CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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. 18066/91                     by Per-Göran NÄSS                     against Sweden          The European Commission of Human Rights (Second Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   S. TRECHSEL, President                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the 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 6 February 1991 by Per-Göran Näss against Sweden and registered on 10 April 1991 under file No. 18066/91;        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 facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant is a Swedish citizen, born in 1933.   He resides in Värmland, Sweden.   Before the Commission he is represented by Mr. Gunnar Berg, a lawyer practising in Stockholm.        Following the murder of the Swedish Prime Minister, Olof Palme, extensive police investigations commenced.   In connection with certain investigations in this respect it turned out that illegal electronic surveillance of possible suspects was carried out by the authorities.   Separate investigations into this matter commenced in 1989.   The applicant was interrogated and eventually suspected, in his capacity as a high official within the security police, together with five others, of having been involved in illegal electronic surveillance of possible suspects in the Palme case in eight instances.        By indictment of 27 March 1990 the applicant was charged with eight counts of illegal surveillance (olovlig avlyssning) contrary to Chapter 4, Section 9a of the Penal Code (brottsbalken).        In the course of 1990 the applicant requested the public prosecutor to undertake a number of further investigations and, in particular in respect of count eight of the indictment which concerned the alleged illegal surveillance of a person in Malmskillnadsgatan in Stockholm, the applicant requested the prosecutor to produce further documents from the archives and registers of the security police which primarily concerned Palestinian terrorist activities in Sweden.   The applicant's request was rejected by the public prosecutor as he considered the documents to be of no relevance to the case.        The applicant brought the prosecutor's refusal to undertake the investigations which he deemed necessary for his defence before the District Court (tingsrätten). By decision of 12 June 1990 the District Court rejected the request for the above documents to be produced as it found that the prosecutor's evaluation of what material was relevant for the trial was correct. It indicated that its decision could not be appealed against separately but only in connection with the judgment. The applicant, however, lodged an appeal with the Court of Appeal (hovrätten) alleging grave procedural error (domvilla). The Court of Appeal dismissed the appeal on formal grounds on 10 July 1990. The applicant's application to the Supreme Court (Högsta domstolen) for leave to appeal was rejected by the Supreme Court on 30 August 1990.        In the meantime, the applicant had on 14 June 1990 requested the security police to provide him with the material in question which also concerned the resident of the apartment in Malmskillnadsgatan and his alleged involvement in Palestinian terrorist activities in Sweden.   His request was, however, rejected by the security police on 18 June 1990 with reference to Chapter 7, Section 17, of the Secrecy Act (sekretesslagen). This decision was upheld by the Administrative Court of Appeal (Kammarrätten) on 31 July 1990 and by the Supreme Administrative Court (Regeringsrätten) on 7 December 1990.      The applicant finally requested the Government to hand out the material in question. He relied on a provision of the Secrecy Act according to which the Government may order that certain secret material be handed out to an individual in case the individual concerned establishes that his rights depend on the secret information. However, by decision of 9 August 1990 the Government rejected the applicant's application. They stated that there was no ground on which the applicant's request could be granted. Consequently, the Government considered the applicant could effectively exercise his rights without having recourse to the secret information.        The applicant challenged the lawfulness of the Government's decision of 9 August 1990 in the Supreme Administrative Court. However, by decision of 7 December 1990 the Court found that it lacked competence to deal with the applicant's appeal as the matter submitted did not fall under the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut).        In the meantime the applicant's trial had commenced in the District Court of Stockholm.   The applicant, present and represented by counsel, decided to make use of his right not to express himself as to the charges brought against him.   The Court heard several witnesses and a substantial amount of documentary evidence was submitted.   Following an evaluation of the available evidence the District Court pronounced judgment on 20 December 1990 whereby the applicant was acquitted of all charges except one which concerned illegal electronic surveillance of an apartment at Vargvägen in Stockholm.   He was sentenced to pay fines totalling 10,500 SEK.        The public prosecutor appealed against the judgment to the Court of Appeal (hovrätten) in so far as the applicant had been acquitted and the applicant appealed against it to the extent he had been convicted.   In his appeal the applicant in particular requested the Court to dismiss (avvisa) the prosecutor's appeal in so far as it concerned the charges of illegal surveillance of the apartment at Malmskillnadsgatan and referred again to the fact that he had not been allowed access to documents held by the security police which in his opinion were of importance for his defence in this respect.        On 9 July 1991 the Court of Appel rejected the applicant's request for the dismissal of that part of the case and proceeded with it.   The applicant was heard and the Court further obtained statements from seventy witnesses.   Documentary evidence of more than 1,000 pages was also produced.   On the basis of an evaluation of this evidence the Court of Appeal pronounced judgment on 27 March 1992.   The applicant was found guilty of illegal surveillance in four cases and acquitted as regards the remaining four cases, including the surveillance in respect of the apartment in Malmskillnadsgatan.   He was given a suspended sentence (villkorlig dom) and ordered to pay fines totalling 18,000 SEK.        The applicant applied for leave to appeal to the Supreme Court in so far as he had been convicted.   However, leave to appeal was refused on 2 April 1993. COMPLAINTS        The applicant complains that he was not presumed innocent until proved guilty by law.   He refers in this respect to the prosecutor's attitude towards him and to the fact that the administrative authorities, the District Court and the administrative courts rejected his requests for documents from the security police which, in his opinion, were of importance to his defence.   The applicant invokes in this respect Article 6 para. 2 of the Convention.        The applicant further complains that he was not allowed to prepare his defence properly and thus did not have a fair trial in that he was denied access to the above documents.   He invokes in this respect Article 6 paras. 1 and 3(b) of the Convention.        As regards his trial the applicant also invokes Article 2 of Protocol No. 7 to the Convention explaining that he was deprived of his right to have his conviction reviewed by a higher tribunal.        Finally, the applicant complains that he had no access to a court within the meaning of Article 6 para. 1 of the Convention when the Government, on 9 August 1990, refused him access to the security police documents.   He refers in this regard to the fact that the Supreme Administrative Court dismissed his request for judicial review as such a review was not possible in the particular circumstances.     THE LAW   1.    The applicant complains that, in various respects during the course of the criminal proceedings against him, he was denied a fair trial.   He invokes in this regard Article 6 paras. 1-3 (Art. 6-1, 6-2, 6-3) of the Convention which in so far as relevant read as follows:        "1.   In the determination ... of any criminal charge      against him, everyone is entitled to a fair ... hearing ...      by an independent and impartial tribunal established by      law. ...        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;           ... ."   a.    Under Article 6 para. 2 (Art. 6-2) of the Convention the applicant complains that he was not presumed innocent until proved guilty according to law, exemplified by the public prosecutor's attitude against him and the unsuccessful attempts to obtain documents from the archives and register of the security police.        The Commission recalls that it has previously held that Article 6 para. 2 (Art. 6-2) may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.   This does not mean, however, that the authorities may not inform the public about criminal investigations.   They do not violate Article 6 para. 2 (Art. 6-2) if they state that a suspicion exists, that people have been arrested, that they have confessed etc. (cf. No. 8361/78, Dec. 17.12.81, D.R. 27 p. 37).        In the present case, as submitted by the applicant, the Commission has found no evidence which could substantiate the allegation that the public prosecutor or other Swedish authorities offended against the presumption of innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.   b.    The applicant also complains under Article 6 paras. 1 and 3(b) (Art. 6-1, 6-3-b) of the Convention that he could not prepare his defence properly and did not have a fair trial due to the fact that he was refused access to certain documentary evidence held by the security police.        In this respect the Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law.   As a rule it is for the national courts to assess the evidence before them whereas it is the Commission's task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (cf. for example Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 19, para. 39).        In the present case the Commission further recalls that the applicant's case was heard in the District Court and in the Court of Appeal where more than seventy witnesses submitted statements and a substantial amount of documentary evidence was produced. Nothing has emerged which could give rise to any misgivings as regards the fairness of the applicant's trial or his right to a proper defence in this respect.   It is true that the applicant could not obtain certain documents held by the security police. However, these documents related primarily to the charge of illegal electronic surveillance of the apartment in Malmskillnadsgatan, a charge of which he was acquitted both in the District Court and in the Court of Appeal.        In these circumstances the Commission does not consider that the fact that these documents were not available to the applicant could lead to the conclusion that he could not properly prepare his defence or did not have a fair trial, in so far as he was convicted and sentenced.        Summing up, the Commission recalls that the guarantees in paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 (Art. 6-1).   The Commission has considered the particular aspects and incidents invoked by the applicant and has found that these did not assume such importance as to constitute a decisive factor in the general appraisal of the trial.   In addition an examination of the conformity of the trial as a whole with the rules laid down in Article 6 (Art. 6) of the Convention has not disclosed any appearance of a violation of this provision either.        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.    Under Article 2 of Protocol No. 7 (P7-2) to the Convention the applicant complains that he was deprived of his right to have his conviction reviewed by a higher tribunal in so far as he was convicted by the Court of Appeal.        Article 2 of Protocol No. 7 (P7-2) reads 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 highest tribunal or was convicted following      an appeal against acquittal."        In respect of this particular complaint the Commission recalls that the applicant's case was heard in the District Court where he was acquitted of all charges, except one.   On appeal he was found guilty of three additional charges of illegal surveillance for which reason he applied for leave to appeal to the Supreme Court.   This was, however, refused by the Court.        The Commission notes that different rules govern review by a higher tribunal in the various member States of the Council of Europe.   In some member States like Sweden, a person wishing to appeal to the highest tribunal must apply for leave to appeal. The Commission considers that the procedure on the right to apply to the Supreme Court in the present case is in itself to be regarded as a review within the meaning of Article 2 of Protocol No. 7 (P7-2).        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.    Finally, the applicant complains that he had no access to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention when the Government, on 9 August 1990, rejected his request for access to documents held by the security police.        The Commission recalls that Article 6 (Art. 6) of the Convention only applies to proceedings which involve the determination of a civil right or obligation or a criminal charge.   The Commission considers, however, that it can be left open whether this requirement has been fulfilled in the present case.        The dispute which the applicant wanted determined was whether or not he could get access to certain documents.   This particular issue was considered by the District Court which, by decision of 12 June 1990, rejected the applicant's request. Furthermore, the Administrative Court of Appeal and the Supreme Administrative Court also examined the matter and rejected the applicant's requests on 31 July and 7 December 1990 respectively. Accordingly, the Commission finds that even assuming that the question of access to the documents   in question did involve a civil right or obligation, or a criminal charge, the applicant had access to a tribunal within the meaning of Article 6 (Art. 6) of the Convention in order to have the matter determined.      It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)