CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1992

.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. 15260/89                       by T.H.                       against Sweden           The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 June 1989 by T.H. against Sweden and registered on 20 July 1989 under file No. 15260/89;         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 is a Swedish citizen, born in 1954 and resident at Vallentuna, a suburb of Stockholm. He is a medical doctor by profession. Before the Commission he is represented by Mr. Lennart Hane, a lawyer practising in Stockholm.         The facts of the case as submitted by the applicant may be summarised as follows.   The particular circumstances of the case         On 18 July 1984 two plastic bags were found in Solna, a suburb of Stockholm. The bags contained parts of the corpse of a woman. On 7 August 1984 two more plastic bags were found in the same suburb, containing further parts of the corpse of the woman, who later was identified as C.C.   The head and the neck were, however, never found. No witnesses to her death were found.         On 3 December 1984 the applicant was arrested by the police and subsequently detained on remand by the District Court (tingsrätten) of Stockholm, suspected of having murdered C.C. He denied that he had had anything to do with C.C.   On 7 December 1984 he was released. The police investigation continued.         On 6 October 1987 another medical doctor, T.A., was arrested and later detained on remand by the District Court, suspected of having murdered C.C. On 28 October 1987 the applicant was again arrested and on 2 November 1987 detained on remand by the District Court, suspected of having murdered C.C. together with T.A.   In connection with the preliminary police investigation, the applicant took an overdose of sleeping pills in an attempt to commit suicide as he felt "raped" by the authorities. Although saved he suffered a serious hearing deficiency.         On 18 January 1988 the public prosecutor indicted the applicant and T.A. at the District Court for murder (mord), alleging inter alia:         (translation)         "T.A. and [the applicant] have at Whitsun 1984 at Stockholm or       Solna together and with each other's consent intentionally killed       C.C. by strangulation, violence against her head or neck or by       other violence; ..."         The accused denied that they had anything to do with the crime.         After a trial hearing the District Court found, in a decision of 8 March 1988 (by a majority of lay judges, the president and one lay judge voting against) convincing evidence (övertygande bevisning) against the accused. The Court therefore decided that the applicant and T.A. should be examined by a psychiatrist before it finally decided the case and that the accused should remain detained until then.         The applicant and T.A. appealed against this decision to the Svea Court of Appeal (Svea hovrätt) alleging, inter alia, procedural irregularities. By decision of 22 March 1988 the Court of Appeal quashed the District Court's decision, released the accused and referred the case back to the District Court for a new trial.         In the new trial, the prosecutor added the accusation that the applicant had committed aggravated assault (grov misshandel) against C.C. and had injured her so gravely as to cause her death (grovt vållande till annans död). The prosecutor requested the hearing of several witnesses to prove that the applicant and T.A. were responsible for the cutting-up of the corpse as well as written evidence, including several medical opinions concerning in particular the manner in which the corpse had been cut up and what conclusions could be drawn therefrom as to the manner in which C.C. was killed, and the motives behind the killing. At the District Court's request the National Board of Health and Welfare (socialstyrelsen) also presented an opinion on this last point.         The District Court, sitting in an entirely new composition, held a trial hearing in the case on 30 May 1988. Several witnesses and experts were heard.         The accused denied that they had anything to do with the alleged crimes.         In its 67-page judgment of 8 July 1988 a unanimous District Court acquitted both the applicant and T.A.. In its reasons the Court stated, inter alia:         (translation)         "When considering all the evidence ... the Court finds it       established beyond reasonable doubt that the two doctors       ..., about whom C.C. has spoken with the witness M.S., are       identical with [the applicant] and T.A. ... and that [they]       together ... cut up the body of C.C. at Whitsun 1984.         As has been emphasised by the [medical experts], it has not       been possible to ascertain what injury caused C.C.'s death,       even if the fact that the body has been cut up strongly       indicates that she was killed. According to [the examining       pathologist] the way in which the body was cut up indicates       a sex murder.         ...         The fact that the body was cut up strongly indicates that       C.C. was killed. The way in which the cutting-up was       performed is further indication of this. That she was       strangled is suggested by what C.C. told [the witness M.S.]       about her treatment at her meetings with the [two doctors       in question] and by the fact that the neck and the head       were cut off and have not been found.         Thus, many circumstances strongly indicate that C.C. was       killed [in accordance with what the prosecutor alleges].       However, the Court does not find that the examination of       the case has provided sufficient evidence to permit the       Court to find beyond any reasonable doubt ("utom varje       rimligt tvivel") that this was really so. Therefore, [the       applicant]   and T.A. cannot be convicted of the [crimes in       question].         ...         The prosecution's case is therefore dismissed.         ...         For the sake of completeness, it should be added that the       cutting-up of C.C.'s body by [the applicant] and T.A. is to       be regarded as "desecration of the grave" ("brott mot       griftefrid"). However, the prosecutor has not indicted them       for this act, for which the time-limit for prosecution       expired during the summer of 1986."         The Court accordingly found that the indictment had to be rejected and decided that the State should bear all costs.         On 19 July 1988 the applicant appealed against the judgment to the Svea Court of Appeal, claiming that the Court of Appeal should quash the final remark in the reasoning in the judgment concerning "desecration of the grave".         In a decision of 30 September 1988 the Court of Appeal rejected the appeal, stating, inter alia, the following:         (translation)         "The prosecution against T.A. and [the applicant] has been       rejected on all points by the District Court. The appeal       concerns the statement of the District Court, under the       heading "reasons" ("domskäl"), that it is established       beyond any reasonable doubt that they together cut up the       body of C.C. and that this is to be qualified as       "desecration of the grave". This statement does not mean       that they are convicted of that crime. They have, however,       alleged that the judgment will produce legal effects       ("rättsverkan") in connection with the question of a       withdrawal of their licences to practise as doctors. [The       applicant] has in addition alleged that the judgment might       be used as evidence in proceedings for damages against him.         According to case-law a party does not have the possibility       of appealing against a judgment when the conclusion of the       judgment is in his favour. This is the rule even when the       party is of the opinion that the reasons relied upon by the       court are incorrect. This means for example that the party       will not be entitled to lodge any appeal either when the       reasons are insulting for the party or when the judgment       might be prejudicial to him as evidence in other       proceedings [reference to doctrine].         In the opinion of the Court of Appeal this should also       apply when a party who has been acquitted because of the       application of a statute of limitation appeals against the       judgment in order to be acquitted on the ground of       innocence. This is, however, not the situation in the       present case. As the District Court pointed out there was       no prosecution concerning the statute-barred action which       the District Court described as "desecration of the grave".       It is true that this declaration was not necessary in order       to justify the acquittal. However, not even this       circumstance gives the appellants the right to appeal       against the judgment."         The applicant and T.A. appealed to the Supreme Court (Högsta domstolen), which on 12 January 1989 refused to grant leave to appeal.   Relevant domestic law         The crime "desecration of the grave" is defined in Chapter 16, Article 10 of the Penal Code (brottsbalken):         (translation):         "A person who, without authorisation, moves, or injures or       infamously treats the corpse or ashes of a dead person,       opens a grave or otherwise inflicts damage on or abuses a       coffin, urn, grave or other resting place of the dead or a       tombstone, shall be sentenced to pay a fine or to       imprisonment not exceeding six months for desecration of       the grave."     COMPLAINTS         The applicant complains of the fact that the District Court stated in the reasons of its judgment that he had cut up the body of C.C. and that this was to be regarded as "desecration of the grave" - a criminal offence - although he was not prosecuted for such an offence for which the time-limit for prosecution had moreover expired. He invokes Article 6 paras. 1 and 3 (c), (d), (e) of the Convention.         Invoking the same provisions, he complains that he did not get a fair trial at the District Court: he is "99 per cent deaf" and could therefore not follow the trial properly; furthermore the District Court had not been an impartial tribunal.         He also alleges a breach of Article 2 of Protocol No. 7 to the Convention as he could not have the judgment of the District Court reviewed by a higher tribunal.         Finally, the applicant complains that the District Court's decision to detain him on remand was based on a police report containing erroneous information. He alleges a violation of Article 5 para. 2 of the Convention.     THE LAW   1.     The applicant alleges several violations of Article 6 (Art. 6) of the Convention on the ground that the District Court stated in the reasons of its judgment that he had cut up the body of C.C. and that this was to be regarded as a criminal offence, "desecration of the grave", despite the fact that he was not prosecuted for such an offence for which the time-limit for prosecution had moreover expired.           The Commission considers that the complaint at issue should be examined under the second paragraph of Article 6 (Art. 6), which reads:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission recalls that the presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2) of the Convention may be violated if a judicial decision amounts in substance to a determination of the accused person's guilt without that person having previously been proved guilty according to law and in particular without his having had an opportunity to exercise the rights of the defence (Eur. Court H.R., Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37; mutatis mutandis, Eur. Court H.R., Lutz/Englert/Nölkenbockhoff judgments of 25 August 1987, Series A no. 123, p. 25, para. 60, pp. 54-55, para. 37, and p. 79, para. 37, respectively).         The Commission also recalls that the reasoning in a decision or judgment forms a whole with, and cannot be dissociated from, the operative provisions (Eur. Court H.R., Adolf judgment of 26 March 1982, Series A no. 49, p. 18, para. 39). Therefore, even though the judgment of the District Court clearly stated that the indictment was rejected, the Commission nevertheless has to examine the reasoning of that judgment in respect of the complaint.         As regards the District Court's finding that it was "beyond any reasonable doubt" that the applicant together with T.A. "cut up the body of C.C. ...", the Commission observes the following.         In the absence of any witnesses to C.C.'s death and considering that the corpse's head and neck - where the lethal wounds were alleged to have been located - were missing, a large part of the evidence adduced by the prosecutor concerned the extent to which the applicant and T.A. could be linked with the cutting-up of C.C.'s corpse and related to the circumstances of the cutting-up of the corpse and to what conclusions could be drawn from these as regards the manner in which she was killed and the motives behind the killing. Also the District Court found these factual circumstances to be of great importance for assessing whether or not the applicant was guilty of the crimes with which he was charged. Without going into the national courts' assessment of this evidence (cf. Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 19, para. 39, with further references), the Commission finds that the District Court's impugned findings can be considered to be a relevant part of the Court's evaluation of the evidence presented in the case against the applicant.         The District Court's final remarks that "the cutting-up of C.C.'s body" was "to be regarded as 'desecration of the grave'" were, as the Court of Appeal stated in its decision of 30 September 1988, not necessary for motivating the acquittal. However, when scrutinising these remarks the Commission finds that they can be regarded as a mere clarification of the legal consequences of the Court's findings as regards the relevant facts. By these remarks, the District Court did not find that the applicant was guilty of any offence.           Moreover, the applicant was totally acquitted in the operative part of the judgment and the costs for the proceedings were to be borne by the State. Thus, no penalty or other measure that could be equated with a penalty was imposed on the applicant (cf. Eur. Court H.R., Lutz judgment of 25 August 1987, Series A no. 123, p. 26, para. 63).         The Commission therefore concludes that the judgment of the District Court did not amount to a breach of the presumption of innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.         The Commission has also examined the present complaint in the light of the other provisions of Article 6 (Art. 6) invoked by the applicant but has found no indication of a violation of any of these.         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 also complains under Article 6 (Art. 6) that he did not get a fair trial because he was deaf and could not follow the proceedings properly. He furthermore maintains that the District Court was not an impartial tribunal.         The Commission first notes that the applicant's complaints about the manner in which the first proceedings before the District Court were conducted resulted in the Court of Appeal ordering, on 22 March 1988, the applicant's release from detention and the referral of the case to the District Court for a new trial. The applicant can accordingly not now claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of any violation of his right to a fair trial before an impartial tribunal in these first proceedings before the District Court.         As regards the new proceedings before the District Court, which sat in an entirely new composition, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         The applicant has not shown that he has raised, either in form or in substance, any of the above-mentioned complaints in these proceedings. Moreover, an examination of the complaints, as they have been submitted, does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaints in the proceedings referred to.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and that these complaints must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant also complains that he could not have the judgment of the District Court reviewed by a higher tribunal. He invokes Article 2 of Protocol No. 7 (P7-2) to the Convention, which in its relevant parts reads:         "Everyone convicted of a criminal offence by a tribunal       shall have the right to have his conviction or sentence       reviewed by a higher tribunal."         The Commission first notes that Protocol No. 7 entered into force on 1 November 1988 as regards Sweden. The judgment of the District Court of 8 July 1988 and the decision of the Court of Appeal of 30 September 1988, were thus prior to the entry into force of Protocol No. 7 with respect to Sweden. The decision of the Supreme Court was, however, taken on 12 January 1989 which is after the Protocol's entry into force.         The Commission does not find it necessary to examine the issue whether this complaint is incompatible with the Convention ratione temporis as, even assuming that the provision in question applies to the present case, the complaint is nevertheless inadmissible as the applicant cannot be said to have been convicted or sentenced, within the meaning of this Article, by the judgment of the District Court.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant finally complains that the District Court ordered his detention on remand on the basis of police reports containing incorrect information. He invokes Article 5 (A.art. 5) of the Convention.         On this point the Commission notes the following. The applicant was detained on remand by the District Court on 2 November 1987. His release was ordered on 22 March 1988. The application was submitted to the Commission on 20 June 1989.         In these circumstances the Commission is not required to decide whether or not the complaint discloses any appearance of a violation of the Convention as, in accordance with Article 26 (Art. 26) of the Convention, the Commission finds that the "final decision" regarding the applicant's complaint must have been taken at the latest on 22 March 1988 which is more than six months before the date on which the complaint was submitted to the Commission. It follows that this part of the application must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                (H.C. KRÜGER)                     (C.A. NØRGAARD)