Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21863/93

by Stefan Karl Jørgen TRØBER

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 1988 by

Stefan Karl Jørgen TRØBER against Norway and registered on 17 May 1993

under file No. 21863/93;

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 1947. He is

divorced and his former wife has sole custody of their two sons, born

in 1975 and 1979 respectively. When introducing his application the

applicant was serving an eleven year prison sentence in Norway. He has

now been released on probation and resides in Oslo.

On 19 December 1986 the applicant was arrested, suspected of

having been involved in large scale drug trafficking together with a

number of other persons. The case attracted the attention of the media

and the case was followed by several newspapers which published

articles concerning the ongoing investigation, copies of which have

been submitted to the Commission.

By indictment of 5 August 1987 the applicant was charged with

four counts of drug trafficking contrary to section 162 of the

Norwegian Penal Code (straffeloven) and two counts of illegal threats

contrary to section 222 of the Penal Code. Furthermore he was charged

with one count of illegal possession or use of narcotics contrary to

the Medicament Act (legemiddelloven) and two counts of offences against

the foreign currency exchange legislation. The applicant was one of

eight accused who were all assisted by counsel. The case was heard in

the Agder High Court (Lagmannsrett) sitting with a jury.

By judgment of 9 October 1987 the applicant was found guilty of

seven of the charges brought against him whereas he was acquitted of

one count of drug trafficking and one count of illegal threats. He was

sentenced to eleven years' imprisonment and the sum of 100,000 NOK,

corresponding to the presumed profits gained through the illegal acts,

was confiscated.

On 22 October 1987 the applicant applied to the Appeals Selection

Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) for leave

to appeal to the Supreme Court which is competent to examine questions

concerning alleged procedural errors and sentence but not the question

of guilt. The applicant's appeal was exclusively directed against the

sentence, which the applicant found to be too severe, whereas he did

not allege that any procedural errors had been committed.

On 19 November 1987 the Appeals Selection Committee refused leave

to appeal. The applicant was informed hereof on 17 December 1987.

On 19 April 1988 the applicant requested the High Court to reopen

his case. However, the request was rejected on 5 August 1988. The

applicant's appeal against this decision was rejected by the Appeals

Selection Committee of the Supreme Court on 11 November 1988.

Following the High Court's judgment of 9 October 1987 the

applicant was transferred, on 14 October 1987, to Ullersmo State

Prison. In April 1988 he was transferred to Trondheim District Prison

as the prison authorities had found reason to believe that he planned

an escape from Ullersmo. In June 1988 he was transferred to Oslo

District Prison and, on 15 June 1988, back to Ullersmo. On

30 November 1988 he was sent to Sem District Prison, on

23 February 1989 to Drammen District Prison and from there back to

Ullersmo where he arrived on 28 June 1989. It appears that the

applicant then remained at Ullersmo until spring 1992 when he was

transferred to Krogsrud prison. He remained there until his release on

probation in April 1994.

While the applicant stayed at Oslo District Prison in June 1988

he submitted, on 13 June 1988, a letter to the Commission in which he

made a number of complaints in respect of his trial. The Commission's

reply of 28 June 1988 addressed to the applicant at Oslo District

Prison was redirected to him several times as a consequence of his

transfers to other prisons and it did not reach him until 14 March 1989

when he was placed at Drammen District Prison.

Following his return to Ullersmo in June 1989 the applicant was

immediately placed in a security wing pursuant to a decision of the

prison director which read as follows:

(translation)

"(The applicant) serves a sentence for very serious

narcotics offences having obtained, kept and imported large

quantities of narcotic substances.

On the basis of information from various sources and

certain findings in prison in 1988, there were clear

reasons to believe that an insurrection and escape from

Ullersmo State Prison was imminent. Together with five

other inmates (the applicant) was moved from Ullersmo to

another prison. From the information obtained it was

considered most likely that (the applicant) belonged to

those who stood behind these plans.

Furthermore all inmates started a `sit-down' strike in

November 1988, i.e. they refused to work or to follow the

educational offers.

Information was received from several sources which

indicated that certain inmates were behind the organisation

of this, among them (the applicant), and that they

seriously threatened other inmates in order to obtain their

participation. On the basis of this, (the applicant), among

others, was removed from the prison community cf. section

53, subsection 4 second sentence no. 1 of the prison rules,

and placed in a special wing.

Considering the situation as a whole (the applicant) must

be considered as having a particularly negative influence

on the other inmates' prison conditions and it is thus

decided to place him in the security wing cf. section 1

point c of the placement rules ..."

