Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34825/97

by Lennart BERGLUND and 92 Others

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 November 1996

by Lennart BERGLUND and 92 Others against Sweden and registered on

11 February 1997 under file No. 34825/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are listed in the annex to the decision. Before

the Commission they are represented by the first applicant, an

economist residing in Säter.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 28 September 1994 the ferry M/V Estonia sank in the Baltic

Sea, resulting in 852 dead or missing persons, including relatives of

the applicants.

In the autumn of 1994 the Swedish Government entrusted the

National Maritime Administration (Sjöfartsverket) with the task of

investigating the possibilities and consequences of bringing the

victims of the disaster ashore. Moreover, an Ethical Council was

appointed to advise the Government on the ethical problems that arose

due to the disaster.

Following the suggestions of the Administration and the Council,

the Government decided, on 15 December 1994, that neither the wreck of

M/V Estonia nor the bodies of the victims should be salvaged, that the

place where the wreck was situated should be regarded as a burial

ground and that the wreck should be covered in order to secure the

peace of the burial ground. The Administration was instructed to

investigate the matter and make suggestions as to the covering and

surveillance of the wreck.

Following the National Maritime Administration's report of

10 February 1995, the Government entrusted, on 2 March 1995, the

Administration with the task of covering the wreck with concrete and

ordered it to invite tenders for the project. In its decision, the

Government recalled the status of the place of the wreck as a burial

ground and stated that, in realising the project, regard should be had

to environmental effects.

On 23 February 1995 an agreement concerning the wreck of M/V

Estonia was signed by Sweden, Finland and Estonia. According to the

Agreement, the wreck and the surrounding area shall be regarded as a

final place of rest for the victims of the disaster, and the wreck

shall not be raised. According to Article 4 of the Agreement, the

Contracting Parties undertake to enact national legislation aimed at

the criminalisation of any activities disturbing the peace of this

final place of rest, in particular any diving or other activities with

the purpose of recovering victims or property from the wreck or the sea

bed. Further, a Contracting Party may take measures to cover the wreck

or to prevent pollution of the marine environment from the wreck.

In accordance with Article 4 of the Agreement, the Swedish

Parliament subsequently adopted the Act on the Protection of the Peace

of the Grave at the Wreck of M/V Estonia (Lag om skydd för gravfriden

vid vraket efter passagerarfartyget Estonia, 1995:732), which, inter

alia, provides for criminal sanctions against the activities prohibited

by that Article. The Act entered into force on 1 July 1995.

In January 1996 the National Maritime Administration signed a

contract with an international consortium of construction companies

concerning the covering of M/V Estonia. The work, which was to be

carried out in steps, started with the strengthening of the sea bed

with stones and the covering of the area around the wreck with textile.

On 16 January 1996 the District Court (tingsrätten) of Stockholm

gave judgment in a case brought by seven of the present applicants

against the Swedish State. In order for the victims to be buried as,

allegedly, they would have wished and to facilitate the procurement of

further evidence needed in future proceedings regarding the disaster,

the plaintiffs requested that the State be ordered to search and

salvage the bodies or, in the alternative, to assist the relatives in

such efforts. The plaintiffs also requested that the State be

prohibited from covering the wreck or taking other similar measures.

Finally, they sought the court's confirmation of the relatives' right

to search and salvage the bodies. They invoked customary law and

Articles 6, 8, 9, 13, 14 and 17 of the Convention.

The District Court rejected the plaintiffs' claims. It found

that neither customary law nor the Convention entailed an obligation

on the State to take the measures invoked by the plaintiffs or to

refrain from covering the wreck. Moreover, the relatives had no legal

right to search and salvage the bodies. The court examined the case

also under Chapter 15, Section 3 of the Code of Judicial Procedure

(Rättegångsbalken), according to which the court may prohibit someone

from taking certain action if it is shown that such action could affect

claims which have been or might be brought in a lawsuit or other

proceedings by the person requesting the court's intervention against

the person to whom the prohibition would apply. However, the District

Court found that the plaintiffs did not have such claims against the

State. Further, the need for evidence in proceedings against other

parties did not constitute a ground for issuing a prohibition against

the State.

The seven plaintiffs appealed against the District Court's

judgment to the Svea Court of Appeal (Svea hovrätt). Their action was

joined by 135 intervenors, of whom 75 are applicants in the present

case. By judgment of 29 March 1996, the appeal was rejected.

Thereafter, an appeal was made to the Supreme Court (Högsta

domstolen). A further four intervenors, all applicants in the present

case, joined. On 15 May 1996 the Supreme Court refused leave to

appeal.

By decision of 19 June 1996 the Government postponed further work

on the covering of the wreck until further notice. The reason given

for the postponement was that a Joint Accident Investigation

Commission, composed of representatives of Swedish, Finnish and

Estonian authorities and entrusted with the task of examining the cause

of the disaster, had not finalised its investigation and the covering

of the wreck would render it impossible to obtain further evidence.

In December 1997 the Joint Accident Investigation Commission

presented its final report on the M/V Estonia disaster.

COMPLAINTS

1. The applicants complain, under Article 8 of the Convention, that

their right to respect for their private and family life has been

violated by the decisions taken by the Swedish authorities. They argue

that the Swedish Parliament and Government cannot claim a right under

para. 2 of Article 8 to prevent relatives from searching and salvaging

the bodies of the victims of the M/V Estonia disaster.

2. The applicants claim that the same decisions have also violated

their right to freedom of religion under Article 9 of the Convention

which, allegedly, includes a right to decide on the burial of their

relatives.

Furthermore, the applicants claim that the Swedish authorities

have disregarded, in an arbitrary manner, the recommendations on how

to handle disasters which have been issued by the National Police Board

and the National Board of Health and Welfare. In so doing, the

authorities have discriminated against the victims of the M/V Estonia

disaster and their relatives. In this respect, the applicants invoke

Article 14 of the Convention.

Finally, the applicants claim that the decisions of the Swedish

authorities have destroyed their rights under the Convention in

violation of Article 17 of the Convention.

THE LAW

1. The applicants complain that they have been prevented from

searching and salvaging the bodies of their dead relatives in violation

of their right to respect for their private and family life. They

invoke Article 8 (Art. 8) of the Convention which provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health and morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that the M/V Estonia disaster resulted in

a very large number of dead or missing persons. Although it is not

known how many of the relatives of these persons support or are opposed

to the measures chosen by the Swedish authorities, i.e. the covering

of the wreck with concrete and the criminalisation of any diving or

other activities aimed at recovering victims or property, it appears

that there are different views among the relatives as to what should

be done with the wreck. Thus, any decision on this subject would

involve the balancing of diverging interests. The measures chosen

appear to aim primarily at protecting the wreck from plundering but

also at securing the peace of the wreck which is to be considered as

a burial ground. Before deciding that these aims should be achieved

by the above measures, the Government ordered the National Maritime

Administration to investigate the matter and appointed an Ethical

Council to give advice on the ethical problems that arose due to the

disaster. Furthermore, the Agreement signed by Sweden, Finland and

Estonia on 23 February 1995 stipulated that the above-mentioned

activities should be criminalised and provided for the possibility of

covering the wreck.

Noting that it is hardly possible to satisfy the wishes of all

relatives and having regard to the margin of appreciation afforded to

the State under Article 8 (Art. 8) of the Convention, the Commission

considers that the measures taken by the Swedish authorities in regard

to the M/V Estonia disaster do not show any lack of respect for the

applicants' rights under the provision in question (cf. No. 31653/96,

Bendréus v. Sweden, Dec. 8.9.97).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants claim that the Swedish authorities have also

violated their right to freedom of religion under Article 9 (Art. 9)

of the Convention, that the authorities have discriminated against the

victims and their relatives in disregard of Article 14 (Art. 14) of the

Convention and that the applicants' rights under the Convention have

been destroyed in violation of Article 17 (Art. 17) of the Convention.

However, having regard to its above finding in respect of the

applicants' complaints under Article 8 (Art. 8) of the Convention, the

Commission finds that an examination of the present complaints does not

disclose any appearance of a violation of the Articles invoked.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second ChamberANNEX

LIST OF APPLICANTS

Surname First name

Berglund Lennart

Barasinski Peter

Calamnius Bertil

Lundkvist Odd

Svensson Samuel

Köpsén Monica

Långström Harriet

Norlin Örjan

Arléus Birgit

Karlsson Maria

Höglund Maria

Källberg Etel

Korpi Therese

Malmgren Leif

Malmgren Anders

Nord Sören

Östlund Gunnar

Gustavsson Thomas

Leijon Kaj Bertil

Fürst David

Lundström Gunnar

Timmerman Zaida

Iwarzon Irma

Ömar Anne-Christin

Ömar Mona-Lisa

Gustafsson Johnny

Engberg Berit

Engberg Gunnar

Nilsson David

Andersson Ingvar

Andersson Jan-Erik

Westerdahl Marielle

Jansson Jan-Erik

Jonson Arne

Egeryd Gunilla

Ömar Walter

Davidson Britt

Ericsson Carl Harald

Nyberg Katarina

Flodin Lennart

Lindroos Runar

Kumlin Ingvar

Kumlin Thomas

Bergström Monica

Bergström Maj-Lis

Grönhage-Olofson Ann-Mari

Grönhage Leif

Gustavsson Kerstin

Thomsen Eva

Wilkenson Kerstin

Lyrén Siri

Berg ÅsaSurname First name

Hedman Randolf

Hedman Carin

Burman Karl

Kumlin Karin

Gustafsson Arne

Hagman Anders

Bergström Maria

Bergman Gunnel

Hagman Madeleine

Hagman Mats

Henriksson Kerstin

Tann Heikki

Westerlund Kenneth

Westerlund Madeleine

Carlsson Lars-Arne

Håkansson Lars

Johansson Ulf

Lundström Kristina

Marttinen Kim

Ömar Eva-Lena

Ömar Åse-Lill

Gustafsson Monica

Johnsen Gide

Lundström Anna

Johnsen Mariann

Berglund Birgitta

Andersson Leif

Ericson Gunnel

Andersson Lena

Grönhage Mona

Ramsell Anneli

Grund Göran

Andersson Maria

Andersson Per-Olof

Norlin Folke

Johnsen Rut

Johnsen Lars

Apelman Agneta

Düke Eva

Düke Bertil

Gustafsson Else-Marie

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BERGLUND AND 92 OTHERS v. SWEDEN

BERGLUND AND 92 OTHERS v. SWEDEN

LEXI