AS TO THE ADMISSIBILITY OF
Application No. 18066/91
by Per-Göran NÄSS
against Sweden
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the 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
6 February 1991 by Per-Göran Näss against Sweden and registered
on 10 April 1991 under file No. 18066/91;
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 facts of the case, as submitted by the applicant, may
be summarised as follows.
The applicant is a Swedish citizen, born in 1933. He
resides in Värmland, Sweden. Before the Commission he is
represented by Mr. Gunnar Berg, a lawyer practising in Stockholm.
Following the murder of the Swedish Prime Minister, Olof
Palme, extensive police investigations commenced. In connection
with certain investigations in this respect it turned out that
illegal electronic surveillance of possible suspects was carried
out by the authorities. Separate investigations into this matter
commenced in 1989. The applicant was interrogated and eventually
suspected, in his capacity as a high official within the security
police, together with five others, of having been involved in
illegal electronic surveillance of possible suspects in the Palme
case in eight instances.
By indictment of 27 March 1990 the applicant was charged
with eight counts of illegal surveillance (olovlig avlyssning)
contrary to Chapter 4, Section 9a of the Penal Code
(brottsbalken).
In the course of 1990 the applicant requested the public
prosecutor to undertake a number of further investigations and,
in particular in respect of count eight of the indictment which
concerned the alleged illegal surveillance of a person in
Malmskillnadsgatan in Stockholm, the applicant requested the
prosecutor to produce further documents from the archives and
registers of the security police which primarily concerned
Palestinian terrorist activities in Sweden. The applicant's
request was rejected by the public prosecutor as he considered
the documents to be of no relevance to the case.
The applicant brought the prosecutor's refusal to undertake
the investigations which he deemed necessary for his defence
before the District Court (tingsrätten). By decision of 12 June
1990 the District Court rejected the request for the above
documents to be produced as it found that the prosecutor's
evaluation of what material was relevant for the trial was
correct. It indicated that its decision could not be appealed
against separately but only in connection with the judgment. The
applicant, however, lodged an appeal with the Court of Appeal
(hovrätten) alleging grave procedural error (domvilla). The Court
of Appeal dismissed the appeal on formal grounds on 10 July 1990.
The applicant's application to the Supreme Court (Högsta
domstolen) for leave to appeal was rejected by the Supreme Court
on 30 August 1990.
In the meantime, the applicant had on 14 June 1990 requested
the security police to provide him with the material in question
which also concerned the resident of the apartment in
Malmskillnadsgatan and his alleged involvement in Palestinian
terrorist activities in Sweden. His request was, however,
rejected by the security police on 18 June 1990 with reference
to Chapter 7, Section 17, of the Secrecy Act (sekretesslagen).
This decision was upheld by the Administrative Court of Appeal
(Kammarrätten) on 31 July 1990 and by the Supreme Administrative
Court (Regeringsrätten) on 7 December 1990.
The applicant finally requested the Government to hand out
the material in question. He relied on a provision of the Secrecy
Act according to which the Government may order that certain
secret material be handed out to an individual in case the
individual concerned establishes that his rights depend on the
secret information. However, by decision of 9 August 1990 the
Government rejected the applicant's application. They stated that
there was no ground on which the applicant's request could be
granted. Consequently, the Government considered the applicant
could effectively exercise his rights without having recourse to
the secret information.
The applicant challenged the lawfulness of the Government's
decision of 9 August 1990 in the Supreme Administrative Court.
However, by decision of 7 December 1990 the Court found that it
lacked competence to deal with the applicant's appeal as the
matter submitted did not fall under the 1988 Act on Judicial
Review of Certain Administrative Decisions (lagen om
rättsprövning av vissa förvaltningsbeslut).
In the meantime the applicant's trial had commenced in the
District Court of Stockholm. The applicant, present and
represented by counsel, decided to make use of his right not to
express himself as to the charges brought against him. The Court
heard several witnesses and a substantial amount of documentary
evidence was submitted. Following an evaluation of the available
evidence the District Court pronounced judgment on 20 December
1990 whereby the applicant was acquitted of all charges except
one which concerned illegal electronic surveillance of an
apartment at Vargvägen in Stockholm. He was sentenced to pay
fines totalling 10,500 SEK.
The public prosecutor appealed against the judgment to the
Court of Appeal (hovrätten) in so far as the applicant had been
acquitted and the applicant appealed against it to the extent he
had been convicted. In his appeal the applicant in particular
requested the Court to dismiss (avvisa) the prosecutor's appeal
in so far as it concerned the charges of illegal surveillance of
the apartment at Malmskillnadsgatan and referred again to the
fact that he had not been allowed access to documents held by the
security police which in his opinion were of importance for his
defence in this respect.
On 9 July 1991 the Court of Appel rejected the applicant's
request for the dismissal of that part of the case and proceeded
with it. The applicant was heard and the Court further obtained
statements from seventy witnesses. Documentary evidence of more
than 1,000 pages was also produced. On the basis of an
evaluation of this evidence the Court of Appeal pronounced
judgment on 27 March 1992. The applicant was found guilty of
illegal surveillance in four cases and acquitted as regards the
remaining four cases, including the surveillance in respect of
the apartment in Malmskillnadsgatan. He was given a suspended
sentence (villkorlig dom) and ordered to pay fines totalling
18,000 SEK.
