AS TO THE ADMISSIBILITY OF
Application No. 13167/87
by Bengt WIKSTRÖM
against Sweden
The European Commission of Human Rights sitting in private
on 14 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy Secretary to the Commission
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 April 1987
by Bengt WIKSTRÖM against Sweden and registered on 24 August under
file No. 13167/87;
Having regard to the report provided for in Rule 40 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 1942. He is a
mechanic by profession and resides at Helsingborg, Sweden.
On 8 January 1981 the applicant arrived by ferry to
Helsingborg. His car was taken out for inspection at the customs
control and four bottles containing 1.85 litres of alcoholic beverages
were found. The applicant was subsequently charged with a violation
of the Smuggling Act (varusmugglingslagen) and his case was heard in
the District Court (tingsrätt) of Helsingborg which pronounced
judgment in the case on 20 May 1981. The applicant was found guilty of
the charge brought against him and sentenced to pay a fine.
The applicant appealed against this decision to the Court of
Appeal of Skåne and Blekinge (hovrätten över Skåne och Blekinge) which
upheld the judgment on 9 September 1981. The applicant's application
for leave to appeal to the Supreme Court (högsta domstolen) was
rejected by the Court on 11 February 1982.
The applicant subsequently applied for a re-opening of his case
but his request was rejected by the Supreme Court on 2 December 1982.
On 23 September 1984 the applicant submitted a new request to
the Supreme Court in order to have his case re-opened. He maintained
that he had been convicted of smuggling contrary to domestic
legislation in that the act he had committed did not constitute a
criminal offence. His request to the Supreme Court was supported by
the Prosecutor General (riksåklagaren).
Nevertheless his request was rejected by the Supreme Court in
March 1987.
COMPLAINTS
The applicant invokes Article 7 of the Convention. He
maintains that he has been held guilty of a criminal offence on
account of an act which did not constitute a criminal offence under
national law at the time when it was committed.
THE LAW
The applicant maintains that he has been convicted of a
criminal offence contrary to Article 7 (Art. 7) of the Convention which reads:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of
any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognised by civilised nations."
The Commission recalls, however, that, under Article 26 (Art. 26) of
the Convention, it may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.
In the present case the judgment, in which the criminal charge against
the applicant was determined, was pronounced by the Court of Appeal on 9
September 1981 and his request for leave to appeal against this judgment was
rejected by the Supreme Court on 11 February 1982. Subsequently the applicant
requested the re-opening of the proceedings but his requests were rejected by
the Supreme Court on 2 December 1982 and in March 1987 respectively.
The application to the Commission was introduced on 23 April 1987, i.e.
about a month after the Supreme Court had rejected his last request to have his
case re-opened but more than six months from the date of any other court
decisions taken in the present case.
It follows that the Commission can only deal with the applicant's
complaint if his petition for a re-opening can be considered a remedy within
the meaning of Article 26 (Art. 26) of the Convention, in which case the six
month period provided for in that Article should be calculated from the date of
the last decision of the Supreme Court in this respect.
The Commission recalls that it has the competence in every case to
appreciate in the light of the particular facts whether a remedy appears to
offer the possibility of effective and sufficient redress within the meaning of
the general recognised rules of international law in regard to the exhaustion
of domestic remedies and, if not, to exclude it from consideration in applying
the six month time-limit (cf. for example No. 12858/87, Dec. 3.5.88, to be
published in D.R.).
The Commission refers, however, to its extensive jurisprudence
according to which an application for re-trial or similar extraordinary
remedies cannot, as a general rule, be taken into account in the application of
Article 26 (Art. 26) of the Convention (cf. No. 10326/83, Dec. 6.10.83, D.R. 35
p. 218 with further references).
The Commission has not found any special circumstances in the present
case which would permit a different conclusion from its extensive jurisprudence
on the question of re-trials or similar extraordinary remedies. Consequently
the applicant's petitions for retrial did not constitute domestic remedies
under the generally recognised rules of international law and the rejection of
the applicant's request for re-opening by the Supreme Court in March 1987
cannot be taken into consideration in determining the final decision for the
purpose of applying the six month time-limit laid down in Article 26 (Art. 26).
Accordingly the present application, submitted to the Commission on 23
April 1987, has been introduced out of time. Furthermore, an examination of
the case does not disclose the existence of any other special circumstances
which might have interrupted or suspended the running of the six month period.
It follows that the application must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)