CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1993

.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. 18751/91                       by P.L. and N.L.                       against Sweden         The European Commission of Human Rights sitting in private on 5 May 1993, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS                       M.A. NOWICKI                    Mr.   K. ROGGE, Secretary to the Second Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 May 1991 by P.L. and N.L. against Sweden and registered on 29 August 1991 under file No. 18751/91;         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 husband and wife. They were born in 1965 and 1962 and are English and Swiss citizens, respectively. They live in Switzerland.         The facts as submitted by the applicants may be summarised as follows.         On 1 April 1991 the applicants arrived by ferry boat with their car at Trelleborg in Sweden which country they intended to visit for some days.   When they drove off the ferry they lost the front number plate in a small collision with another car. Due to a wrong change of gears they also approached the customs control with too high speed. However, they managed to stop in time. The customs officials decided to control the car.   The search revealed inter alia a loaded gun in the glove compartment and one gramme of marijuana in the first applicant's pockets. The applicants were arrested suspected of narcotics and weapon smuggling, searched and brought to different cells. The first applicant claimed that he was innocent as the gun was his wife's and as he had believed she was entitled to take it to Sweden. He asked to see his wife and a lawyer. When this was refused he became violent and in order to calm him down the police put him in a special cell with a straight- jacket and gave him a shot with a calmative. He was subsequently brought to a hospital where he was forced to take laxatives and thoroughly X-rayed. No further findings were made.         On 2 April 1991 the public prosecutor applied to the District Court (tingsrätt) of Trelleborg to have the applicants detained on remand charged with weapon smuggling.         On 3 April 1991 the applicants were allowed to see a lawyer and shortly thereafter they appeared before the District Court which ordered their detention on remand on account of the danger that they escape from the country and destroy evidence. Their request to be released on bail was refused.         On 4 April 1991 an article in Trelleborg Allehanda, a local newspaper, described the circumstances of the applicants' arrest and mentioned that they were detained on remand charged with weapon smuggling.         On 17 April 1991 the District Court, after a main hearing, convicted the applicants of smuggling and sentenced them to one month imprisonment each. As prescribed by the relevant provisions of the Criminal Code (brottsbalken), it declared that the time spent in detention on remand (16 days) should be deducted from the sentence. It decided that the applicants should remain in detention on remand until the judgment had become final.         The applicants were anxious to be able to return home as soon as possible in order to try to recover their jobs and to be able to care for the wife's small child which had been left in Switzerland. They maintain that they were told in the prison that the lodging of an appeal against the District Court's judgment implied that they would have to remain in prison until the Court of Appeal had heard their case, something which could take several months, and that the only way to ensure release after expiry of their one month prison term was to sign a waiver of appeal. After having contacted their defence lawyers who advised them to sign the waivers of appeal, they both signed such waivers on 19 April 1991.   They were released after having served their sentence.         According to Chapter 50, section 5, of the Code of Judicial Procedure (rättegångsbalken) an appeal containing a request necessitating immediate examination, such as an appeal against a lower court's decision to maintain the accused in detention on remand, shall be forwarded to the Court of Appeal without delay for decision.     COMPLAINTS   1.     The first applicant alleges violations of:   a)     Article 3 of the Convention as regards his treatment by the police;   b)     Article 5 para. 1 of the Convention in that he was at all times unlawfully detained since he could not be held responsible for his wife's negligence in not declaring her gun to the customs;         Article 5 para. 3 of the Convention in that he was not brought promptly before a judge, nor tried within a reasonable time, nor released on bail;         Article 5 para. 4 of the Convention in that he was refused the assistance of a lawyer in order to challenge the lawfulness of his detention;   c)     Article 2 of Protocol No. 7 in that he was forced to waive his right to appeal in order to recover his liberty after having served the sentence imposed at first instance;   d)     Article 6 of the Convention in that he did not have adequate time and facilities to prepare his defence, was refused permission to contact a lawyer during the first three days of arrest, could not himself choose his public defence counsel and was not presumed innocent as a result the prejudicial effects of the newspaper article of 4 April 1991.   e)     Article 8 of the Convention in that the authorities paid no attention to the fact that he had a job, a home and a child to look after and that the ensuing loss of his job has ruined his private and family life.   2.     The second applicant reiterated, mutatis mutandis, the above complaints under Articles 6 of the Convention and 2 of Protocol No. 7. However, by letter of 4 September 1992 she withdrew her complaint.     THE LAW   1.     The first applicant   a.     The first applicant alleges a violation of Article 3 (Art. 3) of the Convention as regards his treatment by the police on the occasion of his arrest. This Article provides:         "No one shall be subjected to torture or to inhuman or degrading        treatment or punishment."         The Commission notes, however, that the first applicant has not brought any proceedings for damages against the State or otherwise lodged any complaints before any Swedish authority on account of the matters complained of. In such circumstances the Commission cannot find that the first applicant has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention and, accordingly, this complaint is inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   b.     The first applicant also alleges violations of Article 5 paras. 1, 3 and 4 (Art. 5-1, 5-3, 5-4) of the Convention in that he was at all times unlawfully detained since he could not be held responsible for his wife's negligence in not declaring her gun to the customs, in that he was not brought promptly before a judge, in that he did not get a trial within a reasonable time, in that he was not set free against bail and in that he was refused the assistance of a lawyer in order to challenge the lawfulness of his detention. The relevant paragraphs of Article 5 (Art. 5) provide:         "1.   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:          a.   the lawful detention of a person after conviction by a            competent court;            ...        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;            ...        3.   Everyone arrested or detained in accordance with the            provisions of paragraph 1 (c) of this Article shall be            brought promptly before a judge or other officer authorised            by law to exercise judicial power and shall be entitled to            trial within a reasonable time or to release pending trial.            Release may be conditioned by guarantees to appear for            trial.          4.   Everyone who is deprived of his liberty by arrest or            detention shall be entitled to take proceedings by which the            lawfulness of his detention shall be decided speedily by a            court and his release ordered if the detention is not            lawful."         The Commission is satisfied that the first applicant was initially detained, in accordance with Article 5 para. 1 (c) (Art. 5-1-c), for the purpose of being brought before the competent legal authority on reasonable suspicion of having committed an offence and, after his conviction on 17 April 1991, in accordance with Article 5 para. 1 (a) (Art. 5-1-a) (cf., as regards detention pending appeal against conviction and sentence, No. 9132/80, Dec. 16.12.82, D.R. 31, p. 154).   The first applicant was duly released after having served his sentence.         The Commission also finds that the first applicant was brought promptly before a judge, as required by Article 5 para. 3 (Art. 5-3) of the Convention.   He was arrested on 1 April 1991 and was brought before a court on 3 April 1991.   This was sufficiently prompt to meet the above requirement (see, inter alia, No. 11256/84, Dec. 5.9.88, D.R. 57, p. 47).         The Commission further finds that the first applicant was tried within a reasonable time, as required by Article 5 para. 3 (Art. 5-3) of the Convention.   It here notes that the trial opened 16 days after the arrest.         As regards the alleged refusal to order release on bail, the Commission recalls that the aim of the guarantee laid down in the last sentence of Article 5 para. 3 (Art. 5-3) is primarily to prevent unnecessary detention in cases where the authorities only fear that the accused will not appear for trial (see, inter alia, Eur. Court H.R., Wemhoff judgment of 27 June 1968, Series A No. 7, p. 25, para. 15). In the circumstances of the present case, where the District Court found that there was also a risk of evidence being suppressed, the Commission does not find any breach of this provision.         The first applicant was allowed to see a lawyer, albeit for a short period of time, before the hearing relating to his detention on remand and to have the assistance of this lawyer in the course of the hearing. In these circumstances, the Commission finds no indication of a violation of Article 5 para. 4 (Art. 5-4) of the Convention.         It follows that the above complaints under Article 5 (Art. 5) are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   c.     The first applicant also alleges a violation of Article 2 of Protocol No. 7 (P7-2) to the Convention in that he was forced to waive his right of appeal in order to recover his liberty after having served the sentence imposed at first instance. This Article provides as follows:         "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 higher tribunal or was convicted following            an appeal against acquittal."         The Commission notes that the first applicant signed the waiver of appeal after he had been informed by the prison authorities that he would otherwise have to remain in prison until the Court of Appeal had decided his appeal and after he had been advised by his public defence counsel to accept the judgment of the court of first instance.   The Commission finds that the information given by the prison authorities merely restated the District Court's order that the first applicant should remain in detention on remand until its judgment had gained legal force.   The Commission furthermore finds that the advice given by the public defence counsel was not of such a character as to engage the responsibility of the State as it may have been based on many different legitimate considerations, e.g. related to an appeal's prospects of success (see, mutatis mutandis, Eur. Court of H.R., Artico judgment of 13 May 1980, Series A No. 37, p. 18, para. 36). In any case the first applicant could have chosen to pursue his appeal against the District Court's judgment, including its decision that he should remain in detention until the judgment had become final.   The Court of Appeal would then have been obliged to examine without delay the question of his continued detention and to order his release if detention was no longer justified.   The applicant has thus failed to establish that he was forced to renounce his right to appeal.         It follows that the present complaint is inadmissible under Article 27 para. 2 (Art. 27-2) of the Convention as being either manifestly ill-founded or incompatible, ratione personae, with the provisions of the Convention.   d.     The first applicant furthermore alleges violations of Article 6 (Art. 6) of the Convention in that he did not get adequate time and facilities to prepare his defence, was refused to see a lawyer during the first three days of arrest, could not himself choose his public defence counsel and also as a result of the prejudicial effects of the article of 4 April 1991 in the local newspaper. The relevant parts of Article 6 (Art. 6) read:         "1.   In the determination of ... any criminal charge against            him, anyone is entitled to a fair ... hearing ... by [a]            tribunal ... .          2.   Everyone charged with a criminal offence shall be presumed            innocent until proved guilty according to law.          3.   Everyone charged with a criminal offence has the following            minimum rights:            ...        b.   to have adequate time and facilities for the preparation of            his defence;          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 finds, in view of its above conclusion under Article 2 of Protocol No. 7 (P7-2), that it may be questioned whether the first applicant has, in accordance with Article 26 (Art. 26) of the Convention, exhausted domestic remedies in respect of the complaints concerning his conviction and sentence.   The Commission does not, however, consider it necessary to determine this question as these complaints are in any event manifestly ill-founded for the following reasons.         The Commission finds no indication that the first applicant was prevented from preparing his defence correctly. The first applicant was allowed to contact a lawyer on the third day of his detention, shortly before the District Court's hearing concerning detention on remand (cf. No. 11256/84, loc. cit.). There is no indication that the first applicant's access to his counsel was subsequently prevented in any way relevant under Article 6 (Art. 6) of the Convention.         The Convention does not guarantee the right to have an officially appointed defence counsel of one's own choice. In the instant case there is furthermore nothing to show that the acts of the appointed lawyer in any way prejudiced the first applicant's right to a fair trial before the District Court.         Finally, the impugned newspaper article gave a correct account of the facts and could not be put on par with a virulent press campaign capable of prejudicing the fairness of the trial (see, mutatis mutandis, No. 10486/83, loc. cit.).         The Commission concludes that the first applicant's complaints under Article 6 (Art. 6) of the Convention are inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   e.     The first applicant also alleges a violation of Article 8 (Art. 8) of the Convention in that the authorities did not, at any stage of his arrest and detention, pay attention to the fact that he had a job, a home and a child to look after and that the ensuing loss of his job has ruined his private and family life. This Article provides as follows:         "1.   Everyone has the right to respect for his private and            family life, his home and 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."         The Commission finds that the restrictions imposed on the first applicant while deprived of his liberty, to the extent that they could be seen as interferences with his private and family life, were justified under the second paragraph of Article 8 (Art. 8). Accordingly, the above complaints are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.     The second applicant         The Commission notes that the second applicant wishes to withdraw her complaints. In the light of its conclusions above, it finds no reasons relating to respect for Human Rights as defined in the Convention requiring a further examination of these complaints.         For these reasons, the Commission by a majority   1.     DECLARES THE FIRST APPLICANT'S APPLICATION INADMISSIBLE;   2.     STRIKES THE APPLICATION, INSOFAR AS IT CONCERNS THE SECOND       APPLICANT, OUT OF THE LIST OF CASES.     Secretary to the Second Chamber        President of the Second Chamber               (K. ROGGE)                             (S. TRECHSEL)