AS TO THE ADMISSIBILITY OF

                      Application No. 11274/84
                      by A.
                      against Sweden


        The European Commission of Human Rights sitting in private
on 10 July 1989, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  J. CAMPINOS
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY
             Mr.  L. LOUCAIDES

             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 16 October 1984
by A. against Sweden and registered on 3 December 1984 under file
No. 11274/84;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent
Government on 25 October 1988 and the observations submitted in reply
by the applicant on 27 April 1989.

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be
summarised as follows:

        The applicant is a Swedish citizen, born in 1944.  He is an
engineer by profession and resides at Torsås, Sweden.

A.      Particular facts of the case

        On 26 February 1983 the applicant was stopped by the police
while driving a tractor on a highway (motortrafikled) restricted to
certain types of vehicles, not including a tractor.  The applicant
was charged with a violation of Sections 139 and 144 of the Traffic
Ordinance (vägtrafikkungörelsen) but, although he admitted the factual
circumstances, he contested having violated any laws.

        The case was therefore brought before the District Court of
Ronneby (Ronneby tingsrätt).  Before this Court the applicant
requested the hearing of one of the policemen who had stopped him as
well as the production of the official weather reports concerning the
period in question.  Finally he asked the Court to appoint a defence
counsel under the legal aid system since he was without sufficient
means.

        On 8 June 1983 the Court refused to appoint counsel, the
reason being that the case was very simple and that the applicant
could not be regarded as being in need of legal assistance in order to
be able to defend himself.  The applicant appealed against this
decision to the Court of Appeal referring to the right to a fair trial
in the light of the fact that his "opponent" was a professional
prosecutor.  On 20 June 1983 the Court of Appeal upheld the District
Court's decision.  This decision was not subject to appeal.

        The case against the applicant was heard by the District
Court on 21 September 1983.  The applicant was heard as well as the
policeman named by the applicant.  The Court, however, did not obtain
the official weather reports.  After hearing the parties and after
evaluating the written evidence brought forward the District Court
found the applicant guilty of the charge brought against him and
sentenced him to pay a fine of 400 Swedish crowns.  In its judgment the
Court stated as follows:

"Andersson has contested criminal liability and has made the
following statement: He was on his way from Hässleholm to
Torsås driving a tractor he had just bought.  He had travelled
with his father to Hässleholm that morning and they had then,
i.a., travelled the same distance but in the opposite
direction.  The mist had been very dense already in the morning
and Andersson made no special observations as regards the road
during the trip.  He is unaware of the concept 'motortrafikled'.
When he arrived on the 'motortrafikled' west of Karlshamn, it
was so misty that he saw no road signs that called for his
attention.  He was therefore unaware of the character of the
road he was driving on and even if he had noticed a road sign
indicating 'motortrafikled' he would not have known what
restrictions this would imply as regards traffic with certain
vehicles.
Police officer Roger Bjurbrandt has been heard as a witness
but has not given any substantive information except that the
weather was normal in the area of Ronneby without any signs of
mist.

Andersson - who was driving in the manner alleged by the
public prosecutor - drove a long distance by tractor and
should therefore have paid particular attention to the rules
applicable as regards the driving of such a vehicle.  The fact
that the weather was misty does not relieve him from his
obligations as a driver.  He shall therefore be convicted in
accordance with the charge against him."

        The applicant appealed against this judgment to the Court of
Appeal for Skåne and Blekinge (Hovrätten över Skåne och Blekinge).
He maintained inter alia that the proceedings before the District
Court were "unbalanced" and that the judge interrupted him over and
over again, preventing him from submitting his statement as he found
appropriate.  He also complained of the fine imposed.

        In reply to this appeal the prosecution submitted a written
statement of 31 October 1983 in which it was maintained that the
applicant had violated the Traffic Ordinance.  The prosecution
refrained from requesting the hearing of the policeman as a witness
and indicated that the case could be dealt with without a hearing
before the Court of Appeal.  A copy of this statement was sent to the
applicant by the Court of Appeal together with a covering letter of
2 November 1983 stating that the case could be dealt with without a
hearing and that the applicant had two weeks to submit his statement
in reply to the observations made by the prosecution.  In his written
observations of 9 November 1983 the applicant stated inter alia that
it would be of great interest to hear the policeman as a witness again
and to examine the weather reports.  He furthermore requested that the
hearing be held at Karlskrona and preferably not on a Thursday.
Finally he requested free legal assistance since he needed it and
could not afford to pay for it himself.

        The Court of Appeal gave judgment in the case on
10 February 1984.  Before this Court there was no public hearing and
neither of the parties was present.  In its judgment the Court stated:

        "Court of Appeal judgment

        The Court of Appeal upholds the District Court judgment.

        The Court of Appeal rejects (the applicant's) request for
        an appointed defence counsel.

        Claims before the Court of Appeal.

        (The applicant) has requested that the charges against
        him be rejected.  The prosecution objects to a change.

        (The applicant) has furthermore requested the appointment
        of a defence counsel.
        The Court of Appeal's reasons

        (The applicant's) rights before the Court of Appeal can
        be secured without the appointment of a defence counsel.

        From the photos submitted, it appears that the character as
        a 'motortrafikled' of (the road in question) did appear from
        appropriate and visible road signs at Stensnäs.  For this
        reason and since (the applicant) nevertheless drove the
        tractor on (the road) from Stensnäs to Sörby he committed
        the offence with which he was charged by the prosecution."

        The applicant subsequently asked the Supreme Court (Högsta
domstolen) for leave to appeal against this judgment.  In his request
he stated:

        "The proceedings before the Court of Appeal were of a very
        unbalanced character.  The prosecution was free to submit
        its arguments against the accused whereas the accused was
        treated in a degrading manner.  The proceedings before the
        Court of Appeal did not comply with what is stipulated in
        the human rights and freedoms.  Since a judgment in Sweden
        may be held against a person for the rest of his life it
        would appear to be of great importance that the court
        proceedings take place in a balanced manner and that every
        person is treated equally."

        The Supreme Court refused leave to appeal on 26 April 1984.

B.      Relevant domestic law

        The relevant penal provisions of the traffic legislation are
found in the Traffic Ordinance (1972:603).  From Sections 139 and 144
it follows that tractors are not allowed on certain types of highways,
i.a. "motortrafikled".  Persons violating these rules are, according to
Section 164, liable to pay a fine, at most 1.000 Swedish crowns.

        Provisions regulating traffic signs are found in the Traffic
Sign Ordinance (1978:1001).  In Section 24 sign 1.4.3 is featured.  This
sign indicates where the "motortrafikled" begins.  The same sign may
also, but need not, be used as an introductory sign, together with
another sign indicating how soon the "motortrafikled" begins.

        The Code of Judicial Procedure (rättegångsbalken) does not
distinguish between "questions of facts" and "questions of law".  There
are no rules restricting the scope of the proceedings in the courts of
appeal (or in the Supreme Court for that matter) in this respect.
Swedish appellate courts review criminal cases with respect to law as
well as with respect to the facts.

        Chapter 51, Section 21 of the Code of Judicial Procedure
concerning the proceedings before the Court of Appeal read at the
relevant time:*

"Hovrätten äge utan huvudförhandling företaga mål till
avgörande, om talan av åklagaren föres allenast till den
tilltalades förmån eller talan, som föres av den
tilltalade, biträtts av motparten.

Har underrätten frikänt den tilltalade eller eftergivit
påföljd för brottet eller funnit honom vara på grund av
själslig abnormitet fri från påföljd eller dömt honom till
böter eller fällt honom till vite och förekommer ej
anledning till ådömande av svårare straff än nu sagts eller
att ådöma annan påföljd, må målet avgöras utan
huvudförhandling ..."

(translation)

"The Court of Appeal may decide the case without a hearing if
the prosecutor appeals only for the benefit of the accused or
if an appeal lodged by the accused is supported by the
opposing party.

The case may be decided without a hearing if the lower court
has acquitted the accused or discharged the offender or found
him to be exempted from punishment by virtue of mental
abnormality or if it has sentenced him to a fine or ordered
him to pay a money penalty (vite) and there is no reason to
impose a more severe sanction than those mentioned above or to
impose any other sanction ..."

Chapter 51, Section 25 concerning reformatio in pejus reads:

"Ej må hovrätten i anledning av den tilltalades talan eller
talan, som av åklagare föres till hans förmån, döma till
brottspåföljd, som är att anse såsom svårare än den, vartill
underrätten dömt.  Har den tilltalade av underrätten dömts
till fängelse, äge hovrätten förordna om villkorlig dom,
skyddstillsyn eller överlämnande till särskild vård, så ock
jämte villkorlig dom, skyddstillsyn eller överlämnande till
vård inom socialtjänsten döma till böter ävensom jämte
skyddstillsyn döma till fängelse enligt 28 kap. 3 §
brottsbalken.  Har underrätten meddelat förordnande som nu
sagts, äge hovrätten döma till annan påföljd."


_______________

*       This Section has subsequently been amended as from
        1 July 1984.  The amendment is, however, not relevant
        to the present case.
(translation)

"Upon an appeal lodged by the accused, or by the prosecutor for
the benefit of the accused, the Court of Appeal may not
sentence the accused to a criminal sanction more severe than
the one imposed by the lower court.  If the accused was
sentenced by the lower court to imprisonment, the Court of
Appeal may order suspension of sentence, probation or placing
under special care; in addition to suspension of sentence and
to probation or placing under care within the social service,
the Court of Appeal may impose a fine or probation coupled
with imprisonment, pursuant to Chapter 28, Section 3 of the
Penal Code.  When the lower court has ordered a sanction of
the kind referred to above, the Court of Appeal may impose a
different kind of sanction."


COMPLAINTS

        The applicant invokes Article 6 para. 1 of the Convention.  He
maintains that the courts have not fulfilled the requirement to give
the accused a fair trial and that they have failed to consider
relevant arguments and evidence.  He also feels that he has been
discriminated against.  Finally he maintains that it has not been
proven that the offence in question has been committed by him
deliberately.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 16 October 1984 and
registered on 3 December 1984.

        The Commission decided on 7 October 1985 to bring the
application to the notice of the respondent Government without,
however, inviting them to submit observations on the admissibility and
merits of the case, pending the outcome of application No. 10563/83,
Ekbatani v.  Sweden, before the European Court of Human Rights.

        The Court's judgment in the above case was pronounced on
26 May 1988 (Eur.  Court H.R., Ekbatani judgment of 26 May 1988, Series A
no. 134), and the Commission then decided, on 9 July 1988, to request
the respondent Government to submit their observations on the
admissibility and merits of the case, having regard to this judgment.

        The Government's observations were submitted on 25 October 1988.

        On 3 November 1988 the applicant was granted free legal aid by
the Commission.  On the same day the Government's observations were
sent to the applicant for his observations in reply.  The time-limit
for submitting these observations was suspended awaiting clarification
of the applicant's legal representation.  This question was settled on
31 January 1989 and the applicant's representative was asked to submit
his observations before 31 March 1989.

        Disregarding this time-limit the applicant submitted his
observations on 27 April 1989.

THE LAW

1.      The applicant has complained that, in an unfair procedure, he
was eventually convicted and sentenced by the Court of Appeal for
Skåne and Blekinge to pay a fine and he has referred to Article 6
para. 1 (Art. 6-1) of the Convention which reads as follows:

"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interests
of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of
the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice."

        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 in 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
case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 ;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).

        Insofar as the applicant intends to complain about the
proceedings in the District Court of Ronneby the Commission has not
found any substantiated allegations in his submissions which could
lead it to conclude that the District Court proceedings were unfair
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
This part of the application is accordingly manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

2.      As regards the proceedings in the Court of Appeal the
Commission recalls that the applicant did not get a public hearing.

        The Government have argued that the right to a hearing before
the Court of Appeal should be considered in the light of the
circumstances of the case as a whole which in this case would lead to
the conclusion that the applicant's rights under Article 6 (Art. 6)
were not violated.

        The Commission has made a preliminary examination of the above
aspect and has found that it raises serious issues as to the
interpretation and application of Article 6 (Art. 6) of the Convention which
are of such complexity that the determination of these issues should
depend on a full examination of their merits.  It follows that this
part of the application cannot be regarded as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.  No other ground for declaring it inadmissible has been
established.

3.      The Commission has finally considered the applicant's
complaint under Article 6 (Art. 6) of the Convention insofar as he
intends to rely on this provision in regard to the Supreme Court's
refusal to grant him leave to appeal.

        In this respect 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
provision for such an appeal it is entitled to prescribe the rules by
which this appeal shall be governed and fix the conditions under which
it may be brought (cf.  No. 3775/68, Dec. 5.2.70, Collection 31 p. 16;
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 to a "criminal charge" (cf.  No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258).
It follows that Article 6 (Art. 6) of the Convention does not apply to the
proceedings in which the Swedish Supreme Court, without entering on the merits,
refused the applicant leave to appeal against the judgment 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 ADMISSIBLE, without prejudging the merits of the
        case, the applicant's complaint that he did not get a "fair
        and public hearing" within the meaning of Article 6 of the
        Convention, before the Court of Appeal;

        DECLARES INADMISSIBLE the remainder of the application.


Secretary to the Commission               President of the Commission


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