AS TO THE ADMISSIBILITY OF
Application No. 18484/91
by K.Å.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 May 1991 by K.Å.
against Sweden and registered on 9 July 1991 under file No. 18484/91;
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 applicant is a Swedish citizen born in 1955 and residing in
L. Before the Commission he is represented by Hanserik Romelind, a
lawyer practising in Ängelholm.
The particular circumstances of the case
The facts as submitted by the applicant may be summarised as
follows.
On 28 June 1989 the District Court (tingsrätt) of Klippan
convicted the applicant of, inter alia, grand larceny (grov stöld) and
sentenced him, after having considered his personal history, to
probation combined with a special undertaking to undergo treatment. The
Court stated in its judgment that if the applicant had not agreed to
undergo treatment, it would instead have imposed a one year prison
sentence.
However, the applicant left the institution where he received
treatment, allegedly in breach of the contract, and the public
prosecutor applied to the District Court to have the sentence reviewed
as the applicant had not lived up to his undertaking to undergo
treatment. The applicant denied having broken his undertaking.
By final decision of 14 June 1990 the District Court quashed its
earlier judgment as far as the sentence was concerned and sentenced the
applicant to eight months imprisonment considering the fact that he had
undergone part of the treatment agreed to in the first judgment.
The applicant appealed against this decision to the Court of
Appeal (hovrätten) of Skåne and Blekinge, requesting an oral hearing
and the hearing of a witness.
By final decision of 18 September 1990 the Court of Appeal
rejected the requests for an oral hearing and for the hearing of a
witness and confirmed the decision of the District Court.
The applicant applied to the Supreme Court (Högsta domstolen) for
leave to appeal (prövningstillstånd) maintaining inter alia that the
absence of an oral hearing before the Court of Appeal constituted a
grave procedural error and was also in violation of Article 6 of the
Convention. By decision of 9 November 1990 the Supreme Court refused
leave to appeal.
Relevant domestic law and practice
According to Chapter 30, section 9, of the Criminal Code
(brottsbalken) the court may choose to sentence the convicted person
to probation if it believes that the origin of the criminal activity
is abuse of drugs or some other special circumstance and if the person
in question declares himself willing to undergo treatment in accordance
with a previously established plan.
According to Chapter 28, section 6 a, of the Code, the court
shall, if the undertaking to undergo treatment is essential for its
sentence to probation, indicate in its judgment the length of the
prison sentence which would have been imposed if that sanction had been
chosen.
If the convicted person seriously breaches his undertaking to
undergo treatment, the prosecutor may, according to Chapter 28, section
8, request the court to set aside the probation. Under section 9 of the
same Chapter, the court shall then impose some other sanction for the
offence. In so doing the court shall take into account the sentence
already served and any indication which may have been given under
Chapter 28, section 6 a, as to what prison sentence was envisaged as
an alternative. Section 9 also prescribes that, if imprisonment is
imposed, the court may fix a shorter sentence than the one otherwise
prescribed for the offence in question.
COMPLAINTS
The applicant maintains that the Court of Appeal's refusal to
hold an oral hearing and to hear the witness invoked, violated his
right to a fair trial as guaranteed in Article 6 paras. 1 and 3 (d) of
the Convention.
THE LAW
The applicant maintains that the Court of Appeal's refusal to
hold an oral hearing and to hear the witness invoked, violated his
right to a fair trial as guaranteed in Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention. The relevant parts of these
provisions read as follows:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] tribunal.
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
... ."
The Commission recalls that the determination of a criminal
charge comprises not only conviction, but also sentencing (see, Eur.
Court H.R. Eckle judgment of 28 June 1989, Series A No. 51, p. 35,
para. 77).
In the present case the District Court convicted and sentenced
the applicant for the offence at issue by its judgment of 28 June 1989
and subsequently fixed a term of imprisonment when the applicant was
found to have breached his undertaking.
The question is thus whether the prison sentence subsequently
imposed was covered by the earlier judgment.
The Commission notes that the District Court in its judgment of
28 June 1989 made a full examination of the question of sentencing:
after having examined the reasons underlying the applicant's criminal
activity and obtained the applicant's consent to undergo certain
treatment, the District Court sentenced him to probation combined with
an undertaking to undergo the treatment agreed to. In addition, the
District Court indicated the length of the prison sentence which it
would have imposed had the applicant not accepted the treatment plan,
i.e. imprisonment of one year. The probation was eventually set aside
as the applicant was found to have broken his undertaking to undergo
treatment, but there is no indication that the sentence thereafter
imposed went beyond what had been envisaged in the first judgment. In
fact the prison term was reduced to eight months taking into account
the length of the treatment undergone by the applicant. In view hereof,
the Commission does not find that the impugned decisions constituted
a new determination of the criminal charge and, accordingly, Article
6 para. 1 (Art. 6-1) of the Convention does not apply to them.
It follows that the present application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy