AS TO THE ADMISSIBILITY OF
Application No. 34072/96
by Bertil SJÖÖ
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM 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 3 May 1996 by
Bertil SJÖÖ against Sweden and registered on 6 December 1996 under file
No. 34072/96;
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 applicant is a Swedish citizen born in 1958. Before the
Commission he is represented by Mr Jan Thörnhammar, a lawyer practising
in Stockholm.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
a. The particular circumstances of the case
By decision of 28 June 1994, the District Court (tingsrätten) of
Helsingborg declared the applicant bankrupt. The administration of the
estate was entrusted to a receiver (konkursförvaltare) appointed by the
court. The receiver requested the Enforcement Office (Kronofogde-
myndigheten) in Örebro to auction two pieces of property owned by the
applicant.
The Enforcement Office scheduled the auction for 14 November
1995. The applicant requested that it be postponed, as he disputed
certain claims made by one of his creditors. On 13 November the
Enforcement Office rejected his request. By decision of 14 November,
the District Court of Örebro dismissed the applicant's appeal due to
lack of standing. The court noted the following:
(Translation)
"Under Chapter 3, Section 1 of the Bankruptcy Act
[Konkurslagen] a debtor who has been declared bankrupt no
longer has a right to dispose of the property belonging to
the bankruptcy estate. Having lost his right of
disposition the debtor may not carry out any legal acts
which are binding on the estate. Instead, it is the
receiver who is in charge of and administers the estate.
The receiver shall sell the assets of the estate and
distribute the money received among the creditors. There
is no general right of the debtor to influence the
administration of the estate, the instances where such a
right exists being specifically regulated. For example,
under Chapter 7, Section 10 of the Bankruptcy Act the
receiver shall consult the debtor before taking action in
more important matters. There is no general rule giving
the debtor a right to appeal against the receiver's
decision to request a forced sale or the Enforcement
Office's decision to fix the date for the auction [...].
Accordingly, [the applicant] has no standing in the matter.
Moreover, there are no reasons for a postponement".
The applicant's appeal against the District Court's decision was
rejected by the Göta Court of Appeal (Göta hovrätt) on 5 December 1995.
The Supreme Court (Högsta domstolen) refused leave to appeal on
11 April 1996.
On 14 November 1995 the auction took place as scheduled. The
Enforcement Office decided to accept one of the bids made for the two
properties, despite the applicant's complaint that the bid was too low.
The applicant appealed against this decision to the District Court of
Örebro which dismissed the appeal on 7 December 1995. Applying a
reasoning similar to that of the decision of 14 November, the court
noted that there was no provision conferring a right on the debtor to
appeal against the forced sale of the real property of the estate.
Accordingly, the applicant was considered to lack standing in the
matter. The District Court's decision was upheld by the Court of
Appeal on 25 January 1996. The Supreme Court refused leave to appeal
on 1 April 1996.
b. Relevant domestic law
Proceedings in bankruptcy are governed by the provisions of the
Bankruptcy Act. Under Chapter 2 of the Act, the decision to declare a
person bankrupt is taken by the relevant District Court. The person
declared bankrupt may appeal against that decision to the Court of
Appeal and, provided that leave to appeal is granted, the Supreme
Court. If an appeal is made to the Court of Appeal no assets of the
bankruptcy estate may be sold before that court has examined the case
(Chapter 8, Section 3 of the Act, which contains a few exceptions).
The main effect of a bankruptcy decision is that the debtor no
longer has a right to dispose of the property belonging to the
bankruptcy estate and may not enter into any agreements binding on the
estate (Chapter 3, Section 1 of the Act). Instead, a court-appointed
receiver is in charge of the estate. His administration is under the
supervision of the local Enforcement Office (Chapter 1, Section 3).
If appropriate, the receiver shall consult the debtor in more
important matters (Chapter 7, Section 10 of the Act). However, there
is no right of the debtor to appeal against decisions taken by the
receiver in the administration of the bankruptcy estate. The property
of the estate shall normally be sold as soon as possible (Chapter 8,
Section 1). The receiver may request that real property be sold at an
auction (Chapter 8, Section 6). The auction is conducted by the
Enforcement Office (Chapter 8, Section 1 of the Code of Enforcement
(Utsökningsbalken)) which, inter alia, fixes the date of the auction
and decides which bid to accept (Chapter 12 of the Code). The
bankruptcy debtor has no standing to appeal against such decisions.
When the assets of the estate have been sold and the revenues
have been distributed among the creditors, the receiver shall submit
a final report on the administration of the estate to the Enforcement
Office (Chapter 13, Sections 1-3 of the Act). The debtor may protest
against the report by bringing a civil suit for damages in the ordinary
courts. The receiver is responsible for losses incurred due to
intentional or negligent conduct in the administration of the estate
(Chapter 13, Section 7 and Chapter 17, Sections 1 and 2).
COMPLAINTS
The applicant complains that he did not have access to court for
the determination of his request for the postponement of the auction
and his complaint that the bid accepted by the Enforcement Office was
too low. He maintains that he should have standing to appeal against
decisions which concern the sale of his property. Allegedly, the
possibility to take civil action for damages against the receiver is
not a sufficient alternative. The applicant invokes Articles 6 and 14
of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. The applicant complains that he did not have access to court for
the determination of his request for the postponement of the auction
and his complaint that the bid accepted by the Enforcement Office was
too low. He invokes Article 6 para. 1 (Art. 6-1) of the Convention
which, in relevant parts, provides as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ...
by ... [a] tribunal ..."
The Commission first notes that the challenged decisions
concerned the forced sale of property owned by the applicant.
Consequently, they involved a determination of the applicant's "civil
rights" within the meaning of Article 6 para. 1 (Art. 6-1).
The Commission recalls, however, that the applicant had been
declared bankrupt by a District Court decision of 28 June 1994 and that
the property was sold to cover his debts.
According to the case-law of the Commission and of the European
Court of Human Rights, the right of access to court is not absolute but
may be subject to limitations (cf., e.g., Eur. Court HR, Ashingdane v.
the United Kingdom judgment of 28 May 1985, Series A no. 93). In the
majority of the Contracting States, the right of access to court is
regulated in respect of, inter alia, persons declared bankrupt. Such
regulations are not in principle contrary to Article 6 (Art. 6) of the
Convention where the aim pursued is legitimate and the means employed
to achieve the aim are proportionate (cf. No. 12040/86, Dec. 4.5.87,
D.R. 52, p. 269).
The Commission finds that the applicant's lack of standing to
appeal against the decisions in question served the legitimate aims of
protecting the rights of his creditors and safeguarding the proper
administration of the bankruptcy estate. Recalling that the applicant
had a right to appeal against the decision to declare him bankrupt and
that he may bring a civil action for damages against the receiver of
the estate in the ordinary courts, the Commission considers that the
above-mentioned limitations on his access to court were not
disproportionate to those legitimate aims. In these circumstances, the
Commission finds no violation of Article 6 para. 1 (Art. 6-1) 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.
2. As the decisions taken concerned the sale of his property, the
applicant further claims that the lack of access to court constituted
a violation of his property rights under Article 1 of Protocol No. 1
(P1-1) of the Convention.
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). Consequently, no separate
issue arises under Article 1 of Protocol No. 1 (P1-1) (cf. Eur. Court
HR, British-American Tobacco Company Ltd v. the Netherlands judgment
of 20 November 1995, Series A no. 331, p. 29, para. 91).
3. Finally, invoking Article 14 (Art. 14) of the Convention, the
applicant claims that the limitations on his access to court
discriminates against him as a debtor since, allegedly, no such
limitations apply in regard to other parties with interests in the
bankruptcy proceedings.
However, having regard to its finding under Article 6 para. 1
(Art. 6-1) that the limitations in question were justified, the
Commission considers that the present complaint does not disclose any
appearance of a violation of the right protected by Article 14
(Art. 14).
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy