AS TO THE ADMISSIBILITY OF
Application No. 20959/92
by C.P. H.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 September 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 17 June 1992 by
C.P. H. against Sweden and registered on 18 November 1992 under file
No. 20959/92;
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
a. The particular circumstances of the case
The applicant is a Swedish citizen born in 1943 and residing in
Malmö. He is the founder of a political party, the Skåne Party
(Skånepartiet), aimed at establishing independence for the region of
Skåne. Before the Commission he is represented by Mr. Bertil Malmlöf,
a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 15 December 1990, the applicant and his cohabitee travelled
by ferry to Copenhagen. While driving home upon return to Malmö, they
were stopped by the police and the applicant was taken to hospital
where a blood-test was taken. The test showed a 2.19 permillage of
alcohol in the applicant's blood. The applicant was, therefore, later
charged with aggravated drunken driving. He claimed, however, that his
cohabitee had been driving the car on the occasion.
On 27 May 1991 the District Court (Tingsrätten of Malmö) found
the applicant guilty as charged and sentenced him to one month's
imprisonment. The Court consisted of one judge and three lay judges
(nämndemän). The lay judges are appointed through political elections
and the lay judges sitting on the occasion were all members of
political parties different from the applicant's. During the trial the
applicant wanted to examine the witnesses for the prosecution himself,
but the judge directed him to put all questions through his public
defence counsel.
The applicant appealed to the Court of Appeal (Hovrätten of Skåne
and Blekinge), requesting 1) that the District Court judgment should
be quashed and the case be referred back to that Court for re-
examination, or 2) that the Court of Appeal should acquit him. The
applicant supported his first request by claiming that a grave
procedural error had been made in the District Court when he was
refused to examine the witnesses himself, thereby denying him his right
under Swedish law to plead his own case.
On 9 August 1991 the Court of Appeal rejected the applicant's
request for the case to be referred back to the District Court. The
Court of Appeal stated that if the decision not to allow the applicant
to examine the witnesses himself was to be considered a procedural
error, it could nevertheless be rectified in the proceedings in the
Court of Appeal.
On 4 November 1991 the Court of Appeal upheld the judgment of the
District Court. In the hearing before the Court of Appeal the applicant
was allowed to put questions to the witnesses himself.
The applicant then appealed to the Supreme Court (Högsta
domstolen), maintaining that the case should be referred back to the
lower courts or that he should be acquitted.
On 3 February 1992 the Supreme Court refused leave to appeal.
b. Relevant domestic law
In criminal cases the District Court is composed of one judge,
who is legally trained and qualified, and three or five lay judges, who
usually have no legal training. The Court of Appeal is, in these cases,
composed of three professional judges and two lay judges. The lay
judges are appointed through elections held by, respectively, the
Municipal Assembly and the County Council. The political affiliation
of the elected lay judges normally reflects the political situation in
the Assembly or the Council. However, according to Chapter 4, Section
7, subsection 4 of the Code of Judicial Procedure (rättegångsbalken),
the aim should be a diversified composition as regards age, sex and
profession.
Chapter 4, Sections 13-15 of the Code of Judicial Procedure read,
in so far as relevant, as follows:
(translation)
Section 13:
"A judge's right to hear a case may be challenged:
...
9. if otherwise there are special circumstances likely to
undermine confidence in his impartiality in the case."
Section 14, subsections 2 and 3:
"If a party wishes to challenge a judge's impartiality, he shall
state his objections when he pleads for the first time in the
case, after he has been informed that the judge is on the bench
or otherwise deals with the case, or, if the particular fact on
which the challenge is based was then unknown to the party, after
he has been informed thereof. If the party fails in this respect,
his right to so challenge is forfeited.
Such a challenge in respect of a lower court judge may not
be heard by a superior court, unless the challenge in the
superior court is lodged by a party entitled under subsection 2
or is an appeal against a decision to reject the challenge."
Chapter 4, Section 15, subsection 2:
"If a party has lodged, in time, a challenge to a judge's
impartiality, the court shall, as soon as possible, deliver a
separate decision on the matter."
Chapter 49, Section 3 of the Code provides for the following
appeal procedure:
(translation)
"If the District Court in the course of the proceedings has
decided to reject a challenge to a judge's impartiality ... , the
party who wishes to appeal against the decision shall give notice
of exception. Such notice shall be given immediately, if the
decision has been pronounced at a hearing, or, otherwise, within
a week from the date on which the party was informed of the
decision. If the party fails in this respect, he may no longer
appeal against the decision. ..."
The above provisions concern legally trained and qualified judges
and lay judges alike.
COMPLAINTS
1. The applicant claims that he has been deprived of a fair hearing
by an independent and impartial tribunal contrary to Article 6 para.
1 of the Convention. He alleges that the three lay judges in the
District Court were known to be antagonistic to, disrespectful of and
prejudiced against the applicant's party. Furthermore, the District
Court trial having been preceded by adverse publicity in the media, he
felt that the judges were prejudiced against him from the outset. The
applicant submits that the Swedish criminal justice system does not
recognise the right to challenge the impartiality of a lay judge on
political grounds.
2. The applicant also submits that in the District Court he was
denied the opportunity to examine on his own the witnesses for the
prosecution. For this reason, significant information which would have
influenced the outcome of the case did not come forth. He invokes
Article 6 paras. 1 and 3 (d) of the Convention.
3. The applicant further complains that, because of the unfairness
of the proceedings in the District Court and the Court of Appeal's
failure to refer the case back to the District Court for a new trial,
he has been denied his right to a review by a higher tribunal. He
maintains that the Supreme Court grants leave to appeal only in
exceptional circumstances. In this respect, he invokes Article 2 of
Protocol No. 7 to the Convention.
THE LAW
1. The applicant claims that, since his case was heard by the three
politically elected lay judges in the District Court, he has been
deprived of a fair hearing by an independent and impartial tribunal
contrary to Article 6 para. 1 (Art. 6-1) of the Convention. He alleges
that the three lay judges were known to be antagonistic to,
disrespectful of and prejudiced against the applicant's party.
However, the Commission is not required to decide whether or not
the facts submitted by the applicant in this respect disclose any
appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention as, under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been
exhausted.
In his appeals to the Court of Appeal and the Supreme Court the
applicant did not challenge the impartiality of the lay judges or make
any other statements that would cast doubt on the District Court's
independence or impartiality. He claims that he could not lodge a
successful challenge since Swedish courts would not recognise a
challenge on political grounds.
The Commission recalls that, in the examination of an individual
application under Article 25 (Art. 25) of the Convention, it must
confine itself to the facts of that particular application (cf.
No. 10941/83, Dec. 3.12.86, D.R. 51 p. 41). Thus, it will not make a
general review of, for instance, the compatibility with the Convention
of the system of political elections of lay judges. For the purpose of
determining whether the applicant in the present case has exhausted
domestic remedies it is sufficient to determine whether he could have
challenged in Swedish courts the impartiality of the lay judges sitting
on his case on the grounds he has invoked in his application to the
Commission.
The Commission considers that it was possible for the applicant,
under Chapter 4, Section 13, subsection 9 of the Code of Judicial
Procedure to challenge the impartiality of the three lay judges in the
District Court by claiming that they were known to have hostile views
on the applicant's party. Provided that he complied with the procedural
rules, he would have been able to appeal to the Court of Appeal.
Furthermore, according to the Commission's consistent case-law, the
mere existence of a doubt as to the effectiveness of a particular
remedy does not itself excuse an applicant from the requirement to
exhaust it (cf. No. 9586/82, Dec. 14.5.87, D.R. 52 p. 38). In this
respect, the Commission concludes that the applicant has not shown that
a challenge in Swedish courts was bound to fail. The Commission,
therefore, further concludes that no special circumstances existed
which might have absolved the applicant from exhausting the domestic
remedies at his disposal.
It follows that in this respect the applicant has not satisfied
the requirement as to exhaustion of domestic remedies contained in
Article 26 (Art. 26) of the Convention. This part of the application
is, therefore, inadmissible by virtue of Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant submits that in the District Court he was denied
the opportunity to examine on his own the witnesses for the
prosecution. He invokes Article 6 paras. 1 and 3 d) (Art. 6-1, 6-3-d)
of the Convention, which, in so far as relevant, read as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. 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 guarantees contained in para. 3 d) of Article 6 (Art. 6-3-d)
are specific aspects of the general concept of a fair hearing set forth
in para. 1 of the same Article (cf. Eur. Court H.R., Bönisch judgment
of 6 May 1985, Series A no. 92, p. 14 et seq., para. 29). Furthermore,
the question whether a trial conforms to the standards laid down in
para. 1 must be decided on the basis of an evaluation of the trial in
its entirety (cf., e.g., No. 11058/84, Dec. 13.5.86, D.R. 47 p. 230).
The Commission will, accordingly, examine whether the applicant's trial
as a whole was fair under the general rule of para. 1.
The Commission recalls that the applicant was allowed to question
the witnesses himself in the hearing before the Court of Appeal.
Furthermore, he was not denied the right to put questions to the
witnesses in the District Court trial, but was merely directed to put
them through his public defence lawyer.
The Commission, therefore, concludes that the facts submitted do
not disclose any appearance of a violation of the applicant's right to
examine witnesses under Article 6 para. 3 (d) (Art. 6-3-d) or his
general right to a fair hearing under para. 1 (Art. 6-1) of the same
Article.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains that he has been deprived of his
right under Article 2 of Protocol No. 7 (P7-2) to the Convention to
have his conviction reviewed by a higher tribunal.
Article 2 para. 1 of Protocol No. 7 (P7-2-1) reads as follows:
"Everyone convicted of a criminal offence by a tribunal shall
have the right to have his conviction or sentence reviewed by a
higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law."
In respect of this particular complaint the Commission recalls
that the applicant's case was heard by both the District Court and the
Court of Appeal. In addition, the applicant appealed to the Supreme
Court for leave to appeal.
The Commission notes that in a previous case (No. 18066/91,
Dec. 6.4.94, not yet published) it held that the procedure on the right
to apply to the Supreme Court in itself was to be regarded as a review
within the meaning of Article 2 of Protocol No. 7 (P7-2). The
Commission finds no reason to take a different view in the present
case. Thus, notwithstanding the applicant's allegations that the
hearing in the District Court was unfair and that the Supreme Court
only grants leave to appeal in special circumstances, the Commission
concludes that the applicant's case has been heard by courts at three
levels of jurisdiction, and, consequently, that his rights under
Article 2 of Protocol No. 7 (P7-2) have not been violated.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy