CEDH · CASELAW;REPORTS;ENG — 18 octobre 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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 23196/94                               Rolf Gustafson                                   against                                   Sweden                          REPORT OF THE COMMISSION                        (adopted on 18 October 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16 - 35). . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16 - 28) . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 29 - 35) . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 36 - 53). . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaint declared admissible            (para. 36) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Point at issue            (para. 37) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    As regards Article 6 para. 1 of the Convention            (paras. 38 - 53) . . . . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 54) . . . . . . . . . . . . . . . . . . . . . .   10   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .11 I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Swedish citizen, born in 1953 and resident in Stockholm.   3.     The application is directed against Sweden. The respondent Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona of the Ministry for Foreign Affairs.   4.     The case concerns the alleged absence of a right to a court determination of the applicant's claim for compensation for damage allegedly caused by crime. The applicant invokes Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 5 November 1993 and registered on 6 January 1994.   6.     On 5 July 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's 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.   8.     On 22 February 1995 the Commission declared the application admissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 8 March 1995 and they were invited to submit further observations on the merits. The Government submitted observations on 6 April 1995, to which the applicant replied on 4 May 1995.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    G. JÖRUNDSSON, Acting President                  H. DANELIUS                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ RUIZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN   12.    The text of this Report was adopted on 18 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   16.    The applicant is currently serving an eight year prison sentence on account of a number of economic crimes of which he has been convicted. He alleges that he was on two occasions, in April-June and June-July 1991, the victim of kidnapping and extortion perpetrated by three persons. According to the applicant, one of the perpetrators, L., had wanted compensation from him for his participation in certain economic crimes which he had committed together with the applicant.   17.    On 25 March 1993 the Public Prosecutor charged L. with one count of kidnapping on 17 April 1991, one count of aggravated extortion committed between 17 April 1991 and June 1991 as well as one count of kidnapping and aggravated extortion committed between 27 June and 3 July 1991.   18.    On 15 April 1993 the applicant requested compensation from the Board for Reparation to Victims of Crime (Brottsskadenämnden) in accordance with the 1978 Act on Damage Caused by Crime (brottsskade- lagen 1978:413; hereinafter "the 1978 Act"). In support of his claim he referred to the criminal proceedings against L. which were pending before the Stockholm District Court (Stockholms tingsrätt). He enclosed a copy of the indictment against L. and reserved his right to supplement his claim once judgment had been rendered.     19.    On 28 April 1993 the District Court convicted L., sentenced him to six years' imprisonment and ordered him to pay 144.350 SEK in damages to the applicant. The District Court found, inter alia, that, generally speaking, the applicant could not be considered a particularly trustworthy person, given that he had been convicted of several counts of economic crimes. It stated, however, that this fact did not in itself mean that his allegations concerning his kidnapping and extortion were untruthful and it found the evidence to be such that the prosecution's case was partially proven.   20.    On 2 July 1993 the Svea Court of Appeal (Svea hovrätt), upon appeal, reversed the District Court's judgment on the ground that the charges against L. had not been proven. Consequently, the Court of Appeal acquitted L. and rejected the applicant's claim for compensation. The Court of Appeal found, inter alia, that because of his cunning criminal character, the applicant could not be considered a trustworthy person. Therefore, although the information submitted by him had been corroborated by others whom he had told about the incidents, this information could not form the basis for a conviction of L. without substantial support in other evidence. All in all, the Court of Appeal did not consider that the public prosecutor had proved his case.   21.    The applicant did not seek leave to appeal to the Supreme Court (Högsta domstolen).   22.    On 12 August 1993 the applicant supplemented his claim for compensation under the 1978 Act by submitting copies of the judgments of the District Court and the Court of Appeal. He then asked the Board to proceed to deciding on his claim.   23.    On 26 August 1993 the Board rejected the applicant's compensation claim, stating as follows:         (translation)         "A condition for a grant of compensation is that damage has       in fact 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."   24.    On 11 November 1993 the applicant requested the Board to reconsider its decision. He argued that it was clear from the judgments of the District Court and the Court of Appeal that he had been the victim of crime and that, as a result thereof, he had suffered the damage for which he requested compensation. He contended that he had named three persons as suspects in the case, two of whom he had identified. The fact that the Court of Appeal had not found it proven that L., the only accused, had committed the offences was not a reason for questioning that the applicant had been the victim of crime. He pointed out that no charges had been brought against the other suspect identified by him.   25.    In support of his request for reconsideration the applicant submitted a copy of the investigation report concerning the alleged kidnappings and extortions, including a medical report by Dr. Lennart Berglin, Deputy Senior Physician, dated 25 February 1993. According to this report, the applicant had, on 4 July 1991, sought emergency care on account of the status of his right eye which he stated had been punched. He had been operated on by Dr. Berglin on 5 July 1991 and had remained hospitalised until 15 July 1991. On 26 February 1992 he had   again been operated on. Dr. Berglin concluded that the applicant's eye injury could have been caused by a punch.   26.    In support of his request the applicant also submitted a transcript of the testimony given by Crime Inspector S. at the District Court's oral hearing in the criminal proceedings against L. S. had been the principal investigator of the economic offences of which the applicant had previously been convicted. He had therefore interrogated both the applicant and L. on a number of occasions. Before the District Court S. had stated, inter alia, as follows:         (translation)         "I was, probably on 4 July 1991, informed [about the       alleged kidnapping of the applicant]. A colleague ...       telephoned me to say that he had been informed that [the       applicant] had been kidnapped ..., that the kidnapping had       been staged by [L.] with the help of two 'gorillas', ...       and that the kidnapping had been combined with an extortion       threat against [the applicant] in the amount of 5 million       SEK.         ... I then ... telephoned [the applicant], who ... denied       that he had been kidnapped. ...         ... I saw [the applicant] in August [1991] in connection       with ... criminal proceedings brought against him ... and       noted that he had a bruise at [one of] his eye[s]. I asked       him what had happened and he stated that he had been the       victim of a robbery committed by some persons. ...         ... Probably in May 1992 [the applicant] mentioned the       kidnappings when he was being interrogated as a suspect in       another case ... He stated that [they had been carried out]       by two black men and a third one, whom he did not wish to       name. ... He repeated several times that one kidnapping had       taken place in April [1991] and [the other] towards the end       of June [1991], lasting until the beginning of July [1991].       ...         We took [the applicant's statements] seriously. ... I have       come to know [the applicant] so well that I can somehow see       when he is lying or when he is telling the truth. ...         Having been asked on a number of occasions to name the       perpetrators, [the applicant] stated that he would do so,       but not right away.   ... In the autumn [of 1991] he named       one of the assistants [during the kidnappings], [P.]. ...         [The applicant's description of the environment and       premises where he had been kept during the kidnappings] was       very accurate as regards many details. ..."   27.    Both Dr. Berglin's report and Inspector S.'s testimony had in essence been reproduced in the District Court's judgment. Inspector S. had also been heard orally before the Court of Appeal, where he had essentially repeated his testimony.   28.    On 1 June 1994 the Board rejected the applicant's request of 11 November 1993, stating as follows:         (translation)         "The submissions in this case in support of the request for       reconsideration are not such as to be a reason for the       Board to change its previous decision. Nor is there any       other reason for changing the decision."   B.     Relevant domestic law   29.    Section 1 of the 1978 Act reads, as far as relevant, as follows:         (Swedish)         "Denna lag gäller ersättning av statsmedel för skada till       följd av brott ...         Lagen tillämpas om brottet har begåtts i Sverige. ..."         (translation)         "This Act regulates compensation to be paid by the State       for damage caused by crime.         The Act is applicable if the crime has been committed in       Sweden . ..."   30.    Section 2 of the Ordinance on Damage Caused by Crime (brotts- skadeförordningen 1978:653) read, in relevant parts and at the relevant time, as follows:         (Swedish)         "... Ansökningen [om brottsskadeersättning] inges till       brottsskadenämnden.         Till ansökningen bör bifogas polisrapport, läkarutlåtande       och andra handlingar som behövs för prövningen. Har       skadevållaren dömts för brott som avses med ansökningen       eller dömts till skadestånd, bör också domen bifogas. Har       polisutredning inte ägt rum, skall annan utredning om       skadans uppkomst lämnas."         (translation)         "... The claim [for compensation for damage caused by       crime] shall be lodged with the Board for Reparation to       Victims of Crime.         