Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15513/89

by T.A.

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 RUIZ

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 3 July 1989 by

T.A. against Sweden and registered on 15 September 1989 under file No.

15513/89;

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 1949 and resident at

Stockholm. He is a medical doctor by profession. Before the Commission

he is represented by Mr. Bengt H. Nilsson, a lawyer practising in

Stockholm.

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

summarised as follows.

The criminal proceedings

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 6 October 1987 the applicant was arrested and later detained

on remand by the District Court suspected of having murdered C.C..

On 28 October 1987 another medical doctor, T.H., was also arrested,

suspected of having murdered C.C. together with the applicant. On

2 November 1987 the District Court (tingsrätten) of Stockholm ordered

the applicant's detention on remand.

On 18 January 1988 the public prosecutor brought an indictment

against the applicant and T.H. at the District Court. The prosecutor

claimed that they should be convicted of murder (mord) and alleged

inter alia:

(translation)

"[The applicant] and T.H. 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 having held 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.H. 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.H. 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.H. 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 new 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.H.. 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 T.H. and [the applicant] ... 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, T.H.

and [the applicant] 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.H. 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 [the applicant] and T.H. 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 that

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.H. appealed to the Supreme Court (Högsta

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

The administrative proceedings

In July 1988 the National Board of Health and Welfare requested

the Disciplinary Board of Health Care (hälso- och sjukvårdens

ansvarsnämnd) to withdraw the medical authorisations (läkar-

legitimationer) of the applicant and T.H. in view of what the District

Court had found established in relation to their responsibility for the

criminal offence "desecration of the grave".

On 23 May 1989 the Disciplinary Board of Health Care decided, on

the basis of the case-file from the District Court and observations

submitted by the National Board of Health and Welfare and by the

applicant and T.H., to withdraw the authorisations.

The decision stated inter alia:

"According to section 15 § 1 item 1 of the Act on supervision of

amongst others the medical and health care personnel (lag 1980:11

om tillsyn över hälso- och sjukvårdspersonalen m. fl.) an

authorisation to practise within the health or medical service

shall be withdrawn if the person concerned has shown himself or

herself clearly unsuited to practise.

On the basis of the written material submitted the Board finds

that both [the applicant] and T.H. have undermined the trust

which the general public is entitled to have in respect of an

authorised practitioner. They have hereby proved themselves to

be clearly unsuited to practise."

The applicant and T.H. appealed to the Administrative Court of

Appeal (kammarrätten) of Stockholm, which in a judgment of 6 October

1989 quashed the decision of the Disciplinary Board of Health Care and

rejected the claim to withdraw the authorisations.

The National Board of Health and Welfare appealed to the Supreme

Administrative Court (regeringsrätten).

On 11 June 1990 the Supreme Administrative Court decided to refer

the case back to the Administrative Court of Appeal for a new

examination of the case. In its decision the Supreme Administrative

Court stated, inter alia, that the appellants' authorisations could not

be withdrawn unless full and convincing evidence was provided

concerning the act underlying the request for the withdrawal. The

Supreme Administrative Court also stated that in order to withdraw the

authorisations in the case at issue, the appellants' responsibility for

the cutting up of C.C.'s body must be proved in the same way as was

required for conviction in criminal proceedings and that a mere

reference to the conclusions of the District Court would not be enough

in that respect.

There was a new hearing before the Administrative Court of

Appeal. The applicant and T.H. were present and represented by lawyers.

Several witnesses, some of them invoked by the applicant and T.H., and

experts were heard as well as the applicant and T.H. Written evidence

was also invoked.

In its 59-page judgment of 31 May 1991 the Administrative Court

of Appeal found, after having itself evaluated all the evidence in the

case, that "it was established beyond any reasonable doubt that [the

applicant and T.H.] have performed the cutting up [of the body]." It

accordingly upheld the decision by the Disciplinary Board of Health

Care to withdraw the authorisations.

The applicant and T.H. appealed to the Supreme Administrative

Court, which in a decision of 6 February 1992 refused 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 desacration of

the grave."

COMPLAINTS

The applicant complains that he was "convicted" by the District

Court as it had stated that it was established that he had cut up the

body of C.C. and that this constituted 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 furthermore

expired. He also complains of the fact that this conclusion was

considered of importance when his medical authorisation was withdrawn.

The applicant also complains that he could not have the judgment

of the District Court reviewed by a higher tribunal.

He does not invoke any particular Article of the Convention.

THE LAW

1. The applicant alleges that he was "convicted" by the District

Court as it had stated that it was established that he had cut up the

body of C.C. and that this constituted 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 furthermore

expired. He also complains of the fact that this conclusion was

considered of importance when his medical authorisation was withdrawn.

The Commission considers that these complaints 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 in the present case 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.H. "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 neck and head - 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.H. 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 finding 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 in itself amount to a breach of the presumption

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

Convention.

As regards the Administrative Court of Appeal's withdrawal of the

licence to practise as a doctor the Commission notes that this decision

was not based upon any assumption that the applicant had committed a

criminal offence or otherwise on the reasoning or findings of the

District Court. Instead it was based on a thorough and independent

evaluation of the correctness of the facts held against the applicant

in order to ensure that the standards for professional conduct had been

complied with.

The Commission, accordingly, finds that the manner in which the

revocation of the applicant's medical authorisation was eventually

carried out did not imply any violation of the presumption of innocence

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

It follows that this complaint is manifestly ill-founded within

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

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

of the District Court reviewed by a higher tribunal.

The Commission finds that this complaint falls to be considered

under 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.

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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T.A. v. SWEDEN

T.A. v. SWEDEN

LEXI