HÅKANSSON AND STURESSON v. SWEDEN - 11855/85 [1990] ECHR 1 (21 February 1990)

judgment of 23 April 1987, Series A no. 117, p. 16, para. 32). In addition, nothing suggests that the applicants had waived their right to a court, even assuming that this would have been permissible. 61. Article 6 para. 1 (art. 6-1) is accordingly applicable to both sets of proceedings. B. Compliance with Article 6 para. 1 (art. 6-1) 1. The proceedings concerning the permit to retain the property 62. The Government conceded that, should the Court find that the proceedings concerning the permit to retain the property fell under Article 6 para. 1 (art. 6-1), the applicants were not afforded the safeguards set out therein. The Court nevertheless has to ascertain whether they enjoyed the "right to a court", as guaranteed to them under this provision (see, as the most recent authority, the above-mentioned Allan Jacobsson judgment, Series A no. 163, p. 21, para. 75). 63. According to Swedish law, the dispute in question could be determined only by the Government as the final instance (see paragraph 33 above). The Government's decisions were not open to review as to their lawfulness by either the ordinary courts or the administrative courts, or by any other body which could be considered to be a "tribunal" for the purposes of Article 6 para. 1 (art. 6-1). There was thus a violation of Article 6 para. 1 (art. 6-1) on this point. 2. The absence of any public hearing before the Göta Court of Appeal 64. The Göta Court of Appeal was the first and only tribunal to deal with all aspects of the applicants' complaint against the compulsory auction in 1985. The applicants were accordingly entitled to a public hearing before that court, as none of the exceptions laid down in the second sentence of Article 6 para. 1 (art. 6-1) applied. 65. The Government submitted that the requirements of Article 6 para. 1 (art. 6-1) on the point at issue had been satisfied, in particular as the applicants had not requested any public hearing, thereby waiving any right thereto. 66. The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1). Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 59, and the H. v. Belgium judgment of 30 November 1987, Series A no. 127, p. 36, para. 54). However, a waiver must be made in an unequivocal manner and must not run counter to any important public interest. 67. No express waiver was made in the present case. The question is whether there was a tacit one. While in some earlier cases dealt with by the Court the confidentiality of the proceedings at issue stemmed from legislation (see the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, and the Albert and Le Compte judgment of 10 February 1983, Series A no. 58) or practice (see the above-mentioned H. v. Belgium judgment, Series A no. 127), in the present case the Swedish law expressly provided for the possibility of holding public hearings: the Code of Judicial Procedure gave the Göta Court of Appeal power to hold public hearings "where [this was] necessary for the purposes of the investigation" (see paragraph 39 above). Since the applicants' appeal mainly challenged the lawfulness of the 1985 auction and since in Sweden such proceedings usually take place without a public hearing, the applicants could have been expected to ask for such a hearing if they had found it important that one be held. However, they did not do so. They must thereby be considered to have unequivocally waived their right to a public hearing before the Göta Court of Appeal. Their misgivings as to their treatment before that court only seem to have emerged in the course of the proceedings before the Convention organs; in their application to the Supreme Court for leave to appeal, no complaint was raised in this respect (see paragraph 25 above). Furthermore, it does not appear that the litigation involved any questions of public interest which could have made a public hearing necessary. 68. There has accordingly been no violation of the public-hearing requirement in Article 6 para. 1 (art. 6-1). IV. ALLEGED BREACH OF ARTICLE 13 (art. 13) OF THE CONVENTION 69. The applicants claimed that they were deprived of any "effective remedy before a national authority" in respect of the matters of which they complained. Having regard to its decisions on Article 6 para. 1 (art. 6-1), the Court, like the Commission, does not find it necessary to consider the case also under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 para. 1 (art. 6-1) (see, as the most recent authority, the above-mentioned Allan Jacobsson judgment, Series A no. 163, p. 21, para. 78). V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 70. Article 50 (art. 50) of the Convention reads: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicants sought compensation for damage and reimbursement of their costs and expenses. A. Damage 71. The applicants stated that their claim for compensation would be based on: (a) the free market value of the estate (estimated by them at 365,000 SEK), increased to take account of the annual price index; (b) the costs of the valuation and the auction (16,513.50 SEK; see paragraph 22 above); (c) the allegedly unjustified reduction for the cost of thinning-out trees (22,000 SEK; see paragraph 21 above); (d) loss of income due to their inability to sell the Christmas trees they had planted on the estate (675,000 SEK; ibid.). However, they would reduce this claim to 84,513.50 SEK, i.e. the difference between the 240,000 SEK which they had paid for the property and the 155,486.50 SEK they had eventually received for it, should the Court not find any violation of Article 1 of Protocol No. 1 (P1-1). In either case, interest calculated in accordance with the Swedish Interest Act (räntelagen) should be added to the amount claimed. 72. The Court agrees with the Commission and the Government that no causal link can be established between the violation of Article 6 para. 1 (art. 6-1) of the Convention found in this judgment and any of the alleged prejudice. The refusal to grant the necessary permit to retain the property may have caused the applicants some economic loss, but the Court cannot speculate as to what result they would have achieved had they been able to bring their complaints before a court. No award can therefore be made under this head. B. Costs and Expenses 73. The applicants claimed 151,960 SEK in respect of their costs and expenses in the domestic proceedings and before the Convention institutions. The Government left the matter to the discretion of the Court. 74. Taking into account all relevant circumstances, in particular the fact that the present judgment has found no violation on the main aspect of the case, i.e. the complaint under Article 1 of Protocol No. 1 (P1-1), the Court considers that the applicants are entitled, on an equitable basis, to be reimbursed the sum of 60,000 SEK under this head. FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been no violation of Article 1 of Protocol No. 1 (P1-1), taken alone or together with Article 14 (art. 14+P1-1) of the Convention; 2. Holds unanimously that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention as a result of the absence of any court remedy to challenge the decisions refusing the applicants the permit to retain Risböke 1:3; 3. Holds by six votes to one that there has been no violation of Article 6 para. 1 (art. 6-1) as regards the proceedings before the Göta Court of Appeal; 4. Holds unanimously that it is not necessary to examine the case also under Article 13 (art. 13) of the Convention; 5. Holds unanimously that Sweden is to pay to the applicants, for costs and expenses, 60,000 (sixty thousand) Swedish crowns; 6. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 February 1990. Signed: Rolv RYSSDAL President Signed: Marc-André EISSEN Registrar In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court, the partly dissenting opinion of Mr Walsh is annexed to this judgment. Initialled: R. R. Initialled: M.-A. E. PARTLY DISSENTING OPINION OF JUDGE WALSH 1. I regret that I do not find myself in agreement with the majority of the Court in their conclusion that there has been no violation of the public-hearing requirement of Article 6 para. 1 (art. 6-1). 2. The Court has held that Article 6 para. 1 (art. 6-1) of the Convention is applicable to the case and that as Swedish law did not permit the judicial review of the relevant decisions of the Swedish Governemnt there has been a violation of Article 6 para. (art. 6-1). On that point the Court has rejected the Government's plea that the applicants had waived their right to a court by subscribing to the conditions of the auction of 1979 as there was nothing in the evidence to suggest that the applicants had waived their right to a court. 3. It appears to me that once it has been held that there was a right to a court in accordance with Article 6 para. 1 (art. 6-1) it must follow, in the absence of evidence of a waiver, that the hearing must be a public hearing. The norm is a public hearing. The Code of Judicial Procedure provided for public hearings "where [this was] necessary for the purposes of the investigation". Such a discretion is not compatible with Article 6 para. 1 (art. 6-1) save in the particular exceptions specified in that provision. This case does not fall within any of those exceptions. 4. It is agreed that there was no express waiver. The fact that there was no express request for a public hearing does not, in my opinion, amount to a tacit waiver of a public hearing. The proof of a waiver lies upon those asserting the existence of a waiver. The absence of an express objection to a departure from the norm cannot amount to the acceptance of such a departure. In my opinion it would radically alter the interpretation of Article 6 para. 1 (art. 6-1) to hold that the mandatory requirement of a public hearing is to be interpreted as meaning that it is qualified to the extent of being dependent upon an express or tacit request. The public-hearing requirement of Article 6 para. 1 (art. 6-1) is enshrined in the Convention because the Contracting States thought it was important, not because a party may think that it is important. The administration of justice in public is a matter of paramount importance in every democracy and is one of the cornerstones put in place by the Convention to guarantee the impartial administration of justice and the defence of the rights guaranteed by the Convention. The fact that the public may not manifest any particular interest in a given case is not a consideration. Equally a lack of interest in having a hearing in public on the part of one or both parties to a suit does not alter the matter. Only where both parties agree to a hearing other than in public can the mandatory provisions of Article 6 para. 1 (art. 6-1) be waived. Any such waiver of a guaranteed right must be manifested by clear and unambiguous words or by conduct from which the only reasonable inference to be drawn is that both parties were so agreed. There is no such evidence in the present case. In my opinion silence cannot amount to such waiver, particularly, as in this case, where there is no evidence that the applicants ever contemplated a joint or several waiver. In my opinion there was a breach of the public-hearing requirement of Article 6 para. 1 (art. 6-1) of the Convention. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII