CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 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. 30526/96                       by Ervin and Olga DE LACZAY                       against Sweden          The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 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     F. MARTINEZ                  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 19 April 1995 by Ervin and Olga DE LACZAY against Sweden and registered on 20 March 1996 under file No. 30526/96;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 16 July 1997 and the observations in reply submitted by the applicants on 8 August and 8 September 1997;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant, a United States citizen, was born in 1909 and died on 5 December 1995. The second applicant, the first applicant's sister, was born in 1911. A Canadian citizen, she resides in Montreal.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicants' brother, Tibor de Laczay, was employed by the Swedish company AGA between 1946 and 1967. He was in charge of the management and exploitation of certain radio and television patents. Agreements reached between Tibor de Laczay and AGA in 1961 stated that, in addition to a monthly salary, he received 15 per cent of the continuous profits on patent licensing contracts concluded by him on behalf of AGA. According to the agreements, he was entitled to his share of the profits even if his employment at AGA would end before the expiration of the licensing contracts. Any disputes arising out of the agreements between Tibor de Laczay and AGA were to be settled by arbitration by the Swedish Technical and Industrial Institute of Arbitration (Sveriges Tekniskt Industriella Skiljedomsinstitut; hereinafter "the Arbitration Board").        Tibor de Laczay died on 10 June 1967 and his wife, Irma de Laczay, on 10 December 1967. Thereafter, the estates, i.e. the present applicants and Irma de Laczay's two brothers, claimed that, under the terms of the 1961 agreements, they were entitled to Tibor de Laczay's share of the continuous profits on contracts still in force. AGA, however, maintained that the agreements did not entail a right to a share of the profits after Tibor de Laczay's death. The dispute was brought before the Arbitration Board in December 1971. The estates requested that AGA be ordered to account for profits accrued after 31 December 1966 and the estates' share of those profits.        By award of 25 October 1972, the Arbitration Board found that the wording of the 1961 agreements and the other circumstances of the case did not convincingly show that there was a right to profit shares after Tibor de Laczay's death. Noting that AGA had accounted for profits accrued until 30 June 1967, the board accordingly rejected the estates' request.        In December 1972 the estates lodged a protest action (klandertalan) against the award in the District Court (tingsrätten) of Södra Roslag. Maintaining that a representative of AGA had given false evidence before the Arbitration Board and that AGA had submitted falsified documents to the board, the estates claimed, inter alia, that the award should be declared null and void. By judgment of 15 October 1974, the District Court rejected their claim. The judgment was upheld on appeal by the Svea Court of Appeal (Svea hovrätt) on 14 November 1978. The appellate court found that, under the Arbitration Act (Lag om skiljemän, 1929:145), an arbitration award could not be declared null and void on account of criminal or other undue conduct during the arbitration proceedings, including the giving of false evidence or the submission of falsified documents. On 19 March 1982 the Supreme Court (Högsta domstolen) refused leave to appeal and on 5 June 1985 it refused to reopen the case.        On 21 March 1983 the estates brought an action for damages against AGA, two of its representatives and a third person in the District Court, basically relying on the same grounds as in the protest action, i.e. that false evidence and falsified documents had been invoked by AGA before the Arbitration Board which had led the Board to take an erroneous decision. Following a preparatory hearing on 10 December 1985, the District Court, on 5 February 1986, decided that the claims against the third person should be dealt with as a separate case. This case was dismissed on formal grounds on 16 March 1989.        On 16 September 1986 the remaining defendants requested that the estates' claims should be dismissed as they had already been examined by the Arbitration Board and were thus res judicata. The District Court held a further preparatory hearing on 11 September 1989.        On 9 March 1990 the District Court dismissed the action for being res judicata. However, the estates appealed and on 28 February 1991 the Court of Appeal quashed the District Court's decision, finding that the claims for damages had not been examined on the merits by the Arbitration Board or by the District Court in the protest proceedings. Accordingly, the case was referred back to the District Court for re- examination. On 11 July 1991 the Supreme Court (Högsta domstolen) refused leave to appeal against the appellate court's decision.        Preparatory hearings were held by the District Court on 28 October and 6 November 1992. Subsequent to the estates' withdrawal of their claims against the two AGA representatives, the court, on 8 March 1993, rejected these claims.        Following a further preparatory hearing on 11 January 1994 and main hearings on 15-20 June 1994, the District Court, by judgment of 15 July 1994, rejected the estates' claims against AGA. The court considered that it had not been established that the representative of AGA before or during the arbitration proceedings had known or ought to have known that evidence given or documents invoked before the Arbitration Board were false. The estates had thus failed to show any negligence for which AGA could be held responsible. The court further found one of the estates' claims to be time-barred.        The Parliamentary Ombudsman (Justitieombudsmannen) examined the District Court's handling of the case at the request of counsel for the estates. In his decision of 29 August 1994, the Ombudsman heavily criticised the court for the delay notwithstanding the special circumstances of the case. In particular, the Ombudsman noted that it had taken the court three and a half years to decide on the res judicata objection raised by the defendants.        On 2 August 1994 the estates appealed to the Court of Appeal. The court held preparatory hearings with the parties' lawyers on 7 and 29 February 1996. Main hearings in the case were held on 23-27 January 1997. By judgment of 21 February 1997, the Court of Appeal upheld the District Court's judgment.        On 14 July 1997 the Supreme Court refused leave to appeal.     COMPLAINTS        The applicants claim that, in the case concerning damages, they have not had a fair hearing within a reasonable time as required by Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 19 April 1995 and registered on 20 March 1996.        On 9 April 1997 the Commission (Second Chamber) decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits. The Government were asked to deal with the question whether, in the case concerning damages, the applicants had had a hearing within a reasonable time.        The Government's observations were submitted on 16 July 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 8 August and 8 September 1997.     THE LAW        The Commission first observes that the first applicant died on 5 December 1995. The Commission has not been able to obtain a statement from his legal successors as to whether they wish to pursue the application on his behalf. However, as the application is identical for the two applicants, the Commission considers that it is not necessary to take a separate decision, under Article 25 (Art. 25) of the Convention, as to whether or not to examine the complaints in regard to the first applicant. Therefore, the Commission will deal with the application in the same way as if it had been pursued by his legal successors (cf. No. 6166/73, Dec 30.5.75, D.R. 2, p. 58 at p. 61).        The applicants claim that, in the case concerning damages, they have not had a fair hearing within a reasonable time. They invoke Article 6 para. 1 (Art. 6-1) of the Convention which provides, in relevant parts, as follows:        "1.   In the determination of his civil rights and      obligations ..., everyone is entitled to a fair ... hearing      within a reasonable time ..."        As regards the alleged unfairness of the proceedings, the applicants state that the presiding judge of the Court of Appeal on several occasions expressed his agreement with the views of AGA and that, consequently, that court cannot be considered to have been impartial.        The Commission considers, however, that the applicants' submissions fail to substantiate this complaint.        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.        With respect to the length of the proceedings, the respondent Government submit that the case was extremely comprehensive and raised complex questions of fact and law. Still, in view of the time that elapsed before the District Court held a main hearing and delivered its judgment and having regard to the opionion of the Parliamentary Ombudsman and the other circumstances of the case, the Government do not object to the application being declared admissible. Further, with regard to the merits of the case, the Government do not argue that it was heard within a reasonable time by the District Court, but leave this question for the Commission to decide. However, the Government do not see any reason to criticise the subsequent proceedings in the Court of Appeal and the Supreme Court.        The applicants state that the case did not involve any complex questions, but was delayed by the District Court's failure to decide on procedural questions in due time and its otherwise inactive handling of the case. Allegedly, the time that elapsed before the Court of Appeal - two and a half years - was also excessive.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of this complaint is required.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicants' complaint that the case concerning damages was      not determined within a reasonable time;        DECLARES INADMISSIBLE the remainder of the application.           M.-T. SCHOEPFER                            J.-C. GEUS          Secretary                                President    to the Second Chamber                    of the Second Chamber