AS TO THE ADMISSIBILITY OF
Application No. 31653/96
by Gunnar and Annika BENDRÉUS
against Sweden
The European Commission of Human Rights sitting in private on
8 September 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 16 April 1996 by
Gunnar and Annika BENDRÉUS against Sweden and registered on 30 May 1996
under file No. 31653/96;
Having regard to reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 18 December 1996 and the observations in reply submitted
by the applicant on 24 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a married couple, are Swedish citizens born in
1948 and 1949 respectively. The first applicant is a businessman and
the second applicant is a teacher. They reside in Enebyberg. Before
the Commission they are represented by Dr. Henning Witte, a lawyer
practising in Stockholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
a. The particular circumstances of the case
On 28 September 1994 the ferry M/S Estonia sank in the Baltic
Sea, resulting in 852 dead or missing persons. Among the many
casualties were the second applicant's parents. The first applicant
is the president of a group of 3000 relatives of the deceased.
In the autumn of 1994 the Swedish Government entrusted the
National Maritime Administration (Sjöfartsverket) with the task of
investigating the possibilities and consequences of bringing the
victims of the disaster ashore. Moreover, an Ethical Council was
appointed to advise the Government on the ethical problems that arose
due to the disaster.
Following the suggestions of the Administration and the Council,
the Government decided, on 15 December 1994, that neither the wreck of
M/S Estonia nor the bodies of the victims should be salvaged, that the
place where the wreck was situated should be regarded as a burial
ground and that the wreck should be covered in order to secure the
peace of the burial ground. The Administration was instructed to
investigate the matter and make suggestions as to the covering and
surveillance of the wreck.
Following the National Maritime Administration's report of
10 February 1995, the Government, on 2 March 1995, entrusted the
Administration with the task of covering the wreck with concrete and
ordered it to invite tenders for the project. In its decision, the
Government recalled the status of the place of the wreck as a burial
ground and stated that, in realising the project, regard should be had
to environmental effects.
The first applicant challenged the Government's decision of
2 March 1995 before the Supreme Administrative Court (Regeringsrätten).
He requested the Court to quash the decision, maintaining that the
Government had failed to take into consideration the wishes of the
relatives of the deceased. On 3 April 1996 the Court dismissed the
action finding, firstly, that the requirements for an examination under
the 1988 Act on Judicial Review of Certain Administrative Decisions
(Lag om rättsprövning av vissa förvaltningsbeslut, 1988:205) were not
met, and, secondly, that there were no grounds for reopening the
proceedings under the Administrative Procedure Act (Förvaltnings-
processlagen, 1972:291).
In January 1996 the National Maritime Administration signed a
contract with an international consortium of construction companies
concerning the covering of M/S Estonia. The work, which was to be
carried out in steps, started with the strengthening of the sea bed
with stones and the covering of the area around the wreck with textile.
By decision of 19 June 1996, the Government postponed further
work on the covering of the wreck until further notice. The reason
given for the postponement was that an International Commission of
Inquiry, composed of representatives of Swedish, Finnish and Estonian
authorities and entrusted with the task of examining the cause of the
disaster, had not finalised its investigation and the covering of the
wreck would render it impossible to obtain further evidence. The
report of that Commission has not yet been presented.
b. Relevant domestic law and practice
On 23 February 1995 an agreement concerning the wreck of M/S
Estonia was signed by Sweden, Finland and Estonia. According to the
agreement, the wreck and the surrounding area shall be regarded as a
final place of rest for the victims of the disaster. The wreck shall
not be raised. According to Article 4 of the agreement, the
Contracting Parties undertake to enact national legislation aiming at
the criminalisation of any activities disturbing the peace of the final
place of rest, in particular any diving or other activities with the
purpose of recovering victims or property from the wreck or the sea
bed. A Contracting Party may also take measures to cover the wreck or
to prevent pollution of the marine environment from the wreck.
