Lexploria

SUR LA RECEVABILITÉ

Application No. 23222/94

by Mahmoud ISKANDARANI

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 7 September 1995, 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 5 December 1993

by Mahmoud Iskandarani against Sweden and registered on 10 January 1994

under file No. 23222/94;

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

summarised as follows.

The applicant is a Swedish citizen, born in 1968 in Lebanon. He

is unemployed and resides at Malmö. Before the Commission the applicant

is represented by Mr. Bertil Leander, a lawyer practising at Malmö.

The applicant married a Swedish citizen, M, on 26 March 1989. On

30 September the same year their daughter, A, was born. Shortly

afterwards the applicant and M separated. Mother and child settled in

Nordmaling in the northern part of Sweden whereas the applicant

remained in Malmö with the result that his possibilities of seeing A

were limited. By judgment of 3 April 1992 the spouses divorced and an

interim decision of 6 September 1991 granting custody of A to her

mother was confirmed. No appeal was lodged against this judgment.

In the meantime, in the summer of 1991, the applicant planned the

abduction of A. With the assistance of a friend the plan was carried

out on 5 August 1991.

Whereas the abduction was first believed to be a kidnapping by

strangers the investigations soon concentrated on the applicant who was

arrested on 9 August 1991 and detained on remand. By indictment of

26 August 1991 he was charged with child abduction contrary to

Chapter 7 section 4 of the Penal Code. The applicant confessed and by

judgment of 3 September 1991 the Umeå District Court (tingsrätt) found

him guilty of the charge brought against him and sentenced him to one

year and six months' imprisonment. The applicant did not appeal against

the judgment which accordingly became final.

In December 1991 the police commenced a new investigation into

the whereabouts of A. The applicant was interrogated on

17 December 1991 and 7 May 1992. On 9 May 1992, the day on which he was

to be released on probation, the applicant was arrested and detained

on remand again, now charged with refusing, as from 7 September 1991,

to inform the mother and the Swedish authorities of A's whereabouts in

violation of Chapter 7 section 4 subsections 1 and 3 of the Penal Code.

During further interrogations on 11, 12 and 18 May 1991 the applicant

admitted that A was now in Tunisia but he refused to disclose where or

who now cared for her.

By judgment of 27 May 1992 the Malmö District Court found the

applicant guilty of the charge brought against him. The judgment reads

inter alia as follows:

(translation)

"(The applicant) has stated as follows. (A) is now in

Tunisia. (He) knows who actually takes care of her. During

his imprisonment he has talked to this person twice. (The

applicant) has his telephone number. The only way in which

(A) may be returned to her mother is that (the applicant)

fetches (her) from Tunisia. (The applicant) has no

objection to (M) accompanying him to Tunisia. They have

discussed this possibility. (The applicant) must, however,

be there. Otherwise there is a risk that the person in

question out of fear of arrest will disappear with (A). In

order to protect the person in Tunisia (the

applicant) will not disclose his name or

telephone number. Different arrangements for

(A's) return have been discussed. If (the

applicant) cannot go to Tunisia there is,

however, no solution.

The Court's considerations:

Since (the applicant) refuses to give information

concerning the person who actually takes care of (A) at

present, he still withholds her from (M). His actions are

to be considered as a new offence as maintained by the

prosecution ... ."

The applicant was sentenced to one year and three months'

imprisonment.

On 29 July 1992 the Court of Appeal (hovrätten) for Skåne and

Blekinge upheld the judgment.

Having granted leave to appeal the Supreme Court (Högsta

domstolen) pronounced judgment in the case on 28 September 1992. The

Court stated inter alia as follows:

(translation)

"In the Umeå District Court's final judgment of

3 September 1991 (the applicant) was found guilty of having

abducted, on 5 April 1991, his daughter (A) who was then

under his and (M's) joint custody. In this case the

question arises whether (the applicant) has again committed

an offence of illegal and arbitrary removal or concealment

of a child from its rightful custodian (egenmäktighet med

barn) by failing to take action in order to return (A).

Arbitrary removal of a child from its custodian within the

meaning of the provision concerning the illegal and

arbitrary removal or concealment of children may occur not

only by abducting the child but also by withholding the

child. It should be possible to impose punishment for such

withholding even in respect of the person who was

previously convicted of child abduction.

In particular this is relevant when the child has been

removed from Sweden or is kept at an unknown place. First

of all this relates to situations where measures have been

taken subsequent to the previous judgment in order to

conceal the child from the custodian. However, if somebody

who illegally abducts a child simply fails to return it to

its custodian this does not necessarily mean that he

conceals the child. For example he may be without a

practical possibility of changing the situation. He may

also escape punishment if he has done his best in order to

return the child but this nevertheless turns out to be

insufficient.

(The applicant's) assistance has been necessary for the

return of the child. It is true that he has been deprived

of his liberty during the period of time to which the

indictment refers. Nevertheless, during this period he has

refused to reveal who takes care of the child

despite the fact that he said he knew with whom

the child was. As a result of this he must be

considered as having withheld the child from

(M)."

The sentence of one year and three months' imprisonment was

upheld.

In the meantime the Swedish authorities had continued their

efforts to find A. On 25 August 1992 the applicant informed the police

of the name and telephone number of the person in Tunisia who allegedly

took care of A. However, despite investigations carried out by the

Swedish Embassy in Tunis this person, as well as A's whereabouts,

remained unknown.

On 20 December 1992, two days before the applicant's conditional

release from his previous sentence, the applicant was arrested and

detained on remand again. By indictment of 19 January 1993 he was now

charged with having arbitrarily withheld A from her mother during the

period 28 May 1992 until 19 January 1993 contrary to Chapter 7

section 4 subsections 1 and 3 of the Penal Code.

By judgment of 5 February 1993 the Malmö District Court found the

applicant guilty of the charge brought against him and sentenced him

to two years' imprisonment. On the basis of the available evidence the

court found that, despite the information given to the police on

25 August 1992 and thereafter, the applicant had not "done his best"

in order to reunite A with her mother. This judgment was upheld by the

Court of Appeal on 8 April 1993.

Having granted leave to appeal the Supreme Court pronounced

judgment on 15 June 1993. In its judgment the Court stated inter alia

as follows:

(translation)

"Having regard to the fact that (the applicant) has been

deprived of his liberty since his arrest on 9 August 1991

... there is not sufficient reason to believe that (he) has

control over (A's) situation now.

...

On this basis the Supreme Court finds that the judgment

should be quashed in so far as it concerns the period after

25 August 1992 when (the applicant) submitted that it was

(X) who took care of (A) and informed about a telephone

number where he could be reached.

..."

The sentence was reduced to the extent that the previous sentence

of one year and three months' imprisonment was found to cover also the

present offence. The applicant was released from prison on 15 June

1993. The whereabouts of A are still unknown to her mother.

COMPLAINTS

The applicant complains, under Article 4 of Protocol No. 7 to the

Convention, that he has been convicted three times for the same

offence. He maintains that his final convictions of 3 September 1991,

28 September 1992 and 15 June 1993 all concern the same offence.

THE LAW

The applicant complains that he has been convicted three times

for the same offence and invokes Article 4 of Protocol No. 7

(P7-4) to the Convention, the first paragraph of which reads as

follows:

"No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State."

The Commission recalls that the applicant was charged, on

26 August 1991, with having abducted his daughter on 5 August 1991. He

was found guilty of this charge by the Umeå District Court's judgment

of 3 September 1991 which became final as neither the applicant nor the

prosecution appealed against it.

Furthermore, the Commission recalls that on 27 May 1992 the

applicant was found guilty of withholding the child from its legal

custodian from 7 September 1991 until 27 May 1992 in that he refused

to reveal the child's whereabouts. This judgment was eventually

confirmed by the Supreme Court which found that the offence of child

abduction committed on 5 August 1991 and that of subsequently

withholding the child from its legal custodian were distinct from each

other.

Finally, the Commission recalls that by final judgment of

15 June 1993 the Supreme Court confirmed the applicant's conviction in

so far as it concerned the withholding of the child from its legal

custodian during the period 28 May 1992 until 25 August 1992 on which

date the applicant disclosed the information, believed to be in his

possession, to the authorities.

In these circumstances the Commission is satisfied that the

applicant was convicted in accordance with Swedish law for three

different offences. Consequently, he was not tried or punished again

"for an offence for which he has already been finally ... convicted"

within the meaning of Article 4 of Protocol No. 7 (P7-4) 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, 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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ISKANDARANI v. SWEDEN

ISKANDARANI v. SWEDEN

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