The European Commission of Human Rights sitting in private on
7 July 1986, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1984 by
B.G.A. against Sweden and registered on 18 March 1985
under file No. 11453/85;
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 1941. He is at present
serving a 12-year prison sentence in Sweden. Before the Commission
the applicant is represented by his lawyer, Mr. Olof Arvidson,
Stockholm, Sweden.
During the summer of 1981 the Swedish police noticed that large
quantities of amphetamines were smuggled into Sweden. A large- scale
investigation was carried out and in February 1982 a Dutch lorry
driver was arrested in the process of smuggling into Sweden 42 kilos
of amphetamines. On 13 April 1982 the lorry driver was sentenced to
9 years' imprisonment for having smuggled into Sweden in November 1981
and in February 1982 not less than 100 kilos of amphetamines in
contravention of the Swedish Narcotics Act of 1968
(narkotikastrafflagen (1968:64)). During the interrogations of the
lorry driver he identified two persons (L and F) as being the persons
who had given him the amphetamines in Holland, as well as the
applicant and one other person (B) as being the persons who had
received it in Sweden. They were thus all arrested in Holland, the
Federal Republic of Germany and Sweden and L was subsequently sent to
Sweden to be tried there.
In the following court proceedings B was released from his detention
on remand since investigations carried out in Spain showed that he had
been in that country during the time when he had allegedly received
the amphetamines in Sweden. Subsequently the police dropped the
charges against him. L was convicted by the District Court of
Stockholm (Stockholms tingsrätt) on 10 November 1983 and sentenced to
12 years' imprisonment. On appeal, the sentence was reduced to 10
years since the Court of Appeal on one count concerning the amount
smuggled into Sweden in November 1981 would not rely on the lorry
driver's statements and since the factual circumstances were referred
to the Act of 1960 concerning smuggling (lagen om straff för
varusmuggling (1960:418)) instead of the Narcotics Act. Finally, the
case against F, conducted in Holland, is still pending. F is not,
however, detained on remand.
In the case against the applicant he was charged with a violation of
the Narcotics Act in that he had received in November 1981
approximately 80 kilos of amphetamines with the intent of subsequently
selling it.
During the investigations the applicant's present representative was
appointed as counsel. Subsequently, however, the prosecutor requested
that he be relieved of his duties because he had allegedly impeded the
investigations by submitting confidential information to people who
were involved in the case. On 5 January 1983 the District Court of
Stockholm complied with the prosecutor's request but this decision was
repealed by the Court of Appeal, which decision was upheld by the
Supreme Court.
After having settled the dispute concerning the defence counsel, the
case was tried in the District Court of Stockholm. After an
evaluation of the statements made by the witnesses and the written
evidence submitted, in particular a thorough evaluation of the
statements made by the lorry driver, the Court, on 31 March 1985,
found the applicant guilty of the charge brought against him and
sentenced him to 12 years' imprisonment and to pay the estimated
profits from the sale of the amphetamines, totalling 5,750,000 Swedish
crowns.
The applicant appealed against the judgment to the Court of Appeal
(Svea hovrätt) where, in particular, it was pointed out that the
statements of the lorry driver, who was the key witness, could not be
relied on, especially since the case against B had been dropped.
From its judgment of 30 December 1983 it appears that the Court of
Appeal made a thorough examination of this point since the lorry
driver was indeed the key witness. However, after the evaluation of
the evidence the Court of Appeal upheld the conviction pronounced by
the lower court but reduced the profits to be paid to 3,300,000 Swedish
crowns.
Subsequently, the applicant asked the Supreme Court for leave to
appeal. He pointed out that the lower courts had made a wrongful
evaluation of the evidence in the case. In particular he again
referred to the fact that the charges against his former co-accused,
B, had been dropped, notwithstanding that the lorry driver maintained
that, together with the applicant, he received the amphetamines in
Sweden. The applicant also pointed out that in the meantime L had
been acquitted by the Court of Appeal as being the man who had given
the lorry driver the amphetamines in Holland in November 1981 since
the Court could not on this particular point rely on his statement.
The conclusion would thus be the following: of the four persons
identified by the lorry driver as being involved in the smuggling in
November 1981 the applicant was the only one who had been convicted.
Furthermore the applicant, before the Supreme Court, requested the
hearing of a new witness who allegedly could prove his innocence.
On 8 June 1984 the Supreme Court refused leave to appeal.
COMPLAINTS
The applicant invokes Article 6 (Art. 6) of the Convention. He claims
that he has been wrongly convicted by the Swedish courts since they
relied on a witness whose statements, in cases concerning other
persons but with the same factual circumstances, were not accepted.
He therefore finds that he did not get a fair trial.
He also complains that he was refused permission to hear a witness
since the Supreme Court refused to grant leave to appeal.
THE LAW
1. The applicant has complained that he was wrongly convicted by
the Swedish courts.
With regard to the judicial decisions of which the applicant
complains, 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 to 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
jurisprudence (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222,
No. 1140/61, Dec. 19.12.61, Collection 8 p. 57, and No. 7987/77,
Dec. 13.12.78, D.R. 18 p. 31).
In this case the applicant has also complained, under Article 6
(Art. 6) of the Convention, that his conviction was based on an
unacceptable evaluation of the evidence, in particular the statements
of the key witness in the case, whose statements had been set aside in
cases against other persons involved in the smuggling affair.
In this respect the Commission recalls that its task under Article 6
(Art. 6) of the Convention with regard to this allegation is to
examine whether the evidence for and against the accused has been
presented in such a manner, and the proceedings in general have been
conducted in such a way, that he has had a fair trial. However,
whether the courts have evaluated the evidence correctly or not is a
question on which the Commission is not called to pronounce itself.
Furthermore the validity of the courts' factual conclusions is not
subject to the Commission's control.
In the present case the Commission recalls that the courts examined
statements made by witnesses as well as the written material and is of
the opinion that the judgments were based on an evaluation of these
statements and documents. In particular, there is nothing indicating
that the courts in fulfilling their functions reached their
conclusions in an arbitrary manner. On the contrary, it is clear that
the courts were fully aware of the problems to which the applicant
refers and had this in mind when taking their decisions. An
examination of this complaint therefore fails to disclose any
appearance of a violation of the Convention and in particular of
Article 6 para. 1 (Art. 6-1).
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.
2. The applicant has also complained that since he was refused
leave to appeal he could not have a witness examined in court.
Insofar as the applicant in this respect intends to complain of the
fact that he could not have the witness heard in the lower courts, the
Commission notes that the applicant did not at all mention his wish in
this respect in any way before these courts. Such a complaint would
therefore be inadmissible under Article 26 (Art. 26) of the Convention
since the applicant did not exhaust the remedies at his disposal.
Insofar as the applicant intends to complain that the Supreme Court's
decision not to grant leave to appeal in these circumstances amounted
to a violation of Article 6 para. 1 (Art. 6-1) of the Convention, the
Commission recalls that the right to appeal does not feature among the
rights and freedoms guaranteed by the Convention. No provision of the
Convention, therefore, requires the High Contracting Parties to grant
persons under their jurisdiction an appeal to a Supreme Court. If a
High Contracting Party makes provisions for such an appeal it is
entitled to prescribe the provisions by which this appeal shall be
governed and fix the conditions under which it may be brought
(cf. No. 3775/68, Dec. 2.2.70, Collection 31 p. 116; No. 6916/75,
Dec. 12.3.76, D.R. 6 p. 101).
The Commission is of the opinion that when a Supreme Court determines,
in a preliminary examination of a case, whether or not the conditions
required for granting leave to appeal have been fulfilled, it is not
making a decision relating to "civil rights and obligations" or a
"criminal charge" (cf. No. 10515/83, Dec. 2.10.84, unpublished).
Article 6 para. 1 (Art. 6-1) of the Convention, however, only provides
certain guarantees in cases relating to the determination of civil
rights and obligations or of a criminal charge. It follows,
therefore, that this provision does not apply to the proceedings in
which the Swedish Supreme Court, without entering on the merits,
refused leave to appeal against a decision of the Court of Appeal.
This part of the application is thus incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)