Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18066/91

by Per-Göran NÄSS

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

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

6 February 1991 by Per-Göran Näss against Sweden and registered

on 10 April 1991 under file No. 18066/91;

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 1933. He

resides in Värmland, Sweden. Before the Commission he is

represented by Mr. Gunnar Berg, a lawyer practising in Stockholm.

Following the murder of the Swedish Prime Minister, Olof

Palme, extensive police investigations commenced. In connection

with certain investigations in this respect it turned out that

illegal electronic surveillance of possible suspects was carried

out by the authorities. Separate investigations into this matter

commenced in 1989. The applicant was interrogated and eventually

suspected, in his capacity as a high official within the security

police, together with five others, of having been involved in

illegal electronic surveillance of possible suspects in the Palme

case in eight instances.

By indictment of 27 March 1990 the applicant was charged

with eight counts of illegal surveillance (olovlig avlyssning)

contrary to Chapter 4, Section 9a of the Penal Code

(brottsbalken).

In the course of 1990 the applicant requested the public

prosecutor to undertake a number of further investigations and,

in particular in respect of count eight of the indictment which

concerned the alleged illegal surveillance of a person in

Malmskillnadsgatan in Stockholm, the applicant requested the

prosecutor to produce further documents from the archives and

registers of the security police which primarily concerned

Palestinian terrorist activities in Sweden. The applicant's

request was rejected by the public prosecutor as he considered

the documents to be of no relevance to the case.

The applicant brought the prosecutor's refusal to undertake

the investigations which he deemed necessary for his defence

before the District Court (tingsrätten). By decision of 12 June

1990 the District Court rejected the request for the above

documents to be produced as it found that the prosecutor's

evaluation of what material was relevant for the trial was

correct. It indicated that its decision could not be appealed

against separately but only in connection with the judgment. The

applicant, however, lodged an appeal with the Court of Appeal

(hovrätten) alleging grave procedural error (domvilla). The Court

of Appeal dismissed the appeal on formal grounds on 10 July 1990.

The applicant's application to the Supreme Court (Högsta

domstolen) for leave to appeal was rejected by the Supreme Court

on 30 August 1990.

In the meantime, the applicant had on 14 June 1990 requested

the security police to provide him with the material in question

which also concerned the resident of the apartment in

Malmskillnadsgatan and his alleged involvement in Palestinian

terrorist activities in Sweden. His request was, however,

rejected by the security police on 18 June 1990 with reference

to Chapter 7, Section 17, of the Secrecy Act (sekretesslagen).

This decision was upheld by the Administrative Court of Appeal

(Kammarrätten) on 31 July 1990 and by the Supreme Administrative

Court (Regeringsrätten) on 7 December 1990.

The applicant finally requested the Government to hand out

the material in question. He relied on a provision of the Secrecy

Act according to which the Government may order that certain

secret material be handed out to an individual in case the

individual concerned establishes that his rights depend on the

secret information. However, by decision of 9 August 1990 the

Government rejected the applicant's application. They stated that

there was no ground on which the applicant's request could be

granted. Consequently, the Government considered the applicant

could effectively exercise his rights without having recourse to

the secret information.

The applicant challenged the lawfulness of the Government's

decision of 9 August 1990 in the Supreme Administrative Court.

However, by decision of 7 December 1990 the Court found that it

lacked competence to deal with the applicant's appeal as the

matter submitted did not fall under the 1988 Act on Judicial

Review of Certain Administrative Decisions (lagen om

rättsprövning av vissa förvaltningsbeslut).

In the meantime the applicant's trial had commenced in the

District Court of Stockholm. The applicant, present and

represented by counsel, decided to make use of his right not to

express himself as to the charges brought against him. The Court

heard several witnesses and a substantial amount of documentary

evidence was submitted. Following an evaluation of the available

evidence the District Court pronounced judgment on 20 December

1990 whereby the applicant was acquitted of all charges except

one which concerned illegal electronic surveillance of an

apartment at Vargvägen in Stockholm. He was sentenced to pay

fines totalling 10,500 SEK.

The public prosecutor appealed against the judgment to the

Court of Appeal (hovrätten) in so far as the applicant had been

acquitted and the applicant appealed against it to the extent he

had been convicted. In his appeal the applicant in particular

requested the Court to dismiss (avvisa) the prosecutor's appeal

in so far as it concerned the charges of illegal surveillance of

the apartment at Malmskillnadsgatan and referred again to the

fact that he had not been allowed access to documents held by the

security police which in his opinion were of importance for his

defence in this respect.

On 9 July 1991 the Court of Appel rejected the applicant's

request for the dismissal of that part of the case and proceeded

with it. The applicant was heard and the Court further obtained

statements from seventy witnesses. Documentary evidence of more

than 1,000 pages was also produced. On the basis of an

evaluation of this evidence the Court of Appeal pronounced

judgment on 27 March 1992. The applicant was found guilty of

illegal surveillance in four cases and acquitted as regards the

remaining four cases, including the surveillance in respect of

the apartment in Malmskillnadsgatan. He was given a suspended

sentence (villkorlig dom) and ordered to pay fines totalling

18,000 SEK.

The applicant applied for leave to appeal to the Supreme

Court in so far as he had been convicted. However, leave to

appeal was refused on 2 April 1993.

COMPLAINTS

The applicant complains that he was not presumed innocent

until proved guilty by law. He refers in this respect to the

prosecutor's attitude towards him and to the fact that the

administrative authorities, the District Court and the

administrative courts rejected his requests for documents from

the security police which, in his opinion, were of importance to

his defence. The applicant invokes in this respect Article 6

para. 2 of the Convention.

The applicant further complains that he was not allowed to

prepare his defence properly and thus did not have a fair trial

in that he was denied access to the above documents. He invokes

in this respect Article 6 paras. 1 and 3(b) of the Convention.

As regards his trial the applicant also invokes Article 2

of Protocol No. 7 to the Convention explaining that he was

deprived of his right to have his conviction reviewed by a higher

tribunal.

Finally, the applicant complains that he had no access to

a court within the meaning of Article 6 para. 1 of the Convention

when the Government, on 9 August 1990, refused him access to the

security police documents. He refers in this regard to the fact

that the Supreme Administrative Court dismissed his request for

judicial review as such a review was not possible in the

particular circumstances.

THE LAW

1. The applicant complains that, in various respects during the

course of the criminal proceedings against him, he was denied a

fair trial. He invokes in this regard Article 6 paras. 1-3

(Art. 6-1, 6-2, 6-3) 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 ... hearing ...

by an independent and impartial tribunal established by

law. ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the

following minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

... ."

a. Under Article 6 para. 2 (Art. 6-2) of the Convention the

applicant complains that he was not presumed innocent until

proved guilty according to law, exemplified by the public

prosecutor's attitude against him and the unsuccessful attempts

to obtain documents from the archives and register of the

security police.

The Commission recalls that it has previously held that

Article 6 para. 2 (Art. 6-2) may be violated by public officials

if they declare that somebody is responsible for criminal acts

without a court having found so. This does not mean, however,

that the authorities may not inform the public about criminal

investigations. They do not violate Article 6 para. 2 (Art. 6-2)

if they state that a suspicion exists, that people have been

arrested, that they have confessed etc. (cf. No. 8361/78,

Dec. 17.12.81, D.R. 27 p. 37).

In the present case, as submitted by the applicant, the

Commission has found no evidence which could substantiate the

allegation that the public prosecutor or other Swedish

authorities offended against the presumption of innocence

guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.

b. The applicant also complains under Article 6 paras. 1 and

3(b) (Art. 6-1, 6-3-b) of the Convention that he could not

prepare his defence properly and did not have a fair trial due

to the fact that he was refused access to certain documentary

evidence held by the security police.

In this respect the Commission recalls that the

admissibility of evidence is primarily a matter for regulation

by national law. As a rule it is for the national courts to

assess the evidence before them whereas it is the Commission's

task to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (cf. for

example Eur. Court H.R., Kostovski judgment of 20 November 1989,

Series A no. 166, p. 19, para. 39).

In the present case the Commission further recalls that the

applicant's case was heard in the District Court and in the Court

of Appeal where more than seventy witnesses submitted statements

and a substantial amount of documentary evidence was produced.

Nothing has emerged which could give rise to any misgivings as

regards the fairness of the applicant's trial or his right to a

proper defence in this respect. It is true that the applicant

could not obtain certain documents held by the security police.

However, these documents related primarily to the charge of

illegal electronic surveillance of the apartment in

Malmskillnadsgatan, a charge of which he was acquitted both in

the District Court and in the Court of Appeal.

In these circumstances the Commission does not consider that

the fact that these documents were not available to the applicant

could lead to the conclusion that he could not properly prepare

his defence or did not have a fair trial, in so far as he was

convicted and sentenced.

Summing up, the Commission recalls that the guarantees in

paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention

are specific aspects of the right to a fair trial set forth in

paragraph 1 (Art. 6-1). The Commission has considered the

particular aspects and incidents invoked by the applicant and has

found that these did not assume such importance as to constitute

a decisive factor in the general appraisal of the trial. In

addition an examination of the conformity of the trial as a whole

with the rules laid down in Article 6 (Art. 6) of the Convention

has not disclosed any appearance of a violation of this provision

either.

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.

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

the applicant complains that he was deprived of his right to have

his conviction reviewed by a higher tribunal in so far as he was

convicted by the Court of Appeal.

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

"1. 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.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in

cases in which the person concerned was tried in the first

instance by the highest tribunal or was convicted following

an appeal against acquittal."

In respect of this particular complaint the Commission

recalls that the applicant's case was heard in the District Court

where he was acquitted of all charges, except one. On appeal he

was found guilty of three additional charges of illegal

surveillance for which reason he applied for leave to appeal to

the Supreme Court. This was, however, refused by the Court.

The Commission notes that different rules govern review by

a higher tribunal in the various member States of the Council of

Europe. In some member States like Sweden, a person wishing to

appeal to the highest tribunal must apply for leave to appeal.

The Commission considers that the procedure on the right to apply

to the Supreme Court in the present case is in itself to be

regarded as a review within the meaning of Article 2 of Protocol

No. 7 (P7-2).

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. Finally, the applicant complains that he had no access to

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention when the Government, on 9 August 1990, rejected

his request for access to documents held by the security police.

The Commission recalls that Article 6 (Art. 6) of the

Convention only applies to proceedings which involve the

determination of a civil right or obligation or a criminal

charge. The Commission considers, however, that it can be left

open whether this requirement has been fulfilled in the present

case.

The dispute which the applicant wanted determined was

whether or not he could get access to certain documents. This

particular issue was considered by the District Court which, by

decision of 12 June 1990, rejected the applicant's request.

Furthermore, the Administrative Court of Appeal and the Supreme

Administrative Court also examined the matter and rejected the

applicant's requests on 31 July and 7 December 1990 respectively.

Accordingly, the Commission finds that even assuming that the

question of access to the documents in question did involve a

civil right or obligation, or a criminal charge, the applicant

had access to a tribunal within the meaning of Article 6 (Art.

6) of the Convention in order to have the matter determined.

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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NÄSS v. SWEDEN

NÄSS v. SWEDEN

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