Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19598/92

by Torgny ROOS

against Sweden

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 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 7 September

1991 by Torgny ROOS against Sweden and registered on 6 March 1992

under file No. 19598/92;

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

be summarised as follows.

The applicant is a Swedish citizen, born in 1953. He is at

present serving a life sentence in Sweden.

The applicant and his now ex-wife married in 1973. Two

children were born out of this relationship. During their

marriage the family lived for a period of time in Switzerland,

but took up residence in Sweden again in 1989.

It appears that the applicant's relationship with his wife

deteriorated to the extent that she expressed a wish of having

a divorce, something the applicant would not accept. Due to this

two incidents occurred in the spring of 1990, on 8 March and 18

May 1990 respectively, following which the applicant was arrested

suspected of attempted manslaughter (försök till dråp), attempted

murder (försök till mord) and illegal possession of firearms.

By indictment of 13 July 1990 the applicant was charged with

the above offences. According to the indictment the applicant

had, on 8 March 1990, assaulted and ill-treated his wife with the

intent of killing her inter alia by wounding her with a knife by

several stabs to her head and throat. Furthermore, he had, on 18

May 1990, allegedly attempted to kill her with a sawn-off shotgun

by shooting her in the back which had resulted in permanent

paralysis of major parts of her body.

The case was examined by the District Court (tingsrätten)

of Stockholm where the applicant, assisted by counsel, was heard

as well as a number of witnesses. Furthermore, documentary

evidence and expert opinions were produced. On the basis of an

evaluation of the above evidence the applicant was found guilty

of the charges brought against him and sentenced to life

imprisonment by judgment of 8 November 1990. The sentence of life

imprisonment was imposed due in particular to the brutality and

ruthlessness with which the Court found the applicant had acted.

He was finally ordered to pay damages to his wife in the amount

of 1,150,000 SEK.

The applicant appealed against the judgment to the Svea

Court of Appeal (Svea hovrätt). He maintained in particular that

it had not been his intention to kill his wife but accepted that

she had suffered bodily harm. As regards the ensuing proceedings

in the Court of Appeal, the applicant drew the Court's attention

to the fact that his hearing is impaired and that he uses a

hearing-aid. He therefore requested the Court to provide

facilities in the court room allowing him to follow the

proceedings in an appropriate manner.

The case was heard in the Court of Appeal from 14 to 18

January 1991. The applicant, assisted by counsel, was heard in

addition to two witnesses, one of whom was his daughter who had

witnessed the incident of 8 March 1990. Furthermore, the

applicant's wife as well as three expert witnesses were heard.

Documentary evidence was also submitted. During the hearing of

the witnesses and experts the applicant moved around in the court

room in order to be sufficiently close to those speaking. During

the hearing of his wife and his daughter the applicant was not

present in the court room but was placed in an adjacent room from

where he could listen to their statements through a loudspeaker.

He submits that he was sitting on a chair placed on a table in

order to be as close to the loudspeaker as possible.

The Court of Appeal pronounced judgment on 1 February 1991.

Following an evaluation of the evidence submitted the Court of

Appeal upheld the District Court's judgment.

The applicant appealed against the judgment to the Supreme

Court (Högsta domstolen). In his request for leave to appeal he

maintained his innocence as regards his intent to kill his wife

whereas he accepted having assaulted her and having caused bodily

harm. He furthermore maintained that the case should be referred

back to the Court of Appeal due to grave procedural errors (grovt

rättegångsfel). In this respect he maintained that he could not

appropriately follow the court proceedings due to his hearing

handicap, in particular when placed in the adjacent room during

the hearing of his daughter and his wife.

On 7 March 1991 the Supreme Court refused the applicant

leave to appeal.

COMPLAINTS

The applicant maintains that he is innocent in so far as he

has been convicted of attempted manslaughter and attempted

murder.

He furthermore complains that he did not have a fair trial

since he could not properly hear what was said in the Court of

Appeal. In particular he submits that, in the court room, he had

to move around in order to be close enough to the persons

speaking, and while his wife and daughter were heard he had to

sit in an adjacent room on a chair placed on a table in order to

be close enough to the loudspeaker. Regardless thereof the

applicant maintains that the presiding judge ignored his

complaints that he was unable to hear what was said.

The applicant invokes Article 6 of the Convention.

THE LAW

The applicant complains that he was wrongly convicted and

sentenced on 1 February 1991 by the Court of Appeal and also of

the court proceedings concerned.

With regard to the judicial decision of which the applicant

complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task it to

ensure the observance of the obligations undertaken by the

Parties in the Convention. In particular, it is not competent to

deal with an application alleging that errors of law or fact have

been committed by domestic courts, except where it considers that

such errors might have involved a possible violation of any of

the rights and freedoms set out in the Convention. The Commission

refers, on this point, to its established case-law (see e.g. No.

458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.

8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,

D.R. 18 pp. 31, 45).

It is true that in this case the applicant also complains

that he did not have a fair trial as he had difficulties in

hearing all what was said in the Court of Appeal. He refers in

this connection to Article 6 (Art. 6) of the Convention which in

so far as relevant reads as follows :

"In the determination of ... any criminal charge

against him, everyone is entitled to a fair ...

hearing ... ."

As regards the fairness of the trial the Commission recalls

that it must consider the proceedings as a whole, including not

only the proceedings in the Court of Appeal but also those in the

District Court. The Commission's task is to ascertain whether

these proceedings in their entirety, including the way in which

evidence was taken, were fair (cf. inter alia Eur. Court H.R.,

Stanford judgment of 23 February 1994, Series A no. 280-A, para.

24).

Furthermore, according to the established case-law of the

Commission and the European Court of Human Rights it is clear

that Article 6 (Art. 6), read as a whole, guarantees the right

of an accused to participate effectively in a criminal trial. In

general this includes not only his right to be present but also

to hear and follow the proceedings. Such rights are implicit in

the very notion of an adversarial procedure and can also be

derived from the guarantees contained in sub-paragraphs (c), (d)

and (e) of paragraph 3 of Article 6 (Art. 6-3-c, 6-3-d, 6-3-e)

(cf. for example Eur. Court H.R., Colozza judgment of 12 February

1985, Series A no. 89, p. 14, para. 27). However, where the

hearing of the accused is impaired the Commission finds it

obvious that this cannot as such be allowed to block the

prosecution or lead to the conclusion that an accused with such

a handicap cannot have a fair trial.

In the present case the Commission recalls that the

applicant's hearing is impaired and that he uses a hearing-aid

which improves his hearing to a certain extent. Indeed the

applicant's trial in the District Court did not give rise to any

misgivings in this respect whereas he maintains that he was

unable to hear all what was said in the Court of Appeal. The

Commission recalls that during these proceedings the applicant

moved around in the court room in order to be close to the person

speaking and, when not in the court room, had to make

arrangements so as to be very close to the loudspeaker in order

to hear the statements by his wife and his daughter. When looking

at the applicant's trial as a whole, the Commission does not,

however, find that these circumstances made the trial unfair.

Furthermore, the Commission recalls that the applicant was

represented by counsel who had no difficulty in following the

proceedings and who would have had every opportunity to discuss

with the applicant any points that arose in respect of statements

the applicant allegedly did not hear. In these circumstances the

Commission finds the case, as submitted, does not disclose any

appearance of a violation of the applicant's right to a fair

trial as guaranteed to him under 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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ROOS v. SWEDEN

ROOS v. SWEDEN

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