EUROPEAN COMMISSION OF HUMAN RIGHTS. Application No /91. Anders Fredin. against. Sweden REPORT OF THE COMMISSION. (adopted on 9 February 1993)

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1 EUROPEAN COMMISSION OF HUMAN RIGHTS Application No /91 Anders Fredin against Sweden REPORT OF THE COMMISSION (adopted on 9 February 1993) TABLE OF CONTENTS Page I. INTRODUCTION (paras. 1-14) A. The application (paras. 2-4) B. The proceedings (paras. 5-9) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. Relevant domestic law (paras ) III. OPINION OF THE COMMISSION (paras ) A. Complaint declared admissible (para. 35) B. Point at issue (para. 36) C. Article 6 para. 1 of the Convention (para ) D. Conclusion (para. 46) DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED BY MR. B. MARXER APPENDIX I : HISTORY OF THE PROCEEDINGS APPENDIX II : DECISION ON THE ADMISSIBILITY I. INTRODUCTION

2 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, a Swedish citizen born in 1944, is an agricultural engineer residing at Grödinge, Sweden. He is represented before the Commission by Mr. Jan Axelsson, a lawyer practising in Stockholm. 3. The application is directed against Sweden. The Swedish Government are represented by their Agent, Mr. Carl Henrik Ehrenkrona of the Swedish Ministry for Foreign Affairs. 4. The application concerns the applicant's complaint that in judicial review proceedings before the Supreme Administrative Court (Regeringsrätten) he was not granted a fair and public hearing as required by Article 6 para. 1 of the European Convention on Human Rights. B. The proceedings 5. The application was introduced on 9 April 1991 and registered on 9 October On 6 January 1992 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application. 7. The Government's observations were received - after an extension of the time-limit - by letter dated 7 May 1992 and the applicant's observations in reply by letter dated 5 June On 12 October 1992 the Commission declared the application admissible. 9. 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 10. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present: MM. C. A. NØRGAARD, President J. A. FROWEIN S. TRECHSEL E. BUSUTTIL A. S. GÖZÜBÜYÜK A. WEITZEL J. C. SOYER H. G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY

3 MM. J.-C. GEUS M.P. PELLONPÄÄ B. MARXER G.B. REFFI 11. The text of this Report was adopted on 9 February 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention. 12. 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. 13. A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II. 14. 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 15. The applicant and his wife have previously lodged with the Commission Application no /86 regarding the withdrawal of a permit to exploit a gravel pit and the absence of a court remedy in this regard. The proceedings ended with the judgment of the European Court of Human Rights of 18 February 1991, in which the Court concluded that Article 6 para. 1 of the Convention had been violated but that there was no breach of Article 1 of Protocol No. 1 either taken alone or in conjunction with Article 14 of the Convention (Eur. Court H.R., Fredin judgment of 18 February 1991, Series A no. 192). 16. The applicant and his wife own several parcels of land in the municipality of Botkyrka. On the land there is a farm and a gravel pit. 17. On 11 December 1963 the applicant's parents had been granted a permit to extract gravel from the pit, subject to certain conditions. 18. On 4 September 1969 the applicant acquired a fifth of the property. On 31 July 1977 the applicant and his wife acquired the remainder of the property, which thenceforth belonged as to two-thirds to the applicant and as to one-third to his wife. 19. On 14 April 1983 the County Administrative Board (länsstyrelsen) of Stockholm County transferred the exploitation permit to the applicant and his wife, while indicating that it intended to re-examine the permit question in 1983 with a view to a possible termination of the activities. 20. On 25 August 1983 the County Administrative Board notified the applicant and his wife that it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by 1 June On 19 December 1984 the County Administrative Board ordered, inter alia, that:

4 (a) the exploitation of gravel should cease within three years, i.e. by the end of 1987, by which time the area should also be restored, (b) as from the day of the decision further extraction from certain parts of the pit be prohibited. 22. On 12 December 1985 the Government (Ministry of Agriculture) dismissed an appeal against the County Administrative Board's decision. However, the validity of the permit was extended to 1 June On 9 March 1987 the County Administrative Board adopted a restoration plan for the pit. 24. On 18 May 1987 the County Administrative Board rejected a new application made by the applicant for extraction of gravel. The decision was appealed to the Government which on 9 June 1988 dismissed the appeal. The Government ordered that the permit to extract gravel from the pit should be prolonged until 1 December 1988, at which date all activities should be terminated and the land be restored. 25. On 1 December 1988 extraction of gravel from the pit ceased. 26. The applicant applied for a special extraction permit in order to enable him to comply with the plan for the restoration of the ground. This request was rejected on 14 March 1989 by the County Administrative Board and his appeal against this decision was rejected on 21 June 1989 by the Government (Ministry of Environment and Energy). 27. The applicant then applied for judicial review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag om rättsprövning av vissa förvaltningsbeslut). He argued that the Government's decision violated several rules of law. He had needed a permit in order to be able to comply with the restoration plan, and the refusal of a permit had prevented him from restoring the ground. The decision was therefore in conflict with Chapter 1 Section 9 of the Instrument of Government (regeringsformen) and the principle of objectivity contained therein. The decision of the County Administrative Board was also in conflict with the Nature Protection Act (naturvårdslagen) and with the principle of proportionality. Moreover, as the County Administrative Board had failed to answer his question as to what action he should take, he was a victim of denial of justice. 28. In the proceedings before the Supreme Administrative Court (Regeringsrätten) he requested an oral hearing which was refused by the Court. This decision was taken by three votes to two. The two dissenting judges stated, inter alia, that the Act on Judicial Review of Certain Administrative Decisions had been enacted in order to ensure that Swedish law complied with the requirements of the European Convention on Human Rights and that account should therefore be taken of the case-law of the European Court of Human Rights in regard to the requirement of a public hearing in Article 6 of the Convention. The two judges referred in this respect to the cases of Ekbatani (judgment of 26 May 1988, Series A no. 134) and Håkansson and Sturesson (judgment of 21 February 1990, Series A no. 171). 29. On 13 December 1990 the Supreme Administrative Court, basing itself on the applicant's written submissions and on a written declaration by the County Administrative Court, found that the Government's decision was not unlawful and rejected the applicant's request for the annulment of that decision. B. Relevant domestic law

5 30. After the European Court of Human Rights had found, in several cases (Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, Pudas judgment of 27 October 1987, Series A no. 125-A, and Bodén judgment of 27 October 1987, Series A no. 125-B), that Sweden was in breach of its obligations under Article 6 para. 1 of the Convention as a result of the absence of a judicial remedy against certain administrative decisions, new legislation was enacted in Sweden in The new Act on Judicial Review of Certain Administrative Decisions provides for an appeal to the Supreme Administrative Court against administrative decisions involving exercise of public authority regarding a private individual or legal person in cases where no other judicial remedy is available. The exact scope of the Act is defined by reference to certain provisions in the Instrument of Government, and some enumerated categories of decisions are excluded from the application of the Act. 31. The examination by the Supreme Administrative Court under this new law is in principle limited to the question whether the challenged decision is in conflict with any legal rule ("strider mot någon rättsregel"). According to the travaux préparatoires the examination shall concentrate on the lawfulness of the challenged decision. However, the competence of the Supreme Administrative Court is not limited to an examination of how the law has been applied but may include a re-examination of the facts upon which the application of the law was based. The Supreme Administrative Court shall also examine whether fundamental legal principles such as objectivity, impartiality and equality before the law have been respected. Moreover, the Supreme Administrative Court shall examine whether there have been any procedural errors which may have affected the outcome of the case. Where the administrative authority had a choice between different options, the Supreme Administrative Court's examination shall be restricted to whether the decision taken was within the discretion afforded to the public authority concerned. 32. If the Supreme Administrative Court finds that a decision is in conflict with a legal rule, it shall quash the decision and, where necessary, refer the case back to the administrative authority which took the decision. 33. The 1988 Act was promulgated as a law of temporary validity. It was to be in force until the end of 1991, but its validity has subsequently been extended until the end of The 1988 Act does not contain any specific provisions about the procedure of the Supreme Administrative Court when dealing with requests for review under the provisions of the Act. Consequently, the procedure is governed by the general rules applicable to the procedure before the Supreme Administrative Court. These rules are to be found in the 1971 Administrative Judicial Procedure Act (förvaltningsprocesslagen). It follows from these rules that the procedure before the Supreme Administrative Court is in principle a written procedure. However, the Court may decide to hold an oral hearing on a specific matter where this appears to be beneficial to the examination of the case or where it is likely to expedite the proceedings. III. OPINION OF THE COMMISSION A. Complaint declared admissible 35. The Commission has declared admissible the applicant's complaint that he was not afforded a fair and public hearing before the Supreme Administrative Court. B. Point at issue

6 36. The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. C. Article 6 para. 1 (Art. 6-1) of the Convention 37. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows: "In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing... by an independent and impartial tribunal..." 38. The applicant considers that this provision has been violated in his case, since he was refused an oral hearing in the proceedings before the Supreme Administrative Court. 39. The Government recognise that there are arguments in favour of the opinion that Article 6 (Art. 6) has been breached but consider that there are also arguments speaking against such a conclusion. They point out that the Supreme Administrative Court's examination was limited in the present case to an examination primarily aimed at establishing whether the challenged decision was contrary to any legal provision and that it did not, as in the Håkansson and Sturesson case (cited above), cover all aspects of the case. The Supreme Administrative Court acted as a court of cassation. It could only quash the decision but not replace it by a new decision. It could therefore be argued that the issue before the Supreme Administrative Court was not such as to require an oral hearing. The case did not raise any questions of fact or law which could not be adequately resolved on the basis of the casefile. 40. However, the Government add that it could be argued that the Swedish rules on oral hearings in court proceedings and the way these rules are applied in practice are not sufficient to meet Sweden's obligations under Article 6 (Art. 6) of the Convention. They would welcome any clarification of how Article 6 (Art. 6) should be construed in this regard. By way of conclusion, the Government state that the Supreme Administrative Court's decision not to hold an oral hearing in the present case was clearly lawful under Swedish law, but the Government leave open the question whether the Administrative Judicial Procedure Act, which does not unconditionally afford to a party the right to have an oral hearing at his request, is in full conformity with Article 6 (Art. 6) of the Convention. 41. The Commission notes that the proceedings before the Supreme Administrative Court concerned the applicant's request for a special permit to extract gravel from the pit situated on land owned by him and his wife. It follows that the determination of the applicant's civil rights was at issue in these proceedings and that Article 6 para. 1 (Art. 6-1) of the Convention was applicable. 42. Article 6 para. 1 (Art. 6-1) of the Convention affords to a party in court proceedings the right to a fair and public hearing. This means that he must as a rule be entitled to present his arguments orally before a court at a hearing which shall be held in public. This is not to say that there must be an oral hearing at all stages of court proceedings. In particular, such a hearing may not be required under Article 6 (Art. 6) in appeal or cassation proceedings where the examination is limited to legal issues (Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72, Sutter judgment of 22 February 1984, Series A no. 74, Jan-Åke Andersson judgment of 29 October 1991, Series A no. 212-B, and Fejde judgment of 29 October 1991, Series A no. 212-C). Nor is an oral hearing necessary when the parties, expressly or tacitly, have waived their right to such

7 a hearing (cf. Håkansson and Sturesson judgment, op. cit., p. 22, para. 66). 43. In the present case, the applicant's request was first examined by administrative authorities, and the Supreme Administrative Court was the first and only tribunal which dealt with the applicant's case. 44. In these circumstances, the Commission considers that the applicant was entitled to an oral hearing before the Supreme Administrative Court. 45. Consequently, the Supreme Administrative Court's refusal to grant the applicant an oral hearing constituted a violation of Article 6 para. 1 (Art. 6-1) of the Convention. D. Conclusion 46. The Commission concludes, by 16 votes to 2, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Secretary to the Commission (H.C. KRÜGER) President of the Commission (C.A. NØRGAARD) DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED BY MR. B. MARXER In my opinion the aim of the wording "everyone is entitled to a fair and public hearing" in Article 6 (1) is to guarantee that any litigant must have the possibility to bring his arguments before the tribunal. One should not interpret the word "hearing" as meaning that this must necessarily be done orally. It is the possibility of raising the arguments which is at stake. The essence of the requirement of Article 6 that a hearing must be public is to guarantee that court judgments can be supervised by public opinion. Could a court rule in complete secrecy, then a risk for arbitrariness or insufficient care would rise. The simple fact that courts can be criticised by legal opinion offers an element of control, and without any control, no institution can function well. It is less relevant whether the hearing is conducted in writing or orally. Indeed, the practice of the Contracting States show a great variety of solutions. Broadly speaking common-law inspired countries give preference to oral arguments, whilst on the continent written proceedings are often preferred. Supervision can be exerted over written documents as well as over oral hearings. In ordinary criminal cases oral hearings may be essential to assess the facts and in order to offer the judge some insight into the personality of the accused. In ordinary civil cases an oral hearing may also be essential to establish the facts. The legal arguments, on the other hand, can be better brought in writing than orally. Therefore, when a question is purely legal there is no real need for an oral hearing. The hearing can equally well be in writing. One of the major problems in Europe is the length of proceedings in many countries. This problem is a consequence of the overburdening of the judiciary. It is of the greatest importance to help the courts to give speedy decisions. If such decisions can be given equally well on the basis of written arguments a requirement to put the legal arguments also orally will only delay the judgments. In my opinion, therefore, it should be considered in each individual case whether an oral argument is necessary. If there are no

8 facts on which the court may want to ask questions of the parties, if the factual situation is clear, if the legal arguments can be brought out in writing and if these legal arguments are sufficiently accessible to the public to guarantee that the written hearing is a public hearing, then the sacrifice in time, or the extra burden on the courts required by an oral hearing would not be justified. In stages in the proceedings subsequent to the trial at first instance the European Court of Human Rights accepted this in a number of cases (see, e.g. Jan-Åke Andersson judgment of 29 October 1991, Series A 212 B, p. 45, para. 27). Usually, the issues to be decided when courts review, as in the present case, the lawfulness of administrative action are also of such a nature that an oral hearing may be dispensed with - even at first instance. The legal arguments which predominate in such proceedings can often be better brought in writing than orally. In Sweden the written arguments brought by the parties are public. In the present case, therefore, there is no lack of public control. Neither have I found any argument why the absence of oral pleadings has caused any damage to the applicant. Looking at the court proceedings as a whole I do not find a violation of Article 6. APPENDIX I HISTORY OF PROCEEDINGS Date Item 9 April 1991 Introduction of the application 9 October 1991 Registration of the application Examination of Admissibility 6 January 1992 Commission's deliberations and decision to invite the Government to submit observations on the admissibility and merits of the application 7 May 1992 Government's observations 5 June 1992 Applicant's observations in reply 12 October 1992 Commission's decision to declare the application admissible 23 October 1992 Communication to the parties of the text of the decision on admissibility Examination of the merits 9 February 1993 Commission's deliberations on the merits, final vote and adoption of the Report

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