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FIFTH SECTION

Application no. 29766/09
Magnus SALKOJÄRVI against Sweden
lodged on 2 June 2009,

Application no. 29688/09

Thomas ISAKSSON against Sweden

lodged on 28 May 2009

Application no. 54568/11

Per SUNDQVIST against Sweden

lodged on 2 June 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Magnus Salkojärvi (the first applicant), Mr Thomas Isaksson (the second applicant) and Mr Per Sundqvist (the third applicant), are Swedish nationals who were born in 1968, 1968 and 1970, respectively. The first applicant is represented before the Court by Mr B. Hurtig, a lawyer practising in Stockholm. The second applicant is represented before the Court by Mr R. Nelson, a lawyer practising in Stockholm.

A.  The circumstances of the case

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

In February 2008 the applicants and three other persons were prosecuted for, inter alia, 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 indictment the applicants had sold medicinal products from Sweden through three different websites for an amount of 19,200,000 Swedish kronor. The first and the second applicant had led the retail business. The second applicant had operated from Sweden while the first applicant had operated mainly from Thailand. The first and the second applicant had allegedly controlled the other defendants’ actions, received orders from customers all over the world and forwarded these to the person responsible for the distribution of the medicinal products. 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 the second applicant had also participated in the creation of the websites where the medicinal products had been sold and opened bank accounts for payments received for the medicinal products. The third applicant, who had operated from Sweden, had set up and administered the websites through which the medicinal products had been sold. The customers of the medicinal products came from several different countries and were not domiciled in Sweden. The websites in question were in English and the medicinal products were never physically present in Sweden.

On 4 April 2008 the District Court (tingsrätten) of Attunda acquitted the applicants and their co-defendants of aggravated violation of the 1996 Act. However, the applicants were convicted of other crimes, inter alia, aggravated drug offences, and sentenced to two to seven years’ imprisonment.

The District Court held that the indictment regarding aggravated violation of the 1996 Act was proved from an objective point of view. However, it found that the indicted offences did not violate Swedish law. The District Court stated that to convict the applicants would imply stretching the general prohibition in the 1996 Act for other than the Swedish State, or a legal entity in which the State had a decisive influence, to cover all sales of medicinal products to consumers outside Sweden, as long as the business was connected to Sweden in such a way that the acts could be considered as being committed in Sweden in accordance with Chapter 2 of the Penal Code (Brottsbalken, 1962:700). According to the District Court such an approach was far-reaching and problematic. The court also held that it would be difficult to foresee to what extent and in which situations such an approach would violate, for example, national or international trade or discrimination laws.

The prosecutor appealed against the judgment and claimed, inter alia, that the applicants should be convicted of aggravated violation of the 1996 Act.

The applicants maintained that the indictment of aggravated violation of the 1996 Act should be dismissed since Swedish courts did not have jurisdiction in this regard.

On 2 July 2008 the Svea Court of Appeal (hovrätten) convicted M.S. and T.I. of aggravated violation of the 1996 Act and P.S. of complicity to aggravated violation of the 1996 Act. M.S. and T.I, who in addition were convicted of, inter alia, aggravated drug offences, were sentenced to eight years’ imprisonment. P.S., who was also convicted of complicity in an aggravated drug offence, was sentenced to two years and six months in prison.

The Court of Appeal found it proven that T.I. and M.S. had started and led the retail business and that P.S. had administered and managed the customer contacts for the websites in question. The Court of Appeal further held that since T.I. 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. The appellate court therefore found that Swedish courts had jurisdiction and that Swedish law should be applied. The Court of Appeal did not consider that convicting the defendants would be in breach of either the principle of legality or any EC laws or regulations.

The applicants appealed to the Supreme Court (Högsta domstolen) and claimed, inter alia, that the indictment regarding the retail of medicinal products should be dismissed since Swedish courts did not have jurisdiction. The Office of the Prosecutor-General (Riksåklagaren) disputed the appeal.

On 5 December 2008 the Supreme Court found that the applicants could be convicted pursuant to the 1996 Act and upheld the Court of Appeal’s judgment in this regard. The Supreme Court refused leave to appeal for the remainder of the case.

The Supreme Court held that it followed from Chapter 2 of the Penal Code that Swedish courts had jurisdiction regarding crimes committed in Sweden and that an authorisation from the Government was required for indictments regarding crimes committed abroad. Since such an authorisation had not been made in the present case and some of the acts covered by the indictment had been committed abroad, the Supreme Court found that a conviction required that all the acts could be considered as having being committed in Sweden as provided for in Chapter 2 of the Penal Code.

The Supreme Court stated that the indictment was formulated as one crime even though it covered several actions, committed on different occasions, which would each be sufficient to entail criminal liability. The Supreme Court further referred to the findings of the Court of Appeal that the acts were to be considered as having been committed in Sweden in accordance with Chapter 2, Articles 1 and 4 of the Penal Code. The court also pointed out that only T.I. and M.S. had been held liable for the business as a whole and that the other defendants had been convicted as accomplices. According to the Supreme Court, acts of complicity could be considered to be committed not only where they were performed, but also where the main act was committed. The Supreme Court hence concluded that the Swedish courts had jurisdiction.

The Supreme Court then turned to the question of whether the indicted acts could be considered to violate Swedish law even though neither the medicinal products nor the consumers were physically present in Sweden.

Observing that the relevant section of the 1996 Act literally covered all kinds of retail of medicinal products conducted by someone other than the Swedish State, or a legal entity in which the State had a decisive influence, the Supreme Court held that it was obvious that it was primarily intended for retail on the Swedish market, which generally implied that both the seller and the buyer were physically present on Swedish territory and that the delivery took place in Sweden.

The Supreme Court further held that according to a judgment of the Court of Justice of the European Union (Deutscher Apothekerverband v. Doc Morris, C-322/01, REG 2003 I-4887), Article 30 of the EC treaty could be relied on to justify a national prohibition on the sale by mail order of medicinal products in so far as the prohibition covered medicinal products available only on prescription. However, Article 30 could not be relied on to justify an absolute prohibition on the sale by mail order of medicinal products which were available without prescription.

However, in the Supreme Court’s opinion, it could be justified to apply national trade regulations to traders who operated on Swedish territory and directed their sales to foreign markets, given that such regulations aimed at protecting interests such as public security and health.

The Supreme Court also referred to the subjective territoriality principle used in 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”) and implemented through Section 5 of the Act on Electronic Trade and Other Information Society Services (Lagen om elektronisk handel och andra informationssamhällets tjänster, 2002:562, hereafter “the Electronic Trade Act”), which implied that the laws of the country where the service provider was established should apply even though the services were wholly or partly directed towards recipients in other states within the EES.

The Supreme Court nevertheless concluded that the Electronic Trade Act was not applicable to the retail of medicinal products as such, even though the marketing and ordering of such products did fall within the scope of that Act. In the court’s view this did not imply that the subjective territoriality principle was limited to information society services.

On the other hand, the Supreme Court pointed out that the Swedish Market Court (Marknadsdomstolen) had established that Swedish market laws were territorially limited in accordance with the objective territoriality principle and that this approach spoke against applying the subjective territoriality principle to Swedish laws regarding medicinal products.

The court also emphasized that the governmental bill regarding supplementary regulations to the EC regulation on consumer protection (prop. 2006/07:6) had concluded that the territorial limitation of the market laws justified special legislation regarding the right for the Consumer Ombudsman (Konsumentombudsmannen) to interfere with marketing directed at recipients in other countries.

The Supreme Court further held that such special legislation had not been considered necessary regarding the Medical Product Agency’s (Läkemedelsverket) right to interfere in cross-border infringement within the context of the EC regulation on consumer protection. The Supreme Court referred to statements in the preparatory works (prop. 2001/02:150 pp. 15, 22 and 28, and SOU 2008:4) and held that this approach was motivated by the fact that the Medical Product Agency’s power to interfere according to the medicinal product laws was not, unlike the market laws, territorially limited. According to the court this implied that the subjective territoriality principle was applicable to the medicinal products legislation.

Furthermore, in the Supreme Court’s opinion, if the State providing the services could not apply their national regulations regarding sales directed at foreign consumers, there was an evident risk that infringements could only be investigated and sanctioned to a limited extent. Thus, in order to avoid Sweden appearing as an appropriate site for irresponsible trade in medicinal products, the subjective territoriality principle should apply to the medicinal products legislation.

The Supreme Court also observed that problems with electronic commerce in medicinal products had been acknowledged in the Council of Europe Resolution on good practices for distributing medicines via mail order, which protect patient safety and the quality of the delivered medicine (Resolution ResAP (2007)2 of 5 September 2007). The court noted that the resolution emphasised the importance of patient safety and that mail order of medicines required clear quality and security norms. Furthermore, it recommended the governments concerned to adopt such norms to ensure that there were adequate means for taking action against interferences with such norms.

Lastly the Supreme Court summarised its findings as follows:

“... There are no formal or other circumstances that speak directly against applying the Medicinal Products Trade Act in accordance with the subjective territoriality principle, i.e. when trade is conducted in Sweden but is directed at foreign markets. When different legislative measures have been considered, it has been presupposed that the Medicinal Products Trade Act should be applied in accordance with this principle. One of the interests that this act seeks to protect is public security and health, which is equally applicable in relation to foreign consumers. The Supreme Court therefore finds that the acts of the defendants which the Court of Appeal found proven, are to be regarded as a crime against Swedish law ...”

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 applicants complain under Article 7 of the Convention that they were convicted of a crime not prescribed by law. The Supreme Court made such an extensive interpretation of the relevant section of Act on Trade in Medicinal Products that it was impossible for them to foresee that their actions constituted crimes prescribed by law. They further claim that the Swedish courts did not have jurisdiction.

QUESTION TO THE PARTIES

Did the acts of which the applicants were convicted constitute a criminal offence under national law at the time when they were 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 applicants?