Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13177/87

by Mats NILSSON

against Sweden

The European Commission of Human Rights sitting in private

on 14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 8 April 1987

by Mats NILSSON against Sweden and registered on 31 August 1987 under

file No. 13177/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen, born in 1943. He is a

doctor of medicine and resides at Frösön, Sweden.

As from the autumn of 1981 until April 1982 the applicant's

two children participated in a day-care arrangement organised by the

social authorities of Stockholm, where the applicant lived at that

time. In April 1982, however, the applicant was informed by the

social authorities of Stockholm that his children could no longer

participate in this particular arrangement and the applicant

experienced difficulties in arranging for somebody to look after his

children on a private basis. The applicant maintains that it cost him

approximately 6,000 Swedish crowns in addition to a loss of salary as

he and his wife had to take extra holidays for this purpose.

It does not appear that the applicant contacted the social

authorities in 1982 or 1983 in order to recover their extra costs and

the family moved from Stockholm on 1 July 1983. On 11 June 1984 the

applicant submitted a request to the social authorities of Stockholm

claiming 4,600 Swedish crowns in compensation for the extra expenses

he had in connection with the special arrangements he had made in

order to have somebody to take care of his children. His request was

considered by the Stockholm Social District Council No. 14 (sociala

distriktsnämnden 14) on 7 November 1984 when it decided to reject the

applicant's request.

The applicant then submitted his case to the City of Stockholm

Law Office (Stockholms stadskansli, stadsjuristen) requesting an

evaluation of the merits of the case. He also requested information on

how to appeal against the decision of the Social District Council.

On 27 November 1984 the applicant was informed of the reasons behind

the decision of the Social District Council and that an appeal against

such decisions (kommunalbesvär) could be lodged with the

Administrative Court of Appeal (kammarrätten) within a period of three

weeks from the date of the decision. It was only possible, however,

to lodge such an appeal if the person in question was living within

the municipality of Stockholm.

The applicant complained about this information to the

Parliamentary Ombudsman (justitieombudsmannen) as he was no longer

living in Stockholm. However, on 19 June 1985 the Ombudsman informed

the applicant that he agreed with the opinion voiced, that only

persons living within the municipality of Stockholm could appeal

against its decisions.

The applicant submitted a new complaint to the Ombudsman on

5 July 1985. His decision of 10 December 1986, however, did not change

the situation.

COMPLAINTS

The applicant invokes Article 6 of the Convention. He

maintains that the Social District Council, in its decision of

7 November 1984, determined a civil right within the meaning of this

provision and that he has no access to a court in order to have this

administrative decision examined.

THE LAW

The applicant has complained, under Article 6 (Art. 6) of the

Convention, that he has no possibility of having the Social District Council's

decision of 7 November 1984 examined by a court. Article 6 para. 1 (Art. 6-1)

first sentence reads as follows:

"1. 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."

Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone

the right of access to a court in order to determine disputes concerning his or

her civil rights. The Commission does not find it necessary, however, to

examine in the present case whether it concerns a dispute over a civil right

within the meaning of Article 6 (Art. 6) of the Convention. Neither does the

Commission find it necessary to determine whether the applicant can actually be

considered as having exhausted the domestic remedies available to him as

required by Article 26 (Art. 26) of the Convention, in view of the fact that he

apparently chose not to pursue the matter while he was still living in

Stockholm. Even assuming that these requirements for the admissibility of the

case have been fulfilled the Commission finds that the case is inadmissible for

the following reasons.

According to Article 26 (Art. 26) of the Convention the Commission "may

only deal with the matter ... within a period of six months from the date on

which the final decision was taken". According to the Commission's established

case-law the final decision within the meaning of Article 26 (Art. 26) refers

only to the final decision involved in the exhaustion of all domestic remedies

according to the generally recognised rules of international law. In

particular, only a remedy which is "effective and sufficient" can be considered

for this purpose (see for example No. 654/59, Dec. 3.6.60, Yearbook 4 pp. 276,

282; No. 9266/81, Dec. 28.1.83, D.R. 30 pp. 155, 187).

The Commission finds that the applicant's complaint to the

Parliamentary Ombudsman was not an effective remedy under the generally

recognised rules of international law. Consequently the Ombudsman's decision

cannot be taken into consideration when determining the date of the final

decision for the purpose of applying the six months time-limit laid down in

Article 26 (Art. 26).

Furthermore the Commission has constantly held that, where no domestic

remedy is available to challenge a decision, the six months time-limit runs

from the date on which an applicant was actually affected by the decision (see

for example No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138). It is true that the

applicant does not complain of the decision of the Social District Council as

such but of the fact that there was no remedy at his disposal in which he could

challenge this decision.

The applicant appears to suggest that the six months time-limit in

Article 26 (Art. 26) of the Convention is inapplicable to this complaint since

he is referring to a continuing violation of Article 6 (Art. 6)

in that there is now, and continues to be, no court remedy available to him.

The Commission has frequently held the six months time-limit to be

inapplicable in cases where the applicant has alleged himself to be the victim

of a continuing violation of his rights under the substantive provisions of the

Convention, in circumstances where no domestic remedy was available (see for

example No. 214/56, Dec. 9.6.58, Yearbook 2 p. 215). However, in the present

case the Commission does not find that the decision taken at the domestic level

affecting the applicant gives rise to any question of a continuing situation.

The decision of the Social District Council concerned the rejection once and

for all, and at a given date, of the applicant's claim.

Where domestic law gives no remedy against such a measure, it is

inevitable that unless the law changes that situation will continue

indefinitely. However, the person affected suffers no additional prejudice

beyond that which arose directly and immediately from the initial measure. His

position is not therefore to be compared with that of a person subject to a

continuing restriction on his substantive Convention rights (cf. No. 8206/78,

Dec. 10.7.81, D.R. 25 p.147).

In the circumstances of the present case the Commission therefore finds

that the decision of the Social District Council must be regarded as the "final

decision" in relation to the applicant's complaint under Article 6 (Art. 6) of

the Convention. This decision finally determined his legal position at the

domestic level, in relation not only to his claims for damages but his remedial

rights as well.

The decision of the Social District Council was given on 7 November

1984, whereas the present application was submitted to the Commission on 8

April 1987, that is more than six months after the date of this decision. It

follows that the application has been introduced out of time and must be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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NILSSON v. SWEDEN

NILSSON v. SWEDEN

LEXI