaustion of all domestic

remedies is manifest here.  In a letter to the Commission dated

3 September 1985 the applicant company expressed the view that it

could successfully raise the matter before the Federal Constitutional

Court.  It pointed out that new technical developments in the Federal

Postal Administration made that Administration's earlier submissions

before the Federal Constitutional Court seem open to attack.

        The Government find no indication that the applicant company

has lodged an application with the Commission in respect of the new

Saarland Broadcasting Act of 1984.  On the contrary, the Government's

attention has been drawn only to statements concerning the current

position with regard to the lodging of applications under, and

concerning a planned amendment of, the Act, whereby the new Saarland

Government shall endeavour to organise private radio broadcasting on

an internal pluralistic basis (cf. the applicant company's letter of

25 June 1985).

        The Government do not consider that a ruling of the Federal

Constitutional Court in proceedings under Article 100 of the Basic

Law, such as the judgment of 16 June 1981, can be the subject of a

human rights application.  The purpose of proceedings under Article

100 is not to clarify individual rights and to afford an individual

legal remedy but to clarify the law to be applied by the courts in a

concrete set of circumstances.  Only when the court which referred the

matter to the Federal Constitutional Court actually applies the law

concerned is there actual regulation of the concrete circumstances of

the case.  Such regulation alone can interfere with individual rights.

        The Government finally contest the argument that it would be

unreasonable, in view of the applicant company's previous unsuccessful

efforts to obtain a licence, to require it to file a constitutional

complaint.  They submit that this assumption also fails on account of

the fact that the applicant company did not at any point in time

submit the questions raised with the Commission to the Federal

Constitutional Court.  That Court also did not give a decision on

these questions on account of there being other cause for doing so.

It cannot, however, be unreasonable to demand that before there is

recourse to the Commission the Federal Constitutional Court should

first be seized of the question in dispute in accordance with the

procedure laid down by statute.

B.      The applicant company

1.      The applicant company does not complain of the judgment of the

Administrative Court of Appeal of 20 May 1976.  A further appeal on

points of law, or a constitutional complaint, against this judgment

were in its view excluded on the ground that the applicant company was

not aggrieved, having obtained a decision in its favour on the

essential issue.  The Appeal Court's order, obliging the Land

Government to base its determination of the applicant company's

request for a broadcasting licence on the assumption that the relevant

provisions of the Broadcasting Act were valid, thus acquired the force

of res judicata.  But in the subsequent proceedings the above order

was violated by the Administrative Court and this violation was even

approved by the Appeal Court.

        In the applicant company's view the binding character of the

Appeal Court's judgment of 20 May 1976 was not affected by the fact

that the Appeal Court, when rendering that judgment, itself considered

the relevant provisions of the Broadcasting Act as unconstitutional,

but nevertheless had to apply them as a declaration of unconstitutionality

could only be pronounced by the Federal Constitutional Court.

2.      The applicant company was prevented by Article 132 para. 2 of

the Administrative Courts' Act (Verwaltungsgerichtsordnung) from

raising constitutional issues in its appeal against the refusal, in

the judgment of the Administrative Court of Appeal of 7 October 1982,

of leave to file a further appeal on points of law.

3.      There was no basis in law for a constitutional complaint to

the Federal Constitutional Court, either against the judgment of the

Administrative Court of Appeal of 7 October 1982 or against the

decision of the Federal Administrative Court of 23 December 1983.  The

violation of the principle of res judicata, complained of by the

applicant company, was an issue of ordinary and not of constitutional

law (cf.  Article 121 of the Administrative Courts' Act).  Moreover,

the Federal Constitutional Court had already ruled on the matter in

its judgment of 16 June 1981 and was itself bound by that judgment,

cf.  Article 31 of the Act on the Federal Constitutional Court and

Article 565 No. 2 of the Code of Civil Procedure

(Zivilprozessordnung).

4.      The applicant company accepts that the defendant State should

be given the opportunity of having possible violations of the law

examined by domestic authorities and of remedying them, if necessary,

before being called to account by an international instance (No.

9578/81, Dec. 7.12.82, D.R. 31 pp. 217/218 = EuGRZ 1983 p. 559).  In

its view, however, this rule was fully observed in the present case,

where the matter was first raised with the Land Government, then

before the Administrative Court, the Administrative Court of Appeal,

the Federal Constitutional Court, again before the Administrative

Court of Appeal, with the Land Government, before the Administrative

Court, the Federal Constitutional Court, and finally before the

Administrative Court, the Administrative Court of Appeal and the

Federal Administrative Court.  The applicant company was not required

to exhaust any further remedies which could not be considered as

effective.  To plead non-exhaustion of domestic remedies, after

proceedings which lasted fifteen years, means to obstruct the

application of the Convention.

THE LAW

        The applicant company complains:

- under Articles 10 and 14 (Art. 10, 14) of the Convention that its attempts to

  obtain a broadcasting licence in the Saarland remained unsuccessful,   and

- under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the

relevant   domestic proceedings.

I.      As to Article 10 (Art. 10) and to the "fair hearing" clause in

        Article 6 para. 1 (Art. 6-1)

1.      Article 10 para. 1 (Art. 10-1) of the Convention provides:

        "1.  Everyone has the right to freedom of expression.  This

        right shall include freedom to hold opinions and to receive

        and impart information and ideas without interference by

        public authority and regardless of frontiers.  This Article

        shall not prevent States from requiring the licensing of

        broadcasting, television or cinema enterprises."

        In its complaint under Article 10 (Art. 10) the applicant company also

relies on the judgment of the Administrative Court of Appeal of

20 May 1976 and on the principle of res judicata.  In its examination

of this aspect of the complaint the Commission has had regard to

Article 6 para. 1 (Art. 6-1) of the Convention, in so far as it concerns the

right to a fair hearing.

2.      The Government submit with regard to the applicant company's complaint

under Article 10 (Art. 10) that the relevant domestic proceedings, in so far as

they took place before the judgment of the Administrative Court of Appeal of 20

May 1976, were concluded by that judgment "with final and binding effect".  The

applicant company, agreeing that the above judgment acquired the force of res

judicata in 1976, states that it does not complain of the said judgment.

        The Commission observes that the present application was

introduced on 3 December 1981, that is five-and-a-half years after the

above final decision.  The Commission is thus in any case prevented, by the six

months' rule laid down in Article 26 (Art. 26) of the Convention, from

considering, in its examination of the applicant company's complaint under

Article 10 (Art. 10), the domestic proceedings which took place before 20 May

1976 and the compatibility, with Article 10 (Art. 10), of the final judgment of

the Administrative Court of Appeal of 20 May 1976.

3.      With regard to the subsequent domestic proceedings and

decisions, the Commission has first noted that the applicant company,

relying on the judgment of 20 May 1976 as a final and binding

decision, complains of a violation of the principle of res judicata.

The parties agree that this is an issue of ordinary and not of

constitutional law.  They disagree on the conclusions to be drawn, as

to the applicant company's claim for a broadcasting licence, from the

said judgment, seen in the light of the subsequent judgment of the

Federal Constitutional Court of 16 June 1981 and of various provisions of

ordinary German law, including Article 79 of the Act on the Federal

Constitutional Court.

        The Commission here recalls, with regard to the domestic

decisions which in the applicant company's view violate the principle

of res judicata, that, in accordance with Article 19 (Art. 19) of the

Convention, the Commission's only task is to ensure the observance of

the obligations undertaken by the Parties in the Convention.  In

particular, the Commission is not competent to deal with a complaint

alleging that errors of ordinary law have been committed by domestic

authorities, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention.  The Commission refers, on this point, to its

constant jurisprudence (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236;  No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 8417/78, Dec. 4.5.79, D.R. 16 pp. 200 (207);  No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45;  No. 10000/82, Dec. 4.7.83, D.R. 33 pp.

247, 255/256).

        The Commission has examined the applicant company's

submissions, concerning the alleged violation of the principle of res

judicata, in the light of the relevant statements in the court

decisions complained of, and of the Government's submissions on this

issue.  It finds no appearance of a violation of the Convention and in

particular, even assuming that a "civil right" was at issue, of the

fair hearing clause in Article 6 para. 1 (Art. 6-1).

