AS TO THE ADMISSIBILITY OF
Application No. 28223/95
by Lennart BERNSTRÖM
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
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
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 19 June 1995 by
Lennart Bernström against Sweden and registered on 16 August 1995 under
file No. 28223/95;
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 applicant, a Swedish citizen born in 1918, resides in
Strängnäs. He is a farmer by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Between 1963 and 1994, the applicant leased a piece of
agricultural land in Strängnäs. In March 1989, the lessor planted some
40 birches with support poles on both sides of a road which crossed the
land that the applicant leased and which the lessor was entitled to
use. From 1990, the applicant no longer cultivated the land.
The applicant brought an action for damages in the Real Estate
Court (fastighetsdomstolen) of Eskilstuna, claiming that the lessor had
breached the lease contract and caused economic loss for the applicant.
Allegedly, the trees in question had been planted on the leased land.
The ploughing and harrowing of the land had taken more time as the
applicant had had to turn round the trees. Furthermore, their roots
needed a lot of nourishment and the trees had therefore caused bad
harvests. The applicant estimated the loss at 8,000 Swedish crowns
(SEK).
The Real Estate Court held an oral hearing, during which the
parties were heard. It further inspected the locus in quo and had
regard to photographs of the land submitted by the parties.
On 25 October 1993 the Real Estate Court rejected the applicant's
claim. It considered that, even assuming that the trees had been
planted on the leased land, the applicant had failed to establish any
economic loss or other inconvenience which could constitute a right to
damages.
The applicant appealed to the Svea Court of Appeal (Svea hovrätt)
and requested an oral hearing. As new evidence, he further applied to
have three witnesses called. They were supposed to verify the
contention that the trees had been planted on the leased land.
On 19 August 1994 the Court of Appeal decided not to hold an oral
hearing and, consequently, did not call the witnesses in question.
Further, having regard to the evidence brought in the Real Estate
Court, the Court of Appeal upheld the appealed judgment on account of
the applicant's failure to establish any economic loss.
Upon the applicant's further appeal, in which he complained about
the lack of an oral hearing in the Court of Appeal, the Supreme Court
(Högsta domstolen) refused leave to appeal on 24 January 1995.
COMPLAINTS
Invoking Article 6 of the Convention, the applicant complains of
the Court of Appeal's failure to hold an oral hearing.
THE LAW
The applicant complains of the Court of Appeal's failure to hold
an oral hearing. He invokes Article 6 (Art. 6) of the Convention
which, in so far as relevant, reads as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair and public hearing ... by [a] ...
tribunal ..."
The Commission recalls that the manner of application of
Article 6 (Art. 6) to proceedings before courts of appeal depends on
the special features of the proceedings involved. Even where the court
of appeal has jurisdiction to review the case as to both facts and law,
Article 6 (Art. 6) does not always require a right to a public hearing
irrespective of the nature of the issue to be decided. Provided a
public hearing has been held at first instance, the absence of such
hearing before a court of second or third instance may accordingly be
justified by the special features of the proceedings at issue (cf.,
e.g., Eur. Court HR, Helmers v. Sweden judgment of 29 October 1991,
Series A no. 212-A, pp. 15-16, paras. 31 and 36, and Jan-Åke Andersson
v. Sweden judgment of 29 October 1991, Series A no. 212-B, pp. 43-45,
paras. 22 and 27).
In the present case, the Court of Appeal called upon to examine
the applicant's appeal exercised jurisdiction as to both facts and law.
However, a hearing had already been held by the Real Estate Court
which, furthermore, had inspected the land in question. The Court of
Appeal had at its disposal the case-file, including the minutes of the
Real Estate Court's hearing and the photographs submitted by the
parties. It is true that the applicant wished to have witnesses called
in the Court of Appeal. They were supposed to verify that the trees
in question had been planted on the land leased by the applicant.
However, the applicant's claim was rejected as, in any event, he had
not been able to establish that the trees had caused him any economic
loss. Evidence of such loss could have been adequately submitted in
writing.
Thus, having regard to the entirety of the proceedings in the
Swedish courts and to the nature of the issues before the Court of
Appeal, the Commission finds that the applicant's case did not require
that an oral hearing be held in the Court of Appeal.
It follows that the application is 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy