CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.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. 16844/90                       by NEDERLANDSE OMROEPPROGRAMMA STICHTING                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 13 October 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                    Mr.   K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 31 May 1990 by NEDERLANDSE OMROEPPROGRAMMA STICHTING against the Netherlands and registered on 10 July 1990 under file No. 16844/90;         Having regard to the observations submitted by the respondent Government on 21 January 1993 and the observations in reply submitted by the applicant on 3 May 1993;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The applicant, the Netherlands Broadcasting Programme Foundation (Nederlandse Omroepprogramma Stichting), is a non-profit co-operative organ of broadcasting institutions in the Netherlands.   Its registered seat is in Hilversum, the Netherlands.   Before the Commission the applicant is represented by Mr. E.J. Dommering, a lawyer practising in The Hague.         The facts of the case, as submitted by the parties, may be summarised as follows.         One of the applicant's tasks is to produce and broadcast certain collective programmes of a general interest, such as, inter alia, daily news broadcasts and sport programmes.         On 14 May 1988 in the applicant's broadcast "News for young people" (Jeugdjournaal), which aims at an audience between 9 and 12 years old, a programme was presented regarding holiday resorts and young people, in which a holiday at a "Centreparcs" resort where specifically organised activities are proposed was set out against a holiday at a camping site where no specifically organised activities are proposed.   The item included a short impression of a "Centreparcs" resort and a camping, an interview with the managers of both places and a discussion between two children who habitually pass their holiday in either one of these places. In the presentation of this programme the name "Centreparcs", the exploiting company, was mentioned several times.         On   16 July 1988 the applicant broadcast its programme "Klokhuis" on everyday issues, which aims at an audience between 9 and 13 years old.   In the context of a feature on the recycling of glass, a sketch was presented, in which someone drank "Coca-Cola" from several small returnable bottles simultaneously through straws expressing the intention to buy a bag of "Wokkels", a savoury snack, with the deposit money to be received upon the return of these bottles to the shop. In the course of this sketch the names of "Coca-Cola" and "Wokkels" were mentioned several times and "Coca-Cola" bottles were visible during almost the entire duration of the sketch.         By letter of 15 August 1988 the Commissariat for the Media (Commissariaat voor de Media) informed the applicant that it intended to impose a sanction on the applicant, as it considered these and certain other broadcasts, in view of the extensive attention given to "Centreparcs", the lengthy display of "Coca-Cola" bottles and the repetitive mention of "Wokkels", to be in violation of Section 52 of the Media Act (Mediawet), which, inter alia, provides that broadcasts must not contain direct or indirect commercial publicity unless authorised under the Media Act or unavoidable.         Following a hearing and after having considered advice of the Commission of Experts (Deskundigen Commissie), the Commissariat for the Media, on 11 November 1988, imposed a fine of 8,000 guilders for the news broadcast and a fine of 7,000 guilders for the "Klokhuis" broadcast on the applicant for having violated Section 52 of the Media Act.           The applicant's appeal under the Administrative Decisions Appeals Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen) to the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) against the two fines was rejected on 5 December 1989.         Insofar as the applicant invoked Article 6 of the Convention, the Judicial Division held that this provision requires that a sanction imposed must be proportionate to the committed offence. Noting that the fines were set at 10% of the normal amounts, as it was the first time the applicant was fined in this respect, the Judicial Division did not consider the fines to be disproportionate to the offence.         Concerning the applicant's complaint under Article 10 of the Convention, the Judicial Division held that a prohibition on commercial publicity constituted a condition for a broadcasting licence within the meaning of the last sentence of Article 10 para. 1 of the Convention and that, therefore, this prohibition did not contravene Article 10.         The Judicial Division added, however, that the authorities in this respect do not enjoy an unlimited freedom, as in view of Articles 14, 17 and 18 of the Convention, the use of a licence system should not give rise to arbitrariness, discrimination, unnecessary restrictions or abuse of power. It should be subject to supervision by an independent and impartial judge or administrative appeal organ.   The Judicial Division considered that the rules at issue complied with these requirements.         In respect of the applicant's complaint under Article 14 of the Convention that the restrictions imposed on Dutch broadcasting institutions are more severe than those of foreign broadcasting institutions whose programmes can be received in the Netherlands, the Judicial Division considered that the Netherlands authorities cannot control restrictions imposed on foreign broadcasting institutions. The Judicial Division, therefore, rejected the argument that Article 14 was violated.     RELEVANT DOMESTIC LAW         The task of the Dutch Broadcasting Programme Foundation is set out in Section 16 para. 2 of the Media Act, which provides, inter alia: <Translation>       "Apart from other tasks of the Foundation under this Act,       it is entrusted with:         a.   the co-ordination of the programmes of the institutions           which have obtained broadcasting time for national           broadcasts;         b.   the producing and broadcasting of a programme;"         Section 40 para. 1 of the Media Act provides, inter alia: <Translation>       "1. The Commissariat for the Media allocates [...]       broadcasting time to broadcasting institutions, [...] and       the Foundation on the understanding that [...]         c.   the Foundation will be allocated twice as much           broadcasting time for television broadcasts as a           broadcasting institution A [...]."         Section 51 of the Media Act provides, inter alia: <Translation>       "1.   The Foundation uses the broadcasting time, allocated       in accordance with Section 40 para. 1, for national       broadcasts entirely for a collective programme.         2.   The programme consists of items, which satisfy existing       social, cultural, religious or spiritual needs of the       people, which needs are insufficiently met by programmes of       other institutions, which have broadcasting time [...].         3.   Apart from the items mentioned under para. 2 the       programme includes items pre-eminently suitable for a       collective production.   To this category belong those       programme items, which require a high frequency and set       regularity of broadcasting, which are of a general service       nature [...]."         Section 50 para. 6 of the Media Act, insofar as relevant, provides: <Translation>       "The television and radio advertising association       (Stichting Etherreclame) uses its broadcasting time for a       programme consisting of commercials offered by third       parties. (...). The programme of the television and radio       advertising association is as such recognisable and clearly       distinct from programmes of other institutions having       obtained broadcasting time."         Section 52 paras. 1 and 2 of the Media Act provide as follows: <Translation>       "1. The programmes of institutions which have obtained       broadcasting time will not contain any commercial publicity       unless this is explicitly allowed under this Act.         2.   Furthermore the programmes referred to in para. 1 do       not contain other commercial utterances unless this is       unavoidable.   It can be determined by Order in Council       (algemene maatregel van bestuur) in which cases a       commercial utterance in a programme can be considered as       being unavoidable, as well as when it is permitted that       programmes contain commercial utterances."         Section 1 of the Media Act, insofar as relevant, provides as follows: <Translation>       "1. (...)       r.    commercials (reclameboodschappen): communications       which unmistakably aim at encouraging the public to       purchase a particular product or use a particular service,       or at giving it a favourable image of a particular company,       branch of industry of institution in order to promote the       sale of products or the use of services;       s.    commercial utterances (reclame-uitingen): commercials       and other utterances which unmistakably result in the       public being encouraged to buy a particular product or to       use a particular service, or being given a favourable image       of a particular company, branch of industry or institution       so that the sale of products or the use of services will be       promoted.         2.    The calling for support for or the giving of a       favourable view to institutions with a scientific,       cultural, spiritual, religious, political or charitable       character is not considered as a commercial or other       commercial utterance, insofar as it does not refer to       buying a certain product or the use of a particular service       which can be obtained at the commercial market."         The Order in Council of 19 November 1987 implements the general rules of the Media Act. Sections 26 up to and including 32 of this Media Decree (Mediabesluit) deal with direct or indirect commercial publicity within the meaning of Section 52 of the Media Act.         The Media Decree rules divide such publicity in unavoidable publicity, being, generally speaking, commercial utterances belonging to the normal street scene and which occur unintentionally and without emphasis for some seconds in a programme, and avoidable publicity, the latter category being either permitted under certain conditions in educational, informative or sport programmes, or not permitted.         Section 134 of the Media Act entrusts the supervision of the observance of the Media Act to the Commissariat of the Media. Section 135 of the Media Act entitles the Commissariat to impose an administrative fine of up to 200,000 Dutch guilders per offence for the non-observance of, inter alia, Section 52 of the Media Act.         Under Section 137 of the Media Act such a fine can be collected either by way of an enforcement order (dwangbevel) or by way of deducing the amount of the fine from the compensation paid by the Commissariat of the Media to broadcasting institutions for the costs of radio and television facilities.     COMPLAINTS   1.     The applicant complains under Article 10 of the Convention that its right to freedom of expression has been unjustly interfered with. It submits that the rules of the Media Act on indirect commercial publicity lack both clarity and precision, that the interference with its right to freedom of expression lacks a legitimate aim and that it was not necessary in a democratic society.   2.     The applicant complains under Article 14 of the Convention in conjunction with Article 10 that regulations on broadcasting institutions imposed by the Dutch authorities are more stringent than those imposed by authorities over foreign broadcasting institutions whose broadcasts can be received in the Netherlands.   3.     The applicant complains under Article 6 para. 1 of the Convention that the criminal charge against it was determined by the Commissariat for the Media, which is not an independent and impartial tribunal.   The applicant submits in particular that the Commissariat for the Media does not only impose a sanction, i.e. a fine, but also immediately executes this sanction, whereas an appeal to a judicial authority has no suspensive effect.   4.     The applicant complains under Article 6 para. 2 of the Convention that the words "until proved guilty according to law" imply the principle that a prosecuting authority carries the burden of proof in respect of the facts with which an accused is charged, in the present case, whether the commercial utterances were conducive to the sale of the products at issue.   The applicant complains that this proof was not required in the present proceedings.   5.     The applicant finally complains under Article 6 para. 3 (a) of the Convention that the charges against it lacked both clarity and precision as it could not be established from the charges against it which part of the broadcasts was considered to constitute an offence.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 31 May 1990 and registered on 10 July 1990.         On 14 October 1992 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 21 January 1993 and the applicant's observations in reply were submitted on 3 May 1993.     THE LAW   1.     The applicant complains under Article 10 (Art. 10) of the Convention that its right to freedom of expression has been unjustly interfered with by the imposition of a fine in respect of two of its broadcast programmes.         Article 10 (Art. 10) of the Convention reads as follows:         "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.         "2.   The exercise of these freedoms, since it carries with       it duties and responsibilities, may be subject to such       formalities, conditions, restrictions or penalties as are       prescribed by law and are necessary in a democratic society       (...) for the prevention of disorder (...), for the       protection of the (...) rights of others (...)."           The Government submit that the legal framework of the Dutch broadcasting system is based on the principles of openness, diversity, non-commerciality and co-operation. Under the Media Act the currently eight Dutch broadcasting institutions are bound by several constraints, among which the obligation to eschew advertising. They are allocated national broadcasting time by the Commissariat for the Media, which also allocates time to a number of educational institutions, political parties and other groupings, such as organisations based on religious or other philosophical principles, thereby guaranteeing a programming schedule which permits the various shades of political, social and religious or philosophical opinions in the Netherlands full expression.         The Government state that under the Media Act only the television and radio advertising association "STER" (Stichting Ether Reclame) is allowed to broadcast commercials. The "STER" does not produce the commercials itself, but merely provides for the transmission of commercials offered by third parties. Its revenue is passed on to the Government, which uses it to defray the costs of implementing the Media Act.         The Government observe that the requirement under the Media Act, that advertising shall be clearly distinguishable as such and separate from other programmes, is also laid down in Directive no 89/552/EEC of 3 October 1989 of the Council of the European Communities and the European Convention on Transfrontier Television of 5 May 1989 of the Council of Europe, given that throughout Europe advertising is becoming an increasingly important source of financing for broadcasting organisations.         The Government are of the opinion that Article 10 (Art. 10) of the Convention does not include the right to introduce surreptitious advertising in programmes such as news broadcasts. The right to provide and disseminate information does not confer a general right of access to broadcasting time on radio and television. The Government consider that the Netherlands' choice for a system in which a licence for broadcasting commercials is exclusively granted to the "STER" is in accordance with the aim contained in the third sentence of para. 1 of Article 10 (Art. 10) of the Convention. Therefore, not to permit an unexpected appearance of advertising as an integral part of a programme by another broadcasting institution than the "STER" does not constitute an interference with the right to freedom of expression.         The Government, alternatively, argue that, if the measure complained of should be regarded as an interference with the applicant's rights under Article 10 (Art. 10) of the Convention, the interference must be considered as being justified under para. 2 of this provision as being prescribed by law and necessary in a democratic society for the prevention of disorder and for the protection of the rights of others, namely the rights of the general public - in particular the vulnerable category of young people -, who must be protected from misleading practices, the rights of other broadcasting institutions subject to the same rules and the rights of other advertisers. According to the Government the protection of third parties also includes the promotion of pluralism in respect of information.           The Government submit that both the Media Act and the Media Decree are accessible to all, that their rules are sufficiently clear and precise and that the consequences of their rules are readily foreseeable, in particular having regard to the legal and technical expertise the restricted group of broadcasting institutions in the Netherlands may be expected to have. The Government admit that the rules of the Media Act and the Media Decree sometimes need clarification, but do not consider that the fact that legislation needs interpretation is contrary to the Convention.         Having regard to their margin of appreciation the Government are of the opinion that the interference complained of is proportionate to the legitimate aim pursued. The restrictions on advertising contained in the applicable rules do not deprive the broadcasting institutions of the right to provide information. These rules do not regard the contents of the information, but the way it is presented. The programmes at issue were both recorded in advance and the emphatical mention of "Centreparcs" and the focus on "Coca-Cola" and "Wokkels" was unnecessary for the presentation of the programme items.         The applicant points out that the Dutch rules on advertisement are more strict than those set out in the European Convention on Transfrontier Television in the sense that the former also prohibit commercial utterances, which are very broadly defined. The applicant submits that in its decision of 5 December 1989 the Judicial Division of the Council of State extended this broad definition by considering that a "sales-boosting" effect is already present if products or services are shown or the name of a product or service is mentioned in a broadcast. Under Dutch law a commercial utterance can be judged as prohibited without any examination of the intention of the broadcasting institution, the context in which the utterance was made and whether or not a payment in money or kind was received in return.         The applicant considers that the Dutch and the European rules on surreptitious advertising are fundamentally different. The former system drastically restricts the freedom of expression. Furthermore a comparison with the systems used in other European States shows that, contrary to the situation in the Netherlands, in general the monitoring of surreptitious advertising in the public broadcasting service is left largely to the broadcasting institutions themselves and that, where a system provides the possibility to impose sanctions, sanctions are in practice hardly ever imposed.         The applicant refutes the Government's argument that there has been no interference with its rights under Article 10 (Art. 10) of the Convention, since the restrictive Dutch rules in respect of commercial utterances directly interfere with the applicant's freedom of expression. Referring to the Court's reasoning in the Barthold case (Eur. Court H.R., judgment of 25 March 1985, Series A no. 90, paras. 42 and 55) and the dissenting opinion of Judge Martens, approved by Judge Macdonald, in the case of Markt Intern Verlag Gmbh and Klaus Beermann (Eur Court H.R., judgment of 20 November 1989, Series A no. 165), the applicant considers that the contents of the programmes at issue cannot be regarded as constituting "advertisement" and that a Contracting State's margin of appreciation in respect of commercial utterances must be examined in the light of a European standard.           The applicant further submits that directors, producers and journalists of broadcasting institutions, when making programmes, are either hampered in the exercise of their editorial freedom or risk large fines when exercising this freedom as a result of the inaccessibility and unpredictability of the criteria in the Dutch media regulations. Producers do not have the time for repeated consultations of specialised lawyers in order to prevent the imposition of large fines, which entails the risk of self-censorship and results in requesting the Commissariat for the Media's prior consent for particular programme parts already during the production thereof.         