THE FACTS

The facts of the case, as they have been submitted by the applicant,

may be summarised as follows:

1.   The applicant is a Swedish citizen, born in 1937 and resident in

Stockholm. He is represented before the Commission by Mr. E. (1)

----------------------------------

(1)  Mr. E. has stated that he does not have any formal legal

training, but that he has considerable experience of representing his

clients in criminal and civil matters. According to him, he has been

accepted as a legal representative by District Courts, Courts of Appeal

and the Supreme Court in Sweden. He has also published a book on

criminal procedure for laymen.

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2.   On .. December 1969, the Stockholm City Court (rådhusrätt)

convicted the applicant of driving while disqualified, gross usury and

fraud and sentenced him to one year's imprisonment. He was acquitted

of three further charges.

According to the indictment, the applicant was charged with gross usury

for having engaged in private money-lending in the course of which he

had, on at least 4,000 occasions, lent a total of about 2 million

Swedish Crowns to a large number of people against a rate of interest

varying between 140 and 480 per cent per annum. As security for the

loans and the interest on them, the borrowers had given post-dated

cheques and wage withdrawal slips.

In this connection, evidence was given by ten persons who had borrowed

money from the applicant. The Court found that all these persons had

been in a situation of distress and that the applicant had been aware

of this. The benefits obtained by the applicant were clearly

disproportionate to the services rendered. The Court did not consider

that there was sufficient evidence for convicting the applicant of

usury in all the above 4,000 cases referred to in the indictment.

Having particular regard to the fact that most of the loans amounted

to 500 Crowns or more, the Court assumed, however, that a substantial

proportion of these loans (apart from the ten above cases) had been

granted in such circumstances that the applicant was guilty of usury

also in these cases.

The Court convicted the applicant of fraud on the ground that he had

presented three cheques for payment although he knew that they were

uncovered. In this respect, the Court relied on the evidence by a Mrs.

C. that she had informed the applicant that there was no cover for the

cheques and a copy of a letter from her to this effect.

3.   The applicant appealed against his conviction for gross usury and

fraud but the City Court's judgment was confirmed by the Svea Court of

Appeal (Svea hovrätt) on .. October 1970. The applicant's application

for leave to appeal further was refused by the Supreme Court (Högsta

domstolen) on .. September 1971.

4.   On .. October 1971, Mr E. lodged a complaint with the

Parliamentary Commissioner (justitieombudsmannen) alleging that the

applicant's conviction was contrary to Swedish law and to the

Convention. He also complained that a memorandum drawn up by the

Secretariat of the Supreme Court (nedre justitierevisionen) referred

to a police report which had not been communicated to the applicant and

that this memorandum did not deal with the applicant's arguments that

the Court of Appeal had not been properly composed when hearing the

applicant's case.

On .. January 1972, the Parliamentary Commissioner decided to take no

action on the matter.

The applicant's complaints

As regards the composition of the City Court

5.   The applicant alleges a violation of Article 6 (1) of the

Convention in that the City Court was not an "independent and

impartial" court of law.

He submits that the court consisted of nine lay judges (nämndemän)

under the presidency of a legally trained judge. The applicant points

out that, under Swedish law, the lay judges decide on questions of law

and fact and that they can overrule the judge if they are unanimous.

The applicant refers to the nine lay judges who took part in his case.

He claims that all were actively engaged in politics and were paid-up

party members. One of them was a communist and two social-democrats and

thus, by the very reason of the programmes of the parties concerned,

negatively disposed to towards a private banker like the applicant. The

applicant contends that none of the lay judges was a business man or

otherwise versed in financial matters of the kind concerned. He also

emphasises that seven of the nine lay judges were women and alleges

that by reason of their occupation they could not be expected to be

versed in the business in which the applicant was engaged.

The applicant refers to the provisions of Chapter 4 Sections 6 and 13

of the Swedish Code of Procedure (Rättegångsbalken) concerning the

eligibility of lay judges and the conditions under which a judge shall

be disqualified from hearing a case.

In the applicant's submissions there is no basis in the letter of the

law for selecting lay judges only from active and paid-up party

members, in particular as the parties only represent a limited part of

the population. According to the applicant, Communist lay judges have

been excluded from trials of Russian spies.

6.   At the trial, the applicant did not challenge any of the lay

judges and he maintains that the reason for this was the fact that he

was assisted by counsel appointed by the Court who did not dare to make

such objection.

As regards the composition of the Court of Appeal

7.   The applicant complains that the Court of Appeal was not a

lawfully constituted, independent court of law and he alleges a

violation of Article 6 (1) of the Convention also in this respect.

The applicant points out that the Chamber of the Court of Appeal which

heard his case consisted of two justices of appeal (hovrättsråd) and

two assistant judges (hovrättsfiskaler) referred to by the applicant

as "Reporting Clerks". The applicant refers to the provisions of

Chapter 2, Sections 2 and 3 of the Code of Procedure and to the

submissions made by the Swedish Government in application No. 3788/68

(Collection of Decisions, Vol. 35, pp. 56, 66). In the applicant's

opinion the provisions of the Code do not allow an assistant judge to

sit as a judge in the Court of Appeal. The applicant maintains that it

follows from the Swedish Government's above submissions that an

assistant judge may from time to time be assigned to judge cases in a

District Court but he is then still under the supervision of permanent

judges. Moreover, he is not irremovable and can be dismissed from his

post without legal proceedings.

The applicant submits that, in his case, two civil servants - who could

be dismissed at any time - decided an appeal against a judgement which

had been given in a lower court by a more qualified judge. In the

applicant's view, such procedure must be unheard of in any other court

of appeal in countries which have ratified the Convention.

8.   The applicant states that he did not raise any objection in the

Court of Appeal on this account as he was unaware at the time of the

allegedly unlawful composition of the court. However, he did submit the

question to the Supreme Court through Mr. E. Subsequently, his ex

officio counsel withdrew this complaint without consulting the

applicant. When the applicant heard of this, he himself wrote a letter

in which he stated that he did not accept counsel's withdrawal. This

letter was received by the Court before the final decision was taken.

As regards the applicant's conviction for usury

9.   The applicant complains that he was convicted without proof of

having committed usury in respect of about 4,000 borrowers and he

alleges thereby a violation of Article 6 (2) of the Convention.

He states that the prosecution's charge concerned, on the one hand,

certain individual cases of usury and, on the other hand, at least

4,000 unspecified cases. He claims that there was accordingly no

definite accusation. The applicant makes it clear that his present

complaint does not concern the individual cases. However, he maintains

that, according to the provisions of Chapter 9, Section 5 of the

Criminal Code (brottsbalken), usury is "an individual crime".

The applicant states that he was convicted without the prosecution

having to produce any evidence that he was aware that the majority of

the 4,000 borrowers acted in distress, ignorance or foolishness, as

required by the Code or that he had any criminal intent. He claims that

the borrowers included public prosecutors and members of the Supreme

Administrative Court (regeringsrätten), detectives and journalists. In

this context, the applicant emphasises that all borrowers were obliged

to give their reasons for borrowing in writing in a way which excluded

usury. Moreover, he only applied the same rate of interest as the Bank

of Sweden did for day-to-day loans.

He maintains that he was the victim of a miscarriage of justice, the

only explanation for which is that the lower court was politically

constituted and therefore partial, while the appeal court was not

competent.

As regards the conviction for fraud

10.  The applicant alleges that he was convicted on insufficient

evidence also in this respect, and he alleges again a violation of

Article 6 (2) of the Convention.

The applicant submits that he lent a sum of money to Mrs. C. after she

had falsely told him that she was closely related to a wealthy

industrialist. Subsequent investigations revealed that she was a

notorious swindler. He claims that he was convicted on her

uncorroborated testimony. She swore no oath and did not dare to appear

before the Court of Appeal.

As regards the proceedings before the Supreme Court

11.  The applicant submits that the Supreme Court failed to take into

consideration that the Court of Appeal was not lawfully constituted and

to set aside the conviction in respect of the majority of the 4,000

borrowers.

12.  In the applicant's original submissions he also complained that

the above-mentioned memorandum which was drawn up by the Secretariat

of the Supreme Court to assist the Supreme Court judges who decided

whether or not the applicant should be granted leave to appeal,

included a report prepared by the Criminal Investigation Department

concerning the charge of usury. The applicant claimed that this report

was largely incorrect and that he was not aware what had happened until

after the Supreme Court had taken its decision.

The applicant maintained that the inclusion of the report was contrary

to the provisions of Chapter 35, Section 4 of the Code of Procedure

which prohibits (with certain exceptions) the admittance as proof of

written statements made with a view to pending or contemplated court

proceedings.

He claimed that, if he had been informed of the inclusion of the police

report, he would have produced counter-evidence showing that the report

and its conclusions were misleading and in parts actually untrue.

The applicant alleged thereby a violation of Articles (1) and (3) (d)

of the Convention.

13.  The applicant was examined by a group of three members of the

Commission on 2 June 1972. The group considered that there was not

sufficient information in the file as regards the complaint concerning

the alleged inclusion of the police report and instructed the

Commission's Secretary to request the applicant:

- to submit a copy of the police report concerned;

- to indicate exactly at what stage and by whom the report was filed

  with the Supreme Court;

- to state whether or not a copy of the report was sent to the

  applicant's court-appointed counsel;

- to indicate in what way the report was allegedly incorrect and to

  what extent the applicant maintains that the report brought in

  material which was not allegedly part of the file.

14.  In accordance with the instructions given by the group, the

Secretary wrote to the applicant's representative on 6 June requesting

the information concerned. The applicant's representative replied on

21 June 1972 enclosing a photocopy of the memorandum drawn up by the

Secretary of the Supreme Court. In this memorandum there was a

reference to a police report dated .. October 1969 in connection with

the usury charge. The report appeared to be reproduced in full and

covered two and a half pages of the twenty page memorandum. The

applicant pointed out that the memorandum was secret until the Supreme

Court had delivered its decision and that neither the applicant, his

ex officio counsel nor his present legal representative were aware of

the police report having been included in the memorandum. According to

the applicant the Supreme Court bases its decision entirely on the

memorandum and the material included therein.

The applicant maintained that it was not possible to "indicate

precisely" in what way the report was incorrect, as, in his opinion,

the inclusion of the police report itself was illegal. He referred

specifically to two statements in the report, namely that (a)  "Many

persons [in financial difficulties and tempted by the ease to get money

in this way] were thereby trapped in a vicious circle of borrowing and

could not get away" and (b)  that "the banks were caused losses by the

activity". The applicant claimed that there was not the slightest proof

for the first statement and that the second was completely untrue.

Moreover, the report also referred to newspaper articles "from which

it appeared" that the applicant was responsible. The applicant

considered that the inclusion of the statement under (b) in a secret

memorandum was sufficient evidence of Sweden having moved so far away

from the standards of Western law that further arguments are

unnecessary.

15.  In reply to a further letter from the Secretary, dated 26 June,

the applicant's legal representative confirmed in a letter of 2

September 1972 that the police report to which he had referred formed

part of the records of the preliminary examination

(förundersökningsprotokoll) which had been filed with the City Court

before the trial. He also pointed out that he had never denied that the

applicant or his counsel had been given copies of the records

concerned. The applicant emphasised that this material had never been

relied on as evidence during the previous proceedings. The subject

matter of his complaint was, however, that this material had been

included in the memorandum of the Secretary of the Supreme Court

although it did not form part of the evidence in the case. Such a

memorandum should, according to the applicant, only include material

which has been read out in court and in respect of which the parties

have been able to make observations. The mere fact that receipt of the

police report itself had been registered in the file was irrelevant.

THE LAW

1.   The applicant has complained that the courts based his conviction

an incorrect interpretation of Swedish law and on insufficient

evidence. However, in regard to the judicial decisions of which the

applicant complains, the Commission has frequently stated that, in

accordance with Article 19 (Art. 19) of the Convention, its only task

is to ensure the observance of the obligations undertaken by the

Parties in the Convention. In particular, the Commission is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any of the

rights and freedoms set forth in the Convention . In this respect, the

Commission refers to its constant jurisprudence (see eg decisions on

the admissibility of applications No. 458/59, Yearbook, Vol. 3, pp.

222, 232 and No. 1140/61, Collection of Decisions, Vol. 8, pp. 57, 62).

In the present case, the Commission finds that there is no appearance

of any such violation in connection with the decisions complained of.

An examination by the Commission of this complaint as it has been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention and especially in the Article invoked by the

applicant. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

2.   The Commission has next examined separately the applicant's

specific complaints concerning the proceedings before the City Court

and the Court of Appeal. In this connection, the applicant has alleged

that neither court constituted an independent and impartial tribunal

within the meaning of Article 6 (1) (Art. 6-1) of the Convention.

The Commission observes that the applicant has complained of both the

selection of lay judges in general and of the alleged lack of

competence of the nine particular lay judges who took part in his

trial.

Under Article 26 (Art. 26) of the Convention, the Commission may only

deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case, the applicant had the right to challenge, at his

trial, any of the individual lay judges whom he considered to be biased

but he did not make use of this possibility. On the other hand, it

appears that the system, as such, of electing lay judges could not have

been challenged and it is not clear whether the applicant could

successfully have challenged any individual lay judge on the grounds

stated in this application. The question therefore arises whether the

applicant has satisfied the obligation to exhaust the domestic

remedies. However, the Commission does not consider it necessary to

determine this question in the present case since, even assuming that

the applicant had exhausted all domestic remedies, an examination of

this part of the application does not, in any event, disclose a

violation of the Convention.

In this connection, the Commission observes that it is evident from the

relevant provisions of the Swedish Code of Procedure that lay judges

are independent of the executive and also of the parties in a case

before the court. Moreover, the law provides that a particular lay

judge (as all other judges) is disqualified from taking part in a case

in certain situations and can be challenged on grounds of bias. There

are therefore sufficient safeguards to ensure that lay judges are

impartial and the applicant has shown no reason to suggest that they

were not impartial in his case.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

3.   The Commission finds that the same ground of inadmissibility

applies to the applicant's complaint concerning the composition of the

chamber of the Court of Appeal which heard his appeal. In this

connection, the Commission first observes that the applicant has only

alleged that the Court of Appeal was not an "independent and impartial

tribunal" by reason of the participation of two assistant judges. He

has made no allegation that the conduct of those two judges in the

proceedings concerned was not impartial or otherwise showed in any way

that he had not received a "fair hearing" within the meaning of Article

6 (1) (Art. 6-1).

The Commission does not find that the applicant has shown, as he has

suggested, that the Swedish Code of Procedure does not allow the

participation of assistant judges (see Chapter 4, Section 7 of the Code

and the Royal Ordinance concerning the Organisation of the Court of

Appeal of 19 December 1947 as later amended).

It is true that assistant judges do not benefit from the protection

given to holders of permanent judgeships by Section 36 of the Swedish

Constitution. However, the Commission is satisfied that assistant

judges belong to the judicial profession and when given assignments as

a judge either in a District Court or in the Court of Appeal, act in

full independence. In exceptional cases they may, like ordinary civil

servants, be dismissed from their employment by decision of the Court

of Appeal but an appeal then lies to the Supreme Administrative Court

(regeringsrätten). In this connection, the Commission refers to the

submissions of the respondent Government in application No. 3788/68

(Collection of Decisions, Vol. 35, pp. 56-66) to which an applicant has

referred himself. Moreover, the Commission notes that the applicant

again has not suggested any valid ground which would show that the two

assistant judges concerned were not impartial in his case. The

Commission finds that it is equally clear that there was no violation

of Article 6 (1) (Art. 6-1) of the Convention in this respect.

4.   Finally, the applicant has complained that the inclusion, without

his knowledge, in the file of a certain police report violated Article

6 (1) and 3 (d) (Art. 6-1, 6-3-d) of the Convention. From the

applicant's submissions it appears that the report in question formed

part of the records of the preliminary investigation which were filed

with the trial court before the trial and of which the applicant or his

counsel then received a copy as required under Swedish law. No

reference to this report appears to have been made during the

proceedings before the City Court and the Court of Appeal. However, the

report was reproduced in the memorandum prepared by the Secretary of

the Supreme Court in connection with the applicant's request for leave

to appeal to that Court. This memorandum contains a summary of the

records of the file and apparently serves as an aide-mémoire for the

official who presents the case to the bench of three judges who sit in

camera to consider whether or not leave should be granted. In this case

the applicant was refused such leave and his conviction and sentence

became final.

The question first arises whether the proceedings before the Supreme

Court involved a determination of a "criminal charge" against the

applicant within the meaning of Article 6 (1) (Art. 6-1) of the

Convention having regard to the fact that the applicant was refused

leave to appeal.

However, the Commission does again not find it necessary to determine

this question as this part of the application, in any event, appears

to be inadmissible even if it were assumed that the provisions of

Article 6 (Art. 6) were applicable in the present case to the

proceedings on the application for leave to appeal.

On this assumption, the Commission has considered whether the inclusion

of the report can be said to have infringed the applicant's right to

a fair hearing under Article 6 (1) (Art. 6-1) and, in particular, the

principle of "equality of arms". In this connection, the Commission

notes that the police report had been part of the file throughout the

proceedings and that the applicant's counsel had received a copy

thereof. The report simply outlined the conduct of the police

investigations and the facts as they had been established by the

police. It is true, as the applicant has pointed out, that the report

could apparently not have been admitted as evidence in the trial court

or in the Court of Appeal and that, accordingly, neither court could

have based its judgment on the contents (see Chapter 35, Section 14 of

the Code of Procedure). However, the Commission is satisfied that under

Swedish law the lower courts were free to consult the report and the

other records of the preliminary investigations for the purpose of

preparing the hearings in these courts. The memorandum of the Secretary

of the Supreme Court clearly indicates that the report, which was

reproduced there, formed part of the preliminary investigations.

Generally speaking, the contents of the report seem to have been

invoked either by the applicant's own statements at the hearings or by

the extensive written or oral evidence taken at these hearings.

The Commission finds that there is no reason to believe that the judges

of the Supreme Court were in fact influenced by the police report when

reaching their decision. It would appear, in the present state of the

file and without having heard any submissions of the respondent

Government on this point, that the inclusion of the report in the

memorandum was not strictly necessary and might give rise to certain

doubts as to the desirability of such a course. It seem clear, however,

that this cannot lead to the conclusion that, in all circumstances of

the case and taking the proceedings before the Supreme Court as a

whole, the applicant did not have a fair hearing before that court.

It follows that the application is also in this respect manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

5.   The Commission finds that the complaint is equally manifestly

ill-founded when examined under Article 6 (3) (d) (Art. 6-3-d) of the

Convention. In fact, there is no reason to believe that the police

report was used as evidence against the applicant.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE