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AS TO THE ADMISSIBILITY OF

Application No. 28393/95

by Clarence BOHLIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 December 1994

by Clarence Bohlin against Sweden and registered on 31 August 1995

under file No. 28393/95;

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 1952, resides in

Stockholm. Before the Commission he is represented by

Mr. Karl Potapoff, a lawyer practising in Stockholm.

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

summarised as follows.

On 1 August 1989 a third person mistakenly deposited 46,000 SEK

on the post office account of a company of which the applicant was the

sole representative. On 26 October 1989 the applicant withdrew the

amount. He held the cash until the post office requested him, on

13 March 1990, to repay the money to the correct account, which he did

on 9 May 1990.

The applicant was later charged with fraudulent conversion

(olovligt förfogande) under Chapter 10, Section 4 of the Penal Code

(Brottsbalken), which provides the following:

(Translation)

"A person who ... takes measures with regard to property

which is in his possession but to which ownership or a lien

is reserved or secured or otherwise due to another person,

whereby the other person is deprived of the property or his

or her rights, shall be convicted of fraudulent conversion

and sentenced to a fine or imprisonment for a period not

exceeding two years."

In his defence, the applicant stated that he had received, within

a week of the deposit, a statement of account indicating that the above

amount had been deposited on the account. As he had at that time some

problems with the tax authorities, he did not want to have the money

on the account. He therefore withdrew the money and kept it in a drawer

at home. As he had not had in his possession the cash which the third

person had actually deposited on the company's account, he maintained

that his conduct was not criminal.

By judgment of 9 April 1991, the District Court (Tingsrätten) of

Stockholm found the applicant guilty of the charge against him and gave

him a suspended sentence. The judgment was upheld on appeal by the Svea

Court of Appeal (Svea hovrätt) on 27 February 1992.

The applicant appealed to the Supreme Court (Högsta domstolen).

He claimed that his conviction was based on an unlawful analogous

application of Chapter 10, Section 4 of the Penal Code. He maintained

that this provision required, inter alia, that property owned by one

person had been transferred to another person. The person who had

deposited the amount in question could not, however, claim ownership

to the specific banknotes and coins deposited on the post office

account. That person could only claim the deposited amount and this

claim had allegedly not been affected by the applicant's withdrawal.

On 12 July 1994 the Supreme Court upheld the Court of Appeal's

judgment, finding that the different criteria of Chapter 10, Section 4

of the Penal Code were at hand. In particular, the Supreme Court

considered that, following the withdrawal of the money in question, the

applicant had had in his possession property belonging to another

person. The Court further noted that the acts of this kind had long

been considered as fraudulent conversion. It referred to four Supreme

Court judgments from 1947, 1954, 1992 and 1993. In the two earlier

judgments, the accused had been convicted of fraudulent conversion. In

the later judgments, the conduct had been classified as fraud

(bedrägeri), a more serious offence, due to the particular

circumstances of those cases. The Supreme Court noted that the conduct

in question had never been exempted from punishment.

COMPLAINT

The applicant complains, under Article 7 of the Convention, that

his conviction was based on an unlawful analogous application of the

Penal Code.

THE LAW

The applicant claims that his conviction was based on an unlawful

analogous application of the Penal Code. He invokes Article 7 (Art. 7)

of the Convention, which reads as follows:

"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 that however clearly drafted a legal

provision may be, in any system of law, including criminal law, there

is an inevitable element of judicial interpretation. There will always

be a need for elucidation of doubtful points and for adaptation to

changing circumstances. Indeed, the progressive development of the

criminal law through judicial law-making is a well entrenched and

necessary part of legal tradition. Article 7 (Art. 7) of the Convention

cannot be read as outlawing the gradual clarification of the rules of

criminal liability through judicial interpretation from case to case,

provided that the resultant development is consistent with the essence

of the offence and could reasonably be foreseen (cf. Eur. Court H.R.,

S.W. v. the United Kingdom judgment of 22 November 1995, Series A no.

335-B, para. 36, and C.R. v. the United Kingdom judgment of 22 November

1995, Series A no. 335-C, para. 34).

In the present case, the applicant maintains that the person who

had deposited the amount in question on the post office account could

not claim ownership to the specific banknotes and coins. The

applicant's conduct was therefore not criminal under Chapter 10,

Section 4 of the Penal Code, as that provision required, inter alia,

that property owned by one person had been transferred to another

person.

However, although banknotes and coins are not distinguishable and

the person who had deposited the amount on the company's account,

therefore, could not claim ownership to the specific notes and coins

deposited, the Commission finds that the Supreme Court's conclusion

that the applicant, by withdrawing the money, had come into possession

of property belonging to another person was consistent with the essence

of the offence as defined by the relevant legal provision.

The Commission further notes that the Supreme Court's judgment

was in line with its long established case-law. It was thus

foreseeable, with appropriate legal advice, to the applicant that his

conduct constituted a criminal offence under Swedish law.

Consequently, the applicant's conviction was not incompatible

with Article 7 (Art. 7) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 7-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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BOHLIN v. SWEDEN

BOHLIN v. SWEDEN

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