AS TO THE ADMISSIBILITY OF

                      Application No. 13800/88

                      by K.

                      against Sweden

        The European Commission of Human Rights sitting in private

on 1 July 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  M.P. PELLONPÄÄ

                  B. MARXER

             Mr.  J. RAYMOND, Deputy 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 14 September 1987

by K. against Sweden and registered on 26 April 1988 under

file No. 13800/88;

        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 30 January and 27 August 1990 and the observations in

reply submitted by the applicant on 5 June 1990 and 22 January 1991;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows.

        The applicant is a Swedish citizen, born in 1925.  She resides

at L., Sweden.  Before the Commission she is represented by her

lawyer, Mr.  Magnus Möller, Värnamo, Sweden.

A.      The particular circumstances of the case

        The applicant was previously married to H. K..  In 1962 the

District Court (tingsrätten) of Värnamo established judicial division

of the joint estate (boskillnad) of the spouses at their request.  In

1977 their marriage was dissolved by the District Court of Halmstad at

the request of both spouses.  The applicant maintains that she and her

ex-husband have lived apart since then.

        In 1986 H. K. owed approximately 60.000 Swedish crowns to the

Swedish State, inter alia for arrears of taxes.  In order to cover

these debts and other debts to a private creditor, the Enforcement

Office (kronofogdemyndigheten) of Värnamo decided to seize (utmäta)

property at the applicant's house.  On 27 October 1986 representatives

of the Enforcement Office of Värnamo entered the applicant's house.

She was at that moment in hospital, a fact of which the bailiff was

not aware.  Furniture, such as sofas, paintings, carpets and tables,

was seized as well as 30,000 Swedish crowns in cash which was found in

a plastic bag under a carpet.  The decision to seize was based on "the

presumption of ownership of property possessed by cohabiting couples"

in Chapter 4, Section 19 of the 1981 Code of Enforcement

(Utsökningsbalken) as the Enforcement Office was of the opinion that

the applicant and her ex-husband still lived together.

        The applicant had not been informed in advance of the

bailiff's intentions.  H. K., however, was informed, in conformity with

Chapter 4, Section 12 of the Code of Enforcement, about the fact that

the matter of execution for his debts was pending before the

Enforcement Office and that the bailiff could be expected to seize his

property to cover his debts.  This information was sent to him at his

address in the city of Värnamo where he rented a flat, consisting of

one room and a small kitchen.  H. K. was not informed about the time

and place of the seizure.  According to the Government this was in

order to prevent the seizure from being obstructed.  The Enforcement

Office considered the matter as urgent as it had earlier on the same

day seized property at the house of some relatives of the applicant

and her ex-husband.  The Enforcement Office considered there was a risk

that the applicant or her ex-husband might be warned about the planned

seizure by their relatives.  For the same reasons the bailiff found it

necessary to enter the applicant's house without her consent.  The

bailiff was assisted by a locksmith and the lock of one of the two

outer doors was changed.  The Government further submit that a note was

placed on the door to inform the applicant about the changing of the

lock.  The applicant maintains that there was no note on the door, but

that a bill from the locksmith had been left in the house.  The

applicant also maintains that her house was in disorder after the

seizure; for example the contents of drawers had been thrown all over

the floor.  The Government deny this.

        The applicant objected to the seizure submitting that she and

her ex-husband divorced in 1977, and she maintained that all property

seized belonged to her.  On 11 November 1986 the Enforcement Office

rejected the applicant's objection.

        On 17 November 1986 the applicant appealed against the seizure

to the Göta Court of Appeal (Göta hovrätt).  The other parties were the

State, represented by the Enforcement Office, and subsequently also

her ex-husband and one of his creditors.  The applicant requested

the Court to invalidate the seizure as she was the lawful owner of

the furniture and money seized and had lived apart from her former

husband since their divorce in 1977.  She maintained that she had an

income of her own, which had made it possible for her to purchase the

seized property.

        On 18 December 1986 the Court of Appeal decided to stay the

forced sale of the furniture until its final decision had been

pronounced.  The applicant's opposite parties were invited to submit

observations to the Court.

        The Enforcement Office submitted observations to the Court of

Appeal on 27 November and 8 December 1986 in which it was maintained

that the applicant and her ex-husband still lived together and that

their divorce was merely pro forma.  This view was supported inter alia

by evidence submitted to the Enforcement Office by a neighbour and a

person who wanted to remain anonymous.  According to the Code of

Enforcement the ex-husband was therefore to be considered as the owner

of the furniture seized.  This presumption the applicant had not been

able to refute.  The Enforcement Office furthermore submitted evidence

supporting its view that the applicant had had no financial

possibility to acquire the property in question.

        In reply to these observations, a copy of which she received,

the applicant maintained that she did not live together with her

ex-husband and that her neighbours had shown hostility towards her.

The applicant did not request a hearing before the Court of Appeal nor

that any witnesses be heard.

        The case was examined, without a hearing, by the Court of

Appeal on 2 February 1987 on the basis of the written observations

submitted by the parties.  In its decision of the same day the Court

stated:

(translation)

"According to Chapter 4, Section 17 of the Code of Enforcement

personal property may be seized if it appears to belong to the

debtor or if he, in accordance with the subsequent Sections,

is to be regarded as the owner.  Section 19 provides inter

alia that where the debtor actually cohabits with someone

under circumstances similar to a marriage he is to be regarded

as the owner of personal property which they have in their

common possession if it is not rendered probable that the

property is joint property or it is shown that the property

belongs to the other.

In the present case the property seized was found in [the

applicant's] house.  The property may - since it has not

otherwise been shown that it belongs to [H.K.] - only

be seized if the examination of the case leads to the

conclusion that [the applicant] and [H.K.] cohabit.  In the

travaux préparatoires to the Code of Enforcement (Government

Bill 1980/81:8 p. 1210) it is stated that it is not the

intention that the Enforcement Office should examine very

closely the cohabitants' private situation.  Further it is

stated that joint ownership ought not to be presumed if it

should appear questionable whether actual cohabitation under

circumstances similar to a marriage exists.  This, however,

does not exclude that the question of cohabitation is

considered in the light of all the material the Enforcement

Office has submitted.

The examination of the case shows to the Court of Appeal

that [H.K.] and [the applicant] cohabit under circumstances

similar to a marriage.  The property is therefore to be

regarded as belonging to [H.K.] unless it may be regarded as

belonging to [the applicant] or someone else. [The

applicant] has not been able to show that the seized

property belongs to her.  It has not been alleged that she is

co-owner of the property.  There is no reason to order [the

applicant] to institute proceedings in accordance with

Chapter 4, Section 20 of the Code of Enforcement.  For these

reasons the appeal is rejected."

In a dissenting opinion one of the judges stated:

"As regards the question whether [H.K.] actually cohabits

with [the applicant] under circumstances similar to a

marriage the Code of Enforcement does not permit the

Enforcement Office to investigate the matter in addition to

what can be established during the execution of the

enforcement order or through information submitted by the

debtor.  It is therefore inadmissible to base an evaluation,

as in the present case, on information submitted by a

neighbour and by an anonymous person.  The remaining evidence

does not sufficiently establish that [H.K.] actually

cohabits with [the applicant] under circumstances similar to

a marriage.  For these reasons, and since the property was in

[the applicant's] possession when it was seized, the seizure

must be annulled."

        On 23 February 1987 the applicant asked for leave to appeal to

the Supreme Court (Högsta domstolen).  She requested the Court to annul

the seizure.  She maintained in particular that the evidence submitted

showed that the property belonged to her and that the Court of

Appeal's evaluation of this, based to some extent on information from

an anonymous person, was unacceptable.  Furthermore she challenged the

concept of ownership set out in the Code of Enforcement which in her

opinion led to unacceptable results.  The applicant did not complain

about the fact that the Court of Appeal had examined the case without

an oral hearing.

        On 24 March 1987 the Supreme Court refused leave to appeal.

        The Enforcement Office's handling of the matter was

subsequently reported to the Parliamentary Ombudsman

(Justitieombudsmannen) by the applicant.  Written observations were

submitted to the Ombudsman by the Enforcement Office.

        In his report of 23 December 1988 the Parliamentary Ombudsman

stated:

(translation)

"The point of departure for the Enforcement Office was that

the two divorced spouses were cohabiting under conditions

similar to marriage at [the applicant's] house and that the

ex-husband for that reason should be regarded as the owner

of the property in question in accordance with the

provisions in the Code of Enforcement and that [the applicant]

had not been able to refute this presumption.  The opinion of

the Enforcement Office has been accepted by the superior

instances.  I have no reason to take a position on whether this

assessment was correct or not.

From this point of view and under the circumstances

indicated by the Enforcement Office I can neither blame the

Enforcement Office for not having informed [the applicant]

about the time set for the enforcement, nor for the fact

that her house was entered by force.

Concerning the handling of the contents of certain drawers,

the information submitted by the parties is irreconcilable.

A continued investigation would probably not lead to clarity

with respect to this issue.  For that reason I leave this

question.

The case is closed."

        The applicant has not instituted separate civil proceedings in

respect of the question of ownership of the seized property.

B.      Applicable domestic law and practice

        Enforcement

        The Swedish Code of Enforcement of 1981, which entered into

force on 1 September 1982, contains the rules applicable to the

enforcement of judgments or decisions requiring a person to fulfil

certain obligations, e.g. the payment of a certain amount of money.

More detailed rules concerning the proceedings before the enforcement

authorities are found in the 1981 Ordinance on Enforcement

(Utsökningsförordningen 1981:981).

        Seizure

        Chapter 4 of the Code of Enforcement contains special rules

concerning seizure.  By seizure is meant that property belonging to

the debtor is secured by the Enforcement Office to cover the

creditor's claims against the debtor.  Seized property may be sold by

the Enforcement Office in accordance with the specific rules laid down

in Chapter 8 of the Code of Enforcement, and the creditors are

compensated by the sum obtained from the sale.

        According to Chapter 4, Section 8, a request for seizure shall

be made to the Enforcement Office in the district where the debtor is

resident.  Such a request is made by the creditor.  After having

investigated whether the debtor owns any property that can be seized,

the Enforcement Office shall carry out the seizure as soon as possible

(Chapter 4, Sections 9-10).

        The debtor's right to be informed etc.

        Before the Enforcement Office seizes the property in question,

the debtor shall be informed about the case by letter or otherwise.  If

there is a risk that the debtor may remove or destroy his property or

if the case is urgent, this information is not required.  The

enforcement may take place without the debtor being present, provided

it is not required that he should be heard (Chapter 4, Sections

12-13).

        Chapter 2, Section 17 of the Code of Enforcement provides that

the bailiff, if needed, may search a house for carrying out the

seizure.  The bailiff may unlock closed doors or in other ways enter a

house for the purpose of finding objects or property that can be

seized.  However, he may not enter a dwelling when the person in

possession of the property is not present, unless the person in

possession of the property has been informed about the time for the

enforcement by letter sent to the person in possession of the property

or delivered in some other appropriate manner, or there are reasons to

believe that the person in possession of the property is deliberately

staying away, or there are other special reasons.

        According to the travaux préparatoires to the Code of

Enforcement (Government Bill 1980/81:8, p. 251) special reasons for

not informing the person in possession of the property usually exist

in those cases where it is apparent that the debtor or someone else is

trying to obstruct the enforcement.  Such reasons also exist in the

circumstances mentioned in Chapter 4, Section 12, i.e. if there is a

risk that property will be removed or destroyed or when the matter is

urgent.  In these circumstances the Enforcement Office does not have

to inform the person concerned about the enforcement.

        The provision in Chapter 2, Section 17 of the Code of

Enforcement is applicable not only to a dwelling owned by the debtor

but also to dwellings owned by persons other than the debtor.  The

same conditions as regards the obligation to give information about

the enforcement apply in these cases.

        The relation to a third party

        According to Chapter 4, Section 17 of the Code of Enforcement,

removable property may be seized on condition that it is clear that

the property in question belongs to the debtor or if he is to be

presumed to be the owner in accordance with what is stated in Chapter

4, Sections 18 and 19 of the Code.

        The last-mentioned two provisions contain certain rules on

the legal presumption of ownership for the purpose of seizure.

        Chapter 4, Section 18 of the Code of Enforcement states

that property in the debtor's possession shall be considered to

belong to the debtor if it cannot be shown that the property

belongs to someone else.

        Chapter 4, Section 19 of the Code of Enforcement contains a

special rule focusing on moveable property that spouses or other

cohabiting couples jointly possess.  In this provision it is stated

that, if the debtor is married and the spouses are cohabiting or if

the debtor cohabits with someone under conditions similar to marriage,

the debtor shall be presumed to be the owner of the property that they

have in their joint possession.  The presumption no longer applies if

it is made probable that the cohabiting persons are joint owners of

the property in accordance with a special Act, the 1904 Act on Joint

Ownership (lagen 1904:48, s 1 om samäganderätt), or if it is shown

that the property belongs to the other cohabitee or to someone else.

        The presumption of ownership applies only if it is established

that the debtor is cohabiting with his spouse or with someone else

under conditions similar to marriage.  The burden of proof in regard

to cohabitation rests with the person who requests the seizure or,

when the Enforcement Office represents the State as creditor, with

that Office.  There are no specific rules in the Code of Enforcement

concerning the evidence required.

        The purpose of these rules is to establish who shall be

regarded as the owner of the property for the purpose of seizure.  The

assessments made by the Enforcement Office or the courts under these

provisions have no other legal effects.  The question of which of two

parties shall be regarded as the owner of property, when a dispute has

arisen in this respect, must be determined by a court according to the

usual principles of civil law in civil law proceedings.

        Therefore, according to Chapter 4, Section 20 of the Code of

Enforcement, the Enforcement Office or a court, if there are

sufficient reasons, shall invite a third party who claims to be the

owner of seized property to institute proceedings against the debtor

and the creditor within one month, in order to obtain the court's

ruling with regard to the question of ownership.  If the third party

chooses not to institute proceedings within this time-limit he loses

his right against the creditor.

        The application of this provision is left to the discretion of

the Enforcement Office and the courts, which shall apply it only if

there are sufficient reasons to invite the third party to institute

proceedings.  If it is found evident that there is no purpose in

instituting such proceedings the rule is not applied.  According to

the established case-law in this field, it is normally required that

the third party is able to make it probable that he is the owner of

the seized property.

        However, proceedings concerning the question of ownership can

always be instituted as a matter of civil law.  Such proceedings can be

instituted under Chapter 13, Section 2 of the Code of Judicial

Procedure (rättegångsbalken) which, in so far as relevant, has the

following wording:

        (translation)

        "An action to establish whether a specific legal relationship

        exists or does not exist is admissible if there is an

        uncertainty as to the legal relationship and this uncertainty

        is to the detriment of the plaintiff."

        By virtue of this provision a person who claims to be the

owner of seized property can obtain the court's ruling as to the

question of ownership.  The provision applies regardless of whether

the third party has been invited to institute proceedings as a result

of directions issued in accordance with Chapter 4, Section 20 of the

Code of Enforcement, as appears from a decision of the Swedish Supreme

Court of 28 March 1984 (NJA 1984 p. 222).

        There are some differences between proceedings instituted as a

result of directions issued in accordance with Chapter 4, Section 20

of the Code of Enforcement and proceedings instituted without such a

direction.  According to Chapter 8, Section 5 para. 1 of the Code of

Enforcement seized property may not be sold until the proceedings

instituted as a result of directions issued in pursuance of Chapter 4,

Section 20 of the Code of Enforcement have been concluded.  As regards

proceedings instituted without such a direction the same effect does

not apply.  But the Enforcement Office may nevertheless, if required,

according to the second paragraph of Chapter 8, Section 5 of the Code

of Enforcement, postpone the date set for the sale when such proceedings

have been instituted.  However, the court before which such

proceedings have been instituted, is not empowered to stop further

enforcement of the seizure as an interim measure.  This appears from

the travaux préparatoires to the Code of Enforcement (Government Bill

1980/81:8, p. 572).

