AS TO THE ADMISSIBILITY OF
Application No. 15328/89
by Anders CARLSSON
against Sweden
The European Commission of Human Rights sitting in private
on 6 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 3 June 1989 by
Anders CARLSSON against Sweden and registered on 1 August 1989 under
file No. 15328/89;
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 is a Swedish citizen born in 1942. He is
currently detained in institutional psychiatric care at Sundsvall. He
is a music producer by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 21 October 1988 the applicant was convicted of inter alia
murder by the District Court (tingsrätten) of Stockholm. The
applicant acted as producer for the rock band of which the murder
victim was a member. The applicant was found to have anesthetized and
cut his victim into pieces, which he had dropped in a river. He was
ordered to undergo psychiatric care.
In the river the police had found three plastic bags
containing pieces of a corpse, three empty plastic bags, a suitcase and
four pieces of a rubber foam mattress. On the pieces of the corpse the
police had found hairs which did not belong to the victim. The
autopsy showed traces of homosexual intercourse and diatyletic
(anesthetizing) substances.
In the proceedings before the District Court thirteen
witnesses were heard as well as the doctor who carried out the
autopsy. One of the witnesses heard was the complainant in a case in
which the applicant in 1981 had been convicted and sentenced for
having unlawfully threatened him (by knife and by attempting to
anesthetize him) to have sexual intercourse. The District Court
further had regard to an expert opinion on the skull of the victim, a
biological analysis of food eaten by the victim showing the probable
time of the murder, the results from a fingerprint examination of the
victim, as well as technical investigations carried out in the
applicant's flat showing traces of blood which could be excluded to be
his own, but could not be excluded to have been blood of the victim.
In particular, it was noted that the sub-group of the victim's blood
type was carried by only two per cent of the Swedish population.
Moreover, the District Court had regard to technical
investigations showing that the fibres found on the plastic bags could
have come from a bed frame and a rug in the applicant's flat.
Particles of foam rubber found in the back seat and the boot of the
car which the applicant had been renting at the time of the murder
could not be excluded to have come from the pieces of mattress found
in the river. Particles of foam rubber found on a rug in the
applicant's flat could have come from the same or a similar mattress.
Finally, some of the hairs found on the pieces of the corpse could not
be excluded to have come from the applicant.
In his appeal to the Svea Court of Appeal (Svea hovrätt) the
applicant requested that an opinion by a forensic psychiatrist of
2 September 1988 as well as previous opinions on his mental state and
a case book be reviewed by the Legal Board (rättsliga rådet) of the
National Board of Health and Welfare (socialstyrelsen). He further
requested that a medicolegal opinion as well as a forensic-chemical
opinion be reviewed by the Legal Board. He finally requested that
five new witnesses be heard, among others B.Ö., and that the statement
of one of the witnesses heard by the District Court not be allowed as
evidence.
By decision of 18 November 1988 the Court of Appeal decided to
hear two of the witnesses. As to the three remaining witnesses,
including B.Ö., the Court considered that the circumstances which the
applicant wanted to prove were of no importance in the case. The
remainder of the applicant's request was also rejected.
The Court of Appeal subsequently heard the applicant, the
doctor who carried out the autopsy, witness R.H. and the two new
witnesses. Transcriptions of statements of eight of the other
witnesses heard by the District Court were read out.
On 27 December 1988 the Svea Court of Appeal upheld the
judgment of the District Court.
On 27 January 1989 the Supreme Court (Högsta domstolen) refused
leave to appeal.
On 14 February 1990 the Supreme Court rejected the applicant's
request for a re-opening of the case.
On 14 March 1990 the Supreme Court rejected the applicant's
private action against the President of the Court of Appeal for being
partial when deciding the case, for having wrongfully dismissed
evidence referred to by the applicant and for wrongfully considering
certain other evidence.
It further appears from the file that on 23 November 1989 the
Prosecutor-General decided not take any action against the President.
In the ordinary proceedings before the domestic courts the
applicant was represented by official counsel.
COMPLAINT
The applicant complains that his right to have the witness
B.Ö. examined on his behalf has been violated. He alleges that B.Ö.'s
description of a car seen at the river where the pieces of the corpse
were found as well as his description of the driver of that car could
have shown that the murder was committed by R.H., another member of
the rock band. He invokes Article 6 para. 3 (d) of the Convention.
THE LAW
The applicant complains that his right to have the witness
B.Ö. examined on his behalf has been violated. He invokes Article 6
para. 3 (d) (Art. 6-3-d) of the Convention which reads:
"Everyone charged with a criminal offence has the
following minimum rights:
... to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;..."
The Commission recalls that there is no absolute right under
the Convention for a person charged with a criminal offence to have
witnesses examined on his behalf (No. 8417/78, 4.5.79, D.R. 16 p. 200).
The domestic courts have discretion to decide upon the relevance of
proposed evidence insofar as this is compatible with the concept of
fair trial (Eur. Court. H.R., Engel and Others judgment of 8 June 1976,
Series A No. 22, pp. 38-39, para. 91; Eur. Court H.R., Bricmont
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).
In the present case it has not been shown that the applicant's
allegation before the Commission that B.Ö. could have submitted
information relevant to the case was brought to the attention of the
Svea Court of Appeal or of the Supreme Court. Moreover, the applicant
requested that B.Ö. be heard as witness only before the court of the
second instance. The applicant has not submitted any explanation as
to why B.Ö. was not called as witness already before the court of the
first instance.
Even assuming that domestic remedies have been exhausted for
the purpose of Article 26 (Art. 26) of the Convention the Commission
observes that the District Court heard thirteen witnesses on
circumstantial evidence as well as the doctor who carried out the
autopsy of the victim. Moreover, it had regard to a substantial
amount of other circumstantial evidence. During the hearing before
the Svea Court of Appeal transcriptions of eight of the witnesses
heard by the District Court were read out. The applicant was further
allowed to have two new witnesses heard. During the whole of the
ordinary domestic proceedings the applicant was represented by
official counsel. Having regard to the court proceedings as a whole
there was an equality of arms between the prosecutor and the defence.
In view of the above considerations the Commission cannot find
any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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