Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31074/96

by Håkan WESTER

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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 I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 HÃ¥kan WESTER against Sweden and registered on 19 April 1996 under

file No. 31074/96;

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 applicant, a Swedish citizen born in 1963, is presently

serving a prison sentence in Sweden. Before the Commission he is

represented by Mr Per Stadig, a lawyer practising in Stockholm.

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

summarised as follows.

a. The particular circumstances of the case

On or about 21 May 1994 a quantity of 0.2 kilogrammes of cocaine

was smuggled from Brazil to Sweden and subsequently sold to a drug

dealer.

In respect of the drug-smuggling operation and the following

transaction with the dealer, police suspicions centred on three

persons: a woman, A, her brother, B, and the applicant. A and B were

arrested and remanded in custody in June and July 1994, respectively.

The applicant, wanted also for aggravated fraud, was arrested in the

United Kingdom in November 1994 and extradited to Sweden in April 1995.

The case against A and B came on for trial before the District

Court (tingsrätten) of Stockholm in October 1994. By judgment of 21

October 1994, both A and B were convicted of illegally possessing the

said quantity of cocaine. Furthermore, B was found guilty of conspiracy

(stämpling) to smuggle the drugs from Brazil to Sweden. On the same

occasion, they were also convicted of other drug-related crimes which

are, however, not relevant in the present case. On 15 December 1994 the

convictions were upheld on appeal by the Svea Court of Appeal (Svea

hovrätt).

Before the courts, as indeed during the preliminary criminal

investigation, A made a full confession and gave a detailed account of

the circumstances under which she had come into possession of the

relevant quantity of cocaine. This account incriminated not only B, but

also the applicant. B, for his part, pleaded not guilty, contending

that the applicant alone had smuggled the drugs and subsequently handed

them over to A. In their respective judgments, having found the

information provided by A to be credible, both the District Court and

the Court of Appeal concluded that this account should form the basis

for the assessment whether A and B were guilty of the offences charged.

Thus, both A and B were convicted on the strength of these statements.

Following his extradition to Sweden, the applicant's case was

heard by the District Court of Jakobsberg in June 1995. By judgment of

3 July 1995, that court convicted the applicant of, so far as relevant,

illegally possessing the quantity of cocaine mentioned above and also

of smuggling that quantity into Sweden. He was sentenced to eight

years' imprisonment, a sentence calculated to include also several

counts of aggravated fraud.

The persons to be heard in the District Court included both A and

B, who had been called by the prosecution to give evidence as former

co-accused. Although duly summoned, however, A did not attend the

trial. According to the minutes of the hearing, in which reference was

made to a doctor's certificate submitted on A's behalf, she had fallen

ill and could not be expected to recover in the foreseeable future. For

this reason, so the court stated, she was legally excused (laga

förfall) from giving evidence. On being told of A's absence, the Public

Prosecutor requested that the accounts previously given by A in the

case against her and B, and as recorded in the judgments of the

District Court of Stockholm and the Svea Court of Appeal, be read out.

He also requested the reading out of a statement made by A when

interviewed by the police on 7 July 1994. Contrary to a defence

submission - and relying on Chapter 35, Section 14 of the Code of

Judicial Procedure (Rättegångsbalken) - the court granted the

Prosecutor's requests. The following statements and summaries of

statements were therefore read out.

A's account according to the District Court judgment of

21 October 1994:

(Translation)

"[O]n 20 May [B] called and invited her on a cruise between

Gothenburg and Harwich. She was told to bring [B's wife],

who was staying with her temporarily. Next day she borrowed

a car from her mother and went, together with [B's wife],

to [the harbour] in Gothenburg. There they met [B] and [the

applicant]. [B] suggested that they drive into town. She

stopped the car in [an avenue] and [B] and [the applicant]

left the car for some thirty minutes. Following their

return, they all drove back to the harbour. While still in

the car [the applicant] said 'this is how we have figured

it out', but was interrupted by [B] who said that this was

not to be discussed now. She realised that it all had to do

with cocaine. They had a good time during the boat trip.

[The applicant] said that cocaine had been hidden under the

back seat of the car, back in Gothenburg. They all slept in

the same cabin. In the morning, on their arrival at

Harwich, [B] told her to bring the cocaine to her flat and

keep it there. [The applicant] suggested that she bury it

in her parents' garden. She was to be contacted by

telephone by someone interested in acquiring the cocaine.

She does not remember if a name was mentioned in this

context. She thinks that [B] and [the applicant] told her

to charge 500 or 600 crowns per gramme. The person making

the phone call would know the price. The money was to be

handed over to her and [B's] parents. She does not know

which of [B] and [the applicant] carried the cocaine into

Sweden. They said that it was wrapped in condoms and

plastic film and told her to redistribute it into smaller

plastic bags. - [B] and [the applicant] disembarked at

Harwich. She and [B's wife] returned to Gothenburg and went

on to Stockholm. She removed the cocaine from the car and

put it in a cupboard. Next day she was alone in the flat.

She tried to weigh the cocaine and redistribute it. She was

not successful. The cocaine fell apart and she spilt it on

to the floor. [B] called almost every day and asked about

money. On 31 May, a Tuesday, she called [a drug dealer] and

told him that she had cocaine in her flat. Since April she

knew that he was [B's] contact. She wanted to get rid of

the cocaine as soon as possible. ..."

The Court of Appeal judgment of 15 December 1994, which

summarised A's statements before that court only to the extent that

they were in any way inconsistent with or complementary to her account

before the District Court:

(Translation)

"In the Court of Appeal [A] has stated that she cannot

recall which of [the applicant] and [B] made what remarks

when, on their arrival at Harwich, they discussed what she

should do with the drugs. However, she has also stated that

both of them kept speaking at the same time and that she

had a clear impression that [the applicant] and [B] had

conspired in respect of the drugs. ..."

The police interview of 7 July 1994:

(Translation)

"Now, she also recalls that when [B] and [the applicant]

returned to the car - and while sitting in the car, which

was still parked in [the avenue] - they discussed where to

hide the cocaine. They agreed to hide it in the car, but

they never said in what part of the car. She recalls that

they also discussed the fact that, if the car were to be

stolen while they were on the boat, it would be a bargain

for a car thief who was also a drug addict, considering the

amount of cocaine hidden in the car."

Unlike A, B presented himself at the hearing. When heard by the

court he confirmed that the accounts previously given by him before the

District Court of Stockholm and the Svea Court of Appeal - to the

effect that the applicant alone had smuggled the drugs and subsequently

handed them over to A - had been correctly recorded in the judgments

of 21 October 1994 and 15 December 1994. He added, however, that they

were not true. On the contrary, he now stated, the drug-smuggling

operation had been entirely his own doing, thus in no way involving the

applicant. In order to explain the fact that he now provided new

information, B stated that, by previously accusing the applicant of

being involved in the operation, he had hoped to receive a somewhat

lighter sentence.

In its judgment of 3 July 1995 the District Court of Jakobsberg

noted that the applicant denied the charges but admitted to have

travelled with B from Brazil to Sweden in April 1994, allegedly fully

aware of the fact that B was smuggling drugs. Observing - at the

outset - that such a journey must have exposed also the applicant to

risks and that this would be rather a remarkable behaviour for a person

in his position, the court found reason to question the veracity of the

applicant's statements. The court went on to state the following:

(Translation)

"As regards the other statements, the District Court would

first like to point out that the information provided by

[A] must be assessed with great caution, considering that

[the applicant] has had no opportunity to examine her

during the trial. For this reason, it is also out of the

question to base a conviction solely on the information

provided by her. However, the District Court is of the

opinion that, to some extent, it should be taken into

account that [A's] statements have been made not only

during police interviews but also before courts at two

levels, seized with the question of her and [B's]

involvement in the operation. The information given by [A]

is, to a substantial extent, corroborated by the statements

made by [B] under identical circumstances. Their accounts

are very much mutually consistent when it comes to [the

applicant's] involvement in the operation. The explanation

with which [B] has provided the court today, as to why he

allegedly falsely accused [the applicant] of being involved

in the operation, does not appear to be plausible."

The statements made by A and B during the 1994 trials thus

satisfied the District Court that the applicant was guilty of the

offences charged.

The applicant appealed to the Svea Court of Appeal, which held

a hearing in the case in August 1995. Since A was deemed still to be

legally excused from giving evidence, the prosecution requested that

the statements previously read out in the District Court be read out

also in the appellate court. The request was granted under Chapter 35,

Section 14 of the Code of Judicial Procedure. Again, this was contrary

to a defence submission. B attended the trial but now refused to give

evidence, contending that he had been beaten by fellow prisoners. At

the request of the prosecution, however, B's account as recorded in the

District Court judgment of 21 October 1994 - to the effect that the

drugs had been smuggled by the applicant and subsequently handed over

to A - was read out.

By judgment of 8 September 1995, the Court of Appeal upheld the

whole of the District Court's judgment. Invoking the reasons already

stated by the lower court, and referring to Swedish case-law as well

as to the case-law of the European Court of Human Rights, the appellate

court first found that a conviction could not be based solely on the

statements made by A. Turning to B's statements, however, the court

found the situation to be somewhat different. The court stated the

following:

(Translation)

"It has been possible to examine [B] in both the District

Court and the Court of Appeal. In the District Court

proceedings against [the applicant] he has confirmed that

the statements previously made by him concerning [the

applicant's] involvement in the operation have been

correctly recorded, but has stated that they are not true.

However, he has been unwilling to explain why the

statements are incorrect. As previously noted, he has

refused to give evidence in the Court of Appeal. ...

In the case now before the court, no reasonable ground has

appeared as to why [B] would want to incorrectly accuse

[the applicant] of being involved in the operation. On the

contrary, the fact that [the applicant] has been named also

by [A] strongly corroborates [B's] statements concerning

[the applicant's] involvement. ..."

Considering B's original statements concerning the applicant's

involvement to be credible, the appellate court found, on balance, that

the latter was guilty of illegally possessing the relevant quantity of

cocaine and also of smuggling it into Sweden.

Leave to appeal against the Court of Appeal's judgment was

refused by the Supreme Court (Högsta domstolen) on 26 October 1995.

b. Relevant domestic law

Chapter 36, Section 1 of the Code of Judicial Procedure provides

that, in criminal cases, a person charged with any form of complicity

in the offence with which the defendant is charged must not be heard

as a witness. However, there is nothing to prevent that such a person

is heard as a co-accused.

Provisions concerning the use as evidence of statements made by

witnesses, victims of crime or co-accused at an earlier stage of the

proceedings - preceding the trial - are found in Chapter 35, Section

14 of the Code of Judicial Procedure. Section 14 provides, so far as

relevant, the following:

(Translation)

"An account, given by someone in writing for the purpose of

a trial that has already commenced or is about to commence,

or a record of an account, given by someone before a public

prosecutor or a police authority or otherwise out of court

for the purpose of such a trial, may be submitted as

evidence only

...

2. if the person who gave the account cannot be heard at a

main hearing or out of court or otherwise before the court

..."

COMPLAINT

Invoking Article 6 of the Convention, the applicant claims that

he was convicted by the District Court and the Court of Appeal on the

basis of statements made by a person - A - whom neither he nor his

counsel ever had an opportunity to examine.

THE LAW

The applicant complains of a violation of his rights under

Article 6 (Art. 6) of the Convention. The Commission considers that the

essence of the applicant's complaint must be said to be that he did not

have a fair trial. That being so, the Commission has examined the

complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1+6-3) taken

together, the guarantees in paragraph 3 being specific aspects of the

right to a fair trial set forth in paragraph 1 (see, e.g., Eur. Court

H.R., Kostovski v. the Netherlands judgment of 20 November 1989, Series

A no. 166, p. 19, para. 39). The respective paragraphs read - so far

as relevant - as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the

following minimum rights: ...

(d) to examine or have examined witnesses against him ..."

The applicant contends that the statements made by A - as read

out in the District Court and the Court of Appeal - were used by the

courts not only as corroborative evidence when assessing the veracity

of the statements originally made by B, but also as independent

incriminating evidence. In both respects, so he claims, decisive

importance was attached to these statements.

In view of the autonomous interpretation to be given to the term

"witness", the Commission first finds that A should be so regarded for

the purposes of paragraph 3 (d) of Article 6 (Art. 6-3-d) of the

Convention. This is so since her statements - although not made at the

trials against the applicant and although, under Swedish law, not made

by her as a "witness" in the strict sense of the word - were in fact

before the courts and were taken into account by them (see, e.g., Eur.

Court H.R., Windisch v. Austria judgment of 27 September 1990, Series

A no. 186, p. 9, para. 23).

The Commission points out that the admissibility of evidence is

primarily a matter for regulation by national law and that, as a

general rule, it is for the national courts to assess the evidence

before them (see the above-mentioned Kostovski judgment, p. 19,

para. 39). Thus, in the instant case, the Commission's task under the

Convention is not to determine whether A's statements were correctly

admitted and assessed by the courts but rather to ascertain whether the

proceedings considered as a whole - including the way in which evidence

was taken - were fair (ibid.).

In principle, the evidence must be produced in the presence of

the accused at a public hearing with a view to adversarial argument.

However, as regards the reading out at a trial of statements made by

witnesses at the investigating stage of criminal proceedings, the

European Court of Human Rights has already held that such a practice

is not in itself inconsistent with Article 6 paras. 1 and 3 (d)

(Art. 6-3-d) of the Convention, provided that the use of such

statements as evidence complies with the rights of the defence, which

it is one of the purposes of Article 6 (Art. 6) to protect. Admittedly,

this would, prima facie, create particular problems where the person

"charged with a criminal offence", who has the right under Article 6

para. 3 (d) (Art. 6-3-d) to "examine or have examined" witnesses

against him, has not had an opportunity at any stage of the earlier

proceedings to question the person whose statements are read out at the

hearing (see, e.g., Eur. Court H.R., Unterpertinger v. Austria judgment

of 24 November 1986, Series A no. 110, p. 14, para. 31).

Since it is clear that the applicant never had an opportunity to

challenge and question A before the courts or, for that matter, at the

pre-trial stage, the Commission must thus examine whether there are any

such problems in the present case.

The Commission recalls at the outset that, at the time of the

trial against the applicant, A had fallen ill and could not be expected

to recover in the foreseeable future. Consequently, she was deemed to

be legally excused from giving evidence in both the District Court and

the Court of Appeal. The Commission is of the opinion that A's illness

could not be allowed to block the prosecution. That being so, the

Commission finds that the prosecution had reason to produce as evidence

the statements submitted by A in connection with the trial against her

and B.

The Commission further recalls that the statements made by A were

not the only evidence in the case. On the contrary, the District Court

and - in particular - the Court of Appeal attached decisive importance

to the information provided by B, who, unlike A, attended the trial

against the applicant at both levels. It is true that B, when heard in

the District Court, retracted the allegations previously made by him

against the applicant. It is also true that B refused to give evidence

in the Court of Appeal, contending that he had been beaten by fellow

prisoners. In this respect, however, the Commission notes that the

District Court was able to observe B's demeanour during questioning and

to form its own impression of the nature of his retraction.

Furthermore, having regard to B's subsequent refusal to give evidence,

the Court of Appeal had reason to take into account the circumstances

under which B had given evidence in the District Court. Thus, having

found that there existed no reasonable ground as to why B would want

to incorrectly accuse the applicant of being involved in the drug-

smuggling operation, the Court of Appeal concluded that B's original

statements concerning the applicant's involvement were credible. Noting

that they were also corroborated by the statements made by A, the Court

of Appeal found the applicant guilty of the offences charged.

Finally, the Commission observes that both the District Court and

the Court of Appeal were aware of the secondary nature of A's

statements. Also, both courts could rely on the applicant's own version

of the events leading up to his arrest, to the effect that he had not

been involved in the operation.

In sum, and having regard to all the circumstances in the case,

the Commission cannot find that the applicant's conviction was based

solely on A's statements. Nor did the limitation, which derived from

her absence at the hearings, restrict the possibilities of the defence

to a degree that was irreconcilable with the Convention. Consequently,

the Commission does not find that the applicant's trial was unfair due

to the fact that A's statements were used as indirect evidence.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) 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

Menu

WESTER v. SWEDEN

WESTER v. SWEDEN

LEXI