CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.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. 23196/94                       by Rolf GUSTAFSON                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  H.G. SCHERMERS                  F. MARTINEZ                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 5 November 1993 by Rolf Gustafson against Sweden and registered on 6 January 1994 under file No. 23196/94;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 September 1994 and 11 November 1994 and the observations in       reply submitted by the applicant on 14 and 18 October 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born in 1953 and resident in Stockholm. At present he is serving a prison sentence in Sweden.         The facts, as presented by the parties, may be summarised as follows.   Particular circumstances of the case         The applicant alleges that he was on two occasions, in April-June and June-July 1991, the victim of kidnapping and extortion by three persons. The Public Prosecutor subsequently brought criminal proceedings against one of these persons.         On 28 April 1993 the Stockholm District Court (Stockholms tingsrätt) convicted the accused, sentenced him to six years' imprisonment and ordered him to pay 144.350 SEK in damages to the applicant.         On appeal the Svea Court of Appeal (Svea hovrätt) on 2 July 1993 reversed the District Court's judgment on the ground that the charges had not been proven. Consequently, the Court of Appeal acquitted the accused and rejected the applicant's claim for compensation. The applicant did not seek leave to appeal to the Supreme Court (Högsta domstolen).         The applicant subsequently requested compensation from the Board for Reparation to Victims of Crime (Brottsskadenämnden) in accordance with the 1978 Act on Damage Caused by Crime (brottsskadelagen 1978:413; hereinafter "the 1978 Act").         On 26 August 1993 the Board rejected the request, stating as follows:         (translation)         "A condition for payment of compensation for damage caused       by crime is that damage has been caused by crime. The Board       ... cannot find it established that [the applicant] has       suffered damage as a result of crime. Consequently,       compensation for damage caused by crime cannot be awarded."          On 1 June 1994 the Board again rejected the applicant's request following a reconsideration of his claim.   Relevant domestic law         The 1978 Act governs compensation by the State for damage caused by crime. It is applicable if the crime has been committed in Sweden or otherwise in circumstances which are not relevant to the present case (Section 1).         A request for compensation shall be substantiated by a police record, a medical statement and other documents of relevance to the Board's examination. If someone has been convicted of the crime at issue or if someone has been ordered to compensate damage caused by it, a copy of the judgment shall also be enclosed. If no police investigation has been carried out, other material concerning the causes of the damage suffered shall be submitted (Section 2 of the Ordinance on Damage Caused by Crime (brottsskadeförordningen 1978:653)).         No appeal lies against a decision of the Board (Section 12 of the 1978 Act). Nor is it possible to request judicial review of the decision, pursuant to the 1988 Act on Judicial Review of Certain Administrative Decisions (rättsprövningslagen 1988:205).         A claim for compensation under the 1978 Act must be filed with the Board within two years from the date of the offence. Requests are considered only where the offence has been notified to the Public Prosecutor or the police or where the applicant shows good reasons why such notification has not been made. In special circumstances a claim may be dealt with by the Board although it has been filed at a later stage (Section 14).         The Board is composed of a Chairman, two Vice-Chairmen and three other members. The Chairman and the Vice-Chairmen of the Board must have legal competence ("vara lagfarna") and be experienced as judges (Section 13). The two Vice-Chairmen have substitutes who are also qualified judges. The Board further includes a representative of the insurance business and two substitutes for him. There are also two laymen who are nominated by the political parties and four substitutes for those laymen. All fifteen members of the Board are appointed by the Government for a fixed period (Section 15 of the Ordinance with Instructions for the Board (förordningen 1988:984 med instruktion för brottsskadenämnden)). The rules governing the procedure before the Board are similar to those found in the Code of Judicial Procedure (rättegångsbalken) as well as the 1986 Administrative Procedure Act (förvaltningslagen 1986:223).         As of 1 July 1994 the 1978 Act has been amended. A new authority has been established for the examination of compensation requests, namely the Authority for Victims of Crime (Brottsoffermyndigheten). Within that authority there is a Board examining cases of particular interest or cases that are otherwise of major importance.     COMPLAINT         The applicant complains of a violation of Article 6 para. 1 of the Convention in that he could not have his civil right to compensation pursuant to the 1978 Act determined by a court.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 November 1993 and registered on 6 January 1994.         On 5 July 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.    The Government's written observations were submitted on 28 September 1994. The applicant replied on 14 and 18 October 1994. Additional observations were submitted by the Government on 11 November 1994.   THE LAW         The applicant complains of a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that he could not have his civil right to compensation pursuant to the 1978 Act determined by a court.         Article 6 para. 1 (Art. 6-1) reads, as far as relevant, as follows:         "In the determination of his civil rights ..., everyone is       entitled to a ... hearing ... by an independent and       impartial tribunal established by law. ..."         The Government primarily submit that Article 6 para. 1 (Art. 6-1) is not applicable, since the applicant had no "civil right" to compensation pursuant to the 1978 Act. His right to compensation was finally decided by the Svea Court of Appeal in the course of the criminal proceedings instituted against one of the alleged offenders, who was eventually acquitted. It is true that the Board for Reparation to Victims of Crime may grant compensation even if no one is convicted of an alleged offence. However, this does not mean that the applicant may claim a "right" to such compensation. In any case, such a "right" is not "civil" in character, since the compensation system set up by the 1978 Act has several features of public law and is, moreover, entirely financed by the State.         Should the Commission find that a "civil right" of the applicant was determined by the Board for Reparation to Victims of Crime, the Government argue that the application is manifestly ill-founded. The Board fulfils the requirements of a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). It is independent of the executive. Its procedure is established by law and resembles that of an ordinary court of law. Its members fulfil impartiality criteria. All documents submitted are normally public. Oral hearings may be held. The Board's decisions are binding.         The applicant contends that he had a "civil right" to obtain compensation under the 1978 Act. No suspect needed to be identified or convicted in order for him to claim such a right. The acquittal of the person accused of the crimes against him does not imply that no crime had been committed. The applicant claims he submitted medical and police records as well as other material to the Board for Reparation to Victims of Crime, which in his opinion clearly showed that a crime had been committed. In the light of the development of the Convention organs' case-law in regard to the applicability of Article 6 para. 1 (Art. 6-1) the applicant considers that his right was of a "civil" character.         The Commission has carried out a preliminary examination of the application and considers that it raises questions of fact and law of such a complex nature that their determination requires an examination of the merits. The application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring the application inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the Second Chamber   Acting President of the Second Chamber           (K. ROGGE)                               (G.H. THUNE)