        Proceedings before the Court of Appeal

        According to Chapter 18, Section 1 of the Code of Enforcement

the decision of the Enforcement Office to seize property can be

appealed against to the Court of Appeal.  With respect to the

proceedings before the Court of Appeal, the provisions of the Code of

Judicial Procedure apply.  The relevant rules are found in Chapter 52

of that Code.

        The proceedings according to Chapter 52 of the Code of Judicial

Procedure are normally conducted in writing.  The written appeal is

communicated to the other party if the appeal is not rejected immediately

by the Court of Appeal.  If the appeal is communicated to the other

party that party is invited to submit its opinion on the appeal.  All

written material submitted by the parties is available to the Court

during the deliberations and when it makes its decision.

        Chapter 52, Section 10 of the Code of Judicial Procedure

contains a special provision according to which the Court of Appeal

may, if deemed necessary, conduct a hearing.  The first sentence of

this provision reads :

        (translation)

        "Where it is required for the purposes of the investigation

        of a case that a party or other person be heard orally

        by the Court of Appeal, the Court of Appeal shall decide on

        such a hearing as it finds appropriate."

        The decision of the Court of Appeal can be appealed against to

the Supreme Court.  However, as in other cases, the substance of the

appeal will only be examined if the Supreme Court first has granted

leave to appeal.

COMPLAINTS

        The applicant complains under Article 6 para. 1 of the

Convention that there was no public hearing in the Court of Appeal and

that its decision was based on statements from an anonymous witness.

        The applicant also complains of the circumstances whereby the

Enforcement Office seized the personal property in question.  She

submits that she was not informed in advance of the bailiff's

intentions and that the lock of her house had been changed so that she

could not enter when she returned from hospital.  She furthermore

submits that some of her belongings kept in drawers had been thrown

over the floor.  The applicant contends that this procedure amounts to

disrespect for her private life and her home.  She invokes Article 8

of the Convention.

        Finally the applicant alleges that she has been deprived of

her property contrary to Article 1 of Protocol No. 1 to the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 14 September 1987 and

registered on 26 April 1988.

        On 12 October 1989 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit, by 5 January 1990, written observations on the

admissibility and merits of the application, limited to the issues

under Articles 6 and 8 of the Convention.

        After an extension of the time-limit the Government submitted

their observations on 30 January 1990.  After extensions on 26 March,

25 April, 10 May and 23 May 1990 of the time-limit the applicant's

observations in reply were submitted on 5 June 1990.

        Further observations were submitted by the Government on

27 August 1990 and by the applicant on 22 January 1991.

THE LAW

1.      The applicant complains that there was no public hearing in

the Göta Court of Appeal and that the Court's decision was based on

statements from an anonymous witness.  She invokes Article 6 para. 1

(Art. 6-1) of the Convention.

        Article 6 para. 1 (Art. 6-1) reads as follows:

"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.

Judgment shall be pronounced publicly but the press and

public may be excluded from all or part of the trial in the

interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the

protection of the private life of the parties so require, or

to the extent strictly necessary in the opinion of the court

in special circumstances where publicity would prejudice the

interests of justice."

        The Government submit that Article 6 para. 1 (Art. 6-1) is not

applicable to the proceedings in the present case as enforcement

proceedings do not concern a "civil right" within the meaning of

Article 6 para. 1. They further submit that the applicant has not

exhausted domestic remedies as she did not institute separate civil

proceedings in order to have the ownership of the seized property

determined.

        The Government also submit that the fact that the applicant

did not get a public hearing in the Court of Appeal does not

constitute a violation under Article 6 para. 1 (Art. 6-1) as she must be

considered to have waived her right in that respect by not requesting

such a hearing.  They invoke the case-law of the European Court of

Human Rights (Eur.  Court H.R., Håkansson and Sturesson judgment of 21

February 1990, Series A no. 171).  As regards the information provided

by an anonymous witness the Government submit that, as opposed to

criminal proceedings where there is a right to have witnesses

examined, in civil proceedings the Convention does not guarantee such

a right but merely a "fair hearing".  In civil proceedings the national

legislator is more free to decide what evidence is required for

establishing a certain fact.  The enforcement proceedings in the

present case should in this respect be considered civil proceedings,

their only purpose being to establish what property could be seized.  The

applicant did not request to have any witnesses examined.  Furthermore,

in view of the fact that the decisions of the Court were also based on

evidence other than the information provided by the anonymous witness,

the Government contend that the complaints under Article 6 (Art. 6) of the

Convention are manifestly ill-founded.

        The applicant maintains that Article 6 para. 1 (Art. 6-1) is

applicable, that the relevant domestic remedies have been exhausted

and that the Court of Appeal should have given her a public hearing

regardless of whether she asked for it or not.  Furthermore she

maintains that she was deprived of the possibility to refute the

statements of the anonymous witness.

        As regards the applicability of Article 6 (Art. 6) of the

Convention the Commission recalls that decisions taken by a court

enforcing adjudicated claims do not necessarily entail a new separate

determination of civil rights (cf.  No. 11258/84, Dec. 7.7.86, D.R. 48

p. 225).  In the present case, however, the enforcement proceedings,

though based on already established claims, raised new legal issues

under the Code of Enforcement, providing remedies for the applicant to

avoid the seizure of the property which she alleged belonged to her.

        In these circumstances the Commission considers that the

proceedings at issue concerned a determination of the applicant's

civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

        As regards the applicant's complaint of the lack of an oral

hearing the Commission recalls that the public character of court

hearings constitutes a fundamental principle enshrined in paragraph 1

of Article 6 (Art. 6-1), although neither the letter nor the spirit of this

provision prevents a person from waiving of his own free will, either

expressly or tacitly, the entitlement to have his case heard in public

(see for example Eur.  Court H.R. Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 54, p. 25, para. 59, and the H.

v.  Belgium judgment of 30 November 1987, Series A no. 127, p. 36,

para. 54).  However, a waiver must be made in an unequivocal manner and

must not run counter to any important public interest.

        No express waiver was made in the present case.  The question

is whether there was a tacit one.  In this respect the Commission

recalls that Swedish law expressly provides for the possibility of

holding public hearings in Chapter 52, Section 10 of the Code of

Judicial Procedure.  Since in Sweden the enforcement proceedings

complained of usually take place without a public hearing the

applicant could have been expected to ask for such a hearing if she

had found it important that one be held.  However, she did not do so.

She must thereby be considered to have unequivocally waived her right

to a public hearing before the Göta Court of Appeal (cf.  Eur.  Court

H.R. HÃ¥kansson and Sturesson judgment of 21 February 1990, Series A

no. 171, pp. 20-21, paras. 64-68).  Her misgivings as to her treatment

before that Court only seem to have emerged in the course of the

proceedings before the Commission as she did not raise, either in form

or in substance, in the proceedings before the Göta Court of Appeal or

before the Supreme Court any complaint in this respect.  Furthermore,

the Commission does not find that the case involved questions of

public interest which could have made a public hearing necessary.

        As regards the information submitted by an anonymous person

the Commission recalls that the applicant raised this complaint in her

appeal to the Supreme Court.  The Commission recalls, however, that the

information submitted by an anonymous person was merely a part of the

evidence invoked in the Enforcement Office's written submissions a

copy of which the applicant received.  Accordingly she had the

possibility to refute the argumentation of the Enforcement Office in

her written pleadings.  As set out above she could have asked for a

hearing during which witnesses could have been heard.  However, she

chose not to avail herself of this possibility.  Furthermore, the

admissibility of evidence is primarily a matter for national law,

whereas the task of the Commission is to ascertain whether the

proceedings considered as a whole were fair.  Having regard to the

circumstances of the present case and the possibilities open to the

applicant under national law, the Commission cannot find that the

applicant did not get a fair hearing within the meaning of Article 6

para. 1 (Art. 6-1) 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 applicant also complains of the circumstances in which the

Enforcement Office seized the property in question: that she was not

informed in advance of the bailiff's intentions, that the doorlock had

been changed and that her belongings, kept in drawers, were thrown

over the floor.  She invokes Article 8 (Art. 8) of the Convention,

which reads:

"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 the enforcement in

question constituted an interference with the applicant's right to

respect for her private life and her home.  The Government further

submit that the applicant was not informed about the seizure because

of the risk that the enforcement would be obstructed if the debtor,

the ex-husband, had received information about the enforcement and

because the bailiff considered the matter urgent.  The measures taken by

the Enforcement Office were in accordance with domestic law and had a

legitimate aim, namely the protection of the rights of others, in the

present case the rights of the creditors.  The Government submit that

the Contracting States have a wide margin of appreciation when

determining the necessity of the measures taken in pursuance of the

aims enumerated in para. 2 of Article 8 (Art. 8-2).  The enforcement

action was based on the assumption that the applicant was still

cohabiting with her former husband and the Enforcement Office was not

aware of the fact that the applicant was in hospital.  The assessment

made was not of such a character as to fall outside the margin of

appreciation afforded to the domestic authorities.  As regards the

changing of the lock of the door the Government submit that the

bailiff placed a note on the door in order to inform the applicant and

that the lock was changed on only one of two doors.  The Government

contend that the interference was justified under para. 2 of Article 8

(Art. 8-2).

        The Commission considers that the complaints relating to the

bailiff's entering into the applicant's house disclose an interference

with the applicant's right to respect for her private life and her

home within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention (cf. for example Eur.  Court H.R., Chappell judgment of 30

May 1989, Series A no. 152 pp. 21-22, para. 51, and pp. 29-30, paras.

96-99).

        It must therefore be examined whether this interference,

caused by the action of a public authority, was justified under the

terms of Article 8 para. 2 (Art. 8-2) of the Convention.  In order to be

justified an interference must satisfy three conditions: it must be

"in accordance with the law", it must pursue one or more of the

legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it must be

"necessary in a democratic society" for that or those legitimate aims.

        As regards the phrase "in accordance with the law", the

Government submit that the measures taken by the Enforcement Office

were clearly in accordance with Swedish law.

        The Commission recalls that according to the case-law of the

European Court of Human Rights the phrase "in accordance with the law"

contains certain conditions.  It does not merely refer back to

domestic law but also relates to the quality of the law, requiring it

to be compatible with the rule of law.  There must in addition be a

measure of protection in domestic law against arbitrary interferences

by public authorities with the rights safeguarded by, in this case,

paragraph 1 of Article 8 (Art. 8-1).  Furthermore, a law which confers

discretion is not in itself inconsistent with the requirement of

foreseeability, provided that the scope of the discretion and the

manner of its exercise are indicated with sufficient clarity, having

regard to the legitimate aim of the measure in question, to give the

individual adequate protection against arbitrary interference (cf.

Eur.  Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p.

30 para. 61 with further references).

        The Commission finds that the enforcement legislation applied

in the present case is formulated in a precise manner, even though

it confers a certain discretion to the domestic authorities as regards

the question when a bailiff, without having informed the person in

possession of the property, may enter a dwelling (Chapter 2, Section

17 of the Code of Enforcement: "other special reasons").  Furthermore,

the fact that the seizure was subject to review by the courts gives

the individual adequate protection against arbitrary interferences by

the authorities.  Therefore the Commission concludes that the

interference was "in accordance with the law".

        As regards the question of whether the measure had a

legitimate aim the Government submit that the enforcement was in the

interest of the rights of the creditors of the applicant's ex-husband.

        The Commission shares this view.  The protection of the

creditors' rights is a legitimate aim under Article 8 para. 2

(Art. 8-2), covered by the expression "for the protection of the

rights ... of others".

        It remains to be examined whether the enforcement was "necessary

in a democratic society" in the interest of the creditors.

        The Government submit that there is a wide margin of

appreciation afforded to the Contracting States and their authorities

as regards the determination whether a specific measure could be

considered necessary for a specific aim.  The applicant was not

informed about the seizure because there was a risk that the

enforcement would be obstructed if the debtor would receive such

information.  The Enforcement Office did not know that the applicant

was in hospital at the time, and they considered the matter urgent.

The Government further submit that the Enforcement Office and the

bailiff weighed the interference with the applicant's rights against

the risk for the creditors and concluded that the measures taken were

necessary for the protection of the rights of the creditors.

        The applicant submits that there has never been any reason to

believe that she would obstruct the enforcement or otherwise act in

such a manner as to entitle the authorities to enter her house in her

absence and without informing her in advance.  Furthermore she refutes

the Government's allegation that a note was left on the door

concerning the changing of the lock.  She maintains that her belongings

were thrown all over the floor and that the authorities went beyond

what may possibly be considered necessary in a democratic society

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

        The Commission recalls that according to the established

case-law of the European Court of Human Rights the notion of necessity

implies that the interference corresponds to a pressing social need

and that it is proportionate to the legitimate aim pursued.

Furthermore it is to be taken into account that a margin of

appreciation is left to the Contracting States (see for example Eur.

Court H.R., Olsson judgment mentioned above, pp. 31-32, para. 67 with

further references).

        In the present case the Commission recalls that the parties

disagree on the factual circumstances regarding the manner in which

the bailiff carried out his duties.  The Commission notes, however,

that the Parliamentary Ombudsman found no reason to criticise the

authorities or the mode of execution and that the Court of Appeal

established that the Enforcement Office had been entitled to carry out

the seizure of the property in question.  The Commission notes that the

bailiff's duties by their very nature were bound to cause some

difficulties for the applicant and it finds that the manner in which

the execution was effected would in normal circumstances be considered

to be harsh.  However, having regard to the circumstances of the

present case, in particular the special problems connected with the

enforcement of the claims against the applicant's former husband, the

Commission finds that the procedure followed was not only in

conformity with Swedish law but could also reasonably be regarded as

proportionate to the legitimate aim pursued.  Accordingly, it finds,

having regard to their margin of appreciation, that the authorities

did not go beyond what could be regarded as necessary in a democratic

society within the meaning of Article 8 para. 2 (Art. 8-2) of 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 applicant finally complains that she has been deprived of

her property contrary to Article 1 of Protocol No. 1 (P1-1) to the

Convention.

        With regard to this complaint the Commission recalls that,

according to Article 26 (Art. 26) of the Convention, it may only deal

with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

Accordingly the Commission must first examine whether the applicant

has exhausted the remedies available to her under domestic law.

        It is not in dispute between the parties that the applicant

could in principle have instituted separate civil proceedings in the

ordinary courts of law after the enforcement proceedings, in order to

have the ownership of the seized property determined.

        However, the applicant alleges that civil proceedings would be

without any prospects of success as she was not directed to institute

such proceedings during the enforcement proceedings in accordance with

Chapter 4, Section 20 of the Code of Enforcement so that the

Enforcement Office was free to sell the property regardless of the

outcome of any subsequent civil proceedings.

        The Government submit in their observations concerning

Article 6 (Art. 6) of the Convention that the applicant should have

instituted civil proceedings according to Chapter 13, Section 2 of the

Code of Judicial Procedure in order to exhaust domestic remedies and

that this should have been done regardless of whether she, during the

enforcement proceedings, was directed to do so or not, as the

Enforcement Office, according to Chapter 8, Section 5, para. 2 of the

Code of Enforcement, could have agreed to postpone the sale of the

seized property under such circumstances.

        The Commission recalls that the proceedings concerning the

enforcement did not determine the question of ownership of the

property concerned but only whether the Enforcement Office was

entitled to seize it.  Nevertheless the Commission has consistently

held that the rule of exhaustion of domestic remedies requires the use

of those remedies only which are effective, that is to say capable of

providing redress for the complaints submitted (cf. for example Nos.

8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144).

        The Commission finds that it was possible for the applicant to

institute civil proceedings in order to have the ownership of the

seized property determined.  The effectiveness of such proceedings

would to a large extent have depended on whether the Enforcement

Office would have agreed to postpone the sale of the property pending

the outcome of the proceedings.  However, it cannot be excluded that

such a decision would have been taken, and in these circumstances

civil proceedings cannot be considered an ineffective remedy.

        As the applicant did not avail herself of this possibility it

follows that the complaint under Article 1 of Protocol No. 1 (P1-1) to the

Convention must be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention for non-compliance with the requirement

of exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention.

        For these reasons, the Commission by a majority

        DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission               President of the Commission

          (J. RAYMOND)                                 (C. A. NØRGAARD)