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. 15329/89                       by Roland JOHANSSON and Martin OLSSON                       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. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   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 20 January 1989 by Roland JOHANSSON and Martin OLSSON against Sweden and registered on 1 August 1989 under file No. 15329/89;           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 applicants are Swedish citizens born in 1925 and 1922, respectively, and resident at Borlänge.   They are retired.           The facts of the case, as submitted by the applicants, may be summarised as follows.           On 5 March 1984 the first applicant shot a protected elk because he had found it starved and sick.   Previously he had called the police and without official inspection of the elk obtained permission to shoot it.   The second applicant was also present at the shooting.   The applicants on the same day informed members of the local hunting association of the incident and subsequently made use of the meat partly for human consumption and partly as dogfood.           On 25 September 1984 the applicants were arrested and interrogated after the Chief Prosecutor I.D. of Borlänge in his capacity as Secretary to the local hunting association had reported to the police that, on the basis of an opinion from the National Veterinary Institute (statens veterinärmedicinska anstalt) on the elk's remains collected by members of the hunting association the applicants had illegally shot a healthy elk.   The first applicant was fetched from his home by the police at 14.30, interrogated from 14.55 to 16.00 and arrested at 16.00.   On 26 September 1984 from 16.20 to 17.05 he was again interrogated and at 18.30 he was released.   The second applicant was fetched from his home by the police at 10.15. From 10.30 to 12.55 he was interrogated and at 13.00 he was arrested. On 26 September 1984 from 10.30 to 12.10 he was again interrogated and at 18.20 he was released.   The first applicant's rifle was seized.           On 30 October 1984 the District Court (tingsrätten) of Falun revoked the seizure, as the first applicant could not reasonably be suspected of having committed an offence.           In October 1984 the first applicant was told by I.D. that "something really bad could happen to him" if he involved the press in the hunting case.   The incident took place in the street during office hours.           In connection with the investigation in September 1984 the National Veterinary Institute was asked to give an additional expert opinion.   This was delivered in March 1985.           In March 1985 the applicants were excluded from the hunting association.           On 30 September 1985 the District Prosecutor O.S. closed the pre-trial investigation.   Subsequently I.D. and the crime investigator in charge of the case requested the Regional Prosecutor to review the decision.           Following a re-opening of the pre-trial investigation as well as re-interrogations and interrogations of new witnesses the Regional Prosecutor on 13 February 1986 quashed the District Prosecutor's decision and ordered another District Prosecutor to bring charges against the applicants.           On 2 December 1986 the District Court convicted the applicants of a gross hunting offence.   They received suspended sentences and fines.   The judgment was given following a hearing and an inspection of the scene of the incident.   The applicants were represented by official counsel.   Nine witnesses were heard, six on the prosecutor's behalf and three on behalf of the defence.   The applicants alleged inter alia that the elk's remains had been exchanged as part of a conspiracy by members of the hunting association.           Following the judgment by the District Court and the applicants' appeal a supplementary police investigation was carried out on the scene of the crime.   It appears from the judgment of the Court of Appeal that as a result of that investigation an empty cartridge was found.   Subsequently, an opinion of the National Laboratory of Forensic Science (statens kriminaltekniska laboratorium) to that regard was submitted to the Court of Appeal.           On 28 April 1988 the Svea Court of Appeal (Svea hovrätt) held a re-hearing of all witnesses heard by the District Court and heard two new witnesses on behalf of the defence, one of whom was an expert witness.   On 11 May 1988 the District Court's judgment was upheld.           On 3 October 1988 the Supreme Court (Högsta domstolen) refused leave to appeal.           In June 1988 the applicants reported the pre-trial investigation and the court proceedings to the Parliamentary Ombudsman who in October 1988 dismissed the case as being out of time and outside his competence.     COMPLAINTS   1.       The applicants complain that they were unlawfully detained, the detention decisions being influenced by I.D. in his double role as Chief Prosecutor and member of the hunting association.   They invoke Article 5 para. 1 of the Convention.   2.       The applicants further complain that they did not receive a fair trial, as they were wrongly convicted by partial tribunals. In particular, they were not informed about their right to a lawyer during the interrogations in detention, the pre-trial investigation was not objective, and the first applicant, his wife and the expert witness were interrupted by the presiding judge during the hearing before the Court of Appeal.   Furthermore, because of their limited incomes there was no equality of arms in the court proceedings.   They finally submit that the court decisions were not made within a reasonable time.   They invoke Article 6 paras. 1, 3 (c) and 3 (d) of the Convention.   3.       The first applicant further complains that he was deprived of his right to freedom of expression, as he was warned by I.D. not to involve the press in the case.   He alleges that I.D. acted in his role as Chief Prosecutor.   He invokes Article 10 of the Convention.   4.       The applicants finally complain that they could not obtain a review by the Parliamentary Ombudsman of the alleged unlawful measures taken in their case.   They invoke Article 2 of Protocol No. 7 to the Convention and Article 13 of the Convention.   THE LAW   1.       The applicants complain that they were unlawfully detained, as the detention decisions were influenced by I.D. in his double role as Chief Prosecutor and member of the hunting association.   They invoke Article 5 para. 1 (Art. 5-1) of the Convention.           Article 5 para. 1 (Art. 5-1) of the Convention reads, insofar as it is relevant:   "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:     ...   (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ..."           The Commission observes that the applicants' detention ended on 26 September 1984, while their application to the Commission was introduced on 20 January 1989, that is more than six months later. Furthermore, an examination of the case does not disclose any special circumstances which might have interrupted or suspended the running of that period.           It follows that this part of the application has been introduced out of time contrary to Article 26 (Art. 26) and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicants further complain that they did not receive a fair trial, as they were wrongly convicted by partial courts.   They also submit that they were not informed about their right to a lawyer during the interrogations in detention, that the pre-trial investigation was not objective, and the first applicant as well as his wife and the expert witness were interrupted by the presiding judge during the hearing before the Court of Appeal.   They further submit that because of their limited incomes there was no equality of arms in the court proceedings, and that the court decisions were not taken within a reasonable time.   They invoke Article 6 paras. 1 and 3 (c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention.           Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as it is relevant:           "In the determination of ... any criminal charge against him,         everyone is entitled to a fair ... hearing within a         reasonable time by an independent and impartial tribunal         established by law..."         Article 6 paras. 3 (c) and 3 (d) (Art. 6-3-c, 6-3-d) of the         Convention read:   "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;   (d) 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; ..."   (a)      The Commission has first examined the complaints under Article 6 paras. 1, 3 (c) and 3 (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention insofar as they pertain to the alleged wrong conviction and the fairness of the proceedings, including the pre-trial investigation.           The Commission first 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 (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 p. 31, 45).           As a general rule, it is for the national courts, and in particular for the court of first instance, to assess the evidence before them.   It must therefore be determined whether the proceedings as a whole were fair, as required by Article 6 para. 1 (Art. 6-1) of the Convention (Eur.   Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A No. 146, p. 31, para. 68).           The Commission recalls that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as, under Article 26 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case it has not been shown that the applicants, either in form or in substance, submitted their above allegations of unfairness to the domestic courts.   They have, therefore, not exhausted the remedies available to them under Swedish law.   Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicants, according to the generally recognised rules of international law, from exhausting the domestic remedies at their disposal.           It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies and the complaint in this respect must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   (b)      The Commission has secondly examined the complaint under Article 6 para. 1 (Art. 6-1) of the Convention pertaining to the length of the criminal proceedings.   It recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the case-law of the Convention organs, in particular the complexity of the case, the conduct of the applicants and that of the relevant authorities (Eur.   Court H.R., Moreira de Azevedo judgment of 23 October 1990, Series A No. 189, p. 18, para. 71, with further reference).           The Commission observes that the applicants were arrested on 25 September 1984 and released on the following day.   On 30 September 1985 the District Prosecutor decided not bring charges against the applicants.   However, on 13 February 1986 the Regional Prosecutor quashed that decision and ordered another District Prosecutor to bring charges against the applicants.   Following further pre-trial investigations the District Court on 2 December 1986 held a hearing following which the applicants were convicted and sentenced. Following the applicants' appeal the Court of Appeal held a hearing on 28 April 1988.   On 11 May 1988 the District Court's judgment was upheld.   On 3 October 1988 the Supreme Court refused leave to appeal.           The period in question seems rather long.   The Commission in that respect, however, notes that the applicants' case was not a simple one, as was reflected by the fact that the District Prosecutor's decision was quashed and the pre-trial investigation re-opened.   This was so in particular in regard to the establishment of the facts, which necessitated inter alia expert opinions from the National Veterinary Institute.   Moreover, following the judgment by the District Court a supplementary police investigation was carried out on the scene of the crime.   It appears from the judgment of the Court of Appeal that as a result of that investigation an empty cartridge was found.   Subsequently, an opinion of the National Laboratory of Forensic Science in that regard was submitted to the Court of Appeal.   Taking into account all the circumstances of the case, which was dealt with in three instances, the length of the proceedings cannot be considered to be in violation of Article 6 para. 1 (Art. 6-1) of the Convention.           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.   3.       The first applicant complains that he was deprived of his right to freedom of expression in that he was warned by I.D. not to involve the press in the case.   He alleges that I.D. acted in his role as Chief Prosecutor.   He invokes Article 10 (Art. 10) of the Convention which reads:   "1.      Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.   This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.       The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."           Assuming that I.D. expressed himself in the way maintained by the applicant and that he did so in his capacity as Chief Prosecutor, the Commission does not, however, find that this involved, in the circumstances, an interference with the applicant's right under Article 10 (Art. 10) of the Convention.           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.       The applicants finally complain under Article 2 of Protocol No. 7 (P7-2) to the Convention and Article 13 (Art. 13) of the Convention that they could not obtain a review by the Parliamentary Ombudsman of the alleged unlawful measures taken in their case.   (a)      Article 2 of Protocol No. 7 (P7-2) to the Convention reads:   "1.      Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal.   The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.   2.       This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal."           The Commission observes that the District Court's decision was given on 2 December 1986.   However, Protocol No. 7 to the Convention entered into force with regard to Sweden on 1 November 1988.           It follows that the complaint in this respect is incompatible ratione temporis with the provisions of the Convention.   (b)      Article 13 (Art. 13) of the Convention reads:   "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."           The Commission finds no appearance of a violation of Article 13 (Art. 13) 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)