The applicant remained in the security wing until

17 September 1990. It appears that during this period he was refused

telephone contact with his sons from June until December 1989 and

certain problems arose as to the access to documents and other personal

belongings.

Due to the circumstances relating to his placement in the

security wing at Ullersmo the applicant, assisted by counsel,

instituted proceedings before the Eidsvoll District Court (herredsrett)

on 25 February 1990 against the State represented by the Ministry of

Justice maintaining, inter alia, that his placement in the security

wing was illegal and that the lack of telephone contact with his

children between June and December 1989 violated Article 8 of the

Convention. He furthermore maintained that he did not have access to

all his documents and referred to the fact that he did not receive the

Commission's letter of 28 June 1988 until 14 March 1989. In respect of

the two last points the applicant referred to Article 25 read in

conjunction with Article 8 of the Convention.

By judgment of 13 December 1991 the District Court found that the

State, represented by the Ministry of Justice, had obstructed the

applicant's right of individual petition and shown lack of respect for

his correspondence due to the fact that he had not received the

Commission's letter of 28 June 1988 until 14 March 1989. Furthermore,

the Court found that the applicant had been prevented from complaining

effectively to the Commission during certain periods when he had not

had access to all his documents. The Court, however, rejected the

remainder of the applicant's complaints.

Both the applicant and the Ministry of Justice appealed against

this judgment. On 18 January 1993 the Eidsivating High Court rejected

all the complaints submitted by the applicant. In its judgment the

Court found it established that the applicant had been treated in

accordance with the applicable prison rules and furthermore stated

inter alia as follows:

(translation)

"...

3. The Commission's letter of 28 June 1988

...

The Court finds that the Commission's letter did not reach

(the applicant) until 14 March 1989. (The applicant) has

not maintained that the letter was intentionally withheld.

The Court finds that the delay was caused by mistakes. The

prison authorities have expressed their regrets to (the

applicant).

The Court does not consider that the delay has influenced

(the applicant's) subsequent work on his petition.

Accordingly, the State has not objectively obstructed the

right of individual petition under Article 25 para. 1 of

the Convention.

4. (The applicant's) access to documents

...

The Court finds that the volume of documents possessed by

(the applicant) while he was serving his sentence was of

such magnitude that no cell at Ullersmo could contain them

without disturbing (the applicant's) prison conditions and

making necessary control impossible. Neither did (the

applicant) want to have all documents at once. The Court

furthermore finds that the documents, during (the

applicant's) stay in the security wing, were transferred to

the wing's store room when (the applicant asked for it). In

so far as (the applicant) managed only to a certain extent

to survey and to get access to all documents the Court

finds that this was due to practical difficulties. These

difficulties were subsequently overcome. The prison

authorities and the prison staff have not hindered (the

applicant) in his right of individual petition. The

problems with the documents were not of any real

importance. It was not until (the applicant) at a later

stage was assisted by counsel and was granted leaves of

absence in order to obtain further material that a rational

preparation of the case could be made.

On this basis the Court finds that the State has not acted

contrary to Article 8 or Article 25 of the Convention."

On 6 September 1993 the applicant appealed against this judgment

to the Supreme Court. In his appeal he maintained that it was contrary

to Article 8 of the Convention to refuse telephone contact with his

children from June until December 1989 and contrary to Article 8 read

in conjunction with Article 25 of the Convention that he did not

receive the Commission's letter of 28 June 1988 until 14 March 1989.

On 3 January 1994 the Appeals Selection Committee of the Supreme

Court refused leave to appeal.

COMPLAINTS

In relation to the criminal proceedings against him the applicant

maintains that the extensive press coverage was mainly based on

statements made by the police and the prosecution. He complains that

the statements and the way in which they were used amount to the

presumption of his being held guilty of crimes which were not covered

by the subsequent indictment. Thus the applicant maintains that the

behaviour of the police and the prosecution prior to his conviction

constituted a violation of Article 6 para. 2 of the Convention.

The applicant furthermore maintains that press coverage in

general and the entire atmosphere surrounding narcotics cases in Norway

are likely to influence potential jurors to the detriment of the

accused and that he did not have any practical means of participating

in the selection of the jury. The applicant considers that this amounts

to a violation of Article 6 para. 1 of the Convention.

Under Article 6 para. 3 (d) of the Convention the applicant

complains that certain earlier statements from a co-accused were read

out in court without giving the defence the opportunity of putting

questions to this person.

Finally, the applicant maintains that the presiding judge's

instructions to the jury showed bias against him contrary to Article 6

para. 1 of the Convention.

Under Article 2 of Protocol No. 7 to the Convention the applicant

complains of the fact that the Appeals Selection Committee refused

leave to appeal to the Supreme Court. He maintains that thereby he did

not get a review of his conviction or sentence within the meaning of

this provision. Finally, the applicant complains that by turning down

his request to reopen his case the Supreme Court violated Article 6 of

the Convention.

In respect of his prison conditions the applicant complains,

under Article 8 of the Convention, that he could not make telephone

calls to or receive such calls from his two sons while at Ullersmo from

June until December 1989.

He furthermore complains that a letter from the Commission was

delayed for approximately 81/2 months. He maintains that this obstructed

his right to submit an application to the Commission contrary to

Article 8 read in conjunction with Article 25 of the Convention.

THE LAW

1. The applicant complains that the extensive coverage by the

Norwegian mass media was for a great part based on statements made by

the police and the prosecution. The statements and the extent to which

they were made and used amounted, in the applicant's view, to a

presumption of his being held guilty before he was convicted and, thus,

to a violation of Article 6 para. 2 (Art. 6-2) of the Convention which

reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission notes that the applicant apparently did not raise

the issue of media coverage in the criminal proceedings against him.

However, it may be left open whether the applicant in such

circumstances has exhausted domestic remedies as required by Article

26 (Art. 26) of the Convention because the complaint is in any event

inadmissible for the following reasons.

The Commission has accepted that in some cases a virulent press

campaign can adversely affect the fairness of a trial and involve the

State's responsibility, particularly where it is sparked off by one of

the State's organs (cf., for example, No. 10486/83, Hauschildt v.

Denmark, Dec. 9.10.86, D.R. 49 p. 86 with further references).

Furthermore, the Commission and the Court of Human Rights have held

that the presumption of innocence is not limited to a procedural

guarantee but requires that no representative of the State shall

declare a person guilty of an offence before his guilt is established

by a court. On the other hand, this does not mean that the authorities

may not inform the public about criminal investigations. They do not

violate Article 6 para. 2 (Art. 6-2) if they state that a suspicion

exists, that people have been arrested, that they have confessed, etc.

What is excluded, however, is a formal declaration that somebody is

guilty (cf. Eur. Court H.R., Allenet de Ribemont judgment of

10 February 1995, Series A no. 308, paras. 35-38).

The applicant maintains that nearly all the newspaper articles

were prejudiced and based on biased information given by the police and

the prosecution which allegedly caused the newspapers to publish false

allegations which never resulted in any indictment. The Commission

considers, however, that an interest by the press must be expected

after the discovery of an important drug case and the question whether

the alleged information released by the police or prosecution to the

mass media was contrary to the presumption of innocence depends on the

content of the information.

The Commission has taken note of the newspaper articles

concerning the applicant's case as submitted by him and finds that the

case was indeed subjected to an extensive press coverage. However, the

Commission does not find it established that this information had any

impact on the outcome of the trial. Furthermore, the Commission does

not find it established that the newspaper articles contained an

affirmation of guilt expressed by the police or the prosecution

contrary to the presumption of innocence. Thus, the Commission does not

consider it established that the authorities made statements to the

press to the effect that the applicant was guilty, thereby affecting

his right to be presumed innocent.

An examination of this complaint does not, therefore, reveal any

appearance of a violation of Article 6 para. 2 (Art. 6-2) 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. Under Article 6 (Art. 6) of the Convention the applicant has

furthermore submitted a number of complaints relating to the fairness

of his trial. He complains that the jury was unduly influenced and its

selection made to his detriment, that he was prevented from examining

a witness and that the summing up of the presiding judge was biased

against him.

However, the Commission recalls that under the terms of

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted, according to the

generally recognised rules of international law. This condition is not

met by the mere fact that an applicant has submitted his case to the

various competent courts. It is also necessary for the complaint

brought before the Commission to have been raised, at least in

substance, during the proceedings in question. On this point the

Commission refers to its constant case-law (cf. for example, No.

6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and 5670/72,

Dec. 16.7.76, D.R. 7 p. 8).

In this case the applicant failed to raise the issues mentioned

above during the trial in the District Court. Moreover, the applicant

did not base his appeal to the Supreme Court on these points. His

appeal was only directed against the sentence imposed. Thus, the

applicant did not at any moment during his criminal case, in substance,

raise the issues which he now raises before the Commission.

