EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 23196/94
Rolf Gustafson
against
Sweden
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 35). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16 - 28) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 29 - 35) . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 36 - 53). . . . . . . . . . . . . . . . . . . . . . . 8
A. Complaint declared admissible
(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 8
B. Point at issue
(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 8
C. As regards Article 6 para. 1 of the Convention
(paras. 38 - 53) . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 54) . . . . . . . . . . . . . . . . . . . . . . 10
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .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 is a Swedish citizen, born in 1953 and resident in
Stockholm.
3. The application is directed against Sweden. The respondent
Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona
of the Ministry for Foreign Affairs.
4. The case concerns the alleged absence of a right to a court
determination of the applicant's claim for compensation for damage
allegedly caused by crime. The applicant invokes Article 6 para. 1 of
the Convention.
B. The proceedings
5. The application was introduced on 5 November 1993 and registered
on 6 January 1994.
6. On 5 July 1994 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on
28 September 1994. The applicant replied on 14 and 18 October 1994.
Additional observations were submitted by the Government on
11 November 1994.
8. On 22 February 1995 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 8 March 1995 and they were invited to submit further
observations on the merits. The Government submitted observations on
6 April 1995, to which the applicant replied on 4 May 1995.
10. 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
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. G. JÖRUNDSSON, Acting President
H. DANELIUS
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ RUIZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
12. The text of this Report was adopted on 18 October 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. 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.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. 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
16. The applicant is currently serving an eight year prison sentence
on account of a number of economic crimes of which he has been
convicted. He alleges that he was on two occasions, in April-June and
June-July 1991, the victim of kidnapping and extortion perpetrated by
three persons. According to the applicant, one of the perpetrators, L.,
had wanted compensation from him for his participation in certain
economic crimes which he had committed together with the applicant.
17. On 25 March 1993 the Public Prosecutor charged L. with one count
of kidnapping on 17 April 1991, one count of aggravated extortion
committed between 17 April 1991 and June 1991 as well as one count of
kidnapping and aggravated extortion committed between 27 June and
3 July 1991.
18. On 15 April 1993 the applicant requested compensation from the
Board for Reparation to Victims of Crime (Brottsskadenämnden) in
accordance with the 1978 Act on Damage Caused by Crime (brottsskade-
lagen 1978:413; hereinafter "the 1978 Act"). In support of his claim
he referred to the criminal proceedings against L. which were pending
before the Stockholm District Court (Stockholms tingsrätt). He enclosed
a copy of the indictment against L. and reserved his right to
supplement his claim once judgment had been rendered.
19. On 28 April 1993 the District Court convicted L., sentenced him
to six years' imprisonment and ordered him to pay 144.350 SEK in
damages to the applicant. The District Court found, inter alia, that,
generally speaking, the applicant could not be considered a
particularly trustworthy person, given that he had been convicted of
several counts of economic crimes. It stated, however, that this fact
did not in itself mean that his allegations concerning his kidnapping
and extortion were untruthful and it found the evidence to be such that
the prosecution's case was partially proven.
20. On 2 July 1993 the Svea Court of Appeal (Svea hovrätt), upon
appeal, reversed the District Court's judgment on the ground that the
charges against L. had not been proven. Consequently, the Court of
Appeal acquitted L. and rejected the applicant's claim for
compensation. The Court of Appeal found, inter alia, that because of
his cunning criminal character, the applicant could not be considered
a trustworthy person. Therefore, although the information submitted by
him had been corroborated by others whom he had told about the
incidents, this information could not form the basis for a conviction
of L. without substantial support in other evidence. All in all, the
Court of Appeal did not consider that the public prosecutor had proved
his case.
21. The applicant did not seek leave to appeal to the Supreme Court
(Högsta domstolen).
22. On 12 August 1993 the applicant supplemented his claim for
compensation under the 1978 Act by submitting copies of the judgments
of the District Court and the Court of Appeal. He then asked the Board
to proceed to deciding on his claim.
23. On 26 August 1993 the Board rejected the applicant's compensation
claim, stating as follows:
(translation)
"A condition for a grant of compensation is that damage has
in fact been caused by crime. The Board ... cannot find it
established that [the applicant] has suffered damage as a
result of crime. Consequently, compensation for damage
caused by crime cannot be awarded."
24. On 11 November 1993 the applicant requested the Board to
reconsider its decision. He argued that it was clear from the judgments
of the District Court and the Court of Appeal that he had been the
victim of crime and that, as a result thereof, he had suffered the
damage for which he requested compensation. He contended that he had
named three persons as suspects in the case, two of whom he had
identified. The fact that the Court of Appeal had not found it proven
that L., the only accused, had committed the offences was not a reason
for questioning that the applicant had been the victim of crime. He
pointed out that no charges had been brought against the other suspect
identified by him.
