AS TO THE ADMISSIBILITY OF
Application No. 19438/92
by A.J. and M.J.
against Sweden
The European Commission of Human Rights sitting in private on
29 March 1993, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. M. P. PELLONPÄÄ
B. MARXER
M. A. NOWICKI
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;
Having regard to the application introduced on 21 January 1992
by A.J. and M.J. against Sweden and registered on 27 January 1992 under
file No. 19438/92;
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 first applicant, A.J., was born in 1927 and resides at
Tullinge, Sweden. The second applicant, M.J., was born in 1953 and
resides at Tullinge, Sweden. They are both Swedish citizens. The first
applicant is also the representative of the second applicant.
The facts as presented by the applicants may be summarised as
follows.
On 25 October 1989 the European Court of Human Rights gave its
judgment in a case which had been introduced by the first applicant.
In this judgment, the Court found that the absence in Swedish law of
a court remedy against certain administrative decisions regarding
building prohibitions affecting the first applicant's property
constituted a violation of Article 6 para. 1 of the Convention. The
Court further decided that Sweden should reimburse the applicant's
costs and expenses but rejected the remainder of the applicant's claim
for just satisfaction.
On 28 June 1990 the European Court of Human Rights gave its
judgment in a case which had been introduced by the second applicant.
In this judgment, the Court found that the absence in Swedish law of
a court remedy against the decision to amend a building plan affecting
the second applicant's property constituted a violation of Article 6
para. 1 of the Convention. The Court further decided that Sweden should
pay the applicant 10,000 Swedish crowns for non-pecuniary damage and
reimburse his costs and expenses.
On 13 January 1990 the first applicant sent a letter to the
Minister of Justice in which he asked how the Minister intended to deal
with cases such as his, where it had been established by the European
Court of Human Rights that a person was entitled to a court
examination. In her reply of 4 April 1990, the Minister of Justice
pointed out that, as a consequence of the case-law of the European
Court, the 1988 Act on Judicial Review of Certain Administrative
Decisions (lagen om rättsprövning av vissa förvaltningsbeslut) had been
enacted but that this new legislation was not applicable to decisions
given before its entry into force on 1 June 1988.
On 26 February 1990 the first applicant wrote to the
Parliamentary Ombudsman (Riksdagens Justitieombudsmän), requesting that
a tribunal be designated which could examine his case as well as other
cases where a breach had been found of Article 6 para. 1 of the
Convention.
In his decision of 2 May 1990 the Chief Parliamentary Ombudsman
noted that the 1988 Act was only applicable to decisions given after
its entry into force on 1 June 1988. The Ombudsman stated that in these
circumstances he could not see that there was any other possibility for
the first applicant to obtain a re-examination of the decision of which
he complained.
On 15 June 1990 the first applicant wrote to the Chancellor of
Justice (Justitiekanslern), stating that Sweden was not exempted from
the obligation to make available a court examination satisfying the
requirements of Article 6 para. 1 of the Convention. On 20 June 1990
the Chancellor of Justice replied by referring to the decision of the
Chief Parliamentary Ombudsman.
On 23 June 1990 the first applicant submitted to the Supreme
Administrative Court (Regeringsrätten) a request under the 1988 Act for
judicial review of the manner in which the Minister of Justice, the
Parliamentary Ombudsman and the Chancellor of Justice had dealt with
his case. He stated that in his opinion the judgment of the European
Court in his case meant that Sweden was obliged to make it possible for
him to obtain an examination by a Swedish court.
On 10 July 1990 the first applicant, on behalf of the second
applicant, submitted to the Supreme Administrative Court a further
request for judicial review of a planning decision given in 1983 which
had restricted the building rights on the second applicant's property.
He referred to the judgment in the second applicant's case, in which
the European Court had found that he was entitled to a court
examination under Article 6 para. 1 of the Convention.
On 11 November 1991 the Supreme Administrative Court gave
decisions in both cases.
In the first decision (regarding the first applicant), the
Supreme Administrative Court noted that the request for review
concerned the way the Ministry of Justice, the Parliamentary Ombudsman
and the Chancellor of Justice had dealt with the first applicant's
case. However, the matters dealt with by these authorities had not
concerned any issue falling under Chapter 8 Section 2 (i.e. regarding
an individual's personal status and the personal and economic relations
between individuals) or Section 3 (i.e. regarding the relations between
individuals and the authorities with respect to obligations imposed on
individuals or otherwise regarding interferences with the personal or
economic conditions of individuals). Consequently, the 1988 Act on
Judicial Review of Certain Administrative Decisions was not applicable.
The Supreme Administrative Court therefore dismissed the applicant's
request for judicial review.
In the second decision (regarding the second applicant), the
Supreme Administrative Court noted that the building plan at issue had
been confirmed by the Government on 19 January 1984, whereas the 1988
Act was only applicable to decisions given on 1 June 1988 or later. His
request for judicial review was therefore inadmissible.
COMPLAINTS
The applicants complain that Sweden has not complied with its
obligations under the judgments of the European Court of Human Rights.
They complain of violations of Articles 1, 6 para. 1 and 53 of the
Convention.
THE LAW
The applicants refer to the judgments given by the European Court
of Human Rights in their cases and complain that Sweden has violated
its obligations under these judgments by continuing to deny the
applicants a court examination in regard to their civil rights. They
invoke Articles 1, 6 para. 1 and 53 (Art. 1, 6-1, 53) of the
Convention.
The Commission first recalls that it is not its task to examine
whether a High Contracting Party has complied with its obligations
under a judgment given by the European Court of Human Rights, this
supervision being entrusted under Article 54 (Art. 54) of the
Convention to the Committee of Ministers.
The Commission must therefore limit its examination in the
present case to the question as to whether, after the judgments in the
applicants' cases, there has been a new violation of Article 6 para.
1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, in its
relevant parts, as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission finds that the applicants complain in substance
of the fact that it has not been possible for them, after the judgments
of the European Court in their cases, to obtain a court review in
Sweden in regard to the same administrative decisions which were at
issue before the Strasbourg organs.
When the European Court gave its judgments in the cases, the 1988
Act on Judicial Review of Certain Administrative Decision had already
been enacted and been in force since 1 June 1988. However, the
applicants could not, in respect of the complaints they had brought
before the Strasbourg organs, benefit from the new Act, which only
applied to administrative decisions given after its entry into force.
The Commission is of the opinion that, insofar as the applicants
complained in their previous cases of the absence of a court remedy
against certain administrative decisions, the European Court has
finally dealt with the issue and also considered the question of just
satisfaction to the applicants under Article 50 (Art. 50) of the
Convention. In these circumstances, it cannot be seen as a new
violation of the Convention if, after the Court's judgments, it
remained impossible to obtain a court examination in regard to those
same decisions. A State, which adapts its procedural rules to comply
with the case-law of the European Court, cannot in general be required
to make the new rules retroactively applicable to cases already finally
decided in the past.
It follows that the application must be rejected as being
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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy