CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 juillet 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)