CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 janvier 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 14220/88 by Göran RAVNSBORG against Sweden   The European Commission of Human Rights sitting in private on 9 January 1992, the following members being present:   MM.C.A. NØRGAARD, President S. TRECHSEL F. ERMACORA G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE SirBasil HALL MM.F. MARTINEZ RUIZ C.L. ROZAKIS Mrs.J. LIDDY MM.L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER   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 2 July 1988 by Göran Ravnsborg against Sweden and registered on 16 September 1988 under file No. 14220/88;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having regard to the observations submitted by the respondent Government on 20 December 1990 and the observations submitted in reply by the applicant on 27 April, 2 May and 15 June 1991;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a Swedish citizen, born in 1933. He is a university lecturer and resides at Lund, Sweden.   A.The particular circumstances of the case   The applicant was personal general proxy for his adoptive mother K, who died on 7 July 1987. On 19 November 1982 he was appointed administrator (god man) for his mother's friend M, who died on 10 February 1985. Both K and M were unable to care for themselves due to old age and were therefore eventually placed in a nursing home by the Municipality of Gothenburg. Some time after their respective admittance to the nursing home K and M became liable to pay a certain medical care fee calculated on the basis of their net income and they received invoices from the nursing home. The applicant duly paid the invoices on behalf of K and M.   The applicant subsequently realised that the nursing home was a charitable foundation and he considered that he had paid the medical care fees on behalf of K and M to the wrong creditor. In May 1983 he accordingly stopped paying the fees. The nursing home therefore instituted two separate sets of proceedings against K and M's estate in the Gothenburg District Court (tingsrätten) claiming payment of the outstanding fees, whereas K and M's estate, represented by the applicant, in two other sets of proceedings before the same court claimed reimbursement of the fees already paid. The final outcome of these proceedings is unknown.   While these proceedings were pending the Gothenburg Guardian Board (Göteborgs Överförmyndarnämnd), on 6 April 1987, requested the Gothenburg District Court to appoint an administrator (god man) for K. The applicant, as personal general proxy for K as well as on his own behalf, counterclaimed seeking the immediate dismissal of all members of the Gothenburg Guardian Board. In his 19-page submission of 4 May 1987 to the District Court, which considered this matter separately from the above-mentioned proceedings, the applicant stated inter alia:   "Som allmänt omdöme beträffande Överförmyndarnämndens här på goda grunder skarpt kritiserade agerande måste framhållas, att nämnden här framstår som en korg kommunalpolitiska rötägg av olika kulörer men av en gemensam art och överideologi, nämligen den fascistoida maktutövningens, därvid den enskilda kommunmedlemmens rättigheter och välförstådda intressen - om dessas existens överhuvud taget medgives i maktberusningens ögonblick - aldrig får innebära något mera verkningsfullt ifrågasättande av kollektivets krav eller det politrukstyrda intressesubjektets absoluta rätt, sådan denna i varje enskilt fall till sitt innehåll bestämts av de i s.k. demokratisk ordning utmanglade representativa folkdomstolarna (vars mera officiella benämning är Göteborgs kommuns styrelser och nämnder) med sin bemanning av i häpnadsväckande hög grad lokalt publikt slödder eller - som ovan - rena rötägg. Kravet på offentlig, muntlig (huvud)förhandling i detta dubbel- ärende dels om ansökan om förordnande av god man, dels om omedelbart entledigande av vissa befattningshavare och ledamöter av Göteborgs Överförmyndarnämnd stödes ytterst på europa- konventionens artikel 6(1)."     (translation)   "As a general assessment about the Guardian Board's actions, which are strongly criticised on good grounds, the Board can be described as a basket of municipal political rotten eggs of different colours but of a common denominator and supra ideology, i.e. the tendentiously fascist exercise of power, in connection with which the rights and legitimate interests of individual municipal members - if their existence is at all recognised in their intoxication with power - may never involve any powerful questioning of the demands of the collective or the absolute right of the politician-governed subject, such as it is in each individual case defined as to its contents by the so called democratically representative People's Courts (whose official names are the Boards or Councils of the Municipality of Gothenburg) with their manning, to a surprisingly high degree, of local public mob or - as above - pure rotten eggs. The request for a public, oral (main) hearing in this double case, concerning on the one hand the request for the appointment of an administrator and on the other the immediate dismissal of certain care workers and members of the Gothenburg Guardian Board, is furthermore based on Article 6 para. 1 of the European Convention."   