Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12254/86

by Tommy ASKLÖF

against Sweden

The European Commission of Human Rights sitting in private

on 2 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

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

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 2 July 1986 by

Tommy Asklöf against Sweden and registered on 9 July 1986 under file

No. 12254/86;

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 1952. He is a

student and at present he is serving a prison sentence at Ã…kersberga,

Sweden.

On 16 August 1984 an arrest warrant was issued against the

applicant on the ground that he was suspected of having committed grave

robbery and other offences. The applicant was subsequently arrested in

Copenhagen, Denmark, and he was extradited on 21 August 1984 to Sweden

where he was placed under arrest. On 24 August 1984 the question of

detention on remand was examined by the District Court (tingsrätt) of

Malmö. After hearing the parties and after an evaluation of the

material which was available at that stage of the investigation the

Court found that there was reason to suspect that the applicant had

committed, among other offences, fraud and grave robbery. Furthermore

the Court found that there was reason to believe that the applicant if

at large would abscond, commit new similar offences and impede the

investigation. For these reasons, and since the minimum punishment for

grave robbery was not less than two years' imprisonment, the Court

decided to detain the applicant on remand.

On 21 August 1984, a decision was taken to restrict the

applicant's right to receive visitors and to control his

correspondence and telephone communications. A further decision in

this respect was taken on 24 August 1984 when the applicant also

signed a document in which he gave his consent to control of his

correspondence. As from 5 November 1984 the said restrictions were

no longer in force.

On 9 October 1984 the applicant was charged before the

District Court with grave robbery, fraud, assault, drunken driving

and driving without a driving licence.

While the applicant was placed in detention on remand and

during the initial investigation of the case the applicant had several

telephone conversations with his officially appointed defence counsel

Mr. Lars Lundquist. It appears that during the first month of

detention the applicant could only use a telephone placed in a staff

room where the prison officers and others could listen to the

conversation. The applicant complained about this and it appears that

after approximately one month the applicant could, with the use of an

extension cord, call his counsel from the cell. The applicant does

not allege that his right to communicate confidentially with his

defence counsel was in any other way interfered with.*

___________________

* Chapter 21 Section 9 of the Swedish Code of Judicial Procedure

(rättegångsbalken) gives an officially appointed defence counsel an

absolute right to visit and communicate in private with the arrested

or detained person whom he defends. The Act concerning the treatment

of arrested and detained persons (lagen om behandling av häktade och

anhållna) provides for a similar right to confidential correspondence

with an officially appointed defence counsel (Section 9) and to

confidential telephone conversations with him (Section 12).

During the same period of the initial investigation of his

case the applicant, on 30 October 1984, sent a letter to the European

Commission of Human Rights. In accordance with the restrictions

placed on the applicant's correspondence the letter was sent to the

public prosecutor for scrutiny. On 1 November 1984 he decided that

the letter could be forwarded to the Commission. Having reached

France, however, it appears that due to insufficient postage the

letter was returned to the applicant, who received it approximately

three weeks later.

The applicant complained about this incident to the Chancellor

of Justice (justitiekanslern) maintaining that the letter had never

been sent to the European Commission of Human Rights. He also

complained of the period during which the police allegedly listened

to his telephone conversations with his defence counsel.

The applicant further states that during the preliminary

investigation certain confrontations between him and other persons, in

connection with the bank robbery which he was suspected of having

committed, were cancelled by the police, because they did not want his

lawyer, Mr. Lundquist, to be present. However, this problem was

finally resolved when the public prosecutor made it clear that Mr.

Lundquist naturally was entitled to be present at the confrontations.

The applicant's trial was held before the District Court of

Malmö on 2 November 1984. The Court heard the applicant, who was

assisted by counsel, as well as a number of witnesses. After an

evaluation of their statements as well as an evaluation of the written

material submitted the Court found the applicant guilty of the charges

brought against him and sentenced him to four years and six months'

imprisonment.

The applicant as well as the public prosecutor appealed against

this judgment to the Court of Appeal (hovrätten) on 23 November 1984.

The applicant requested the Court to acquit him of the robbery charge,

to consider the assault as being of a minor character and finally to

reduce the prison sentence imposed. On 21 December 1984, the Court of

Appeal, after a new oral hearing, increased the sentence to five years'

imprisonment.

On 12 or 13 December 1984, i.e. while the appeals were pending

before the Court of Appeal, the applicant was told that he was to be

transferred from the house of detention at Helsingborg to the Kumla

prison, which is a prison for convicted prisoners. He protested and

stated that there was no final judgment against him. He was then

overpowered by six to ten persons, handcuffed and brought by force to

Kumla. About ten days later the legal documents which he had kept in

his cell arrived, but some of the material was missing.

On 15 January 1985 the applicant asked the Supreme Court

(Högsta domstolen) for leave to appeal against the judgment of the

Court of Appeal. However, on 5 February 1985 the Supreme Court refused

to grant leave to appeal.

The Chancellor of Justice's investigation of the applicant's

complaints came to an end in April 1985. In his decision of 15 April

1985 the Chancellor of Justice stated as follows:

"According to Section 12 of the Act concerning the treatment

of arrested and detained persons (lagen om behandling av

häktade och anhållna), detainees have a right to phone

persons outside the place of detention insofar this can be

done without unnecessary disturbance. If necessary, due to

security measures or certain other circumstances, the

conversation shall be tapped. It is prohibited, however, to

listen to telephone conversations between the detained

person and his official defence counsel.

In this case the prison governor has submitted that the

telephone conversations were not tapped but supervised because

the conversations took place in a staff room. Even if it did

not amount to planned tapping, the system used meant that

the applicant could not talk with his defence counsel in

private. This cannot be considered as being in accordance

with the above-mentioned provision concerning the prohibition

against listening to telephone conversations between the

detained person and his defence counsel. The procedure,

which according to what has been submitted by the public

prosecutor may have been due to practical problems, has been

changed. I assume that one will not revert to the previous

procedure and thus I find no reason to pursue the matter

further."

Regarding the letter sent to the European Commission of Human

Rights the Chancellor of Justice stated as follows:

"The letter to the European Commission of Human Rights was

addressed to somebody other than a Swedish authority or the

defence counsel. Since the applicant was subjected to

restrictions in his mail the letter was checked by the

public prosecutor before it was sent. From the documents in

this case it appears that the letter was sent through the

public prosecutor's office on 1 November 1984. From the

copy of the letter which the applicant has submitted it

appears that the letter was postmarked at the post office of

Malmö 4 on the same day and at the post office of Malmö Ban

on 2 November 1984. Accordingly I cannot find support for

the allegation that the letter was never sent from the public

prosecutor's office or from Sweden. Neither do I find

support for the allegation that the stamps and the French

stamp which was subsequently attached to the letter were

fabricated by the public prosecutor. Why the letter has been

returned is not a question which I should pronounce myself

upon.

Accordingly I cannot find that anybody under my supervision

has acted wrongly while dealing with the applicant's letter

to the Commission."

COMPLAINTS

The applicant is of the opinion that his conviction cannot

be regarded as valid in view of the manner in which the public

prosecutor's office has handled the case brought against him. In

particular he refers to the fact that for a certain period of time the

police listened to telephone conversations between him and his defence

counsel. He refers in this respect to Article 6 paras. 1, 2 and 3 of

the Convention.

The applicant also invokes Article 25 of the Convention

maintaining that the letter addressed to the European Commission of

Human Rights was never sent from the prosecutor's office. Accordingly

the Swedish authorities prevented him from the effective exercise of

his right to contact the Commission.

THE LAW

1. The applicant has complained of the manner in which the

preliminary investigation has been conducted and has in particular

alleged procedural errors in regard to his telephone conversations

with his defence counsel and in regard to his correspondence with the

Commission. He states that he has been wrongly convicted and

sentenced after an incorrect trial.

With regard to the applicant's conviction and sentence 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).

The applicant complains, in particular, that for a period of

approximately one month he was unable to have private telephone

conversations with his defence counsel and that he was thereby denied

the right secured to him under Article 6 paras. 1, 2 and 3

(Art. 6-1, 6-2, 6-3) of the Convention.

The Commission notes that the right of a person who is

arrested or detained on remand to communicate confidentially with his

defence counsel is guaranteed by different provisions in Swedish law.

According to Chapter 21 Section 9 of the Swedish Code of Judicial

Procedure (rättegångsbalken) a defence counsel appointed ex officio to

defend the arrested or detained person has an absolute right to see

that person and to communicate with him in private. Moreover, Section

9 of the Act concerning the treatment of arrested and detained persons

provides that letters from the detainee to his officially appointed

defence counsel shall be forwarded without any control. Section 12 of

the same Act prohibits the listening to telephone conversations

between the detained person and his officially appointed counsel.

In the present case, however, it appears that for about a

month it was possible for prison staff or others to overhear telephone

conversations between the applicant and his lawyer, since the telephone

conversations took place in a staff room in the prison. The

Chancellor of Justice found that this was contrary to the above-

mentioned Section 12 but decided not to take any further action, since

the applicant had then already been provided with the necessary

facilities for having confidential telephone conversations with his

lawyer.

In these circumstances, and also having regard to the fact

that the applicant has not alleged that he had, contrary to Swedish

law, been denied the right to receive visits from his defence counsel

or to correspond with him in writing, the Commission cannot find that

his rights of defence in the criminal proceedings were prejudiced in

violation of Article 6 (Art. 6) of the Convention.

The Commission finds no indication that the applicant's rights

of defence had been violated in any other respect.

It follows that this part of the application is manifestly

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

the Convention.

2. Insofar as the applicant complains of an interference by the

Swedish authorities with the applicant's correspondence with the

Commission, it is recalled that, under Article 25 para. 1 (Art. 25-1),

second sentence, of the Convention, the High Contracting Parties who

have recognised the right of individual petition "undertake not to

hinder in any way the effective exercise of this right". The

Commission here notes that the Swedish Chancellor of Justice made

enquiries but that nothing emerged which could support the applicant's

allegations that a letter had not been sent to the Commission. The

Commission further notes that the applicant has been able to present

his case to it effectively. In these circumstances the Commission

concludes that it need not take any further action in respect of the

alleged interference with the applicant's effective exercise of the

right of individual petition within the meaning of Article 25 (Art.

25) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE and

DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE

ALLEGED INTERFERENCE WITH THE APPLICANT'S CORRESPONDENCE

WITH THE COMMISSION

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

Menu

ASKLÖF v. SWEDEN

ASKLÖF v. SWEDEN

LEXI