AS TO THE ADMISSIBILITY
Application No. 12057/86
by The Estate of Maria ÅKERBLOM
against Sweden
The European Commission of Human Rights sitting in private on
5 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
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 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 December
1985 by The Estate of Maria ÅKERBLOM against Sweden and registered
on 25 March 1986 under file No. 12057/86;
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 of the case, as submitted by the applicant estate,
may be summarised as follows.
The applicant is the estate of Miss Maria Åkerblom, a Swedish
citizen born in 1892 who died in 1985. It is represented by Mr. Göran
Ravnsborg, who is also the executor (boutredningsman) of the applicant
estate.
Mr. Ravnsborg had been appointed as Miss Åkerblom's guardian
ad litem (god man) in 1982 by the Gothenburg District Court
(tingsrätt). A dispute arose during the period of the guardianship
about the legal basis of a payment by Miss Åkerblom of medical fees
for her nursing care and the amount of such fees. Mr. Ravnsborg,
acting on behalf of Miss Åkerblom, refused to pay the fees claimed.
This refusal to pay fees claimed by the nursing foundation led
to legal proceedings against Mr. Ravnsborg instituted by Mr. Lennart
Fridén, a Supervisory Guardian (överförmyndare). Mr. Fridén claimed
the dismissal of Mr. Ravnsborg as guardian ad litem of Miss Åkerblom
and his consequent replacement. For his part, Mr. Ravnsborg counter-
claimed that the Court should dismiss Mr. Fridén as Supervisory
Guardian and replace him.
Before the case was decided by the court, the Supervisory
Guardians Board (överförmyndarnämnden) of Gothenburg intervened in
respect of Mr. Fridén. The Board withdrew the claim of Mr. Ravnsborg's
dismissal and replaced Mr. Fridén as Supervisory Guardian by
Mr. Arne Österberg.
The presiding judge in the case in the Gothenburg District
Court was judge Stefan Wikmark.
On 12 June 1985 the Court decided to strike the case off its
list as regards the claim for the dismissal of Mr. Ravnsborg, to
reject the claim that Mr. Fridén be dismissed and to reject
Mr. Ravnsborg's claim for costs. Mr. Ravnsborg submits that the
decision to refuse him compensation for costs was unlawful.
Upon the death of Miss Åkerblom in 1985, the nursing
foundation sued the applicant estate for medical and nursing care fees
claimed to be outstanding. The executor of the applicant estate,
Mr. Ravnsborg, contested this claim. The judge appointed to hear the
case in the Gothenburg District Court was judge Stefan Wikmark.
Because this judge had found against Mr. Ravnsborg in the previous
case on what Mr. Ravnsborg considers unlawful grounds, the applicant
estate claimed that the judge was prejudiced against it and therefore
lawfully disqualified from hearing the case. It is submitted that the
legal issues were similar in the two cases since basically it related
to the legal basis for the nursing foundation's right to claim fees
from Miss Åkerblom. This challenge was rejected by the Gothenburg
District Court on 17 July 1985.
The applicant estate appealed to the Court of Appeal
(hovrätten) of Western Sweden, which dismissed the appeal on
19 December 1985.
The applicant estate submitted a further appeal to the Supreme
Court (högsta domstolen) which, in a decision of 12 June 1986,
dismissed the appeal stating that it was not possible to appeal
against the decision of the Court of Appeal.
COMPLAINTS
1. The applicant estate complains under Article 6 para. 1 of the
Convention that it has been denied a fair hearing before an impartial
tribunal in that judge Stefan Wikmark was prejudiced and lacked
impartiality towards the applicant estate as a result of the judge's
conduct in the previous case against Mr. Ravnsborg who is now the
executor of the applicant estate.
2. The applicant further complains under Article 6 para. 1 of the
Convention that the decisions on its challenge of judge Stefan Wikmark
were taken without a fair and public hearing in the District Court and
also in the Court of Appeal of Western Sweden.
THE LAW
1. The applicant estate complains that it did not receive a fair
hearing before an impartial tribunal in the action by the nursing
foundation because of the partiality of judge Stefan Wikmark.
The applicant estate alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention which provides that:
" In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing .....
by an independent and impartial tribunal established by
law."
The Commission considers that Article 6 (Art. 6) of the Convention was
applicable to the proceedings complained of and the question whether the Court
satisfied the condition of impartiality must therefore be examined.
The European Court of Human Rights has stated that the
requirement of impartiality in Article 6 (Art. 6) of the Convention implies a
double guarantee: first, the subjective element of lack of bias in
the judge, and second, an objective element in that his position must
not give rise to legitimate doubts about his impartiality (Eur. Court
H.R., Piersack judgment of 1 October 1982, Series A, no. 53, p. 14,
para. 30).
As regards the subjective element, the applicant estate
complains that the judge was biased against it because he failed to
award the applicant's executor, Göran Ravnsborg, a sum of costs in
earlier proceedings, a decision the applicant estate regards as
contrary to Swedish law.
The Commission recalls its constant case-law that its
functions do not include determination of the domestic law of
Contracting States. It further recalls that the personal impartiality
of a judge must be presumed until the contrary is established (Eur.
Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June
1981, Series A, No. 43, p. 25, para. 58). The Commission finds no
evidence to indicate that the judge was partial.
As regards the objective element, the applicant estate
complains that there is legitimate doubt about the judge's
impartiality on the basis of an earlier decision which the judge had
taken in another case and which was a decision against Mr. Ravnsborg.
The Commission notes that the previous decision was taken in a
different case between different parties. It is true that
Mr. Ravnsborg was involved in both cases, in the first case as a party
and in the second case as the legal representative of one of the
parties. The Commission considers, however, that this situation could
not give rise to any legitimate doubts about the impartiality of judge
Stefan Wikmark. It follows that this complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant estate further complains that it was not granted
a hearing of its challenge of the judge either in the District
Court of Gothenburg or in the Court of Appeal of Western Sweden.
Article 6 (Art. 6) of the Convention is only applicable "in the
determination of (an individual's) civil rights and obligations or of
any criminal charge against him ..."
Since there is no question of a "criminal charge" in this case
it must be examined whether the decision that judge Stefan Wikmark
should hear the case involving the applicant estate was a
"determination" of its "civil rights".
The Commission recalls that a decision of a court concerning
procedural questions does not concern a determination of civil rights
and obligations (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107). The
Commission finds that when a court decides on the challenge of a judge
it is not determining any civil rights or obligations of the
parties to the proceedings.
It follows that Article 6 (Art. 6) of the Convention was not applicable
to the determination of the challenge of judge Wikmark. Accordingly, this
complaint is incompatible ratione materiae with the provisions of the
Convention 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)