Åkerblom v. Sweden



AS TO THE ADMISSIBILITY

Application No. 12057/86

by The Estate of Maria ÅKERBLOM

against Sweden

The European Commission of Human Rights sitting in private on

5 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 27 December

1985 by The Estate of Maria ÅKERBLOM against Sweden and registered

on 25 March 1986 under file No. 12057/86;

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 estate,

may be summarised as follows.

The applicant is the estate of Miss Maria Åkerblom, a Swedish

citizen born in 1892 who died in 1985. It is represented by Mr. Göran

Ravnsborg, who is also the executor (boutredningsman) of the applicant

estate.

Mr. Ravnsborg had been appointed as Miss Åkerblom's guardian

ad litem (god man) in 1982 by the Gothenburg District Court

(tingsrätt). A dispute arose during the period of the guardianship

about the legal basis of a payment by Miss Åkerblom of medical fees

for her nursing care and the amount of such fees. Mr. Ravnsborg,

acting on behalf of Miss Åkerblom, refused to pay the fees claimed.

This refusal to pay fees claimed by the nursing foundation led

to legal proceedings against Mr. Ravnsborg instituted by Mr. Lennart

Fridén, a Supervisory Guardian (överförmyndare). Mr. Fridén claimed

the dismissal of Mr. Ravnsborg as guardian ad litem of Miss Åkerblom

and his consequent replacement. For his part, Mr. Ravnsborg counter-

claimed that the Court should dismiss Mr. Fridén as Supervisory

Guardian and replace him.

Before the case was decided by the court, the Supervisory

Guardians Board (överförmyndarnämnden) of Gothenburg intervened in

respect of Mr. Fridén. The Board withdrew the claim of Mr. Ravnsborg's

dismissal and replaced Mr. Fridén as Supervisory Guardian by

Mr. Arne Österberg.

The presiding judge in the case in the Gothenburg District

Court was judge Stefan Wikmark.

On 12 June 1985 the Court decided to strike the case off its

list as regards the claim for the dismissal of Mr. Ravnsborg, to

reject the claim that Mr. Fridén be dismissed and to reject

Mr. Ravnsborg's claim for costs. Mr. Ravnsborg submits that the

decision to refuse him compensation for costs was unlawful.

Upon the death of Miss Åkerblom in 1985, the nursing

foundation sued the applicant estate for medical and nursing care fees

claimed to be outstanding. The executor of the applicant estate,

Mr. Ravnsborg, contested this claim. The judge appointed to hear the

case in the Gothenburg District Court was judge Stefan Wikmark.

Because this judge had found against Mr. Ravnsborg in the previous

case on what Mr. Ravnsborg considers unlawful grounds, the applicant

estate claimed that the judge was prejudiced against it and therefore

lawfully disqualified from hearing the case. It is submitted that the

legal issues were similar in the two cases since basically it related

to the legal basis for the nursing foundation's right to claim fees

from Miss Åkerblom. This challenge was rejected by the Gothenburg

District Court on 17 July 1985.

The applicant estate appealed to the Court of Appeal

(hovrätten) of Western Sweden, which dismissed the appeal on

19 December 1985.

The applicant estate submitted a further appeal to the Supreme

Court (högsta domstolen) which, in a decision of 12 June 1986,

dismissed the appeal stating that it was not possible to appeal

against the decision of the Court of Appeal.

COMPLAINTS

1 The applicant estate complains under Article 6 para. 1 of the

Convention that it has been denied a fair hearing before an impartial

tribunal in that judge Stefan Wikmark was prejudiced and lacked

impartiality towards the applicant estate as a result of the judge's

conduct in the previous case against Mr. Ravnsborg who is now the

executor of the applicant estate.

2 The applicant further complains under Article 6 para. 1 of the

Convention that the decisions on its challenge of judge Stefan Wikmark

were taken without a fair and public hearing in the District Court and

also in the Court of Appeal of Western Sweden.

THE LAW

1 The applicant estate complains that it did not receive a fair

hearing before an impartial tribunal in the action by the nursing

foundation because of the partiality of judge Stefan Wikmark.

The applicant estate alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention which provides that:

" 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 .....

by an independent and impartial tribunal established by

law."

The Commission considers that Article 6 (Art. 6) of the Convention was

applicable to the proceedings complained of and the question whether the Court

satisfied the condition of impartiality must therefore be examined.

The European Court of Human Rights has stated that the

requirement of impartiality in Article 6 (Art. 6) of the Convention implies a

double guarantee: first, the subjective element of lack of bias in

the judge, and second, an objective element in that his position must

not give rise to legitimate doubts about his impartiality (Eur. Court

H.R., Piersack judgment of 1 October 1982, Series A, no. 53, p. 14,

para. 30).

As regards the subjective element, the applicant estate

complains that the judge was biased against it because he failed to

award the applicant's executor, Göran Ravnsborg, a sum of costs in

earlier proceedings, a decision the applicant estate regards as

contrary to Swedish law.

The Commission recalls its constant case-law that its

functions do not include determination of the domestic law of

Contracting States. It further recalls that the personal impartiality

of a judge must be presumed until the contrary is established (Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June

1981, Series A, No. 43, p. 25, para. 58). The Commission finds no

evidence to indicate that the judge was partial.

As regards the objective element, the applicant estate

complains that there is legitimate doubt about the judge's

impartiality on the basis of an earlier decision which the judge had

taken in another case and which was a decision against Mr. Ravnsborg.

The Commission notes that the previous decision was taken in a

different case between different parties. It is true that

Mr. Ravnsborg was involved in both cases, in the first case as a party

and in the second case as the legal representative of one of the

parties. The Commission considers, however, that this situation could

not give rise to any legitimate doubts about the impartiality of judge

Stefan Wikmark. It follows that this complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2 The applicant estate further complains that it was not granted

a hearing of its challenge of the judge either in the District

Court of Gothenburg or in the Court of Appeal of Western Sweden.

Article 6 (Art. 6) of the Convention is only applicable "in the

determination of (an individual's) civil rights and obligations or of

any criminal charge against him ..."

Since there is no question of a "criminal charge" in this case

it must be examined whether the decision that judge Stefan Wikmark

should hear the case involving the applicant estate was a

"determination" of its "civil rights".

The Commission recalls that a decision of a court concerning

procedural questions does not concern a determination of civil rights

and obligations (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107). The

Commission finds that when a court decides on the challenge of a judge

it is not determining any civil rights or obligations of the

parties to the proceedings.

It follows that Article 6 (Art. 6) of the Convention was not applicable

to the determination of the challenge of judge Wikmark. Accordingly, this

complaint is incompatible ratione materiae with the provisions of the

Convention 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. KRÜGER) (C.A. NØRGAARD)