AS TO THE ADMISSIBILITY OF
Application No. 19598/92
by Torgny ROOS
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
H. DANELIUS
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 7 September
1991 by Torgny ROOS against Sweden and registered on 6 March 1992
under file No. 19598/92;
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 1953. He is at
present serving a life sentence in Sweden.
The applicant and his now ex-wife married in 1973. Two
children were born out of this relationship. During their
marriage the family lived for a period of time in Switzerland,
but took up residence in Sweden again in 1989.
It appears that the applicant's relationship with his wife
deteriorated to the extent that she expressed a wish of having
a divorce, something the applicant would not accept. Due to this
two incidents occurred in the spring of 1990, on 8 March and 18
May 1990 respectively, following which the applicant was arrested
suspected of attempted manslaughter (försök till dråp), attempted
murder (försök till mord) and illegal possession of firearms.
By indictment of 13 July 1990 the applicant was charged with
the above offences. According to the indictment the applicant
had, on 8 March 1990, assaulted and ill-treated his wife with the
intent of killing her inter alia by wounding her with a knife by
several stabs to her head and throat. Furthermore, he had, on 18
May 1990, allegedly attempted to kill her with a sawn-off shotgun
by shooting her in the back which had resulted in permanent
paralysis of major parts of her body.
The case was examined by the District Court (tingsrätten)
of Stockholm where the applicant, assisted by counsel, was heard
as well as a number of witnesses. Furthermore, documentary
evidence and expert opinions were produced. On the basis of an
evaluation of the above evidence the applicant was found guilty
of the charges brought against him and sentenced to life
imprisonment by judgment of 8 November 1990. The sentence of life
imprisonment was imposed due in particular to the brutality and
ruthlessness with which the Court found the applicant had acted.
He was finally ordered to pay damages to his wife in the amount
of 1,150,000 SEK.
The applicant appealed against the judgment to the Svea
Court of Appeal (Svea hovrätt). He maintained in particular that
it had not been his intention to kill his wife but accepted that
she had suffered bodily harm. As regards the ensuing proceedings
in the Court of Appeal, the applicant drew the Court's attention
to the fact that his hearing is impaired and that he uses a
hearing-aid. He therefore requested the Court to provide
facilities in the court room allowing him to follow the
proceedings in an appropriate manner.
The case was heard in the Court of Appeal from 14 to 18
January 1991. The applicant, assisted by counsel, was heard in
addition to two witnesses, one of whom was his daughter who had
witnessed the incident of 8 March 1990. Furthermore, the
applicant's wife as well as three expert witnesses were heard.
Documentary evidence was also submitted. During the hearing of
the witnesses and experts the applicant moved around in the court
room in order to be sufficiently close to those speaking. During
the hearing of his wife and his daughter the applicant was not
present in the court room but was placed in an adjacent room from
where he could listen to their statements through a loudspeaker.
He submits that he was sitting on a chair placed on a table in
order to be as close to the loudspeaker as possible.
The Court of Appeal pronounced judgment on 1 February 1991.
Following an evaluation of the evidence submitted the Court of
Appeal upheld the District Court's judgment.
The applicant appealed against the judgment to the Supreme
Court (Högsta domstolen). In his request for leave to appeal he
maintained his innocence as regards his intent to kill his wife
whereas he accepted having assaulted her and having caused bodily
harm. He furthermore maintained that the case should be referred
back to the Court of Appeal due to grave procedural errors (grovt
rättegångsfel). In this respect he maintained that he could not
appropriately follow the court proceedings due to his hearing
handicap, in particular when placed in the adjacent room during
the hearing of his daughter and his wife.
On 7 March 1991 the Supreme Court refused the applicant
leave to appeal.
COMPLAINTS
The applicant maintains that he is innocent in so far as he
has been convicted of attempted manslaughter and attempted
murder.
He furthermore complains that he did not have a fair trial
since he could not properly hear what was said in the Court of
Appeal. In particular he submits that, in the court room, he had
to move around in order to be close enough to the persons
speaking, and while his wife and daughter were heard he had to
sit in an adjacent room on a chair placed on a table in order to
be close enough to the loudspeaker. Regardless thereof the
applicant maintains that the presiding judge ignored his
complaints that he was unable to hear what was said.
The applicant invokes Article 6 of the Convention.
THE LAW
The applicant complains that he was wrongly convicted and
sentenced on 1 February 1991 by the Court of Appeal and also of
the court proceedings concerned.
With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task it to
ensure the observance of the obligations undertaken by the
Parties in the Convention. In particular, it is not competent to
deal with an application alleging that errors of law or fact have
been committed by domestic courts, except where it considers that
such errors might have involved a possible violation of any of
the rights and freedoms set out in the Convention. The Commission
refers, on this point, to its established case-law (see e.g. No.
458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.
8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,
D.R. 18 pp. 31, 45).
It is true that in this case the applicant also complains
that he did not have a fair trial as he had difficulties in
hearing all what was said in the Court of Appeal. He refers in
this connection to Article 6 (Art. 6) of the Convention which in
so far as relevant reads as follows :
"In the determination of ... any criminal charge
against him, everyone is entitled to a fair ...
hearing ... ."
As regards the fairness of the trial the Commission recalls
that it must consider the proceedings as a whole, including not
only the proceedings in the Court of Appeal but also those in the
District Court. The Commission's task is to ascertain whether
these proceedings in their entirety, including the way in which
evidence was taken, were fair (cf. inter alia Eur. Court H.R.,
Stanford judgment of 23 February 1994, Series A no. 280-A, para.
24).
Furthermore, according to the established case-law of the
Commission and the European Court of Human Rights it is clear
that Article 6 (Art. 6), read as a whole, guarantees the right
of an accused to participate effectively in a criminal trial. In
general this includes not only his right to be present but also
to hear and follow the proceedings. Such rights are implicit in
the very notion of an adversarial procedure and can also be
derived from the guarantees contained in sub-paragraphs (c), (d)
and (e) of paragraph 3 of Article 6 (Art. 6-3-c, 6-3-d, 6-3-e)
(cf. for example Eur. Court H.R., Colozza judgment of 12 February
1985, Series A no. 89, p. 14, para. 27). However, where the
hearing of the accused is impaired the Commission finds it
obvious that this cannot as such be allowed to block the
prosecution or lead to the conclusion that an accused with such
a handicap cannot have a fair trial.
In the present case the Commission recalls that the
applicant's hearing is impaired and that he uses a hearing-aid
which improves his hearing to a certain extent. Indeed the
applicant's trial in the District Court did not give rise to any
misgivings in this respect whereas he maintains that he was
unable to hear all what was said in the Court of Appeal. The
Commission recalls that during these proceedings the applicant
moved around in the court room in order to be close to the person
speaking and, when not in the court room, had to make
arrangements so as to be very close to the loudspeaker in order
to hear the statements by his wife and his daughter. When looking
at the applicant's trial as a whole, the Commission does not,
however, find that these circumstances made the trial unfair.
Furthermore, the Commission recalls that the applicant was
represented by counsel who had no difficulty in following the
proceedings and who would have had every opportunity to discuss
with the applicant any points that arose in respect of statements
the applicant allegedly did not hear. In these circumstances the
Commission finds the case, as submitted, does not disclose any
appearance of a violation of the applicant's right to a fair
trial as guaranteed to him under Article 6 (Art. 6) of the
Convention.
It follows that the application is 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