Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37553/97

by Christer OLSSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

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 11 August 1997 by

Christer OLSSON against Sweden and registered on 29 August 1997 under

file No. 37553/97;

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 1966, resides in

Stockholm. Before the Commission he is represented by Mr Bengt H.

Nilsson, a lawyer practising in Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

By judgment of the District Court (tingsrätten) of Stockholm of

30 May 1996, the applicant was convicted together with several

co-accused. He was sentenced to four years' imprisonment for several

fraudulent crimes, false accounting and a drug offence. He appealed

against the judgment to the Svea Court of Appeal (Svea hovrätt).

In late November 1996 the applicant contacted his lawyer to

inquire about the state of the appeal proceedings as he planned to make

a journey to Mexico to spend the Christmas holidays with his wife's

relatives. He was told that the appellate court had not yet contacted

the lawyer and that, consequently, nothing seemed to prevent him from

travelling to Mexico.

On 5 December 1996 the judge rapporteur at the Court of Appeal

informed the applicant's lawyer that the court's hearing in the case

was planned to start in mid-January 1997. The lawyer passed on the

information to the applicant who had already left for Mexico. As a

consequence, the applicant rescheduled his return flight to Sweden from

mid-January to 4 January.

On 23 December 1996 the applicant was summoned to appear in

person at the appellate hearing, scheduled for 17, 22, 24, 27, 29 and

31 January and 3, 5, 11, 14, 17, 18, 20 and 21 February 1997.

The applicant fell ill with blood-poisoning on 2 January 1997 and

spent two days in hospital. When discharged, he was prescribed

antibiotics and complete rest. Later, he got pharyngitis and

bronchitis which required further medical treatment. On 15 January,

still suffering from throat pains and fatigue, the applicant was

recommended another week's rest by his doctor, Dr. Flores Montes,

Guadalajara. In a medical certificate issued that day, the doctor

stated also that the applicant was unable to travel for another seven

or eight days.

On 17 January 1997 the applicant failed to appear on the first

day of the Court of Appeal hearing. His lawyer invoked Dr. Flores

Montes' statement and stated that the applicant might be able to appear

on 24 January. The hearing continued in the applicant's absence.

On 22 and 24 January 1997 the applicant again failed to appear

before the appellate court. On the latter date his lawyer submitted

a further medical certificate, issued on 20 January by Dr. Flores

Montes, who stated that the applicant, on 16 January, had contracted

a serious infection of the stomach and the intestines which had

required hospitalisation for one day. Discharged on 17 January, the

applicant had fainted and received a skull injury which had been

sutured at the hospital. On account of the applicant's injuries and

illnesses, Dr. Flores Montes found it inadvisable that the applicant

travelled during the following week. A further examination on

27 January would show whether the applicant was fit to travel

thereafter. At the close of the hearing on 27 January 1997 the

chairman of the Court of Appeal informed the applicant's lawyer that,

during the hearing on 29 January, the court would decide whether the

applicant had had a lawful excuse (laga förfall) for his non-appearance

at the hearings. The chairman stated further that the court assumed

that the applicant had submitted all the evidence he wished to invoke

on this question. The lawyer replied that he would expound the

applicant's position in this regard on the latter date.

On 29 January 1997, the applicant again being absent from the

hearing, his lawyer stated that the applicant had informed him the

previous evening that he was in hospital and that he would do

everything in his power to return to Sweden but would not be able to

appear at the hearing on 29 January. The lawyer had urged the

applicant to submit another medical certificate. Such a certificate

could not be expected before 17.00 hours on the day of the hearing,

however. Consequently, the lawyer asked the appellate court to

postpone its decision on the question of lawful excuse.

By decision of 29 January 1997, the Court of Appeal refused to

further postpone its decision. Noting that the applicant had been

given the opportunity to submit evidence until 29 January, the court

considered that the evidence submitted did not show that the applicant

had been lawfully excused from appearing at the hearings. Furthermore,

finding that the part of the case which concerned the applicant could

not be determined in his absence, the court declared his appeal

forfeited in accordance with Chapter 51, Section 21 of the Code of

Judicial Procedure (Rättegångsbalken). The court stated, however, that

the case could be reopened under Chapter 51, Section 22, if the

applicant would show that there had been a lawful excuse of which he

had not been able to give notice in time. A petition to that effect

should be filed with the court no later than 19 February 1997.

After consulting his doctor on 11 February 1997, the applicant

travelled to Sweden where he arrived on 14 February. On 19 February

the applicant requested the Court of Appeal to reopen the case against

him. It appears that he submitted two further medical certificates

from Dr. Flores Montes, dated 28 January and 8 February. In the

earlier certificate, the doctor stated that, in his opinion, the

applicant should not travel for at least seven days. The latter

certificate contained a summary of the applicant's difficulties, as

accounted for above, and the following conclusion:

(Translation)

"So far [the applicant] has recovered well. He needs to

rest and follow a suitable diet. He is being checked up at

weekly examinations on account of the many pathological

conditions he had during a relatively short time. All this

has also prevented [the applicant] from travelling. He is

now on the road to recovery and, for this reason, I am of

the opinion that he will be able to travel next week,

possibly on the 10th or 11th of this month. This is a

decision that must be considered by [the applicant]

himself."

The applicant requested an extension of the time-limit until

15 March 1997 to enable him to make further submissions. On 20

February 1997 the Court of Appeal decided as follows:

(Translation)

"A reopening of the case concerning [the applicant]

requires that he can show that there has been a lawful

excuse for his non-appearance at the hearing of which he

has not been able to give notice in time. The Court of

Appeal, which finds no reason to grant the extension

requested, rejects [the applicant's] petition for the case

to be reopened."

The applicant appealed to the Supreme Court (Högsta domstolen)

which, by decision of 5 June 1997, refused him leave to appeal.

COMPLAINTS

The applicant contends that he did not have a fair hearing under

Article 6 of the Convention. He claims that there was a lawful excuse

for his non-appearance at the Court of Appeal's hearings.

THE LAW

The applicant contends that he did not have a fair hearing under

Article 6 (Art. 6) of the Convention which, in so far as relevant,

provides the following:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair ... hearing

... by [a] ... tribunal ..."

The Commission recalls that the applicant's appeal against the

District Court's judgment was not examined on the merits, as the Court

of Appeal first declared the appeal forfeited and later refused to

reopen the case. Thus, it has to be examined whether the decisions of

the appellate court denied the applicant his right to a fair hearing

under Article 6 (Art. 6) of the Convention. Furthermore, the question

arises whether the applicant was refused a "review by a higher

tribunal" in violation of Article 2 of Protocol No. 7 (P7-2) to the

Convention. The latter provision reads as follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence

reviewed by a higher tribunal. The exercise of this right,

including the grounds on which it may be exercised, shall

be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in

cases in which the person concerned was tried in the first

instance by the highest tribunal or was convicted following

an appeal against acquittal."

The Commission notes that the reference to the exercise of the

right of review to be governed by law gives the Contracting States a

discretion as to the modalities for the exercise. The States may thus

regulate the review in various ways provided that such regulation is

for the good administration of justice. In this respect, they enjoy

a margin of appreciation. However, the means employed must not

restrict or reduce the right of review in such a way or to such an

extent that the very essence of the right is impaired.

In the present case, the applicant could appeal to the Court of

Appeal and in fact did so. The court subsequently summoned him to the

hearings in the case. By the decisions of 29 January and 20 February

1997, however, the court refused to examine his appeal on the merits,

as he had failed to appear at the hearings. The court did not find the

medical certificates submitted by the applicant to show that he had

been unable to appear before the court and thus had had a lawful excuse

for his non-appearance. Before taking these decisions, the court had

given the applicant the opportunity to submit the evidence he wished

to invoke on this question. Furthermore, the applicant's lawyer was

present at the hearing on 29 January and pleaded for the applicant.

The court's decisions were based on the relevant provisions of the Code

of Judicial Procedure.

The Commission finds that the Court of Appeal's decisions had a

basis in domestic law and that the provisions applied served the good

administration of justice in that they clearly aimed at securing the

parties' presence in court and the prompt and thorough examination of

the case. Furthermore, the appellate court reached its decisions after

an evaluation of the medical evidence invoked and the submissions made

by the applicant's lawyer. In this respect, it is recalled that the

evaluation of evidence is primarily a matter for the national courts.

The Commission's task is to ascertain that this evaluation was not

arbitrary or unreasonable and, thus, that the courts acted within their

margin of appreciation. Notwithstanding the serious consequences for

the applicant in the present case, the Commission cannot find that the

Court of Appeal's evaluation was arbitrary or that the decisions taken

were unreasonable.

Thus concluding that the Court of Appeal, in declaring the

applicant's appeal forfeited, did not exceed its margin of

appreciation, the Commission finds that the applicant's complaint does

not disclose any appearance of a violation of Article 6 (Art. 6) of the

Convention or Article 2 of Protocol No. 7 (P7-2) 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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OLSSON v. SWEDEN

OLSSON v. SWEDEN

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