European Court of Human Rights

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3458/06
by Erki BRANDT
against Sweden

The European Court of Human Rights (Third Section), sitting on 16 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 13 January 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erki Brandt, is a Swedish national who was born in 1945 and lives in Borås.

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background of the case

In May 1992 the applicant was informed by the judge responsible for bankruptcies at the District Court (tingsrätten) in Borås that he would no longer be given any assignments as receiver (konkursförvaltare) in bankruptcy cases. Apparently, this had been agreed during a meeting on 30 January 1992 between the two judges responsible for bankruptcy cases at the District Court in Borås and the District Court in Sjuhäradsbygden and the chief enforcement officer at the Enforcement Service of the County of Älvsborg (in its role as supervisory authority for bankruptcies). However, no formal decision had been taken which had been communicated to the applicant. Still, the result of this meeting had been that the applicant’s name had been removed from a list of receivers kept at both district courts, which was used to appoint receivers in bankruptcy cases before the courts, and that he no longer received any such assignments from them.

According to the applicant, he had worked as a receiver since 1984 and this had been the main source of income for his law firm. When he had found out about the “decision”, he had tried to establish himself in other parts of Sweden but to no avail. Apparently this was, at least in part, due to information about him provided by the Enforcement Service to those who verified his credentials.

The applicant requested the Enforcement Service to reconsider its stance and to clarify the matter. In a reply, dated 20 October 1992, the applicant was informed that since his work was considered to be overly detailed and that he seemed to over-elaborate his assignments, he was not as suitable to be nominated receiver as other available lawyers. Thus the Enforcement Service found no reason to reconsider its standpoint on the matter.

The applicant also contacted the two district courts and asked them to reconsider their position of 30 January 1992. However, after having held a meeting where the applicant was present to hear the criticism against him and reply to it the courts, in December 1992, informed him that they did not intend to change their standpoint. In this respect, they added that the only formal purpose of the list of receivers was that the courts did not in each case have to consult the supervisory authority (i.e. the Enforcement Service) before assigning a receiver from the list. A lawyer who was not on the list could be appointed receiver in a specific case, but only after consultation with the supervisory authority.

Having failed to resolve the matter, the applicant complained to the Chancellor of Justice (Justitiekanslern) about the agreement of 30 January 1992, criticising the district courts’ and the Enforcement Service’s handling of the matter and expressing his hope that a decision from the Chancellor of Justice could lead to him being put back on the list of receivers.

The Chancellor of Justice communicated the complaint to the district courts and the Enforcement Service which submitted their comments in reply. The Enforcement Service submitted, inter alia, that the applicant had worked almost exclusively with smaller bankruptcies but that he had over-elaborated these small bankruptcies, leading to very high costs in relation to the amount of work which could be considered reasonable. This, in the Enforcement Service’s view, showed that the applicant lacked judgment.

On 8 October 1993 the Chancellor of Justice rendered his decision. He first noted that he lacked both competence and capacity to evaluate whether the applicant was suitable to be a receiver. He then observed that meetings such as the one held between the district courts and the Enforcement Service were a natural part of their co-operation to maintain and improve the processing of bankruptcies. Moreover, a list of suitable receivers probably existed in most lower courts dealing with bankruptcies as a tool to facilitate their work but had no specific legal basis or status and the courts were not bound to choose a person from the list. Thus, the Chancellor of Justice considered that the agreement of 30 January 1992 was a nullity as it was not possible to make a legally valid decision that a person should not have any assignments as a receiver at a certain district court. A decision to assign a person as a receiver in a bankruptcy was made in each case following the procedure set out in the Bankruptcy Act. Consequently, a decision to add or remove a person from a list did not require a special form or procedure. However, the Chancellor of Justice found it surprising that the representatives of the district courts and the Enforcement Service had agreed that the applicant should not be given any further assignments as a receiver, since this should be decided on a case by case basis. Furthermore, he considered that the applicant should have been heard before a “decision” was made, or at least that there should have been some form of direct contact between the applicant and the supervisory authority on his suitability as a receiver before any standpoint was taken. The applicant should also have been informed of the agreement immediately. This was in particular so having regard to the consequences that such an agreement entailed for his business. Still, the Chancellor of Justice noted that the applicant had eventually been called to a meeting in November 1992 to discuss the criticism against him. He also stressed that the applicant naturally did not have any legally founded claim actually to receive appointments as a receiver in bankruptcy cases. The Chancellor of Justice concluded that he would take no further action in the matter but would close the case with the observations and remarks stated in his decision.

2. The proceedings for compensation

Since the applicant apparently was not given any new assignments as a receiver, he requested the Chancellor of Justice to grant him compensation from the State in the amount of SEK 4,750,000. In his view the State, through the actions of two district courts and the Enforcement Service, was responsible for his loss of income.

On 30 May 1994 the Chancellor of Justice rejected the request for compensation. Although he did not question that the agreement of 30 January 1992 had had substantial economic consequences for the applicant, he observed that the criticism which he had expressed in his decision of 8 October 1993 did not concern a decision in a particular bankruptcy case. In fact, the Chancellor of Justice noted that he had expressly stated that the applicant did not have any legally founded claim actually to be given appointments as a receiver in bankruptcy cases. Moreover, he considered that the handling of the matter by the two district courts and the Enforcement Service had not been made in the exercise of public authority (myndighetsutövning). Thus, the State was not responsible for the applicant’s economic losses.

On 9 December 1994 the applicant brought an action for damages against the Swedish State before the Court of Appeal (hovrätten) of Western Sweden. He claimed, inter alia, damages of SEK 5,900,000. He alleged that the State, through the two district courts and the Enforcement Service, had caused him substantial loss of income through their “decision” not to grant him any further assignments as a receiver, thereby ruining his business. He further argued that this “decision” had been made in the exercise of public authority and that there had never been any formal complaints against him as a receiver in the bankruptcy cases he had handled.

The case was communicated to the Chancellor of Justice, who represents the Swedish State in such matters. In his reply, dated 31 January 1995, the Chancellor of Justice disputed the applicant’s claim, referring to the reasoning in his decision of 30 May 1994 and stressing that the result of the meeting on 30 January 1992 could not be considered as the exercise of public authority. The Chancellor of Justice further requested the Court of Appeal to establish first through an intermediate judgment (mellandom) whether liability for damages did at all exist for the State in the present case. The reason for this request was that the Chancellor of Justice considered that detailed examination would be required to decide the amount of damages and that it was therefore more appropriate first to focus on whether liability for damages existed for the State.

In a decision of 26 July 1995 the Court of Appeal acceded to the Chancellor of Justice’s request for an intermediate judgment on the question of whether the State was liable for damages towards the applicant because of the two district courts’ and the Enforcement Service’s representatives’ position not to grant the applicant further assignments as a receiver.

On 1 July 1998, after having received further submissions from the parties and having held an oral hearing, the Court of Appeal found that the State was not liable for damages towards the applicant. Although the court considered that the standpoint of 30 January 1992 agreed upon by the representatives of the two district courts and the Enforcement Service had been made in the exercise of public authority, it found that it had not been shown that such fault or neglect had been committed which could entail liability of the State for damages. This was in particular so, as in the court’s view, it appeared from the testimonies that the applicant had not been sufficiently qualified to be appointed receiver and that this opinion by the district courts and the Enforcement Service had not been frivolous but objectively well-founded. The court also noted that although the applicant could not count on being given any further appointments as a receiver, there was nothing to prevent him from continuing his law practice in other legal fields.

The applicant appealed against the intermediate judgment to the Supreme Court (Högsta domstolen), maintaining his claim that the State was liable for damages towards him on the basis of the “decision” of 30 January 1992.

The Chancellor of Justice disputed the appeal and the parties made several further submissions to the Supreme Court. On 11 July 2001 the Supreme Court upheld the Court of Appeal’s judgment in full and sent the case back to the lower court for final judgment.

The applicant requested that an oral hearing be held in the case before the Court of Appeal delivered its final judgment since he alleged that both the Court of Appeal and the Supreme Court had misunderstood the grounds for his claim for damages. The request was granted and an oral hearing was held on 12 December 2001. After the applicant had developed the grounds for his claim, the Court of Appeal in a separate decision dismissed certain new claims made by the applicant as it found that these claims had already been tried in the intermediate judgment.

On 20 December 2001 the Court of Appeal rejected the applicant’s claim for damages since the Supreme Court had finally decided that the State was not liable for damages towards him.

In January 2002 the applicant appealed against the judgment to the Supreme Court, stating that the Court of Appeal had misunderstood his claims and his reasons for these claims and that the case should therefore be sent back to the lower court for renewed consideration.

On 14 July 2005 the Supreme Court rejected the applicant’s appeal and upheld the lower court’s judgment.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been deprived of a fair and public hearing by an independent and impartial court in relation to the “decision” of 30 January 1992 no longer to appoint him as a receiver. Moreover, this “decision” had not been pronounced publicly. The applicant further claimed that the length of the proceedings for damages had been excessive since they had lasted for more than ten years. Lastly, he alleged that his rights under Article 1 of Protocol No. 1 to the Convention had been violated in that he had lost his law firm and any chance of income because of the “decision” of 30 January 1992.

THE LAW

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ....”

a). Under this heading, the applicant complained that the national proceedings relating to his claim for damages had been of excessive length, as they lasted more than ten years.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b). Under the same provision, the applicant also alleged that he had been deprived of a fair hearing by an independent court, and a publicly pronounced judgment, in relation to the “decision” of 30 January 1992 to take him off the list of receivers and no longer to appoint him as a receiver in bankruptcy cases.

The Court notes that the applicant complains about the circumstances relating to the agreement of 30 January 1992 by the representatives for the two district courts and the Enforcement Service and the manner in which they reached this agreement. It further observes that the applicant lodged his application to the Court on 13 January 2006. Thus, almost 14 years passed between the event complained of and the introduction of these complaints to the Court. It follows that this part of the application is inadmissible for failure to observe the six months’ time-limit in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

The Court observes that the Court of Appeal and the Supreme Court, in the proceedings relating to the applicant’s claim for damages, found that it had not been shown that such fault or neglect had been committed which could entail liability for damages for the State. Moreover, they considered that the district courts’ and the Enforcement Service’s standpoint had been objectively well-founded and that nothing prevented the applicant from continuing his law practice in other legal fields. In this respect, the Court also notes that the applicant was free to request to be appointed receiver in individual bankruptcy cases and that the relevant court would have to decide whether or not to grant such a request. In these circumstances, the Court finds that this complaint does not disclose any appearance of a violation of the applicant’s property rights under Article 1 of Protocol No. 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the compensation proceedings;

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President