Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29094/95

by Kjell Tore BRÅTEN

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mr J.-C. GEUS, Acting President

Mrs G.H. THUNE

MM G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 24 October 1995

by Kjell Tore Bråten against Norway and registered on 7 November 1995

under file No. 29094/95;

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 is a Norwegian citizen, born in 1968. He resides

in Vegårdshei, Norway. Before the Commission the applicant is

represented by Mr PÃ¥l Mitsem, a lawyer practising in Stavanger.

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

summarised as follows.

By indictment of 14 December 1994 the applicant was charged with

driving under the influence of intoxicating beverages and with careless

driving, having allegedly hit a pedestrian while reversing. The

applicant denied the charges, maintaining in particular that he had

been asleep and that someone else had had access to the car at the time

in question.

The case was heard by the Stavanger City Court (byrett) on

25 January 1995. During his opening speech the public prosecutor, inter

alia, referred to statements made to the police by a witness. Counsel

for the defence unsuccessfully protested against this procedure which

he found to be contrary to section 289 of the Criminal Procedure Act

(straffeprosessloven). During the trial the applicant, assisted by

counsel, was heard as well as two witnesses. Documentary evidence was

also produced. On the basis of the available evidence the City Court

found the applicant guilty of the charges brought against him and

sentenced him to 30 days' imprisonment, which was suspended provided

no criminal acts were committed for a period of two years. The

applicant was also sentenced to pay a fine of 15,000 NOK.

On 2 February 1995 the applicant appealed against the judgment

to the Supreme Court (Høyesterett). The appeal was based on the form

and contents of the prosecutor's opening speech which, so the applicant

maintained, violated section 289, subsection 2 of the Criminal

Procedure Act.

Section 289 of the Criminal Procedure Act reads as follows:

(Translation)

"The hearing of the actual matter to which the indictment

relates begins with the reading aloud of the indictment.

The president of the court shall then ask the person

indicted whether he pleads guilty and shall urge him to

follow the proceedings with close attention.

The prosecutor may then make a speech in order to explain

the substance of the indictment and to mention briefly the

evidence that will be produced.

With leave counsel for the defence may be allowed to make

short comments in connection with what the prosecutor has

said."

The applicant maintained that in allowing the prosecutor to

include in his opening speech references to witness statements the

burden of proof would in reality subsequently lie with the accused who

consequently could not rely on being presumed innocent.

On 22 August 1995 the Supreme Court rejected the appeal. On

behalf of the unanimous court, Justice Gussgard stated, inter alia, the

following:

(Translation)

"The addition to the records which counsel for the defence

requested - and wrote himself - during the main hearing is

a sufficient basis for allowing the Supreme Court to

examine whether the prosecutor's opening speech in the City

Court complied with section 289, subsection 2 of the

Criminal Procedure Act. The following was submitted:

'Counsel for the defence requested, pursuant to section 19

... of the Criminal Procedure Act that it be entered in the

records that he protested against the fact that the

prosecutor in his opening speech referred to what witnesses

had said and that the presiding judge, regardless of

counsel's protest, did not prevent this.

In the opening speech mention was made of (the witness')

activities during the night in question, his observations

in respect of the car and driver, how the car reversed and

hit him, how the car was pursued, what the witness did, how

he contacted the police and who was present in the police

car.

The presiding judge requested, inter alia, that the

prosecutor explain on which facts he intended to rely

on behalf of the prosecution.'

...

I find no reason to doubt that what has been entered in the

records concerning the opening speech and the presiding

judge's statement to the prosecutor is, as such, correct.

Although further details about the contents of the opening

speech are unknown, the records are in my opinion

sufficient in order to examine whether procedural errors

have been committed in connection with the opening

speech. ...

...

In the legal literature, both before and after the 1981

Criminal Procedure Act, it has been pointed out that the

opening speech must be short, concise and absolutely

objective.

I agree with this point of view. At this stage in the

proceedings the prosecutor has received a more central

place than the defence. This alone could be the reason why

the opening speech shall be short and neutral. However,

also considerations in respect of the principle concerning

the direct taking of evidence carries a certain weight in

this regard ... . The purpose must be to give the court a

sufficient knowledge of the evidence on which the court

shall base its decision, but not more. How detailed the

speech shall be must to some extent depend on the

circumstances of the case, but a detailed account of the

facts which according to the prosecution ought to be relied

on, or further explanations as to what witnesses have

explained has no legal basis in section 289, subsection 2,

unless this exceptionally would be absolutely necessary in

order for the court to understand the forthcoming

evidence. ...

The present case is relatively simple. The main question

was whether the accused had driven the car. The records

show that the prosecutor in the City Court in a rather

detailed manner informed about the facts of the case, as he

saw it, based on a statement to the police. Thus, the

prosecutor anticipated the witness' statement in court.

This opening speech was in my opinion too comprehensive and

contrary to section 289, subsection 2 of the Criminal

Procedure Act. The presiding judge ought to have intervened

as requested by counsel for the defence. Accordingly, a

procedural error has been committed and the question

remains whether the error influenced the outcome of the

case, cf. section 360, subsection 1 of the Criminal

Procedure Act.

... . In the present case there is in my opinion no reason

to repeal the judgment. The issue and the evidence of the

case were simple and clear. In addition to the accused's

explanations two witnesses were heard. There is no reason

to believe that the opening speech influenced the court's

evaluation of the evidence and thus influenced the result.

The question whether (the applicant) had a fair trial as

guaranteed by Article 6 of the Convention must be answered

having regard to the proceedings as a whole. ... As already

indicated above I find that the error was rectified through

the taking of evidence. I do not consider that the

provisions of the Convention were violated in this case."

COMPLAINTS

The applicant complains of the way in which the prosecutor was

allowed to present the case to the court in his opening speech. The

court was influenced thereby to such an extent as to deprive him of the

guarantee of being presumed innocent and of benefiting from a fair

trial. The applicant invokes Article 6 of the Convention and submits

that the Supreme Court's finding of a violation of section 289 of the

Criminal Procedure Act did not in any way rectify his situation.

THE LAW

The applicant complains of his conviction on 25 January 1995 by

the Stavanger City Court and also of the court proceedings concerned.

With regard to the judicial decision of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to the established

case-law of the Convention organs (see e.g. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, para. 45, p.

29).

It is true that in this case the applicant also complains, under

Article 6 (Art. 6) of the Convention, that he was not afforded the

guarantee of being presumed innocent and thus did not have a fair trial

due to the procedural error committed by the public prosecutor in his

opening speech.

The Commission recalls first that although the Supreme Court in

its decision of 22 August 1995 found in favour of the applicant as

regards his views on the contents of the prosecutor's opening speech,

it did not quash on that ground the judgment of the Stavanger City

Court but actually rejected the appeal as the defect, in the Supreme

Court's opinion, was of no relevance to the outcome of the case and had

not violated any of the provisions of the Convention. Furthermore, the

Commission recalls that although an applicant who has sought and gained

redress in the national courts may not subsequently or any longer claim

to be a victim within the meaning of Article 25 (Art. 25) of the

Convention, this conclusion can only be drawn where the applicant is

no longer affected at all, for example where he has been acquitted

unconditionally. However, the present applicant remained convicted.

Having regard to the above considerations the Commission finds that the

applicant may still claim to be a victim of the alleged violation of

Article 6 (Art. 6) of the Convention.

The Commission considers, however, that the complaint is

manifestly ill-founded for the following reasons.

As regards the applicant's reference to his right to be presumed

innocent as guaranteed by Article 6 para. 2 (Art. 6-2) of the

Convention, the Commission recalls that the Stavanger City Court heard

the applicant as well as two witnesses, and certain documentary

evidence was produced. Regardless of the prosecutor's opening speech

the Commission is of the opinion that the judgment was based on an

evaluation of the available evidence. Especially there is, in the

Commission's view, nothing indicating that the City Court in fulfilling

its functions started from the assumption that the applicant had

committed the acts with which he was charged. An examination of this

complaint therefore fails to disclose any appearance of a violation of

Article 6 para. 2 (Art. 6-2) of the Convention.

The applicant furthermore maintains that he did not have a fair

trial. The Commission has not, however, found any other factual

circumstances which would merit a further examination of this

complaint.

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 Acting President

to the Second Chamber of the Second Chamber

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BRÅTEN v. NORWAY

BRÅTEN v. NORWAY

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