CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 février 1973

.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 }  THE FACTS   The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   1.    The applicant is a Swedish citizen, born in 1937 and resident in Stockholm. He is represented before the Commission by Mr. E. (1) ---------------------------------- (1)   Mr. E. has stated that he does not have any formal legal training, but that he has considerable experience of representing his clients in criminal and civil matters. According to him, he has been accepted as a legal representative by District Courts, Courts of Appeal and the Supreme Court in Sweden. He has also published a book on criminal procedure for laymen. ----------------------------------- 2.    On .. December 1969, the Stockholm City Court (rådhusrätt) convicted the applicant of driving while disqualified, gross usury and fraud and sentenced him to one year's imprisonment. He was acquitted of three further charges.   According to the indictment, the applicant was charged with gross usury for having engaged in private money-lending in the course of which he had, on at least 4,000 occasions, lent a total of about 2 million Swedish Crowns to a large number of people against a rate of interest varying between 140 and 480 per cent per annum. As security for the loans and the interest on them, the borrowers had given post-dated cheques and wage withdrawal slips.   In this connection, evidence was given by ten persons who had borrowed money from the applicant. The Court found that all these persons had been in a situation of distress and that the applicant had been aware of this. The benefits obtained by the applicant were clearly disproportionate to the services rendered. The Court did not consider that there was sufficient evidence for convicting the applicant of usury in all the above 4,000 cases referred to in the indictment. Having particular regard to the fact that most of the loans amounted to 500 Crowns or more, the Court assumed, however, that a substantial proportion of these loans (apart from the ten above cases) had been granted in such circumstances that the applicant was guilty of usury also in these cases.   The Court convicted the applicant of fraud on the ground that he had presented three cheques for payment although he knew that they were uncovered. In this respect, the Court relied on the evidence by a Mrs. C. that she had informed the applicant that there was no cover for the cheques and a copy of a letter from her to this effect.   3.    The applicant appealed against his conviction for gross usury and fraud but the City Court's judgment was confirmed by the Svea Court of Appeal (Svea hovrätt) on .. October 1970. The applicant's application for leave to appeal further was refused by the Supreme Court (Högsta domstolen) on .. September 1971.   4.    On .. October 1971, Mr E. lodged a complaint with the Parliamentary Commissioner (justitieombudsmannen) alleging that the applicant's conviction was contrary to Swedish law and to the Convention. He also complained that a memorandum drawn up by the Secretariat of the Supreme Court (nedre justitierevisionen) referred to a police report which had not been communicated to the applicant and that this memorandum did not deal with the applicant's arguments that the Court of Appeal had not been properly composed when hearing the applicant's case.   On .. January 1972, the Parliamentary Commissioner decided to take no action on the matter.   The applicant's complaints   As regards the composition of the City Court   5.    The applicant alleges a violation of Article 6 (1) of the Convention in that the City Court was not an "independent and impartial" court of law.   He submits that the court consisted of nine lay judges (nämndemän) under the presidency of a legally trained judge. The applicant points out that, under Swedish law, the lay judges decide on questions of law and fact and that they can overrule the judge if they are unanimous. The applicant refers to the nine lay judges who took part in his case. He claims that all were actively engaged in politics and were paid-up party members. One of them was a communist and two social-democrats and thus, by the very reason of the programmes of the parties concerned, negatively disposed to towards a private banker like the applicant. The applicant contends that none of the lay judges was a business man or otherwise versed in financial matters of the kind concerned. He also emphasises that seven of the nine lay judges were women and alleges that by reason of their occupation they could not be expected to be versed in the business in which the applicant was engaged.   The applicant refers to the provisions of Chapter 4 Sections 6 and 13 of the Swedish Code of Procedure (Rättegångsbalken) concerning the eligibility of lay judges and the conditions under which a judge shall be disqualified from hearing a case.   In the applicant's submissions there is no basis in the letter of the law for selecting lay judges only from active and paid-up party members, in particular as the parties only represent a limited part of the population. According to the applicant, Communist lay judges have been excluded from trials of Russian spies.   6.    At the trial, the applicant did not challenge any of the lay judges and he maintains that the reason for this was the fact that he was assisted by counsel appointed by the Court who did not dare to make such objection.   As regards the composition of the Court of Appeal   7.    The applicant complains that the Court of Appeal was not a lawfully constituted, independent court of law and he alleges a violation of Article 6 (1) of the Convention also in this respect.   The applicant points out that the Chamber of the Court of Appeal which heard his case consisted of two justices of appeal (hovrättsråd) and two assistant judges (hovrättsfiskaler) referred to by the applicant as "Reporting Clerks". The applicant refers to the provisions of Chapter 2, Sections 2 and 3 of the Code of Procedure and to the submissions made by the Swedish Government in application No. 3788/68 (Collection of Decisions, Vol. 35, pp. 56, 66). In the applicant's opinion the provisions of the Code do not allow an assistant judge to sit as a judge in the Court of Appeal. The applicant maintains that it follows from the Swedish Government's above submissions that an assistant judge may from time to time be assigned to judge cases in a District Court but he is then still under the supervision of permanent judges. Moreover, he is not irremovable and can be dismissed from his post without legal proceedings.   The applicant submits that, in his case, two civil servants - who could be dismissed at any time - decided an appeal against a judgement which had been given in a lower court by a more qualified judge. In the applicant's view, such procedure must be unheard of in any other court of appeal in countries which have ratified the Convention.   8.    The applicant states that he did not raise any objection in the Court of Appeal on this account as he was unaware at the time of the allegedly unlawful composition of the court. However, he did submit the question to the Supreme Court through Mr. E. Subsequently, his ex officio counsel withdrew this complaint without consulting the applicant. When the applicant heard of this, he himself wrote a letter in which he stated that he did not accept counsel's withdrawal. This letter was received by the Court before the final decision was taken.   As regards the applicant's conviction for usury   9.    The applicant complains that he was convicted without proof of having committed usury in respect of about 4,000 borrowers and he alleges thereby a violation of Article 6 (2) of the Convention.   He states that the prosecution's charge concerned, on the one hand, certain individual cases of usury and, on the other hand, at least 4,000 unspecified cases. He claims that there was accordingly no definite accusation. The applicant makes it clear that his present complaint does not concern the individual cases. However, he maintains that, according to the provisions of Chapter 9, Section 5 of the Criminal Code (brottsbalken), usury is "an individual crime".   The applicant states that he was convicted without the prosecution having to produce any evidence that he was aware that the majority of the 4,000 borrowers acted in distress, ignorance or foolishness, as required by the Code or that he had any criminal intent. He claims that the borrowers included public prosecutors and members of the Supreme Administrative Court (regeringsrätten), detectives and journalists. In this context, the applicant emphasises that all borrowers were obliged to give their reasons for borrowing in writing in a way which excluded usury. Moreover, he only applied the same rate of interest as the Bank of Sweden did for day-to-day loans.   He maintains that he was the victim of a miscarriage of justice, the only explanation for which is that the lower court was politically constituted and therefore partial, while the appeal court was not competent.   As regards the conviction for fraud   10.   The applicant alleges that he was convicted on insufficient evidence also in this respect, and he alleges again a violation of Article 6 (2) of the Convention.   The applicant submits that he lent a sum of money to Mrs. C. after she had falsely told him that she was closely related to a wealthy industrialist. Subsequent investigations revealed that she was a notorious swindler. He claims that he was convicted on her uncorroborated testimony. She swore no oath and did not dare to appear before the Court of Appeal.   As regards the proceedings before the Supreme Court   11.   The applicant submits that the Supreme Court failed to take into consideration that the Court of Appeal was not lawfully constituted and to set aside the conviction in respect of the majority of the 4,000 borrowers.   12.   In the applicant's original submissions he also complained that the above-mentioned memorandum which was drawn up by the Secretariat of the Supreme Court to assist the Supreme Court judges who decided whether or not the applicant should be granted leave to appeal, included a report prepared by the Criminal Investigation Department concerning the charge of usury. The applicant claimed that this report was largely incorrect and that he was not aware what had happened until after the Supreme Court had taken its decision.   The applicant maintained that the inclusion of the report was contrary to the provisions of Chapter 35, Section 4 of the Code of Procedure which prohibits (with certain exceptions) the admittance as proof of written statements made with a view to pending or contemplated court proceedings.   He claimed that, if he had been informed of the inclusion of the police report, he would have produced counter-evidence showing that the report and its conclusions were misleading and in parts actually untrue.   The applicant alleged thereby a violation of Articles (1) and (3) (d) of the Convention.   13.   The applicant was examined by a group of three members of the Commission on 2 June 1972. The group considered that there was not sufficient information in the file as regards the complaint concerning the alleged inclusion of the police report and instructed the Commission's Secretary to request the applicant:   - to submit a copy of the police report concerned; - to indicate exactly at what stage and by whom the report was filed   with the Supreme Court; - to state whether or not a copy of the report was sent to the   applicant's court-appointed counsel; - to indicate in what way the report was allegedly incorrect and to   what extent the applicant maintains that the report brought in   material which was not allegedly part of the file.   14.   In accordance with the instructions given by the group, the Secretary wrote to the applicant's representative on 6 June requesting the information concerned. The applicant's representative replied on 21 June 1972 enclosing a photocopy of the memorandum drawn up by the Secretary of the Supreme Court. In this memorandum there was a reference to a police report dated .. October 1969 in connection with the usury charge. The report appeared to be reproduced in full and covered two and a half pages of the twenty page memorandum. The applicant pointed out that the memorandum was secret until the Supreme Court had delivered its decision and that neither the applicant, his ex officio counsel nor his present legal representative were aware of the police report having been included in the memorandum. According to the applicant the Supreme Court bases its decision entirely on the memorandum and the material included therein.   The applicant maintained that it was not possible to "indicate precisely" in what way the report was incorrect, as, in his opinion, the inclusion of the police report itself was illegal. He referred specifically to two statements in the report, namely that (a)   "Many persons [in financial difficulties and tempted by the ease to get money in this way] were thereby trapped in a vicious circle of borrowing and could not get away" and (b)   that "the banks were caused losses by the activity". The applicant claimed that there was not the slightest proof for the first statement and that the second was completely untrue. Moreover, the report also referred to newspaper articles "from which it appeared" that the applicant was responsible. The applicant considered that the inclusion of the statement under (b) in a secret memorandum was sufficient evidence of Sweden having moved so far away from the standards of Western law that further arguments are unnecessary.   15.   In reply to a further letter from the Secretary, dated 26 June, the applicant's legal representative confirmed in a letter of 2 September 1972 that the police report to which he had referred formed part of the records of the preliminary examination (förundersökningsprotokoll) which had been filed with the City Court before the trial. He also pointed out that he had never denied that the applicant or his counsel had been given copies of the records concerned. The applicant emphasised that this material had never been relied on as evidence during the previous proceedings. The subject matter of his complaint was, however, that this material had been included in the memorandum of the Secretary of the Supreme Court although it did not form part of the evidence in the case. Such a memorandum should, according to the applicant, only include material which has been read out in court and in respect of which the parties have been able to make observations. The mere fact that receipt of the police report itself had been registered in the file was irrelevant.   THE LAW   1.    The applicant has complained that the courts based his conviction an incorrect interpretation of Swedish law and on insufficient evidence. However, in regard to the judicial decisions of which the applicant complains, the Commission has frequently stated that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, the Commission is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set forth in the Convention . In this respect, the Commission refers to its constant jurisprudence (see eg decisions on the admissibility of applications No. 458/59, Yearbook, Vol. 3, pp. 222, 232 and No. 1140/61, Collection of Decisions, Vol. 8, pp. 57, 62). In the present case, the Commission finds that there is no appearance of any such violation in connection with the decisions complained of.   An examination by the Commission of this complaint as it has been submitted, including an examination made ex officio, does not therefore disclose any appearance of a violation of the rights and freedoms set forth in the Convention and especially in the Article invoked by the applicant. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   2.    The Commission has next examined separately the applicant's specific complaints concerning the proceedings before the City Court and the Court of Appeal. In this connection, the applicant has alleged that neither court constituted an independent and impartial tribunal within the meaning of Article 6 (1) (Art. 6-1) of the Convention.   The Commission observes that the applicant has complained of both the selection of lay judges in general and of the alleged lack of competence of the nine particular lay judges who took part in his trial.   Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case, the applicant had the right to challenge, at his trial, any of the individual lay judges whom he considered to be biased but he did not make use of this possibility. On the other hand, it appears that the system, as such, of electing lay judges could not have been challenged and it is not clear whether the applicant could successfully have challenged any individual lay judge on the grounds stated in this application. The question therefore arises whether the applicant has satisfied the obligation to exhaust the domestic remedies. However, the Commission does not consider it necessary to determine this question in the present case since, even assuming that the applicant had exhausted all domestic remedies, an examination of this part of the application does not, in any event, disclose a violation of the Convention.   In this connection, the Commission observes that it is evident from the relevant provisions of the Swedish Code of Procedure that lay judges are independent of the executive and also of the parties in a case before the court. Moreover, the law provides that a particular lay judge (as all other judges) is disqualified from taking part in a case in certain situations and can be challenged on grounds of bias. There are therefore sufficient safeguards to ensure that lay judges are impartial and the applicant has shown no reason to suggest that they were not impartial in his case.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   3.    The Commission finds that the same ground of inadmissibility applies to the applicant's complaint concerning the composition of the chamber of the Court of Appeal which heard his appeal. In this connection, the Commission first observes that the applicant has only alleged that the Court of Appeal was not an "independent and impartial tribunal" by reason of the participation of two assistant judges. He has made no allegation that the conduct of those two judges in the proceedings concerned was not impartial or otherwise showed in any way that he had not received a "fair hearing" within the meaning of Article 6 (1) (Art. 6-1).   The Commission does not find that the applicant has shown, as he has suggested, that the Swedish Code of Procedure does not allow the participation of assistant judges (see Chapter 4, Section 7 of the Code and the Royal Ordinance concerning the Organisation of the Court of Appeal of 19 December 1947 as later amended).   It is true that assistant judges do not benefit from the protection given to holders of permanent judgeships by Section 36 of the Swedish Constitution. However, the Commission is satisfied that assistant judges belong to the judicial profession and when given assignments as a judge either in a District Court or in the Court of Appeal, act in full independence. In exceptional cases they may, like ordinary civil servants, be dismissed from their employment by decision of the Court of Appeal but an appeal then lies to the Supreme Administrative Court (regeringsrätten). In this connection, the Commission refers to the submissions of the respondent Government in application No. 3788/68 (Collection of Decisions, Vol. 35, pp. 56-66) to which an applicant has referred himself. Moreover, the Commission notes that the applicant again has not suggested any valid ground which would show that the two assistant judges concerned were not impartial in his case. The Commission finds that it is equally clear that there was no violation of Article 6 (1) (Art. 6-1) of the Convention in this respect.   4.    Finally, the applicant has complained that the inclusion, without his knowledge, in the file of a certain police report violated Article 6 (1) and 3 (d) (Art. 6-1, 6-3-d) of the Convention. From the applicant's submissions it appears that the report in question formed part of the records of the preliminary investigation which were filed with the trial court before the trial and of which the applicant or his counsel then received a copy as required under Swedish law. No reference to this report appears to have been made during the proceedings before the City Court and the Court of Appeal. However, the report was reproduced in the memorandum prepared by the Secretary of the Supreme Court in connection with the applicant's request for leave to appeal to that Court. This memorandum contains a summary of the records of the file and apparently serves as an aide-mémoire for the official who presents the case to the bench of three judges who sit in camera to consider whether or not leave should be granted. In this case the applicant was refused such leave and his conviction and sentence became final.   The question first arises whether the proceedings before the Supreme Court involved a determination of a "criminal charge" against the applicant within the meaning of Article 6 (1) (Art. 6-1) of the Convention having regard to the fact that the applicant was refused leave to appeal.   However, the Commission does again not find it necessary to determine this question as this part of the application, in any event, appears to be inadmissible even if it were assumed that the provisions of Article 6 (Art. 6) were applicable in the present case to the proceedings on the application for leave to appeal.   On this assumption, the Commission has considered whether the inclusion of the report can be said to have infringed the applicant's right to a fair hearing under Article 6 (1) (Art. 6-1) and, in particular, the principle of "equality of arms". In this connection, the Commission notes that the police report had been part of the file throughout the proceedings and that the applicant's counsel had received a copy thereof. The report simply outlined the conduct of the police investigations and the facts as they had been established by the police. It is true, as the applicant has pointed out, that the report could apparently not have been admitted as evidence in the trial court or in the Court of Appeal and that, accordingly, neither court could have based its judgment on the contents (see Chapter 35, Section 14 of the Code of Procedure). However, the Commission is satisfied that under Swedish law the lower courts were free to consult the report and the other records of the preliminary investigations for the purpose of preparing the hearings in these courts. The memorandum of the Secretary of the Supreme Court clearly indicates that the report, which was reproduced there, formed part of the preliminary investigations.   Generally speaking, the contents of the report seem to have been invoked either by the applicant's own statements at the hearings or by the extensive written or oral evidence taken at these hearings.   The Commission finds that there is no reason to believe that the judges of the Supreme Court were in fact influenced by the police report when reaching their decision. It would appear, in the present state of the file and without having heard any submissions of the respondent Government on this point, that the inclusion of the report in the memorandum was not strictly necessary and might give rise to certain doubts as to the desirability of such a course. It seem clear, however, that this cannot lead to the conclusion that, in all circumstances of the case and taking the proceedings before the Supreme Court as a whole, the applicant did not have a fair hearing before that court.   It follows that the application is also in this respect manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   5.    The Commission finds that the complaint is equally manifestly ill-founded when examined under Article 6 (3) (d) (Art. 6-3-d) of the Convention. In fact, there is no reason to believe that the police report was used as evidence against the applicant.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE