AS TO THE ADMISSIBILITY OF
Application No. 14369/88
by NOVIFLORA SWEDEN AKTIEBOLAG
against Sweden
The European Commission of Human Rights sitting in private on
12 October 1992, the following members being present:
MM. S. TRECHSEL, Acting President
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. K. ROGGE, Deputy to the 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 29 April 1988
by NOVIFLORA SWEDEN AKTIEBOLAG against Sweden and registered on
8 November 1988 under file No. 14369/88;
Having regard to
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
7 May 1991 and the observations in reply submitted by the
applicant on 20 September 1991;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the submissions of the
parties, may be summarised as follows.
The applicant is a limited liability company with its
headquarters in Stockholm. Before the Commission it is represented by
Mr. Jan Axelsson, of the law firm Johansson & Sjöstedt, Stockholm, who
is also a member of the board of the applicant company. The other
members of the board are the owner of the above law firm (D.J.) and a
Dutch citizen.
The applicant company's registered address - Jungfrugatan 18,
Stockholm - is the same as the address of a branch office of the above
law firm. The main office of the law firm is located at Södertälje.
The applicant company carries on business as a wholesale
distributor of flowers.
Particular circumstances of the case
At the request of the Regional Court (Arrondissementsrechtbank)
of The Hague in relation to an investigation concerning tax offences
allegedly committed in the Netherlands by the Dutch affiliate of the
applicant company the State Prosecutor for Special Cases (stats-
åklagaren för speciella mål) on 2 November 1987, in application of
Sections 1 and 2 of the 1975 Act on the Use of Certain Means of
Coercion at the Request of a Foreign State (lag 1975:295 om användning
av vissa tvångsmedel på begäran av främmande stat; hereinafter "the
1975 Act") ordered and conducted a search of the applicant company's
premises in Stockholm and subsequently of the main office of the law
firm. Two Dutch police officers were present at the search of the main
office, where a considerable number of documents pertaining to the
applicant company as well as to its Dutch affiliate were seized. In the
course of the search the Dutch police officers were informed of the
contents of the documents found so as to enable them to assess their
relevance for the investigation in the Netherlands.
At a hearing before the District Court (tingsrätten) of Stockholm
on 6 November 1987 the applicant company, represented by D.J.,
contested the lawfulness of the seizure. D.J. submitted that he had
received the documents in his capacity as advocate (advokat; i.e.
member of the Swedish Bar Association) and that the primary issue to
consider was the lawfulness of the search, as it had been conducted at
a law firm. The State Prosecutor for Special Cases submitted that the
search had been carried out, as D.J. was a representative of the
applicant company and as the company had the same address as the law
firm.
The District Court concluded that the seizure was lawful.
The applicant company appealed to the Svea Court of Appeal (Svea
hovrätt).
On 16 November 1987 the Prosecutor lifted the seizure and
returned the seized documents.
On 25 March 1988 the Svea Court of Appeal dismissed the appeal,
finding that, as the seizure had been lifted and the documents handed
back, the lawfulness of the seizure could not be examined, irrespective
of whether or not the Prosecutor had been empowered to lift the
seizure.
The applicant company appealed to the Supreme Court (högsta
domstolen).
On 9 August 1988 the Supreme Court requested the Prosecutor-
General (riksåklagaren) to supply information as to whether photocopies
of the seized documents had been handed over to Dutch authorities.
In his reply of 28 August 1988 the Prosecutor-General denied that
copies had been handed over by him or by the State Prosecutor for
Special Cases.
On 6 October 1988 the Supreme Court quashed the Court of Appeal's
decision and referred the case back to that Court for a new
examination. The Supreme Court considered it established that
photocopies of part of the seized documents had been made prior to the
lifting of the seizure, but that they had not yet been handed over to
the Dutch authorities. However, neither the Code of Judicial Procedure
(rättegångsbalken) nor the 1975 Act authorised a Prosecutor to lift a
seizure, as it may then no longer be reviewed by a court as to its
lawfulness. The photocopies could, however, not be regarded as seized
property and, therefore, the 1975 Act did not apply to them. Provided
the seizure were considered unlawful the handing over of photocopies
of seized documents to the Dutch authorities would also be excluded.
The Supreme Court concluded that the appeal regarding the lawfulness
of the seizure as such should have been examined by the Court of
Appeal.
At a witness hearing before the Regional Court of The Hague on
13 October 1988 the two Dutch police officers assisting at the search
confirmed that they had received photocopies of certain seized
documents prior to the outcome of the court review of the lawfulness
of the seizure. It further transpired that they had spent a week
examining the seized documents at premises of the Swedish police.
On 14 September 1989 the Svea Court of Appeal found that the
seizure had been unlawful. It also considered it established that
certain seized documents had been photocopied prior to the lifting of
the seizure. Following the lifting the original documents had been
returned, but copies had been kept by the State Prosecutor for Special
Cases. The Court of Appeal noted that the registered address of the
applicant company was not the address of the main office of the law
firm, but that of its branch office. Moreover, although D.J. was the
only member of the board of the applicant company authorised to act
alone on the company's behalf, the Court found nothing contradicting
his statement that the seized documents had been handed over to him in
his capacity as advocate.
Following the Prosecutor-General's appeal the Supreme Court on
14 September 1990 quashed the decision of the Court of Appeal. In view
of the fact that the seizure as a whole had been lifted it limited its
examination to the question whether the seizure had been lawful as
regards the photocopied documents. It noted that the main part of those
documents pertained to an appeal lodged on behalf of the applicant
company with the National Board of Customs (generaltullstyrelsen) by
Mr. Jan Axelsson. The remainder of the seized documents, also
pertaining to the applicant company, had been entrusted either to D.J.
or other staff members of the law firm in their capacity as advocates
or assistants to an advocate. The Supreme Court started from the
assumption that all photocopied documents had contained information
entrusted to an advocate or to an advocate's assistant in this capacity
or which he or she had acquired while acting in such a capacity. Thus,
the documents had been protected from seizure under Chapter 27, Section
2 of the Code of Judicial Procedure and the seizure had been unlawful.
The question of the lawfulness of the remainder of the seizure did not
call for any further action.
Relevant domestic law
(a) The conditions for a seizure and the property that may be
seized
According to Section 1 of the 1975 Act objects or written
documents may, under certain conditions, at the request of a foreign
state be seized and handed over to that state. The conditions under
Sections 1 and 2 are, insofar as they are of relevance to the present
case, that a person in the foreign state is suspected, accused or
convicted of an offence which is punishable in that state and that the
objects or written documents to be seized can be reasonably assumed to
be of significance for the investigation of that offence.
By reference in Section 2 of the 1975 Act to Chapter 27, Sections
2 and 3 of the Code of Judicial Procedure the seizure of written
documents is subject to certain limitations. As far as is relevant for
the present case, no document may be seized if its contents can be
assumed to be of such a character that the person possessing the
document may not, according to Chapter 36, Section 5 of the Code,
testify as a witness concerning the document.
Under the last-mentioned provision an advocate may be heard as
a witness concerning matters entrusted to him in his professional
capacity only if this is authorised by law or consented to by the
person for whose benefit the secrecy obligation is imposed. However,
in a criminal prosecution for an offence punishable by a minimum
sentence of two years imprisonment or more, an advocate is obliged to
testify, unless he is acting as counsel for the defence.
(b) The conditions for a search and the premises that may be
searched
Under Section 2, paragraph 2 of the 1975 Act a search of premises
may be carried out, in accordance with the provisions of Chapter 28,
Sections 1 and 3 of the Code of Judicial Procedure, for the purpose of
discovering property which is subject to seizure. From the reference
to Chapter 28, Section 1 of the Code of Judicial Procedure it follows
that for a search to be carried out there has to be a reason to believe
that an offence punishable by imprisonment has been committed.
Furthermore, a search of the premises of a person other than the one
who reasonably can be suspected of the offence may be executed only if
the offence was committed there, if the suspect was apprehended there,
or if there is a particular reason to believe that the search would
reveal an object subject to seizure.
(c) The procedure
Under Section 5 of the 1975 Act a request from a foreign state
is normally to be submitted to the Swedish Ministry for Foreign
Affairs. According to Sections 6 and 7 the Government shall, unless the
request is immediately rejected, transmit it as well as other documents
to the Prosecutor-General, who shall see to it that the measures
required are carried out. In this context, Chapter 27, Sections 9-13
and Chapter 28, Sections 4-10 of the Code of Judicial Procedure are to
be applied.
Under Chapter 27, Section 12 and Chapter 28, Section 8 a seized
private document found at a search of premises may only be more closely
examined by the Court, the Prosecutor or the chief investigating
officer. However, by instruction of any of these the document may be
inspected by an expert or any other person employed for the
investigation of the offence. If the person carrying out the search is
not competent to examine a document it should be sealed by him.
From Chapter 28, Section 4 of the Code of Judicial Procedure it
follows that the search order is normally to be issued by the
investigating authority, the prosecutor or the Court. When the search
can be assumed to be extensive or cause particular inconvenience to the
person at whose premises the search is conducted the search should not
be made without a court order, unless a delay would entail risks.
According to Chapter 28, Section 7 the officer carrying out the
search may obtain necessary assistance from an expert or any other
person.
According to Section 8 of the 1975 Act the District Court of
Stockholm shall immediately be notified of a seizure made under this
Act for consideration of, inter alia, whether the seizure has been
executed on lawful grounds. The Court shall hold a hearing in the case
as soon as possible. The Court's decision may, in accordance with
provisions contained in Chapters 49, 52, 54 and 56 of the Code of
Judicial Procedure, be appealed to the Svea Court of Appeal and
ultimately to the Supreme Court.
Following the termination of the court proceedings the
Prosecutor-General shall, according to Section 9 of the 1975 Act, hand
over the matter to the Government. If the seizure has been found not
to have been carried out on lawful grounds the Government shall refuse
the request of the foreign state.
(d) The control of as well as the State's civil liability with
regard to the exercise of public power
Public authorities and officials are subject to supervision both
by the Parliamentary Ombudsman (riksdagens justitieombudsman) and the
Chancellor of Justice (justitiekanslern). Both the Ombudsman and the
Chancellor can act on their own initiative as well as on the basis of
complaints from the public, and both are empowered to institute
criminal or disciplinary proceedings against an official who, by an act
or omission, has wilfully or negligently disregarded his or her duties.
Under the Tort Liability Act (skadeståndslagen) the State may be
liable, if a person suffers losses as a result of an act or omission
by fault or negligence by an official in his or her exercise of public
power.
COMPLAINTS
1. The applicant company complains that the search of the main
office of the law firm was unlawful and that it had no possibility
effectively to challenge the lawfulness of the search before a tribunal
meeting the requirements of Article 6 para. 1 of the Convention.
2. The applicant company alleges an unlawful interference with its
right to respect for its private life and correspondence as enshrined
in Article 8 of the Convention. It refers to the seizure, the allowing
of Dutch police officers to examine documents during the search as well
as documents that were seized, the making of photocopies of seized
documents, and the handing over of copies to the Dutch authorities.
3. The applicant company further alleges that the search, the
seizure and the subsequent handling of its property violated Article
1 of Protocol No. 1 to the Convention.
4. The applicant company finally alleges a violation of Article 13
of the Convention in that it had no effective remedy against the
alleged violations of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 April 1988 and registered
on 8 November 1988.
On 25 February 1991 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on its admissibility and merits. The
Government's observations were submitted on 7 May 1991. On 20 September
1991 the applicant company submitted its observations in reply.
THE LAW
1. The applicant company complains that the search of the law firm's
main office was unlawful and that there was no possibility for the
applicant company effectively to challenge the lawfulness before a
tribunal meeting the requirements of Article 6 para. 1 (Art. 6-1) of
the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as
relevant:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a ... hearing ... by an independent and impartial
tribunal ..."
The Commission has examined the alleged unlawfulness of the
search in connection with its considerations under Article 8 (Art. 8)
of the Convention (see (a) below).
As regards the alleged absence of a right to an effective court
remedy in order to challenge the lawfulness of the search the
Government submit that the search did not involve any determination of
the applicant company's civil rights or obligations or of any criminal
charge against it. Accordingly, they consider the complaint to be
incompatible ratione materiae with the provisions of the Convention.
In any case, the complaint is manifestly ill-founded, as the applicant
company did not institute any criminal proceedings against the
officials alleged to be responsible for the search, nor did it
institute any civil proceedings claiming damages. Both these
proceedings would have been conducted before tribunals meeting the
requirements of Article 6 para. 1 (Art. 6-1).
The applicant company contends that the search did concern its
civil rights and that neither criminal nor civil proceedings would have
enabled it to challenge the lawfulness of the search.
The Commission considers that neither the search order nor the
proceedings for challenging that order determined any of the applicant
company's civil rights or obligations or any criminal charge against
it. Thus, Article 6 (Art. 6) is not applicable.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant company further complains that the seizure, the
allowing of Dutch police officers to examine documents during the
search as well as documents that were seized, the making of photocopies
of seized documents, and the provision of copies to the Dutch
authorities unlawfully interfered with its right to respect for its
private life and correspondence as guaranteed under Article 8
(Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention reads:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
(a) The lawfulness of the search and the allowing of Dutch police
officers to assist at the search and to examine documents
during the search
As regards the search as such the Government submit that the
complaint is inadmissible for non-exhaustion of domestic remedies.
Whilst the allegations made by the applicant company before the
Commission were admittedly made during the review of the lawfulness of
the seizure as such they did not fall within the scope of those
proceedings. However, as the allegations, if found accurate, would
constitute a basis for public prosecution, the applicant company could
have instituted criminal or civil proceedings.
As regards the further measures allegedly taken in connection
with the search the Government submit that the complaint is
incompatible ratione materiae with the Convention, there having been
no interference with the applicant's right to respect for its private
life and correspondence. There is no indication that the seized
documents did not exclusively relate to the applicant company's
business activities. The seizure was carried out at the premises of the
lawyer representing the company in such activities. Moreover, there is
no indication that the dispatching, transmission or reception of the
company's correspondence was interfered with. In the alternative, the
Government reiterate their objection that the complaint is inadmissible
for failure to exhaust domestic remedies. In any case, the Government
contend it is manifestly ill-founded, as the presence of the two Dutch
officials did not in itself render the seizure unlawful, their presence
being allowed under Chapter 28, Section 7 of the Code of Judicial
Procedure.
The applicant company contends that the remedies referred to are
not effective for the purposes of challenging the lawfulness of a
search including its modalities.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a complaint after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law. An applicant must make normal use of remedies likely to be
effective and adequate in respect of the matters of which he complains
(cf. No. 10978/84, Dec. 14.10.86, D.R. 49 p. 144 [155] with further
references). The burden of proving the existence of available and
sufficient remedies lies upon the State (Eur. Court H.R., Deweer
judgment of 27 February 1980, Series A no. 35, p. 15, para. 26).
The Commission agrees with the applicant company. The Government
have not referred to any case-law showing how any of the proceedings
referred to by the Government could be regarded as an effective remedy
under Article 26 (Art. 26) of the Convention, particularly in the
absence of any criminal proceedings having been instituted by the
Public Prosecutor or any criminal or disciplinary proceedings having
been instituted by the Parliamentary Ombudsman or the Chancellor of
Justice.
In these circumstances the Commission concludes that the remedies
referred to by the Government cannot be considered to be effective and
adequate for the purposes of Article 26 (Art. 26) in respect of this
complaint.
(b) The lawfulness of the seizure and the subsequent handling of the
seized documents
As regards the alleged unlawfulness of the seizure as such the
Government submit that the applicant company can no longer claim to be
a victim under Article 25 (Art. 25) of the Convention, as the domestic
court proceedings terminated in the Supreme Court's finding that the
seizure, insofar as it had not already been lifted, was unlawful. As
a consequence the seized documents were returned. The complaint is
therefore incompatible ratione personae with the provisions of the
Convention.
In the alternative, the Government reiterate their objection
mentioned under (a) that the complaint is incompatible ratione materiae
with the Convention. In any case the complaint is manifestly ill-
founded, the seizure having been made pursuant to the 1975 Act. The
domestic courts' finding that the seizure was unlawful under Swedish
law does not necessarily justify the conclusion that it was unlawful
also for the purposes of Article 8 para. 2 (Art. 8-2) of the
Convention. In the Government's view the requirement of lawfulness
cannot require more from a Contracting State than the laying down of
reasonably precise procedural guarantees as well as an appropriate
mechanism to ensure that the relevant rules are adequately applied. The
seizure was made on the basis of an interpretation in good faith of
Chapter 27, Section 2 as well as Chapter 36, Section 5 of the Code of
Judicial Procedure. That interpretation, also upheld by the District
Court of Stockholm, was not so unreasonable as to justify the
conclusion that the seizure was not made "in accordance with the law".
Thus, taking into account the conditions laid down for the seizure, the
procedural guarantees provided and the manner in which the 1975 Act was
applied, the seizure was made "in accordance with the law".
As regards the subsequent handling of the seized documents the
Government reiterate their objections mentioned under (a) that the
complaint is either incompatible ratione materiae with the Convention
or inadmissible for failure to exhaust domestic remedies. In any case
it is manifestly ill-founded, as the allegation that photocopies of
seized documents were handed over to Dutch officials or authorities has
not been sufficiently substantiated. On the contrary, both the
Prosecutor-General and Special Prosecutor stated before the Supreme
Court that no copies had been handed over by them.
The applicant company contends that, although some photocopies
were returned following the courts' finding that the seizure was
unlawful, others had already been handed over to Dutch authorities.
Therefore, it may still be considered a victim under Article 25
(Art. 25). It further asserts that, even assuming that the seizure as
such were lawful under the terms of the Convention, there was no legal
provision authorising the photocopying of such documents, nor any
legitimate purpose justifying such photocopying pending a court review
of the lawfulness of the seizure. The applicant company refers to the
sworn statements by the Dutch police officers according to which they
had been provided with copies, and contends that the Prosecutor-General
and the Special Prosecutor were not the only public officials to have
access to these photocopies. The fact that, when seized, the
correspondence had already been delivered can be of no relevance.
The Commission recalls that where an applicant, by using remedies
within the meaning of Article 26 (Art. 26) of the Convention, obtains
adequate redress at the domestic level for the alleged violation of the
Convention he can no longer claim to be a victim of that violation (cf.
No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237 [243-244] with further
references). In the present case there is no indication in the file
confirming the Government's assertion that subsequent to the courts'
finding that the seizure was unlawful the seized documents were
returned. On the contrary, it has been established by the domestic
courts that the original documents were returned already at a time when
the seizure was still considered lawful and only after photocopies had
been made. Thus, the Government have failed to show that the applicant
company obtained redress.
In these circumstances the Commission concludes that the
applicant company can still claim to be a victim under Article 25
(Art. 25) of the Convention.
The Commission further observes that the Government have not
referred to any case-law showing how any of the proceedings referred
to by them (see (a) above) could be regarded as an effective and
adequate remedy for the purposes of Article 26 (Art. 26) of the
Convention in respect of the present complaint. It follows that this
objection must also be rejected.
The Commission has carried out, in the light of the parties'
submissions, a preliminary investigation of the complaints under
Article 8 (Art. 8) of the Convention. It considers that they raise
questions of fact and law of such complex nature that their
determination requires an examination of the merits. The complaints
cannot therefore be declared inadmissible as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other ground for declaring them inadmissible has been established.
3. The applicant company further alleges that the search, the
seizure and the subsequent handling of the seized documents violated
Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
As regards the seizure the Government reiterate their objection
mentioned above that the complaint is incompatible ratione personae
with the Convention. In the alternative, it is manifestly ill-founded.
The seizure admittedly interfered with the applicant company's use of
the seized documents. However, the interference was lawful and
justified in the general interest and not disproportionate to the
legitimate aim pursued, that is to ensure that they could be handed
over to the Dutch crime investigating authorities.
As regards the other measures complained of the Government submit
that the complaint is incompatible ratione materiae with the
Convention, as those measures did not interfere with the applicant
company's rights under Article 1 of Protocol No. 1 (P1-1). In the
alternative, the Government reiterate their objection mentioned above
as regards non-exhaustion of domestic remedies.
The Commission observes that the facts of the present complaint
are similar to those referred to in the complaints under Article 8
(Art. 8) of the Convention. The Commission has rejected the
Government's objections to the admissibility of those complaints. It
cannot exclude at this stage the applicability of Article 1 of Protocol
No. 1 (P1-1) to the facts at issue. Accordingly, the present complaint
must also be admitted.
4. The applicant company finally complains of a violation of
Article 13 (Art. 13) of the Convention in that it had no effective
remedy against the alleged violations of its Convention rights.
Article 13 (Art. 13) 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."
As regards the seizure the Government reiterate their objection
mentioned above that the complaint is incompatible ratione personae
with the provisions of the Convention.
As regards the other measures complained of under
Article 8 (Art. 8) of the Convention the Government reiterate their
objection mentioned above that the complaint is incompatible ratione
materiae with the Convention. In the alternative, it is manifestly ill-
founded, as the remedies available to the applicant have not been
exhausted.
The Commission finds that insofar as the complaint relates to the
complaint under Article 6 para. 1 (Art. 6-1) of the Convention, found
to be incompatible ratione materiae with the provisions of the
Convention, the present complaint must be rejected on the same ground.
Insofar as the complaint relates to the complaints under Article
8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1)
which have been admitted the present complaint must also be admitted.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the complaints under Article 8 (Art. 8) of the Convention,
Article 1 of Protocol No. 1 (P1-1) to the Convention and
Article 13 of the Convention, the last-mentioned insofar as it
relates to the issues under Article 8 (Art. 8) of the Convention
and Article 1 of Protocol No.1 (P1-1); and
DECLARES INADMISSIBLE the remainder of the application.
Deputy to the Secretary to Acting President of
the Commission the Commission
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy