FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64299/01 by Johnny SAWALHA against Sweden

The European Court of Human Rights (Fourth Section) , sitting on 13 January 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mrs E. Fura-Sandström , judges and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 17 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Johnny Sawalha, is a Swedish national, who was born in 1968 and lives in Södertälje.

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

The applicant was accused of having committed three criminal offences. The first charge regarded the applicant’s involvement in the transport of 1842 grams of cocaine and the second charge concerned an amount of 0.86 grams of cocaine found in his home. The third charge concerned a doping offence. The applicant denied the first two charges but admitted the third. He was deprived of his liberty from 17 March to 3 May 1999.

On 7 May 1999 the District Court ( tingsrätten ) of Sollentuna gave judgment. Regarding the first charge, the District Court found that the applicant’s involvement in the crime – receiving narcotics for the purpose of storing and transferring them – did not correspond to what the applicant was charged with in the bill of indictment. The first offence had not therefore been made out. Regarding the second charge, the District Court stated that there was not sufficient evidence to convict the applicant. He was convicted of a doping offence ( dopningsbrott ) and fined. He was thus acquitted by the District Court on two out of the three charges.

The Prosecutor appealed against the acquittals on the two charges on 7 May 1999 , i.e . the same day the District Court gave judgment. In his submissions, the wording of the bill of indictment was amended in regard to the first charge so as to cover applicant’s involvement in the crime (i.e. receiving narcotics for the purpose of storing and transferring them). Regarding the second charge, the Prosecutor called a new witness.

The applicant was detained on 16 May 2000. He claims that after the District Court’s acquittal, he had been working both in Sweden and abroad. He alleges that, during this time, i.e. over a year, he did not receive any summons to appear before the Court of Appeal. His arrest thus came unexpectedly.

On 17 May 2000, during the hearing at the Svea Court of Appeal ( Svea hovrätt ), he was placed under formal arrest ( häkte ) on the basis that he was suspected on reasonable grounds of an attempt to commit an aggravated narcotics offence and that there was a risk that he would run away or seek to escape prosecution or punishment. The applicant opposed his detention arguing that he had not been served with any summons to appear before the Court of Appeal and that he had not failed to appear. In the judgment, which was pronounced the same day, the Court of Appeal found that the applicant was guilty on both charges which had been the subject of the appeal and sentenced him to nine years’ imprisonment. He alleges that it did not examine his defence counsel’s objection that he had not had sufficient time to meet the applicant before the hearing.

In the written appeal pleadings to the Supreme Court ( Högsta Domstolen ), the applicant argued that the required evidentiary standards in criminal cases had not been satisfied and that there was no evidence to support the charge that he had been involved in the transport of the narcotics. The only thing he had stated himself before the Court of Appeal was that he had been supposed to store a package which he thought had contained hash or marijuana. Regarding the narcotics found in his home, he argued that he had not known about the narcotics and that they probably belonged to the person whose passport had been found next to them. He was represented by the same defence counsel throughout the proceedings.

The Supreme Court refused leave to appeal on 16 June 2000.

The applicant subsequently requested a re-opening of his case arguing that there had been a miscarriage of justice since he had been arrested ( anhållen ) on 16 May 2000, over a year after having been acquitted by the District Court, and convicted the day after without having had a proper opportunity to prepare his defence with his defence counsel. He relied on Article 6 § 3 (b) of the Convention. On 9 October 2000 the Supreme Court rejected this request.

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention about the lack of adequate time and facilities to prepare his defence. He argues that he only met his defence counsel briefly before the Court of Appeal hearing. He further questions the brief time in which the Court of Appeal established his guilt.

He also argues that, because the Prosecutor had amended the bill of indictment, he had been charged with a new offence before the Court of Appeal. The subsequent conviction was not reviewed by a higher tribunal in accordance with Article 2 of Protocol No. 7, since the Supreme Court refused leave to appeal.

THE LAW

The applicant complains that he did not have adequate time and facilities to prepare his defence in accordance with Article 6 §§ 1 and 3 (b) of the Convention.

The Court observes that, before examining the merits of the present application, it has to be established that the applicant has complied with the criteria of admissibility, more specifically the requirement of exhaustion of all domestic remedies, set down in Article 35 of the Convention, which, in so far as relevant, provides:

“1. The Court may only deal with the 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.”

The requirement of exhaustion of all domestic remedies is in principle intended to afford the Contracting States the opportunity of putting right the violations alleged against them on a national level. Recourse should only be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. These must, furthermore, be accessible and effective. In case-law, extraordinary remedies, such as a request for a re-opening, have not been considered as effective remedies which consequently need not be exhausted. The matter complained of before the Court might be raised expressly through relying on the Convention or its Protocols directly or in substance through raising arguments to the same or like effect before the competent domestic authorities (see, among other authorities, Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, §§27 and 34, and Cardot v. France , judgment of 19 March 1991, Series A no. 200, §§ 34-36, and Riedl-Riedenstein and others v. Germany (dec.), no. 48662/99, 22 January 2002).

In the present case, the applicant was charged with three criminal offences. The District Court acquitted him on two of these charges. The Prosecutor appealed and the applicant was subsequently convicted of the remaining two charges by the Court of Appeal. During the appellate proceedings, it appears that the applicant contested his deprivation of liberty arguing that he had not been served with any summons to appear before the Court of Appeal and that he had not failed to appear. The applicant further claims that his defence counsel raised the issue that he did not have adequate time to meet with the applicant in order to prepare his defence before the hearing. However, there is no evidence, in the protocols to the hearing or elsewhere, to support the claim that this issue was raised or that a request for adjournment was made during the proceedings before the Court of Appeal. Furthermore, on appeal to the Supreme Court, the applicant only argued about the evidence in the case. No reference was made to any procedural deficiencies in the proceedings before the Court of Appeal. In fact, it appears that arguments regarding the procedural deficiencies were not raised until the request for a re-opening of the case. With regard to the nature of re-opening proceedings, this request does not remedy the failure to raise, expressly or in substance, the matters complained of before the Court during the ordinary criminal proceedings. As the applicant failed to exhaust domestic remedies, the Court need not examine the merits of this part of the application.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The applicant further complains that his conviction was not review by a higher tribunal in accordance with Article 2 of Protocol No. 7 to the Convention, which provides:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation on the right to a review must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach v. France, no. 29731/96, 13 February 2001, § 96).

Turning to the present case, the Court notes that a person wishing to appeal to the highest tribunal in Sweden – the Supreme Court – must apply for leave to appeal. The Court considers that this requirement is compatible with the Convention and its Protocols and that the examination pursued during leave-to-appeal proceedings before the Supreme Court is to be regarded as a review within the meaning of Article 2 of Protocol No. 7 to the Convention (see Näss v. Sweden , application no. 18066/91, Commission decision of 6 April 1994, Decisions and Reports (DR) 77, p. 37, and Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, 18 January 2000).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President