Bellis v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 32556/96

by David BELLIS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 6 April 1996 by

David BELLIS against the United Kingdom and registered on 7 August 1996

under file No. 32556/96;

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 is a British citizen, resident in Manchester. The

facts of the case as submitted by the applicant can be summarised as

follows.

A. Particular circumstances of the case

In 1992 the applicant was convicted by a Magistrate's Court under

the Broadcasting Act 1990 for running a radio station without a

licence. The applicant was fined, his equipment was seized and he was

disqualified from holding a licence to broadcast for a period of five

years.

Despite the existence of this ban the applicant obtained

employment with a radio station in Liverpool. However the Radio

Authority complained to the station, stating that the applicant was a

disqualified broadcaster. The radio station, although satisfied with

the applicant's services, terminated the employment of the applicant

on receipt of the complaint.

B. Relevant domestic law

Under Section 97 of the Broadcasting Act 1990 there is a

prohibition on providing independent radio services without a licence.

Under Section 89 of the Broadcasting Act 1990 any person

convicted of an offence under Section 97, is disqualified for holding

a broadcasting licence for a period of five years.

COMPLAINTS

The applicant complains about the ban that has prevented him from

pursuing his chosen career. He complains that the ban was excessive and

that there was no procedure whereby he could appeal for the ban to be

lifted (he does not dispute the conviction itself). He invokes

Articles 10 and 13 of the Convention.

THE LAW

1 The applicant complains of a violation of his right to freedom

of expression under Article 10 (Art. 10).

Article 10 (Art. 10) provides, so far as relevant, 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."

The Commission notes that the last sentence of Article 10 para. 1

(Art. 10-1) specifically envisages legislation requiring the licensing

of broadcasting. It must therefore be legitimate under the Convention

for a State to enact measures directed against those who seek to avoid

the licensing requirements (see No. 8266/78, Dec. 4.12.78, D.R. 16, p.

190 at p. 192 and No. 10799/84, Dec. 17.5.84, D.R. 37, p. 236 at p.

240). In the present case the applicant broadcast without a licence and

by way of penalty was disqualified from broadcasting for a period of

five years. The Commission considers it was within the State's margin

of appreciation to impose a disqualifying penalty in order to serve as

a real deterrent to unlicensed broadcasting. The Commission does not

consider the automatic imposition of a five year ban either arbitrary

or excessive in the circumstances.

It follows that this part of the application must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2 The applicant complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy, in particular that the was

unable to appeal against his disqualification.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present

case, the Commission has rejected the substantive claims as disclosing

no appearance of a violation of the Convention. For similar reasons,

they cannot be regarded as "arguable".

It follows that this part of the application must be dismissed

as 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.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber