CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.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. 11274/84                       by A.                       against Sweden             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 16 October 1984 by A. against Sweden and registered on 3 December 1984 under file No. 11274/84;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 25 October 1988 and the observations submitted in reply by the applicant on 27 April 1989.           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant is a Swedish citizen, born in 1944.   He is an engineer by profession and resides at Torsås, Sweden.   A.       Particular facts of the case           On 26 February 1983 the applicant was stopped by the police while driving a tractor on a highway (motortrafikled) restricted to certain types of vehicles, not including a tractor.   The applicant was charged with a violation of Sections 139 and 144 of the Traffic Ordinance (vägtrafikkungörelsen) but, although he admitted the factual circumstances, he contested having violated any laws.           The case was therefore brought before the District Court of Ronneby (Ronneby tingsrätt).   Before this Court the applicant requested the hearing of one of the policemen who had stopped him as well as the production of the official weather reports concerning the period in question.   Finally he asked the Court to appoint a defence counsel under the legal aid system since he was without sufficient means.           On 8 June 1983 the Court refused to appoint counsel, the reason being that the case was very simple and that the applicant could not be regarded as being in need of legal assistance in order to be able to defend himself.   The applicant appealed against this decision to the Court of Appeal referring to the right to a fair trial in the light of the fact that his "opponent" was a professional prosecutor.   On 20 June 1983 the Court of Appeal upheld the District Court's decision.   This decision was not subject to appeal.           The case against the applicant was heard by the District Court on 21 September 1983.   The applicant was heard as well as the policeman named by the applicant.   The Court, however, did not obtain the official weather reports.   After hearing the parties and after evaluating the written evidence brought forward the District Court found the applicant guilty of the charge brought against him and sentenced him to pay a fine of 400 Swedish crowns.   In its judgment the Court stated as follows:   "Andersson has contested criminal liability and has made the following statement: He was on his way from Hässleholm to Torsås driving a tractor he had just bought.   He had travelled with his father to Hässleholm that morning and they had then, i.a., travelled the same distance but in the opposite direction.   The mist had been very dense already in the morning and Andersson made no special observations as regards the road during the trip.   He is unaware of the concept 'motortrafikled'. When he arrived on the 'motortrafikled' west of Karlshamn, it was so misty that he saw no road signs that called for his attention.   He was therefore unaware of the character of the road he was driving on and even if he had noticed a road sign indicating 'motortrafikled' he would not have known what restrictions this would imply as regards traffic with certain vehicles. Police officer Roger Bjurbrandt has been heard as a witness but has not given any substantive information except that the weather was normal in the area of Ronneby without any signs of mist.   Andersson - who was driving in the manner alleged by the public prosecutor - drove a long distance by tractor and should therefore have paid particular attention to the rules applicable as regards the driving of such a vehicle.   The fact that the weather was misty does not relieve him from his obligations as a driver.   He shall therefore be convicted in accordance with the charge against him."           The applicant appealed against this judgment to the Court of Appeal for Skåne and Blekinge (Hovrätten över Skåne och Blekinge). He maintained inter alia that the proceedings before the District Court were "unbalanced" and that the judge interrupted him over and over again, preventing him from submitting his statement as he found appropriate.   He also complained of the fine imposed.           In reply to this appeal the prosecution submitted a written statement of 31 October 1983 in which it was maintained that the applicant had violated the Traffic Ordinance.   The prosecution refrained from requesting the hearing of the policeman as a witness and indicated that the case could be dealt with without a hearing before the Court of Appeal.   A copy of this statement was sent to the applicant by the Court of Appeal together with a covering letter of 2 November 1983 stating that the case could be dealt with without a hearing and that the applicant had two weeks to submit his statement in reply to the observations made by the prosecution.   In his written observations of 9 November 1983 the applicant stated inter alia that it would be of great interest to hear the policeman as a witness again and to examine the weather reports.   He furthermore requested that the hearing be held at Karlskrona and preferably not on a Thursday. Finally he requested free legal assistance since he needed it and could not afford to pay for it himself.           The Court of Appeal gave judgment in the case on 10 February 1984.   Before this Court there was no public hearing and neither of the parties was present.   In its judgment the Court stated:           "Court of Appeal judgment           The Court of Appeal upholds the District Court judgment.           The Court of Appeal rejects (the applicant's) request for         an appointed defence counsel.           Claims before the Court of Appeal.           (The applicant) has requested that the charges against         him be rejected.   The prosecution objects to a change.           (The applicant) has furthermore requested the appointment         of a defence counsel.         The Court of Appeal's reasons           (The applicant's) rights before the Court of Appeal can         be secured without the appointment of a defence counsel.           From the photos submitted, it appears that the character as         a 'motortrafikled' of (the road in question) did appear from         appropriate and visible road signs at Stensnäs.   For this         reason and since (the applicant) nevertheless drove the         tractor on (the road) from Stensnäs to Sörby he committed         the offence with which he was charged by the prosecution."           The applicant subsequently asked the Supreme Court (Högsta domstolen) for leave to appeal against this judgment.   In his request he stated:           "The proceedings before the Court of Appeal were of a very         unbalanced character.   The prosecution was free to submit         its arguments against the accused whereas the accused was         treated in a degrading manner.   The proceedings before the         Court of Appeal did not comply with what is stipulated in         the human rights and freedoms.   Since a judgment in Sweden         may be held against a person for the rest of his life it         would appear to be of great importance that the court         proceedings take place in a balanced manner and that every         person is treated equally."           The Supreme Court refused leave to appeal on 26 April 1984.   B.       Relevant domestic law           The relevant penal provisions of the traffic legislation are found in the Traffic Ordinance (1972:603).   From Sections 139 and 144 it follows that tractors are not allowed on certain types of highways, i.a. "motortrafikled".   Persons violating these rules are, according to Section 164, liable to pay a fine, at most 1.000 Swedish crowns.           Provisions regulating traffic signs are found in the Traffic Sign Ordinance (1978:1001).   In Section 24 sign 1.4.3 is featured.   This sign indicates where the "motortrafikled" begins.   The same sign may also, but need not, be used as an introductory sign, together with another sign indicating how soon the "motortrafikled" begins.           The Code of Judicial Procedure (rättegångsbalken) does not distinguish between "questions of facts" and "questions of law".   There are no rules restricting the scope of the proceedings in the courts of appeal (or in the Supreme Court for that matter) in this respect. Swedish appellate courts review criminal cases with respect to law as well as with respect to the facts.           Chapter 51, Section 21 of the Code of Judicial Procedure concerning the proceedings before the Court of Appeal read at the relevant time:*   "Hovrätten äge utan huvudförhandling företaga mål till avgörande, om talan av åklagaren föres allenast till den tilltalades förmån eller talan, som föres av den tilltalade, biträtts av motparten.   Har underrätten frikänt den tilltalade eller eftergivit påföljd för brottet eller funnit honom vara på grund av själslig abnormitet fri från påföljd eller dömt honom till böter eller fällt honom till vite och förekommer ej anledning till ådömande av svårare straff än nu sagts eller att ådöma annan påföljd, må målet avgöras utan huvudförhandling ..."   (translation)   "The Court of Appeal may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party.   The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty (vite) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ..."   Chapter 51, Section 25 concerning reformatio in pejus reads:   "Ej må hovrätten i anledning av den tilltalades talan eller talan, som av åklagare föres till hans förmån, döma till brottspåföljd, som är att anse såsom svårare än den, vartill underrätten dömt.   Har den tilltalade av underrätten dömts till fängelse, äge hovrätten förordna om villkorlig dom, skyddstillsyn eller överlämnande till särskild vård, så ock jämte villkorlig dom, skyddstillsyn eller överlämnande till vård inom socialtjänsten döma till böter ävensom jämte skyddstillsyn döma till fängelse enligt 28 kap. 3 § brottsbalken.   Har underrätten meddelat förordnande som nu sagts, äge hovrätten döma till annan påföljd."     _______________   *        This Section has subsequently been amended as from         1 July 1984.   The amendment is, however, not relevant         to the present case. (translation)   "Upon an appeal lodged by the accused, or by the prosecutor for the benefit of the accused, the Court of Appeal may not sentence the accused to a criminal sanction more severe than the one imposed by the lower court.   If the accused was sentenced by the lower court to imprisonment, the Court of Appeal may order suspension of sentence, probation or placing under special care; in addition to suspension of sentence and to probation or placing under care within the social service, the Court of Appeal may impose a fine or probation coupled with imprisonment, pursuant to Chapter 28, Section 3 of the Penal Code.   When the lower court has ordered a sanction of the kind referred to above, the Court of Appeal may impose a different kind of sanction."     COMPLAINTS           The applicant invokes Article 6 para. 1 of the Convention.   He maintains that the courts have not fulfilled the requirement to give the accused a fair trial and that they have failed to consider relevant arguments and evidence.   He also feels that he has been discriminated against.   Finally he maintains that it has not been proven that the offence in question has been committed by him deliberately.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 16 October 1984 and registered on 3 December 1984.           The Commission decided on 7 October 1985 to bring the application to the notice of the respondent Government without, however, inviting them to submit observations on the admissibility and merits of the case, pending the outcome of application No. 10563/83, Ekbatani v.   Sweden, before the European Court of Human Rights.           The Court's judgment in the above case was pronounced on 26 May 1988 (Eur.   Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134), and the Commission then decided, on 9 July 1988, to request the respondent Government to submit their observations on the admissibility and merits of the case, having regard to this judgment.           The Government's observations were submitted on 25 October 1988.           On 3 November 1988 the applicant was granted free legal aid by the Commission.   On the same day the Government's observations were sent to the applicant for his observations in reply.   The time-limit for submitting these observations was suspended awaiting clarification of the applicant's legal representation.   This question was settled on 31 January 1989 and the applicant's representative was asked to submit his observations before 31 March 1989.           Disregarding this time-limit the applicant submitted his observations on 27 April 1989.   THE LAW   1.       The applicant has complained that, in an unfair procedure, he was eventually convicted and sentenced by the Court of Appeal for Skåne and Blekinge to pay a fine and he has referred to Article 6 para. 1 (Art. 6-1) of the Convention which reads as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."           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 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).           Insofar as the applicant intends to complain about the proceedings in the District Court of Ronneby the Commission has not found any substantiated allegations in his submissions which could lead it to conclude that the District Court proceedings were unfair within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This part of the application is accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       As regards the proceedings in the Court of Appeal the Commission recalls that the applicant did not get a public hearing.           The Government have argued that the right to a hearing before the Court of Appeal should be considered in the light of the circumstances of the case as a whole which in this case would lead to the conclusion that the applicant's rights under Article 6 (Art. 6) were not violated.           The Commission has made a preliminary examination of the above aspect and has found that it raises serious issues as to the interpretation and application of Article 6 (Art. 6) of the Convention which are of such complexity that the determination of these issues should depend on a full examination of their merits.   It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   3.       The Commission has finally considered the applicant's complaint under Article 6 (Art. 6) of the Convention insofar as he intends to rely on this provision in regard to the Supreme Court's refusal to grant him leave to appeal.           In this respect 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 provision for such an appeal it is entitled to prescribe the rules by which this appeal shall be governed and fix the conditions under which it may be brought (cf.   No. 3775/68, Dec. 5.2.70, Collection 31 p. 16; 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 to a "criminal charge" (cf.   No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258). It follows that Article 6 (Art. 6) of the Convention does not apply to the proceedings in which the Swedish Supreme Court, without entering on the merits, refused the applicant leave to appeal against the judgment 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 ADMISSIBLE, without prejudging the merits of the         case, the applicant's complaint that he did not get a "fair         and public hearing" within the meaning of Article 6 of the         Convention, before the Court of Appeal;           DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission                President of the Commission           (H.C. KRÜGER)                               (C.A. NØRGAARD)