CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 mars 1993

.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. 19438/92                       by A.J. and M.J.                       against Sweden         The European Commission of Human Rights sitting in private on 29 March 1993, the following members being present:              MM.    C. A. NØRGAARD, President                  J. A. FROWEIN                  S. TRECHSEL                  G. SPERDUTI                  A. S. GÖZÜBÜYÜK                  A. WEITZEL                  H. G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    M. P. PELLONPÄÄ                  B. MARXER                  M. A. NOWICKI              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 21 January 1992 by A.J. and M.J. against Sweden and registered on 27 January 1992 under file No. 19438/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The first applicant, A.J., was born in 1927 and resides at Tullinge, Sweden. The second applicant, M.J., was born in 1953 and resides at Tullinge, Sweden. They are both Swedish citizens. The first applicant is also the representative of the second applicant.         The facts as presented by the applicants may be summarised as follows.         On 25 October 1989 the European Court of Human Rights gave its judgment in a case which had been introduced by the first applicant. In this judgment, the Court found that the absence in Swedish law of a court remedy against certain administrative decisions regarding building prohibitions affecting the first applicant's property constituted a violation of Article 6 para. 1 of the Convention. The Court further decided that Sweden should reimburse the applicant's costs and expenses but rejected the remainder of the applicant's claim for just satisfaction.         On 28 June 1990 the European Court of Human Rights gave its judgment in a case which had been introduced by the second applicant. In this judgment, the Court found that the absence in Swedish law of a court remedy against the decision to amend a building plan affecting the second applicant's property constituted a violation of Article 6 para. 1 of the Convention. The Court further decided that Sweden should pay the applicant 10,000 Swedish crowns for non-pecuniary damage and reimburse his costs and expenses.         On 13 January 1990 the first applicant sent a letter to the Minister of Justice in which he asked how the Minister intended to deal with cases such as his, where it had been established by the European Court of Human Rights that a person was entitled to a court examination. In her reply of 4 April 1990, the Minister of Justice pointed out that, as a consequence of the case-law of the European Court, the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut) had been enacted but that this new legislation was not applicable to decisions given before its entry into force on 1 June 1988.         On 26 February 1990 the first applicant wrote to the Parliamentary Ombudsman (Riksdagens Justitieombudsmän), requesting that a tribunal be designated which could examine his case as well as other cases where a breach had been found of Article 6 para. 1 of the Convention.         In his decision of 2 May 1990 the Chief Parliamentary Ombudsman noted that the 1988 Act was only applicable to decisions given after its entry into force on 1 June 1988. The Ombudsman stated that in these circumstances he could not see that there was any other possibility for the first applicant to obtain a re-examination of the decision of which he complained.         On 15 June 1990 the first applicant wrote to the Chancellor of Justice (Justitiekanslern), stating that Sweden was not exempted from the obligation to make available a court examination satisfying the requirements of Article 6 para. 1 of the Convention. On 20 June 1990 the Chancellor of Justice replied by referring to the decision of the Chief Parliamentary Ombudsman.         On 23 June 1990 the first applicant submitted to the Supreme Administrative Court (Regeringsrätten) a request under the 1988 Act for judicial review of the manner in which the Minister of Justice, the Parliamentary Ombudsman and the Chancellor of Justice had dealt with his case. He stated that in his opinion the judgment of the European Court in his case meant that Sweden was obliged to make it possible for him to obtain an examination by a Swedish court.         On 10 July 1990 the first applicant, on behalf of the second applicant, submitted to the Supreme Administrative Court a further request for judicial review of a planning decision given in 1983 which had restricted the building rights on the second applicant's property. He referred to the judgment in the second applicant's case, in which the European Court had found that he was entitled to a court examination under Article 6 para. 1 of the Convention.         On 11 November 1991 the Supreme Administrative Court gave decisions in both cases.         In the first decision (regarding the first applicant), the Supreme Administrative Court noted that the request for review concerned the way the Ministry of Justice, the Parliamentary Ombudsman and the Chancellor of Justice had dealt with the first applicant's case. However, the matters dealt with by these authorities had not concerned any issue falling under Chapter 8 Section 2 (i.e. regarding an individual's personal status and the personal and economic relations between individuals) or Section 3 (i.e. regarding the relations between individuals and the authorities with respect to obligations imposed on individuals or otherwise regarding interferences with the personal or economic conditions of individuals). Consequently, the 1988 Act on Judicial Review of Certain Administrative Decisions was not applicable. The Supreme Administrative Court therefore dismissed the applicant's request for judicial review.         In the second decision (regarding the second applicant), the Supreme Administrative Court noted that the building plan at issue had been confirmed by the Government on 19 January 1984, whereas the 1988 Act was only applicable to decisions given on 1 June 1988 or later. His request for judicial review was therefore inadmissible.     COMPLAINTS         The applicants complain that Sweden has not complied with its obligations under the judgments of the European Court of Human Rights. They complain of violations of Articles 1, 6 para. 1 and 53 of the Convention.     THE LAW         The applicants refer to the judgments given by the European Court of Human Rights in their cases and complain that Sweden has violated its obligations under these judgments by continuing to deny the applicants a court examination in regard to their civil rights. They invoke Articles 1, 6 para. 1 and 53 (Art. 1, 6-1, 53) of the Convention.         The Commission first recalls that it is not its task to examine whether a High Contracting Party has complied with its obligations under a judgment given by the European Court of Human Rights, this supervision being entrusted under Article 54 (Art. 54) of the Convention to the Committee of Ministers.         The Commission must therefore limit its examination in the present case to the question as to whether, after the judgments in the applicants' cases, there has been a new violation of Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention provides, in its relevant parts, as follows:         "In the determination of his civil rights and obligations ...       everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law."         The Commission finds that the applicants complain in substance of the fact that it has not been possible for them, after the judgments of the European Court in their cases, to obtain a court review in Sweden in regard to the same administrative decisions which were at issue before the Strasbourg organs.         When the European Court gave its judgments in the cases, the 1988 Act on Judicial Review of Certain Administrative Decision had already been enacted and been in force since 1 June 1988. However, the applicants could not, in respect of the complaints they had brought before the Strasbourg organs, benefit from the new Act, which only applied to administrative decisions given after its entry into force.         The Commission is of the opinion that, insofar as the applicants complained in their previous cases of the absence of a court remedy against certain administrative decisions, the European Court has finally dealt with the issue and also considered the question of just satisfaction to the applicants under Article 50 (Art. 50) of the Convention. In these circumstances, it cannot be seen as a new violation of the Convention if, after the Court's judgments, it remained impossible to obtain a court examination in regard to those same decisions. A State, which adapts its procedural rules to comply with the case-law of the European Court, cannot in general be required to make the new rules retroactively applicable to cases already finally decided in the past.         It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission             President of the Commission            (H.C. KRÜGER)                          (C.A. NØRGAARD)