Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32657/96

by Martin DENEV

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

F. MARTINEZ

M.A. NOWICKI

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 12 July 1994 by

Martin Denev against Sweden and registered on 20 August 1996 under file

No. 32657/96;

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, a Swedish and Bulgarian national born in 1938, is

a scientist. He resides in Velingrad, Bulgaria.

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

summarised as follows.

a. The particular circumstances of the case

In or about December 1990-January 1991, the applicant made a

contract with a Swiss limited liability company to sell a quantity of

timber recently cut down on the applicant's land in Sweden.

Contending that the contract had been entered into in Sweden and

that the Swiss company was in breach of the contract, the applicant,

on 24 April 1992, instituted civil proceedings against that company in

the District Court (tingsrätten) of Stockholm.

By decision of 28 January 1993, the District Court dismissed the

case on grounds of lack of jurisdiction. In so doing, the court found

that the applicant had failed to show that the contract had in fact

been entered into in Sweden. For this reason, there existed a

procedural obstacle preventing the court from examining the merits of

the case.

Adducing new evidence aimed at proving that the District Court

was in fact competent to deal with the case, the applicant lodged an

appeal with the Svea Court of Appeal (Svea hovrätt). On

6 September 1993 this court quashed the decision of 28 January 1993 on

formal grounds. The court noted at the outset that, due to the nature

of the case, there was nothing to prevent the applicant from adducing

new evidence at the appellate level. The court went on to find that the

applicant had availed himself of this opportunity to a large extent and

that, consequently, much of the evidence before the appellate court had

never been considered by the court of first instance. Finding this

situation anomalous from the point of view of court hierarchy, the

Court of Appeal ordered that the question of competence be re-examined

by the District Court and that this court take into account also the

newly adduced evidence. Accordingly, the case was referred back to the

latter court.

By decision of 30 May 1994, having held a main hearing entirely

devoted to the preliminary issue whether the court was or was not

competent to deal with the case, the District Court again dismissed the

case on grounds of lack of jurisdiction. As on the previous occasion,

the court found that the applicant had failed to substantiate his

submission that the contract had been entered into in Sweden. On the

contrary, so the court stated, the evidence produced rather supported

the company's contention that the contract had been made during a

telephone conversation held by the parties while in Austria and

Switzerland, respectively. - At the hearing, two witnesses proposed

by the applicant were heard. The applicant himself, however, was not

present, nor was he represented. The summons to appear before the court

had not been served on him personally, but by means of publication

(kungörelsedelgivning). In a written statement later requested by the

Court of Appeal, the Judge Rapporteur of the District Court gave the

following reasons for resorting to that measure.(Translation)

"... On 9 March 1994 [the applicant] was summoned to the

hearing scheduled for 30 May 1994. The summons and a

certificate of service [delgivningskvitto] were sent by

mail to [the applicant], using the Austrian address with

which he had provided the court. Shortly thereafter, the

letter was returned from Austria. There were stamps on the

envelope showing that the addressee had moved. There was no

information on his forwarding address. The envelope was

kept in the court's case file, but appears to have been

removed when the file was sent to the Court of Appeal.

I had my secretary call the Office of the Chancellor of

Justice to check if [the applicant] had notified that

office of any change of address. She was informed by the

staff that their letters were also being returned from

Austria and that they had no knowledge of [the applicant's]

forwarding address.

Leaving a Bulgarian phone number, [the applicant] had

previously made a submission to the District Court that he

be allowed to give evidence by telephone. Using that

number, my secretary - unsuccessfully - tried to make

contact with [the applicant] by phone as well as by

transmitting a facsimile message.

On the basis of this information I concluded that [the

applicant's] place of habitual residence was unknown to the

court and that the prerequisites for resorting to service

by publication had been fulfilled."

The decision to serve the summons by publication was taken on

14 April 1994. According to the minutes of the hearing of 30 May 1994,

the District Court - using the phone number referred to in the above

statement - on two occasions tried to reach the applicant in Bulgaria.

Neither attempt was successful.

The District Court's decision of 30 May 1994 was sent by mail to

the applicant. It was accompanied by a notice of the right to appeal,

according to which an appeal against the decision had to be brought no

later than 20 June 1994.

The applicant's appeal against the decision of 30 May 1994 was

lodged on 12 July 1994. By decision of 13 July 1994, the District Court

dismissed the appeal for having been lodged out of time.

The applicant appealed against the decision of 13 July 1994,

requesting that the Court of Appeal quash the decision and consider his

appeal of 12 July 1994. In the alternative, resorting to extraordinary

remedies, the applicant requested that the Court of Appeal grant him

leave to appeal out of time against the District Court's decision of

30 May 1994 or that the Court of Appeal quash that decision on the

grounds that there had been a grave procedural error on the part of the

District Court. The two latter requests both rested on the contention

that the summons to appear before the District Court had not been

properly served on the applicant. By decision of 23 November 1994,

the Court of Appeal upheld the decision of 13 July 1994. Moreover,

having had regard to the above statement submitted by the Judge

Rapporteur of the District Court, the Court of Appeal found that the

conditions for resorting to service by publication had been fulfilled.

For this reason, so the court stated, there had been no procedural

error in the District Court and the applicant had failed to show that

he was legally excused for his omission to appeal in time.

Leave to appeal against the Court of Appeal's decision was

refused by the Supreme Court (Högsta domstolen) on 7 February 1995.

Apparently invoking the 1972 Claim Settlements Order (Kungörelsen

om statsmyndigheternas skadereglering i vissa fall, 1972:416) and

contending that he had suffered an economic loss as a result of the

allegedly faulty decisions of the courts, the applicant, in or about

May 1995, lodged a claim for compensation with the Office of the

Chancellor of Justice (Justitiekanslern). By letter of 11 May 1995, the

applicant was notified of the fact that the Chancellor had not been

convinced by his arguments and, thus, had decided not to take any

action in respect of his claim.

b. Relevant domestic law

Provisions concerning the service of documents on legal and

natural persons are found in the 1970 Act on Service of Documents

(Delgivningslagen, 1970:428). Sections 15 and 17 of this Act provide,

so far as relevant, the following:

(Translation)

Section 15:

"Should the place of habitual residence of the person on

whom documents are to be served be unknown and should there

be no indication as to his whereabouts, the documents shall

be served on him by publication. ..."

Section 17:

"Service by publication is brought about by keeping the

document available at the authority during a certain period

of time ... and by having published, within ten days from

the decision on service by publication, in Post- och

Inrikes Tidningar [an official gazette] and a local paper,

or one of the two, a notice containing this information and

also relating the main contents of the document. ..."

Provided that the formalities set out in section 17 have been

complied with, the document shall - under section 19, subsection 3 of

the 1970 Act - be considered as duly served when a period of ten days

has elapsed from the decision on service by publication.

Chapter 42, Section 20 of the Code of Judicial Procedure

(Rättegångsbalken) provides that a separate main hearing may be held

in order for the District Court to decide on a preliminary issue.

Chapter 44 of the Code lays down the procedural sanctions to be imposed

on a party who, although properly summoned, fails to present himself

at a court hearing. Section 7 of that Chapter reads as

follows:(Translation)

"If both parties or one of them fails to present himself at

a hearing devoted to the examination of a preliminary

issue, the issue may nevertheless be decided."

The 1972 Claim Settlements Order provides for a system of

voluntary out-of-court settlements of claims for damages directed

against the State. Thus, under the 1972 Order, a person wishing to

claim damages from the State may lodge an application to this effect

with the Chancellor of Justice, who - after investigating the matter -

will decide whether or not to accept the claim. According to Section

8 of the Order, such a decision is not open to an appeal. However, if

dissatisfied with the Chancellor's decision, there is nothing to

prevent the claimant from pursuing his claim by instituting civil

proceedings against the State before a competent District Court.

COMPLAINTS

1. Invoking Article 6 para. 1 of the Convention, the applicant

complains that the preliminary issue - whether the District Court was

at all competent to examine the merits of his case - was not determined

within a reasonable time. He considers that the period to be taken into

account is the period between 24 April 1992 and 7 Februry 1995, i.e.

a period of about two years and nine months.

The applicant further complains that he was not given a hearing

before the District Court and that the Court of Appeal and the Supreme

Court failed to state reasons for the decisions of 23 November 1994 and

7 February 1995, respectively.

2. Also under Article 6 para. 1 of the Convention, the applicant

complains of the fact that, under the 1972 Claim Settlements Order, no

appeal lies against a decision of the Chancellor of Justice not to

accept a claim for damages. He claims that this constitutes a denial

of access to court.

3. Finally, invoking Article 14 in conjunction with Article 6

para. 1 of the Convention, the applicant claims that he has been

discriminated against on account of being a Slav.

THE LAW

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

applicant complains that the preliminary issue - whether the District

Court was at all competent to examine the merits of his case - was not

determined within a reasonable time. He considers that the period to

be taken into account is the period between 24 April 1992 and 7

February 1995, i.e. a period of about two years and nine months.

The applicant further complains that he was not given a hearing

before the District Court and that the Court of Appeal and the Supreme

Court failed to state reasons for the decisions of 23 November 1994 and

7 February 1995, respectively. Article 6 para. 1 (Art. 6-1) reads,

so far as relevant, as follows:

"In the determination of his civil rights ..., everyone is

entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal ..."

It is true that the subject-matter of the proceedings instituted

by the applicant related to his "civil rights" within the meaning of

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

observes, however, that only a procedure which "determines" civil

rights and obligations enjoys the guarantees of the above-mentioned

provision (see, e.g., No. 8000/77, Dec. 9.5.78, D.R. 13, p. 81 and No.

22404/93, Dec. 12.10.94, D.R. 79, p. 79). Recalling the circumstances

of the present case, the Commission finds that none of the courts

involved was called upon to "determine" the question whether - as

alleged by the applicant - the Swiss company was in fact in breach of

contract. On the contrary, as has been amply stated, a procedural

obstacle prevented them from at all examining the merits of the case.

In these circumstances, the Commission considers that the impugned

decisions did not involve a determination of the applicant's civil

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

Convention and that, consequently, this provision fails to apply to the

present complaints. Furthermore, noting the District Court's conclusion

that the evidence adduced rather indicated that the contract had been

made during a telephone conversation held by the parties while in

Austria and Switzerland, it appears that the applicant was not

precluded from having his case determined by courts in those countries.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2. Also under Article 6 para. 1 (Art. 6-1) of the Convention, the

applicant complains of the fact that, under the 1972 Claim Settlements

Order, no appeal lies against a decision of the Chancellor of Justice

not to accept a claim for damages. He claims that this constitutes a

denial of access to court.

The Commission recalls that the 1972 Order provides for a system

of voluntary out-of-court settlements of claims for damages directed

against the State. The Commission also recalls that the rejection by

the Chancellor of Justice of such a claim does not preclude the

claimant from instituting civil proceedings against the State before

the District Court. Concluding, thus, that the applicant did in fact

have access to court, the Commission finds that an examination of this

complaint as it has been submitted does not disclose any appearance of

a violation of the provision invoked.

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.

3. Finally, invoking Article 14 in conjunction with Article 6

para. 1 (Art. 14+6-1) of the Convention, the applicant claims that he

has been discriminated against on account of being a Slav.

Article 14 reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on

any ground such as sex, race, colour, language, religion,

political or other opinion, national or social

origin, association with a national minority,

property, birth or other status."

The Commission finds that the applicant's submissions fail to

substantiate this complaint.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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DENEV v. SWEDEN

DENEV v. SWEDEN

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