The European Commission of Human Rights sitting in private on 13 May

1986, the following members being present:

                      MM. C. A. NØRGAARD, President

                          G. SPERDUTI

                          J. A. FROWEIN

                          F. ERMACORA

                          E. BUSUTTIL

                          G. JÖRUNDSSON

                          G. TENEKIDES

                          S. TRECHSEL

                          B. KIERNAN

                          A. WEITZEL

                          J. C. SOYER

                          H. G. SCHERMERS

                          H. DANELIUS

                          G. BATLINER

                      Mrs G. H. THUNE

                      Sir Basil HALL

Mr. H. C. KRÃœGER, 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 August 1984 by L.

against Sweden and registered on 31 August 1984 under file

No. 11121/84;

Having regard to:

-       the Commission's decision of 2 December 1985 to obtain from

the applicant supplementary information;

-       the information submitted by the applicant on 11 and 14

January and 10 April 1986;

-       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 German citizen, born in 1936.  He is an engineer by

profession and resides at Marschacht near Hamburg, Federal Republic of

Germany.  Before the Commission he is represented by Professor Hugo

Tiberg.

In July 1982 the applicant arrived at Karlskrona in the Swedish

province of Blekinge with his yacht Calypso, having a length of less

than 12 metres and a beam of less than 4 metres.

On clearing at the customs office, the applicant was given a brochure

in German and other languages stating the various military regulations

impeding the free movement of aliens in the area.  According to the

brochure and marked on an accompanying map, certain areas were

restricted areas, indicated with a red line, in which access was in

principle closed to aliens, while others were semi-restricted areas,

indicated with a blue line, accessible only during a specific maximum

period of time.  In a special part of the semi-restricted areas marked

on the map with blue shade, aliens were authorised to use vessels

having a hull of less than 12 metres and a beam of less than 4 metres,

also during a specific maximum period of time.

The text of the brochure read as follows:

ALIENS

__________ [red line] boundary for restricted area. Aliens and foreign

vessels may not stay in the restricted area without permission (see

below, however).

__________ [blue line] boundary for semi-restricted area. Aliens may

remain within the entire semi-restricted area without permission for a

maximum of three months per calendar year (citizens of Denmark,

Finland, Iceland or Norway, however, are permitted to remain within

the semi-restricted area indefinitely).  Foreign vessels with a length

of less than 12 metres and a beam of less than 4 metres may also

remain within the part of the semi-restricted area that is shaded blue

without permission for a maximum of three months per calendar year.

There are other regulations for larger vessels (see below).

___________ [green line] fairway which aliens and foreign vessels may

without permission use for direct passage, though without unnecessary

stops.  For direct passage, though without unnecessary stops, aliens

may also make use of the ferry route to Drottningskärs kastell when

participating in archipelago tours arranged by tourist organizations.

Place of sojourn where aliens and place for anchoring and mooring (but

not land mooring except where the anchorages border on land at Torhamn

and Kuggeboda) where aliens and foreign vessels may without permission

remain for a maximum of 72 consecutive hours, including the time used

for travelling through the restricted area and/or the semi-restricted

area to and from the place.

Right of sojourn in accordance with the above does not apply

respecting restricted objects which are restricted in accordance with

Art. 1-3 of the law dated 17th May 1940.

Within the restricted area and the semi-restricted area the limitation

on the right to take measurements, photographs, etc. apply.

Explosives are not permitted.

Further information is available from the police authorities or the

Commandant of the Defence Area.

From this text the applicant gathered that he might lawfully bring his

boat into an ordinary (non blue shaded) semi-restricted area, and

accordingly he sailed to the island of Tjärö, which was marked on the

chart as being semi-restricted, and which in the brochure was an area

which was not shaded blue and to which only the rule of a maximum

period of three months, in his opinion, should apply.  While at Tjärö,

however, the applicant was approached by a coastguard vessel, the crew

of which informed him that Tjärö was out of bounds for all foreign

vessels.  The applicant had been unable to understand this from the

brochure he had been given and had assumed that he was allowed to

bring his boat for three months in the same way as he might stay

personally or indeed bring a car.  However, he was informed that this

was not correct and that he could not bring his boat into any non blue

shaded semi-restricted areas at all.  He was taken to the police to be

interrogated.  He was there required to deposit 300 Swedish crowns and

required to sign a document according to which he authorised one of

the policemen to be his representative in the legal proceedings which

were to follow.  The applicant paid the deposit under protest, denied

having committed any offence and struck out a passage in the

authorising document according to which he confessed to the offence.

He was under the impression that unless he paid and signed he would

have been detained.

