Lexploria

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)

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GUSTAFSON v. SWEDEN

GUSTAFSON v. SWEDEN

LEXI