The claim shall be supported 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       referred to in the request or if someone has been ordered       to pay damages, a copy of the judgment [to this effect]       shall also be enclosed. If no police investigation has been       carried out, other material concerning the cause of the       damage shall be submitted."         Section 14 of the 1978 Act reads as follows:         (Swedish)         "Ansökan om brottsskadeersättning skall göras inom två år       från det att brottet begicks. Föreligger särskilda skäl kan       ansökan prövas även om den har kommit in för sent.         Ansökan prövas endast om brottet har anmälts till åklagare       eller polismyndighet eller om sökanden visar giltig       anledning till att sådan anmälan inte har gjorts."         (translation)         "A claim for compensation for damage caused by crime shall       be filed within two years from the date of the offence. If       there are special reasons, a claim may be examined even if       it has been lodged out of time.         A claim will only be examined if the offence has been       reported to the Public Prosecutor or the police or if the       applicant shows a valid reason why such a report has not       been made."   31.    The compensation awarded under the 1978 Act shall relate to physical injury suffered by the victim but may, on certain conditions, also cover damage to property. Other damage may be compensated to a limited extent (sections 2-5 of the 1978 Act).   32.    As of 1 July 1994 the 1978 Act has been amended. A new public body has been established for the examination of compensation requests, i.e. 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 particular importance.   33.    No appeal lay against a decision of the Board for Reparation to Victims of Crime (Section 12 of the 1978 Act). Nor was it possible to request judicial review of the decision, pursuant to the 1988 Act on Judicial Review of Certain Administrative Decisions (rättsprövnings- lagen 1988:205).   34.    The Board for Reparation to Victims of Crime established by the 1978 Act was composed of a Chairman, two Vice-Chairmen and three other members. The Chairman and the Vice-Chairmen of the Board had to be lawyers ("vara lagfarna") and have experience as judges (Section 13 of the 1978 Act). The two Vice-Chairmen had substitutes who were also qualified judges. The Board further included a representative of the insurance business and two substitutes for him or her. There were also two other members who were not lawyers. All members of the Board had been appointed by the Government for a limited period (Section 15 of the Ordinance with Instructions for the Board (förordningen 1988:984 med instruktion för brottsskadenämnden).   35.    The rules governing the procedure before the Board were similar to those found in the Code of Judicial Procedure (rättegångsbalken) as well as the 1986 Administrative Procedure Act (förvaltningslagen 1986:223). Thus, for instance, the rules for disqualifying persons from dealing with a case (Sections 11-12 of the 1986 Act) were similar to the rules in Chapter 4, Section 13 of the Code of Judicial Procedure which apply to ordinary courts. A party also had the possibility to make an oral statement and be heard orally before a decision was taken, if this was considered expedient by the authority (Section 14 of the 1986 Act). A party was entitled to have access to all written documents in a case, unless a strong public or private interest required that information which was secret pursuant to the 1980 Secrecy Act (sekretesslag 1980:100) should not be revealed. In such a case the party concerned should be informed of the contents of such facts in order to enable him to protect his rights, provided this could be done without serious harm to the interest protected by the secrecy. No case could be decided before a party to the proceedings had been informed about all facts that had been brought into the case and had been given the opportunity to submit his observations in reply.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   36.    The Commission has declared admissible the applicant's complaint that he could not have his civil right to compensation pursuant to the 1978 Act determined by a court.   B.     Point at issue   37.    The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   38.    Article 6 para. 1 (Art. 6-1) of the Convention reads, in relevant parts, as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair and public hearing within a reasonable       time by an independent and impartial tribunal established       by law. ..."   39.    The applicant submits that he had a "civil right" to obtain compensation under the 1978 Act which he could not have determined by a court. He underlines that no suspect needed to be identified or convicted in order for him to claim such a right. The acquittal of L., the only person charged with the crimes allegedly committed against the applicant, does not mean that the applicant had not been the victim of criminal acts. For instance, the other suspect named by him in the pre- trial investigation, P., was never arrested.   40.    The applicant underlines that in the proceedings before the Board for Reparation to Victims of Crime he submitted medical and police records as well as other material which in his opinion clearly showed that he had been the victim of criminal acts. He had also complied with the requirement in Section 14 of the 1978 Act that these crimes should first have been reported to the police or the Public Prosecutor.   41.    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 L., who was eventually acquitted. The Government concede 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.   42.    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 this Board satisfies 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; and the Board's decisions are binding.   43.    The Commission must first ascertain whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the instant case and, notably, whether there was a dispute over a "civil right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious and its outcome must be directly decisive for the right in question (see, e.g., Eur. Court H.R., Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).   44.    The Commission has first examined whether the applicant had a "right" of a "civil" character within the meaning of Article 6 para 1 (Art. 6-1). It recalls that, on the one hand, this provision is not aimed at creating new substantive rights without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (see, e.g., Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32-33, para. 73). On the other hand, the term "right" must be given an autonomous interpretation under Article 6 para. 1 (Art. 6-1) of the Convention (see, e.g., Eur. Court H.R., König case, judgment of 28 June 1986, Series A no. 27, pp. 29-30, para. 88-89).   45.    The Commission recalls that, according to the current practice of the Convention organs, the fact that benefits financed and granted by the State are at issue is not sufficient to establish that Article 6 para. 1 (Art. 6-1) is inapplicable. Other considerations might argue in favour of the applicability, such as whether or not the applicant was claiming an individual, economic right flowing from specific rules laid down by law (see, e.g., Eur. Court H.R., Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263-A, p. 17, para. 46; Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, para. 19).   46.    The Commission observes that the entitlement to compensation under the 1978 Act has certain public law features in that it relates to a scheme established by law and is administered by public authorities. In the Commission's opinion, however, the 1978 Act is sufficiently precise to give those who satisfy the conditions laid down in the Act a "right", within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, to compensation for damage inflicted on them by criminal acts. This right is of an individual and pecuniary nature and is therefore also of a "civil" character within the meaning of this provision.   47.    The Commission has next considered whether the dispute between the applicant and the authorities as to his entitlement to compensation under the 1978 Act was a genuine and serious one. In this respect the Commission notes that criminal proceedings had been brought against L., one of the alleged perpetrators of the kidnappings and extortions of which the applicant claimed to have been the victim. L. had eventually been acquitted on the ground that the prosecutor's case had not been proven. The Court of Appeal found that the applicant was not a credible person and that, even if there were circumstances which supported his account of the alleged offences, there were other elements which gave rise to doubts.   48.    It is undisputed that the Board for Reparation to Victims of Crime can grant compensation even if there is no conviction in a criminal case. However, it has to be established that an offence has been committed. On the other hand, if it is established that an offence has been committed, it does not have to be shown who committed the offence.   49.    It is clear that, where a criminal charge has been brought against a person in respect of an alleged offence, the outcome of these proceedings is of particular importance for the Board. If, as in the present case, the criminal proceedings have resulted in an acquittal, the Board cannot as a rule find it established that an offence has been committed unless convincing new material is invoked which was not considered by the courts in the criminal proceedings or it is shown that an offence was committed by someone other than the acquitted person.   50.    In the present case the Commission has examined the case-files of the Board regarding the applicant's claims for compensation under the 1978 Act. It finds that the applicant did not invoke before the Board any relevant material which had not already been available to the courts. It notes, in particular, that Dr. Berglin's report was considered by the courts and that Inspector S. was heard before both the District Court and the Court of Appeal.   51.    The Commission is not convinced by the applicant's argument that he had named three persons as suspects but only one of the three had been prosecuted. There is nothing in the case-files which would show that the other two persons rather than L. had committed the alleged offences against him.   52.    In these circumstances, the Commission considers that the applicant did not invoke before the Board any evidence which might have allowed the Board to reach the conclusion that, despite L.'s acquittal, the applicant had been the victim of criminal offences. Consequently, there was no serious and genuine dispute regarding his civil rights.   53.    It follows that there has been no violation of Article 6 para. 1 (Art. 6-1).     CONCLUSION   54.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 of the Convention.            Secretary to                        Acting President of       the Second Chamber                      the Second Chamber         (M.-T. SCHOEPFER)                        (G. JÖRUNDSSON)