AS TO THE ADMISSIBILITY OF
Application No. 22587/93
by Christer ÖRJESTAM
against Sweden
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 27 May 1993 by
Christer Örjestam against Sweden and registered on 7 September 1993
under file No. 22587/93;
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 1957.
The facts of the case, as submitted by the applicant or apparent
from the documents submitted, may be summarised as follows.
In 1983, 1988 and 1989 the applicant was convicted of various
offences and sentenced to imprisonment. His ordinary prison sentence
expires in 2001. From 4 to 18 January 1993 he took part in a prison
strike. On 11 January 1993 the prison imposed a disciplinary punishment
on him which had the effect that three of his prison days would not be
considered as forming part of his sentence. The punishment thus had the
effect of prolonging the overall length of his prison term by three
days.
The applicant's sentence had previously been de facto prolonged
by nineteen days by virtue of other disciplinary punishments.
By a note dated 29 January 1993 the prison, on 1 February 1993,
notified the applicant of its decision of 11 January 1993. The note did
not state why the disciplinary punishment had been imposed. According
to the note, the applicant would have served two thirds of his prison
term on 12 October 1995. This term was considered to include, inter
alia, the three-day prolongation imposed on 11 January 1993.
On 1 February 1993 the National Prisons and Parole Board
(Kriminalvårdsstyrelsen) upheld the applicant's disciplinary punishment
on his appeal.
The applicant's further appeal was rejected by the Administrative
Court (kammarrätten) of Jönköping on 19 February 1993. The Court
provided no further reasoning but simply upheld the National Prisons
and Parole Board's decision.
Leave to appeal was refused by the Supreme Administrative Court
(Regeringsrätten) on 27 April 1993.
According to the Penal Code (Brottsbalken), a prisoner serving
a prison sentence with a fixed term shall normally be released on
parole after having served half thereof. If a sentence imposed for a
particularly serious offence amounts to at least two years'
imprisonment and provided there is a significant risk that the prisoner
may resort to similar criminal behaviour upon his release on parole,
such a release may only be ordered once two thirds of the sentence has
been served (chapter 26, sections 6, 6a and 7).
COMPLAINT
The applicant complains that he has been unfairly treated, since
his prison sentence has been prolonged by a body which does not fulfil
the requirements of a "court". He invokes no particular Convention
provision.
THE LAW
The applicant complains that he has been unfairly treated, since
his prison sentence has been prolonged by a body which does not fulfil
the requirements of a "court".
1. The Commission observes that the applicant's ordinary prison
sentence expires in 2001. Assuming that he can already now claim to be
a "victim" under Article 25 (Art. 25) of the Convention as regards the
alleged prolongation of that sentence, the Commission has first
examined his application in the light of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention. This provision reads as follows:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after conviction by a
competent court; ..."
The Commission observes that the applicant's ordinary prison
sentence is based on his convictions by regular courts. Neither his
convictions nor the competence of those courts has been challenged by
him. The Commission furthermore notes that on 12 October 1995 the
applicant had served two thirds of his sentence, to which his
disciplinary punishments had been added, and appears to have been
released on parole. In these circumstances the Commission considers
that the disciplinary punishment imposed on account of his
participation in the prison strike is comparable to a loss of
remission. It recalls that a prisoner is deprived of his liberty for
the whole of his prison sentence and that any remission thereof is a
mere privilege. It has therefore not been shown that the disciplinary
punishment imposed on the applicant has resulted in any further
deprivation of his liberty (cf., mutatis mutandis, No. 6224/73,
Dec. 6.12.76, D.R. 7, pp. 55, 63). Accordingly, there is no appearance
of any violation of Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The Commission has next examined the application in the light of
Article 6 para. 1 (Art. 6-1) of the Convention which, in so far it is
relevant, reads as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by [a] tribunal ..."
In order to determine whether Article 6 para. 1 (Art. 6-1) is
applicable under its "criminal" head, the Commission will have regard
to the three alternative criteria lied down in the Court's case-law,
namely the legal classification of the offence under domestic law, the
nature of the offence as well as the nature and degree of severity of
the penalty (e.g., Eur. Court H.R., Campbell and Fell judgment of
28 June 1984, Series A no. 80, pp. 34 et seq., paras. 67 et seq.).
In the first-mentioned respect the Commission finds no indication
that the applicant's offence against the prison order was governed by
Swedish criminal law. It furthermore finds that the offence was
disciplinary in nature, given that it involved the violation of rules
governing the operation of the prison. Finally, the penalty imposed was
not of such nature and severity that the matter would thereby have been
brought within the "criminal" sphere. Accordingly, Article 6 para. 1
of the Convention does not apply in the instant case.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy