Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18928/91

Anders Fredin

against

Sweden

REPORT OF THE COMMISSION

(adopted on 9 February 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 10 - 14). . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 34). . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 15 - 29) . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 30 - 34) . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 35 - 46) . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 35) . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 36) . . . . . . . . . . . . . . . . . .6

C. Article 6 para. 1 of the Convention

(para. 37 - 45). . . . . . . . . . . . . . . .6

D. Conclusion

(para. 46) . . . . . . . . . . . . . . . . . .7

DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED

BY MR. B. MARXER. . . . . . . . . . . . . . . . . . . . . . .8

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 10

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 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, a Swedish citizen born in 1944, is an agricultural

engineer residing at Grödinge, Sweden. He is represented before the

Commission by Mr. Jan Axelsson, a lawyer practising in Stockholm.

3. The application is directed against Sweden. The Swedish

Government are represented by their Agent, Mr. Carl Henrik Ehrenkrona

of the Swedish Ministry for Foreign Affairs.

4. The application concerns the applicant's complaint that in

judicial review proceedings before the Supreme Administrative Court

(Regeringsrätten) he was not granted a fair and public hearing as

required by Article 6 para. 1 of the European Convention on Human

Rights.

B. The proceedings

5. The application was introduced on 9 April 1991 and registered on

9 October 1991.

6. On 6 January 1992 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

7. The Government's observations were received - after an extension

of the time-limit - by letter dated 7 May 1992 and the applicant's

observations in reply by letter dated 5 June 1992.

8. On 12 October 1992 the Commission declared the application

admissible.

9. 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

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

11. The text of this Report was adopted on 9 February 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12. 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.

13. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14. 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

15. The applicant and his wife have previously lodged with the

Commission Application no. 12033/86 regarding the withdrawal of a

permit to exploit a gravel pit and the absence of a court remedy in

this regard. The proceedings ended with the judgment of the European

Court of Human Rights of 18 February 1991, in which the Court concluded

that Article 6 para. 1 of the Convention had been violated but that

there was no breach of Article 1 of Protocol No. 1 either taken alone

or in conjunction with Article 14 of the Convention (Eur. Court H.R.,

Fredin judgment of 18 February 1991, Series A no. 192).

16. The applicant and his wife own several parcels of land in the

municipality of Botkyrka. On the land there is a farm and a gravel pit.

17. On 11 December 1963 the applicant's parents had been granted a

permit to extract gravel from the pit, subject to certain conditions.

18. On 4 September 1969 the applicant acquired a fifth of the

property. On 31 July 1977 the applicant and his wife acquired the

remainder of the property, which thenceforth belonged as to two-thirds

to the applicant and as to one-third to his wife.

19. On 14 April 1983 the County Administrative Board (länsstyrelsen)

of Stockholm County transferred the exploitation permit to the

applicant and his wife, while indicating that it intended to re-examine

the permit question in 1983 with a view to a possible termination of

the activities.

20. On 25 August 1983 the County Administrative Board notified the

applicant and his wife that it was contemplating amending the permit

so as to provide that exploitation of the gravel pit should cease by

1 June 1984.

21. On 19 December 1984 the County Administrative Board ordered,

inter alia, that:

(a) the exploitation of gravel should cease within three years,

i.e. by the end of 1987, by which time the area should also be

restored,

(b) as from the day of the decision further extraction from

certain parts of the pit be prohibited.

22. On 12 December 1985 the Government (Ministry of Agriculture)

dismissed an appeal against the County Administrative Board's decision.

However, the validity of the permit was extended to 1 June 1988.

23. On 9 March 1987 the County Administrative Board adopted a

restoration plan for the pit.

24. On 18 May 1987 the County Administrative Board rejected a new

application made by the applicant for extraction of gravel. The

decision was appealed to the Government which on 9 June 1988 dismissed

the appeal. The Government ordered that the permit to extract gravel

from the pit should be prolonged until 1 December 1988, at which date

all activities should be terminated and the land be restored.

25. On 1 December 1988 extraction of gravel from the pit ceased.

26. The applicant applied for a special extraction permit in order

to enable him to comply with the plan for the restoration of the

ground. This request was rejected on 14 March 1989 by the County

Administrative Board and his appeal against this decision was rejected

on 21 June 1989 by the Government (Ministry of Environment and

Energy).

27. The applicant then applied for judicial review under the 1988 Act

on Judicial Review of Certain Administrative Decisions (lag om

rättsprövning av vissa förvaltningsbeslut). He argued that the

Government's decision violated several rules of law. He had needed a

permit in order to be able to comply with the restoration plan, and the

refusal of a permit had prevented him from restoring the ground. The

decision was therefore in conflict with Chapter 1 Section 9 of the

Instrument of Government (regeringsformen) and the principle of

objectivity contained therein. The decision of the County

Administrative Board was also in conflict with the Nature Protection

Act (naturvårdslagen) and with the principle of proportionality.

Moreover, as the County Administrative Board had failed to answer his

question as to what action he should take, he was a victim of denial

of justice.

28. In the proceedings before the Supreme Administrative Court

(Regeringsrätten) he requested an oral hearing which was refused by the

Court. This decision was taken by three votes to two. The two

dissenting judges stated, inter alia, that the Act on Judicial Review

of Certain Administrative Decisions had been enacted in order to ensure

that Swedish law complied with the requirements of the European

Convention on Human Rights and that account should therefore be taken

of the case-law of the European Court of Human Rights in regard to the

requirement of a public hearing in Article 6 of the Convention. The two

judges referred in this respect to the cases of Ekbatani (judgment of

26 May 1988, Series A no. 134) and HÃ¥kansson and Sturesson (judgment

of 21 February 1990, Series A no. 171).

29. On 13 December 1990 the Supreme Administrative Court, basing

itself on the applicant's written submissions and on a written

declaration by the County Administrative Court, found that the

Government's decision was not unlawful and rejected the applicant's

request for the annulment of that decision.

B. Relevant domestic law

30. After the European Court of Human Rights had found, in several

cases (Eur. Court H.R., Sporrong and Lönnroth judgment of

23 September 1982, Series A no. 52, Pudas judgment of 27 October 1987,

Series A no. 125-A, and Bodén judgment of 27 October 1987, Series A

no. 125-B), that Sweden was in breach of its obligations under

Article 6 para. 1 of the Convention as a result of the absence of a

judicial remedy against certain administrative decisions, new

legislation was enacted in Sweden in 1988. The new Act on Judicial

Review of Certain Administrative Decisions provides for an appeal to

the Supreme Administrative Court against administrative decisions

involving exercise of public authority regarding a private individual

or legal person in cases where no other judicial remedy is available.

The exact scope of the Act is defined by reference to certain

provisions in the Instrument of Government, and some enumerated

categories of decisions are excluded from the application of the Act.

31. The examination by the Supreme Administrative Court under this

new law is in principle limited to the question whether the challenged

decision is in conflict with any legal rule ("strider mot någon

rättsregel"). According to the travaux préparatoires the examination

shall concentrate on the lawfulness of the challenged decision.

However, the competence of the Supreme Administrative Court is not

limited to an examination of how the law has been applied but may

include a re-examination of the facts upon which the application of the

law was based. The Supreme Administrative Court shall also examine

whether fundamental legal principles such as objectivity, impartiality

and equality before the law have been respected. Moreover, the Supreme

Administrative Court shall examine whether there have been any

procedural errors which may have affected the outcome of the case.

Where the administrative authority had a choice between different

options, the Supreme Administrative Court's examination shall be

restricted to whether the decision taken was within the discretion

afforded to the public authority concerned.

32. If the Supreme Administrative Court finds that a decision is in

conflict with a legal rule, it shall quash the decision and, where

necessary, refer the case back to the administrative authority which

took the decision.

33. The 1988 Act was promulgated as a law of temporary validity. It

was to be in force until the end of 1991, but its validity has

subsequently been extended until the end of 1994.

34. The 1988 Act does not contain any specific provisions about the

procedure of the Supreme Administrative Court when dealing with

requests for review under the provisions of the Act. Consequently, the

procedure is governed by the general rules applicable to the procedure

before the Supreme Administrative Court. These rules are to be found

in the 1971 Administrative Judicial Procedure Act (förvaltnings-

processlagen). It follows from these rules that the procedure before

the Supreme Administrative Court is in principle a written procedure.

However, the Court may decide to hold an oral hearing on a specific

matter where this appears to be beneficial to the examination of the

case or where it is likely to expedite the proceedings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

35. The Commission has declared admissible the applicant's complaint

that he was not afforded a fair and public hearing before the Supreme

Administrative Court.

B. Point at issue

36. The issue to be determined is whether there has been a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

37. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal..."

38. The applicant considers that this provision has been violated in

his case, since he was refused an oral hearing in the proceedings

before the Supreme Administrative Court.

39. The Government recognise that there are arguments in favour of

the opinion that Article 6 (Art. 6) has been breached but consider that

there are also arguments speaking against such a conclusion. They point

out that the Supreme Administrative Court's examination was limited in

the present case to an examination primarily aimed at establishing

whether the challenged decision was contrary to any legal provision and

that it did not, as in the HÃ¥kansson and Sturesson case (cited above),

cover all aspects of the case. The Supreme Administrative Court acted

as a court of cassation. It could only quash the decision but not

replace it by a new decision. It could therefore be argued that the

issue before the Supreme Administrative Court was not such as to

require an oral hearing. The case did not raise any questions of fact

or law which could not be adequately resolved on the basis of the case-

file.

40. However, the Government add that it could be argued that the

Swedish rules on oral hearings in court proceedings and the way these

rules are applied in practice are not sufficient to meet Sweden's

obligations under Article 6 (Art. 6) of the Convention. They would

welcome any clarification of how Article 6 (Art. 6) should be construed

in this regard. By way of conclusion, the Government state that the

Supreme Administrative Court's decision not to hold an oral hearing in

the present case was clearly lawful under Swedish law, but the

Government leave open the question whether the Administrative Judicial

Procedure Act, which does not unconditionally afford to a party the

right to have an oral hearing at his request, is in full conformity

with Article 6 (Art. 6) of the Convention.

41. The Commission notes that the proceedings before the Supreme

Administrative Court concerned the applicant's request for a special

permit to extract gravel from the pit situated on land owned by him and

his wife. It follows that the determination of the applicant's civil

rights was at issue in these proceedings and that Article 6 para. 1

(Art. 6-1) of the Convention was applicable.

42. Article 6 para. 1 (Art. 6-1) of the Convention affords to a party

in court proceedings the right to a fair and public hearing. This means

that he must as a rule be entitled to present his arguments orally

before a court at a hearing which shall be held in public. This is not

to say that there must be an oral hearing at all stages of court

proceedings. In particular, such a hearing may not be required under

Article 6 (Art. 6) in appeal or cassation proceedings where the

examination is limited to legal issues (Eur. Court H.R., Axen judgment

of 8 December 1983, Series A no. 72, Sutter judgment of

22 February 1984, Series A no. 74, Jan-Ã…ke Andersson judgment of

29 October 1991, Series A no. 212-B, and Fejde judgment of

29 October 1991, Series A no. 212-C). Nor is an oral hearing necessary

when the parties, expressly or tacitly, have waived their right to such

a hearing (cf. HÃ¥kansson and Sturesson judgment, op. cit., p. 22,

para. 66).

43. In the present case, the applicant's request was first examined

by administrative authorities, and the Supreme Administrative Court was

the first and only tribunal which dealt with the applicant's case.

44. In these circumstances, the Commission considers that the

applicant was entitled to an oral hearing before the Supreme

Administrative Court.

45. Consequently, the Supreme Administrative Court's refusal to grant

the applicant an oral hearing constituted a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

D. Conclusion

46. The Commission concludes, by 16 votes to 2, that in the present

case there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED BY MR. B. MARXER

In my opinion the aim of the wording "everyone is entitled to a

fair and public hearing" in Article 6 (1) is to guarantee that any

litigant must have the possibility to bring his arguments before the

tribunal. One should not interpret the word "hearing" as meaning that

this must necessarily be done orally. It is the possibility of raising

the arguments which is at stake.

The essence of the requirement of Article 6 that a hearing must

be public is to guarantee that court judgments can be supervised by

public opinion. Could a court rule in complete secrecy, then a risk for

arbitrariness or insufficient care would rise. The simple fact that

courts can be criticised by legal opinion offers an element of control,

and without any control, no institution can function well.

It is less relevant whether the hearing is conducted in writing

or orally. Indeed, the practice of the Contracting States show a great

variety of solutions. Broadly speaking common-law inspired countries

give preference to oral arguments, whilst on the continent written

proceedings are often preferred. Supervision can be exerted over

written documents as well as over oral hearings.

In ordinary criminal cases oral hearings may be essential to

assess the facts and in order to offer the judge some insight into the

personality of the accused. In ordinary civil cases an oral hearing may

also be essential to establish the facts. The legal arguments, on the

other hand, can be better brought in writing than orally. Therefore,

when a question is purely legal there is no real need for an oral

hearing. The hearing can equally well be in writing.

One of the major problems in Europe is the length of proceedings

in many countries. This problem is a consequence of the overburdening

of the judiciary. It is of the greatest importance to help the courts

to give speedy decisions. If such decisions can be given equally well

on the basis of written arguments a requirement to put the legal

arguments also orally will only delay the judgments.

In my opinion, therefore, it should be considered in each

individual case whether an oral argument is necessary. If there are no

facts on which the court may want to ask questions of the parties, if

the factual situation is clear, if the legal arguments can be brought

out in writing and if these legal arguments are sufficiently accessible

to the public to guarantee that the written hearing is a public

hearing, then the sacrifice in time, or the extra burden on the courts

required by an oral hearing would not be justified. In stages in the

proceedings subsequent to the trial at first instance the European

Court of Human Rights accepted this in a number of cases (see, e.g.

Jan-Ã…ke Andersson judgment of 29 October 1991, Series A 212 B, p. 45,

para. 27). Usually, the issues to be decided when courts review, as in

the present case, the lawfulness of administrative action are also of

such a nature that an oral hearing may be dispensed with - even at

first instance. The legal arguments which predominate in such

proceedings can often be better brought in writing than orally.

In Sweden the written arguments brought by the parties are

public. In the present case, therefore, there is no lack of public

control. Neither have I found any argument why the absence of oral

pleadings has caused any damage to the applicant. Looking at the court

proceedings as a whole I do not find a violation of Article 6.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

9 April 1991 Introduction of the application

9 October 1991 Registration of the application

Examination of Admissibility

6 January 1992 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

7 May 1992 Government's observations

5 June 1992 Applicant's observations in reply

12 October 1992 Commission's decision to declare the

application admissible

23 October 1992 Communication to the parties of the

text of the decision on admissibility

Examination of the merits

9 February 1993 Commission's deliberations on the

merits, final vote and adoption of

the Report

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FREDIN v. SWEDEN

FREDIN v. SWEDEN