The European Commission of Human Rights sitting in private on 13 May
1986, the following members being present:

                      MM. C. A. NØRGAARD, President
                          G. SPERDUTI
                          J. A. FROWEIN
                          F. ERMACORA
                          E. BUSUTTIL
                          G. JÖRUNDSSON
                          G. TENEKIDES
                          S. TRECHSEL
                          B. KIERNAN
                          A. WEITZEL
                          J. C. SOYER
                          H. G. SCHERMERS
                          H. DANELIUS
                          G. BATLINER
                      Mrs G. H. THUNE
                      Sir Basil HALL

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 23 August 1984 by L.
against Sweden and registered on 31 August 1984 under file
No. 11121/84;

Having regard to:

-       the Commission's decision of 2 December 1985 to obtain from
the applicant supplementary information;

-       the information submitted by the applicant on 11 and 14
January and 10 April 1986;

-       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 German citizen, born in 1936.  He is an engineer by
profession and resides at Marschacht near Hamburg, Federal Republic of
Germany.  Before the Commission he is represented by Professor Hugo
Tiberg.

In July 1982 the applicant arrived at Karlskrona in the Swedish
province of Blekinge with his yacht Calypso, having a length of less
than 12 metres and a beam of less than 4 metres.

On clearing at the customs office, the applicant was given a brochure
in German and other languages stating the various military regulations
impeding the free movement of aliens in the area.  According to the
brochure and marked on an accompanying map, certain areas were
restricted areas, indicated with a red line, in which access was in
principle closed to aliens, while others were semi-restricted areas,
indicated with a blue line, accessible only during a specific maximum
period of time.  In a special part of the semi-restricted areas marked
on the map with blue shade, aliens were authorised to use vessels
having a hull of less than 12 metres and a beam of less than 4 metres,
also during a specific maximum period of time.

The text of the brochure read as follows:

ALIENS

__________ [red line] boundary for restricted area. Aliens and foreign
vessels may not stay in the restricted area without permission (see
below, however).

__________ [blue line] boundary for semi-restricted area. Aliens may
remain within the entire semi-restricted area without permission for a
maximum of three months per calendar year (citizens of Denmark,
Finland, Iceland or Norway, however, are permitted to remain within
the semi-restricted area indefinitely).  Foreign vessels with a length
of less than 12 metres and a beam of less than 4 metres may also
remain within the part of the semi-restricted area that is shaded blue
without permission for a maximum of three months per calendar year.
There are other regulations for larger vessels (see below).

___________ [green line] fairway which aliens and foreign vessels may
without permission use for direct passage, though without unnecessary
stops.  For direct passage, though without unnecessary stops, aliens
may also make use of the ferry route to Drottningskärs kastell when
participating in archipelago tours arranged by tourist organizations.

Place of sojourn where aliens and place for anchoring and mooring (but
not land mooring except where the anchorages border on land at Torhamn
and Kuggeboda) where aliens and foreign vessels may without permission
remain for a maximum of 72 consecutive hours, including the time used
for travelling through the restricted area and/or the semi-restricted
area to and from the place.

Right of sojourn in accordance with the above does not apply
respecting restricted objects which are restricted in accordance with
Art. 1-3 of the law dated 17th May 1940.

Within the restricted area and the semi-restricted area the limitation
on the right to take measurements, photographs, etc. apply.
Explosives are not permitted.

Further information is available from the police authorities or the
Commandant of the Defence Area.

From this text the applicant gathered that he might lawfully bring his
boat into an ordinary (non blue shaded) semi-restricted area, and
accordingly he sailed to the island of Tjärö, which was marked on the
chart as being semi-restricted, and which in the brochure was an area
which was not shaded blue and to which only the rule of a maximum
period of three months, in his opinion, should apply.  While at Tjärö,
however, the applicant was approached by a coastguard vessel, the crew
of which informed him that Tjärö was out of bounds for all foreign
vessels.  The applicant had been unable to understand this from the
brochure he had been given and had assumed that he was allowed to
bring his boat for three months in the same way as he might stay
personally or indeed bring a car.  However, he was informed that this
was not correct and that he could not bring his boat into any non blue
shaded semi-restricted areas at all.  He was taken to the police to be
interrogated.  He was there required to deposit 300 Swedish crowns and
required to sign a document according to which he authorised one of
the policemen to be his representative in the legal proceedings which
were to follow.  The applicant paid the deposit under protest, denied
having committed any offence and struck out a passage in the
authorising document according to which he confessed to the offence.
He was under the impression that unless he paid and signed he would
have been detained.

The applicant was subsequently charged with violating the Act on
Aliens of 1980, Chapter 96, section 1 in conjunction with the Order of
1976 concerning Protected and Controlled Areas.

The relevant parts of the 1976 Order read as follows:

Sec. 1.  For the protection of installations of importance to the
total defence there exist a restricted and a semi-restricted area.

Sec. 11.  An alien may stay without a permit for a maximum period of
three consecutive months annually within such parts of the
semi-restricted area as are indicated in annex 2 (1).

---------------
(1)  Annex 2 sets out in writing the boundaries
of the areas referred to.  These areas are indicated on the map
accompanying the brochure given to the applicant.
---------------

Sec. 13.  In the semi-restricted area an alien vessel may stay without
a permit for a maximum period of 72 consecutive hours within
specifically marked channels and anchoring areas as set out in annex
2.  This time period includes the time used for travelling through the
semi-restricted area to and from the place.

An alien vessel may without permission use such fairways within the
semi-restricted area as are indicated in annex 2.

Sec. 14.  An alien vessel with a length of less than 12 metres and a
maximum beam of less than 4 metres may in addition to what is provided
for in Sec. 13 without a permit stay for a maximum period of three
consecutive months during a calendar year within such parts of the
semi-restricted area as are indicated in annex 2.

The case was heard before the Karlshamn District Court where the
applicant was represented by a police inspector authorised by him
through the document he had signed.  After hearing the parties, the
Court found on 21 September 1982 that the provisions relating to
semi-restricted areas did indeed mean that a foreign vessel could not
enter the non blue shaded parts of such an area without a special
permit.  However, considering the unclear wording of the provisions
and that the applicant neither was nor should have been aware of the
fact that he violated the provisions, he was acquitted.

The prosecutor appealed to the Court of Appeal for Skåne and Blekinge
where the applicant was similarly represented by the police inspector.
The Court of Appeal confirmed the lower court's decision on 30 August
1983.  According to the Appeal Court the applicant had contravened the
rules of semi-restricted areas, but had done so in good faith and his
interpretation of the rules was excusable in view of the unclear
wording both of the relevant statute and of the brochure given to him.
The Court pointed out that the statute did not contain any clear
statement that access to the area was forbidden but that a prohibition
could only be elicited a contrario from that which was stated for
other areas not visited by the applicant.  The Court also found that
the blue shading of the less restricted areas, in combination with the
white - like the open sea - of the more restricted areas, was
misleading.

The prosecution appealed against the Court of Appeal judgment to the
Supreme Court.  Through the intervention of a Swedish sailors'
organisation the applicant was represented before the Supreme Court by
his present representative.  In its judgment of 13 March 1984 the
Supreme Court found the applicant guilty of the charge brought against
him and sentenced him to pay 15 day fines of 20 Swedish crowns.  In
its decision the Supreme Court wrote:

"In the introductory provisions of the Order concerning Protected and
Controlled Areas it is evident that the areas have been established in
order to protect installations of importance to the total defence.  In
certain parts concerning the two types of areas the Order contains
further rules as to the right of an alien and - in special sections -
alien vessels respectively to remain within places mentioned in annex
2 to the Order without permission for a specific maximum period of
time.  According to section 11 of the Order an alien (except nordic
citizens cf. section 12) may remain within such a part of the
controlled area as is mentioned in the annex for a maximum period of 3
months per calendar year.  Under the heading "Right of an alien to
remain in accordance with section 11 of the Order" the whole of the
controlled area concerning Blekinge is referred to in the annex.  With
regard to an alien vessel other rules apply in accordance with
sections 13 and 14 concerning a right to remain depending on the size
of the vessel ...  The part of Blekinge control area in which (the
applicant) was with his vessel according to the indictment does not
appear among (sections 13 and 14 of the Order).  As to the contents of
the Order it should finally be mentioned that according to section 17
aliens can be granted permission to remain within a controlled area
"longer or in another place" than mentioned in section 11.  Similarly
permission for stays other than mentioned in section 13 and 14 may be
granted to alien vessels according to section 18.

The rules mentioned above clearly indicate that an alien vessel may
not stay within a controlled area in other ways than expressly
mentioned.  (The applicant's) objection that the Order does not
contain any rule concerning such prohibitions as invoked by the
Attorney General cannot therefore be sustained.

It appears from (the applicant's) own statement that in fact he was
within the "white" part of the controlled area ... but that he thought
that in accordance with the rules he was entitled to remain there with
his boat for a maximum period of 3 months.  It appears that the
misunderstanding was due to the fact that (the applicant) considered
the right of an alien also to include the vessel of which he was the
skipper.  Neither the Order nor the summary of the Commander in Chief,
if read with proper care, support such interpretation.  The editorial
lay out of the summary in conjunction with the concentrated
information did indeed not make the text easy to understand.  Anyone
who has doubts may, however, request advice to obtain information."

