APPLICATION/REQUÊTE N° 11122184 Victor WELTER v/SWEDEN Victor WELTER c/SUÈDE DECISION of 2 Decen,ber 1985 on the admissibility of the application DÉCISION du 2 décembre 1985 sur la recevabilité de la requ@t e Article 6, paragraph I of tlhe Convention : Tiiis provision does not prevent Contracting States from regulaflng access to appeal jurisdictions, especially as far os time limits are concerned. At'ticYe26ol'the Convention : Aforeigner, who is not detained and who alleges that he does not understrnut a judgment and a notiee of appeal which are both in tbe language of Ghe court, /s not absolved from the dury to exhtmst available remedies . A;rticfe 6, paragraphe 1 de la Convention : Cette disposition n'empêche pas les Etats contractants de réglementer l'accès aux juridietions de recours, notamme,nt qaant aux délais. Article 26 de la Convenkon : N'est pas dispensé d'exercer les recours di.sponibbss l'étranger en liberté qui allêgue ne pas comprendre le jugement et l'indication des voies de recrours, rédigés dans la la.ngue du tribunal. THE FAC7'S (Extract) (français : voir p. 250) The facts of the ease, as subwiitted by the applicant, may be sv.mmarised as follows : The applicant is a German citizen born in 1941 . He is an engineer by profession and resides at Glinde near Hs.mburg, Federal Republic of Germany . Betore the Comntission he is represented by Professor Hugo 'ribexg of Sollentuna, Sweden . 246 On the night of 12 July 1983 ihe applicant navigated his sailing boat towards Arküsund in the Swedish arc :hipeltrgo outside Norrktiping, with the intention of rcaching Arkbsund . However, due to the darkness and poor visibility he felt.cnsure of his navigation and decided to si-op at an island where three other boats were moored. He reached the island at 2 a .m. and like the others tied bows to land and with an anchor aft . At 9.30 a .m. a coastguard vessel arrived and inlormed the applicant and the other (Sveedish) skippers that they had mooi-ed at Kopparholmarna, on which there is a general prohibition, for Swedes as well as for foreigners, against landing, photographing etc. aecording to an Act of 17 March 1940 . An inquiry was arranged by the eeastguards, after which the applicarit was required to proceed to ArkSsund lôr interrogation by the police, which interrogation accurred on the same clay at noon. The applicam: stated that he had landed on the island which was rendered in the police pi-otocot in Swedish as "Welter admits having landed in militaryarea where landirig prohibition applies" . The applicant submitted to the police that he was not aware of having landed in a prohibitcd area . He had consulted the charts and a sailing map and found nothin2 indicatinl! that Kooparholmarna mi ;>_ht be a orohibited area. He had indeed seeu certain signs but all with a Swedish text which he did not undersiand . Since there were already three Swedish boats there he felt no reason to assume that there would be any prohïbition. He could not admit any offence but only the. facmal circumstances . The applicant had no tneans of controlling the police protocol since he rieither speaks nor understands Swecish, nor did he at any time reczive any detailed information of the charges against tiitn in a language which he understood . At the police ttation the appiicant signed a power of attorney for a policeman ttom Nork6ping to be his "representative" . This was doue on a form printed in Swedish, Danish and Finnish contairiing, as :he now knows, the words in these three languages "I have taken notice of the inforttiation on the back of this documer.d atid understand the significance of the power of attorney" . Before signing his rame, however, the applicant inserted "Unlerschrift unter Vorbehalt Sprachschwierigkeit" (signed subject to language difficulty) . He hadthe impression that unless he signed the docurnent he would have lteen cletained . On 18 July 1983 the Swedish police wrote a personal statement concerning the, applicant, stating his annual income as 159,COO Swedish crawns . It is not eleat how the police obtained this figure since the applicant was no longer in the area . On 26 August 1983 the public prosecutor summoned the applicant beforethe. District Court of Norrkbping . As e,idence of the offence the summons stated the applicants "confession" . The court proceedingswereto take place on 15 September 1983. The summons was sent to the police offtcer whom the applicant had autheriséd by his signature and was received by him without communication wth the applicant . 24î The proceedings on 15 September 1983 took five minutes with the policeman acting as the applicant's representative. He was sentenced to pay 20 "day fines" of 100 Swedish crowns each . In the power of attorney the applicant had declared himself prepared to pay 30 day fines of 80 Swedish crowns each .ThejudgmentwassentviaordinarymailtotheapplicantinHamburg . It was accompanied by a notice of the right of appeal, according to which "appeal against this judgment must be brought no later than 6 October 1983" . The applicant does not remember when he received it, but the letter was postmarked 22 September 1983. Since it wasentirely in Swedish he could not understand the contents . On 5 October 1983 he sent the Swedish Consulate in Hamburg a letter in which he gave a full account of the circumstances and declared himself-innocent of any offence and unwilling to accept any penalties . The letter was forwarded on 6 October 1983 by the Consulate together with a cover note from the Consulate requesting that the answer be sent to the Consulate since the applicant "neither speaks nor reads Swedish". The District Court, according to its protocol of 11 October 1983, construed the applicant's letter as a proper appeal but rejected the appeal as introduced out of time since it had not reached the Court on the prescribed day . The applicant then turned to an advocate who appealed to the Grita Court of Appeal against the District Court's refusal to accept the appeal, but the Court of Appeal decided on 16 December 1983 to dismiss the appeal . The applicant thereafter requested the Supreme Court to grant him leave to appeal against the dismissal of his appeal and furthermore for leave to appeal out of time against the judgment of the District Court. In particular the applicant pointed out that he had not received the judgment in German, nor had he received it through diplomatic channels . The judgment of 15 September 1983 was not translated until 6 October 1983 which would therefore be the earliest date on which he could react to it. Also the applicant maintained that he had "appealed" to the Swedish Consulate in Hamburg on 5 October 1983 and this should be sufficient. Furthermore the applicant complained that the circumstances of the case amounted to a breach of Article 6 para . 3 of the Convention in that he had not had the possibility of obtaining the assistance of a lawyer or an interpreter . Finally he invoked Article 7 of the Convention since he found that the facts of the case did not relate to anything illegal under Swedish law .On9March1984theSupremeCourtrefusedleavetoappealagainstthelowe r courts' decisions to dismiss the appeal as being introduced out of time . On 12 March 1984 the Court refused to grant permission to appeal out of time against the judgment of the District Court of 15 September 1983 since the applicant, in the opinion of the Court, had not shown that he was legally excused (lagafôrfall) for his omission to appeal in time .248 THE LAW (Extract) 1 . Ur.der Article.6 of the Convention the applicant has complaired that he cvas not given the opportunity to defend himself through a representative ol' his own choosing and that he did nol get a fair trial in particular since he was concieted on W basis of a corfession which he hacl never made. It is tme that Article 6 cf the Convention guarantees to evervone charged with a criminal offence the right to a fair hearing and the right to clefend himself by representation of his own choosing . However, under Article 26 of the Convention the Commission is only required to decide whether or not the facts alleged by the applicant disclose an appearance cf a violation of the Convention if all damesùc remedie+a have beeu exhausted accarding to the generally necogni :,ed tules of international law. In the preseni case the applicant appealed against the judgment of the District Court to the Court of Appeal . Hovrever, his appeal vwas rejected since it had beP.n submitted out of tirne. The applicant has in this respect complained that the national regulations have in fact barred him from appealing against the District Court judgment . The Commission has already decided that the Contracting F'arties are riot d°- barred from making regulations governing the access o[ litigants to an appellate court (cf. No . 8407/78, Dec . 6.5 .80, D.R . 20 p . 11 79). Regulations conccrining time-limits within which appeaIs have to be lodged undoubtedly serve. the purpose of assuring a proper administration of justice. In the applicant's case it cannot be found that the Swedish regulations in ~auestion prevented the applicant from lodging his appeal in time . ln this respect the Commission recalls that the judgm-nt was sent to the applicant on 22 Septm . .mbe,r 1983 anc. that he maintains that he does not remember when he received it . In these circumstances the Commission finds that the applicant has not suhstantiated that he (lid not have time enough to mail an appeal directly to the court as the time-liniit for doing so did not erpire until 5 October 1983 . The fact that the applicant received the judgment and appeal insnvetions in Swedish does not change: that. Und-r the Convention the Ccntracting 1Partie ;; are under no obligation as such to provide translatiens of their courts' judgments or their procedûres as to an appeal against these judgments . Consequently the applicant cannot be considered as having exhausted the remedies available to him under Swedish law .and it follows that the applicant's complaints as to the fairness of his trial tnust be rejected under Article 27 para . 3 of the Convention . 249