CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 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. 19853/92                       by Henning SJÖSTRÖM                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 12 October 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  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 15 January 1991 by Henning Sjöström against Sweden and registered on 15 April 1992 under file No. 19853/92;         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 1922 and resident in Stockholm. He is a lawyer by profession. Before the Commission he is represented by Mr. Peter Westdahl, a lawyer practising in Gothenburg.         The facts of the case, as submitted by the applicant, are as follows.   Particular circumstances of the case         In 1953 the applicant was enrolled in the Swedish Bar Association (Sveriges advokatsamfund). On 30 November 1990 the Disciplinary Board (disciplinnämnden) of the Bar decided to exclude him from the Bar with immediate effect. The disciplinary proceedings had been instituted in August 1990 following a report by a Special Prosecutor essentially indicating the following. The applicant had been the court-appointed official counsel ("offentlig försvarare") for G., who had been suspected of aggravated dishonesty with creditors, alternatively of complicity in such an offence ("grov oredlighet mot borgenärer alternativt medhjälp därtill"). G. had been detained from March to October 1989 during which period his right to send and receive correspondence had been restricted in accordance with Section 9, subsection 2 of the 1976 Act on the Treatment of Detained and Arrested Persons (lag 1976:371 om behandlingen av häktade och anhållna m.fl.). Further instructions had been given by the Prosecutor to the effect that G. had been prohibited from sending and receiving letters without their prior inspection by the Prosecutor. In June and July 1989, however, G. had managed to send and receive certain letters without their having been inspected. The letters concerned large financial transactions which G. had requested a bank abroad to carry out, inter alia a transaction of 1.1 million USD. All correspondence to and from G. had taken place with the help of a telefax device on the premises of the law firm where the applicant had been working.         On 4 October 1990 the District Court (tingsrätten) of Stockholm withdrew its appointment of the applicant as G.'s official counsel and refused to accept him as G.'s legal representative.         The Disciplinary Board heard the parties orally on 14 November 1990. In his written and oral submissions to the Disciplinary Board the applicant denied having conveyed letters to and from G., or having assisted in any such conveyance, in contravention of the rules in force. The applicant stated that letters had mistakenly been sent from the telefax of the law firm. He further admitted that G. had received information from the applicant's secretary pertaining to letters addressed to him and which had been received by the telefax of the law firm.         In its decision to exclude the applicant from the Bar the Disciplinary Board found it established that G. had been able to send and receive letters in contravention of the rules imposed by the Special Prosecutor by using the assistance of the law firm where the applicant was working. The circumstances under which the correspondence had taken place had been such that the pre-trial investigation of the economic offences of which G. had been suspected could have been jeopardised. While it had not been shown that the applicant had been aware of the correspondence prior to 19 June 1989, it had been established that he had not given his secretary sufficiently precise instructions in regard to the rules imposed by the prosecution. Taking also into account the public confidence attached to a lawyer appointed as official counsel, the Board considered that the applicant had to be regarded as responsible for the breaches of those rules. The Board further found that even subsequent to a discussion with his secretary on 15 June 1989 the applicant had neither himself verified the contents of the correspondence nor given any instructions preventing further correspondence from taking place in breach of the rules of the prosecution. Taking into account the applicant's considerable experience as a defence lawyer, the Board considered that he had grossly neglected his duties as a member of the Bar and that the circumstances of the case were extremely aggravating.         Two of the nine members of the Disciplinary Board dissented, considering that it had not been shown that the applicant had actively participated in the correspondence to and from G.. These members therefore voted for a warning and a pecuniary penalty. A third member voted for excluding not only the applicant from the Bar, but also one of his lawyer colleagues of the same law firm.         On 13 May 1991 the Supreme Court (Högsta domstolen) rejected the applicant's appeal following a hearing, where the applicant was again heard. The applicant was assisted by two members of the Bar. At the Disciplinary Board's request the Special Prosecutor was heard as a witness. At the applicant's request two members of the Bar as well as his secretary and G. were also heard. Both the applicant and the Disciplinary Board also submitted evidence in writing.         Before the Supreme Court the applicant explained, inter alia, that he had refused to answer certain questions put to him during the hearing before the Disciplinary Board, referring to his wish to safeguard G.'s interests and to the fact that the Special Prosecutor had been allowed to attend the hearing.         The Supreme Court could not find it established that the applicant had deliberately committed a wrongdoing or otherwise acted in a dishonest manner ("uppsåtligen gjort orätt eller annars förfarit oredligt") within the meaning of Chapter 8, Section 7 of the Code of Judicial Procedure (Rättegångsbalken). It, nevertheless, found that in his capacity as G.'s official counsel the applicant had assisted G. in such a manner that he had seriously neglected his duties as a member of the Bar. The Supreme Court further noted, inter alia, that G. had previously been found to have committed criminal offences and had been suspected of unusually significant and serious economic crime. In those circumstances the applicant had grossly failed to comply with the ethical rules of the members of the Bar ("god advokatsed"), and this warranted his exclusion from the Bar. As a further aggravating circumstance the Supreme Court observed that the applicant had failed to create guarantees that staff of the law firm would thoroughly investigate the contents of the correspondence to and from G. Two of the five justices of the Supreme Court dissented, voting for a warning and a pecuniary penalty.         The applicant submits that "for different reasons" the complaints now made to the Commission could not be made to the Supreme Court.   Relevant domestic law and statutes   1.     Duties of the members of the Bar         A member of the Bar shall honestly and diligently carry out his commissions and shall comply with the ethical standards of the Bar (Chapter 8, Section 4, subsection 1 of the Code of Judicial Procedure).   2.     Exclusion from the Bar         The members of the Bar are supervised by its Board. The Chancellor of Justice (justitiekanslern) may request that the Board, or another body of the Bar as prescribed by its statutes, take measures against a member who neglects his duties (Chapter 8, Section 6 and Sections 40-44a of the statutes of the Bar, the last-mentioned Section having been added subsequent to the period of relevance in this case).         A member may be excluded from the Bar if in his activities he has deliberately committed a wrongdoing or otherwise acted in a dishonest manner. If mitigating circumstances exist, a warning may be issued. A member may also be excluded if he otherwise neglects his duties as a member of the Bar and provided the circumstances are aggravating. If they are not aggravating he may be warned or be given a formal notification. If he receives a warning he may, for special reasons, also be ordered to pay a penalty to the Bar. The above questions shall be decided by the Board of the Bar or by the Disciplinary Board. The exclusion of a member may be ordered to be immediately enforced (Chapter 8, Section 7 of the Code of Judicial Procedure and Sections 40-44a of the statutes of the Bar).   3.     Composition of the Disciplinary Board         Seven members of the nine-member Disciplinary Board are elected by the General Assembly of the Bar, while two members are appointed by the Government. A member of the Board of the Bar shall not at the same time be a member of the Disciplinary Board (Section 12 of the statutes of the Bar). There is no obligation that any of the members should be a professional judge.   4.     Appeal proceedings         A member of the Bar can appeal against his exclusion in proceedings before the Supreme Court. Unless there are particular reasons the appellant shall be orally heard. The Disciplinary Board of the Bar shall be given an opportunity to submit written observations and, if an oral hearing takes place, also to submit its opinion orally (Chapter 8, Section 8 and Chapter 56, Section 14).   COMPLAINTS   1.     The applicant considers that the disciplinary proceedings against him "must be placed at an equal footing with a criminal charge within the meaning of Article 6 para. 1 of the Convention" in view of the severity of the sanction imposed on him. He complains that he did not receive a fair trial and that he was not presumed innocent until proven guilty according to the law. At any rate, the proceedings concerned his "civil rights" within the meaning of Article 6.         More specifically, the applicant challenges both the composition of the Disciplinary Board and its procedure as well as the procedure before the Supreme Court all of which in his view failed to meet the requirements of Article 6 of the Convention. He alleges, in particular, that there was no equality of arms between the parties. For instance, the Special Prosecutor had an ambivalent role in the proceedings, initially appearing as the conductor of the pre-trial investigation in the case relating to G., then as an "assistant" to the Disciplinary Board in the case relating to the applicant's exclusion from the Bar and subsequently as a "witness" before the Supreme Court in the last- mentioned case. In the proceedings before the Supreme Court the applicant was thus faced with two "opponents", namely both the Special Prosecutor and the Disciplinary Board. The role of the Secretary- General of the Bar Association in the proceedings before the Disciplinary Board is also alleged to have been detrimental to the applicant. Moreover, given that the majority of the members of the Disciplinary Board were themselves members of the Bar, they were biased in the consideration of the applicant's case. In this respect particular reference is made to the applicant's longlasting criticism of the Bar. In addition, the proceedings before both the Disciplinary Board and the Supreme Court were allegedly not sufficiently based on foreseeable procedural rules. Finally, neither the Disciplinary Board nor the Supreme Court gave sufficient reasons for the applicant's exclusion from the Bar.         The applicant asserts that at least if all above-mentioned elements are considered together his right to a fair trial has been violated.   2.     Under Article 6 of the Convention the applicant also complains that the proceedings before the Disciplinary Board were excessively lengthy.   3.     The applicant further complains that he has been held guilty of a criminal offence which did not constitute such an offence under national or international law at the time when it was committed. He submits that the consequences of his behaviour in respect of the correspondence to and from G. were not foreseeable due to the absence of any guiding case-law. He invokes Article 7 para. 1 of the Convention.   4.     The applicant also complains that he has been denied the right to have his "conviction" reviewed by a higher tribunal. He invokes Article 2 para. 1 of Protocol No. 7 to the Convention.   5.     The applicant finally complains that he has been deprived of an effective remedy within the meaning of Article 13 of the Convention against the alleged violations of his Convention rights. He refers, in particular, to the fact that his exclusion from the Bar was immediately enforceable.   THE LAW   1.     The applicant essentially complains that he did not receive a fair trial before the Disciplinary Board of the Swedish Bar Association and before the Supreme Court. He refers to a number of elements in the proceedings which in his view, at any rate if taken together, led to his being denied the guarantees afforded by Article 6 (Art. 6) of the Convention.         The relevant part of Article 6 (Art. 6) reads as follows:         "1.   In the determination of his civil rights or of any       criminal charge against him, everyone is entitled to a fair       ... hearing ... by an independent and impartial tribunal       established by law. ..."          The Commission recalls that disciplinary sanctions are generally designed to ensure that members of particular groups comply with the specific rules governing their conduct (Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177, p. 18, para. 33). It finds that the proceedings instituted against the applicant were only of a disciplinary character and therefore did not concern the determination of a "criminal charge".         The Commission observes, however, that the proceedings complained of related to a dispute over the applicant's right to continue to practise his profession as a member of the Bar. This right could arguably be said to be recognised under domestic law and was clearly of a "civil" character. The dispute was furthermore genuine and serious and its outcome was directly decisive for the right in question (cf., e.g., Eur. Court H.R., H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 31 et seq., para. 37 et seq.). It follows that Article 6 para. 1 (Art. 6-1) is applicable in its civil aspect.         The Commission recalls that the principles enshrined in Article 6 paras. 2 and 3 (Art. 6-2, 6-3) relate to criminal charges and are therefore not relevant in the present case.         The Commission further recalls that Article 6 para. 1 (Art. 6-1) does not oblige States to submit disputes over civil rights to a judicial procedure which at each stage conforms to the said provision. It may be sufficient that, for instance, a professional body determines the dispute at first instance, provided that its decision is subject to review by a court under a judicial procedure satisfying the conditions of Article 6 (Art. 6) (e.g. Eur. Court H.R. Öztürk judgment of 21 February 1984, Series A no. 73, pp. 21-22, para. 56). Accordingly, the Commission will limit itself to examining whether the proceedings before the Supreme Court complied with Article 6 (Art. 6).         Even assuming that the applicant has exhausted domestic remedies as required by Article 26 (Art. 6) of the Convention, the Commission further recalls that it is normally not competent to deal with a complaint alleging that errors of law and fact have been committed by domestic courts. An exception could be made where the Commission considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or one of its Protocols, for instance in that a judgment has no legal justification and thereby violates a party's right to receive a fair trial (cf. Eur. Court H.R., De Moor judgment of 23 June 1994, Series A no. 292-A, para. 55). As a general rule, however, it is for the domestic courts to assess the evidence before them, in particular since they have the benefit of hearing witnesses and assessing their credibility (e.g. Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20, para. 43; Klaas judgment of 22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30). The task of the Convention organs is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken and submitted, were fair (cf., e.g., the above-mentioned Lüdi judgment, loc.cit.).         In regard to the fairness of the proceedings before the Supreme Court the Commission observes that they were governed by the Code of Judicial Procedure. The examination of the applicant's appeal included an oral hearing of the applicant concerning both the facts and the law of the case. While it is true that the Special Prosecutor was heard as a witness at the request of the Disciplinary Board, two members of the Bar as well as the applicant's secretary and G. were all heard at the applicant's request. Moreover, the further written evidence submitted by the Disciplinary Board was countered by the applicant, who also submitted such further evidence.         The Commission further finds that, although the applicant objected to the presence of the Special Prosecutor when he was heard before the Disciplinary Board, there is no indication that he found it necessary to raise any similar objection in the proceedings before the Supreme Court. Nor has it been shown that the applicant objected to the hearing of the Special Prosecutor as a witness.         Finally, in regard to the merits of the Supreme Court's decision the Commission cannot find that its reasoning was in any way arbitrary or otherwise lacked a legal justification (cf., a contrario, the above-mentioned De Moor judgment, loc.cit.).         Having assessed all elements of the proceedings before the Supreme Court, the Commission concludes that the applicant was afforded a fair hearing within the meaning of Article 6 (Art. 6). Accordingly, there is no appearance of a violation of that provision.         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Under Article 6 (Art. 6) of the Convention the applicant also complains that the proceedings before the Disciplinary Board were excessively lengthy.         The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard to the following criteria: the complexity of the case, the conduct of the parties and that of the authorities dealing with the case (e.g., Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).         The disciplinary proceedings against the applicant were instituted before the Disciplinary Board in August 1990 and terminated before that body in November 1990. The overall proceedings were concluded in May 1991 with the Supreme Court's judgment. The total length of the proceedings thus amounted to less than a year. In the light of the criteria laid down in the Court's case-law the Commission cannot find that this length exceeded a "reasonable time". Accordingly, there is no appearance of a violation of Article 6 (Art. 6) in this respect either.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant further complains that he has been held guilty of a "criminal offence" which did not constitute such an offence under national or international law at the time when it was committed. He submits that the consequences of his behaviour in respect of the correspondence to and from G. were not foreseeable due to the absence of any guiding case-law. He invokes Article 7 para. 1 (Art. 7-1) of the Convention.         Referring to its conclusion under no. 1 above as regards "criminal charge", the Commission considers that the applicant's exclusion from the Bar did not constitute a conviction on account of a "criminal offence" within the meaning of Article 7 para. 1 (Art. 7-1). Article 7 (Art. 7) is therefore not applicable.         It follows that this complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     The applicant also complains that he has been denied the right to have his "conviction" of a "criminal offence" reviewed by a higher tribunal. He invokes Article 2 para. 1 of Protocol No. 7 (P7-2) to the Convention.         Referring to its conclusion under no. 3 above, the Commission considers that Article 2 of Protocol No. 7 (P7-2) does not apply in the instant case.         It follows that this complaint must also be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   5.     The applicant finally complains that he has been deprived of an effective remedy within the meaning of Article 13 (Art. 13) of the Convention.         Article 13 (Art. 13) reads as follows:         "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."         In view of its conclusions under nos. 1-2 above the Commission considers that in respect of those complaints the applicant has no "arguable claim" of a breach of a violation of this provision which would warrant a remedy under Article 13 (Art. 13) (see Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 20, para. 46).         In view of its conclusions under nos. 3-4 above the Commission considers that in respect of those complaints the applicant's complaint under Article 13 (Art. 13) must also be considered incompatible ratione materiae with the provisions of the Convention.         It follows that the complaint under Article 13 (Art. 13) must be rejected in accordance with meaning of Article 27 para. 2 (Art. 27-2) of the Convention partly as being manifestly ill-founded and partly as being incompatible ratione materiae with the provisions 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)