Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34072/96

by Bertil SJÖÖ

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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 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 3 May 1996 by

Bertil SJÖÖ against Sweden and registered on 6 December 1996 under file

No. 34072/96;

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 applicant is a Swedish citizen born in 1958. Before the

Commission he is represented by Mr Jan Thörnhammar, a lawyer practising

in Stockholm.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

a. The particular circumstances of the case

By decision of 28 June 1994, the District Court (tingsrätten) of

Helsingborg declared the applicant bankrupt. The administration of the

estate was entrusted to a receiver (konkursförvaltare) appointed by the

court. The receiver requested the Enforcement Office (Kronofogde-

myndigheten) in Örebro to auction two pieces of property owned by the

applicant.

The Enforcement Office scheduled the auction for 14 November

1995. The applicant requested that it be postponed, as he disputed

certain claims made by one of his creditors. On 13 November the

Enforcement Office rejected his request. By decision of 14 November,

the District Court of Örebro dismissed the applicant's appeal due to

lack of standing. The court noted the following:

(Translation)

"Under Chapter 3, Section 1 of the Bankruptcy Act

[Konkurslagen] a debtor who has been declared bankrupt no

longer has a right to dispose of the property belonging to

the bankruptcy estate. Having lost his right of

disposition the debtor may not carry out any legal acts

which are binding on the estate. Instead, it is the

receiver who is in charge of and administers the estate.

The receiver shall sell the assets of the estate and

distribute the money received among the creditors. There

is no general right of the debtor to influence the

administration of the estate, the instances where such a

right exists being specifically regulated. For example,

under Chapter 7, Section 10 of the Bankruptcy Act the

receiver shall consult the debtor before taking action in

more important matters. There is no general rule giving

the debtor a right to appeal against the receiver's

decision to request a forced sale or the Enforcement

Office's decision to fix the date for the auction [...].

Accordingly, [the applicant] has no standing in the matter.

Moreover, there are no reasons for a postponement".

The applicant's appeal against the District Court's decision was

rejected by the Göta Court of Appeal (Göta hovrätt) on 5 December 1995.

The Supreme Court (Högsta domstolen) refused leave to appeal on

11 April 1996.

On 14 November 1995 the auction took place as scheduled. The

Enforcement Office decided to accept one of the bids made for the two

properties, despite the applicant's complaint that the bid was too low.

The applicant appealed against this decision to the District Court of

Örebro which dismissed the appeal on 7 December 1995. Applying a

reasoning similar to that of the decision of 14 November, the court

noted that there was no provision conferring a right on the debtor to

appeal against the forced sale of the real property of the estate.

Accordingly, the applicant was considered to lack standing in the

matter. The District Court's decision was upheld by the Court of

Appeal on 25 January 1996. The Supreme Court refused leave to appeal

on 1 April 1996.

b. Relevant domestic law

Proceedings in bankruptcy are governed by the provisions of the

Bankruptcy Act. Under Chapter 2 of the Act, the decision to declare a

person bankrupt is taken by the relevant District Court. The person

declared bankrupt may appeal against that decision to the Court of

Appeal and, provided that leave to appeal is granted, the Supreme

Court. If an appeal is made to the Court of Appeal no assets of the

bankruptcy estate may be sold before that court has examined the case

(Chapter 8, Section 3 of the Act, which contains a few exceptions).

The main effect of a bankruptcy decision is that the debtor no

longer has a right to dispose of the property belonging to the

bankruptcy estate and may not enter into any agreements binding on the

estate (Chapter 3, Section 1 of the Act). Instead, a court-appointed

receiver is in charge of the estate. His administration is under the

supervision of the local Enforcement Office (Chapter 1, Section 3).

If appropriate, the receiver shall consult the debtor in more

important matters (Chapter 7, Section 10 of the Act). However, there

is no right of the debtor to appeal against decisions taken by the

receiver in the administration of the bankruptcy estate. The property

of the estate shall normally be sold as soon as possible (Chapter 8,

Section 1). The receiver may request that real property be sold at an

auction (Chapter 8, Section 6). The auction is conducted by the

Enforcement Office (Chapter 8, Section 1 of the Code of Enforcement

(Utsökningsbalken)) which, inter alia, fixes the date of the auction

and decides which bid to accept (Chapter 12 of the Code). The

bankruptcy debtor has no standing to appeal against such decisions.

When the assets of the estate have been sold and the revenues

have been distributed among the creditors, the receiver shall submit

a final report on the administration of the estate to the Enforcement

Office (Chapter 13, Sections 1-3 of the Act). The debtor may protest

against the report by bringing a civil suit for damages in the ordinary

courts. The receiver is responsible for losses incurred due to

intentional or negligent conduct in the administration of the estate

(Chapter 13, Section 7 and Chapter 17, Sections 1 and 2).

COMPLAINTS

The applicant complains that he did not have access to court for

the determination of his request for the postponement of the auction

and his complaint that the bid accepted by the Enforcement Office was

too low. He maintains that he should have standing to appeal against

decisions which concern the sale of his property. Allegedly, the

possibility to take civil action for damages against the receiver is

not a sufficient alternative. The applicant invokes Articles 6 and 14

of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains that he did not have access to court for

the determination of his request for the postponement of the auction

and his complaint that the bid accepted by the Enforcement Office was

too low. He invokes Article 6 para. 1 (Art. 6-1) of the Convention

which, in relevant parts, provides as follows:

"1. In the determination of his civil rights and

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

by ... [a] tribunal ..."

The Commission first notes that the challenged decisions

concerned the forced sale of property owned by the applicant.

Consequently, they involved a determination of the applicant's "civil

rights" within the meaning of Article 6 para. 1 (Art. 6-1).

The Commission recalls, however, that the applicant had been

declared bankrupt by a District Court decision of 28 June 1994 and that

the property was sold to cover his debts.

According to the case-law of the Commission and of the European

Court of Human Rights, the right of access to court is not absolute but

may be subject to limitations (cf., e.g., Eur. Court HR, Ashingdane v.

the United Kingdom judgment of 28 May 1985, Series A no. 93). In the

majority of the Contracting States, the right of access to court is

regulated in respect of, inter alia, persons declared bankrupt. Such

regulations are not in principle contrary to Article 6 (Art. 6) of the

Convention where the aim pursued is legitimate and the means employed

to achieve the aim are proportionate (cf. No. 12040/86, Dec. 4.5.87,

D.R. 52, p. 269).

The Commission finds that the applicant's lack of standing to

appeal against the decisions in question served the legitimate aims of

protecting the rights of his creditors and safeguarding the proper

administration of the bankruptcy estate. Recalling that the applicant

had a right to appeal against the decision to declare him bankrupt and

that he may bring a civil action for damages against the receiver of

the estate in the ordinary courts, the Commission considers that the

above-mentioned limitations on his access to court were not

disproportionate to those legitimate aims. In these circumstances, the

Commission finds no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

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. As the decisions taken concerned the sale of his property, the

applicant further claims that the lack of access to court constituted

a violation of his property rights under Article 1 of Protocol No. 1

(P1-1) of the Convention.

The Commission considers, however, that this complaint is in

substance identical to that already examined and rejected in the

context of Article 6 para. 1 (Art. 6-1). Consequently, no separate

issue arises under Article 1 of Protocol No. 1 (P1-1) (cf. Eur. Court

HR, British-American Tobacco Company Ltd v. the Netherlands judgment

of 20 November 1995, Series A no. 331, p. 29, para. 91).

3. Finally, invoking Article 14 (Art. 14) of the Convention, the

applicant claims that the limitations on his access to court

discriminates against him as a debtor since, allegedly, no such

limitations apply in regard to other parties with interests in the

bankruptcy proceedings.

However, having regard to its finding under Article 6 para. 1

(Art. 6-1) that the limitations in question were justified, the

Commission considers that the present complaint does not disclose any

appearance of a violation of the right protected by Article 14

(Art. 14).

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

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

Secretary President

to the Second Chamber of the Second Chamber

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SJÖÖ v. SWEDEN

SJÖÖ v. SWEDEN

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