ARLEWIN v. SWEDEN
Inadmissible
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
1. The applicant, Mr Raja Arlewin, is a Swedish national, who was born in 1970 and lives in Stockholm. He was represented before the Court by Mr K. Lewis and Mr J. Södergren, two lawyers practising in Stockholm. 3. In April 2004 TV3, a major commercial television channel, broadcast a television programme in which the applicant appeared in pictures and was mentioned by name. He was singled out as the central figure of organised crime within media and advertising and as being guilty of several fraud offences and other economic offences. The programme was rebroadcast a few days later as well as in September 2004. At this time, no preliminary investigation had been initiated against the applicant. 4. In July 2006 the applicant was indicted for aggravated fraud (grovt bedrägeri), an aggravated tax offence (grovt skattebrott), an aggravated bookkeeping offence (bokföringsbrott, grovt brott), a bookkeeping offence (bokföringsbrott), obstruction of tax control (försvårande av skattekontroll) and violations of the Swedish Companies Act (brott mot aktiebolagslagen). According to the indictment, the offences had been committed within 15 named companies, for which the applicant allegedly had been the actual representative (faktisk ställföreträdare). The prosecutor relied on extensive written evidence and requested that over twenty witnesses be heard and a recording of the abovementioned television programme be shown during the trial. 5. The applicant protested his innocence and submitted that he had been neither the formal nor the actual representative of the relevant companies. Thus he had had no right to decide over the companies, nor had he been responsible for their bookkeeping or reporting their turnover to the tax authority. He had done some consultancy for the companies and assisted with some administrative tasks. However, he had not financed the companies and could not be considered as their principal. 6. The applicant further requested the District Court (tingsrätten) in Stockholm to dismiss the use of the television programme as evidence. He argued, inter alia, that it violated his rights under Article 6 of the Convention as it was a strongly edited journalistic product aimed at creating sensational television and which amounted to defamation of him. Thus it would have a strong negative effect on the objectivity of the court. Moreover, since a number of persons in the programme were anonymous, they were unknown both to the defence and the court and the applicant would not be able to cross-examine them as witnesses. 7. On 3 February 2009 the District Court rejected the request. This decision could only be appealed against together with the court’s final judgment. 8. On 20 March 2009 the District Court convicted the applicant of aggravated fraud and sentenced him to five years’ imprisonment. He was acquitted of the other offences. The court held an oral hearing where the above-mentioned television programme was presented by the prosecutor during the opening procedures and relied on as evidence. At the request of one or both of the parties, 25 witnesses were heard, and the applicant was also heard. Moreover, substantial written evidence was invoked by both parties. The court, in a judgment comprising 69 pages, found it proved beyond reasonable doubt that the principal activity concerned by the indictment was fraudulent advertising sales in a number of companies, causing loss for the customers and gain for the companies. While it considered it a flaw that none of the customers had been heard in the case, it still found it established on the basis of other evidence that the customers had suffered the losses claimed by the prosecutor. 9. The court further found it proved that the applicant had been the actual representative of the companies and thus responsible for the fraudulent activities. He had been active in all of the companies and the driving force behind them and large amounts of money had been transferred from the companies to his personal company. Moreover, the court noted that none of the formal representatives of the companies had any corporate experience or knowledge of organising and running an advertising sales company. Some of them had extensive criminal records. The court also had regard to the fact that several of the companies shared office space, employees moved between the companies and the applicant had kept detailed information relating to, inter alia, taxes, yearly results, bookkeeping, billing and contacts with banks and authorities for all of the companies in his personal computer. 10. The television programme was mentioned in the District Court’s judgment under the heading “Statement of facts” (Sakframställningar) where it was simply noted that the television programme had been broadcast for the first time during the spring of 2004 and that the case against the applicant had been initiated by the Swedish Economic Crime Authority (Ekobrottsmyndigheten) in January or February 2006, more than one year and six months after the broadcast. The court did not mention the television programme in its reasoning. 11. Both the applicant and the prosecutor appealed against the judgment. The applicant also appealed against the decision to allow the television programme as evidence. 12. On 28 October 2009 the Svea Court of Appeal (hovrätten) rejected the applicant’s appeal in relation to the television programme as it found no reason to dismiss it as evidence. This decision could only be appealed against in connection with the Court of Appeal’s final judgment. 13. On 23 February 2010 the Court of Appeal, after having held an oral hearing, upheld the lower court’s conviction but also found the applicant guilty of an aggravated bookkeeping offence and an aggravated tax offence. The sentence was upheld. In addition to the witnesses heard before the District Court, whose testimonies were played to the court, supplementary questions were put to the applicant and eight new witnesses were heard on the applicant’s request. Substantial written evidence was also presented to the appellate court. As regards the television programme, it was stated in the judgment that it had been presented to the court. It was not mentioned by the Court of Appeal in its reasoning. 14. The Court of Appeal, like the lower court, found it proved beyond reasonable doubt that the applicant had been the actual representative of the companies. In addition to the findings of the District Court, the appellate court noted in particular that the applicant had explained his involvement and the large amount of money received from the companies as fees for consulting, with focus on training the sellers in the various companies. However, the court observed that this was not supported by the witness statements and, moreover, the applicant had not been able to give a credible account of the training he alleged to have provided. His explanations had been vague and diffuse and he had no documented qualifications as a trainer. Moreover, before the District Court, he had claimed not to have signed any contracts with the companies and when confronted by the prosecutor before the appellate court with such contracts, signed by him, he claimed not to have any memory of having signed them. That the applicant would have forgot such important acts were not plausible to the court and affected his credibility negatively. The contracts also revealed the applicant’s ability to control the companies. The Court of Appeal further noted that the companies had been inter-connected in various ways, even sharing offices and employees, which was remarkable considering that they were supposedly competitors in the same market. In view of this, the Court of Appeal fully agreed with the lower court’s reasoning and conclusion concerning the aggravated fraud and also found that he had committed an aggravated bookkeeping offence and an aggravated tax offence. 15. The applicant appealed to the Supreme Court (Högsta domstolen) against the judgment as well as the decision not to dismiss the television programme as evidence. He claimed, inter alia, that it was in violation of his right to fair trial under the Convention to allow the television programme as evidence 16. On 4 October 2010, the Supreme Court refused leave to appeal. 17. In the meantime, in October 2006, the applicant initiated defamation proceedings against the anchor man of the television programme. These proceedings were terminated in 2009 and an application regarding this matter, under Articles 6, 8 and 13 of the Convention, was lodged with the Court on 18 March 2010 (application no. 22302/10). 18. Chapter 35, section 1 of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows: “After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case. As to the effect of certain kinds of evidence, the specific provisions thereon shall govern.” 19. This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely. 20. Moreover, according to Chapter 35, section 7 of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it evidently would be of no effect.