CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 octobre 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. 12631/87                         by Hans FEJDE                         against Sweden           The European Commission of Human Rights sitting in private on 4 October 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   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                   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy 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 28 July 1986 by Hans Fejde against Sweden and registered on 18 December 1986 under file No. 12631/87;           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 27 December 1988 and the observations submitted in reply by the applicant on 13 July 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Swedish citizen, born in 1927.   He is a businessman and resides at Västra Frölunda, Sweden.   Before the Commission the applicant is represented by Mr.   Christer Arnewid, a lawyer practising in Göteborg, Sweden.   A.       The particular facts of the case           Subsequent to the death of the applicant's stepfather his mother moved house.   At that time the applicant owned a removal firm for which reason he was in charge of the removal.   Among the furniture was a saloon rifle which eventually was stored together with other furniture at the applicant's property.           After some years the applicant's removal firm went bankrupt and among the inventory the saloon rifle was found.   It appears that this was brought to the attention of the local police which investigated the case and subsequently charged the applicant with a violation of the Firearms Act (vapenlagen).   The case was heard in the District Court (tingsrätten) of Göteborg on 27 August 1984 where the applicant had the opportunity to address the Court.   In its judgment of the same day the District Court held as follows:   "(The applicant) has contested criminal liability and has made the following statement: the weapon in question was owned by RT, who was married to his mother.   RT is dead.   When (the applicant's) mother moved house some ten years ago the weapon ended up in (the applicant's) storage room together with furniture for which there was no room in his mother's new home.   The weapon was found in the storage room in connection with (the applicant's) bankruptcy.   He was aware of the weapon being there all the time but he did not think of it as a weapon.   The rifle lacks a breech-block and there was never any ammunition. (The applicant) does not consider himself the owner of the rifle since it is his mother, now 82 years old, who is the formal owner of it.   The Court holds that (the applicant) cannot avoid being held responsible for the possession of the weapon, but that the violation of the Firearms Act is of a minor character. Accordingly no other punishment but a small fine is required."           The applicant was fined 300 Swedish crowns and in its judgment the District Court also decided to forfeit the rifle.   In doing this the District Court referred to an official record containing the decision to seize the rifle.   In this record the object seized was described as follows : "one piece of bullet rifle, manufacture FN, calibre 22 LR, manufacturing number 314741, breech-block missing. Weapon in cover."           On 4 September 1984 the applicant appealed against the judgment to the Court of Appeal for Western Sweden (hovrätten för Västra Sverige).   In his appeal the applicant maintained that the police had not investigated the case properly, that new information had appeared, that the judgment would have a negative effect on his future life, that the Firearms Act had been misinterpreted and he questioned whether he could at all be held responsible.   In particular the applicant pointed out that the owner of the rifle was a son of his stepfather and not his mother and, secondly, he maintained that the rifle could not be considered a weapon within the meaning of the Firearms Act since the breech-block was missing.   In respect of the latter, he suggested to hear his mother and his brother as witnesses in order to have established that the rifle was without a breech- block.           On 23 October 1984 the applicant was informed by the Court of Appeal that, according to Chapter 51, Section 21 of the Code of Judicial Procedure (rättegångsbalken), his case could be dealt with by the Court of Appeal without a main hearing.   Therefore he was asked to state whether or not he wanted such a main hearing and, if so, what kind of evidence he would rely upon.           In reply to the above, the applicant informed the Court of Appeal on 24 October 1984 that, since he was without means, he would like the Court to appoint counsel and, furthermore, he concluded that this of course also meant that a main hearing should take place with the parties present.   By letter of 15 February 1985 the applicant in addition informed the Court of Appeal that he had been refused certain jobs as attendant due to the fact that he had been found guilty by the District Court.   Accordingly he maintained that the case was no longer to be considered as a trifle but that it was very important for him to have his name cleared.           From notes made on the applicant's above letter by one of the Court's officials it appears that the applicant was called by telephone on 18 February 1985 and informed how the case would now proceed.   Furthermore it appears that the applicant, during a telephone conversation on 4 March 1985, explained that he wished to have a defense counsel appointed.   The notes finally indicate that the applicant did not maintain his request for the hearing of witnesses since the question of the missing breech-block was no longer in dispute.           By decision of 27 February 1985 the Court of Appeal refused to appoint counsel for the applicant, finding no reasons to justify such appointment.   The applicant appealed against this decision to the Supreme Court (Högsta domstolen) which, however, refused leave to appeal on 19 June 1985.           In the meantime the applicant had received, on 6 March 1985, a letter from the Court of Appeal informing him that, since the case could be dealt with without a main hearing, he had ten days to submit his final written submissions.   On 11 March 1985 the applicant sent a letter to the Court of Appeal in which he maintained, inter alia, that the rifle could not be considered a weapon within the meaning of the Firearms Act since it had no breech-block.   He suggested that his brother be heard as a witness in order to substantiate that the rifle had never had a breech-block while in the applicant's possession.           In this letter the applicant also complained of the Court of Appeal's refusal to appoint counsel.   The respondent Government have submitted that the Court of Appeal did not regard the submissions of 11 March 1985 by the applicant as final submissions in the case.   They were regarded as an appeal against the Court's decision of 27 February 1985 on the question of defense counsel.   The respondent Government submit therefore, that these submissions were forwarded to the Supreme Court and did not form part of the case-file of the Court of Appeal.           The case was examined by the Court of Appeal on 22 August 1985.   On this day the Court of Appeal also decided that a main hearing in the Court would be manifestly unnecessary and that the case therefore could be dealt with without a main hearing in accordance with Chapter 51, Section 21, first paragraph of the Code of Judicial Procedure.   It was decided that this decision should be made public on the same day as the judgment was delivered.           On 2 October 1985 the Court of Appeal pronounced judgment in the case.   In the judgment the Court of Appeal stated:   "(The applicant) has submitted to the Court of Appeal the same information as was mentioned in the judgment of the District Court and added: When (his stepfather) and his mother separated (his stepfather) forgot the rifle at the mother's place of residence at Furuby.   Since (the applicant's stepfather) has died it is his son ... who now owns the rifle.   It is undisputed that (the applicant) has been in possession of the rifle without a permit.   Regardless of how it came into his possession and who owns it, he shall therefore be convicted for having violated the Firearms Act.   The sentence should be as determined by the District Court.   The Court of Appeal, which accepts (the applicant's) information as to how the rifle came into his possession, finds that he is at least not the owner of it.   The question of confiscation of the rifle accordingly concerns a person who is not accused in this case.   The question of confiscation should be directed against the owner of the rifle in accordance with Section 17 of the Act of 1946 concerning the promulgation of a new Code of Judicial Procedure.   This has not happened in the present case.   The request for confiscation is therefore rejected."           The applicant appealed against the judgment to the Supreme Court.   In his request for leave to appeal, the applicant maintained that he had not violated the Firearms Act since the rifle could not be considered a weapon as it had no breech-block.   He complained that the lower courts had disregarded this vital information although he had pointed it out in his submissions and although he had requested a hearing in order to hear witnesses in this respect.   Furthermore he maintained that the conviction had had unforeseeable consequences for him.           On 3 March 1986 the Supreme Court refused leave to appeal.   B.       Relevant domestic law           The Firearms Act contains specific rules for the control of the right to possess and acquire firearms and ammunition.   According to Section 5 of the Firearms Act the possession of firearms is prohibited unless a permit to this end has been granted.   In Section 1 a definition of the concept of firearms is found.   It is provided, inter alia, that a firearm is a weapon which can fire a bullet, shot, harpoon or other projectile by means of gunpowder, carbonic acid, compressed air or other similar means.   The Firearms Act also provides that the provisions apply accordingly to certain separate parts of a weapon, e.g. a breech-block or barrel, and to weapons which are unusable if the weapon would count as a firearm had it been usable.   Anyone who intentionally possesses a firearm without a permit is, according to Section 37 of the Act, liable to imprisonment for a maximum period of two years.   If the act has been committed by negligence, or if the offence is of a minor character, the offender is liable to pay a fine or to imprisonment not exceeding six months.           Violations of the Firearms Act are considered criminal offences and the Code of Judicial Procedure is thus applicable.   By virtue of this Code judgments in criminal matters shall as a rule be rendered after a main oral hearing.   This rule applies to proceedings in the lower courts as well as in appeal proceedings.   Exceptions to this rule exist however at the appellate level.   Thus Chapter 51, Section 21 of the Code of Judicial Procedure, as amended as from 1 July 1984, reads as follows in the relevant parts:   "Hovrätten får avgöra mål utan huvudförhandling, 1. om talan av åklagaren förs endast till den tilltalades förmån, 2. om talan, som förs av den tilltalade, biträtts av motparten, 3. om det är uppenbart att vadetalan är ogrundad, eller 4. om det inte finns anledning att döma den tilltalade till    ansvar eller att ådöma honom påföljd eller döma honom till    annan påföljd än böter eller villkorlig dom eller sådana    påföljder i förening.     ...   Har i fall som avses i första stycket en part begärt huvudförhandling, skall sådan hållas, om det inte är uppenbart obehövligt.     ...   För prövning som inte avser själva saken behöver huvudförhandling inte hållas."   (translation)   "The Court of Appeal may rule an appeal without a main hearing, 1. if the prosecutor appeals only for the benefit of the    accused, 2. if an appeal brought by the accused is supported by the    opposing party, 3. if the appeal is plainly unfounded, or 4. if no reason exists to hold the accused legally liable, or    to impose a sanction upon him, or to impose a sanction other    than a fine or a conditional sentence, or a combination of    such sanctions.   ...   If, in a case referred to in the first paragraph, a party has requested a main hearing, such a hearing shall be held unless manifestly unnecessary.     ...   For a ruling not related to the merits a main hearing need not be held."           Swedish appeal courts review criminal cases with respect to law as well as facts.   However, there are certain limitations to the Court of Appeal's full jurisdiction.   Chapter 51, Section 25 of the Code of Judicial Procedure contains a prohibition against reformatio in pejus in certain cases.   This provision reads as follows:   "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."   (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 a 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 3 of the Convention, maintaining that his conviction amounts to degrading treatment and punishment.           The applicant also invokes Article 6 of the Convention, referring to "an impartial and public trial".   In particular the applicant maintains that his conviction simply followed standard case-law and, with reference to Article 6 para. 2, he maintains that, although he is innocent, he is now considered a criminal with the result that he cannot get certain jobs.   Furthermore, under Article 6 para. 3 (c), the applicant points out that he applied for, but was refused, the assistance of counsel although he did not have the necessary means to instruct one.   Under Article 6 para. 3 (d) the applicant refers to the fact that the witnesses, whom he wanted heard in the Court of Appeal, were not heard.           Finally the applicant maintains, under Article 13 of the Convention, that he did not have any effective remedy.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 28 July 1986 and registered on 18 December 1986.           The Commission decided on 7 October 1988 to bring the application to the notice of the respondent Government, inviting them to submit written observations on the admissibility and merits of the case.           The Government's observations were submitted on 27 December 1988 and the applicant's observations in reply were submitted on 13 July 1989.           Free legal aid was granted to the applicant by the Commission on 17 March 1989.   THE LAW   1.       The applicant has complained that he has been subjected to treatment contrary to Article 3 (Art. 3) of the Convention which reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           According to the case-law of the European Court of Human Rights and that of the Commission, treatment will be considered inhuman only if it reaches a certain degree of severity, causing considerable mental or physical suffering.   Furthermore, as for the criterion "degrading treatment", the treatment itself will not be degrading unless the person concerned has undergone humiliation or debasement attaining a minimum level of severity.   That level has to be assessed with regard to the circumstances of the concrete case (cf. for example, Eur. Court H.R., Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25).           Having regard to the above and to the submissions of the applicant the Commission does not consider that the present application discloses any appearance of a violation of Article 3 (Art. 3) of the Convention and 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 further complained that, in an unfair procedure, he was eventually convicted and sentenced by the Court of Appeal for Western Sweden to pay a fine and he has referred to Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention which read as follows:   "1.    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 interest 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.   2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."           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 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 or that he was not secured the right to be presumed innocent as guaranteed by Article 6 para. 2 (Art. 6-2) 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.   3.       As regards the examination of the case by the Court of Appeal the applicant has complained under Convention that he was refused legal aid although he did not have the necessary means to instruct a lawyer. Article 6 para. 3 (c) (Art. 6-3-c) provides:   "3.    Everyone charged with a criminal offence has the following minimum rights:     ...        (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."           The Commission does not exclude that the applicant, whose removal firm was bankrupt, had insufficient means to pay for legal assistance and the only issue is therefore whether the interests of justice required that he be granted legal aid before the Court of Appeal.           The Commission recalls that the interests of justice cannot be taken to require an automatic grant of legal aid whenever a convicted person wishes to appeal after having received a fair trial at first instance in accordance with Article 6 (Art. 6) of the Convention (see e.g. Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para. 67).   Important factors when determining   this question include the severity of the sentence, the personal ability of the applicant and the nature of the proceedings, e.g. the complexity or importance of the issues or procedures involved (cf. Granger v. United Kingdom, Comm. Report 12.12.88, para. 50).           Having regard to these elements and the applicant's submissions the Commission finds that the case, as it stood before the Court of Appeal, did not raise legal issues which the applicant could not be expected either to comprehend or to present to the Court in the procedure used by the Court of Appeal.   In these circumstances, the Commission finds that it has not been shown that the interests of justice, within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, required a grant of free legal assistance to the applicant.           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.   4.       As regards the proceedings in the Court of Appeal the Commission further 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.   5.       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.           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 (Art. 6) of the         Convention before the Court of Appeal;           DECLARES INADMISSIBLE the remainder of the application.     Deputy Secretary to the Commission           President of the Commission             (J. RAYMOND)                               (C.A. NØRGAARD)