BACKSTROM AND ANDERSSON v. SWEDEN
Inadmissible
The applicants, Mr Pierre Bäckström and Mr Mattias Andersson, are Swedish nationals who were born in 1971 and 1972 respectively. They are presently serving prison sentences in Sweden. They were represented before the Court by Mr B. Schultz, a lawyer practising in Askersund. The Swedish Government (“the Government”) were represented by their Agent, Ms A. Linder, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. By a bill of indictment (stämningsansökan) of 11 February 2000, the Public Prosecutor’s Office in Örebro charged the applicants with a number of criminal offences, including several counts of theft and handling of stolen goods, violations of the Inflammable and Explosive Products Act (Lagen om brandfarliga och explosiva varor, 1988:868) and the Weapons Act (Vapenlagen, 1996:67) and, most importantly, attempted aggravated robbery and attempted murder. Describing the robbery offence, the prosecutor, inter alia, stated the following: “[The applicants] have ... on 25 November 1999 ... attempted with threats and physical violence to steal from a money transport vehicle operated by the security company Securitas on behalf of the Swedish Central Bank. ... The robbery was not successful but there was a risk of the crime being completed. ... The second applicant has forced his way into the driver’s seat of the money transport vehicle and driven it ... to a secluded place on a smaller road about 2 kilometres away from [the place where it was halted]. The first applicant has driven the robbers’ Saab to the same place. There the two perpetrators ... have forced open the outer door to the place where the valuables were stored. Then they have tried ... to gain access to the strong room of the vehicle but have ended the attempt before succeeding to complete the crime, as they believed that another vehicle was approaching and that there was a risk that they would be discovered. ” By a judgment of 17 April 2000, the District Court (tingsrätten) of Örebro convicted the applicants on all charges except car theft and attempted murder. With respect to the latter charge, however, the second applicant was instead convicted of aggravated assault, having shot at the money transport vehicle and wounded one of the security officers. The first applicant was sentenced to nine and a half years in prison and the second applicant to ten years’ imprisonment. In regard to the charge of attempted aggravated robbery, the court reached the following conclusion: “To sum up, the District Court finds that it must be considered to be beyond every reasonable doubt that [the applicants] on the night between 24 and 25 November 1999 on E18/E20 ... began an attempt to rob the Securitas money transport vehicle... . The attempt thereafter continued on a smaller road ... by means of the applicants taking various measures to get access to the strong room of the vehicle. They ended the attempt, apparently because they got alarmed by lights from one or more cars, but there was a risk of the crime being completed. The crime is of an aggravated nature, mainly due to the fact that almost 10 million Swedish kronor [SEK] were stored in the vehicle and that firearms were used. ...” Both the applicants and the public prosecutor appealed to the Göta Court of Appeal (Göta hovrätt). The Court of Appeal heard the case on 30 and 31 May and on 5, 6, 7, 9, 13, 19 and 20 June 2000. Several witnesses gave evidence. On 19 June, when only the parties’ closing statements remained, the president of the court invited the parties to consider whether the robbery charge could not be regarded as encompassing a charge of completed aggravated robbery. As a consequence, the public prosecutor, in his closing statement, adjusted the charge in question to concern, in the first place, aggravated robbery and, in the second place, attempted aggravated robbery. The description of the offence then read: “[The applicants] have ... on 25 November 1999 ... with threats and physical violence unlawfully taken, with the intention of appropriating it, a money transport vehicle containing in total SEK 9,905,000 in cash. The transport was operated by ... Securitas, on behalf of the Swedish Central Bank.” Counsel for the applicants objected that the adjustment was not permissible, as it introduced a new charge of intentional appropriation of the vehicle in question. Counsel for the second applicant stated that the charge of aggravated robbery could be considered as covered by the original indictment. Nevertheless, having regard to the factual circumstances, the applicants’ actions could not be seen as constituting a completed aggravated robbery but only an attempt. Counsel for the first applicant maintained that the robbery offence had not been completed. The Court of Appeal did not take a separate decision as to whether the public prosecutor’s adjustment should be allowed. In its judgment of 4 July 2000, it stated that the applicants had objected to the adjusted description of the offence because it introduced an additional charge of theft of the vehicle. Finding that no such additional charge had been made but, instead, that the prosecutor, following the adjustment, had claimed that the robbery had been completed through the appropriation of the vehicle, the court decided to allow the adjustment. On 4 July 2000 the Court of Appeal upheld the District Court’s judgment, except that it found the applicants guilty of aggravated robbery and acquitted the first applicant of one charge of handling stolen goods and the second applicant of the charge of aggravated assault. In the latter respect, the court found that the use of violence was not a separate offence but had to be seen as an element of the robbery, leading to the latter being considered to be an aggravated offence. Finding that the robbery constituted a completed offence and not an attempt, the court stated the following: “Through the oral evidence combined with the telephone lists and other technical evidence, the Court of Appeal finds that it has been shown beyond reasonable doubt that [the applicants], in the manner claimed by the public prosecutor, have planned and prepared the robbery together and in mutual agreement, and that they have thereafter halted the money transport vehicle ... following which they have driven it to a secluded location two kilometres away from the place where it was halted. [The applicants] have not succeeded in getting access to the strong room of the vehicle and have therefore been forced to abandon the vehicle without getting hold of any part of its money contents. However, the very fact that [the applicants] have taken possession of the money transport vehicle with its money contents means that the robbery offence is completed, notwithstanding the fact that they thereafter have been unable to appropriate any of its load.” The Court of Appeal sentenced both applicants to eight years’ imprisonment. The applicants appealed to the Supreme Court (Högsta domstolen). The appeal included the same complaints as those made in the present application. On 4 August 2000 the Supreme Court refused leave to appeal. Domestic provisions of relevance to the present case are found in the Criminal Code (Brottsbalken) and the Code of Judicial Procedure (Rättegångsbalken). A person who steals from another person by means of violence or by threat, implying or appearing to the threatened person to present an imminent danger, shall be sentenced for robbery to no less than one and no more than six years’ imprisonment (chapter 8, section 5 of the Criminal Code). In order to convict a person of robbery, he or she must have unlawfully taken somebody’s property with the intent to appropriate it. If the violence used endangers life or is very brutal, the crime is to be regarded as aggravated robbery, with a range of punishment from four to ten years’ imprisonment (chapter 8, section 6). If the commission of a crime has begun but is not brought to completion, the perpetrator is sentenced for an attempt to commit the crime if there was a danger that the crime would be completed or such danger was precluded only because of fortuitous circumstances, and provided that the act of attempt is criminalised by a specific provision (chapter 23, section 1). An attempt requires the same subjective condition as a completed crime, while some factual requisite may be missing on account of, for example, interference by the police. An attempt to commit robbery or aggravated robbery is punishable with terms of imprisonment corresponding to those applicable to a completed crime (chapter 8, section 12 and chapter 23, section 1). A court’s judgment may only relate to an act for which a prosecution has been properly instituted (chapter 30, section 3 of the Code of Judicial Procedure). A charge of criminal responsibility is conducted by the public prosecutor, who files with the court a bill of indictment against the person or persons to be accused (chapter 45, section 1). The indictment must, inter alia, identify the criminal act and specify the time and place of its commission and the other circumstances required for its identification (chapter 45, section 4). These particulars of the offence provide the framework for the court’s adjudication. The prosecutor should also state the applicable domestic law and the means of evidence invoked. The particulars of the offence should include all the prerequisites of the act distinguishing it as criminal, that is, the actual facts as well as the subjective elements. The court must not judge on any other acts than those included in the particulars of the offence, or on any other extraneous elements. However, the court is not bound by the prosecutor’s characterisation of the offence or reliance on a particular legal provision (chapter 30, section 3). It is for the court to know the law and apply the relevant provision to the act, as charged. As a rule, once a prosecution has been instituted, it should not be altered. If the prosecutor wishes to prosecute another act, a new prosecution must be brought. However, the prosecutor may extend the prosecution against the same defendant to encompass another act if the court finds it appropriate, having regard to the investigation and other circumstances. In addition, the prosecutor may, with respect to the same act, without altering the indictment, adjust it by narrowing the action, or invoke a new circumstance or another legal provision in support of the prosecution (chapter 45, section 5). Whether the prosecution is extended or merely adjusted depends on whether the new element amounts to a new act. The possibility to adjust the prosecution is closely connected to the principles of legal force, or res judicata. The criminal liability for those prerequisites which have already been determined in a judgment may not be taken up again for adjudication (chapter 30, section 9). Consequently, prerequisites which could be embraced by the legal force of a judgment may freely be added to the prosecution case, while prerequisites that could be prosecuted separately, even after the judgment, may not usually be added. However, the prosecutor may present another subjective requisite without being considered to have introduced a new act. The court examining a case shall make certain that it is investigated appropriately and ensure that irrelevant matters are not presented. Through questions and observations, the court shall also attempt to remedy any unclear and incomplete statements which have been made (chapter 46, section 4 and chapter 51, section 17). Further, as the court is not bound by the prosecutor’s characterisation of the offence or the legal provision on which reliance is placed, procedural guidance might be necessary in order to draw the parties’ attention to any altered perceptions. In particular, a court of appeal must take into account that it should not alter the judgment of a district court without allowing the parties to comment on all the circumstances of importance for such alterations. Moreover, the Supreme Court has stated that the defendant must be able to answer to everything which is held against him or her, and that no unexpected elements may influence the outcome (NJA 2003, p. 486).