Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29309/95

by C.T.

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 7 November 1995

by C.T. against Norway and registered on 17 November 1995

under file No. 29309/95;

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 1954. He resides

in Oslo. Before the Commission the applicant is represented by

Mr Leidulv Digernes, a lawyer practising in Oslo.

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

summarised as follows.

On 8 March 1994 the applicant was arrested and charged with

certain narcotics offences involving several hundred kilos of hashish.

The indictment was served on 11 January 1995 and the case against the

applicant and four co-accused commenced in the Eidsivating High Court

(lagmannsrett) on 8 May 1995. From 8 May until 10 May 1995 the

applicant and the co-accused as well as 4 witnesses were heard.

Documentary evidence was also submitted.

On 11 May 1995 the prosecutor informed the court that the witness

N had not appeared although duly summoned. The police had

unsuccessfully tried to find her but it turned out that she had changed

her address and now used a different name. The prosecutor further

stated that the witness was a drug addict and that there was reason to

believe that she was at present "on a tour". Thus, the prosecutor

requested permission to read out statements made by the witness to the

police and during a previous preliminary court session. Counsel for the

applicant protested against this and pointed out that the defence had

not had the opportunity to put questions to the witness.

Having deliberated, the court decided to allow the prosecution

to read out the statements. In its decision the Court stated inter

alia:

(Translation)

On the basis of the available information the court finds

that hearing (the witness N) would entail disproportionate

inconvenience or expense cf. section 297 of the Criminal

Procedure Act (Straffeprosessloven). Reference is made to

(the submission made by the prosecution). The main hearing

would thus have to be adjourned for an unknown period of

time awaiting a possible arrest (of N).

As regards the European Convention on Human Rights the

court agrees with the prosecution that (N's) statements

cannot be considered as the main evidence in the case.

The court has heard (the applicant's) statements in court

and parts of his statements to the police. In addition the

statements from (three co-accused) concerning the money

transports related to (the applicant) are available to the

court.

The reading out of (N's) statements to the police will not

run counter to the principle of a fair trial within the

meaning of Article 6 para. 1 and Article 6 para. 3 of the

Convention. When it comes to the question the defence has

raised as to whether possible promises have been made by

the police, such questions may be put to (the witness S).

That (N's) statements appear to be hear-say evidence and

that she is a drug addict is undisputed." The main hearing

then continued with the hearing of further witnesses and

the production of further documentary evidence.

On 16 May 1995 the High Court pronounced judgment in the case.

The applicant was found guilty of the charge brought against him and

sentenced to three years and six months' imprisonment.

Leave to appeal to the Supreme Court (Høyesterett) was refused

on 28 July 1995.

COMPLAINTS

The applicant complains that he was denied the possibility of

cross-examining the witness N as the court allowed the use of her

statements made to the police and in a preliminary court session. He

invokes Article 6 para. 3 (d) of the Convention.

THE LAW

The applicant complains of the fact that certain statements made

by the witness N to the police and during a preliminary court session

were read out in court, instead of hearing the witness directly. He

considers this to be contrary to Article 6 para. 3 (d) (Art. 6-3-d) of

the Convention which reads as follows:

"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."

With regard to the evidence of witnesses the Commission notes

that, according to the case-law of the European Court of Human Rights,

the reading out at a hearing of the records of statements made by a

witness cannot, in itself, be regarded as being inconsistent with

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention but the use made

of such statements as evidence must nevertheless comply with the rights

of the defence (cf. Eur. Court HR, Unterpertinger v. Austria judgment

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

the Commission considers that save in exceptional circumstances,

requiring specific justification, witnesses must be heard in the

presence of the accused at a hearing where both parties can present

their arguments and which, since it is subject to public scrutiny,

offers a tangible guarantee of the fairness of the proceedings

(cf. Eur. Court HR, Delta v. France judgment of 19 December 1990,

Series A no. 191-A p. 16, para. 36 and Isgrò v. Italy judgment of

19 February 1991, Series A no. 194-A, p. 12, para. 34).

Accordingly, the Commission must examine whether the present case

offered such justification as it is clear that N was not heard in the

High Court.

The Commission recalls that N was at the time in question a drug

addict whose whereabouts were unknown, that her statements in the High

Court's view were of little relevance having regard to the other

evidence produced and that, therefore, it would amount to a

disproportionate inconvenience and expense to hear her personally

instead of reading out her statements made to the police and during a

preliminary court session. Furthermore, the Commission recalls that the

High Court heard several other witnesses as well as the applicant and

the co-accused. Thus, N's statements were not the only evidence in the

case and the Commission finds it established that the applicant's

conviction was not based solely or even essentially on her statements.

The limitation, which derived from her absence at the hearing, did not

in the Commission's opinion in these circumstances restrict the rights

of the defence to a degree which was irreconcilable with the Convention

(cf. also Eur. Court HR, Asch v. Austria judgment of 26 April 1991,

Series A no. 203).

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.

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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