CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 juillet 1986

.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 European Commission of Human Rights sitting in private on 7 July 1986, the following members being present:                        MM. C. A. NØRGAARD, President                          G. SPERDUTI                          J. A. FROWEIN                          G. JÖRUNDSSON                          S. TRECHSEL                          B. KIERNAN                          A. S. GÖZÜBÜYÜK                          A. WEITZEL                          J. C. SOYER                          H. G. SCHERMERS                          G. BATLINER                          J. CAMPINOS                          H. VANDENBERGHE                      Mrs G. H. THUNE                      Sir Basil HALL                         Mr. H. C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 5 December 1984 by B.G.A. against Sweden and registered on 18 March 1985 under file No. 11453/85;   Having regard to the report provided for in Rule 40 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 1941.   He is at present serving a 12-year prison sentence in Sweden.   Before the Commission the applicant is represented by his lawyer, Mr. Olof Arvidson, Stockholm, Sweden.   During the summer of 1981 the Swedish police noticed that large quantities of amphetamines were smuggled into Sweden.   A large- scale investigation was carried out and in February 1982 a Dutch lorry driver was arrested in the process of smuggling into Sweden 42 kilos of amphetamines.   On 13 April 1982 the lorry driver was sentenced to 9 years' imprisonment for having smuggled into Sweden in November 1981 and in February 1982 not less than 100 kilos of amphetamines in contravention of the Swedish Narcotics Act of 1968 (narkotikastrafflagen (1968:64)).   During the interrogations of the lorry driver he identified two persons (L and F) as being the persons who had given him the amphetamines in Holland, as well as the applicant and one other person (B) as being the persons who had received it in Sweden.   They were thus all arrested in Holland, the Federal Republic of Germany and Sweden and L was subsequently sent to Sweden to be tried there.   In the following court proceedings B was released from his detention on remand since investigations carried out in Spain showed that he had been in that country during the time when he had allegedly received the amphetamines in Sweden.   Subsequently the police dropped the charges against him.   L was convicted by the District Court of Stockholm (Stockholms tingsrätt) on 10 November 1983 and sentenced to 12 years' imprisonment.   On appeal, the sentence was reduced to 10 years since the Court of Appeal on one count concerning the amount smuggled into Sweden in November 1981 would not rely on the lorry driver's statements and since the factual circumstances were referred to the Act of 1960 concerning smuggling (lagen om straff för varusmuggling (1960:418)) instead of the Narcotics Act.   Finally, the case against F, conducted in Holland, is still pending.   F is not, however, detained on remand.   In the case against the applicant he was charged with a violation of the Narcotics Act in that he had received in November 1981 approximately 80 kilos of amphetamines with the intent of subsequently selling it.   During the investigations the applicant's present representative was appointed as counsel.   Subsequently, however, the prosecutor requested that he be relieved of his duties because he had allegedly impeded the investigations by submitting confidential information to people who were involved in the case.   On 5 January 1983 the District Court of Stockholm complied with the prosecutor's request but this decision was repealed by the Court of Appeal, which decision was upheld by the Supreme Court.   After having settled the dispute concerning the defence counsel, the case was tried in the District Court of Stockholm.   After an evaluation of the statements made by the witnesses and the written evidence submitted, in particular a thorough evaluation of the statements made by the lorry driver, the Court, on 31 March 1985, found the applicant guilty of the charge brought against him and sentenced him to 12 years' imprisonment and to pay the estimated profits from the sale of the amphetamines, totalling 5,750,000 Swedish crowns.   The applicant appealed against the judgment to the Court of Appeal (Svea hovrätt) where, in particular, it was pointed out that the statements of the lorry driver, who was the key witness, could not be relied on, especially since the case against B had been dropped.   From its judgment of 30 December 1983 it appears that the Court of Appeal made a thorough examination of this point since the lorry driver was indeed the key witness.   However, after the evaluation of the evidence the Court of Appeal upheld the conviction pronounced by the lower court but reduced the profits to be paid to 3,300,000 Swedish crowns.   Subsequently, the applicant asked the Supreme Court for leave to appeal.   He pointed out that the lower courts had made a wrongful evaluation of the evidence in the case.   In particular he again referred to the fact that the charges against his former co-accused, B, had been dropped, notwithstanding that the lorry driver maintained that, together with the applicant, he received the amphetamines in Sweden.   The applicant also pointed out that in the meantime L had been acquitted by the Court of Appeal as being the man who had given the lorry driver the amphetamines in Holland in November 1981 since the Court could not on this particular point rely on his statement. The conclusion would thus be the following:   of the four persons identified by the lorry driver as being involved in the smuggling in November 1981 the applicant was the only one who had been convicted.   Furthermore the applicant, before the Supreme Court, requested the hearing of a new witness who allegedly could prove his innocence.   On 8 June 1984 the Supreme Court refused leave to appeal.   COMPLAINTS   The applicant invokes Article 6 (Art. 6) of the Convention.   He claims that he has been wrongly convicted by the Swedish courts since they relied on a witness whose statements, in cases concerning other persons but with the same factual circumstances, were not accepted. He therefore finds that he did not get a fair trial.   He also complains that he was refused permission to hear a witness since the Supreme Court refused to grant leave to appeal.   THE LAW   1.       The applicant has complained that he was wrongly convicted by the Swedish courts.   With regard to the judicial decisions of which the applicant complains, the Commission recalls 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 to the Convention.   In particular, it 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 out in the Convention.   The Commission refers, on this point, to its constant jurisprudence (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, No. 1140/61, Dec. 19.12.61, Collection 8 p. 57, and No. 7987/77, Dec. 13.12.78, D.R. 18 p. 31).   In this case the applicant has also complained, under Article 6 (Art. 6) of the Convention, that his conviction was based on an unacceptable evaluation of the evidence, in particular the statements of the key witness in the case, whose statements had been set aside in cases against other persons involved in the smuggling affair.   In this respect the Commission recalls that its task under Article 6 (Art. 6) of the Convention with regard to this allegation is to examine whether the evidence for and against the accused has been presented in such a manner, and the proceedings in general have been conducted in such a way, that he has had a fair trial.   However, whether the courts have evaluated the evidence correctly or not is a question on which the Commission is not called to pronounce itself. Furthermore the validity of the courts' factual conclusions is not subject to the Commission's control.   In the present case the Commission recalls that the courts examined statements made by witnesses as well as the written material and is of the opinion that the judgments were based on an evaluation of these statements and documents.   In particular, there is nothing indicating that the courts in fulfilling their functions reached their conclusions in an arbitrary manner.   On the contrary, it is clear that the courts were fully aware of the problems to which the applicant refers and had this in mind when taking their decisions.   An examination of this complaint therefore fails to disclose any appearance of a violation of the Convention and in particular of Article 6 para. 1 (Art. 6-1).   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that since he was refused leave to appeal he could not have a witness examined in court.   Insofar as the applicant in this respect intends to complain of the fact that he could not have the witness heard in the lower courts, the Commission notes that the applicant did not at all mention his wish in this respect in any way before these courts.   Such a complaint would therefore be inadmissible under Article 26 (Art. 26) of the Convention since the applicant did not exhaust the remedies at his disposal.   Insofar as the applicant intends to complain that the Supreme Court's decision not to grant leave to appeal in these circumstances amounted to a violation of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission recalls that the right to appeal does not feature among the rights and freedoms guaranteed by the Convention.   No provision of the Convention, therefore, requires the High Contracting Parties to grant persons under their jurisdiction an appeal to a Supreme Court.   If a High Contracting Party makes provisions for such an appeal it is entitled to prescribe the provisions by which this appeal shall be governed and fix the conditions under which it may be brought (cf. No. 3775/68, Dec. 2.2.70, Collection 31 p. 116;   No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101).   The Commission is of the opinion that when a Supreme Court determines, in a preliminary examination of a case, whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to "civil rights and obligations" or a "criminal charge" (cf. No. 10515/83, Dec. 2.10.84, unpublished).   Article 6 para. 1 (Art. 6-1) of the Convention, however, only provides certain guarantees in cases relating to the determination of civil rights and obligations or of a criminal charge.   It follows, therefore, that this provision does not apply to the proceedings in which the Swedish Supreme Court, without entering on the merits, refused leave to appeal against a decision of the Court of Appeal.   This part of the application is thus incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission         President of the Commission        (H. C. KRÜGER)                       (C. A. NØRGAARD)