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You are here: BAILII >> Databases >> European Court of Human Rights >> ROLF GUSTAFSON v. SWEDEN - 23196/94 [1997] ECHR 41 (1 July 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/41.html Cite as: [1997] ECHR 41, 25 EHRR 623, (1998) 25 EHRR 623

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In the case of Rolf Gustafson v. Sweden (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court B (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr B. Walsh,

Mr C. Russo,

Mr J. De Meyer,

Mrs E. Palm,

Mr J.M. Morenilla,

Mr B. Repik,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 21 February and 27 May 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 113/1995/619/709. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1. The case was referred to the Court on 18 December 1995 by the

applicant, Mr Rolf Gustafson, a Swedish national, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 23196/94) against the Kingdom of Sweden lodged by the applicant

with the European Commission of Human Rights ("the Commission") under

Article 25 (art. 25) on 5 November 1993.

The applicant's application bringing the case before the Court

referred to Article 48 of the Convention (art. 48), as amended by

Protocol No. 9 (P9), which has been ratified by Sweden. The object of

the application was to obtain a decision as to whether the facts of the

case disclosed a breach by the respondent State of its obligations

under Article 6 para. 1 of the Convention (art. 6-1).

2. On 29 March 1996 the Court's Screening Panel decided not to

decline consideration of the case and to submit it to the Court

(Article 48 para. 2 of the Convention) (art. 48-2).

3. In response to the enquiry made in accordance with Rule 35

para. 3 (d) of Rules of Court B, the applicant designated the lawyer

who would represent him (Rule 31).

4. The Chamber to be constituted included ex officio Mrs E. Palm,

the elected judge of Swedish nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21

para. 4 (b)). On 27 April 1996, in the presence of the Registrar, the

President drew by lot the names of the other seven members, namely

Mr F. Matscher, Mr B. Walsh, Mr C. Russo, Mr J. De Meyer,

Mr J.M. Morenilla, Mr B. Repik and Mr P. Jambrek (Article 43 in fine

of the Convention and Rule 21 para. 5) (art. 43).

5. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Government, the

applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant

to the order made in consequence, the Registrar received the

applicant's memorial on 25 October 1996 and the Government's memorial

on 6 November 1996.

6. On 15 January and 3 February 1997 the Commission produced various

documents from the file on the proceedings before it, as requested by

the Registrar on the President's instructions.

7. On 20 January 1997 the Chamber, having regard to the views

expressed by the applicant, the Agent of the Government and the

Delegate of the Commission, decided to dispense with a hearing in the

case, having satisfied itself that the condition for this derogation

from its usual procedure had been met (Rules 27 and 40). On 22 and

30 January 1997 the Registrar received supplementary memorials from the

applicant and the Government. On 3 February 1997 the Delegate informed

the Registrar that he did not wish to submit written observations in

reply to these memorials.

AS TO THE FACTS

I. Circumstances of the case

8. The applicant is a Swedish citizen resident in Stockholm. Since

1973 he has spent a total of eight years in prison for the commission

of serious economic offences. Most recently, in October 1996 he was

sentenced to a one-year term of imprisonment for a serious

forgery offence.

9. The applicant claims that on two occasions, in April-June and

June-July 1991, he was the victim of kidnapping and extortion

perpetrated by three persons. According to the applicant, one of the

alleged perpetrators, a certain Mr L., had wanted to be paid for the

part he played with him in the commission of certain economic crimes.

10. On 25 March 1993 the public prosecutor charged L. with one count

of kidnapping on 17 April 1991, one count of aggravated extortion

committed between 17 April 1991 and June 1991 and one count of

kidnapping and aggravated extortion committed between 27 June and

3 July 1991. No proceedings were instituted against the other

two persons, one of whom had been named by the applicant as a certain

Mr P. (see paragraph 17 below).

A. Proceedings before the Stockholm District Court

11. In the criminal proceedings instituted against L. before the

Stockholm District Court (tingsrätt), the applicant requested the

court, pursuant to the provisions of chapter 22 of the

Code of Judicial Procedure (Rättegångsbalken: see paragraph 20 below),

to order L. to pay him a total of 169,350 Swedish kronor (SEK) in

compensation in respect of the following items:

(a) SEK 9,350 in material damages to his clothes;

(b) SEK 10,000 in non-pecuniary damages for injury caused to

his head;

(c) SEK 50,000 for suffering resulting from an eye injury;

(d) SEK 100,000 in non-pecuniary damages for the mental

suffering caused by the two alleged kidnappings (see paragraph 9

above).

The applicant reserved his right to present further claims in

respect of any such damage as he might suffer in the future.

B. The applicant's claim for compensation before the

Criminal Damage Compensation Board

12. On 15 April 1993 the applicant applied for compensation to the

Criminal Damage Compensation Board (Brottsskadenämnden - hereinafter

"the Board") under the Criminal Damage Act 1978 (brottsskadelagen

1978:413 - hereinafter "the 1978 Act"; see paragraphs 20-29 below).

In his application he stated that he had sought compensation for

personal injury in the amount of SEK 160,000 in the proceedings against

L. and that he had reserved his right to make any further claims

with regard to future damage. In view of the rules on prescription of

compensation claims, he submitted to the Board at that stage a claim

for compensation of SEK 160,000 along the lines stated above. He

enclosed a copy of the indictment against L.

C. The decision of the Stockholm District Court

13. On 28 April 1993 the Stockholm District Court convicted L.,

sentenced him to six years' imprisonment and ordered him to pay

SEK 144,350 in damages to the applicant. The District Court found,

inter alia, that, on the whole, the applicant could not be considered

a particularly trustworthy person in view of the fact that he had been

convicted of several economic offences (see paragraph 8 above). It

stated, however, that this fact did not in itself mean that his

allegations concerning his kidnapping and extortion were untrue and it

found the evidence to be such that the prosecution's case against L.

had been partially proven.

D. The decision of the Svea Court of Appeal

14. On 2 July 1993 the Svea Court of Appeal (Svea hovrätt) reversed

the District Court's decision on the ground that the charges against

L. had not been proven, acquitted L. and rejected the applicant's claim

for compensation. The Court of Appeal found that the applicant, in

view of his criminal background, could not be deemed a trustworthy

person. It followed that the information he had provided on the events

which had given rise to the charges against L. (åtalade händelserna)

could not, in the absence of strong supporting evidence, ground L.'s

conviction, even though the applicant's evidence had been corroborated

by others whom he had told about the incidents.

The applicant did not seek leave to appeal to the Supreme Court

(Högsta domstolen) against the decision.

E. The Board's examination of the applicant's claim

15. On 12 August 1993 the applicant, referring to his application for

compensation of 15 April 1993 (see paragraph 12 above), asked the Board

to proceed with its examination of his claim, stating that he had no

insurance which would cover the damage in question. He supplied the

Board with copies of the judgments of the District Court and the

Court of Appeal.

16. On 26 August 1993 the Board rejected the applicant's compensation

claim, stating as follows:

"A condition for a grant of compensation is that damage has in

fact been caused by crime. The Board ... cannot find it

established that [the applicant] has suffered damage as a result

of crime. Consequently, compensation for damage caused by crime

cannot be awarded."

F. The Board's reconsideration of the claim

17. On 11 November 1993 the applicant requested the Board to

reconsider its decision. He argued that it was clear from the

judgments of the District Court and the Court of Appeal that he had

been the victim of a crime and that he had suffered the damage for

which he requested compensation. He had identified two of the

three persons who were allegedly involved in the offences; the fact

that the Court of Appeal had not found it proven that the only one to

be charged, L., was guilty was not a reason to doubt that he had been

the victim of crime.

In support of his request for reconsideration of the decision the

applicant submitted a copy of the investigation report concerning the

alleged kidnappings and extortions, including a medical report drawn

up on 25 February 1993 by Dr Lennart Berglin, a

Deputy Senior Physician. According to this report, on 4 July 1991 the

applicant had sought emergency care for his right eye, which he stated

had been punched. He had been operated on by Dr Berglin on 5 July 1991

and had remained hospitalised until 15 July 1991. On 26 February 1992

he underwent a further operation. Dr Berglin concluded in his report

that the applicant's eye injury could have been caused by a punch.

The applicant also submitted a transcript of the testimony given

by Crime Inspector S. at the District Court's oral hearing in the

criminal proceedings against L. Inspector S. had been the

principal investigator into the economic offences of which the

applicant had previously been convicted. He had interrogated both the

applicant and L. on a number of occasions. Inspector S. had told the

District Court, inter alia:

"I was, probably on 4 July 1991, informed [about the alleged

kidnapping of the applicant]. A colleague ... telephoned me to

say that he had been informed that [the applicant] had been

kidnapped ..., that the kidnapping had been staged by [L.] with

the help of two 'gorillas', ... and that the kidnapping had been

combined with an extortion threat against [the applicant] in the

amount of SEK 5 million.

... I then ... telephoned [the applicant], who ... denied that

he had been kidnapped ...

... I saw [the applicant] in August [1991] in connection with ...

criminal proceedings brought against him ... and noted that he

had a bruise at [one of] his eye[s]. I asked him what had

happened and he stated that he had been the victim of a robbery

committed by some persons ...

... Probably in May 1992 [the applicant] mentioned the

kidnappings when he was being interrogated as a suspect in

another case ... He stated that [they had been carried out] by

two black men and a third one, whom he did not wish to name ...

He repeated several times that one kidnapping had taken place in

April [1991] and [the other] towards the end of June [1991],

lasting until the beginning of July [1991] ...

We took [the applicant's statements] seriously ... I have come

to know [the applicant] so well that I can somehow see when he

is lying or when he is telling the truth ...

Having been asked on a number of occasions to name the

perpetrators, [the applicant] stated that he would do so, but not

right away ... In the autumn [of 1991] he named one of the

assistants [during the kidnappings], [P.] ...

[The applicant's description of the environment and premises

where he had been kept during the kidnappings] was very accurate

as regards many details ..."

18. Both Dr Berglin's report and Crime Inspector S.'s testimony had

in essence been reproduced in the District Court's judgment.

Inspector S. had also been heard orally before the Court of Appeal,

where he had more or less repeated the same evidence he gave to the

District Court.

19. On 1 June 1994 the Board rejected the applicant's request, for

the following reasons:

"The submissions in this case in support of the request for

reconsideration are not such as to be a reason for the Board to

change its previous decision. Nor is there any other reason for

changing the decision."

II. Relevant domestic law and practice

20. Under chapter 22, section 1, of the Code of Judicial Procedure,

a private claim arising from a crime may be lodged against the suspect

or a third party in connection with the prosecution of the offence.

If it concerns an offence forming the object of public charges, the

prosecutor is under an obligation to prepare and present any such claim

as the victim may wish to make, provided that it is not

seriously inconvenient to do so and that the claim is not manifestly

unfounded (section 2). In that event, the trial court will in

principle determine the claim for compensation as well as the questions

of guilt and sentencing. This is the most frequently used course of

action for obtaining compensation for criminal damages.

A private claim against the suspect may in the alternative be

made by way of a civil action under the general rules on tort liability

contained in the Tort Liability Act 1972.

Otherwise, and at the relevant time, compensation could have been

sought from the State under the rules of the 1978 Act, which was

amended as of 1 July 1994. The 1978 Act was enacted in order to afford

crime victims a means of obtaining reparation where the identity of the

offender was unknown or where the latter had insufficient means to

compensate the victim or where insurance coverage was inadequate.

21. Section 1 of the 1978 Act read, in so far as is relevant:

"This Act regulates compensation to be paid by the State for

damage caused by crime.

The Act is applicable if the crime has been committed in

Sweden ..."

22. Section 2 of the Ordinance on Damage Caused by Crime

(brottsskadeförordningen 1978:653) read, at the time in question and

in so far as is relevant:

"... The claim [for compensation for damage caused by crime]

shall be lodged with the Criminal Damage Compensation Board.

The claim shall be supported by a police record, a

medical statement and other documents of relevance to the

[Board's] examination. If someone has been convicted of the

crime referred to in the request or if someone has been ordered

to pay damages, a copy of the judgment [to this effect] shall

also be enclosed. If no police investigation has been carried

out, other material concerning the cause of the damage shall be

submitted."

23. Section 14 of the 1978 Act provided:

"A claim for compensation for damage caused by crime shall be

filed within two years from the date of the offence. If there

are special reasons, a claim may be examined even if it has been

lodged out of time.

A claim will only be examined if the offence has been reported

to the public prosecutor or the police or if the applicant shows

a valid reason why such a report has not been made."

24. Although it was not a condition for compensation under the

1978 Act that the offender had been convicted, it was a condition that

the damage had been caused by criminal conduct and that both the

subjective and objective conditions for the offence in question had

been fulfilled.

The Board decided independently whether the conditions for

compensation under the 1978 Act had been fulfilled, including whether

a crime had been committed. Thus, in some cases the Board had been

satisfied that the conditions for compensation had been met, despite

a decision by the public prosecutor not to bring charges on the ground

of lack of evidence. In rare instances, the Board had granted

compensation even though the trial court, because of insufficient

evidence, had acquitted the accused or had dismissed the

compensation claim. Generally speaking, the standard of proof applied

by the Board was less strict than that applied by a trial court.

25. Compensation could be granted under the 1978 Act for physical

injury suffered by the victim but could, on certain conditions, also

cover damage to property. Other damage could be compensated to a

limited extent (sections 2-5 of the 1978 Act).

26. No appeal lay against a decision of the Board (section 12 of the

1978 Act). Nor was it possible to request judicial review of the

decision pursuant to the 1988 Act on Judicial Review of

Certain Administrative Decisions (Rättsprövningslagen 1988:205).

27. The Board set up under the 1978 Act was composed of a

chairperson, two vice-chairpersons and three other members, all of whom

were appointed by the Government for a limited period (section 15 of

the Ordinance with Instructions for the Board (Förordningen 1988:984

med instruktion för brottsskadenämnden)). It was a requirement that

the chairperson, the vice-chairpersons and their substitutes be lawyers

("vara lagfarna") and have experience as judges (section 13 of the

1978 Act). The remaining three members did not need to be lawyers, but

one of them had to be a representative of the insurance business.

The Board's independence was guaranteed by chapter 11, Article 7,

of the Instrument of Government (Regeringsformen), which provision

implies that neither the Government nor Parliament could intervene or

influence the manner in which the Board dealt with an individual case.

28. The rules governing the procedure before the Board were similar

to those found in the Code of Judicial Procedure (Rättegångsbalken) and

the Administrative Procedure Act 1971 (Förvaltningsprocesslagen

1971:291). Thus, for instance, the rules on disqualification of

members of the Board from dealing with a case (sections 11-12 of the

Administrative Act 1986 (Förvaltningslagen 1986:223) were similar to

those applying to members of the ordinary courts (chapter 4,

section 13, of the Code of Judicial Procedure) and the

administrative courts (section 41 of the Administrative Procedure Act).

Although the Board in principle determined cases on the basis of the

case file, a party to the proceedings had the possibility to make oral

arguments before the Board, if the latter considered it expedient

(Section 14 of the Administrative Act 1986). A party was entitled to

have access to all written documents in a case, unless non-disclosure

was required by a strong public or private interest under the

Secrecy Act 1980 (Sekretesslagen 1980:100). In such a case the party

concerned should be informed of the contents of such facts in order to

enable him to protect his rights, provided this could be done without

serious harm to those interests which are protected by secrecy. No

case could be decided on before the parties had been informed of all

the evidence adduced and had been given an opportunity to submit

observations in reply.

Subject to the provisions in the Secrecy Act 1980, all documents

submitted to the Board were accessible to the public.

29. Under the new legislation adopted on 1 July 1994

(see paragraph 20 above), a new public body has been established for

the examination of compensation requests, i.e. the Authority for

Victims of Crime (Brottsoffermyndigheten). Within that authority a

board examines cases of particular interest or cases that are otherwise

of particular importance.

PROCEEDINGS BEFORE THE COMMISSION

30. In his application to the Commission dated 5 November 1993

(no. 23196/94), the applicant complained of a violation of Article 6

para. 1 of the Convention (art. 6-1) in that he could not have a

civil right to compensation pursuant to the Criminal Damage Act 1978

determined by a court.

31. The Commission (Second Chamber) unanimously declared the

application admissible on 22 February 1995. In its report of

18 October 1995 (Article 31) (art. 31) the Commission expressed the

opinion (unanimously) that there had been no violation of Article 6

para. 1 (art. 6-1). The full text of the Commission's opinion is

reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-IV), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

32. In their memorials to the Court, the Government invited the Court

to conclude that Article 6 of the Convention (art. 6) was not

applicable and, in any event, that there had been no violation thereof

in the present case.

33. The applicant, for his part, requested the Court to find that

Article 6 para. 1 (art. 6-1) was applicable and that there had been a

violation of this provision (art. 6-1) and to award him just

satisfaction under Article 50 of the Convention (art. 50).

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1)

34. The applicant complained that under Swedish law he did not have

the possibility of having his claim for compensation under the 1978 Act

determined by a court. He alleged that there had therefore been a

violation of Article 6 para. 1 of the Convention (art. 6-1) which, in

so far as is relevant, reads:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law ..."

A. Applicability of Article 6 para. 1 (art. 6-1)

35. The applicant maintained that a right to compensation devolved

on victims of a crime under the Criminal Damage Act 1978

(see paragraph 12 above) and that this right should be construed as a

civil right within the meaning of Article 6 para. 1 of the Convention

(art. 6-1) having regard to the case-law of the Court. He contended

that the evidence of Dr Berglin and Crime Inspector S. was sufficient

to prove that he had been the victim of a crime. The Board had

rejected his claim on the basis of the Court of Appeal's decision to

acquit L. However, this decision did not amount to a finding that he

had not been the victim of a criminal act; nor did it exclude the fact

that the two other suspects whom he had mentioned to the police had

also been involved.

36. The Government contended that the 1978 Act did not give claimants

a right to compensation. Even if it could be construed in this sense

any such right could not be considered to be of a civil nature within

the meaning of Article 6 para. 1 of the Convention (art. 6-1) having

regard to the aim of the legislation. More importantly, there could

not be said to be any genuine and serious dispute over the applicant's

alleged right to compensation since he had not presented any new

evidence to the Board which proved he had been the victim of a crime.

37. The Commission for its part concluded that the 1978 Act was

sufficiently precise in its wording to give claimants satisfying the

conditions therein a right to criminal injuries compensation and that

this right was of a civil character having regard to its individual and

pecuniary nature. On the other hand and for the reasons stated by the

Government, the Commission found that there was no serious and genuine

dispute over the applicant's civil right to compensation.

38. The Court recalls that the applicability of Article 6 para. 1

(art. 6-1) under its "civil head" requires the existence of a dispute

("contestation" in the French text) over a "right" which can be said,

at least on arguable grounds, to be recognised under domestic law.

That dispute must be genuine and serious; it may relate not only to the

existence of a right but also to its scope and to the manner of its

exercise. Furthermore the outcome of the proceedings must be directly

decisive for the right in question (see the Masson and Van Zon

v. the Netherlands judgment of 28 September 1995, Series A no. 327-A,

p. 17, para. 44; the Acquaviva v. France judgment of 21 November 1995,

Series A no. 333-A, p. 14, para. 46).

39. Having regard to these principles, the Court considers in the

first place that there was a dispute over the applicant's alleged right

to compensation under the 1978 Act. He lodged a claim with the Board

and that claim was rejected on the grounds that he did not satisfy

the essential condition defined in the Act for an award of

compensation, namely, that he had suffered damage as a result of a

crime (see paragraph 16 above). His eligibility under the Act was

accordingly in dispute.

Nor can it be said with certainty that the dispute over his

entitlement to compensation was not a genuine and serious one having

regard to the respective functions of the Board and of the

domestic courts. The fact that the Court of Appeal acquitted L. for

lack of evidence was not conclusive as to whether or not the applicant

had in fact been the victim of a criminal act. It was for the Board

to adjudicate on that quite separate issue having regard to the

specific functions assigned to it under the 1978 Act, to the standard

of proof which it required claimants to satisfy and to the information

which the applicant had placed before it.

In the Court's view a claim submitted to a tribunal for

determination must be presumed to be genuine and serious unless there

are clear indications to the contrary. Although the applicant may not

have adduced any new evidence before the Board to substantiate his

allegation that he had suffered personal injury as a result of a crime,

this in itself is not sufficient to rebut such a presumption. In

particular, it could not be said that the applicant's claim was

frivolous or vexatious or otherwise lacking in foundation.

40. The Court also notes that the question whether a right to

criminal injuries compensation existed under the 1978 Act or whether

the Act simply gave rise to a claim to an ex gratia discretionary

payment must be answered with reference to the provisions of that Act.

It is to be noted that the Act defined in clear, regulatory terms the

conditions and procedures which a claimant had to comply with before

compensation could be awarded by the Board. Accordingly, a claimant

who complied with those conditions and procedures had a right to be

awarded compensation under the Act.

41. The Court, like the Commission, is also of the opinion that

the right asserted by the applicant can be categorised as a "civil"

right within the meaning of Article 6 para. 1 of the Convention

(art. 6-1). It is to be noted in this respect that the right invoked

by the applicant was intended to confer on him a pecuniary benefit in

the form of compensation.

42. For the above reasons the Court finds that Article 6 para. 1 of

the Convention (art. 6-1) is applicable in the instant case. It

remains to be considered whether the Board which adjudicated on the

applicant's claim satisfied the requirements of a tribunal as laid down

in that Article (art. 6-1).

B. Compliance with Article 6 para. 1 (art. 6-1)

43. The applicant emphasised that the Board's decision-making

procedures fell short of those required of a court or tribunal within

the meaning of Article 6 para. 1 of the Convention (art. 6-1). He

complained that oral proceedings were in fact a rare occurrence and

that hearings were not open to the public. Furthermore, the Board only

gave routine and cursory consideration to the claims before it and the

minutes of the Board's sessions indicated that his own claim suffered

from such treatment. Finally, the decisions of the Board were not

properly reasoned and there was no opportunity to appeal against them.

44. The Government stressed that the Board exercised its powers in

an independent and impartial manner on the basis of legal rules and

established procedures including the procedural requirements of the

Administrative Act 1986. The applicant was entitled under that Act to

present his claim orally before the Board but since he never requested

this he should be considered to have waived his right. The procedure

used was fair and in many respects very similar to that followed by a

Court of Appeal or by an Administrative Court of Appeal when deciding

cases on the basis of the case file alone. Case files were carefully

prepared by the secretariat prior to their submission to the Board for

formal consideration; nor was it possible to draw any conclusions from

the minutes of the Board's sessions as to the precise amount of time

devoted to a case file.

45. The Court recalls that for the purposes of Article 6 para. 1

(art. 6-1) a tribunal need not be a court of law integrated within the

standard judicial machinery. It may, like the Board at issue, be set

up to deal with a specific subject matter which can be appropriately

administered outside the ordinary court system. What is important to

ensure compliance with Article 6 para. 1 (art. 6-1) are the guarantees,

both substantive and procedural, which are in place (see the

Lithgow and Others v. the United Kingdom judgment of 8 July 1986,

Series A no. 102, pp. 72-73, para. 201).

46. The applicant has not disputed that the Board in its composition

and operation satisfied the requirements of independence and

impartiality, nor that it had jurisdiction to examine and decide with

binding effect on all questions of fact and law relevant to the

applicant's claim for criminal injuries compensation (see, among many

other authorities, the Belilos v. Switzerland judgment of

29 April 1988, Series A no. 132, p. 29, para. 64).

47. As to the applicant's complaint about the decision-making

procedures of the Board, it is to be noted that section 14 of the

Administrative Act 1986 expressly provided for the possibility of an

oral hearing (see paragraph 28 above). It is significant that the

applicant was aware of the fact that the Board seldom had recourse

to oral hearings and for this reason he could have been expected to

request a hearing if he considered it important that one be held either

when lodging his claim or when requesting the Board to reconsider its

decision to reject it. He did not do so. It may thus reasonably be

considered that he waived his right to a hearing before the Board

(see the Håkansson and Sturesson v. Sweden judgment of

21 February 1990, Series A no. 171-A, p. 21, para. 67; and the

Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A

no. 263, pp. 19-20, para. 58). Furthermore, it does not appear that

there were any reasons of expediency which would have required the

Board itself to convene the applicant since it had before it his

complete case file. The Board could properly determine in the absence

of a hearing whether or not the elements in the file established that

the applicant had been the victim of a criminal act either at the hands

of L. or of the two other suspects whom he mentioned to the police.

For the same reason the Court cannot accept either the applicant's

arguments that his claim was only given scant and routine

consideration. Furthermore, the reasons given by the Board were

sufficient in the circumstances to justify its rejection of the

applicant's claim and its subsequent confirmation of that rejection.

48. While it is true that the decisions reached by the Board were

final and not subject to appeal either to a higher administrative

authority or to a court of law, it is to be noted from the above

considerations that the Board complied for the purposes at hand with

the requirements which Article 6 para. 1 (art. 6-1) prescribes in

respect of a tribunal. This in itself is sufficient in the particular

circumstances of this case for the Court to conclude that Article 6

para. 1 (art. 6-1) was complied with, it being recalled that this

Article (art. 6-1) does not guarantee a right of appeal (see the

Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995,

Series A no. 316-B, pp. 78-79, para. 59).

C. Conclusion

49. The Court concludes that the applicant had access to a tribunal

for the determination of his civil right to compensation under the

1978 Act. Accordingly there has been no breach of Article 6 para. 1

of the Convention (art. 6-1).

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that Article 6 para. 1 of the

Convention (art. 6-1) was applicable in the present case;

2. Holds unanimously that there has been no violation of Article 6

para. 1 (art. 6-1).

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 1 July 1997.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following

separate opinions are annexed to this judgment:

(a) concurring opinion of Mr Walsh;

(b) concurring opinion of Mr De Meyer;

(c) partly concurring and partly dissenting opinion of

Mr Ryssdal and Mrs Palm.

Initialled: R. R.

Initialled: H. P.

CONCURRING OPINION OF JUDGE WALSH

The Swedish legislation in question does not exclude the

possibility of public hearings. A public hearing was not refused as

it was never asked for. In fact every oral hearing is in practice a

public hearing. The applicant had waived an oral hearing in addition

to not asking for a public hearing. In my view he had in effect waived

a public hearing. Additionally it is to be noted that under

Swedish law all such case files and the decisions thereon are available

to the public (see the Sutter v. Switzerland judgment of

22 February 1984, Series A no. 74, p. 6).

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

1. With much regret I have to dissociate myself from the Court's

reasoning concerning the applicability of Article 6 para. 1 (art. 6-1).

The Court once again puts the cart before the horse in stating

that the "right" at issue must be one "which can be said, at least on

arguable grounds, to be recognised under domestic law", that the

"dispute must be genuine and serious", and that "the outcome of the

proceedings must be directly decisive for the right in question" (1).

_______________

1. Paragraph 38 of the judgment.

_______________

These points are among the ones that fall to be decided by the

domestic courts. In the present case this was done, as described in

the judgment, by the Criminal Damage Compensation Board.

Every person asserting a right is entitled to have that right

determined in the domestic legal order by a tribunal satisfying the

requirements associated with the proper administration of justice. For

the purposes of Article 6 para. 1 of the Convention (art. 6-1), it is

for that tribunal, not for our Court, to consider whether or not the

right in question is "arguable", whether or not the dispute is "serious

and genuine" and whether or not the outcome of the proceedings is

"directly decisive for the right in question". The only task for our

Court is to check whether or not the person concerned had access to

such a tribunal and whether or not that tribunal did comply with the

said requirements (2).

_______________

2. See also my separate opinion in the Pudas v. Sweden case,

27 October 1987, Series A no. 125-A, p. 21, and in the Allan Jacobsson

v. Sweden case, 25 October 1989, Series A no. 163, p. 24.

_______________

In so far as the judgment requires that the right in question be

one "recognised under domestic law", I would, as Mr Lagergren did

twelve years ago, observe that the applicability of Article 6 para. 1

(art. 6-1) does not depend on whether or not an asserted "privilege or

interest" is classified or described in the domestic legal system as

a "civil right" or a "right" at all, and that it is indeed not

acceptable that, in relation to one and the same factual situation, the

issue be determined differently in different States, or at different

times within the same State (3). The fact that an asserted "right"

does not appear to be recognised under domestic law does not deprive

the person asserting it of his or her right to have his or her case

heard in accordance with the principles laid down in Article 6

para. 1 (art. 6-1).

_______________

3. See his separate opinion in the Ashingdane v. the United Kingdom

case, 28 May 1985, Series A no. 93, p. 27, and also his separate

opinion, joined by Mr Macdonald, in the case of Lithgow and Others

v. the United Kingdom, 8 July 1986, Series A no. 102, p. 80.

_______________

There can, of course, be no doubt that in the present case the

"right" asserted was a "civil" right.

Any right which a citizen (civis) may feel entitled to assert,

either under national law or under supranational or international law,

has indeed to be considered as a "civil" right within the meaning of

Article 6 para. 1 of the Convention (art. 6-1), which enshrines a right

which is so prominent that "there can be no justification for

interpreting [it] restrictively" (4).

_______________

4. Moreira de Azevedo v. Portugal judgment of 23 October 1990,

Series A no. 189, p. 16, para. 66. See also my concurring opinion in

the Kraska v. Switzerland case, 19 April 1993, Series A no. 254-B,

p. 54.

_______________

These are my reasons for finding that Article 6 para. 1

(art. 6-1) was applicable in the present case.

2. The Court reiterates in the present judgment that Article 6

para. 1 (art. 6-1) "does not guarantee a right of appeal" (5).

_______________

5. Paragraph 48 of the judgment.

_______________

I can accept that "in the particular circumstances of this case"

there was no need for an appeal.

There may, however, be other "circumstances", in which, in view

of the seriousness of what was at stake, or for some other reason, the

right to a fair trial must be deemed to imply a right of appeal.

In the present case what was at stake was of some importance.

However, the decisions of the Criminal Damage Compensation Board

concerning the applicant's claim themselves came after those taken by

the District Court and by the Court of Appeal in respect of the same

claim and the same questions of law and fact (6). Before the Board the

applicant had sought to obtain from the State what he had not obtained

from L. in the ordinary courts. Moreover, the Board, after its initial

decision to reject the claim, had reconsidered it at the applicant's

request (7).

_______________

6. Paragraphs 11, 13 and 14 of the judgment.

7. Paragraphs 16, 17 and 19 of the judgment.

_______________

The applicant's claim for compensation was thus examined by

three different tribunals and even twice by one of them. There was no

need for a further appeal.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION

OF JUDGES RYSSDAL AND PALM

1. We have voted with our colleagues in finding no violation of

Article 6 para. 1 of the Convention (art. 6-1) in the present case but

have based ourselves on a different reasoning. We do not agree that

the provision (art. 6-1) was applicable to the proceedings under

consideration.

2. The Criminal Damage Act 1978 lays down the conditions on which

compensation may be paid by the State for damage caused by crime. It

is undisputed that, under this Act, compensation may be granted even

if the perpetrator has not been convicted or identified. However, it

is a condition that it be established that a crime has been committed.

3. It is important to note that Mr Gustafson's claim to the

Criminal Damage Compensation Board concerned the same personal injury

in respect of which he had previously sought compensation in the

criminal proceedings against L. (see paragraphs 11-15 of the judgment).

Furthermore, in acquitting L. and rejecting the applicant's

compensation claim, the Court of Appeal laid stress on its finding that

the applicant could not be regarded as a trustworthy person and that

it followed from this that the information provided by him as to the

events which had given rise to the charges against L. could not, in the

absence of strong supporting evidence, ground his conviction

(see paragraph 14 of the judgment). Thus, it transpires from the

Court of Appeal's judgment that that court did not find it established

that the applicant was a victim of criminal offences, which was also

the conclusion subsequently reached by the Board in two successive

decisions (see paragraphs 16 and 19 of the judgment).

4. In our view, the above findings clearly suggest that the

applicant's attempt to pursue his application before the Board, without

invoking any relevant evidence which had not been adduced before the

District Court or the Court of Appeal, could not be regarded as

involving the determination of a serious and genuine dispute for the

purposes of Article 6 para. 1 (art. 6-1). Accordingly, Article 6

para. 1 (art. 6-1) was not applicable in the applicant's case and has

therefore not been violated.