FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26891/95
by Antero LAGERBLOM
against Sweden
The European Court of Human Rights (First Section) sitting on 15 February 2000 as a Chamber composed of
MrJ. Casadevall, President,
MrsE. Palm,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrC. Bîrsan,
MrsW. Thomassen,
MrT. Panţîru, judges,
andMrM. O'Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 January 1995 by Antero Lagerblom against Sweden and registered on 23 March 1995 under file no. 26891/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 22 December 1997 and the observations in reply submitted by the applicant on 16 March 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish national, born in 1942 and living at Hisings Backa, a suburb of Gothenburg, Sweden. He is represented before the Court by Mr Ismo Salmi, a lawyer practising in Gothenburg.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's mother tongue is Finnish but he settled in Sweden in the second part of the 1980s.
On 3 December 1991 the applicant was charged before the District Court (tingsrätten) of Gothenburg with aggravated drunken driving and driving without a driver's licence. According to the record of the police investigation, he did not request assistance by a public defence counsel. On 9 January 1992 the District Court, apparently ex officio, appointed the lawyer H. as public defence counsel for the applicant.
On 22 April 1992 the applicant was furthermore charged with another incident of aggravated drunken driving and driving without a driver's licence. According to the record of the police investigation, he stated that he wanted the lawyer S. to be appointed as public defence counsel.
On 31 August 1992 the applicant was additionally charged with yet another incident of aggravated drunken driving and driving without a driver's licence. According to the record of the police investigation, he did not wish to be assisted by a public defence counsel.
On 22 December 1992 the applicant was charged with having caused a traffic accident, having left the scene of the crime and for driving without a driver's licence. According to the record of the police investigation, he apparently did not wish to be assisted by a public defence counsel.
On 21 January 1993 the applicant was finally charged with possessing a knife in a public place. According to the record of the police investigation, he did not wish to be assisted by a public defence counsel.
On 22 January 1993 the public prosecutor applied for a detention order regarding the applicant. He was this time suspected of attempted aggravated assault. According to the prosecutor's application, the applicant wanted S. as public defence counsel. At the hearing for the purpose of examining the prosecutor's application, the lawyer P.S. replaced, with the court's permission, H. as public defence counsel. According to the minutes from the hearing, the applicant requested that S., a Swedish lawyer who had previously assisted him and who knew Finnish, should be appointed as his public defence counsel, whereupon the judge informed him that he should give his reasons for this request in writing. The court rejected the application for a detention order and released the applicant. Subsequently he did not submit a written request for a change of defence counsel.
On 9 February 1993 the applicant was charged with attempted aggravated assault and for possessing a knife in a public place.
When scheduling the main hearing, the District Court had telephone contact with the applicant who reiterated his request for having S. appointed as his public defence counsel. The court asked the applicant to contact H. in the matter.
Before the District Court the applicant apparently lodged some submissions independently of counsel H. These submissions were apparently all in Finnish, the applicant invoking his right under the Nordic Language Convention (Nordiska språkkonventionen) to submit pleadings in his mother tongue. All the written submissions were translated into Swedish and entered into the case-file.
At the main hearing on 10 May 1994 the applicant was assisted by H. as public defence counsel. Neither in the minutes from the hearing nor in the judgment delivered in the case are there any notes indicating that the applicant at that time wanted to change his public defence counsel. In addition to counsel's oral submissions the applicant defended himself orally in Finnish via a court-appointed interpreter. As to the offences he was prosecuted for, he denied some, confessed some and declared that he did neither confess nor deny the remainder of the offences.
On 24 May 1994 the applicant was convicted on all counts and sentenced to 1 year and 2 months' imprisonment.
The applicant appealed against the judgment in so far as he had been convicted in spite of his having denied the charges. The prosecution also appealed, seeking a more severe sentence. The prosecution stated, inter alia, that the applicant was strongly in need of official counsel for his representation, although he clearly did not wish to be represented by H.
In the proceedings before the Court of Appeal (hovrätten) for Western Sweden the applicant requested that counsel H. be replaced by S. The applicant reiterated that he had previously been assisted by S. and that he was able to communicate with him in Finnish. S. had declared that he was willing to assist the applicant as public defence counsel.
On 6 September 1994 the applicant's request was refused, the appellate court considering that sufficient reasons for a change of counsel had not been presented. On 30 November 1994 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal against the Court of Appeal's refusal.
Also before the appellate court the applicant apparently lodged some submissions in Finnish, all of which were translated into Swedish and entered into the case-file.
On 22 May 1995 the Court of Appeal heard the case. H. attended the hearing as the applicant's counsel. There are no notes in the minutes from the hearing that the applicant opposed H.'s presence. Having heard H.'s oral pleadings, the Court of Appeal gave the applicant the floor via a court-appointed interpreter.
On 6 June 1995 the Court of Appeal upheld the applicant's conviction and sentence. On 23 August 1995 the Supreme Court refused him leave to appeal.
B.Relevant domestic law and practice
The references made in the following pertain to Chapter 21 of the 1942 Code of Judicial Procedure (rättegångsbalken; hereinafter “the Code”), if not otherwise indicated.
a.The suspect and his defence
The suspect may himself conduct his defence (Section 1). However, in preparing and conducting his defence, he may be assisted by a defence counsel (Section 3). In some circumstances, a public defence counsel shall be appointed by the court at the suspect's request. A defence counsel chosen by the suspect is referred to as a private defence counsel as opposed to one appointed by the court, who is referred to as a public defence counsel.
A private defence counsel is paid for by the suspect. If there is an acquittal the former suspect is normally reimbursed for the cost of his defence. A public defence counsel, on the other hand, is paid for from public funds (Section 3 a). The rules in Chapter 31 of the Code regulate who will eventually bear the cost for the defence counsel in such a case. That normally depends on the outcome of the case. If the defendant is convicted, he will usually have to pay part of or the whole cost for his defence depending on his economic situation. If not, the State will bear the cost.
It is primarily a task for the suspect himself to choose a defence counsel (Section 3 § 2). If the suspect has appointed somebody to represent him and has given him a power of attorney, that person is regarded as his defence counsel (Section 3 § 2 in fine) and the court shall not appoint a public defence counsel when the suspect is already assisted by a defence counsel of his own choice (Section 3 a § 3).
The court shall consider the question of appointing a public defence counsel when there is an application made for such counsel to be appointed or when the court otherwise finds cause to consider it (Section 4 § 2). An application for appointing a public defence counsel may be lodged by the suspect himself, or by the public prosecutor responsible for the pre-trial investigation. The court may also ex officio appoint a public defence counsel. The purpose of the system of public defence counsels is to create a guarantee that a suspect, who has not chosen a private defence counsel, shall not be left without the possibility of legal assistance when such assistance is called for. The starting-point for the court when considering the question shall always be whether there is a need for a defence counsel considering the character of the matter at stake. According to the travaux préparatoires to the legislation, there shall be no consideration of the economic situation of the suspect in this context (cf. Government Bill 1983/84:23 p. 13).
A person who is arrested or in detention shall always have a public defence counsel if he so requests. Such a defence counsel shall also, on demand, be appointed for a person suspected of an offence for which the statutory sanction is not more lenient than imprisonment for 6 months (Section 3 a § 1).
The suspect has a certain influence when it comes to the appointment of a public defence counsel. The court shall appoint a person suggested by the suspect if that person is competent, unless the appointment would cause considerably increased costs or otherwise special reasons indicate that the appointment should not be made (Section 5 § 2). According
to the travaux préparatoires to the legislation (cf. NJA II 1943, p. 285), it is important that the suspect can have, as a defence counsel, someone in whom he has confidence. Only for the above-mentioned reasons someone other than the person suggested by the suspect should be appointed. There is no right of the suspect to have a public defence counsel appointed who speaks the language of the suspect, but such considerations may be taken into account. Otherwise the matter of language is solved by using interpreters paid from public funds.
b.Revocation of an appointment as a public defence counsel
A decision to appoint a public defence counsel may be revoked by the court if there is no longer a need for such counsel, or if there is some other justifiable reason for revocation. If the suspect himself chooses another person as his defence counsel, the appointment should also be revoked, unless this would cause considerable inconvenience (Section 6).
c.Change of public defence counsel
As already mentioned, an appointment of a public defence counsel may be withdrawn if there are justifiable reasons. Thus, there also have to be justifiable reasons for a change of public defence counsel (cf. NJA II 1943, p. 285). There are some examples in case-law of how this issue has been dealt with by the courts.
In one case (NJA 1980, p. 177) the Supreme Court allowed a change of public defence counsel on the grounds that special importance should be attached to a lack in the defendant's confidence in his public defence counsel when the defendant risked a long term imprisonment and there might be different opinions as to what evidence should be presented to the court. The District Court had sentenced the defendant to 6 years' imprisonment for, inter alia, an aggravated narcotics offence.
A second case (NJA 1981, p. 1080) dealt with a defendant who, pleading not guilty, had been sentenced for murder to life imprisonment in two instances. The Supreme Court stated that in such a case, when lacking confidence in his public defence counsel, the defendant should be allowed a change of counsel.
In a third case (RH 17:84) a Finn was suspected of murder. The Court of Appeal did not allow him to have his public defence counsel exchanged in favour of someone who was able to speak Finnish.
d.Appeals
A decision by a District Court to refuse an application to have a defence counsel appointed, or to appoint another counsel than the one proposed by the party, may be brought before a Court of Appeal and further to the Supreme Court.
e.Language
The Finnish language has no special status in Swedish legislation. In this respect the situation is different from that in Finland, where Swedish is one of the two official languages. Contrary to many other European countries, Swedish law does not mention any language as being the official language of the country and no language has a special status under the law.
A great number of different languages are in use in Sweden today. However, Swedish is always the working language of the courts and of all public authorities. When a person appearing before a court does not speak Swedish, adequate interpretation is used at the expense of the State.
COMPLAINTS
The applicant complains that he was not allowed to be defended by a counsel of his own choosing, with whom he could have spoken Finnish and whose pleadings he would have fully understood.
He also complains that he was able to communicate with the counsel appointed for him only via an interpreter.
Finally, he alleges that – apart from not knowing Finnish – that the counsel appointed for him was incompetent.
The applicant invokes Article 6 of the Convention.
PROCEDURE
The application was introduced on 2 January 1995 and registered on 23 March 1995.
On 2 July 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government's written observations were submitted on 22 December 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 16 March 1998, also after an extension of the time-limit.
On 10 March 1998 the Commission granted the applicant legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains that he was not allowed to be defended by a counsel of his own choosing with whom he could have spoken Finnish, whose pleadings he would have fully understood and whose fees he would, if necessary, have paid himself. Given his insufficient knowledge of Swedish, he was able to communicate with the court-appointed counsel H. only via an interpreter. Moreover, H. was generally incompetent.
The applicant invokes Article 6 of the Convention which, so far as relevant, reads 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: ...
b) to have adequate ... facilities for the preparation of his defence;
c) to defend himself ... 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; ...
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The Government maintain that Article 6 § 3 of the Convention guarantees to an accused person that the proceedings against him will not take place without an adequate representation of the case for the defence, but it does not give him the right to decide himself in what manner his defence should be assured. The Government stress that the applicant was never prevented from appointing S. as his private defence counsel. If he had done so, the courts would probably have revoked H.'s appointment as public defence counsel.
Furthermore, the Government submit that the applicant did not want to be assisted by a public defence counsel in the first place when his case was brought before the District Court in 1991. However, the court obviously considered that the interests of justice required legal assistance in the case and therefore appointed a public defence counsel for him. It is primarily for the domestic authorities to make this assessment. By appointing a public defence counsel for the applicant, the court guaranteed the right to an adequate defence.
The Government also adduce that there is nothing in the case-files of the District Court and the Court of Appeal indicating that H. did not fulfil his obligations to give the applicant effective assistance. As a matter of fact, no reason whatsoever was given for the applicant's request before the District Court to have H. replaced by S. The reason given before the Court of Appeal was not the applicant's lack of confidence in H. The applicant did not risk a long term of imprisonment, and a change of counsel at that late stage would probably have implied considerably increased costs for the State. Also, if S. had been appointed, interpretation into Finnish would still have been necessary before the courts if the applicant, as he claims, had an insufficient knowledge of Swedish. Furthermore, there is no indication in the minutes of the oral hearing before the Court of Appeal that the applicant objected to H.'s attendance as his public defence counsel, or that the applicant should not have been allowed to conduct his own defence. It is evident, the Government submit, that the applicant's right to defend himself in person was observed by the courts and that the necessary interpretation was provided.
In the Government's view, the applicant has failed to substantiate that he was not ensured effective assistance by his public defence counsel. The Government are of the opinion that the assessment made by the Swedish courts of the need to replace defence counsel must clearly be considered as falling within the margin of appreciation afforded to a Contracting State when examining a question of this character.
In conclusion, the Government aver that the applicant was provided with the necessary defence in order to ensure a fair trial.
The applicant maintains that he did not want a public defence counsel appointed for him as regards the initial proceedings against him, since he was aware of the sentence he could expect. All he could expect was that a part of the cost for that counsel would fall on him. It might be justified to appoint a public defence counsel for a suspect in very complicated cases, but drunken driving and other traffic offences are not so serious as to warrant such an appointment against the will of the suspect. However, when accused of aggravated assault the applicant denied the accusation. At this point, because of the severity of the allegations, he wanted to have a public defence counsel appointed for him. He understood that he risked a long sentence of imprisonment. The applicant clearly requested that S. represent him. This request was denied without specific reasons being given.
The applicant further submits that H. was unable to perform his duties effectively as defence counsel due to the applicant's refusal to co-operate with him and their difficulties in communicating. Communication between the defendant and his counsel is crucial in planning an effective defence strategy. Furthermore, S. had his office in the same city as H., so there would not have been any increased costs in appointing him as public defence counsel.
Lastly, the applicant maintains that, belonging to a large Finnish minority in Sweden, the courts should have appointed a Finnish-speaking public defence counsel for him.
The Court considers, in the light of the parties' submissions, that the applicant's complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
Michael O'BoyleJosep Casadevall Registrar President
Full & Egal Universal Law Academy