AS TO THE ADMISSIBILITY OF
Application No. 12631/87
by Hans FEJDE
against Sweden
The European Commission of Human Rights sitting in private
on 4 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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
L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 28 July 1986 by
Hans Fejde against Sweden and registered on 18 December 1986 under
file No. 12631/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 December 1988 and the observations submitted in reply
by the applicant on 13 July 1989;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1927. He is a
businessman and resides at Västra Frölunda, Sweden. Before the
Commission the applicant is represented by Mr. Christer Arnewid, a
lawyer practising in Göteborg, Sweden.
A. The particular facts of the case
Subsequent to the death of the applicant's stepfather his
mother moved house. At that time the applicant owned a removal firm
for which reason he was in charge of the removal. Among the furniture
was a saloon rifle which eventually was stored together with other
furniture at the applicant's property.
After some years the applicant's removal firm went bankrupt
and among the inventory the saloon rifle was found. It appears that
this was brought to the attention of the local police which
investigated the case and subsequently charged the applicant with a
violation of the Firearms Act (vapenlagen). The case was heard in the
District Court (tingsrätten) of Göteborg on 27 August 1984 where the
applicant had the opportunity to address the Court. In its judgment of
the same day the District Court held as follows:
"(The applicant) has contested criminal liability and has made
the following statement: the weapon in question was owned by
RT, who was married to his mother. RT is dead. When (the
applicant's) mother moved house some ten years ago the weapon
ended up in (the applicant's) storage room together with
furniture for which there was no room in his mother's new
home. The weapon was found in the storage room in connection
with (the applicant's) bankruptcy. He was aware of the
weapon being there all the time but he did not think of it as
a weapon. The rifle lacks a breech-block and there was never any
ammunition. (The applicant) does not consider himself the owner
of the rifle since it is his mother, now 82 years old, who is
the formal owner of it.
The Court holds that (the applicant) cannot avoid being held
responsible for the possession of the weapon, but that the
violation of the Firearms Act is of a minor character.
Accordingly no other punishment but a small fine is required."
The applicant was fined 300 Swedish crowns and in its judgment
the District Court also decided to forfeit the rifle. In doing this
the District Court referred to an official record containing the
decision to seize the rifle. In this record the object seized was
described as follows : "one piece of bullet rifle, manufacture FN,
calibre 22 LR, manufacturing number 314741, breech-block missing.
Weapon in cover."
On 4 September 1984 the applicant appealed against the
judgment to the Court of Appeal for Western Sweden (hovrätten för
Västra Sverige). In his appeal the applicant maintained that the
police had not investigated the case properly, that new information
had appeared, that the judgment would have a negative effect on his
future life, that the Firearms Act had been misinterpreted and he
questioned whether he could at all be held responsible. In particular
the applicant pointed out that the owner of the rifle was a son of his
stepfather and not his mother and, secondly, he maintained that the
rifle could not be considered a weapon within the meaning of the
Firearms Act since the breech-block was missing. In respect of the
latter, he suggested to hear his mother and his brother as witnesses
in order to have established that the rifle was without a breech-
block.
On 23 October 1984 the applicant was informed by the Court of
Appeal that, according to Chapter 51, Section 21 of the Code of
Judicial Procedure (rättegångsbalken), his case could be dealt with by
the Court of Appeal without a main hearing. Therefore he was asked to
state whether or not he wanted such a main hearing and, if so, what
kind of evidence he would rely upon.
In reply to the above, the applicant informed the Court of
Appeal on 24 October 1984 that, since he was without means, he would
like the Court to appoint counsel and, furthermore, he concluded that
this of course also meant that a main hearing should take place with
the parties present. By letter of 15 February 1985 the applicant in
addition informed the Court of Appeal that he had been refused certain
jobs as attendant due to the fact that he had been found guilty by the
District Court. Accordingly he maintained that the case was no longer
to be considered as a trifle but that it was very important for him to
have his name cleared.
From notes made on the applicant's above letter by one of the
Court's officials it appears that the applicant was called by
telephone on 18 February 1985 and informed how the case would now
proceed. Furthermore it appears that the applicant, during a telephone
conversation on 4 March 1985, explained that he wished to have a
defense counsel appointed. The notes finally indicate that the
applicant did not maintain his request for the hearing of witnesses
since the question of the missing breech-block was no longer in
dispute.
By decision of 27 February 1985 the Court of Appeal refused to
appoint counsel for the applicant, finding no reasons to justify such
appointment. The applicant appealed against this decision to the
Supreme Court (Högsta domstolen) which, however, refused leave to
appeal on 19 June 1985.
In the meantime the applicant had received, on 6 March 1985, a
letter from the Court of Appeal informing him that, since the case
could be dealt with without a main hearing, he had ten days to submit
his final written submissions. On 11 March 1985 the applicant sent a
letter to the Court of Appeal in which he maintained, inter alia, that
the rifle could not be considered a weapon within the meaning of the
Firearms Act since it had no breech-block. He suggested that his
brother be heard as a witness in order to substantiate that the rifle
had never had a breech-block while in the applicant's possession.
In this letter the applicant also complained of the Court of
Appeal's refusal to appoint counsel. The respondent Government have
submitted that the Court of Appeal did not regard the submissions of
11 March 1985 by the applicant as final submissions in the case. They
were regarded as an appeal against the Court's decision of
27 February 1985 on the question of defense counsel. The respondent
Government submit therefore, that these submissions were forwarded to
the Supreme Court and did not form part of the case-file of the Court
of Appeal.
The case was examined by the Court of Appeal on 22 August
1985. On this day the Court of Appeal also decided that a main hearing
in the Court would be manifestly unnecessary and that the case
therefore could be dealt with without a main hearing in accordance
with Chapter 51, Section 21, first paragraph of the Code of Judicial
Procedure. It was decided that this decision should be made public on
the same day as the judgment was delivered.
On 2 October 1985 the Court of Appeal pronounced judgment in
the case. In the judgment the Court of Appeal stated:
"(The applicant) has submitted to the Court of Appeal the same
information as was mentioned in the judgment of the District Court
and added: When (his stepfather) and his mother separated (his
stepfather) forgot the rifle at the mother's place of
residence at Furuby. Since (the applicant's stepfather) has
died it is his son ... who now owns the rifle.
It is undisputed that (the applicant) has been in possession
of the rifle without a permit. Regardless of how it came into
his possession and who owns it, he shall therefore be
convicted for having violated the Firearms Act. The sentence
should be as determined by the District Court.
The Court of Appeal, which accepts (the applicant's)
information as to how the rifle came into his possession,
finds that he is at least not the owner of it. The question of
confiscation of the rifle accordingly concerns a person who is
not accused in this case. The question of confiscation should
be directed against the owner of the rifle in accordance with
Section 17 of the Act of 1946 concerning the promulgation of a
new Code of Judicial Procedure. This has not happened in the
present case. The request for confiscation is therefore
rejected."
The applicant appealed against the judgment to the Supreme
Court. In his request for leave to appeal, the applicant maintained
that he had not violated the Firearms Act since the rifle could not be
considered a weapon as it had no breech-block. He complained that the
lower courts had disregarded this vital information although he had
pointed it out in his submissions and although he had requested a
hearing in order to hear witnesses in this respect. Furthermore he
maintained that the conviction had had unforeseeable consequences for
him.
On 3 March 1986 the Supreme Court refused leave to appeal.
B. Relevant domestic law
The Firearms Act contains specific rules for the control of
the right to possess and acquire firearms and ammunition. According to
Section 5 of the Firearms Act the possession of firearms is prohibited
unless a permit to this end has been granted. In Section 1 a definition
of the concept of firearms is found. It is provided, inter alia, that
a firearm is a weapon which can fire a bullet, shot, harpoon or other
projectile by means of gunpowder, carbonic acid, compressed air or
other similar means. The Firearms Act also provides that the
provisions apply accordingly to certain separate parts of a weapon,
e.g. a breech-block or barrel, and to weapons which are unusable if
the weapon would count as a firearm had it been usable. Anyone who
intentionally possesses a firearm without a permit is, according to
Section 37 of the Act, liable to imprisonment for a maximum period of
two years. If the act has been committed by negligence, or if the
offence is of a minor character, the offender is liable to pay a fine
or to imprisonment not exceeding six months.
Violations of the Firearms Act are considered criminal
offences and the Code of Judicial Procedure is thus applicable. By
virtue of this Code judgments in criminal matters shall as a rule be
rendered after a main oral hearing. This rule applies to proceedings
in the lower courts as well as in appeal proceedings. Exceptions to
this rule exist however at the appellate level. Thus Chapter 51,
Section 21 of the Code of Judicial Procedure, as amended as from 1
July 1984, reads as follows in the relevant parts:
"Hovrätten får avgöra mål utan huvudförhandling,
1. om talan av åklagaren förs endast till den tilltalades förmån,
2. om talan, som förs av den tilltalade, biträtts av motparten,
3. om det är uppenbart att vadetalan är ogrundad, eller
4. om det inte finns anledning att döma den tilltalade till
ansvar eller att ådöma honom påföljd eller döma honom till
annan påföljd än böter eller villkorlig dom eller sådana
påföljder i förening.
...
Har i fall som avses i första stycket en part begärt
huvudförhandling, skall sådan hållas, om det inte är uppenbart
obehövligt.
...
För prövning som inte avser själva saken behöver
huvudförhandling inte hållas."
(translation)
"The Court of Appeal may rule an appeal without a main hearing,
1. if the prosecutor appeals only for the benefit of the
accused,
2. if an appeal brought by the accused is supported by the
opposing party,
3. if the appeal is plainly unfounded, or
4. if no reason exists to hold the accused legally liable, or
to impose a sanction upon him, or to impose a sanction other
than a fine or a conditional sentence, or a combination of
such sanctions.
...
If, in a case referred to in the first paragraph, a party has
requested a main hearing, such a hearing shall be held unless
manifestly unnecessary.
...
For a ruling not related to the merits a main hearing need not
be held."
Swedish appeal courts review criminal cases with respect to
law as well as facts. However, there are certain limitations to the
Court of Appeal's full jurisdiction. Chapter 51, Section 25 of the
Code of Judicial Procedure contains a prohibition against reformatio
in pejus in certain cases. This provision reads as follows:
"Ej må hovrätten i anledning av den tilltalades talan eller
talan, som av åklagare föres till hans förmån, döma till
brottspåföljd, som är att anse såsom svårare än den, vartill
underrätten dömt. Har den tilltalade av underrätten dömts till
fängelse, äge hovrätten förordna om villkorlig dom,
skyddstillsyn eller överlämnande till särskild vård, så ock
jämte villkorlig dom, skyddstillsyn eller överlämnande till
vård inom socialtjänsten döma till böter ävensom jämte
skyddstillsyn döma till fängelse enligt 28 kap. 3 §
brottsbalken. Har underrätten meddelat förordnande som nu
sagts, äge hovrätten döma till annan påföljd."
(translation)
"Upon an appeal lodged by the accused, or by the prosecutor for
the benefit of the accused, the Court of Appeal may not
sentence the accused to a criminal sanction more severe than
the one imposed by the lower court. If the accused was
sentenced by the lower court to imprisonment, the Court of
Appeal may order a suspension of sentence, probation or
placing under special care; in addition to suspension of
sentence and to probation or placing under care within the
social service, the Court of Appeal may impose a fine or
probation coupled with imprisonment, pursuant to Chapter 28,
Section 3 of the Penal Code. When the lower court has ordered
a sanction of the kind referred to above, the Court of Appeal
may impose a different kind of sanction."
COMPLAINTS
The applicant invokes Article 3 of the Convention, maintaining
that his conviction amounts to degrading treatment and punishment.
The applicant also invokes Article 6 of the Convention,
referring to "an impartial and public trial". In particular the
applicant maintains that his conviction simply followed standard
case-law and, with reference to Article 6 para. 2, he maintains that,
although he is innocent, he is now considered a criminal with the
result that he cannot get certain jobs. Furthermore, under Article 6
para. 3 (c), the applicant points out that he applied for, but was
refused, the assistance of counsel although he did not have the
necessary means to instruct one. Under Article 6 para. 3 (d) the
applicant refers to the fact that the witnesses, whom he wanted heard
in the Court of Appeal, were not heard.
Finally the applicant maintains, under Article 13 of the
Convention, that he did not have any effective remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 July 1986 and registered
on 18 December 1986.
The Commission decided on 7 October 1988 to bring the
application to the notice of the respondent Government, inviting them
to submit written observations on the admissibility and merits of the
case.
The Government's observations were submitted on 27 December
1988 and the applicant's observations in reply were submitted on
13 July 1989.
Free legal aid was granted to the applicant by the Commission
on 17 March 1989.
THE LAW
1. The applicant has complained that he has been subjected to
treatment contrary to Article 3 (Art. 3) of the Convention which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
According to the case-law of the European Court of Human
Rights and that of the Commission, treatment will be considered
inhuman only if it reaches a certain degree of severity, causing
considerable mental or physical suffering. Furthermore, as for the
criterion "degrading treatment", the treatment itself will not be
degrading unless the person concerned has undergone humiliation or
debasement attaining a minimum level of severity. That level has to be
assessed with regard to the circumstances of the concrete case (cf.
for example, Eur. Court H.R., Ireland v. United Kingdom judgment of
18 January 1978, Series A no. 25).
Having regard to the above and to the submissions of the
applicant the Commission does not consider that the present
application discloses any appearance of a violation of Article 3
(Art. 3) of the Convention and 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 further complained that, in an unfair
procedure, he was eventually convicted and sentenced by the Court of
Appeal for Western Sweden to pay a fine and he has referred to Article
6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention which read as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law. Judgment shall be pronounced publicly but the press
and public may be excluded from all or part of the trial in
the interest of morals, public order or national security
in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
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 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).
Insofar as the applicant intends to complain about the
proceedings in the District Court the Commission has not found any
substantiated allegations in his submissions which could lead it to
conclude that the District Court proceedings were unfair within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention or that he was not
secured the right to be presumed innocent as guaranteed by Article 6
para. 2 (Art. 6-2) of the Convention. This part of the application is
accordingly manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. As regards the examination of the case by the Court of Appeal
the applicant has complained under Convention that he was refused legal
aid although he did not have the necessary means to instruct a lawyer.
Article 6 para. 3 (c) (Art. 6-3-c) provides:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require."
The Commission does not exclude that the applicant, whose
removal firm was bankrupt, had insufficient means to pay for legal
assistance and the only issue is therefore whether the interests of
justice required that he be granted legal aid before the Court of
Appeal.
The Commission recalls that the interests of justice cannot be
taken to require an automatic grant of legal aid whenever a convicted
person wishes to appeal after having received a fair trial at first
instance in accordance with Article 6 (Art. 6) of the Convention (see
e.g. Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,
Series A no. 115, p. 25, para. 67). Important factors when
determining this question include the severity of the sentence, the
personal ability of the applicant and the nature of the proceedings,
e.g. the complexity or importance of the issues or procedures involved
(cf. Granger v. United Kingdom, Comm. Report 12.12.88, para. 50).
Having regard to these elements and the applicant's
submissions the Commission finds that the case, as it stood before the
Court of Appeal, did not raise legal issues which the applicant could
not be expected either to comprehend or to present to the Court in the
procedure used by the Court of Appeal. In these circumstances, the
Commission finds that it has not been shown that the interests of
justice, within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention, required a grant of free legal assistance to the
applicant.
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.
4. As regards the proceedings in the Court of Appeal the
Commission further recalls that the applicant did not get a public
hearing.
The Government have argued that the right to a hearing before
the Court of Appeal should be considered in the light of the
circumstances of the case as a whole which in this case would lead to
the conclusion that the applicant's rights under Article 6 (Art. 6)
were not violated.
The Commission has made a preliminary examination of the above
aspect and has found that it raises serious issues as to the
interpretation and application of Article 6 (Art. 6) of the Convention which
are of such complexity that the determination of these issues should
depend on a full examination of their merits. It follows that this
part of the application cannot be regarded as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
5. The Commission has finally considered the applicant's
complaint under Article 6 (Art. 6) of the Convention insofar as he
intends to rely on this provision in regard to the Supreme Court's
refusal to grant him leave to appeal.
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 to a "criminal charge" (cf. No. 10515/83, Dec. 2.10.84, D.R. 40
p. 258). It follows that Article 6 (Art. 6) of the Convention does
not apply to the proceedings in which the Swedish Supreme Court,
without entering on the merits, refused the applicant leave to appeal
against the judgment 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 ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint that he did not get a "fair
and public hearing" within the meaning of Article 6 (Art. 6) of the
Convention before the Court of Appeal;
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy