AS TO THE ADMISSIBILITY OF
Application No. 21037/92
by T. K.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 September 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 September 1992
by T. K. against Sweden and registered on 4 December 1992 under file
No. 21037/92;
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, a Swedish citizen born in 1943 and residing at
Mjölby, Sweden, is an industrial worker. Before the Commission he is
represented by Mr. Per Svensson, a lawyer practising in Njurunda,
Sweden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 10 October 1990 the applicant was convicted of fraud by the
District Court (Tingsrätten of Norrköping). He was given a suspended
sentence and a fine of 6000 SEK. Before the District Court the
applicant was represented by a public defence counsel (offentlig
försvarare) who had been appointed ex officio by the Court.
The applicant appealed against his conviction to the Court of
Appeal (Göta hovrätt). At the same time he lodged a request to have his
defence counsel replaced by a lawyer he had chosen himself. He stated
that he had no confidence in the appointed counsel.
By decision of 27 August 1991 the Court of Appeal rejected the
applicant's request for a change of public defence counsel, stating
that the applicant had not shown sufficient grounds for a change. In
a letter dated 9 September 1991, the applicant appealed against this
decision. He also requested the Court of Appeal to dismiss the public
defence council and to give him adequate time to appoint another
counsel. Furthermore, he claimed that his request constituted an
obstacle (rättegångshinder) to holding a main hearing in the fraud
case.
On 16 September 1991 the Supreme Court (Högsta domstolen) refused
leave to appeal against the Court of Appeal's decision not to replace
the defence counsel.
On the same day, 16 September 1991, before the applicant was
informed of the decision of the Supreme Court, the Court of Appeal held
its main hearing in the fraud case. Neither the applicant nor his
defence counsel appeared. In the minutes of the hearing it was noted
that the applicant had told his counsel that he did not intend to
appear at the hearing. It was further noted that on 27 August 1991 the
applicant had been served a summons to appear at the hearing at the
risk of his appeal being declared forfeited if he failed to appear.
Thus, the Court of Appeal decided to dismiss the appeal on account of
the applicant's non-appearance, the absence of any reasons to believe
that he had a lawful excuse (laga förfall) for his non-appearance and
the impossibility to hold the hearing in his absence. The Court of
Appeal, however, stated that the case could be reopened, if the
applicant would show that there had been a lawful excuse of which he
had not been able to give notice in time.
The applicant then requested the Court of Appeal to reopen the
case. He submitted that he had not appeared at the hearing as he had
presumed it had been postponed pending the Supreme Court's decision
regarding his request for a change of public defence counsel. By
decision of 4 October 1991, the Court of Appeal rejected the request,
stating that the applicant had not shown that there had been a lawful
excuse for his failure to appear at the hearing.
On 18 March 1992 the Supreme Court refused the applicant leave
to appeal against the decision not to reopen the case.
COMPLAINTS
The applicant alleges that, by not postponing the hearing pending
the Supreme Court's decision regarding his public defence counsel, the
Court of Appeal has not respected his right to appeal against its
decision not to replace the public defence counsel and has also denied
him the right to appoint a defence counsel of his own choosing. He
maintains that if a defendant is dissatisfied with his public defence
counsel, he has, firstly, a right to request a change of that counsel
and, secondly, if that request is rejected, a right to appoint a
defence counsel of his own choosing. The applicant invokes Article 6
paras. 1 and 3 c) of the Convention.
THE LAW
The applicant complains that his right to appeal against the
Court of Appeal's decision not to replace his public defence counsel
and his right to appoint a defence counsel of his own choosing have
been denied in violation of Article 6 paras. 1 and 3 c)
(Art. 6-1, 6-3-c) of the Convention, which, in so far as relevant, read
as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... by [a]
... tribunal ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
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 reiterates that the requirements of para. 3 of
Article 6 (Art. 6-3) are specific aspects of the general concept of a
fair hearing guaranteed in para. 1 of the same Article (cf., e.g.,
Eur. Court H.R., F.C.B. v. Italy judgment of 28 August 1991, Series A
no. 208-B, p. 20, para. 29). The Commission will therefore examine the
applicant's complaint from the point of view of these two provisions
in conjunction.
The Commission recalls its case-law to the effect that Article
6 para. 3 c) (Art. 6-3-c) does not guarantee the right to choose which
defence counsel is to be appointed by the court any more than it
guarantees the right to be consulted about the choice of officially
appointed defence counsel (cf. No. 6946/75, Dec. 6.7.76, D.R. 6 p. 114,
and No. 12152/86, Dec. 9.5.89, D.R. 61 p. 171). Accordingly, the
question whether to change an officially appointed counsel is to be
determined by the competent national court or authority, having regard
to the principle of equality of arms as included in the concept of a
fair hearing.
In the present case, a public defence counsel had been appointed
for the applicant by the District Court. In its decision not to replace
the counsel, the Court of Appeal stated that the applicant had not
submitted sufficient grounds for a change. The Commission finds that
there is nothing in the file to show that this decision violated the
principle of equality of arms or otherwise denied the applicant his
right to a fair hearing.
The Commission further considers that neither the appointment of
the public defence counsel nor the decision not to replace the counsel
prevented the applicant from appointing, at any moment, a lawyer of his
own choosing to defend him in the Court of Appeal. In this respect, the
Commission notes that when the applicant requested the Court of Appeal
to replace his public defence counsel he indicated which lawyer he
wished to have as his representative. Thus, he could have appointed
that lawyer as his private counsel and did not have to await the
Supreme Court's decision whether to appoint that lawyer as a public
defence counsel. The Commission, therefore, does not find it contrary
to Article 6 (Art. 6) that the Court of Appeal did not postpone the
hearing, and, as the applicant had been served a summons according to
which his appeal might be dismissed if he did not appear at the
hearing, and as he did not appear, the dismissal of the appeal due to
the applicant's default was not in violation of Article 6 (Art. 6).
The Commission concludes that the examination of the applicant's
complaints does not disclose any appearance of a violation of 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