THIRD SECTION

DECISION

Application no . 38292/15 Jan PALMÉN against Sweden

The European Court of Human Rights (Third Section), sitting on 22 March 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom , George Nicolaou , Helen Keller, Branko Lubarda , Pere Pastor Vilanova , Alena Poláčková , judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 30 July 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Jan Palmén , is a Swedish national who was born in 1946 and lives in Trollhättan , Sweden.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 20 September 2012 the Vänersborg District Court ( tingsrätt ) convicted the applicant of having assaulted his partner on 24 December 2011. He was given a suspended sentence and 50 hours of community service. The court observed that the normal sentence for the applicant ’ s crime was imprisonment, but since he had no earlier convictions and the Vänersborg Probation Service ( frivården ) had submitted that he was not deemed in need of supervision, it departed from the normal practice and gave him a more lenient sentence. The District Court added that, had it imposed a prison sentence, it would have sentenced the applicant to one month ’ s imprisonment.

4. The applicant appealed against the judgment to the Court of Appeal for Western Sweden ( hovrätten ) which, on 1 February 2013, upheld the District Court ’ s judgment in full.

5. It appears from the case-file that no appeal was lodged with the Supreme Court, for which reason the Court of Appeal ’ s judgment acquired legal force.

6. On 13 November 2013 the Police Authority ( Polismyndigheten ) decided to seize immediately the applicant ’ s weapon, ammunition and proof of weapons licence by virtue of the Weapons Act ( Vapenlagen , 1996:67).

7. In a decision dated 10 December 2013, the Police Authority revoked the applicant ’ s weapons licence. It referred to the fact that the applicant had been convicted of assaulting his partner and found that the fact that the violence had taken place at home and against a person with whom he had a close relation rendered it more serious. Moreover, in the Police Authority ’ s view, the assault was not a minor one. It therefore considered the applicant unsuitable to possess weapons.

8. The applicant appealed against the decision to the County Administrative Court in Gothenburg ( förvaltningsrätten ), claiming that there was no risk of his committing further crimes. He had only been convicted of one count of assault, and revoking his licence would be devastating for him, since his main interest was hunting.

9. On 30 January 2014 the County Administrative Court rejected the appeal. The court stressed that Swedish legislation concerning weapons was restrictive, in particular as regards a person ’ s possibility to obtain a weapons licence and possess a weapon. To be able to do so, the person had to be considered suitable and an assessment had to be made as the regards the person ’ s reliability, good judgment and law-abidingness. The court found that the criminal act of which the applicant had been convicted made it questionable whether he was suited to possess weapons. Moreover, there were several aggravating circumstances in the applicant ’ s case. The crime had been committed under the influence of alcohol and against his partner at home. For these reasons, the court found that the applicant did not fulfil the high demands of reliability, good judgment and of being law-abiding and, consequently, was unsuited to possess a weapon.

10. Upon appeal by the applicant, the Administrative Court of Appeal in Gothenburg ( kammarrätten ) refused leave to appeal on 18 June 2014.

11. The applicant appealed against the decision to the Supreme Administrative Court ( Högsta förvaltningsdomstolen ), maintaining his claims and adding that the decision to revoke his weapons licence was contrary to the principle of ne bis in idem in Article 4 Protocol No. 7 to the Convention.

12. On 5 June 2015 the Supreme Administrative Court refused leave to appeal.

B. Relevant domestic law and practice

13. There is a longstanding and general consensus in Sweden on the need for strict control on the possession and use of firearms and ammunition. The main purpose of such control is to counteract the misuse of firearms and, to the extent possible, prevent weapon-related accidents. The ambition to prevent that weapons are used in connection with criminal activities are of special importance (Government Bill 1995/96:52, p. 26).

14. Thus, according to Chapter 6, section 1, of the Weapons Act a licence to hold a firearm shall be revoked by the Police Authority, inter alia , if the licence holder proves to be unsuited to own a firearm, if the prerequisites for obtaining the licence are no longer fulfilled, or if there are other reasonable grounds to revoke the licence.

15. The suitability requirement is based on the principle that only responsible adults who have sufficient knowledge to handle weapons in a manner which is completely safe both for themselves and the environment shall be entrusted with weapons (Government Bill 1990/91:130, pp. 25-26). While it is not necessary that a weapon has been used in the commission of a crime for the licence to be revoked, it is an aggravating circumstance. The question whether a person may continue to possess a weapon should regularly be re-assessed when the person has been convicted of serious crimes such as crimes of violence, cruelty to animals, narcotics offences or drunken driving. Other reasons for reconsidering a person ’ s suitability to possess a weapon are when a person has not followed the rules on how to store a weapon, is abusing alcohol or narcotics or has a serious disease (the National Police Board ’ s Regulations and General Recommendations on Weapon Legislation [ Rikspolisstyrelsens föreskrifter och allmänna råd om vapenlagstiftningen ], RPSFS 2009:13, FAP 551-3, p. 52).

16. In a judgment of 28 May 2015, the Supreme Administrative Court (HFD 2015 ref. 20) considered whether the Swedish system of revoking weapons licences following a criminal conviction for assault was contrary to Article 4 of Protocol No. 7 of the Convention. The Supreme Administrative Court referred extensively to the case-law of the Court and observed that, in Swedish law, the revocation of a weapons licence is characterised as an administrative measure with the purpose of prohibiting persons who have shown themselves to be unsuitable to possess weapons. It noted that the legislation was built on the principle that only persons found to be responsible and having sufficient knowledge to handle a weapon in a completely safe manner for themselves and the environment should be allowed to keep weapons. An independent evaluation had to be made in each individual case, where the personal circumstances of the licence holder were of primary importance. The court observed that the purpose of revoking a licence was therefore not intended to be a punishment, and its object was not to deter from such crimes or other acts which could lead to an individual being considered unsuitable to possess a firearm. For these reasons the Supreme Administrative Court found that the Swedish procedure for revoking a weapons licence could not be considered to be criminal in character and, consequently, was not in breach of Article 4 of Protocol No. 7 to the Convention.

COMPLAINT

17. The applicant complained under Article 4 of Protocol No. 7 to the Convention that the District Court had convicted him of assault because of the events taking place on 24 December 2011 and that the administrative courts later revoked his weapons licence based on the same events.

THE LAW

18. The applicant alleged that he had been tried and convicted twice for the same offence, in violation of Article 4 of Protocol No. 7 to the Convention which, in relevant parts, reads as follows:

”1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.... “

19. The Court notes at the outset that the first set of proceedings in which the applicant was convicted of assault was criminal in nature.

20. As to the proceedings in which the applicant ’ s weapons licence was revoked, the Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention ( see, inter alia , Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009 ). The notion of “criminal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words ”criminal charge” and “penalty” in Articles 6 and 7 of the Convention, respectively (see Göktan v. France , no. 33402/96, § 48 ECHR 2002 ‑ V; Malige v. France , 23 September 1998, § 35, Reports of Judgments and Decisions 1998 ‑ VII; and Nilsson v. Sweden ( dec. ), no. 73661/01 , ECHR 2005 ‑ XIII).

21. The Court ’ s established case-la w sets out three criteria commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22) to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not rule out a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X).

22. In the case of Nilsson v. Sweden (cited above), concerning the revocation of a driving licence, the Court found that although under Swedish law revoking a driving licence had traditionally been regarded as an administrative measure designed to preserve road safety, revoking a driving licence on the ground of a criminal conviction constituted a “criminal” matter for the purpose of Article 4 of Protocol No. 7 of the Convention. What was more, in the view of the Court, the severity of the measure – suspension of the applicant ’ s driving licence for 18 months – was in itself so significant, regardless of the context of his criminal conviction, that it could ordinarily be viewed as a criminal sanction.

23. In the case of Berland v. France , which concerned Article 7 of the Convention, the applicant had been found to lack criminal responsibility for a crime because of mental illness and had been given a 20-year ban on possessing a weapon. The Court found that the ban and other accompanying security measures did not constitute a “penalty” within the meaning of Article 7 § 1 of the Convention but were to be regarded as preventive measures (see Berland v. France , no. 42875/10 , 3 September 2015).

24. Turning to the present case, the Court has to evaluate whether the proceedings revoking the applicant ’ s weapons licence were criminal in nature. It first notes that these proceedings are considered as an administrative practice, and not criminal in nature, under the Swedish law.

25. As concerns the nature of the offence, the Court observes that revoking the weapons licence was not an automatic consequence of the criminal conviction. Indeed, while the assault conviction gave rise to the administrative proceedings leading to the revocation of the applicant ’ s weapons licence, it was not the decisive factor for the authorities ’ revocation of the licence. Rather, the domestic authorities focused on the personal circumstances of the applicant when assessing his continued suitability to possess a weapon, in particular the risk that he would misuse his weapon in the future. When making this evaluation, the domestic courts took his earlier conduct into consideration, which included the conviction for assault. O ther factors were that the applicant had been under the influence of alcohol, that the assault had taken place at home and that the violence had been directed against a person with whom he had a close relationship. Only after having assessed all of the circumstances of the case did the national authorities find that the applicant lacked the high levels of good judgment, reliability and obedience to the law which were necessary in order to be considered suitable to possess a weapon and that his weapons licence should therefore be revoked.

26. In the Court ’ s view, this measure was not taken to punish the applicant nor to deter him from committing crimes in the future (see Sergey Zolotukhin cited above, § 55). Instead, the underlying object was preventive and to ensure public safety (see Berland , cited above, § 45). In this regard the Court notes that Swedish legislation concerning weapons licences is very restrictive, with a clear purpose of protecting the public as stated in the preparatory works (see paragraphs 13 and 15 above) and reiterated by the Supreme Administrative Court in its judgment (see paragraph 16 above). It further underlines that the State has a legitimate interest to protect public safety by controlling who has the right to possess firearms. In this respect, it also takes into account the dangerous nature of firearms and the risk of serious accidents or misuse that the State has a responsibility to protect the general public from (see Gorovenky and Bugara v. Ukraine , nos. 36146/05 and 42418/05 , §§ 32-36, 12 January 2012).

27. As regards the degree and severity of the revocation, the Court notes that the applicant is not dependent on using a weapon for professional purposes. Moreover, it observes that he may apply for a new weapons licence at any time and that, if he is deemed suitable, he may be granted a licence again. Consequently, although the revocation was regarded by the applicant as a severe measure, it cannot be characterised as a penal sanction; even if it was linked to his behaviour, what was decisive was his suitability to hold a firearm (see, mutatis mutandis , Tre Traktörer AB v. Sweden , 7 July 1989, § 46, Series A no. 159).

28. Having regard to all of the above, the Court finds that the revocation of the applicant ’ s weapons licence is not to be considered, either in nature or severity, a criminal sanction for the purpose of Article 4 of Protocol No. 7 to the Convention.

29. It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 21 April 2016 .

             Stephen Phillips Luis López Guerra Registrar President