Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29105/95

by Wilhelm LÄNDSTRÖM

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

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 4 July 1995 by

Wilhelm Ländström against Sweden and registered on 8 November 1995

under file No. 29105/95;

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 19 December 1996 and the observations in reply submitted

by the applicant on 18 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1919 and residing in

Landvetter. Before the Commission he is represented by Mr Arne Bodén,

Farsta.

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

summarised as follows.

a. The particular circumstances of the case

The applicant owns a dog, a male German Shepherd. In May and

June 1994, some neighbours of the applicant reported to the police

authority in Göteborg that they had been attacked by the dog. However,

on 14 September 1994 the police authority decided not to pursue the

matter as a lack of supervision of the dog could not be established.

Later, a neighbour reported another attack of the dog to the

police. Apparently, on 23 September 1994 the neighbour's six year old

son had been collecting mail from the mailbox some 50 metres from the

neighbour's house when the dog had rushed towards the boy and had

jumped at him so that he fell to the ground. Another neighbour had

come to rescue the boy and the dog had attacked both the boy and that

neighbour.

Following an investigation of the matter, the police authority

decided, on 30 September 1994, to take the dog under its control and

the same day the dog was taken from the applicant's home. The dog was

examined by a veterinary who recommended a mental test. Such a test

was performed the same day by an expert who recommended that the dog

be destroyed immediately as it was very nervous and aggressive. The

dog was inclined to behave aggressively in any tight situation and

therefore could be very dangerous. At the applicant's request, a new

test was performed by two instructors from the police dog squad. They

recommended the dog to be destroyed immediately as it showed unusual

reactions of fear and very strong nervous reactions. It also showed

an aggressive behaviour, which indicated that it could be dangerous in

tight situations.

By decision of 17 October 1994, the police authority ordered the

dog to be destroyed in accordance with Section 3, subsection 2 of the

Act on the Supervision of Dogs and Cats (Lag om tillsyn över hundar och

katter, 1943:459).

The applicant appealed to the County Administrative Board

(länsstyrelsen) of the County of Göteborg and Bohus. On

17 November 1994 the Board rejected the appeal. It noted that,

although the attacked persons had not been seriously injured, the

applicant's dog had shown a tendency to bite people. The tests

performed showed that the dog was nervous and that it could be

dangerous in tight situations. In striking a balance between the

applicant's interest in keeping the dog and the neighbours' interest

in having a safe neighbourhood, the Board, having regard, inter alia,

to the dog's mental status, found that the dog should be destroyed.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) in Göteborg and requested that an oral hearing be held.

He contested the accusations made by the neighbours and claimed that

they were lying about what had happened on the different occasions and

that the dog had not bitten anyone.

By letter of 5 December 1994, the appellate court informed the

applicant that it would not hold an oral hearing, as it was deemed

unnecessary. The applicant was given an opportunity to complete his

appeal in writing before 14 December.

On 27 December 1994, the appellate court formally decided not to

hold an oral hearing and further rejected the appeal. It agreed with

the conclusions made by the County Administrative Board.

The applicant appealed to the Supreme Administrative Court

(Regeringsrätten), maintaining his previous arguments and submissions.

On 20 February 1995 the court refused the applicant leave to appeal.

By decision of 10 March 1995, the police authority allowed the

applicant to take the dog home for two weeks to have it examined by a

psychologist. The applicant never returned the dog and it has since

been kept in hiding.

On 15 May 1995 the Supreme Administrative Court rejected the

applicant's request that the case be reopened.

The applicant also reported the proceedings to the Parliamentary

Ombudsman (Justitieombudsmannen). By decisions of 2 June and

19 July 1995, the Ombudsman found no reason to take any action in the

matter.

On 2 August 1995 the Supreme Administrative Court rejected the

applicant's further request for a reopening of the case.

b. Relevant domestic law

Sections 2 and 3 of the Act on the Supervision of Dogs and Cats

provide, in relevant parts, as follows:

(Translation)

Section 2:

"Dogs which have shown a tendency to bite people or

domestic animals are not allowed outdoors unleashed unless

they are kept within grounds which have been adequately

fenced and to which unauthorised persons do not have

access. ..."

Section 3:

"If there is a lack of supervision of the dog, the police

authority may decide on measures required by the

circumstances, such as requiring that the dog wear a muzzle

or be chained or fenced in. ...

In respect of a dog referred to in Section 2, the police

authority may decide that the dog shall be placed under its

control. After the dog has been placed under such control,

the owner may have no access to the dog without the

permission of the authority. The authority shall, after an

evaluation of the dog, have the dog sold or destroyed or

take care of the dog temporarily. ..."

COMPLAINTS

The applicant complains that he did not have an oral hearing in

the Administrative Court of Appeal. He invokes Article 6 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 July 1995 and registered on

8 November 1995.

On 16 October 1996 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's observations were submitted on 19 December 1996.

The applicant replied on 18 March 1997, after an extension of the

time-limit fixed for that purpose.

THE LAW

The applicant complains that he did not have an oral hearing in

the Administrative Court of Appeal. He states that he wished to

examine witnesses before the court. He invokes Article 6 (Art. 6) of

the Convention which, in so far as relevant, reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

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

In agreement with the parties, the Commission finds that

Article 6 para. 1 (Art. 6-1) of the Convention applies to the dispute

in the present case.

The respondent Government submit that the applicant did not

express his wish to examine witnesses to the Administrative Court of

Appeal. Nevertheless, that court acted as the first and only judicial

organ in the case as the applicant was refused leave to appeal to the

Supreme Administrative Court. Furthermore, the appellate court

reviewed the case in its entirety. However, it did not hold an oral

hearing. The Government therefore admit that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as the

applicant did not receive a public hearing in the proceedings in

question. Accordingly, the application should be declared admissible.

The applicant states, in view of the Government's submissions,

that there is no need for him to submit further observations in the

case.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The

Commission concludes, therefore, that the application is not manifestly

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

the Convention. No other grounds for declaring it inadmissible have

been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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LÄNDSTRÖM v. SWEDEN

LÄNDSTRÖM v. SWEDEN

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