Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15329/89

by Roland JOHANSSON and Martin OLSSON

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. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

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 20 January 1989

by Roland JOHANSSON and Martin OLSSON against Sweden and registered

on 1 August 1989 under file No. 15329/89;

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 applicants are Swedish citizens born in 1925 and 1922,

respectively, and resident at Borlänge. They are retired.

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

summarised as follows.

On 5 March 1984 the first applicant shot a protected elk

because he had found it starved and sick. Previously he had called

the police and without official inspection of the elk obtained

permission to shoot it. The second applicant was also present at the

shooting. The applicants on the same day informed members of the

local hunting association of the incident and subsequently made use of

the meat partly for human consumption and partly as dogfood.

On 25 September 1984 the applicants were arrested and

interrogated after the Chief Prosecutor I.D. of Borlänge in his

capacity as Secretary to the local hunting association had reported to

the police that, on the basis of an opinion from the National

Veterinary Institute (statens veterinärmedicinska anstalt) on the

elk's remains collected by members of the hunting association the

applicants had illegally shot a healthy elk. The first applicant was

fetched from his home by the police at 14.30, interrogated from

14.55 to 16.00 and arrested at 16.00. On 26 September 1984 from 16.20

to 17.05 he was again interrogated and at 18.30 he was released. The

second applicant was fetched from his home by the police at 10.15.

From 10.30 to 12.55 he was interrogated and at 13.00 he was arrested.

On 26 September 1984 from 10.30 to 12.10 he was again interrogated and

at 18.20 he was released. The first applicant's rifle was seized.

On 30 October 1984 the District Court (tingsrätten) of Falun

revoked the seizure, as the first applicant could not reasonably be

suspected of having committed an offence.

In October 1984 the first applicant was told by I.D. that

"something really bad could happen to him" if he involved the press in

the hunting case. The incident took place in the street during office

hours.

In connection with the investigation in September 1984 the

National Veterinary Institute was asked to give an additional expert

opinion. This was delivered in March 1985.

In March 1985 the applicants were excluded from the hunting

association.

On 30 September 1985 the District Prosecutor O.S. closed the

pre-trial investigation. Subsequently I.D. and the crime investigator

in charge of the case requested the Regional Prosecutor to review the

decision.

Following a re-opening of the pre-trial investigation as well

as re-interrogations and interrogations of new witnesses the Regional

Prosecutor on 13 February 1986 quashed the District Prosecutor's

decision and ordered another District Prosecutor to bring charges

against the applicants.

On 2 December 1986 the District Court convicted the applicants

of a gross hunting offence. They received suspended sentences and

fines. The judgment was given following a hearing and an inspection

of the scene of the incident. The applicants were represented by

official counsel. Nine witnesses were heard, six on the prosecutor's

behalf and three on behalf of the defence. The applicants alleged

inter alia that the elk's remains had been exchanged as part of a

conspiracy by members of the hunting association.

Following the judgment by the District Court and the

applicants' appeal a supplementary police investigation was carried

out on the scene of the crime. It appears from the judgment of the

Court of Appeal that as a result of that investigation an empty

cartridge was found. Subsequently, an opinion of the National

Laboratory of Forensic Science (statens kriminaltekniska laboratorium)

to that regard was submitted to the Court of Appeal.

On 28 April 1988 the Svea Court of Appeal (Svea hovrätt)

held a re-hearing of all witnesses heard by the District Court and

heard two new witnesses on behalf of the defence, one of whom was an

expert witness. On 11 May 1988 the District Court's judgment was

upheld.

On 3 October 1988 the Supreme Court (Högsta domstolen) refused

leave to appeal.

In June 1988 the applicants reported the pre-trial

investigation and the court proceedings to the Parliamentary Ombudsman

who in October 1988 dismissed the case as being out of time and

outside his competence.

COMPLAINTS

1. The applicants complain that they were unlawfully detained,

the detention decisions being influenced by I.D. in his double role as

Chief Prosecutor and member of the hunting association. They invoke

Article 5 para. 1 of the Convention.

2. The applicants further complain that they did not receive a

fair trial, as they were wrongly convicted by partial tribunals.

In particular, they were not informed about their right to a lawyer

during the interrogations in detention, the pre-trial investigation

was not objective, and the first applicant, his wife and the expert

witness were interrupted by the presiding judge during the hearing

before the Court of Appeal. Furthermore, because of their limited

incomes there was no equality of arms in the court proceedings. They

finally submit that the court decisions were not made within a

reasonable time. They invoke Article 6 paras. 1, 3 (c) and 3 (d)

of the Convention.

3. The first applicant further complains that he was deprived of

his right to freedom of expression, as he was warned by I.D. not to

involve the press in the case. He alleges that I.D. acted in his role

as Chief Prosecutor. He invokes Article 10 of the Convention.

4. The applicants finally complain that they could not obtain a

review by the Parliamentary Ombudsman of the alleged unlawful measures

taken in their case. They invoke Article 2 of Protocol No. 7 to the

Convention and Article 13 of the Convention.

THE LAW

1. The applicants complain that they were unlawfully detained, as

the detention decisions were influenced by I.D. in his double role as

Chief Prosecutor and member of the hunting association. They invoke

Article 5 para. 1 (Art. 5-1) of the Convention.

Article 5 para. 1 (Art. 5-1) of the Convention reads, insofar

as it is relevant:

"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:

...

(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; ..."

The Commission observes that the applicants' detention ended

on 26 September 1984, while their application to the Commission was

introduced on 20 January 1989, that is more than six months later.

Furthermore, an examination of the case does not disclose any

special circumstances which might have interrupted or suspended the

running of that period.

It follows that this part of the application has been

introduced out of time contrary to Article 26 (Art. 26) and must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicants further complain that they did not receive a

fair trial, as they were wrongly convicted by partial courts. They

also submit that they were not informed about their right to a lawyer

during the interrogations in detention, that the pre-trial

investigation was not objective, and the first applicant as well as

his wife and the expert witness were interrupted by the presiding

judge during the hearing before the Court of Appeal. They further

submit that because of their limited incomes there was no equality of

arms in the court proceedings, and that the court decisions were not

taken within a reasonable time. They invoke Article 6 paras. 1 and 3

(c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar

as it is relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair ... hearing within a

reasonable time by an independent and impartial tribunal

established by law..."

Article 6 paras. 3 (c) and 3 (d) (Art. 6-3-c, 6-3-d) of the

Convention read:

"Everyone charged with a criminal offence has the following

minimum rights:

...

(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;

(d) 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; ..."

(a) The Commission has first examined the complaints under

Article 6 paras. 1, 3 (c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the

Convention insofar as they pertain to the alleged wrong conviction and

the fairness of the proceedings, including the pre-trial

investigation.

The Commission first recalls that, in accordance with Article

19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention (e.g. No. 458/59, Dec 29.3.60, Yearbook 3 pp.

222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.

7987/77, Dec. 13.12.79, D.R. 18 p. 31, 45).

As a general rule, it is for the national courts, and in

particular for the court of first instance, to assess the evidence

before them. It must therefore be determined whether the proceedings

as a whole were fair, as required by Article 6 para. 1 (Art. 6-1) of the

Convention (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of

6 December 1988, Series A No. 146, p. 31, para. 68).

The Commission recalls that it is not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention as, under Article 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.

In the present case it has not been shown that the applicants,

either in form or in substance, submitted their above allegations of

unfairness to the domestic courts. They have, therefore, not exhausted

the remedies available to them under Swedish law. Moreover, an

examination of the case as it has been submitted does not disclose the

existence of any special circumstances which might have absolved the

applicants, according to the generally recognised rules of

international law, from exhausting the domestic remedies at their

disposal.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and the complaint

in this respect must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

(b) The Commission has secondly examined the complaint under

Article 6 para. 1 (Art. 6-1) of the Convention pertaining to the

length of the criminal proceedings. It recalls that the

reasonableness of the length of proceedings must be assessed in the

light of the particular circumstances of the case and having regard to

the criteria laid down in the case-law of the Convention organs, in

particular the complexity of the case, the conduct of the applicants

and that of the relevant authorities (Eur. Court H.R., Moreira de

Azevedo judgment of 23 October 1990, Series A No. 189, p. 18, para.

71, with further reference).

The Commission observes that the applicants were arrested on

25 September 1984 and released on the following day. On 30 September

1985 the District Prosecutor decided not bring charges against the

applicants. However, on 13 February 1986 the Regional Prosecutor

quashed that decision and ordered another District Prosecutor to bring

charges against the applicants. Following further pre-trial

investigations the District Court on 2 December 1986 held a hearing

following which the applicants were convicted and sentenced.

Following the applicants' appeal the Court of Appeal held a hearing on

28 April 1988. On 11 May 1988 the District Court's judgment was

upheld. On 3 October 1988 the Supreme Court refused leave to appeal.

The period in question seems rather long. The Commission in

that respect, however, notes that the applicants' case was not a

simple one, as was reflected by the fact that the District

Prosecutor's decision was quashed and the pre-trial investigation

re-opened. This was so in particular in regard to the establishment

of the facts, which necessitated inter alia expert opinions from the

National Veterinary Institute. Moreover, following the judgment by

the District Court a supplementary police investigation was carried

out on the scene of the crime. It appears from the judgment of the

Court of Appeal that as a result of that investigation an empty

cartridge was found. Subsequently, an opinion of the National

Laboratory of Forensic Science in that regard was submitted to the

Court of Appeal. Taking into account all the circumstances of the

case, which was dealt with in three instances, the length of the

proceedings cannot be considered to be in violation of Article 6 para.

1 (Art. 6-1) of the Convention.

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. The first applicant complains that he was deprived of his

right to freedom of expression in that he was warned by I.D. not to

involve the press in the case. He alleges that I.D. acted in his

role as Chief Prosecutor. He invokes Article 10 (Art. 10) of the

Convention which reads:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority and regardless of

frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

2. The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the

judiciary."

Assuming that I.D. expressed himself in the way maintained by

the applicant and that he did so in his capacity as Chief Prosecutor,

the Commission does not, however, find that this involved, in the

circumstances, an interference with the applicant's right under Article

10 (Art. 10) of the Convention.

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.

4. The applicants finally complain under Article 2 of Protocol

No. 7 (P7-2) to the Convention and Article 13 (Art. 13) of the

Convention that they could not obtain a review by the Parliamentary

Ombudsman of the alleged unlawful measures taken in their case.

(a) Article 2 of Protocol No. 7 (P7-2) to the Convention reads:

"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."

The Commission observes that the District Court's decision was

given on 2 December 1986. However, Protocol No. 7 to the Convention

entered into force with regard to Sweden on 1 November 1988.

It follows that the complaint in this respect is incompatible

ratione temporis with the provisions of the Convention.

(b) Article 13 (Art. 13) of the Convention reads:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission finds no appearance of a violation of Article

13 (Art. 13) 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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JOHANSSON ; OLSSON v. SWEDEN

JOHANSSON ; OLSSON v. SWEDEN

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