Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18751/91

by P.L. and N.L.

against Sweden

The European Commission of Human Rights sitting in private on

5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 10 May 1991 by

P.L. and N.L. against Sweden and registered on 29 August 1991 under

file No. 18751/91;

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 applicants are husband and wife. They were born in 1965 and

1962 and are English and Swiss citizens, respectively. They live in

Switzerland.

The facts as submitted by the applicants may be summarised as

follows.

On 1 April 1991 the applicants arrived by ferry boat with their

car at Trelleborg in Sweden which country they intended to visit for

some days. When they drove off the ferry they lost the front number

plate in a small collision with another car. Due to a wrong change of

gears they also approached the customs control with too high speed.

However, they managed to stop in time. The customs officials decided

to control the car. The search revealed inter alia a loaded gun in the

glove compartment and one gramme of marijuana in the first applicant's

pockets. The applicants were arrested suspected of narcotics and weapon

smuggling, searched and brought to different cells. The first applicant

claimed that he was innocent as the gun was his wife's and as he had

believed she was entitled to take it to Sweden. He asked to see his

wife and a lawyer. When this was refused he became violent and in order

to calm him down the police put him in a special cell with a straight-

jacket and gave him a shot with a calmative. He was subsequently

brought to a hospital where he was forced to take laxatives and

thoroughly X-rayed. No further findings were made.

On 2 April 1991 the public prosecutor applied to the District

Court (tingsrätt) of Trelleborg to have the applicants detained on

remand charged with weapon smuggling.

On 3 April 1991 the applicants were allowed to see a lawyer and

shortly thereafter they appeared before the District Court which

ordered their detention on remand on account of the danger that they

escape from the country and destroy evidence. Their request to be

released on bail was refused.

On 4 April 1991 an article in Trelleborg Allehanda, a local

newspaper, described the circumstances of the applicants' arrest and

mentioned that they were detained on remand charged with weapon

smuggling.

On 17 April 1991 the District Court, after a main hearing,

convicted the applicants of smuggling and sentenced them to one month

imprisonment each. As prescribed by the relevant provisions of the

Criminal Code (brottsbalken), it declared that the time spent in

detention on remand (16 days) should be deducted from the sentence. It

decided that the applicants should remain in detention on remand until

the judgment had become final.

The applicants were anxious to be able to return home as soon as

possible in order to try to recover their jobs and to be able to care

for the wife's small child which had been left in Switzerland. They

maintain that they were told in the prison that the lodging of an

appeal against the District Court's judgment implied that they would

have to remain in prison until the Court of Appeal had heard their

case, something which could take several months, and that the only way

to ensure release after expiry of their one month prison term was to

sign a waiver of appeal. After having contacted their defence lawyers

who advised them to sign the waivers of appeal, they both signed such

waivers on 19 April 1991. They were released after having served their

sentence.

According to Chapter 50, section 5, of the Code of Judicial

Procedure (rättegångsbalken) an appeal containing a request

necessitating immediate examination, such as an appeal against a lower

court's decision to maintain the accused in detention on remand, shall

be forwarded to the Court of Appeal without delay for decision.

COMPLAINTS

1. The first applicant alleges violations of:

a) Article 3 of the Convention as regards his treatment by the

police;

b) Article 5 para. 1 of the Convention in that he was at all times

unlawfully detained since he could not be held responsible for his

wife's negligence in not declaring her gun to the customs;

Article 5 para. 3 of the Convention in that he was not brought

promptly before a judge, nor tried within a reasonable time, nor

released on bail;

Article 5 para. 4 of the Convention in that he was refused the

assistance of a lawyer in order to challenge the lawfulness of his

detention;

c) Article 2 of Protocol No. 7 in that he was forced to waive his

right to appeal in order to recover his liberty after having served the

sentence imposed at first instance;

d) Article 6 of the Convention in that he did not have adequate time

and facilities to prepare his defence, was refused permission to

contact a lawyer during the first three days of arrest, could not

himself choose his public defence counsel and was not presumed innocent

as a result the prejudicial effects of the newspaper article of 4 April

1991.e) Article 8 of the Convention in that the authorities paid no

attention to the fact that he had a job, a home and a child to look

after and that the ensuing loss of his job has ruined his private and

family life.

2. The second applicant reiterated, mutatis mutandis, the above

complaints under Articles 6 of the Convention and 2 of Protocol No. 7.

However, by letter of 4 September 1992 she withdrew her complaint.

THE LAW

1. The first applicant

a. The first applicant alleges a violation of Article 3 (Art. 3) of

the Convention as regards his treatment by the police on the occasion

of his arrest. This Article provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission notes, however, that the first applicant has not

brought any proceedings for damages against the State or otherwise

lodged any complaints before any Swedish authority on account of the

matters complained of. In such circumstances the Commission cannot find

that the first applicant has exhausted domestic remedies as required

by Article 26 (Art. 26) of the Convention and, accordingly, this

complaint is inadmissible pursuant to Article 27 para. 3 (Art. 27-3)

of the Convention.

b. The first applicant also alleges violations of Article 5 paras.

1, 3 and 4 (Art. 5-1, 5-3, 5-4) of the Convention in that he was at all

times unlawfully detained since he could not be held responsible for

his wife's negligence in not declaring her gun to the customs, in that

he was not brought promptly before a judge, in that he did not get a

trial within a reasonable time, in that he was not set free against

bail and in that he was refused the assistance of a lawyer in order to

challenge the lawfulness of his detention. The relevant paragraphs of

Article 5 (Art. 5) provide:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

a. the lawful detention of a person after conviction by a

competent court;

...

c. the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so;

...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for

trial.

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a

court and his release ordered if the detention is not

lawful."

The Commission is satisfied that the first applicant was

initially detained, in accordance with Article 5 para. 1 (c)

(Art. 5-1-c), for the purpose of being brought before the competent

legal authority on reasonable suspicion of having committed an offence

and, after his conviction on 17 April 1991, in accordance with Article

5 para. 1 (a) (Art. 5-1-a) (cf., as regards detention pending appeal

against conviction and sentence, No. 9132/80, Dec. 16.12.82, D.R. 31,

p. 154). The first applicant was duly released after having served his

sentence.

The Commission also finds that the first applicant was brought

promptly before a judge, as required by Article 5 para. 3 (Art. 5-3)

of the Convention. He was arrested on 1 April 1991 and was brought

before a court on 3 April 1991. This was sufficiently prompt to meet

the above requirement (see, inter alia, No. 11256/84, Dec. 5.9.88,

D.R. 57, p. 47).

The Commission further finds that the first applicant was tried

within a reasonable time, as required by Article 5 para. 3 (Art. 5-3)

of the Convention. It here notes that the trial opened 16 days after

the arrest.

As regards the alleged refusal to order release on bail, the

Commission recalls that the aim of the guarantee laid down in the last

sentence of Article 5 para. 3 (Art. 5-3) is primarily to prevent

unnecessary detention in cases where the authorities only fear that the

accused will not appear for trial (see, inter alia, Eur. Court H.R.,

Wemhoff judgment of 27 June 1968, Series A No. 7, p. 25, para. 15).

In the circumstances of the present case, where the District Court

found that there was also a risk of evidence being suppressed, the

Commission does not find any breach of this provision.

The first applicant was allowed to see a lawyer, albeit for a

short period of time, before the hearing relating to his detention on

remand and to have the assistance of this lawyer in the course of the

hearing. In these circumstances, the Commission finds no indication of

a violation of Article 5 para. 4 (Art. 5-4) of the Convention.

It follows that the above complaints under Article 5 (Art. 5) are

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

c. The first applicant also alleges a violation of Article 2 of

Protocol No. 7 (P7-2) to the Convention in that he was forced to waive

his right of appeal in order to recover his liberty after having served

the sentence imposed at first instance. This Article provides 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 higher tribunal or was convicted following

an appeal against acquittal."

The Commission notes that the first applicant signed the waiver

of appeal after he had been informed by the prison authorities that he

would otherwise have to remain in prison until the Court of Appeal had

decided his appeal and after he had been advised by his public defence

counsel to accept the judgment of the court of first instance. The

Commission finds that the information given by the prison authorities

merely restated the District Court's order that the first applicant

should remain in detention on remand until its judgment had gained

legal force. The Commission furthermore finds that the advice given

by the public defence counsel was not of such a character as to engage

the responsibility of the State as it may have been based on many

different legitimate considerations, e.g. related to an appeal's

prospects of success (see, mutatis mutandis, Eur. Court of H.R., Artico

judgment of 13 May 1980, Series A No. 37, p. 18, para. 36). In any case

the first applicant could have chosen to pursue his appeal against the

District Court's judgment, including its decision that he should remain

in detention until the judgment had become final. The Court of Appeal

would then have been obliged to examine without delay the question of

his continued detention and to order his release if detention was no

longer justified. The applicant has thus failed to establish that he

was forced to renounce his right to appeal.

It follows that the present complaint is inadmissible under

Article 27 para. 2 (Art. 27-2) of the Convention as being either

manifestly ill-founded or incompatible, ratione personae, with the

provisions of the Convention.

d. The first applicant furthermore alleges violations of Article 6

(Art. 6) of the Convention in that he did not get adequate time and

facilities to prepare his defence, was refused to see a lawyer during

the first three days of arrest, could not himself choose his public

defence counsel and also as a result of the prejudicial effects of the

article of 4 April 1991 in the local newspaper. The relevant parts of

Article 6 (Art. 6) read:

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

him, anyone is entitled to a fair ... hearing ... by [a]

tribunal ... .

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;

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 finds, in view of its above conclusion under

Article 2 of Protocol No. 7 (P7-2), that it may be questioned whether

the first applicant has, in accordance with Article 26 (Art. 26) of the

Convention, exhausted domestic remedies in respect of the complaints

concerning his conviction and sentence. The Commission does not,

however, consider it necessary to determine this question as these

complaints are in any event manifestly ill-founded for the following

reasons.

The Commission finds no indication that the first applicant was

prevented from preparing his defence correctly. The first applicant was

allowed to contact a lawyer on the third day of his detention, shortly

before the District Court's hearing concerning detention on remand (cf.

No. 11256/84, loc. cit.). There is no indication that the first

applicant's access to his counsel was subsequently prevented in any way

relevant under Article 6 (Art. 6) of the Convention.

The Convention does not guarantee the right to have an officially

appointed defence counsel of one's own choice. In the instant case

there is furthermore nothing to show that the acts of the appointed

lawyer in any way prejudiced the first applicant's right to a fair

trial before the District Court.

Finally, the impugned newspaper article gave a correct account

of the facts and could not be put on par with a virulent press campaign

capable of prejudicing the fairness of the trial (see, mutatis

mutandis, No. 10486/83, loc. cit.).

The Commission concludes that the first applicant's complaints

under Article 6 (Art. 6) of the Convention are inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

e. The first applicant also alleges a violation of Article 8

(Art. 8) of the Convention in that the authorities did not, at any

stage of his arrest and detention, pay attention to the fact that he

had a job, a home and a child to look after and that the ensuing loss

of his job has ruined his private and family life. This Article

provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the

interests of national security, public safety or the

economic well-being of the country, for the prevention of

disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others."

The Commission finds that the restrictions imposed on the first

applicant while deprived of his liberty, to the extent that they could

be seen as interferences with his private and family life, were

justified under the second paragraph of Article 8 (Art. 8).

Accordingly, the above complaints are manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The second applicant

The Commission notes that the second applicant wishes to withdraw

her complaints. In the light of its conclusions above, it finds no

reasons relating to respect for Human Rights as defined in the

Convention requiring a further examination of these complaints.

For these reasons, the Commission by a majority

1. DECLARES THE FIRST APPLICANT'S APPLICATION INADMISSIBLE;

2. STRIKES THE APPLICATION, INSOFAR AS IT CONCERNS THE SECOND

APPLICANT, OUT OF THE LIST OF CASES.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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P.L. AND N.L. v. SWEDEN

P.L. AND N.L. v. SWEDEN

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