AS TO THE ADMISSIBILITY OF
Application No. 18781/91
by Roy E. GASPER
against Sweden
The European Commission of Human Rights sitting in private on
6 July 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
D. SVÁBY
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 6 May 1991 by Roy E. GASPER against Sweden
and registered on 11 September 1991 under file No. 18781/91;
Having regard to the 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 5 October 1995 and 15 March 1996 and the observations in
reply submitted by the applicant on 22 February, 15 April and
14 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish national born in 1940, resides in
Rijswijk, the Netherlands. Before the Commission he is represented by
Mr Göran Ravnsborg, a lecturer in law at Lund University.
The facts of the case, as submitted by the parties, may be
summarised as follows.
a. The particular circumstances of the case
In the late 1970's and in the beginning of the 1980's the
applicant ran a taxi business in Malmö. For this purpose, he had been
granted a transportation licence by the County Administrative Board
(länsstyrelsen) of the County of Malmöhus. Moreover, he was a member
of a private-law body known as the Malmö Taxi Economic Association. The
purpose of the latter association was inter alia to provide taxi
station services and to manage a dispatch exchange.
Following a dispute with representatives of the Association, the
applicant, on 7 November 1980, gave notice of his intention of leaving
the said Association.
In the beginning of 1981 the Association lodged a petition with
the County Administrative Board, requesting that the applicant's
transportation licence be revoked. The request rested on the contention
that, following his withdrawal from the Association, the applicant no
longer subscribed to a dispatch exchange. According to the then
relevant legislation - the 1979 Act on Commercial Transportation
(Yrkestrafiklagen, 1979:559) - the granting and holding of a
transportation licence were conditional on affiliation to such an
exchange.
By decision of 27 March 1981, the County Administrative Board
ordered the applicant - on pain of losing his transportation licence -
to apply for membership of the Association. In so doing, the Board
stated that the applicant was obliged to subscribe to a dispatch
exchange, that he should belong to the one provided by the Association
and that - in the absence of any other practicable way of bringing
about such affiliation - he should be affiliated to the dispatch
exchange by means of membership of the Association.
The decision was upheld on appeal by the Board of Transport
(Transportrådet) on 18 June 1981.
The applicant subsequently appealed to the Government, which, on
19 November 1981, quashed the impugned decision. They found that there
was no statutory basis for imposing membership of the Association as
a prerequisite for the applicant's holding of a transportation licence.
By letter of 10 December 1981, apparently invoking the 1972 Claim
Settlements Order (Kungörelsen om statsmyndigheternas skadereglering
i vissa fall, 1972:416), the applicant lodged a claim for compensation
with the Chancellor of Justice (Justitiekanslern). The amount claimed
by the applicant - 72,000 Swedish crowns (SEK) - was equivalent to the
costs for legal representation allegedly incurred by him in his -
fruitful - efforts to have the County Administrative Board's decision
quashed. He contended that the latter decision had constituted a
violation of his negative freedom of association. By decision of
4 November 1982, the Chancellor of Justice rejected the applicant's
claim. The Chancellor stated inter alia the following:
(Translation)
"[T]he fact that the County Administrative Board ordered
[the applicant] to apply for membership of the Association
instead of ordering him to affiliate his business to the
dispatch exchange cannot be considered erroneous or
negligent to such an extent that the decision could entail
liability on the part of the State to pay damages. For this
reason, I reject his claim for compensation."
Reiterating his claim for compensation, the applicant, on
9 August 1990, instituted civil proceedings against the State in the
District Court (tingsrätten) of Stockholm. Again, he maintained that
the whole of the claim - now amounting to 107,000 SEK plus interest -
referred to costs for legal representation which had been necessarily
incurred by him in the proceedings before the County Administrative
Board, the Board of Transport and the Government. He invoked Chapter
3, Section 2 of the 1972 Tort Liability Act (Skadeståndslagen,
1972:207), according to which the State is liable to pay compensation
in the event of error or negligence in the exercise of authority.
In reply to these submissions the State, represented by the
Chancellor of Justice, stated that it refused the applicant's claim but
submitted, in the alternative, that it would accept to pay 3,000 SEK,
should the District Court find that the State was indeed liable to pay
damages.
Already when instituting proceedings on 9 August 1990, the
applicant requested that all legally trained judges who - in their very
capacity as judges - were subject to disciplinary control by the
Chancellor of Justice be disqualified from examining his case. The
applicant invoked Chapter 4, Section 13, subsection 9 of the Code of
Judicial Procedure (Rättegångsbalken).