COMPLAINTS

The applicant complains of violations of Arts. 6 (art. 6) and 7
(art. 7) of the Convention.

Under Art. 6 (art. 6) the applicant maintains that he was not given
the opportunity to defend himself through a representative of his own
choosing but was compelled to accept a person employed by the police.
This "representative" did not in reality defend him but only confessed
on the applicant's behalf.  Although he was eventually given
representation before the Supreme Court, the applicant maintains that
the absence of legal assistance from the start has impaired the
possibilities of a thorough presentation of his case before the
Supreme Court.

Under Art. 7 (art. 7) the applicant complains of having been convicted
by the Supreme Court on the basis of extensive and analogical
interpretation of penal law.  It must be required that the law of a
High Contracting Party contain a clear prohibition of the acts
intended to be criminalised.  The Swedish rules fall short of such a
requirement in several respects.

Firstly, the Order of 1976 does not contain any express prohibition at
all against entering into restricted or semi-restricted areas.  Its
introductory provisions state that there exist restricted and
semi-restricted areas for the protection of installations of
importance to the country's total defence.  The part of the Order that
deals with semi-restricted areas provides, in section 11, that an
alien may stay without permit for a maximum of three consecutive
months annually within such parts of the areas as are indicated on the
appended maps and this, in the case of the Blekinge semi-restricted
area, includes the entire area.  It is then stated in section 13 that
foreign vessels may stay without a permit for a maximum period of 72
consecutive hours within specifically marked channels and anchoring
areas.  Further, it is provided in section 14 that, besides what is
provided in section 13, foreign vessels having a length of less than
12 metres and a beam of less than 4 metres may stay without a permit
for a maximum period of three consecutive months during a calendar
year in the areas described as blue shaded (these do not include
Tjärö).

The applicant maintains that this regulation contains no express
prohibition against entering any of the areas such as must be required
for conviction according to the Convention, Art. 7 (Art. 7).  A
previous statute repealed by the 1976 Order provided in its
introduction that entry into restricted and semi-restricted areas was
permissible only on the conditions stated in the ensuing text, and the
applicant contends that such a statement is necessary to make the
prohibition envisaged by the 1976 Order effective.

Secondly, the applicant contends that even if Art. 7 (Art. 7) of the
Convention were not taken to require such express support in the law
for conviction of an accused but can be taken to allow criminalisation
on the basis of the general tenor of the relevant legislation, there
must at least be an express provision relating to the act of which the
defendant is accused.  When entering into the non blue shaded part of
the semi-restricted area at Tjärö, the applicant could not have found,
by studying the provisions relative to that area, that his boat's
access to that area was prohibited, but he would have had to study
what the statute provides for other areas and to draw a conclusion a
contrario from that.

Thirdly the applicant contends that the brochure which he had been
given ought to have clearly described the applicable provisions.
According to section 25 of the 1976 Order, the Commander in Chief must
issue this kind of brochure in foreign languages and in the case of
legislation of this kind, intended only for foreigners, this in
reality is the only practicable means for the addressees of getting
information.  Under such circumstances the presentation must be
required to fulfil the same requirement of clarity as a legal text,
and the applicant contends that the brochure falls seriously short of
that requirement, being so unclear as to be definitely misleading.  In
the first place, it sets out in map form the areas having various
characteristics, and for the type of area which the applicant was
visiting it only states that the entry of aliens is allowed for a
period of three months.  A sailor will consult the charts and other
documents relating to the course that he is following and it is not
natural or even advisable for him to scatter his concentration by
studying other areas.  In the second place the map does not even
properly delimit the semi-restricted areas, because where they adjoin
a restricted area they are not delimited by the prescribed blue line
and are thus in reality set out as an open sack.  In the third place
the colouring of the "freer" semi-restricted areas as blue shaded,
while the more restricted areas into which boats may not be taken is
white like the open sea, is misleading, as the Appeal Court has
pointed out.

The Supreme Court does not deny that there is no express prohibition
against entering the areas but states that the sense of the statute is
quite clear and appears from the Order's classification into rules for
"aliens" and rules for their "vessels", and that the same applies to
the brochure.  In this respect the applicant finds that this is clear
only to one who has become aware of the systematic arrangement of the
Order and brochure, and that this is precisely what the casual reader
in the applicant's situation has no means of seeing.  Moreover, the
Supreme Court's argument that the applicant might have availed himself
of the brochure's suggestion to inquire from the proper authorities
must be rejected as irrelevant, since the applicant had no cause to
doubt his reading of the text as allowing his boat's entry into the
Tjärö area.

The Attorney General has stated before the Supreme Court that it is
necessary for Sweden to protect her coasts, and that this necessitates
the conviction of persons in the applicant's situation. The applicant
does not deny the necessity for Sweden to defend her coasts, but he
contends that this does not relieve the legislator from the duty of
expressing himself clearly and does not relieve the Supreme Court from
the duty of applying penal law restrictively and without analogising
according to Art. 7 (Art. 7) of the Convention.

THE LAW

1.      The applicant has complained under Art. 6 (Art. 6) of the
Convention that he was not given the opportunity to defend himself
through a representative of his own choosing in the proceedings before
the District Court and the Court of Appeal.

It is true that Art. 6 (Art. 6) of the Convention secures to everyone
charged with a criminal offence the right to defend himself through a
representative of his own choosing.

In the present case it is also true that the applicant signed a
document according to which he authorised a policeman to be his
representative in the legal proceedings which were to follow.  This
did not, however, in any way debar the applicant from choosing another
lawyer if he had so wished.  He was, under Swedish law, at any time
free to engage a lawyer of his own choosing.  Furthermore according to
Chapter 49 Section 4 no. 1 of the Swedish Code of Judicial Procedure
the applicant could have appealed to the Court of Appeal against any
decision of the District Court refusing him to be represented by the
lawyer of his choice.  He could also have asked the Court to appoint a
lawyer ex officio and appealed according to Chapter 49 Section 4 no. 7
of the Code of Judicial Procedure against any decision of the District
Court rejecting such a request.

In these circumstances the Commission finds that an examination of
this complaint does not disclose any appearance of a violation of the
Convention and in particular of Article 6 (art. 6).  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 under Art. 7 (Art. 7) of the
Convention, that he was convicted on the basis of extensive and
analogical interpretation of penal law which did not contain a clear
prohibition of the act committed.

The Commission has earlier dealt with the question of extensive
interpretation of criminal law, and its relevance under Art. 7 ,
para. 1 (Art. 7-1) of the Convention.  One case (Dec. No. 8490/79,
12.3.81, D.R. 22 p. 140) was declared admissible because the
Commission considered that the extensive interpretation of a certain
statutory provision, applied for the first time by the courts after
the commission of the acts of which the applicant was accused, could
raise an issue under this provision.  In another case brought against
the Federal Republic of Germany the Commission rejected a similar
complaint on the ground that the application of a specific article of
the Penal Code to certain facts had not gone beyond the limits of a
reasonable interpretation of the provision in question (Dec. No.
8866/80, 5.10.81, unpublished).

The Commission considers that in the area of the criminal law it is
excluded, by virtue of Art. 7 para. 1 (Art. 7-1) of the Convention,
that any acts not previously punishable should be held by the courts
to entail criminal liability, or that existing offences should be
extended to cover facts which previously clearly did not constitute a
criminal offence.  This implies that constituent elements of an
offence such as e.g. the particular form of culpability required for
its completion may not be essentially changed, at least not to the
detriment of the accused, by the case law of the courts.  On the other
hand, it is not objectionable that the existing elements of the
offence are clarified and adapted to new circumstances which can
reasonably be brought under the original concept of the offence.

In the present case, the Commission has examined whether the act
committed by the applicant constituted an offence under Swedish law at
the time it was committed.  In this respect, the Commission recalls
that this particular question was dealt with by the Supreme Court of
Sweden, which found that, although the editorial layout of the summary
issued by the Commander in Chief in conjunction with the concentrated
information did not make this summary easy to understand, the rules of
the Order clearly indicated that an alien vessel could not stay within
a semi-restricted area in other ways than expressly mentioned and that
neither the Order nor the summary of the Commander in Chief, if read
with proper care, supported the interpretation invoked by the
applicant.

The Commission has examined this interpretation in the light of the
general considerations set out above and finds that the Supreme Court
did not go beyond the limits of a reasonable interpretation of the
existing law.  The Commission is therefore satisfied that the
applicant's conviction was based on the relevant Swedish law, namely
the Act on Aliens of 1980, Chapter 96, section 1 in conjunction with
the Order of 1976 concerning Protected and Controlled Areas, sections
13 and 14.  Accordingly, this complaint does not disclose any
violation of Art. 7 (Art. 7) of the Convention.  From that it follows
that this part of the application is also manifestly ill-founded

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                           (C.A. NØRGAARD)