SUR LA RECEVABILITÉ
Application No. 23222/94
by Mahmoud ISKANDARANI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 7 September 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 5 December 1993
by Mahmoud Iskandarani against Sweden and registered on 10 January 1994
under file No. 23222/94;
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 1968 in Lebanon. He
is unemployed and resides at Malmö. Before the Commission the applicant
is represented by Mr. Bertil Leander, a lawyer practising at Malmö.
The applicant married a Swedish citizen, M, on 26 March 1989. On
30 September the same year their daughter, A, was born. Shortly
afterwards the applicant and M separated. Mother and child settled in
Nordmaling in the northern part of Sweden whereas the applicant
remained in Malmö with the result that his possibilities of seeing A
were limited. By judgment of 3 April 1992 the spouses divorced and an
interim decision of 6 September 1991 granting custody of A to her
mother was confirmed. No appeal was lodged against this judgment.
In the meantime, in the summer of 1991, the applicant planned the
abduction of A. With the assistance of a friend the plan was carried
out on 5 August 1991.
Whereas the abduction was first believed to be a kidnapping by
strangers the investigations soon concentrated on the applicant who was
arrested on 9 August 1991 and detained on remand. By indictment of
26 August 1991 he was charged with child abduction contrary to
Chapter 7 section 4 of the Penal Code. The applicant confessed and by
judgment of 3 September 1991 the Umeå District Court (tingsrätt) found
him guilty of the charge brought against him and sentenced him to one
year and six months' imprisonment. The applicant did not appeal against
the judgment which accordingly became final.
In December 1991 the police commenced a new investigation into
the whereabouts of A. The applicant was interrogated on
17 December 1991 and 7 May 1992. On 9 May 1992, the day on which he was
to be released on probation, the applicant was arrested and detained
on remand again, now charged with refusing, as from 7 September 1991,
to inform the mother and the Swedish authorities of A's whereabouts in
violation of Chapter 7 section 4 subsections 1 and 3 of the Penal Code.
During further interrogations on 11, 12 and 18 May 1991 the applicant
admitted that A was now in Tunisia but he refused to disclose where or
who now cared for her.
By judgment of 27 May 1992 the Malmö District Court found the
applicant guilty of the charge brought against him. The judgment reads
inter alia as follows:
(translation)
"(The applicant) has stated as follows. (A) is now in
Tunisia. (He) knows who actually takes care of her. During
his imprisonment he has talked to this person twice. (The
applicant) has his telephone number. The only way in which
(A) may be returned to her mother is that (the applicant)
fetches (her) from Tunisia. (The applicant) has no
objection to (M) accompanying him to Tunisia. They have
discussed this possibility. (The applicant) must, however,
be there. Otherwise there is a risk that the person in
question out of fear of arrest will disappear with (A). In
order to protect the person in Tunisia (the
applicant) will not disclose his name or
telephone number. Different arrangements for
(A's) return have been discussed. If (the
applicant) cannot go to Tunisia there is,
however, no solution.
The Court's considerations:
Since (the applicant) refuses to give information
concerning the person who actually takes care of (A) at
present, he still withholds her from (M). His actions are
to be considered as a new offence as maintained by the
prosecution ... ."
The applicant was sentenced to one year and three months'
imprisonment.
On 29 July 1992 the Court of Appeal (hovrätten) for Skåne and
Blekinge upheld the judgment.
Having granted leave to appeal the Supreme Court (Högsta
domstolen) pronounced judgment in the case on 28 September 1992. The
Court stated inter alia as follows:
(translation)
"In the Umeå District Court's final judgment of
3 September 1991 (the applicant) was found guilty of having
abducted, on 5 April 1991, his daughter (A) who was then
under his and (M's) joint custody. In this case the
question arises whether (the applicant) has again committed
an offence of illegal and arbitrary removal or concealment
of a child from its rightful custodian (egenmäktighet med
barn) by failing to take action in order to return (A).
Arbitrary removal of a child from its custodian within the
meaning of the provision concerning the illegal and
arbitrary removal or concealment of children may occur not
only by abducting the child but also by withholding the
child. It should be possible to impose punishment for such
withholding even in respect of the person who was
previously convicted of child abduction.
In particular this is relevant when the child has been
removed from Sweden or is kept at an unknown place. First
of all this relates to situations where measures have been
taken subsequent to the previous judgment in order to
conceal the child from the custodian. However, if somebody
who illegally abducts a child simply fails to return it to
its custodian this does not necessarily mean that he
conceals the child. For example he may be without a
practical possibility of changing the situation. He may
also escape punishment if he has done his best in order to
return the child but this nevertheless turns out to be
insufficient.
(The applicant's) assistance has been necessary for the
return of the child. It is true that he has been deprived
of his liberty during the period of time to which the
indictment refers. Nevertheless, during this period he has
refused to reveal who takes care of the child
despite the fact that he said he knew with whom
the child was. As a result of this he must be
considered as having withheld the child from
(M)."
The sentence of one year and three months' imprisonment was
upheld.
In the meantime the Swedish authorities had continued their
efforts to find A. On 25 August 1992 the applicant informed the police
of the name and telephone number of the person in Tunisia who allegedly
took care of A. However, despite investigations carried out by the
Swedish Embassy in Tunis this person, as well as A's whereabouts,
remained unknown.
On 20 December 1992, two days before the applicant's conditional
release from his previous sentence, the applicant was arrested and
detained on remand again. By indictment of 19 January 1993 he was now
charged with having arbitrarily withheld A from her mother during the
period 28 May 1992 until 19 January 1993 contrary to Chapter 7
section 4 subsections 1 and 3 of the Penal Code.
By judgment of 5 February 1993 the Malmö District Court found the
applicant guilty of the charge brought against him and sentenced him
to two years' imprisonment. On the basis of the available evidence the
court found that, despite the information given to the police on
25 August 1992 and thereafter, the applicant had not "done his best"
in order to reunite A with her mother. This judgment was upheld by the
Court of Appeal on 8 April 1993.
Having granted leave to appeal the Supreme Court pronounced
judgment on 15 June 1993. In its judgment the Court stated inter alia
as follows:
(translation)
"Having regard to the fact that (the applicant) has been
deprived of his liberty since his arrest on 9 August 1991
... there is not sufficient reason to believe that (he) has
control over (A's) situation now.
...
On this basis the Supreme Court finds that the judgment
should be quashed in so far as it concerns the period after
25 August 1992 when (the applicant) submitted that it was
(X) who took care of (A) and informed about a telephone
number where he could be reached.
..."
The sentence was reduced to the extent that the previous sentence
of one year and three months' imprisonment was found to cover also the
present offence. The applicant was released from prison on 15 June
1993. The whereabouts of A are still unknown to her mother.
COMPLAINTS
The applicant complains, under Article 4 of Protocol No. 7 to the
Convention, that he has been convicted three times for the same
offence. He maintains that his final convictions of 3 September 1991,
28 September 1992 and 15 June 1993 all concern the same offence.
THE LAW
The applicant complains that he has been convicted three times
for the same offence and invokes Article 4 of Protocol No. 7
(P7-4) to the Convention, the first paragraph of which reads as
follows:
"No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same
State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal
procedure of that State."
The Commission recalls that the applicant was charged, on
26 August 1991, with having abducted his daughter on 5 August 1991. He
was found guilty of this charge by the Umeå District Court's judgment
of 3 September 1991 which became final as neither the applicant nor the
prosecution appealed against it.
Furthermore, the Commission recalls that on 27 May 1992 the
applicant was found guilty of withholding the child from its legal
custodian from 7 September 1991 until 27 May 1992 in that he refused
to reveal the child's whereabouts. This judgment was eventually
confirmed by the Supreme Court which found that the offence of child
abduction committed on 5 August 1991 and that of subsequently
withholding the child from its legal custodian were distinct from each
other.
Finally, the Commission recalls that by final judgment of
15 June 1993 the Supreme Court confirmed the applicant's conviction in
so far as it concerned the withholding of the child from its legal
custodian during the period 28 May 1992 until 25 August 1992 on which
date the applicant disclosed the information, believed to be in his
possession, to the authorities.
In these circumstances the Commission is satisfied that the
applicant was convicted in accordance with Swedish law for three
different offences. Consequently, he was not tried or punished again
"for an offence for which he has already been finally ... convicted"
within the meaning of Article 4 of Protocol No. 7 (P7-4) to 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 Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy