Communicated on 17 April 2020 Published on 25 May 2020

THIRD SECTION

Application no. 46544/19 Sven ARNESKANS against Sweden lodged on 28 August 2019

STATEMENT OF FACTS

The applicant, Mr Sven Arneskans , is a Swedish national who was born in 1929 and lives in Stockholm. He is represented before the Court by Mr J.V. Palm, a lawyer practising in Stockholm.

The circumstances of the case

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

The applicant was born out of wedlock. Since his mother, who took care of him alone, did not have the financial means to care for him, the applicant was taken into public care at the age of one, in 1930, and he lived in turn with his mother, grandmother and aunt. In 1933, at the age of four, the applicant was placed within the municipality in a family who had offered to take care of him for the lowest cost. His placement in this foster home lasted until 1944, when the public care was terminated. While in public care, the applicant was allegedly repeatedly subje cted to physical and mental ill- treatment as well as to sexual abuse by the foster family and to bullying at school.

On 28 January 2013 the applicant applied for ex gratia compensation within the framework of a temporary Compensation Act ( lagen om ersättning på grund av övergrepp eller försummelser i samhällsvården av barn och unga i vissa fall , Act no. 2012:663) for abuse he had endured while in foster care from 1933 to 1942.

On 6 May 2014 the Compensation Board ( Ersättningsnämnden ) refused his application. It found that, although there was evidence in the archives that the applicant had stayed with the foster family in question and that the child welfare authorities had even directed the applicant ’ s father ’ s maintenance payments to this family, there had been no official decision on taking the applicant into public care. Since the applicant could not show that he had indeed been taken into public care, he had no right to compensation. The Board also rejected the applicant ’ s request for an oral hearing as there was no apparent need for such a hearing to be held. T he applicant had not requested the holding of an oral hearing for hearing any witnesses or for providing further evidence but only to confirm in person the evidence submitted by him in writing. No appeal lay against the decision.

On 22 December 2014 the applicant sued the State in Stockholm District Court ( tingsrätten ) for alleged breaches of Articles 6 § 1 and 13 of the Convention and requested compensation of 100,000 Swedish kronor (SEK, approximately 9,100 euros).

On 27 September 2017 the Stockholm District Court dismissed the applicant ’ s compensation claim and found that there had been no breach of the Convention. The court noted that the parties agreed that the right to compensation fell within the scope of civil rights guaranteed by Article 6 § 1 of the Convention, and that there was a genuine, serious dispute. They also agreed that there was an arguable claim under Article 13. The court considered that the Compensation Board was a court or tribunal which fulfilled the requirements of independence and impartiality and that, according to the Convention, the States did not need to guarantee a right of appeal in civil matters. Moreover, the applicant had not shown that the Compensation Board ’ s decision not to hold an oral hearing was incompatible with the Convention. The burden of proof required in this matter had been the normal burden of proof required in civil matters and there was no indication that it had been incompatible with the requirements of the Convention. The applicant had been given an opportunity to produce evidence of his having been taken into public care, once it became apparent that no such decision was to be found in the archives. As to Article 13, the court held that the applicant had had several effective ways of seeking compensation for the alleged violations of the Convention.

On 11 October 2017 the applicant appealed against the Stockholm District Court judgment, now requesting that compensation be paid also under Articles 3 and 8 of the Convention because of his ill-treatment in the past.

On 23 November 2018 the Svea Court of Appeal ( hovrätten ) dismissed the applicant ’ s claims under Articles 3 and 8 without examining the merits, and upheld the remaining District Court judgment. As to his compensation claim under Articles 3 and 8, the court held that this claim had been raised for the first time before the Court of Appeal, which could not take a stand on it as a first-instance court.

On 21 December 2017 the applicant appealed against the Court of Appeal ’ s judgment.

On 25 March 2019 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal.

COMPLAINTS

The applicant complains under Articles 6 § 1 and 13 of the Convention that the composition of the Compensation Board, together with the prohibition against appeal, does not allow for a fair hearing or an effective remedy. He also argues that the comparatively low rate of compensation that could be obtained due to unreasonably high evidence requirements, together with the denied request for an oral hearing, makes the right to compensation illusory.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the evidence requirement in the temporary Compensation Act in violation of Article 6 § 1 of the Convention?

2. Was the tribunal which dealt with the applicant ’ s case independent and impartial, as required by Article 6 § 1 of the Convention?

3. Has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 6, as required by Article 13 of the Convention?