Under para. 2 of Article 10 (Art. 10-2) of the Convention, the applicant submits that nothing in the draft history, text and practical application of Dutch media regulations suggests that they seek to protect consumers against misleading or deceptive practices and companies against unfair competition. Furthermore, not the rules on advertisement, but other Sections of the Media Act seek to guarantee pluralism in the Dutch broadcasting system. The applicant finally complains that it has not been examined in which context the utterances were made, whether payment has been received in return and which impact the utterances at issue had on the audience, and that the fines imposed are disproportionate to the aim pursued.         The Commission recalls at the outset that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, 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 (cf. No. 11941/86, Dec. 5.10.88, D.R. 57, p. 100).         The Commission notes that the commercial utterances at issue were made in the context of television programmes containing information of a general nature and which were primarily aimed at a young audience. Such programmes cannot be excluded from the scope of Article 10 (Art. 10) of the Convention, which does not apply solely to certain types of information or ideas or forms of expression (cf. Eur. Court H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, para. 26).         The Commission is of the opinion that the fines imposed for having broadcast prohibited commercial utterances in the context of informative television programmes constituted an interference with the applicant's right under Article 10 para. 1 (Art. 10-1) of the Convention. Such an interference is contrary to the Convention unless it is "prescribed by law", has an aim or aims that is or are legitimate under para. 2 of Article 10 (Art. 10-2) and is "necessary in a democratic society" for the aforesaid aim or aims.         As regards the condition "prescribed by law", the Commission considers that the interference had a legal basis in Sections 1 and 52 of the Media Act and in Sections 26 to 33 of the Media Decree, which indicate with sufficient clarity under which circumstances commercial utterances can be regarded as permitted. Moreover, the mere fact that a legislative provision may give rise to problems of interpretation does not mean that it is so vague and imprecise as to lack the quality of "law" (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51, p. 136).         The Commission is satisfied that the texts of these provisions were "adequately accessible" to the applicant (as to this criterion cf. Eur. Court H.R., Sunday Times (No.1) judgment of 26 April 1979, Series A no. 30, para. 49). As to foreseeability, the Commission considers that the applicant, as a co-operative organ of broadcasting institutions in the Netherlands, could reasonably foresee that the utterances at issue might be considered as being contrary to the Media Act and the Media Decree.         The Commission accepts that the interference complained of pursued a legitimate aim, in that it was intended to protect the rights of others and, in particular, the right of children to be protected against indirect advertisement in television programmes primarily aimed at a young audience and the right of companies to be protected against unfair competition.         Finally the Commission must examine whether the interference complained of was necessary in a democratic society. The Commission recalls that the Contracting States have a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to a supervision by the Convention organs. The margin of appreciation is particularly important in commercial matters and in an area as complex as that of unfair competition, where the Convention organs must confine their review to the question whether the measures taken on a national level are justifiable in principle and proportionate (Markt Intern Verlag GmbH and Klaus Beermann judgment, ibid., para. 33). The Commission considers that the same principle applies in the present case concerning indirect advertisement in television programmes.         The Commission notes that the two programmes at issue were prerecorded and concerned alternative possibilities to spend holidays and information on the recycling of glass respectively. Although the Commission finds nothing to suggest that the applicant was intentionally seeking to promote "Centreparcs" resorts, "Coca-Cola" or "Wokkels", it is of the opinion that, in view of the target audience of these programmes, the specific position of the applicant in the Netherlands broadcasting system and the respective amounts of the fines imposed, the interference at issue cannot be said to be beyond the Netherlands margin of appreciation or to be unreasonable or disproportionate.         The Commission, therefore, concludes that the interference complained of was a measure prescribed by law and could reasonably be considered as necessary in a democratic society for the protection of the rights of others.         It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 14 of the Convention in conjunction with Article 10 (Art. 14+10) that regulations on broadcasting institutions imposed by the Dutch authorities are more stringent than those imposed by authorities on foreign broadcasting institutions whose broadcasts can be received in the Netherlands.             