25. In support of his request for reconsideration the applicant
submitted a copy of the investigation report concerning the alleged
kidnappings and extortions, including a medical report by
Dr. Lennart Berglin, Deputy Senior Physician, dated 25 February 1993.
According to this report, the applicant had, on 4 July 1991, sought
emergency care on account of the status of his right eye which he
stated had been punched. He had been operated on by Dr. Berglin on
5 July 1991 and had remained hospitalised until 15 July 1991. On
26 February 1992 he had again been operated on. Dr. Berglin concluded
that the applicant's eye injury could have been caused by a punch.
26. In support of his request the applicant also submitted a
transcript of the testimony given by Crime Inspector S. at the District
Court's oral hearing in the criminal proceedings against L. S. had been
the principal investigator of the economic offences of which the
applicant had previously been convicted. He had therefore interrogated
both the applicant and L. on a number of occasions. Before the District
Court S. had stated, inter alia, as follows:
(translation)
"I was, probably on 4 July 1991, informed [about the
alleged kidnapping of the applicant]. A colleague ...
telephoned me to say that he had been informed that [the
applicant] had been kidnapped ..., that the kidnapping had
been staged by [L.] with the help of two 'gorillas', ...
and that the kidnapping had been combined with an extortion
threat against [the applicant] in the amount of 5 million
SEK.
... I then ... telephoned [the applicant], who ... denied
that he had been kidnapped. ...
... I saw [the applicant] in August [1991] in connection
with ... criminal proceedings brought against him ... and
noted that he had a bruise at [one of] his eye[s]. I asked
him what had happened and he stated that he had been the
victim of a robbery committed by some persons. ...
... Probably in May 1992 [the applicant] mentioned the
kidnappings when he was being interrogated as a suspect in
another case ... He stated that [they had been carried out]
by two black men and a third one, whom he did not wish to
name. ... He repeated several times that one kidnapping had
taken place in April [1991] and [the other] towards the end
of June [1991], lasting until the beginning of July [1991].
...
We took [the applicant's statements] seriously. ... I have
come to know [the applicant] so well that I can somehow see
when he is lying or when he is telling the truth. ...
Having been asked on a number of occasions to name the
perpetrators, [the applicant] stated that he would do so,
but not right away. ... In the autumn [of 1991] he named
one of the assistants [during the kidnappings], [P.]. ...
[The applicant's description of the environment and
premises where he had been kept during the kidnappings] was
very accurate as regards many details. ..."
27. Both Dr. Berglin's report and Inspector S.'s testimony had in
essence been reproduced in the District Court's judgment. Inspector S.
had also been heard orally before the Court of Appeal, where he had
essentially repeated his testimony.
28. On 1 June 1994 the Board rejected the applicant's request of
11 November 1993, stating as follows:
(translation)
"The submissions in this case in support of the request for
reconsideration are not such as to be a reason for the
Board to change its previous decision. Nor is there any
other reason for changing the decision."
B. Relevant domestic law
29. Section 1 of the 1978 Act reads, as far as relevant, as follows:
(Swedish)
"Denna lag gäller ersättning av statsmedel för skada till
följd av brott ...
Lagen tillämpas om brottet har begåtts i Sverige. ..."
(translation)
"This Act regulates compensation to be paid by the State
for damage caused by crime.
The Act is applicable if the crime has been committed in
Sweden . ..."
30. Section 2 of the Ordinance on Damage Caused by Crime (brotts-
skadeförordningen 1978:653) read, in relevant parts and at the relevant
time, as follows:
(Swedish)
"... Ansökningen [om brottsskadeersättning] inges till
brottsskadenämnden.
Till ansökningen bör bifogas polisrapport, läkarutlåtande
och andra handlingar som behövs för prövningen. Har
skadevållaren dömts för brott som avses med ansökningen
eller dömts till skadestånd, bör också domen bifogas. Har
polisutredning inte ägt rum, skall annan utredning om
skadans uppkomst lämnas."
(translation)
"... The claim [for compensation for damage caused by
crime] shall be lodged with the Board for Reparation to
Victims of Crime.
The claim shall be supported by a police record, a medical
statement and other documents of relevance to the [Board's]
examination. If someone has been convicted of the crime
referred to in the request or if someone has been ordered
to pay damages, a copy of the judgment [to this effect]
shall also be enclosed. If no police investigation has been
carried out, other material concerning the cause of the
damage shall be submitted."
Section 14 of the 1978 Act reads as follows:
(Swedish)
"Ansökan om brottsskadeersättning skall göras inom två år
från det att brottet begicks. Föreligger särskilda skäl kan
ansökan prövas även om den har kommit in för sent.
Ansökan prövas endast om brottet har anmälts till åklagare
eller polismyndighet eller om sökanden visar giltig
anledning till att sådan anmälan inte har gjorts."
(translation)
"A claim for compensation for damage caused by crime shall
be filed within two years from the date of the offence. If
there are special reasons, a claim may be examined even if
it has been lodged out of time.
A claim will only be examined if the offence has been
reported to the Public Prosecutor or the police or if the
applicant shows a valid reason why such a report has not
been made."
31. The compensation awarded under the 1978 Act shall relate to
physical injury suffered by the victim but may, on certain conditions,
also cover damage to property. Other damage may be compensated to a
limited extent (sections 2-5 of the 1978 Act).
32. As of 1 July 1994 the 1978 Act has been amended. A new public
body has been established for the examination of compensation requests,
i.e. the Authority for Victims of Crime (Brottsoffermyndigheten).
Within that authority there is a Board examining cases of particular
interest or cases that are otherwise of particular importance.
33. No appeal lay against a decision of the Board for Reparation to
Victims of Crime (Section 12 of the 1978 Act). Nor was it possible to
request judicial review of the decision, pursuant to the 1988 Act on
Judicial Review of Certain Administrative Decisions (rättsprövnings-
lagen 1988:205).
34. The Board for Reparation to Victims of Crime established by the
1978 Act was composed of a Chairman, two Vice-Chairmen and three other
members. The Chairman and the Vice-Chairmen of the Board had to be
lawyers ("vara lagfarna") and have experience as judges (Section 13 of
the 1978 Act). The two Vice-Chairmen had substitutes who were also
qualified judges. The Board further included a representative of the
insurance business and two substitutes for him or her. There were also
two other members who were not lawyers. All members of the Board had
been appointed by the Government for a limited period (Section 15 of
the Ordinance with Instructions for the Board (förordningen 1988:984
med instruktion för brottsskadenämnden).
35. The rules governing the procedure before the Board were similar
to those found in the Code of Judicial Procedure (rättegångsbalken) as
well as the 1986 Administrative Procedure Act (förvaltningslagen
1986:223). Thus, for instance, the rules for disqualifying persons from
dealing with a case (Sections 11-12 of the 1986 Act) were similar to
the rules in Chapter 4, Section 13 of the Code of Judicial Procedure
which apply to ordinary courts. A party also had the possibility to
make an oral statement and be heard orally before a decision was taken,
if this was considered expedient by the authority (Section 14 of the
1986 Act). A party was entitled to have access to all written documents
in a case, unless a strong public or private interest required that
information which was secret pursuant to the 1980 Secrecy Act
(sekretesslag 1980:100) should not be revealed. In such a case the
party concerned should be informed of the contents of such facts in
order to enable him to protect his rights, provided this could be done
without serious harm to the interest protected by the secrecy. No case
could be decided before a party to the proceedings had been informed
about all facts that had been brought into the case and had been given
the opportunity to submit his observations in reply.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
36. The Commission has declared admissible the applicant's complaint
that he could not have his civil right to compensation pursuant to the
1978 Act determined by a court.
B. Point at issue
37. The issue to be determined is whether there has been a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
38. Article 6 para. 1 (Art. 6-1) of the Convention reads, in relevant
parts, as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law. ..."
39. The applicant submits that he had a "civil right" to obtain
compensation under the 1978 Act which he could not have determined by
a court. He underlines that no suspect needed to be identified or
convicted in order for him to claim such a right. The acquittal of L.,
the only person charged with the crimes allegedly committed against the
applicant, does not mean that the applicant had not been the victim of
criminal acts. For instance, the other suspect named by him in the pre-
trial investigation, P., was never arrested.
40. The applicant underlines that in the proceedings before the Board
for Reparation to Victims of Crime he submitted medical and police
records as well as other material which in his opinion clearly showed
that he had been the victim of criminal acts. He had also complied with
the requirement in Section 14 of the 1978 Act that these crimes should
first have been reported to the police or the Public Prosecutor.
41. The Government primarily submit that Article 6 para. 1 (Art. 6-1)
is not applicable, since the applicant had no "civil right" to
compensation pursuant to the 1978 Act. His right to compensation was
finally decided by the Svea Court of Appeal in the course of the
criminal proceedings instituted against L., who was eventually
acquitted. The Government concede that the Board for Reparation to
Victims of Crime may grant compensation even if no one is convicted of
an alleged offence. However, this does not mean that the applicant may
claim a "right" to such compensation. In any case, such a "right" is
not "civil" in character, since the compensation system set up by the
1978 Act has several features of public law and is, moreover, entirely
financed by the State.
42. Should the Commission find that a "civil right" of the applicant
was determined by the Board for Reparation to Victims of Crime, the
Government argue that this Board satisfies the requirements of a
"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). It is
independent of the executive; its procedure is established by law and
resembles that of an ordinary court of law; its members fulfil
impartiality criteria; all documents submitted are normally public;
oral hearings may be held; and the Board's decisions are binding.
43. The Commission must first ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the instant case and,
notably, whether there was a dispute over a "civil right" which can be
said, at least on arguable grounds, to be recognised under domestic
law. The dispute must be genuine and serious and its outcome must be
directly decisive for the right in question (see, e.g., Eur. Court
H.R., Zander v. Sweden judgment of 25 November 1993, Series A
no. 279-B, p. 38, para. 22).
44. The Commission has first examined whether the applicant had a
"right" of a "civil" character within the meaning of Article 6 para 1
(Art. 6-1). It recalls that, on the one hand, this provision is not
aimed at creating new substantive rights without a legal basis in the
Contracting State, but at providing procedural protection of rights
already recognised in domestic law (see, e.g., Eur. Court H.R.,
W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A,
p. 32-33, para. 73). On the other hand, the term "right" must be given
an autonomous interpretation under Article 6 para. 1 (Art. 6-1) of the
Convention (see, e.g., Eur. Court H.R., König case, judgment of
28 June 1986, Series A no. 27, pp. 29-30, para. 88-89).
45. The Commission recalls that, according to the current practice
of the Convention organs, the fact that benefits financed and granted
by the State are at issue is not sufficient to establish that Article 6
para. 1 (Art. 6-1) is inapplicable. Other considerations might argue
in favour of the applicability, such as whether or not the applicant
was claiming an individual, economic right flowing from specific rules
laid down by law (see, e.g., Eur. Court H.R., Schuler-Zgraggen v.
Switzerland judgment of 24 June 1993, Series A no. 263-A, p. 17,
para. 46; Salesi v. Italy judgment of 26 February 1993, Series A
no. 257-E, pp. 59-60, para. 19).
46. The Commission observes that the entitlement to compensation
under the 1978 Act has certain public law features in that it relates
to a scheme established by law and is administered by public
authorities. In the Commission's opinion, however, the 1978 Act is
sufficiently precise to give those who satisfy the conditions laid down
in the Act a "right", within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention, to compensation for damage inflicted on
them by criminal acts. This right is of an individual and pecuniary
nature and is therefore also of a "civil" character within the meaning
of this provision.
47. The Commission has next considered whether the dispute between
the applicant and the authorities as to his entitlement to compensation
under the 1978 Act was a genuine and serious one. In this respect the
Commission notes that criminal proceedings had been brought against L.,
one of the alleged perpetrators of the kidnappings and extortions of
which the applicant claimed to have been the victim. L. had eventually
been acquitted on the ground that the prosecutor's case had not been
proven. The Court of Appeal found that the applicant was not a credible
person and that, even if there were circumstances which supported his
account of the alleged offences, there were other elements which gave
rise to doubts.
48. It is undisputed that the Board for Reparation to Victims of
Crime can grant compensation even if there is no conviction in a
criminal case. However, it has to be established that an offence has
been committed. On the other hand, if it is established that an offence
has been committed, it does not have to be shown who committed the
offence.
49. It is clear that, where a criminal charge has been brought
against a person in respect of an alleged offence, the outcome of these
proceedings is of particular importance for the Board. If, as in the
present case, the criminal proceedings have resulted in an acquittal,
the Board cannot as a rule find it established that an offence has been
committed unless convincing new material is invoked which was not
considered by the courts in the criminal proceedings or it is shown
that an offence was committed by someone other than the acquitted
person.
50. In the present case the Commission has examined the case-files
of the Board regarding the applicant's claims for compensation under
the 1978 Act. It finds that the applicant did not invoke before the
Board any relevant material which had not already been available to the
courts. It notes, in particular, that Dr. Berglin's report was
considered by the courts and that Inspector S. was heard before both
the District Court and the Court of Appeal.
51. The Commission is not convinced by the applicant's argument that
he had named three persons as suspects but only one of the three had
been prosecuted. There is nothing in the case-files which would show
that the other two persons rather than L. had committed the alleged
offences against him.
52. In these circumstances, the Commission considers that the
applicant did not invoke before the Board any evidence which might have
allowed the Board to reach the conclusion that, despite L.'s acquittal,
the applicant had been the victim of criminal offences. Consequently,
there was no serious and genuine dispute regarding his civil rights.
53. It follows that there has been no violation of Article 6 para. 1
(Art. 6-1).
CONCLUSION
54. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 of the Convention.
Secretary to Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G. JÖRUNDSSON)
Full & Egal Universal Law Academy