In accordance with Article 4 of the above agreement, the Swedish
Parliament later adopted the Act on the Protection of the Peace of the
Grave at the Wreck of M/S Estonia (Lag om skydd för gravfriden vid
vraket efter passagerarfartyget Estonia, 1995:732; hereinafter "the
1995 Act"), which, inter alia, provides for criminal sanctions for the
activities prohibited by that Article. The Act entered into force on
1 July 1995.
In 1995 seven relatives of persons who died in the M/S Estonia
disaster brought an action against the Swedish State in the District
Court (tingsrätten) of Stockholm. They requested that the State be
prohibited from covering the wreck of M/S Estonia as, otherwise, the
bodies of the victims could not be salvaged and buried in accordance
with their wishes and further evidence could not be obtained. They
invoked customary law and several Articles of the Convention, including
Articles 6, 8 and 9. The District Court noted that the plaintiffs were
not authorised to represent all the relatives of the victims of the
disaster and thus limited its examination to the alleged obligations
of the State and the rights of the plaintiffs in relation to those
victims who were related to the plaintiffs. By judgment of 16 January
1996, the District Court rejected the case. It found that neither
customary law nor the Convention entailed an obligation on the State
to refrain from covering the wreck. The court examined the case also
under Chapter 15, Section 3 of the Code of Judicial Procedure
(Rättegångsbalken), according to which the court may prohibit someone
from taking certain action if it is shown that such action could affect
claims which have been or might be brought in a lawsuit or other
proceedings by the person requesting the court's intervention against
the person to whom the prohibition would apply. However, the District
Court found that the plaintiffs did not have such claims against the
State. Accordingly, it did not issue any prohibition under the
provision in question. On 29 March 1996 the Svea Court of Appeal (Svea
hovrätt) dismissed the plaintiffs' appeal. On 15 May 1996 the Supreme
Court (Högsta domstolen) refused leave to appeal.
COMPLAINTS
1. Under Articles 6 and 13 of the Convention, the applicants
complain that, due to the Supreme Administrative Court's decision to
dismiss their action, they have been denied an examination of the
Government's decisions.
2. Furthermore, the covering of the wreck would allegedly obstruct
the pending investigation of the accident by the International
Commission of Inquiry and the future litigations against the
responsible insurance company and, possibly, the shipping company and
the Swedish and Finnish States in that it would prevent the obtaining
of further evidence. Also in this respect, the applicants invoke
Article 6 of the Convention.
3. The applicants also complain, under Article 8 of the Convention,
that the Government's decision to cover the wreck of M/S Estonia
violates their right to respect for their private and family life.
They maintain that they have the right to decide how the bodies of
their deceased relatives should be treated. They further allege that
a majority of the relatives of the deceased are opposed to the project
and that it serves no public interest.
4. The applicants further claim that they have the right to decide
on the burial of their relatives and that the Government's decisions
thus violate their freedom of religion under Article 9 of the
Convention.
The applicants also contend that the covering of the wreck would
constitute inhuman treatment under Article 3 of the Convention, as the
relatives would not get to know how the accident happened and who was
responsible for it.
Under Article 1 of Protocol No. 1 to the Convention, the
applicants claim that the covering of the wreck will prevent them from
salvaging their relatives' belongings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 April 1996 and registered
on 30 May 1996.
On 12 September 1996 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits.
The Government's observations were submitted on 18 December 1996
after an extension of the time-limit fixed for that purpose. The
applicants replied on 24 February 1997.
THE LAW
1. Under Articles 6 and 13 (Art. 6, 13) of the Convention, the
applicants complain that, due to the Supreme Administrative Court's
decision to dismiss their action, they have been denied an examination
of the Government's decisions.
Article 6 (Art. 6) reads, in relevant parts, as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by [a] ... tribunal
..."
Article 13 (Art. 13) provides the following:
"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 respondent Government first question whether the applicants
can be said to be victims, within the meaning of Article 25 (Art. 25)
of the Convention, of the alleged violations of the Convention. They
claim that the decisions taken by the Government have not had any legal
consequences for the applicants. Thus, the decisions did not prevent
the applicants from taking whatever measure they found suitable and did
not involve any determination of the applicants' rights under national
law. It was not until the entry into force on 1 July 1995 of the 1995
Act that the applicants' legal situation was affected in that sanctions
could be imposed on those who violated the prohibition on diving
activities.
Moreover, as the Government's decisions did not determine the
applicants' rights, the Government claim that the complaints under
Article 6 (Art. 6) of the Convention are incompatible ratione materiae
with the Convention. Under Articles 6 and 13 (Art. 6, 13), the
Government further submit that the applicants had access to a court and
that, thus, their complaints are, in any event, manifestly ill-founded.
The Government refer to a similar case brought in the ordinary courts
by other relatives of victims.
The applicants submit that, since they brought an action in the
Supreme Administrative Court, they are excluded from taking proceedings
in the ordinary courts. In any event, they would have the same claims
as the other relatives. The ordinary courts refused to examine their
claims, as they were directed against the State and thus fell to be
examined by the administrative courts.
