AS TO THE ADMISSIBILITY OF
Application No. 29105/95
by Wilhelm LÄNDSTRÖM
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 July 1995 by
Wilhelm Ländström against Sweden and registered on 8 November 1995
under file No. 29105/95;
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 19 December 1996 and the observations in reply submitted
by the applicant on 18 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1919 and residing in
Landvetter. Before the Commission he is represented by Mr Arne Bodén,
Farsta.
The facts of the case, as submitted by the parties, may be
summarised as follows.
a. The particular circumstances of the case
The applicant owns a dog, a male German Shepherd. In May and
June 1994, some neighbours of the applicant reported to the police
authority in Göteborg that they had been attacked by the dog. However,
on 14 September 1994 the police authority decided not to pursue the
matter as a lack of supervision of the dog could not be established.
Later, a neighbour reported another attack of the dog to the
police. Apparently, on 23 September 1994 the neighbour's six year old
son had been collecting mail from the mailbox some 50 metres from the
neighbour's house when the dog had rushed towards the boy and had
jumped at him so that he fell to the ground. Another neighbour had
come to rescue the boy and the dog had attacked both the boy and that
neighbour.
Following an investigation of the matter, the police authority
decided, on 30 September 1994, to take the dog under its control and
the same day the dog was taken from the applicant's home. The dog was
examined by a veterinary who recommended a mental test. Such a test
was performed the same day by an expert who recommended that the dog
be destroyed immediately as it was very nervous and aggressive. The
dog was inclined to behave aggressively in any tight situation and
therefore could be very dangerous. At the applicant's request, a new
test was performed by two instructors from the police dog squad. They
recommended the dog to be destroyed immediately as it showed unusual
reactions of fear and very strong nervous reactions. It also showed
an aggressive behaviour, which indicated that it could be dangerous in
tight situations.
By decision of 17 October 1994, the police authority ordered the
dog to be destroyed in accordance with Section 3, subsection 2 of the
Act on the Supervision of Dogs and Cats (Lag om tillsyn över hundar och
katter, 1943:459).
The applicant appealed to the County Administrative Board
(länsstyrelsen) of the County of Göteborg and Bohus. On
17 November 1994 the Board rejected the appeal. It noted that,
although the attacked persons had not been seriously injured, the
applicant's dog had shown a tendency to bite people. The tests
performed showed that the dog was nervous and that it could be
dangerous in tight situations. In striking a balance between the
applicant's interest in keeping the dog and the neighbours' interest
in having a safe neighbourhood, the Board, having regard, inter alia,
to the dog's mental status, found that the dog should be destroyed.
The applicant appealed to the Administrative Court of Appeal
(kammarrätten) in Göteborg and requested that an oral hearing be held.
He contested the accusations made by the neighbours and claimed that
they were lying about what had happened on the different occasions and
that the dog had not bitten anyone.
By letter of 5 December 1994, the appellate court informed the
applicant that it would not hold an oral hearing, as it was deemed
unnecessary. The applicant was given an opportunity to complete his
appeal in writing before 14 December.
On 27 December 1994, the appellate court formally decided not to
hold an oral hearing and further rejected the appeal. It agreed with
the conclusions made by the County Administrative Board.
The applicant appealed to the Supreme Administrative Court
(Regeringsrätten), maintaining his previous arguments and submissions.
On 20 February 1995 the court refused the applicant leave to appeal.
By decision of 10 March 1995, the police authority allowed the
applicant to take the dog home for two weeks to have it examined by a
psychologist. The applicant never returned the dog and it has since
been kept in hiding.
On 15 May 1995 the Supreme Administrative Court rejected the
applicant's request that the case be reopened.
The applicant also reported the proceedings to the Parliamentary
Ombudsman (Justitieombudsmannen). By decisions of 2 June and
19 July 1995, the Ombudsman found no reason to take any action in the
matter.
On 2 August 1995 the Supreme Administrative Court rejected the
applicant's further request for a reopening of the case.
b. Relevant domestic law
Sections 2 and 3 of the Act on the Supervision of Dogs and Cats
provide, in relevant parts, as follows:
(Translation)
Section 2:
"Dogs which have shown a tendency to bite people or
domestic animals are not allowed outdoors unleashed unless
they are kept within grounds which have been adequately
fenced and to which unauthorised persons do not have
access. ..."
Section 3:
"If there is a lack of supervision of the dog, the police
authority may decide on measures required by the
circumstances, such as requiring that the dog wear a muzzle
or be chained or fenced in. ...
In respect of a dog referred to in Section 2, the police
authority may decide that the dog shall be placed under its
control. After the dog has been placed under such control,
the owner may have no access to the dog without the
permission of the authority. The authority shall, after an
evaluation of the dog, have the dog sold or destroyed or
take care of the dog temporarily. ..."
COMPLAINTS
The applicant complains that he did not have an oral hearing in
the Administrative Court of Appeal. He invokes Article 6 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 July 1995 and registered on
8 November 1995.
On 16 October 1996 the Commission (Second Chamber) decided to
bring the application to the notice of the respondent Government and
to invite them to submit written observations on its admissibility and
merits.
The Government's observations were submitted on 19 December 1996.
The applicant replied on 18 March 1997, after an extension of the
time-limit fixed for that purpose.
THE LAW
The applicant complains that he did not have an oral hearing in
the Administrative Court of Appeal. He states that he wished to
examine witnesses before the court. He invokes Article 6 (Art. 6) of
the Convention which, in so far as relevant, reads as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing by [a] ... tribunal ..."
In agreement with the parties, the Commission finds that
Article 6 para. 1 (Art. 6-1) of the Convention applies to the dispute
in the present case.
The respondent Government submit that the applicant did not
express his wish to examine witnesses to the Administrative Court of
Appeal. Nevertheless, that court acted as the first and only judicial
organ in the case as the applicant was refused leave to appeal to the
Supreme Administrative Court. Furthermore, the appellate court
reviewed the case in its entirety. However, it did not hold an oral
hearing. The Government therefore admit that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention as the
applicant did not receive a public hearing in the proceedings in
question. Accordingly, the application should be declared admissible.
The applicant states, in view of the Government's submissions,
that there is no need for him to submit further observations in the
case.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The
Commission concludes, therefore, that the application is not manifestly
ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention. No other grounds for declaring it inadmissible have
been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy