GASPER v. SWEDEN



AS TO THE ADMISSIBILITY OF

Application No. 18781/91

by Roy E. GASPER

against Sweden

The European Commission of Human Rights sitting in private on

6 July 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. SVÁBY

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, 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 6 May 1991 by Roy E. GASPER against Sweden

and registered on 11 September 1991 under file No. 18781/91;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 5 October 1995 and 15 March 1996 and the observations in

reply submitted by the applicant on 22 February, 15 April and

14 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish national born in 1940, resides in

Rijswijk, the Netherlands. Before the Commission he is represented by

Mr Göran Ravnsborg, a lecturer in law at Lund University.

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

summarised as follows.

a. The particular circumstances of the case

In the late 1970's and in the beginning of the 1980's the

applicant ran a taxi business in Malmö. For this purpose, he had been

granted a transportation licence by the County Administrative Board

(länsstyrelsen) of the County of Malmöhus. Moreover, he was a member

of a private-law body known as the Malmö Taxi Economic Association. The

purpose of the latter association was inter alia to provide taxi

station services and to manage a dispatch exchange.

Following a dispute with representatives of the Association, the

applicant, on 7 November 1980, gave notice of his intention of leaving

the said Association.

In the beginning of 1981 the Association lodged a petition with

the County Administrative Board, requesting that the applicant's

transportation licence be revoked. The request rested on the contention

that, following his withdrawal from the Association, the applicant no

longer subscribed to a dispatch exchange. According to the then

relevant legislation - the 1979 Act on Commercial Transportation

(Yrkestrafiklagen, 1979:559) - the granting and holding of a

transportation licence were conditional on affiliation to such an

exchange.

By decision of 27 March 1981, the County Administrative Board

ordered the applicant - on pain of losing his transportation licence -

to apply for membership of the Association. In so doing, the Board

stated that the applicant was obliged to subscribe to a dispatch

exchange, that he should belong to the one provided by the Association

and that - in the absence of any other practicable way of bringing

about such affiliation - he should be affiliated to the dispatch

exchange by means of membership of the Association.

The decision was upheld on appeal by the Board of Transport

(Transportrådet) on 18 June 1981.

The applicant subsequently appealed to the Government, which, on

19 November 1981, quashed the impugned decision. They found that there

was no statutory basis for imposing membership of the Association as

a prerequisite for the applicant's holding of a transportation licence.

By letter of 10 December 1981, apparently invoking the 1972 Claim

Settlements Order (Kungörelsen om statsmyndigheternas skadereglering

i vissa fall, 1972:416), the applicant lodged a claim for compensation

with the Chancellor of Justice (Justitiekanslern). The amount claimed

by the applicant - 72,000 Swedish crowns (SEK) - was equivalent to the

costs for legal representation allegedly incurred by him in his -

fruitful - efforts to have the County Administrative Board's decision

quashed. He contended that the latter decision had constituted a

violation of his negative freedom of association. By decision of

4 November 1982, the Chancellor of Justice rejected the applicant's

claim. The Chancellor stated inter alia the following:

(Translation)

"[T]he fact that the County Administrative Board ordered

[the applicant] to apply for membership of the Association

instead of ordering him to affiliate his business to the

dispatch exchange cannot be considered erroneous or

negligent to such an extent that the decision could entail

liability on the part of the State to pay damages. For this

reason, I reject his claim for compensation."

Reiterating his claim for compensation, the applicant, on

9 August 1990, instituted civil proceedings against the State in the

District Court (tingsrätten) of Stockholm. Again, he maintained that

the whole of the claim - now amounting to 107,000 SEK plus interest -

referred to costs for legal representation which had been necessarily

incurred by him in the proceedings before the County Administrative

Board, the Board of Transport and the Government. He invoked Chapter

3, Section 2 of the 1972 Tort Liability Act (Skadeståndslagen,

1972:207), according to which the State is liable to pay compensation

in the event of error or negligence in the exercise of authority.

In reply to these submissions the State, represented by the

Chancellor of Justice, stated that it refused the applicant's claim but

submitted, in the alternative, that it would accept to pay 3,000 SEK,

should the District Court find that the State was indeed liable to pay

damages.

Already when instituting proceedings on 9 August 1990, the

applicant requested that all legally trained judges who - in their very

capacity as judges - were subject to disciplinary control by the

Chancellor of Justice be disqualified from examining his case. The

applicant invoked Chapter 4, Section 13, subsection 9 of the Code of

Judicial Procedure (Rättegångsbalken).

By separate decision of 17 October 1990, the District Court

rejected the applicant's request, stating that the reasons invoked by

him did not constitute grounds for disqualification under the provision

invoked.

The decision was upheld on appeal by the Svea Court of Appeal

(Svea hovrätt) on 23 November 1990. Although it was not open to the

applicant to appeal further against this decision, he lodged an appeal

with the Supreme Court (Högsta domstolen). The applicant's appeal was

treated as an extraordinary appeal against miscarriage of justice

(besvär över domvilla). On 4 June 1991 the Supreme Court dismissed the

appeal, stating that the issue of disqualification could be examined

within the context of an ordinary appeal against the District Court's

future judgment on the merits of the case.

Following the above decisions, the applicant's case continued on

its merits in the District Court.

At the request of the applicant, the District Court, on

23 January 1992, informed him that his case would be examined by judges

L.C., T.J. and B.H. Referring to his previous submissions in this

respect, the applicant immediately requested that these judges be

disqualified from examining the case. On 27 February 1992 the District

Court - sitting with three other judges and having held a separate

hearing on the issue - dismissed the applicant's request for

disqualification, finding that it was essentially identical to his

previous request concerning this issue.

The hearing on the merits took place later that day in the

presence of the applicant's counsel and the State's representative,

i.e. the Chancellor of Justice. The District Court was composed of

judges L.C., T.J. and B.H.

In its judgment of 12 March 1992, the District Court found the

State liable to pay damages. The Court stated inter alia the following:

(Translation)

"By the County Administrative Board's decision of

27 March 1981, [the applicant] was ordered - on pain of

losing his transportation licence, on which he depended for

earning his living - to apply for membership of the very

economic association he had recently left, following a

dispute between himself and the association. The decision

lacked a statutory basis ... Although - in this respect -

his negative freedom of association was not

constitutionally protected, [the applicant] had a

legitimate interest to appeal against the decision and to

vindicate his right by having the decision quashed. It has

appeared that [the applicant] is inexperienced in legal

matters. Certain costs for legal representation have

therefore been necessary in order for him to obtain his

rights. To the extent that the applicant can be reimbursed

for these costs, they constitute the loss for which the

State must pay damages as a result of the County

Administrative Board's erroneous decision."

The District Court went on to examine the applicant's claim for

compensation, amounting to 107,000 SEK plus interest. It noted that the

pleadings in the administrative proceedings had largely related to

other issues than the alleged violation by the County Administrative

Board of the applicant's negative freedom of association. That being

so, compensation should be limited to what could have been reasonably

necessary to vindicate his right in the latter respect. On the basis

of an evaluation of the available evidence, the District Court ordered

the State to pay to the applicant a total of 9,000 SEK plus interest.

On 1 April 1992 the applicant lodged appeals with the Svea Court

of Appeal in respect of both the decision on disqualification and the

judgment on the merits. In the latter respect, he reiterated his

request for compensation in the amount of 107,000 SEK. On the same

occasion the applicant requested that all judges of the Court of Appeal

who - in their capacity as judges - were subject to disciplinary

control by the Chancellor of Justice be disqualified from examining his

appeals.

No appeal was lodged on behalf of the State. As regards the

merits of the case, the only issue to come under the Court of Appeal's

examination was therefore the size of the compensation to be paid by

the State.

In a separate decision of 10 June 1992 the appellate court

rejected the applicant's appeal against the District Court's decision

not to disqualify judges L.C., T.J. and B.H. By letter of 14

August 1992, the Court of Appeal notified the parties that the case

might be decided without an oral hearing and invited them to submit

their final observations before 31 August 1992. The applicant submitted

such observations, insisting that a hearing be held in respect of both

the issue of disqualification and the merits of the case. He requested

that four witnesses be summoned to give evidence on the issue of

disqualification.

The Court of Appeal determined the case on the basis of the

case-file. In its judgment, delivered on 19 March 1993, the Court

stated at the outset that the applicant's request for the

disqualification of all judges of the Court of Appeal was not

sufficiently precise to merit consideration. Furthermore, having found

that it would be manifestly unnecessary to hold a hearing on the merits

of the case, the Court of Appeal upheld the District Court's judgment.

In so doing, it subscribed entirely to the reasons given by the lower

court.

On 12 April 1993 the applicant asked for leave to appeal to the

Supreme Court. He referred to both the merits of his case and the issue

of disqualification of judges. In addition, he requested that every

Supreme Court Justice who - in his capacity as judge - was subject to

disciplinary control by the Chancellor of Justice be disqualified from

examining the request for leave to appeal.

Leave to appeal was refused by the Supreme Court on 1 December

1993 According to a memorandum drafted by the Judge Referee of that

Court, both the merits of the case and the issue of disqualification

were considered on that occasion. When stating the scope of the

applicant's request for leave to appeal, the decision only referred to

the claim for damages. However, it also mentioned the Court of Appeal's

judgment as the appealed decision.

b. Relevant domestic law and practice

Relevant constitutional provisions

Chapter 1, Sections 1 and 9 of the 1974 Instrument of Government

(Regeringsformen), which forms part of the Swedish Constitution,

provide that all public power must be exercised subject to the law and

that courts and public authorities shall, in the performance of their

functions, ensure the equality of all persons before the law and remain

objective and impartial.

Chapter 11, Section 2 of the Instrument of Government reads as

follows:

(Translation)

"No public authority, nor Parliament, may determine how a

court shall adjudicate an individual case or how a court,

in other respects, shall apply the law in an individual

case."

Chapter 11, Section 5 of the Instrument of Government regulates

the security of tenure enjoyed by permanent judges. Under this

provision such a judge may be removed from his or her post only if the

judge in question has - by means of a punishable offence or gross or

repeated neglect of official duties - proved to be manifestly unfit to

hold the post; or has reached the applicable age of retirement; or is

otherwise under a legal obligation to retire on a pension. Pursuant

to Chapter 11, Section 6 the Chancellor of Justice is an independent

public authority subordinate to the Government. Chapter 11, Section 7

provides that no public authority, nor Parliament, nor a decision-

making body of a municipality may determine how a public authority

should decide in an individual case concerning the exercise of

authority against a private subject or concerning the application of

the law. When performing supervisory functions (see below), the

Chancellor of Justice enjoys the latter guarantee against outside

pressures.

The Chancellor of Justice

Introduction

The Chancellor of Justice is appointed by the Government. As a

rule, holders of this office are recruited among lawyers who fulfil the

criteria for being appointed as justices in the supreme courts.

The Office of the Chancellor of Justice was set up in 1713 to

undertake an overall supervision of the compliance with acts of

legislation and the manner in which the various public offices

discharged their responsibilities. The Chancellor's present-day duties

fall into four main categories. Thus, he or she

i. advises the Government on legal matters;

ii. safeguards the rights of the State;

iii. supervises - in certain respects - public administrative

authorities and the courts; and

iv. performs other duties, e.g. that of being public prosecutor

in cases concerning offences against the freedom of the

press.

Provisions on the Chancellor's duties in these respects are found

in the 1975 Act on the Supervision exercised by the Chancellor of

Justice (Lag om justitiekanslerns tillsyn, 1975:1339 - "the 1975 Act")

and the 1975 Ordinance on the Duties of the Chancellor of Justice

(Förordning med instruktion för justitiekanslern, 1975:1345 - "the 1975

Ordinance"). At the material time, relevant provisions were also found

in the 1972 Claim Settlements Order (Kungörelsen om statsmyndigheternas

skadereglering i vissa fall, 1972:416).

The following account centres on the duties under ii. and iii.

above.

Safeguarding the rights of the State

The duty of safeguarding the rights of the State implies that the

Chancellor of Justice represents the State in civil proceedings

involving the rights of the State and in connection with out-of-court

settlements involving such rights, should there be no other authority

that is competent to do so (Section 2 of the 1975 Ordinance). The bulk

of the Chancellor's work in this respect refers to claims for damages

directed against the State.

A person wishing to claim damages from the State - contending,

e.g., that there has been an error or negligence in connection with the

exercise of public authority - may opt for one of two alternative

courses of action. At the material time, the 1972 Claim Settlements

Order provided for a system of voluntary out-of-court settlements of

claims for damages directed against the State. Thus, under Section 2

of the 1972 Order, a person claiming damages from the State could lodge

an application to this effect with the Chancellor of Justice, who -

after investigating the matter - would decide whether or not to accept

the claim. Such a decision of the Chancellor was not open to an appeal.

However, if dissatisfied with the decision, there was nothing to

prevent the claimant from pursuing his claim by instituting civil

proceedings against the State before a competent District Court. If

such proceedings were indeed instituted, the State would be represented

by the Chancellor of Justice. The 1972 Order was repealed and replaced

by a new ordinance on 1 January 1996. For all practical purposes, the

new ordinance retains intact the material rules of the 1972 Order.

In the alternative, a person wishing to claim damages from the

State may immediately institute civil proceedings against the State

before a District Court, without relying on the system of voluntary

out-of-court settlements.

Official statistics indicate that, during 1994, the Chancellor

of Justice was served with summonses in 25 cases concerning damages,

18 of which were brought directly before a court, without having first

been considered by the Chancellor under the 1972 Order.

Supervising public administrative authorities and the courts

Under Section 1 of the 1975 Act, the Chancellor of Justice shall

supervise those engaged in public activities to ensure that they comply

with laws and other statutes and that they fulfil their official duties

in all other respects.

The scope of the Chancellor's supervision is laid down in

Sections 2 and 3 of the 1975 Act and in Section 3 of the 1975

Ordinance. According to these provisions, public authorities and their

employees, those engaged by such authorities to carry out official

assignments and others who are affiliated to such authorities come

under the supervision of the Chancellor of Justice. The same applies

to municipal authorities and other authorities which are not

subordinate to the Government, employees and holders of other posts in

such authorities and others who - without being affiliated to a public

authority - hold a post or have an assignment which involves the

exercise of authority. As regards the latter category, it is expressly

stated that inter alia Members of Parliament and local councillors must

be excluded from the Chancellor's supervision. Likewise, the

supervision must not be extended to the Government or its ministers,

nor to Parliamentary agencies, employees of such agencies or those

engaged by Parliament for official assignments.

Under Section 5 of the 1975 Act, the Chancellor of Justice may -

as prosecutor extraordinary (särskild åklagare) - institute criminal

proceedings against an official who has committed a punishable offence

by neglecting his or her official duties. However, if an official has

neglected such duties and if the act of negligence can be punished in

disciplinary proceedings, the Chancellor may report the matter to

anyone vested with the authority to decide on a disciplinary sanction.

This follows from Section 6 of the 1975 Act. Section 6 also provides

that, should the Chancellor find it imperative that the official be

dismissed or suspended on account of a punishable offence or a grave

or repeated neglect of duties, he may report the matter to the person

who is authorised to decide on such a measure. Traditionally, one of

the most important supervisory duties of the Chancellor of Justice

consists in safeguarding that the legal rights of the individual are

upheld and that the rule of law prevails. The supervision exercised by

the Chancellor on behalf of the Government bears much resemblance to

the supervisory duties performed by the Parliamentary Ombudsmen on

behalf of Parliament. The courts have always come under the supervision

of both the Chancellor and the Ombudsmen.

The supervisory duties of the Chancellor of Justice are performed

by looking into complaints lodged by individuals or public authorities,

by carrying out inspections or by conducting inquiries into matters

otherwise brought to the Chancellor's attention, e.g. by reports in the

media. Most supervisory cases are initiated by members of the general

public. Inspections are rare. Official statistics indicate that, during

1994, the Chancellor of Justice gave decisions in 745 supervisory

cases, 59 of which resulted in some form of criticism being expressed.

In 399 cases there were not sufficient reasons to express criticism.

In the remaining cases the Chancellor decided not to pursue the matter

or to refer it to another authority.

Relevant provisions of the Code of Judicial Procedure

The statutory rules on disqualification of judges are found in

Chapter 4, Section 13 of the Code of Judicial Procedure, which

enumerates a series of specific grounds on which a judge may be

disqualified: for instance, where he or she is a party in the case or

otherwise has an interest in its subject-matter or can expect special

advantage or damage from its outcome; or where he or she is related

through family or marriage to someone in such a position; or has been

involved in the case as judge, or as lawyer or adviser to one of the

parties or as witness or expert. Pursuant to the last provision of this

Section - subsection 10 (previously 9), which was the one relied upon

by the applicant in the domestic proceedings - a judge must be

disqualified if some other particular circumstance exists which is

likely to undermine confidence in his or her impartiality in the case.

Swedish case-law on the interpretation of subsection 10 indicates

that, under that provision, a judge may be disqualified on the

following grounds: for instance, where the judge because of employment

is financially dependent on one of the parties; or where the judge is

a party in a similar case in another court, or where there is apparent

animosity between the judge and one of the parties; or where the judge

and one of the parties are close friends; or where the judge has

reported a crime and later handles the case in court; or where a civil

case has been referred back to a lower court by an appellate court and

the same judge of the lower court determines the case on both

occasions.

Proposals for law reform in respect of the Chancellor of Justice

The duties of the Chancellor of Justice have been subject to

review both in the 1970's and in the 1990's.

In 1974 a government committee was set up to review the duties

of the Chancellor of Justice. Its report was published in 1978 ("The

Office of the Chancellor of Justice - A Review of the Duties of the

Chancellor of Justice and the Handling by the State of Civil Disputes",

Swedish Government Official Reports, SOU 1978:59). The report expressed

the opinion that the Chancellor's primary duty should be supervision.

It also suggested that another of the principal duties - that of

safeguarding the rights of the State - should be transferred to a new

authority to be known as the "State Advocate" (Statsadvokaten). The

Government, however, did not propose any changes in this respect.

Following a critical debate both within Parliament and outside

it, the Government, in 1991, set up a committee to re-examine the

duties of the Chancellor of Justice. In its terms of reference

(direktiv), the Government stated that this review should particularly

focus on how to avoid the risk that conflicts of interest arise between

the Chancellor's various duties. In this respect, the Government

requested the committee to consider inter alia what conflicts of

interest could arise when the Chancellor of Justice represents the

State before a court at the same time as he is required, in his

supervisory capacity, to examine the manner in which the same court

deals with the case.

The report of the 1991 committee was published in 1993 ("The

Chancellor of Justice. A Review of the Duties of the Chancellor of

Justice", Swedish Government Official Reports, SOU 1993:37). The

committee suggested that the Chancellor should retain the duty of

safeguarding the rights of the State. With regard to the question of

the Chancellor's supervision of the courts, the committee expressed the

following opinion on page 59 et seq.:

(Translation)

"[T]he committee [has] had regard to inter alia the

provisions of the Instrument of Government concerning the

independence of the courts and the security of tenure of

judges. These provisions provide inter alia that no public

authority may determine how a court shall adjudicate an

individual case or how a court, in other respects, shall

apply the law in an individual case. Moreover, they provide

that a permanent judge must not be dismissed unless there

are certain objectively justified reasons for doing so. ...

...

The constitutional provisions now accounted for imply that,

when supervising the courts, the Chancellor of Justice

should not express any opinion on how the court should

adjudicate a particular case or in any other way examine

the manner in which the court has applied the law. What may

be examined and assessed by the Chancellor is merely

whether the court or an individual official has made any

procedural error in a case. Of course, borderline cases may

arise.

Another question pertaining to the independence of the

judiciary concerns the fact that the courts, which come

under the supervision of the Chancellor of Justice,

sometimes have to determine cases in which the Chancellor

appears as the representative of the State. The inquiries

carried out by the committee do not indicate that this is

actually a problem in practice. It is incumbent on both the

courts and the Chancellor of Justice to abide by the

constitutional provisions on the independence and autonomy

enjoyed by the courts in their application of the law. ...

... Consequently, the committee concludes that it

cannot find that the Chancellor's supervision of

the courts - as it is now regulated and as these

rules are applied in practice - poses a threat

to the independence of the courts."

However, to underline the importance of the independence of the

judiciary also in relation to the Chancellor of Justice, the committee

recommended that the principles already governing the Chancellor's

supervision of the courts be manifested in a new provision of the 1975

Act on the Supervision exercised by the Chancellor of Justice. The

proposed provision read as follows:

(Translation)

"When exercising supervision in respect of the courts, the

Chancellor of Justice shall take into account in particular

the provisions contained in Chapter 11, Section 2 of the

Instrument of Government."

However, the Government have not introduced any legislation to

this effect.

COMPLAINTS

1 The applicant alleges that the manner in which the courts dealt

with the issue of disqualification of judges and the issue of

compensation, respectively, amounts to a denial of justice in breach

of Article 6 para. 1 of the Convention. Also under that Article, the

applicant submits that - in view of the fact that the respondent State

was represented before the courts by the Chancellor of Justice - he was

not afforded a fair and public hearing by an independent and impartial

tribunal in respect of his claim for compensation. This, so he states,

follows from the Chancellor's supervisory functions vis-à-vis Swedish

courts and the judiciary. Moreover, the applicant complains of the fact

that he was refused an oral hearing before the Court of Appeal, in

respect of both the action for damages and the disqualification issue.

2 The applicant also alleges a breach of Article 13 of the

Convention, in that the Supreme Court ignored his request for leave to

appeal in so far as it pertained to the question of disqualification

of judges.

3 Invoking Article 14 of the Convention in conjunction with

Article 6 para. 1 and Article 13 of the Convention, the applicant

complains of the fact that he, as a private plaintiff, had to meet as

his adversary in the proceedings before the courts the Chancellor of

Justice, who is the Supreme Ombudsman of the State and in respect of

whom all courts are in favour. For this reason, so he claims, he has

been discriminated against as compared with plaintiffs who meet a

private adversary in an action for damages.

4 Finally, the applicant claims that, as a result of the

insufficient compensation for legal expenses granted by the courts,

there has been a prolongation of the initial violation of Article 11

of the Convention - manifested in the County Administrative Board's

decision of 27 March 1981 - and also a breach of Article 1 of

Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 May 1991 and registered on

11 September 1991.

On 1 December 1993 the Commission (First Chamber) decided to

adjourn the examination of the application pending the outcome of then

ongoing proceedings in Sweden.

On 17 May 1995 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure. The Government were

requested to deal with the questions whether the applicant enjoyed a

fair and public hearing by an independent and impartial tribunal as

required by Article 6 para. 1 of the Convention and, in particular,

whether the courts could be regarded as independent and impartial in

the light of the different functions vested in the Chancellor of

Justice and whether the absence of a public hearing before the Svea

Court of Appeal was compatible with that Article.

The Government's written observations were submitted on

5 October 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 22 February 1996, also after an

extension of the time-limit. The parties thereafter submitted further

observations, the Government on 15 March 1996 and the applicant on

15 April and 14 June 1996.

On 21 May 1996 the Commission granted the applicant legal aid.

THE LAW

1 The applicant alleges that the manner in which the courts dealt

with the issue of disqualification of judges and the issue of

compensation, respectively, amounts to a denial of justice in breach

of Article 6 para. 1 (Art. 6-1) of the Convention. Also under that

Article, the applicant submits that - in view of the fact that the

respondent State was represented before the courts by the Chancellor

of Justice - he was not afforded a fair and public hearing by an

independent and impartial tribunal in respect of his claim for

compensation. This, so he states, follows from the Chancellor's

supervisory duties vis-à-vis Swedish courts and the judiciary.

Moreover, the applicant complains of the fact that he was refused an

oral hearing before the Court of Appeal, in respect of both the action

for damages and the disqualification issue.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, the following:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal ..."

The respondent Government submit that the applicant's complaint

concerning the independence and impartiality of the courts is

manifestly ill-founded. They maintain that the Chancellor's dual

function of safeguarding the rights of the state and supervising inter

alia the courts constitutes a merely theoretical problem with no

significant implications in practice. In so holding, they refer to

Chapter 11, Section 2 of the Instrument of Government, according to

which no public authority, nor Parliament, may determine how a court

should adjudicate or apply the law in a particular case. Thus, when

supervising the courts, the Chancellor must not express any view on how

a court should determine a case or apply the law. Likewise, the

Chancellor of Justice cannot exert pressure on an individual judge or

a court with a view to influencing the outcome of a case. Nor can he

or she institute disciplinary proceedings against a judge as a reaction

to how the judge has applied the law in a particular case. This would

be a violation also of the basic principles on the rule of law, laid

down in Chapter 1, Sections 1 and 9 of the Instrument of Government.

Furthermore, the Chancellor's supervision of the courts is - in

practice - entirely focused on the manner in which cases are handled

from a procedural and practical point of view, e.g. that cases are

determined within a reasonable time and that the rights of the

individual are duly observed. For these reasons, the Government claim

that the independence and impartiality of the courts seized with the

applicant's case were not open to doubt and that the applicant's fears

in this respect were not objectively justified and legitimate. Finally,

they point out that the functions of the Chancellor of Justice have

been thoroughly examined in recent years and that no reform in this

respect has been deemed to be necessary.

As regards the absence of a public hearing before the Court of

Appeal in respect of both the action for damages and the issue of

disqualification of the District Court judges, the Government submit

the following. They first call into question whether the proceedings

brought about by the applicant's request that judges be disqualified

fall within the scope of Article 6 (Art. 6) of the Convention. In the

alternative, they argue that the present complaint is in any event

manifestly ill-founded in respect of both the action for damages and

the issue of disqualification. This is so since - in both cases - there

were special features to justify the appellate court's decision not to

hold a public hearing. The questions raised by the applicant's appeals

were either purely legal, i.e. whether or not to disqualify judges, or

questions that could be resolved following an equitable assessment,

i.e. the size of the compensation to be paid by the State. No facts

needed clarification through the hearing of the applicant. Thus,

neither appeal raised any questions of fact or law which could not be

adequately resolved on the basis of the case-file. In these

circumstances the Government maintain that the applicant was afforded

a fair hearing within the meaning of Article 6 (Art. 6) of the

Convention.

The applicant disputes the Government's contention that, when

supervising the courts, the Chancellor of Justice must not express any

view on how an individual case should be determined. On the contrary,

so he argues, it is incumbent on the Chancellor to express such views

when representing the State before a court. He contends that the

arguments put forward by the Chancellor when pleading a case on behalf

of the State are in fact highly authoritative views on how the court

should determine the case.

The Commission finds that the proceedings brought about by the

applicant's claim for compensation related to his "civil rights" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which

is therefore applicable to the present complaint.

As regards the question whether the courts could be considered

"independent and impartial", the Commission first recalls the case-law

of the Convention organs, which - for present purposes - can be

summarised as follows. In determining whether a body can be

considered to be an "independent" tribunal, i.e. in particular

independent of the executive and of the parties to the case, regard

must be had to the manner of appointment of its members and the

duration of their term of office, the existence of regulations

governing their removal or guarantees for their irremovability, laws

prohibiting their being given instructions by the executive in their

adjudicatory role, the existence of legal guarantees against outside

pressures, the question whether the body presents an appearance of

independence and the attendance of members of the judiciary in the

proceedings (see, e.g., Eur. Court HR, Campbell and Fell v. the United

Kingdom judgment of 28 June 1984, Series A no. 80, pp. 39-41, paras.

78-81).

The existence of impartiality for the purposes of Article 6

para. 1 (Art. 6-1) of the Convention must be determined on the basis

of a subjective test, that is on the basis of the personal conviction

of a particular judge in a given case, and also according to an

objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect.

As to the subjective test, the personal impartiality of a judge must

be presumed until there is proof to the contrary. Under the objective

test, it must be determined whether, quite apart from the judge's

personal conduct, there are ascertainable facts which may raise doubts

as to his or her impartiality. In this respect, even appearances may

be of a certain importance. What is at stake is the confidence which

the courts in a democratic society must inspire in the public and the

parties to the proceedings. This implies that in deciding whether in

a given case there is a legitimate reason to fear that a particular

judge lacks impartiality, the standpoint of the party concerned is

important but not decisive. What is decisive is whether this fear can

be held objectively justified (see, e.g., Eur. Court HR, Hauschildt v.

Denmark judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46-

48).

In the instant case, the applicant's fears were based on the fact

that the respondent State was represented before the courts by the

Chancellor of Justice, who had previously - under the 1972 Claim

Settlements Order - rejected the applicant's claim for compensation and

who performs supervisory functions in respect of the courts and the

judiciary.

In this case, the Commission finds it difficult to dissociate the

question of impartiality from that of independence.

The Commission recalls that - under Chapter 11, Section 2 of the

Instrument of Government (see above) - neither a public authority nor

Parliament may determine how a court should adjudicate or apply the law

in a particular case. In addition, all public power must be exercised

subject to the law and courts and public authorities shall, in the

performance of their functions, ensure the equality of all persons

before the law and remain objective and impartial (Chapter 1, Sections

1 and 9). Moreover, Chapter 11, Section 5 of the Instrument of

Government provides that permanent judges enjoy irremovability. In the

Commission's opinion, these are extensive guarantees designed to shield

Swedish judges from inter alia undue pressures.

It is true that the Chancellor of Justice performs supervisory

functions in respect of inter alia the courts and the judiciary. The

Commission notes, however, that when supervising the courts the

Chancellor - being a public authority within the meaning of Chapter 11,

Section 7 of the Instrument of Government - enjoys guarantees against

undue influence from other authorities, e.g. the Government. Moreover,

when performing the supervisory functions, the Chancellor is bound to

comply with the above-mentioned constitutional provisions. From these

provisions it follows that the Chancellor must not interfere in the

adjudicatory role of the courts and that, contrary to what the

applicant seems to suggest, judges need not fear to be prosecuted by

the Chancellor on account of having determined a case to the detriment

of the State. Nor do they need to fear for their position. In fact, the

outcome of the applicant's action for damages - whereby the courts

found against the Chancellor and ordered the State to pay damages,

albeit on a smaller scale than requested by the applicant - rather

illustrates that this is the case. Finally, although of no independent

relevance, it appears that in practice the Chancellor's supervision is

entirely devoted to the procedural aspects of the handling of a case,

including, for instance, that cases are determined within a reasonable

time.

In these circumstances, the Commission finds that the mere fact

that the Chancellor of Justice performs the dual function of

safeguarding the rights of the State and supervising inter alia the

courts cannot be held as, in itself, justifying fears as to the

independence and impartiality of the courts. No other ground for such

fears has been established. Thus, the independence and impartiality of

the tribunals concerned were not capable of appearing to be open to

doubt and the applicant's fears in this respect cannot be considered

objectively justified.

The applicant further complains of the fact that he was refused

an oral hearing before the Court of Appeal, in respect of both the

action for damages and the disqualification issue. The Government

contend primarily that Article 6 para. 1 (Art. 6-1) of the Convention

fails to apply to the proceedings brought about by the applicant's

request that judges be disqualified. The Commission, however, finds no

reason to examine this question, since the entirety of the present

complaint is in any event inadmissible for the following reasons.

The Commission recalls that the manner of application of

Article 6 para. 1 (Art. 6-1) to proceedings before appellate courts

depends on the special features of the proceedings involved. The main

question is whether a departure from the principle that there should

be a public hearing could, in the circumstances of the case, be

justified at the appeal stage by the special features of the domestic

proceedings as a whole (see, e.g., Eur. Court HR, Helmers v. Sweden

judgment of 29 October 1991, Series A no. 212-A, p. 15, paras. 31-32).

In the present case, hearings had been held at first instance in

respect of both the merits of the case and the issue of

disqualification of judges. The Commission considers that the

applicant's appeal on the latter issue raised a purely legal question,

the determination of which did not require a public hearing. As regards

the merits of the case, it is true that the Court of Appeal was called

upon to examine the case as to both the facts and the law. However, the

only question raised by the applicant's appeal on the merits was the

size of the compensation to be awarded to the applicant. This is so

since the State had not lodged an appeal against the District Court's

judgment, thus accepting, per se, to be held liable to pay damages. It

follows that, with regard to the merits of the case, the Court of

Appeal was merely called upon to make an equitable assessment. In the

Commission's opinion, this assessment could be adequately made on the

basis of the case-file. Accordingly, the applicant's physical

attendance was not necessary and the Court of Appeal could, as a matter

of fair hearing, properly examine also this part of the case without

holding a public hearing.

The Commission has found no other substantiated allegations in

the applicant's submissions which could lead it to conclude that the

proceedings complained of were unfair.

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 alleges a violation of Article 13 (Art. 13)

of the Convention, in that the Supreme Court ignored his request for

leave to appeal in so far as it pertained to the question of

disqualification of judges.

Article 13 (Art. 13) provides the following:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

Assuming that Article 13 (Art. 13) is applicable and that the

applicant has an arguable claim for the purpose of that Article, the

Commission notes that the documents submitted by the applicant do not

support his contention. Thus, the memorandum prepared by the Judge

Referee of the Supreme Court indicates that, when examining the

applicant's request for leave to appeal, the Supreme Court was fully

seized with not only the merits of the case but also the issue of

disqualification. The fact that - when stating the scope of the

applicant's request for leave to appeal - the Supreme Court did not

expressly refer to the latter issue does not prompt the Commission to

conclude otherwise. Consequently, the Commission finds that the

applicant's submissions fail to substantiate this complaint.

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 Invoking Article 14 of the Convention in conjunction with

Article 6 para. 1 and Article 13 (Art. 14+6-1, 14+13) of the

Convention, the applicant complains of the fact that he, as a private

plaintiff, had to meet as his adversary in the proceedings before the

courts the Chancellor of Justice, who is the supreme Ombudsman of the

State and in respect of whom all courts are in favour. For this reason,

so he claims, he has been discriminated against as compared with

plaintiffs who meet a private adversary in an action for damages.

The Commission considers, however, that this complaint is in

substance identical to that already examined and rejected in the

context of Article 6 para. 1 (Art. 6-1). of the Convention. Thus,

having regard to its findings under that Article, the Commission finds

that the present complaint does not reveal any appearance of a

violation of the applicant's rights under the Articles invoked.

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.4. Finally, the applicant claims that - as a result of

the insufficient compensation for legal expenses granted by the courts

- there has been a prolongation of the initial violation of Article 11

(Art. 11) of the Convention - manifested in the County Administrative

Board's decision of 27 March 1981 - and also a breach of Article 1 of

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

The Commission recalls that the decision which constituted the

alleged violation of Article 11 (Art. 11) of the Convention was quashed

by the Government on 19 November 1981. The Commission also recalls

that, by judgments of the District Court of Stockholm and the Svea

Court of Appeal, the State was found liable to pay damages as a result

of the County Administrative Board's faulty decision. Having made an

equitable assessment, the courts awarded damages in the amount of 9,000

SEK as compensation for costs for legal representation deemed to have

been necessarily incurred by the applicant. There is nothing to show

that the courts acted arbitrarily when thus evaluating the facts of the

case. Consequently, there is no appearance of a violation of the

applicant's rights under the Articles invoked.

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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission