Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13904/88

by K. J.

against Sweden

The European Commission of Human Rights sitting in private on

6 September 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

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 1 March 1988

by K.J. against Sweden and registered on 2 June 1988 under

file No. 13904/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen, born in 1948 and resident

at Rönninge. He is currently serving a prison sentence at Norrköping.

On 7 August 1987 the Stockholm District Court (tingsrätt)

ordered, in his absence, that the applicant be taken into custody on

suspicion of having committed serious smuggling and narcotics offences.

On 17 September 1987 the applicant was arrested and on

23 September brought before a judge who ordered that the applicant

remain in detention.

On 29 September 1987 the applicant was transferred from

Stockholm to Visby situated about 400 km from Stockholm on the island

of Gotland, where he was kept in detention.

On 16 December 1987 the Stockholm District Court refused to

release the applicant. The hearing which preceded the decision was

held in camera in the jail, where the applicant was held at Visby.

The applicant appealed to the Svea Court of Appeal (Svea hovrätt)

which rejected the appeal on 23 December 1987 without a hearing. On

15 January 1988 the Supreme Court (högsta domstolen) refused leave to

appeal.

The applicant remained in detention on remand at Visby

until April 1988.

On 27 May 1988 the District Court convicted and sentenced the

applicant to 12 years' imprisonment. This judgment was, in essence,

confirmed by the Svea Court of Appeal on 23 September 1988.

The applicant was defended by a lawyer whose office was in

Stockholm. During the period the applicant was detained at Visby his

defence counsel visited him about ten times and on these occasions he

attended the applicant's interrogations by the police and the public

prosecutor. However, there was no time for the applicant to discuss

in private with his counsel.

COMPLAINTS

1. The applicant complains that he has been hindered in

the preparation of his defence on the ground that his defence counsel

was in Stockholm whereas the applicant was placed in detention at

Visby. He invokes Article 6 para. 3 (b) of the Convention.

2. The applicant also alleges a violation of Article 6 para. 1 of

the Convention on the ground that the hearing which preceded the

decision of 16 December 1987 was held in camera.

THE LAW

1. The applicant complains of a violation of Article 6 para. 3

(b) (Art. 6-3-b) of the Convention on the ground that he could not

prepare his defence properly.

Article 6 paras. 1 (Art. 6-1) and 3 (b) (Art. 6-3-b) of the

Convention read, insofar as relevant:

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

him, everyone is entitled to a fair ... hearing by a

... tribunal ...

...

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; ..."

The applicant contends that his defence was hampered because

his legal counsel worked in Stockholm whereas he was detained at

Visby. He supposes that his transfer from Stockholm to Visby had no

other explanation but to make his contacts with his counsel more difficult.

He further contends that his counsel's visits to Visby were filled

with interrogations by the police and that no time was left for them to

discuss in private.

The Commission recalls that the applicant was arrested on 17

September 1987 and that the District Court delivered judgment on 27

May 1988. The applicant was held in detention on remand during this

period and from 29 September 1987 to April 1988 he was held in a jail

at Visby. It appears that during the period the applicant was held at

Visby his legal counsel visited him ten times. Having regard to the

time which elapsed between the applicant's arrest and the trial and

the contacts which took place between the applicant and his counsel

during that period, the Commission finds no indication that the

applicant did not have sufficient time and facilities to prepare his

defence.

It follows that, in this respect, the application is

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

(Art. 27-2) of the Convention.

2. The applicant also alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention on the ground that no public hearing was

held before the District Court when, on 16 December 1987, it decided

not to release the applicant.

The Commission recalls that Article 6 para. 1 (Art. 6-1)

applies to "the determination... of a criminal charge" against the

individual concerned. However, the proceedings of which the

applicant complains did not determine any criminal charge against

the applicant. They only related to the question whether the

applicant should remain in detention on remand. Article 6 para. 1

(Art. 6-1) was therefore not applicable to those proceedings.

It is true that Article 5 para. 4 (Art. 5-4) of the Convention

entitles everyone who is deprived of his liberty to take proceedings

by which the lawfulness of the detention shall be decided. Although

Article 5 para. 4 (Art. 5-4) contains certain procedural guarantees

to the detainee (cf. Eur. Court H.R., Weeks judgment of 2 March 1987,

Series A no. 114, pp. 31-32, paras. 65-66) it does not go so far as

guaranteeing the publicity of the hearing before the court (cf. Eur.

Court H.R., Neumeister judgment of 27 June 1968, p. 43, para. 23).

Consequently, there is no appearance of a violation of Article

6 para. 1 (Art. 6-1) or Article 5 para. 4 (Art. 5-4) of the Convention

in this respect.

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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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J. v. SWEDEN

J. v. SWEDEN

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