The Commission notes that, by the challenged Government decisions
of 15 December 1994 and 2 March 1995, it was decided that the wreck of
M/S Estonia should be covered with concrete. The decisions were partly
implemented in 1996, when the work on covering the wreck started. It
appears that the bodies of the second applicant's parents, who died in
the disaster, remain in the wreck. In these circumstances, the
Commission considers that the applicants were sufficiently affected by
the decisions to be able to claim to be victims, under Article 25
(Art. 25) of the Convention, of the alleged violations of the
Convention.
However, even assuming that the Government's decisions involved
a determination of the applicants' civil rights within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds
that the present complaints are inadmissible for the following reasons.
The Commission recalls that seven other relatives of persons who
died in the M/S Estonia disaster brought an action against the State
in the ordinary courts. As acknowledged by the applicants, these
relatives presented basically the same claims as those presented in the
present application. The District Court and the Court of Appeal,
restricting themselves to the alleged rights of the seven relatives,
examined on the merits the claims presented but rejected them as they
were considered unfounded. Thus, they were not rejected because of
lack of jurisdiction. It is clear that the applicants would also be
able to obtain an examination on the merits of their claims before the
ordinary courts. Such an action would not be precluded by their
attempt to have the issues examined by the Supreme Administrative
Court. In this connection, the Commission recalls that the right of
access to a court under Article 6 para. 1 (Art. 6-1) of the Convention
does not entail a guarantee to have a specific result of the
proceedings.
The Commission therefore finds that the applicants have access
to a court procedure which satisfies the requirements of Article 6
para. 1 (Art. 6-1) of the Convention. Furthermore, this procedure
constitutes an effective remedy under Article 13 (Art. 13) of the
Convention.
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 claim that the covering of the wreck would
obstruct the pending investigation of the accident by the International
Commission of Inquiry and the future litigations against the
responsible insurance company and, possibly, the shipping company and
the Swedish and Finnish States in that it would prevent the obtaining
of further evidence. Also in this respect, the applicants invoke
Article 6 (Art. 6) of the Convention.
Leaving aside the question whether the applicants have failed to
exhaust domestic remedies in accordance with Article 26 (Art. 26) of
the Convention as they have not brought their claim before the ordinary
courts in Sweden, the Commission recalls that, on 19 June 1996, the
Government decided to postpone further work on the covering of the
wreck until further notice. The reason given for the postponement was
that the International Commission of Inquiry had not finalised its
investigation of the cause of the disaster and the covering of the
wreck would render it impossible to obtain further evidence. The work,
which started with the strengthening of the sea bed and the covering
of the area around the wreck, has not since been resumed.
In these circumstances, the Commission finds that the present
complaint fails to disclose any appearance of a violation of the
applicants' rights under 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.
3. The applicants complain, under Article 8 (Art. 8) of the
Convention, that the Government's decision to cover the wreck of M/S
Estonia violates their right to respect for their private and family
life. They maintain that they have the right to decide how the bodies
of their deceased relatives should be treated. They further allege
that a majority of the relatives of the deceased are opposed to the
project and that it serves no public interest.
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Government do not contest that a right under Article 8
(Art. 8) of the Convention to take care of one's dead relatives might
exist. They argue, however, that before the conclusion of the
agreement of 23 February 1995 between Sweden, Finland and Estonia the
Swedish State could not exercise its jurisdiction over the place of the
wreck as it is situated outside the territorial waters of Sweden.
Furthermore, before the entry into force, on 1 July 1995, of the 1995
Act diving at the place of the wreck was not prohibited and, thus, no
sanctions could be imposed in regard to such activities. The Government
therefore argue that the complaints, in so far as they relate to the
Government's decisions of 15 December 1994 and 2 March 1995, fall
outside the scope of the Convention as, under Article 1 (Art. 1) of the
Convention, the Swedish State did not have jurisdiction with respect
to diving activities taking place before 1 July 1995. Alternatively,
the Government maintain that, as no sanctions have been or could have
been imposed on the applicants by virtue of the decisions in question,
the decisions did not affect the applicants to such an extent that
Article 8 (Art. 8) of the Convention is brought into play. The
Government further argue that the applicants have failed to bring their
case before the ordinary courts in Sweden and, thus, have failed to
exhaust domestic remedies.
