EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18928/91
Anders Fredin
against
Sweden
REPORT OF THE COMMISSION
(adopted on 9 February 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 9) . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 10 - 14). . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 34). . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 15 - 29) . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 30 - 34) . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 35 - 46) . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 35) . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 36) . . . . . . . . . . . . . . . . . .6
C. Article 6 para. 1 of the Convention
(para. 37 - 45). . . . . . . . . . . . . . . .6
D. Conclusion
(para. 46) . . . . . . . . . . . . . . . . . .7
DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED
BY MR. B. MARXER. . . . . . . . . . . . . . . . . . . . . . .8
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 10
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, a Swedish citizen born in 1944, is an agricultural
engineer residing at Grödinge, Sweden. He is represented before the
Commission by Mr. Jan Axelsson, a lawyer practising in Stockholm.
3. The application is directed against Sweden. The Swedish
Government are represented by their Agent, Mr. Carl Henrik Ehrenkrona
of the Swedish Ministry for Foreign Affairs.
4. The application concerns the applicant's complaint that in
judicial review proceedings before the Supreme Administrative Court
(Regeringsrätten) he was not granted a fair and public hearing as
required by Article 6 para. 1 of the European Convention on Human
Rights.
B. The proceedings
5. The application was introduced on 9 April 1991 and registered on
9 October 1991.
6. On 6 January 1992 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
7. The Government's observations were received - after an extension
of the time-limit - by letter dated 7 May 1992 and the applicant's
observations in reply by letter dated 5 June 1992.
8. On 12 October 1992 the Commission declared the application
admissible.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
11. The text of this Report was adopted on 9 February 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. The applicant and his wife have previously lodged with the
Commission Application no. 12033/86 regarding the withdrawal of a
permit to exploit a gravel pit and the absence of a court remedy in
this regard. The proceedings ended with the judgment of the European
Court of Human Rights of 18 February 1991, in which the Court concluded
that Article 6 para. 1 of the Convention had been violated but that
there was no breach of Article 1 of Protocol No. 1 either taken alone
or in conjunction with Article 14 of the Convention (Eur. Court H.R.,
Fredin judgment of 18 February 1991, Series A no. 192).
16. The applicant and his wife own several parcels of land in the
municipality of Botkyrka. On the land there is a farm and a gravel pit.
17. On 11 December 1963 the applicant's parents had been granted a
permit to extract gravel from the pit, subject to certain conditions.
18. On 4 September 1969 the applicant acquired a fifth of the
property. On 31 July 1977 the applicant and his wife acquired the
remainder of the property, which thenceforth belonged as to two-thirds
to the applicant and as to one-third to his wife.
19. On 14 April 1983 the County Administrative Board (länsstyrelsen)
of Stockholm County transferred the exploitation permit to the
applicant and his wife, while indicating that it intended to re-examine
the permit question in 1983 with a view to a possible termination of
the activities.
20. On 25 August 1983 the County Administrative Board notified the
applicant and his wife that it was contemplating amending the permit
so as to provide that exploitation of the gravel pit should cease by
1 June 1984.
21. On 19 December 1984 the County Administrative Board ordered,
inter alia, that:
(a) the exploitation of gravel should cease within three years,
i.e. by the end of 1987, by which time the area should also be
restored,
(b) as from the day of the decision further extraction from
certain parts of the pit be prohibited.
22. On 12 December 1985 the Government (Ministry of Agriculture)
dismissed an appeal against the County Administrative Board's decision.
However, the validity of the permit was extended to 1 June 1988.
23. On 9 March 1987 the County Administrative Board adopted a
restoration plan for the pit.
24. On 18 May 1987 the County Administrative Board rejected a new
application made by the applicant for extraction of gravel. The
decision was appealed to the Government which on 9 June 1988 dismissed
the appeal. The Government ordered that the permit to extract gravel
from the pit should be prolonged until 1 December 1988, at which date
all activities should be terminated and the land be restored.
25. On 1 December 1988 extraction of gravel from the pit ceased.
26. The applicant applied for a special extraction permit in order
to enable him to comply with the plan for the restoration of the
ground. This request was rejected on 14 March 1989 by the County
Administrative Board and his appeal against this decision was rejected
on 21 June 1989 by the Government (Ministry of Environment and
Energy).
27. The applicant then applied for judicial review under the 1988 Act
on Judicial Review of Certain Administrative Decisions (lag om
rättsprövning av vissa förvaltningsbeslut). He argued that the
Government's decision violated several rules of law. He had needed a
permit in order to be able to comply with the restoration plan, and the
refusal of a permit had prevented him from restoring the ground. The
decision was therefore in conflict with Chapter 1 Section 9 of the
Instrument of Government (regeringsformen) and the principle of
objectivity contained therein. The decision of the County
Administrative Board was also in conflict with the Nature Protection
Act (naturvårdslagen) and with the principle of proportionality.
Moreover, as the County Administrative Board had failed to answer his
question as to what action he should take, he was a victim of denial
of justice.
28. In the proceedings before the Supreme Administrative Court
(Regeringsrätten) he requested an oral hearing which was refused by the
Court. This decision was taken by three votes to two. The two
dissenting judges stated, inter alia, that the Act on Judicial Review
of Certain Administrative Decisions had been enacted in order to ensure
that Swedish law complied with the requirements of the European
Convention on Human Rights and that account should therefore be taken
of the case-law of the European Court of Human Rights in regard to the
requirement of a public hearing in Article 6 of the Convention. The two
judges referred in this respect to the cases of Ekbatani (judgment of
26 May 1988, Series A no. 134) and Håkansson and Sturesson (judgment
of 21 February 1990, Series A no. 171).
29. On 13 December 1990 the Supreme Administrative Court, basing
itself on the applicant's written submissions and on a written
declaration by the County Administrative Court, found that the
Government's decision was not unlawful and rejected the applicant's
request for the annulment of that decision.
B. Relevant domestic law
30. After the European Court of Human Rights had found, in several
cases (Eur. Court H.R., Sporrong and Lönnroth judgment of
23 September 1982, Series A no. 52, Pudas judgment of 27 October 1987,
Series A no. 125-A, and Bodén judgment of 27 October 1987, Series A
no. 125-B), that Sweden was in breach of its obligations under
Article 6 para. 1 of the Convention as a result of the absence of a
judicial remedy against certain administrative decisions, new
legislation was enacted in Sweden in 1988. The new Act on Judicial
Review of Certain Administrative Decisions provides for an appeal to
the Supreme Administrative Court against administrative decisions
involving exercise of public authority regarding a private individual
or legal person in cases where no other judicial remedy is available.
The exact scope of the Act is defined by reference to certain
provisions in the Instrument of Government, and some enumerated
categories of decisions are excluded from the application of the Act.
31. The examination by the Supreme Administrative Court under this
new law is in principle limited to the question whether the challenged
decision is in conflict with any legal rule ("strider mot någon
rättsregel"). According to the travaux préparatoires the examination
shall concentrate on the lawfulness of the challenged decision.
However, the competence of the Supreme Administrative Court is not
limited to an examination of how the law has been applied but may
include a re-examination of the facts upon which the application of the
law was based. The Supreme Administrative Court shall also examine
whether fundamental legal principles such as objectivity, impartiality
and equality before the law have been respected. Moreover, the Supreme
Administrative Court shall examine whether there have been any
procedural errors which may have affected the outcome of the case.
Where the administrative authority had a choice between different
options, the Supreme Administrative Court's examination shall be
restricted to whether the decision taken was within the discretion
afforded to the public authority concerned.
32. If the Supreme Administrative Court finds that a decision is in
conflict with a legal rule, it shall quash the decision and, where
necessary, refer the case back to the administrative authority which
took the decision.
33. The 1988 Act was promulgated as a law of temporary validity. It
was to be in force until the end of 1991, but its validity has
subsequently been extended until the end of 1994.
34. The 1988 Act does not contain any specific provisions about the
procedure of the Supreme Administrative Court when dealing with
requests for review under the provisions of the Act. Consequently, the
procedure is governed by the general rules applicable to the procedure
before the Supreme Administrative Court. These rules are to be found
in the 1971 Administrative Judicial Procedure Act (förvaltnings-
processlagen). It follows from these rules that the procedure before
the Supreme Administrative Court is in principle a written procedure.
However, the Court may decide to hold an oral hearing on a specific
matter where this appears to be beneficial to the examination of the
case or where it is likely to expedite the proceedings.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
35. The Commission has declared admissible the applicant's complaint
that he was not afforded a fair and public hearing before the Supreme
Administrative Court.
B. Point at issue
36. The issue to be determined is whether there has been a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
37. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal..."
38. The applicant considers that this provision has been violated in
his case, since he was refused an oral hearing in the proceedings
before the Supreme Administrative Court.
39. The Government recognise that there are arguments in favour of
the opinion that Article 6 (Art. 6) has been breached but consider that
there are also arguments speaking against such a conclusion. They point
out that the Supreme Administrative Court's examination was limited in
the present case to an examination primarily aimed at establishing
whether the challenged decision was contrary to any legal provision and
that it did not, as in the Håkansson and Sturesson case (cited above),
cover all aspects of the case. The Supreme Administrative Court acted
as a court of cassation. It could only quash the decision but not
replace it by a new decision. It could therefore be argued that the
issue before the Supreme Administrative Court was not such as to
require an oral hearing. The case did not raise any questions of fact
or law which could not be adequately resolved on the basis of the case-
file.
40. However, the Government add that it could be argued that the
Swedish rules on oral hearings in court proceedings and the way these
rules are applied in practice are not sufficient to meet Sweden's
obligations under Article 6 (Art. 6) of the Convention. They would
welcome any clarification of how Article 6 (Art. 6) should be construed
in this regard. By way of conclusion, the Government state that the
Supreme Administrative Court's decision not to hold an oral hearing in
the present case was clearly lawful under Swedish law, but the
Government leave open the question whether the Administrative Judicial
Procedure Act, which does not unconditionally afford to a party the
right to have an oral hearing at his request, is in full conformity
with Article 6 (Art. 6) of the Convention.
41. The Commission notes that the proceedings before the Supreme
Administrative Court concerned the applicant's request for a special
permit to extract gravel from the pit situated on land owned by him and
his wife. It follows that the determination of the applicant's civil
rights was at issue in these proceedings and that Article 6 para. 1
(Art. 6-1) of the Convention was applicable.
42. Article 6 para. 1 (Art. 6-1) of the Convention affords to a party
in court proceedings the right to a fair and public hearing. This means
that he must as a rule be entitled to present his arguments orally
before a court at a hearing which shall be held in public. This is not
to say that there must be an oral hearing at all stages of court
proceedings. In particular, such a hearing may not be required under
Article 6 (Art. 6) in appeal or cassation proceedings where the
examination is limited to legal issues (Eur. Court H.R., Axen judgment
of 8 December 1983, Series A no. 72, Sutter judgment of
22 February 1984, Series A no. 74, Jan-Åke Andersson judgment of
29 October 1991, Series A no. 212-B, and Fejde judgment of
29 October 1991, Series A no. 212-C). Nor is an oral hearing necessary
when the parties, expressly or tacitly, have waived their right to such
a hearing (cf. Håkansson and Sturesson judgment, op. cit., p. 22,
para. 66).
43. In the present case, the applicant's request was first examined
by administrative authorities, and the Supreme Administrative Court was
the first and only tribunal which dealt with the applicant's case.
44. In these circumstances, the Commission considers that the
applicant was entitled to an oral hearing before the Supreme
Administrative Court.
45. Consequently, the Supreme Administrative Court's refusal to grant
the applicant an oral hearing constituted a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
D. Conclusion
46. The Commission concludes, by 16 votes to 2, that in the present
case there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED BY MR. B. MARXER
In my opinion the aim of the wording "everyone is entitled to a
fair and public hearing" in Article 6 (1) is to guarantee that any
litigant must have the possibility to bring his arguments before the
tribunal. One should not interpret the word "hearing" as meaning that
this must necessarily be done orally. It is the possibility of raising
the arguments which is at stake.
The essence of the requirement of Article 6 that a hearing must
be public is to guarantee that court judgments can be supervised by
public opinion. Could a court rule in complete secrecy, then a risk for
arbitrariness or insufficient care would rise. The simple fact that
courts can be criticised by legal opinion offers an element of control,
and without any control, no institution can function well.
It is less relevant whether the hearing is conducted in writing
or orally. Indeed, the practice of the Contracting States show a great
variety of solutions. Broadly speaking common-law inspired countries
give preference to oral arguments, whilst on the continent written
proceedings are often preferred. Supervision can be exerted over
written documents as well as over oral hearings.
In ordinary criminal cases oral hearings may be essential to
assess the facts and in order to offer the judge some insight into the
personality of the accused. In ordinary civil cases an oral hearing may
also be essential to establish the facts. The legal arguments, on the
other hand, can be better brought in writing than orally. Therefore,
when a question is purely legal there is no real need for an oral
hearing. The hearing can equally well be in writing.
One of the major problems in Europe is the length of proceedings
in many countries. This problem is a consequence of the overburdening
of the judiciary. It is of the greatest importance to help the courts
to give speedy decisions. If such decisions can be given equally well
on the basis of written arguments a requirement to put the legal
arguments also orally will only delay the judgments.
In my opinion, therefore, it should be considered in each
individual case whether an oral argument is necessary. If there are no
facts on which the court may want to ask questions of the parties, if
the factual situation is clear, if the legal arguments can be brought
out in writing and if these legal arguments are sufficiently accessible
to the public to guarantee that the written hearing is a public
hearing, then the sacrifice in time, or the extra burden on the courts
required by an oral hearing would not be justified. In stages in the
proceedings subsequent to the trial at first instance the European
Court of Human Rights accepted this in a number of cases (see, e.g.
Jan-Åke Andersson judgment of 29 October 1991, Series A 212 B, p. 45,
para. 27). Usually, the issues to be decided when courts review, as in
the present case, the lawfulness of administrative action are also of
such a nature that an oral hearing may be dispensed with - even at
first instance. The legal arguments which predominate in such
proceedings can often be better brought in writing than orally.
In Sweden the written arguments brought by the parties are
public. In the present case, therefore, there is no lack of public
control. Neither have I found any argument why the absence of oral
pleadings has caused any damage to the applicant. Looking at the court
proceedings as a whole I do not find a violation of Article 6.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
9 April 1991 Introduction of the application
9 October 1991 Registration of the application
Examination of Admissibility
6 January 1992 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
7 May 1992 Government's observations
5 June 1992 Applicant's observations in reply
12 October 1992 Commission's decision to declare the
application admissible
23 October 1992 Communication to the parties of the
text of the decision on admissibility
Examination of the merits
9 February 1993 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy