CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1991

.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. 15328/89                       by Anders CARLSSON                       against Sweden             The European Commission of Human Rights sitting in private on 6 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 3 June 1989 by Anders CARLSSON against Sweden and registered on 1 August 1989 under file No. 15328/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Swedish citizen born in 1942.   He is currently detained in institutional psychiatric care at Sundsvall.   He is a music producer by profession.           The facts of the case, as submitted by the applicant, may be summarised as follows.           On 21 October 1988 the applicant was convicted of inter alia murder by the District Court (tingsrätten) of Stockholm.   The applicant acted as producer for the rock band of which the murder victim was a member.   The applicant was found to have anesthetized and cut his victim into pieces, which he had dropped in a river.   He was ordered to undergo psychiatric care.           In the river the police had found three plastic bags containing pieces of a corpse, three empty plastic bags, a suitcase and four pieces of a rubber foam mattress.   On the pieces of the corpse the police had found hairs which did not belong to the victim.   The autopsy showed traces of homosexual intercourse and diatyletic (anesthetizing) substances.           In the proceedings before the District Court thirteen witnesses were heard as well as the doctor who carried out the autopsy.   One of the witnesses heard was the complainant in a case in which the applicant in 1981 had been convicted and sentenced for having unlawfully threatened him (by knife and by attempting to anesthetize him) to have sexual intercourse.   The District Court further had regard to an expert opinion on the skull of the victim, a biological analysis of food eaten by the victim showing the probable time of the murder, the results from a fingerprint examination of the victim, as well as technical investigations carried out in the applicant's flat showing traces of blood which could be excluded to be his own, but could not be excluded to have been blood of the victim. In particular, it was noted that the sub-group of the victim's blood type was carried by only two per cent of the Swedish population.           Moreover, the District Court had regard to technical investigations showing that the fibres found on the plastic bags could have come from a bed frame and a rug in the applicant's flat. Particles of foam rubber found in the back seat and the boot of the car which the applicant had been renting at the time of the murder could not be excluded to have come from the pieces of mattress found in the river.   Particles of foam rubber found on a rug in the applicant's flat could have come from the same or a similar mattress. Finally, some of the hairs found on the pieces of the corpse could not be excluded to have come from the applicant.           In his appeal to the Svea Court of Appeal (Svea hovrätt) the applicant requested that an opinion by a forensic psychiatrist of 2 September 1988 as well as previous opinions on his mental state and a case book be reviewed by the Legal Board (rättsliga rådet) of the National Board of Health and Welfare (socialstyrelsen).   He further requested that a medicolegal opinion as well as a forensic-chemical opinion be reviewed by the Legal Board.   He finally requested that five new witnesses be heard, among others B.Ö., and that the statement of one of the witnesses heard by the District Court not be allowed as evidence.         By decision of 18 November 1988 the Court of Appeal decided to hear two of the witnesses.   As to the three remaining witnesses, including B.Ö., the Court considered that the circumstances which the applicant wanted to prove were of no importance in the case.   The remainder of the applicant's request was also rejected.           The Court of Appeal subsequently heard the applicant, the doctor who carried out the autopsy, witness R.H. and the two new witnesses.   Transcriptions of statements of eight of the other witnesses heard by the District Court were read out.           On 27 December 1988 the Svea Court of Appeal upheld the judgment of the District Court.           On 27 January 1989 the Supreme Court (Högsta domstolen) refused leave to appeal.           On 14 February 1990 the Supreme Court rejected the applicant's request for a re-opening of the case.           On 14 March 1990 the Supreme Court rejected the applicant's private action against the President of the Court of Appeal for being partial when deciding the case, for having wrongfully dismissed evidence referred to by the applicant and for wrongfully considering certain other evidence.           It further appears from the file that on 23 November 1989 the Prosecutor-General decided not take any action against the President.           In the ordinary proceedings before the domestic courts the applicant was represented by official counsel.     COMPLAINT           The applicant complains that his right to have the witness B.Ö. examined on his behalf has been violated.   He alleges that B.Ö.'s description of a car seen at the river where the pieces of the corpse were found as well as his description of the driver of that car could have shown that the murder was committed by R.H., another member of the rock band.   He invokes Article 6 para. 3 (d) of the Convention.     THE LAW           The applicant complains that his right to have the witness B.Ö. examined on his behalf has been violated.   He invokes Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which reads:   "Everyone charged with a criminal offence has the following minimum rights:     ... to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;..."           The Commission recalls that there is no absolute right under the Convention for a person charged with a criminal offence to have witnesses examined on his behalf (No. 8417/78, 4.5.79, D.R. 16 p. 200). The domestic courts have discretion to decide upon the relevance of proposed evidence insofar as this is compatible with the concept of fair trial (Eur.   Court.   H.R., Engel and Others judgment of 8 June 1976, Series A No. 22, pp. 38-39, para. 91; Eur.   Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).           In the present case it has not been shown that the applicant's allegation before the Commission that B.Ö. could have submitted information relevant to the case was brought to the attention of the Svea Court of Appeal or of the Supreme Court.   Moreover, the applicant requested that B.Ö. be heard as witness only before the court of the second instance.   The applicant has not submitted any explanation as to why B.Ö. was not called as witness already before the court of the first instance.           Even assuming that domestic remedies have been exhausted for the purpose of Article 26 (Art. 26) of the Convention the Commission observes that the District Court heard thirteen witnesses on circumstantial evidence as well as the doctor who carried out the autopsy of the victim.   Moreover, it had regard to a substantial amount of other circumstantial evidence.   During the hearing before the Svea Court of Appeal transcriptions of eight of the witnesses heard by the District Court were read out.   The applicant was further allowed to have two new witnesses heard.   During the whole of the ordinary domestic proceedings the applicant was represented by official counsel.   Having regard to the court proceedings as a whole there was an equality of arms between the prosecutor and the defence.           In view of the above considerations the Commission cannot find any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)