By separate decision of 17 October 1990, the District Court
rejected the applicant's request, stating that the reasons invoked by
him did not constitute grounds for disqualification under the provision
invoked.
The decision was upheld on appeal by the Svea Court of Appeal
(Svea hovrätt) on 23 November 1990. Although it was not open to the
applicant to appeal further against this decision, he lodged an appeal
with the Supreme Court (Högsta domstolen). The applicant's appeal was
treated as an extraordinary appeal against miscarriage of justice
(besvär över domvilla). On 4 June 1991 the Supreme Court dismissed the
appeal, stating that the issue of disqualification could be examined
within the context of an ordinary appeal against the District Court's
future judgment on the merits of the case.
Following the above decisions, the applicant's case continued on
its merits in the District Court.
At the request of the applicant, the District Court, on
23 January 1992, informed him that his case would be examined by judges
L.C., T.J. and B.H. Referring to his previous submissions in this
respect, the applicant immediately requested that these judges be
disqualified from examining the case. On 27 February 1992 the District
Court - sitting with three other judges and having held a separate
hearing on the issue - dismissed the applicant's request for
disqualification, finding that it was essentially identical to his
previous request concerning this issue.
The hearing on the merits took place later that day in the
presence of the applicant's counsel and the State's representative,
i.e. the Chancellor of Justice. The District Court was composed of
judges L.C., T.J. and B.H.
In its judgment of 12 March 1992, the District Court found the
State liable to pay damages. The Court stated inter alia the following:
(Translation)
"By the County Administrative Board's decision of
27 March 1981, [the applicant] was ordered - on pain of
losing his transportation licence, on which he depended for
earning his living - to apply for membership of the very
economic association he had recently left, following a
dispute between himself and the association. The decision
lacked a statutory basis ... Although - in this respect -
his negative freedom of association was not
constitutionally protected, [the applicant] had a
legitimate interest to appeal against the decision and to
vindicate his right by having the decision quashed. It has
appeared that [the applicant] is inexperienced in legal
matters. Certain costs for legal representation have
therefore been necessary in order for him to obtain his
rights. To the extent that the applicant can be reimbursed
for these costs, they constitute the loss for which the
State must pay damages as a result of the County
Administrative Board's erroneous decision."
The District Court went on to examine the applicant's claim for
compensation, amounting to 107,000 SEK plus interest. It noted that the
pleadings in the administrative proceedings had largely related to
other issues than the alleged violation by the County Administrative
Board of the applicant's negative freedom of association. That being
so, compensation should be limited to what could have been reasonably
necessary to vindicate his right in the latter respect. On the basis
of an evaluation of the available evidence, the District Court ordered
the State to pay to the applicant a total of 9,000 SEK plus interest.
On 1 April 1992 the applicant lodged appeals with the Svea Court
of Appeal in respect of both the decision on disqualification and the
judgment on the merits. In the latter respect, he reiterated his
request for compensation in the amount of 107,000 SEK. On the same
occasion the applicant requested that all judges of the Court of Appeal
who - in their capacity as judges - were subject to disciplinary
control by the Chancellor of Justice be disqualified from examining his
appeals.
No appeal was lodged on behalf of the State. As regards the
merits of the case, the only issue to come under the Court of Appeal's
examination was therefore the size of the compensation to be paid by
the State.
In a separate decision of 10 June 1992 the appellate court
rejected the applicant's appeal against the District Court's decision
not to disqualify judges L.C., T.J. and B.H. By letter of 14
August 1992, the Court of Appeal notified the parties that the case
might be decided without an oral hearing and invited them to submit
their final observations before 31 August 1992. The applicant submitted
such observations, insisting that a hearing be held in respect of both
the issue of disqualification and the merits of the case. He requested
that four witnesses be summoned to give evidence on the issue of
disqualification.
The Court of Appeal determined the case on the basis of the
case-file. In its judgment, delivered on 19 March 1993, the Court
stated at the outset that the applicant's request for the
disqualification of all judges of the Court of Appeal was not
sufficiently precise to merit consideration. Furthermore, having found
that it would be manifestly unnecessary to hold a hearing on the merits
of the case, the Court of Appeal upheld the District Court's judgment.
In so doing, it subscribed entirely to the reasons given by the lower
court.
On 12 April 1993 the applicant asked for leave to appeal to the
Supreme Court. He referred to both the merits of his case and the issue
of disqualification of judges. In addition, he requested that every
Supreme Court Justice who - in his capacity as judge - was subject to
disciplinary control by the Chancellor of Justice be disqualified from
examining the request for leave to appeal.
