Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25272/94

by Wilhelm Schlüter PEDERSEN

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 13 June 1994 by

Wilhelm Schlüter Pedersen against Norway and registered on

21 September 1994 under file No. 25272/94;

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

summarised as follows.

The applicant is a Norwegian citizen, born in 1941. He is at

present serving a prison sentence at Ullersmo, Norway. Before the

Commission he is represented by Mr. Edvard Vogt, a lawyer practising

at Bergen.

The applicant has been convicted since the 1950s more than thirty

times for crimes related to violence and economic gain and has spent

more than thirty years in prison.

Following one of his convictions the applicant was in April 1991

placed at Bergen State Prison. On 5 October 1991 an incident occurred

there in which the applicant, being under the influence of intoxicating

beverages, held a prison officer hostage and threatened him and other

officers. After approximately two hours the applicant was overpowered

and placed in a security cell. It appears that he tried to commit

suicide there and he was therefore handcuffed in the cell until the

next day.

Following police investigations an indictment was served on the

applicant on 28 August 1992 by which he was charged with unlawful

deprivation of liberty, threats and assault contrary to sections 223,

227, 128 and 228 of the Penal Code.

On 5 February 1993 the applicant's present representative was

appointed defence counsel and in this capacity he carried out certain

investigations concerning the incident of 5 October 1991. By decision

of 16 April 1993 the Bergen City Court (Bergen byrett) withdrew

counsel's appointment as the Court considered that by the

investigations carried out counsel had violated fundamental procedural

principles and acted contrary to his duties as court-appointed counsel.

On 8 June 1993, however, the Gulating High Court (Lagmannsrett) quashed

the decision. The prosecution's appeal against this decision was

rejected by the Appeals Selection Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) on 2 September 1993.

On 29 September 1993 the applicant requested the President of the

Bergen City Court to remove the judge in charge of the case. He

maintained in particular that the judge had taken various pre-trial

decisions which showed that he was biased against the applicant and

also referred to the fact that the judge was the brother-in-law of a

carpenter who worked at Bergen State Prison.

By decision of 1 October 1993 the Bergen City Court presided over

by its President rejected the applicant's request stating as follows:

(Translation)

"Section 106 subsection 2 of the Court Act (domstolsloven)

concerns disqualification due to relationship by marriage

(svogerskab) with somebody who is involved in the case as

set out in section 106 subsection 1 of the Court Act. The

Court cannot see that Judge T has any relationship by

marriage with the victims in the criminal case. They are

named persons employed at Bergen State Prison. T's

brother-in-law is not among them.

The question remains whether Judge T, through his

brother-in-law, has received such information about the

conditions at Bergen State Prison that he has been

influenced so as to make it impossible for him to examine

the case impartially.

In a decision referred to in RT 1974 p. 1257 the Appeals

Selection Committee of the Supreme Court has examined the

question of a judge's partiality in a criminal case against

a prisoner who demolished furniture in prison. The judge's

membership of the prison's Supervisory Board was not

considered to be a reason for disqualification whereas his

engagement in disputes between the prison management and

the inmates was. Judge T's connection to the conditions at

Bergen State Prison and the inmates must be considered as

being far more remote than the conditions which were

considered as a reason for disqualification in the decision

of the Appeals Selection Committee of the Supreme Court.

Therefore, the Court does not find any reason for

considering judge T to be disqualified due to the fact that

his brother-in-law is employed at Bergen State Prison.

The Court considers that judge T's handling of the case,

including the decision to withdraw counsel's appointment

and the refusal to appoint new experts, is without

relevance to the question of his disqualification. A judge

cannot be disqualified simply because he must decide, as

part of preparing the case, on questions on which the Code

of Criminal Procedure (Straffeprosessloven) requires him to

decide. Against such decisions an appeal may be lodged.

Conclusion:

Judge T is not disqualified as regards the case in

question."

It does not appear that the applicant appealed against the

decision.

On 4 October 1993 the main hearing commenced in the Bergen City

Court presided over by Judge T. No protests were lodged as to the

composition of the Court. The applicant was present and, assisted by

counsel, had the opportunity to address the Court. From 4 to 8 October

the Court furthermore heard twelve witnesses and two experts and also

held an enquiry (Ã¥stedsbefaring) at Bergen State Prison. The

applicant's request for the hearing of three additional witnesses and

the appointment of new experts was rejected by the Court which found

that:

(Translation)

"... in the light of the Court's duties pursuant to

section 294 of the Code of Criminal Procedure the case was

fully elucidated without the hearing of the witnesses and

the evidence requested and that this new evidence in any

event would lead to delays and inconvenience which would

not be proportionate to the importance of the evidence."

Following the parties' final pleadings the hearing ended on

8 October 1993. Judgment was pronounced on 18 October 1993. The

applicant was found guilty of the charges brought against him and

sentenced to one year and six months' imprisonment. Furthermore, the

prosecuting authority was empowered to use security measures

(sikringsmidler) pursuant to section 39 no. 1 a-f of the Penal Code for

a period not exceeding five years.

On 14 November 1993 the applicant submitted a request to the

Supreme Court (Høyesterett) for leave to appeal or, in the alternative,

for a new trial in the High Court (Lagmannsrett). He maintained inter

alia that the presiding judge was partial and that a number of

procedural errors had been committed.

The requests were rejected by the Appeals Selection Committee of

the Supreme Court on 15 December 1993.

COMPLAINTS

1. The applicant complains, under Article 3 of the Convention, that

he was subjected to unwarranted and unnecessary cruel treatment by the

prison officers in connection with the incident at Bergen State Prison

on 5 October 1991.

2. Furthermore, he complains that he did not have a fair trial by

an impartial tribunal within the meaning of Article 6 of the

Convention.

THE LAW

1. The applicant complains that he was subjected to treatment

contrary to Article 3 (Art. 3) of the Convention in connection with the

incident which occurred on 5 October 1991 and following which he was

charged with unlawful deprivation of liberty, threats and assault.

The Commission does not consider it necessary to examine whether

the applicant, in respect of this part of the application, has complied

with the requirements of Article 26 (Art. 26) of the Convention as to

the exhaustion of domestic remedies and the six months rule because

even assuming this to be the case the Commission does not consider that

the treatment the applicant was subjected to discloses in the

circumstances any appearance of a violation of Article 3 (Art. 3) of

the Convention.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant also complains that he was not afforded a fair

trial by an independent tribunal within the meaning of Article 6

(Art. 6) of the Convention.

The Commission recalls, firstly, that with regard to the judicial

decisions involved, its only task, according to Article 19 (Art. 19)

of the Convention, is to ensure the observance of the obligations

undertaken by the parties to 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 H.R., Schenk judgment of 12 July 1988 Series A no.

140, p. 29, para. 45).

It is true that the applicant also complains that the proceedings

were not fair and that the Court was not impartial. He alleges in this

respect that the presiding judge of the Bergen City Court showed bias

against him, exemplified by his attempt, albeit unsuccessful, to

withdraw the official appointment of his defence counsel, by allegedly

harassing and unduly preventing the defence from carrying out its

duties and by refusing to accept further witnesses or appoint new

experts.

The Commission finds that concerning the objective impartiality

of a tribunal appearances may be of a certain importance and account

must be taken of questions of internal organisation. In this respect

the Commission has found nothing in the actual organisation of the

adjudication which would reflect adversely on the City Court's or the

presiding judge's objective impartiality. There remains the fact that

the applicant might not have seen the Court or the presiding judge as

being free from bias due to the fact that the dispute in question, as

well as associated points of procedure, were determined against him.

However, the existence of such a sentiment on the part of a party

against whom the decisions are taken is not sufficient to establish a

lack of impartiality. The Commission has found no other elements which

could raise doubt as to the impartiality of the City Court or the

presiding judge within the meaning of Article 6 (Art. 6) of the

Convention.

The applicant also refers to the fact that he was not allowed to

hear three additional witnesses or to obtain new evidence through the

appointment of two new experts.

In this respect the Commission recalls that the admissibility of

evidence is primarily a matter for regulation by national courts. As

a rule it is for the national courts to assess the evidence before them

whereas it is the Commission's task to ascertain whether the

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

was taken, were fair (cf. for example Eur. Court H.R., Kostovski

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

particular as regards the hearing of witnesses the Commission has had

regard to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, one of

the purposes of which is to ensure equality between the defence and the

prosecution as regards the summoning and examination of witnesses. It

does not, however, grant the accused an unlimited right to secure the

appearance of witnesses in court as it is in the trial court's

discretion to refuse to take evidence which is considered irrelevant

(cf. e.g. Eur. Court H.R., Engel and Others judgment of 8 June 1976,

Series A no. 22, pp. 38-39, para. 91).

In the present case the Commission recalls that the applicant's

case was heard in public in the Bergen City Court where he was present

and assisted by counsel. The Court heard twelve witnesses and two

experts but rejected the requests to hear three additional witnesses

and to appoint two new experts since this would not, in the Court's

view, be necessary for the evaluation of the substance of the case

which it had to consider.

The Commission has found no elements which would indicate that

the Court went beyond its discretion to refuse to take evidence in

the circumstances of the present case. Furthermore, the Commission has

found no other elements which could lead to the conclusion that the

right to a fair trial within the meaning of Article 6 (Art. 6) of the

Convention was not respected.

Accordingly, an examination of the applicant's complaints as to

the fairness of his trial and the impartiality of the Court does not

disclose to the Commission, on the basis of an appraisal of the entire

trial, any appearance of a violation of Article 6 (Art. 6) of the

Convention.

It follows that this part of the application is also 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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PEDERSEN v. NORWAY

PEDERSEN v. NORWAY

LEXI