Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22587/93

by Christer ÖRJESTAM

against Sweden

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, 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 27 May 1993 by

Christer Örjestam against Sweden and registered on 7 September 1993

under file No. 22587/93;

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 is a Swedish citizen, born in 1957.

The facts of the case, as submitted by the applicant or apparent

from the documents submitted, may be summarised as follows.

In 1983, 1988 and 1989 the applicant was convicted of various

offences and sentenced to imprisonment. His ordinary prison sentence

expires in 2001. From 4 to 18 January 1993 he took part in a prison

strike. On 11 January 1993 the prison imposed a disciplinary punishment

on him which had the effect that three of his prison days would not be

considered as forming part of his sentence. The punishment thus had the

effect of prolonging the overall length of his prison term by three

days.

The applicant's sentence had previously been de facto prolonged

by nineteen days by virtue of other disciplinary punishments.

By a note dated 29 January 1993 the prison, on 1 February 1993,

notified the applicant of its decision of 11 January 1993. The note did

not state why the disciplinary punishment had been imposed. According

to the note, the applicant would have served two thirds of his prison

term on 12 October 1995. This term was considered to include, inter

alia, the three-day prolongation imposed on 11 January 1993.

On 1 February 1993 the National Prisons and Parole Board

(Kriminalvårdsstyrelsen) upheld the applicant's disciplinary punishment

on his appeal.

The applicant's further appeal was rejected by the Administrative

Court (kammarrätten) of Jönköping on 19 February 1993. The Court

provided no further reasoning but simply upheld the National Prisons

and Parole Board's decision.

Leave to appeal was refused by the Supreme Administrative Court

(Regeringsrätten) on 27 April 1993.

According to the Penal Code (Brottsbalken), a prisoner serving

a prison sentence with a fixed term shall normally be released on

parole after having served half thereof. If a sentence imposed for a

particularly serious offence amounts to at least two years'

imprisonment and provided there is a significant risk that the prisoner

may resort to similar criminal behaviour upon his release on parole,

such a release may only be ordered once two thirds of the sentence has

been served (chapter 26, sections 6, 6a and 7).

COMPLAINT

The applicant complains that he has been unfairly treated, since

his prison sentence has been prolonged by a body which does not fulfil

the requirements of a "court". He invokes no particular Convention

provision.

THE LAW

The applicant complains that he has been unfairly treated, since

his prison sentence has been prolonged by a body which does not fulfil

the requirements of a "court".

1. The Commission observes that the applicant's ordinary prison

sentence expires in 2001. Assuming that he can already now claim to be

a "victim" under Article 25 (Art. 25) of the Convention as regards the

alleged prolongation of that sentence, the Commission has first

examined his application in the light of Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention. This provision reads as follows:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

a. the lawful detention of a person after conviction by a

competent court; ..."

The Commission observes that the applicant's ordinary prison

sentence is based on his convictions by regular courts. Neither his

convictions nor the competence of those courts has been challenged by

him. The Commission furthermore notes that on 12 October 1995 the

applicant had served two thirds of his sentence, to which his

disciplinary punishments had been added, and appears to have been

released on parole. In these circumstances the Commission considers

that the disciplinary punishment imposed on account of his

participation in the prison strike is comparable to a loss of

remission. It recalls that a prisoner is deprived of his liberty for

the whole of his prison sentence and that any remission thereof is a

mere privilege. It has therefore not been shown that the disciplinary

punishment imposed on the applicant has resulted in any further

deprivation of his liberty (cf., mutatis mutandis, No. 6224/73,

Dec. 6.12.76, D.R. 7, pp. 55, 63). Accordingly, there is no appearance

of any violation of Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention.

It follows that this complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The Commission has next examined the application in the light of

Article 6 para. 1 (Art. 6-1) of the Convention which, in so far it is

relevant, reads as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by [a] tribunal ..."

In order to determine whether Article 6 para. 1 (Art. 6-1) is

applicable under its "criminal" head, the Commission will have regard

to the three alternative criteria lied down in the Court's case-law,

namely the legal classification of the offence under domestic law, the

nature of the offence as well as the nature and degree of severity of

the penalty (e.g., Eur. Court H.R., Campbell and Fell judgment of

28 June 1984, Series A no. 80, pp. 34 et seq., paras. 67 et seq.).

In the first-mentioned respect the Commission finds no indication

that the applicant's offence against the prison order was governed by

Swedish criminal law. It furthermore finds that the offence was

disciplinary in nature, given that it involved the violation of rules

governing the operation of the prison. Finally, the penalty imposed was

not of such nature and severity that the matter would thereby have been

brought within the "criminal" sphere. Accordingly, Article 6 para. 1

of the Convention does not apply in the instant case.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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ÖRJESTAM v. SWEDEN

ÖRJESTAM v. SWEDEN

LEXI