AS TO THE ADMISSIBILITY OF
Application No. 31682/96
by Jan BEDZUH and Peter MADSEN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 17 February 1996
by Jan Bedzuh and Peter Madsen against Sweden and registered on
31 May 1996 under file No. 31682/96;
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 first applicant, a Swedish citizen born in 1933, is a
pensioner. The second applicant, a Swedish citizen born in 1957, is
a farmer. They reside in Helsingborg and Kågeröd, respectively.
Before the Commission they are represented by their lawyer,
Mr Göran Ravnsborg, Lund.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Between June and November 1989 the first applicant was the
managing director and deputy member of the board of a company,
Skandinavisk Metallförmedling AB (hereinafter "the company"), which
traded in gold. Between June 1989 and June 1990 the second applicant
was a member of the board and the sole owner of the shares of the
company.
After a tax audit of the company, the County Tax Authority
(skattemyndigheten) of the County of Malmöhus, by decisions of
27 February and 14 May 1990, refused the company certain deductions
claimed by it in its VAT declarations for the period May - October
1989. The refused deductions amounted to 3,962,857 Swedish crowns
(SEK). This amount was payable to the State. In addition, the company
was liable to pay 792,570 SEK as a special charge (tax supplement;
skattetillägg), as it was deemed to have supplied false information in
its VAT declarations.
On 9 June 1992 the County Administrative Court (länsrätten) of
the County of Malmöhus rejected the company's appeal against the above
decisions. The company made a further appeal to the Administrative
Court of Appeal (kammarrätten) in Göteborg.
On 17 June 1992 the company was declared bankrupt by the District
Court (tingsrätten) of Landskrona.
By an application (stämningsansökan) filed with the District
Court of Helsingborg on 22 June 1994, the State represented by the
County Tax Authority claimed that the applicants should be held
personally liable to pay the company's VAT debt.
Between July and September 1994, the applicants lodged several
statements with the District Court in which they demanded that the
State's claim be rejected and made several procedural claims, inter
alia that an expert should be appointed and that the company should be
allowed to intervene in the case on the applicants' side. The
applicants' requests were rejected by the District Court on
10 October 1994.
By judgment of 21 June 1995, the Administrative Court of Appeal
found in favour of the company and accordingly decided that it was
allowed to make the above deductions. The court further reversed the
decision on the tax supplement.
The National Tax Board (Riksskatteverket) appealed to the Supreme
Administrative Court (Regeringsrätten) which, on 30 August 1995,
granted leave to appeal.
On 16 October 1995 the District Court declared the case
concerning the applicants' personal liability dormant pending the
outcome of the tax case in the Supreme Administrative Court. However,
upon the applicants' appeal, the Court of Appeal (hovrätten) of Skåne
and Blekinge decided, on 31 October 1995, that the District Court
should continue its examination.
On 14 December 1995 the District Court therefore held a
preparatory hearing at which the applicants and their representatives
- the lawyer T.T. for the first applicant and the lawyer B.R. for the
second applicant - were present. Following the hearing, the District
Court again declared the case dormant. The court found that the case
concerning personal liability obviously could not be determined until
the Supreme Administrative Court had decided on the underlying tax
question. This decision was upheld by the Court of Appeal on
10 January 1996. No appeal lay from the appellate court's decision.
On 3 July 1996 the Supreme Administrative Court upheld the
judgment of the Administrative Court of Appeal. Accordingly, the
company was not liable to pay the VAT amount in question or the tax
supplement.
As a consequence of the Supreme Administrative Court's finding,
the State withdrew its case concerning the applicants' personal
liability. The applicants, however, requested that the District Court
hold a hearing and deliver a judgment in the case. They further
challenged the impartiality of L.-O. L., the judge in charge of the
case, and requested that the State be ordered to pay the applicants'
legal costs. As regards the judge's alleged partiality, the applicants
maintained that he had acted in favour of the State by declaring the
case dormant and by refusing them several procedural rights guaranteed
by Article 6 of the Convention, including the right to a fair hearing
within a reasonable time. As compensation for legal costs, the
applicants, inter alia, claimed 277,500 SEK for work carried out by
Mr Ravnsborg. In respect of this claim, they stated that several
necessary claims of a procedural nature had been made to the District
Court but the court had been unable to understand or correctly
determine them. In these circumstances, the writs prepared by
Mr Ravnsborg and sent to the court should be considered as teaching
material which the applicants were not obliged to submit free of
charge.
On 23 July 1996 the District Court, sitting with a different
judge, rejected the applicants' challenge to judge L.-O. L.'s
impartiality in the case. It recalled that, following the applicants'
complaints, it had reached the same conclusion on four previous
occasions. This decision was upheld by a final decision of the Court
of Appeal on 30 September 1996.
On 5 December 1996 the applicants were summoned to the District
Court's hearing, scheduled for 29 January 1997. Due to judge
L.-O. L.'s illness, the hearing was later postponed and eventually took
place on 19 February 1997. At that hearing, the State withdrew its
claim for the applicants' personal liability.
By judgment of 19 February 1997, the District Court dismissed the
State's claim. As regards legal costs, the applicants' claim was
granted in so far as it concerned T.T. and B.R., the lawyers who had
acted as the applicants' authorised representatives. However, the work
carried out by Mr. Ravnsborg was considered to have been unnecessary
and the applicants' claim in this respect was accordingly rejected.
Apparently, the applicants did not appeal against the District Court's
judgment to the Court of Appeal.
COMPLAINTS
1. The applicants complain that in the District Court they did not
have a fair hearing within a reasonable time by an independent and
impartial tribunal as required by Article 6 of the Convention. The
District Court's decision to declare the case dormant also violated the
applicants' rights under Articles 3 and 14 of the Convention and
Article 1 of Protocol No. 1 to the Convention. Moreover, the
applicants had no effective remedy under Article 13 of the Convention
against that decision, as the Court of Appeal failed to redress the
alleged violations of the applicants' rights.
2. The applicants further complain, under Article 6 of the
Convention, of the District Court's decision not to award them any
compensation for the work carried out by Mr. Ravnsborg.
THE LAW
1. The applicants claim that the case in the District Court
concerning personal liability was not determined within a reasonable
time in accordance with Article 6 (Art. 6) of the Convention.
Furthermore, the District Court's decision to declare the case dormant
despite the fact that the National Tax Board could not produce any
substantial evidence to support its claim shows that that court was not
independent and impartial and that the hearing was not fair as required
by Article 6 (Art. 6) of the Convention. The District Court's decision
also violated the applicants' rights under Articles 3 and 14
(Art. 3, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1)
to the Convention. Moreover, the applicants had no effective remedy
under Article 13 (Art. 13) of the Convention against that decision, as
the Court of Appeal failed to redress the alleged violations of the
applicants' rights.
The Commission will first consider the applicants' complaints
under Article 6 (Art. 6) of the Convention, the relevant parts of which
read as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing within a reasonable time
by an independent and impartial tribunal..."
The Commission recalls that the proceedings in the District Court
were dormant pending the outcome of the tax case in the administrative
courts. It is clear that the District Court could hold the applicants
personally liable for the company's VAT debt only if such a debt had
first been established by the administrative courts. The District
Court's decision of 14 December 1995 to declare the personal liability
case dormant until the Supreme Administrative Court had decided on the
underlying tax question cannot therefore be considered to have been
without foundation. The Supreme Administrative Court decided the tax
case no more than between six and seven months after the decision of
14 December 1995. Following the Supreme Administrative Court's judgment
of 3 July 1996, seven and a half months passed before the District
Court held a hearing and gave judgment. During these months, the
District Court and the Court of Appeal determined the applicants'
challenge to the impartiality of the judge in charge at the District
Court. Further, the hearing had to be postponed for some time as that
judge had fallen ill. In these circumstances, the Commission
cannot find that the proceedings in the District Court, whether before
or after the Supreme Administrative Court's judgment, went beyond what
may be considered reasonable. Thus, the complaint concerning the length
of these proceedings does not disclose any appearance of a violation
of Article 6 (Art. 6) of the Convention.
The Commission notes that the applicants also complain of other
violations allegedly caused by the District Court's decision of
14 December 1995 and the length of the proceedings in that court.
Having regard to its finding under Article 6 (Art. 6) of the
Convention, the Commission considers that an examination of these
complaints fails to disclose any appearance of a violation of the
rights and freedoms of the Convention and its Protocols and in
particular the Articles invoked.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further complain, under Article 6 (Art. 6) of the
Convention, of the District Court's decision not to award them any
compensation for the work carried out by Mr. Ravnsborg.
The Commission recalls that, apparently, the applicants did not
appeal against the District Court's judgment of 19 February 1997 by
which their compensation claim was rejected.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy