CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 34072/96                       by Bertil SJÖÖ                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 3 May 1996 by Bertil SJÖÖ against Sweden and registered on 6 December 1996 under file No. 34072/96;         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 applicant is a Swedish citizen born in 1958.   Before the Commission he is represented by Mr Jan Thörnhammar, a lawyer practising in Stockholm.         The facts of the present case, as submitted by the applicant, may be summarised as follows.   a.     The particular circumstances of the case         By decision of 28 June 1994, the District Court (tingsrätten) of Helsingborg declared the applicant bankrupt.   The administration of the estate was entrusted to a receiver (konkursförvaltare) appointed by the court.   The receiver requested the Enforcement Office (Kronofogde- myndigheten) in Örebro to auction two pieces of property owned by the applicant.         The Enforcement Office scheduled the auction for 14 November 1995.   The applicant requested that it be postponed, as he disputed certain claims made by one of his creditors.   On 13 November the Enforcement Office rejected his request.   By decision of 14 November, the District Court of Örebro dismissed the applicant's appeal due to lack of standing.   The court noted the following:   (Translation)         "Under Chapter 3, Section 1 of the Bankruptcy Act       [Konkurslagen] a debtor who has been declared bankrupt no       longer has a right to dispose of the property belonging to       the bankruptcy estate.   Having lost his right of       disposition the debtor may not carry out any legal acts       which are binding on the estate.   Instead, it is the       receiver who is in charge of and administers the estate.       The receiver shall sell the assets of the estate and       distribute the money received among the creditors.   There       is no general right of the debtor to influence the       administration of the estate, the instances where such a       right exists being specifically regulated.   For example,       under Chapter 7, Section 10 of the Bankruptcy Act the       receiver shall consult the debtor before taking action in       more important matters.   There is no general rule giving       the debtor a right to appeal against the receiver's       decision to request a forced sale or the Enforcement       Office's decision to fix the date for the auction [...].       Accordingly, [the applicant] has no standing in the matter.       Moreover, there are no reasons for a postponement".         The applicant's appeal against the District Court's decision was rejected by the Göta Court of Appeal (Göta hovrätt) on 5 December 1995. The Supreme Court (Högsta domstolen) refused leave to appeal on 11 April 1996.         On 14 November 1995 the auction took place as scheduled.   The Enforcement Office decided to accept one of the bids made for the two properties, despite the applicant's complaint that the bid was too low. The applicant appealed against this decision to the District Court of Örebro which dismissed the appeal on 7 December 1995.   Applying a reasoning similar to that of the decision of 14 November, the court noted that there was no provision conferring a right on the debtor to appeal against the forced sale of the real property of the estate. Accordingly, the applicant was considered to lack standing in the matter.   The District Court's decision was upheld by the Court of Appeal on 25 January 1996.   The Supreme Court refused leave to appeal on 1 April 1996.   b.     Relevant domestic law         Proceedings in bankruptcy are governed by the provisions of the Bankruptcy Act.   Under Chapter 2 of the Act, the decision to declare a person bankrupt is taken by the relevant District Court.   The person declared bankrupt may appeal against that decision to the Court of Appeal and, provided that leave to appeal is granted, the Supreme Court.   If an appeal is made to the Court of Appeal no assets of the bankruptcy estate may be sold before that court has examined the case (Chapter 8, Section 3 of the Act, which contains a few exceptions).         The main effect of a bankruptcy decision is that the debtor no longer has a right to dispose of the property belonging to the bankruptcy estate and may not enter into any agreements binding on the estate (Chapter 3, Section 1 of the Act).   Instead, a court-appointed receiver is in charge of the estate.   His administration is under the supervision of the local Enforcement Office (Chapter 1, Section 3).         If appropriate, the receiver shall consult the debtor in more important matters (Chapter 7, Section 10 of the Act).   However, there is no right of the debtor to appeal against decisions taken by the receiver in the administration of the bankruptcy estate.   The property of the estate shall normally be sold as soon as possible (Chapter 8, Section 1).   The receiver may request that real property be sold at an auction (Chapter 8, Section 6).   The auction is conducted by the Enforcement Office (Chapter 8, Section 1 of the Code of Enforcement (Utsökningsbalken)) which, inter alia, fixes the date of the auction and decides which bid to accept (Chapter 12 of the Code).   The bankruptcy debtor has no standing to appeal against such decisions.         When the assets of the estate have been sold and the revenues have been distributed among the creditors, the receiver shall submit a final report on the administration of the estate to the Enforcement Office (Chapter 13, Sections 1-3 of the Act).   The debtor may protest against the report by bringing a civil suit for damages in the ordinary courts.   The receiver is responsible for losses incurred due to intentional or negligent conduct in the administration of the estate (Chapter 13, Section 7 and Chapter 17, Sections 1 and 2).     COMPLAINTS         The applicant complains that he did not have access to court for the determination of his request for the postponement of the auction and his complaint that the bid accepted by the Enforcement Office was too low.   He maintains that he should have standing to appeal against decisions which concern the sale of his property.   Allegedly, the possibility to take civil action for damages against the receiver is not a sufficient alternative.   The applicant invokes Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.   THE LAW   1.     The applicant complains that he did not have access to court for the determination of his request for the postponement of the auction and his complaint that the bid accepted by the Enforcement Office was too low.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention which, in relevant parts, provides as follows:         "1.   In the determination of his civil rights and       obligations ..., everyone is entitled to a ... hearing ...       by ... [a] tribunal ..."         The Commission first notes that the challenged decisions concerned the forced sale of property owned by the applicant. Consequently, they involved a determination of the applicant's "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1).         The Commission recalls, however, that the applicant had been declared bankrupt by a District Court decision of 28 June 1994 and that the property was sold to cover his debts.         According to the case-law of the Commission and of the European Court of Human Rights, the right of access to court is not absolute but may be subject to limitations (cf., e.g., Eur. Court HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93).   In the majority of the Contracting States, the right of access to court is regulated in respect of, inter alia, persons declared bankrupt.   Such regulations are not in principle contrary to Article 6 (Art. 6) of the Convention where the aim pursued is legitimate and the means employed to achieve the aim are proportionate (cf. No. 12040/86, Dec. 4.5.87, D.R. 52, p. 269).         The Commission finds that the applicant's lack of standing to appeal against the decisions in question served the legitimate aims of protecting the rights of his creditors and safeguarding the proper administration of the bankruptcy estate.   Recalling that the applicant had a right to appeal against the decision to declare him bankrupt and that he may bring a civil action for damages against the receiver of the estate in the ordinary courts, the Commission considers that the above-mentioned limitations on his access to court were not disproportionate to those legitimate aims.   In these circumstances, the Commission finds no violation of Article 6 para. 1 (Art. 6-1) 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.   2.     As the decisions taken concerned the sale of his property, the applicant further claims that the lack of access to court constituted a violation of his property rights under Article 1 of Protocol No. 1 (P1-1) of the Convention.         The Commission considers, however, that this complaint is in substance identical to that already examined and rejected in the context of Article 6 para. 1 (Art. 6-1).   Consequently, no separate issue arises under Article 1 of Protocol No. 1 (P1-1) (cf. Eur. Court HR, British-American Tobacco Company Ltd v. the Netherlands judgment of 20 November 1995, Series A no. 331, p. 29, para. 91).   3.     Finally, invoking Article 14 (Art. 14) of the Convention, the applicant claims that the limitations on his access to court discriminates against him as a debtor since, allegedly, no such limitations apply in regard to other parties with interests in the bankruptcy proceedings.         However, having regard to its finding under Article 6 para. 1 (Art. 6-1) that the limitations in question were justified, the Commission considers that the present complaint does not disclose any appearance of a violation of the right protected by Article 14 (Art. 14).         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.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.          M.-T. SCHOEPFER                            J.-C. GEUS          Secretary                                President    to the Second Chamber                    of the Second Chamber