AS TO THE ADMISSIBILITY OF
Application No. 33545/96
by Marko SANDELIN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, 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
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 23 September 1996
by Marko Sandelin against Sweden and registered on 28 October 1996
under file No. 33545/96;
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 Finnish citizen born in 1963, is a construction
worker. He resides in Stjärnhov, Sweden. Before the Commission he is
represented by Ms Kerstin Koorti, a lawyer practising in Stockholm.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
a. The particular circumstances of the case
On 19 April 1995 the public prosecutor charged the applicant with
an aggravated form of handling stolen goods (grovt häleri) under
Chapter 9, Section 6, subsections 1:3 and 3 of the Penal Code
(Brottsbalken). According to the bill of indictment, on 6 April 1993
unknown persons had induced the postal giro service in Stockholm, by
means of falsified forms, to transfer 783,600 Swedish crowns (SEK) from
one account to the account of the applicant's company. Allegedly
realising that the amount had been acquired by fraudulent means, the
applicant had furthered the offence by allowing his company's giro
account to be used in the transaction and by assisting in the
withdrawal of 750,000 SEK from the account on 7 April 1993. The postal
giro service, joining the proceedings as a civil party, claimed damages
in the latter amount.
By judgment of 30 October 1995, the District Court (tingsrätten)
of Stockholm considered that it could not be excluded that the
applicant had acted without knowing that the amount in question had
been illegally acquired. Still, the court found it clear that the
applicant had had good reasons to presume that the amount had been so
acquired and that his actions had unduly aided others in taking
possession thereof. Thus, he was considered guilty of the minor form
of handling stolen goods (häleriförseelse) under Chapter 9, Section 7
of the Penal Code. However, as this offence was time-barred, the
criminal charges were dismissed and no sentence was imposed on the
applicant. Nevertheless, as his civil liability was not time-barred,
the applicant was ordered to pay damages in the amount claimed by the
postal giro service.
The applicant appealed to the Svea Court of Appeal (Svea
hovrätt). He claimed that he was not liable to pay damages to the
postal giro service, as he had not had good reasons to presume that the
amount transferred to his account had been illegally acquired. The
public prosecutor did not appeal against the District Court's decision
to dismiss the criminal charges and, consequently, was not a party to
the appeal proceedings.
On 19 April 1996, following an oral hearing, the Court of Appeal
upheld the District Court's judgment.
The applicant made a further appeal to the Supreme Court (Högsta
domstolen). In addition to what he had stated before the Court of
Appeal, he maintained, inter alia, that the District Court's finding
that he was liable to pay damages was based on an offence with which
he had not been charged.
On 24 May 1996 the Supreme Court refused the applicant leave to
appeal.b. Relevant domestic law
The relevant parts of Chapter 9 of the Penal Code provide the
following:
(Translation)
Section 6, subsection 1:
"A person who
...
3. unduly furthers the possibility for somebody else to
take possession of property which has been illegally
acquired or of the value of such property,
...
shall be sentenced for handling stolen goods [häleri] to
prison for a period not exceeding two years."
Section 6, subsection 3:
"If the offence under subsections 1 or 2 is aggravated, the
sentence shall be imprisonment for a period not less than
six months and not exceeding six years."
Section 7:
"If the offence under Section 6 is considered to be a minor
form of handling stolen goods [häleriförseelse], the
sentence shall be imprisonment for a period not exceeding
six months.
A person shall be sentenced for this minor offence also
if,
...
2. in cases referred to under Section 6 subsection 1, he
did not realise but had good reasons to presume that a
criminal offence had been committed.
..."
COMPLAINTS
The applicant complains that, as he was found guilty of an
offence with which he had not been charged, he did not have a fair
trial by an impartial tribunal. He invokes Article 6 para. 1 of the
Convention.
THE LAW
The applicant complains that, as the public prosecutor had
charged him with only the aggravated form of handling stolen goods, the
District Court's finding of guilt and the resulting liability to pay
damages was based on an offence - the minor form of handling stolen
goods - with which he had not been charged. As the aggravated offence
implies intent whereas the minor offence presupposes negligence, the
applicant alleges that he was not able to defend himself against the
offence of which he was found guilty. For this reason, he did not have
a fair trial by an impartial tribunal, as required by Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission considers that not only Article 6 para. 1
(Art. 6-1) but also Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b)
are of relevance to the applicant's complaint. In relevant parts,
these provisions read as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair ... hearing ... by ... an impartial
tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence"
The Commission recalls its case-law according to which an accused
person has the right to be informed not only of the "cause" of the
accusation, that is, not only of the acts with which he or she is
charged and on which the indictment is based, but also of the "nature"
of the accusation, namely the legal classification of the acts in
question (cf., e.g., Nos. 24571/94 and 24572/94, Dec. 28.6.95, D.R. 82,
p. 85).
As regards the circumstances of the present case, the Commission
notes that the offence with which the applicant was charged was
reclassified by the District Court. Instead of the aggravated form of
handling stolen goods under Chapter 9, Section 6 of the Penal Code,
invoked by the public prosecutor, the applicant's conduct was found to
constitute the minor form of handling stolen goods, as laid down in a
different provision, Chapter 9, Section 7 of that Code. A conviction
for the aggravated form requires intent on the part of the perpetrator.
The minor form applies inter alia to cases like the present one where
intent cannot be demonstrated but where the person in question is
considered to have been negligent.
The Commission further notes that the applicant was not informed,
during the first instance proceedings, of the reclassification of the
offence in question. However, leaving aside the question whether the
element of negligence could be said to be an intrinsic part of the
original charge brought by the public prosecutor, the Commission
recalls that the applicant was acquitted by judgment of the District
Court of 30 October 1995 due to a time-bar. The prosecutor did not
appeal against the District Court's judgment and, consequently, the
acquittal became final.
The applicant appealed against the District Court's judgment in
so far as it concerned the question of damages. The Commission notes
that the appeal proceedings did not determine a criminal charge but
only the applicant's civil liability to pay damages. Consequently,
Article 6 para. 3 (Art. 6-3) of the Convention did not apply to those
proceedings, which are to be examined under Article 6 para. 1
(Art. 6-1) alone.
The liability to pay damages was based on the District Court's
finding that the applicant was guilty of the minor form of handling
stolen goods, as he had been negligent in allowing his company's giro
account to be used and in assisting in the withdrawal of the amount in
question from that account. At the time of the appeal, it was clear
to the applicant that this was the main issue in the case. Thus, in
his appeal petition and during the hearing in the Court of Appeal, the
applicant was able - and in fact did - present his arguments in this
respect.
Moreover, the Court of Appeal examined the applicant's arguments
and could have reversed, if it had agreed with his contentions, the
District Court's finding that he was guilty of negligent conduct. As
a consequence, his liability to pay damages would have been eliminated.
In these circumstances, the Commission considers that the applicant had
a fair hearing in the appeal proceedings.
Thus, having regard to the entirety of the proceedings, the
Commission finds that the application fails to disclose any appearance
of a violation of the applicant's rights 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy