European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/1216.html
Cite as: [2010] ECHR 1216

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THIRD SECTION

DECISION

Application no. 41102/07
by Thomas ALBERTSSON
against Sweden

The European Court of Human Rights (Third Section), sitting on 6 July 2010 as a Chamber composed of:

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

Having regard to the above application lodged on 9 September 2007,

Having regard to the partial decision of 24 March 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the request submitted by Mr Christer Olsson under Article 5 § 2 (b) of the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights (ETS no. 161; hereafter “the Agreement”),

Having deliberated, decides as follows:

THE FACTS

The present case was brought before the Court by Mr Thomas Albertsson, a Swedish national who was born in 1966 and lives in Uppsala, and Carina Ahlström Förvaltning AB, a Swedish limited liability company solely owned by the first applicant. The applicants are represented by Mr P. Mosten, a lawyer practising in Uppsala.

The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of their possessions on account of the erroneous decision of the Stockholm District Court (tingsrätt) of 1 September 2003 to declare the company bankrupt and the judgment of the Supreme Court (Högsta domstolen) of 22 March 2007 to refuse them compensation. They also complained under Articles 6 and 13 of the Convention

By a partial decision of 24 March 2009 the Court invited the respondent Government to submit observations on the complaint under Article 1 of Protocol No. 1 in so far as it concerned the first applicant. The remainder of the application was declared inadmissible.

The Government, represented by its Agent, Mr Carl Henrik Ehrenkrona, and the first applicant submitted observations. The applicant further stated his just satisfaction claims which included a claim for pecuniary damage related to the sale of the company's main asset, a restaurant. While, according to the applicant, the restaurant business had been worth approximately 10,000,000 Swedish kronor (SEK) before the bankruptcy, it had been sold by the bankruptcy receiver for only SEK 2,800,000. In support of his claim as to the pre-bankruptcy value, the applicant submitted three affidavits, one of which had been made by Mr Christer Olsson on 25 August 2009. Mr Olsson stated, inter alia, that between mid-June and early July 2003 he had assembled a group of investors who, after evaluating the restaurant, had offered to buy it for SEK 9,000,000. However, due to holidays and other reasons, they had not been able to finalise the deal before the bankruptcy.

On 15 December 2009 Mr Ehrenkrona submitted further observations on behalf of the Government and commented on the applicant's statements concerning the value of the company. With respect to the above-mentioned affidavit, Mr Ehrenkrona stated:

“As regards the affidavit by Christer Olsson, he must have been well aware that the restaurant had already closed in July 2003. The court's attention is also drawn to the fact that the Svea Court of Appeal sentenced Christer Olsson to ten months imprisonment for several counts of aggravated bookkeeping offences and several counts of falsification of a document (involving fictitious invoices). Christer Olsson had also previously been found guilty of a bookkeeping offence. The judgment from 2005, which has gained legal force, is attached as Appendix 3.”

Subsequently, Mr Olsson has brought a private prosecution against Mr Ehrenkrona before the District Court, claiming that this statement constitutes slander. Mr Ehrenkrona has called for the case to be dismissed, claiming immunity under the Act on Immunity and Privileges in Certain Cases (Lagen om immunitet och privilegier i vissa fall; 1976:661) which, in turn, refers to the Agreement.

THE REQUEST

On 12 April 2010, invoking Article 5 of the Agreement, Mr Olsson asked the Court to waive the immunity of Mr Ehrenkrona. He submitted that immunity impedes the course of justice and that a waiver would not prejudice the purpose defined in Article 5 § 1. He argued that the Swedish Government had no practical or legal need to slander him in order to protect themselves against a decision on admissibility in the case before the Court. Furthermore, there are no other means than the proceedings before the Stockholm District Court to protect himself against the statements made by Mr Ehrenkrona. Finally, also justice for the applicant, Mr Albertsson, would be impeded if the Government were allowed to slander and avoid responsibility by invoking immunity.

On 11 June 2010 Mr Ehrenkrona replied that he left it to the Court to decide the matter.

THE DECISION OF THE COURT

Under the Agreement, immunity is accorded in respect of oral or written statements made before or to the Court (Article 2 § 1). The purpose of the immunity is notably to ensure for persons taking part in proceedings before the Court, including representatives of the parties, the freedom of speech and independence necessary for the discharge of their functions, tasks or duties (Article 5 § 1). The Court is empowered, and indeed required, to waive such immunity where it would impede the course of justice and where to do so would not prejudice the purpose of the immunity as defined in Article 2 § 1 (Article 5 § 2 (a)).

The Court stresses the need to ensure free and open communication in its proceedings and to protect those who plead before it from being sued or prosecuted for their statements. In view of the importance of this objective for the proper conduct of its proceedings, the Court will waive such immunity only in exceptional circumstances, for example where statements are made which are manifestly excessive or plainly irrelevant.

The Court notes that Mr Ehrenkrona's statement of 15 December 2009 was made in his capacity as Agent of the Government in the proceedings before the Court. It related to an affidavit submitted in support of the first applicant's assessment of the value of his property and raised the question of the credibility of the author of the affidavit, Mr Olsson. The Court considers that the questioning of the credibility of evidence invoked in a case is, as such, justified. Moreover, the terms of Mr Ehrenkrona's statement cannot be said to have exceeded the limits of what was permissible to this end.

It follows that a waiver of Mr Ehrenkrona's immunity would prejudice the purpose of that immunity within the meaning of Article 5 § 2 (a) of the Agreement and, accordingly, the request must be rejected.

For these reasons, the Court unanimously

Decides to reject the request for a waiver of immunity.

Santiago Quesada Josep Casadevall
Registrar President