On 18 May 1987, the District Court, in application of the Code of Judicial Procedure (rättegångsbalken), ordered the applicant to pay 1,000 Swedish crowns for an "offence against the order in court" (rättegångsförseelse) in respect of the above statement. The Court did not hold any hearing in regard to this issue.   On 17 June 1987, the District Court considered the Guardian Board's request for the appointment of an administrator as well as the applicant's and K's request for the Board members' dismissal. It did not hold a hearing but found in favour of the applicant and K as regards the appointment of an administrator. It rejected the Board's request as questions involving this matter were pending before the Court (cf. the proceedings mentioned above). The Court rejected the applicant's and K's request for dismissal of the Board members as the submissions in support of the request did not disclose any reason to dismiss them.   a)In the meantime, on 1 June 1987, the applicant had appealed against the District Court's above-mentioned decision of 18 May 1987, ordering him to pay 1,000 Swedish crowns, to the Court of Appeal (hovrätten) for Western Sweden. In his 14-page appeal he complained inter alia that he had been fined without having had the possibility of defending himself at an oral hearing. He furthermore requested an oral hearing in the Court of Appeal. In the written appeal the applicant inter alia stated as follows:   "Skulle hovrätten i något hänseende döma med avvikelse från av mig här framställda yrkanden, kommer jag givetvis att överklaga, för att sedan högst sannolikt omedelbart kunna insända anmälan till europakommissionen resp kommittén för de mänskliga rättigheterna i Genève. Risken är nämligen ytterst liten för att en allmänt letargisk och genom sina ledamöters mångåriga kanslihusindoktrinering mot mänskliga rättigheter slappt allergisk slutinstans beviljar prövningstillstånd i ett fall som detta."   (translation)   "If the Court of Appeal would, in any respect, come to a different judgment from what I have requested, I will of course appeal, in order to be able to submit an application immediately to the European Commission or to the Human Rights Committee in Geneva. The risk is extremely small that a generally lethargic and - as a result of its members' many years of indoctrination against human rights in the Government Offices - lax final instance will grant leave to appeal in a case like this."   b)On 2 July 1987 the applicant also appealed, on behalf of K as well as on his own behalf, against the District Court's decision of 17 June 1987 on the merits to the Court of Appeal of Western Sweden. In his 7-page written appeal he requested that the case be referred back to the District Court for renewed consideration, including an oral hearing. He stated inter alia:   "Det faktum, at vi av flera utomordentliga skäl yrkar, att ärendet Göteborgs tingsrätt, avd 1, Fm 384/87 återförvisas för fortsatt handläggning i tingsrätten innebär givetvis icke att vi ens för ett ögonblick skulle acceptera, att målet vid fortsatt handläggning på tingsrättsnivå ännu en gång skulle domineras av t.ex. chefsrådmannens Sven Wieselgren långtgående fascistoida processledning med dess definitoriska inslag av grovt partiska kommunalhänsyn, kollegialitetskorruption, myndighetsmissbruk genom egenmäktighet, skuggrädsla och mörkmannaprinciper. Överhuvud taget är våra erfarenheter av den allmänt egenmäktiga och till kommunens favör djupt partiska normexercisen vid tingsrätten, sådan den utövas av en Stefan Wikmark, en Sven Ordqvist, en Kenneth Ström eller en Sven Wieselgren - samtliga ledamöter av tingsrättens domarkollegium - sådan, att vi särskilt med hänsyn till detta kollegiums skarpt framträdande partiskhet kommer att - vad avser rättens ordförande vid fortsatt handläggning av ärendet Fm 384/87 - yrka på konstitution av särskild tingsrätt för sagda handläggning, varvid rättens ordförande in casu skall sökas utanför Göteborgs tingsrätt."   (translation)   "The fact that we ... ask that the case be referred back to the District Court ... for a further examination does not imply that we, even for a moment, would accept that the case ... once again is dominated by, for instance, Chief Judge Sven Wieselgren's far-reaching tendentiously fascist way of presiding over the court with its gross partiality in favour of municipal interests, collegiate corruption, and abuse of public authority through autocracy, shadow fear and dark man principles. Our experience with the generally autocratic deeply partial implementation of norms by the District Court in favour of the municipality, as it is performed by one Stefan Wikmark, one Sven Ordqvist, one Kenneth Ström and one Sven Wieselgren ... is such that we will ask for the composition of a special District Court in which the President is chosen from outside the Gothenburg District Court."   The Court of Appeal delivered two decisions in respect of the appeals (mentioned above under a and b) on 4 November 1987, prior to which K had died (7 July 1987).   As regards the appeal mentioned under a) the Court found that the District Court had acted in accordance with domestic case-law and legal doctrine when ordering the applicant to pay 1,000 Swedish crowns for the "offence against the order in court" (rättegångsförseelse) and therefore rejected the appeal. The Court of Appeal furthermore saw no reason to hold an oral hearing. Finally, the Court found the applicant's remarks in his written appeal mentioned above under a) improper and ordered him to pay another 1,000 Swedish crowns for an "offence against the order in court" (rättegångsförseelse).   As regards the appeal mentioned under b) the Court of Appeal did not deal with the applicant's and K's appeal in so far as the District Court had found in their favour by not granting the Guardian Board's request for the appointment of an administrator. Furthermore, the Court found that it could not deal with the remainder of the appeal as a right to appeal was only granted to a person who had actually been dismissed. Finally, the Court ordered the applicant to pay once more 1,000 Swedish crowns for an "offence against the order in court" (rättegångsförseelse) finding his remarks in his written appeal mentioned above under b) improper.   On 26 November 1987 the applicant applied to the Supreme Court (Högsta domstolen) for leave to appeal as regards the proceedings mentioned under a). He maintained inter alia that the courts' actions and decisions had not only deprived him of his right to a fair trial, being an accused, but also infringed his right to freedom of expression.   On 30 November 1987 the applicant, on behalf of K's estate as well as on his own behalf, applied for leave to appeal as regards the proceedings mentioned under b). He maintained inter alia his request for the dismissal of the Guardian Board's members and requested that the case be referred back to the District Court for proper examination, including an oral hearing. He also requested the Supreme Court to repeal the order to pay 1,000 Swedish crowns for the "offence against the order in court" (rättegångsförseelse).   In two seperate decisions of 5 January 1988 the Supreme Court refused leave to appeal.   B.Relevant domestic law and practice     Freedom of expression   According to the Swedish Instrument of Government, Chapter 2, Section 1, which forms part of the Swedish Constitution, freedom of expression is one of the fundamental freedoms and rights afforded to all citizens.   According to the same Chapter, Section 13, certain restrictions can be imposed on the freedom of expression.   Such restrictions, however, have to serve one or several specified purposes. Among those purposes, the integrity of the individual and the sanctity of private life are to be found. According to the same Section, freedom of expression may otherwise be restricted only where particularly important reasons so warrant.   "Offences against the order in court" (rättegångsförseelse)   Chapter 9, Section 5, of the Code of Judicial Procedure sanctions as an "offence against the order in court" (rättegångsförseelse) certain forms of improper behaviour either at a court hearing or in written submissions to a court. The provisions are closely connected with those in Chapter 5, Section 9, of the Code. According to the latter provision, which concerns order at court hearings, the chairman of the court may, for instance, order a person, who disturbs the hearing or behaves unseemly in some other way, to leave the courtroom.   According to the travaux préparatoires of Chapter 9, Section 5, of the Code of Judicial Procedure (NJA II 1943, page 91), improper behaviour of a more serious character could be considered as criminal according to relevant rules of penal law, such as provisions on defamation.   The present provision is, however, to be applied in cases where there is an offence with regard to order in the court.   The penalty is limited to the payment of a specified sum of money not exceeding 1,000 Swedish crowns.   Abusive statements may be punishable as defamation according to Chapter 5 of the Penal code. Such cases presuppose prosecution. According to Chapter 20, Section 1, of the Code, this is, however, not the case with improper statements, which may be dealt with within the framework of "offences against the order in court" (rättegångs- förseelse). In such a case the court may immediately order the person who commits an "offence against the order in court" (rättegångs- förseelse) to pay a sum of money not exceeding 1,000 Swedish crowns.   Chapter 9, Section 5, of the Code of Judicial Procedure is applicable to anyone who takes part in court proceedings, the only exception being the members of the court itself, i.e. judges and lay members of the court. The provision is therefore applicable to the parties to a case, their representatives and witnesses. It is also applicable to members of the audience at a court hearing.   The question of whether a person has committed an "offence against the order in court" (rättegångsförseelse) is dealt with by the court of its own accord, cf. Chapter 19, Section 5, para. 1, of the Code of Judicial Procedure.   The matter can only be dealt with during the particular procedure where the improper behaviour has taken place and by that particular court. A sanction for an "offence against the order in court" (rättegångsförseelse) does not presuppose prosecution and it is not entered in the police register.   Public, oral hearings   The question of "offences against the order in court" (rättegångsförseelse) was, in the present case, dealt with in accordance with the Act (1946:807) on the Handling of Court Matters (lag om handläggning av domstolsäranden), hereafter called the 1946 Act. According to the 1946 Act, Section 4, sub-section 2, the court may conduct a hearing if it considers that the applicant or someone else, who is involved in the matter, should be heard orally.   According to the travaux préparatoires to the 1946 Act, the purpose of the provisions of the Act is to adapt the proceedings to the nature of the matter. If an oral hearing is not necessary with regard to the particular type of matter at issue, such a hearing shall not take place. If, on the other hand, the court decides to hold a hearing, the same provisions as those applying to main hearings in civil cases shall apply in principle (Section 5, sub-section 2, of the 1946 Act).   As a result of the reference in Section 11 of the 1946 Act to the provisions concerning civil cases in the Code of Judicial Procedure, it would have been possible for the Gothenburg District Court to decide to hold a hearing in order to resolve the question of the "offence against the order in court" (rättegångsförseelse) in the present case. According to the Code of Judicial Procedure, Chapter 52, Section 10, sub-section 1, the court shall make suitable arrangements for an oral hearing if it is necessary for the examination of the case to hear a party or someone else. Consequently, it would also have been possible for the Court of Appeal to hold an oral hearing.     COMPLAINTS   The applicant complains of the imposition by the courts of the obligation to pay a total of 3,000 Swedish crowns for the "offence against the order in court" (rättegångsförseelse).   He contends that this involved a "secret inquisitorial penal process", since he did not receive a public hearing or have any opportunity to refute the allegations.   He invokes Article 6 of the Convention.   The applicant furthermore complains of a violation of Article 10 of the Convention in relation to the court orders.   The applicant has also invoked Article 1 of Protocol No. 1 to the Convention on the ground that he has had to pay 3,000 Swedish crowns as ordered by the courts.   Finally, in his observations of 15 June 1991 the applicant has invoked Article 7 of the Convention alleging that the courts have based their decisions on invalid provisions.     PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 2 July 1988 and registered on 16 September 1988.   On 10 October 1990 the Commission decided to bring the above complaints under Article 6 and 10 to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of this part of the application.   The applicant's other complaints, under Article 6 of the Convention, concerning the court's refusal of 4 November 1987 to allow him a public hearing in the dispute as to the appointment of an administrator for K, were declared inadmissible.   On 20 December 1990 the Government submitted their observations. The applicant's observations in reply were submitted on 27 April, 2 May and 15 June 1991.     THE LAW   1.The applicant complains of the court orders due to which he was obliged to pay a total of 3,000 Swedish crowns having committed an "offence against the order in court" on three occasions. In this respect he invokes Article 6 (Art. 6) of the Convention which, in its paragraph 1, inter alia 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 within a reasonable time by an independent and impartial tribunal established by law."   The applicant maintains that, by having been ordered to pay fines, he was subjected to one of the two basic forms of punishment within the domestic penal laws. All fines constitute punishment and the administration of punishment must - without exception - fulfil the guarantees of Article 6 (Art. 6) of the Convention. The applicant also submits that it follows from the Penal Code that "inappropriate behaviour" as provided in the Code of Judicial Procedure   Chapter 9, Section 5, is a criminal offence since the penal reaction is a fine. Therefore every question as to "inappropriate behaviour" under the Code of Judicial Procedure should be heard publicly in accordance with the guarantees of Article 6 (Art. 6) of the Convention. In the present case, however, so the applicant submits, the court decisions by which he was fined for having committed an "offence against the order in court" (rättegångsförseelse) constituted a secret inquisitorial penal process during which he did not receive a public hearing or any opportunity to refute the charges against him.   The Government maintain that Article 6 (Art. 6) is not applicable to the proceedings in question or, in the alternative, that the applicant's complaints under this provision are manifestly ill-founded. They argue that under Swedish law "offences against the order in court" (rättegångsförseelse) is not considered to constitute a criminal offence but is included in the Code of Judicial Procedure enabling a court   to react speedily against improper behaviour of different kinds. The determination of such issues rather constitutes an examination in the exercice of judicial control of the proper administration of justice. The sanction serves the disciplinary purpose of deterring from behaviour which could encroach on the authority of the judiciary and should not, therefore, fall within Article 6 (Art. 6) of the Convention. Furthermore, the Government argue that the entirety of the proceedings and the special features concerning "offences against the order in court" (rättegångsförseelse) under Swedish law would not require an oral hearing for the purpose of complying with Article 6 (Art. 6) of the Convention.   The Commission has taken cognizance of both parties' submissions. After a preliminary examination of this aspect of the case   the Commission has reached the conclusion that it raises serious issues as to the interpretation and application of Article 6 para. 1 (Art. 6-1) of the Convention and that these issues can only be determined after a full examination of their merits. It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.The applicant also complains that the courts' decisions ordering him to pay a total of 3,000 Swedish crowns amounted to an unjustifiable interference with his right to freedom of expression secured to him under Article 10 (Art. 10) of the Convention which reads:   "1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.   This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   2.   The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."   In this respect the Commission notes that neither party dispute that the restriction imposed upon the applicant constituted an interference in the exercise of his right to freedom of expression.   The Commission therefore has to examine whether, in accordance with Article 10 para. 2 (Art. 10-2), the interference in the present case was "prescribed by law", whether it had an aim which was legitimate and whether it was "necessary in a democratic society" for the aforesaid aim (cf. for example Eur. Court H.R., The Sunday Times judgment of 26 April 1979, Series A no. 30, p. 29, para. 45).   As regards the criterion "prescribed by law", the Government argue that the provision concerning "offences against the order in court" (rättegångsförseelse) is included in a statute, Chapter 9, Section 5, of the Code of Judicial Procedure and that it is clear from this provision that inappropriate behaviour is sanctioned.   The Commission, which finds that Chapter 9, Section 5, of the Code of Judicial Procedure is sufficiently precise in its formulation, shares the view of the Government and finds that the restriction was "precribed by law". It furthermore pursued a legitimate aim covered by Article 10 para. 2 (Art. 10-2) of the Convention, namely the aim of maintaining the authority and impartiality of the judiciary.   Accordingly it remains to be determined whether the interference was "necessary in a democratic society" for achieving this aim.   In this respect the Commission recalls that according to its case-law and that of the European Court of Human Rights the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference is necessary, but this margin goes hand in hand with European supervision covering both the legislation and the decisions applying it.   The Commission therefore has jurisdiction to ascertain whether, having regard to the facts and circumstances of the case, a "restriction" or "penalty" is compatible with freedom of expression (cf. Eur. Court H.R., Barfod judgment of 22 February 1989, Series A no. 149, p. 12, para. 28).   The applicant argues in essence that his statements were of a political nature and that there were grounds for them, whereas the Government argue in essence that it was not the applicant's criticism as such which resulted in the interference with his freedom of expression but the unseemly manner in which he chose to express himself.   The Commission recalls that on each occasion the applicant was sanctioned by the courts in question after they had received a written submission connected with the case pending or a written appeal against a decision taken by them. Each time the courts accepted the submissions as such as a basis for the continuing procedure whereas specific paragraphs on specific pages indicated by the courts were found to contain unacceptable remarks aimed at the other party in the proceedings, the Gothenburg District Court, or the Supreme Court. In these circumstances the Commission finds that the interference with the applicant's freedom of expression was based on his use of improper language alone, and it is satisfied that the interference did not aim at restricting his right to criticise the parties or courts involved. In these circumstances the State's legitimate interest in protecting the authority and impartiality of the judiciary was not in conflict with the applicant's interest in being able to voice criticism against the parties or in respect of the proceedings in question, and the Commission does not find that the restrictions imposed on the applicant were disproportionate to the legitimate aim pursued.   The Commission therefore concludes that the interference with the applicant's right to freedom of expression was necessary in a democratic society within the meaning of Article 10 para. 2 (Art. 10-2) 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.   3.Finally, the Commission has examined the applicant's complaints submitted under Article 7 (Art. 7) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.   Leaving aside the questions arising under Article 26 (Art. 26) of the Convention, in particular in respect of the applicant's reference to Article 7 (Art. 7) of the Convention, the Commission finds that this part of the   application does not disclose any appearance of a violation of the Convention or its Protocols. It follows that it 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 ADMISSIBLE, without prejudging the merits of the case, the applicant's complaint concerning the obligation, imposed by the courts without an oral hearing, to pay a total of 3,000 Swedish crowns for "offences against the order in court" (rättegångsförseelse),   and   DECLARES INADMISSIBLE the remainder of the application.          Secretary to the Commission       President of the Commission            (H.C. KRÜGER)       (C.A. NØRGAARD)