CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 juillet 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. 18781/91                       by Roy E. GASPER                       against Sweden           The European Commission of Human Rights sitting in private on 6 July 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;    Having regard to the application introduced on 6 May 1991 by Roy E. GASPER against Sweden and registered on 11 September 1991 under file No. 18781/91;         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 5 October 1995 and 15 March 1996 and the observations in reply submitted by the applicant on 22 February, 15 April and 14 June 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swedish national born in 1940, resides in Rijswijk, the Netherlands. Before the Commission he is represented by Mr Göran Ravnsborg, a lecturer in law at Lund University.         The facts of the case, as submitted by the parties, may be summarised as follows.   a.     The particular circumstances of the case         In the late 1970's and in the beginning of the 1980's the applicant ran a taxi business in Malmö. For this purpose, he had been granted a transportation licence by the County Administrative Board (länsstyrelsen) of the County of Malmöhus. Moreover, he was a member of a private-law body known as the Malmö Taxi Economic Association. The purpose of the latter association was inter alia to provide taxi station services and to manage a dispatch exchange.         Following a dispute with representatives of the Association, the applicant, on 7 November 1980, gave notice of his intention of leaving the said Association.         In the beginning of 1981 the Association lodged a petition with the County Administrative Board, requesting that the applicant's transportation licence be revoked. The request rested on the contention that, following his withdrawal from the Association, the applicant no longer subscribed to a dispatch exchange. According to the then relevant legislation - the 1979 Act on Commercial Transportation (Yrkestrafiklagen, 1979:559) - the granting and holding of a transportation licence were conditional on affiliation to such an exchange.         By decision of 27 March 1981, the County Administrative Board ordered the applicant - on pain of losing his transportation licence   - to apply for membership of the Association. In so doing, the Board stated that the applicant was obliged to subscribe to a dispatch exchange, that he should belong to the one provided by the Association and that - in the absence of any other practicable way of bringing about such affiliation - he should be affiliated to the dispatch exchange by means of membership of the Association.         The decision was upheld on appeal by the Board of Transport (Transportrådet) on 18 June 1981.         The applicant subsequently appealed to the Government, which, on 19 November 1981, quashed the impugned decision. They found that there was no statutory basis for imposing membership of the Association as a prerequisite for the applicant's holding of a transportation licence.         By letter of 10 December 1981, apparently invoking the 1972 Claim Settlements Order (Kungörelsen om statsmyndigheternas skadereglering i vissa fall, 1972:416), the applicant lodged a claim for compensation with the Chancellor of Justice (Justitiekanslern). The amount claimed by the applicant - 72,000 Swedish crowns (SEK) - was equivalent to the costs for legal representation allegedly incurred by him in his   - fruitful - efforts to have the County Administrative Board's decision quashed. He contended that the latter decision had constituted a violation of his negative freedom of association.       By decision of 4 November 1982, the Chancellor of Justice rejected the applicant's claim. The Chancellor stated inter alia the following:   (Translation)         "[T]he fact that the County Administrative Board ordered       [the applicant] to apply for membership of the Association       instead of ordering him to affiliate his business to the       dispatch exchange cannot be considered erroneous or       negligent to such an extent that the decision could entail       liability on the part of the State to pay damages. For this       reason, I reject his claim for compensation."         Reiterating his claim for compensation, the applicant, on 9 August 1990, instituted civil proceedings against the State in the District Court (tingsrätten) of Stockholm. Again, he maintained that the whole of the claim - now amounting to 107,000 SEK plus interest - referred to costs for legal representation which had been necessarily incurred by him in the proceedings before the County Administrative Board, the Board of Transport and the Government. He invoked Chapter 3, Section 2 of the 1972 Tort Liability Act (Skadeståndslagen, 1972:207), according to which the State is liable to pay compensation in the event of error or negligence in the exercise of authority.         In reply to these submissions the State, represented by the Chancellor of Justice, stated that it refused the applicant's claim but submitted, in the alternative, that it would accept to pay 3,000 SEK, should the District Court find that the State was indeed liable to pay damages.         Already when instituting proceedings on 9 August 1990, the applicant requested that all legally trained judges who - in their very capacity as judges - were subject to disciplinary control by the Chancellor of Justice be disqualified from examining his case. The applicant invoked Chapter 4, Section 13, subsection 9 of the Code of Judicial Procedure (Rättegångsbalken).         By separate decision of 17 October 1990, the District Court rejected the applicant's request, stating that the reasons invoked by him did not constitute grounds for disqualification under the provision invoked.         The decision was upheld on appeal by the Svea Court of Appeal (Svea hovrätt) on 23 November 1990. Although it was not open to the applicant to appeal further against this decision, he lodged an appeal with the Supreme Court (Högsta domstolen). The applicant's appeal was treated as an extraordinary appeal against miscarriage of justice (besvär över domvilla). On 4 June 1991 the Supreme Court dismissed the appeal, stating that the issue of disqualification could be examined within the context of an ordinary appeal against the District Court's future judgment on the merits of the case.         Following the above decisions, the applicant's case continued on its merits in the District Court.         At the request of the applicant, the District Court, on 23 January 1992, informed him that his case would be examined by judges L.C., T.J. and B.H. Referring to his previous submissions in this respect, the applicant immediately requested that these judges be disqualified from examining the case.   On 27 February 1992 the District Court - sitting with three other judges and having held a separate hearing on the issue - dismissed the applicant's request for disqualification, finding that it was essentially identical to his previous request concerning this issue.         The hearing on the merits took place later that day in the presence of the applicant's counsel and the State's representative, i.e. the Chancellor of Justice. The District Court was composed of judges L.C., T.J. and B.H.         In its judgment of 12 March 1992, the District Court found the State liable to pay damages. The Court stated inter alia the following:   (Translation)         "By the County Administrative Board's decision of       27 March 1981, [the applicant] was ordered - on pain of       losing his transportation licence, on which he depended for       earning his living - to apply for membership of the very       economic association he had recently left, following a       dispute between himself and the association. The decision       lacked a statutory basis ... Although - in this respect -       his negative freedom of association was not       constitutionally protected, [the applicant] had a       legitimate interest to appeal against the decision and to       vindicate his right by having the decision quashed. It has       appeared that [the applicant] is inexperienced in legal       matters. Certain costs for legal representation have       therefore been necessary in order for him to obtain his       rights. To the extent that the applicant can be reimbursed       for these costs, they constitute the loss for which the       State must pay damages as a result of the County       Administrative Board's erroneous decision."         The District Court went on to examine the applicant's claim for compensation, amounting to 107,000 SEK plus interest. It noted that the pleadings in the administrative proceedings had largely related to other issues than the alleged violation by the County Administrative Board of the applicant's negative freedom of association. That being so, compensation should be limited to what could have been reasonably necessary to vindicate his right in the latter respect. On the basis of an evaluation of the available evidence, the District Court ordered the State to pay to the applicant a total of 9,000 SEK plus interest.         On 1 April 1992 the applicant lodged appeals with the Svea Court of Appeal in respect of both the decision on disqualification and the judgment on the merits. In the latter respect, he reiterated his request for compensation in the amount of 107,000 SEK. On the same occasion the applicant requested that all judges of the Court of Appeal who - in their capacity as judges - were subject to disciplinary control by the Chancellor of Justice be disqualified from examining his appeals.         No appeal was lodged on behalf of the State. As regards the merits of the case, the only issue to come under the Court of Appeal's examination was therefore the size of the compensation to be paid by the State.         In a separate decision of 10 June 1992 the appellate court rejected the applicant's appeal against the District Court's decision not to disqualify judges L.C., T.J. and B.H.       By letter of 14 August 1992, the Court of Appeal notified the parties that the case might be decided without an oral hearing and invited them to submit their final observations before 31 August 1992. The applicant submitted such observations, insisting that a hearing be held in respect of both the issue of disqualification and the merits of the case. He requested that four witnesses be summoned to give evidence on the issue of disqualification.         The Court of Appeal determined the case on the basis of the case-file. In its judgment, delivered on 19 March 1993, the Court stated at the outset that the applicant's request for the disqualification of all judges of the Court of Appeal was not sufficiently precise to merit consideration. Furthermore, having found that it would be manifestly unnecessary to hold a hearing on the merits of the case, the Court of Appeal upheld the District Court's judgment. In so doing, it subscribed entirely to the reasons given by the lower court.         On 12 April 1993 the applicant asked for leave to appeal to the Supreme Court. He referred to both the merits of his case and the issue of disqualification of judges. In addition, he requested that every Supreme Court Justice who - in his capacity as judge - was subject to disciplinary control by the Chancellor of Justice be disqualified from examining the request for leave to appeal.         Leave to appeal was refused by the Supreme Court on 1 December 1993. According to a memorandum drafted by the Judge Referee of that Court, both the merits of the case and the issue of disqualification were considered on that occasion. When stating the scope of the applicant's request for leave to appeal, the decision only referred to the claim for damages. However, it also mentioned the Court of Appeal's judgment as the appealed decision.   b.     Relevant domestic law and practice   Relevant constitutional provisions         Chapter 1, Sections 1 and 9 of the 1974 Instrument of Government (Regeringsformen), which forms part of the Swedish Constitution, provide that all public power must be exercised subject to the law and that courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial.         Chapter 11, Section 2 of the Instrument of Government reads as follows:   (Translation)         "No public authority, nor Parliament, may determine how a       court shall adjudicate an individual case or how a court,       in other respects, shall apply the law in an individual       case."         Chapter 11, Section 5 of the Instrument of Government regulates the security of tenure enjoyed by permanent judges. Under this provision such a judge may be removed from his or her post only if the judge in question has -   by means of a punishable offence or gross or repeated neglect of official duties - proved to be manifestly unfit to hold the post; or has reached the applicable age of retirement; or is otherwise under a legal obligation to retire on a pension.   Pursuant to Chapter 11, Section 6 the Chancellor of Justice is an independent public authority subordinate to the Government. Chapter 11, Section 7 provides that no public authority, nor Parliament, nor a decision- making body of a municipality may determine how a public authority should decide in an individual case concerning the exercise of authority against a private subject or concerning the application of the law. When performing supervisory functions (see below), the Chancellor of Justice enjoys the latter guarantee against outside pressures.   The Chancellor of Justice   Introduction         The Chancellor of Justice is appointed by the Government. As a rule, holders of this office are recruited among lawyers who fulfil the criteria for being appointed as justices in the supreme courts.         The Office of the Chancellor of Justice was set up in 1713 to undertake an overall supervision of the compliance with acts of legislation and the manner in which the various public offices discharged their responsibilities. The Chancellor's present-day duties fall into four main categories. Thus, he or she         i.    advises the Government on legal matters;       ii.   safeguards the rights of the State;       iii. supervises - in certain respects - public administrative            authorities and the courts; and       iv.   performs other duties, e.g. that of being public prosecutor            in cases concerning offences against the freedom of the            press.         Provisions on the Chancellor's duties in these respects are found in the 1975 Act on the Supervision exercised by the Chancellor of Justice (Lag om justitiekanslerns tillsyn, 1975:1339 - "the 1975 Act") and the 1975 Ordinance on the Duties of the Chancellor of Justice (Förordning med instruktion för justitiekanslern, 1975:1345 - "the 1975 Ordinance"). At the material time, relevant provisions were also found in the 1972 Claim Settlements Order (Kungörelsen om statsmyndigheternas skadereglering i vissa fall, 1972:416).         The following account centres on the duties under ii. and iii. above.   Safeguarding the rights of the State         The duty of safeguarding the rights of the State implies that the Chancellor of Justice represents the State in civil proceedings involving the rights of the State and in connection with out-of-court settlements involving such rights, should there be no other authority that is competent to do so (Section 2 of the 1975 Ordinance). The bulk of the Chancellor's work in this respect refers to claims for damages directed against the State.         A person wishing to claim damages from the State - contending, e.g., that there has been an error or negligence in connection with the exercise of public authority - may opt for one of two alternative courses of action.     At the material time, the 1972 Claim Settlements Order provided for a system of voluntary out-of-court settlements of claims for damages directed against the State. Thus, under Section 2 of the 1972 Order, a person claiming damages from the State could lodge an application to this effect with the Chancellor of Justice, who - after investigating the matter - would decide whether or not to accept the claim. Such a decision of the Chancellor was not open to an appeal. However, if dissatisfied with the decision, there was nothing to prevent the claimant from pursuing his claim by instituting civil proceedings against the State before a competent District Court. If such proceedings were indeed instituted, the State would be represented by the Chancellor of Justice. The 1972 Order was repealed and replaced by a new ordinance on 1 January 1996. For all practical purposes, the new ordinance retains intact the material rules of the 1972 Order.         In the alternative, a person wishing to claim damages from the State may immediately institute civil proceedings against the State before a District Court, without relying on the system of voluntary out-of-court settlements.         Official statistics indicate that, during 1994, the Chancellor of Justice was served with summonses in 25 cases concerning damages, 18 of which were brought directly before a court, without having first been considered by the Chancellor under the 1972 Order.   Supervising public administrative authorities and the courts         Under Section 1 of the 1975 Act, the Chancellor of Justice shall supervise those engaged in public activities to ensure that they comply with laws and other statutes and that they fulfil their official duties in all other respects.         The scope of the Chancellor's supervision is laid down in Sections 2 and 3 of the 1975 Act and in Section 3 of the 1975 Ordinance. According to these provisions, public authorities and their employees, those engaged by such authorities to carry out official assignments and others who are affiliated to such authorities come under the supervision of the Chancellor of Justice. The same applies to municipal authorities and other authorities which are not subordinate to the Government, employees and holders of other posts in such authorities and others who - without being affiliated to a public authority - hold a post or have an assignment which involves the exercise of authority. As regards the latter category, it is expressly stated that inter alia Members of Parliament and local councillors must be excluded from the Chancellor's supervision. Likewise, the supervision must not be extended to the Government or its ministers, nor to Parliamentary agencies, employees of such agencies or those engaged by Parliament for official assignments.         Under Section 5 of the 1975 Act, the Chancellor of Justice may   - as prosecutor extraordinary (särskild åklagare) - institute criminal proceedings against an official who has committed a punishable offence by neglecting his or her official duties. However, if an official has neglected such duties and if the act of negligence can be punished in disciplinary proceedings, the Chancellor may report the matter to anyone vested with the authority to decide on a disciplinary sanction. This follows from Section 6 of the 1975 Act. Section 6 also provides that, should the Chancellor find it imperative that the official be dismissed or suspended on account of a punishable offence or a grave or repeated neglect of duties, he may report the matter to the person who is authorised to decide on such a measure.     Traditionally, one of the most important supervisory duties of the Chancellor of Justice consists in safeguarding that the legal rights of the individual are upheld and that the rule of law prevails. The supervision exercised by the Chancellor on behalf of the Government bears much resemblance to the supervisory duties performed by the Parliamentary Ombudsmen on behalf of Parliament. The courts have always come under the supervision of both the Chancellor and the Ombudsmen.         The supervisory duties of the Chancellor of Justice are performed by looking into complaints lodged by individuals or public authorities, by carrying out inspections or by conducting inquiries into matters otherwise brought to the Chancellor's attention, e.g. by reports in the media. Most supervisory cases are initiated by members of the general public. Inspections are rare. Official statistics indicate that, during 1994, the Chancellor of Justice gave decisions in 745 supervisory cases, 59 of which resulted in some form of criticism being expressed. In 399 cases there were not sufficient reasons to express criticism. In the remaining cases the Chancellor decided not to pursue the matter or to refer it to another authority.   Relevant provisions of the Code of Judicial Procedure         The statutory rules on disqualification of judges are found in Chapter 4, Section 13 of the Code of Judicial Procedure, which enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he or she is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he or she is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Section - subsection 10 (previously 9), which was the one relied upon by the applicant in the domestic proceedings - a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his or her impartiality in the case.         Swedish case-law on the interpretation of subsection 10 indicates that, under that provision, a judge may be disqualified on the following grounds: for instance, where the judge because of employment is financially dependent on one of the parties; or where the judge is a party in a similar case in another court, or where there is apparent animosity between the judge and one of the parties; or where the judge and one of the parties are close friends; or where the judge has reported a crime and later handles the case in court; or where a civil case has been referred back to a lower court by an appellate court and the same judge of the lower court determines the case on both occasions.   Proposals for law reform in respect of the Chancellor of Justice         The duties of the Chancellor of Justice have been subject to review both in the 1970's and in the 1990's.         In 1974 a government committee was set up to review the duties of the Chancellor of Justice. Its report was published in 1978 ("The Office of the Chancellor of Justice - A Review of the Duties of the Chancellor of Justice and the Handling by the State of Civil Disputes", Swedish Government Official Reports, SOU 1978:59). The report expressed the opinion that the Chancellor's primary duty should be supervision. It also suggested that another of the principal duties - that of safeguarding the rights of the State - should be transferred to a new authority to be known as the "State Advocate" (Statsadvokaten). The Government, however, did not propose any changes in this respect.         Following a critical debate both within Parliament and outside it, the Government, in 1991, set up a committee to re-examine the duties of the Chancellor of Justice. In its terms of reference (direktiv), the Government stated that this review should particularly focus on how to avoid the risk that conflicts of interest arise between the Chancellor's various duties. In this respect, the Government requested the committee to consider inter alia what conflicts of interest could arise when the Chancellor of Justice represents the State before a court at the same time as he is required, in his supervisory capacity, to examine the manner in which the same court deals with the case.         The report of the 1991 committee was published in 1993 ("The Chancellor of Justice. A Review of the Duties of the Chancellor of Justice", Swedish Government Official Reports, SOU 1993:37). The committee suggested that the Chancellor should retain the duty of safeguarding the rights of the State. With regard to the question of the Chancellor's supervision of the courts, the committee expressed the following opinion on page 59 et seq.:   (Translation)         "[T]he committee [has] had regard to inter alia the       provisions of the Instrument of Government concerning the       independence of the courts and the security of tenure of       judges. These provisions provide inter alia that no public       authority may determine how a court shall adjudicate an       individual case or how a court, in other respects, shall       apply the law in an individual case. Moreover, they provide       that a permanent judge must not be dismissed unless there       are certain objectively justified reasons for doing so. ...         ...         The constitutional provisions now accounted for imply that,       when supervising the courts, the Chancellor of Justice       should not express any opinion on how the court should       adjudicate a particular case or in any other way examine       the manner in which the court has applied the law. What may       be examined and assessed by the Chancellor is merely       whether the court or an individual official has made any       procedural error in a case. Of course, borderline cases may       arise.         Another question pertaining to the independence of the       judiciary concerns the fact that the courts, which come       under the supervision of the Chancellor of Justice,       sometimes have to determine cases in which the Chancellor       appears as the representative of the State. The inquiries       carried out by the committee do not indicate that this is       actually a problem in practice. It is incumbent on both the       courts and the Chancellor of Justice to abide by the       constitutional provisions on the independence and autonomy       enjoyed by the courts in their application of the law. ...         ...   Consequently, the committee concludes that it            cannot find that the Chancellor's supervision of            the courts - as it is now regulated and as these            rules are applied in practice - poses a threat            to the independence of the courts."         However, to underline the importance of the independence of the judiciary also in relation to the Chancellor of Justice, the committee recommended that the principles already governing the Chancellor's supervision of the courts be manifested in a new provision of the 1975 Act on the Supervision exercised by the Chancellor of Justice. The proposed provision read as follows:   (Translation)         "When exercising supervision in respect of the courts, the       Chancellor of Justice shall take into account in particular       the provisions contained in Chapter 11, Section 2 of the       Instrument of Government."         However, the Government have not introduced any legislation to this effect.     COMPLAINTS   1.     The applicant alleges that the manner in which the courts dealt with the issue of disqualification of judges and the issue of compensation, respectively, amounts to a denial of justice in breach of Article 6 para. 1 of the Convention. Also under that Article, the applicant submits that - in view of the fact that the respondent State was represented before the courts by the Chancellor of Justice - he was not afforded a fair and public hearing by an independent and impartial tribunal in respect of his claim for compensation. This, so he states, follows from the Chancellor's supervisory functions vis-à-vis Swedish courts and the judiciary. Moreover, the applicant complains of the fact that he was refused an oral hearing before the Court of Appeal, in respect of both the action for damages and the disqualification issue.   2.     The applicant also alleges a breach of Article 13 of the Convention, in that the Supreme Court ignored his request for leave to appeal in so far as it pertained to the question of disqualification of judges.   3.     Invoking Article 14 of the Convention in conjunction with Article 6 para. 1 and Article 13 of the Convention, the applicant complains of the fact that he, as a private plaintiff, had to meet as his adversary in the proceedings before the courts the Chancellor of Justice, who is the Supreme Ombudsman of the State and in respect of whom all courts are in favour. For this reason, so he claims, he has been discriminated against as compared with plaintiffs who meet a private adversary in an action for damages.   4.     Finally, the applicant claims that, as a result of the insufficient compensation for legal expenses granted by the courts, there has been a prolongation of the initial violation of Article 11 of the Convention - manifested in the County Administrative Board's decision of 27 March 1981 - and also a breach of Article 1 of Protocol No. 1 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 May 1991 and registered on 11 September 1991.         On 1 December 1993 the Commission (First Chamber) decided to adjourn the examination of the application pending the outcome of then ongoing proceedings in Sweden.         On 17 May 1995 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government were requested to deal with the questions whether the applicant enjoyed a fair and public hearing by an independent and impartial tribunal as required by Article 6 para. 1 of the Convention and, in particular, whether the courts could be regarded as independent and impartial in the light of the different functions vested in the Chancellor of Justice and whether the absence of a public hearing before the Svea Court of Appeal was compatible with that Article.         The Government's written observations were submitted on 5 October 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 22 February 1996, also after an extension of the time-limit. The parties thereafter submitted further observations, the Government on 15 March 1996 and the applicant on 15 April and 14 June 1996.         On 21 May 1996 the Commission granted the applicant legal aid.     THE LAW   1.     The applicant alleges that the manner in which the courts dealt with the issue of disqualification of judges and the issue of compensation, respectively, amounts to a denial of justice in breach of Article 6 para. 1 (Art. 6-1) of the Convention. Also under that Article, the applicant submits that - in view of the fact that the respondent State was represented before the courts by the Chancellor of Justice - he was not afforded a fair and public hearing by an independent and impartial   tribunal in respect of his claim for compensation. This, so he states, follows from the Chancellor's supervisory duties vis-à-vis Swedish courts and the judiciary. Moreover, the applicant complains of the fact that he was refused an oral hearing before the Court of Appeal, in respect of both the action for damages and the disqualification issue.       Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, the following:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal ..."         The respondent Government submit that the applicant's complaint concerning the independence and impartiality of the courts is manifestly ill-founded. They maintain that the Chancellor's dual function of safeguarding the rights of the state and supervising inter alia the courts constitutes a merely theoretical problem with no significant implications in practice. In so holding, they refer to Chapter 11, Section 2 of the Instrument of Government, according to which no public authority, nor Parliament, may determine how a court should adjudicate or apply the law in a particular case. Thus, when supervising the courts, the Chancellor must not express any view on how a court should determine a case or apply the law. Likewise, the Chancellor of Justice cannot exert pressure on an individual judge or a court with a view to influencing the outcome of a case. Nor can he or she institute disciplinary proceedings against a judge as a reaction to how the judge has applied the law in a particular case. This would be a violation also of the basic principles on the rule of law, laid down in Chapter 1, Sections 1 and 9 of the Instrument of Government. Furthermore, the Chancellor's supervision of the courts is - in practice - entirely focused on the manner in which cases are handled from a procedural and practical point of view, e.g. that cases are determined within a reasonable time and that the rights of the individual are duly observed. For these reasons, the Government claim that the independence and impartiality of the courts seized with the applicant's case were not open to doubt and that the applicant's fears in this respect were not objectively justified and legitimate. Finally, they point out that the functions of the Chancellor of Justice have been thoroughly examined in recent years and that no reform in this respect has been deemed to be necessary.         As regards the absence of a public hearing before the Court of Appeal in respect of both the action for damages and the issue of disqualification of the District Court judges, the Government submit the following. They first call into question whether the proceedings brought about by the applicant's request that judges be disqualified fall within the scope of Article 6 (Art. 6) of the Convention. In the alternative, they argue that the present complaint is in any event manifestly ill-founded in respect of both the action for damages and the issue of disqualification. This is so since - in both cases - there were special features to justify the appellate court's decision not to hold a public hearing. The questions raised by the applicant's appeals were either purely legal, i.e. whether or not to disqualify judges, or questions that could be resolved following an equitable assessment, i.e. the size of the compensation to be paid by the State. No facts needed clarification through the hearing of the applicant. Thus, neither appeal raised any questions of fact or law which could not be adequately resolved on the basis of the case-file. In these circumstances the Government maintain that the applicant was afforded a fair hearing within the meaning of Article 6 (Art. 6) of the Convention.         The applicant disputes the Government's contention that, when supervising the courts, the Chancellor of Justice must not express any view on how an individual case should be determined. On the contrary, so he argues, it is incumbent on the Chancellor to express such views when representing the State before a court. He contends that the arguments put forward by the Chancellor when pleading a case on behalf of the State are in fact highly authoritative views on how the court should determine the case.         The Commission finds that the proceedings brought about by the applicant's claim for compensation related to his "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which is therefore applicable to the present complaint.         As regards the question whether the courts could be considered "independent and impartial", the Commission first recalls the case-law of the Convention organs, which - for present purposes - can be summarised as follows.       In determining whether a body can be considered to be an "independent" tribunal, i.e. in particular independent of the executive and of the parties to the case, regard must be had to the manner of appointment of its members and the duration of their term of office, the existence of regulations governing their removal or guarantees for their irremovability, laws prohibiting their being given instructions by the executive in their adjudicatory role, the existence of legal guarantees against outside pressures, the question whether the body presents an appearance of independence and the attendance of members of the judiciary in the proceedings (see, e.g., Eur. Court HR, Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, pp. 39-41, paras. 78-81).         The existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be determined on the basis of a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this respect, even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and the parties to the proceedings. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held objectively justified (see, e.g., Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46- 48).         In the instant case, the applicant's fears were based on the fact that the respondent State was represented before the courts by the Chancellor of Justice, who had previously - under the 1972 Claim Settlements Order - rejected the applicant's claim for compensation and who performs supervisory functions in respect of the courts and the judiciary.         In this case, the Commission finds it difficult to dissociate the question of impartiality from that of independence.         The Commission recalls that - under Chapter 11, Section 2 of the Instrument of Government (see above) - neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. In addition, all public power must be exercised subject to the law and courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, Sections 1 and 9). Moreover, Chapter 11, Section 5 of the Instrument of Government provides that permanent judges enjoy irremovability. In the Commission's opinion, these are extensive guarantees designed to shield Swedish judges from inter alia undue pressures.         It is true that the Chancellor of Justice performs supervisory functions in respect of inter alia the courts and the judiciary. The Commission notes, however, that when supervising the courts the Chancellor - being a public authority within the meaning of Chapter 11, Section 7 of the Instrument of Government - enjoys guarantees against undue influence from other authorities, e.g. the Government. Moreover, when performing the supervisory functions, the Chancellor is bound to comply with the above-mentioned constitutional provisions. From these provisions it follows that the Chancellor must not interfere in the adjudicatory role of the courts and that, contrary to what the applicant seems to suggest, judges need not fear to be prosecuted by the Chancellor on account of having determined a case to the detriment of the State. Nor do they need to fear for their position. In fact, the outcome of the applicant's action for damages - whereby the courts found against the Chancellor and ordered the State to pay damages, albeit on a smaller scale than requested by the applicant - rather illustrates that this is the case. Finally, although of no independent relevance, it appears that in practice the Chancellor's supervision is entirely devoted to the procedural aspects of the handling of a case, including, for instance, that cases are determined within a reasonable time.         In these circumstances, the Commission finds that the mere fact that the Chancellor of Justice performs the dual function of safeguarding the rights of the State and supervising inter alia the courts cannot be held as, in itself, justifying fears as to the independence and impartiality of the courts. No other ground for such fears has been established. Thus, the independence and impartiality of the tribunals concerned were not capable of appearing to be open to doubt and the applicant's fears in this respect