The applicant was subsequently charged with violating the Act on

Aliens of 1980, Chapter 96, section 1 in conjunction with the Order of

1976 concerning Protected and Controlled Areas.

The relevant parts of the 1976 Order read as follows:

Sec. 1.  For the protection of installations of importance to the

total defence there exist a restricted and a semi-restricted area.

Sec. 11.  An alien may stay without a permit for a maximum period of

three consecutive months annually within such parts of the

semi-restricted area as are indicated in annex 2 (1).

---------------

(1)  Annex 2 sets out in writing the boundaries

of the areas referred to.  These areas are indicated on the map

accompanying the brochure given to the applicant.

---------------

Sec. 13.  In the semi-restricted area an alien vessel may stay without

a permit for a maximum period of 72 consecutive hours within

specifically marked channels and anchoring areas as set out in annex

2.  This time period includes the time used for travelling through the

semi-restricted area to and from the place.

An alien vessel may without permission use such fairways within the

semi-restricted area as are indicated in annex 2.

Sec. 14.  An alien vessel with a length of less than 12 metres and a

maximum beam of less than 4 metres may in addition to what is provided

for in Sec. 13 without a permit stay for a maximum period of three

consecutive months during a calendar year within such parts of the

semi-restricted area as are indicated in annex 2.

The case was heard before the Karlshamn District Court where the

applicant was represented by a police inspector authorised by him

through the document he had signed.  After hearing the parties, the

Court found on 21 September 1982 that the provisions relating to

semi-restricted areas did indeed mean that a foreign vessel could not

enter the non blue shaded parts of such an area without a special

permit.  However, considering the unclear wording of the provisions

and that the applicant neither was nor should have been aware of the

fact that he violated the provisions, he was acquitted.

The prosecutor appealed to the Court of Appeal for Skåne and Blekinge

where the applicant was similarly represented by the police inspector.

The Court of Appeal confirmed the lower court's decision on 30 August

1983.  According to the Appeal Court the applicant had contravened the

rules of semi-restricted areas, but had done so in good faith and his

interpretation of the rules was excusable in view of the unclear

wording both of the relevant statute and of the brochure given to him.

The Court pointed out that the statute did not contain any clear

statement that access to the area was forbidden but that a prohibition

could only be elicited a contrario from that which was stated for

other areas not visited by the applicant.  The Court also found that

the blue shading of the less restricted areas, in combination with the

white - like the open sea - of the more restricted areas, was

misleading.

The prosecution appealed against the Court of Appeal judgment to the

Supreme Court.  Through the intervention of a Swedish sailors'

organisation the applicant was represented before the Supreme Court by

his present representative.  In its judgment of 13 March 1984 the

Supreme Court found the applicant guilty of the charge brought against

him and sentenced him to pay 15 day fines of 20 Swedish crowns.  In

its decision the Supreme Court wrote:

"In the introductory provisions of the Order concerning Protected and

Controlled Areas it is evident that the areas have been established in

order to protect installations of importance to the total defence.  In

certain parts concerning the two types of areas the Order contains

further rules as to the right of an alien and - in special sections -

alien vessels respectively to remain within places mentioned in annex

2 to the Order without permission for a specific maximum period of

time.  According to section 11 of the Order an alien (except nordic

citizens cf. section 12) may remain within such a part of the

controlled area as is mentioned in the annex for a maximum period of 3

months per calendar year.  Under the heading "Right of an alien to

remain in accordance with section 11 of the Order" the whole of the

controlled area concerning Blekinge is referred to in the annex.  With

regard to an alien vessel other rules apply in accordance with

sections 13 and 14 concerning a right to remain depending on the size

of the vessel ...  The part of Blekinge control area in which (the

applicant) was with his vessel according to the indictment does not

appear among (sections 13 and 14 of the Order).  As to the contents of

the Order it should finally be mentioned that according to section 17

aliens can be granted permission to remain within a controlled area

"longer or in another place" than mentioned in section 11.  Similarly

permission for stays other than mentioned in section 13 and 14 may be

granted to alien vessels according to section 18.

The rules mentioned above clearly indicate that an alien vessel may

not stay within a controlled area in other ways than expressly

mentioned.  (The applicant's) objection that the Order does not

contain any rule concerning such prohibitions as invoked by the

Attorney General cannot therefore be sustained.

It appears from (the applicant's) own statement that in fact he was

within the "white" part of the controlled area ... but that he thought

that in accordance with the rules he was entitled to remain there with

his boat for a maximum period of 3 months.  It appears that the

misunderstanding was due to the fact that (the applicant) considered

the right of an alien also to include the vessel of which he was the

skipper.  Neither the Order nor the summary of the Commander in Chief,

if read with proper care, support such interpretation.  The editorial

lay out of the summary in conjunction with the concentrated

information did indeed not make the text easy to understand.  Anyone

who has doubts may, however, request advice to obtain information."

COMPLAINTS

The applicant complains of violations of Arts. 6 (art. 6) and 7

(art. 7) of the Convention.

Under Art. 6 (art. 6) the applicant maintains that he was not given

the opportunity to defend himself through a representative of his own

choosing but was compelled to accept a person employed by the police.

This "representative" did not in reality defend him but only confessed

on the applicant's behalf.  Although he was eventually given

representation before the Supreme Court, the applicant maintains that

the absence of legal assistance from the start has impaired the

possibilities of a thorough presentation of his case before the

Supreme Court.

Under Art. 7 (art. 7) the applicant complains of having been convicted

by the Supreme Court on the basis of extensive and analogical

interpretation of penal law.  It must be required that the law of a

High Contracting Party contain a clear prohibition of the acts

intended to be criminalised.  The Swedish rules fall short of such a

requirement in several respects.

Firstly, the Order of 1976 does not contain any express prohibition at

all against entering into restricted or semi-restricted areas.  Its

introductory provisions state that there exist restricted and

semi-restricted areas for the protection of installations of

importance to the country's total defence.  The part of the Order that

deals with semi-restricted areas provides, in section 11, that an

alien may stay without permit for a maximum of three consecutive

months annually within such parts of the areas as are indicated on the

appended maps and this, in the case of the Blekinge semi-restricted

area, includes the entire area.  It is then stated in section 13 that

foreign vessels may stay without a permit for a maximum period of 72

consecutive hours within specifically marked channels and anchoring

areas.  Further, it is provided in section 14 that, besides what is

provided in section 13, foreign vessels having a length of less than

12 metres and a beam of less than 4 metres may stay without a permit

for a maximum period of three consecutive months during a calendar

year in the areas described as blue shaded (these do not include

Tjärö).

The applicant maintains that this regulation contains no express

prohibition against entering any of the areas such as must be required

for conviction according to the Convention, Art. 7 (Art. 7).  A

previous statute repealed by the 1976 Order provided in its

introduction that entry into restricted and semi-restricted areas was

permissible only on the conditions stated in the ensuing text, and the

applicant contends that such a statement is necessary to make the

prohibition envisaged by the 1976 Order effective.

Secondly, the applicant contends that even if Art. 7 (Art. 7) of the

Convention were not taken to require such express support in the law

for conviction of an accused but can be taken to allow criminalisation

on the basis of the general tenor of the relevant legislation, there

must at least be an express provision relating to the act of which the

defendant is accused.  When entering into the non blue shaded part of

the semi-restricted area at Tjärö, the applicant could not have found,

by studying the provisions relative to that area, that his boat's

access to that area was prohibited, but he would have had to study

what the statute provides for other areas and to draw a conclusion a

contrario from that.

Thirdly the applicant contends that the brochure which he had been

given ought to have clearly described the applicable provisions.

According to section 25 of the 1976 Order, the Commander in Chief must

issue this kind of brochure in foreign languages and in the case of

legislation of this kind, intended only for foreigners, this in

reality is the only practicable means for the addressees of getting

information.  Under such circumstances the presentation must be

required to fulfil the same requirement of clarity as a legal text,

and the applicant contends that the brochure falls seriously short of

that requirement, being so unclear as to be definitely misleading.  In

the first place, it sets out in map form the areas having various

characteristics, and for the type of area which the applicant was

visiting it only states that the entry of aliens is allowed for a

period of three months.  A sailor will consult the charts and other

documents relating to the course that he is following and it is not

natural or even advisable for him to scatter his concentration by

studying other areas.  In the second place the map does not even

properly delimit the semi-restricted areas, because where they adjoin

a restricted area they are not delimited by the prescribed blue line

and are thus in reality set out as an open sack.  In the third place

the colouring of the "freer" semi-restricted areas as blue shaded,

while the more restricted areas into which boats may not be taken is

white like the open sea, is misleading, as the Appeal Court has

pointed out.

The Supreme Court does not deny that there is no express prohibition

against entering the areas but states that the sense of the statute is

quite clear and appears from the Order's classification into rules for

"aliens" and rules for their "vessels", and that the same applies to

the brochure.  In this respect the applicant finds that this is clear

only to one who has become aware of the systematic arrangement of the

Order and brochure, and that this is precisely what the casual reader

in the applicant's situation has no means of seeing.  Moreover, the

Supreme Court's argument that the applicant might have availed himself

of the brochure's suggestion to inquire from the proper authorities

must be rejected as irrelevant, since the applicant had no cause to

doubt his reading of the text as allowing his boat's entry into the

Tjärö area.

The Attorney General has stated before the Supreme Court that it is

necessary for Sweden to protect her coasts, and that this necessitates

the conviction of persons in the applicant's situation. The applicant

does not deny the necessity for Sweden to defend her coasts, but he

contends that this does not relieve the legislator from the duty of

expressing himself clearly and does not relieve the Supreme Court from

the duty of applying penal law restrictively and without analogising

according to Art. 7 (Art. 7) of the Convention.

THE LAW

1.      The applicant has complained under Art. 6 (Art. 6) of the

Convention that he was not given the opportunity to defend himself

through a representative of his own choosing in the proceedings before

the District Court and the Court of Appeal.

It is true that Art. 6 (Art. 6) of the Convention secures to everyone

charged with a criminal offence the right to defend himself through a

representative of his own choosing.

In the present case it is also true that the applicant signed a

document according to which he authorised a policeman to be his

representative in the legal proceedings which were to follow.  This

did not, however, in any way debar the applicant from choosing another

lawyer if he had so wished.  He was, under Swedish law, at any time

free to engage a lawyer of his own choosing.  Furthermore according to

Chapter 49 Section 4 no. 1 of the Swedish Code of Judicial Procedure

the applicant could have appealed to the Court of Appeal against any

decision of the District Court refusing him to be represented by the

lawyer of his choice.  He could also have asked the Court to appoint a

lawyer ex officio and appealed according to Chapter 49 Section 4 no. 7

of the Code of Judicial Procedure against any decision of the District

Court rejecting such a request.

In these circumstances the Commission finds that an examination of

this complaint does not disclose any appearance of a violation of the

Convention and in particular of Article 6 (art. 6).  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 also complained under Art. 7 (Art. 7) of the

Convention, that he was convicted on the basis of extensive and

analogical interpretation of penal law which did not contain a clear

prohibition of the act committed.

The Commission has earlier dealt with the question of extensive

interpretation of criminal law, and its relevance under Art. 7 ,

para. 1 (Art. 7-1) of the Convention.  One case (Dec. No. 8490/79,

12.3.81, D.R. 22 p. 140) was declared admissible because the

Commission considered that the extensive interpretation of a certain

statutory provision, applied for the first time by the courts after

the commission of the acts of which the applicant was accused, could

raise an issue under this provision.  In another case brought against

the Federal Republic of Germany the Commission rejected a similar

complaint on the ground that the application of a specific article of

the Penal Code to certain facts had not gone beyond the limits of a

reasonable interpretation of the provision in question (Dec. No.

8866/80, 5.10.81, unpublished).

The Commission considers that in the area of the criminal law it is

excluded, by virtue of Art. 7 para. 1 (Art. 7-1) of the Convention,

that any acts not previously punishable should be held by the courts

to entail criminal liability, or that existing offences should be

extended to cover facts which previously clearly did not constitute a

criminal offence.  This implies that constituent elements of an

offence such as e.g. the particular form of culpability required for

its completion may not be essentially changed, at least not to the

detriment of the accused, by the case law of the courts.  On the other

hand, it is not objectionable that the existing elements of the

offence are clarified and adapted to new circumstances which can

reasonably be brought under the original concept of the offence.

In the present case, the Commission has examined whether the act

committed by the applicant constituted an offence under Swedish law at

the time it was committed.  In this respect, the Commission recalls

that this particular question was dealt with by the Supreme Court of

Sweden, which found that, although the editorial layout of the summary

issued by the Commander in Chief in conjunction with the concentrated

information did not make this summary easy to understand, the rules of

the Order clearly indicated that an alien vessel could not stay within

a semi-restricted area in other ways than expressly mentioned and that

neither the Order nor the summary of the Commander in Chief, if read

with proper care, supported the interpretation invoked by the

applicant.

The Commission has examined this interpretation in the light of the

general considerations set out above and finds that the Supreme Court

did not go beyond the limits of a reasonable interpretation of the

existing law.  The Commission is therefore satisfied that the

applicant's conviction was based on the relevant Swedish law, namely

the Act on Aliens of 1980, Chapter 96, section 1 in conjunction with

the Order of 1976 concerning Protected and Controlled Areas, sections

13 and 14.  Accordingly, this complaint does not disclose any

violation of Art. 7 (Art. 7) of the Convention.  From that it follows

that this part of the application is also manifestly ill-founded

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                           (C.A. NØRGAARD)