Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13167/87

by Bengt WIKSTRÖM

against Sweden

The European Commission of Human Rights sitting in private

on 14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. 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 23 April 1987

by Bengt WIKSTRÖM against Sweden and registered on 24 August under

file No. 13167/87;

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 1942. He is a

mechanic by profession and resides at Helsingborg, Sweden.

On 8 January 1981 the applicant arrived by ferry to

Helsingborg. His car was taken out for inspection at the customs

control and four bottles containing 1.85 litres of alcoholic beverages

were found. The applicant was subsequently charged with a violation

of the Smuggling Act (varusmugglingslagen) and his case was heard in

the District Court (tingsrätt) of Helsingborg which pronounced

judgment in the case on 20 May 1981. The applicant was found guilty of

the charge brought against him and sentenced to pay a fine.

The applicant appealed against this decision to the Court of

Appeal of Skåne and Blekinge (hovrätten över Skåne och Blekinge) which

upheld the judgment on 9 September 1981. The applicant's application

for leave to appeal to the Supreme Court (högsta domstolen) was

rejected by the Court on 11 February 1982.

The applicant subsequently applied for a re-opening of his case

but his request was rejected by the Supreme Court on 2 December 1982.

On 23 September 1984 the applicant submitted a new request to

the Supreme Court in order to have his case re-opened. He maintained

that he had been convicted of smuggling contrary to domestic

legislation in that the act he had committed did not constitute a

criminal offence. His request to the Supreme Court was supported by

the Prosecutor General (riksåklagaren).

Nevertheless his request was rejected by the Supreme Court in

March 1987.

COMPLAINTS

The applicant invokes Article 7 of the Convention. He

maintains that he has been held guilty of a criminal offence on

account of an act which did not constitute a criminal offence under

national law at the time when it was committed.

THE LAW

The applicant maintains that he has been convicted of a

criminal offence contrary to Article 7 (Art. 7) of the Convention which reads:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a criminal

offence under national or international law at the time when it was

committed. Nor shall a heavier penalty be imposed than the one that

was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of

any person for any act or omission which, at the time when it was

committed, was criminal according to the general principles of law

recognised by civilised nations."

The Commission recalls, however, that, under Article 26 (Art. 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, and within a period of six months from the date on which the final

decision was taken.

In the present case the judgment, in which the criminal charge against

the applicant was determined, was pronounced by the Court of Appeal on 9

September 1981 and his request for leave to appeal against this judgment was

rejected by the Supreme Court on 11 February 1982. Subsequently the applicant

requested the re-opening of the proceedings but his requests were rejected by

the Supreme Court on 2 December 1982 and in March 1987 respectively.

The application to the Commission was introduced on 23 April 1987, i.e.

about a month after the Supreme Court had rejected his last request to have his

case re-opened but more than six months from the date of any other court

decisions taken in the present case.

It follows that the Commission can only deal with the applicant's

complaint if his petition for a re-opening can be considered a remedy within

the meaning of Article 26 (Art. 26) of the Convention, in which case the six

month period provided for in that Article should be calculated from the date of

the last decision of the Supreme Court in this respect.

The Commission recalls that it has the competence in every case to

appreciate in the light of the particular facts whether a remedy appears to

offer the possibility of effective and sufficient redress within the meaning of

the general recognised rules of international law in regard to the exhaustion

of domestic remedies and, if not, to exclude it from consideration in applying

the six month time-limit (cf. for example No. 12858/87, Dec. 3.5.88, to be

published in D.R.).

The Commission refers, however, to its extensive jurisprudence

according to which an application for re-trial or similar extraordinary

remedies cannot, as a general rule, be taken into account in the application of

Article 26 (Art. 26) of the Convention (cf. No. 10326/83, Dec. 6.10.83, D.R. 35

p. 218 with further references).

The Commission has not found any special circumstances in the present

case which would permit a different conclusion from its extensive jurisprudence

on the question of re-trials or similar extraordinary remedies. Consequently

the applicant's petitions for retrial did not constitute domestic remedies

under the generally recognised rules of international law and the rejection of

the applicant's request for re-opening by the Supreme Court in March 1987

cannot be taken into consideration in determining the final decision for the

purpose of applying the six month time-limit laid down in Article 26 (Art. 26).

Accordingly the present application, submitted to the Commission on 23

April 1987, has been introduced out of time. Furthermore, an examination of

the case does not disclose the existence of any other special circumstances

which might have interrupted or suspended the running of the six month period.

It follows that the application must be rejected under Article 27 para.

3 (Art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

Menu

WIKSTRÖM v. SWEDEN

WIKSTRÖM v. SWEDEN

LEXI