CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mai 1988

.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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 12254/86                       by Tommy ASKLÖF                       against Sweden             The European Commission of Human Rights sitting in private on 2 May 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 2 July 1986 by Tommy Asklöf against Sweden and registered on 9 July 1986 under file No. 12254/86;           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 1952.   He is a student and at present he is serving a prison sentence at Åkersberga, Sweden.           On 16 August 1984 an arrest warrant was issued against the applicant on the ground that he was suspected of having committed grave robbery and other offences.   The applicant was subsequently arrested in Copenhagen, Denmark, and he was extradited on 21 August 1984 to Sweden where he was placed under arrest.   On 24 August 1984 the question of detention on remand was examined by the District Court (tingsrätt) of Malmö.   After hearing the parties and after an evaluation of the material which was available at that stage of the investigation the Court found that there was reason to suspect that the applicant had committed, among other offences, fraud and grave robbery.   Furthermore the Court found that there was reason to believe that the applicant if at large would abscond, commit new similar offences and impede the investigation.   For these reasons, and since the minimum punishment for grave robbery was not less than two years' imprisonment, the Court decided to detain the applicant on remand.           On 21 August 1984, a decision was taken to restrict the applicant's right to receive visitors and to control his correspondence and telephone communications.   A further decision in this respect was taken on 24 August 1984 when the applicant also signed a document in which he gave his consent to control of his correspondence.   As from 5 November 1984 the said restrictions were no longer in force.           On 9 October 1984 the applicant was charged before the District Court with grave robbery, fraud, assault, drunken driving and driving without a driving licence.           While the applicant was placed in detention on remand and during the initial investigation of the case the applicant had several telephone conversations with his officially appointed defence counsel Mr.   Lars Lundquist.   It appears that during the first month of detention the applicant could only use a telephone placed in a staff room where the prison officers and others could listen to the conversation.   The applicant complained about this and it appears that after approximately one month the applicant could, with the use of an extension cord, call his counsel from the cell.   The applicant does not allege that his right to communicate confidentially with his defence counsel was in any other way interfered with.* ___________________   *   Chapter 21 Section 9 of the Swedish Code of Judicial Procedure (rättegångsbalken) gives an officially appointed defence counsel an absolute right to visit and communicate in private with the arrested or detained person whom he defends.   The Act concerning the treatment of arrested and detained persons (lagen om behandling av häktade och anhållna) provides for a similar right to confidential correspondence with an officially appointed defence counsel (Section 9) and to confidential telephone conversations with him (Section 12).           During the same period of the initial investigation of his case the applicant, on 30 October 1984, sent a letter to the European Commission of Human Rights.   In accordance with the restrictions placed on the applicant's correspondence the letter was sent to the public prosecutor for scrutiny.   On 1 November 1984 he decided that the letter could be forwarded to the Commission.   Having reached France, however, it appears that due to insufficient postage the letter was returned to the applicant, who received it approximately three weeks later.           The applicant complained about this incident to the Chancellor of Justice (justitiekanslern) maintaining that the letter had never been sent to the European Commission of Human Rights.   He also complained of the period during which the police allegedly listened to his telephone conversations with his defence counsel.           The applicant further states that during the preliminary investigation certain confrontations between him and other persons, in connection with the bank robbery which he was suspected of having committed, were cancelled by the police, because they did not want his lawyer, Mr.   Lundquist, to be present.   However, this problem was finally resolved when the public prosecutor made it clear that Mr. Lundquist naturally was entitled to be present at the confrontations.           The applicant's trial was held before the District Court of Malmö on 2 November 1984.   The Court heard the applicant, who was assisted by counsel, as well as a number of witnesses.   After an evaluation of their statements as well as an evaluation of the written material submitted the Court found the applicant guilty of the charges brought against him and sentenced him to four years and six months' imprisonment.           The applicant as well as the public prosecutor appealed against this judgment to the Court of Appeal (hovrätten) on 23 November 1984. The applicant requested the Court to acquit him of the robbery charge, to consider the assault as being of a minor character and finally to reduce the prison sentence imposed.   On 21 December 1984, the Court of Appeal, after a new oral hearing, increased the sentence to five years' imprisonment.           On 12 or 13 December 1984, i.e. while the appeals were pending before the Court of Appeal, the applicant was told that he was to be transferred from the house of detention at Helsingborg to the Kumla prison, which is a prison for convicted prisoners.   He protested and stated that there was no final judgment against him.   He was then overpowered by six to ten persons, handcuffed and brought by force to Kumla.   About ten days later the legal documents which he had kept in his cell arrived, but some of the material was missing.           On 15 January 1985 the applicant asked the Supreme Court (Högsta domstolen) for leave to appeal against the judgment of the Court of Appeal.   However, on 5 February 1985 the Supreme Court refused to grant leave to appeal.           The Chancellor of Justice's investigation of the applicant's complaints came to an end in April 1985.   In his decision of 15 April 1985 the Chancellor of Justice stated as follows:   "According to Section 12 of the Act concerning the treatment of arrested and detained persons (lagen om behandling av häktade och anhållna), detainees have a right to phone persons outside the place of detention insofar this can be done without unnecessary disturbance.   If necessary, due to security measures or certain other circumstances, the conversation shall be tapped.   It is prohibited, however, to listen to telephone conversations between the detained person and his official defence counsel.   In this case the prison governor has submitted that the telephone conversations were not tapped but supervised because the conversations took place in a staff room.   Even if it did not amount to planned tapping, the system used meant that the applicant could not talk with his defence counsel in private.   This cannot be considered as being in accordance with the above-mentioned provision concerning the prohibition against listening to telephone conversations between the detained person and his defence counsel.   The procedure, which according to what has been submitted by the public prosecutor may have been due to practical problems, has been changed.   I assume that one will not revert to the previous procedure and thus I find no reason to pursue the matter further."           Regarding the letter sent to the European Commission of Human Rights the Chancellor of Justice stated as follows:   "The letter to the European Commission of Human Rights was addressed to somebody other than a Swedish authority or the defence counsel.   Since the applicant was subjected to restrictions in his mail the letter was checked by the public prosecutor before it was sent.   From the documents in this case it appears that the letter was sent through the public prosecutor's office on 1 November 1984.   From the copy of the letter which the applicant has submitted it appears that the letter was postmarked at the post office of Malmö 4 on the same day and at the post office of Malmö Ban on 2 November 1984.   Accordingly I cannot find support for the allegation that the letter was never sent from the public prosecutor's office or from Sweden.   Neither do I find support for the allegation that the stamps and the French stamp which was subsequently attached to the letter were fabricated by the public prosecutor.   Why the letter has been returned is not a question which I should pronounce myself upon.   Accordingly I cannot find that anybody under my supervision has acted wrongly while dealing with the applicant's letter to the Commission."     COMPLAINTS           The applicant is of the opinion that his conviction cannot be regarded as valid in view of the manner in which the public prosecutor's office has handled the case brought against him.   In particular he refers to the fact that for a certain period of time the police listened to telephone conversations between him and his defence counsel.   He refers in this respect to Article 6 paras. 1, 2 and 3 of the Convention.           The applicant also invokes Article 25 of the Convention maintaining that the letter addressed to the European Commission of Human Rights was never sent from the prosecutor's office.   Accordingly the Swedish authorities prevented him from the effective exercise of his right to contact the Commission.     THE LAW   1.       The applicant has complained of the manner in which the preliminary investigation has been conducted and has in particular alleged procedural errors in regard to his telephone conversations with his defence counsel and in regard to his correspondence with the Commission.   He states that he has been wrongly convicted and sentenced after an incorrect trial.           With regard to the applicant's conviction and sentence 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 in 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 case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31,45).           The applicant complains, in particular, that for a period of approximately one month he was unable to have private telephone conversations with his defence counsel and that he was thereby denied the right secured to him under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.           The Commission notes that the right of a person who is arrested or detained on remand to communicate confidentially with his defence counsel is guaranteed by different provisions in Swedish law. According to Chapter 21 Section 9 of the Swedish Code of Judicial Procedure (rättegångsbalken) a defence counsel appointed ex officio to defend the arrested or detained person has an absolute right to see that person and to communicate with him in private.   Moreover, Section 9 of the Act concerning the treatment of arrested and detained persons provides that letters from the detainee to his officially appointed defence counsel shall be forwarded without any control.   Section 12 of the same Act prohibits the listening to telephone conversations between the detained person and his officially appointed counsel.           In the present case, however, it appears that for about a month it was possible for prison staff or others to overhear telephone conversations between the applicant and his lawyer, since the telephone conversations took place in a staff room in the prison.   The Chancellor of Justice found that this was contrary to the above- mentioned Section 12 but decided not to take any further action, since the applicant had then already been provided with the necessary facilities for having confidential telephone conversations with his lawyer.           In these circumstances, and also having regard to the fact that the applicant has not alleged that he had, contrary to Swedish law, been denied the right to receive visits from his defence counsel or to correspond with him in writing, the Commission cannot find that his rights of defence in the criminal proceedings were prejudiced in violation of Article 6 (Art. 6) of the Convention.           The Commission finds no indication that the applicant's rights of defence had been violated in any other respect.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of (Art. 27-2) the Convention.   2.       Insofar as the applicant complains of an interference by the Swedish authorities with the applicant's correspondence with the Commission, it is recalled that, under Article 25 para. 1 (Art. 25-1), second sentence, of the Convention, the High Contracting Parties who have recognised the right of individual petition "undertake not to hinder in any way the effective exercise of this right".   The Commission here notes that the Swedish Chancellor of Justice made enquiries but that nothing emerged which could support the applicant's allegations that a letter had not been sent to the Commission.   The Commission further notes that the applicant has been able to present his case to it effectively.   In these circumstances the Commission concludes that it need not take any further action in respect of the alleged interference with the applicant's effective exercise of the right of individual petition within the meaning of Article 25 (Art. 25) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE and           DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE         ALLEGED INTERFERENCE WITH THE APPLICANT'S CORRESPONDENCE         WITH THE COMMISSION     Secretary to the Commission            President of the Commission            (H. C. KRUGER)                          (C. A. NØRGAARD)