Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20959/92

by C.P. H.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 17 June 1992 by

C.P. H. against Sweden and registered on 18 November 1992 under file

No. 20959/92;

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

a. The particular circumstances of the case

The applicant is a Swedish citizen born in 1943 and residing in

Malmö. He is the founder of a political party, the Skåne Party

(Skånepartiet), aimed at establishing independence for the region of

Skåne. Before the Commission he is represented by Mr. Bertil Malmlöf,

a lawyer practising in Stockholm.

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

summarised as follows.

On 15 December 1990, the applicant and his cohabitee travelled

by ferry to Copenhagen. While driving home upon return to Malmö, they

were stopped by the police and the applicant was taken to hospital

where a blood-test was taken. The test showed a 2.19 permillage of

alcohol in the applicant's blood. The applicant was, therefore, later

charged with aggravated drunken driving. He claimed, however, that his

cohabitee had been driving the car on the occasion.

On 27 May 1991 the District Court (Tingsrätten of Malmö) found

the applicant guilty as charged and sentenced him to one month's

imprisonment. The Court consisted of one judge and three lay judges

(nämndemän). The lay judges are appointed through political elections

and the lay judges sitting on the occasion were all members of

political parties different from the applicant's. During the trial the

applicant wanted to examine the witnesses for the prosecution himself,

but the judge directed him to put all questions through his public

defence counsel.

The applicant appealed to the Court of Appeal (Hovrätten of Skåne

and Blekinge), requesting 1) that the District Court judgment should

be quashed and the case be referred back to that Court for re-

examination, or 2) that the Court of Appeal should acquit him. The

applicant supported his first request by claiming that a grave

procedural error had been made in the District Court when he was

refused to examine the witnesses himself, thereby denying him his right

under Swedish law to plead his own case.

On 9 August 1991 the Court of Appeal rejected the applicant's

request for the case to be referred back to the District Court. The

Court of Appeal stated that if the decision not to allow the applicant

to examine the witnesses himself was to be considered a procedural

error, it could nevertheless be rectified in the proceedings in the

Court of Appeal.

On 4 November 1991 the Court of Appeal upheld the judgment of the

District Court. In the hearing before the Court of Appeal the applicant

was allowed to put questions to the witnesses himself.

The applicant then appealed to the Supreme Court (Högsta

domstolen), maintaining that the case should be referred back to the

lower courts or that he should be acquitted.

On 3 February 1992 the Supreme Court refused leave to appeal.

b. Relevant domestic law

In criminal cases the District Court is composed of one judge,

who is legally trained and qualified, and three or five lay judges, who

usually have no legal training. The Court of Appeal is, in these cases,

composed of three professional judges and two lay judges. The lay

judges are appointed through elections held by, respectively, the

Municipal Assembly and the County Council. The political affiliation

of the elected lay judges normally reflects the political situation in

the Assembly or the Council. However, according to Chapter 4, Section

7, subsection 4 of the Code of Judicial Procedure (rättegångsbalken),

the aim should be a diversified composition as regards age, sex and

profession.

Chapter 4, Sections 13-15 of the Code of Judicial Procedure read,

in so far as relevant, as follows:

(translation)

Section 13:

"A judge's right to hear a case may be challenged:

...

9. if otherwise there are special circumstances likely to

undermine confidence in his impartiality in the case."

Section 14, subsections 2 and 3:

"If a party wishes to challenge a judge's impartiality, he shall

state his objections when he pleads for the first time in the

case, after he has been informed that the judge is on the bench

or otherwise deals with the case, or, if the particular fact on

which the challenge is based was then unknown to the party, after

he has been informed thereof. If the party fails in this respect,

his right to so challenge is forfeited.

Such a challenge in respect of a lower court judge may not

be heard by a superior court, unless the challenge in the

superior court is lodged by a party entitled under subsection 2

or is an appeal against a decision to reject the challenge."

Chapter 4, Section 15, subsection 2:

"If a party has lodged, in time, a challenge to a judge's

impartiality, the court shall, as soon as possible, deliver a

separate decision on the matter."

Chapter 49, Section 3 of the Code provides for the following

appeal procedure:

(translation)

"If the District Court in the course of the proceedings has

decided to reject a challenge to a judge's impartiality ... , the

party who wishes to appeal against the decision shall give notice

of exception. Such notice shall be given immediately, if the

decision has been pronounced at a hearing, or, otherwise, within

a week from the date on which the party was informed of the

decision. If the party fails in this respect, he may no longer

appeal against the decision. ..."

The above provisions concern legally trained and qualified judges

and lay judges alike.

COMPLAINTS

1. The applicant claims that he has been deprived of a fair hearing

by an independent and impartial tribunal contrary to Article 6 para.

1 of the Convention. He alleges that the three lay judges in the

District Court were known to be antagonistic to, disrespectful of and

prejudiced against the applicant's party. Furthermore, the District

Court trial having been preceded by adverse publicity in the media, he

felt that the judges were prejudiced against him from the outset. The

applicant submits that the Swedish criminal justice system does not

recognise the right to challenge the impartiality of a lay judge on

political grounds.

2. The applicant also submits that in the District Court he was

denied the opportunity to examine on his own the witnesses for the

prosecution. For this reason, significant information which would have

influenced the outcome of the case did not come forth. He invokes

Article 6 paras. 1 and 3 (d) of the Convention.

3. The applicant further complains that, because of the unfairness

of the proceedings in the District Court and the Court of Appeal's

failure to refer the case back to the District Court for a new trial,

he has been denied his right to a review by a higher tribunal. He

maintains that the Supreme Court grants leave to appeal only in

exceptional circumstances. In this respect, he invokes Article 2 of

Protocol No. 7 to the Convention.

THE LAW

1. The applicant claims that, since his case was heard by the three

politically elected lay judges in the District Court, he has been

deprived of a fair hearing by an independent and impartial tribunal

contrary to Article 6 para. 1 (Art. 6-1) of the Convention. He alleges

that the three lay judges were known to be antagonistic to,

disrespectful of and prejudiced against the applicant's party.

However, the Commission is not required to decide whether or not

the facts submitted by the applicant in this respect disclose any

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been

exhausted.

In his appeals to the Court of Appeal and the Supreme Court the

applicant did not challenge the impartiality of the lay judges or make

any other statements that would cast doubt on the District Court's

independence or impartiality. He claims that he could not lodge a

successful challenge since Swedish courts would not recognise a

challenge on political grounds.

The Commission recalls that, in the examination of an individual

application under Article 25 (Art. 25) of the Convention, it must

confine itself to the facts of that particular application (cf.

No. 10941/83, Dec. 3.12.86, D.R. 51 p. 41). Thus, it will not make a

general review of, for instance, the compatibility with the Convention

of the system of political elections of lay judges. For the purpose of

determining whether the applicant in the present case has exhausted

domestic remedies it is sufficient to determine whether he could have

challenged in Swedish courts the impartiality of the lay judges sitting

on his case on the grounds he has invoked in his application to the

Commission.

The Commission considers that it was possible for the applicant,

under Chapter 4, Section 13, subsection 9 of the Code of Judicial

Procedure to challenge the impartiality of the three lay judges in the

District Court by claiming that they were known to have hostile views

on the applicant's party. Provided that he complied with the procedural

rules, he would have been able to appeal to the Court of Appeal.

Furthermore, according to the Commission's consistent case-law, the

mere existence of a doubt as to the effectiveness of a particular

remedy does not itself excuse an applicant from the requirement to

exhaust it (cf. No. 9586/82, Dec. 14.5.87, D.R. 52 p. 38). In this

respect, the Commission concludes that the applicant has not shown that

a challenge in Swedish courts was bound to fail. The Commission,

therefore, further concludes that no special circumstances existed

which might have absolved the applicant from exhausting the domestic

remedies at his disposal.

It follows that in this respect the applicant has not satisfied

the requirement as to exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention. This part of the application

is, therefore, inadmissible by virtue of Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant submits that in the District Court he was denied

the opportunity to examine on his own the witnesses for the

prosecution. He invokes Article 6 paras. 1 and 3 d) (Art. 6-1, 6-3-d)

of the Convention, which, in so far as relevant, read as follows:

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

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

independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him."

The guarantees contained in para. 3 d) of Article 6 (Art. 6-3-d)

are specific aspects of the general concept of a fair hearing set forth

in para. 1 of the same Article (cf. Eur. Court H.R., Bönisch judgment

of 6 May 1985, Series A no. 92, p. 14 et seq., para. 29). Furthermore,

the question whether a trial conforms to the standards laid down in

para. 1 must be decided on the basis of an evaluation of the trial in

its entirety (cf., e.g., No. 11058/84, Dec. 13.5.86, D.R. 47 p. 230).

The Commission will, accordingly, examine whether the applicant's trial

as a whole was fair under the general rule of para. 1.

The Commission recalls that the applicant was allowed to question

the witnesses himself in the hearing before the Court of Appeal.

Furthermore, he was not denied the right to put questions to the

witnesses in the District Court trial, but was merely directed to put

them through his public defence lawyer.

The Commission, therefore, concludes that the facts submitted do

not disclose any appearance of a violation of the applicant's right to

examine witnesses under Article 6 para. 3 (d) (Art. 6-3-d) or his

general right to a fair hearing under para. 1 (Art. 6-1) of the same

Article.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant finally complains that he has been deprived of his

right under Article 2 of Protocol No. 7 (P7-2) to the Convention to

have his conviction reviewed by a higher tribunal.

Article 2 para. 1 of Protocol No. 7 (P7-2-1) reads as follows:

"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."

In respect of this particular complaint the Commission recalls

that the applicant's case was heard by both the District Court and the

Court of Appeal. In addition, the applicant appealed to the Supreme

Court for leave to appeal.

The Commission notes that in a previous case (No. 18066/91,

Dec. 6.4.94, not yet published) it held that the procedure on the right

to apply to the Supreme Court in itself was to be regarded as a review

within the meaning of Article 2 of Protocol No. 7 (P7-2). The

Commission finds no reason to take a different view in the present

case. Thus, notwithstanding the applicant's allegations that the

hearing in the District Court was unfair and that the Supreme Court

only grants leave to appeal in special circumstances, the Commission

concludes that the applicant's case has been heard by courts at three

levels of jurisdiction, and, consequently, that his rights under

Article 2 of Protocol No. 7 (P7-2) have not been violated.

It follows that this part of the application is also 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 the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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C.P.H. v. SWEDEN

C.P.H. v. SWEDEN

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