AS TO THE ADMISSIBILITY OF
Application No. 12254/86
by Tommy ASKLÖF
against Sweden
The European Commission of Human Rights sitting in private
on 2 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 July 1986 by
Tommy Asklöf against Sweden and registered on 9 July 1986 under file
No. 12254/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1952. He is a
student and at present he is serving a prison sentence at Åkersberga,
Sweden.
On 16 August 1984 an arrest warrant was issued against the
applicant on the ground that he was suspected of having committed grave
robbery and other offences. The applicant was subsequently arrested in
Copenhagen, Denmark, and he was extradited on 21 August 1984 to Sweden
where he was placed under arrest. On 24 August 1984 the question of
detention on remand was examined by the District Court (tingsrätt) of
Malmö. After hearing the parties and after an evaluation of the
material which was available at that stage of the investigation the
Court found that there was reason to suspect that the applicant had
committed, among other offences, fraud and grave robbery. Furthermore
the Court found that there was reason to believe that the applicant if
at large would abscond, commit new similar offences and impede the
investigation. For these reasons, and since the minimum punishment for
grave robbery was not less than two years' imprisonment, the Court
decided to detain the applicant on remand.
On 21 August 1984, a decision was taken to restrict the
applicant's right to receive visitors and to control his
correspondence and telephone communications. A further decision in
this respect was taken on 24 August 1984 when the applicant also
signed a document in which he gave his consent to control of his
correspondence. As from 5 November 1984 the said restrictions were
no longer in force.
On 9 October 1984 the applicant was charged before the
District Court with grave robbery, fraud, assault, drunken driving
and driving without a driving licence.
While the applicant was placed in detention on remand and
during the initial investigation of the case the applicant had several
telephone conversations with his officially appointed defence counsel
Mr. Lars Lundquist. It appears that during the first month of
detention the applicant could only use a telephone placed in a staff
room where the prison officers and others could listen to the
conversation. The applicant complained about this and it appears that
after approximately one month the applicant could, with the use of an
extension cord, call his counsel from the cell. The applicant does
not allege that his right to communicate confidentially with his
defence counsel was in any other way interfered with.*
___________________
* Chapter 21 Section 9 of the Swedish Code of Judicial Procedure
(rättegångsbalken) gives an officially appointed defence counsel an
absolute right to visit and communicate in private with the arrested
or detained person whom he defends. The Act concerning the treatment
of arrested and detained persons (lagen om behandling av häktade och
anhållna) provides for a similar right to confidential correspondence
with an officially appointed defence counsel (Section 9) and to
confidential telephone conversations with him (Section 12).
During the same period of the initial investigation of his
case the applicant, on 30 October 1984, sent a letter to the European
Commission of Human Rights. In accordance with the restrictions
placed on the applicant's correspondence the letter was sent to the
public prosecutor for scrutiny. On 1 November 1984 he decided that
the letter could be forwarded to the Commission. Having reached
France, however, it appears that due to insufficient postage the
letter was returned to the applicant, who received it approximately
three weeks later.
The applicant complained about this incident to the Chancellor
of Justice (justitiekanslern) maintaining that the letter had never
been sent to the European Commission of Human Rights. He also
complained of the period during which the police allegedly listened
to his telephone conversations with his defence counsel.
The applicant further states that during the preliminary
investigation certain confrontations between him and other persons, in
connection with the bank robbery which he was suspected of having
committed, were cancelled by the police, because they did not want his
lawyer, Mr. Lundquist, to be present. However, this problem was
finally resolved when the public prosecutor made it clear that Mr.
Lundquist naturally was entitled to be present at the confrontations.
The applicant's trial was held before the District Court of
Malmö on 2 November 1984. The Court heard the applicant, who was
assisted by counsel, as well as a number of witnesses. After an
evaluation of their statements as well as an evaluation of the written
material submitted the Court found the applicant guilty of the charges
brought against him and sentenced him to four years and six months'
imprisonment.
The applicant as well as the public prosecutor appealed against
this judgment to the Court of Appeal (hovrätten) on 23 November 1984.
The applicant requested the Court to acquit him of the robbery charge,
to consider the assault as being of a minor character and finally to
reduce the prison sentence imposed. On 21 December 1984, the Court of
Appeal, after a new oral hearing, increased the sentence to five years'
imprisonment.
On 12 or 13 December 1984, i.e. while the appeals were pending
before the Court of Appeal, the applicant was told that he was to be
transferred from the house of detention at Helsingborg to the Kumla
prison, which is a prison for convicted prisoners. He protested and
stated that there was no final judgment against him. He was then
overpowered by six to ten persons, handcuffed and brought by force to
Kumla. About ten days later the legal documents which he had kept in
his cell arrived, but some of the material was missing.
On 15 January 1985 the applicant asked the Supreme Court
(Högsta domstolen) for leave to appeal against the judgment of the
Court of Appeal. However, on 5 February 1985 the Supreme Court refused
to grant leave to appeal.
The Chancellor of Justice's investigation of the applicant's
complaints came to an end in April 1985. In his decision of 15 April
1985 the Chancellor of Justice stated as follows:
"According to Section 12 of the Act concerning the treatment
of arrested and detained persons (lagen om behandling av
häktade och anhållna), detainees have a right to phone
persons outside the place of detention insofar this can be
done without unnecessary disturbance. If necessary, due to
security measures or certain other circumstances, the
conversation shall be tapped. It is prohibited, however, to
listen to telephone conversations between the detained
person and his official defence counsel.
In this case the prison governor has submitted that the
telephone conversations were not tapped but supervised because
the conversations took place in a staff room. Even if it did
not amount to planned tapping, the system used meant that
the applicant could not talk with his defence counsel in
private. This cannot be considered as being in accordance
with the above-mentioned provision concerning the prohibition
against listening to telephone conversations between the
detained person and his defence counsel. The procedure,
which according to what has been submitted by the public
prosecutor may have been due to practical problems, has been
changed. I assume that one will not revert to the previous
procedure and thus I find no reason to pursue the matter
further."
Regarding the letter sent to the European Commission of Human
Rights the Chancellor of Justice stated as follows:
"The letter to the European Commission of Human Rights was
addressed to somebody other than a Swedish authority or the
defence counsel. Since the applicant was subjected to
restrictions in his mail the letter was checked by the
public prosecutor before it was sent. From the documents in
this case it appears that the letter was sent through the
public prosecutor's office on 1 November 1984. From the
copy of the letter which the applicant has submitted it
appears that the letter was postmarked at the post office of
Malmö 4 on the same day and at the post office of Malmö Ban
on 2 November 1984. Accordingly I cannot find support for
the allegation that the letter was never sent from the public
prosecutor's office or from Sweden. Neither do I find
support for the allegation that the stamps and the French
stamp which was subsequently attached to the letter were
fabricated by the public prosecutor. Why the letter has been
returned is not a question which I should pronounce myself
upon.
Accordingly I cannot find that anybody under my supervision
has acted wrongly while dealing with the applicant's letter
to the Commission."
COMPLAINTS
The applicant is of the opinion that his conviction cannot
be regarded as valid in view of the manner in which the public
prosecutor's office has handled the case brought against him. In
particular he refers to the fact that for a certain period of time the
police listened to telephone conversations between him and his defence
counsel. He refers in this respect to Article 6 paras. 1, 2 and 3 of
the Convention.
The applicant also invokes Article 25 of the Convention
maintaining that the letter addressed to the European Commission of
Human Rights was never sent from the prosecutor's office. Accordingly
the Swedish authorities prevented him from the effective exercise of
his right to contact the Commission.
THE LAW
1. The applicant has complained of the manner in which the
preliminary investigation has been conducted and has in particular
alleged procedural errors in regard to his telephone conversations
with his defence counsel and in regard to his correspondence with the
Commission. He states that he has been wrongly convicted and
sentenced after an incorrect trial.
With regard to the applicant's conviction and sentence the
Commission recalls that, in accordance with Article 19 (Art. 19) of
the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236
; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31,45).
The applicant complains, in particular, that for a period of
approximately one month he was unable to have private telephone
conversations with his defence counsel and that he was thereby denied
the right secured to him under Article 6 paras. 1, 2 and 3
(Art. 6-1, 6-2, 6-3) of the Convention.
The Commission notes that the right of a person who is
arrested or detained on remand to communicate confidentially with his
defence counsel is guaranteed by different provisions in Swedish law.
According to Chapter 21 Section 9 of the Swedish Code of Judicial
Procedure (rättegångsbalken) a defence counsel appointed ex officio to
defend the arrested or detained person has an absolute right to see
that person and to communicate with him in private. Moreover, Section
9 of the Act concerning the treatment of arrested and detained persons
provides that letters from the detainee to his officially appointed
defence counsel shall be forwarded without any control. Section 12 of
the same Act prohibits the listening to telephone conversations
between the detained person and his officially appointed counsel.
In the present case, however, it appears that for about a
month it was possible for prison staff or others to overhear telephone
conversations between the applicant and his lawyer, since the telephone
conversations took place in a staff room in the prison. The
Chancellor of Justice found that this was contrary to the above-
mentioned Section 12 but decided not to take any further action, since
the applicant had then already been provided with the necessary
facilities for having confidential telephone conversations with his
lawyer.
In these circumstances, and also having regard to the fact
that the applicant has not alleged that he had, contrary to Swedish
law, been denied the right to receive visits from his defence counsel
or to correspond with him in writing, the Commission cannot find that
his rights of defence in the criminal proceedings were prejudiced in
violation of Article 6 (Art. 6) of the Convention.
The Commission finds no indication that the applicant's rights
of defence had been violated in any other respect.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 of (Art. 27-2)
the Convention.
2. Insofar as the applicant complains of an interference by the
Swedish authorities with the applicant's correspondence with the
Commission, it is recalled that, under Article 25 para. 1 (Art. 25-1),
second sentence, of the Convention, the High Contracting Parties who
have recognised the right of individual petition "undertake not to
hinder in any way the effective exercise of this right". The
Commission here notes that the Swedish Chancellor of Justice made
enquiries but that nothing emerged which could support the applicant's
allegations that a letter had not been sent to the Commission. The
Commission further notes that the applicant has been able to present
his case to it effectively. In these circumstances the Commission
concludes that it need not take any further action in respect of the
alleged interference with the applicant's effective exercise of the
right of individual petition within the meaning of Article 25 (Art.
25) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE and
DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE
ALLEGED INTERFERENCE WITH THE APPLICANT'S CORRESPONDENCE
WITH THE COMMISSION
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)