Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33545/96

by Marko SANDELIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

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 23 September 1996

by Marko Sandelin against Sweden and registered on 28 October 1996

under file No. 33545/96;

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 Finnish citizen born in 1963, is a construction

worker. He resides in Stjärnhov, Sweden. Before the Commission he is

represented by Ms Kerstin Koorti, a lawyer practising in Stockholm.

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

be summarised as follows.

a. The particular circumstances of the case

On 19 April 1995 the public prosecutor charged the applicant with

an aggravated form of handling stolen goods (grovt häleri) under

Chapter 9, Section 6, subsections 1:3 and 3 of the Penal Code

(Brottsbalken). According to the bill of indictment, on 6 April 1993

unknown persons had induced the postal giro service in Stockholm, by

means of falsified forms, to transfer 783,600 Swedish crowns (SEK) from

one account to the account of the applicant's company. Allegedly

realising that the amount had been acquired by fraudulent means, the

applicant had furthered the offence by allowing his company's giro

account to be used in the transaction and by assisting in the

withdrawal of 750,000 SEK from the account on 7 April 1993. The postal

giro service, joining the proceedings as a civil party, claimed damages

in the latter amount.

By judgment of 30 October 1995, the District Court (tingsrätten)

of Stockholm considered that it could not be excluded that the

applicant had acted without knowing that the amount in question had

been illegally acquired. Still, the court found it clear that the

applicant had had good reasons to presume that the amount had been so

acquired and that his actions had unduly aided others in taking

possession thereof. Thus, he was considered guilty of the minor form

of handling stolen goods (häleriförseelse) under Chapter 9, Section 7

of the Penal Code. However, as this offence was time-barred, the

criminal charges were dismissed and no sentence was imposed on the

applicant. Nevertheless, as his civil liability was not time-barred,

the applicant was ordered to pay damages in the amount claimed by the

postal giro service.

The applicant appealed to the Svea Court of Appeal (Svea

hovrätt). He claimed that he was not liable to pay damages to the

postal giro service, as he had not had good reasons to presume that the

amount transferred to his account had been illegally acquired. The

public prosecutor did not appeal against the District Court's decision

to dismiss the criminal charges and, consequently, was not a party to

the appeal proceedings.

On 19 April 1996, following an oral hearing, the Court of Appeal

upheld the District Court's judgment.

The applicant made a further appeal to the Supreme Court (Högsta

domstolen). In addition to what he had stated before the Court of

Appeal, he maintained, inter alia, that the District Court's finding

that he was liable to pay damages was based on an offence with which

he had not been charged.

On 24 May 1996 the Supreme Court refused the applicant leave to

appeal.b. Relevant domestic law

The relevant parts of Chapter 9 of the Penal Code provide the

following:

(Translation)

Section 6, subsection 1:

"A person who

...

3. unduly furthers the possibility for somebody else to

take possession of property which has been illegally

acquired or of the value of such property,

...

shall be sentenced for handling stolen goods [häleri] to

prison for a period not exceeding two years."

Section 6, subsection 3:

"If the offence under subsections 1 or 2 is aggravated, the

sentence shall be imprisonment for a period not less than

six months and not exceeding six years."

Section 7:

"If the offence under Section 6 is considered to be a minor

form of handling stolen goods [häleriförseelse], the

sentence shall be imprisonment for a period not exceeding

six months.

A person shall be sentenced for this minor offence also

if,

...

2. in cases referred to under Section 6 subsection 1, he

did not realise but had good reasons to presume that a

criminal offence had been committed.

..."

COMPLAINTS

The applicant complains that, as he was found guilty of an

offence with which he had not been charged, he did not have a fair

trial by an impartial tribunal. He invokes Article 6 para. 1 of the

Convention.

THE LAW

The applicant complains that, as the public prosecutor had

charged him with only the aggravated form of handling stolen goods, the

District Court's finding of guilt and the resulting liability to pay

damages was based on an offence - the minor form of handling stolen

goods - with which he had not been charged. As the aggravated offence

implies intent whereas the minor offence presupposes negligence, the

applicant alleges that he was not able to defend himself against the

offence of which he was found guilty. For this reason, he did not have

a fair trial by an impartial tribunal, as required by Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission considers that not only Article 6 para. 1

(Art. 6-1) but also Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b)

are of relevance to the applicant's complaint. In relevant parts,

these provisions read as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair ... hearing ... by ... an impartial

tribunal ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence"

The Commission recalls its case-law according to which an accused

person has the right to be informed not only of the "cause" of the

accusation, that is, not only of the acts with which he or she is

charged and on which the indictment is based, but also of the "nature"

of the accusation, namely the legal classification of the acts in

question (cf., e.g., Nos. 24571/94 and 24572/94, Dec. 28.6.95, D.R. 82,

p. 85).

As regards the circumstances of the present case, the Commission

notes that the offence with which the applicant was charged was

reclassified by the District Court. Instead of the aggravated form of

handling stolen goods under Chapter 9, Section 6 of the Penal Code,

invoked by the public prosecutor, the applicant's conduct was found to

constitute the minor form of handling stolen goods, as laid down in a

different provision, Chapter 9, Section 7 of that Code. A conviction

for the aggravated form requires intent on the part of the perpetrator.

The minor form applies inter alia to cases like the present one where

intent cannot be demonstrated but where the person in question is

considered to have been negligent.

The Commission further notes that the applicant was not informed,

during the first instance proceedings, of the reclassification of the

offence in question. However, leaving aside the question whether the

element of negligence could be said to be an intrinsic part of the

original charge brought by the public prosecutor, the Commission

recalls that the applicant was acquitted by judgment of the District

Court of 30 October 1995 due to a time-bar. The prosecutor did not

appeal against the District Court's judgment and, consequently, the

acquittal became final.

The applicant appealed against the District Court's judgment in

so far as it concerned the question of damages. The Commission notes

that the appeal proceedings did not determine a criminal charge but

only the applicant's civil liability to pay damages. Consequently,

Article 6 para. 3 (Art. 6-3) of the Convention did not apply to those

proceedings, which are to be examined under Article 6 para. 1

(Art. 6-1) alone.

The liability to pay damages was based on the District Court's

finding that the applicant was guilty of the minor form of handling

stolen goods, as he had been negligent in allowing his company's giro

account to be used and in assisting in the withdrawal of the amount in

question from that account. At the time of the appeal, it was clear

to the applicant that this was the main issue in the case. Thus, in

his appeal petition and during the hearing in the Court of Appeal, the

applicant was able - and in fact did - present his arguments in this

respect.

Moreover, the Court of Appeal examined the applicant's arguments

and could have reversed, if it had agreed with his contentions, the

District Court's finding that he was guilty of negligent conduct. As

a consequence, his liability to pay damages would have been eliminated.

In these circumstances, the Commission considers that the applicant had

a fair hearing in the appeal proceedings.

Thus, having regard to the entirety of the proceedings, the

Commission finds that the application fails to disclose any appearance

of a violation of the applicant's rights under 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.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SANDELIN v. SWEDEN

SANDELIN v. SWEDEN

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