Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14220/88

by Göran RAVNSBORG

against Sweden

The European Commission of Human Rights sitting in private on 9

January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 2 July 1988 by

Göran Ravnsborg against Sweden and registered on 16 September 1988

under file No. 14220/88;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 20 December 1990 and the observations submitted in reply

by the applicant on 27 April, 2 May and 15 June 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1933. He is a

university lecturer and resides at Lund, Sweden.

A.The particular circumstances of the case

The applicant was personal general proxy for his adoptive mother

K, who died on 7 July 1987. On 19 November 1982 he was appointed

administrator (god man) for his mother's friend M, who died on 10

February 1985. Both K and M were unable to care for themselves due to

old age and were therefore eventually placed in a nursing home by the

Municipality of Gothenburg. Some time after their respective admittance

to the nursing home K and M became liable to pay a certain medical care

fee calculated on the basis of their net income and they received

invoices from the nursing home. The applicant duly paid the invoices

on behalf of K and M.

The applicant subsequently realised that the nursing home was a

charitable foundation and he considered that he had paid the medical

care fees on behalf of K and M to the wrong creditor. In May 1983 he

accordingly stopped paying the fees. The nursing home therefore

instituted two separate sets of proceedings against K and M's estate

in the Gothenburg District Court (tingsrätten) claiming payment of the

outstanding fees, whereas K and M's estate, represented by the

applicant, in two other sets of proceedings before the same court

claimed reimbursement of the fees already paid. The final outcome of

these proceedings is unknown.

While these proceedings were pending the Gothenburg Guardian

Board (Göteborgs Överförmyndarnämnd), on 6 April 1987, requested the

Gothenburg District Court to appoint an administrator (god man) for K.

The applicant, as personal general proxy for K as well as on his own

behalf, counterclaimed seeking the immediate dismissal of all members

of the Gothenburg Guardian Board. In his 19-page submission of 4 May

1987 to the District Court, which considered this matter separately

from the above-mentioned proceedings, the applicant stated inter alia:

"Som allmänt omdöme beträffande Överförmyndarnämndens här på goda

grunder skarpt kritiserade agerande måste framhållas, att nämnden

här framstår som en korg kommunalpolitiska rötägg av olika

kulörer men av en gemensam art och överideologi, nämligen den

fascistoida maktutövningens, därvid den enskilda kommunmedlemmens

rättigheter och välförstådda intressen - om dessas existens

överhuvud taget medgives i maktberusningens ögonblick - aldrig

får innebära något mera verkningsfullt ifrågasättande av

kollektivets krav eller det politrukstyrda intressesubjektets

absoluta rätt, sådan denna i varje enskilt fall till sitt

innehåll bestämts av de i s.k. demokratisk ordning utmanglade

representativa folkdomstolarna (vars mera officiella benämning

är Göteborgs kommuns styrelser och nämnder) med sin bemanning av

i häpnadsväckande hög grad lokalt publikt slödder eller - som

ovan - rena rötägg.

Kravet på offentlig, muntlig (huvud)förhandling i detta dubbel-

ärende dels om ansökan om förordnande av god man, dels om

omedelbart entledigande av vissa befattningshavare och ledamöter

av Göteborgs Överförmyndarnämnd stödes ytterst på europa-

konventionens artikel 6(1)."

(translation)

"As a general assessment about the Guardian Board's actions,

which are strongly criticised on good grounds, the Board can be

described as a basket of municipal political rotten eggs of

different colours but of a common denominator and supra ideology,

i.e. the tendentiously fascist exercise of power, in connection

with which the rights and legitimate interests of individual

municipal members - if their existence is at all recognised in

their intoxication with power - may never involve any powerful

questioning of the demands of the collective or the absolute

right of the politician-governed subject, such as it is in each

individual case defined as to its contents by the so called

democratically representative People's Courts (whose official

names are the Boards or Councils of the Municipality of

Gothenburg) with their manning, to a surprisingly high degree,

of local public mob or - as above - pure rotten eggs.

The request for a public, oral (main) hearing in this double

case, concerning on the one hand the request for the appointment

of an administrator and on the other the immediate dismissal of

certain care workers and members of the Gothenburg Guardian

Board, is furthermore based on Article 6 para. 1 of the European

Convention."

On 18 May 1987, the District Court, in application of the Code

of Judicial Procedure (rättegångsbalken), ordered the applicant to pay

1,000 Swedish crowns for an "offence against the order in court"

(rättegångsförseelse) in respect of the above statement. The Court did

not hold any hearing in regard to this issue.