Furthermore, should the Commission find that the applicants'
rights under Article 8 (Art. 8) have been affected and interfered with,
the Government, in any event, contend that the interference has been
justified and that the complaint is manifestly ill-founded. They claim
that the Government's decision of 2 March 1995 is lawful as it does not
contravene Swedish law, which is illustrated by the judgments of the
District Court and the Court of Appeal in the case brought by other
relatives of victims. Further, it is in accordance with international
law and customary legal principles concerning the protection of graves.
The decision has a basis also in the agreement between Sweden, Finland
and Estonia. The decision has the aims of protecting the rights and
interests of those relatives who wished to consider the place as a
grave and of protecting private property from being stolen from the
wreck. It thus aims at protecting the rights and interests of others
and the prevention of crime. Moreover, it must be considered
proportionate and necessary for those aims. In the latter respect, the
Government state that the wreck so far has been guarded by the Swedish
authorities but that this was deemed not possible in the long run.
Allegedly, there was no other solution that was equally efficient than
to cover the wreck. Leaving the wreck uncovered and unattended will
entail a substantial risk that diving activities will take place with
the aim of plundering it.
The applicants submit that, whether or not the Swedish State has
had jurisdiction over the place of the wreck, it has taken decisions
and enacted a law which have interfered with the applicants' rights
under Article 8 (Art. 8) of the Convention. As to the conditions that
have to be satisfied under Article 8 para. 2 (Art. 8-2), the applicants
state that the Swedish State has no right to enact laws governing
international waters. The legitimate aim of protecting the wreck from
plunderers is in the interest of the relatives of the victims but the
majority of these relatives are opposed to the measure taken by the
Government, i.e. the decision to cover the wreck with concrete. Thus,
there is no public interest to justify such a measure. Moreover, there
are several cheaper and less damaging ways of protecting the wreck, for
example radar or a net with alarm bells.
The Commission first notes that the implementation of the
decisions complained of started in 1996, at a time when the Swedish
State claimed to have jurisdiction over the place of the wreck of M/S
Estonia. It thus finds that the applicants' complaints may be
considered under Article 1 (Art. 1) of the Convention. Moreover, the
Commission considers that, in view of the analogous claims brought in
the ordinary courts by other relatives of victims of the disaster and
the outcome of those proceedings, the present applicants were not, for
the purposes of Article 26 (Art. 26) of the Convention, required to use
the same remedy. Accordingly, it finds that the present complaint
cannot be rejected for failure to exhaust domestic remedies.
However, the Commission considers, even assuming that Article 8
(Art. 8) of the Convention confers a right to decide on the treatment
and burial of one's dead relatives and that such a right has been
affected by the measures taken by the Government, that the present
complaint is inadmissible for the following reasons.
The M/S Estonia disaster resulted in a very large number of dead
or missing persons. Although it is not known how many of the relatives
of these persons support or are opposed to the measure chosen by the
Swedish Government, i.e. the covering of the wreck with concrete, it
appears that there are different views among the relatives as to what
should be done with the wreck. Thus, any decision on this subject
would involve the balancing of diverging interests. The Government's
decision of 2 March 1995 appears to have aimed primarily at protecting
the wreck from plundering but also at securing the peace of the wreck
which was to be considered as a burial ground. Before deciding that
these aims should be achieved by having the wreck covered with
concrete, the Government ordered the National Maritime Administration
to investigate the matter and appointed an Ethical Council to give
advice on the ethical problems that arose due to the disaster. The
agreement signed by Sweden, Finland and Estonia on 23 February 1995
provided for the possibility to cover the wreck.
Noting that it is hardly possible to satisfy the wishes of all
relatives and having regard to the margin of appreciation afforded to
the State under Article 8 (Art. 8) of the Convention, the Commission
considers that the Government's decision to cover the wreck of M/S
Estonia with concrete does not show any lack of respect for the
applicants' rights under the provision in question.
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. 4. The applicants further claim that they have the right
to decide on the burial of their relatives and that the Government's
decisions thus violate their freedom of religion under Article 9
(Art. 9) of the Convention. They also contend that the covering of the
wreck would constitute inhuman treatment under Article 3 (Art. 3) of
the Convention, as the relatives would not get to know how the accident
happened and who was responsible for it. Finally, under Article 1 of
Protocol No. 1 (P1-1) to the Convention, the applicants claim that the
covering of the wreck will prevent them from salvaging their relatives'
belongings.
However, having regard to its above finding in respect of the
applicants' complaint under Article 8 (Art. 8) of the Convention, the
Commission finds that an examination of the present complaints does not
disclose any appearance of a violation of the Articles invoked.
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,by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
of the Commission of the Commission
Full & Egal Universal Law Academy