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FIFTH SECTION

Application no. 38097/09
Jan ERIKSSON
against Sweden
lodged on 2 June 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Jan Eriksson, is a Swedish national who was born in 1966 and lives in Vallentuna.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In February 2008 the applicant was indicted on charges of having committed aggravated drugs offence and aggravated violation of the Act on Trade in Medicinal Products (lagen om handel med läkemedel m.m., 1996:1152, hereafter the “1996 Act”). According to the prosecutor, the applicant and six other defendants had created a business on internet whereby they sold medical products, which was either classified as drugs under Swedish law or where the trading with the medicinal products was illegal under Swedish law. The applicant was accused of having created and administered two of the three internet sites used for the trading and also dealing with some of the money from it. A legal counsel was appointed to represent the applicant, who denied the charges.

The applicant and his co-defendants argued, among other things, that Swedish courts did not have jurisdiction in the case as no medicinal products had passed through Sweden and nothing had been sold 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.

On 4 April 2008, following a main hearing which lasted 14 days, the District Court (tingsrätten) of Attunda convicted the applicant of aggravated drugs offence and sentenced him to two years’ imprisonment. In so far as concerned its jurisdiction, it first noted that the Swedish Penal Law on Drugs (Narkotikastrafflagen, 1968:64) was applicable also to crimes committed outside of Sweden for which reason the alleged drugs offence fell under Swedish law. It then noted that several of the alleged activities had taken place in Sweden, such as offering the medicinal products for sale from Sweden and establishing the contacts between sellers and buyers from Sweden. These activities were, in the court’s view, sufficient for the alleged crimes to be considered to have taken place in Sweden. Therefore, it had jurisdiction to try this charge. The court proceeded to find that the applicant had been involved in the activities as specified by the prosecutor and that he had known that it was illegal and in breach of Swedish law.

However, the court acquitted the applicant of the second charge as it found, after careful consideration, that the 1996 Act was not applicable in the present case as no medicinal products had passed through Sweden and the business had not targeted consumers in Sweden. According to the court, the State’s monopoly to trade with medication in Sweden had therefore not been breached.

The applicant and his co-defendants appealed to the Svea Court of Appeal (hovrätten), maintaining that they had not committed any crime under Swedish law or within Swedish jurisdiction since they had traded with medicinal products outside of Sweden only.

The prosecutor also appealed against the District Court’s judgment, claiming inter alia that the applicant and his co-defendants should also be convicted of violation of the 1996 Act.

On 2 July 2008, following a main hearing, the Court of Appeal acquitted the applicant of aggravated drugs offence as it did not find it established that he had been aware that medicinal products classified as drugs had been sold on the internet sites. However, the appellate court convicted him of complicity in violation of the 1996 Act and gave him a probationary sentence and a fine of 10,800 Swedish kronor (SEK), approximately 1,200 euro (EUR). In this respect, the appellate court considered that all the defendants had taken part in the activities and that these activities therefore should be seen as having taken place in Sweden for which reason Swedish law was applicable and the court had jurisdiction to consider them. As the business had been large scale, comprising sales of at least SEK 19 million, the court found that it had been in violation of the 1996 Act which prohibited sales of medicinal products by others that the Swedish State, or a legal entity in which the State has decisive influence. As the applicant had acknowledged that he knew that the internet sites would be used for the sale of medicinal products, he had been an accomplice to the crime.

The applicant and his co-defendants appealed against the judgment to the Supreme Court (Högsta domstolen), maintaining their claims.

The Supreme Court granted leave to appeal concerning the question whether what the Court of Appeal had found proven concerning each of the defendants under the charges in relation to the 1996 Act meant that the prerequisites to convict them under the 1996 Act were fulfilled. The remainder of the appeal was adjourned.

On 5 December 2008, the Supreme Court upheld the Court of Appeal’s judgment in the part that it had granted leave to appeal and, at the same time, refused leave to appeal concerning the remaining issues in the case. It first noted that the activities of the defendants were to be seen collectively as one crime even though it comprised several acts carried out at various times, where each act was sufficient to be considered a completed crime in itself. The main question was then whether the crime could be considered to have been committed in Sweden. In this respect, it agreed with the Court of Appeal that this was the case, having regard to the fact that part of the acts had been carried out in Sweden and that Sweden therefore had jurisdiction to try the case in its entirety.

The Supreme Court then turned to consider whether the applicant and his co-defendants had violated Swedish law, namely the 1996 Act. Here, the court noted that the 1996 Act primarily was directed to regulate the trade of medicinal products in Sweden and that it had to establish whether it was also 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 internet as a mean of trading over national borders and the Act on Electronic Trade and Other Information Society Services (lag om elektronisk handel och andra informationssamhällets tjänster, 2002:562, 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. Although neither the Electronic Trade Act nor the EU directive applied to medicinal products, the Supreme Court noted that the subjective territoriality principle was an established principle applicable to various areas. Having regard to the above as well as the interest to protect the health and safety of consumers 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.

B.  Relevant domestic law

The provisions applicable in the present case were laid down in the 1996 Act. However, the 1996 Act was replaced, on 1 July 2009, by a new Act on Trade in Medicinal Products (lagen om handel med läkemedel, 2009:36 – hereafter referred to as “the 2009 Act”).

Section 4 of the 1996 Act provided, inter alia, that retail 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.

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 was 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.

As of 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.

Pursuant to Chapter 2, Section 1 of the 2009 Act, an authorisation from the Medical Product Agency is required to sell medicinal products to the general public. The provisions regarding penalties are essentially the same as those in the 1996 Act (see Chapter 9, Section 1 of the 2009 Act).

The regulations regarding the jurisdiction of Swedish courts and the applicability of Swedish penal laws are laid down in Chapter 2 of the Penal Code (Brottsbalken, 1962:700). Article 1 of Chapter 2 provides that crimes committed in Sweden shall be adjudged 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 within Sweden.

According to Chapter 2, Article 2, crimes committed outside Sweden shall be adjudged according to Swedish law and by a Swedish court, inter alia, where the crime has been committed by a Swedish citizen or an alien domiciled in Sweden. However, pursuant to the second paragraph of this Article, the first paragraph shall not apply if the act is not subject to criminal responsibility under the law of the place where it was committed. Furthermore, in such cases a sanction may not be imposed which is more severe than the severest punishment provided for the crime under the law in the place where it was committed.

According to Article 4 of Chapter 2, 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. In this respect, the place where a part of the crime was perpetrated may be considered as the place of the crime in its entirety.

Moreover, Article 5 of Chapter 2 provides that prosecution for a crime committed outside Sweden shall not be instituted without the authority of the Government or a person designated by the Government. However, prosecution may, in some exceptional cases outlined in the same Article, be instituted without such an order, inter alia, if the crime consists of a false or careless statement before an international court or if the crime was committed on a Swedish vessel or aircraft.

COMPLAINT

The applicant complains under Article 7 of the Convention that the Swedish Courts convicted him of a crime without any basis in Swedish law.

QUESTION TO THE PARTIES

Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention? In particular, was the application of the Act on Trade in Medicinal Products (1996:1152) foreseeable to the applicant?