AS TO THE ADMISSIBILITY OF
Application No. 14106/88
by Simon HAYWARD
against Sweden
The European Commission of Human Rights sitting in private on 6
December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil 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 20 June 1988 by
Simon Hayward against Sweden and registered on 9 August 1988 under file
No. 14106/88;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 3 January and 29 August 1990 and the observations
submitted in reply by the applicant on 31 May and 12 November 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a United Kingdom citizen, born in 1955. He
resides in London. Before the Commission the applicant is represented
by Mr. Christopher Murray of Kingsley Napley, solicitors, London.
A. The particular facts of the case
On 13 March 1987 the applicant was arrested at Linköping, Sweden,
being suspected of having committed certain drug offences contrary to
the Swedish Penal Code. On 17 July 1987, the indictment was served
charging him with having committed two drug offences. At the trial,
which lasted from 28 July to 3 August 1987, the applicant denied both
charges and entered a plea of not guilty. On 10 August 1987, he was
convicted in the Uppsala District Court (tingsrätten) of both charges
and sentenced to serve a term of five years' imprisonment. On 11
November 1987, following hearings which took place between 29 September
and 28 October 1987, the Svea Court of Appeal (Svea hovrätt) upheld the
judgment. On 22 December 1987, the Supreme Court (Högsta domstolen)
refused the applicant's request for leave to appeal against the
judgment of the Court of Appeal.
Arrest and detention
In September 1986, in London, the applicant met his brother who
was then resident in Ibiza. The latter invited the applicant to
accompany him during his forthcoming holidays and to do some sailing.
They flew to Ibiza in February 1987. During his stay in Ibiza the
applicant agreed to drive his brother's Jaguar car to Sweden since an
Englishman who lived there allegedly wanted to buy it. The applicant
left for Sweden on 10 March 1987. He arrived at Helsingborg, Sweden,
just before 6 p.m. on 13 March and passed through customs without any
particular problems. Around 9.30 p.m. he arrived at Linköping where he
stopped in front of the main railway station and waited for a friend,
Mr. Forbes Mitchell, whom he had met in Ibiza. Upon his arrival Mr.
Mitchell informed the applicant that they had to drive another forty
kilometres but after driving a short while they were stopped by the
police and arrested.
The applicant was apprehended by two police officers at 10.58
p.m. They immediately took him to the police station at Motala where
they arrived at 11.35 p.m. The arrest was reported by telephone on 14
March 1987 at 1 a.m. to the district prosecutor at Uppsala, who from
that moment was in charge of the preliminary investigation. A police
officer interrogated the applicant for the first time on 14 March 1987
at 1.20 a.m. During this interrogation the applicant was informed that
he was suspected of having committed aggravated drug offences. He
denied that he was guilty of any offence. The district prosecutor was
informed of the interrogation of the applicant and decided that night
at 1.45 a.m. to detain the applicant provisionally.
On 14 March 1987 at 2.15 p.m., the applicant was interrogated
again. According to the minutes the applicant was informed that he was
suspected of aggravated drug offences. On 17 March 1987 the applicant
was informed that great quantities of cannabis had been found the
previous day in the car he had driven from Ibiza. The applicant denied
any knowledge thereof.
On 18 March 1987, the Uppsala District Court appointed an
English-speaking public defence consel for the applicant. The following
day the prosecutor requested the applicant's detention on remand. The
request arrived at the District Court on 20 March 1987, and the
District Court held a hearing on 24 March 1987 following which the
Court decided to detain the applicant on remand. He appealed against
the decision to the Svea Court of Appeal. On 31 March 1987, however,
the appeal was rejected. The applicant remained in detention on remand,
in solitary confinement, until the end of his trial.
During 1987 the Swedish anti-drug police had carried out
investigations concerning Mr. Forbes Mitchell, whom they suspected of
being involved in smuggling cannabis from Ibiza to Sweden. Subsequent
to his arrest on 13 March 1987, Mr. Mitchell pleaded guilty to the drug
trafficking charges brought against him and he was sentenced to seven
years' imprisonment on 18 June 1987.
Media coverage
As at the time of his arrest the applicant was an officer in the
British army the case attracted media attention. On 22 March 1987, the
arrest was made public in a television broadcast. On 24 March 1987, the
prosecutor in charge of the case made the following statement in a
television interview in English: "It is easier if I have his
confession, but I do not need it."
The applicant submits that in an article appearing on 28 April
1987 in the national daily "Expressen" the prosecutor was quoted as
saying that: (translation) "Both oral information and technical
evidence have shown that he smuggled the drugs knowingly."
In another article in "Expressen" of 30 May 1987 in which the
applicant's mother inter alia maintained that he was innocent, the
prosecutor was quoted as saying that: (translation) "I believe him to
be guilty and I will prove it at the trial."
In a further newspaper article of 24 July 1987 the prosecutor
told the interviewer that: (translation) "... the captain knew very
well what he was doing."
The Government deny that the prosecutor made the statements
reported in the newspapers.
Access to solicitors
As mentioned above, the Uppsala District Court appointed a
Swedish counsel for the applicant on 18 March 1987. Subsequent to a
visit to the applicant of his mother and girlfriend on 26 March 1987,
his mother retained his present representative to act on his behalf.
The reason for this was that the facts of the case were, in the
applicant's opinion, international in character, and in order to
establish his innocence he considered it necessary to investigate
matters and obtain evidence from sources outside Sweden. On several
occasions the applicant's present representative was, however, refused
direct access to the applicant by the prosecutor, who did not consider
him to be a defence counsel within the meaning of the Swedish Code of
Judicial Procedure (rättegångsbalken), and he was not allowed any oral
or written communication until 22 July 1987, i.e. one week before the
trial in the District Court commenced. No restrictions were imposed
upon the applicant as regards access to his Swedish counsel.
The preliminary investigation
The preliminary investigation continued during the spring and
summer of 1987 until the commencement of the trial on 28 July 1987. The
applicant was interrogated as well as other persons suspected of being
accessory to the offences. As regards the method used when
interrogating the applicant, the following information has been
provided by the Government.
The applicant would get a question in English. The person
questioning him would write down the answers in Swedish. The applicant
would then ask what had been written down. In case the applicant had
any objections to that text, the interrogator would change the Swedish
text.
The preliminary investigation records were successively
communicated to the applicant, to such extent as could be done without
jeopardising the investigation. The arrangement had been approved by
the applicant's Swedish counsel by telephone.
A number of issues as regards the preliminary investigation gave
rise to discussions between the prosecutor and the defence counsel:
On 4 May 1987, the applicant's counsel requested that the records
of the interrogations of the applicant be translated into English. This
did not happen. The Government submit that the parties eventually
agreed not to translate the preliminary investigation documents on the
understanding that counsel could discuss the file with the applicant,
if need be aided by an interpreter. The applicant denies having
accepted any such agreement and submits that his request for a
translation was rejected.
On 4 May 1987, the applicant's counsel also requested that Mr.
Mitchell's girlfriend, P, who lived in Ibiza, be questioned concerning
any possible involvement on her part and concerning a meeting between
Mr. Mitchell and the applicant. The Government submit that in the
summer of 1987 the prosecutor had received information that Interpol
agents had visited Ibiza to make inquiries into the applicant's case.
The Interpol agents were exposed to unpleasant attention at a bar,
where they had asked certain questions, as well as at their hotel. For
that reason, they left Ibiza. The Government submit that after having
been informed by the prosecutor of the dangers that in his view might
be involved in a visit to Ibiza, the applicant's defence counsel came
to share the view that such a visit was not advisable.
The applicant denies that his counsel shared the prosecutor's
view and rejects the suggestion of any danger in Ibiza.
It is clear, however, that P visited Mr. Mitchell in Sweden from
21 to 27 June 1987 and that an unsuccessful attempt was made by the
police to question her. The applicant and his counsel were not informed
of this visit or of the unsuccessful attempt to question P.
On 10 and 11 June 1987, the applicant was interviewed by two
officers from the British National Drugs Intelligence Unit (NDIU),
Detective Inspector Morgan and Detective Sergeant Moore. On 11 June
1987, Messrs. Morgan and Moore and Mr. Gunnar Larsen, the Scandinavian
drug liaison officer attached to the Norwegian embassy in London,
interviewed Mr. Mitchell and on 12 June 1987, Messrs. Morgan and Moore
filed with the Swedish police a one-page report (Morgan- Moore report)
in which they stated as follows:
"We have information in relation to the seizure of 50.5 kilos of
cannabis resin made in Linköping, Sweden, on 13 March 1987, when
(the applicant) was arrested.
...
3. (The applicant) had full knowledge that the drugs were
concealed in the vehicle.
4. (The applicant) must have been paid £ 20,000 for providing
this courier service for his brother... .
5. (The applicant) also became involved in this offence because
of the "excitement" that it would provide.
On Thursday 11th June 1987 we spoke to Forbes Cay Mitchell, also
arrested for this offence. Without being prompted in any way he
fully corroborated the above information that we had previously
acquired, before our visit to Sweden."
On 1 July 1987, the prosecutor informed the applicant's Swedish
counsel that Scotland Yard had refused permission for the two NDIU
officers to attend the hearing in Sweden to give evidence in relation
to the report filed on 12 June. In a letter from Scotland Yard it was
stated inter alia:
"On 12th June, in Sweden, these police officers had supplied a
report which each signed, and I have subsequently reviewed the
content. The officers are unable to vouch for the truth and
accuracy of any of the information in the paragraphs marked 1.
to 5. in the report. All the information within their knowledge
would amount to hearsay evidence and this would be inadmissible
in similar proceedings in an English criminal court.
I regret therefore that I am unable to accede to your request and
the two police officers will not be permitted to give this
evidence."
The final records of the preliminary investigation were completed
on 15 July 1987, i.e. approximately four months after the applicant's
arrest, and a copy was served on him. The records comprised twelve
interrogations of the applicant, seven interviews with Mr. Mitchell,
eight interviews with three other persons who were suspected of being
accessories to the offences, one interview with the applicant's fiancée
and interviews with eleven policemen who participated in the
investigations. In addition they contained an account of technical
examinations, various documents that had been obtained from Ibiza as
well as verbatim records of telephone calls which had been tapped by
the police in the course of their investigations. Finally, they
contained a letter from the applicant's counsel with certain
corrections in respect of the accounts given of four of the
interrogations of the applicant.
On 17 July 1987, the indictment was served on the applicant
whereby he was formally charged with:
1. deliberately importing, on 13 March 1987, 50.5 kilogrammes
of cannabis into Sweden without notifying the proper authorities
contrary to Section 3 of the Act (1960:418) Regarding Penalties
for Goods Smuggling, and
2. during the period 10 to 13 March 1987, transporting 50.5
kilogrammes of cannabis from Ibiza, Spain, to Sweden, and, on 13
March 1987, being unlawfully in possession of and transporting
in Sweden 50.5 kilogrammes of cannabis.
The District Court trial
The trial before the Uppsala District Court commenced on 28 July
1987. The Court comprised a legally trained judge and five lay
assessors. At the start of the hearing the parties were provided the
opportunity to state if there was any obstacle to holding the main
hearing. Neither party contended that there was any such obstacle.
During the trial and at the request of the prosecutor the Court
heard oral evidence from 8 witnesses including Mr. Mitchell and Mr.
Gunnar Larsen, the Scandinavian drugs liaison officer attached to the
Norwegian embassy in London. The prosecutor had also requested the
hearing of Detective Sergeant Brian Moore and Detective Inspector David
Morgan of Scotland Yard. However, as indicated above, they did not
receive permission from their superiors to testify in the case.
At the applicant's request 6 further witnesses were heard.
Mr. Larsen was heard as a witness on 29 July 1987. He informed
the Court that he had received knowledge of the case on 24 March 1987
by means of a telex from Interpol. Thereafter he contacted Scotland
Yard for verification of the information received. Scotland Yard had
received information from persons not wishing to reveal their
identity and from persons who, for fear of reprisals, did not wish to
be identified. Mr. Larsen gave evidence that he, Mr. Moore and Mr.
Morgan subsequently met with an informer who revealed, inter alia, that
the applicant was fully compliant with what he was involved in, that
the applicant knew where the drugs were hidden in the car and was due
to indicate the hiding place when he arrived at the destination. The
informer also stated that the remuneration for the transportation was
20,000 pounds. Mr. Larsen considered that the information provided by
the informer tallied with other information coming into Scotland Yard.
Mr. Larsen told the Court that the informer in question was himself a
criminal who had provided information to the British police in other
cases relating to drugs. In these cases the information had been 100%
correct. Mr. Larsen gave two reasons for not divulging the name of the
informer: first, the security of the informer's life and second, his
own security as well as that of his family.
The applicant's counsel requested that the Court should enjoin
Mr. Larsen under pain of a fine or custody to reveal his source. In a
decision on 29 July the Court found that Mr. Larsen had valid reasons
not to answer the question, and consequently rejected counsel's
request.
After Mr. Larsen had been heard, counsel requested that his
statements be rejected as evidence. As a basis for his contention he
invoked that the testimony was based on second-hand information the
source of which had not been divulged and that consequently the Court
had no possibility of evaluating the evidence. For these reasons this
evidence was not, in counsel's opinion, compatible with the
requirements of a fair trial laid down in Article 6 of the European
Convention on Human Rights.
In a decision of 30 July 1987, the Court found that there was no
reason to reject Mr. Larsen's testimony, since the evidence in question
had already been taken and the grounds invoked by counsel could not,
under Swedish law, form a basis for rejecting the evidence.
During the trial, the prosecutor also wished to present the
Morgan-Moore report. Counsel requested that the report be rejected as
evidence since it constituted written testimony and consequently was
not admissible as evidence under Swedish law. The Court found, by a
decision of 3 August 1987, that the fact that Mr. Morgan and Mr. Moore
had been prohibited by their superiors from coming to Sweden to give
evidence was a special circumstance which could make the report
admissible as evidence. The Court consequently dismissed counsel's
request and allowed the report as evidence.
The trial came to an end on 3 August 1987 and judgment was
rendered on 10 August 1987 when the Court, after an evaluation of all
the oral evidence and written material produced, found the applicant
guilty of the charges brought against him and sentenced him to five
years' imprisonment. Among the reasons for this finding was the
evidence given by Mr. Mitchell and Mr. Larsen. The Court held that Mr.
Mitchell had given an account which was serious for the applicant and
that credence should be given to his information. In relation to Mr.
Larsen's evidence the operative part of the Court's judgment reads as
follows:
(translation)
"The question is what value should be attached to this testimony
in so far as it relates to the information given by the informer.
It is clear that the information does not carry the same weight
as if the informer had been known to the Court and could have
been cross-examined in the proceedings under oath. The Court
would then have had the occasion to assess the witness's
credibility, to put questions to the witness concerning the
source and the reliability of the information given about (the
applicant), etc. The fact that this was not possible does not,
however, strip the information which was given of all its value
as evidence. In a trial, there can prove to be circumstances
which mean that even information which emerges in the manner now
at issue shall be attributed some importance in respect of the
evidence.
To start with, concerning the reliability of the informer, it appears that the latter has been known to Scotland Yard for some
time and that the information provided by the informer in earlier
cases has been wholly correct. A probable motive for the
informer's action has also been stated. With regard to what has
thus been revealed concerning the informer's person, there are
no grounds for assuming other than that the informer is reliable
per se.
This does not preclude the possibility that the statements,
awareness or non-awareness, might perhaps be false. It can,
however, be said that the information given by the informer
according to Larsen tallies with other information which came
into Scotland Yard. Larsen has also stated that Mitchell, after
the informer had been heard, gave a spontaneous account in front
of Larsen and the policemen Morgan and Moore which was in
accordance with the information given by the informer. The
District Court finds therefore, with regard to what has been said
above, that the information emerging from the informer's account
as given by Larsen and which tallies with what Morgan and Moore
have stated in their memorandum, should be given no small
importance in terms of evidence."
One of the five lay assessors dissented. He stated, inter alia,
that the statements by the informer set out in Larsen's evidence
represented "... second-hand or third-hand information from a source
which has not been more closely identified. It is therefore not
possible to assess satisfactorily their credibility. The statements
were also made at such a late stage of the investigation that the
possibility cannot be ruled out that essential information contained
in the investigation was publicly known in Great Britain due to the
attention paid to the case in the mass media. It is therefore not
possible to give Larsen's testimony full force in terms of evidence,
nor the weight which the public prosecutor would claim."
The Court of Appeal proceedings
On 18 August 1987, the applicant appealed against the judgment
of the District Court to the Svea Court of Appeal. In his reasons for
the appeal the applicant claimed that the witnesses brought against him
had contradicted themselves and that no credence could be attached to
their statements. Accordingly it had not been proven that he was guilty
of the charges brought against him. Furthermore, with reference to
Chapter 23, Section 19, of the Code of Judicial Procedure, the
applicant referred to shortcomings in the preliminary investigation as
he had already on 4 May 1987 requested the hearing of a witness in
Ibiza, namely the girlfriend of Mr. Mitchell. However, the police and
the prosecution had not obtained any information from this important
witness. Finally the applicant requested that the police be instructed
to continue the investigation of the case and to obtain the statement
of the witness in question.
On 24 August 1987, the prosecutor informed the applicant that he
would make a renewed attempt to interview Mr. Mitchell's girlfriend,
P, and that he would obtain information from a police officer in Ibiza.
A visit to Ibiza was planned for this purpose.
On 2 September 1987, a Swedish police officer had a 35 minutes'
telephone conversation with P who was in Ibiza. An assistant to the
applicant's counsel was present and also put questions to P.
The prosecutor and two policemen visited Ibiza from 6 to 11
September 1987 to complete the preliminary investigation. The
applicant's counsel was in Ibiza from 5 to 9 September. The Spanish
police made an attempt to see P but it failed. The Swedish visitors
were shown the two villas at the disposal of the applicant's brother.
Several places, which the applicant had visited, were shown. The
applicant's counsel had expressed a wish to be present during the
discussions with the Spanish police officers but was not allowed to
participate.
On 18 September 1987, the Court of Appeal decided to defer the
beginning of the main hearing to 29 September because of a request from
the applicant's counsel who wanted certain investigations to be made
in the Netherlands.
On 25 September 1987 the prosecutor submitted the minutes
concerning the complementary preliminary investigation to the Court of
Appeal. The minutes contained the verbatim records of the telephone
conversation with P of 2 September, records of interviews and documents
concerning the investigations carried out in Ibiza with the police
officers involved as well as with Mr. Mitchell and the applicant. The
Court sent a copy of the minutes to the applicant's counsel the same
day.
The appeal was heard by the Court of Appeal from 29 September to
28 October 1987. The Court of Appeal consisted of three legally
qualified judges as well as two lay judges. When the main hearing
started, on 29 September at 9.35 a.m., counsel remarked that the
applicant had not been served with the minutes concerning the
complementary preliminary investigation, which inter alia contained
information obtained in Ibiza. For this reason, the Court adjourned the
case until 10.45 a.m. when the parties were asked whether there were
any obstacles to holding the main hearing. Neither party contended that
there was any such obstacle.
In the course of the main proceedings in the Court of Appeal the
testimonies of 18 witnesses were heard at the request of the prosecutor
and the applicant, including Mr. Larsen and Mr. Mitchell. Furthermore
the Court of Appeal had issued a summons to the policemen Morgan and
Moore of Scotland Yard to present themselves as witnesses during the
main proceedings. By letter of 29 September 1987, however, their
superior had announced that they were not permitted to present
themselves as witnesses before the Court of Appeal and that, for this
reason, the witness summons had not been served upon them. In view of
this information the Court of Appeal, as had happened in the District
Court, allowed the prosecutor to cite as evidence the Morgan-Moore
report of 12 June 1987 in accordance with Chapter 35, Section 14 of the
Code of Judicial Procedure.
On 1 October 1987, counsel requested that the main hearing be
adjourned in order to carry out complementary preliminary
investigations in respect of the accuracy of the information provided
by Mr. Mitchell. The Court of Appeal decided on the same day that the
main hearing was to continue until 7 October and then be adjourned for
a maximum of 15 days, in order to carry out the complementary
preliminary investigation requested.
On 15 October 1987, the above-mentioned complementary preliminary
investigation was accounted for in Court. No significant new
information had appeared regarding the reliability of Mr. Mitchell.
On 11 November 1987, the Court of Appeal upheld the judgment of
the District Court.
In its judgment the Court stated inter alia:
(translation)
"The question in this case is whether (the applicant) when he
carried out the shipment, was aware that drugs were present in
the car. The question of guilt must be judged in the light of
(the applicant's) certified impeccable past.
In examining this case, it is important to determine the extent
to which Christopher Hayward (the applicant's brother) has been
involved in dealing with drugs.
Mitchell has admitted the actions for which he has been
prosecuted. His account has generally been substantiated by
information given by Åsa Hoffman, Lennart Viryo and Joakim
Andersén. The information which Mitchell provided about
Christopher Hayward and (the applicant) does not appear to have
the purpose of diminishing Mitchell's own involvement or of
shifting the responsibility which Mitchell himself accepted.
Mitchell has pinpointed Christopher Hayward as one of the men
behind the drug dealings, but, with regard to (the applicant),
he has not been prepared to allege that, in making the shipment,
(the applicant) was aware of the drugs present in the vehicle,
but merely that Christopher Hayward provided information stating
that (the applicant) was willing to carry out courier work for
the sake of excitement, in order to earn some money and because
'he could get away with it'. With regard to this and to other
circumstances, the Court of Appeal finds that Mitchell's
information in this respect deserves to be given credibility in
this case.
As a result of Mitchell's and other defendants' information, the
Court of Appeal finds it clear that Christopher Hayward, as well
as other persons in Ibiza, was engaged in drug trafficking and
had forwarded the drugs consignment in the Jaguar from Ibiza to
Sweden with his brother as driver. Nothing has emerged to suggest
that Christopher Hayward was acting in this situation under
threat.
Nothing has emerged which would be able to explain why
Christopher Hayward should dupe his brother into undertaking a
journey of this kind, which, in the event of discovery, would
entail for (the applicant) enormous consequences as a result of
his position in society. Inter alia, with regard to the fact that
Mitchell must have assumed that (the applicant) was aware of the
presence of the drugs consignment in the vehicle and that
Mitchell had not been told by Christopher Hayward either that his
brother should be kept uninformed, it can be assumed that the
purpose of the journey would sooner or later be revealed to (the
applicant) with the consequences which this in different ways
would entail. For this reason alone, the Court of Appeal finds
that there is a high degree of probability that (the applicant)
had knowledge of the drugs consignment in the car.
In addition, the circumstances surrounding the declared theft of
the Jaguar in Ibiza appear to be peculiar.
Generally speaking, it must be regarded as somewhat unlikely that
a drugs courier, undertaking such a long and demanding
transportation as that performed by (the applicant), should be
unaware that the car was laden with a large quantity of drugs.
The Jaguar's value has been stated in this case to be between
50,000 and 70,000 SEK. The purchase price in Morocco of 50 Kg
cannabis has been quoted at a substantially greater amount; a
figure of up to 400,000 - 500,000 SEK has been mentioned. If the
Jaguar, during the journey from Ibiza to Sweden, was in any way
to become unusable, there must have been a strong chance that
(the applicant), if he was unaware of the drugs consignment,
would abandon the car,which was insured, and proceed directly to
England. The drugs consignment could then easily have been lost.
It would also appear rather unlikely that an uninformed
(applicant) would undertake such a rapid and testing journey
through Europe simply in order to spend some time delivering a
vehicle for sale in Sweden. The stretch of the journey from
Narbonne, from where (the applicant) started on the morning of
12 March, to Linköping where he arrived on the evening of the 13
March, amounts to more than 2,200 km.
(The applicant's) allegations that he was due to deliver the car
for sale to Mitchell is barely credible with regard, inter alia,
to the fact that (the applicant), who had experience of the
importation of cars from the Continent to England, did not call
for any customs treatment whatsoever at the Swedish border
control, that he did not know anything about the selling price
etc., that registration documents for the vehicle were missing
and that Mitchell, who demonstrably was due to leave Sweden two
days later, categorically denied all knowledge of any car
purchase.
(The applicant's) credibility is further diminished by the fact
that after three months interrogation he altered his original
account and admitted that it contained some untruths, such as the
statement that he had been invited by Mitchell to go skiing in
Sweden. The Court of Appeal finds it additionally surprising that
(the applicant) incorrectly told his girl friend that he would
be travelling back in order to serve for a while longer in
Northern Ireland, instead of telling her that he would be helping
his brother by driving Christopher's car from Ibiza to England,
which, according to his statement, was his intention at the time
he separated from her.
What emerged about (the applicant's) journey via Andorra is, in
the opinion of the Court of Appeal, not of such a nature that it
might affect an assessment of the extent to which (the applicant)
was aware that drugs were present in the car.
As far as the special screwdriver is concerned which was
discovered on (the applicant) and which had been purchased after
he had passed through the Swedish Customs Control, (the
applicant) has maintained the following. Already during the
journey through France, he was irritated by the fact that the
driver's seat was loose and was moving about as he was driving.
He therefore attempted on a few occasions to buy a suitable
screwdriver but without success. As a result of the witness
hearing with Bertil Olsson and of what emerged upon inspection
of the Jaguar, the Court of Appeal deduces that it is possible
to tighten up three of the four screws which hold the driver's
seat using virtually any normal screwdriver whatsoever, without
having to detach the seat, an action which would be sufficient
to secure the driver's seat. The investigation relating to this
case shows that the drugs consignment cannot be removed from its
caches within the car's door-sill cavities without the front
seats being removed from the car. This dismantling operation
appears easier and quicker to do with the screwdriver which (the
applicant) purchased in Åstorp on the evening of 13 March. The
fact that (the applicant) went to great lengths to obtain this
screwdriver in Sweden substantially supports the view that he was
aware that there were drugs hidden in the vehicle and was aware
of what would suitably be required in order to unload them.
(The applicant's) actions after he arrived at the railway station
in Linköping appear to be somewhat remarkable and suggest that
he was awaiting further instructions. The contact between him and
Mitchell was very short and contained, in practical terms,
nothing but new instructions. It seems most peculiar that (the
applicant), if he believed that he was about to deliver the car
to Mitchell, then to be discharged from his brother's assignment,
should, without protest and after just a few moments discussion
with Mitchell, continue the journey for an additional 40 km on
to a designated garage in the countryside.
What finally implicates (the applicant) is what, according to Åke
Swahn's testimony, took place on the side-road between national
highways 36 and 50 outside Motala. Swahn's testimony clearly show
that (the applicant) consciously carried out a manoeuvre to
establish whether he was being followed. This cannot be explained
in any way other than that (the applicant) was aware that he was
carrying drugs within the car. (His) explanations concerning the
course of events testified to by Swahn, viz. first that he never
stopped as Swahn stated, secondly that he - if he did stop - was
acting unconsciously as a result of his experiences from Northern
Ireland, do not alter the Court of Appeal's assessment in this
regard.
With regard to what thus and otherwise occurred, the Court of
Appeal finds that it is established beyond any reasonable doubt
that (the applicant) deliberately carried out the transportation
of the drugs. This conclusion is also supported by what Larsen
testified and by what Moore and Morgan stated in their report."
The five-year sentence was confirmed.
Supreme Court proceedings
On 8 December 1987, the applicant applied to the Supreme Court
for leave to appeal against the judgment of the Court of Appeal. He
claimed that the requirements regarding evidence warranting a verdict
of guilt were not fulfilled, that there were shortcomings in the police
investigation of the case, in particular since the police and the
prosecutor had not, as requested by his counsel, interrogated Mr.
Mitchell's girlfriend, P. Finally the applicant also relied on the
great difficulties confronting him in adducing evidence of his own
innocence.
The applicant submitted in particular that the verdict of guilt
was based on hearsay evidence, provided by a co-defendant. The judgment
was furthermore based on mere inferences drawn from the applicant's
behaviour in various situations. It was important for the application
of the law that the Supreme Court should provide guidance as to the
force required of evidence in circumstances like those of the present
case.
On 22 December 1987, the Supreme Court refused the applicant's
request for leave to appeal.
Correspondence
During his detention on remand the applicant received and sent
about thirty letters each week. These were scrutinised in accordance
with the applicable restrictions for remand prisoners.
On 11 November 1987, when the applicant's conviction had been
upheld by the Court of Appeal, the police handed to the applicant a
number of letters sent to him by members of his family, by friends and
professional colleagues. These were letters which the police considered
should not be forwarded to the applicant before the end of the
proceedings. They had been withheld up to seven months from the
applicant. These were letters from:
a. the applicant's former commanding officer, dated
19 May 1987,
b. Suzanne Brook, a friend of the applicant, dated
30 March 1987 and 30 April 1987,
c. Philipp Huntley, a friend of the applicant, dated
24 April 1987,
d. Christopher Brook, a friend of the applicant, dated
14 April 1987.
The applicant submits that the contents of these letters were
entirely personal in nature. The Government submit that the letters
mentioned under a. and c. were interpreted as advising the applicant
to keep silent. As for the letters from Miss Brook, they mention a
person of the name of Christopher and were withheld on the assumption
that this meant Christopher Hayward, the applicant's brother, who was
wanted by the police and about whom the prosecutor did not wish the
applicant to receive any information. The letter from Mr. Christopher
Brook was kept because he was considered to be Christopher Hayward.
According to the Government the applicant was informed that the
letters had been seized. The applicant denies this.
B. Relevant domestic law
a. The preliminary investigation
According to Chapter 23, Section 1, of the Swedish Code of
Judicial Procedure, a preliminary investigation shall be initiated as
soon as there is cause to believe that an offence has been committed.
The purpose of the investigation is, according to Section 2, to make
inquiries concerning the person who may reasonably be suspected of an
offence and concerning the existence of sufficient cause for
prosecuting him. Furthermore, the case shall be prepared so that the
evidence can be brought forward at the main hearing in an uninterrupted
sequence.
Section 3 contains rules about the conduct of the preliminary
investigation. The main rule is that the prosecutor shall direct the
investigation as soon as someone can reasonably be suspected of the
offence. In such cases, the prosecutor generally requests the
assistance of the police.
According to Section 4, not only circumstances pointing to the
guilt of the suspect, but also those favourable to him shall be
considered during the preliminary investigation. The investigation
should be conducted so that no person is unnecessarily exposed to
suspicion or put to unnecessary expense or inconvenience.
Section 18 contains rules about the suspect's right to
information about the investigation. The first two paragraphs read as
follows:
(translation)
"When the preliminary investigation has proceeded to the point
at which a person is reasonably suspected of the offence, that
person, when interviewed, shall be informed of the suspicion. In
so far as it is possible without detriment to the investigation,
he and his defence counsel shall be successively given an
opportunity to be informed of what has taken place in the
investigation. They are furthermore entitled to specify the
inquiry they consider desirable and to state anything else they
regard as required. Notification to this effect shall be given
or dispatched to the suspect and his defence counsel and they
shall be allowed reasonable time for consideration. Prosecution
may not be directed until this has been done.
If the suspect requests that a person be examined or that any
other inquiry be made, his request shall be complied with if it
can be assumed that the measure would be of importance to the
investigation. If the request is denied, the reasons therefor
shall be stated."
If the investigating authority, although it has concluded the
investigation it considers necessary, denies a request pursuant to
Section 18, second paragraph, or if the suspect thinks that there is
another defect in the investigation, the suspect may, according to
Section 19, notify the court thereof. When a notice is filed with it,
the court shall consider and rule upon the matter as soon as possible.
If there is sufficient cause for it, the court may examine the suspect
or any other person, or take any other measure it deems appropriate.
Under Chapter 45, Section 11, and Chapter 51, Section 11, of the
Code of Judicial Procedure the court may enjoin the prosecutor to
complement the preliminary investigation if this is considered
necessary for the main hearing to be completed in an uninterrupted
sequence.
According to Chapter 23, Section 21, a record shall be kept of
matters of importance for the inquiry. As soon as prosecution has been
decided upon, the suspect or his defence counsel shall receive, on
request, a copy of the record. If a public defence counsel has been
appointed for the suspect, a copy shall be delivered or sent to him
without special request.
b. The suspect and his defence
Rules about the suspect and his defence are found in Chapter 21
of the Swedish Code of Judicial Procedure. According to Section 3 the
suspect may, in preparing and conducting his defence, be assisted by
a defence counsel. In some circumstances a public defence counsel shall
be appointed by the court at the suspect's request. A public defence
counsel is paid out of public funds.
The right of the defence counsel to access to a person who is
provisionally detained or detained on remand is regulated in Section
9. The first paragraph of this section reads as follows:
(translation)
"Defence counsel for a person who is provisionally detained or
detained on remand may not be denied access to him. Defence
counsel may speak in private with the person who is provisionally
detained or detained on remand; however, counsel other than a
public defence counsel may do so only with the consent of the
investigating authority or the prosecutor, or when the court
finds a private conference may take place without detriment to
the investigation or to the order or security of the place of
detention."
c. Evidence
There are two fundamental principles in Swedish law concerning
evidence: free presentation of evidence and free evaluation of
evidence.
The principle of free presentation of evidence means that
everything that has any value as evidence can be presented to the
court. There are no rules stating that certain types of evidence are
inadmissible because they may be dangerously misleading. There are some
restrictions concerning certain types of written evidence (see below).
The other fundamental principle regarding evidence under Swedish
law is the principle of free evaluation of evidence. This principle is
expressed in Chapter 35, Section 1, of the Code of Judicial Procedure,
which provides as follows:
(translation)
"The court shall, after careful consideration of all that has
occurred, decide what has been proved in the case."
This means that the court has to take into consideration
everything that has happened during the trial when evaluating the
evidence before it. This includes not only what the parties have
presented to the court as evidence, but also circumstances, as for
example the behaviour of witnesses in court, are elements which can be
taken into consideration when the court assesses the evidence.
As mentioned above, there are restrictions concerning certain
types of written evidence. These are laid down in Chapter 35, Section
14, of the Code of Judicial Procedure. The wording of this Section, at
the time of the trial challenged by the applicant, was as follows:
(translation)
"Neither a written statement made by a person by reason of
pending or contemplated proceedings, nor a recorded account of
a statement given to a prosecutor or police authority, or
otherwise made out of court by reason of pending or contemplated
proceedings, may be admitted as evidence unless admission of the
statement or recorded account is specifically authorised by law,
or the court finds admission justified on the basis of special
circumstances."
d. The treatment of detained persons
Rules on the treatment of persons who are provisionally detained
or detained on remand are found in the 1976 Act Pertaining to the
Treatment of Persons Provisionally Detained or Detained on Remand
(lagen 1976:371 om behandlingen av häktade och anhållna), referred to
below as "the 1976 Act".
Section 1 of the 1976 Act provides that a person who is detained
on remand because he is suspected of an offence may not be made subject
to more far-reaching encroachments on his liberty than required by the
aims of the detention on remand and by the requirements of good order
and security.
Section 9 states that a person detained on remand may send or
receive letters if this can be done without risk from the point of view
of security and, in the case of a person who is detained because of
suspicion of having committed an offence, without danger that evidence
is removed or that the investigation is otherwise made more difficult.
If a person detained on remand refuses to receive a letter or to send
a letter on condition that its contents are scrutinised by the
authorities, the letter is to be kept by the authorities, but it may
not be opened without the consent of the detained person.
e. Certain other rules of procedure pertaining to this case
Under Chapter 46, Section 1, and Chapter 51, Section 15, of the
Code of Judicial Procedure the court shall ascertain whether there is
any obstacle to an immediate and full hearing and final disposal of the
case. If that is found to be the case, the court shall adjourn the main
hearing to another day.
According to the same provisions, the court shall ascertain that
the action in a criminal case is fully developed and that irrelevant
matters are not presented. The court shall attempt to remedy any
unclear or incomplete statement made in the course of the proceedings.
In principle, all decisions taken by a prosecutor in the context
of his handling of a criminal case may be appealed to superior
prosecutors. There are certain exceptions to this principle. These
exceptions concern decisions which may immediately be brought before
a court, or decisions which indicate that the matter settled by the
decision will be brought before a court. Examples of decisions of this
kind are decisions to prosecute, decisions to seize something and
decisions not to grant a request by a suspect to have certain measures
of investigation carried out. Although in principle appeals to a
superior prosecutor concerning decisions of this kind should be
rejected on the ground that they may be brought before a court, they
may exceptionally be accepted for consideration because the appealed
decision is manifestly wrong or because the general interest requires
that a coherent practice is established in a certain respect.
A decision by a court with respect to a request under Chapter 23,
Section 19, of the Code of Judicial Procedure to complement the
preliminary investigation may be appealed separately if no case is
pending before a court. Otherwise appeal is possible only in connection
with an appeal against the judgment on the merits. This follows from
Chapter 49, Sections 4 and 8, of the Code of Judicial Procedure.
Decisions by a court under Chapter 45, Section 11, Chapter 46,
Sections 1 and 2, as well as Chapter 35, Section 14, of the Code of
Judicial Procedure concerning written statements may be appealed
against only together with an appeal against the judgment on the
merits.
The Supreme Court will only deal with a case where leave to
appeal is granted, cf. Chapter 54, Section 9, of the Code of Judicial
Procedure.
COMPLAINTS
The applicant invokes Article 5 para. 3, Article 6 paras. 1-3 and
Article 8 of the Convention.
As regards Article 5 para. 3 of the Convention the applicant
complains that the prosecutor did not act as a judge or other officer
authorised by law to exercise judicial power as he could not be
considered to be independent of the executive and of the parties. The
applicant maintains that this is supported by the fact that the
prosecutor at a very early stage of the investigation made statements
showing that he found the applicant guilty and because of the
prosecutor's failure to investigate matters in the applicant's favour.
Under Article 5 para. 3 of the Convention the applicant also complains
of the fact that he was not brought before the Uppsala District Court
until 11 days and some 13 hours after his arrest.
As regards Article 6 para. 1 of the Convention the applicant
submits that he did not get a fair trial. In particular he maintains
that he was subjected to a series of acts calculated by the prosecutor
and the police authorities to damage his morale, that he was
unnecessarily and arbitrarily held in solitary confinement, that he was
treated by the prosecutor, in public and in private, and by the police
authorities as guilty of the offence with which he was subsequently
charged, that he was not properly informed of the nature and cause of
the accusation against him, that he was not granted adequate time and
facilities for the preparation of his defence, that he was not allowed
to defend himself through legal assistance of his own choosing, that
he was not allowed to examine or challenge two material witnesses who
gave evidence against him and that, in general, he was denied the right
of equality of arms.
In addition to the more general aspect of a fair trial the
applicant specifically invokes Article 6 para. 2 of the Convention,
maintaining that he was not presumed innocent until proved guilty
according to law in that the prosecutor on several occasions, in
particular during a television interview of 24 March 1987 and in three
newspaper articles of 28 April, 30 May and 24 July 1987, expressed the
clear opinion that he considered the applicant guilty of the charges
brought against him.
As regards Article 6 para. 3 (a) of the Convention the applicant
maintains that he was not informed promptly of the nature and cause of
the accusation against him. He was arrested on 13 March 1987 but the
prosecutor did not make the evidence formally available to him until
15 July 1987. The applicant maintains that in view of the fact that the
great bulk of the evidence was in Swedish he was not properly informed.
Furthermore he refers to the fact that he was not informed in a
language which he understood, as he neither speaks nor understands
Swedish. The evidence against him, which ran to 186 pages, was
virtually all in Swedish and the indictment of 17 July 1987 was also
in Swedish.
The applicant also maintains that he did not have adequate time
and facilities for the preparation of his defence and he invokes in
this respect Article 6 para. 3 (b) of the Convention. He points out in
particular that he was only given access to the evidence upon which he
was charged and to his case-file on 15 July 1987, less than two weeks
prior to the date on which the trial commenced. Furthermore, he was
held in solitary confinement, denied access to his English lawyers,
denied access to files compiled by the prosecutor during his
investigations, most significantly the file relating to the
investigation carried out in Ibiza in September 1987, and the
prosecutor carried out an inadequate, incomplete and one-sided
investigation.
Under Article 6 para. 3 (c) of the Convention the applicant
points out that his case, to a very considerable extent, involved
matters arising outside Sweden, notably in Spain and in the United
Kingdom. This was the reason for instructing his present representative
to act on his behalf in regard to those investigations he wished to
undertake in order to prepare his defence. The applicant maintains that
the Convention establishes his right to obtain the services of his
present representative and to communicate with him in order that he
might fully assist in the preparation of his defence. He was, however,
denied access to his English counsel and denied any communication with
him from the date of his arrest until 22 July 1987.
Finally, under Article 6 para. 3 (d) of the Convention the
applicant maintains that the District Court and the Court of Appeal
both relied extensively on evidence relating to information provided
by an anonymous informant as well as the so-called Morgan-Moore report
of 12 June 1987. Neither the informant's information nor that of
Messrs. Morgan and Moore was given under oath and the applicant had no
opportunity to challenge directly the evidence provided thereby.
Under Article 8 of the Convention the applicant submits that the
police and the prison authorities interfered with at least five letters
sent to him by relatives or friends. As each of these letters was
personal in nature the applicant submits that this interference with
his right to respect for his correspondence was not necessary in a
democratic society and thus in violation of Article 8 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 June 1988 and registered on
9 August 1988.
On 4 September 1989 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit, by 17 November 1989, written observations on the
admissibility and merits of the application.
After an extension of the time-limit the Government's
observations were submitted on 3 January 1990. After three extensions
of the time-limit the applicant's observations in reply were submitted
on 31 May 1990.
Additional observations on admissibility and merits were
submitted by the respondent Government on 29 August 1990. Additional
observations in reply were submitted by the applicant on 12 November
1990.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 13 July 1990.
THE LAW
1. The applicant complains that the prosecutor who initially
detained him on remand on 14 March 1987 did not act as a judge or other
officer authorised by law to exercise judicial power as he could not
be considered to be independent of the executive and of the parties.
The applicant furthermore complains of the fact that he was not brought
before a court until 11 days and some 13 hours after his arrest. He
invokes Article 5 para. 3 (Art. 5-3) of the Convention.
Article 5 para. 3 (Art. 5-3) provides that "everyone arrested or
detained ... shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power ...".
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the Commission finds that the situation of
which the applicant complains, i.e. his detention without a court
order, ceased on 24 March 1987, when his detention on remand was
ordered by the Uppsala District Court. Consequently, the date of 24
March 1987 should be regarded as the starting point for the six months
period provided for in Article 26 (Art. 26) of the Convention. The
application, however, was submitted to the Commission on 20 June 1988,
that is, more than six months after the date of this decision.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant also complains that in numerous respects during the
course of the criminal proceedings against him he was denied a fair
trial. He invokes in this regard Article 6 paras. 1-3 (Art. 6-1, 6-2,
6-3) of the Convention which read:
"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 interests 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.
3. Everyone charged with a criminal offence has the following
minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for the
preparation of his defence;
(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;
(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;
(e) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
a. Under Article 6 para. 2 (Art. 6-2) the applicant complains that he
was not presumed innocent until proved guilty according to law in that
the prosecutor on several occasions, on television and in newspaper
articles, expressed the clear opinion that he considered the applicant
guilty of the charges brought against him.
The Government contend that the applicant did not exhaust domestic
remedies as he did not allege that the prosecutor had disqualified
himself. Furthermore, the six month time-limit should be calculated from
the act or the decision in this respect. Finally the Government contend
that the prosecutor was wrongly quoted in the newspapers and that he did
not, in the television interview, express anything but a suspicion.
The Commission does not find it necessary to examine the
Government's objections with reference to Article 26 (Art. 26) of the
Convention. It has previously held that Article 6 para. 2 (Art. 6-2) may
be violated by public officials if they declare that somebody is
responsible for criminal acts without a court having found so. This does
not mean, however, that the authorities may not inform the public about
criminal investigations. They do not violate Article 6 para. 2
(Art. 6-2) if they state that a suspicion exists, that people have been
arrested, that they have confessed etc. (cf. No. 8361/78, Dec. 17.12.81,
D.R. 27 p. 37).
In the present case the Commission notes that the Government deny
that the prosecutor made the statements mentioned in the newspapers. The
Commission does not find it necessary to investigate this further. It
finds in any event that the statements, as reported in the press, only
reflected the public prosecutor's opinion that the evidence was
sufficient to have the applicant convicted by the court. In these
circumstances they did not offend against the presumption of innocence
guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention (cf.
also No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73).
b.Under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention the
applicant complains that he was not informed promptly of the nature and
cause of the accusation against him, in particular since all evidence
was not available to him until 4 months after his arrest and since
virtually all documents were in Swedish.
The Government contend that under the Convention there are no
particular formal requirements as to the way in which the information
required under Article 6 para. 3 (a) (Art. 6-3-a) is to be conveyed to
an accused. Furthermore, they refer to the fact that the applicant was
promptly informed of the accusations against him in connection with his
arrest and detention from 13 to 17 March 1987. In this respect the
Government point out in particular that the service of the indictment on
an accused could not constitute the basis for the appreciation as to
whether the information under Article 6 para. 3 (a) (Art. 6-3-a) was
given promptly.
The Commission recalls that Article 6 para. 3 (a) (Art. 6-3-a) does
not specify that the relevant information should be given in writing or
translated in written form for a foreign defendant. For the purposes of
Article 6 para. 3 (a) (Art. 6-3-a) it is sufficient that the applicant,
through police interrogations or preliminary court hearings, has been
made aware in sufficient detail of the accusations against him (cf. Eur.
Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168,
pp. 36-37, paras. 79-81).
In the present case the Commission recalls that the applicant was
arrested at 10.58 p.m. on 13 March 1987. He was interrogated at 1.20
a.m. the following day and informed of the suspicion against him. On 17
March 1987 he was informed that great quantities of cannabis had been
found the previous day in the car he had driven from Ibiza and on 24
March 1987 he was detained on remand on the basis of the suspicion
against him. It is uncontested that the applicant was able to understand
and follow the investigations either due to the fact that they were
conducted in English or through the assistance of an interpreter. In
these circumstances the Commission considers that the applicant was
informed in a manner which is not at variance with Article 6 para. 3 (a)
(Art. 6-3-a) of the Convention.
c. The applicant also complains that he did not have adequate time and
facilities to prepare his defence. He relies in this respect on Article
6 para. 3 (b) (Art. 6-3-b) of the Convention. He submits that he did not
receive the case-file until approximately two weeks before the trial
commenced, that he was placed in solitary confinement, that part of the
file relating to investigations carried out in Ibiza was denied him and
that all material was in Swedish.
The Government contend that the information obtained during the
preliminary investigations was successively conveyed to the applicant
and to his defence counsel who spoke English and, where appropriate,
could make use of an interpreter. The complete file for the District
Court hearing was received by the applicant on 15 July 1987, i.e.
approximately two weeks before the trial commenced. Furthermore the
Government contend that the applicant had the opportunity to ask for a
deferral of the trial but he chose not to do so when his trial
commenced.
The Commission recalls that Article 6 para. 3 (b) (Art. 6-3-b)
entails two elements of a proper defence, i.e. the question of
facilities and the question of time. As regards the former the
Commission recalls that an English speaking public defence counsel with
appropriate knowledge of Swedish law was placed at the applicant's
disposal as from 18 March 1987, and that he could freely communicate
with counsel, if necessary with the assistance of an interpreter.
Furthermore, the Commission finds it established that documents were
successively conveyed to the applicant and his counsel although it is
true that the "case-file" was not conveyed until 15 July 1987.
Nevertheless, it is clear from the applicant's own submissions that,
together with counsel, he prepared the defence intensively at least as
from 29 June 1987 which is approximately one month before the
commencement of the trial. Finally, the Commission does not find that
the fact that the applicant was placed in solitary confinement had any
unacceptable influence on the preparation of his case.
As regards the question of available facilities one of the
applicant's main grievances derived from his inability to understand or
speak Swedish. As already indicated, the applicant's counsel spoke
English and there is no allegation that the Swedish authorities refused
the assistance of an interpreter where this has proved necessary.
Nevertheless there remains the fact that a number of documents were not
translated.
Articles 6 para. 3 (b) and (e) (Art. 6-3-b, 6-3-e) of the
Convention, however, do not go so far as to require a written
translation of all items of written evidence or official documents in
the procedure. The assistance provided should be such as to enable the
defendant to have knowledge of the case against him and to defend
himself, notably by being able to put before the courts his version of
the events (cf. the above-mentioned Kamasinski judgment, p. 35, para.
74). The Commission finds that this requirement was fulfilled in this
case. In addition to the assistance of counsel and, where necessary, of
an interpreter, the Commission recalls that the applicant states in his
observations of 9 November 1990 that "a great deal of the preliminary
investigation was already in English and did not need to be translated,
...". In these circumstances the Commission has not been able to
establish that translations or means of translation were lacking to such
an extent that the applicant did not have at his disposal the necessary
facilities for a proper defence.
As regards the question of adequate time the Commission finds that
this question cannot be determined in abstracto, but only in relation to
the circumstances of the concrete case (cf No. 7909/74, Dec. 12.10.78,
D.R. 15 p. 160). It recalls that the applicant complains that he did not
receive the case-file until approximately two weeks before the trial
commenced. However, the Commission also recalls that the pre-trial
period lasted about 4 1/2 months during which documents became
successively available to the applicant. The Commission accepts as
appropriate in the circumstances of the present case the period of two
weeks between the service of the indictment and the date of the trial
since in any event all the evidence had to be produced and examined
during the trial. Finally, the Commission notes that the applicant has
not specified in what way the alleged lack of time was detrimental to
his defence. For this reason it finds that, as a whole, the time-period
available to the applicant was sufficient for allowing him to prepare
his defence.
d. The applicant finally complains that during the pre-trial period
he was denied access to his English lawyer. He invokes in this respect
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
It is not disputed by the Government that the applicant was refused
access to his English lawyer until 22 July 1987. They maintain, however,
that the Convention guarantees a right to only one defence counsel who,
under Article 6 (Art. 6) of the Convention, must be understood as being
the person actually participating in the trial. Furthermore, they
contend that the applicant did not exhaust domestic remedies as he did
not endeavour to have his public defence counsel replaced or otherwise
express discontent with him.
The Commission does not agree with the respondent Government on
these points. According to the Commission's case-law the right to legal
assistance of one's own choice is not limited to only one counsel, but
the right to several counsel may be limited for example by the State's
right to make the appearance of lawyers before the courts subject to
regulations and the obligation on defence counsel not to transgress
certain principles of professional ethics (cf. Nos. 7572/76, 7586/76 and
7587/76, Dec. 8.7.78, D.R. 14 p. 64, at p. 114). Furthermore, the
Commission finds that it was not the applicant's intention to replace
his Swedish public defence counsel with his English lawyer.
In the present case the Commission cannot but conclude that the
applicant was satisfied with and wanted to retain his Swedish counsel to
whom he had unlimited access. Secondly, the applicant has not requested
that his English lawyer take part directly in the criminal proceedings
in Sweden, but he rather wanted to obtain his assistance in matters
arising outside Sweden. Thirdly, the applicant has not shown that he was
prevented from requesting such assistance, albeit through his Swedish
counsel, or that he did not receive whatever assistance he might have
deemed useful. In these circumstances the Commission finds that the
applicant had at his disposal the legal assistance of his choice within
the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
e. As regards the actual trial before the District Court and the
Court of Appeal the applicant complains that his conviction was based to
a decisive extent on information provided by an anonymous informer as
well as the Morgan-Moore report of 12 June 1987. He maintains that he
had no opportunity to challenge directly the evidence provided thereby
and that this amounts to a violation of Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention.
The Government contend that the applicant did not exhaust domestic
remedies as he did not appeal against the District Court's decisions of
29 July, 30 July and 3 August 1987 concerning the evidence in question.
Furthermore, they point out that the applicant failed to voice any
objection against the use of this evidence in the Court of Appeal on 5
and 7 October 1987, and that any decision taken by the Court of Appeal
could have been appealed against to the Supreme Court. Finally, the
Government refer to the difficulties in fighting organised crime and in
handling evidence emanating from police informers. They submit that the
evidence in question did not constitute the exclusive or even the main
basis for the conviction of the applicant and that the courts were fully
aware of its secondary importance.
The applicant maintains that he has exhausted all domestic remedies
in this respect since he appealed to the Court of Appeal and to the
Supreme Court. The evidence in question could only have been appealed
against in this way. Furthermore, he submits that the principle of free
presentation of evidence is a normal procedural aspect of the Swedish
legal system and therefore unappealable.
The Commission does not find it necessary to examine the questions
concerning exhaustion of domestic remedies. It recalls that the
admissibility of evidence is primarily a matter for regulation by
national law. As a rule it is for the national courts to assess the
evidence before them. The Commission's task is to ascertain whether the
proceedings considered as a whole, including the way in which evidence
was taken, were fair (cf. for example Eur. Court H.R., Kostovski judment
of 20 November 1989, Series A no. 166).
The Commission finds that all the evidence must normally be
produced in the presence of the accused at a public hearing with a view
to adversarial argument (cf. Eur. Court H.R., Barberá, Messegué and
Jabardo judgment of 6 December 1988, Series A no 146, p. 34, para. 78).
This does not mean, however, that the statement of a witness must always
be made in court, if it is to be admitted in evidence, as this might in
some circumstances prove impossible.
The Commission does not find that the principle adopted by Sweden
as regards the free evaluation of evidence as such runs counter to
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, and hearing Mr.
Larsen as a witness does not therefore disclose any appearance of a
violation of this provision. Nevertheless, the Commission has not
overlooked that Mr. Larsen's testimony was based on information he had
received from an anonymous police informer and it would not exclude, for
the purposes of the present case, that the use of such information could
raise an issue under Article 6 (Art. 6) of the Convention as it was to
some extent taken into account by the courts. Furthermore, as regards
the Morgan-Moore report the question arises whether the use of it as
documentary evidence complied with the requirements of a fair trial.
The Commission finds that the information obtained by Mr. Larsen
through his informer, and the Morgan-Moore report, was far from being
the only evidence in the case. It was also clear to the courts that this
evidence could not be considered to be reliable first-hand information.
Furthermore, the Commission finds that the applicant's conviction was
not based to any decisive extent on this evidence. In particular it
recalls that in the course of the main proceedings in the Court of
Appeal the testimony of 18 witnesses were heard at the request of the
prosecutor and the applicant and it is clear from the judgment that the
applicant's conviction was based on this testimony. Nothing has emerged
which could give rise to any misgivings as regards the fairness of the
applicant's trial or his right to a proper defence in this respect. In
addition, the Commission notes that, as a matter of fact, the Court of
Appeal reached its conclusion without reference to Mr. Larsen's evidence
or to the Morgan-Moore report, but only subsequently noted that its
conclusion was supported by it. In these circumstances the Commission
does not find the fact that the Court of Appeal did not exclude this
evidence could lead to the conclusion that the applicant did not get a
fair trial within the meaning of Article 6 (Art. 6) of the Convention.
Summing up, the Commission recalls that the guarantees in
paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are
specific aspects of the right to a fair trial set forth in paragraph 1.
The Commission has considered the particular aspects and incidents
invoked by the applicant and has found that these did not assume such
importance as to constitute a decisive factor in the general appraisal
of the trial. In addition an examination of the conformity of the trial
as a whole with the rules laid down in Article 6 (Art. 6) of the
Convention has not disclosed any appearance of a violation of this
provision either. 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. Under Article 8 (Art. 8) of the Convention the applicant complains
that his right to respect for his correspondence was violated in that
the police and prison authorities interfered with at least five letters
sent to him by relatives or friends. The applicant submits that each of
these letters was personal in nature and the authorities' interference
cannot therefore be considered necessary in a democratic society.
The Government maintain that the decisions concerning the
applicant's mail were taken more than six months prior to the filing of
his application with the Commission. Furthermore, they submit that any
interference with his mail was in accordance with law and a control was
vital due to the fact that the applicant was detained on remand inter
alia in order to prevent the investigations from being jeopardised. The
Government maintain that in such circumstances the national authorities
should have considerable leeway in deciding whether an interference is
necessary.
The Commission considers that it is not required to decide whether
or not the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case it recalls that the interference with the right
to respect for the correspondence complained of took place during the
applicant's detention on remand, and that he received the letters in
question on 11 November 1987, subsequent to his conviction by the Court
of Appeal. The Commission finds that the question of receiving or
sending mail was not a matter which affected the applicant's trial for
which reason the decision of the Supreme Court of 22 December 1987
refusing leave to appeal cannot be taken into consideration for
calculating the six month time-limit set out in Article 26 (Art. 26) of
the Convention. The Commission finds that 11 November 1987 was the date
of "the final decision" regarding the subject of this particular
complaint, whereas the application was submitted to the Commission on 20
June 1988, that is, more than six months after the date of this
"decision". Furthermore, an examination of the case does not disclose
the existence of any special circumstances which might have interrupted
or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3) 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)
Full & Egal Universal Law Academy