AS TO THE ADMISSIBILITY OF
Application No. 27074/95
by Lars Göran NORDIGÅRD
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Ms. M.-T. SCHOEPFER, 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 20 March 1995 by
Lars Göran Nordigård against Sweden and registered on 21 April 1995
under file No. 27074/95;
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, a Swedish citizen born in 1957 and residing at
Malung, is a lorry-driver. Before the Commission, he is represented by
Ruby Harrold-Claesson and Sören Alfredsson, lawyers practising at
Olofstorp and Tavelsjö respectively.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was in the past living together with a woman who
had two children, born in 1979 and 1980 respectively. The children were
placed in public care at the home of their paternal grandparents by the
Social Council (socialnämnden) of Forshaga on 7 February 1991,
following accusations against the applicant of having beaten them. The
County Administrative Court (länsrätten) of the County of Värmland
decided by judgment of 8 August 1991 to take the children into care in
accordance with Sections 1 and 2 of the 1990 Act with Special
Provisions on the Care of Young Persons (lag med särskilda bestämmelser
om vård av unga). The mother appealed but the Administrative Court of
Appeal (kammarrätten) of Göteborg upheld the judgment. The Supreme
Administrative Court (Regeringsrätten) refused leave to appeal.
On 12 March 1991 the applicant was found guilty of assault on
the two children and was sentenced to one year's imprisonment by the
District Court (tingsrätten) of Karlstad. His appeals against this
judgment were unsuccessful.
The events in connection with the taking into public care of the
children led to some telephone calls on 11 December 1992 from the
applicant to the social worker involved in the public care proceedings.
The applicant was subsequently accused of having made illegal threats
against the social worker during one of these telephone calls. The
Social Council reported the incident to the police and the applicant
was arrested and detained from 16 December 1992 until 23 December 1992.
He was charged with illegal threats against a civil servant (hot mot
tjänsteman) in violation of Chapter 17, section 1 of the Penal Code
(Brottsbalken), and accused of having said inter alia the following to
the social worker:
"Förresten, tänk på att det kan gå för dej som det gick för
Inger Stark."
(Translation)
"By the way, you should be aware that what happened to
Inger Stark may happen to you." (Inger Stark was a social
worker who had been murdered.)
Defence counsel for the applicant was appointed ex officio by the
District Court of Karlstad where a hearing was held on
23 December 1992, during which the Court heard three witnesses.
Furthermore, the applicant, assisted by counsel, was heard. Following
this hearing and on the basis of an evaluation of the available
evidence the District Court found the applicant guilty in accordance
with the charges and sentenced him to four months' imprisonment.
The applicant appealed to the Court of Appeal of Western Sweden
(Hovrätten för Västra Sverige). He also requested the Court of Appeal
to dismiss the court-appointed counsel and to replace him by another
lawyer. As a reason for this request, the applicant referred to
difficulties in co-operating with counsel.
On 7 October 1993 the Court of Appeal rejected the applicant's
request for a replacement of the court-appointed counsel as it did not
consider such a measure justified. Leave to appeal against this
decision was refused by the Supreme Court (Högsta domstolen) on
9 February 1994.
Subsequently, the applicant's court-appointed counsel requested
to be relieved from his duties in view of the applicant's lack of
confidence in him and the difficulties caused thereby. On 8 April 1994
the Court of Appeal rejected the request. Leave to appeal against the
decision was refused by the Supreme Court on 25 May 1994.
In this situation the applicant engaged private counsel to assist
him during the trial in the Court of Appeal which subsequently, on
2 June 1994, at the applicant's request dismissed the court-appointed
counsel whose fees until then had been paid by the State. The applicant
also requested that his case be moved to another chamber of the Court
of Appeal as the judges who had dealt with the question of the
appointment of counsel had allegedly shown bias in his regard. On
7 July 1994 the applicant's request was rejected by the Court of
Appeal.
The case was heard by the Court of Appeal on 11 July 1994. During
the hearing the applicant was not allowed to put such questions to the
injured party (the social worker) as concerned the public care
proceedings involving the two children. As these matters fell under the
rules of professional secrecy, the Court considered that the witness
should not answer such questions.
By judgment of 18 July 1994 the Court of Appeal upheld the
District Court's judgment.
On 29 and 30 August 1994 the applicant lodged an appeal with the
Supreme Court. He complained of the fact that legal aid had not been
granted by the Court of Appeal, which meant, in particular, that the
costs for the privately engaged counsel had not been reimbursed. He
considered this to be contrary to Article 6 of the Convention. He also
complained that the Court of Appeal was not an impartial tribunal, that
he had not been allowed to put questions concerning the public care
proceedings to the injured party and that the Court had not made a full
investigation of the case. He maintained, under Article 6 para. 1 of
the Convention, that he had not had a fair trial.
Leave to appeal was refused by the Supreme Court on
30 September 1994.
COMPLAINTS
1. The applicant complains, under Article 6 of the Convention, that
he did not have a fair trial. In particular he refers to the following
points in support of his complaint:
a) the Court of Appeal refused to replace the court-appointed
counsel by appointing ex officio a new lawyer;
b) during the proceedings before the Court of Appeal he was not
allowed to put certain questions to the injured party, and
c) the Court of Appeal relied on testimony from witnesses who could
not be considered to be impartial and, thus, the Court did not make a
full examination of the case.
2. The applicant also complains that the Supreme Court's refusal to
grant leave to appeal against the judgment of the Court of Appeal
amounts to a violation of Article 6 of the Convention.
3. Furthermore, the applicant maintains that Article 6 para. 3 (c)
of the Convention has been violated due to the fact that the costs for
his private counsel were not covered by the State.
4. Finally, the applicant maintains that his right to freedom of
expression has been violated as he was convicted for merely expressing
his opinion on the work and the conduct of a social worker. In this
respect he invokes Article 10 of the Convention.
THE LAW
1. The applicant complains that, in various respects during the
criminal proceedings against him, he was denied a fair trial. He
invokes in this respect Article 6 (Art. 6) of the Convention which in
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 an independent and impartial tribunal established by law
...".
The Commission recalls that the question whether a trial conforms
with the standard laid down by Article 6 (Art. 6) of the Convention
must be assessed on the basis of the court proceedings as a whole
including, in the present case, not only the court proceedings in the
Court of Appeal but also those in the District Court. In the latter
proceedings the Commission finds no element which could give rise to
misgivings as regards the fairness of the trial or the applicant's
right to a proper defence.
As regards the proceedings before the Court of Appeal, the
Commission notes as follows.
a) The applicant first refers to the fact that the Court of Appeal
refused to replace, at his request, his court-appointed counsel.
The Commission recalls that Article 6 (Art. 6), and more
specifically Article 6 para. 3 (c) (Art. 6-3-c), guarantees to an
accused person that the proceedings against him shall not take place
without an adequate representation of the case for the defence. A right
is guaranteed to an effective defence either in person or through a
lawyer. However, if the applicant is represented by an officially
appointed defence counsel, Article 6 (Art. 6) cannot be interpreted so
as to secure to the accused a right to have a new lawyer appointed at
public expense, without well-founded and substantiated reasons (cf.
Eur. Court HR, Croissant v. Germany judgment of 25 September 1992,
Series A no. 237-B, pp. 32-33, para. 29).
In the present case, it has not been shown that the
court-appointed counsel was unable to provide the applicant with an
adequate defence. Moreover, the applicant was free to defend himself
with the assistance of another lawyer, albeit at his own expense. The
Commission thus finds that the applicant was not denied an effective
legal assistance in the proceedings before the Court of Appeal as
required by Article 6 (Art. 6).
b) The applicant also complains of the fact that he was not allowed
to put certain questions to one of the witnesses.
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
and also to decide whether for specific reasons the parties should not
be allowed to put certain questions to witnesses.
In the present case the Commission recalls that the questions
which the Court of Appeal did not allow concerned matters which were
subject to professional secrecy. Moreover, it would not seem that they
were essential for the examination of the charge against the applicant.
In such circumstances, the Commission cannot find that the Court of
Appeal, by not allowing such questions, denied the applicant a fair
trial.
c) Finally, the applicant complains that the Court of Appeal relied
on the testimony of witnesses who could not be considered impartial in
the case.
In this respect the Commission recalls that it is not its task
to substitute its own assessment of the evidence for that of the
domestic courts. The facts of the present case do not show that the
evaluation of the evidence by the Court of Appeal was arbitrary or
unfair.
Having regard to these various elements, the Commission cannot
find that the proceedings before the Court of Appeal were unfair or
that the applicant's rights of defence were in any way violated during
those proceedings. Consequently, there is no appearance of a violation
of Article 6 (Art. 6) in the proceedings before the Court of Appeal.
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. The applicant also complains that the Supreme Court's refusal to
grant leave to appeal against the judgment of the Court of Appeal
amounts to a violation of Article 6 (Art. 6) of the Convention.
The Commission recalls that the right to appeal to a third level
of jurisdiction does not feature among the rights and freedoms
guaranteed by the Convention. No provision of the Convention,
therefore, requires a State to grant persons under its jurisdiction an
appeal to a Supreme Court acting as a third instance court. If a State
makes provisions for such an appeal it is entitled to lay down the
conditions for such an appeal (cf. No. 6916/75, Dec. 12.3.76, D.R. 6
p. 101 and No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258).
The Commission notes that the proceedings before the Supreme
Court only concerned the question whether or not leave to appeal should
be granted. A full examination of the charge against the applicant
would have taken place only if leave to appeal had been granted.
According to Swedish law, leave to appeal could only be granted if an
examination by the Supreme Court was of importance for the development
of the case-law of if there were other extraordinary reasons, such as
an obvious incorrect application of the law by the Court of Appeal or
a serious procedural mistake. When deciding on the question as to
whether or not leave to appeal should be granted, the Supreme Court
thus did not determine a criminal charge against the applicant, and
Article 6 para. 1 (Art. 6-1) of the Convention was therefore not
applicable to these proceedings (cf. No. 11855/85, Dec. 15.7.87, D.R.
53 p. 190).
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. With reference to Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention, the applicant complains that the costs of his private
counsel were not covered by the State.
The Commission recalls that a system whereby a convicted person
is in principle bound to pay the costs of the proceedings, including
the fees of his court-appointed counsel, is not incompatible with
Article 6 (Art. 6) of the Convention, provided this does not adversely
affect the fairness of the proceedings (cf. the above-mentioned
Croissant judgment, pp. 34-35, paras. 33-38).
In the present case the Commission also notes that the applicant
was provided with free legal assistance through a court-appointed
counsel, and it was his own choice not to avail himself of this
facility.
In these circumstances the Commission finds that the facts of the
present case concerning this particular issue disclose no appearance
of a violation of Article 6 para. 3 (c) (Art. 6-3-c) 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 applicant finally complains, under Article 10 (Art. 10) of
the Convention, that his right to freedom of expression has been
violated as he was convicted for merely expressing his opinion on the
work and the conduct of a social worker.
The Commission recalls that the applicant was found guilty of
illegal threats contrary to Chapter 17, section 1 of the Penal Code.
Even assuming that the applicant's conviction could be regarded as an
interference with his right to freedom of expression, the Commission
has no doubt that this interference was justified under Article 10
para. 2 (Art. 10-2) of the Convention as being based on law and
necessary in a democratic society for the protection of the rights of
others.
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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy