Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15260/89

by T.H.

against Sweden

The European Commission of Human Rights sitting in private on

29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 June 1989 by

T.H. against Sweden and registered on 20 July 1989 under file

No. 15260/89;

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 is a Swedish citizen, born in 1954 and resident at

Vallentuna, a suburb of Stockholm. He is a medical doctor by

profession. Before the Commission he is represented by Mr. Lennart

Hane, a lawyer practising in Stockholm.

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

summarised as follows.

The particular circumstances of the case

On 18 July 1984 two plastic bags were found in Solna, a suburb

of Stockholm. The bags contained parts of the corpse of a woman. On

7 August 1984 two more plastic bags were found in the same suburb,

containing further parts of the corpse of the woman, who later was

identified as C.C. The head and the neck were, however, never found.

No witnesses to her death were found.

On 3 December 1984 the applicant was arrested by the police and

subsequently detained on remand by the District Court (tingsrätten) of

Stockholm, suspected of having murdered C.C. He denied that he had had

anything to do with C.C. On 7 December 1984 he was released. The

police investigation continued.

On 6 October 1987 another medical doctor, T.A., was arrested and

later detained on remand by the District Court, suspected of having

murdered C.C. On 28 October 1987 the applicant was again arrested and

on 2 November 1987 detained on remand by the District Court, suspected

of having murdered C.C. together with T.A. In connection with the

preliminary police investigation, the applicant took an overdose of

sleeping pills in an attempt to commit suicide as he felt "raped" by

the authorities. Although saved he suffered a serious hearing

deficiency.

On 18 January 1988 the public prosecutor indicted the applicant

and T.A. at the District Court for murder (mord), alleging inter alia:

(translation)

"T.A. and [the applicant] have at Whitsun 1984 at Stockholm or

Solna together and with each other's consent intentionally killed

C.C. by strangulation, violence against her head or neck or by

other violence; ..."

The accused denied that they had anything to do with the crime.

After a trial hearing the District Court found, in a decision of

8 March 1988 (by a majority of lay judges, the president and one lay

judge voting against) convincing evidence (övertygande bevisning)

against the accused. The Court therefore decided that the applicant and

T.A. should be examined by a psychiatrist before it finally decided the

case and that the accused should remain detained until then.

The applicant and T.A. appealed against this decision to the Svea

Court of Appeal (Svea hovrätt) alleging, inter alia, procedural

irregularities. By decision of 22 March 1988 the Court of Appeal

quashed the District Court's decision, released the accused and

referred the case back to the District Court for a new trial.

In the new trial, the prosecutor added the accusation that the

applicant had committed aggravated assault (grov misshandel) against

C.C. and had injured her so gravely as to cause her death (grovt

vållande till annans död). The prosecutor requested the hearing of

several witnesses to prove that the applicant and T.A. were responsible

for the cutting-up of the corpse as well as written evidence, including

several medical opinions concerning in particular the manner in which

the corpse had been cut up and what conclusions could be drawn

therefrom as to the manner in which C.C. was killed, and the motives

behind the killing. At the District Court's request the National Board

of Health and Welfare (socialstyrelsen) also presented an opinion on

this last point.

The District Court, sitting in an entirely new composition, held

a trial hearing in the case on 30 May 1988. Several witnesses and

experts were heard.

The accused denied that they had anything to do with the alleged

crimes.

In its 67-page judgment of 8 July 1988 a unanimous District Court

acquitted both the applicant and T.A.. In its reasons the Court stated,

inter alia:

(translation)

"When considering all the evidence ... the Court finds it

established beyond reasonable doubt that the two doctors

..., about whom C.C. has spoken with the witness M.S., are

identical with [the applicant] and T.A. ... and that [they]

together ... cut up the body of C.C. at Whitsun 1984.

As has been emphasised by the [medical experts], it has not

been possible to ascertain what injury caused C.C.'s death,

even if the fact that the body has been cut up strongly

indicates that she was killed. According to [the examining

pathologist] the way in which the body was cut up indicates

a sex murder.

...

The fact that the body was cut up strongly indicates that

C.C. was killed. The way in which the cutting-up was

performed is further indication of this. That she was

strangled is suggested by what C.C. told [the witness M.S.]

about her treatment at her meetings with the [two doctors

in question] and by the fact that the neck and the head

were cut off and have not been found.

Thus, many circumstances strongly indicate that C.C. was

killed [in accordance with what the prosecutor alleges].

However, the Court does not find that the examination of

the case has provided sufficient evidence to permit the

Court to find beyond any reasonable doubt ("utom varje

rimligt tvivel") that this was really so. Therefore, [the

applicant] and T.A. cannot be convicted of the [crimes in

question].

...

The prosecution's case is therefore dismissed.

...

For the sake of completeness, it should be added that the

cutting-up of C.C.'s body by [the applicant] and T.A. is to

be regarded as "desecration of the grave" ("brott mot

griftefrid"). However, the prosecutor has not indicted them

for this act, for which the time-limit for prosecution

expired during the summer of 1986."

The Court accordingly found that the indictment had to be

rejected and decided that the State should bear all costs.

On 19 July 1988 the applicant appealed against the judgment to

the Svea Court of Appeal, claiming that the Court of Appeal should

quash the final remark in the reasoning in the judgment concerning

"desecration of the grave".

In a decision of 30 September 1988 the Court of Appeal rejected

the appeal, stating, inter alia, the following:

(translation)

"The prosecution against T.A. and [the applicant] has been

rejected on all points by the District Court. The appeal

concerns the statement of the District Court, under the

heading "reasons" ("domskäl"), that it is established

beyond any reasonable doubt that they together cut up the

body of C.C. and that this is to be qualified as

"desecration of the grave". This statement does not mean

that they are convicted of that crime. They have, however,

alleged that the judgment will produce legal effects

("rättsverkan") in connection with the question of a

withdrawal of their licences to practise as doctors. [The

applicant] has in addition alleged that the judgment might

be used as evidence in proceedings for damages against him.

According to case-law a party does not have the possibility

of appealing against a judgment when the conclusion of the

judgment is in his favour. This is the rule even when the

party is of the opinion that the reasons relied upon by the

court are incorrect. This means for example that the party

will not be entitled to lodge any appeal either when the

reasons are insulting for the party or when the judgment

might be prejudicial to him as evidence in other

proceedings [reference to doctrine].

In the opinion of the Court of Appeal this should also

apply when a party who has been acquitted because of the

application of a statute of limitation appeals against the

judgment in order to be acquitted on the ground of

innocence. This is, however, not the situation in the

present case. As the District Court pointed out there was

no prosecution concerning the statute-barred action which

the District Court described as "desecration of the grave".

It is true that this declaration was not necessary in order

to justify the acquittal. However, not even this

circumstance gives the appellants the right to appeal

against the judgment."

The applicant and T.A. appealed to the Supreme Court (Högsta

domstolen), which on 12 January 1989 refused to grant leave to appeal.

Relevant domestic law

The crime "desecration of the grave" is defined in Chapter 16,

Article 10 of the Penal Code (brottsbalken):

(translation):

"A person who, without authorisation, moves, or injures or

infamously treats the corpse or ashes of a dead person,

opens a grave or otherwise inflicts damage on or abuses a

coffin, urn, grave or other resting place of the dead or a

tombstone, shall be sentenced to pay a fine or to

imprisonment not exceeding six months for desecration of

the grave."

COMPLAINTS

The applicant complains of the fact that the District Court

stated in the reasons of its judgment that he had cut up the body of

C.C. and that this was to be regarded as "desecration of the grave" -

a criminal offence - although he was not prosecuted for such an offence

for which the time-limit for prosecution had moreover expired. He

invokes Article 6 paras. 1 and 3 (c), (d), (e) of the Convention.

Invoking the same provisions, he complains that he did not get

a fair trial at the District Court: he is "99 per cent deaf" and could

therefore not follow the trial properly; furthermore the District Court

had not been an impartial tribunal.

He also alleges a breach of Article 2 of Protocol No. 7 to the

Convention as he could not have the judgment of the District Court

reviewed by a higher tribunal.

Finally, the applicant complains that the District Court's

decision to detain him on remand was based on a police report

containing erroneous information. He alleges a violation of Article 5

para. 2 of the Convention.

THE LAW

1. The applicant alleges several violations of Article 6

(Art. 6) of the Convention on the ground that the District Court stated

in the reasons of its judgment that he had cut up the body of C.C. and

that this was to be regarded as a criminal offence, "desecration of the

grave", despite the fact that he was not prosecuted for such an offence

for which the time-limit for prosecution had moreover expired.

The Commission considers that the complaint at issue should be

examined under the second paragraph of Article 6 (Art. 6), which reads:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission recalls that the presumption of innocence

enshrined in Article 6 para. 2 (Art. 6-2) of the Convention may be

violated if a judicial decision amounts in substance to a determination

of the accused person's guilt without that person having previously

been proved guilty according to law and in particular without his

having had an opportunity to exercise the rights of the defence (Eur.

Court H.R., Minelli judgment of 25 March 1983, Series A no. 62, p. 18,

para. 37; mutatis mutandis, Eur. Court H.R.,

Lutz/Englert/Nölkenbockhoff judgments of 25 August 1987, Series A no.

123, p. 25, para. 60, pp. 54-55, para. 37, and p. 79, para. 37,

respectively).

The Commission also recalls that the reasoning in a decision or

judgment forms a whole with, and cannot be dissociated from, the

operative provisions (Eur. Court H.R., Adolf judgment of 26 March 1982,

Series A no. 49, p. 18, para. 39). Therefore, even though the judgment

of the District Court clearly stated that the indictment was rejected,

the Commission nevertheless has to examine the reasoning of that

judgment in respect of the complaint.

As regards the District Court's finding that it was "beyond any

reasonable doubt" that the applicant together with T.A. "cut up the

body of C.C. ...", the Commission observes the following.

In the absence of any witnesses to C.C.'s death and considering

that the corpse's head and neck - where the lethal wounds were alleged

to have been located - were missing, a large part of the evidence

adduced by the prosecutor concerned the extent to which the applicant

and T.A. could be linked with the cutting-up of C.C.'s corpse and

related to the circumstances of the cutting-up of the corpse and to

what conclusions could be drawn from these as regards the manner in

which she was killed and the motives behind the killing. Also the

District Court found these factual circumstances to be of great

importance for assessing whether or not the applicant was guilty of the

crimes with which he was charged. Without going into the national

courts' assessment of this evidence (cf. Eur. Court H.R., Kostovski

judgment of 20 November 1989, Series A no. 166, p. 19, para. 39, with

further references), the Commission finds that the District Court's

impugned findings can be considered to be a relevant part of the

Court's evaluation of the evidence presented in the case against the

applicant.

The District Court's final remarks that "the cutting-up of C.C.'s

body" was "to be regarded as 'desecration of the grave'" were, as the

Court of Appeal stated in its decision of 30 September 1988, not

necessary for motivating the acquittal. However, when scrutinising

these remarks the Commission finds that they can be regarded as a mere

clarification of the legal consequences of the Court's findings as

regards the relevant facts. By these remarks, the District Court did

not find that the applicant was guilty of any offence.

Moreover, the applicant was totally acquitted in the operative

part of the judgment and the costs for the proceedings were to be borne

by the State. Thus, no penalty or other measure that could be equated

with a penalty was imposed on the applicant (cf. Eur. Court H.R., Lutz

judgment of 25 August 1987, Series A no. 123, p. 26, para. 63).

The Commission therefore concludes that the judgment of the

District Court did not amount to a breach of the presumption of

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

Convention.

The Commission has also examined the present complaint in the

light of the other provisions of Article 6 (Art. 6) invoked by the

applicant but has found no indication of a violation of any of these.

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. The applicant also complains under Article 6 (Art. 6) that he did

not get a fair trial because he was deaf and could not follow the

proceedings properly. He furthermore maintains that the District Court

was not an impartial tribunal.

The Commission first notes that the applicant's complaints about

the manner in which the first proceedings before the District Court

were conducted resulted in the Court of Appeal ordering, on 22 March

1988, the applicant's release from detention and the referral of the

case to the District Court for a new trial. The applicant can

accordingly not now claim to be a victim, within the meaning of Article

25 (Art. 25) of the Convention, of any violation of his right to a fair

trial before an impartial tribunal in these first proceedings before

the District Court.

As regards the new proceedings before the District Court, which

sat in an entirely new composition, the Commission is not required to

decide whether or not the facts alleged by the applicant disclose any

appearance of a violation of this provision as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The applicant has not shown that he has raised, either in form

or in substance, any of the above-mentioned complaints in these

proceedings. Moreover, an examination of the complaints, as they have

been submitted, does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from raising his

complaints in the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and that these complaints

must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

3. The applicant also complains that he could not have the judgment

of the District Court reviewed by a higher tribunal. He invokes Article

2 of Protocol No. 7 (P7-2) to the Convention, which in its relevant

parts reads:

"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 Commission first notes that Protocol No. 7 entered into force

on 1 November 1988 as regards Sweden. The judgment of the District

Court of 8 July 1988 and the decision of the Court of Appeal of

30 September 1988, were thus prior to the entry into force of Protocol

No. 7 with respect to Sweden. The decision of the Supreme Court was,

however, taken on 12 January 1989 which is after the Protocol's entry

into force.

The Commission does not find it necessary to examine the issue

whether this complaint is incompatible with the Convention ratione

temporis as, even assuming that the provision in question applies to

the present case, the complaint is nevertheless inadmissible as the

applicant cannot be said to have been convicted or sentenced, within

the meaning of this Article, by the judgment of the District Court.

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.

4. The applicant finally complains that the District Court ordered

his detention on remand on the basis of police reports containing

incorrect information. He invokes Article 5 (A.art. 5) of the

Convention.

On this point the Commission notes the following. The applicant

was detained on remand by the District Court on 2 November 1987. His

release was ordered on 22 March 1988. The application was submitted to

the Commission on 20 June 1989.

In these circumstances the Commission is not required to decide

whether or not the complaint discloses any appearance of a violation

of the Convention as, in accordance with Article 26 (Art. 26) of the

Convention, the Commission finds that the "final decision" regarding

the applicant's complaint must have been taken at the latest on 22

March 1988 which is more than six months before the date on which the

complaint was submitted to the Commission. It follows that this part

of the application must be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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