FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69688/01
by Sigvard BERNADOTTE
against Sweden
The European Court of Human Rights (First Section), sitting on 3 June 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsF. Tulkens,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Fura-Sandström, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 9 February 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, the late Sigvard Bernadotte, was a Swedish national, born in 1907 and was living in Stockholm. Following his death on 5 February 2002, his widow, Marianne, declared that she wished to pursue the application on his behalf. He is represented before the Court by Mrs Muhlenbock, a lawyer practising in Stockholm. The Government are represented by Mrs Eva Jagander of the Ministry for Foreign Affairs, as Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was son of the late Swedish King Gustav VI Adolf. By descent he was born a prince. On 8 March 1934 the applicant, without the consent of the King, entered into marriage with a woman who was not of royal descent. For this reason, on 9 March 1934, the applicant’s father, the then Crown Prince Regent Gustav Adolf, decided on the King’s behalf:
“By entering into marriage without the King’s consent and with the daughter of a foreign private person, His Majesty, The Duke of Uppland, in accordance with Article 44 of the Instrument of Government and Article 5 of the Order of Succession, has forfeited his own, his children’s and his successors’ right of succession to the throne. Moreover, he has forfeited the titles and the privileges, which until now he has enjoyed in his capacity as a hereditary prince”.
The members of the Government cabinet expressed their agreement with the above decision and agreed with the King’s decision that “Sigvard Oscar Fredrik for the future may use the family name Bernadotte”. It has ever since been the understanding of the Swedish Kings that the applicant thereby lost his right to the title of prince and he has been treated accordingly in the Official Yearbooks of State Officials and Nobility respectively.
Since 1976 the applicant, in several petitions to the present King of Sweden, King Carl XVI Gustav, requested that his hereditary prince title be reaffirmed by the King. The applicant supplied some information about exchanges from 1997 and 1998 between his lawyer at the time and the Marshall of the Realm (riksmarskalken). This included an extract from a letter of 15 May 1997 from the Marshall stating that “the King had not found grounds for revising the interpretations and application of his predecessor’s decision in the matter. Thus, the Royal Court considers that it had finalised its examination of the case”.
The most recent petition to the King, dated 1 December 2000, was rejected on 19 December 2000. The Marshall of the Realm referred to earlier exchanges in the course of which it had been stated that the King was not prepared to carry out a revision or amendment to his predecessor’s decision in the matter. In so far as the King and the Royal Court were concerned, no changes would be made in respect of applicable titles.
Under Swedish law, these refusals cannot form the subject of an appeal.
According to the applicant, he suffered various inconveniences as a result of the removal of his prince title and the subsequent refusals to restore his title.
B. Relevant domestic law and practice
At the material time (1934), Article 44 of the 1809 Instrument of Government read as follows.
"No prince of the Royal House, be he crown prince, hereditary prince or prince, may marry without the King’s knowledge and consent. In the event that this should occur, he has forfeited his hereditary right to the realm for his own part, that of his children and descendants."
A similar provision was contained in section 5 of the 1810 Act of Succession, which provided that the same applied if a prince, with or without the knowledge and consent of the King, married a commoner (“a private man’s daughter”) of Swedish or foreign origin.
Following a reform in 1937, section 5 was amended to require the King to hear the Government cabinet before consenting to the marriage of a prince. At the same time, the reference to a commoner of foreign origin was abolished, while that to a commoner of Swedish origin was retained. According to the respondent Government, the reason was that, after the First World War, the number of ruling sovereigns and royal houses and other families of equal status had been reduced.
According to information supplied by the Government, the main features of the domestic law pertaining to the acquisition and loss of a name remained unchanged throughout the relevant period. In 1963 the legal provisions concerning names were brought together in one statute, the 1963 Names Act (namnlagen), later replaced by the 1982 Names Act. Under these rules, surnames were acquired at birth and could be lost only in limited circumstances, for example if it were established in paternity proceedings that a certain man was not the father of a person carrying his surname or where the person concerned was not entitled to acquire the surname in the first place or had acquired a surname that caused inconvenience to another person on account of a risk of confusion. The right to carry a first name that had been registered or approved could not be revoked.
Although there was no definition of the concept of name under Swedish law, it was considered that designations other than names fell outside that concept, as they were not deemed to constitute means of personal identification. This was the case of terms that indicated a profession - for example teacher, lawyer or military, or occupational position - such as professor, judge or commander, and likewise indications of rank or title, such as assistant professor, district court judge or captain. Such designations were not afforded the legal protection applicable to names. There was no domestic legal provision regulating the use of the titles of prince and princess nor any legal protection of those titles.
COMPLAINTS
The applicant complains that the removal of his title of prince in 1934 and the present King’s refusal to restore his title constitute a violation of Article 8 of the Convention.
Moreover, relying on Articles 6 and 13 of the Convention, the applicant complains that he was not afforded a possibility under Swedish law to have his claim for restoration of his prince title examined by an impartial and independent body. This matter was left to be decided exclusively by the King, in his capacity as Head of State, whose decisions were not the subject of review by the courts or any other independent authority.
Furthermore, the applicant complains that the manner in which his case was handled amounted to discrimination on grounds of birth or other status, in violation of Article 14 of the Convention, taken in conjunction with Articles 6, 8 and 13.
THE LAW
A.Exhaustion of domestic remedies
The Court notes from the outset that, according to the Government, which the applicant did not dispute, there were no effective remedies at his disposal in Sweden. The Court sees no reason to find otherwise.
B.The complaint under Article 8 of the Convention
The applicant complained that his loss of title of prince and the subsequent refusals to restore his title amounted to an unjustified interference with his right to respect for private and family life in violation of Article 8 of the Convention, which reads:
“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.”
1.The applicant’s submissions
In support of his allegation, the applicant stressed that his right to the title of prince had been given to him by birth, as a son of the Crown Prince of the Kingdom of Sweden. That title was not dependent on the right of succession to the throne. By entering into marriage with the daughter of a foreign commoner, the applicant had, under Article 44 of the Instrument of Government and Article 5 of the Act on Succession, forfeited his right of succession to the throne, that of his children and of their descendants. However, there was no legal basis to remove his title of prince.
In the applicant’s view, the Government’s attempt to draw a clear-cut line between the King’s competence as a Head of State and as a Head of the Royal Family was an oversimplification. The constitutional reality was far more complex. The custom whereby the King asked the Government for consent to a marriage of a member of the Royal Family was not firmly established during the 19th century. In 1937 it was formalised when Article 44 of the Instrument of Government and section 5 of the Act on Succession were amended so as to make it a constitutional obligation for the King to seek Government approval of his intention to give “a crown prince, a hereditary prince or a prince” his assent to marry. According to some experts “the marriage was of interest to the State and consent was a matter for the Government.” Thus, in handling marital matters and the like, the King had to consider his position as Head of State. One could say that he was acting in dual capacity, both aspects being closely connected and of public interest. The complaint under Article 8 was not incompatible with the Convention “ratione personae”.
The applicant maintained that when King Carl XVI Gustav refused to consider his petition on 19 December 2000, the King acted in his capacity as a “supreme decision-making authority”. His application under the Convention was lodged within six months from the said decision, in accordance with Article 35 § 1 of the Convention. In any event, the applicant emphasised, the removal of his title decided by Crown Prince Regent Gustav Adolf on 9 March 1934, had subjected him to a continuing violation of the Convention. Although the applicant did not deny that the 1934 decision affected him instantly, the long-term effects were far more significant and damaging than he could have imagined at the time of the decision and concerned his private and family life, honour and reputation. Since the affects persisted unabated to the day of his submissions to the Court, he was of the firm view that the violation bore the hallmarks of a continuing situation. His complaints did not therefore fall outside the Court’s competence ratione temporis.
The applicant stressed that the title of prince, given to him at birth, should be considered as part of his name or of his identity in the same way as a name. In Sweden, a hereditary title of prince conferred on a person at birth was associated with his name and was, unlike nobility titles generally, uncontroversial. The humiliation caused by the removal of his title of prince was no less than that caused by the deprivation of a name. It had violated his right to respect for private and family life, “of which his personal and spiritual (intellectual) integrity formed an important part”. Having regard to the Strasbourg case-law, the matter should be considered as covered by Article 8 of the Convention.
The applicant suffered further humiliation by the fact that, as a result of his marrying a commoner, he had to hand over a number of orders and decorations as well as his royal passport. He was “thrown out of his family” and was deprived of all financial means, as his name was removed from the civil list and his bank account was immediately frozen. In vain, he tried to earn his own living; for instance, his application to become an assistant film director was rejected “due to intervention by the King”.
In addition, often when travelling abroad, the applicant had been exposed to embarrassment and humiliation in the face of questions as to how it was possible that a descendant of King Gustav VI Adolf was not invited to gatherings of the European Royal houses and other occasions at which Swedish royalty was present, and could not be addressed by his title at birth, prince. These awkward situations had left the applicant and his wife Marianne with a degrading and humiliating sensation of being suspected of having have committed crimes or other reprehensible conduct as the reason for the loss of title. By rejecting the applicant’s petitions for restoration of his title, the current King, who was himself married to a commoner, had contributed to increase that suspicion.
Had the King formally reinstated the applicant’s title it would have put an end to the humiliation and degrading treatment that he had suffered all these years. The only way to restore his reputation was to reinstate his title.
2.The Government’s submissions
The Government invited the Court to declare the application inadmissible on the ground that it lacked jurisdiction ratione personae. They argued that when the King chose to bestow the title of prince on a child belonging to the royal family or for some reason removed the title, the King was not acting in his capacity as the Head of State but as the head of the royal family. There were no legal consequences attached to either the bestowal or the removal of the title of prince, which was a private, not a public, measure. Therefore, the Government maintained, the King’s measure, in his capacity as head of the royal family, to remove in 1934 the applicant’s title of prince was not imputable to the Swedish State. The situation was the same with regard to the present King’s "refusal to restore" the title.
In the alternative, should the Court not declare the application inadmissible ratione personae, the Government argued that, since the applicant’s complaints emanated from a measure taken by the Swedish King in 1934, the Court lacked jurisdiction ratione temporis. The measure was an instantaneous act that did not, in the Government’s view, give rise to a situation for which Sweden could be held responsible more than sixty years later. The applicant did not retain his title of prince after 9 March 1934 and could not in any event claim any right in this respect between that date and 3 September 1953 when the Convention entered into force, so there could be no question of an ongoing situation engaging the responsibility of the State thereafter. There were no remedies available. The exchange of letters from 1976 and onwards between the applicant and the Royal Court regarding this issue was irrelevant, as was the letter of 19 December 2000 by a representative of the Royal Court to the applicant (referred to by him as the most recent "decision"). The applicant could not defer the time-limit stipulated in Article 35 § 1 by asking the present King to reopen his case. Answers to such requests - since they lacked legal force - could not be regarded as final national decisions within the meaning of Article 35 § 1. From a technical point of view, had the present King bestowed the title of prince on the applicant, this would have been a new title, not a restoration of his former title, granted by his nephew, King Carl XVI Gustav, as the current head of the royal family. In the light of the foregoing, the Government requested the Court to declare the application inadmissible ratione temporis in its entirety.
In the further alternative, the Government requested that the Court declare the applicant’s Article 8 complaint inadmissible as being incompatible ratione materiae. They submitted that, while first names and surnames were among the interests protected by Article 8, this fact was of no relevance to the applicant’s case, where neither his first names nor his surname were in dispute. In its case-law, the Court had found the provision inapplicable to disputes regarding nobility titles; it would be illogical to adopt a different approach to princely titles.
The Government disputed that the applicant’s enjoyment of his right to respect for private and family life in the sense of Article 8 had been affected. As far as the Royal Court protocol was concerned, his loss of title had not changed his status, which remained the same as before as it depended not on title, but on his being a member of the royal family. It was true that the applicant no longer belonged to the Royal House (Kungliga huset) due to the forfeiture in 1934 of the right of succession to the throne, but that fell outside the scope of the present case.
The Government had no reason to question, however, the applicant’s allegation that he felt discredited in other parts of the social arena as a result of the 1934 measure but disputed that any such occurrences constituted an interference with his Article 8 rights.
3.The Court’s assessment
The Court, having reached the conclusions which it has below, does not find it necessary to resolve the disagreement between the parties as to whether, as argued by the Government, the deprivation and bestowal of the title of prince were decisions that under the relevant national law fell within the King’s private autonomy as the Head of the Royal Family or, as argued by the applicant constituted a public measure that fell within his functions as Head of State. The Court will proceed on the assumption that the subject matter was one that was capable of engaging the responsibility of the respondent State under the Convention and that the application is not incompatible ratione personae.
As to the further question of whether the Court has jurisdiction ratione temporis, it notes that at the origin of the complaint lies a decision taken in 1934 by the late King Gustav VI Adolf with the Government cabinet’s agreement, before 3 September 1953, when the Convention entered into force with respect to Sweden. In accordance with general rules of international law, the Convention is binding on each of the Contracting States only in respect of facts occurring after its entry into force for that party. However, the Court has recognised that an exception may be made to the temporal limitation on the Court’s jurisdiction in the event of a continuing or permanent situation giving rise to a violation (see, for example, Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, pp. 69-70, §§ 40-46, and Loizidou v. Turkey, judgment of 18 December 1996 (merits), Reports of Judgements and Decisions 1996-VI, p. 2230, § 41; and Veeber (no. 1) v. Estonia, no. 37571/97, 7.11.02; see also De Becker v. Belgium judgment of 27 March 1962, Series A no. 4, p. 11, § 8, and X v. Belgium, No. 8701/79, Commission decision 3 December 1979, Decisions and Reports (DR), 18, p. 250).
In examining whether there was such a continuing situation in the instant case, the Court notes that the applicant’s grievances had their origin in a particular decision from 1934. It was taken on the specific ground that, by having entered into marriage without the consent of the King of Sweden, he had forfeited his right of succession to the throne and his titles and privileges that he had enjoyed as a hereditary prince. These were factors giving the impugned measure an instantaneous character.
However, as the applicant alleged that the decision also entailed several adverse and lasting consequences for the applicant, the Court will examine each of them in turn.
(i) In the first place, the applicant stressed that his hereditary title of prince was part of his name or of his identity in the same way as a name. However, the Court is not convinced that this properly reflects the position of Swedish law on the matter, which apparently treats names and other designations such as titles differently. Designations other than first names and surnames are not covered by the legal regime applying to names. The Court does not find it established that under Swedish law a royal title of prince is considered as part of a personal name or the equivalent. In any event, it should be observed that the 1934 decision allowed the applicant to continue to use his Christian names and his family name, given to him at birth, and to identify himself as a member of that family. Even assuming that the decision to deprive the applicant of the title of prince interfered with his identity and name, the Court does not consider that this in itself could remove the instantaneous character of the decision taken in 1934.
(ii) Another effect of the 1934 decision relied on by the applicant was that he had been “thrown out of his family”. On this point, the Court notes that he does not appear to dispute the information provided by the Government that his status under the Royal Court protocol remained unaltered and that it was only his membership of the Royal House that was affected. In the absence of any detailed information from the applicant on this matter, it is not possible for the Court to form the opinion that the 1934 decision was not an instantaneous one, but created a continuing situation.
(iii) The applicant moreover alleged that he had suffered humiliation often when travelling abroad, when asked how it came to be that a descendant of King Gustav VI Adolf was not invited along with other members of the Swedish Royal Family to gatherings of European royal houses and other occasions involving royalty and was not being addressed by his birth title, prince. This had given rise to suspicion that he might have lost his title on grounds of criminal or otherwise reprehensible conduct on his part. However, even assuming that the alleged inconvenience was a matter that was covered by Article 8, the Court does not consider that it could deprive the decision taken in 1934 of its instantaneous character.
(iv) In addition, the applicant argued that due to the 1934 decision he was dispossessed of all financial means. In vain he had tried to earn his living but such efforts had been spoiled by the King’s intervention. The Court observes that those effects of the decision were specific and concrete and led him to seek alternative means of subsistence and adapt himself professionally outside the Royal House. It is not clear, however, to what extent those consequences resulted from the loss of title itself or from the removal of privileges by virtue of the 1934 decision. In any event, there is no right under the Convention to a particular standard of living.
Against this background, the Court finds that the impugned 1934 decision was essentially an instantaneous act which, despite its ensuing effects, did not in itself give rise to any possible continuous situation of a violation of Article 8 of the Convention. Were the Court to examine the compatibility with this provision of the applicant’s loss of the title of prince in 1934, including whether it was “in accordance with the law”, it would amount to giving retroactive effect to the Convention contrary to general principles of international law. Accordingly, the Court lacks jurisdiction ratione temporis to examine the applicant’s Article 8 complaint in so far as it concerns the 1934 decision to remove his title and any effects thereof that had occurred before the Convention’s entry into force with respect to Sweden on 3 September 1953.
In so far as the applicant complains about King Carl XVI Gustav’s refusal to alter his predecessor’s decision from 1934, the Court considers that the six-month time limit started to run when the King replied to the applicant’s first petition, presumably in 1976 or shortly thereafter. The King’s reply of 19 December 2000 to the effect that he was not prepared to reconsider his earlier refusals to alter his predecessor’s decision regarding title cannot, in the Court’s view, be taken into account for the purposes of the calculation of the six-month time limit.
It follows that, in so far as the applicant complains under Article 8 about the subsequent refusal to restore his title, and even assuming that this article is applicable in a situation such as the present one, he has failed to satisfy the six-months rule in Article 35 § 1 of the Convention.
Accordingly, the applicant’s complaint under Article 8 of the Convention must be declared inadmissible under Article 35 §§ 1, 3 and 4.The remaining complaints
The applicant complained that it was not possible for him under Swedish law to challenge the current King’s refusal to restore his title of prince. This entailed a violation of his right to a fair hearing before an independent and impartial tribunal under Article 6 of the Convention. In the alternative, he submitted, this state of affairs amounted to a violation of his right to an effective remedy as guaranteed by Article 13. In addition, the applicant alleged that the manner in which his case had been handled amounted to discrimination on grounds of “birth or other status”, in breach of Article 14 taken together with Articles 6, 8 and 13.
The Government invited the Court to declare inadmissible the complaints under Articles 6 and 13, as being incompatible ratione materiae, as well as the complaint under Article 14.
The Court, for its part, bearing in mind its findings above with respect to Article 8, considers that the dispute in question did not concern a “right” that could arguably be said to be recognised under domestic law or an arguable claim of violation of the Convention. Articles 6 and 13 too were therefore inapplicable and so was Article 14. The applicant’s complaints under these provisions, leaving aside whether he has satisfied the six-month condition in Article 35 § 1, are thus incompatible ratione materiae in the sense of Article 35 § 3.
It follows that this part of the application must also be declared inadmissible in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy