AS TO THE ADMISSIBILITY OF
Application No. 18436/91
by M. and M.D.
against Sweden
The European Commission of Human Rights sitting in private on
31 March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second 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 30 April 1991 by
M. and M.D. against Sweden and registered on 2 July 1991 under file No.
18436/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Swedish citizen, born in 1955. The
second applicant, her husband, is a Swedish and Bulgarian citizen, born
in 1938. They reside at Semmering, Austria.
The facts as presented by the applicants may be summarised as
follows.
The applicants have two children, Johanna, born in 1975, and
Alexander, born in 1977, who were pupils in the Swedish schools in
Geneva and subsequently in Vienna. The applicants applied to the
Swedish National School Board (Skolöverstyrelsen) for a state subsidy
to their children's school education on the basis of Section 29 of the
1978 Ordinance on State Subsidies to Swedish School Education Abroad.
(förordningen om statsbidrag till svensk undervisning i utlandet).
According to this provision, a pupil in a Swedish school abroad or a
pupil benefiting abroad from teaching by correspondence is eligible for
a subsidy if, inter alia, at least one of the parents is a Swedish
citizen and at least one of the parents resides abroad as employed by
or as director of a Swedish enterprise, i.e. an enterprise which is a
Swedish legal person. The applicants claimed that they resided abroad
because of their enterprise. In this respect they have referred to a
certificate of registration of 6 February 1975, showing that "Martin
Denev's Research Institute" has been entered into the register of the
County Administrative Board of Stockholm County (Länsstyrelsen i
Stockholms län).
By decision of 2 February 1990, the National School Board decided
not to grant the request, which in its decision was indicated as
relating to "cost-free correspondence materials for Alexander and
Johanna", the reason being that the eligibility criteria in Section 29
of the 1978 Ordinance were considered not to be satisfied.
The applicants appealed to the Supreme Administrative Court
(Regeringsrätten). In its decision of 31 October 1990 the Supreme
Administrative Court stated that, according to Section 1 of the Act on
Judicial Review of Certain Administrative Decisions (lagen om
rättsprövning av vissa förvaltningsbeslut), it could only review the
decision of the National School Board if it concerned a matter dealt
with in Chapter 8 Section 2 or 3 of the Instrument of Government
(regeringsformen).
The Court noted that the right to cost-free correspondence
materials was not a matter covered by Chapter 8 Section 2 (which deals
with provisions regarding an individual's personal status and about the
personal and economic relations between individuals). As to Chapter 8
Section 3, the Supreme Administrative Court noted the following. The
Section concerns provisions about the relations between individuals and
the authorities in regard to obligations imposed on individuals or
otherwise regarding interferences with the personal or economic
conditions of individuals. It does not include such provisions about
the relations between individuals and the authorities as merely give
benefits to individuals or are of a neutral character. As provisions
which give benefits to individuals are to be considered those which
concern state subsidies to various activities. The Supreme
Administrative Court considered that the provisions regulating the
right to cost-free correspondence materials give benefits to
individuals and therefore fall outside Chapter 8 Section 3 of the
Instrument of Government.
The Supreme Administrative Court, accordingly, declared the
applicants' appeal inadmissible.
COMPLAINT
The applicants complain of violations of Article 6 para. 1 of the
Convention in that
(a) they were denied the right to an impartial tribunal to test their
right to state subsidies for their children;
(b) they were denied a fair examination of their right, as there was
no dialogue with them on why they did not satisfy the legal
requirements for state subsidies and as the decision of the
National School Board did not contain reasons or arguments.
THE LAW
The applicants complain of violations of Article 6 para. 1
(Art. 6-1) of the Convention in that they did not have access to an
impartial tribunal in regard to their request for state subsidies to
their children's school education and in that their request was not
examined in a fair manner by the National School Board, which rejected
their request without giving reasons or arguments.
Article 6 para. 1 (Art. 6-1) of the Convention provides, in its
relevant parts, as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The first question which arises is therefore whether the
rejection of the applicants' request for state subsidies determined
their civil rights within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention.
In this regard, the Commission recalls that in the cases of
Feldbrugge and Deumeland the European Court of Human Rights was called
upon to examine whether the right to certain social benefits was to be
regarded as a civil right within the meaning of Article 6 para. 1
(Art. 6-1) (Eur. Court H.R., Feldbrugge judgment of 29 May 1986, Series
A no. 99, and Deumeland judgment of the same date, Series A no. 100).
In these judgments, the Court examined the features of public law and
those of private law which were inherent in the social security system
involved, and it reached its conclusion on the basis of a consideration
of whether the features of public law or of private law were
predominant.
In the present case, the Commission notes that the system of
state subsidies to school education abroad is predominantly, if not
exclusively, of a public law character. The system is in no way based
on specific contributions paid by the individuals concerned and bears
no resemblance to a system of private insurance. Consequently, the
Commission is of the opinion that the applicants' complaint does not
relate to a civil right within the meaning of Article 6 para. 1
(Art. 6-1) and that the application must therefore be rejected as being
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy