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THIRD
SECTION
CASE OF ISELSTEN v. SWEDEN
(Application
no. 11320/05)
JUDGMENT
STRASBOURG
4
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Iselsten v. Sweden,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Boštjan
M. Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11320/05) against the
Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Swedish national, Mr John
Iselsten (“the applicant”), on 11 March 2005.
- The
applicant, who had been granted legal aid, was represented by
Mr P.-O. Nordh, a lawyer practising in Vallentuna. The
Swedish Government (“the Government”) were represented by
their Agent, Mr B. Sjöberg, of the Ministry for
Foreign Affairs.
- On
4 January 2007 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings
and the lack of an oral hearing before the Court of Appeal to the
Government. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932 and lives in Stockholm. He is a lawyer.
- On
17 March 1997 he sued the Swedish State for damages before the
District Court (tingsrätten) of Stockholm, claiming
negligence in the administration of his bankruptcy. The applicant
requested that the court render a declaratory judgment
(fastställelsetalan), establishing that the State was
liable for damage allegedly caused by negligence during the
Enforcement Service's administration of his bankruptcy in 1987/88.
- The
District Court, in June 1997, ordered the applicant to specify his
claims and to elaborate further the grounds for these claims. Upon a
request by the applicant, the court granted him an extension of the
time-limit for submitting the supplementary material. On 20 August
1997, the court received the applicant's submissions, which included
57 annexes.
- On
29 October 1997 the District Court, without having issued a summons,
rejected the applicant's claim as being clearly unfounded.
- The
applicant appealed to the Svea Court of Appeal (hovrätten)
and demanded that the case be remitted to the lower court for proper
examination. The Court of Appeal, in June 1998, requested the
applicant to supplement his appeal and to specify his claims. After
having been granted an extension of the time-limit, the applicant
complied with the request.
- In
a judgment of 17 December 1998, the Court of Appeal set aside the
lower court's judgment as far as the applicant's claim relating to
damage allegedly caused by the Enforcement Service's administration
of his bankruptcy was concerned and remitted the case to the District
Court for proper examination. However, the Court of Appeal also
decided not to allow the applicant to plead that the State was
responsible for damage caused by an alleged breach of contract by the
Enforcement Service.
- The
applicant appealed against the judgment to the Supreme Court (Högsta
domstolen), seeking leave to invoke the alleged breach of
contract. On 23 April 1999, the Supreme Court refused leave to
appeal.
- The
proceedings were then re-initiated before the District Court, which,
in June 1999, issued a summons to the State, represented by the
National Tax Board (Riksskatteverket). The State disputed the
claims and the applicant was given the opportunity to comment on the
State's submissions. After having been granted two extensions of the
time-limit due to ill-health, the applicant had his third such
request for an extension rejected. The court called the parties to a
preparatory meeting to be held on 18 January 2000. As the meeting
could not be finalised in one day, it was resumed on 21 February
2000. The parties were subsequently requested to submit the evidence
invoked. The applicant asked for, and was granted, another three
extensions of the time-limit during the spring and summer before
submitting all the requested material. During the autumn of 2000 both
parties submitted comments relating to, inter alia, the oral
evidence invoked and the schedule for the oral hearing. Due to the
applicant's health problems, the main hearing was eventually
scheduled for 23 and 24 January 2001. During the hearing, four
witnesses were heard and extensive written evidence was produced.
- On
21 February 2001 the District Court rejected the applicant's claim
for damage as it did not find that the Enforcement Service's
administration of the bankruptcy had been negligent.
- The
applicant appealed against the judgment to the Court of Appeal,
requesting that the case be remitted to the lower court or, in the
alternative, that his claims be upheld. He further asked to be heard
under oath (sanningsförsäkran) before the Court of
Appeal and for the four witnesses to be heard again. The State
submitted its reply to the applicant's submissions on 6 August 2001.
- On 30 December
2003 the Court of Appeal rejected the applicant's request to have the
case remitted to the District Court. It further refused to allow the
applicant to invoke certain new evidence, and to be heard under oath,
since he had not shown that he had a valid excuse for having failed
to produce the evidence previously before the lower court. At the
same time, the court informed the parties that it was considering
adjudicating the case without holding an oral hearing. Thus, the
parties were given the opportunity to state their view on this matter
and to conclude their submissions. The State consented to the case
being decided upon without a main hearing, whereas the applicant
opposed it.
- In
a judgment of 10 June 2004, the Court of Appeal upheld the lower
court's judgment in full, noting that the parties had essentially
invoked and developed the circumstances on which their claims were
based in the same manner as before the District Court and that they
had invoked written evidence. The Court of Appeal found no reason to
depart from the evaluation of the case made by the lower court. As
concerned its decision not to hold an oral hearing the court stated
that, according to the relevant rules in the Code of Judicial
Procedure, an appeal could always be adjudicated without a main
hearing if it was clear that such a hearing was unnecessary. The
court then considered that it was clear that a main hearing was
unnecessary in the case before it in view of the investigation of the
matter at hand. The fact that the applicant opposed the determination
of the case without a hearing was immaterial as the issues of law
raised in the case had been elucidated at the District Court in a way
that made it obvious that a main hearing would not add anything of
value to the case. Hence, the court found that there was no
impediment to the case being adjudicated without a main hearing.
- On
20 July 2004 the applicant's appeal reached the Supreme Court
and he asked for, and was granted, an extension of the time-limit to
supplement his appeal. In August 2004 he submitted his supplementary
pleadings and, on 14 September 2004, the Supreme Court
refused leave to appeal.
II. RELEVANT DOMESTIC LAW
- Proceedings
before the general courts in civil disputes are mainly governed by
the 1942 Code of Judicial Procedure (rättegångsbalken
– hereafter “the Code”) with amendments.
- Chapter
42, section 6, of the Code stipulates that a district court shall
prepare cases with a view to their speedy adjudication. The Code does
not, however, contain any provision stating that civil cases must be
determined within certain time-limits.
- Moreover,
a general principle underlying the Code is that the Court of Appeal
is not to try claims, circumstances invoked as a basis for claims or
evidence as a court of first instance. This means that, as a general
rule, the Court of Appeal's examination of the case is limited to
investigation of the matter presented to and examined by the District
Court. This is in particular so in cases amenable to out-of-court
settlement (dispositiv tvistemål) where a party cannot
invoke a circumstance or item of evidence not previously presented,
unless he or she can show probable cause for not having been able to
invoke the circumstance or item of evidence in the lower court, or
otherwise has a valid excuse for his or her failure to do so (Chapter
50, section 25 of the Code).
- In
civil cases amenable to out-of-court settlement, the parties
determine the framework of the proceedings which means that they
decide which evidence and which facts and circumstances are to be
examined by the court (see, inter alia, Chapter 17, section 3
and Chapter 35, sections 3 and 6, of the Code).
- Chapter
50, section 13 of the Code provides for the possibility of deciding a
civil case before the Court of Appeal without a main hearing. The
section is formulated on the assumption that a main hearing is held
and, accordingly, enumerates exceptions to this general rule. The
third paragraph of this section thus stipulates that the Court of
Appeal may always determine an appeal without a main hearing if it is
clear that a hearing is unnecessary.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government left it to the Court to decide whether this complaint
revealed a violation of the Convention.
- The
period to be taken into consideration began on 17 March 1997 and
ended on 14 September 2004. It thus lasted approximately seven years
and six months for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- The
Government claimed that the national proceedings had been relatively
complicated and had involved substantial submissions by the
applicant. They further observed that the applicant had been
responsible for certain delays before the national courts as he had
repeatedly requested extensions of the time-limit for supplementing
his submissions. In this respect, the Government alleged that the
applicant had been responsible for a delay amounting, in total, to
approximately one year.
- The
applicant maintained his position and emphasised that even taking
into account his requests for respite, which had been due to his
illness, the total length of the proceedings had been unacceptable.
- The
Court accepts that the present case concerned matters of some
complexity and notes that the case actually passed through the system
twice, first when the District Court dismissed the applicant's
action, and his appeals in that connection, and a second time when
the courts tried his claim for damages on the merits. It further
considers that the applicant was responsible for some of the delays
before the national courts when requesting several extensions of the
time-limit. However, the Court does not find that the applicant's
conduct alone contributed to the prolonged length of the proceedings.
On the contrary, the Court is of the opinion that there were periods
of inactivity, in particular when the case was pending the second
time before the Court of Appeal, which were at least in part
attributable to the national courts and that their handling of the
case did not facilitate its timely completion.
- Thus,
in the light of the criteria laid down in its case-law and having
regard to all the circumstances of the case, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS
REGARDS THE LACK OF AN ORAL HEARING
- The
applicant also complained that the Court of Appeal had refused to
hold an oral hearing despite his express request for one. Article 6 §
1 of the Convention, in the relevant parts, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
Admissibility
- The
Government argued that this complaint was manifestly ill-founded
since the case concerned a civil matter amenable to out-of-court
settlement where the District Court had held an oral hearing. They
further claimed that an oral hearing was clearly unnecessary since
there were no new circumstances or new evidence that had to be
examined before the Court of Appeal and that the outcome before the
appellate court was not dependent on the credibility of the oral
evidence invoked. Moreover, the Government observed that the
applicant had had ample opportunity to put forward his case and
conclude his actions in writing.
- The
applicant maintained that the Court of Appeal should have held an
oral hearing since there were no exceptional circumstances which
justified dispensing with a main hearing in the present case. He had
insisted that an oral hearing be held in order to rehear the
witnesses from the District Court and thereby clarify certain obvious
contradictions and misunderstandings between the testimonies.
Moreover, he had wanted to be heard under oath. Thus, it was clear
that the oral evidence was of great importance for the settlement of
the case and that a main hearing before the Court of Appeal had been
necessary to comply with Article 6 of the Convention.
- The
Court reiterates that the manner in which Article 6 of the Convention
applies to proceedings before courts of appeal depends on the special
features of the domestic proceedings viewed as a whole. Even where
the court of appeal has jurisdiction both in respect of the facts and
the law, Article 6 does not always require a right to a public
hearing. The publicity requirement is certainly one of the means
whereby confidence in the courts is maintained. However, the Court
has also accepted that there are other considerations, including the
right to a trial within a reasonable time and the related need for an
expeditious handling of the courts' case-load, which must be taken
into account in determining the necessity of public hearings in the
proceedings subsequent to the trial at first-instance level (see, for
example, Rippe v. Germany, no. 5398/03, February 2006;
Jan Åke Andersson v. Sweden, judgment of 29 October
1991, Series A no. 212 B, § 27; and Helmers v.
Sweden, judgment of 29 October 1991, Series A no. 212 A, §
36).
- The
absence of a hearing before a second or third instance may be
justified by the special features of the proceedings at issue (see,
among many other authorities, Jan Åke Andersson, cited
above, § 29; Helmers, cited above, § 36; Ivanovski
v. the former Yugoslav Republic of Macedonia (dec.) no. 21261/02,
29 September 2005; and Kaipila v. Finland (dec.),
no. 49453/99, 18 October 2005). Accordingly, the Court has held
that leave-to-appeal proceedings and proceedings involving only
questions of law, as opposed to questions of fact, may comply with
the requirements of Article 6, although the appellant was not given
an opportunity to be heard in person by the appeal court.
Furthermore, a hearing may not be necessary when it raises no
questions of fact or law which cannot be adequately resolved on the
basis of the case file and the parties' written observations (see
Fejde v. Sweden, judgment of 29 October 1991, Series A
no. 212 C, § 33; and Pahverk v. Sweden
(dec.), no. 41042/98, 11 February 2003). However, it is the
overarching principle of fairness embodied in Article 6 which is, as
always, the key consideration (see Jussila v. Finland [GC],
no. 73053/01, § 42, ECHR 2006 ...).
- Turning
to the circumstances of the present case, the Court first observes
that it concerned a civil action for damages against the State. As
such it was amenable to out-of-court settlement and it was
consequently for the parties to determine the framework of the
proceedings. Moreover, they knew that the Court of Appeal's
examination of the case would be limited to the investigation of the
matter presented to and examined by the District Court. Thus, in the
Court's view, it must have been clear to both parties that they had
to invoke and present all circumstances and evidence before the
District Court. In fact this also seems, essentially, to have
occurred since, before the Court of Appeal, the applicant did not
request to hear any new witnesses but wanted the four witnesses heard
before the District Court to be heard again. The Court also observes
that the State agreed with the Court of Appeal that an oral hearing
was unnecessary.
- The
Court further attaches importance to the fact that the District Court
held two preparatory meetings with the parties and then a main
hearing which lasted for two days. Hence, the applicant had the
opportunity to present all his evidence orally to the court and hear
the witnesses whom he had called and also to cross-examine the
State's witnesses, which indeed he did. Furthermore, both parties
submitted extensive written submissions which were considered by the
District Court and the entire case file was sent to the Court of
Appeal together with the applicant's appeal. Thus, when the Court of
Appeal examined the case, it had access to all the material,
including the tapes from the oral hearing before the District Court,
as well as to the supplementary submissions made by the parties
before the appellate court. Here, the Court also has regard to the
fact that the parties were informed by the Court of Appeal, on 30
December 2003, that it was considering not holding an oral hearing
and were given the opportunity to finalise their submissions, which
they did. Since the appellate court gave judgment in June 2004, about
six months later, the applicant had ample time to make his final
pleadings in the case.
- In
these circumstances, the Court finds that the requirements of
fairness were complied with and did not, in the particular
circumstances of this case, necessitate an oral hearing. It follows
that the applicant's complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 101,000 euros (EUR), or in the alternative EUR
13,500, in respect of non-pecuniary damage in relation to the length
of the proceedings.
- The
Government contested these claims. They considered that if the Court
found a violation in respect of the length of the proceedings, the
compensation should not exceed EUR 2,000.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage because of the excessive length of the national
proceedings. Ruling on an equitable basis, it awards him EUR 1,500
under that head.
B. Costs and expenses
- The
applicant also claimed 54,495 Swedish kronor (approximately EUR
5,760) for the costs and expenses incurred before the Court.
- The
Government found this claim acceptable if the Court were to find
violations concerning both complaints to the Court. However, if the
Court were to find a violation of only one of the complaints, the
Government considered that the amount claimed should be reduced
proportionately.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession, the above criteria and the fact
that the Court has found a violation of only one of the applicant's
two complaints, the Court considers it reasonable to award the sum of
EUR 2,500 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Swedish kronor at the rate applicable
at the date of the settlement:
(i)
EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage;
(ii)
EUR 2,500 (two thousand five hundred euros) in respect of costs and
expenses;
(iii)
any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
