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Ängelholm, Sweden 19 Marts 2007
EUROPEAN COURT OF HUMAN RIGHTS - ECHR Council of Europe F-67075 STRASBOURG CEDEX France Also sent by telefax to: 0033 3 88 41 27 30
Request for the Referral of Judgment to the GRAND CHAMBER Application no: 73841/01 Case: Klemeco Nord AB v. Sweden Judgment: Strasbourg, 19 December 2006
With support of Article 43, I, with duly authorized representation for Klemeco Nord AB (hereafter Klemeco), appeal the above mentioned judgement with regard to following legal question.
- The lack of reasoning in the Court of Appeal´s judgment.
Can Court of Appeal’s in Blanco confirmation of lower courts judgement without their own comments or evident consideration of new evidence and arguments, really be considered as a rule of law for higher court in retrying a case according to Article 6, which stipulates an impartial trial particularly in consideration of an objective judgement.
The merits that the case is arguably “exceptional “, and raises a “serious question “:
The writing in Article 6 regarding everybody’s right to “a fair and an impartial trial” must basically concern the judgement and not only acceptable routines and necessary “formally” around the courts activities in its wider meaning. A fair judgement must be the goal of the convention and the real consideration of Article 6! The Article should therefore be clarified in a protocol so that it is pointed out that the over riding criteria for EHCR and the European Convention is an objective and impartial judgement.
According to the rules EHCR is not allowed to do a retrial regarding that the evidence and circumstances brought forward, really has received a fair judgement in the member country in question. The only quality control for a party is hence the national Court of Appeal judgement and evident reasoning. But if the court of appeals would give an “in Blanco” judgement without evidence of either judgement or even mentioning of new acceptable evidence - how can a party (or EHCR) then, be sure that a fair judgement has been rendered in a fair trial in accordance with the Convention? The question is really justified in Sweden, as the Highest Court never takes or accepts for trial, when an advokat (such of a lawyer) has an opposing position in the case, such as in the case of Klemeco.
The least one can request is that higher court in one way or other, shows that it has really considered even the new evidence and arguments. If this is not shown in the judgement, the judgement itself has lost the fairness principle to the parties in question and that both sides have received an impartial and fair trial in all its sense and that justice is accomplished.
It is of course the judgement which should be fair and not only the trial. The latter can be arranged so that outsiders get the feel that the trial was fair. The judgement shall hence be fair and impartial, which of course is not the case if challenge, and invisible outside pressure, corruption among friends or hidden and minute considerations takes place among the judges between one party or among advokater/lawyers/and judges.
- What does it help a party if the trial has been arranged under acceptable procedural forms if the judgement on good ground can be suspected of anything but fair and impartial?
Klemeco regrets that the arguments which were put forward in the trial can be considered respect less as undersigned attacks the gist of the Swedish justice system with the claim that at certain legal positions there are undue considerations taken by the judging lawyers side. It is a common knowledge that within most if not all professions bribes/kickbacks/betrayals and cheating is to a lesser or more degrees a way of life. Nothing says that so is not the case among advokater/lawyers, among the courts as well, there it can be done with collegial secrets and with the help sensitive handling and writing in the formulation of a judgement. Even disregarding retrial or letting higher court try the case As temptation to cheating increases and the persons conscience is not up to speed so to say even the minute collegial corruption on all level can take place. Historical there are a number of examples on doubtful judgements (compare The Chancellor of Justice - JK in Sweden, discussion regarding innocent convicted people.)
To the picture regarding the controversy between Klemeco and advokat A. there are two lawyers (S. Jernryd and U. Jönsson, Lund) and the law professor who is considered the foremost authority on lawyers responsibility and duties towards its clients (Lars Heuman, Stockholm), unanimously in a 23 page trial official report, which said that A. had been respect less and careless while handling the case for Klemeco in the lower court in Malmö, Sweden - case NJA 1992 s.403. See following quote verbatim signed by the lawyer S. Jernryd. Quote: “My conclusion is that Lawyer Ström has proceeded careless and is responsible for damages demand against klemeco by neglecting at the main deliberations not to use a previous mentioned claim for damages and not letting the court rule on claimed damages (point 5.1 agreement 30/1 1996 between klemeco and Jernmanufaktur)”. See enclosed letter to the above legal case, appendix 1.
The legal report was used by Klemeco in the trial against A. in the court of Ängelholm and besides a very full and richly evidence act. The prime cause for our actions was that A. during three years of pre hearings and depositions had used the breach of a legal contract against the clause 5.1. This point was not used during the main proceedings in spite that witnesses had been called to support this breach of contract and without A. had been discussing this with his client. The Supreme court of Sweden emphasized the de facto in their judgement (NJA 1992 s. 403) the importance of clause 5.1 and gave in their supporting comment expression that they were surprised that 5.1 had not been used by A. The strange behaviour of advokat A. can be seen in light that she had been influenced by a previous half owner to Klemeco, who had in spite of competition prohibition had allied himself with Klemeco´s contractual partner and opposing party – Jernmanufaktur AB. A.´s strange behaviour can hardly be explained in another way, there are many indices that can make one to believe in a conspiracy.
That the dispute regarding responsibility against A. was complex can be vouched for. The whole thing was that it was about a trial, were responsibility was demanded for disloyalty or omission in another already dispute which had been decided on (see NJA 1992 s. 403). The complexity was not lessen because A. undertook a procedural coup some day before the main proceedings took place at Ängelholms court, by delivering 28 (twenty eight) pages new material (the courts appendix 92 B ) to each and one of the judges. Klemeco received the legal papers by mail the evening after the first day of deliberations and hence could not argue favourably against the new statements. Klemeco brought forward in their appeal to the Court of appeal new sensational information and more contradictory statements (from the lower courts appendix 92 B). Because A.´s surprising illegal actions, the Court of Appeal was “forced” to accept 11 (eleven) new pertinent evidences regarding A.´s factual derelictions regarding the main legal basic grounds.
The Court of Appeal knew with all certainty that there was missing guiding principles and court cases regarding lawyers responsibility in Sweden and that Klemeco´s case involved large claimed damages and that the actual legal questions and the material content was of large public interest. Further the Court of Appeal knew very well, that Klemeco had been exposed to an unethical procedural coup by advokat A. Undersigned had even publicly debated lawyers duties and responsibility in both the daily press as in special literature, which in turn had created a certain media interest. All this included should have made the Court of Appeal to discuss the arguments put forward and give a complete judgement which Klemeco required. Research has shown that the Court of Appeal always give their own reasoning for their judgement when an advokat (“lawyer”) is representing the dissatisfied client. In Blanco judgement only happens when such a lawyer is missing.
In Klemeco’s material to EHCR it must be said that the most important cause for claim of damages was A´s neglect to not let the Court in Malmö try the contractual breach of point 5.1. It is noticeable that EHCR wrongfully has given the main reasoning “in particular” was not to cite the standard agreement EÅ85, which had a subordinate reasoning.- actually the fourth in order! As a second reasoning Klemeco brought forward that A. had not cited the letter exchange. This showed the minimum conditions for an exclusive representation on the whole should be discussed by the contractual adversary.
Not least against a background by the legal inquiry it is suspicious that the Court in Ängelholm considered that “A. had handled her commission with complete care and skilfulness “. The intention with the court’s groundless so called free of responsibility letter to A. must be with fair minded judgement to cut the legs of Klemeco, so to speak and make it impossible to follow up in a higher court and with a possibility to change the final outcome of the judgement. The strategy was facilitated by the fact that Klemeco had used up its legal right to financial support and lost all its assets because of the previous dispute in NJA1992 s.403. They could not be represented by a lawyer because of financial cost, but only by its representative ever more legal knowledgeable person. The question is if EHCR consider the court’s grade on A. is completely reliable with the reasoning that the grade was clarified with “care and skilfulness”! In such case this is a clear sign that dubious court judges are adding to their statement, in order to give the judgement a sense of complete reliability. Hence the higher court does not need to give their own reasoning for their judgement. Is this rule of law according to Article 6?
EHCR disregard that Klemeco has shown that in Sweden there are a systematically positive Special handling of certified lawyers (advokater), which in turn has conveyed that no client has been awarded one single Swedish crown (or penny) in claimed damages in a judgement which has become law. This is noticeable as over thousand of disputes have come to the courts during the years. There are no judicial decisions either from the Court of Appeal or The Supreme Court which give the lawyers (advokaterna) adversary or not even states what demand we the public has right to put on our advokater/lawyers who act on our behalf!
This clearly noticeable favouritism has recently been shown in an unequivocal research report ”Canis non est Canem” by the Legal Institute at Stockholm University (previously e-mailed to EHCR). I quote from it: “In conclusion it can be said that the possibility of the client to success in a case for claimed damages against a lawyer is if not non-existent in any case minimal…. As long as the civil procedure is the way it is today, the client should be told not to proceed with a case against his lawyer in asking for damages.”
Other official research regarding lawyer’s special position (of advokater) has not been taken place in Sweden. However the undersigned has during 12 years time period ( since1994) through about 20 discussion articles in the press, special literature, magazines and radio and TV-media requested proof that my statement that the Swedish lawyers (advokater) and its association receive a positive and special treatment when they are up against lawyers, which has misused their position and mismanaged their clients. In Sweden the largest business paper DagensIndustri gave one of my articles (27/5 2000) cause to over 15 letters to the editors discussing their similar situations with negative experience regarding their lawyers who had represented them. Not a single exception to this rule has been reported. Hence since March 2006 were are on Internet request for information (www.srsf.se) regarding eventual contradictory evidence with respect of at least one case which has become law and were the client has won against his (advokat) lawyer. So far no case has been presented. Unfortunately it seams that Sweden´s highest legal official The Swedish Justice Chancellor, JK and even JO, has not taken up the situation that something is wrong when the scale of justice is tipped 100 against 0 (one hundred against zero!) in a long perspective. The hope stands to the fairness and drive for justice among the judges at EHCR. The undersigned states accordingly that the courts of Sweden in cases which has become law has always freed the Swedish lawyer from responsibility in disputes between lawyers and its clients. This is a surprising pattern which is as evident as a pattern can be. Reasons for this are several.
At the bottom is firstly the specific unique position Swedish lawyers (advokater) have in comparison with the rest of Europe. Lawyers association (Sveriges Advokatsamfund) is a guild in a fraternity which was demolished already during the 19th century. Remarkable for a civil state which is govern by rules and laws that there is no democratic panel, but the guild itself which decides who can be a member and enjoy the far-reaching privileges which the Swedish parliament decided on should govern for members of the legal association guild. The title “advokat” is a professional title which is protected by Swedish law. Already elected members can through its vote forbid a lawyer membership, maybe just the lawyer who has acted too strongly on behalf of its clients against lawyers for the opposing side. “Advokat” usually performs his legal affairs in the city were his office is situated at. Because of its privileges and that the court only choose and elects lawyers as public defenders with its “one room privileges”, its monopoly at group cases, its bankruptcy cases etc, the Swedish lawyer is something of the courts sworn service man, with an evident impression of a person of authority. This position has no equivalent in the rest of Europe in spite that the lawyers are free business professionals or separate employees. The 4 400 lawyers have besides monopoly based upon rule of laws, they also have their own board of supervision.
Klemeco case ought to show that the quality control at civil disputes in Sweden does not always function at their courts. This in turn seams to depend on corruption among friends when they have no functional arguments against clients who claim damages against the guild members. Besides that the Courts of Appeal are allowed to give “in Blanco” judgements, the Supreme court has not during the last 60 years accepted cases of civil nature in which a lawyer is a part of the dispute. The Supreme Court does not have to give their reason or reference to previous cases the court has used in not accepting these types of cases. Such information would otherwise be easy to give as the Supreme courts decision should be based on cases which has become law and are guiding for new cases.
Another reason is that lawyers (advokater) usually work two-three years after law school at the courts and this is also one of the most common important prerequisite for becoming a member in lawyer’s guild. This in turn will enable them to many of their business and case load in the future. As in all profession friendships are developed on courses and conventions which is of course legal. The problem in a small country such as Sweden are that potential friendship ties very often arises and participating lawyers and judges often has a strong belief that a lawyer will exclude himself from a case which involves a colleague and that he or she can remain neutral to the interest which are in disputes.
Because the socialist Democratic Party has basically been in power for over 40 years Sweden has emerged as a strong social state with many so called “guardian” agencies. Because of regulation, rules and praxis, Sweden today has a juris prudence or legal culture, which protects and without responsibility for authorities and people. (In these agencies with an authority position.) The courts are not free from the state. In difference to other countries it is the Swedish government which without public scrutiny and public discussion and with no public record appoints about 150 of the highest judges in Sweden and appoints judges for lower courts. In the other Scandinavian countries a judge can only be replaced through the court system. In Sweden the government can do so. The lawyer who does not serve the political power risks his carrier. In order to complete justice and freedom from outside pressure a country needs independence among its top legal judges. In Sweden that is today not the case. Eminent social scientists regards Sweden being a nation "suffering from denial" in comparison to the other European nations, who after the Second World War took measures against Nazi-collaborators and other crime collaborators to prevent further abuse of public powers. The situation in Sweden's courts and authorities is clearly violating the U.N. Basic Principles of the Judiciary, GA resolution 40/32, Article 10 (Qualifications, selection and training) and the U.N. Convention against Corruption.
