AS TO THE ADMISSIBILITY OF

                      Application No. 31653/96

                      by Gunnar and Annika BENDRÉUS

                      against Sweden

      The European Commission of Human Rights sitting in private on

8 September 1997, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

           Mrs.  M. HION

           MM.   R. NICOLINI

                 A. ARABADJIEV

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 16 April 1996 by

Gunnar and Annika BENDRÉUS against Sweden and registered on 30 May 1996

under file No. 31653/96;

      Having regard to 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 18 December 1996 and the observations in reply submitted

by the applicant on 24 February 1997;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants, a married couple, are Swedish citizens born in

1948 and 1949 respectively.  The first applicant is a businessman and

the second applicant is a teacher.  They reside in Enebyberg.  Before

the Commission they are represented by Dr. Henning Witte, a lawyer

practising in Stockholm.

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

summarised as follows.

a.    The particular circumstances of the case

      On 28 September 1994 the ferry M/S Estonia sank in the Baltic

Sea, resulting in 852 dead or missing persons.  Among the many

casualties were the second applicant's parents.  The first applicant

is the president of a group of 3000 relatives of the deceased.

      In the autumn of 1994 the Swedish Government entrusted the

National Maritime Administration (Sjöfartsverket) with the task of

investigating the possibilities and consequences of bringing the

victims of the disaster ashore.  Moreover, an Ethical Council was

appointed to advise the Government on the ethical problems that arose

due to the disaster.

      Following the suggestions of the Administration and the Council,

the Government decided, on 15 December 1994, that neither the wreck of

M/S Estonia nor the bodies of the victims should be salvaged, that the

place where the wreck was situated should be regarded as a burial

ground and that the wreck should be covered in order to secure the

peace of the burial ground.  The Administration was instructed to

investigate the matter and make suggestions as to the covering and

surveillance of the wreck.

      Following the National Maritime Administration's report of

10 February 1995, the Government, on 2 March 1995, entrusted the

Administration with the task of covering the wreck with concrete and

ordered it to invite tenders for the project.  In its decision, the

Government recalled the status of the place of the wreck as a burial

ground and stated that, in realising the project, regard should be had

to environmental effects.

      The first applicant challenged the Government's decision of

2 March 1995 before the Supreme Administrative Court (Regeringsrätten).

He requested the Court to quash the decision, maintaining that the

Government had failed to take into consideration the wishes of the

relatives of the deceased.  On 3 April 1996 the Court dismissed the

action finding, firstly, that the requirements for an examination under

the 1988 Act on Judicial Review of Certain Administrative Decisions

(Lag om rättsprövning av vissa förvaltningsbeslut, 1988:205) were not

met, and, secondly, that there were no grounds for reopening the

proceedings under the Administrative Procedure Act (Förvaltnings-

processlagen, 1972:291).

      In January 1996 the National Maritime Administration signed a

contract with an international consortium of construction companies

concerning the covering of M/S Estonia.  The work, which was to be

carried out in steps, started with the strengthening of the sea bed

with stones and the covering of the area around the wreck with textile.

      By decision of 19 June 1996, the Government postponed further

work on the covering of the wreck until further notice.  The reason

given for the postponement was that an International Commission of

Inquiry, composed of representatives of Swedish, Finnish and Estonian

authorities and entrusted with the task of examining the cause of the

disaster, had not finalised its investigation and the covering of the

wreck would render it impossible to obtain further evidence.  The

report of that Commission has not yet been presented.

b.    Relevant domestic law and practice

      On 23 February 1995 an agreement concerning the wreck of M/S

Estonia was signed by Sweden, Finland and Estonia.  According to the

agreement, the wreck and the surrounding area shall be regarded as a

final place of rest for the victims of the disaster.  The wreck shall

not be raised.  According to Article 4 of the agreement, the

Contracting Parties undertake to enact national legislation aiming at

the criminalisation of any activities disturbing the peace of the final

place of rest, in particular any diving or other activities with the

purpose of recovering victims or property from the wreck or the sea

bed.  A Contracting Party may also take measures to cover the wreck or

to prevent pollution of the marine environment from the wreck.

      In accordance with Article 4 of the above agreement, the Swedish

Parliament later adopted the Act on the Protection of the Peace of the

Grave at the Wreck of M/S Estonia (Lag om skydd för gravfriden vid

vraket efter passagerarfartyget Estonia, 1995:732; hereinafter "the

1995 Act"), which, inter alia, provides for criminal sanctions for the

activities prohibited by that Article.  The Act entered into force on

1 July 1995.

      In 1995 seven relatives of persons who died in the M/S Estonia

disaster brought an action against the Swedish State in the District

Court (tingsrätten) of Stockholm.  They requested that the State be

prohibited from covering the wreck of M/S Estonia as, otherwise, the

bodies of the victims could not be salvaged and buried in accordance

with their wishes and further evidence could not be obtained.  They

invoked customary law and several Articles of the Convention, including

Articles 6, 8 and 9.  The District Court noted that the plaintiffs were

not authorised to represent all the relatives of the victims of the

disaster and thus limited its examination to the alleged obligations

of the State and the rights of the plaintiffs in relation to those

victims who were related to the plaintiffs.  By judgment of 16 January

1996, the District Court rejected the case.  It found that neither

customary law nor the Convention entailed an obligation on the State

to refrain from covering the wreck.  The court examined the case also

under Chapter 15, Section 3 of the Code of Judicial Procedure

(Rättegångsbalken), according to which the court may prohibit someone

from taking certain action if it is shown that such action could affect

claims which have been or might be brought in a lawsuit or other

proceedings by the person requesting the court's intervention against

the person to whom the prohibition would apply.  However, the District

Court found that the plaintiffs did not have such claims against the

State.  Accordingly, it did not issue any prohibition under the

provision in question.  On 29 March 1996 the Svea Court of Appeal (Svea

hovrätt) dismissed the plaintiffs' appeal.  On 15 May 1996 the Supreme

Court (Högsta domstolen) refused leave to appeal.

COMPLAINTS

1.    Under Articles 6 and 13 of the Convention, the applicants

complain that, due to the Supreme Administrative Court's decision to

dismiss their action, they have been denied an examination of the

Government's decisions.

2.    Furthermore, the covering of the wreck would allegedly obstruct

the pending investigation of the accident by the International

Commission of Inquiry and the future litigations against the

responsible insurance company and, possibly, the shipping company and

the Swedish and Finnish States in that it would prevent the obtaining

of further evidence.  Also in this respect, the applicants invoke

Article 6 of the Convention.

3.    The applicants also complain, under Article 8 of the Convention,

that the Government's decision to cover the wreck of M/S Estonia

violates their right to respect for their private and family life.

They maintain that they have the right to decide how the bodies of

their deceased relatives should be treated.  They further allege that

a majority of the relatives of the deceased are opposed to the project

and that it serves no public interest.

4.    The applicants further claim that they have the right to decide

on the burial of their relatives and that the Government's decisions

thus violate their freedom of religion under Article 9 of the

Convention.

      The applicants also contend that the covering of the wreck would

constitute inhuman treatment under Article 3 of the Convention, as the

relatives would not get to know how the accident happened and who was

responsible for it.

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

applicants claim that the covering of the wreck will prevent them from

salvaging their relatives' belongings.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 16 April 1996 and registered

on 30 May 1996.

      On 12 September 1996 the Commission 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 18 December 1996

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

applicants replied on 24 February 1997.

THE LAW

1.    Under Articles 6 and 13 (Art. 6, 13) of the Convention, the

applicants complain that, due to the Supreme Administrative Court's

decision to dismiss their action, they have been denied an examination

of the Government's decisions.

      Article 6 (Art. 6) reads, in relevant parts, as follows:

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

      is entitled to a fair ... hearing ... by [a] ... tribunal

      ..."

      Article 13 (Art. 13) provides the following:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy

      before a national authority notwithstanding that the

      violation has been committed by persons acting in an

      official capacity."

      The respondent Government first question whether the applicants

can be said to be victims, within the meaning of Article 25 (Art. 25)

of the Convention, of the alleged violations of the Convention.  They

claim that the decisions taken by the Government have not had any legal

consequences for the applicants.  Thus, the decisions did not prevent

the applicants from taking whatever measure they found suitable and did

not involve any determination of the applicants' rights under national

law.  It was not until the entry into force on 1 July 1995 of the 1995

Act that the applicants' legal situation was affected in that sanctions

could be imposed on those who violated the prohibition on diving

activities.

      Moreover, as the Government's decisions did not determine the

applicants' rights, the Government claim that the complaints under

Article 6 (Art. 6) of the Convention are incompatible ratione materiae

with the Convention. Under Articles 6 and 13 (Art. 6, 13), the

Government further submit that the applicants had access to a court and

that, thus, their complaints are, in any event, manifestly ill-founded.

The Government refer to a similar case brought in the ordinary courts

by other relatives of victims.

      The applicants submit that, since they brought an action in the

Supreme Administrative Court, they are excluded from taking proceedings

in the ordinary courts.  In any event, they would have the same claims

as the other relatives.  The ordinary courts refused to examine their

claims, as they were directed against the State and thus fell to be

examined by the administrative courts.

      The Commission notes that, by the challenged Government decisions

of 15 December 1994 and 2 March 1995, it was decided that the wreck of

M/S Estonia should be covered with concrete.  The decisions were partly

implemented in 1996, when the work on covering the wreck started.  It

appears that the bodies of the second applicant's parents, who died in

the disaster, remain in the wreck.  In these circumstances, the

Commission considers that the applicants were sufficiently affected by

the decisions to be able to claim to be victims, under Article 25

(Art. 25) of the Convention, of the alleged violations of the

Convention.

      However, even assuming that the Government's decisions involved

a determination of the applicants' civil rights within the meaning of

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

that the present complaints are inadmissible for the following reasons.

      The Commission recalls that seven other relatives of persons who

died in the M/S Estonia disaster brought an action against the State

in the ordinary courts.  As acknowledged by the applicants, these

relatives presented basically the same claims as those presented in the

present application.  The District Court and the Court of Appeal,

restricting themselves to the alleged rights of the seven relatives,

examined on the merits the claims presented but rejected them as they

were considered unfounded.  Thus, they were not rejected because of

lack of jurisdiction.  It is clear that the applicants would also be

able to obtain an examination on the merits of their claims before the

ordinary courts.  Such an action would not be precluded by their

attempt to have the issues examined by the Supreme Administrative

Court.  In this connection, the Commission recalls that the right of

access to a court under Article 6 para. 1 (Art. 6-1) of the Convention

does not entail a guarantee to have a specific result of the

proceedings.

      The Commission therefore finds that the applicants have access

to a court procedure which satisfies the requirements of Article 6

para. 1 (Art. 6-1) of the Convention.  Furthermore, this procedure

constitutes an effective remedy under Article 13 (Art. 13) 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.    The applicants further claim that the covering of the wreck would

obstruct the pending investigation of the accident by the International

Commission of Inquiry and the future litigations against the

responsible insurance company and, possibly, the shipping company and

the Swedish and Finnish States in that it would prevent the obtaining

of further evidence.  Also in this respect, the applicants invoke

Article 6 (Art. 6) of the Convention.

      Leaving aside the question whether the applicants have failed to

exhaust domestic remedies in accordance with Article 26 (Art. 26) of

the Convention as they have not brought their claim before the ordinary

courts in Sweden, the Commission recalls that, on 19 June 1996, the

Government decided to postpone further work on the covering of the

wreck until further notice.  The reason given for the postponement was

that the International Commission of Inquiry had not finalised its

investigation of the cause of the disaster and the covering of the

wreck would render it impossible to obtain further evidence.  The work,

which started with the strengthening of the sea bed and the covering

of the area around the wreck, has not since been resumed.

      In these circumstances, the Commission finds that the present

complaint fails to disclose any appearance of a violation of the

applicants' rights under the Convention.

      It follows that this part of the application is also manifestly

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

Convention.

3.    The applicants complain, under Article 8 (Art. 8) of the

Convention, that the Government's decision to cover the wreck of M/S

Estonia violates their right to respect for their private and family

life.  They maintain that they have the right to decide how the bodies

of their deceased relatives should be treated.  They further allege

that a majority of the relatives of the deceased are opposed to the

project and that it serves no public interest.

      Article 8 (Art. 8) of the Convention provides as follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.  There shall be no interference by a public authority

      with the exercise of this right except such as is in

      accordance with the law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      prevention of disorder or crime, for the protection of

      health or morals, or for the protection of the rights and

      freedoms of others."

      The Government do not contest that a right under Article 8

(Art. 8) of the Convention to take care of one's dead relatives might

exist.  They argue, however, that before the conclusion of the

agreement of 23 February 1995 between Sweden, Finland and Estonia the

Swedish State could not exercise its jurisdiction over the place of the

wreck as it is situated outside the territorial waters of Sweden.

Furthermore, before the entry into force, on 1 July 1995, of the 1995

Act diving at the place of the wreck was not prohibited and, thus, no

sanctions could be imposed in regard to such activities. The Government

therefore argue that the complaints, in so far as they relate to the

Government's decisions of 15 December 1994 and 2 March 1995, fall

outside the scope of the Convention as, under Article 1 (Art. 1) of the

Convention, the Swedish State did not have jurisdiction with respect

to diving activities taking place before 1 July 1995.  Alternatively,

the Government maintain that, as no sanctions have been or could have

been imposed on the applicants by virtue of the decisions in question,

the decisions did not affect the applicants to such an extent that

Article 8 (Art. 8) of the Convention is brought into play.  The

Government further argue that the applicants have failed to bring their

case before the ordinary courts in Sweden and, thus, have failed to

exhaust domestic remedies.

      Furthermore, should the Commission find that the applicants'

rights under Article 8 (Art. 8) have been affected and interfered with,

the Government, in any event, contend that the interference has been

justified and that the complaint is manifestly ill-founded.  They claim

that the Government's decision of 2 March 1995 is lawful as it does not

contravene Swedish law, which is illustrated by the judgments of the

District Court and the Court of Appeal in the case brought by other

relatives of victims.  Further, it is in accordance with international

law and customary legal principles concerning the protection of graves.

The decision has a basis also in the agreement between Sweden, Finland

and Estonia.  The decision has the aims of protecting the rights and

interests of those relatives who wished to consider the place as a

grave and of protecting private property from being stolen from the

wreck.  It thus aims at protecting the rights and interests of others

and the prevention of crime.  Moreover, it must be considered

proportionate and necessary for those aims.  In the latter respect, the

Government state that the wreck so far has been guarded by the Swedish

authorities but that this was deemed not possible in the long run.

Allegedly, there was no other solution that was equally efficient than

to cover the wreck.  Leaving the wreck uncovered and unattended will

entail a substantial risk that diving activities will take place with

the aim of plundering it.

      The applicants submit that, whether or not the Swedish State has

had jurisdiction over the place of the wreck, it has taken decisions

and enacted a law which have interfered with the applicants' rights

under Article 8 (Art. 8) of the Convention.  As to the conditions that

have to be satisfied under Article 8 para. 2 (Art. 8-2), the applicants

state that the Swedish State has no right to enact laws governing

international waters.  The legitimate aim of protecting the wreck from

plunderers is in the interest of the relatives of the victims but the

majority of these relatives are opposed to the measure taken by the

Government, i.e. the decision to cover the wreck with concrete.  Thus,

there is no public interest to justify such a measure.  Moreover, there

are several cheaper and less damaging ways of protecting the wreck, for

example radar or a net with alarm bells.

      The Commission first notes that the implementation of the

decisions complained of started in 1996, at a time when the Swedish

State claimed to have jurisdiction over the place of the wreck of M/S

Estonia. It thus finds that the applicants' complaints may be

considered under Article 1 (Art. 1) of the Convention.  Moreover, the

Commission considers that, in view of the analogous claims brought in

the ordinary courts by other relatives of victims of the disaster and

the outcome of those proceedings, the present applicants were not, for

the purposes of Article 26 (Art. 26) of the Convention, required to use

the same remedy.  Accordingly, it finds that the present complaint

cannot be rejected for failure to exhaust domestic remedies.

      However, the Commission considers, even assuming that Article 8

(Art. 8) of the Convention confers a right to decide on the treatment

and burial of one's dead relatives and that such a right has been

affected by the measures taken by the Government, that the present

complaint is inadmissible for the following reasons.

      The M/S Estonia disaster resulted in a very large number of dead

or missing persons.  Although it is not known how many of the relatives

of these persons support or are opposed to the measure chosen by the

Swedish Government, i.e. the covering of the wreck with concrete, it

appears that there are different views among the relatives as to what

should be done with the wreck.  Thus, any decision on this subject

would involve the balancing of diverging interests.  The Government's

decision of 2 March 1995 appears to have aimed primarily at protecting

the wreck from plundering but also at securing the peace of the wreck

which was to be considered as a burial ground.  Before deciding that

these aims should be achieved by having the wreck covered with

concrete, the Government ordered the National Maritime Administration

to investigate the matter and appointed an Ethical Council to give

advice on the ethical problems that arose due to the disaster.  The

agreement signed by Sweden, Finland and Estonia on 23 February 1995

provided for the possibility to cover the wreck.

      Noting that it is hardly possible to satisfy the wishes of all

relatives and having regard to the margin of appreciation afforded to

the State under Article 8 (Art. 8) of the Convention, the Commission

considers that the Government's decision to cover the wreck of M/S

Estonia with concrete does not show any lack of respect for the

applicants' rights under the provision in question.

      It follows that this part of the application is also manifestly

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

Convention.  4.  The applicants further claim that they have the right

to decide on the burial of their relatives and that the Government's

decisions thus violate their freedom of religion under Article 9

(Art. 9) of the Convention.  They also contend that the covering of the

wreck would constitute inhuman treatment under Article 3 (Art. 3) of

the Convention, as the relatives would not get to know how the accident

happened and who was responsible for it.  Finally, under Article 1 of

Protocol No. 1 (P1-1) to the Convention, the applicants claim that the

covering of the wreck will prevent them from salvaging their relatives'

belongings.

      However, having regard to its above finding in respect of the

applicants' complaint under Article 8 (Art. 8) of the Convention, the

Commission finds that an examination of the present complaints does not

disclose any appearance of a violation of the Articles invoked.

      It follows that this part of the application is also manifestly

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

Convention.

      For these reasons, the Commission,by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

        H.C. KRÜGER                          S. TRECHSEL

         Secretary                            President

     of the Commission                    of the Commission