On 17 June 1987, the District Court considered the Guardian

Board's request for the appointment of an administrator as well as the

applicant's and K's request for the Board members' dismissal. It did

not hold a hearing but found in favour of the applicant and K as

regards the appointment of an administrator. It rejected the Board's

request as questions involving this matter were pending before the

Court (cf. the proceedings mentioned above). The Court rejected the

applicant's and K's request for dismissal of the Board members as the

submissions in support of the request did not disclose any reason to

dismiss them.

a)In the meantime, on 1 June 1987, the applicant had appealed

against the District Court's above-mentioned decision of 18 May 1987,

ordering him to pay 1,000 Swedish crowns, to the Court of Appeal

(hovrätten) for Western Sweden. In his 14-page appeal he complained

inter alia that he had been fined without having had the possibility

of defending himself at an oral hearing. He furthermore requested an

oral hearing in the Court of Appeal. In the written appeal the

applicant inter alia stated as follows:

"Skulle hovrätten i något hänseende döma med avvikelse från av

mig här framställda yrkanden, kommer jag givetvis att överklaga,

för att sedan högst sannolikt omedelbart kunna insända anmälan

till europakommissionen resp kommittén för de mänskliga

rättigheterna i Genève. Risken är nämligen ytterst liten för att

en allmänt letargisk och genom sina ledamöters mångåriga

kanslihusindoktrinering mot mänskliga rättigheter slappt

allergisk slutinstans beviljar prövningstillstånd i ett fall som

detta."

(translation)

"If the Court of Appeal would, in any respect, come to a

different judgment from what I have requested, I will of course

appeal, in order to be able to submit an application immediately

to the European Commission or to the Human Rights Committee in

Geneva. The risk is extremely small that a generally lethargic

and - as a result of its members' many years of indoctrination

against human rights in the Government Offices - lax final

instance will grant leave to appeal in a case like this."

b)On 2 July 1987 the applicant also appealed, on behalf of K as

well as on his own behalf, against the District Court's decision of 17

June 1987 on the merits to the Court of Appeal of Western Sweden. In

his 7-page written appeal he requested that the case be referred back

to the District Court for renewed consideration, including an oral

hearing. He stated inter alia:

"Det faktum, at vi av flera utomordentliga skäl yrkar, att

ärendet Göteborgs tingsrätt, avd 1, Fm 384/87 återförvisas för

fortsatt handläggning i tingsrätten innebär givetvis icke att vi

ens för ett ögonblick skulle acceptera, att målet vid fortsatt

handläggning på tingsrättsnivå ännu en gång skulle domineras av

t.ex. chefsrådmannens Sven Wieselgren långtgående fascistoida

processledning med dess definitoriska inslag av grovt partiska

kommunalhänsyn, kollegialitetskorruption, myndighetsmissbruk

genom egenmäktighet, skuggrädsla och mörkmannaprinciper.

Överhuvud taget är våra erfarenheter av den allmänt egenmäktiga

och till kommunens favör djupt partiska normexercisen vid

tingsrätten, sådan den utövas av en Stefan Wikmark, en Sven

Ordqvist, en Kenneth Ström eller en Sven Wieselgren - samtliga

ledamöter av tingsrättens domarkollegium - sådan, att vi särskilt

med hänsyn till detta kollegiums skarpt framträdande partiskhet

kommer att - vad avser rättens ordförande vid fortsatt

handläggning av ärendet Fm 384/87 - yrka på konstitution av

särskild tingsrätt för sagda handläggning, varvid rättens

ordförande in casu skall sökas utanför Göteborgs tingsrätt."

(translation)

"The fact that we ... ask that the case be referred back to the

District Court ... for a further examination does not imply that

we, even for a moment, would accept that the case ... once again

is dominated by, for instance, Chief Judge Sven Wieselgren's

far-reaching tendentiously fascist way of presiding over the

court with its gross partiality in favour of municipal interests,

collegiate corruption, and abuse of public authority through

autocracy, shadow fear and dark man principles. Our experience

with the generally autocratic deeply partial implementation of

norms by the District Court in favour of the municipality, as it

is performed by one Stefan Wikmark, one Sven Ordqvist, one

Kenneth Ström and one Sven Wieselgren ... is such that we will

ask for the composition of a special District Court in which the

President is chosen from outside the Gothenburg District Court."

The Court of Appeal delivered two decisions in respect of the

appeals (mentioned above under a and b) on 4 November 1987, prior to

which K had died (7 July 1987).

As regards the appeal mentioned under a) the Court found that the

District Court had acted in accordance with domestic case-law and legal

doctrine when ordering the applicant to pay 1,000 Swedish crowns for

the "offence against the order in court" (rättegångsförseelse) and

therefore rejected the appeal. The Court of Appeal furthermore saw no

reason to hold an oral hearing. Finally, the Court found the

applicant's remarks in his written appeal mentioned above under a)

improper and ordered him to pay another 1,000 Swedish crowns for an

"offence against the order in court" (rättegångsförseelse).

As regards the appeal mentioned under b) the Court of Appeal did

not deal with the applicant's and K's appeal in so far as the District

Court had found in their favour by not granting the Guardian Board's

request for the appointment of an administrator. Furthermore, the Court

found that it could not deal with the remainder of the appeal as a

right to appeal was only granted to a person who had actually been

dismissed. Finally, the Court ordered the applicant to pay once more

1,000 Swedish crowns for an "offence against the order in court"

(rättegångsförseelse) finding his remarks in his written appeal

mentioned above under b) improper.

On 26 November 1987 the applicant applied to the Supreme Court

(Högsta domstolen) for leave to appeal as regards the proceedings

mentioned under a). He maintained inter alia that the courts' actions

and decisions had not only deprived him of his right to a fair trial,

being an accused, but also infringed his right to freedom of

expression.

On 30 November 1987 the applicant, on behalf of K's estate as

well as on his own behalf, applied for leave to appeal as regards the

proceedings mentioned under b). He maintained inter alia his request

for the dismissal of the Guardian Board's members and requested that

the case be referred back to the District Court for proper examination,

including an oral hearing. He also requested the Supreme Court to

repeal the order to pay 1,000 Swedish crowns for the "offence against

the order in court" (rättegångsförseelse).

In two seperate decisions of 5 January 1988 the Supreme Court

refused leave to appeal.

B.Relevant domestic law and practice

Freedom of expression

According to the Swedish Instrument of Government, Chapter 2,

Section 1, which forms part of the Swedish Constitution, freedom of

expression is one of the fundamental freedoms and rights afforded to

all citizens. According to the same Chapter, Section 13, certain

restrictions can be imposed on the freedom of expression. Such

restrictions, however, have to serve one or several specified purposes.

Among those purposes, the integrity of the individual and the sanctity

of private life are to be found. According to the same Section, freedom

of expression may otherwise be restricted only where particularly

important reasons so warrant.

"Offences against the order in court" (rättegångsförseelse)

Chapter 9, Section 5, of the Code of Judicial Procedure sanctions

as an "offence against the order in court" (rättegångsförseelse)

certain forms of improper behaviour either at a court hearing or in

written submissions to a court. The provisions are closely connected

with those in Chapter 5, Section 9, of the Code. According to the

latter provision, which concerns order at court hearings, the chairman

of the court may, for instance, order a person, who disturbs the

hearing or behaves unseemly in some other way, to leave the courtroom.

According to the travaux préparatoires of Chapter 9, Section 5,

of the Code of Judicial Procedure (NJA II 1943, page 91), improper

behaviour of a more serious character could be considered as criminal

according to relevant rules of penal law, such as provisions on

defamation. The present provision is, however, to be applied in cases

where there is an offence with regard to order in the court. The

penalty is limited to the payment of a specified sum of money not

exceeding 1,000 Swedish crowns.

Abusive statements may be punishable as defamation according to

Chapter 5 of the Penal code. Such cases presuppose prosecution.

According to Chapter 20, Section 1, of the Code, this is, however, not

the case with improper statements, which may be dealt with within the

framework of "offences against the order in court" (rättegångs-

förseelse). In such a case the court may immediately order the person

who commits an "offence against the order in court" (rättegångs-

förseelse) to pay a sum of money not exceeding 1,000 Swedish crowns.

Chapter 9, Section 5, of the Code of Judicial Procedure is

applicable to anyone who takes part in court proceedings, the only

exception being the members of the court itself, i.e. judges and lay

members of the court. The provision is therefore applicable to the

parties to a case, their representatives and witnesses. It is also

applicable to members of the audience at a court hearing.

The question of whether a person has committed an "offence

against the order in court" (rättegångsförseelse) is dealt with by the

court of its own accord, cf. Chapter 19, Section 5, para. 1, of the

Code of Judicial Procedure. The matter can only be dealt with during

the particular procedure where the improper behaviour has taken place

and by that particular court. A sanction for an "offence against the

order in court" (rättegångsförseelse) does not presuppose prosecution

and it is not entered in the police register.

Public, oral hearings

The question of "offences against the order in court"

(rättegångsförseelse) was, in the present case, dealt with in

accordance with the Act (1946:807) on the Handling of Court Matters

(lag om handläggning av domstolsäranden), hereafter called the 1946

Act. According to the 1946 Act, Section 4, sub-section 2, the court may

conduct a hearing if it considers that the applicant or someone else,

who is involved in the matter, should be heard orally.

According to the travaux préparatoires to the 1946 Act, the

purpose of the provisions of the Act is to adapt the proceedings to the

nature of the matter. If an oral hearing is not necessary with regard

to the particular type of matter at issue, such a hearing shall not

take place. If, on the other hand, the court decides to hold a hearing,

the same provisions as those applying to main hearings in civil cases

shall apply in principle (Section 5, sub-section 2, of the 1946 Act).

As a result of the reference in Section 11 of the 1946 Act to the

provisions concerning civil cases in the Code of Judicial Procedure,

it would have been possible for the Gothenburg District Court to decide

to hold a hearing in order to resolve the question of the "offence

against the order in court" (rättegångsförseelse) in the present case.

According to the Code of Judicial Procedure, Chapter 52, Section

10, sub-section 1, the court shall make suitable arrangements for an

oral hearing if it is necessary for the examination of the case to hear

a party or someone else. Consequently, it would also have been possible

for the Court of Appeal to hold an oral hearing.

COMPLAINTS

The applicant complains of the imposition by the courts of the

obligation to pay a total of 3,000 Swedish crowns for the "offence

against the order in court" (rättegångsförseelse). He contends that

this involved a "secret inquisitorial penal process", since he did not

receive a public hearing or have any opportunity to refute the

allegations. He invokes Article 6 of the Convention.

The applicant furthermore complains of a violation of Article 10

of the Convention in relation to the court orders.

The applicant has also invoked Article 1 of Protocol No. 1 to the

Convention on the ground that he has had to pay 3,000 Swedish crowns

as ordered by the courts.

Finally, in his observations of 15 June 1991 the applicant has

invoked Article 7 of the Convention alleging that the courts have based

their decisions on invalid provisions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 July 1988 and registered on

16 September 1988.

On 10 October 1990 the Commission decided to bring the above

complaints under Article 6 and 10 to the notice of the respondent

Government and to invite them to submit written observations on the

admissibility and merits of this part of the application. The

applicant's other complaints, under Article 6 of the Convention,

concerning the court's refusal of 4 November 1987 to allow him a public

hearing in the dispute as to the appointment of an administrator for

K, were declared inadmissible.

On 20 December 1990 the Government submitted their observations.

The applicant's observations in reply were submitted on 27 April, 2 May

and 15 June 1991.

THE LAW

1.The applicant complains of the court orders due to which he was

obliged to pay a total of 3,000 Swedish crowns having committed an

"offence against the order in court" on three occasions. In this

respect he invokes Article 6 (Art. 6) of the Convention which, in its

paragraph 1, inter alia provides that

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The applicant maintains that, by having been ordered to pay

fines, he was subjected to one of the two basic forms of punishment

within the domestic penal laws. All fines constitute punishment and the

administration of punishment must - without exception - fulfil the

guarantees of Article 6 (Art. 6) of the Convention. The applicant also

submits that it follows from the Penal Code that "inappropriate

behaviour" as provided in the Code of Judicial Procedure Chapter 9,

Section 5, is a criminal offence since the penal reaction is a fine.

Therefore every question as to "inappropriate behaviour" under the Code

of Judicial Procedure should be heard publicly in accordance with the

guarantees of Article 6 (Art. 6) of the Convention. In the present

case, however, so the applicant submits, the court decisions by which

he was fined for having committed an "offence against the order in

court" (rättegångsförseelse) constituted a secret inquisitorial penal

process during which he did not receive a public hearing or any

opportunity to refute the charges against him.

The Government maintain that Article 6 (Art. 6) is not applicable

to the proceedings in question or, in the alternative, that the

applicant's complaints under this provision are manifestly ill-founded.

They argue that under Swedish law "offences against the order in court"

(rättegångsförseelse) is not considered to constitute a criminal

offence but is included in the Code of Judicial Procedure enabling a

court to react speedily against improper behaviour of different kinds.

The determination of such issues rather constitutes an examination in

the exercice of judicial control of the proper administration of

justice. The sanction serves the disciplinary purpose of deterring from

behaviour which could encroach on the authority of the judiciary and

should not, therefore, fall within Article 6 (Art. 6) of the

Convention. Furthermore, the Government argue that the entirety of the

proceedings and the special features concerning "offences against the

order in court" (rättegångsförseelse) under Swedish law would not

require an oral hearing for the purpose of complying with Article 6

(Art. 6) of the Convention.

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination of this aspect of the case the

Commission has reached the conclusion that it raises serious issues as

to the interpretation and application of Article 6 para. 1 (Art. 6-1)

of the Convention and that these issues can only be determined after

a full examination of their merits. It follows that this part of the

application cannot be regarded as manifestly ill-founded within the

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

ground for declaring it inadmissible has been established.

2.The applicant also complains that the courts' decisions ordering

him to pay a total of 3,000 Swedish crowns amounted to an unjustifiable

interference with his right to freedom of expression secured to him

under Article 10 (Art. 10) of the Convention which reads:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority and regardless of

frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

In this respect the Commission notes that neither party dispute

that the restriction imposed upon the applicant constituted an

interference in the exercise of his right to freedom of expression.

The Commission therefore has to examine whether, in accordance

with Article 10 para. 2 (Art. 10-2), the interference in the present

case was "prescribed by law", whether it had an aim which was

legitimate and whether it was "necessary in a democratic society" for

the aforesaid aim (cf. for example Eur. Court H.R., The Sunday Times

judgment of 26 April 1979, Series A no. 30, p. 29, para. 45).

As regards the criterion "prescribed by law", the Government

argue that the provision concerning "offences against the order in

court" (rättegångsförseelse) is included in a statute, Chapter 9,

Section 5, of the Code of Judicial Procedure and that it is clear from

this provision that inappropriate behaviour is sanctioned.

The Commission, which finds that Chapter 9, Section 5, of the

Code of Judicial Procedure is sufficiently precise in its formulation,

shares the view of the Government and finds that the restriction was

"precribed by law". It furthermore pursued a legitimate aim covered by

Article 10 para. 2 (Art. 10-2) of the Convention, namely the aim of

maintaining the authority and impartiality of the judiciary.

Accordingly it remains to be determined whether the interference

was "necessary in a democratic society" for achieving this aim.

In this respect the Commission recalls that according to its

case-law and that of the European Court of Human Rights the Contracting

States have a certain margin of appreciation in assessing whether and

to what extent an interference is necessary, but this margin goes hand

in hand with European supervision covering both the legislation and the

decisions applying it. The Commission therefore has jurisdiction to

ascertain whether, having regard to the facts and circumstances of the

case, a "restriction" or "penalty" is compatible with freedom of

expression (cf. Eur. Court H.R., Barfod judgment of 22 February 1989,

Series A no. 149, p. 12, para. 28).

The applicant argues in essence that his statements were of a

political nature and that there were grounds for them, whereas the

Government argue in essence that it was not the applicant's criticism

as such which resulted in the interference with his freedom of

expression but the unseemly manner in which he chose to express

himself.

The Commission recalls that on each occasion the applicant was

sanctioned by the courts in question after they had received a written

submission connected with the case pending or a written appeal against

a decision taken by them. Each time the courts accepted the submissions

as such as a basis for the continuing procedure whereas specific

paragraphs on specific pages indicated by the courts were found to

contain unacceptable remarks aimed at the other party in the

proceedings, the Gothenburg District Court, or the Supreme Court. In

these circumstances the Commission finds that the interference with the

applicant's freedom of expression was based on his use of improper

language alone, and it is satisfied that the interference did not aim

at restricting his right to criticise the parties or courts involved.

In these circumstances the State's legitimate interest in protecting

the authority and impartiality of the judiciary was not in conflict

with the applicant's interest in being able to voice criticism against

the parties or in respect of the proceedings in question, and the

Commission does not find that the restrictions imposed on the applicant

were disproportionate to the legitimate aim pursued.

The Commission therefore concludes that the interference with the

applicant's right to freedom of expression was necessary in a

democratic society within the meaning of Article 10 para. 2

(Art. 10-2) 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.

3.Finally, the Commission has examined the applicant's complaints

submitted under Article 7 (Art. 7) of the Convention and Article 1 of

Protocol No. 1 (P1-1) to the Convention.

Leaving aside the questions arising under Article 26 (Art. 26)

of the Convention, in particular in respect of the applicant's

reference to Article 7 (Art. 7) of the Convention, the Commission finds

that this part of the application does not disclose any appearance of

a violation of the Convention or its Protocols. It follows that it 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 ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint concerning the obligation, imposed by

the courts without an oral hearing, to pay a total of 3,000

Swedish crowns for "offences against the order in court"

(rättegångsförseelse),

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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RAVNSBORG v. SWEDEN

RAVNSBORG v. SWEDEN

LEXI