AS TO THE ADMISSIBILITY OF
Application No. 28393/95
by Clarence BOHLIN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 December 1994
by Clarence Bohlin against Sweden and registered on 31 August 1995
under file No. 28393/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1952, resides in
Stockholm. Before the Commission he is represented by
Mr. Karl Potapoff, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 1 August 1989 a third person mistakenly deposited 46,000 SEK
on the post office account of a company of which the applicant was the
sole representative. On 26 October 1989 the applicant withdrew the
amount. He held the cash until the post office requested him, on
13 March 1990, to repay the money to the correct account, which he did
on 9 May 1990.
The applicant was later charged with fraudulent conversion
(olovligt förfogande) under Chapter 10, Section 4 of the Penal Code
(Brottsbalken), which provides the following:
(Translation)
"A person who ... takes measures with regard to property
which is in his possession but to which ownership or a lien
is reserved or secured or otherwise due to another person,
whereby the other person is deprived of the property or his
or her rights, shall be convicted of fraudulent conversion
and sentenced to a fine or imprisonment for a period not
exceeding two years."
In his defence, the applicant stated that he had received, within
a week of the deposit, a statement of account indicating that the above
amount had been deposited on the account. As he had at that time some
problems with the tax authorities, he did not want to have the money
on the account. He therefore withdrew the money and kept it in a drawer
at home. As he had not had in his possession the cash which the third
person had actually deposited on the company's account, he maintained
that his conduct was not criminal.
By judgment of 9 April 1991, the District Court (Tingsrätten) of
Stockholm found the applicant guilty of the charge against him and gave
him a suspended sentence. The judgment was upheld on appeal by the Svea
Court of Appeal (Svea hovrätt) on 27 February 1992.
The applicant appealed to the Supreme Court (Högsta domstolen).
He claimed that his conviction was based on an unlawful analogous
application of Chapter 10, Section 4 of the Penal Code. He maintained
that this provision required, inter alia, that property owned by one
person had been transferred to another person. The person who had
deposited the amount in question could not, however, claim ownership
to the specific banknotes and coins deposited on the post office
account. That person could only claim the deposited amount and this
claim had allegedly not been affected by the applicant's withdrawal.
On 12 July 1994 the Supreme Court upheld the Court of Appeal's
judgment, finding that the different criteria of Chapter 10, Section 4
of the Penal Code were at hand. In particular, the Supreme Court
considered that, following the withdrawal of the money in question, the
applicant had had in his possession property belonging to another
person. The Court further noted that the acts of this kind had long
been considered as fraudulent conversion. It referred to four Supreme
Court judgments from 1947, 1954, 1992 and 1993. In the two earlier
judgments, the accused had been convicted of fraudulent conversion. In
the later judgments, the conduct had been classified as fraud
(bedrägeri), a more serious offence, due to the particular
circumstances of those cases. The Supreme Court noted that the conduct
in question had never been exempted from punishment.
COMPLAINT
The applicant complains, under Article 7 of the Convention, that
his conviction was based on an unlawful analogous application of the
Penal Code.
THE LAW
The applicant claims that his conviction was based on an unlawful
analogous application of the Penal Code. He invokes Article 7 (Art. 7)
of the Convention, which reads as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
2. This Article shall not prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognised by civilised
nations."
The Commission recalls that however clearly drafted a legal
provision may be, in any system of law, including criminal law, there
is an inevitable element of judicial interpretation. There will always
be a need for elucidation of doubtful points and for adaptation to
changing circumstances. Indeed, the progressive development of the
criminal law through judicial law-making is a well entrenched and
necessary part of legal tradition. Article 7 (Art. 7) of the Convention
cannot be read as outlawing the gradual clarification of the rules of
criminal liability through judicial interpretation from case to case,
provided that the resultant development is consistent with the essence
of the offence and could reasonably be foreseen (cf. Eur. Court H.R.,
S.W. v. the United Kingdom judgment of 22 November 1995, Series A no.
335-B, para. 36, and C.R. v. the United Kingdom judgment of 22 November
1995, Series A no. 335-C, para. 34).
In the present case, the applicant maintains that the person who
had deposited the amount in question on the post office account could
not claim ownership to the specific banknotes and coins. The
applicant's conduct was therefore not criminal under Chapter 10,
Section 4 of the Penal Code, as that provision required, inter alia,
that property owned by one person had been transferred to another
person.
However, although banknotes and coins are not distinguishable and
the person who had deposited the amount on the company's account,
therefore, could not claim ownership to the specific notes and coins
deposited, the Commission finds that the Supreme Court's conclusion
that the applicant, by withdrawing the money, had come into possession
of property belonging to another person was consistent with the essence
of the offence as defined by the relevant legal provision.
The Commission further notes that the Supreme Court's judgment
was in line with its long established case-law. It was thus
foreseeable, with appropriate legal advice, to the applicant that his
conduct constituted a criminal offence under Swedish law.
Consequently, the applicant's conviction was not incompatible
with Article 7 (Art. 7) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 7-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy