Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11274/84

by A.

against Sweden

The European Commission of Human Rights sitting in private

on 10 July 1989, 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

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 16 October 1984

by A. against Sweden and registered on 3 December 1984 under file

No. 11274/84;

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 25 October 1988 and the observations submitted in reply

by the applicant on 27 April 1989.

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a Swedish citizen, born in 1944. He is an

engineer by profession and resides at Torsås, Sweden.

A. Particular facts of the case

On 26 February 1983 the applicant was stopped by the police

while driving a tractor on a highway (motortrafikled) restricted to

certain types of vehicles, not including a tractor. The applicant

was charged with a violation of Sections 139 and 144 of the Traffic

Ordinance (vägtrafikkungörelsen) but, although he admitted the factual

circumstances, he contested having violated any laws.

The case was therefore brought before the District Court of

Ronneby (Ronneby tingsrätt). Before this Court the applicant

requested the hearing of one of the policemen who had stopped him as

well as the production of the official weather reports concerning the

period in question. Finally he asked the Court to appoint a defence

counsel under the legal aid system since he was without sufficient

means.

On 8 June 1983 the Court refused to appoint counsel, the

reason being that the case was very simple and that the applicant

could not be regarded as being in need of legal assistance in order to

be able to defend himself. The applicant appealed against this

decision to the Court of Appeal referring to the right to a fair trial

in the light of the fact that his "opponent" was a professional

prosecutor. On 20 June 1983 the Court of Appeal upheld the District

Court's decision. This decision was not subject to appeal.

The case against the applicant was heard by the District

Court on 21 September 1983. The applicant was heard as well as the

policeman named by the applicant. The Court, however, did not obtain

the official weather reports. After hearing the parties and after

evaluating the written evidence brought forward the District Court

found the applicant guilty of the charge brought against him and

sentenced him to pay a fine of 400 Swedish crowns. In its judgment the

Court stated as follows:

"Andersson has contested criminal liability and has made the

following statement: He was on his way from Hässleholm to

Torsås driving a tractor he had just bought. He had travelled

with his father to Hässleholm that morning and they had then,

i.a., travelled the same distance but in the opposite

direction. The mist had been very dense already in the morning

and Andersson made no special observations as regards the road

during the trip. He is unaware of the concept 'motortrafikled'.

When he arrived on the 'motortrafikled' west of Karlshamn, it

was so misty that he saw no road signs that called for his

attention. He was therefore unaware of the character of the

road he was driving on and even if he had noticed a road sign

indicating 'motortrafikled' he would not have known what

restrictions this would imply as regards traffic with certain

vehicles.

Police officer Roger Bjurbrandt has been heard as a witness

but has not given any substantive information except that the

weather was normal in the area of Ronneby without any signs of

mist.

Andersson - who was driving in the manner alleged by the

public prosecutor - drove a long distance by tractor and

should therefore have paid particular attention to the rules

applicable as regards the driving of such a vehicle. The fact

that the weather was misty does not relieve him from his

obligations as a driver. He shall therefore be convicted in

accordance with the charge against him."

The applicant appealed against this judgment to the Court of

Appeal for Skåne and Blekinge (Hovrätten över Skåne och Blekinge).

He maintained inter alia that the proceedings before the District

Court were "unbalanced" and that the judge interrupted him over and

over again, preventing him from submitting his statement as he found

appropriate. He also complained of the fine imposed.

In reply to this appeal the prosecution submitted a written

statement of 31 October 1983 in which it was maintained that the

applicant had violated the Traffic Ordinance. The prosecution

refrained from requesting the hearing of the policeman as a witness

and indicated that the case could be dealt with without a hearing

before the Court of Appeal. A copy of this statement was sent to the

applicant by the Court of Appeal together with a covering letter of

2 November 1983 stating that the case could be dealt with without a

hearing and that the applicant had two weeks to submit his statement

in reply to the observations made by the prosecution. In his written

observations of 9 November 1983 the applicant stated inter alia that

it would be of great interest to hear the policeman as a witness again

and to examine the weather reports. He furthermore requested that the

hearing be held at Karlskrona and preferably not on a Thursday.

Finally he requested free legal assistance since he needed it and

could not afford to pay for it himself.

The Court of Appeal gave judgment in the case on

10 February 1984. Before this Court there was no public hearing and

neither of the parties was present. In its judgment the Court stated:

"Court of Appeal judgment

The Court of Appeal upholds the District Court judgment.

The Court of Appeal rejects (the applicant's) request for

an appointed defence counsel.

Claims before the Court of Appeal.

(The applicant) has requested that the charges against

him be rejected. The prosecution objects to a change.

(The applicant) has furthermore requested the appointment

of a defence counsel.

The Court of Appeal's reasons

(The applicant's) rights before the Court of Appeal can

be secured without the appointment of a defence counsel.

From the photos submitted, it appears that the character as

a 'motortrafikled' of (the road in question) did appear from

appropriate and visible road signs at Stensnäs. For this

reason and since (the applicant) nevertheless drove the

tractor on (the road) from Stensnäs to Sörby he committed

the offence with which he was charged by the prosecution."

The applicant subsequently asked the Supreme Court (Högsta

domstolen) for leave to appeal against this judgment. In his request

he stated:

"The proceedings before the Court of Appeal were of a very

unbalanced character. The prosecution was free to submit

its arguments against the accused whereas the accused was

treated in a degrading manner. The proceedings before the

Court of Appeal did not comply with what is stipulated in

the human rights and freedoms. Since a judgment in Sweden

may be held against a person for the rest of his life it

would appear to be of great importance that the court

proceedings take place in a balanced manner and that every

person is treated equally."

The Supreme Court refused leave to appeal on 26 April 1984.

B. Relevant domestic law

The relevant penal provisions of the traffic legislation are

found in the Traffic Ordinance (1972:603). From Sections 139 and 144

it follows that tractors are not allowed on certain types of highways,

i.a. "motortrafikled". Persons violating these rules are, according to

Section 164, liable to pay a fine, at most 1.000 Swedish crowns.

Provisions regulating traffic signs are found in the Traffic

Sign Ordinance (1978:1001). In Section 24 sign 1.4.3 is featured. This

sign indicates where the "motortrafikled" begins. The same sign may

also, but need not, be used as an introductory sign, together with

another sign indicating how soon the "motortrafikled" begins.

The Code of Judicial Procedure (rättegångsbalken) does not

distinguish between "questions of facts" and "questions of law". There

are no rules restricting the scope of the proceedings in the courts of

appeal (or in the Supreme Court for that matter) in this respect.

Swedish appellate courts review criminal cases with respect to law as

well as with respect to the facts.

Chapter 51, Section 21 of the Code of Judicial Procedure

concerning the proceedings before the Court of Appeal read at the

relevant time:*

"Hovrätten äge utan huvudförhandling företaga mål till

avgörande, om talan av åklagaren föres allenast till den

tilltalades förmån eller talan, som föres av den

tilltalade, biträtts av motparten.

Har underrätten frikänt den tilltalade eller eftergivit

påföljd för brottet eller funnit honom vara på grund av

själslig abnormitet fri från påföljd eller dömt honom till

böter eller fällt honom till vite och förekommer ej

anledning till ådömande av svårare straff än nu sagts eller

att ådöma annan påföljd, må målet avgöras utan

huvudförhandling ..."

(translation)

"The Court of Appeal may decide the case without a hearing if

the prosecutor appeals only for the benefit of the accused or

if an appeal lodged by the accused is supported by the

opposing party.

The case may be decided without a hearing if the lower court

has acquitted the accused or discharged the offender or found

him to be exempted from punishment by virtue of mental

abnormality or if it has sentenced him to a fine or ordered

him to pay a money penalty (vite) and there is no reason to

impose a more severe sanction than those mentioned above or to

impose any other sanction ..."

Chapter 51, Section 25 concerning reformatio in pejus reads:

"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."

_______________

* This Section has subsequently been amended as from

1 July 1984. The amendment is, however, not relevant

to the present case.

(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 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 6 para. 1 of the Convention. He

maintains that the courts have not fulfilled the requirement to give

the accused a fair trial and that they have failed to consider

relevant arguments and evidence. He also feels that he has been

discriminated against. Finally he maintains that it has not been

proven that the offence in question has been committed by him

deliberately.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 October 1984 and

registered on 3 December 1984.

The Commission decided on 7 October 1985 to bring the

application to the notice of the respondent Government without,

however, inviting them to submit observations on the admissibility and

merits of the case, pending the outcome of application No. 10563/83,

Ekbatani v. Sweden, before the European Court of Human Rights.

The Court's judgment in the above case was pronounced on

26 May 1988 (Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A

no. 134), and the Commission then decided, on 9 July 1988, to request

the respondent Government to submit their observations on the

admissibility and merits of the case, having regard to this judgment.

The Government's observations were submitted on 25 October 1988.

On 3 November 1988 the applicant was granted free legal aid by

the Commission. On the same day the Government's observations were

sent to the applicant for his observations in reply. The time-limit

for submitting these observations was suspended awaiting clarification

of the applicant's legal representation. This question was settled on

31 January 1989 and the applicant's representative was asked to submit

his observations before 31 March 1989.

Disregarding this time-limit the applicant submitted his

observations on 27 April 1989.

THE LAW

1. The applicant has complained that, in an unfair procedure, he

was eventually convicted and sentenced by the Court of Appeal for

Skåne and Blekinge to pay a fine and he has referred to Article 6

para. 1 (Art. 6-1) of the Convention which reads as follows:

"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 interests

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."

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 of Ronneby 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.

This part of the application is accordingly manifestly ill-founded

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

Convention.

2. As regards the proceedings in the Court of Appeal the

Commission 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.

3. 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.

In this respect the Commission recalls that the right to

appeal does not feature among the rights and freedoms guaranteed by

the Convention. No provision of the Convention, therefore, requires

the High Contracting Parties to grant persons under their jurisdiction

an appeal to a Supreme Court. If a High Contracting Party makes

provision for such an appeal it is entitled to prescribe the rules by

which this appeal shall be governed and fix the conditions under which

it may be brought (cf. No. 3775/68, Dec. 5.2.70, Collection 31 p. 16;

No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101).

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 of the

Convention, before the Court of Appeal;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A. v. SWEDEN

A. v. SWEDEN

LEXI