CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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. 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 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)