CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 28393/95                       by Clarence BOHLIN                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, 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 23 December 1994 by Clarence Bohlin against Sweden and registered on 31 August 1995 under file No. 28393/95;         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, a Swedish citizen born in 1952, resides in Stockholm. Before the Commission he is represented by Mr. Karl Potapoff, a lawyer practising in Stockholm.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 1 August 1989 a third person mistakenly deposited 46,000 SEK on the post office account of a company of which the applicant was the sole representative. On 26 October 1989 the applicant withdrew the amount. He held the cash until the post office requested him, on 13 March 1990, to repay the money to the correct account, which he did on 9 May 1990.         The applicant was later charged with fraudulent conversion (olovligt förfogande) under Chapter 10, Section 4 of the Penal Code (Brottsbalken), which provides the following:   (Translation)         "A person who ... takes measures with regard to property       which is in his possession but to which ownership or a lien       is reserved or secured or otherwise due to another person,       whereby the other person is deprived of the property or his       or her rights, shall be convicted of fraudulent conversion       and sentenced to a fine or imprisonment for a period not       exceeding two years."         In his defence, the applicant stated that he had received, within a week of the deposit, a statement of account indicating that the above amount had been deposited on the account. As he had at that time some problems with the tax authorities, he did not want to have the money on the account. He therefore withdrew the money and kept it in a drawer at home. As he had not had in his possession the cash which the third person had actually deposited on the company's account, he maintained that his conduct was not criminal.         By judgment of 9 April 1991, the District Court (Tingsrätten) of Stockholm found the applicant guilty of the charge against him and gave him a suspended sentence. The judgment was upheld on appeal by the Svea Court of Appeal (Svea hovrätt) on 27 February 1992.         The applicant appealed to the Supreme Court (Högsta domstolen). He claimed that his conviction was based on an unlawful analogous application of Chapter 10, Section 4 of the Penal Code. He maintained that this provision required, inter alia, that property owned by one person had been transferred to another person. The person who had deposited the amount in question could not, however, claim ownership to the specific banknotes and coins deposited on the post office account. That person could only claim the deposited amount and this claim had allegedly not been affected by the applicant's withdrawal.         On 12 July 1994 the Supreme Court upheld the Court of Appeal's judgment, finding that the different criteria of Chapter 10, Section 4 of the Penal Code were at hand. In particular, the Supreme Court considered that, following the withdrawal of the money in question, the applicant had had in his possession property belonging to another person. The Court further noted that the acts of this kind had long been considered as fraudulent conversion. It referred to four Supreme Court judgments from 1947, 1954, 1992 and 1993. In the two earlier judgments, the accused had been convicted of fraudulent conversion. In the later judgments, the conduct had been classified as fraud (bedrägeri), a more serious offence, due to the particular circumstances of those cases. The Supreme Court noted that the conduct in question had never been exempted from punishment.     COMPLAINT         The applicant complains, under Article 7 of the Convention, that his conviction was based on an unlawful analogous application of the Penal Code.   THE LAW         The applicant claims that his conviction was based on an unlawful analogous application of the Penal Code. He invokes Article 7 (Art. 7) of the Convention, which reads as follows:         "1.   No one shall be held guilty of any criminal offence on       account of any act or omission which did not constitute a       criminal offence under national or international law at the       time when it was committed. Nor shall a heavier penalty be       imposed than the one that was applicable at the time the       criminal offence was committed.         2.   This Article shall not prejudice the trial and       punishment of any person for any act or omission which, at       the time when it was committed, was criminal according to       the general principles of law recognised by civilised       nations."         The Commission recalls that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (Art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (cf. Eur. Court H.R., S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, para. 36, and C.R. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-C, para. 34).         In the present case, the applicant maintains that the person who had deposited the amount in question on the post office account could not claim ownership to the specific banknotes and coins. The applicant's conduct was therefore not criminal under Chapter 10, Section 4 of the Penal Code, as that provision required, inter alia, that property owned by one person had been transferred to another person.         However, although banknotes and coins are not distinguishable and the person who had deposited the amount on the company's account, therefore, could not claim ownership to the specific notes and coins deposited, the Commission finds that the Supreme Court's conclusion that the applicant, by withdrawing the money, had come into possession of property belonging to another person was consistent with the essence of the offence as defined by the relevant legal provision.         The Commission further notes that the Supreme Court's judgment was in line with its long established case-law. It was thus foreseeable, with appropriate legal advice, to the applicant that his conduct constituted a criminal offence under Swedish law.         Consequently, the applicant's conviction was not incompatible with Article 7 (Art. 7) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 7-2) 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)