Lexploria

The European Commission of Human Rights sitting in private on

7 July 1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 December 1984 by

B.G.A. against Sweden and registered on 18 March 1985

under file No. 11453/85;

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 1941. He is at present

serving a 12-year prison sentence in Sweden. Before the Commission

the applicant is represented by his lawyer, Mr. Olof Arvidson,

Stockholm, Sweden.

During the summer of 1981 the Swedish police noticed that large

quantities of amphetamines were smuggled into Sweden. A large- scale

investigation was carried out and in February 1982 a Dutch lorry

driver was arrested in the process of smuggling into Sweden 42 kilos

of amphetamines. On 13 April 1982 the lorry driver was sentenced to

9 years' imprisonment for having smuggled into Sweden in November 1981

and in February 1982 not less than 100 kilos of amphetamines in

contravention of the Swedish Narcotics Act of 1968

(narkotikastrafflagen (1968:64)). During the interrogations of the

lorry driver he identified two persons (L and F) as being the persons

who had given him the amphetamines in Holland, as well as the

applicant and one other person (B) as being the persons who had

received it in Sweden. They were thus all arrested in Holland, the

Federal Republic of Germany and Sweden and L was subsequently sent to

Sweden to be tried there.

In the following court proceedings B was released from his detention

on remand since investigations carried out in Spain showed that he had

been in that country during the time when he had allegedly received

the amphetamines in Sweden. Subsequently the police dropped the

charges against him. L was convicted by the District Court of

Stockholm (Stockholms tingsrätt) on 10 November 1983 and sentenced to

12 years' imprisonment. On appeal, the sentence was reduced to 10

years since the Court of Appeal on one count concerning the amount

smuggled into Sweden in November 1981 would not rely on the lorry

driver's statements and since the factual circumstances were referred

to the Act of 1960 concerning smuggling (lagen om straff för

varusmuggling (1960:418)) instead of the Narcotics Act. Finally, the

case against F, conducted in Holland, is still pending. F is not,

however, detained on remand.

In the case against the applicant he was charged with a violation of

the Narcotics Act in that he had received in November 1981

approximately 80 kilos of amphetamines with the intent of subsequently

selling it.

During the investigations the applicant's present representative was

appointed as counsel. Subsequently, however, the prosecutor requested

that he be relieved of his duties because he had allegedly impeded the

investigations by submitting confidential information to people who

were involved in the case. On 5 January 1983 the District Court of

Stockholm complied with the prosecutor's request but this decision was

repealed by the Court of Appeal, which decision was upheld by the

Supreme Court.

After having settled the dispute concerning the defence counsel, the

case was tried in the District Court of Stockholm. After an

evaluation of the statements made by the witnesses and the written

evidence submitted, in particular a thorough evaluation of the

statements made by the lorry driver, the Court, on 31 March 1985,

found the applicant guilty of the charge brought against him and

sentenced him to 12 years' imprisonment and to pay the estimated

profits from the sale of the amphetamines, totalling 5,750,000 Swedish

crowns.

The applicant appealed against the judgment to the Court of Appeal

(Svea hovrätt) where, in particular, it was pointed out that the

statements of the lorry driver, who was the key witness, could not be

relied on, especially since the case against B had been dropped.

From its judgment of 30 December 1983 it appears that the Court of

Appeal made a thorough examination of this point since the lorry

driver was indeed the key witness. However, after the evaluation of

the evidence the Court of Appeal upheld the conviction pronounced by

the lower court but reduced the profits to be paid to 3,300,000 Swedish

crowns.

Subsequently, the applicant asked the Supreme Court for leave to

appeal. He pointed out that the lower courts had made a wrongful

evaluation of the evidence in the case. In particular he again

referred to the fact that the charges against his former co-accused,

B, had been dropped, notwithstanding that the lorry driver maintained

that, together with the applicant, he received the amphetamines in

Sweden. The applicant also pointed out that in the meantime L had

been acquitted by the Court of Appeal as being the man who had given

the lorry driver the amphetamines in Holland in November 1981 since

the Court could not on this particular point rely on his statement.

The conclusion would thus be the following: of the four persons

identified by the lorry driver as being involved in the smuggling in

November 1981 the applicant was the only one who had been convicted.

Furthermore the applicant, before the Supreme Court, requested the

hearing of a new witness who allegedly could prove his innocence.

On 8 June 1984 the Supreme Court refused leave to appeal.

COMPLAINTS

The applicant invokes Article 6 (Art. 6) of the Convention. He claims

that he has been wrongly convicted by the Swedish courts since they

relied on a witness whose statements, in cases concerning other

persons but with the same factual circumstances, were not accepted.

He therefore finds that he did not get a fair trial.

He also complains that he was refused permission to hear a witness

since the Supreme Court refused to grant leave to appeal.

THE LAW

1. The applicant has complained that he was wrongly convicted by

the Swedish courts.

With regard to the judicial decisions of which the applicant

complains, 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 to 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

jurisprudence (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222,

No. 1140/61, Dec. 19.12.61, Collection 8 p. 57, and No. 7987/77,

Dec. 13.12.78, D.R. 18 p. 31).

In this case the applicant has also complained, under Article 6

(Art. 6) of the Convention, that his conviction was based on an

unacceptable evaluation of the evidence, in particular the statements

of the key witness in the case, whose statements had been set aside in

cases against other persons involved in the smuggling affair.

In this respect the Commission recalls that its task under Article 6

(Art. 6) of the Convention with regard to this allegation is to

examine whether the evidence for and against the accused has been

presented in such a manner, and the proceedings in general have been

conducted in such a way, that he has had a fair trial. However,

whether the courts have evaluated the evidence correctly or not is a

question on which the Commission is not called to pronounce itself.

Furthermore the validity of the courts' factual conclusions is not

subject to the Commission's control.

In the present case the Commission recalls that the courts examined

statements made by witnesses as well as the written material and is of

the opinion that the judgments were based on an evaluation of these

statements and documents. In particular, there is nothing indicating

that the courts in fulfilling their functions reached their

conclusions in an arbitrary manner. On the contrary, it is clear that

the courts were fully aware of the problems to which the applicant

refers and had this in mind when taking their decisions. An

examination of this complaint therefore fails to disclose any

appearance of a violation of the Convention and in particular of

Article 6 para. 1 (Art. 6-1).

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 that since he was refused

leave to appeal he could not have a witness examined in court.

Insofar as the applicant in this respect intends to complain of the

fact that he could not have the witness heard in the lower courts, the

Commission notes that the applicant did not at all mention his wish in

this respect in any way before these courts. Such a complaint would

therefore be inadmissible under Article 26 (Art. 26) of the Convention

since the applicant did not exhaust the remedies at his disposal.

Insofar as the applicant intends to complain that the Supreme Court's

decision not to grant leave to appeal in these circumstances amounted

to a violation of Article 6 para. 1 (Art. 6-1) of the Convention, the

Commission recalls that the right to appeal does not feature among the

rights and freedoms guaranteed by the Convention. No provision of the

Convention, therefore, requires the High Contracting Parties to grant

persons under their jurisdiction an appeal to a Supreme Court. If a

High Contracting Party makes provisions for such an appeal it is

entitled to prescribe the provisions by which this appeal shall be

governed and fix the conditions under which it may be brought

(cf. No. 3775/68, Dec. 2.2.70, Collection 31 p. 116; No. 6916/75,

Dec. 12.3.76, D.R. 6 p. 101).

The Commission is of the opinion that when a Supreme Court determines,

in a preliminary examination of a case, whether or not the conditions

required for granting leave to appeal have been fulfilled, it is not

making a decision relating to "civil rights and obligations" or a

"criminal charge" (cf. No. 10515/83, Dec. 2.10.84, unpublished).

Article 6 para. 1 (Art. 6-1) of the Convention, however, only provides

certain guarantees in cases relating to the determination of civil

rights and obligations or of a criminal charge. It follows,

therefore, that this provision does not apply to the proceedings in

which the Swedish Supreme Court, without entering on the merits,

refused leave to appeal against a decision of the Court of Appeal.

This part of the application is thus incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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