Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12613/86

by Jan-Ove THÖGERSEN

against Sweden

The European Commission of Human Rights sitting in private on

13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 3 November 1986

by Jan-Ove THÖGERSEN against Sweden and registered on 15 December 1986

under file No. 12613/86;

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 1956. He is a

student. At the time of the introduction of his application the

applicant was serving a prison sentence at the Skenäs Prison.

On 23 January 1985 the Göta Court of Appeal (Göta hovrätt)

convicted the applicant of gross robbery. He was given a sentence of

four years' imprisonment. The sentence commenced on 8 March 1985.

The applicant was given a regular leave from prison of short duration

from 6.50 a.m. on 30 April 1986 to 2.00 p.m. on 3 May 1986. Certain

conditions were attached to the leave.

From the minutes of an interrogation of the applicant on

5 May 1986 at the Skenäs Prison it appears that the conditions of the

applicant's leave were that he should stay at Hotel Åberg at Tranås

and that he was forbidden to consume narcotics or alcohol. He was to

be subjected to anti-alcohol treatment during the leave and, to get

information about the treatment, he was obliged to phone the prison at

2.00 p.m. on 30 April 1986. It was intended that he should visit the

District Nurse at Tranås the following two days to show that he took

Dipsan that had been given to him in prison. The applicant did not

phone the prison until 2 May 1986. He was then instructed to go to

the District Nurse. The applicant returned to the prison within the

fixed time-limit. A prison guard got the impression that the

applicant was not sober and a breath test confirmed this suspicion.

According to the personnel at Hotel Ã…berg the applicant had not been

staying there. The District Nurse had not seen him.

When interrogated the applicant stated that he had tried to

phone the prison several times in the hour set out without success.

He denied that he had been drinking alcohol during his leave. He

claimed that he had stayed at Hotel Ã…berg and that he had taken his

medecine alone as the nurse was not on duty.

On 5 May 1986 the Governor of the Skenäs Prison stated that in

his opinion the applicant had shown misconduct while on leave. He

referred the matter to the National Prisons and Probation Administration

(kriminalvårdsstyrelsen, hereinafter referred to as "NPPA").

On 16 May 1986 NPPA decided, under Section 39 of the 1974 Act on

Treatment of Prisoners (lagen om kriminalvård i anstalt), that the

first day and the last day (30 April and 3 May 1986) of the applicant's

leave should not be counted as days served by the applicant.

As a consequence of this, on 20 May 1986, a new decision on

the applicant's term of punishment was made by NPPA. In the

calculation made in the decision four days were added to the original

final date of the applicant's sentence. The dates 30 April and 3 May

1986 were specially mentioned as being the reason for the prolongation.

The last day of the applicant's sentence was decided to be 28 October

1988 and it was indicated in the decision that he would have served

half of his sentence on 28 October 1986 and two-thirds of it on

30 June 1987.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Jönköping against the decisions of NPPA. He

contested that he had shown misconduct while on leave. The Court

rejected the appeal on 5 September 1986 on the following grounds.

"According to Section 39 of the Act on Treatment of

Prisoners time spent outside the prison during a leave

should be considered as time spent serving the prison

sentence if no special circumstances militate against it.

From the documents in the case the following inter alia

appears. Thögersen was granted a regular leave from 30

April to 3 May 1986. As conditions for the leave it was

provided that he must not drink alcohol and he should

phone the prison on 30 April 1986 at 2.00 p.m. for

further information about an anti-alcohol treatment.

From the documents it appears that Thögersen did not

contact the prison until 2 May 1986. The reasons

Thögersen has given for this do not constitute an excuse for

contacting the prison as late as was done. In view of the

observations of the prison guard L and the breath test, the

Administrative Court of Appeal finds that, when Thögersen

returned to prison on 3 May 1986, his breath smelled of

alcohol. Thögersen thus failed to fulfil the conditions

provided for the leave. The National Prisons and Probation

Administration had reason not to consider 30 April and 3 May

1986 as forming part of the prison sentence served.

The term of punishment has been correctly calculated in the

decision on the term of punishment."

The applicant appealed to the Supreme Administrative Court

(regeringsrätten), which in a decision of 14 October 1986 refused to

grant leave to appeal.

The applicant was released from prison on 28 October 1986.

Relevant Domestic Law

In order to facilitate the reintegration of a prisoner into

society Section 32 of the 1974 Act on Treatment of Prisoners provides

that a prisoner may be granted permission to leave the prison for a

short period of time (korttidspermission). The condition is that

there is no manifest risk of continued criminal activity and no

considerable risk of some other kind of abuse. A leave of short

duration may also be granted if other special reasons exist.

Conditions considered to be necessary for short duration

leave, for example as to place of residence or obligation to report

during the leave, may be laid down. If strict supervision is required

it can be prescribed that the prisoner shall be under surveillance

during his leave.

According to Section 39 of the Act, time spent on leave is to

be considered as part of the time spent serving the prison sentence,

if no special circumstances militate against it.

The Act also contains provisions for disciplinary punishment

of prisoners who violate prison regulations or instructions, either

within the prison or outside the prison while under the supervision of

personnel employed by NPPA. Disciplinary punishment may according to

Section 47 be inflicted if there is no reason to assume that the

prisoner in question will abide by an instruction or an order or if

the breach is such that punishment is required for maintaining order

and security within the prison.

The disciplinary punishment can be either a warning or an

order that a certain period of time, not more than ten days, shall be

considered not to form part of the sentence served by the prisoner.

Time thus added to a prison sentence may never exceed forty-five days

in total.

A decision under Section 39 of the Act on Treatment of

Prisoners, that time spent on leave shall not be considered as time

served, is taken by NPPA. The Governor of a prison may decide on

disciplinary punishment under Section 47 but his decision should be

referred to NPPA for review. Appeals against the decisions of NPPA

can be lodged with the Administrative Court of Appeal and from there

to the Supreme Administrative Court.

When a prisoner has started serving his sentence, NPPA shall,

according to Section 20 of the 1974 Act on Determination of Terms of

Punishment (lagen om beräkning av strafftid), determine the last day

of the prison sentence. If a decision is subsequently taken under the

Act on Treatment of Prisoners, that a certain period of time should

not be considered as part of the sentence served by the prisoner, NPPA

shall add that time to the day previously determined and thus determine a

new final date of the prison sentence. The decision of NPPA can be

appealed to the Administrative Court of Appeal and from there an

appeal lies to the Supreme Administrative Court.

As a general rule Chapter 26 Section 6 of the Penal Code

(brottsbalken) provides that a prisoner sentenced to imprisonment for

a fixed period of time shall be released on probation after having

served half his sentence. As an exception to this rule it is laid

down in Section 7 that a prisoner sentenced to two years' imprisonment

or more, after being convicted of a serious crime directed against or

causing a risk for life or health, if there is a serious risk that he

will continue to commit the same kind of crime, must not be released

on probation until he has served two thirds of his sentence. When

a decision on release on probation is taken under Section 7, apart

from the risk for relapse into crime, the effects of a continued

deprivation of liberty for the prisoner, as well as his possibilities

for rehabilitation, should be taken into consideration. Decisions

under Section 7 are taken by the National Parole Board

(kriminalvårdsnämnden).

COMPLAINTS

The applicant complains that as a result of the decisions of

NPPA, the first of which according to the applicant was made under

Section 47 of the Act on Treatment of Prisoners, four days were added

to the sentence of imprisonment he was already serving. He claims

that his detention pursuant to those decisions was a deprivation of

liberty not covered by any of the exceptions to the right to liberty

set out in Article 5 para. 1 (a) - (f) of the Convention. He alleges

a violation of Article 5 para. 1 of the Convention.

THE LAW

The applicant complains that his detention pursuant to the

decisions of NPPA was a deprivation of liberty not covered by any of

the exceptions to the right to liberty set out in Article 5 para. 1

(a) - (f) (Art. 5-1-a-f) of the Convention. He alleges a violation of

Article 5 para. 1 (Art. 5-1) of the Convention, which, insofar as relevant,

provides:

"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:

a. the lawful detention of a person after conviction by a

competent court;

..."

Article 5 para. 1 (Art. 5-1) will only apply to the sanction

imposed by NPPA if that sanction constitutes a deprivation of liberty

within the meaning of Article 5 (Art. 5).

The Commission recalls the case of Campbell and Fell (cf.

Eur. Court H.R., Campbell and Fell judgment of 28 June 1984, Series A

no. 80 p. 38, para. 72) in which the Court found that Mr. Campbell's

forfeiture of remission (in total 570 days) was a sanction "that came

close to, even if it did not technically constitute, deprivation of

liberty". The Court also found that the legal basis for the detention

of Mr. Campbell was the original sentence of imprisonment. For other

reasons the disciplinary punishment imposed on Mr. Campbell was

considered to involve a criminal charge, making Article 6 (Art. 6) of

the Convention applicable in that case.

In the present case, the Commission recalls that the sanction

imposed on the applicant was that at most four days were added to the

time he had to serve in prison. According to the provisions on

release on probation laid down in the Penal Code, the applicant would

be released on probation after having served half or two-thirds of his

sentence of four years, and in fact he was released on 28 October 1986

after having served half of his sentence. Consequently, the effect of

adding four days to the term of the applicant's sentence did not bring

the detention beyond the period of four years authorised by the Court

of Appeal's judgment.

The Commission considers the sanction imposed on the applicant

by NPPA to be purely disciplinary. The sentence by the Göta Court of

Appeal was, even after the decision on disciplinary punishment, the

legal basis for the detention of the applicant. Consequently, the

entire detention of the applicant was justified under Article 5 para.

1 (a) (Art. 5-1-a) of the Convention.

The disciplinary sanction does not therefore result in a

separate deprivation of liberty within the meaning of Article 5 para.

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

It follows that the application must be rejected as being

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 of the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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THOGERSEN v. SWEDEN

THOGERSEN v. SWEDEN

LEXI