ISAKSSON AND OTHERS v. SWEDEN
Inadmissible
Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. A list of the applicants is set out in the appendix. 2. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In February 2008 the applicants, who are all Swedish citizens, were indicted on charges of having committed, inter alia, aggravated drug offences and aggravated violation of the Act on Trade in Medicinal Products (lagen (1996:1152) om handel med läkemedel m.m., hereafter “the 1996 Act”). According to the prosecutor, during the period from 1 January 2003 to 30 January 2007, in Stockholm and the county of Skåne, the applicants and three other defendants had, together and in consultation, created a business on three different websites on the internet through which they had sold medicinal products illegally for a total amount of at least 28.8 million Swedish kronor (SEK), approximately 3 million euros (EUR) of which products for an amount of at least SEK 9.6 million, approximately EUR 1 million, constituted narcotic drugs. 5. The first and second applicants were accused of having been responsible for the business. The first applicant had operated from Sweden while the second applicant had operated mainly from Thailand. They had allegedly controlled the other defendants’ actions, received orders from customers all over the world and forwarded these to the persons responsible for the distribution of the medicinal products, including the narcotic drugs. According to the prosecutor, they had also been involved in company acquisitions to facilitate the web trade of medicinal products and credit card payments. The first and second applicants had also participated in the creation of the websites where the medicinal products, including the narcotic drugs, had been sold and opened bank accounts for payments received for the products. The third applicant, who had operated from Sweden, was accused of having created, administered and dealt with customer contacts for two of the websites through which the medicinal products and narcotic drugs had been sold. In relation to the charges for aggravated drug offences, he was also accused of having promoted narcotic drug trafficking by illegally holding and forwarding payments for narcotic drugs. The fourth applicant was accused of having created one of the internet sites used for the trading of the medicinal products and the narcotic drugs and of having administered and dealt with customer contacts on all three internet sites. 6. Legal representatives were appointed to the applicants, who denied the charges. The applicants and their co-defendants argued, among other things, that Swedish courts did not have jurisdiction in the case as no medicinal products had ever been physically present in Sweden and nothing had been sold to persons in Sweden. The medicinal products had been acquired outside of Sweden and sold to people in various countries but never in Sweden. In their view, their business had been lawful and they had not committed any criminal offence under Swedish law. 7. On 4 April 2008, following a main hearing which lasted 14 days, the Attunda District Court (tingsrätten) convicted the applicants of aggravated drug offences and sentenced them to between two and seven years’ imprisonment. In so far as concerned its jurisdiction, the District Court first noted that the Swedish Narcotics Penal Act (Narkotikastrafflagen (1968:64)) was applicable also to crimes committed outside of Sweden for which reason the alleged drug offences were covered by that Act. It then noted that several of the alleged activities had taken place in Sweden, such as offering the medicinal products, including the narcotic drugs, for sale from Sweden and establishing the contacts between sellers and buyers from Sweden. These activities were, in the court’s view, sufficient to find that the alleged crimes had been completed in Sweden. Therefore, it had jurisdiction to try this charge. The court proceeded to find that the applicants had been involved in the activities as specified by the prosecutor and that they had known that it was illegal and in breach of Swedish law. 8. However, the District Court acquitted the applicants of the second charge as it found that the 1996 Act was not applicable in the present case as no medicinal products had passed through Sweden and the business had not been aimed at consumers in Sweden. According to the court, the State’s monopoly to trade with medicinal products in Sweden had therefore not been breached. 9. The applicants as well as the prosecutor appealed against the judgment to the Svea Court of Appeal (hovrätten). The prosecutor argued, inter alia, that the applicants should also be convicted of aggravated violation of the 1996 Act. The applicants submitted inter alia that the appellate court should dismiss the charges against them or, alternatively, that the charges for aggravated drugs offences should be rejected. They maintained that Swedish courts lacked jurisdiction and that they had not committed any criminal offence under Swedish law. 10. On 2 July 2008, following a main hearing, the Court of Appeal upheld the lower court’s conviction of aggravated drug offences for the first and second applicants. It aquitted the third applicant of that charge as it did not find that he had been aware that medicinal products classified as narcotic drugs had been sold on the internet sites. Lastly, it altered the fourth applicant’s conviction to complicity to aggravated drug offences. However, the appellate court also convicted the first and second applicants of aggravated violation of the 1996 Act and the third and fourth applicants of complicity to aggravated violation of the 1996 Act. The first and second applicants were sentenced to eight years’ imprisonment, the third applicant was given a probationary sentence and a fine of SEK 10,800 and the fourth applicant was sentenced to two years and six months’ imprisonment. 11. The appellate court found that since the first applicant, who had had the leading role in the business, had operated from Sweden and the other defendants had taken part in the same business, all their actions should be deemed as having been committed in Sweden. Consequently, the court had jurisdiction to consider the acts and Swedish law was applicable. As regards the charge of aggravated violation of the 1996 Act, the appellate court noted that the business had been large scale, comprising sales of at least SEK 19,200,000. Since the 1996 Act prohibited sales of medicinal products by others that the Swedish State, or a legal entity in which the State had decisive influence, the court found that the applicants had violated the Act as specified by the prosecutor in the indictment. The Court of Appeal further noted that it did not consider that convicting the defendants would be in breach of either the principle of legality when applying the 1996 Act in its wording before it was amended on 1 May 2006, or any EC laws or regulations. 12. The applicants and two of their co-defendants appealed against the judgment to the Supreme Court (Högsta domstolen), maintaining their claims. 13. The Supreme Court granted leave to appeal concerning the question whether what the Court of Appeal had found proven in relation to each of the defendants under the charges of aggravated violation of the 1996 Act meant that the prerequisites to convict them under that Act were fulfilled. The question of leave to appeal for the remainder of the case was adjourned. 14. On 5 December 2008, the Supreme Court gave judgment, answering the question in the affirmative, namely, that the prerequisites to convict the applicants under the 1996 Act were fulfilled in the present case. In view of its finding, it refused leave to appeal for the remainder of the case. The Supreme Court first noted that the prosecuted activities of the defendants, that is the running of the retail business during the specified time, were to be seen collectively and hence be considered as one crime, even though they comprised several acts carried out at various times where each act was sufficient to be considered a crime of itself. The main question was then whether the activities could be considered to have been performed in Sweden. Agreeing with the Court of Appeal, the Supreme Court found that this was the case since some of the acts had been carried out in Sweden and Sweden therefore had jurisdiction to try the charge in its entirety in accordance with the principle of ubiquity and Chapter 2, Articles 1 and 4 of the Penal Code (Brottsbalken (1962:700)). As regards the acts of complicity, such acts should be considered to be committed not only where they were performed, but also where the main act had been committed. The Supreme Court hence concluded that the Swedish courts had jurisdiction to try the charges against the applicants. 15. The Supreme Court then turned to consider whether the applicants and their co-defendants had violated Swedish law, namely the 1996 Act. Here, the court noted that the 1996 Act was primarily directed at regulating the trade of medicinal products in Sweden and that it had to establish whether it was applicable when neither the products nor the buyers were physically present in Sweden, that is when the trade was based in Sweden but directed against foreign markets. In deciding this, the court had regard to the rapid development of the technical means of trading over national borders and the interest to protect the health and safety of consumers, also outside of Sweden. It further took into account the Act on Electronic Trade and Other Information Society Services (lagen (2002:562) om elektronisk handel och andra informationssamhällets tjänster, hereafter “the Electronic Trade Act”) which was based upon the EU directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the Directive on Electronic Commerce”). The directive established the subjective territoriality principle in that Member States should ensure that services emanating from within their territories complied with national provisions applicable in that State. The Supreme Court noted that the subjective territoriality principle was an established principle applicable to various areas. It further concluded that retail trading of medicinal products was not, as such, covered by the scope of the Electronic Trade Act. Even though marketing and ordering of medicinal products via internet did, in fact, fall under the Act, actual deliveries of medicinal products were not covered by the scope of the Act. Having regard to the above as well as to the interest to protect the health and safety of consumers, avoid that Sweden be considered as a suitable base for irresponsible large-scale medicinal trade and that there did not appear to exist any formal or other circumstances directly contradicting that the subjective territoriality principle was applicable, the Supreme Court concluded that the 1996 Act was applicable and that the defendants had breached it as found by the Court of Appeal. 16. The third applicant requested the Supreme Court to re-open the case on 19 May 2009. He claimed inter alia that section 4 of the 1996 Act in its wording before it was amended on 1 May 2006, referred to a repealed ordinance (the Medicinal Products Ordinance, Läkemedelsförordningen (1962:702)) and that therefore, he could not have foreseen that the acts he was convicted of were illegal. The request was rejected by the Supreme Court on 20 October 2009 since it found that the applicant had not shown any such new circumstance that would justify a re-opening of the case. 17. The provisions applied in the present case were laid down in the 1996 Act. It may be noted that the 1996 Act was replaced, on 1 July 2009, by a new Act on Trade in Medicinal Products (lagen (2009:36) om handel med läkemedel – hereafter referred to as “the 2009 Act”). 18. Section 4 of the 1996 Act provided, inter alia, that retail trade of medicinal products should be conducted by the State or by a legal entity, appointed by the Government, in which the State had a decisive influence. Between 1970 and 1 July 2009 the state owned company Apoteket AB had exclusive rights to sell medicinal products in Sweden. 19. In its wording until 1 May 2006, section 4 of the 1996 Act referred to retail trade in “items that are covered by the now repealed Medicinal Products Ordinance (1962:701)” and one other Act. However, through a legislative amendment this was changed and, as from 1 May 2006, section 4 instead referred to the Medicinal Products Act (Läkemedelslagen (1992:859)) and Regulation (EC) No. 726/2004 of the European Parliament and of the Council of 31 March 2004. 20. According to section 11 of the 1996 Act, a person who intentionally or negligently violated section 4 should be sentenced to a fine or imprisonment not exceeding one year, unless the act was punishable under the Penal Code. It further provided that minor offences should not be punishable and that an intentional violation that had been conducted as a professional activity, concerned a considerable quantity or value, or otherwise was of a particularly dangerous nature, should be subject to imprisonment not exceeding two years. 21. With the entry into force of the 2009 Act, on 1 July 2009, the pharmacy market was deregulated to allow actors other than Apoteket AB the right to sell medicinal products to the general public. However, an authorisation and special permit from the Medical Products Agency is required to sell medicinal products to the general public. 22. Section 1 of the Narcotics Penal Act provides inter alia that any person who unlawfully either transfers narcotics, acquires narcotics for the purpose of transfer, or procures, processes, packages, transports, keeps or in some other similar way handles narcotics that are not for personal use, or offers narcotics for sale, keeps or conveys payment for narcotics, mediates contacts between seller and buyer or takes any other such measure, if the procedure is designed to promote narcotics traffic, shall, if he or she has acted with intent, be sentenced for drug offences to imprisonment for not more than three years. 23. According to section 3 of the Act, in case of an aggravated offence, the sentence shall be imprisonment of at least two years and at the most ten years. 24. The Supreme Court has applied the Narcotics Penal Act to criminal acts committed abroad without this having constituted an issue per se (NJA 1971 p. 321 and NJA 1983 p. 425). This approach has also been confirmed in legal doctrine (see for instance, Jareborg, Allmän kriminalrätt [General criminal law], p. 242). 25. The regulations regarding the jurisdiction of Swedish courts in criminal cases and the applicability of Swedish penal laws are laid down in Chapter 2 of the Penal Code. Chapter 2, Article 1 of the Code provides that crimes committed in Sweden shall be adjudicated in accordance with Swedish law and by a Swedish court. The same applies when it is uncertain where the crime was committed but grounds exist for assuming that it was committed in Sweden. 26. According to Chapter 2, Article 4 of the Penal Code a crime is deemed to have been committed where the criminal act was perpetrated and also where the crime was completed or, in the case of an attempt, where the intended crime would have been completed. According to the preparatory works to the Penal Code (see NJA II 1948 p. 162) and Swedish case-law (the Supreme Court case NJA 1993 p. 292, as well as the Court of Appeal case RH 2000:84), as soon as a part of a crime has taken place within the realm, the criminal act in its entirety is to be considered to have been perpetrated in Sweden (the principle of ubiquity). 27. In the case of complicity to a crime, it is considered that the location of the criminal act is determined by both the act of complicity and the main act. An accomplice acting from abroad will be deemed to have committed a crime within the country, if he is aiding a main perpetrator to carry out or complete a crime in Sweden (see, for example, Holmqvist et al., Brottsbalken, En kommentar [Commentary to the Penal Code], p. 2:41). 28. Application of penal provisions by analogy is prohibited according to Chapter 1, Article 1 of the Penal Code. Penal provisions should be prescribed by law. In a judgment of 12 July 1994 (NJA 1994 p. 480) the Supreme Court stated that there were no impediments to interpret penal provisions in accordance with the recognised principles for interpretation of the law. However, such an interpretation had to be made cautiously. 29. The penal law principle of legality also embodies a general requirement that a penal provision should be sufficiently clear and precise. It should be possible to foresee the application of a penal provision to a reasonable extent and it should be compatible with the grounds and purpose of the penal provision.