AS TO THE ADMISSIBILITY OF
Application No. 19853/92
by Henning SJÖSTRÖM
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 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 15 January 1991
by Henning Sjöström against Sweden and registered on 15 April 1992
under file No. 19853/92;
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 applicant is a Swedish citizen born in 1922 and resident in
Stockholm. He is a lawyer by profession. Before the Commission he is
represented by Mr. Peter Westdahl, a lawyer practising in Gothenburg.
The facts of the case, as submitted by the applicant, are as
follows.
Particular circumstances of the case
In 1953 the applicant was enrolled in the Swedish Bar Association
(Sveriges advokatsamfund). On 30 November 1990 the Disciplinary Board
(disciplinnämnden) of the Bar decided to exclude him from the Bar with
immediate effect. The disciplinary proceedings had been instituted in
August 1990 following a report by a Special Prosecutor essentially
indicating the following. The applicant had been the court-appointed
official counsel ("offentlig försvarare") for G., who had been
suspected of aggravated dishonesty with creditors, alternatively of
complicity in such an offence ("grov oredlighet mot borgenärer
alternativt medhjälp därtill"). G. had been detained from March to
October 1989 during which period his right to send and receive
correspondence had been restricted in accordance with Section 9,
subsection 2 of the 1976 Act on the Treatment of Detained and Arrested
Persons (lag 1976:371 om behandlingen av häktade och anhållna m.fl.).
Further instructions had been given by the Prosecutor to the effect
that G. had been prohibited from sending and receiving letters without
their prior inspection by the Prosecutor. In June and July 1989,
however, G. had managed to send and receive certain letters without
their having been inspected. The letters concerned large financial
transactions which G. had requested a bank abroad to carry out, inter
alia a transaction of 1.1 million USD. All correspondence to and from
G. had taken place with the help of a telefax device on the premises
of the law firm where the applicant had been working.
On 4 October 1990 the District Court (tingsrätten) of Stockholm
withdrew its appointment of the applicant as G.'s official counsel and
refused to accept him as G.'s legal representative.
The Disciplinary Board heard the parties orally on
14 November 1990. In his written and oral submissions to the
Disciplinary Board the applicant denied having conveyed letters to and
from G., or having assisted in any such conveyance, in contravention
of the rules in force. The applicant stated that letters had mistakenly
been sent from the telefax of the law firm. He further admitted that
G. had received information from the applicant's secretary pertaining
to letters addressed to him and which had been received by the telefax
of the law firm.
In its decision to exclude the applicant from the Bar the
Disciplinary Board found it established that G. had been able to send
and receive letters in contravention of the rules imposed by the
Special Prosecutor by using the assistance of the law firm where the
applicant was working. The circumstances under which the correspondence
had taken place had been such that the pre-trial investigation of the
economic offences of which G. had been suspected could have been
jeopardised. While it had not been shown that the applicant had been
aware of the correspondence prior to 19 June 1989, it had been
established that he had not given his secretary sufficiently precise
instructions in regard to the rules imposed by the prosecution. Taking
also into account the public confidence attached to a lawyer appointed
as official counsel, the Board considered that the applicant had to be
regarded as responsible for the breaches of those rules. The Board
further found that even subsequent to a discussion with his secretary
on 15 June 1989 the applicant had neither himself verified the contents
of the correspondence nor given any instructions preventing further
correspondence from taking place in breach of the rules of the
prosecution. Taking into account the applicant's considerable
experience as a defence lawyer, the Board considered that he had
grossly neglected his duties as a member of the Bar and that the
circumstances of the case were extremely aggravating.
Two of the nine members of the Disciplinary Board dissented,
considering that it had not been shown that the applicant had actively
participated in the correspondence to and from G.. These members
therefore voted for a warning and a pecuniary penalty. A third member
voted for excluding not only the applicant from the Bar, but also one
of his lawyer colleagues of the same law firm.
On 13 May 1991 the Supreme Court (Högsta domstolen) rejected the
applicant's appeal following a hearing, where the applicant was again
heard. The applicant was assisted by two members of the Bar. At the
Disciplinary Board's request the Special Prosecutor was heard as a
witness. At the applicant's request two members of the Bar as well as
his secretary and G. were also heard. Both the applicant and the
Disciplinary Board also submitted evidence in writing.
Before the Supreme Court the applicant explained, inter alia,
that he had refused to answer certain questions put to him during the
hearing before the Disciplinary Board, referring to his wish to
safeguard G.'s interests and to the fact that the Special Prosecutor
had been allowed to attend the hearing.
The Supreme Court could not find it established that the
applicant had deliberately committed a wrongdoing or otherwise acted
in a dishonest manner ("uppsåtligen gjort orätt eller annars förfarit
oredligt") within the meaning of Chapter 8, Section 7 of the Code of
Judicial Procedure (Rättegångsbalken). It, nevertheless, found that in
his capacity as G.'s official counsel the applicant had assisted G. in
such a manner that he had seriously neglected his duties as a member
of the Bar. The Supreme Court further noted, inter alia, that G. had
previously been found to have committed criminal offences and had been
suspected of unusually significant and serious economic crime. In those
circumstances the applicant had grossly failed to comply with the
ethical rules of the members of the Bar ("god advokatsed"), and this
warranted his exclusion from the Bar. As a further aggravating
circumstance the Supreme Court observed that the applicant had failed
to create guarantees that staff of the law firm would thoroughly
investigate the contents of the correspondence to and from G. Two of
the five justices of the Supreme Court dissented, voting for a warning
and a pecuniary penalty.
The applicant submits that "for different reasons" the complaints
now made to the Commission could not be made to the Supreme Court.
Relevant domestic law and statutes
1. Duties of the members of the Bar
A member of the Bar shall honestly and diligently carry out his
commissions and shall comply with the ethical standards of the Bar
(Chapter 8, Section 4, subsection 1 of the Code of Judicial Procedure).
2. Exclusion from the Bar
The members of the Bar are supervised by its Board. The
Chancellor of Justice (justitiekanslern) may request that the Board,
or another body of the Bar as prescribed by its statutes, take measures
against a member who neglects his duties (Chapter 8, Section 6 and
Sections 40-44a of the statutes of the Bar, the last-mentioned Section
having been added subsequent to the period of relevance in this case).
A member may be excluded from the Bar if in his activities he has
deliberately committed a wrongdoing or otherwise acted in a dishonest
manner. If mitigating circumstances exist, a warning may be issued. A
member may also be excluded if he otherwise neglects his duties as a
member of the Bar and provided the circumstances are aggravating. If
they are not aggravating he may be warned or be given a formal
notification. If he receives a warning he may, for special reasons,
also be ordered to pay a penalty to the Bar. The above questions shall
be decided by the Board of the Bar or by the Disciplinary Board. The
exclusion of a member may be ordered to be immediately enforced
(Chapter 8, Section 7 of the Code of Judicial Procedure and Sections
40-44a of the statutes of the Bar).
3. Composition of the Disciplinary Board
Seven members of the nine-member Disciplinary Board are elected
by the General Assembly of the Bar, while two members are appointed by
the Government. A member of the Board of the Bar shall not at the same
time be a member of the Disciplinary Board (Section 12 of the statutes
of the Bar). There is no obligation that any of the members should be
a professional judge.
4. Appeal proceedings
A member of the Bar can appeal against his exclusion in
proceedings before the Supreme Court. Unless there are particular
reasons the appellant shall be orally heard. The Disciplinary Board of
the Bar shall be given an opportunity to submit written observations
and, if an oral hearing takes place, also to submit its opinion orally
(Chapter 8, Section 8 and Chapter 56, Section 14).
COMPLAINTS
1. The applicant considers that the disciplinary proceedings against
him "must be placed at an equal footing with a criminal charge within
the meaning of Article 6 para. 1 of the Convention" in view of the
severity of the sanction imposed on him. He complains that he did not
receive a fair trial and that he was not presumed innocent until proven
guilty according to the law. At any rate, the proceedings concerned his
"civil rights" within the meaning of Article 6.
More specifically, the applicant challenges both the composition
of the Disciplinary Board and its procedure as well as the procedure
before the Supreme Court all of which in his view failed to meet the
requirements of Article 6 of the Convention. He alleges, in particular,
that there was no equality of arms between the parties. For instance,
the Special Prosecutor had an ambivalent role in the proceedings,
initially appearing as the conductor of the pre-trial investigation in
the case relating to G., then as an "assistant" to the Disciplinary
Board in the case relating to the applicant's exclusion from the Bar
and subsequently as a "witness" before the Supreme Court in the last-
mentioned case. In the proceedings before the Supreme Court the
applicant was thus faced with two "opponents", namely both the Special
Prosecutor and the Disciplinary Board. The role of the Secretary-
General of the Bar Association in the proceedings before the
Disciplinary Board is also alleged to have been detrimental to the
applicant. Moreover, given that the majority of the members of the
Disciplinary Board were themselves members of the Bar, they were biased
in the consideration of the applicant's case. In this respect
particular reference is made to the applicant's longlasting criticism
of the Bar. In addition, the proceedings before both the Disciplinary
Board and the Supreme Court were allegedly not sufficiently based on
foreseeable procedural rules. Finally, neither the Disciplinary Board
nor the Supreme Court gave sufficient reasons for the applicant's
exclusion from the Bar.
The applicant asserts that at least if all above-mentioned
elements are considered together his right to a fair trial has been
violated.
2. Under Article 6 of the Convention the applicant also complains
that the proceedings before the Disciplinary Board were excessively
lengthy.
3. The applicant further complains that he has been held guilty of
a criminal offence which did not constitute such an offence under
national or international law at the time when it was committed. He
submits that the consequences of his behaviour in respect of the
correspondence to and from G. were not foreseeable due to the absence
of any guiding case-law. He invokes Article 7 para. 1 of the
Convention.
4. The applicant also complains that he has been denied the right
to have his "conviction" reviewed by a higher tribunal. He invokes
Article 2 para. 1 of Protocol No. 7 to the Convention.
5. The applicant finally complains that he has been deprived of an
effective remedy within the meaning of Article 13 of the Convention
against the alleged violations of his Convention rights. He refers, in
particular, to the fact that his exclusion from the Bar was immediately
enforceable.
THE LAW
1. The applicant essentially complains that he did not receive a
fair trial before the Disciplinary Board of the Swedish Bar Association
and before the Supreme Court. He refers to a number of elements in the
proceedings which in his view, at any rate if taken together, led to
his being denied the guarantees afforded by Article 6 (Art. 6) of the
Convention.
The relevant part of Article 6 (Art. 6) reads as follows:
"1. In the determination of his civil rights or of any
criminal charge against him, everyone is entitled to a fair
... hearing ... by an independent and impartial tribunal
established by law. ..."
The Commission recalls that disciplinary sanctions are generally
designed to ensure that members of particular groups comply with the
specific rules governing their conduct (Eur. Court H.R., Weber judgment
of 22 May 1990, Series A no. 177, p. 18, para. 33). It finds that the
proceedings instituted against the applicant were only of a
disciplinary character and therefore did not concern the determination
of a "criminal charge".
The Commission observes, however, that the proceedings complained
of related to a dispute over the applicant's right to continue to
practise his profession as a member of the Bar. This right could
arguably be said to be recognised under domestic law and was clearly
of a "civil" character. The dispute was furthermore genuine and serious
and its outcome was directly decisive for the right in question
(cf., e.g., Eur. Court H.R., H. v. Belgium judgment of 30 November
1987, Series A no. 127-B, p. 31 et seq., para. 37 et seq.). It follows
that Article 6 para. 1 (Art. 6-1) is applicable in its civil aspect.
The Commission recalls that the principles enshrined in Article 6
paras. 2 and 3 (Art. 6-2, 6-3) relate to criminal charges and are
therefore not relevant in the present case.
The Commission further recalls that Article 6 para. 1
(Art. 6-1) does not oblige States to submit disputes over civil rights
to a judicial procedure which at each stage conforms to the said
provision. It may be sufficient that, for instance, a professional body
determines the dispute at first instance, provided that its decision
is subject to review by a court under a judicial procedure satisfying
the conditions of Article 6 (Art. 6) (e.g. Eur. Court H.R. Öztürk
judgment of 21 February 1984, Series A no. 73, pp. 21-22, para. 56).
Accordingly, the Commission will limit itself to examining whether the
proceedings before the Supreme Court complied with Article 6 (Art. 6).
Even assuming that the applicant has exhausted domestic remedies
as required by Article 26 (Art. 6) of the Convention, the Commission
further recalls that it is normally not competent to deal with a
complaint alleging that errors of law and fact have been committed by
domestic courts. An exception could be made where the Commission
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention or one of its
Protocols, for instance in that a judgment has no legal justification
and thereby violates a party's right to receive a fair trial (cf.
Eur. Court H.R., De Moor judgment of 23 June 1994, Series A no. 292-A,
para. 55). As a general rule, however, it is for the domestic courts
to assess the evidence before them, in particular since they have the
benefit of hearing witnesses and assessing their credibility (e.g. Eur.
Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20,
para. 43; Klaas judgment of 22 September 1993, Series A no. 269-A,
pp. 17-18, paras. 29-30). The task of the Convention organs is to
ascertain whether the proceedings, considered as a whole, including the
way in which evidence was taken and submitted, were fair (cf., e.g.,
the above-mentioned Lüdi judgment, loc.cit.).
In regard to the fairness of the proceedings before the Supreme
Court the Commission observes that they were governed by the Code of
Judicial Procedure. The examination of the applicant's appeal included
an oral hearing of the applicant concerning both the facts and the law
of the case. While it is true that the Special Prosecutor was heard as
a witness at the request of the Disciplinary Board, two members of the
Bar as well as the applicant's secretary and G. were all heard at the
applicant's request. Moreover, the further written evidence submitted
by the Disciplinary Board was countered by the applicant, who also
submitted such further evidence.
The Commission further finds that, although the applicant
objected to the presence of the Special Prosecutor when he was heard
before the Disciplinary Board, there is no indication that he found it
necessary to raise any similar objection in the proceedings before the
Supreme Court. Nor has it been shown that the applicant objected to the
hearing of the Special Prosecutor as a witness.
Finally, in regard to the merits of the Supreme Court's decision
the Commission cannot find that its reasoning was in any way arbitrary
or otherwise lacked a legal justification (cf., a contrario, the
above-mentioned De Moor judgment, loc.cit.).
Having assessed all elements of the proceedings before the
Supreme Court, the Commission concludes that the applicant was afforded
a fair hearing within the meaning of Article 6 (Art. 6). Accordingly,
there is no appearance of a violation of that provision.
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. Under Article 6 (Art. 6) of the Convention the applicant also
complains that the proceedings before the Disciplinary Board were
excessively lengthy.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of each
case and having regard to the following criteria: the complexity of the
case, the conduct of the parties and that of the authorities dealing
with the case (e.g., Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
The disciplinary proceedings against the applicant were
instituted before the Disciplinary Board in August 1990 and terminated
before that body in November 1990. The overall proceedings were
concluded in May 1991 with the Supreme Court's judgment. The total
length of the proceedings thus amounted to less than a year. In the
light of the criteria laid down in the Court's case-law the Commission
cannot find that this length exceeded a "reasonable time". Accordingly,
there is no appearance of a violation of Article 6 (Art. 6) in this
respect either.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant further complains that he has been held guilty of
a "criminal offence" which did not constitute such an offence under
national or international law at the time when it was committed. He
submits that the consequences of his behaviour in respect of the
correspondence to and from G. were not foreseeable due to the absence
of any guiding case-law. He invokes Article 7 para. 1 (Art. 7-1) of the
Convention.
Referring to its conclusion under no. 1 above as regards
"criminal charge", the Commission considers that the applicant's
exclusion from the Bar did not constitute a conviction on account of
a "criminal offence" within the meaning of Article 7 para. 1
(Art. 7-1). Article 7 (Art. 7) is therefore not applicable.
It follows that this complaint must be rejected as being
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant also complains that he has been denied the right
to have his "conviction" of a "criminal offence" reviewed by a higher
tribunal. He invokes Article 2 para. 1 of Protocol No. 7 (P7-2) to the
Convention.
Referring to its conclusion under no. 3 above, the Commission
considers that Article 2 of Protocol No. 7 (P7-2) does not apply in the
instant case.
It follows that this complaint must also be rejected as being
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
5. The applicant finally complains that he has been deprived of an
effective remedy within the meaning of Article 13 (Art. 13) of the
Convention.
Article 13 (Art. 13) reads as follows:
"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."
In view of its conclusions under nos. 1-2 above the Commission
considers that in respect of those complaints the applicant has no
"arguable claim" of a breach of a violation of this provision which
would warrant a remedy under Article 13 (Art. 13) (see Eur. Court H.R.,
Powell and Rayner judgment of 21 February 1990, Series A no. 172,
p. 20, para. 46).
In view of its conclusions under nos. 3-4 above the Commission
considers that in respect of those complaints the applicant's complaint
under Article 13 (Art. 13) must also be considered incompatible ratione
materiae with the provisions of the Convention.
It follows that the complaint under Article 13 (Art. 13) must be
rejected in accordance with meaning of Article 27 para. 2
(Art. 27-2) of the Convention partly as being manifestly ill-founded
and partly as being incompatible ratione materiae with the provisions
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