Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15328/89

by Anders CARLSSON

against Sweden

The European Commission of Human Rights sitting in private

on 6 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 June 1989 by

Anders CARLSSON against Sweden and registered on 1 August 1989 under

file No. 15328/89;

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 1942. He is

currently detained in institutional psychiatric care at Sundsvall. He

is a music producer by profession.

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

summarised as follows.

On 21 October 1988 the applicant was convicted of inter alia

murder by the District Court (tingsrätten) of Stockholm. The

applicant acted as producer for the rock band of which the murder

victim was a member. The applicant was found to have anesthetized and

cut his victim into pieces, which he had dropped in a river. He was

ordered to undergo psychiatric care.

In the river the police had found three plastic bags

containing pieces of a corpse, three empty plastic bags, a suitcase and

four pieces of a rubber foam mattress. On the pieces of the corpse the

police had found hairs which did not belong to the victim. The

autopsy showed traces of homosexual intercourse and diatyletic

(anesthetizing) substances.

In the proceedings before the District Court thirteen

witnesses were heard as well as the doctor who carried out the

autopsy. One of the witnesses heard was the complainant in a case in

which the applicant in 1981 had been convicted and sentenced for

having unlawfully threatened him (by knife and by attempting to

anesthetize him) to have sexual intercourse. The District Court

further had regard to an expert opinion on the skull of the victim, a

biological analysis of food eaten by the victim showing the probable

time of the murder, the results from a fingerprint examination of the

victim, as well as technical investigations carried out in the

applicant's flat showing traces of blood which could be excluded to be

his own, but could not be excluded to have been blood of the victim.

In particular, it was noted that the sub-group of the victim's blood

type was carried by only two per cent of the Swedish population.

Moreover, the District Court had regard to technical

investigations showing that the fibres found on the plastic bags could

have come from a bed frame and a rug in the applicant's flat.

Particles of foam rubber found in the back seat and the boot of the

car which the applicant had been renting at the time of the murder

could not be excluded to have come from the pieces of mattress found

in the river. Particles of foam rubber found on a rug in the

applicant's flat could have come from the same or a similar mattress.

Finally, some of the hairs found on the pieces of the corpse could not

be excluded to have come from the applicant.

In his appeal to the Svea Court of Appeal (Svea hovrätt) the

applicant requested that an opinion by a forensic psychiatrist of

2 September 1988 as well as previous opinions on his mental state and

a case book be reviewed by the Legal Board (rättsliga rådet) of the

National Board of Health and Welfare (socialstyrelsen). He further

requested that a medicolegal opinion as well as a forensic-chemical

opinion be reviewed by the Legal Board. He finally requested that

five new witnesses be heard, among others B.Ö., and that the statement

of one of the witnesses heard by the District Court not be allowed as

evidence.

By decision of 18 November 1988 the Court of Appeal decided to

hear two of the witnesses. As to the three remaining witnesses,

including B.Ö., the Court considered that the circumstances which the

applicant wanted to prove were of no importance in the case. The

remainder of the applicant's request was also rejected.

The Court of Appeal subsequently heard the applicant, the

doctor who carried out the autopsy, witness R.H. and the two new

witnesses. Transcriptions of statements of eight of the other

witnesses heard by the District Court were read out.

On 27 December 1988 the Svea Court of Appeal upheld the

judgment of the District Court.

On 27 January 1989 the Supreme Court (Högsta domstolen) refused

leave to appeal.

On 14 February 1990 the Supreme Court rejected the applicant's

request for a re-opening of the case.

On 14 March 1990 the Supreme Court rejected the applicant's

private action against the President of the Court of Appeal for being

partial when deciding the case, for having wrongfully dismissed

evidence referred to by the applicant and for wrongfully considering

certain other evidence.

It further appears from the file that on 23 November 1989 the

Prosecutor-General decided not take any action against the President.

In the ordinary proceedings before the domestic courts the

applicant was represented by official counsel.

COMPLAINT

The applicant complains that his right to have the witness

B.Ö. examined on his behalf has been violated. He alleges that B.Ö.'s

description of a car seen at the river where the pieces of the corpse

were found as well as his description of the driver of that car could

have shown that the murder was committed by R.H., another member of

the rock band. He invokes Article 6 para. 3 (d) of the Convention.

THE LAW

The applicant complains that his right to have the witness

B.Ö. examined on his behalf has been violated. He invokes Article 6

para. 3 (d) (Art. 6-3-d) of the Convention which reads:

"Everyone charged with a criminal offence has the

following minimum rights:

... to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;..."

The Commission recalls that there is no absolute right under

the Convention for a person charged with a criminal offence to have

witnesses examined on his behalf (No. 8417/78, 4.5.79, D.R. 16 p. 200).

The domestic courts have discretion to decide upon the relevance of

proposed evidence insofar as this is compatible with the concept of

fair trial (Eur. Court. H.R., Engel and Others judgment of 8 June 1976,

Series A No. 22, pp. 38-39, para. 91; Eur. Court H.R., Bricmont

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).

In the present case it has not been shown that the applicant's

allegation before the Commission that B.Ö. could have submitted

information relevant to the case was brought to the attention of the

Svea Court of Appeal or of the Supreme Court. Moreover, the applicant

requested that B.Ö. be heard as witness only before the court of the

second instance. The applicant has not submitted any explanation as

to why B.Ö. was not called as witness already before the court of the

first instance.

Even assuming that domestic remedies have been exhausted for

the purpose of Article 26 (Art. 26) of the Convention the Commission

observes that the District Court heard thirteen witnesses on

circumstantial evidence as well as the doctor who carried out the

autopsy of the victim. Moreover, it had regard to a substantial

amount of other circumstantial evidence. During the hearing before

the Svea Court of Appeal transcriptions of eight of the witnesses

heard by the District Court were read out. The applicant was further

allowed to have two new witnesses heard. During the whole of the

ordinary domestic proceedings the applicant was represented by

official counsel. Having regard to the court proceedings as a whole

there was an equality of arms between the prosecutor and the defence.

In view of the above considerations the Commission cannot find

any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) 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, 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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CARLSSON v. SWEDEN

CARLSSON v. SWEDEN

LEXI