Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29185/95

by M.A. and B.S.

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 15 June 1995 by

M.A. and B.S. against Norway and registered on 9 November 1995 under

file No. 29185/95;

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 applicants are Iranian citizens, born in 1967 and 1968

respectively. At the time of lodging their application they were

serving their prison sentences at Bergen Prison in Norway. Before the

Commission the applicants are represented by Mr John Christian Elden,

a lawyer practising in Oslo.

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

summarised as follows.

The applicants were arrested on 1 September 1993 and detained on

remand. They were charged with drug trafficking. Other persons who were

to some extent involved in the criminal offences were arrested in

Denmark and subsequently convicted of the charges brought against them

there.

During the police investigations in the applicants' case a

request was made on 25 November 1993 to the Danish authorities in order

to obtain evidence from witnesses in Denmark. One of these witnesses,

A, was at that time serving his prison sentence in Denmark having been

convicted of drug trafficking related to the applicants' case. A court

session took place in Denmark on 16 December 1993 in the presence of

representatives of the Norwegian public prosecutor and the applicants'

defence counsel. It turned out, however, that the witnesses could not

testify under the applicable Danish rules since the applicants were not

present in person and since their counsel insisted on their presence.

The case against the applicants commenced on 5 April 1994 in the

Gulating Lagmannsrett (High Court) sitting with a jury. During the

proceedings which lasted until 15 April 1994 the applicants, assisted

by counsel, had the opportunity to address the court and to submit what

in their opinion was of relevance to the outcome of the case. The court

furthermore heard a total of 17 witnesses and a substantial volume of

documentary evidence was submitted.

During the proceedings a dispute arose regarding the hearing of

a Danish police officer, B, as to what the above mentioned witness, A,

had told him in private, something which apparently differed from A's

submissions as set out in the official police reports. Counsel for the

applicants protested against this and maintained in particular that

this would amount to inadmissible hearsay evidence and that in fact

this would furthermore be equivalent to obtaining evidence from A

without the defence having had the opportunity to put questions to him.

On 8 April 1994 the High Court decided in favour of allowing B

to be heard. The court stated, inter alia, as follows:

(Translation)

"As regards (the applicants) the court finds that the

European Convention on Human Rights does not prohibit (B)

from testifying in the circumstances. Quite a substantial

volume of evidence has been submitted concerning their

involvement and the court finds that (B's) testimony is not

of such importance that there is reason to refuse the

evidence having regard to case-law.

The court does not consider it to be of importance that it

concerns a statement from (B) concerning interrogations/

talks with (A) and not a de facto police interrogation

... . The prosecution has acted correctly and allowed the

accused to defend their interests as far as possible.

Considering the case as a whole - which is required in this

kind of cases - the court attaches importance to the fact

that considerable evidence has been submitted concerning

(the applicants) in addition to the statements from (B) ...

. A possible conviction would not in their case have to be

based mainly on (B's) statement but mainly on (statements

from) witnesses and documentary evidence presented in

court. In addition counsel for the defence may refer to the

doubts which may appear due to the fact that (A) did not

make his statement directly to the court. Furthermore, in

Norwegian law there is no prohibition against hearsay

evidence. The right to take evidence from a police officer

shall at least not be less than the right to read out

statements made by him."

Following an evaluation of all available evidence the applicants

were found guilty by judgment of 15 April 1994 and sentenced to

six years' and four years and six months' imprisonment, respectively.

On 28 and 29 April 1994 the applicants requested leave to appeal

to the Supreme Court (Høyesterett). They maintained, inter alia, that

the hearing of B about his private talks with A violated the principles

of a fair trial and Article 6 para. 3 (d) of the Convention. On

25 June 1994 the Appeals Selection Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) granted leave to appeal.

On 15 December 1994 the Supreme Court rejected the appeal on its

merits by three votes to two. On behalf of the majority Justice Skåre

stated, inter alia, as follows:

(Translation)

"(A) was called to appear in court during the main hearing

in accordance with the provisions of the Act of

21 March 1975 on the obligation to give evidence in the

Nordic countries (lov om nordisk vitneplikt) but he refused

to appear. The Act does not ... contain provisions by which

he could have been brought by force to the court. I agree

... that the situation according to (the Criminal Procedure

Act) would have allowed the reading aloud of the police

reports and that, in such circumstances, it must be

examined whether the court ought to have adjourned the case

or refused to hear (B), having regard to the elucidation of

the case and the general requirement of an appropriate

procedure.

The case was investigated having in mind that (A) as well

as the other Danish witnesses might refuse to appear during

the trial in Norway. The request for the taking of evidence

(in Denmark) must be seen in this light. The prosecution

requested in this respect that the presence of the accused

should be refused according to section 748, subsection 5 of

the Danish Administration of Justice Act (retsplejeloven).

... According to the prosecutor this request was connected

with the fact that the Danish witnesses in their statements

to the police had expressed their intention not to make

statements if the accused were present.

I understand (the Danish court records) to mean that the

court could not take evidence from (A) when he had accepted

to make his statement in the presence of the accused and

when counsel for the defence had requested their presence.

As I understand the court records, however, counsel for the

defence could themselves have ensured that the taking of

evidence proceeded, had they dropped their request that the

accused be present.

When the (Danish) court announced that it lacked competence

(A) had maintained that those who were charged in Norway

were innocent ... . By the way he had said the same during

a police interrogation the day before. Counsel for the

defence have said, however, that they wanted to confront

(A) with what (B) had stated about the explanations given

by (A) and which did not appear in the police reports.

However, counsel for the defence knew already at the time

of the taking of evidence (in Denmark) what (B) had said.

Therefore, it is difficult to see why questions were not

asked during that court session. Counsel for the defence

were prepared for a situation where (A) would give evidence

without the presence of the accused and the situation was

not particularly special ... . It is also somewhat

difficult to see the point in a further examination -

immediately or through a second taking of evidence. (A) had

given evidence which supported the accused and the question

regarding his credibility appears first and foremost to be

a question directed at the prosecution.

(A's) explanations in Denmark had to be taken into account

when the evidence available to the High Court was

evaluated. I cannot see that there was anything to gain

from adjourning the case. There is no reason to believe

that (A) would have appeared to be a stronger witness

following a new interrogation than he was vis-à-vis counsel

for the defence during the proceedings in the High Court

when he totally denied (B's) statements. On the other hand

counsel for the defence had every opportunity to challenge

(B's) credibility.

In its evaluation of the case as a whole the High Court

attached importance to the fact that in addition a

considerable volume of direct evidence had been submitted.

'A possible conviction would not in their case have to be

based mainly on (B's) statement but mainly on (statements

from) witnesses and documentary evidence presented in

court'. What the High Court says here is based on what was

already available, inter alia, as a result of the hearing

of three witnesses from Denmark. One of these witnesses was

the other (person who had sold the narcotics) and the two

others had been the couriers in the case. In my opinion

nothing has emerged which shows that the High Court's

evaluation was wrong. Considering the case as a whole I

cannot see that the High Court committed an error by

accepting statements from (B)."

COMPLAINTS

The applicants complain that their conviction was decisively

based on hearsay evidence from a person to whom they had no opportunity

to put questions. They invoke Article 6 para. 1 and Article 6 para. 3

(d) of the Convention.

THE LAW

The applicants complain in essence that they did not receive a

fair trial. In this connection they rely on the following provisions

of the Convention:

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

against him, everyone is entitled to a fair ... hearing ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him; ..."

The source of the applicants' allegation was the use as evidence

by the Gulating High Court of the witness statements of the Danish

police officer (B) which included hearsay evidence, i.e. statements

from another person (A) to whom they had not had the opportunity to put

questions.

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law. As a rule it is for

the national courts to assess the evidence before them. The

Commission's task is to ascertain whether the proceedings considered

as a whole, including the way in which evidence was taken, were fair

(cf. for example Eur. Court HR, Kostovski v. the Netherlands judgment

of 20 November 1989, Series A no. 166, p. 19, para. 39).

The Commission finds that all the evidence must normally be

produced in the presence of the accused at a public hearing with a view

to adversarial argument (cf. Eur. Court HR, Barberá, Messegué and

Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 34,

para. 78). This does not mean, however, that the statement of a witness

must always be made in court, if it is to be admitted in evidence, as

this might in some circumstances prove impossible.

The Commission does not find that the principle adopted by Norway

as regards the free evaluation of evidence as such runs counter to

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, and hearing the

Danish police officer (B) as a witness does not therefore disclose any

appearance of a violation of this provision. Nevertheless, the

Commission has not overlooked that B's testimony included information

of what A had told him in private and the Commission would not exclude

that the use of such testimony, instead of hearing A directly, could

raise an issue under Article 6 (Art. 6) of the Convention as it was to

some extent taken into account by the trial court.

The Commission notes that counsel for the applicants were

afforded the opportunity to put questions to A during the court session

in Denmark, but chose not to make use thereof. Furthermore, the

Commission finds that the information obtained by police officer B was

far from being the only evidence in the case. It was also clear to the

High Court that this evidence could not be considered to be reliable

first-hand information. The Commission finds that the applicants'

convictions were not based to any decisive extent on this evidence. In

particular it recalls that in the course of the main proceedings in the

High Court the testimony of 17 witnesses was heard at the request of

the prosecutor and the applicants and it is clear from the High Court's

judgment, as well as from that of the Supreme Court, that the

applicants' convictions were based on this testimony. Nothing has

emerged which could give rise to any misgivings as regards the fairness

of the applicants' trial or their right to a proper defence in this

respect. In these circumstances the Commission does not find that the

fact that the High Court did not exclude B's evidence could lead to the

conclusion that the applicants did not have a fair trial within the

meaning of Article 6 (Art. 6) of the Convention.

The Commission finally recalls that the guarantees in paragraph

3 of Article 6 (Art. 6) of the Convention are specific aspects of the

right to a fair trial set forth in paragraph 1. The Commission has

considered the particular incident invoked by the applicants and has

found that it did not assume such importance as to constitute a

decisive factor in the general appraisal of the trial. In addition an

examination of the conformity of the trial as a whole with the rules

laid down in Article 6 (Art. 6) of the Convention has not disclosed any

appearance of a violation of this provision either.

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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M.A. AND B.S. v. NORWAY

M.A. AND B.S. v. NORWAY

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