Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 14220/88

Göran RAVNSBORG

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 10 December 1992)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1 - 13) . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5 - 8) . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 9 - 13). . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 14 - 38). . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 14 - 26) . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 27 - 38) . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 39 - 64). . . . . . . . . . . . . . . . . 15

A. Complaint declared admissible

(para. 39) . . . . . . . . . . . . . . . . . 15

B. Point at issue

(para. 40) . . . . . . . . . . . . . . . . . 15

C. Article 6 of the Convention

(paras. 41 - 64) . . . . . . . . . . . . . . 15

Dissenting opinion of MM. S. Trechsel, E. Busuttil,

A.S. Gözübüyük, A. Weitzel, J.-C. Soyer, Mrs. J. Liddy

and Mr. L. Loucaides. . . . . . . . . . . . . . . . . . . . 20

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 21

APPENDIX II : PARTIAL DECISION ON THE ADMISSIBILITY. . . 22

APPENDIX III : FINAL DECISION ON THE ADMISSIBILITY. . . . 27

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 1933. He is a

university lecturer and resides at Lund.

3. The application is directed against Sweden. The respondent

Government were represented by their Agents, first Mr. HÃ¥kan Berglin,

succeeded by Ms. Eva Jagander, both of the Ministry for Foreign

Affairs.

4. The case concerns court proceedings in which the applicant was

ordered by a court to pay a total of 3,000 Swedish crowns for "offences

against the order in court" (rättegångsförseelser) without an oral

hearing or otherwise having had an opportunity to address the court on

the issue. The applicant considers that this procedure violates the

rights guaranteed to him under Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 2 July 1988 and registered on

16 September 1988. On 10 October 1990 the Commission decided to declare

certain issues under Article 6 of the Convention inadmissible. It was

furthermore decided in accordance with Rule 48 para. 2 (b) of the

Commission's Rules of Procedure to give notice of the remainder of the

application to the respondent Government and to invite them to present,

before 21 December 1990, their observations in writing on the

admissibility and merits.

6. The Government submitted their observations on 20 December 1990.

The applicant's written observations in reply were submitted on

27 April, 2 May and 15 June 1991.

7. On 9 January 1992 the Commission decided to declare the issue

under Article 6 referred to above (para. 4) admissible whereas the

remainder of the application was declared inadmissible. The parties

were then provided with the opportunity to submit any additional

observations on the merits which they wished to make. No further

observations on the merits were received from the parties.

8. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. Active consultations with the parties took

place between 20 January 1992 and 28 February 1992. In the light of the

parties' reaction, the Commission now finds that there is no basis upon

which such a settlement can be effected.

C. The present Report

9. 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

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

10. The text of this Report was adopted on 10 December 1992 and is

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

in accordance with Article 31 para. 2 of the Convention.

11. 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.

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

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

decisions on the admissibility of the application as Appendix II and

Appendix III.

13. 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

14. The applicant was personal general proxy for his adoptive mother

K, who died on 7 July 1987. On 19 November 1982 he was appointed

administrator (god man) for his mother's friend M, who died on

10 February 1985. Both K and M were unable to care for themselves due

to old age and were therefore eventually placed in a nursing home by

the Municipality of Gothenburg. Some time after their respective

admittance to the nursing home K and M became liable to pay a certain

medical care fee calculated on the basis of their net income and they

received invoices from the nursing home. The applicant duly paid the

invoices on behalf of K and M.

15. The applicant subsequently realised that the nursing home was a

charitable foundation and he considered that he had paid the medical

care fees on behalf of K and M to the wrong creditor. In May 1983 he

accordingly stopped paying the fees. A dispute arose concerning the

payment of these fees and court proceedings to this effect were

instituted.

16. While these proceedings were pending the Gothenburg Guardian

Board (Göteborgs Överförmyndarnämnd), on 6 April 1987, requested the

Gothenburg District Court (tingsrätten) to appoint an administrator

(god man) for K. The applicant, as personal general proxy for K as well

as on his own behalf, counterclaimed seeking the immediate dismissal

of all members of the Gothenburg Guardian Board. In his 19-page

submission of 4 May 1987 to the District Court the applicant stated

inter alia:

(Swedish)

"Som allmänt omdöme beträffande Överförmyndarnämndens här

på goda grunder skarpt kritiserade agerande måste

framhållas, att nämnden här framstår som en korg

kommunalpolitiska rötägg av olika kulörer men av en

gemensam art och överideologi, nämligen den fascistoida

maktutövningens, därvid den enskilda kommunmedlemmens

rättigheter och välförstådda intressen - om dessas existens

överhuvud taget medgives i maktberusningens ögonblick -

aldrig får innebära något mera verkningsfullt

ifrågasättande av kollektivets krav eller det

politrukstyrda intressesubjektets absoluta rätt, sådan

denne i varje enskilt fall till sitt innehåll bestämts av

de i s.k. demokratisk ordning utmanglade representativa

folkdomstolarna (vars mera officiella benämning är

Göteborgs kommuns styrelser och nämnder) med sin bemanning

av i häpnadsväckande hög grad lokalt publikt slödder eller

- som ovan - rena rötägg.

Kravet på offentlig, muntlig (huvud) förhandling i detta

dubbelärende dels om ansökan om förordnande av god man,

dels om omedelbart entledigande av vissa befattningshavare

och ledamöter av Göteborgs Överförmyndarnämnd stödes

ytterst på europakonventionens artikel 6(1)."

(translation)

"As a general assessment about the Guardian Board's

actions, which are strongly criticised on good grounds, the

Board can be described as a basket of municipal political

rotten eggs of different colours but of a common

denominator and supra ideology, i.e. the tendentiously

fascist exercise of power, in connection with which the

rights and legitimate interests of individual municipal

members - if their existence is at all recognised in their

intoxication with power - may never involve any powerful

questioning of the demands of the collective or the

absolute right of the politician-governed subject, such as

it is in each individual case defined as to its contents by

the so-called democratically representative People's Courts

(whose official names are the Boards or Councils of the

Municipality of Gothenburg) with their manning, to a

surprisingly high degree, by the local public mob or - as

above - pure rotten eggs.

The request for a public, oral (main) hearing in this

double case, concerning on the one hand the request for the

appointment of an administrator and on the other the

immediate dismissal of certain care workers and members of

the Gothenburg Guardian Board, is furthermore based on

Article 6 para. 1 of the European Convention."

17. On 18 May 1987 the District Court considered the request for the

appointment of an administrator and in particular the applicant's above

submission to this effect. In application of the Code of Judicial

Procedure (rättegångsbalken), the Court ordered the applicant to pay

1,000 Swedish crowns for an "offence against the order in court"

(rättegångsförseelse) in respect of the above statement which it

considered to be improper (otillbörligt uttalande i rättegångsskrift).

The Court did not hold any hearing in regard to this issue. The case

was, as regards the merits, adjourned.

18. On 1 June 1987 the applicant appealed against the District

Court's above decision, ordering him to pay 1,000 Swedish crowns, to

the Court of Appeal (hovrätten) for Western Sweden. In his 14-page

appeal he complained inter alia that he had been fined without having

had the possibility of defending himself at an oral hearing. He

furthermore requested an oral hearing in the Court of Appeal. In the

written appeal the applicant stated inter alia as follows:

(Swedish)

"Skulle hovrätten i något hänseende döma med avvikelse från

av mig här framställda yrkanden, kommer jag givetvis att

överklaga, för att sedan högst sannolikt omedelbart kunna

insända anmälan till europakommissionen resp kommittén för

de mänskliga rättigheterna i Genève. Risken är nämligen

ytterst liten för att en allmänt letargisk och genom sina

ledamöters mångåriga kanslihusindoktrinering mot mänskliga

rättigheter slappt allergisk slutinstans beviljar

prövningstillstånd i ett fall som detta."

(translation)

"If the Court of Appeal would, in any respect, come to a

different judgment from what I have requested, I will of

course appeal, in order to be able to submit an application

immediately to the European Commission or to the Human

Rights Committee in Geneva. The risk is extremely small

that a generally lethargic and - as a result of its

members' many years of indoctrination against human rights

in the Government Offices - lax final instance will grant

leave to appeal in a case like this."

19. The Court of Appeal decided on the appeal on 4 November 1987,

prior to which K had died on 7 July 1987. It found that the District

Court had acted in accordance with domestic case-law and legal doctrine

when ordering the applicant to pay 1,000 Swedish crowns for the

"offence against the order in court" and therefore rejected the appeal.

The Court of Appeal furthermore saw no reason to hold an oral hearing.

Finally, the Court found the applicant's remarks in his written appeal

of 1 June 1987 improper and ordered him to pay another 1,000 Swedish

crowns for an "offence against the order in court".

20. On 26 November 1987 the applicant applied to the Supreme Court

(Högsta domstolen) for leave to appeal. He maintained inter alia that

the courts' actions and decisions had not only deprived him of his

right to a fair trial, being an accused, but also infringed his right

to freedom of expression.

21. On 5 January 1988 the Supreme Court refused leave to appeal.

22. In the meantime the proceedings instituted on 6 April 1987 (see

paras. 16 and 17 above) had continued in the District Court. On

17 June 1987 the District Court considered the Guardian Board's request

for the appointment of an administrator as well as the applicant's and

K's request for the Board members' dismissal. It did not hold a hearing

but found in favour of the applicant and K as regards the appointment

of an administrator and accordingly rejected the Board's request for

such appointment. The Court furthermore rejected the applicant's and

K's request for the dismissal of the Board members as the submissions

in support of the request did not disclose any reason to do so.

23. On 2 July 1987 the applicant appealed, on behalf of K as well as

on his own behalf, against the District Court's above decision on the

merits to the Court of Appeal for Western Sweden. In his 7-page written

appeal he requested that the case be referred back to the District

Court for renewed consideration, including an oral hearing. He stated

inter alia:

(Swedish)

"Det faktum, att vi av flera utomordentliga skäl yrkar, att

ärendet Göteborgs tingsrätt, avd 1, Fm 384/87 återförvisas

för fortsatt handläggning i tingsrätten innebär givetvis

icke att vi ens för ett ögonblick skulle acceptera, att

målet vid fortsatt handläggning på tingsrättsnivå ännu en

gång skulle domineras av t.ex. chefsrådmannens Sven

Wieselgren långtgående fascistoida processledning med dess

definitoriska inslag av grovt partiska kommunalhänsyn,

kollegialitetskorruption, myndighetsmissbruk

genom egenmäktighet, skuggrädsla och

mörkmannaprinciper. Överhuvud taget är våra

erfarenheter av den allmänt egenmäktiga och till

kommunens favör djupt partiska normexercisen vid

tingsrätten, sådan den utövas av en Stefan

Wikmark, en Sven Ordqvist, en Kenneth Ström

eller en Sven Wieselgren - samtliga ledamöter av

tingsrättens domarkollegium - sådan, att vi

särskilt med hänsyn till detta kollegiums skarpt

framträdande partiskhet kommer att - vad avser

rättens ordförande vid fortsatt handläggning av

ärendet Fm 384/87 - yrka på konstitution av

särskild tingsrätt för sagda handläggning,

varvid rättens ordförande in casu skall sökas

utanför Göteborgs tingsrätt."

(translation)

"The fact that we ... ask that the case be referred back to

the District Court ... for a further examination does not

imply that we, even for a moment, would accept that the

case ... once again is dominated by, for instance, Chief

Judge Sven Wieselgren's far-reaching tendentiously fascist

way of presiding over the court with its gross partiality

in favour of municipal interests, collegiate corruption,

and abuse of public authority through autocracy, shadow

fear and dark man principles. Our experience with the

generally autocratic deeply partial implementation of norms

by the District Court in favour of the municipality, as it

is performed by one Stefan Wikmark, one Sven Ordqvist, one

Kenneth Ström and one Sven Wieselgren ... is such that we

will ask for the composition of a special District Court in

which the President is chosen from outside the Gothenburg

District Court."

24. On 4 November 1987 the Court of Appeal rejected the appeal. It

found that it could not deal with the applicant's and K's appeal in so

far as the District Court had found in their favour by not granting the

Guardian Board's request for the appointment of an administrator.

Furthermore, the Court found that it could not deal with the remainder

of the appeal as a right to appeal was only granted to a person who had

actually been dismissed as requested by the applicant and K. Finally,

the Court ordered the applicant to pay once more 1,000 Swedish crowns

for an "offence against the order in court" finding his remarks in his

written appeal of 2 July 1987 improper.

25. On 30 November 1987 the applicant applied, on behalf of K's

estate as well as on his own behalf, for leave to appeal to the Supreme

Court. He maintained inter alia his request for the dismissal of the

Guardian Board's members and requested that the case be referred back

to the District Court for proper examination, including an oral

hearing. He also requested the Supreme Court to repeal the order to pay

1,000 Swedish crowns for the "offence against the order in court".

26. On 5 January 1988 the Supreme Court refused leave to appeal.

B. Relevant domestic law

"Offences against the order in court" (rättegångsförseelser)

27. Chapter 9, Section 5, of the Code of Judicial Procedure sanctions

as an "offence against the order in court" (rättegångsförseelse)

certain forms of improper behaviour either at a court hearing or in

written submissions to a court. The provision read as follows at the

relevant time:

(Swedish)

"Den som vid sammanträde inför rätten stör förhandlingen

eller fotograferar i rättssalen eller bryter mot föreskrift

eller förbud, som har meddelats med stöd av 5 kap. 9§, döms

till böter. Till samma straff döms den som muntligen inför

rätten eller i rättegångsskrift uttalar sig otillbörligt."

(translation)

"Anyone who, at a court session, disturbs the hearing or

takes photographs in the courtroom, or fails to obey

directions or prohibitions issued by virtue of Chapter 5,

Section 9, shall be punished by a fine. The same punishment

shall be imposed on anyone who, orally or in a paper filed

with the court, expresses himself in an unseemly manner."

28. According to Chapter 5, Section 9, of the Code, which concerns

order at court hearings, the presiding judge may, for instance, order

a person, who disturbs the hearing or behaves in an unseemly manner in

some other way, to leave the courtroom.

29. According to the travaux préparatoires of Chapter 9, Section 5,

of the Code of Judicial Procedure (NJA II 1943, page 91), improper

behaviour of a more serious character could be considered as criminal

according to relevant rules of penal law, such as provisions on

defamation. The present provision is, however, to be applied in cases

where there is an offence with regard to order in the court. The

penalty is limited to the payment of a specified sum of money which,

at the relevant time, could not exceed 1,000 Swedish crowns.

30. Abusive statements may be punishable as defamation according to

Chapter 5 of the Penal Code. Such cases presuppose prosecution.

According to Chapter 20, Section 1, of the Code of Judicial Procedure,

this is, however, not the case with "offences against the order in

court". In such a case the court may immediately order the person who

commits an "offence against the order in court" to pay a sum of money

as indicated above (see para. 29).

31. Chapter 9, Section 5, of the Code of Judicial Procedure is

applicable to anyone who takes part in court proceedings, the only

exception being the members of the court itself, i.e. judges and lay

members of the court. The provision is therefore applicable to the

parties to a case, their representatives, witnesses etc. It is also

applicable to members of the audience at a court hearing.

32. The question of whether a person has committed an "offence

against the order in court" is dealt with by the court of its own

accord, cf. Chapter 19, Section 5 of the Code of Judicial Procedure.

The matter can only be dealt with in the particular proceedings in

which the improper behaviour has taken place and by that particular

court. A sanction for an "offence against the order in court" does not

presuppose prosecution and it is not entered in the criminal register

(allmänna kriminalregistret).

Public, oral hearings

33. The question of "offences against the order in court" was, in the

present case, dealt with in accordance with the Act (1946:807) on the

Handling of Court Matters (lag om handläggning av domstolsärenden),

hereafter called the 1946 Act. According to the 1946 Act, Section 4,

sub-section 2, the court may conduct a hearing if it considers that the

applicant or someone else, who is involved in the matter, should be

heard orally.

34. According to the travaux préparatoires to the 1946 Act, the

purpose of the provisions of the Act is to adapt the proceedings to the

nature of the matter. If an oral hearing is not necessary with regard

to the particular matter at issue, such a hearing shall not take place.

If, on the other hand, the court decides to hold a hearing, the same

provisions as those applying to main hearings in civil cases shall

apply in principle (Section 5, sub-section 2, of the 1946 Act).

35. Section 11 of the 1946 Act further provides that, in matters not

dealt with in that Act, the provisions concerning civil cases in the

Code of Judicial Procedure shall apply, insofar as they are relevant.

On this basis too, it would have been possible for the Gothenburg

District Court to decide to hold a hearing in order to resolve the

question of the "offence against the order in court" in the present

case.

36. According to the Code of Judicial Procedure, Chapter 52,

Section 10, sub-section 1, the court shall make suitable arrangements

for an oral hearing if it is necessary for the examination of the case

to hear a party or someone else. Consequently, it would also have been

possible for the Court of Appeal to hold an oral hearing.

Representation in litigation

37. Chapter 12 of the Code of Judicial Procedure regulates the

question of representation in litigation. The relevant Sections read

as follows:

(Swedish)

"1§: Parts talan må föras genom ombud.

Om skyldighet för part att infinna sig personligen stadgas i

11 kap. 5 §.

2§: Såsom ombud må ej brukas annan än den som rätten med

hänsyn till redbarhet, insikter och tidigare verksamhet

finner lämplig att vara ombud i målet.

Ombud skall vara svensk medborgare med hemvist inom riket;

dock må även annan brukas såsom ombud, om rätten med hänsyn

till målets beskaffenhet och övriga omständigheter finner

det lämpligen kunna ske.

Ej må den vara ombud, som är underårig eller i konkurstill-

stånd eller som har förvaltare enligt 11 kap. 7 § föräldra-

balken.

3§: Lagfaren domare i eller rättsbildad befattningshavare

vid allmän domstol eller allmän åklagare eller kronofogde

må ej vara ombud, med mindre regeringen eller myndighet som

regeringen bestämmer giver lov därtill. ...

Ej må nämndeman vid den domstol han tillhör föra annans

talan.

...

5§: Visar ombud oredlighet, oskicklighet eller oförstånd

eller finnes han eljest olämplig, skall rätten avvisa honom

som ombud i målet; rätten äge ock, om skäl äro därtill,

förklara honom obehörig antingen för viss tid eller tills

vidare att brukas som ombud vid den rätten."

(translation)

"Section 1: The parties may present their cases through a

representative.

The duty of a party to appear in person is prescribed in

Chapter 11, Section 5.

Section 2: Only a person deemed suitable by the court to be

a representative in the case with regard to his honesty,

knowledge and earlier activities may appear as a

representative.

A representative shall be a Swedish citizen residing in the

realm; however, the court may permit a person who does not

meet these qualifications to serve as representative if,

with regard to the nature of the case and other

circumstances, such permission is found appropriate.

A minor, or a person in the state of bankruptcy or put

under guardianship in accordance with Chapter 11, Section 7

of the Family Code, may not appear as a representative.

Section 3: Professional judges and officers learned in law

sitting in the general courts, public prosecutors and

bailiffs may not appear as representatives unless the

Government or an authority determined by the Government

grants an exception for a particular case. ...

No lay judge may appear as representative in the court of

which he is a member.

...

Section 5: When a representative is shown to be dishonest,

lacking in skill, or imprudent, or is otherwise deemed

unsuitable, the court shall dismiss him as representative

in the case; for cause, the court may also declare him to

be incompetent to act as a representative before it, either

for a certain period or until further notice."

Recovery and conversion of fines

38. Chapter 9 of the Code of Judicial Procedure does not contain any

provisions according to which the sum of money a court has ordered a

person to pay for an "offence against the order in court" may be

converted into a term of imprisonment. Such matters are regulated in

the 1979 Act on the Enforcement of Fines (bötesverkställighetslagen

(1979:189)). The relevant Sections read as follows at the relevant

time:

(Swedish)

"Allmänna bestämmelser

1§: Bötesstraff verkställs genom uppbörd eller indrivning.

Regeringen bestämmer, i vad mån uppbörd skall ske. ...

2§: Uppbörd av böter sker så snart dom, strafföreläggande

eller föreläggande av ordningsbot har meddelats. Indrivning

får däremot ej ske förrän domen har vunnit laga kraft eller

föreläggandet har godkänts. ...

...

Uppbörd

4§: Uppbörd sker genom att den bötfällde frivilligt

erlägger betalning till myndighet som regeringen bestämmer.

...

Indrivning

6§: Skall uppbörd ej ske eller har uppbörd ej lett till

full betalning, skall böterna drivas in genom kronofogde-

myndighetens försorg. Indrivningen sker på grund av dom,

godkänt föreläggande eller saköreslängd.

...

9§: I den mån betalning inte kan erhållas ... sker

indrivning genom utmätning eller införsel enligt vad som är

särskilt föreskrivet.

10§: För att driva in bötesfordran får kronofogdemyndig-

heten ansöka att den bötfällde skall försättas i konkurs.

Understiger fordringen femhundra kronor, får ansökan dock

göras endast om synnerliga skäl föreligger. ...

...

Indrivningshinder

11§: Har böterna bortfallit eller föreligger eljest laga

hinder mot verkställighet, avkortas böterna.

Möter annat hinder mot indrivning av böterna, får de

avskrivas. Avskrivning medför ej ändring i

betalningsskyldigheten.

Fråga om avkortning och avskrivning prövas av

skattemyndigheten enligt de närmare föreskrifter som

regeringen meddelar.

12§: Skulle indrivning av böter vara till synnerligt men

för den bötfällde eller någon som är beroende av honom för

sin försörjning, kan kronofogdemyndigheten förordna att

vidare verkställighet ej skall äga rum. Sådant förordnande

får ej meddelas, om det är påkallat från allmän synpunkt

att indrivningen fortgår.

...

Förvandling av böter

15§: Ådömda böter, som inte har kunnat indrivas och som

inte har avkortats, skall på talan av åklagare förvandlas

till fängelse, om det är uppenbart att den börfällde av

tredska har underlåtit att betala böterna eller om

förvandling annars av särskilda skäl är påkallad från

allmän synpunkt.

Är den bötfällde, när förvandling skall ske, skyldig att

betala även andra böter än sådana som avses i första

stycket, skall också dessa böter förvandlas.

Förvandlingsstraffet skall bestämmas till fängelse i längst

fjorton dagar och högst tre månader.

16§: Mål om förvandling av böter tas upp av tingsrätten i

den ort där den bötfällde finns eller av den tingsrätt som

har handlagt det mål, i vilket bötesstraffet eller, om det

är fråga om flera sådana straff, något av dem har ådömts.

17§: I mål om bötesförvandling skall tingsrätten vid

avgörande av saken bestå av en lagfaran domare och

nämndemän. Åklagaren och den bötfällde skall kallas till

förhandling inför rätten. Om den bötfällde inte inställer

sig, får målet ändå avgöras, såvida tillfredsställande

utredning finns i saken.

Rättens avgörande av saken sker genom beslut.

Ett beslut varigenom rätten har lämnat en ansökan om

förvandling utan bifall utgör inte hinder för att en sådan

ansökan tas upp på nytt beträffande samma böter, om nya

förhållanden ger anledning till det.

I övrigt skall i tillämpliga delar gälla vad som är

föreskrivet beträffande mål om allmänt åtal.

...

22§: Förvandling får ej ske av

1. böter, som har ådömts med stöd av 30 kap. 6 §

brottsbalken,

2. vite, som har utdömts för underlåtenhet att

fullgöra dom eller beslut rörande saken i mål som har

handlagts enligt lagen (1974:371) om rättegången i

arbetstvister.

Om hinder i andra fall mot förvandling av böter eller viten

finns särskilda bestämmelser. ..."

(translation)

"General provisions

Section 1: Fines are enforced by means of payment or

collection. The Government decides to what extent payment

must be made. ...

Section 2: Fines are to be paid as soon as a judgment, a

prosecutor's order for summary punishment or a police

officer's order for summary imposition of a fine for a

regulatory offence have been given. The fine may not,

however, be collected before the judgment has gained legal

force or the order has been accepted by the person

concerned.

...

Payment

Section 4: Fines are paid when the person fined voluntarily

submits payment to the authority designated by the

Government.

...

Collection

Section 6: If payment is not accepted or if full payment

has not been made, the fine shall be collected by the

Enforcement Office. Collection is carried out on the basis

of judgments, accepted summary orders or the list of

outstanding fines.

...

Section 9: If payment cannot be obtained ... the collection

of the fine is to be carried out through forced sale or

forced retention of income in accordance with what is

specially prescribed.

Section 10: The Enforcement Office may request that the

person concerned be declared bankrupt in order to obtain

payment of the fines due. However, in case of fines of less

than 500 crowns such a request may only be made if

supported by very strong reasons.

...

Obstacles to enforcement

Section 11: If the fines have been annulled or if there are

otherwise legal obstacles to enforcement, the fines are

cancelled.

If there are otherwise obstacles to the collection of the

fines, the fines at issue may be removed from the

collection list. Such removal from the list does not change

the duty to pay the fines.

Section 12: If the collection of fines causes extreme

hardship for the person concerned or for someone who

depends on him for his living, the Enforcement Office may

order that no further execution shall take place. Such an

order may not be issued if it is necessary from a general

point of view to proceed with the collection.

...

Conversion of fines

Section 15: Fines imposed which have not been collected and

which have not been cancelled may, upon request from the

prosecutor, be converted into imprisonment if it is obvious

that the person concerned has defiantly refused to pay them

or if there are otherwise special reasons from a general

point of view to convert them.

If the person concerned, at the time of the conversion, has

a duty to pay also other fines than those referred to in

the first subsection, these fines shall also be converted.

The converted sentence shall not be less than fourteen days

and not more than three months imprisonment.

Section 16: Cases relating to the conversion of fines are

to be dealt with by the District Court of the place where

the person concerned stays or by the District Court which

dealt with the case, or if there are several such cases,

with one of the cases in which the fines were imposed.

Section 17: When deciding in conversion cases the court

shall be composed of one professional judge and lay

assessors. The prosecutor and the defendant shall be

summoned to the hearing. If the defendant does not present

himself, the case may still be decided if sufficient

material is available.

The court's conclusion shall take the form of a decision.

A decision not to grant a request for the

conversion of a fine does not constitute an

obstacle to a new conversion request in respect

of the same fine if there are new circumstances

warranting renewed examination.

In other respects the provisions governing public

prosecution apply.

...

Section 22: Conversion may not take place of

1. fines imposed in accordance with Chapter 30,

Section 6, of the Penal Code,

2. money penalties imposed because of refusal to obey

a judgment or a decision given in a case dealt with

under the 1974 Act on the Procedure in Labour

Disputes.

There are special regulations regarding obstacles to

conversion of fines and money penalties in other

cases. ..."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39. The complaint declared admissible concerns the obligation,

imposed by the courts without an oral hearing, to pay a total of 3,000

Swedish crowns for "offences against the order in court"

(rättegångsförseelser).

B. Point at issue

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

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

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

41. Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and

public may be excluded from all or part of the trial in the

interest of morals, public order or national security in a

democratic society, where the interests of juveniles or the

protection of the private life of the parties so require,

or to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would

prejudice the interests of justice."

42. It is in dispute between the parties whether this provision

applies in the present case.

43. The applicant maintains that, by having been ordered to pay

fines, he was subjected to one of the two basic forms of punishment

within the domestic penal laws. All fines constitute punishment and the

administration of punishment must - without exception - fulfil the

guarantees of Article 6 (Art. 6) of the Convention. The applicant also

submits that it follows from the Penal Code that improper behaviour

within the meaning of the Code of Judicial Procedure Chapter 9,

Section 5, is a criminal offence since the penal reaction is a fine.

Therefore every question as to improper behaviour under the Code of

Judicial Procedure should be heard publicly in accordance with the

guarantees of Article 6 (Art. 6) of the Convention. In the present

case, however, so the applicant submits, the court decisions by which

he was fined for "offences against the order in court" were given in

a procedure which constituted a secret inquisitorial penal process

during which he did not receive a public hearing or any opportunity to

refute the charges against him.

44. The Government maintain that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings in question or, in the

alternative, that the applicant's complaints do not disclose any

violation of this provision. They argue that under Swedish law an

"offence against the order in court" is not considered to constitute

a criminal offence but is included in the Code of Judicial Procedure

in order to enable a court to react speedily against improper behaviour

of different kinds. The determination of such issues rather constitutes

an examination in the exercice of judicial control of the proper

administration of justice. The sanction serves the disciplinary purpose

of deterring from behaviour which could encroach on the authority of

the judiciary and should not, therefore, fall within Article 6 (Art. 6)

of the Convention. Furthermore, the Government argue that the entirety

of the proceedings and the special features concerning "offences

against the order in court" under Swedish law do not require an oral

hearing for the purpose of complying with Article 6 (Art. 6) of the

Convention, if this Article were held to apply.

45. The Commission recalls that Article 6 (Art. 6) of the Convention

only applies to proceedings in which a determination of civil rights

and obligations or a criminal charge is at issue, and it will therefore

have to examine first whether this requirement is fulfilled in the

present case.

46. The proceedings concerning the applicant's "offences against the

order in court" did not, in the Commission's view, concern the

determination of his "civil rights and obligations". Therefore, the

only question is whether the proceedings related to a "criminal

charge" against him within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

47. As regards the criteria to apply when deciding whether or not a

particular type of offence involves a "criminal charge" within the

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

Court of Human Rights has underlined that the term is to be interpreted

as having an autonomous meaning in the context of the Convention. While

the legislation of the State concerned is relevant, it provides no more

than a starting point in ascertaining whether there was a "criminal

charge" against a person. Regard must be had to the realities of the

procedure in question in order to determine whether there has been a

"charge" within the meaning of Article 6 (Art. 6) of the Convention

(see e.g. Eur. Court H.R., Engel and others judgment of 8 June 1976,

Series A no. 22, pp. 33-34, para. 80; Deweer judgment of

27 February 1980, Series A no. 35, pp. 21-22, paras. 41-42;

Adolf judgment of 26 March 1982, Series A no. 49, p. 15, para. 30).

48. The Court has developed the following criteria in order to

distinguish "criminal" from other possible types of offences (Engel and

others judgment, loc. cit. p. 35, para. 82):

(1) Whether the provisions defining the offence belong,

according to the legal system of the respondent State, to

criminal law, disciplinary law or both concurrently,

(2) the very nature of the offence, and

(3) the degree of severity of the penalty which the person

concerned risks incurring.

49. As regards the first point the Commission recalls that the legal

basis of the sanction imposed on the present applicant was Chapter 9,

Section 5, of the Swedish Code of Judicial Procedure and not the Penal

Code or any other provision of criminal law. The sanction does not

presuppose prosecution and is not entered in the criminal register.

According to the Swedish legal system such sanction is considered to

be of a disciplinary rather than a criminal nature.

50. However, as stated above the indications afforded by domestic law

are not decisive and according to the above-mentioned case-law an

element of greater importance is the very nature of the offence in

question.

51. In the Weber case, which concerned judicial proceedings conducted

without a hearing and resulting in the conviction and sentencing of a

journalist for having breached, at a press conference, the

confidentiality of an investigation, the European Court of Human Rights

stated:

"Disciplinary sanctions are generally designed to ensure

that the members of particular groups comply with the

specific rules governing their conduct. Furthermore, in the

great majority of the Contracting States disclosure of

information about an investigation still pending

constitutes an act incompatible with such rules and

punishable under a variety of provisions. As persons who

above all others are bound by the confidentiality of an

investigation, judges, lawyers and all those closely

associated with the functioning of the courts are liable in

such an event, independently of any criminal sanctions, to

disciplinary measures on account of their profession. The

parties, on the other hand, only take part in the

proceedings as people subject to the jurisdiction of the

courts, and they therefore do not come within the

disciplinary sphere of the judicial system. As Article 185,

however, potentially affects the whole population, the

offence it defines, and to which it attaches a punitive

sanction, is a 'criminal' one ..." (Eur. Court H.R., Weber

judgment of 22 May 1990, Series A no. 177, p. 18,

para. 33).

52. In the Demicoli case, which concerned breach of privilege

proceedings in respect of alleged defamation of members of the Maltese

House of Representatives, the Court referred to the fact that the

proceedings in question concerned an act done outside the House of

Representatives and to the fact that the relevant legislation

potentially affected the whole population since it applied whether the

alleged offender was a member of the House or not and irrespective of

where in Malta the publication of the defamatory libel took place

(cf. Eur. Court H.R., Demicoli judgment of 27 August 1991, Series A

no. 210, p. 17, para. 33).

53. Having regard to this case-law the Commission considers that

there are in particular three elements which should have special

attention: whether the person in question acts as a party or as a

representative in the proceedings in question; whether the act for

which the sanction is imposed relates directly to the proceedings in

question, and whether the sanction potentially affects the whole

population.

54. The Commission notes that the European Court of Human Rights has

stated that, above all, judges, lawyers and those clearly associated

with the functioning of the court are liable to disciplinary measures

on account of their profession whereas parties, subject only to the

jurisdiction of the courts in the cases in which they are involved

generally speaking are not. However, the present case shows that such

a distinction is difficult to make where a person, as the applicant,

acts both as a party and as a representative in the proceedings in

question.

55. The Commission recalls, furthermore, that it is well known in the

legal systems of the Member States of the Council of Europe that courts

have the power to secure good order in court and the proper

administration of the proceedings. When courts resort to sanctions for

that purpose, these are rather to be considered as being of a

disciplinary than of a criminal nature within the meaning of Article 6

(Art. 6) of the Convention. Swedish law does not make a distinction

between parties, representatives or for example witnesses when it comes

to maintaining the orderly functioning of the courts and the proper

administration of justice, but it has opted for a solution whereby

anyone may be the subject of a sanction, provided the offence is

connected directly with the proceedings and not, as in the Weber case,

only indirectly refers to these proceedings.

56. In the present case the Commission recalls that the applicant was

involved in the court proceedings in his capacity as party and also in

his capacity as representative of his adoptive mother and, following

her death, her estate. It was in this capacity he sent his written

submissions to the courts. However, what was decisive for the

imposition of the sanction was the fact that the applicant's

submissions, which were found to contain improper language, were

directly related to the specific proceedings in that they formed part

of the written observations submitted to the national courts. It

follows from Swedish law that the applicant could not have been

sanctioned under Chapter 9, Section 5, of the Code of Judicial

Procedure had he chosen to make public his remarks in other ways, such

as at a press conference, but only because his statements were made in

a procedural paper filed with the court. The Commission is of the

opinion that the applicant in these circumstances should be considered

as falling within the disciplinary sphere of the judicial system as

being, in his acts, clearly associated with the functioning of the

court.

57. Furthermore, the Commission notes that under Swedish law the

question whether a person has committed an "offence against the order

in court" is dealt with by the court of its own accord. The matter can,

however, only be dealt with in the particular proceedings in which the

improper behaviour has taken place, and by that particular court.

Contrary to the Weber case the decision to sanction the applicant was

thus taken by the same judicial authority as that in charge of the

proceedings.

58. Finally, as regards the elements of particular relevance for

determining the very nature of the offence, the Commission recalls that

contrary to both the Weber and the Demicoli cases the legislation in

question in the present case does not potentially affect the whole

population. As indicated above the sanctions were imposed in accordance

with Chapter 9, Section 5, of the Code of Judicial Procedure which

concerns only persons present at the session of a court or persons

expressing themselves in procedural papers filed with a court. Others

would have to be dealt with under applicable provisions of normal

criminal law.

59. Having regard to this the Commission finds that the sanctions

imposed on the applicant, for having committed an "offence against the

order in court" due to the improper language used in his submissions

to the court, were disciplinary rather than criminal in their very

nature in that they related to the internal regulation and orderly

functioning of the court.

60. As the last point the Commission has examined the degree of

severity of the sanction the applicant risked incurring. It recalls

that not every fine or sentence of imprisonment comes within the sphere

of criminal law (cf. above-mentioned Engel judgment, p. 36, para. 85).

In the present case the applicant was ordered to pay, in each case,

1,000 Swedish crowns which was equivalent to the maximum sanction under

Chapter 9, Section 5, of the Code of Judicial Procedure. This Code does

not provide for a possibility of converting the sanction into a term

of imprisonment but this may happen in accordance with the general

rules in this respect and only after a court has so decided in

proceedings which follow the rules governing public prosecution.

61. The Commission considers that such a possibility of converting

a monetary sanction into a term of imprisonment is not sufficient in

itself to make the provision in question one which defines and punishes

a criminal offence. It finds that any evaluation of the severity of a

sanction must necessarily take account of the legal context and actual

circumstances under which the sanction is imposed and enforced.

62. The Commission recalls in this respect that in the present case

the sanction imposed on the applicant, due to its very nature, comes

within the scope of the discipline required of him as a participant in

the civil court proceedings in question. Neither the maximum penalty

of 1,000 Swedish crowns nor the rather theoretical possibility of a

term of imprisonment can in such circumstances make the sanction in

question a criminal one. Furthermore, although this is not decisive,

the Commission notes that this type of sanction is not entered in the

criminal register.

63. Having regard to the above the Commission finds that the present

case does not involve the determination of a criminal charge within the

meaning of Article 6 (Art. 6) of the Convention and that, consequently,

this provision is not applicable to the proceedings in question.

Conclusion

64. The Commission concludes, by eleven votes to seven, that there

has been no violation of Article 6 (Art. 6) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting opinion of MM. S. Trechsel, E. Busuttil, A.S. Gözübüyük,

A. Weitzel, J.-C. Soyer, Mrs. J. Liddy and Mr. L. Loucaides

To our regret we cannot agree with the majority as regards the

applicability of Article 6 to the fine at issue in the present case.

In fact, we have come to the conclusion that the present case cannot

be distinguished, in its essential aspects, from the Weber case.

First, Chapter 9 Section 5 of the Code of Judicial Procedure

equally applies to "anyone who" expresses himself or herself in an

unseemly manner. It is thus not limited to persons closely associated

with the functioning of the court. In the present case, while we agree

that the applicant took part in the proceedings in two different

capacities, we note that the fine was not imposed upon him in his

quality as a lawyer. Thus, it cannot be regarded as belonging to the

disciplinary sphere of the judicial system. Nor do we find that the

sanction in the present case was more directly connected with the

proceedings than that imposed upon Mr. Weber for having violated the

secrecy of the investigation.

As far as the gravity of the sanction in issue is concerned, we

find that the difference between SFr 500 equivalent to FF 2,000 in the

Weber case and SKr 1,000 equivalent to FF 900 (at the relevant time)

in the present case is not important enough to justify a different

assessment of the gravity of the sanction. Furthermore, the prospects

of the fine being commuted into a prison sentence is also equivalent

in both cases.

Having found that Article 6 applies to the present proceedings,

we could not but conclude that it had not been complied with as the

applicant never had the possibility of presenting his defence at a

public hearing.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

2 July 1988 Introduction of the application

16 September 1988 Registration of the application

Examination of Admissibility

10 October 1990 Commission's decision to declare part

of the application inadmissible and

to invite the Government to submit

observations on the admissibility and

merits

20 December 1990 Submission of the Government's

observations

27 April, 2 May and Submission of the applicant's

15 June 1991 observations in reply

9 January 1992 Commission's decision to declare the

application in part admissible and in

part inadmissible

Examination of the merits

16 May 1992 Consideration of the state of

proceedings

8 July 1992 Consideration of the state of

proceedings

13 October 1992 Commission's deliberations on the

merits

1 December 1992 Commission's deliberations on the

merits and final vote

10 December 1992 Adoption of the Report

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RAVNSBORG v. SWEDEN

RAVNSBORG v. SWEDEN

LEXI