Furthermore, an examination of the case does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

raising his complaints in the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must accordingly be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. As regards the criminal case against him the applicant also

complains of the fact that the Appeals Selection Committee, on

19 November 1987, refused leave to appeal to the Supreme Court against

the judgment of the High Court of 9 October 1987. He maintains that

thereby he was not afforded a review of his conviction or sentence

within the meaning of Article 2 of Protocol No. 7 (P7-2) to the

Convention. This provision reads as follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence

reviewed by a higher tribunal. The exercise of this right,

including the grounds on which it may be exercised, shall

be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in

cases in which the person concerned was tried in the first

instance by the higher tribunal or was convicted following

an appeal against acquittal."

However, the Commission recalls that the events concerned took

place prior to 1 January 1989 which is the date of the entry into force

of Protocol No. 7 (P7) to the Convention with respect to Norway.

Furthermore, in accordance with the generally recognised rules of

international law, the Convention or its Protocols only govern, for

each Contracting Party, facts subsequent to their entry into force with

respect to that Party (see e.g. No. 9453/81, Dec. 13.12.82, D.R. 31

p. 204).

It follows that this complaint is incompatible ratione temporis

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

4. The applicant also complains, under Article 6 (Art. 6) of the

Convention, that his claim for a retrial was refused. However, under

Article 25 para. 1 (Art. 25-1) of the Convention, it is only the

alleged violation of one of the rights and freedoms set out in the

Convention that can be the subject of an application presented by a

person, non-governmental organisation or group of individuals. With

regard to the present complaint, no right to a retrial is as such

included among the rights and freedoms guaranteed by the Convention.

Furthermore, in accordance with the Commission's established case-law,

proceedings concerning applications for retrial fall outside the scope

of Article 6 (Art. 6) of the Convention, since a person applying for

a retrial, having been finally convicted of a criminal offence, is no

longer a person charged with that offence within the meaning of that

Article (see e.g. No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

5. In respect of his prison conditions the applicant complains that

his right to respect for his family life and correspondence has been

unjustifiably interfered with. He refers in this respect to the

prohibition against receiving telephone calls from or making such calls

to his two children during six months and to the fact that the letter

from the Commission of 28 June 1988 was not delivered to him until

14 March 1989 and claims that he was thereby prevented from submitting

an application to the Commission. He invokes Articles 8 and 25

(Art. 8, 25) of the Convention which, as far as relevant, provide as

follows:

Article 8 (Art. 8)

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 25 (Art. 25)

"1. The Commission may receive petitions addressed to the

Secretary General of the Council of Europe from any person,

... provided that the High Contracting Party against which

the complaint has been lodged has declared that it

recognises the competence of the Commission to receive such

petitions. Those of the High Contracting Parties who have

made such a declaration undertake not to hinder in any way

the effective exercise of this right."

a. The Commission notes that while serving a sentence in a prison

is by its nature a limitation on private and family life, it is an

essential part of a prisoner's right to respect for family life that

prison authorities assist him in maintaining effective contact with his

close family members (cf., mutatis mutandis, No. 9054/80, Dec. 8.10.82,

D.R. 30 p. 113).

In the present case, however, the Commission recalls that the

decisions to place the applicant in a security wing, where the

conditions for the prisoners are less favourable, were taken by the

prison authorities as a consequence of the applicant's behaviour and

the legality of these decisions was later examined by the courts which

found the transfer as well as the restrictions imposed in this section

to be within the relevant rules. The Commission furthermore recalls

that the applicant's ex-wife had sole custody of the children and that,

therefore, his contacts with them were also dependent on her consent.

The Commission finds that it can be left open whether the children at

all made any telephone calls during the period in question because,

given that the restriction was only imposed for a limited period and

that communication by letter was possible, subject to the consent of

the custody holder, the Commission finds that the restriction in

question does not in the circumstances disclose any lack of respect for

the applicant's private or family life.

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.

b. In so far as the applicant complains that the Commission's

letter was delayed approximately 81/2 months, it is recalled that in the

present case there was no decision as to interception of the

applicant's mail or any other interference with his correspondence and,

furthermore, it does not appear that the authorities intentionally

withheld the letter from the Commission. The delay appears to have been

the result of some unfortunate incidents following the applicant's

transfers to different prisons for which the authorities have already

presented their regrets to him.

In these circumstances the Commission finds that there has been

no interference with the applicant's right to respect for his

correspondence and his complaint is accordingly manifestly ill-founded

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

c. As to the applicant's reference to Article 25 para. 1

(Art. 25-1) in fine of the Convention the Commission, in the light of

the above conclusion, finds no indication that the applicant has been

hindered in the effective exercise of his right of individual petition.

The Commission therefore concludes that it need take no further action

in respect of the alleged interference with this right.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE;

DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged

interference with the effective exercise of the right of

individual petition.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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TRØBER v. NORWAY

TRØBER v. NORWAY

LEXI