Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30526/96

by Ervin and Olga DE LACZAY

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 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 19 April 1995 by

Ervin and Olga DE LACZAY against Sweden and registered on 20 March 1996

under file No. 30526/96;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 16 July 1997 and the observations in reply submitted by

the applicants on 8 August and 8 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, a United States citizen, was born in 1909

and died on 5 December 1995. The second applicant, the first

applicant's sister, was born in 1911. A Canadian citizen, she resides

in Montreal.

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

summarised as follows.

The applicants' brother, Tibor de Laczay, was employed by the

Swedish company AGA between 1946 and 1967. He was in charge of the

management and exploitation of certain radio and television patents.

Agreements reached between Tibor de Laczay and AGA in 1961 stated that,

in addition to a monthly salary, he received 15 per cent of the

continuous profits on patent licensing contracts concluded by him on

behalf of AGA. According to the agreements, he was entitled to his

share of the profits even if his employment at AGA would end before the

expiration of the licensing contracts. Any disputes arising out of the

agreements between Tibor de Laczay and AGA were to be settled by

arbitration by the Swedish Technical and Industrial Institute of

Arbitration (Sveriges Tekniskt Industriella Skiljedomsinstitut;

hereinafter "the Arbitration Board").

Tibor de Laczay died on 10 June 1967 and his wife, Irma de

Laczay, on 10 December 1967. Thereafter, the estates, i.e. the present

applicants and Irma de Laczay's two brothers, claimed that, under the

terms of the 1961 agreements, they were entitled to Tibor de Laczay's

share of the continuous profits on contracts still in force. AGA,

however, maintained that the agreements did not entail a right to a

share of the profits after Tibor de Laczay's death. The dispute was

brought before the Arbitration Board in December 1971. The estates

requested that AGA be ordered to account for profits accrued after

31 December 1966 and the estates' share of those profits.

By award of 25 October 1972, the Arbitration Board found that the

wording of the 1961 agreements and the other circumstances of the case

did not convincingly show that there was a right to profit shares after

Tibor de Laczay's death. Noting that AGA had accounted for profits

accrued until 30 June 1967, the board accordingly rejected the estates'

request.

In December 1972 the estates lodged a protest action

(klandertalan) against the award in the District Court (tingsrätten)

of Södra Roslag. Maintaining that a representative of AGA had given

false evidence before the Arbitration Board and that AGA had submitted

falsified documents to the board, the estates claimed, inter alia, that

the award should be declared null and void. By judgment of 15 October

1974, the District Court rejected their claim. The judgment was upheld

on appeal by the Svea Court of Appeal (Svea hovrätt) on 14 November

1978. The appellate court found that, under the Arbitration Act (Lag

om skiljemän, 1929:145), an arbitration award could not be declared

null and void on account of criminal or other undue conduct during the

arbitration proceedings, including the giving of false evidence or the

submission of falsified documents. On 19 March 1982 the Supreme Court

(Högsta domstolen) refused leave to appeal and on 5 June 1985 it

refused to reopen the case.

On 21 March 1983 the estates brought an action for damages

against AGA, two of its representatives and a third person in the

District Court, basically relying on the same grounds as in the protest

action, i.e. that false evidence and falsified documents had been

invoked by AGA before the Arbitration Board which had led the Board to

take an erroneous decision. Following a preparatory hearing on

10 December 1985, the District Court, on 5 February 1986, decided that

the claims against the third person should be dealt with as a separate

case. This case was dismissed on formal grounds on 16 March 1989.

On 16 September 1986 the remaining defendants requested that the

estates' claims should be dismissed as they had already been examined

by the Arbitration Board and were thus res judicata. The District Court

held a further preparatory hearing on 11 September 1989.

On 9 March 1990 the District Court dismissed the action for being

res judicata. However, the estates appealed and on 28 February 1991 the

Court of Appeal quashed the District Court's decision, finding that the

claims for damages had not been examined on the merits by the

Arbitration Board or by the District Court in the protest proceedings.

Accordingly, the case was referred back to the District Court for re-

examination. On 11 July 1991 the Supreme Court (Högsta domstolen)

refused leave to appeal against the appellate court's decision.

Preparatory hearings were held by the District Court on

28 October and 6 November 1992. Subsequent to the estates' withdrawal

of their claims against the two AGA representatives, the court, on

8 March 1993, rejected these claims.

Following a further preparatory hearing on 11 January 1994 and

main hearings on 15-20 June 1994, the District Court, by judgment of

15 July 1994, rejected the estates' claims against AGA. The court

considered that it had not been established that the representative of

AGA before or during the arbitration proceedings had known or ought to

have known that evidence given or documents invoked before the

Arbitration Board were false. The estates had thus failed to show any

negligence for which AGA could be held responsible. The court further

found one of the estates' claims to be time-barred.

The Parliamentary Ombudsman (Justitieombudsmannen) examined the

District Court's handling of the case at the request of counsel for the

estates. In his decision of 29 August 1994, the Ombudsman heavily

criticised the court for the delay notwithstanding the special

circumstances of the case. In particular, the Ombudsman noted that it

had taken the court three and a half years to decide on the res

judicata objection raised by the defendants.

On 2 August 1994 the estates appealed to the Court of Appeal. The

court held preparatory hearings with the parties' lawyers on 7 and

29 February 1996. Main hearings in the case were held on 23-27 January

1997. By judgment of 21 February 1997, the Court of Appeal upheld the

District Court's judgment.

On 14 July 1997 the Supreme Court refused leave to appeal.

COMPLAINTS

The applicants claim that, in the case concerning damages, they

have not had a fair hearing within a reasonable time as required by

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 April 1995 and registered

on 20 March 1996.

On 9 April 1997 the Commission (Second Chamber) decided to bring

the application to the notice of the respondent Government and to

invite them to submit written observations on its admissibility and

merits. The Government were asked to deal with the question whether,

in the case concerning damages, the applicants had had a hearing within

a reasonable time.

The Government's observations were submitted on 16 July 1997,

after an extension of the time-limit fixed for that purpose. The

applicants replied on 8 August and 8 September 1997.

THE LAW

The Commission first observes that the first applicant died on

5 December 1995. The Commission has not been able to obtain a statement

from his legal successors as to whether they wish to pursue the

application on his behalf. However, as the application is identical for

the two applicants, the Commission considers that it is not necessary

to take a separate decision, under Article 25 (Art. 25) of the

Convention, as to whether or not to examine the complaints in regard

to the first applicant. Therefore, the Commission will deal with the

application in the same way as if it had been pursued by his legal

successors (cf. No. 6166/73, Dec 30.5.75, D.R. 2, p. 58 at p. 61).

The applicants claim that, in the case concerning damages, they

have not had a fair hearing within a reasonable time. They invoke

Article 6 para. 1 (Art. 6-1) of the Convention which provides, in

relevant parts, as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair ... hearing

within a reasonable time ..."

As regards the alleged unfairness of the proceedings, the

applicants state that the presiding judge of the Court of Appeal on

several occasions expressed his agreement with the views of AGA and

that, consequently, that court cannot be considered to have been

impartial.

The Commission considers, however, that the applicants'

submissions fail to substantiate this complaint.

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.

With respect to the length of the proceedings, the respondent

Government submit that the case was extremely comprehensive and raised

complex questions of fact and law. Still, in view of the time that

elapsed before the District Court held a main hearing and delivered its

judgment and having regard to the opionion of the Parliamentary

Ombudsman and the other circumstances of the case, the Government do

not object to the application being declared admissible. Further, with

regard to the merits of the case, the Government do not argue that it

was heard within a reasonable time by the District Court, but leave

this question for the Commission to decide. However, the Government do

not see any reason to criticise the subsequent proceedings in the Court

of Appeal and the Supreme Court.

The applicants state that the case did not involve any complex

questions, but was delayed by the District Court's failure to decide

on procedural questions in due time and its otherwise inactive handling

of the case. Allegedly, the time that elapsed before the Court of

Appeal - two and a half years - was also excessive.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of this complaint is

required.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicants' complaint that the case concerning damages was

not determined within a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

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

Secretary President

to the Second Chamber of the Second Chamber

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DE LACZAY v. SWEDEN

DE LACZAY v. SWEDEN

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