CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1992

.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. 14369/88                       by NOVIFLORA SWEDEN AKTIEBOLAG                       against Sweden         The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    S. TRECHSEL, Acting President                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    K. ROGGE, Deputy to the 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 29 April 1988 by NOVIFLORA SWEDEN AKTIEBOLAG against Sweden and registered on 8 November 1988 under file No. 14369/88;         Having regard to   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       7 May 1991 and the observations in reply submitted by the       applicant on 20 September 1991;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they appear from the submissions of the parties, may be summarised as follows.         The applicant is a limited liability company with its headquarters in Stockholm. Before the Commission it is represented by Mr. Jan Axelsson, of the law firm Johansson & Sjöstedt, Stockholm, who is also a member of the board of the applicant company. The other members of the board are the owner of the above law firm (D.J.) and a Dutch citizen.         The applicant company's registered address - Jungfrugatan 18, Stockholm - is the same as the address of a branch office of the above law firm. The main office of the law firm is located at Södertälje.         The applicant company carries on business as a wholesale distributor of flowers.   Particular circumstances of the case         At the request of the Regional Court (Arrondissementsrechtbank) of The Hague in relation to an investigation concerning tax offences allegedly committed in the Netherlands by the Dutch affiliate of the applicant company the State Prosecutor for Special Cases (stats- åklagaren för speciella mål) on 2 November 1987, in application of Sections 1 and 2 of the 1975 Act on the Use of Certain Means of Coercion at the Request of a Foreign State (lag 1975:295 om användning av vissa tvångsmedel på begäran av främmande stat; hereinafter "the 1975 Act") ordered and conducted a search of the applicant company's premises in Stockholm and subsequently of the main office of the law firm. Two Dutch police officers were present at the search of the main office, where a considerable number of documents pertaining to the applicant company as well as to its Dutch affiliate were seized. In the course of the search the Dutch police officers were informed of the contents of the documents found so as to enable them to assess their relevance for the investigation in the Netherlands.         At a hearing before the District Court (tingsrätten) of Stockholm on 6 November 1987 the applicant company, represented by D.J., contested the lawfulness of the seizure. D.J. submitted that he had received the documents in his capacity as advocate (advokat; i.e. member of the Swedish Bar Association) and that the primary issue to consider was the lawfulness of the search, as it had been conducted at a law firm. The State Prosecutor for Special Cases submitted that the search had been carried out, as D.J. was a representative of the applicant company and as the company had the same address as the law firm.         The District Court concluded that the seizure was lawful.         The applicant company appealed to the Svea Court of Appeal (Svea hovrätt).         On 16 November 1987 the Prosecutor lifted the seizure and returned the seized documents.           On 25 March 1988 the Svea Court of Appeal dismissed the appeal, finding that, as the seizure had been lifted and the documents handed back, the lawfulness of the seizure could not be examined, irrespective of whether or not the Prosecutor had been empowered to lift the seizure.         The applicant company appealed to the Supreme Court (högsta domstolen).         On 9 August 1988 the Supreme Court requested the Prosecutor- General (riksåklagaren) to supply information as to whether photocopies of the seized documents had been handed over to Dutch authorities.         In his reply of 28 August 1988 the Prosecutor-General denied that copies had been handed over by him or by the State Prosecutor for Special Cases.         On 6 October 1988 the Supreme Court quashed the Court of Appeal's decision and referred the case back to that Court for a new examination. The Supreme Court considered it established that photocopies of part of the seized documents had been made prior to the lifting of the seizure, but that they had not yet been handed over to the Dutch authorities. However, neither the Code of Judicial Procedure (rättegångsbalken) nor the 1975 Act authorised a Prosecutor to lift a seizure, as it may then no longer be reviewed by a court as to its lawfulness. The photocopies could, however, not be regarded as seized property and, therefore, the 1975 Act did not apply to them. Provided the seizure were considered unlawful the handing over of photocopies of seized documents to the Dutch authorities would also be excluded. The Supreme Court concluded that the appeal regarding the lawfulness of the seizure as such should have been examined by the Court of Appeal.         At a witness hearing before the Regional Court of The Hague on 13 October 1988 the two Dutch police officers assisting at the search confirmed that they had received photocopies of certain seized documents prior to the outcome of the court review of the lawfulness of the seizure. It further transpired that they had spent a week examining the seized documents at premises of the Swedish police.         On 14 September 1989 the Svea Court of Appeal found that the seizure had been unlawful. It also considered it established that certain seized documents had been photocopied prior to the lifting of the seizure. Following the lifting the original documents had been returned, but copies had been kept by the State Prosecutor for Special Cases. The Court of Appeal noted that the registered address of the applicant company was not the address of the main office of the law firm, but that of its branch office. Moreover, although D.J. was the only member of the board of the applicant company authorised to act alone on the company's behalf, the Court found nothing contradicting his statement that the seized documents had been handed over to him in his capacity as advocate.         Following the Prosecutor-General's appeal the Supreme Court on 14 September 1990 quashed the decision of the Court of Appeal. In view of the fact that the seizure as a whole had been lifted it limited its examination to the question whether the seizure had been lawful as regards the photocopied documents. It noted that the main part of those documents pertained to an appeal lodged on behalf of the applicant company with the National Board of Customs (generaltullstyrelsen) by Mr. Jan Axelsson. The remainder of the seized documents, also pertaining to the applicant company, had been entrusted either to D.J. or other staff members of the law firm in their capacity as advocates or assistants to an advocate. The Supreme Court started from the assumption that all photocopied documents had contained information entrusted to an advocate or to an advocate's assistant in this capacity or which he or she had acquired while acting in such a capacity. Thus, the documents had been protected from seizure under Chapter 27, Section 2 of the Code of Judicial Procedure and the seizure had been unlawful. The question of the lawfulness of the remainder of the seizure did not call for any further action.     Relevant domestic law   (a)    The conditions for a seizure and the property that may be       seized         According to Section 1 of the 1975 Act objects or written documents may, under certain conditions, at the request of a foreign state be seized and handed over to that state. The conditions under Sections 1 and 2 are, insofar as they are of relevance to the present case, that a person in the foreign state is suspected, accused or convicted of an offence which is punishable in that state and that the objects or written documents to be seized can be reasonably assumed to be of significance for the investigation of that offence.         By reference in Section 2 of the 1975 Act to Chapter 27, Sections 2 and 3 of the Code of Judicial Procedure the seizure of written documents is subject to certain limitations. As far as is relevant for the present case, no document may be seized if its contents can be assumed to be of such a character that the person possessing the document may not, according to Chapter 36, Section 5 of the Code, testify as a witness concerning the document.         Under the last-mentioned provision an advocate may be heard as a witness concerning matters entrusted to him in his professional capacity only if this is authorised by law or consented to by the person for whose benefit the secrecy obligation is imposed. However, in a criminal prosecution for an offence punishable by a minimum sentence of two years imprisonment or more, an advocate is obliged to testify, unless he is acting as counsel for the defence.   (b)    The conditions for a search and the premises that may be       searched         Under Section 2, paragraph 2 of the 1975 Act a search of premises may be carried out, in accordance with the provisions of Chapter 28, Sections 1 and 3 of the Code of Judicial Procedure, for the purpose of discovering property which is subject to seizure. From the reference to Chapter 28, Section 1 of the Code of Judicial Procedure it follows that for a search to be carried out there has to be a reason to believe that an offence punishable by imprisonment has been committed. Furthermore, a search of the premises of a person other than the one who reasonably can be suspected of the offence may be executed only if the offence was committed there, if the suspect was apprehended there, or if there is a particular reason to believe that the search would reveal an object subject to seizure. (c)    The procedure         Under Section 5 of the 1975 Act a request from a foreign state is normally to be submitted to the Swedish Ministry for Foreign Affairs. According to Sections 6 and 7 the Government shall, unless the request is immediately rejected, transmit it as well as other documents to the Prosecutor-General, who shall see to it that the measures required are carried out. In this context, Chapter 27, Sections 9-13 and Chapter 28, Sections 4-10 of the Code of Judicial Procedure are to be applied.         Under Chapter 27, Section 12 and Chapter 28, Section 8 a seized private document found at a search of premises may only be more closely examined by the Court, the Prosecutor or the chief investigating officer. However, by instruction of any of these the document may be inspected by an expert or any other person employed for the investigation of the offence. If the person carrying out the search is not competent to examine a document it should be sealed by him.         From Chapter 28, Section 4 of the Code of Judicial Procedure it follows that the search order is normally to be issued by the investigating authority, the prosecutor or the Court. When the search can be assumed to be extensive or cause particular inconvenience to the person at whose premises the search is conducted the search should not be made without a court order, unless a delay would entail risks.         According to Chapter 28, Section 7 the officer carrying out the search may obtain necessary assistance from an expert or any other person.         According to Section 8 of the 1975 Act the District Court of Stockholm shall immediately be notified of a seizure made under this Act for consideration of, inter alia, whether the seizure has been executed on lawful grounds. The Court shall hold a hearing in the case as soon as possible. The Court's decision may, in accordance with provisions contained in Chapters 49, 52, 54 and 56 of the Code of Judicial Procedure, be appealed to the Svea Court of Appeal and ultimately to the Supreme Court.         Following the termination of the court proceedings the Prosecutor-General shall, according to Section 9 of the 1975 Act, hand over the matter to the Government. If the seizure has been found not to have been carried out on lawful grounds the Government shall refuse the request of the foreign state.   (d)    The control of as well as the State's civil liability with       regard to the exercise of public power         Public authorities and officials are subject to supervision both by the Parliamentary Ombudsman (riksdagens justitieombudsman) and the Chancellor of Justice (justitiekanslern). Both the Ombudsman and the Chancellor can act on their own initiative as well as on the basis of complaints from the public, and both are empowered to institute criminal or disciplinary proceedings against an official who, by an act or omission, has wilfully or negligently disregarded his or her duties.           Under the Tort Liability Act (skadeståndslagen) the State may be liable, if a person suffers losses as a result of an act or omission by fault or negligence by an official in his or her exercise of public power.     COMPLAINTS   1.     The applicant company complains that the search of the main office of the law firm was unlawful and that it had no possibility effectively to challenge the lawfulness of the search before a tribunal meeting the requirements of Article 6 para. 1 of the Convention.   2.     The applicant company alleges an unlawful interference with its right to respect for its private life and correspondence as enshrined in Article 8 of the Convention. It refers to the seizure, the allowing of Dutch police officers to examine documents during the search as well as documents that were seized, the making of photocopies of seized documents, and the handing over of copies to the Dutch authorities.   3.     The applicant company further alleges that the search, the seizure and the subsequent handling of its property violated Article 1 of Protocol No. 1 to the Convention.   4.     The applicant company finally alleges a violation of Article 13 of the Convention in that it had no effective remedy against the alleged violations of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 April 1988 and registered on 8 November 1988.         On 25 February 1991 the Commission decided to communicate the application to the respondent Government and to request them to submit their written observations on its admissibility and merits. The Government's observations were submitted on 7 May 1991. On 20 September 1991 the applicant company submitted its observations in reply.     THE LAW   1.     The applicant company complains that the search of the law firm's main office was unlawful and that there was no possibility for the applicant company effectively to challenge the lawfulness before a tribunal meeting the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as relevant:         "In the determination of his civil rights and obligations       or of any criminal charge against him, everyone is entitled       to a ... hearing ... by an independent and impartial       tribunal ..."           The Commission has examined the alleged unlawfulness of the search in connection with its considerations under Article 8 (Art. 8) of the Convention (see (a) below).         As regards the alleged absence of a right to an effective court remedy in order to challenge the lawfulness of the search the Government submit that the search did not involve any determination of the applicant company's civil rights or obligations or of any criminal charge against it. Accordingly, they consider the complaint to be incompatible ratione materiae with the provisions of the Convention. In any case, the complaint is manifestly ill-founded, as the applicant company did not institute any criminal proceedings against the officials alleged to be responsible for the search, nor did it institute any civil proceedings claiming damages. Both these proceedings would have been conducted before tribunals meeting the requirements of Article 6 para. 1 (Art. 6-1).         The applicant company contends that the search did concern its civil rights and that neither criminal nor civil proceedings would have enabled it to challenge the lawfulness of the search.         The Commission considers that neither the search order nor the proceedings for challenging that order determined any of the applicant company's civil rights or obligations or any criminal charge against it. Thus, Article 6 (Art. 6) is not applicable.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.     The applicant company further complains that the seizure, the allowing of Dutch police officers to examine documents during the search as well as documents that were seized, the making of photocopies of seized documents, and the provision of copies to the Dutch authorities unlawfully interfered with its right to respect for its private life and correspondence as guaranteed under Article 8 (Art. 8) of the Convention.         Article 8 (Art. 8) of the Convention reads:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."   (a)    The lawfulness of the search and the allowing of Dutch police       officers to assist at the search and to examine documents       during the search         As regards the search as such the Government submit that the complaint is inadmissible for non-exhaustion of domestic remedies. Whilst the allegations made by the applicant company before the Commission were admittedly made during the review of the lawfulness of     the seizure as such they did not fall within the scope of those proceedings. However, as the allegations, if found accurate, would constitute a basis for public prosecution, the applicant company could have instituted criminal or civil proceedings.         As regards the further measures allegedly taken in connection with the search the Government submit that the complaint is incompatible ratione materiae with the Convention, there having been no interference with the applicant's right to respect for its private life and correspondence. There is no indication that the seized documents did not exclusively relate to the applicant company's business activities. The seizure was carried out at the premises of the lawyer representing the company in such activities. Moreover, there is no indication that the dispatching, transmission or reception of the company's correspondence was interfered with. In the alternative, the Government reiterate their objection that the complaint is inadmissible for failure to exhaust domestic remedies. In any case, the Government contend it is manifestly ill-founded, as the presence of the two Dutch officials did not in itself render the seizure unlawful, their presence being allowed under Chapter 28, Section 7 of the Code of Judicial Procedure.         The applicant company contends that the remedies referred to are not effective for the purposes of challenging the lawfulness of a search including its modalities.         Under Article 26 (Art. 26) of the Convention the Commission may only deal with a complaint after all domestic remedies have been exhausted, according to the generally recognised rules of international law. An applicant must make normal use of remedies likely to be effective and adequate in respect of the matters of which he complains (cf. No. 10978/84, Dec. 14.10.86, D.R. 49 p. 144 [155] with further references). The burden of proving the existence of available and sufficient remedies lies upon the State (Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26).         The Commission agrees with the applicant company. The Government have not referred to any case-law showing how any of the proceedings referred to by the Government could be regarded as an effective remedy under Article 26 (Art. 26) of the Convention, particularly in the absence of any criminal proceedings having been instituted by the Public Prosecutor or any criminal or disciplinary proceedings having been instituted by the Parliamentary Ombudsman or the Chancellor of Justice.         In these circumstances the Commission concludes that the remedies referred to by the Government cannot be considered to be effective and adequate for the purposes of Article 26 (Art. 26) in respect of this complaint.   (b)    The lawfulness of the seizure and the subsequent handling of the       seized documents         As regards the alleged unlawfulness of the seizure as such the Government submit that the applicant company can no longer claim to be a victim under Article 25 (Art. 25) of the Convention, as the domestic court proceedings terminated in the Supreme Court's finding that the seizure, insofar as it had not already been lifted,   was unlawful. As a consequence the seized documents were returned. The complaint is therefore incompatible ratione personae with the provisions of the Convention.         In the alternative, the Government reiterate their objection mentioned under (a) that the complaint is incompatible ratione materiae with the Convention. In any case the complaint is manifestly ill- founded, the seizure having been made pursuant to the 1975 Act. The domestic courts' finding that the seizure was unlawful under Swedish law does not necessarily justify the conclusion that it was unlawful also for the purposes of Article 8 para. 2 (Art. 8-2) of the Convention. In the Government's view the requirement of lawfulness cannot require more from a Contracting State than the laying down of reasonably precise procedural guarantees as well as an appropriate mechanism to ensure that the relevant rules are adequately applied. The seizure was made on the basis of an interpretation in good faith of Chapter 27, Section 2 as well as Chapter 36, Section 5 of the Code of Judicial Procedure. That interpretation, also upheld by the District Court of Stockholm, was not so unreasonable as to justify the conclusion that the seizure was not made "in accordance with the law". Thus, taking into account the conditions laid down for the seizure, the procedural guarantees provided and the manner in which the 1975 Act was applied, the seizure was made "in accordance with the law".         As regards the subsequent handling of the seized documents the Government reiterate their objections mentioned under (a) that the complaint is either incompatible ratione materiae with the Convention or inadmissible for failure to exhaust domestic remedies. In any case it is manifestly ill-founded, as the allegation that photocopies of seized documents were handed over to Dutch officials or authorities has not been sufficiently substantiated. On the contrary, both the Prosecutor-General and Special Prosecutor stated before the Supreme Court that no copies had been handed over by them.         The applicant company contends that, although some photocopies were returned following the courts' finding that the seizure was unlawful, others had already been handed over to Dutch authorities. Therefore, it may still be considered a victim under Article 25 (Art. 25). It further asserts that, even assuming that the seizure as such were lawful under the terms of the Convention, there was no legal provision authorising the photocopying of such documents, nor any legitimate purpose justifying such photocopying pending a court review of the lawfulness of the seizure. The applicant company refers to the sworn statements by the Dutch police officers according to which they had been provided with copies, and contends that the Prosecutor-General and the Special Prosecutor were not the only public officials to have access to these photocopies. The fact that, when seized, the correspondence had already been delivered can be of no relevance.         The Commission recalls that where an applicant, by using remedies within the meaning of Article 26 (Art. 26) of the Convention, obtains adequate redress at the domestic level for the alleged violation of the Convention he can no longer claim to be a victim of that violation (cf. No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237 [243-244] with further references). In the present case there is no indication in the file confirming the Government's assertion that subsequent to the courts' finding that the seizure was unlawful the seized documents were returned. On the contrary, it has been established by the domestic courts that the original documents were returned already at a time when the seizure was still considered lawful and only after photocopies had been made. Thus, the Government have failed to show that the applicant company obtained redress.         In these circumstances the Commission concludes that the applicant company can still claim to be a victim under Article 25 (Art. 25) of the Convention.         The Commission further observes that the Government have not referred to any case-law showing how any of the proceedings referred to by them (see (a) above) could be regarded as an effective and adequate remedy for the purposes of Article 26 (Art. 26) of the Convention in respect of the present complaint. It follows that this objection must also be rejected.         The Commission has carried out, in the light of the parties' submissions, a preliminary investigation of the complaints under Article 8 (Art. 8) of the Convention. It considers that they raise questions of fact and law of such complex nature that their determination requires an examination of the merits. The complaints cannot therefore be declared inadmissible as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.     3.     The applicant company further alleges that the search, the seizure and the subsequent handling of the seized documents violated Article 1 of Protocol No. 1 (P1-1) to the Convention.         Article 1 of Protocol No. 1 (P1-1) reads:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         As regards the seizure the Government reiterate their objection mentioned above that the complaint is incompatible ratione personae with the Convention. In the alternative, it is manifestly ill-founded. The seizure admittedly interfered with the applicant company's use of the seized documents. However, the interference was lawful and justified in the general interest and not disproportionate to the legitimate aim pursued, that is to ensure that they could be handed over to the Dutch crime investigating authorities.         As regards the other measures complained of the Government submit that the complaint is incompatible ratione materiae with the Convention, as those measures did not interfere with the applicant company's rights under Article 1 of Protocol No. 1 (P1-1). In the alternative, the Government reiterate their objection mentioned above as regards non-exhaustion of domestic remedies.         The Commission observes that the facts of the present complaint are similar to those referred to in the complaints under Article 8 (Art. 8) of the Convention. The Commission has rejected the Government's objections to the admissibility of those complaints. It cannot exclude at this stage the applicability of Article 1 of Protocol No. 1 (P1-1) to the facts at issue. Accordingly, the present complaint must also be admitted.   4.     The applicant company finally complains of a violation of Article 13 (Art. 13) of the Convention in that it had no effective remedy against the alleged violations of its Convention rights.         Article 13 (Art. 13) 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."         As regards the seizure the Government reiterate their objection mentioned above that the complaint is incompatible ratione personae with the provisions of the Convention.         As regards the other measures complained of under Article 8 (Art. 8) of the Convention the Government reiterate their objection mentioned above that the complaint is incompatible ratione materiae with the Convention. In the alternative, it is manifestly ill- founded, as the remedies available to the applicant have not been exhausted.         The Commission finds that insofar as the complaint relates to the complaint under Article 6 para. 1 (Art. 6-1) of the Convention, found to be incompatible ratione materiae with the provisions of the Convention, the present complaint must be rejected on the same ground.         Insofar as the complaint relates to the complaints under Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) which have been admitted the present complaint must also be admitted.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the complaints under Article 8 (Art. 8) of the Convention,       Article 1 of Protocol No. 1 (P1-1) to the Convention and       Article 13 of the Convention, the last-mentioned insofar as it       relates to the issues under Article 8 (Art. 8) of the Convention       and Article 1 of Protocol No.1 (P1-1); and         DECLARES INADMISSIBLE the remainder of the application.     Deputy to the Secretary to                Acting President of      the Commission                         the Commission           (K. ROGGE)                             (S. TRECHSEL)