CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1995

.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 }                          SUR LA RECEVABILITÉ                       Application No. 23222/94                     by Mahmoud ISKANDARANI                     against Sweden        The European Commission of Human Rights (Second Chamber) sitting in private on 7 September 1995, the following members being present:             Mrs. G.H. THUNE, Acting President           MM.   H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN             Ms.   M.-T. SCHOEPFER, 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 5 December 1993 by Mahmoud Iskandarani against Sweden and registered on 10 January 1994 under file No. 23222/94;        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 1968 in Lebanon. He is unemployed and resides at Malmö. Before the Commission the applicant is represented by Mr. Bertil Leander, a lawyer practising at Malmö.        The applicant married a Swedish citizen, M, on 26 March 1989. On 30 September the same year their daughter, A, was born. Shortly afterwards the applicant and M separated. Mother and child settled in Nordmaling in the northern part of Sweden whereas the applicant remained in Malmö with the result that his possibilities of seeing A were limited. By judgment of 3 April 1992 the spouses divorced and an interim decision of 6 September 1991 granting custody of A to her mother was confirmed. No appeal was lodged against this judgment.        In the meantime, in the summer of 1991, the applicant planned the abduction of A. With the assistance of a friend the plan was carried out on 5 August 1991.        Whereas the abduction was first believed to be a kidnapping by strangers the investigations soon concentrated on the applicant who was arrested on 9 August 1991 and detained on remand. By indictment of 26 August 1991 he was charged with child abduction contrary to Chapter 7 section 4 of the Penal Code. The applicant confessed and by judgment of 3 September 1991 the Umeå District Court (tingsrätt) found him guilty of the charge brought against him and sentenced him to one year and six months' imprisonment. The applicant did not appeal against the judgment which accordingly became final.        In December 1991 the police commenced a new investigation into the whereabouts of A. The applicant was interrogated on 17 December 1991 and 7 May 1992. On 9 May 1992, the day on which he was to be released on probation, the applicant was arrested and detained on remand again, now charged with refusing, as from 7 September 1991, to inform the mother and the Swedish authorities of A's whereabouts in violation of Chapter 7 section 4 subsections 1 and 3 of the Penal Code. During further interrogations on 11, 12 and 18 May 1991 the applicant admitted that A was now in Tunisia but he refused to disclose where or who now cared for her.        By judgment of 27 May 1992 the Malmö District Court found the applicant guilty of the charge brought against him. The judgment reads inter alia as follows:        (translation)        "(The applicant) has stated as follows. (A) is now in      Tunisia. (He) knows who actually takes care of her. During      his imprisonment he has talked to this person twice. (The      applicant) has his telephone number. The only way in which      (A) may be returned to her mother is that (the applicant)      fetches (her) from Tunisia. (The applicant) has no      objection to (M) accompanying him to Tunisia. They have      discussed this possibility. (The applicant) must, however,      be there. Otherwise there is a risk that the person in      question out of fear of arrest will disappear with (A). In           order to protect the person in Tunisia (the           applicant) will not disclose his name or           telephone number. Different arrangements for           (A's) return have been discussed. If (the           applicant) cannot go to Tunisia there is,           however, no solution.        The Court's considerations:        Since (the applicant) refuses to give information      concerning the person who actually takes care of (A) at      present, he still withholds her from (M). His actions are      to be considered as a new offence as maintained by the      prosecution ... ."        The applicant was sentenced to one year and three months' imprisonment.        On 29 July 1992 the Court of Appeal (hovrätten) for Skåne and Blekinge upheld the judgment.        Having granted leave to appeal the Supreme Court (Högsta domstolen) pronounced judgment in the case on 28 September 1992. The Court stated inter alia as follows:        (translation)        "In the Umeå District Court's final judgment of      3 September 1991 (the applicant) was found guilty of having      abducted, on 5 April 1991, his daughter (A) who was then      under his and (M's) joint custody. In this case the      question arises whether (the applicant) has again committed      an offence of illegal and arbitrary removal or concealment      of a child from its rightful custodian (egenmäktighet med      barn) by failing to take action in order to return (A).        Arbitrary removal of a child from its custodian within the      meaning of the provision concerning the illegal and      arbitrary removal or concealment of children may occur not      only by abducting the child but also by withholding the      child. It should be possible to impose punishment for such      withholding even in respect of the person who was      previously convicted of child abduction.        In particular this is relevant when the child has been      removed from Sweden or is kept at an unknown place. First      of all this relates to situations where measures have been      taken subsequent to the previous judgment in order to      conceal the child from the custodian. However, if somebody      who illegally abducts a child simply fails to return it to      its custodian this does not necessarily mean that he      conceals the child. For example he may be without a      practical possibility of changing the situation. He may      also escape punishment if he has done his best in order to      return the child but this nevertheless turns out to be      insufficient.        (The applicant's) assistance has been necessary for the      return of the child. It is true that he has been deprived      of his liberty during the period of time to which the      indictment refers. Nevertheless, during this period he has           refused to reveal who takes care of the child           despite the fact that he said he knew with whom           the child was. As a result of this he must be           considered as having withheld the child from           (M)."        The sentence of one year and three months' imprisonment was upheld.        In the meantime the Swedish authorities had continued their efforts to find A. On 25 August 1992 the applicant informed the police of the name and telephone number of the person in Tunisia who allegedly took care of A. However, despite investigations carried out by the Swedish Embassy in Tunis this person, as well as A's whereabouts, remained unknown.        On 20 December 1992, two days before the applicant's conditional release from his previous sentence, the applicant was arrested and detained on remand again. By indictment of 19 January 1993 he was now charged with having arbitrarily withheld A from her mother during the period 28 May 1992 until 19 January 1993 contrary to Chapter 7 section 4 subsections 1 and 3 of the Penal Code.        By judgment of 5 February 1993 the Malmö District Court found the applicant guilty of the charge brought against him and sentenced him to two years' imprisonment. On the basis of the available evidence the court found that, despite the information given to the police on 25 August 1992 and thereafter, the applicant had not "done his best" in order to reunite A with her mother. This judgment was upheld by the Court of Appeal on 8 April 1993.        Having granted leave to appeal the Supreme Court pronounced judgment on 15 June 1993. In its judgment the Court stated inter alia as follows:        (translation)        "Having regard to the fact that (the applicant) has been      deprived of his liberty since his arrest on 9 August 1991      ... there is not sufficient reason to believe that (he) has      control over (A's) situation now.      ...      On this basis the Supreme Court finds that the judgment      should be quashed in so far as it concerns the period after      25 August 1992 when (the applicant) submitted that it was      (X) who took care of (A) and informed about a telephone      number where he could be reached.      ..."        The sentence was reduced to the extent that the previous sentence of one year and three months' imprisonment was found to cover also the present offence. The applicant was released from prison on 15 June 1993. The whereabouts of A are still unknown to her mother.   COMPLAINTS        The applicant complains, under Article 4 of Protocol No. 7 to the Convention, that he has been convicted three times for the same offence. He maintains that his final convictions of 3 September 1991, 28 September 1992 and 15 June 1993 all concern the same offence.   THE LAW        The applicant complains that he has been convicted three times for the same offence and invokes Article 4 of Protocol No. 7 (P7-4) to the Convention, the first paragraph of which reads as follows:        "No one shall be liable to be tried or punished again in      criminal proceedings under the jurisdiction of the same      State for an offence for which he has already been finally      acquitted or convicted in accordance with the law and penal      procedure of that State."        The Commission recalls that the applicant was charged, on 26 August 1991, with having abducted his daughter on 5 August 1991. He was found guilty of this charge by the Umeå District Court's judgment of 3 September 1991 which became final as neither the applicant nor the prosecution appealed against it.        Furthermore, the Commission recalls that on 27 May 1992 the applicant was found guilty of withholding the child from its legal custodian from 7 September 1991 until 27 May 1992 in that he refused to reveal the child's whereabouts. This judgment was eventually confirmed by the Supreme Court which found that the offence of child abduction committed on 5 August 1991 and that of subsequently withholding the child from its legal custodian were distinct from each other.        Finally, the Commission recalls that by final judgment of 15 June 1993 the Supreme Court confirmed the applicant's conviction in so far as it concerned the withholding of the child from its legal custodian during the period 28 May 1992 until 25 August 1992 on which date the applicant disclosed the information, believed to be in his possession, to the authorities.        In these circumstances the Commission is satisfied that the applicant was convicted in accordance with Swedish law for three different offences. Consequently, he was not tried or punished again "for an offence for which he has already been finally ... convicted" within the meaning of Article 4 of Protocol No. 7 (P7-4) to the Convention.        It follows that the application is 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                               Acting President the Second Chamber                          of the Second Chamber     (M.-T. SCHOEPFER)                               (G.H. THUNE)