Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12448/86

by Carsten JACOBSEN

against Sweden

The European Commission of Human Rights sitting in private

on 5 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 12 August 1986

by Carsten Jacobsen against Sweden and registered on 3 October 1986

under file No. 12448/86;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The facts of the case as they appear from the applicant's

submissions, may be summarised as follows.

The applicant is a Swedish citizen born in 1920 and resident

at Falkenberg. He is retired.

On 12 March 1979 the Administrative Court of Appeal

(kammarrätten) of Gothenburg confirmed an order by the municipal

Building Committee (byggnadsnämnden), that the applicant and his wife,

under the threat of a fine of 5,000 SEK each in the case of non-

compliance, should demolish their leisure house on their property

called Skrea 5:15.

On 29 May 1979 the Supreme Administrative Court (regeringsrätten)

refused to grant leave to appeal.

Since the applicant had failed to comply with the order, the

public prosecutor, on 27 August 1982, requested the District Court

(tingsrätten) of Varberg to order the applicant to pay 5,000 SEK.

On 4 November 1982 the District Court ordered the applicant

to pay 5,000 SEK. In the judgment it is stated inter alia that the

District Court is not competent to examine whether the Building

Committee's decision to demolish the house was well-founded or not.

The applicant appealed to the Court of Appeal (hovrätten) for

Western Sweden which in a judgment of 26 February 1985 confirmed the

judgment of the District Court.

The applicant appealed further to the Supreme Court (högsta

domstolen) which on 28 May 1986 refused to grant leave to appeal.

COMPLAINTS

1. The applicant alleges a violation of Article 6 of the

Convention. He submits that he was not allowed to defend himself

personally before the Administrative Court of Appeal, that the

Court did not take into account that the Building Committee had given

contradictory information and that it accepted untruthful information

from the other party. In his submissioni the Court did not deal with

the case impartially.

Furthermore, the District Court did not examine the merits of

the case and the Court of Appeal simply confirmed the judgment of

the District Court. Accordingly the District Court and the Court of

Appeal had also violated the Convention.

The applicant also submits that, as a result of the way in

which the case was dealt with by the Administrative Court of Appeal,

the District Court and the Court of Appeal, it was not decided "within

a reasonable time".

The applicant also invokes Article 6 para. 3 (c) of the

Convention.

2. The applicant alleges a violation of Article 7 para. 1 of

the Convention. He states that the buildings had been examined and

accepted without comments and that he had received information on

15 October 1970 to that effect. Accordingly, he submits that he could

not be guilty of any criminal offence.

3. The applicant also alleges a violation of Article 17 of the

Convention in conjunction with Article 6. The provision of Article 17

requires an impartial and balanced assessment of private and public

interests and no such assessment had been undertaken in his case. The

applicant also refers to Article 14 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in the proceedings both before the Administrative Court of

Appeal and before the District Court and the Court of Appeal.

2. As regards the proceedings before the Administrative Court of

Appeal, the Commission observes that these proceedings concerned the

question whether the applicant should be ordered to demolish a house

on his property under a threat of a penalty of 5,000 SEK in case of

non-compliance with the order. This issue was finally determined when

the Supreme Administrative Court refused leave to appeal on 29 May 1979.

Under Article 26 (Art. 26) of the Convention the Commission

may only deal with a matter which has been submitted to the Commission

within six months from the final domestic decision. The present

application was introduced on 12 August 1986, which is more than six

months after the Supreme Administrative Court's decision.

Consequently, in this respect the application is inadmissible

under Article 27 para. 3 (Art. 27-3) of the Convention for failure to

comply with the six months rule.

3. As regards the proceedings before the District Court and the

Court of Appeal, the Commission observes that these proceedings

concerned the question whether or not the applicant had failed to

comply with the above-mentioned order and whether or not he should be

ordered to pay the penalty.

The Commission considers that these proceedings are similar to

enforcement proceedings in that they were a consequence of the initial

order, and were initiated because of the applicant's failure to comply

with that order. It is therefore doubtful whether the proceedings

before the District Court involved a determination of the applicant's

civil rights and obligations or a criminal charge against him.

Nevertheless, the Commission considers that it can leave open

the question of the applicability of Article 6 (Art. 6) of the

Convention, since the applicant's complaints are in any event

inadmissible for the following reasons:

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236

; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicant also complains

under Article 6 (Art. 6) of the Convention that his case was not dealt

with in compliance with that provision. He states inter alia that the

case has not been dealt with within a "reasonable time".

In this respect the Commission first notes that the

proceedings before the Administrative Courts cannot be taken into

account (cf. above). As regards the proceedings before the ordinary

courts, the Commission recalls that the proceedings before the District

Court were instituted by the public prosecutor on 27 August 1982. The

District Court delivered judgment already on 4 November 1982. The

applicant's appeal to the Court of Appeal was rejected on 26 February

1985, and his further appeal to the Supreme Court resulted in a

decision of 28 May 1986 not to grant leave to appeal. Consequently,

the proceedings before the Supreme Court only related to the question

whether leave to appeal should be granted.

The Commission considers that, although the proceedings before

the Court of Appeal lasted for more than two years and the procedure

before the Supreme Court for more than one year, there is no

indication that the duration of the proceedings, from 27 August 1982

to 28 May 1986, exceeded what can be considered to be a "reasonable

time" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention having regard to the subject-matter and the particular

circumstances of the case.

Moreover, the Commission finds no other indication of a

violation of Article 6 (Art. 6) 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.

4. The applicant also alleges violations of Articles 7, 14 and 17

(Art. 7, 14, 17) of the Convention.

However, the Commission finds no appearance of a violation of

these provisions.

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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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JACOBSEN v. SWEDEN

JACOBSEN v. SWEDEN

LEXI