        It follows that the applicant company's complaint, concerning

its unsuccessful attempts to obtain a broadcasting licence, is

manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention, in so far as it is based on the judgment of the

Administrative Court of Appeal of 20 May 1976 and on the principle of

res judicata.

4.      The Commission, recalling that the parties accept the judgment

of 20 May 1976 as final and binding, and that the Commission is

prevented by the six months' rule from examining its conformity with

the Convention (cf. 2 above), notes that, in this judgment, the

Administrative Court of Appeal dismissed the applicant company's claim

for a broadcasting licence, in so far as it was based directly on

Article 5 of the Basic Law.

5.      In respect of the subsequent proceedings and decisions the

Government, invoking Article 26 (Art. 26) of the Convention, also rely on the

rule requiring the exhaustion of domestic remedies.  They submit in

particular that the applicant company failed duly to exhaust two

domestic remedies:  appeal against the refusal, in the judgment of the

Administrative Court of Appeal of 7 October 1982, of leave to appeal

on points of law, and constitutional complaint.  The Commission does

not find it necessary to examine the question, disputed between the

parties, whether the applicant company has duly availed itself of the

first of these remedies as it is clear that is has not brought a

constitutional complaint and therefore failed to comply with Article

26 (Art. 26).

        The parties agree that, in cases concerning the Federal

Republic of Germany, the constitutional complaint to the Federal

Constitutional Court, for matters within the competence of that Court,

is a domestic remedy which in principle must be exhausted;  this is

confirmed by the case-law of the Convention organs (cf.  No. 1086/81,

Dec. 9.3.62, Collection 9 pp. 11, 15 with further references;  No.

5172/71, Dec. 9.7.73, Collection 44 p. 125;  Eur.  Court H.R.,

Glasenapp judgment of 28 August 1986, Series A No. 104, paras. 44/45).

        The applicant company submits, however, that Article 26 (Art. 26) of the

Convention does not require the exhaustion of remedies which cannot be

considered as effective and that, in the circumstances of the present

case, a constitutional complaint would not have constituted an

effective remedy.  The case had previously been before the Federal

Constitutional Court on two occasions, and an obligation to have

recourse to that Court a third time would amount to refusing access to

the Convention organs.

        The Commission notes that the Federal Constitutional Court,

when acting in this case for the first time in its decision of 24 March

1976 (BVerfGE 42, 42), declared inadmissible the request of the

Administrative Court for a ruling under Article 100 of the Basic Law.

It is clear that this procedural ruling did not deal with the

applicant company's entitlement, if any, under Article 5 of the Basic

Law.  The applicant company's argument that a constitutional complaint

would have been ineffective can therefore not be based on this ruling.

        The Commission further notes that the Federal Constitutional

Court, when acting in this case for the second time in its judgment of

16 June 1981 (BVerfGE 57, 295), declared unconstitutional, and

therefore null and void, the relevant provisions of the Saarland

Broadcasting Act of 1967.  However, the Court then saw "no need for a

decision on the issue - dealt with in the written and oral submissions

- of a basic right to organise private radio broadcasts" (loc. cit. p.

318).

        The applicant company's argument, that a constitutional

complaint would have served no purpose, is nevertheless mainly based

on the above judgment of the Federal Constitutional Court.

        The Commission accepts that a constitutional complaint by the

applicant company, alleging a violation of the principle of res

judicata, would indeed not have offered any prospects of success.

However, it has already found that the applicant company's complaint

is manifestly ill-founded, in so far as it is based on this principle

(see 3 above).

        The Commission next notes the holding, in the Federal

Constitutional Court's judgment of 16 June 1981, that, under Article 5

of the Basic Law, private broadcasting can only be licensed on the

basis of specific legislation guaranteeing the freedom of broadcasting.

The Commission concludes from this that a constitutional complaint by

the applicant company would have offered little prospect of success if

its subject-matter had been a claim to a broadcasting licence based

directly on Article 5 of the Basic Law, in the absence or irrespective

of implementing legislation as required in the above judgment.  The

Commission recalls, however, that such a claim by the applicant

company was already dismissed in the judgment of the Administrative

Court of Appeal of 20 May 1976, that the applicant company accepts

this judgment as binding, and that the Commission is in any case

prevented by the six months' rule from examining the compatibility of

this judgment with the Convention (see 4 above).

        It remains to be examined whether a constitutional complaint by

the applicant company would also have served no purpose if it had been

based on an alleged failure of the Saarland legislature to enact a new

Broadcasting Act.  The Commission notes that both the Administrative

Court (at page 33 of its judgment of 13 November 1981) and the

Administrative Court of Appeal (at page 26 of its judgment of 7 October

1982), when considering the applicant company's submission that the

Land was under a constitutional obligation to enact new broadcasting

legislation, referred to the possibility of a constitutional

complaint.

        The applicant company argues that a constitutional complaint

to the Federal Constitutional Court, alleging a failure to legislate,

would not have offered any prospect of success in 1984.  But this

submission is not supported by any reference to relevant previous

case-law of the Federal Constitutional Court.  In particular, no

conclusion to this effect can be drawn from the Court's procedural

ruling of 24 March 1976, or from its judgment of 16 June 1981

declaring unconstitutional the relevant provisions of the Saarland

Broadcasting Act of 1967.

        In any case, it is not for the Commission to rule on that

question - which has not yet been settled in German law - but the

Commission is obliged to confine itself to recording that the

applicant company has not clearly established that it was impossible

for it to appeal to the Constitutional Court on the grounds of an

alleged violation of the constitutional duty, under Article 5 (Art. 5) of the

Convention, to enact a new broadcasting act (cf. mutatis mutandis No.

712/60, Dec. 16.12.61, Collection 8 pp. 29, 41 = Yearbook 4 pp. 384,

406).

        Having found that the applicant company has failed to show

that domestic remedies have been exhausted, the Commission concludes

that this part of the application must be declared inadmissible under

Article 27 para. 3 (Art. 27-3) of the Convention.

        The Commission is therefore not called upon to examine the

substance of the applicant company's claim, i.e. the alleged right,

under Article 10 (Art. 10) of the Convention, to a broadcasting licence in a

particular Land of the Federal Republic of Germany.  The Commission

nevertheless observes that the applicant company, while claiming a

broadcasting licence in the Saarland, has failed to show that it has

sought a broadcasting licence in any of the other Länder of the

Federal Republic (such as Baden-Wuerttemberg, Rhineland-Palatinate and

Lower Saxony), where legislation concerning private broadcasting has

been enacted and where licences for private broadcasting have been or

are being granted.

6.      The Commission further notes that, after the introduction of

the present application, the Diet of the Saarland adopted a new

Broadcasting Act which, in Part B, provides for private broadcasting.

The Commission does not find, as suggested by the Government, that,

with the adoption of this Act, the applicant company ceased to be a victim, in

the sense of Article 25 (Art. 25) of the Convention.  It here notes the

applicant company's complaint that it has so far been prevented, by the Land

authority's failure to fix a period, under Article 39 para. 1 (Art. 39-1) of

the new Broadcasting Act, from seeking a licence under this Act.

        However, also in respect of this complaint, the Commission is

not called upon to examine the substance of the applicant company's

claim under Article 10 (Art. 10) of the Convention, as domestic remedies have

again not been exhausted.  The Commission here recalls that, in 1971,

the applicant company brought proceedings before the Administrative

Court, complaining that the Land Government had failed to act under

the Broadcasting Act of 1967, and that this action (Untätigkeitsklage)

was admitted and examined as to its merits by the Court.  The applicant

company has failed to show, with respect to the present complaint,

that an administrative court action, complaining of the Land

Authority's failure to fix a period for applications for broadcasting

licences under Article 39 of the Broadcasting Act of 1984, would have

offered no prospects of success.  Nor has it been established that a

constitutional complaint, after unsuccessful administrative court

proceedings, would have served no purpose.

7.      The Commission therefore concludes that the applicant

company's complaint under Article 10 (Art. 10) of the Convention is

inadmissible, under Article 27 para. 3 (Art. 27-3) read in conjunction with

Article 26 (Art. 26) of the Convention, for non-exhaustion of domestic

remedies, both as regards the proceedings which were concluded by the decision

of the Federal Administrative Court of 23 December 1983 and as regards the Land

Authority's failure to implement the Broadcasting Act of 1984.

II.     As to Article 14 (Art. 14)

        The Commission, recalling the conclusions reached under I

above, finds no issue under Article 14 (Art. 14) of the Convention.

III.    As to Article 6 (Art. 6)

1.      The applicant company also complains, under Article 6

para. 1 (Art. 6-1) of the Convention, of the length of the domestic proceedings

concerning its claim for a broadcasting licence under the Act of 1967.

        Article 6 para. 1 (Art. 6-1) provides, inter alia, that, in the

determination of his civil rights, everyone is entitled to a hearing

within a reasonable time by a tribunal.  The applicant company submits

that the above domestic proceedings concerned a "civil right" within

the meaning of this provision.

        The Commission finds that it is not called upon to determine

this question.  Even assuming that a "civil right" of the applicant

company was at issue, the Commission, for the reasons stated below,

sees no basis for a finding of a violation of Article 6 para. 1 (Art. 6-1).

2.      The Commission first observes in this respect that it is not

competent to examine the applicant company's complaint under Article 6 para. 1

(Art. 6-1) with regard to the domestic proceedings which led to the

determination of the applicant company's first action by the judgment of the

Administrative Court of Appeal of 20 May 1976.  It here recalls that the said

judgment became final in 1976 and further refers to the finding (under I, 2

above) that the present application was introduced after the expiry fo the six

months' time-limit as regards this final decision.

3.      As regards the subsequent proceedings, which led to the

decision of the Federal Administrative Court of 23 December 1983, the

Commission finds that a distinction must be made between the

proceedings before the administrative courts and those before the

Federal Constitutional Court.  It here notes the Federal

Constitutional Court's statement that proceedings under Article 100 of

the Basic Law "serve the constitutional court's guarantee that

objective law shall be observed" and that they "are not an instrument

for the individual to obtain a legal remedy" (BVerfGE 42, 90/91).  The

Commission therefore finds that, in the present case, the proceedings

before the Federal Constitutional Court, which lasted from 29 November

1978 until 16 June 1981, did not involve the "determination" of civil

rights of the applicant company.  It concludes that the applicant's

complaint, concerning the length of the proceedings as a whole, is

incompatible with Article 6 (Art. 6), in so far as it refers to the above

proceedings before the Federal Constitutional Court.

        It follows that two periods remain for consideration under Article 6

para. 1 (Art. 6-1) - one of two years and one month (between the refusal of a

licence by the Land Government on 26 October 1976 and the decision of the

Administrative Court of Appeal of 29 November 1978 dismissing the applicant

company's appeal against the Administrative Court's decision of 21 August 1978

to bring the matter again before the Federal Constitutional Court) and one of

two-and-a- half years (between the judgment of the Federal Constitutional Court

of 16 June 1981 and the decision of the Federal Administrative Court of 23

December 1983).

        The Commission notes that, during the first period, the case

was considered by the Administrative Court and the Administrative

Court of Appeal and that extensive written and oral proceedings took

place.  During the second period the case was again considered, in the

light of the new legal situation created by the judgment of the

Federal Constitutional Court, by the Administrative Court, the

Administrative Court of Appeal and the Federal Administrative Court,

and extensive written and oral proceedings took place again.  The

Commission moreover observes that the case was of considerable

complexity.

        In these circumstances the Commission does not find that the

above periods were unreasonably long.  It concludes that an

examination of the applicant company's complaint under Article 6

para. 1 (Art. 6-1), on the assumption that a "civil right" was involved in the

domestic proceedings, discloses no appearance of a violation of this

provision in the relevant proceedings.  It follows that this complaint 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. KRÜGER)                            (C.A. NØRGAARD)