The Commission notes that the applicant seeks to compare its situation with that of a foreign broadcasting institution which is subject to the national laws of another country. The Commission does not find that these two situations can be considered as being analogous and, therefore, no question of discrimination within the meaning of Article 14 (Art. 14) of the Convention arises in the present case (cf. Eur. Court H.R., Van der Mussele judgment of 23 November 1983, Series A no. 70, para. 46).         It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant finally complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal charge against it was determined by the Commissariat for the Media, which is not an independent and impartial tribunal. It also complains that the fines imposed violated Article 6 para. 2 (Art. 6-2) of the Convention in that the Commissariat for the Media does not have to prove that the commercial utterances were in fact conducive to the sale of the products at issue. The applicant finally complains under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention that the charges against it lacked both clarity and precision.         Article 6 (Art. 6) of the Convention, insofar as relevant, provides:         "1.   In the determination of his civil rights and       obligations or of any criminal charge against him, everyone       is entitled to a fair (...) hearing (...) by an independent       and impartial tribunal established by law. (...).         2.    Everyone charged with a criminal offence shall be       presumed innocent until proved guilty according to law.         3.    Everyone charged with a criminal offence has the       following minimum rights:         a. to be informed promptly (...) of the nature and cause of the       accusation against him;"         The Government submit that Article 6 (Art. 6) of the Convention does not apply to the proceedings at issue.         The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention only applies to proceedings in which a "civil right or obligation" or a "criminal charge" is determined. The applicant does not rely on the notion of "civil right" and the Commission finds that no "civil right" is at issue. It observes in this respect that disciplinary proceedings may involve the determination of a civil right, when such proceedings can lead to someone being deprived of his right to exercise his profession (cf. No. 11504/85, Dec. 7.11.88, D.R. 58, p. 48 and No. 12458/86, Dec. 18.1.89, D.R. 59, p. 113). This situation does not arise in the present case.         The Commission does not find it necessary to resolve the question whether or not the proceedings at issue concerned a determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)       of the Convention, as this part of the application is in any event inadmissible for the following reasons.         Assuming that the proceedings at issue involved a determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission notes that, under the Administrative Decisions Appeals Act, the applicant could, and in fact did, file an appeal with the Judicial Division of the Council of State, a judicial organ the independence and impartiality of which is not contested by the applicant.         The Commission considers that where criminal charges have been successively examined by different organs, Article 6 para. 1 (Art. 6-1) does not necessarily demand that the first of them satisfies the requirements of that provision (cf. mutatis mutandis, No. 111798/84, Dec. 9.7.86, D.R. 48 p. 207). The Commission therefore finds that the applicant's case was examined by an independent and impartial tribunal as required by Article 6 para. 1 (Art. 6-1).         The Commission does not find that the facts of the case raise an issue under Article 6 para. 2 (Art. 6-2) of the Convention (cf., as regards presumptions in criminal proceedings, Eur. Court H.R., Salabiaku judgment of 7 October 1988, Series A no. 141-A, pp. 14ff., paras. 26ff.).         As regards the applicant's complaint under Article 6 para. 3 (Art. 6-3) of the Convention that the charges against it lacked both clarity and precision, the Commission notes that the Commissariat for the Media by letter of 15 August 1988 informed the applicant that it intended to impose a sanction on the applicant for having violated Section 52 of the Media Act in view of, inter alia, the extensive attention given to "Centreparcs", the lengthy display of "Coca-Cola" bottles and the repetitive mention of "Wokkels" in two identified broadcasts.         The Commission recalls its findings under Article 10 (Art. 10) of the Convention that the Media Act and the Media Decree indicate with sufficient clarity under which circumstances commercial utterances can be regarded as permitted and that the applicant - as a co-operative organ of broadcasting institutions in the Netherlands - could reasonably foresee that the utterances at issue might be considered as being contrary to the Media Act and the Media Decree.         In these circumstances the Commission finds that the letter of 15 August 1988 from the Commissariat for the Media to the applicant contained sufficiently clear information for the purposes of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)