CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 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. 34825/97                       by Lennart BERGLUND and 92 Others                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 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 11 November 1996 by Lennart BERGLUND and 92 Others against Sweden and registered on 11 February 1997 under file No. 34825/97;         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 applicants are listed in the annex to the decision.   Before the Commission they are represented by the first applicant, an economist residing in Säter.         The facts of the case, as submitted by the applicants, may be summarised as follows.         On 28 September 1994 the ferry M/V Estonia sank in the Baltic Sea, resulting in 852 dead or missing persons, including relatives of the applicants.         In the autumn of 1994 the Swedish Government entrusted the National Maritime Administration (Sjöfartsverket) with the task of investigating the possibilities and consequences of bringing the victims of the disaster ashore.   Moreover, an Ethical Council was appointed to advise the Government on the ethical problems that arose due to the disaster.         Following the suggestions of the Administration and the Council, the Government decided, on 15 December 1994, that neither the wreck of M/V Estonia nor the bodies of the victims should be salvaged, that the place where the wreck was situated should be regarded as a burial ground and that the wreck should be covered in order to secure the peace of the burial ground.   The Administration was instructed to investigate the matter and make suggestions as to the covering and surveillance of the wreck.         Following the National Maritime Administration's report of 10 February 1995, the Government entrusted, on 2 March 1995, the Administration with the task of covering the wreck with concrete and ordered it to invite tenders for the project.   In its decision, the Government recalled the status of the place of the wreck as a burial ground and stated that, in realising the project, regard should be had to environmental effects.         On 23 February 1995 an agreement concerning the wreck of M/V Estonia was signed by Sweden, Finland and Estonia.   According to the Agreement, the wreck and the surrounding area shall be regarded as a final place of rest for the victims of the disaster, and the wreck shall not be raised.   According to Article 4 of the Agreement, the Contracting Parties undertake to enact national legislation aimed at the criminalisation of any activities disturbing the peace of this final place of rest, in particular any diving or other activities with the purpose of recovering victims or property from the wreck or the sea bed.   Further, a Contracting Party may take measures to cover the wreck or to prevent pollution of the marine environment from the wreck.         In accordance with Article 4 of the Agreement, the Swedish Parliament subsequently adopted the Act on the Protection of the Peace of the Grave at the Wreck of M/V Estonia (Lag om skydd för gravfriden vid vraket efter passagerarfartyget Estonia, 1995:732), which, inter alia, provides for criminal sanctions against the activities prohibited by that Article.   The Act entered into force on 1 July 1995.         In January 1996 the National Maritime Administration signed a contract with an international consortium of construction companies concerning the covering of M/V Estonia.   The work, which was to be carried out in steps, started with the strengthening of the sea bed with stones and the covering of the area around the wreck with textile.         On 16 January 1996 the District Court (tingsrätten) of Stockholm gave judgment in a case brought by seven of the present applicants against the Swedish State.   In order for the victims to be buried as, allegedly, they would have wished and to facilitate the procurement of further evidence needed in future proceedings regarding the disaster, the plaintiffs requested that the State be ordered to search and salvage the bodies or, in the alternative, to assist the relatives in such efforts.   The plaintiffs also requested that the State be prohibited from covering the wreck or taking other similar measures. Finally, they sought the court's confirmation of the relatives' right to search and salvage the bodies.   They invoked customary law and Articles 6, 8, 9, 13, 14 and 17 of the Convention.         The District Court rejected the plaintiffs' claims.   It found that neither customary law nor the Convention entailed an obligation on the State to take the measures invoked by the plaintiffs or to refrain from covering the wreck.   Moreover, the relatives had no legal right to search and salvage the bodies.   The court examined the case also under Chapter 15, Section 3 of the Code of Judicial Procedure (Rättegångsbalken), according to which the court may prohibit someone from taking certain action if it is shown that such action could affect claims which have been or might be brought in a lawsuit or other proceedings by the person requesting the court's intervention against the person to whom the prohibition would apply.   However, the District Court found that the plaintiffs did not have such claims against the State.   Further, the need for evidence in proceedings against other parties did not constitute a ground for issuing a prohibition against the State.         The seven plaintiffs appealed against the District Court's judgment to the Svea Court of Appeal (Svea hovrätt).   Their action was joined by 135 intervenors, of whom 75 are applicants in the present case.   By judgment of 29 March 1996, the appeal was rejected.         Thereafter, an appeal was made to the Supreme Court (Högsta domstolen).   A further four intervenors, all applicants in the present case, joined.   On 15 May 1996 the Supreme Court refused leave to appeal.         By decision of 19 June 1996 the Government postponed further work on the covering of the wreck until further notice.   The reason given for the postponement was that a Joint Accident Investigation Commission, composed of representatives of Swedish, Finnish and Estonian authorities and entrusted with the task of examining the cause of the disaster, had not finalised its investigation and the covering of the wreck would render it impossible to obtain further evidence.         In December 1997 the Joint Accident Investigation Commission presented its final report on the M/V Estonia disaster.     COMPLAINTS   1.     The applicants complain, under Article 8 of the Convention, that their right to respect for their private and family life has been violated by the decisions taken by the Swedish authorities.   They argue that the Swedish Parliament and Government cannot claim a right under para. 2 of Article 8 to prevent relatives from searching and salvaging the bodies of the victims of the M/V Estonia disaster.   2.     The applicants claim that the same decisions have also violated their right to freedom of religion under Article 9 of the Convention which, allegedly, includes a right to decide on the burial of their relatives.         Furthermore, the applicants claim that the Swedish authorities have disregarded, in an arbitrary manner, the recommendations on how to handle disasters which have been issued by the National Police Board and the National Board of Health and Welfare.   In so doing, the authorities have discriminated against the victims of the M/V Estonia disaster and their relatives.   In this respect, the applicants invoke Article 14 of the Convention.         Finally, the applicants claim that the decisions of the Swedish authorities have destroyed their rights under the Convention in violation of Article 17 of the Convention.     THE LAW   1.     The applicants complain that they have been prevented from searching and salvaging the bodies of their dead relatives in violation of their right to respect for their private and family life.   They invoke Article 8 (Art. 8) of the Convention which provides as follows:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.   There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health and morals, or for the protection of the rights and       freedoms of others."         The Commission recalls that the M/V Estonia disaster resulted in a very large number of dead or missing persons.   Although it is not known how many of the relatives of these persons support or are opposed to the measures chosen by the Swedish authorities, i.e. the covering of the wreck with concrete and the criminalisation of any diving or other activities aimed at recovering victims or property, it appears that there are different views among the relatives as to what should be done with the wreck.   Thus, any decision on this subject would involve the balancing of diverging interests.   The measures chosen appear to aim primarily at protecting the wreck from plundering but also at securing the peace of the wreck which is to be considered as a burial ground.   Before deciding that these aims should be achieved by the above measures, the Government ordered the National Maritime Administration to investigate the matter and appointed an Ethical Council to give advice on the ethical problems that arose due to the disaster.   Furthermore, the Agreement signed by Sweden, Finland and Estonia on 23 February 1995 stipulated that the above-mentioned activities should be criminalised and provided for the possibility of covering the wreck.         Noting that it is hardly possible to satisfy the wishes of all relatives and having regard to the margin of appreciation afforded to the State under Article 8 (Art. 8) of the Convention, the Commission considers that the measures taken by the Swedish authorities in regard to the M/V Estonia disaster do not show any lack of respect for the applicants' rights under the provision in question (cf. No. 31653/96, Bendréus v. Sweden, Dec. 8.9.97).         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.     The applicants claim that the Swedish authorities have also violated their right to freedom of religion under Article 9 (Art. 9) of the Convention, that the authorities have discriminated against the victims and their relatives in disregard of Article 14 (Art. 14) of the Convention and that the applicants' rights under the Convention have been destroyed in violation of Article 17 (Art. 17) of the Convention.         However, having regard to its above finding in respect of the applicants' complaints under Article 8 (Art. 8) of the Convention, the Commission finds that an examination of the present complaints does not disclose any appearance of a violation of the Articles invoked.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.            M.-T. SCHOEPFER                            J.-C. GEUS          Secretary                                President    to the Second Chamber                    of the Second ChamberANNEX                             LIST OF APPLICANTS   Surname                First name   Berglund               Lennart Barasinski             Peter Calamnius              Bertil Lundkvist              Odd Svensson               Samuel Köpsén                 Monica Långström              Harriet Norlin                 Örjan Arléus                 Birgit Karlsson               Maria Höglund                Maria Källberg               Etel Korpi                  Therese Malmgren               Leif Malmgren               Anders Nord                   Sören Östlund                Gunnar Gustavsson             Thomas Leijon                 Kaj Bertil Fürst                  David Lundström              Gunnar Timmerman              Zaida Iwarzon                Irma Ömar                   Anne-Christin Ömar                   Mona-Lisa Gustafsson             Johnny Engberg                Berit Engberg                Gunnar Nilsson                David Andersson              Ingvar Andersson              Jan-Erik Westerdahl             Marielle Jansson                Jan-Erik Jonson                 Arne Egeryd                 Gunilla Ömar                   Walter Davidson               Britt Ericsson               Carl Harald Nyberg                 Katarina Flodin                 Lennart Lindroos               Runar Kumlin                 Ingvar Kumlin                 Thomas Bergström              Monica Bergström              Maj-Lis Grönhage-Olofson       Ann-Mari Grönhage               Leif Gustavsson             Kerstin Thomsen                Eva Wilkenson              Kerstin Lyrén                  Siri Berg                   ÅsaSurname                   First name   Hedman                 Randolf Hedman                 Carin Burman                 Karl Kumlin                 Karin Gustafsson             Arne Hagman                 Anders Bergström              Maria Bergman                Gunnel Hagman                 Madeleine Hagman                 Mats Henriksson             Kerstin Tann                   Heikki Westerlund             Kenneth Westerlund             Madeleine Carlsson               Lars-Arne Håkansson              Lars Johansson              Ulf Lundström              Kristina Marttinen              Kim Ömar                   Eva-Lena Ömar                   Åse-Lill Gustafsson             Monica Johnsen                Gide Lundström              Anna Johnsen                Mariann Berglund               Birgitta Andersson              Leif Ericson                Gunnel Andersson              Lena Grönhage               Mona Ramsell                Anneli Grund                  Göran Andersson              Maria Andersson              Per-Olof Norlin                 Folke Johnsen                Rut Johnsen                Lars Apelman                Agneta Düke                   Eva Düke                   Bertil Gustafsson             Else-Marie