Leave to appeal was refused by the Supreme Court on 1 December
1993. According to a memorandum drafted by the Judge Referee of that
Court, both the merits of the case and the issue of disqualification
were considered on that occasion. When stating the scope of the
applicant's request for leave to appeal, the decision only referred to
the claim for damages. However, it also mentioned the Court of Appeal's
judgment as the appealed decision.
b. Relevant domestic law and practice
Relevant constitutional provisions
Chapter 1, Sections 1 and 9 of the 1974 Instrument of Government
(Regeringsformen), which forms part of the Swedish Constitution,
provide that all public power must be exercised subject to the law and
that courts and public authorities shall, in the performance of their
functions, ensure the equality of all persons before the law and remain
objective and impartial.
Chapter 11, Section 2 of the Instrument of Government reads as
follows:
(Translation)
"No public authority, nor Parliament, may determine how a
court shall adjudicate an individual case or how a court,
in other respects, shall apply the law in an individual
case."
Chapter 11, Section 5 of the Instrument of Government regulates
the security of tenure enjoyed by permanent judges. Under this
provision such a judge may be removed from his or her post only if the
judge in question has - by means of a punishable offence or gross or
repeated neglect of official duties - proved to be manifestly unfit to
hold the post; or has reached the applicable age of retirement; or is
otherwise under a legal obligation to retire on a pension. Pursuant
to Chapter 11, Section 6 the Chancellor of Justice is an independent
public authority subordinate to the Government. Chapter 11, Section 7
provides that no public authority, nor Parliament, nor a decision-
making body of a municipality may determine how a public authority
should decide in an individual case concerning the exercise of
authority against a private subject or concerning the application of
the law. When performing supervisory functions (see below), the
Chancellor of Justice enjoys the latter guarantee against outside
pressures.
The Chancellor of Justice
Introduction
The Chancellor of Justice is appointed by the Government. As a
rule, holders of this office are recruited among lawyers who fulfil the
criteria for being appointed as justices in the supreme courts.
The Office of the Chancellor of Justice was set up in 1713 to
undertake an overall supervision of the compliance with acts of
legislation and the manner in which the various public offices
discharged their responsibilities. The Chancellor's present-day duties
fall into four main categories. Thus, he or she
i. advises the Government on legal matters;
ii. safeguards the rights of the State;
iii. supervises - in certain respects - public administrative
authorities and the courts; and
iv. performs other duties, e.g. that of being public prosecutor
in cases concerning offences against the freedom of the
press.
Provisions on the Chancellor's duties in these respects are found
in the 1975 Act on the Supervision exercised by the Chancellor of
Justice (Lag om justitiekanslerns tillsyn, 1975:1339 - "the 1975 Act")
and the 1975 Ordinance on the Duties of the Chancellor of Justice
(Förordning med instruktion för justitiekanslern, 1975:1345 - "the 1975
Ordinance"). At the material time, relevant provisions were also found
in the 1972 Claim Settlements Order (Kungörelsen om statsmyndigheternas
skadereglering i vissa fall, 1972:416).
The following account centres on the duties under ii. and iii.
above.
Safeguarding the rights of the State
The duty of safeguarding the rights of the State implies that the
Chancellor of Justice represents the State in civil proceedings
involving the rights of the State and in connection with out-of-court
settlements involving such rights, should there be no other authority
that is competent to do so (Section 2 of the 1975 Ordinance). The bulk
of the Chancellor's work in this respect refers to claims for damages
directed against the State.
A person wishing to claim damages from the State - contending,
e.g., that there has been an error or negligence in connection with the
exercise of public authority - may opt for one of two alternative
courses of action. At the material time, the 1972 Claim Settlements
Order provided for a system of voluntary out-of-court settlements of
claims for damages directed against the State. Thus, under Section 2
of the 1972 Order, a person claiming damages from the State could lodge
an application to this effect with the Chancellor of Justice, who -
after investigating the matter - would decide whether or not to accept
the claim. Such a decision of the Chancellor was not open to an appeal.
However, if dissatisfied with the decision, there was nothing to
prevent the claimant from pursuing his claim by instituting civil
proceedings against the State before a competent District Court. If
such proceedings were indeed instituted, the State would be represented
by the Chancellor of Justice. The 1972 Order was repealed and replaced
by a new ordinance on 1 January 1996. For all practical purposes, the
new ordinance retains intact the material rules of the 1972 Order.
In the alternative, a person wishing to claim damages from the
State may immediately institute civil proceedings against the State
before a District Court, without relying on the system of voluntary
out-of-court settlements.
Official statistics indicate that, during 1994, the Chancellor
of Justice was served with summonses in 25 cases concerning damages,
18 of which were brought directly before a court, without having first
been considered by the Chancellor under the 1972 Order.
Supervising public administrative authorities and the courts
Under Section 1 of the 1975 Act, the Chancellor of Justice shall
supervise those engaged in public activities to ensure that they comply
with laws and other statutes and that they fulfil their official duties
in all other respects.
The scope of the Chancellor's supervision is laid down in
Sections 2 and 3 of the 1975 Act and in Section 3 of the 1975
Ordinance. According to these provisions, public authorities and their
employees, those engaged by such authorities to carry out official
assignments and others who are affiliated to such authorities come
under the supervision of the Chancellor of Justice. The same applies
to municipal authorities and other authorities which are not
subordinate to the Government, employees and holders of other posts in
such authorities and others who - without being affiliated to a public
authority - hold a post or have an assignment which involves the
exercise of authority. As regards the latter category, it is expressly
stated that inter alia Members of Parliament and local councillors must
be excluded from the Chancellor's supervision. Likewise, the
supervision must not be extended to the Government or its ministers,
nor to Parliamentary agencies, employees of such agencies or those
engaged by Parliament for official assignments.
Under Section 5 of the 1975 Act, the Chancellor of Justice may -
as prosecutor extraordinary (särskild åklagare) - institute criminal
proceedings against an official who has committed a punishable offence
by neglecting his or her official duties. However, if an official has
neglected such duties and if the act of negligence can be punished in
disciplinary proceedings, the Chancellor may report the matter to
anyone vested with the authority to decide on a disciplinary sanction.
This follows from Section 6 of the 1975 Act. Section 6 also provides
that, should the Chancellor find it imperative that the official be
dismissed or suspended on account of a punishable offence or a grave
or repeated neglect of duties, he may report the matter to the person
who is authorised to decide on such a measure. Traditionally, one of
the most important supervisory duties of the Chancellor of Justice
consists in safeguarding that the legal rights of the individual are
upheld and that the rule of law prevails. The supervision exercised by
the Chancellor on behalf of the Government bears much resemblance to
the supervisory duties performed by the Parliamentary Ombudsmen on
behalf of Parliament. The courts have always come under the supervision
of both the Chancellor and the Ombudsmen.
The supervisory duties of the Chancellor of Justice are performed
by looking into complaints lodged by individuals or public authorities,
by carrying out inspections or by conducting inquiries into matters
otherwise brought to the Chancellor's attention, e.g. by reports in the
media. Most supervisory cases are initiated by members of the general
public. Inspections are rare. Official statistics indicate that, during
1994, the Chancellor of Justice gave decisions in 745 supervisory
cases, 59 of which resulted in some form of criticism being expressed.
In 399 cases there were not sufficient reasons to express criticism.
In the remaining cases the Chancellor decided not to pursue the matter
or to refer it to another authority.
Relevant provisions of the Code of Judicial Procedure
The statutory rules on disqualification of judges are found in
Chapter 4, Section 13 of the Code of Judicial Procedure, which
enumerates a series of specific grounds on which a judge may be
disqualified: for instance, where he or she is a party in the case or
otherwise has an interest in its subject-matter or can expect special
advantage or damage from its outcome; or where he or she is related
through family or marriage to someone in such a position; or has been
involved in the case as judge, or as lawyer or adviser to one of the
parties or as witness or expert. Pursuant to the last provision of this
Section - subsection 10 (previously 9), which was the one relied upon
by the applicant in the domestic proceedings - a judge must be
disqualified if some other particular circumstance exists which is
likely to undermine confidence in his or her impartiality in the case.
Swedish case-law on the interpretation of subsection 10 indicates
that, under that provision, a judge may be disqualified on the
following grounds: for instance, where the judge because of employment
is financially dependent on one of the parties; or where the judge is
a party in a similar case in another court, or where there is apparent
animosity between the judge and one of the parties; or where the judge
and one of the parties are close friends; or where the judge has
reported a crime and later handles the case in court; or where a civil
case has been referred back to a lower court by an appellate court and
the same judge of the lower court determines the case on both
occasions.
Proposals for law reform in respect of the Chancellor of Justice
The duties of the Chancellor of Justice have been subject to
review both in the 1970's and in the 1990's.
In 1974 a government committee was set up to review the duties
of the Chancellor of Justice. Its report was published in 1978 ("The
Office of the Chancellor of Justice - A Review of the Duties of the
Chancellor of Justice and the Handling by the State of Civil Disputes",
Swedish Government Official Reports, SOU 1978:59). The report expressed
the opinion that the Chancellor's primary duty should be supervision.
It also suggested that another of the principal duties - that of
safeguarding the rights of the State - should be transferred to a new
authority to be known as the "State Advocate" (Statsadvokaten). The
Government, however, did not propose any changes in this respect.
Following a critical debate both within Parliament and outside
it, the Government, in 1991, set up a committee to re-examine the
duties of the Chancellor of Justice. In its terms of reference
(direktiv), the Government stated that this review should particularly
focus on how to avoid the risk that conflicts of interest arise between
the Chancellor's various duties. In this respect, the Government
requested the committee to consider inter alia what conflicts of
interest could arise when the Chancellor of Justice represents the
State before a court at the same time as he is required, in his
supervisory capacity, to examine the manner in which the same court
deals with the case.
The report of the 1991 committee was published in 1993 ("The
Chancellor of Justice. A Review of the Duties of the Chancellor of
Justice", Swedish Government Official Reports, SOU 1993:37). The
committee suggested that the Chancellor should retain the duty of
safeguarding the rights of the State. With regard to the question of
the Chancellor's supervision of the courts, the committee expressed the
following opinion on page 59 et seq.:
(Translation)
"[T]he committee [has] had regard to inter alia the
provisions of the Instrument of Government concerning the
independence of the courts and the security of tenure of
judges. These provisions provide inter alia that no public
authority may determine how a court shall adjudicate an
individual case or how a court, in other respects, shall
apply the law in an individual case. Moreover, they provide
that a permanent judge must not be dismissed unless there
are certain objectively justified reasons for doing so. ...
...
The constitutional provisions now accounted for imply that,
when supervising the courts, the Chancellor of Justice
should not express any opinion on how the court should
adjudicate a particular case or in any other way examine
the manner in which the court has applied the law. What may
be examined and assessed by the Chancellor is merely
whether the court or an individual official has made any
procedural error in a case. Of course, borderline cases may
arise.
Another question pertaining to the independence of the
judiciary concerns the fact that the courts, which come
under the supervision of the Chancellor of Justice,
sometimes have to determine cases in which the Chancellor
appears as the representative of the State. The inquiries
carried out by the committee do not indicate that this is
actually a problem in practice. It is incumbent on both the
courts and the Chancellor of Justice to abide by the
constitutional provisions on the independence and autonomy
enjoyed by the courts in their application of the law. ...
... Consequently, the committee concludes that it
cannot find that the Chancellor's supervision of
the courts - as it is now regulated and as these
rules are applied in practice - poses a threat
to the independence of the courts."
However, to underline the importance of the independence of the
judiciary also in relation to the Chancellor of Justice, the committee
recommended that the principles already governing the Chancellor's
supervision of the courts be manifested in a new provision of the 1975
Act on the Supervision exercised by the Chancellor of Justice. The
proposed provision read as follows:
(Translation)
"When exercising supervision in respect of the courts, the
Chancellor of Justice shall take into account in particular
the provisions contained in Chapter 11, Section 2 of the
Instrument of Government."
However, the Government have not introduced any legislation to
this effect.
COMPLAINTS
1. The applicant alleges that the manner in which the courts dealt
with the issue of disqualification of judges and the issue of
compensation, respectively, amounts to a denial of justice in breach
of Article 6 para. 1 of the Convention. Also under that Article, the
applicant submits that - in view of the fact that the respondent State
was represented before the courts by the Chancellor of Justice - he was
not afforded a fair and public hearing by an independent and impartial
tribunal in respect of his claim for compensation. This, so he states,
follows from the Chancellor's supervisory functions vis-à-vis Swedish
courts and the judiciary. Moreover, the applicant complains of the fact
that he was refused an oral hearing before the Court of Appeal, in
respect of both the action for damages and the disqualification issue.
2. The applicant also alleges a breach of Article 13 of the
Convention, in that the Supreme Court ignored his request for leave to
appeal in so far as it pertained to the question of disqualification
of judges.
3. Invoking Article 14 of the Convention in conjunction with
Article 6 para. 1 and Article 13 of the Convention, the applicant
complains of the fact that he, as a private plaintiff, had to meet as
his adversary in the proceedings before the courts the Chancellor of
Justice, who is the Supreme Ombudsman of the State and in respect of
whom all courts are in favour. For this reason, so he claims, he has
been discriminated against as compared with plaintiffs who meet a
private adversary in an action for damages.
4. Finally, the applicant claims that, as a result of the
insufficient compensation for legal expenses granted by the courts,
there has been a prolongation of the initial violation of Article 11
of the Convention - manifested in the County Administrative Board's
decision of 27 March 1981 - and also a breach of Article 1 of
Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 May 1991 and registered on
11 September 1991.
On 1 December 1993 the Commission (First Chamber) decided to
adjourn the examination of the application pending the outcome of then
ongoing proceedings in Sweden.
On 17 May 1995 the Commission (First Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure. The Government were
requested to deal with the questions whether the applicant enjoyed a
fair and public hearing by an independent and impartial tribunal as
required by Article 6 para. 1 of the Convention and, in particular,
whether the courts could be regarded as independent and impartial in
the light of the different functions vested in the Chancellor of
Justice and whether the absence of a public hearing before the Svea
Court of Appeal was compatible with that Article.
The Government's written observations were submitted on
5 October 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 22 February 1996, also after an
extension of the time-limit. The parties thereafter submitted further
observations, the Government on 15 March 1996 and the applicant on
15 April and 14 June 1996.
On 21 May 1996 the Commission granted the applicant legal aid.
THE LAW
1. The applicant alleges that the manner in which the courts dealt
with the issue of disqualification of judges and the issue of
compensation, respectively, amounts to a denial of justice in breach
of Article 6 para. 1 (Art. 6-1) of the Convention. Also under that
Article, the applicant submits that - in view of the fact that the
respondent State was represented before the courts by the Chancellor
of Justice - he was not afforded a fair and public hearing by an
independent and impartial tribunal in respect of his claim for
compensation. This, so he states, follows from the Chancellor's
supervisory duties vis-à-vis Swedish courts and the judiciary.
Moreover, the applicant complains of the fact that he was refused an
oral hearing before the Court of Appeal, in respect of both the action
for damages and the disqualification issue.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, the following:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal ..."
The respondent Government submit that the applicant's complaint
concerning the independence and impartiality of the courts is
manifestly ill-founded. They maintain that the Chancellor's dual
function of safeguarding the rights of the state and supervising inter
alia the courts constitutes a merely theoretical problem with no
significant implications in practice. In so holding, they refer to
Chapter 11, Section 2 of the Instrument of Government, according to
which no public authority, nor Parliament, may determine how a court
should adjudicate or apply the law in a particular case. Thus, when
supervising the courts, the Chancellor must not express any view on how
a court should determine a case or apply the law. Likewise, the
Chancellor of Justice cannot exert pressure on an individual judge or
a court with a view to influencing the outcome of a case. Nor can he
or she institute disciplinary proceedings against a judge as a reaction
to how the judge has applied the law in a particular case. This would
be a violation also of the basic principles on the rule of law, laid
down in Chapter 1, Sections 1 and 9 of the Instrument of Government.
Furthermore, the Chancellor's supervision of the courts is - in
practice - entirely focused on the manner in which cases are handled
from a procedural and practical point of view, e.g. that cases are
determined within a reasonable time and that the rights of the
individual are duly observed. For these reasons, the Government claim
that the independence and impartiality of the courts seized with the
applicant's case were not open to doubt and that the applicant's fears
in this respect were not objectively justified and legitimate. Finally,
they point out that the functions of the Chancellor of Justice have
been thoroughly examined in recent years and that no reform in this
respect has been deemed to be necessary.
As regards the absence of a public hearing before the Court of
Appeal in respect of both the action for damages and the issue of
disqualification of the District Court judges, the Government submit
the following. They first call into question whether the proceedings
brought about by the applicant's request that judges be disqualified
fall within the scope of Article 6 (Art. 6) of the Convention. In the
alternative, they argue that the present complaint is in any event
manifestly ill-founded in respect of both the action for damages and
the issue of disqualification. This is so since - in both cases - there
were special features to justify the appellate court's decision not to
hold a public hearing. The questions raised by the applicant's appeals
were either purely legal, i.e. whether or not to disqualify judges, or
questions that could be resolved following an equitable assessment,
i.e. the size of the compensation to be paid by the State. No facts
needed clarification through the hearing of the applicant. Thus,
neither appeal raised any questions of fact or law which could not be
adequately resolved on the basis of the case-file. In these
circumstances the Government maintain that the applicant was afforded
a fair hearing within the meaning of Article 6 (Art. 6) of the
Convention.
The applicant disputes the Government's contention that, when
supervising the courts, the Chancellor of Justice must not express any
view on how an individual case should be determined. On the contrary,
so he argues, it is incumbent on the Chancellor to express such views
when representing the State before a court. He contends that the
arguments put forward by the Chancellor when pleading a case on behalf
of the State are in fact highly authoritative views on how the court
should determine the case.
The Commission finds that the proceedings brought about by the
applicant's claim for compensation related to his "civil rights" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which
is therefore applicable to the present complaint.
As regards the question whether the courts could be considered
"independent and impartial", the Commission first recalls the case-law
of the Convention organs, which - for present purposes - can be
summarised as follows. In determining whether a body can be
considered to be an "independent" tribunal, i.e. in particular
independent of the executive and of the parties to the case, regard
must be had to the manner of appointment of its members and the
duration of their term of office, the existence of regulations
governing their removal or guarantees for their irremovability, laws
prohibiting their being given instructions by the executive in their
adjudicatory role, the existence of legal guarantees against outside
pressures, the question whether the body presents an appearance of
independence and the attendance of members of the judiciary in the
proceedings (see, e.g., Eur. Court HR, Campbell and Fell v. the United
Kingdom judgment of 28 June 1984, Series A no. 80, pp. 39-41, paras.
78-81).
The existence of impartiality for the purposes of Article 6
para. 1 (Art. 6-1) of the Convention must be determined on the basis
of a subjective test, that is on the basis of the personal conviction
of a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect.
As to the subjective test, the personal impartiality of a judge must
be presumed until there is proof to the contrary. Under the objective
test, it must be determined whether, quite apart from the judge's
personal conduct, there are ascertainable facts which may raise doubts
as to his or her impartiality. In this respect, even appearances may
be of a certain importance. What is at stake is the confidence which
the courts in a democratic society must inspire in the public and the
parties to the proceedings. This implies that in deciding whether in
a given case there is a legitimate reason to fear that a particular
judge lacks impartiality, the standpoint of the party concerned is
important but not decisive. What is decisive is whether this fear can
be held objectively justified (see, e.g., Eur. Court HR, Hauschildt v.
Denmark judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46-
48).
In the instant case, the applicant's fears were based on the fact
that the respondent State was represented before the courts by the
Chancellor of Justice, who had previously - under the 1972 Claim
Settlements Order - rejected the applicant's claim for compensation and
who performs supervisory functions in respect of the courts and the
judiciary.
In this case, the Commission finds it difficult to dissociate the
question of impartiality from that of independence.
The Commission recalls that - under Chapter 11, Section 2 of the
Instrument of Government (see above) - neither a public authority nor
Parliament may determine how a court should adjudicate or apply the law
in a particular case. In addition, all public power must be exercised
subject to the law and courts and public authorities shall, in the
performance of their functions, ensure the equality of all persons
before the law and remain objective and impartial (Chapter 1, Sections
1 and 9). Moreover, Chapter 11, Section 5 of the Instrument of
Government provides that permanent judges enjoy irremovability. In the
Commission's opinion, these are extensive guarantees designed to shield
Swedish judges from inter alia undue pressures.
It is true that the Chancellor of Justice performs supervisory
functions in respect of inter alia the courts and the judiciary. The
Commission notes, however, that when supervising the courts the
Chancellor - being a public authority within the meaning of Chapter 11,
Section 7 of the Instrument of Government - enjoys guarantees against
undue influence from other authorities, e.g. the Government. Moreover,
when performing the supervisory functions, the Chancellor is bound to
comply with the above-mentioned constitutional provisions. From these
provisions it follows that the Chancellor must not interfere in the
adjudicatory role of the courts and that, contrary to what the
applicant seems to suggest, judges need not fear to be prosecuted by
the Chancellor on account of having determined a case to the detriment
of the State. Nor do they need to fear for their position. In fact, the
outcome of the applicant's action for damages - whereby the courts
found against the Chancellor and ordered the State to pay damages,
albeit on a smaller scale than requested by the applicant - rather
illustrates that this is the case. Finally, although of no independent
relevance, it appears that in practice the Chancellor's supervision is
entirely devoted to the procedural aspects of the handling of a case,
including, for instance, that cases are determined within a reasonable
time.
In these circumstances, the Commission finds that the mere fact
that the Chancellor of Justice performs the dual function of
safeguarding the rights of the State and supervising inter alia the
courts cannot be held as, in itself, justifying fears as to the
independence and impartiality of the courts. No other ground for such
fears has been established. Thus, the independence and impartiality of
the tribunals concerned were not capable of appearing to be open to
doubt and the applicant's fears in this respect cannot be considered
objectively justified.
The applicant further complains of the fact that he was refused
an oral hearing before the Court of Appeal, in respect of both the
action for damages and the disqualification issue. The Government
contend primarily that Article 6 para. 1 (Art. 6-1) of the Convention
fails to apply to the proceedings brought about by the applicant's
request that judges be disqualified. The Commission, however, finds no
reason to examine this question, since the entirety of the present
complaint is in any event inadmissible for the following reasons.
The Commission recalls that the manner of application of
Article 6 para. 1 (Art. 6-1) to proceedings before appellate courts
depends on the special features of the proceedings involved. The main
question is whether a departure from the principle that there should
be a public hearing could, in the circumstances of the case, be
justified at the appeal stage by the special features of the domestic
proceedings as a whole (see, e.g., Eur. Court HR, Helmers v. Sweden
judgment of 29 October 1991, Series A no. 212-A, p. 15, paras. 31-32).
In the present case, hearings had been held at first instance in
respect of both the merits of the case and the issue of
disqualification of judges. The Commission considers that the
applicant's appeal on the latter issue raised a purely legal question,
the determination of which did not require a public hearing. As regards
the merits of the case, it is true that the Court of Appeal was called
upon to examine the case as to both the facts and the law. However, the
only question raised by the applicant's appeal on the merits was the
size of the compensation to be awarded to the applicant. This is so
since the State had not lodged an appeal against the District Court's
judgment, thus accepting, per se, to be held liable to pay damages. It
follows that, with regard to the merits of the case, the Court of
Appeal was merely called upon to make an equitable assessment. In the
Commission's opinion, this assessment could be adequately made on the
basis of the case-file. Accordingly, the applicant's physical
attendance was not necessary and the Court of Appeal could, as a matter
of fair hearing, properly examine also this part of the case without
holding a public hearing.
The Commission has found no other substantiated allegations in
the applicant's submissions which could lead it to conclude that the
proceedings complained of were unfair.
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 applicant also alleges a violation of Article 13 (Art. 13)
of the Convention, in that the Supreme Court ignored his request for
leave to appeal in so far as it pertained to the question of
disqualification of judges.
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."
Assuming that Article 13 (Art. 13) is applicable and that the
applicant has an arguable claim for the purpose of that Article, the
Commission notes that the documents submitted by the applicant do not
support his contention. Thus, the memorandum prepared by the Judge
Referee of the Supreme Court indicates that, when examining the
applicant's request for leave to appeal, the Supreme Court was fully
seized with not only the merits of the case but also the issue of
disqualification. The fact that - when stating the scope of the
applicant's request for leave to appeal - the Supreme Court did not
expressly refer to the latter issue does not prompt the Commission to
conclude otherwise. Consequently, the Commission finds that the
applicant's submissions fail to substantiate this complaint.
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. Invoking Article 14 of the Convention in conjunction with
Article 6 para. 1 and Article 13 (Art. 14+6-1, 14+13) of the
Convention, the applicant complains of the fact that he, as a private
plaintiff, had to meet as his adversary in the proceedings before the
courts the Chancellor of Justice, who is the supreme Ombudsman of the
State and in respect of whom all courts are in favour. For this reason,
so he claims, he has been discriminated against as compared with
plaintiffs who meet a private adversary in an action for damages.
The Commission considers, however, that this complaint is in
substance identical to that already examined and rejected in the
context of Article 6 para. 1 (Art. 6-1). of the Convention. Thus,
having regard to its findings under that Article, the Commission finds
that the present complaint does not reveal any appearance of a
violation of the applicant's rights under 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.4. Finally, the applicant claims that - as a result of
the insufficient compensation for legal expenses granted by the courts
- there has been a prolongation of the initial violation of Article 11
(Art. 11) of the Convention - manifested in the County Administrative
Board's decision of 27 March 1981 - and also a breach of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
The Commission recalls that the decision which constituted the
alleged violation of Article 11 (Art. 11) of the Convention was quashed
by the Government on 19 November 1981. The Commission also recalls
that, by judgments of the District Court of Stockholm and the Svea
Court of Appeal, the State was found liable to pay damages as a result
of the County Administrative Board's faulty decision. Having made an
equitable assessment, the courts awarded damages in the amount of 9,000
SEK as compensation for costs for legal representation deemed to have
been necessarily incurred by the applicant. There is nothing to show
that the courts acted arbitrarily when thus evaluating the facts of the
case. Consequently, there is no appearance of a violation of the
applicant's rights under 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.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy