Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19438/92

by A.J. and M.J.

against Sweden

The European Commission of Human Rights sitting in private on

29 March 1993, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

A. S. GÖZÜBÜYÜK

A. WEITZEL

H. G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. M. P. PELLONPÄÄ

B. MARXER

M. A. NOWICKI

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 21 January 1992

by A.J. and M.J. against Sweden and registered on 27 January 1992 under

file No. 19438/92;

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.J., was born in 1927 and resides at

Tullinge, Sweden. The second applicant, M.J., was born in 1953 and

resides at Tullinge, Sweden. They are both Swedish citizens. The first

applicant is also the representative of the second applicant.

The facts as presented by the applicants may be summarised as

follows.

On 25 October 1989 the European Court of Human Rights gave its

judgment in a case which had been introduced by the first applicant.

In this judgment, the Court found that the absence in Swedish law of

a court remedy against certain administrative decisions regarding

building prohibitions affecting the first applicant's property

constituted a violation of Article 6 para. 1 of the Convention. The

Court further decided that Sweden should reimburse the applicant's

costs and expenses but rejected the remainder of the applicant's claim

for just satisfaction.

On 28 June 1990 the European Court of Human Rights gave its

judgment in a case which had been introduced by the second applicant.

In this judgment, the Court found that the absence in Swedish law of

a court remedy against the decision to amend a building plan affecting

the second applicant's property constituted a violation of Article 6

para. 1 of the Convention. The Court further decided that Sweden should

pay the applicant 10,000 Swedish crowns for non-pecuniary damage and

reimburse his costs and expenses.

On 13 January 1990 the first applicant sent a letter to the

Minister of Justice in which he asked how the Minister intended to deal

with cases such as his, where it had been established by the European

Court of Human Rights that a person was entitled to a court

examination. In her reply of 4 April 1990, the Minister of Justice

pointed out that, as a consequence of the case-law of the European

Court, the 1988 Act on Judicial Review of Certain Administrative

Decisions (lagen om rättsprövning av vissa förvaltningsbeslut) had been

enacted but that this new legislation was not applicable to decisions

given before its entry into force on 1 June 1988.

On 26 February 1990 the first applicant wrote to the

Parliamentary Ombudsman (Riksdagens Justitieombudsmän), requesting that

a tribunal be designated which could examine his case as well as other

cases where a breach had been found of Article 6 para. 1 of the

Convention.

In his decision of 2 May 1990 the Chief Parliamentary Ombudsman

noted that the 1988 Act was only applicable to decisions given after

its entry into force on 1 June 1988. The Ombudsman stated that in these

circumstances he could not see that there was any other possibility for

the first applicant to obtain a re-examination of the decision of which

he complained.

On 15 June 1990 the first applicant wrote to the Chancellor of

Justice (Justitiekanslern), stating that Sweden was not exempted from

the obligation to make available a court examination satisfying the

requirements of Article 6 para. 1 of the Convention. On 20 June 1990

the Chancellor of Justice replied by referring to the decision of the

Chief Parliamentary Ombudsman.

On 23 June 1990 the first applicant submitted to the Supreme

Administrative Court (Regeringsrätten) a request under the 1988 Act for

judicial review of the manner in which the Minister of Justice, the

Parliamentary Ombudsman and the Chancellor of Justice had dealt with

his case. He stated that in his opinion the judgment of the European

Court in his case meant that Sweden was obliged to make it possible for

him to obtain an examination by a Swedish court.

On 10 July 1990 the first applicant, on behalf of the second

applicant, submitted to the Supreme Administrative Court a further

request for judicial review of a planning decision given in 1983 which

had restricted the building rights on the second applicant's property.

He referred to the judgment in the second applicant's case, in which

the European Court had found that he was entitled to a court

examination under Article 6 para. 1 of the Convention.

On 11 November 1991 the Supreme Administrative Court gave

decisions in both cases.

In the first decision (regarding the first applicant), the

Supreme Administrative Court noted that the request for review

concerned the way the Ministry of Justice, the Parliamentary Ombudsman

and the Chancellor of Justice had dealt with the first applicant's

case. However, the matters dealt with by these authorities had not

concerned any issue falling under Chapter 8 Section 2 (i.e. regarding

an individual's personal status and the personal and economic relations

between individuals) or Section 3 (i.e. regarding the relations between

individuals and the authorities with respect to obligations imposed on

individuals or otherwise regarding interferences with the personal or

economic conditions of individuals). Consequently, the 1988 Act on

Judicial Review of Certain Administrative Decisions was not applicable.

The Supreme Administrative Court therefore dismissed the applicant's

request for judicial review.

In the second decision (regarding the second applicant), the

Supreme Administrative Court noted that the building plan at issue had

been confirmed by the Government on 19 January 1984, whereas the 1988

Act was only applicable to decisions given on 1 June 1988 or later. His

request for judicial review was therefore inadmissible.

COMPLAINTS

The applicants complain that Sweden has not complied with its

obligations under the judgments of the European Court of Human Rights.

They complain of violations of Articles 1, 6 para. 1 and 53 of the

Convention.

THE LAW

The applicants refer to the judgments given by the European Court

of Human Rights in their cases and complain that Sweden has violated

its obligations under these judgments by continuing to deny the

applicants a court examination in regard to their civil rights. They

invoke Articles 1, 6 para. 1 and 53 (Art. 1, 6-1, 53) of the

Convention.

The Commission first recalls that it is not its task to examine

whether a High Contracting Party has complied with its obligations

under a judgment given by the European Court of Human Rights, this

supervision being entrusted under Article 54 (Art. 54) of the

Convention to the Committee of Ministers.

The Commission must therefore limit its examination in the

present case to the question as to whether, after the judgments in the

applicants' cases, there has been a new violation of Article 6 para.

1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention provides, in its

relevant parts, as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission finds that the applicants complain in substance

of the fact that it has not been possible for them, after the judgments

of the European Court in their cases, to obtain a court review in

Sweden in regard to the same administrative decisions which were at

issue before the Strasbourg organs.

When the European Court gave its judgments in the cases, the 1988

Act on Judicial Review of Certain Administrative Decision had already

been enacted and been in force since 1 June 1988. However, the

applicants could not, in respect of the complaints they had brought

before the Strasbourg organs, benefit from the new Act, which only

applied to administrative decisions given after its entry into force.

The Commission is of the opinion that, insofar as the applicants

complained in their previous cases of the absence of a court remedy

against certain administrative decisions, the European Court has

finally dealt with the issue and also considered the question of just

satisfaction to the applicants under Article 50 (Art. 50) of the

Convention. In these circumstances, it cannot be seen as a new

violation of the Convention if, after the Court's judgments, it

remained impossible to obtain a court examination in regard to those

same decisions. A State, which adapts its procedural rules to comply

with the case-law of the European Court, cannot in general be required

to make the new rules retroactively applicable to cases already finally

decided in the past.

It follows that the application must be rejected as being

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

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A.J. AND M.T. v. SWEDEN

A.J. AND M.T. v. SWEDEN

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