The applicant applied for leave to appeal to the Supreme
Court in so far as he had been convicted. However, leave to
appeal was refused on 2 April 1993.
COMPLAINTS
The applicant complains that he was not presumed innocent
until proved guilty by law. He refers in this respect to the
prosecutor's attitude towards him and to the fact that the
administrative authorities, the District Court and the
administrative courts rejected his requests for documents from
the security police which, in his opinion, were of importance to
his defence. The applicant invokes in this respect Article 6
para. 2 of the Convention.
The applicant further complains that he was not allowed to
prepare his defence properly and thus did not have a fair trial
in that he was denied access to the above documents. He invokes
in this respect Article 6 paras. 1 and 3(b) of the Convention.
As regards his trial the applicant also invokes Article 2
of Protocol No. 7 to the Convention explaining that he was
deprived of his right to have his conviction reviewed by a higher
tribunal.
Finally, the applicant complains that he had no access to
a court within the meaning of Article 6 para. 1 of the Convention
when the Government, on 9 August 1990, refused him access to the
security police documents. He refers in this regard to the fact
that the Supreme Administrative Court dismissed his request for
judicial review as such a review was not possible in the
particular circumstances.
THE LAW
1. The applicant complains that, in various 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 in so far as
relevant read as follows:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by an independent and impartial tribunal established by
law. ...
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:
...
b. to have adequate time and facilities for the
preparation of his defence;
... ."
a. Under Article 6 para. 2 (Art. 6-2) of the Convention the
applicant complains that he was not presumed innocent until
proved guilty according to law, exemplified by the public
prosecutor's attitude against him and the unsuccessful attempts
to obtain documents from the archives and register of the
security police.
The Commission recalls that 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, as submitted by the applicant, the
Commission has found no evidence which could substantiate the
allegation that the public prosecutor or other Swedish
authorities offended against the presumption of innocence
guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.
b. The applicant also complains under Article 6 paras. 1 and
3(b) (Art. 6-1, 6-3-b) of the Convention that he could not
prepare his defence properly and did not have a fair trial due
to the fact that he was refused access to certain documentary
evidence held by the security police.
In this respect the Commission 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 whereas it is the Commission's
task 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 judgment of 20 November 1989,
Series A no. 166, p. 19, para. 39).
In the present case the Commission further recalls that the
applicant's case was heard in the District Court and in the Court
of Appeal where more than seventy witnesses submitted statements
and a substantial amount of documentary evidence was produced.
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. It is true that the applicant
could not obtain certain documents held by the security police.
However, these documents related primarily to the charge of
illegal electronic surveillance of the apartment in
Malmskillnadsgatan, a charge of which he was acquitted both in
the District Court and in the Court of Appeal.
In these circumstances the Commission does not consider that
the fact that these documents were not available to the applicant
could lead to the conclusion that he could not properly prepare
his defence or did not have a fair trial, in so far as he was
convicted and sentenced.
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 (Art. 6-1). 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.
2. Under Article 2 of Protocol No. 7 (P7-2) to the Convention
the applicant complains that he was deprived of his right to have
his conviction reviewed by a higher tribunal in so far as he was
convicted by the Court of Appeal.
Article 2 of Protocol No. 7 (P7-2) reads as follows:
"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."
In respect of this particular complaint the Commission
recalls that the applicant's case was heard in the District Court
where he was acquitted of all charges, except one. On appeal he
was found guilty of three additional charges of illegal
surveillance for which reason he applied for leave to appeal to
the Supreme Court. This was, however, refused by the Court.
The Commission notes that different rules govern review by
a higher tribunal in the various member States of the Council of
Europe. In some member States like Sweden, a person wishing to
appeal to the highest tribunal must apply for leave to appeal.
The Commission considers that the procedure on the right to apply
to the Supreme Court in the present case is in itself to be
regarded as a review within the meaning of Article 2 of Protocol
No. 7 (P7-2).
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. Finally, the applicant complains that he had no access to
a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention when the Government, on 9 August 1990, rejected
his request for access to documents held by the security police.
The Commission recalls that Article 6 (Art. 6) of the
Convention only applies to proceedings which involve the
determination of a civil right or obligation or a criminal
charge. The Commission considers, however, that it can be left
open whether this requirement has been fulfilled in the present
case.
The dispute which the applicant wanted determined was
whether or not he could get access to certain documents. This
particular issue was considered by the District Court which, by
decision of 12 June 1990, rejected the applicant's request.
Furthermore, the Administrative Court of Appeal and the Supreme
Administrative Court also examined the matter and rejected the
applicant's requests on 31 July and 7 December 1990 respectively.
Accordingly, the Commission finds that even assuming that the
question of access to the documents in question did involve a
civil right or obligation, or a criminal charge, the applicant
had access to a tribunal within the meaning of Article 6 (Art.
6) of the Convention in order to have the matter determined.
It follows that this part of the application is also
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