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Cite as: [1984] ECHR 11, (1985) 7 EHRR 263

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COURT (CHAMBER)

CASE OF SKOOGSTRÖM v. SWEDEN

(Application no. 8582/79)

JUDGMENT

STRASBOURG

2 October 1984

In the Skoogström case,

The European Court of Human Rights, sitting, in accordance with Article 43 (art 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court*, as a Chamber composed of the following judges:

Mr. G. Wiarda, President,

Mr. R. Ryssdal,

Mr. W. Ganshof van der Meersch,

Mr. G. Lagergren,

Mr. E. García de Enterría,

Sir Vincent Evans,

Mr. R. Bernhardt,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 21 May 1984 and 28 September 1984,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 13 October 1983, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47). The case originated in an application (no. 8582/79) against the Kingdom of Sweden lodged with the Commission on 20 October 1978 under Article 25 (art. 25) by a Swedish national, Mr. Owe Skoogström.

2. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 para. 3 (art. 5-3).

3. In response to the inquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, Mr. Skoogström stated that he wished to participate in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

4. The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Lagergren, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b)). On 27 October 1983, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. R. Ryssdal, Mr. W. Ganshof van der Meersch, Mr. L. Liesch, Mr. E. García de Enterría and Sir Vincent Evans (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Mr. Liesch, who was prevented from taking further part in the consideration of the case, was subsequently replaced by Mr. R. Bernhardt, substitute judge (Rules 22 para. 1 and 24 para. 1).

5. Mr. Wiarda, who had assumed the office of President of the Chamber (Rule 21 para. 5), consulted, through the Registrar, the Agent of the Swedish Government ("the Government"), the Delegate of the Commission and the lawyer for Mr. Skoogström as to the need for a written procedure. On 23 November 1983, taking note of the fact that the applicant did not wish to file written pleadings, he directed that the Agent should have until 16 January 1984 to submit a memorial and that the Delegate should be entitled to reply in writing within two months from the date of the transmission of the Government’s memorial to him by the Registrar (Rule 37 para. 1).

6. The Government’s memorial was lodged at the registry on 29 December 1983. On 24 January 1984, the Secretary to the Commission informed the Registrar that the Delegate did not consider it necessary to expand on the opinion expressed by the Commission in its report of 15 July 1983.

On 6 February 1984, the Registrar received comments by the applicant on the report of the Commission and the Government’s memorial.

7. By letter dated 23 March 1984, the Government communicated to the registry the text of a friendly settlement reached with the applicant on 19 March. The letter was received at the registry on 28 March 1984 (see paragraph 22 below).

On 29 March 1984, the President of the Chamber requested the Government to keep the Court informed of the progress of the draft legislation referred to in the settlement; he further directed that the Delegate of the Commission should have until 30 April 1984 to submit his observations on this settlement. The Delegate’s observations were lodged at the registry on that date.

8. On 21 May 1984, the Chamber decided not to hold a hearing, having first satisfied itself that the requisite conditions for such a derogation from normal procedure had been fulfilled (Rule 26).

AS TO THE FACTS

9. Mr. Owe Skoogström, a Swedish national, was born in 1939 and lives at Ostavall. He ran a hotel-restaurant business at Motala with his brother, which was declared bankrupt in August 1977.

On 10 January 1978, the chief district prosecutor (chefsåklagare) at Motala, Mr. A, issued an order for provisional detention (anhållande) of the applicant on suspicion of having committed various offences in connection with the management of his business, namely fraudulent book-keeping, deceit towards creditors, gross fraud - the latter two offences in conjunction with falsification of documents - and tax offences.

10. According to the work programme operating at the material time in the prosecution office at Motala, where there were four district prosecutors, the case was assigned by lot to Mr. A.

11. Not knowing where the suspect could be reached, the police published a wanted notice on 12 January 1978. On 5 May of that year, Mr. Skoogström was arrested at 12.30 p.m. at his home and brought to the police station in the nearest town, Sundsvall, some 150 kilometres away. On the same day, the police inspector in charge informed the public prosecutor on duty for the period 5 to 7 May. This was Mrs. M, a district prosecutor stationed in Linköping, who then ordered the applicant’s transfer to Motala for interrogation and a decision on his continued detention.

12. Mr. Skoogström left the Sundsvall police station under escort on Saturday, 6 May at 12.30 p.m. He spent the night in custody at the main police station in Stockholm.

13. On the following day, he was transferred to the police station in Motala (about 250 kilometres south-west of Stockholm) where he arrived at 2.00 p.m. A police inspector interrogated him and then telephoned Mrs. M, the duty prosecutor, who directed on the same day that the detention should continue.

14. On Monday, 8 May, Mr. Skoogström was again interrogated by a police officer.

Mr. A being on sick leave, his replacement, Mr. T, decided to make an application (häktningsframställning) to the District Court (tingsrätten) at Motala for the detention on remand of Mr. Skoogström. At the latter’s request, Mr. T met Mr. Skoogström that afternoon when he notified him that a request for his detention would be submitted to the District Court.

15. The District Court granted the application at a hearing held on 12 May. On that occasion, Mr. A represented the prosecuting authorities.

16. Mr. Skoogström’s trial was held on 29 and 30 May 1978 and Mr. A appeared for the prosecution.

On 5 June, the District Court acquitted Mr. Skoogström of gross fraud and fraudulent book-keeping but convicted him and sentenced him to six months’ imprisonment for falsification of documents, deceit towards creditors in conjunction with falsification of documents and tax offences.

17. Although he had stated in writing on 8 June to the Governor of the Norrköping prison that he was waiving his right of appeal, Mr. Skoogström applied to the Göta Court of Appeal (Göta hovrätt) for his acquittal. The Court of Appeal rejected the appeal on 12 July 1978 without considering the merits; its decision referred to the above-mentioned written declaration and indicated that Mr. A had represented the prosecuting authority.

Mr. Skoogström then brought the matter before the Supreme Court (högsta domstolen) which, on 16 August 1978, refused leave to appeal.

18. On 11 August 1978, on a cross-appeal brought by the public prosecutor against the judgment of the District Court, the Court of Appeal found the applicant guilty of gross fraud, deceit towards creditors in conjunction with falsification of documents and tax offences, and increased his sentence to eight months’ imprisonment. On this occasion, Mr. T appeared for the prosecution.

Mr. Skoogström sought to challenge this judgment before the Supreme Court, but on 28 September 1978 the Supreme Court again refused leave to appeal.

19. Mr. Skoogström was released in February 1979.

PROCEEDINGS BEFORE THE COMMISSION

20. In his application of 20 October 1978 to the Commission (no. 8582/79), Mr. Skoogström invoked the Convention on a number of points.

He claimed, amongst other things, that he had neither been "brought promptly before a judge or other officer authorised by law to exercise judicial power" nor brought to trial "within a reasonable time", in breach of Article 5 para. 3 (art. 5-3).

21. On 11 October 1982, the Commission declared the first part of this complaint admissible. It declared the remainder inadmissible.

In its report of 15 July 1983 (Article 31 of the Convention) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention.

The full text of the Commission’s opinion is reproduced as an annex to the present judgment.

AS TO THE LAW

22. The Court has been notified of a friendly settlement reached between the Swedish Government and Mr. Skoogström (see paragraph 7 above). This settlement, which was signed on 19 March 1984 by the Agent of the Government and by the lawyer for the applicant, reads:

"... In the autumn of 1983 representatives for the Swedish Government informed the Commission for Revision of Certain Parts of the Code of Judicial Procedure (1983 års häktesutredning) about the report [of the European Commission of Human Rights] and asked the [Swedish] Commission to propose and work out the details for such amendments to the Code as required in order to put it beyond any doubt that it is in conformity with Article 5 para. 3 (art. 5-3) of the Convention. A Government Bill on the basis of this proposal can be expected as soon as possible in accordance with the provisions of the Swedish Instrument of Government (regeringsformen).

In the meantime the Government has seen to it that the National Board of the Judiciary (domstolsverket) and the Chief Prosecutor (riksåklagaren) will publish a summary of the Commission’s report so as to enable the judiciary and the prosecutors to avoid creating in the daily performance of their duties situations which have been found by the Commission to constitute a violation of the said Article.

With reference to these circumstances the parties have now reached a friendly settlement on the basis of respect for human rights as defined in the Convention. In connection with this settlement, the Government accepts to pay Mr. Skoogström for his legal costs (expenses and loss of time) the sum of SEK 5,000. The costs for his counsel, to the extent that they have not already been paid by the Council of Europe, will be paid by the Legal Aid Committee (rättshjälpsnämnden) according to Swedish law.

Mr. Skoogström declares that he has no further claims in the matter.

... ."

The Court notes that at a meeting on 22 March 1984 the Swedish Government formally approved the settlement and, further, that the applicant’s lawyer is a member of the Commission for Revision of Certain Parts of the Code of Judicial Procedure.

23. In the light of the settlement reached, the Government have requested the Court to strike the case off its list. The applicant has stated that he has no objection to this.

24. In his comments filed on 30 April 1984 (see paragraph 7 above), the Delegate of the Commission "welcome[d] the initiative and the preparedness of the Swedish Government to see to it that the Swedish legislation is amended, to publish a summary of the Commission’s report and to pay compensation to the applicant". In his view, the settlement "satisfies the individual interests of the case". As to the general interest, on the other hand, he had the following observations, inter alia, to make:

"... [N]o indication is given of the nature of the amendments which the Government consider necessary nor of the time when these proposals from the [Swedish Revision] Commission can be expected and it is even less certain when a Government Bill can be expected in the matter.

As regards the publication of a summary of the [European] Commission’s report, this will hopefully prevent future situations like the one in the present case, but of course it has no binding effect."

The Delegate accordingly proposed that the Court should not strike the case off its list but should adjourn examination of the case "in order to ascertain what progress has been made in the work to amend the legislation, or alternatively to ascertain the timetable for the work which will lead to those amendments".

25. The Court does not share the Delegate’s point of view. The Court takes formal note of the friendly settlement arrived at between the Government and the applicant. The Court has no cause to believe that this settlement does not reflect the free will of Mr. Skoogström, who has declared that he has no further claims in the matter. As far as the general interest is concerned, the Court does not feel able to defer judgment nor does it, in the circumstances, see any reason of public policy (ordre public) sufficiently compelling to warrant its proceeding to consider the merits of the case (Rule 48 para. 4 of the Rules of Court).

The Court therefore concludes that it would be appropriate to strike the case off the list (Rule 48 para. 2).

FOR THESE REASONS, THE COURT

Decides, by four votes to three, to strike the case off the list.

Done in English and in French, and notified in writing under Rule 54 para. 2, second sub-paragraph, of the Rules of Court on 2 October 1984.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

Annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court is the joint dissenting opinion of Mr. Wiarda, Mr. Ryssdal and Mr. Ganshof van der Meersch.

G.W.

M.-A.E.

JOINT DISSENTING OPINION OF JUDGES WIARDA, RYSSDAL AND GANSHOF VAN DER MEERSCH

(Translation)

We regret that we are unable to concur with the decision taken by the majority of the Court.

Striking out the case would appear to satisfy the individual interests of the applicant, who indeed concedes that this is so. On the other hand, such a decision does not seem to us to be consonant with the general interest attaching to observance of human rights, which interest the Court is responsible for safeguarding (Rule 48 para. 4 of the Rules of Court).

The issue to be determined in the present case was whether, following his arrest, Mr. Skoogström had been "brought promptly before a judge or other officer authorised by law to exercise judicial power" as required by Article 5 para. 3 (art. 5-3) of the Convention. In particular, the case provided an opportunity for examining whether the district prosecutor can be regarded as such a judicial "officer".

This question of principle - the importance of which the Government themselves emphasised in their memorial - was answered by the Commission in its report, to which, moreover, reference was made in the friendly settlement concluded between the Government and the applicant. We do not doubt that the Swedish authorities will do their utmost to act in the manner explained in that settlement. However, the settlement indicates neither the nature of the amendments that will be made to the Code of Judicial Procedure, nor when those amendments will be proposed (see, mutatis mutandis, the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 13-14, para. 25). On this point, we share the opinion of the Delegate of the Commission. Above all, we believe that the Court would have answered the expectations of the Commission and enlightened the Swedish legislature had it, without further delay, given a ruling on the merits of the case.

* Note by the Registrar: The revised Rules of Court, which entered into force on 1 January 1983, are applicable to the present case.