Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23196/94

by Rolf GUSTAFSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

H.G. SCHERMERS

F. MARTINEZ

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 5 November 1993

by Rolf Gustafson against Sweden and registered on 6 January 1994 under

file No. 23196/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 September 1994 and 11 November 1994 and the observations in

reply submitted by the applicant on 14 and 18 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1953 and resident in

Stockholm. At present he is serving a prison sentence in Sweden.

The facts, as presented by the parties, may be summarised as

follows.

Particular circumstances of the case

The applicant alleges that he was on two occasions, in April-June

and June-July 1991, the victim of kidnapping and extortion by three

persons. The Public Prosecutor subsequently brought criminal

proceedings against one of these persons.

On 28 April 1993 the Stockholm District Court (Stockholms

tingsrätt) convicted the accused, sentenced him to six years'

imprisonment and ordered him to pay 144.350 SEK in damages to the

applicant.

On appeal the Svea Court of Appeal (Svea hovrätt) on 2 July 1993

reversed the District Court's judgment on the ground that the charges

had not been proven. Consequently, the Court of Appeal acquitted the

accused and rejected the applicant's claim for compensation. The

applicant did not seek leave to appeal to the Supreme Court (Högsta

domstolen).

The applicant subsequently requested compensation from the Board

for Reparation to Victims of Crime (Brottsskadenämnden) in accordance

with the 1978 Act on Damage Caused by Crime (brottsskadelagen 1978:413;

hereinafter "the 1978 Act").

On 26 August 1993 the Board rejected the request, stating as

follows:

(translation)

"A condition for payment of compensation for damage caused

by crime is that damage has been caused by crime. The Board

... cannot find it established that [the applicant] has

suffered damage as a result of crime. Consequently,

compensation for damage caused by crime cannot be awarded."

On 1 June 1994 the Board again rejected the applicant's request

following a reconsideration of his claim.

Relevant domestic law

The 1978 Act governs compensation by the State for damage caused

by crime. It is applicable if the crime has been committed in Sweden

or otherwise in circumstances which are not relevant to the present

case (Section 1).

A request for compensation shall be substantiated by a police

record, a medical statement and other documents of relevance to the

Board's examination. If someone has been convicted of the crime at

issue or if someone has been ordered to compensate damage caused by it,

a copy of the judgment shall also be enclosed. If no police

investigation has been carried out, other material concerning the

causes of the damage suffered shall be submitted (Section 2 of the

Ordinance on Damage Caused by Crime (brottsskadeförordningen

1978:653)).

No appeal lies against a decision of the Board (Section 12 of the

1978 Act). Nor is it possible to request judicial review of the

decision, pursuant to the 1988 Act on Judicial Review of Certain

Administrative Decisions (rättsprövningslagen 1988:205).

A claim for compensation under the 1978 Act must be filed with

the Board within two years from the date of the offence. Requests are

considered only where the offence has been notified to the Public

Prosecutor or the police or where the applicant shows good reasons why

such notification has not been made. In special circumstances a claim

may be dealt with by the Board although it has been filed at a later

stage (Section 14).

The Board is composed of a Chairman, two Vice-Chairmen and three

other members. The Chairman and the Vice-Chairmen of the Board must

have legal competence ("vara lagfarna") and be experienced as judges

(Section 13). The two Vice-Chairmen have substitutes who are also

qualified judges. The Board further includes a representative of the

insurance business and two substitutes for him. There are also two

laymen who are nominated by the political parties and four substitutes

for those laymen. All fifteen members of the Board are appointed by the

Government for a fixed period (Section 15 of the Ordinance with

Instructions for the Board (förordningen 1988:984 med instruktion för

brottsskadenämnden)). The rules governing the procedure before the

Board are similar to those found in the Code of Judicial Procedure

(rättegångsbalken) as well as the 1986 Administrative Procedure Act

(förvaltningslagen 1986:223).

As of 1 July 1994 the 1978 Act has been amended. A new authority

has been established for the examination of compensation requests,

namely the Authority for Victims of Crime (Brottsoffermyndigheten).

Within that authority there is a Board examining cases of particular

interest or cases that are otherwise of major importance.

COMPLAINT

The applicant complains of a violation of Article 6 para. 1 of

the Convention in that he could not have his civil right to

compensation pursuant to the 1978 Act determined by a court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 November 1993 and registered

on 6 January 1994.

On 5 July 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure. The Government's written observations

were submitted on 28 September 1994. The applicant replied on 14 and

18 October 1994. Additional observations were submitted by the

Government on 11 November 1994.

THE LAW

The applicant complains of a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that he could not have his civil right

to compensation pursuant to the 1978 Act determined by a court.

Article 6 para. 1 (Art. 6-1) reads, as far as relevant, as

follows:

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

entitled to a ... hearing ... by an independent and

impartial tribunal established by law. ..."

The Government primarily submit that Article 6 para. 1

(Art. 6-1) is not applicable, since the applicant had no "civil right"

to compensation pursuant to the 1978 Act. His right to compensation was

finally decided by the Svea Court of Appeal in the course of the

criminal proceedings instituted against one of the alleged offenders,

who was eventually acquitted. It is true that the Board for Reparation

to Victims of Crime may grant compensation even if no one is convicted

of an alleged offence. However, this does not mean that the applicant

may claim a "right" to such compensation. In any case, such a "right"

is not "civil" in character, since the compensation system set up by

the 1978 Act has several features of public law and is, moreover,

entirely financed by the State.

Should the Commission find that a "civil right" of the applicant

was determined by the Board for Reparation to Victims of Crime, the

Government argue that the application is manifestly ill-founded. The

Board fulfils the requirements of a "tribunal" within the meaning of

Article 6 para. 1 (Art. 6-1). It is independent of the executive. Its

procedure is established by law and resembles that of an ordinary court

of law. Its members fulfil impartiality criteria. All documents

submitted are normally public. Oral hearings may be held. The Board's

decisions are binding.

The applicant contends that he had a "civil right" to obtain

compensation under the 1978 Act. No suspect needed to be identified or

convicted in order for him to claim such a right. The acquittal of the

person accused of the crimes against him does not imply that no crime

had been committed. The applicant claims he submitted medical and

police records as well as other material to the Board for Reparation

to Victims of Crime, which in his opinion clearly showed that a crime

had been committed. In the light of the development of the Convention

organs' case-law in regard to the applicability of Article 6 para. 1

(Art. 6-1) the applicant considers that his right was of a "civil"

character.

The Commission has carried out a preliminary examination of the

application and considers that it raises questions of fact and law of

such a complex nature that their determination requires an examination

of the merits. The application cannot therefore be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for

declaring the application inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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GUSTAFSON v. SWEDEN

GUSTAFSON v. SWEDEN

LEXI