Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31682/96

by Jan BEDZUH and Peter MADSEN

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 17 February 1996

by Jan Bedzuh and Peter Madsen against Sweden and registered on

31 May 1996 under file No. 31682/96;

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 first applicant, a Swedish citizen born in 1933, is a

pensioner. The second applicant, a Swedish citizen born in 1957, is

a farmer. They reside in Helsingborg and Kågeröd, respectively.

Before the Commission they are represented by their lawyer,

Mr Göran Ravnsborg, Lund.

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

summarised as follows.

Between June and November 1989 the first applicant was the

managing director and deputy member of the board of a company,

Skandinavisk Metallförmedling AB (hereinafter "the company"), which

traded in gold. Between June 1989 and June 1990 the second applicant

was a member of the board and the sole owner of the shares of the

company.

After a tax audit of the company, the County Tax Authority

(skattemyndigheten) of the County of Malmöhus, by decisions of

27 February and 14 May 1990, refused the company certain deductions

claimed by it in its VAT declarations for the period May - October

1989. The refused deductions amounted to 3,962,857 Swedish crowns

(SEK). This amount was payable to the State. In addition, the company

was liable to pay 792,570 SEK as a special charge (tax supplement;

skattetillägg), as it was deemed to have supplied false information in

its VAT declarations.

On 9 June 1992 the County Administrative Court (länsrätten) of

the County of Malmöhus rejected the company's appeal against the above

decisions. The company made a further appeal to the Administrative

Court of Appeal (kammarrätten) in Göteborg.

On 17 June 1992 the company was declared bankrupt by the District

Court (tingsrätten) of Landskrona.

By an application (stämningsansökan) filed with the District

Court of Helsingborg on 22 June 1994, the State represented by the

County Tax Authority claimed that the applicants should be held

personally liable to pay the company's VAT debt.

Between July and September 1994, the applicants lodged several

statements with the District Court in which they demanded that the

State's claim be rejected and made several procedural claims, inter

alia that an expert should be appointed and that the company should be

allowed to intervene in the case on the applicants' side. The

applicants' requests were rejected by the District Court on

10 October 1994.

By judgment of 21 June 1995, the Administrative Court of Appeal

found in favour of the company and accordingly decided that it was

allowed to make the above deductions. The court further reversed the

decision on the tax supplement.

The National Tax Board (Riksskatteverket) appealed to the Supreme

Administrative Court (Regeringsrätten) which, on 30 August 1995,

granted leave to appeal.

On 16 October 1995 the District Court declared the case

concerning the applicants' personal liability dormant pending the

outcome of the tax case in the Supreme Administrative Court. However,

upon the applicants' appeal, the Court of Appeal (hovrätten) of Skåne

and Blekinge decided, on 31 October 1995, that the District Court

should continue its examination.

On 14 December 1995 the District Court therefore held a

preparatory hearing at which the applicants and their representatives

- the lawyer T.T. for the first applicant and the lawyer B.R. for the

second applicant - were present. Following the hearing, the District

Court again declared the case dormant. The court found that the case

concerning personal liability obviously could not be determined until

the Supreme Administrative Court had decided on the underlying tax

question. This decision was upheld by the Court of Appeal on

10 January 1996. No appeal lay from the appellate court's decision.

On 3 July 1996 the Supreme Administrative Court upheld the

judgment of the Administrative Court of Appeal. Accordingly, the

company was not liable to pay the VAT amount in question or the tax

supplement.

As a consequence of the Supreme Administrative Court's finding,

the State withdrew its case concerning the applicants' personal

liability. The applicants, however, requested that the District Court

hold a hearing and deliver a judgment in the case. They further

challenged the impartiality of L.-O. L., the judge in charge of the

case, and requested that the State be ordered to pay the applicants'

legal costs. As regards the judge's alleged partiality, the applicants

maintained that he had acted in favour of the State by declaring the

case dormant and by refusing them several procedural rights guaranteed

by Article 6 of the Convention, including the right to a fair hearing

within a reasonable time. As compensation for legal costs, the

applicants, inter alia, claimed 277,500 SEK for work carried out by

Mr Ravnsborg. In respect of this claim, they stated that several

necessary claims of a procedural nature had been made to the District

Court but the court had been unable to understand or correctly

determine them. In these circumstances, the writs prepared by

Mr Ravnsborg and sent to the court should be considered as teaching

material which the applicants were not obliged to submit free of

charge.

On 23 July 1996 the District Court, sitting with a different

judge, rejected the applicants' challenge to judge L.-O. L.'s

impartiality in the case. It recalled that, following the applicants'

complaints, it had reached the same conclusion on four previous

occasions. This decision was upheld by a final decision of the Court

of Appeal on 30 September 1996.

On 5 December 1996 the applicants were summoned to the District

Court's hearing, scheduled for 29 January 1997. Due to judge

L.-O. L.'s illness, the hearing was later postponed and eventually took

place on 19 February 1997. At that hearing, the State withdrew its

claim for the applicants' personal liability.

By judgment of 19 February 1997, the District Court dismissed the

State's claim. As regards legal costs, the applicants' claim was

granted in so far as it concerned T.T. and B.R., the lawyers who had

acted as the applicants' authorised representatives. However, the work

carried out by Mr. Ravnsborg was considered to have been unnecessary

and the applicants' claim in this respect was accordingly rejected.

Apparently, the applicants did not appeal against the District Court's

judgment to the Court of Appeal.

COMPLAINTS

1. The applicants complain that in the District Court they did not

have a fair hearing within a reasonable time by an independent and

impartial tribunal as required by Article 6 of the Convention. The

District Court's decision to declare the case dormant also violated the

applicants' rights under Articles 3 and 14 of the Convention and

Article 1 of Protocol No. 1 to the Convention. Moreover, the

applicants had no effective remedy under Article 13 of the Convention

against that decision, as the Court of Appeal failed to redress the

alleged violations of the applicants' rights.

2. The applicants further complain, under Article 6 of the

Convention, of the District Court's decision not to award them any

compensation for the work carried out by Mr. Ravnsborg.

THE LAW

1. The applicants claim that the case in the District Court

concerning personal liability was not determined within a reasonable

time in accordance with Article 6 (Art. 6) of the Convention.

Furthermore, the District Court's decision to declare the case dormant

despite the fact that the National Tax Board could not produce any

substantial evidence to support its claim shows that that court was not

independent and impartial and that the hearing was not fair as required

by Article 6 (Art. 6) of the Convention. The District Court's decision

also violated the applicants' rights under Articles 3 and 14

(Art. 3, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1)

to the Convention. Moreover, the applicants had no effective remedy

under Article 13 (Art. 13) of the Convention against that decision, as

the Court of Appeal failed to redress the alleged violations of the

applicants' rights.

The Commission will first consider the applicants' complaints

under Article 6 (Art. 6) of the Convention, the relevant parts of which

read as follows:

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

is entitled to a fair ... hearing within a reasonable time

by an independent and impartial tribunal..."

The Commission recalls that the proceedings in the District Court

were dormant pending the outcome of the tax case in the administrative

courts. It is clear that the District Court could hold the applicants

personally liable for the company's VAT debt only if such a debt had

first been established by the administrative courts. The District

Court's decision of 14 December 1995 to declare the personal liability

case dormant until the Supreme Administrative Court had decided on the

underlying tax question cannot therefore be considered to have been

without foundation. The Supreme Administrative Court decided the tax

case no more than between six and seven months after the decision of

14 December 1995. Following the Supreme Administrative Court's judgment

of 3 July 1996, seven and a half months passed before the District

Court held a hearing and gave judgment. During these months, the

District Court and the Court of Appeal determined the applicants'

challenge to the impartiality of the judge in charge at the District

Court. Further, the hearing had to be postponed for some time as that

judge had fallen ill. In these circumstances, the Commission

cannot find that the proceedings in the District Court, whether before

or after the Supreme Administrative Court's judgment, went beyond what

may be considered reasonable. Thus, the complaint concerning the length

of these proceedings does not disclose any appearance of a violation

of Article 6 (Art. 6) of the Convention.

The Commission notes that the applicants also complain of other

violations allegedly caused by the District Court's decision of

14 December 1995 and the length of the proceedings in that court.

Having regard to its finding under Article 6 (Art. 6) of the

Convention, the Commission considers that an examination of these

complaints fails to disclose any appearance of a violation of the

rights and freedoms of the Convention and its Protocols and in

particular the Articles 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.

2. The applicants further complain, under Article 6 (Art. 6) of the

Convention, of the District Court's decision not to award them any

compensation for the work carried out by Mr. Ravnsborg.

The Commission recalls that, apparently, the applicants did not

appeal against the District Court's judgment of 19 February 1997 by

which their compensation claim was rejected.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Articles 26 and 27 para. 3

(Art. 26, 27-3) 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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BEDZUH AND MADSEN v. SWEDEN

BEDZUH AND MADSEN v. SWEDEN

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