Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12631/87

by Hans FEJDE

against Sweden

The European Commission of Human Rights sitting in private

on 4 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 28 July 1986 by

Hans Fejde against Sweden and registered on 18 December 1986 under

file No. 12631/87;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 27 December 1988 and the observations submitted in reply

by the applicant on 13 July 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1927. He is a

businessman and resides at Västra Frölunda, Sweden. Before the

Commission the applicant is represented by Mr. Christer Arnewid, a

lawyer practising in Göteborg, Sweden.

A. The particular facts of the case

Subsequent to the death of the applicant's stepfather his

mother moved house. At that time the applicant owned a removal firm

for which reason he was in charge of the removal. Among the furniture

was a saloon rifle which eventually was stored together with other

furniture at the applicant's property.

After some years the applicant's removal firm went bankrupt

and among the inventory the saloon rifle was found. It appears that

this was brought to the attention of the local police which

investigated the case and subsequently charged the applicant with a

violation of the Firearms Act (vapenlagen). The case was heard in the

District Court (tingsrätten) of Göteborg on 27 August 1984 where the

applicant had the opportunity to address the Court. In its judgment of

the same day the District Court held as follows:

"(The applicant) has contested criminal liability and has made

the following statement: the weapon in question was owned by

RT, who was married to his mother. RT is dead. When (the

applicant's) mother moved house some ten years ago the weapon

ended up in (the applicant's) storage room together with

furniture for which there was no room in his mother's new

home. The weapon was found in the storage room in connection

with (the applicant's) bankruptcy. He was aware of the

weapon being there all the time but he did not think of it as

a weapon. The rifle lacks a breech-block and there was never any

ammunition. (The applicant) does not consider himself the owner

of the rifle since it is his mother, now 82 years old, who is

the formal owner of it.

The Court holds that (the applicant) cannot avoid being held

responsible for the possession of the weapon, but that the

violation of the Firearms Act is of a minor character.

Accordingly no other punishment but a small fine is required."

The applicant was fined 300 Swedish crowns and in its judgment

the District Court also decided to forfeit the rifle. In doing this

the District Court referred to an official record containing the

decision to seize the rifle. In this record the object seized was

described as follows : "one piece of bullet rifle, manufacture FN,

calibre 22 LR, manufacturing number 314741, breech-block missing.

Weapon in cover."

On 4 September 1984 the applicant appealed against the

judgment to the Court of Appeal for Western Sweden (hovrätten för

Västra Sverige). In his appeal the applicant maintained that the

police had not investigated the case properly, that new information

had appeared, that the judgment would have a negative effect on his

future life, that the Firearms Act had been misinterpreted and he

questioned whether he could at all be held responsible. In particular

the applicant pointed out that the owner of the rifle was a son of his

stepfather and not his mother and, secondly, he maintained that the

rifle could not be considered a weapon within the meaning of the

Firearms Act since the breech-block was missing. In respect of the

latter, he suggested to hear his mother and his brother as witnesses

in order to have established that the rifle was without a breech-

block.

On 23 October 1984 the applicant was informed by the Court of

Appeal that, according to Chapter 51, Section 21 of the Code of

Judicial Procedure (rättegångsbalken), his case could be dealt with by

the Court of Appeal without a main hearing. Therefore he was asked to

state whether or not he wanted such a main hearing and, if so, what

kind of evidence he would rely upon.

In reply to the above, the applicant informed the Court of

Appeal on 24 October 1984 that, since he was without means, he would

like the Court to appoint counsel and, furthermore, he concluded that

this of course also meant that a main hearing should take place with

the parties present. By letter of 15 February 1985 the applicant in

addition informed the Court of Appeal that he had been refused certain

jobs as attendant due to the fact that he had been found guilty by the

District Court. Accordingly he maintained that the case was no longer

to be considered as a trifle but that it was very important for him to

have his name cleared.

From notes made on the applicant's above letter by one of the

Court's officials it appears that the applicant was called by

telephone on 18 February 1985 and informed how the case would now

proceed. Furthermore it appears that the applicant, during a telephone

conversation on 4 March 1985, explained that he wished to have a

defense counsel appointed. The notes finally indicate that the

applicant did not maintain his request for the hearing of witnesses

since the question of the missing breech-block was no longer in

dispute.

By decision of 27 February 1985 the Court of Appeal refused to

appoint counsel for the applicant, finding no reasons to justify such

appointment. The applicant appealed against this decision to the

Supreme Court (Högsta domstolen) which, however, refused leave to

appeal on 19 June 1985.

In the meantime the applicant had received, on 6 March 1985, a

letter from the Court of Appeal informing him that, since the case

could be dealt with without a main hearing, he had ten days to submit

his final written submissions. On 11 March 1985 the applicant sent a

letter to the Court of Appeal in which he maintained, inter alia, that

the rifle could not be considered a weapon within the meaning of the

Firearms Act since it had no breech-block. He suggested that his

brother be heard as a witness in order to substantiate that the rifle

had never had a breech-block while in the applicant's possession.

In this letter the applicant also complained of the Court of

Appeal's refusal to appoint counsel. The respondent Government have

submitted that the Court of Appeal did not regard the submissions of

11 March 1985 by the applicant as final submissions in the case. They

were regarded as an appeal against the Court's decision of

27 February 1985 on the question of defense counsel. The respondent

Government submit therefore, that these submissions were forwarded to

the Supreme Court and did not form part of the case-file of the Court

of Appeal.

The case was examined by the Court of Appeal on 22 August

1985. On this day the Court of Appeal also decided that a main hearing

in the Court would be manifestly unnecessary and that the case

therefore could be dealt with without a main hearing in accordance

with Chapter 51, Section 21, first paragraph of the Code of Judicial

Procedure. It was decided that this decision should be made public on

the same day as the judgment was delivered.

On 2 October 1985 the Court of Appeal pronounced judgment in

the case. In the judgment the Court of Appeal stated:

"(The applicant) has submitted to the Court of Appeal the same

information as was mentioned in the judgment of the District Court

and added: When (his stepfather) and his mother separated (his

stepfather) forgot the rifle at the mother's place of

residence at Furuby. Since (the applicant's stepfather) has

died it is his son ... who now owns the rifle.

It is undisputed that (the applicant) has been in possession

of the rifle without a permit. Regardless of how it came into

his possession and who owns it, he shall therefore be

convicted for having violated the Firearms Act. The sentence

should be as determined by the District Court.

The Court of Appeal, which accepts (the applicant's)

information as to how the rifle came into his possession,

finds that he is at least not the owner of it. The question of

confiscation of the rifle accordingly concerns a person who is

not accused in this case. The question of confiscation should

be directed against the owner of the rifle in accordance with

Section 17 of the Act of 1946 concerning the promulgation of a

new Code of Judicial Procedure. This has not happened in the

present case. The request for confiscation is therefore

rejected."

The applicant appealed against the judgment to the Supreme

Court. In his request for leave to appeal, the applicant maintained

that he had not violated the Firearms Act since the rifle could not be

considered a weapon as it had no breech-block. He complained that the

lower courts had disregarded this vital information although he had

pointed it out in his submissions and although he had requested a

hearing in order to hear witnesses in this respect. Furthermore he

maintained that the conviction had had unforeseeable consequences for

him.

On 3 March 1986 the Supreme Court refused leave to appeal.

B. Relevant domestic law

The Firearms Act contains specific rules for the control of

the right to possess and acquire firearms and ammunition. According to

Section 5 of the Firearms Act the possession of firearms is prohibited

unless a permit to this end has been granted. In Section 1 a definition

of the concept of firearms is found. It is provided, inter alia, that

a firearm is a weapon which can fire a bullet, shot, harpoon or other

projectile by means of gunpowder, carbonic acid, compressed air or

other similar means. The Firearms Act also provides that the

provisions apply accordingly to certain separate parts of a weapon,

e.g. a breech-block or barrel, and to weapons which are unusable if

the weapon would count as a firearm had it been usable. Anyone who

intentionally possesses a firearm without a permit is, according to

Section 37 of the Act, liable to imprisonment for a maximum period of

two years. If the act has been committed by negligence, or if the

offence is of a minor character, the offender is liable to pay a fine

or to imprisonment not exceeding six months.

Violations of the Firearms Act are considered criminal

offences and the Code of Judicial Procedure is thus applicable. By

virtue of this Code judgments in criminal matters shall as a rule be

rendered after a main oral hearing. This rule applies to proceedings

in the lower courts as well as in appeal proceedings. Exceptions to

this rule exist however at the appellate level. Thus Chapter 51,

Section 21 of the Code of Judicial Procedure, as amended as from 1

July 1984, reads as follows in the relevant parts:

"Hovrätten får avgöra mål utan huvudförhandling,

1. om talan av åklagaren förs endast till den tilltalades förmån,

2. om talan, som förs av den tilltalade, biträtts av motparten,

3. om det är uppenbart att vadetalan är ogrundad, eller

4. om det inte finns anledning att döma den tilltalade till

ansvar eller att ådöma honom påföljd eller döma honom till

annan påföljd än böter eller villkorlig dom eller sådana

påföljder i förening.

...

Har i fall som avses i första stycket en part begärt

huvudförhandling, skall sådan hållas, om det inte är uppenbart

obehövligt.

...

För prövning som inte avser själva saken behöver

huvudförhandling inte hållas."

(translation)

"The Court of Appeal may rule an appeal without a main hearing,

1. if the prosecutor appeals only for the benefit of the

accused,

2. if an appeal brought by the accused is supported by the

opposing party,

3. if the appeal is plainly unfounded, or

4. if no reason exists to hold the accused legally liable, or

to impose a sanction upon him, or to impose a sanction other

than a fine or a conditional sentence, or a combination of

such sanctions.

...

If, in a case referred to in the first paragraph, a party has

requested a main hearing, such a hearing shall be held unless

manifestly unnecessary.

...

For a ruling not related to the merits a main hearing need not

be held."

Swedish appeal courts review criminal cases with respect to

law as well as facts. However, there are certain limitations to the

Court of Appeal's full jurisdiction. Chapter 51, Section 25 of the

Code of Judicial Procedure contains a prohibition against reformatio

in pejus in certain cases. This provision reads as follows:

"Ej må hovrätten i anledning av den tilltalades talan eller

talan, som av åklagare föres till hans förmån, döma till

brottspåföljd, som är att anse såsom svårare än den, vartill

underrätten dömt. Har den tilltalade av underrätten dömts till

fängelse, äge hovrätten förordna om villkorlig dom,

skyddstillsyn eller överlämnande till särskild vård, så ock

jämte villkorlig dom, skyddstillsyn eller överlämnande till

vård inom socialtjänsten döma till böter ävensom jämte

skyddstillsyn döma till fängelse enligt 28 kap. 3 §

brottsbalken. Har underrätten meddelat förordnande som nu

sagts, äge hovrätten döma till annan påföljd."

(translation)

"Upon an appeal lodged by the accused, or by the prosecutor for

the benefit of the accused, the Court of Appeal may not

sentence the accused to a criminal sanction more severe than

the one imposed by the lower court. If the accused was

sentenced by the lower court to imprisonment, the Court of

Appeal may order a suspension of sentence, probation or

placing under special care; in addition to suspension of

sentence and to probation or placing under care within the

social service, the Court of Appeal may impose a fine or

probation coupled with imprisonment, pursuant to Chapter 28,

Section 3 of the Penal Code. When the lower court has ordered

a sanction of the kind referred to above, the Court of Appeal

may impose a different kind of sanction."

COMPLAINTS

The applicant invokes Article 3 of the Convention, maintaining

that his conviction amounts to degrading treatment and punishment.

The applicant also invokes Article 6 of the Convention,

referring to "an impartial and public trial". In particular the

applicant maintains that his conviction simply followed standard

case-law and, with reference to Article 6 para. 2, he maintains that,

although he is innocent, he is now considered a criminal with the

result that he cannot get certain jobs. Furthermore, under Article 6

para. 3 (c), the applicant points out that he applied for, but was

refused, the assistance of counsel although he did not have the

necessary means to instruct one. Under Article 6 para. 3 (d) the

applicant refers to the fact that the witnesses, whom he wanted heard

in the Court of Appeal, were not heard.

Finally the applicant maintains, under Article 13 of the

Convention, that he did not have any effective remedy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 July 1986 and registered

on 18 December 1986.

The Commission decided on 7 October 1988 to bring the

application to the notice of the respondent Government, inviting them

to submit written observations on the admissibility and merits of the

case.

The Government's observations were submitted on 27 December

1988 and the applicant's observations in reply were submitted on

13 July 1989.

Free legal aid was granted to the applicant by the Commission

on 17 March 1989.

THE LAW

1. The applicant has complained that he has been subjected to

treatment contrary to Article 3 (Art. 3) of the Convention which reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

According to the case-law of the European Court of Human

Rights and that of the Commission, treatment will be considered

inhuman only if it reaches a certain degree of severity, causing

considerable mental or physical suffering. Furthermore, as for the

criterion "degrading treatment", the treatment itself will not be

degrading unless the person concerned has undergone humiliation or

debasement attaining a minimum level of severity. That level has to be

assessed with regard to the circumstances of the concrete case (cf.

for example, Eur. Court H.R., Ireland v. United Kingdom judgment of

18 January 1978, Series A no. 25).

Having regard to the above and to the submissions of the

applicant the Commission does not consider that the present

application discloses any appearance of a violation of Article 3

(Art. 3) of the Convention and 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 has further complained that, in an unfair

procedure, he was eventually convicted and sentenced by the Court of

Appeal for Western Sweden to pay a fine and he has referred to Article

6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention which read as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in

the interest of morals, public order or national security

in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

With regard to the judicial decisions of which the applicant

complains the Commission 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. The Commission refers, on this point, to its constant

case-law (see 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 pp. 31, 45).

Insofar as the applicant intends to complain about the

proceedings in the District Court the Commission has not found any

substantiated allegations in his submissions which could lead it to

conclude that the District Court proceedings were unfair within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention or that he was not

secured the right to be presumed innocent as guaranteed by Article 6

para. 2 (Art. 6-2) of the Convention. This part of the application is

accordingly manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. As regards the examination of the case by the Court of Appeal

the applicant has complained under Convention that he was refused legal

aid although he did not have the necessary means to instruct a lawyer.

Article 6 para. 3 (c) (Art. 6-3-c) provides:

"3. 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."

The Commission does not exclude that the applicant, whose

removal firm was bankrupt, had insufficient means to pay for legal

assistance and the only issue is therefore whether the interests of

justice required that he be granted legal aid before the Court of

Appeal.

The Commission recalls that the interests of justice cannot be

taken to require an automatic grant of legal aid whenever a convicted

person wishes to appeal after having received a fair trial at first

instance in accordance with Article 6 (Art. 6) of the Convention (see

e.g. Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,

Series A no. 115, p. 25, para. 67). Important factors when

determining this question include the severity of the sentence, the

personal ability of the applicant and the nature of the proceedings,

e.g. the complexity or importance of the issues or procedures involved

(cf. Granger v. United Kingdom, Comm. Report 12.12.88, para. 50).

Having regard to these elements and the applicant's

submissions the Commission finds that the case, as it stood before the

Court of Appeal, did not raise legal issues which the applicant could

not be expected either to comprehend or to present to the Court in the

procedure used by the Court of Appeal. In these circumstances, the

Commission finds that it has not been shown that the interests of

justice, within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention, required a grant of free legal assistance to the

applicant.

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. As regards the proceedings in the Court of Appeal the

Commission further recalls that the applicant did not get a public

hearing.

The Government have argued that the right to a hearing before

the Court of Appeal should be considered in the light of the

circumstances of the case as a whole which in this case would lead to

the conclusion that the applicant's rights under Article 6 (Art. 6)

were not violated.

The Commission has made a preliminary examination of the above

aspect and has found that it raises serious issues as to the

interpretation and application of Article 6 (Art. 6) of the Convention which

are of such complexity that the determination of these issues should

depend on a full examination of their merits. It follows that this

part of the application cannot be regarded as manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

5. The Commission has finally considered the applicant's

complaint under Article 6 (Art. 6) of the Convention insofar as he

intends to rely on this provision in regard to the Supreme Court's

refusal to grant him leave to appeal.

The Commission is of the opinion that, when a Supreme Court

determines, in a preliminary examination of a case, whether or not the

conditions required for granting leave to appeal have been fulfilled,

it is not making a decision relating to "civil rights and obligations"

or to a "criminal charge" (cf. No. 10515/83, Dec. 2.10.84, D.R. 40

p. 258). It follows that Article 6 (Art. 6) of the Convention does

not apply to the proceedings in which the Swedish Supreme Court,

without entering on the merits, refused the applicant leave to appeal

against the judgment of the Court of Appeal.

This part of the application is thus incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicant's complaint that he did not get a "fair

and public hearing" within the meaning of Article 6 (Art. 6) of the

Convention before the Court of Appeal;

DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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FEJDE v. SWEDEN

FEJDE v. SWEDEN

LEXI