AS TO THE ADMISSIBILITY OF
Application No. 18751/91
by P.L. and N.L.
against Sweden
The European Commission of Human Rights sitting in private on
5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second 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 10 May 1991 by
P.L. and N.L. against Sweden and registered on 29 August 1991 under
file No. 18751/91;
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 applicants are husband and wife. They were born in 1965 and
1962 and are English and Swiss citizens, respectively. They live in
Switzerland.
The facts as submitted by the applicants may be summarised as
follows.
On 1 April 1991 the applicants arrived by ferry boat with their
car at Trelleborg in Sweden which country they intended to visit for
some days. When they drove off the ferry they lost the front number
plate in a small collision with another car. Due to a wrong change of
gears they also approached the customs control with too high speed.
However, they managed to stop in time. The customs officials decided
to control the car. The search revealed inter alia a loaded gun in the
glove compartment and one gramme of marijuana in the first applicant's
pockets. The applicants were arrested suspected of narcotics and weapon
smuggling, searched and brought to different cells. The first applicant
claimed that he was innocent as the gun was his wife's and as he had
believed she was entitled to take it to Sweden. He asked to see his
wife and a lawyer. When this was refused he became violent and in order
to calm him down the police put him in a special cell with a straight-
jacket and gave him a shot with a calmative. He was subsequently
brought to a hospital where he was forced to take laxatives and
thoroughly X-rayed. No further findings were made.
On 2 April 1991 the public prosecutor applied to the District
Court (tingsrätt) of Trelleborg to have the applicants detained on
remand charged with weapon smuggling.
On 3 April 1991 the applicants were allowed to see a lawyer and
shortly thereafter they appeared before the District Court which
ordered their detention on remand on account of the danger that they
escape from the country and destroy evidence. Their request to be
released on bail was refused.
On 4 April 1991 an article in Trelleborg Allehanda, a local
newspaper, described the circumstances of the applicants' arrest and
mentioned that they were detained on remand charged with weapon
smuggling.
On 17 April 1991 the District Court, after a main hearing,
convicted the applicants of smuggling and sentenced them to one month
imprisonment each. As prescribed by the relevant provisions of the
Criminal Code (brottsbalken), it declared that the time spent in
detention on remand (16 days) should be deducted from the sentence. It
decided that the applicants should remain in detention on remand until
the judgment had become final.
The applicants were anxious to be able to return home as soon as
possible in order to try to recover their jobs and to be able to care
for the wife's small child which had been left in Switzerland. They
maintain that they were told in the prison that the lodging of an
appeal against the District Court's judgment implied that they would
have to remain in prison until the Court of Appeal had heard their
case, something which could take several months, and that the only way
to ensure release after expiry of their one month prison term was to
sign a waiver of appeal. After having contacted their defence lawyers
who advised them to sign the waivers of appeal, they both signed such
waivers on 19 April 1991. They were released after having served their
sentence.
According to Chapter 50, section 5, of the Code of Judicial
Procedure (rättegångsbalken) an appeal containing a request
necessitating immediate examination, such as an appeal against a lower
court's decision to maintain the accused in detention on remand, shall
be forwarded to the Court of Appeal without delay for decision.
COMPLAINTS
1. The first applicant alleges violations of:
a) Article 3 of the Convention as regards his treatment by the
police;
b) Article 5 para. 1 of the Convention in that he was at all times
unlawfully detained since he could not be held responsible for his
wife's negligence in not declaring her gun to the customs;
Article 5 para. 3 of the Convention in that he was not brought
promptly before a judge, nor tried within a reasonable time, nor
released on bail;
Article 5 para. 4 of the Convention in that he was refused the
assistance of a lawyer in order to challenge the lawfulness of his
detention;
c) Article 2 of Protocol No. 7 in that he was forced to waive his
right to appeal in order to recover his liberty after having served the
sentence imposed at first instance;
d) Article 6 of the Convention in that he did not have adequate time
and facilities to prepare his defence, was refused permission to
contact a lawyer during the first three days of arrest, could not
himself choose his public defence counsel and was not presumed innocent
as a result the prejudicial effects of the newspaper article of 4 April
1991.
e) Article 8 of the Convention in that the authorities paid no
attention to the fact that he had a job, a home and a child to look
after and that the ensuing loss of his job has ruined his private and
family life.
2. The second applicant reiterated, mutatis mutandis, the above
complaints under Articles 6 of the Convention and 2 of Protocol No. 7.
However, by letter of 4 September 1992 she withdrew her complaint.
THE LAW
1. The first applicant
a. The first applicant alleges a violation of Article 3 (Art. 3) of
the Convention as regards his treatment by the police on the occasion
of his arrest. This Article provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission notes, however, that the first applicant has not
brought any proceedings for damages against the State or otherwise
lodged any complaints before any Swedish authority on account of the
matters complained of. In such circumstances the Commission cannot find
that the first applicant has exhausted domestic remedies as required
by Article 26 (Art. 26) of the Convention and, accordingly, this
complaint is inadmissible pursuant to Article 27 para. 3 (Art. 27-3)
of the Convention.
b. The first applicant also alleges violations of Article 5 paras.
1, 3 and 4 (Art. 5-1, 5-3, 5-4) of the Convention in that he was at all
times unlawfully detained since he could not be held responsible for
his wife's negligence in not declaring her gun to the customs, in that
he was not brought promptly before a judge, in that he did not get a
trial within a reasonable time, in that he was not set free against
bail and in that he was refused the assistance of a lawyer in order to
challenge the lawfulness of his detention. The relevant paragraphs of
Article 5 (Art. 5) provide:
"1. 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;
...
c. the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so;
...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for
trial.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not
lawful."
The Commission is satisfied that the first applicant was
initially detained, in accordance with Article 5 para. 1 (c)
(Art. 5-1-c), for the purpose of being brought before the competent
legal authority on reasonable suspicion of having committed an offence
and, after his conviction on 17 April 1991, in accordance with Article
5 para. 1 (a) (Art. 5-1-a) (cf., as regards detention pending appeal
against conviction and sentence, No. 9132/80, Dec. 16.12.82, D.R. 31,
p. 154). The first applicant was duly released after having served his
sentence.
The Commission also finds that the first applicant was brought
promptly before a judge, as required by Article 5 para. 3 (Art. 5-3)
of the Convention. He was arrested on 1 April 1991 and was brought
before a court on 3 April 1991. This was sufficiently prompt to meet
the above requirement (see, inter alia, No. 11256/84, Dec. 5.9.88,
D.R. 57, p. 47).
The Commission further finds that the first applicant was tried
within a reasonable time, as required by Article 5 para. 3 (Art. 5-3)
of the Convention. It here notes that the trial opened 16 days after
the arrest.
As regards the alleged refusal to order release on bail, the
Commission recalls that the aim of the guarantee laid down in the last
sentence of Article 5 para. 3 (Art. 5-3) is primarily to prevent
unnecessary detention in cases where the authorities only fear that the
accused will not appear for trial (see, inter alia, Eur. Court H.R.,
Wemhoff judgment of 27 June 1968, Series A No. 7, p. 25, para. 15).
In the circumstances of the present case, where the District Court
found that there was also a risk of evidence being suppressed, the
Commission does not find any breach of this provision.
The first applicant was allowed to see a lawyer, albeit for a
short period of time, before the hearing relating to his detention on
remand and to have the assistance of this lawyer in the course of the
hearing. In these circumstances, the Commission finds no indication of
a violation of Article 5 para. 4 (Art. 5-4) of the Convention.
It follows that the above complaints under Article 5 (Art. 5) are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
c. The first applicant also alleges a violation of Article 2 of
Protocol No. 7 (P7-2) to the Convention in that he was forced to waive
his right of appeal in order to recover his liberty after having served
the sentence imposed at first instance. This Article provides 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 higher tribunal or was convicted following
an appeal against acquittal."
The Commission notes that the first applicant signed the waiver
of appeal after he had been informed by the prison authorities that he
would otherwise have to remain in prison until the Court of Appeal had
decided his appeal and after he had been advised by his public defence
counsel to accept the judgment of the court of first instance. The
Commission finds that the information given by the prison authorities
merely restated the District Court's order that the first applicant
should remain in detention on remand until its judgment had gained
legal force. The Commission furthermore finds that the advice given
by the public defence counsel was not of such a character as to engage
the responsibility of the State as it may have been based on many
different legitimate considerations, e.g. related to an appeal's
prospects of success (see, mutatis mutandis, Eur. Court of H.R., Artico
judgment of 13 May 1980, Series A No. 37, p. 18, para. 36). In any case
the first applicant could have chosen to pursue his appeal against the
District Court's judgment, including its decision that he should remain
in detention until the judgment had become final. The Court of Appeal
would then have been obliged to examine without delay the question of
his continued detention and to order his release if detention was no
longer justified. The applicant has thus failed to establish that he
was forced to renounce his right to appeal.
It follows that the present complaint is inadmissible under
Article 27 para. 2 (Art. 27-2) of the Convention as being either
manifestly ill-founded or incompatible, ratione personae, with the
provisions of the Convention.
d. The first applicant furthermore alleges violations of Article 6
(Art. 6) of the Convention in that he did not get adequate time and
facilities to prepare his defence, was refused to see a lawyer during
the first three days of arrest, could not himself choose his public
defence counsel and also as a result of the prejudicial effects of the
article of 4 April 1991 in the local newspaper. The relevant parts of
Article 6 (Art. 6) read:
"1. In the determination of ... any criminal charge against
him, anyone is entitled to a fair ... hearing ... by [a]
tribunal ... .
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;
c. to defend himself in person or 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;
... "
The Commission finds, in view of its above conclusion under
Article 2 of Protocol No. 7 (P7-2), that it may be questioned whether
the first applicant has, in accordance with Article 26 (Art. 26) of the
Convention, exhausted domestic remedies in respect of the complaints
concerning his conviction and sentence. The Commission does not,
however, consider it necessary to determine this question as these
complaints are in any event manifestly ill-founded for the following
reasons.
The Commission finds no indication that the first applicant was
prevented from preparing his defence correctly. The first applicant was
allowed to contact a lawyer on the third day of his detention, shortly
before the District Court's hearing concerning detention on remand (cf.
No. 11256/84, loc. cit.). There is no indication that the first
applicant's access to his counsel was subsequently prevented in any way
relevant under Article 6 (Art. 6) of the Convention.
The Convention does not guarantee the right to have an officially
appointed defence counsel of one's own choice. In the instant case
there is furthermore nothing to show that the acts of the appointed
lawyer in any way prejudiced the first applicant's right to a fair
trial before the District Court.
Finally, the impugned newspaper article gave a correct account
of the facts and could not be put on par with a virulent press campaign
capable of prejudicing the fairness of the trial (see, mutatis
mutandis, No. 10486/83, loc. cit.).
The Commission concludes that the first applicant's complaints
under Article 6 (Art. 6) of the Convention are inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
e. The first applicant also alleges a violation of Article 8
(Art. 8) of the Convention in that the authorities did not, at any
stage of his arrest and detention, pay attention to the fact that he
had a job, a home and a child to look after and that the ensuing loss
of his job has ruined his private and family life. This Article
provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and 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."
The Commission finds that the restrictions imposed on the first
applicant while deprived of his liberty, to the extent that they could
be seen as interferences with his private and family life, were
justified under the second paragraph of Article 8 (Art. 8).
Accordingly, the above complaints are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The second applicant
The Commission notes that the second applicant wishes to withdraw
her complaints. In the light of its conclusions above, it finds no
reasons relating to respect for Human Rights as defined in the
Convention requiring a further examination of these complaints.
For these reasons, the Commission by a majority
1. DECLARES THE FIRST APPLICANT'S APPLICATION INADMISSIBLE;
2. STRIKES THE APPLICATION, INSOFAR AS IT CONCERNS THE SECOND
APPLICANT, OUT OF THE LIST OF CASES.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy