Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21037/92

by T. K.

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 15 September 1992

by T. K. against Sweden and registered on 4 December 1992 under file

No. 21037/92;

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

The applicant, a Swedish citizen born in 1943 and residing at

Mjölby, Sweden, is an industrial worker. Before the Commission he is

represented by Mr. Per Svensson, a lawyer practising in Njurunda,

Sweden.

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

summarised as follows.

On 10 October 1990 the applicant was convicted of fraud by the

District Court (Tingsrätten of Norrköping). He was given a suspended

sentence and a fine of 6000 SEK. Before the District Court the

applicant was represented by a public defence counsel (offentlig

försvarare) who had been appointed ex officio by the Court.

The applicant appealed against his conviction to the Court of

Appeal (Göta hovrätt). At the same time he lodged a request to have his

defence counsel replaced by a lawyer he had chosen himself. He stated

that he had no confidence in the appointed counsel.

By decision of 27 August 1991 the Court of Appeal rejected the

applicant's request for a change of public defence counsel, stating

that the applicant had not shown sufficient grounds for a change. In

a letter dated 9 September 1991, the applicant appealed against this

decision. He also requested the Court of Appeal to dismiss the public

defence council and to give him adequate time to appoint another

counsel. Furthermore, he claimed that his request constituted an

obstacle (rättegångshinder) to holding a main hearing in the fraud

case.

On 16 September 1991 the Supreme Court (Högsta domstolen) refused

leave to appeal against the Court of Appeal's decision not to replace

the defence counsel.

On the same day, 16 September 1991, before the applicant was

informed of the decision of the Supreme Court, the Court of Appeal held

its main hearing in the fraud case. Neither the applicant nor his

defence counsel appeared. In the minutes of the hearing it was noted

that the applicant had told his counsel that he did not intend to

appear at the hearing. It was further noted that on 27 August 1991 the

applicant had been served a summons to appear at the hearing at the

risk of his appeal being declared forfeited if he failed to appear.

Thus, the Court of Appeal decided to dismiss the appeal on account of

the applicant's non-appearance, the absence of any reasons to believe

that he had a lawful excuse (laga förfall) for his non-appearance and

the impossibility to hold the hearing in his absence. The Court of

Appeal, however, stated that the case could be reopened, if the

applicant would show that there had been a lawful excuse of which he

had not been able to give notice in time.

The applicant then requested the Court of Appeal to reopen the

case. He submitted that he had not appeared at the hearing as he had

presumed it had been postponed pending the Supreme Court's decision

regarding his request for a change of public defence counsel. By

decision of 4 October 1991, the Court of Appeal rejected the request,

stating that the applicant had not shown that there had been a lawful

excuse for his failure to appear at the hearing.

On 18 March 1992 the Supreme Court refused the applicant leave

to appeal against the decision not to reopen the case.

COMPLAINTS

The applicant alleges that, by not postponing the hearing pending

the Supreme Court's decision regarding his public defence counsel, the

Court of Appeal has not respected his right to appeal against its

decision not to replace the public defence counsel and has also denied

him the right to appoint a defence counsel of his own choosing. He

maintains that if a defendant is dissatisfied with his public defence

counsel, he has, firstly, a right to request a change of that counsel

and, secondly, if that request is rejected, a right to appoint a

defence counsel of his own choosing. The applicant invokes Article 6

paras. 1 and 3 c) of the Convention.

THE LAW

The applicant complains that his right to appeal against the

Court of Appeal's decision not to replace his public defence counsel

and his right to appoint a defence counsel of his own choosing have

been denied in violation of Article 6 paras. 1 and 3 c)

(Art. 6-1, 6-3-c) 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 [a]

... tribunal ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require"

The Commission reiterates that the requirements of para. 3 of

Article 6 (Art. 6-3) are specific aspects of the general concept of a

fair hearing guaranteed in para. 1 of the same Article (cf., e.g.,

Eur. Court H.R., F.C.B. v. Italy judgment of 28 August 1991, Series A

no. 208-B, p. 20, para. 29). The Commission will therefore examine the

applicant's complaint from the point of view of these two provisions

in conjunction.

The Commission recalls its case-law to the effect that Article

6 para. 3 c) (Art. 6-3-c) does not guarantee the right to choose which

defence counsel is to be appointed by the court any more than it

guarantees the right to be consulted about the choice of officially

appointed defence counsel (cf. No. 6946/75, Dec. 6.7.76, D.R. 6 p. 114,

and No. 12152/86, Dec. 9.5.89, D.R. 61 p. 171). Accordingly, the

question whether to change an officially appointed counsel is to be

determined by the competent national court or authority, having regard

to the principle of equality of arms as included in the concept of a

fair hearing.

In the present case, a public defence counsel had been appointed

for the applicant by the District Court. In its decision not to replace

the counsel, the Court of Appeal stated that the applicant had not

submitted sufficient grounds for a change. The Commission finds that

there is nothing in the file to show that this decision violated the

principle of equality of arms or otherwise denied the applicant his

right to a fair hearing.

The Commission further considers that neither the appointment of

the public defence counsel nor the decision not to replace the counsel

prevented the applicant from appointing, at any moment, a lawyer of his

own choosing to defend him in the Court of Appeal. In this respect, the

Commission notes that when the applicant requested the Court of Appeal

to replace his public defence counsel he indicated which lawyer he

wished to have as his representative. Thus, he could have appointed

that lawyer as his private counsel and did not have to await the

Supreme Court's decision whether to appoint that lawyer as a public

defence counsel. The Commission, therefore, does not find it contrary

to Article 6 (Art. 6) that the Court of Appeal did not postpone the

hearing, and, as the applicant had been served a summons according to

which his appeal might be dismissed if he did not appear at the

hearing, and as he did not appear, the dismissal of the appeal due to

the applicant's default was not in violation of Article 6 (Art. 6).

The Commission concludes that the examination of the applicant's

complaints does not disclose any appearance of a violation of 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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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T.K. v. SWEDEN

T.K. v. SWEDEN

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