AS TO THE ADMISSIBILITY OF

Application No. 31767/96

by Bo RASMUSSEN

and Benny Martin LYNGEN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 February 1996 by Bo RASMUSSEN and Benny Martin LYNGEN against Denmark and registered on

6 June 1996 under file No. 31767/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Danish citizens, both born in 1975, When introducing their applications they were both serving a fourteen year prison sentence at Anstalten ved Herstedsvester , Copenhagen, Denmark. Before the Commission they are represented by Mr Jørgen Jacobsen , a lawyer practising in Copenhagen.

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

A. The particular circumstances of the case

On 2 March 1995 the High Court of Western Denmark ( Vestre Landsret ) convicted the applicants of having committed inter alia murder under Section 237 of the Danish Penal Code ( Straffeloven ). They were both sentenced to 12 years' imprisonment. The applicants were heard during the hearing in which the court was sitting with three professional judges and a jury. Furthermore, a number of witnesses were heard and written evidence was submitted, including certain medical expert opinions. After the hearing of evidence and the parties' closing arguments the jury was asked to consider five primary questions. The presiding judge then summed up the circumstances of the case and its legal aspects to the jury pursuant to Section 893 of the Administration of Justice Act ( retsplejeloven ). The relevant parts of the High Court's judgment reads as follows:

(Translation)

"In this case, which has been tried by a jury, an indictment of 23 November 1994 was served on [the applicants] by the State prosecutor of Aalborg charging them of

...

1) Section 237 of the Penal Code - murder - by having killed [C] jointly on

19 April 1994 ... under the following circumstances:

[The applicants] arrived at the estate in a car stolen for the purpose of limited use only. Under the pretext of wanting to purchase bicycle parts they entered into a conversation with [C]. At this instant they hit [C] several times in the head with bicycle front forks at the same time as the accused Bo Rasmussen kicked him on his body. This battering caused [C] such severe skull fractures that he died shortly thereafter.

2) ...

[The jury] has been asked the following five primary questions:

Primary question 1.

...

Is the accused Benny Martin Lyngen guilty of the crime described in Section 237 of the Penal Code - murder - by having killed [C], on 19 April 1994 in the evening ..., alone or together with another person, by hitting him in the head with a bicycle front fork, which caused or was a contributory cause to the fact that [C] was inflicted such severe skull fractures that he died therefrom?

Primary question 2.

...

Is the accused Bo Rasmussen guilty of the crime described in Section 237 of the Penal Code - murder - by having killed [C], on 19 April 1994 in the evening ..., alone or together with another person, by hitting him in the head with a bicycle front fork, which caused or was a contributory cause to the fact that [C] was inflicted such severe skull fractures that he died therefrom?

...

The jury has answered the primary questions in the affirmative.

...

[The applicants] are, therefore, found guilty of the crimes described in Section 237 ... of the Penal Code ... .

For these reasons:

The accused Benny Martin Lyngen is sentenced to 12 years' imprisonment.

The accused Bo Rasmussen is sentenced to ... 12 years' imprisonment.

... ."

The applicants as well as the prosecutor appealed against the judgment to the Supreme Court ( Højesteret ). Before this court the applicants claimed that the High Court's judgment be quashed, arguing that several procedural errors made the High Court's judgment invalid. In the applicants' submissions to the Supreme Court, the procedural errors related to the wording of the questions to the jury and to the conduct of the presiding judge during the hearing. The applicants invoked provisions of the Danish Administration of Justice Act as well as Article 6 of the Convention.

On 16 November 1995 the Supreme Court upheld the High Court's conviction of the applicants. However, the court increased the sentences to 14 years' imprisonment. The relevant parts of the Supreme Court's judgment read as follows:

(Translation)

"...

The presiding judge [of the High Court] has declared in a statement issued in connection with the appeal, that, at the beginning of the hearing, he informed the jury about the fact that the burden of proof lies with the prosecution and about the principle of "in dubio pro reo ". He addressed the accused Bo Rasmussen's counsel twice during the latter's pleading, the first time in order to secure that a statement in a report, which was quoted, had been presented to the witness in question during the hearing, the second time in order to prevent that a statement in a police report was used before the jury detached from its context. After defence counsel's closing arguments, the prosecutor announced that he waived his right to reply, to which the presiding judge remarked that, for the purpose of preparing the charge to the jury, he would appreciate that the prosecutor made comments on some of the arguments presented by defence counsel. Thus, he recommended that the prosecutor reconsidered whether to reply. Following counsel's objection to the fact that the prosecutor, despite having waived his right to reply, was admitted to reply, the presiding judge withdrew his recommendation. The presiding judge's manuscript to the summing-up reads as follows:

It is a fact that [the applicants] went to [C's] place together and that [the applicants] left it together some time later and that [the applicants], subsequently, together spent the money they had taken from [C].

[C], as you know, died from the very severe skull and brain injuries which were inflicted on him while [the applicants] were at the estate.

Some might, therefore, consider it natural to simply find [the applicants] criminally responsible for his death. However, in Danish penal law there is no such thing as collective guilt. If a person has been killed under circumstances implying that the killing must have been committed by either A or B, but it cannot be proven which one is the perpetrator, both must be acquitted.

The situation is entirely different if a killing has been committed by two persons jointly. And this is what has been charged in the present case. In this situation it must be proven, with regard to each of [the applicants], that he has committed the killing or contributed to the killing. On the other hand, this is the only thing that needs to be proven. It cannot be required that the prosecution produces evidence with regard to all details surrounding the course of events during [the applicants'] stay on the site: who carried one front fork, who carried the other, etc.

It is stated in Section 23 of the Penal Code that the penalty prescribed for a crime may be imposed on anybody who has contributed to the criminal act. If it is proven that both of [the applicants] have jointly hit with the front forks against [C's] head, it is not decisive how many times they have each hit him or who has delivered the blow which caused his death.

I will revert to the issue of intent later on.

When the jury examines the evidence, I presume that you will first consider the very important technical evidence which has been thoroughly described by the prosecutor.

First and foremost, it must be emphasised that on both of the bicycle front forks, which [the applicants] received from [C], blood has been found that may come from the deceased but not from any of [the applicants]. This is also true with respect to the blood stains which have been found on both [the applicants'] shoes and on Benny Lyngen's socks and his jacket. The blood stains found on the white gloves can only come from the deceased and Benny Lyngen .

These pieces of technical evidence are, in my opinion, incriminating for [the applicants]. When the prosecution has established that the blood of the deceased has been found on the two bicycle front forks, which were handed out to [the applicants], and on [the applicants'] clothing this will in any case need an explanation from [the applicants]. This is also the reason why the interrogations of [the applicants] have focused on these traces.

Counsel for [the applicants] have with a praiseworthy loyalty identified themselves with their clients' often contradictory statements. And they have given an account [of the events leading up to the crime] which perhaps is a bit too black and white in the sense that one of [the applicants'] testimonies is alleged to be the whole truth and the other's pure invention.

The possibility of the truth being somewhere in the middle has hardly been mentioned. The defence counsel have elaborated on a lot of details about specific elements of the course of events which, in my opinion, are not necessary or advisable for the jury to discuss at any length. However, as I have already said this is for the jury to decide. In my opinion, a discussion about such details will in any event never lead to more than conjectures and presumptions and by relying on this kind of guesswork one will easily hide elements in the case, which may be decisive as evidence, behind a veil.

When assessing the evidence in the case the jury must obviously ascertain that each of [the applicants] - if they have committed the crime jointly - has a crystal-clear interest in putting the blame on the other. However, when assessing these testimonies the jury should not stop at this crystal-clear interest but consider

- if any of the testimonies is supported by technical data,

- or if [the testimonies], on the contrary, contradict the technical data,

- how certain [the testimonies] appear to be,

- the plausibility of [the testimonies],

- if [the applicants] have stood by their explanations during the entire                                           proceedings,

- or if [the testimonies] have been altered during the course of the                                                        proceedings.

Both [the applicants], in particular Bo Rasmussen , have changed their testimonies on essential points during the proceedings, even during the hearing last Monday. Bo Rasmussen then altered his explanation about which front fork he had been carrying around all the time on the estate and he also tried to make it plausible that the deceased's blood was found on the front fork by adding a new explanation that he had pushed [C's] head with the front fork. Benny Lyngen also altered his testimony as to whether he had been wearing gloves, as maintained by Bo Rasmussen . Now it was said that he had been wearing finger-less cycling-gloves while at the site.

When considering the issue of guilt, the jury must obviously examine the many testimonies we have heard, too. Most of them, or at least many of them, did not contribute much to elucidate the matter. However, in my opinion, two of the testimonies attract special attention and I presume, therefore, that the jury will pay particular attention to those testimonies.

The testimonies in question are the ones given by [J], whom [the applicants] visited and who woke up just a few hours after they had been at [C's] place and [B] who visited [J] the following day and there met [the applicants].

These testimonies concurrently indicate that [the applicants] had recounted to their friends, when telling them about the course of events during their stay on [C's] estate, inter alia that, at a point, they had both hit [C] several times in the head with the front forks and, according to [J's] testimony, the story was that they had both run amuck. According to [B's] testimony it was mainly Bo Rasmussen who had been speaking, but Benny Lyngen had been present without dissociating himself at any point from what had been said.

If the jury on the basis of the important pieces of technical evidence and the given testimonies finds it established that [the applicants] at the same time have delivered blows to [C's] head with the front forks and, thus, disregards the two accuseds ’ testimonies, it is a precondition for an affirmative reply to the two primary questions concerning murder that the jury also finds it established that the two accused have acted wilfully.

This does not imply that the acts must have been  planned beforehand, but the jury must find it established that [the applicants] at the time when the crime was committed have either intended, i.e. wanted, to kill [C] with the blows they delivered or that they must have considered it more likely than not that he would die as a result of the heavy blows to his head, which he received according to the autopsy report.

I will not say much more about this issue. It is clear that, when considering what [the applicants] must have intended or must have considered to be the most likely consequence [of their acts], it is important to look at the kind of violence used. For this purpose the jury has heard the medical accounts and the Vice State Coroner's statement in the Court.

If the jury should find it proven beyond any reasonable doubt that [the applicants] jointly have murdered [C] you can reply yes to primary questions 1 and 2.

...

The Supreme Court's reasons

The Supreme Court does not find any reason to believe that procedural errors occurred in connection with the pleading or the presiding judge's summing-up. The jury's affirmative reply to primary questions 1 and 2 must imply that the jury has found it established that both [the applicants] - jointly - have delivered [C] blows with a bicycle front fork and that they both have acted with intent in regard to the killing which was the consequence of the blows. Thus, no procedural errors have been made in phrasing the questions which, furthermore, are not inconsistent with Section 885, subsection 1, first part.

Having regard to the seriousness of the crimes which were committed jointly by [the applicants] and to their criminal record, the Supreme Court finds that the sentence for each of them - despite their young age - should be increased to 14 years' imprisonment.

...

For these reasons:

The High Court's judgment is modified in that the sentence for each of [the applicants] is increased to 14 years' imprisonment.

... ."

B. Relevant domestic law

In criminal cases dealt with by a jury, first, the production of evidence ( bevisførelsen ) takes place. Next, the prosecutor and the defence submit their closing arguments ( proceduren ). Then the questions are put to the jury who will have to answer them pursuant to Section 885, subsection 1, first part of the Administration of Justice Act ( retsplejeloven ) which reads as follows:

(Translation)

"Having put the questions to the jury, it will have to decide whether the accused is guilty of the charge; the wording of the charge can be deviated from within the limits prescribed in Section 908. ..."

Finally, the presiding judge sums up the case ( retsbelæringen ) pursuant to Section 893, subsection 1, first part of the Administration of Justice Act which reads as follows:

(Translation)

"When the questions have been fixed the presiding judge sums up the case and explains, where necessary, the questions and the legal principles which shall form the basis for the answers. ... ."

COMPLAINTS

The applicants complain, under Article 6 para . 2 of the Convention, that their right to be presumed innocent was violated in the proceedings before the High Court.

THE LAW

The applicants complain that their right to be presumed innocent was violated in the proceedings before the High Court. They invoke in this respect Article 6 para . 2 of the Convention which reads as follows:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law."

In support of their complaint the applicants submit, firstly, that the way in which primary questions 1 and 2 to the jury were phrased, did not correspond to the indictment and wrongly presupposed that one applicant could be punished for murder even in a situation where blows delivered by him were not the direct cause of the victim's death and the other applicant lacked the intent necessary in Danish law to commit murder. In this situation there would, according to Danish law, not be any cooperation between the applicants and the former applicant could, therefore, at the most be convicted of attempted murder. The applicants argue that the demands to be made on the phrasing of the questions to the jury must be viewed in light of the seriousness of the crime which the applicants were convicted of and the severity of their sentences.

Secondly, the applicants submit that the summing-up by the presiding judge during the hearing in the High Court violated Article 6 para . 2 of the Convention as he did not advise the jury that, in Danish criminal law, the prosecution has the burden of proving the guilt and that a person can only be found liable to punishment if no reasonable doubt as to his guilt exists. The applicants also allege that the presiding judge in the summing-up expressed his opinion on the applicants' guilt and mentioned only the facts that were to the applicants' disadvantage.

The Commission considers that the complaint should also be examined under Article 6 para . 1, which in so far as relevant reads as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... ."

The Commission recalls that while Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules concerning the national courts' internal procedure, which is therefore primarily a matter for regulation under national law. Furthermore, it is in the first place for the national authorities, notably the courts, to interpret and apply national law. The Convention organs' task is to ascertain whether the way the authorities interpreted and applied the national law, from an overall point of view, was fair. In doing so, the Commission will in particular examine whether the authorities, having regard to the particular facts of the case, interpreted and applied the national law in an arbitrary manner.

In the present case the High Court, sitting with a jury, heard the applicants and a number of witnesses. After the hearing of evidence and the closing arguments the jury was asked five questions. The presiding judge then summed up the circumstances of the case and its legal aspects to the jury. The Supreme Court, in its decision of 16 November 1995, found that the questions put to the jury conformed with Section 885, subsection 1, first part of the Administration of Justice Act and that no procedural errors had occurred during the pleading or the summing-up.

As to the phrasing of the questions to the jury this is essentially a matter of Danish procedural and criminal law. The Supreme Court found that the phrasing of the questions conformed with the relevant provision in Danish procedural law. Nothing in the material submitted indicates that this decision was made on an arbitrary basis. Furthermore, the conduct of the presiding judge including his summing-up - which is meant to be a guidance to the jury after the production of evidence has taken place and the parties have submitted their closing arguments - appears to have been adequate and balanced in order to secure a fair trial to the applicants. Thus, the Commission considers that the proceedings in the High Court looked at as whole do not disclose any appearance of a violation of Article 6 para . 1 or para . 2 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                                             J.-C. GEUS

      Secretary                                                              President

to the Second Chamber                                   of the Second Chamber