AS TO THE ADMISSIBILITY OF
Application No. 12448/86
by Carsten JACOBSEN
against Sweden
The European Commission of Human Rights sitting in private
on 5 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER 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 12 August 1986
by Carsten Jacobsen against Sweden and registered on 3 October 1986
under file No. 12448/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The facts of the case as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a Swedish citizen born in 1920 and resident
at Falkenberg. He is retired.
On 12 March 1979 the Administrative Court of Appeal
(kammarrätten) of Gothenburg confirmed an order by the municipal
Building Committee (byggnadsnämnden), that the applicant and his wife,
under the threat of a fine of 5,000 SEK each in the case of non-
compliance, should demolish their leisure house on their property
called Skrea 5:15.
On 29 May 1979 the Supreme Administrative Court (regeringsrätten)
refused to grant leave to appeal.
Since the applicant had failed to comply with the order, the
public prosecutor, on 27 August 1982, requested the District Court
(tingsrätten) of Varberg to order the applicant to pay 5,000 SEK.
On 4 November 1982 the District Court ordered the applicant
to pay 5,000 SEK. In the judgment it is stated inter alia that the
District Court is not competent to examine whether the Building
Committee's decision to demolish the house was well-founded or not.
The applicant appealed to the Court of Appeal (hovrätten) for
Western Sweden which in a judgment of 26 February 1985 confirmed the
judgment of the District Court.
The applicant appealed further to the Supreme Court (högsta
domstolen) which on 28 May 1986 refused to grant leave to appeal.
COMPLAINTS
1. The applicant alleges a violation of Article 6 of the
Convention. He submits that he was not allowed to defend himself
personally before the Administrative Court of Appeal, that the
Court did not take into account that the Building Committee had given
contradictory information and that it accepted untruthful information
from the other party. In his submissioni the Court did not deal with
the case impartially.
Furthermore, the District Court did not examine the merits of
the case and the Court of Appeal simply confirmed the judgment of
the District Court. Accordingly the District Court and the Court of
Appeal had also violated the Convention.
The applicant also submits that, as a result of the way in
which the case was dealt with by the Administrative Court of Appeal,
the District Court and the Court of Appeal, it was not decided "within
a reasonable time".
The applicant also invokes Article 6 para. 3 (c) of the
Convention.
2. The applicant alleges a violation of Article 7 para. 1 of
the Convention. He states that the buildings had been examined and
accepted without comments and that he had received information on
15 October 1970 to that effect. Accordingly, he submits that he could
not be guilty of any criminal offence.
3. The applicant also alleges a violation of Article 17 of the
Convention in conjunction with Article 6. The provision of Article 17
requires an impartial and balanced assessment of private and public
interests and no such assessment had been undertaken in his case. The
applicant also refers to Article 14 of the Convention.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in the proceedings both before the Administrative Court of
Appeal and before the District Court and the Court of Appeal.
2. As regards the proceedings before the Administrative Court of
Appeal, the Commission observes that these proceedings concerned the
question whether the applicant should be ordered to demolish a house
on his property under a threat of a penalty of 5,000 SEK in case of
non-compliance with the order. This issue was finally determined when
the Supreme Administrative Court refused leave to appeal on 29 May 1979.
Under Article 26 (Art. 26) of the Convention the Commission
may only deal with a matter which has been submitted to the Commission
within six months from the final domestic decision. The present
application was introduced on 12 August 1986, which is more than six
months after the Supreme Administrative Court's decision.
Consequently, in this respect the application is inadmissible
under Article 27 para. 3 (Art. 27-3) of the Convention for failure to
comply with the six months rule.
3. As regards the proceedings before the District Court and the
Court of Appeal, the Commission observes that these proceedings
concerned the question whether or not the applicant had failed to
comply with the above-mentioned order and whether or not he should be
ordered to pay the penalty.
The Commission considers that these proceedings are similar to
enforcement proceedings in that they were a consequence of the initial
order, and were initiated because of the applicant's failure to comply
with that order. It is therefore doubtful whether the proceedings
before the District Court involved a determination of the applicant's
civil rights and obligations or a criminal charge against him.
Nevertheless, the Commission considers that it can leave open
the question of the applicability of Article 6 (Art. 6) of the
Convention, since the applicant's complaints are in any event
inadmissible for the following reasons:
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236
; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicant also complains
under Article 6 (Art. 6) of the Convention that his case was not dealt
with in compliance with that provision. He states inter alia that the
case has not been dealt with within a "reasonable time".
In this respect the Commission first notes that the
proceedings before the Administrative Courts cannot be taken into
account (cf. above). As regards the proceedings before the ordinary
courts, the Commission recalls that the proceedings before the District
Court were instituted by the public prosecutor on 27 August 1982. The
District Court delivered judgment already on 4 November 1982. The
applicant's appeal to the Court of Appeal was rejected on 26 February
1985, and his further appeal to the Supreme Court resulted in a
decision of 28 May 1986 not to grant leave to appeal. Consequently,
the proceedings before the Supreme Court only related to the question
whether leave to appeal should be granted.
The Commission considers that, although the proceedings before
the Court of Appeal lasted for more than two years and the procedure
before the Supreme Court for more than one year, there is no
indication that the duration of the proceedings, from 27 August 1982
to 28 May 1986, exceeded what can be considered to be a "reasonable
time" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention having regard to the subject-matter and the particular
circumstances of the case.
Moreover, the Commission finds no other indication of a
violation of Article 6 (Art. 6) of the Convention. 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.
4. The applicant also alleges violations of Articles 7, 14 and 17
(Art. 7, 14, 17) of the Convention.
However, the Commission finds no appearance of a violation of
these provisions.
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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)