AS TO THE ADMISSIBILITY OF
Application no. 27700/08
by Peter HOLLAND
The European Court of Human Rights (Third Section), sitting on 9 February 2010 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 28 May 2008,
Having deliberated, decides as follows:
1. The applicant, Mr Peter Holland, is a British national who was born in 1958 and lives in Stockholm.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
2. On 31 January 2005 the applicant was convicted by the District Court (tingsrätten) of having harassed a woman with whom he previously had been living and of threatening her new partner. He was given a suspended sentence and a fine. The applicant appealed against the judgment to the Svea Court of Appeal (hovrätten) where a hearing was held on 31 January 2006. In a judgment of 14 February 2006, the Court of Appeal upheld the lower court's judgment in full. On 12 April 2006 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
3. On 24 April 2006 the applicant lodged an application with the Court (application no. 17504/06) in which he complained under several Articles of the Convention that the criminal trial against him had been flawed in various ways. In particular, he claimed that he had never been informed of the charges against him in English, although he had requested this during the preliminary investigation, that the courts had not presumed him innocent, that the trial had been unfair since the Supreme Court had refused leave to appeal and that he had been punished without law as the courts had taken into account the possible motives of the people involved. On 12 June 2007 the application was declared inadmissible by a Committee as being manifestly ill-founded.
4. Subsequently, on 28 September 2007, the applicant complained to the Chancellor of Justice (Justitiekanslern) that the tape recordings from the oral hearing before the Court of Appeal had been destroyed. He submitted that he needed the tape recordings in order to complain to the Court and that the destruction of the tapes hindered him from effectively exercising this right in accordance with Article 34 of the Convention. Moreover, he claimed that the time-limit of two months “after the final hearing” for destroying the records according to Swedish law was too short and not in accordance with Sweden's obligations under Articles 35 of the Convention, which afforded individuals a period of six months to complain to the Court.
5. In its reply dated 9 October 2007, the Chancellor of Justice first observed that the tape recordings from the Court of Appeal's hearing on 31 January 2006 had been destroyed at some point in May 2006 and the applicant had requested a copy of the recordings in October 2006. It then noted that, according to the Ordinance on Cases and Matters before the General Courts (förordning [1996:271] om mål och ärenden i allmän domstol; hereafter “the Ordinance”), a person who requested a copy of a tape recording from a hearing had the right to obtain it and it was possible to have the copy as soon as the protocol from the hearing had been finalised. However, the tape recordings had to be kept for two months following judgment in the case or, if the judgment was appealed against, until final judgment or decision had been rendered. In the applicant's case, the Chancellor of Justice observed that the Court of Appeal had not destroyed the tape recordings until after the Supreme Court had refused leave to appeal. Consequently, it had acted in accordance with the law. The Chancellor further considered that the two months time-limit imposed under Swedish law could not be considered insufficient for an individual to obtain a copy of the tape recording if he or she wanted to complain to the Court.
6. The applicant wrote a second letter to the Chancellor of Justice on 9 April 2008 in which he repeated that he considered the time-limit for the destruction of tape recordings to be in conflict with Sweden's obligations under Articles 34 and 35 of the Convention. However, in a letter dated 16 April 2008, the Chancellor of Justice referred to its previous letter and clarified that it did not consider that the relevant Swedish legislation was in violation of Sweden's obligations under the Convention.
B. Relevant domestic law as in force at the relevant time
7. According to Chapter 6, Article 6 of the Code of Judicial Procedure (Rättegångsbalken, 1942:740) accounts which are given as evidence at a hearing shall be recorded on tape or, if the accounts can be assumed to be of importance to the case, written down.
8. Section 19 of the Ordinance stipulated that, if someone requested information on the contents of a tape recording which had been made in accordance with Chapter 6, Article 6 of the Code of Judicial Procedure, he or she should be given a copy of that recording, unless the court considered that there were special reasons to furnish the person with a transcript instead. When a transcript was made, its accuracy had to be attested and a copy of the transcript should be included in the case file.
9. Moreover, according to section 20 of the Ordinance, a tape recording had to be kept for two months after the court ruled in the case. However, if the decision or judgment was appealed against, the tape recordings had to be kept until the case had been adjudicated through a domestic judgment or decision which had gained legal force.
10. The applicant complained under Articles 34 and 35 of the Convention that the destruction of the tape recordings of the Court of Appeal's hearing, before the six months' time-limit established by the Convention, hindered him from effectively exercising his right to complain to the Court. He further complained that the Chancellor of Justice should have addressed his complaint.
11. The applicant complained that Sweden had hindered the effective exercise of his right to complain to the Court, contrary to Article 34 of the Convention, which reads:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
12. The applicant claimed that in order effectively to lodge an application with the Court, it was reasonable that an applicant had access to the tape recordings from the domestic courts' hearings. Moreover, since an applicant would need time to reflect on a suitable course of action and might need to seek expert advice, it would take a certain amount of time to prepare an application to the Court. In his view, the Court had taken this into account when deciding to give applicants a six months' time-limit following a final domestic decision within which to lodge an application. Consequently, he considered that the time-limit in Swedish law after which tape recordings were allowed to be destroyed was too short and in contravention of Sweden's obligations under the Convention.
13. The Court observes from the outset that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual's right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1219, § 105; Kurt v. Turkey, 25 May 1998, Reports 1998-III, p. 1192, § 159; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Sarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002). This means that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure. It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition, that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with. What matters is whether the situation created as a result of the authorities' act or omission conforms to Article 34 (see, Paladi v. Moldova [GC], no. 39806/05, § 87, ECHR 2009-...).
14. As concerns the present application, the Court observes that the final decision in the criminal case against the applicant gained legal force on 12 April 2006 when the Supreme Court refused leave to appeal and that the tape recordings from the Court of Appeal's hearing were destroyed at some point in May 2006. Thus, not only did more than two months pass from the Court of Appeal's judgment on 14 February 2006 until the tape recordings were destroyed, but they were destroyed some three to six weeks after the case had been finally settled by the Supreme Court. The destruction was consequently in accordance with Swedish law in force at the time.
15. Moreover, the Court notes that the applicant lodged his application with the Court concerning the criminal trial on 24 April 2006, that is, when the tape recordings still existed. It follows that he could have requested a copy if he had considered that the content of the tapes was of importance to his application before the Court. He did not do so and the Court observes that the applicant has at no point specified what he intended to do with the tape recordings or what he wanted to prove by producing them before the Court. Furthermore, the essential parts of the statements given during the oral hearing were written down in the Court of Appeal's judgment and a copy of that judgment was submitted to the Court and included in the case file.
16. The Court further takes into account that the applicant was informed that the tape recordings had been destroyed in October 2006, when he requested copies of them, at which time his original application before the Court was still pending. In the Court's view, it could reasonably have been expected of the applicant that he would have informed the Court about this if the tape recordings had been essential to his application and invoked Article 34 of the Convention at that time. However, he did not do this either. In fact, he only lodged the present application in May 2008, almost one year after his original application had been declared inadmissible and more than seven months after the Chancellor of Justice had replied to his complaint. To the Court this rather indicates that the applicant did not consider the tape recordings to be essential for his application.
17. In these specific circumstances, the Court finds that the destruction of the tape recordings in May 2006 did not hinder the applicant from effectively exercising his right of petition.
18. As concerns the applicant's claim that the Chancellor of Justice should have addressed his grievance, the Court considers that the Chancellor of Justice in his reply of 9 October 2007 did, in a sufficiently clear and detailed manner, respond to the applicant's complaint.
19. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Stanley Naismith Josep
Deputy Registrar President
HOLLAND v. SWEDEN DECISION
HOLLAND v. SWEDEN DECISION