AS TO THE ADMISSIBILITY OF
Application No. 15329/89
by Roland JOHANSSON and Martin OLSSON
against Sweden
The European Commission of Human Rights sitting in private
on 6 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
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 January 1989
by Roland JOHANSSON and Martin OLSSON against Sweden and registered
on 1 August 1989 under file No. 15329/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Swedish citizens born in 1925 and 1922,
respectively, and resident at Borlänge. They are retired.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 5 March 1984 the first applicant shot a protected elk
because he had found it starved and sick. Previously he had called
the police and without official inspection of the elk obtained
permission to shoot it. The second applicant was also present at the
shooting. The applicants on the same day informed members of the
local hunting association of the incident and subsequently made use of
the meat partly for human consumption and partly as dogfood.
On 25 September 1984 the applicants were arrested and
interrogated after the Chief Prosecutor I.D. of Borlänge in his
capacity as Secretary to the local hunting association had reported to
the police that, on the basis of an opinion from the National
Veterinary Institute (statens veterinärmedicinska anstalt) on the
elk's remains collected by members of the hunting association the
applicants had illegally shot a healthy elk. The first applicant was
fetched from his home by the police at 14.30, interrogated from
14.55 to 16.00 and arrested at 16.00. On 26 September 1984 from 16.20
to 17.05 he was again interrogated and at 18.30 he was released. The
second applicant was fetched from his home by the police at 10.15.
From 10.30 to 12.55 he was interrogated and at 13.00 he was arrested.
On 26 September 1984 from 10.30 to 12.10 he was again interrogated and
at 18.20 he was released. The first applicant's rifle was seized.
On 30 October 1984 the District Court (tingsrätten) of Falun
revoked the seizure, as the first applicant could not reasonably be
suspected of having committed an offence.
In October 1984 the first applicant was told by I.D. that
"something really bad could happen to him" if he involved the press in
the hunting case. The incident took place in the street during office
hours.
In connection with the investigation in September 1984 the
National Veterinary Institute was asked to give an additional expert
opinion. This was delivered in March 1985.
In March 1985 the applicants were excluded from the hunting
association.
On 30 September 1985 the District Prosecutor O.S. closed the
pre-trial investigation. Subsequently I.D. and the crime investigator
in charge of the case requested the Regional Prosecutor to review the
decision.
Following a re-opening of the pre-trial investigation as well
as re-interrogations and interrogations of new witnesses the Regional
Prosecutor on 13 February 1986 quashed the District Prosecutor's
decision and ordered another District Prosecutor to bring charges
against the applicants.
On 2 December 1986 the District Court convicted the applicants
of a gross hunting offence. They received suspended sentences and
fines. The judgment was given following a hearing and an inspection
of the scene of the incident. The applicants were represented by
official counsel. Nine witnesses were heard, six on the prosecutor's
behalf and three on behalf of the defence. The applicants alleged
inter alia that the elk's remains had been exchanged as part of a
conspiracy by members of the hunting association.
Following the judgment by the District Court and the
applicants' appeal a supplementary police investigation was carried
out on the scene of the crime. It appears from the judgment of the
Court of Appeal that as a result of that investigation an empty
cartridge was found. Subsequently, an opinion of the National
Laboratory of Forensic Science (statens kriminaltekniska laboratorium)
to that regard was submitted to the Court of Appeal.
On 28 April 1988 the Svea Court of Appeal (Svea hovrätt)
held a re-hearing of all witnesses heard by the District Court and
heard two new witnesses on behalf of the defence, one of whom was an
expert witness. On 11 May 1988 the District Court's judgment was
upheld.
On 3 October 1988 the Supreme Court (Högsta domstolen) refused
leave to appeal.
In June 1988 the applicants reported the pre-trial
investigation and the court proceedings to the Parliamentary Ombudsman
who in October 1988 dismissed the case as being out of time and
outside his competence.
COMPLAINTS
1. The applicants complain that they were unlawfully detained,
the detention decisions being influenced by I.D. in his double role as
Chief Prosecutor and member of the hunting association. They invoke
Article 5 para. 1 of the Convention.
2. The applicants further complain that they did not receive a
fair trial, as they were wrongly convicted by partial tribunals.
In particular, they were not informed about their right to a lawyer
during the interrogations in detention, the pre-trial investigation
was not objective, and the first applicant, his wife and the expert
witness were interrupted by the presiding judge during the hearing
before the Court of Appeal. Furthermore, because of their limited
incomes there was no equality of arms in the court proceedings. They
finally submit that the court decisions were not made within a
reasonable time. They invoke Article 6 paras. 1, 3 (c) and 3 (d)
of the Convention.
3. The first applicant further complains that he was deprived of
his right to freedom of expression, as he was warned by I.D. not to
involve the press in the case. He alleges that I.D. acted in his role
as Chief Prosecutor. He invokes Article 10 of the Convention.
4. The applicants finally complain that they could not obtain a
review by the Parliamentary Ombudsman of the alleged unlawful measures
taken in their case. They invoke Article 2 of Protocol No. 7 to the
Convention and Article 13 of the Convention.
THE LAW
1. The applicants complain that they were unlawfully detained, as
the detention decisions were influenced by I.D. in his double role as
Chief Prosecutor and member of the hunting association. They invoke
Article 5 para. 1 (Art. 5-1) of the Convention.
Article 5 para. 1 (Art. 5-1) of the Convention reads, insofar
as it is relevant:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing
after having done so; ..."
The Commission observes that the applicants' detention ended
on 26 September 1984, while their application to the Commission was
introduced on 20 January 1989, that is more than six months later.
Furthermore, an examination of the case does not disclose 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 contrary to Article 26 (Art. 26) and must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants further complain that they did not receive a
fair trial, as they were wrongly convicted by partial courts. They
also submit that they were not informed about their right to a lawyer
during the interrogations in detention, that the pre-trial
investigation was not objective, and the first applicant as well as
his wife and the expert witness were interrupted by the presiding
judge during the hearing before the Court of Appeal. They further
submit that because of their limited incomes there was no equality of
arms in the court proceedings, and that the court decisions were not
taken within a reasonable time. They invoke Article 6 paras. 1 and 3
(c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar
as it is relevant:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal
established by law..."
Article 6 paras. 3 (c) and 3 (d) (Art. 6-3-c, 6-3-d) of the
Convention read:
"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;
(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; ..."
(a) The Commission has first examined the complaints under
Article 6 paras. 1, 3 (c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the
Convention insofar as they pertain to the alleged wrong conviction and
the fairness of the proceedings, including the pre-trial
investigation.
The Commission first 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 (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 p. 31, 45).
As a general rule, it is for the national courts, and in
particular for the court of first instance, to assess the evidence
before them. It must therefore be determined whether the proceedings
as a whole were fair, as required by Article 6 para. 1 (Art. 6-1) of the
Convention (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of
6 December 1988, Series A No. 146, p. 31, para. 68).
The Commission recalls that it is not required to decide
whether or not the facts alleged by the applicant disclose any
appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention as, under Article 26 of the Convention, it may only deal
with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case it has not been shown that the applicants,
either in form or in substance, submitted their above allegations of
unfairness to the domestic courts. They have, therefore, not exhausted
the remedies available to them under Swedish law. Moreover, an
examination of the case as it has been submitted does not disclose the
existence of any special circumstances which might have absolved the
applicants, according to the generally recognised rules of
international law, from exhausting the domestic remedies at their
disposal.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and the complaint
in this respect must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
(b) The Commission has secondly examined the complaint under
Article 6 para. 1 (Art. 6-1) of the Convention pertaining to the
length of the criminal proceedings. It recalls that the
reasonableness of the length of proceedings must be assessed in the
light of the particular circumstances of the case and having regard to
the criteria laid down in the case-law of the Convention organs, in
particular the complexity of the case, the conduct of the applicants
and that of the relevant authorities (Eur. Court H.R., Moreira de
Azevedo judgment of 23 October 1990, Series A No. 189, p. 18, para.
71, with further reference).
The Commission observes that the applicants were arrested on
25 September 1984 and released on the following day. On 30 September
1985 the District Prosecutor decided not bring charges against the
applicants. However, on 13 February 1986 the Regional Prosecutor
quashed that decision and ordered another District Prosecutor to bring
charges against the applicants. Following further pre-trial
investigations the District Court on 2 December 1986 held a hearing
following which the applicants were convicted and sentenced.
Following the applicants' appeal the Court of Appeal held a hearing on
28 April 1988. On 11 May 1988 the District Court's judgment was
upheld. On 3 October 1988 the Supreme Court refused leave to appeal.
The period in question seems rather long. The Commission in
that respect, however, notes that the applicants' case was not a
simple one, as was reflected by the fact that the District
Prosecutor's decision was quashed and the pre-trial investigation
re-opened. This was so in particular in regard to the establishment
of the facts, which necessitated inter alia expert opinions from the
National Veterinary Institute. Moreover, following the judgment by
the District Court a supplementary police investigation was carried
out on the scene of the crime. It appears from the judgment of the
Court of Appeal that as a result of that investigation an empty
cartridge was found. Subsequently, an opinion of the National
Laboratory of Forensic Science in that regard was submitted to the
Court of Appeal. Taking into account all the circumstances of the
case, which was dealt with in three instances, the length of the
proceedings cannot be considered to be in violation of Article 6 para.
1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The first applicant complains that he was deprived of his
right to freedom of expression in that he was warned by I.D. not to
involve the press in the case. He alleges that I.D. acted in his
role as Chief Prosecutor. He invokes Article 10 (Art. 10) of the
Convention which reads:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to
receive and impart information and ideas without
interference by public authority and regardless of
frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the
judiciary."
Assuming that I.D. expressed himself in the way maintained by
the applicant and that he did so in his capacity as Chief Prosecutor,
the Commission does not, however, find that this involved, in the
circumstances, an interference with the applicant's right under Article
10 (Art. 10) of the Convention.
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. The applicants finally complain under Article 2 of Protocol
No. 7 (P7-2) to the Convention and Article 13 (Art. 13) of the
Convention that they could not obtain a review by the Parliamentary
Ombudsman of the alleged unlawful measures taken in their case.
(a) Article 2 of Protocol No. 7 (P7-2) to the Convention reads:
"1. Everyone convicted of a criminal offence by a
tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal. The exercise of
this right, including the grounds on which it may be
exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first
instance by the highest tribunal or was convicted following
an appeal against acquittal."
The Commission observes that the District Court's decision was
given on 2 December 1986. However, Protocol No. 7 to the Convention
entered into force with regard to Sweden on 1 November 1988.
It follows that the complaint in this respect is incompatible
ratione temporis with the provisions of the Convention.
(b) Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The Commission finds no appearance of a violation of Article
13 (Art. 13) 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