CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.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. 33545/96                       by Marko SANDELIN                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:                Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 September 1996 by Marko Sandelin against Sweden and registered on 28 October 1996 under file No. 33545/96;         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 Finnish citizen born in 1963, is a construction worker.   He resides in Stjärnhov, Sweden.   Before the Commission he is represented by Ms Kerstin Koorti, a lawyer practising in Stockholm.         The facts of the present case, as submitted by the applicant, may be summarised as follows.   a.     The particular circumstances of the case         On 19 April 1995 the public prosecutor charged the applicant with an aggravated form of handling stolen goods (grovt häleri) under Chapter 9, Section 6, subsections 1:3 and 3 of the Penal Code (Brottsbalken).   According to the bill of indictment, on 6 April 1993 unknown persons had induced the postal giro service in Stockholm, by means of falsified forms, to transfer 783,600 Swedish crowns (SEK) from one account to the account of the applicant's company.   Allegedly realising that the amount had been acquired by fraudulent means, the applicant had furthered the offence by allowing his company's giro account to be used in the transaction and by assisting in the withdrawal of 750,000 SEK from the account on 7 April 1993.   The postal giro service, joining the proceedings as a civil party, claimed damages in the latter amount.         By judgment of 30 October 1995, the District Court (tingsrätten) of Stockholm considered that it could not be excluded that the applicant had acted without knowing that the amount in question had been illegally acquired.   Still, the court found it clear that the applicant had had good reasons to presume that the amount had been so acquired and that his actions had unduly aided others in taking possession thereof.   Thus, he was considered guilty of the minor form of handling stolen goods (häleriförseelse) under Chapter 9, Section 7 of the Penal Code.   However, as this offence was time-barred, the criminal charges were dismissed and no sentence was imposed on the applicant.   Nevertheless, as his civil liability was not time-barred, the applicant was ordered to pay damages in the amount claimed by the postal giro service.         The applicant appealed to the Svea Court of Appeal (Svea hovrätt).   He claimed that he was not liable to pay damages to the postal giro service, as he had not had good reasons to presume that the amount transferred to his account had been illegally acquired.   The public prosecutor did not appeal against the District Court's decision to dismiss the criminal charges and, consequently, was not a party to the appeal proceedings.         On 19 April 1996, following an oral hearing, the Court of Appeal upheld the District Court's judgment.         The applicant made a further appeal to the Supreme Court (Högsta domstolen).   In addition to what he had stated before the Court of Appeal, he maintained, inter alia, that the District Court's finding that he was liable to pay damages was based on an offence with which he had not been charged.         On 24 May 1996 the Supreme Court refused the applicant leave to appeal.b.   Relevant domestic law         The relevant parts of Chapter 9 of the Penal Code provide the following:   (Translation)         Section 6, subsection 1:         "A person who       ...          3. unduly furthers the possibility for somebody else to       take possession of property which has been illegally       acquired or of the value of such property,       ...       shall be sentenced for handling stolen goods [häleri] to       prison for a period not exceeding two years."         Section 6, subsection 3:         "If the offence under subsections 1 or 2 is aggravated, the       sentence shall be imprisonment for a period not less than       six months and not exceeding six years."         Section 7:         "If the offence under Section 6 is considered to be a minor       form of handling stolen goods [häleriförseelse], the       sentence shall be imprisonment for a period not exceeding       six months.          A person shall be sentenced for this minor offence also       if,       ...          2. in cases referred to under Section 6 subsection 1, he       did not realise but had good reasons to presume that a       criminal offence had been committed.       ..."     COMPLAINTS         The applicant complains that, as he was found guilty of an offence with which he had not been charged, he did not have a fair trial by an impartial tribunal.   He invokes Article 6 para. 1 of the Convention.     THE LAW         The applicant complains that, as the public prosecutor had charged him with only the aggravated form of handling stolen goods, the District Court's finding of guilt and the resulting liability to pay damages was based on an offence - the minor form of handling stolen goods - with which he had not been charged.   As the aggravated offence implies intent whereas the minor offence presupposes negligence, the applicant alleges that he was not able to defend himself against the offence of which he was found guilty.   For this reason, he did not have a fair trial by an impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission considers that not only Article 6 para. 1 (Art. 6-1) but also Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b) are of relevance to the applicant's complaint.   In relevant parts, these provisions read as follows:         "1.   In the determination of his civil rights and       obligations or of any criminal charge against him, everyone       is entitled to a fair ... hearing ... by ... an impartial       tribunal ...       ...         3.   Everyone charged with a criminal offence has the       following minimum rights:            a. to be informed promptly, in a language which he       understands and in detail, of the nature and cause of the       accusation against him;            b. to have adequate time and facilities for the       preparation of his defence"         The Commission recalls its case-law according to which an accused person has the right to be informed not only of the "cause" of the accusation, that is, not only of the acts with which he or she is charged and on which the indictment is based, but also of the "nature" of the accusation, namely the legal classification of the acts in question (cf., e.g., Nos. 24571/94 and 24572/94, Dec. 28.6.95, D.R. 82, p. 85).         As regards the circumstances of the present case, the Commission notes that the offence with which the applicant was charged was reclassified by the District Court.   Instead of the aggravated form of handling stolen goods under Chapter 9, Section 6 of the Penal Code, invoked by the public prosecutor, the applicant's conduct was found to constitute the minor form of handling stolen goods, as laid down in a different provision, Chapter 9, Section 7 of that Code.   A conviction for the aggravated form requires intent on the part of the perpetrator. The minor form applies inter alia to cases like the present one where intent cannot be demonstrated but where the person in question is considered to have been negligent.         The Commission further notes that the applicant was not informed, during the first instance proceedings, of the reclassification of the offence in question.   However, leaving aside the question whether the element of negligence could be said to be an intrinsic part of the original charge brought by the public prosecutor, the Commission recalls that the applicant was acquitted by judgment of the District Court of 30 October 1995 due to a time-bar.   The prosecutor did not appeal against the District Court's judgment and, consequently, the acquittal became final.         The applicant appealed against the District Court's judgment in so far as it concerned the question of damages.   The Commission notes that the appeal proceedings did not determine a criminal charge but only the applicant's civil liability to pay damages.   Consequently, Article 6 para. 3 (Art. 6-3) of the Convention did not apply to those proceedings, which are to be examined under Article 6 para. 1 (Art. 6-1) alone.         The liability to pay damages was based on the District Court's finding that the applicant was guilty of the minor form of handling stolen goods, as he had been negligent in allowing his company's giro account to be used and in assisting in the withdrawal of the amount in question from that account.   At the time of the appeal, it was clear to the applicant that this was the main issue in the case.   Thus, in his appeal petition and during the hearing in the Court of Appeal, the applicant was able - and in fact did - present his arguments in this respect.          Moreover, the Court of Appeal examined the applicant's arguments and could have reversed, if it had agreed with his contentions, the District Court's finding that he was guilty of negligent conduct.   As a consequence, his liability to pay damages would have been eliminated. In these circumstances, the Commission considers that the applicant had a fair hearing in the appeal proceedings.         Thus, having regard to the entirety of the proceedings, the Commission finds that the application fails to disclose any appearance of a violation of the applicant's rights under Article 6 (Art. 6) of 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.            M.-T. SCHOEPFER                            G.H. THUNE          Secretary                                President    to the Second Chamber                    of the Second Chamber