The Swedish rules of challenge and court rules are very old and are without any strong penalty clause. At a dismissal there are many legal services which can be useful with a judge or lawyer. The compulsion for the lawyer (jurist) as a judge to be objective and separate matters of importance and people is not that demanding.
Finally there are perhaps strange explanations such as the impossibility that an advokat can commit a mistake or not be loyal towards his or her client. The absurdity that because the courts must strive for equality and unanimous legal correctness in the whole country, this in turn gives the conclusion that advokater can not be neglectful intentional or unintentional as this has never happened before. The more this pattern is cemented it seams that it makes it harder or almost impossible to adjust the law, for the Supreme Court (HD).
Undersigned will remind you once again that Swedish courts in general not always report the parties lodged circumstances correctly. In any case, particularly cases which involves claims made by clients against their own lawyers. Specific research shows that that is the case when it is evident that the lawyer through a factual and objective judgement cannot escape to be convicted of neglect. At this time arguments, reasons and evidence, are misunderstood intentionally by the courts! Are there no possibility to angle or wrongly weigh, invoked evidence and arguments the judges has no other possibility then to undermine or distort the reasoning and circumstances the client has invoked. These non legal procedure are in it self very serious, than that EHCR in previous judgement wrongfully has used in its conclusion as the main reason in the Klemeco´s case against A, that it was the circumstances around standard contract EÅ85 and not A.´s neglect fullness by not invoke the breach of contract against clause 5.1.
In Klemeco´s case the Court of Appeal could hardly “formulate away” Klemeco´s new relevant evidence or other strong flow of evidence from the lower court, as a case in Court of Appeal can be used for legal research. The goal of the courts were that A. should go “free” as was the common pattern in such a case, the Court of Appeal decided not to write anything at all and hoped that Klemeco´s representative would not go on fighting. A cynical and very unjust way of behaviour.
In the application 11071/03 the applicant complained (as Klemeco did) on the favouritism of advokater in civil disputes in Sweden. Undersigned has been informed that former chairman for the lawyers’ guild in Sweden (Advokatsamfundet), E. Fura Sandström, was one of the three judges, who dismissed the case because of challenge. (See decision the 13th of November 2003 and subsequent letter to EHCR the 15th of December 2003 and 13th of May 2004). Undersigned knows that every type of challenge and consideration by a colleague should be prohibited in the European Court of Justice. With consideration that Klemeco´s case involves Swedish judges and lawyers and its inner functions and special reliance, the undersigned has reason to request that this case is settled without assistance of judges and lawyers at EHCR, who in any case whatsoever can have any connection with the Swedish justice system.
Undersigned will continue to act from viewpoint of social responsibility and realize that the criticism regarding undue considerations in the Swedish courts are extremely serious and can be seen as respect less and ferocious. Nevertheless the choice of words is not worse than what the situation deserves. Proven experience from many companies and singled persons who have innocently suffered losses must be known and shown the “daylight”. Maybe this will mean that Klemeco´s “respect less” assertion, that the company will not be given a retrial of its legal complain by The Great Chamber. The belief of the undersigned has always been that only full and complete openness and honest exchange in the spirit of god ethics and sound fairness of justice can repair the unfair state of conditions, which constantly are discovered in all countries and in connection regardless of importance and status. The hope stands therefore to a sensitive change through EHCR, even if it is a difficult and pain full revision, which will be forced to “daylight” later through the modern way of spreading information.
Supplement: The applicant company will hereby state that the judgment of ECHR Court about the length of the proceedings can be fully accepted by Klemeco.
Yours faithfully,
Bertil BURSTRÖM (representative for KLEMECO NORD AB) /Legal Counsellor to small businesses enterprises -SME and free Innovators/ /Public Judge at Jurynämnden in Skåne / Nämndeman vid Jurynämnden i Skåne/ /Public Judge at the Court of Appeal 2003-2006 / Nämndeman vid Hovrätten över Skåne och Blekinge 2003-2006/ /Member of Board of Directors of four municipal companies in Ängelholm/ /Member of Board of Directors of the cultural Society TANKE och KÄNSLA/ /Vice President of the foundation the Legal Aid Fund (Rättsstödsfonden)/ /Member of Board of Directors of two Inventors associations/…
Address:
Össjö-Boarpsvägen 80, SE- 266 91 Munka Ljungby, SWEDEN Appendix: 1 (Missive to Legal Investigation)
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