Lexploria

SUR LA RECEVABILITÉ

Application No. 22596/93

by Stefán EINARSSON

against Iceland

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 23 August 1993 by

Stefán EINARSSON against Iceland and registered on 8 September 1993

under file No. 22596/93;

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 an Icelandic citizen, born in 1948. He resides

in Reykjavík. Before the Commission he is represented by Mr. Eiríkur

Tómasson, a lawyer practising in Reykjavík.

By 1987 the Reykjavík Police Department had obtained information

from various sources indicating that the applicant was involved in drug

trafficking. The police discovered that large quantities of hashish

were being imported to Iceland concealed in cans of paint and that the

applicant's travel and business activities appeared to be related

thereto. The applicant was kept under surveillance and search warrants

were issued by the Criminal Court for the homes of the applicant and

another suspect, H.

On 16 November 1987 H was arrested while he was placing cans of

paint, which also contained approximately ten kilogrammes of hashish,

in a garage. The applicant was arrested the same day outside his home.

They were both charged with drug trafficking and brought before a court

the following day. Counsel was appointed and they were detained on

remand.

The applicant was subsequently interrogated by the police on 20,

25 and 30 November as well as 2, 8 and 9 December 1987. He admitted

having imported hashish to Iceland on nine occasions, having bought it

from a person, M, in the Netherlands. Reports were drawn up in respect

of all the interrogations. They were read out to or read by the

applicant who subsequently signed them, except the report of

9 December 1987 which, therefore, only had the interrogator's note on

it indicating that the applicant had confirmed it as correct.

The applicant was interrogated again by the police on 22 and

28 December 1987 and 2 January 1988. On 4 January 1988 he was

interrogated in court. He then denied the contents of the police

reports made so far and maintained that he had neither read them nor

had them read out to him. He furthermore denied that he had been

involved in drug trafficking, but confirmed that he had travelled to,

inter alia, the Netherlands where he had purchased paint through M.

The applicant was again interrogated by the police on 7, 9, 10

and 11 January 1988. He then maintained that he had not been involved

in drug trafficking. He was interrogated in court again on

12 January 1988. He confirmed that he had been involved in transporting

paint to Iceland and that he had a suspicion that these shipments of

paint were related to drug offences. He maintained, however, that he

had nothing to do with it, nor did he feel that it was any of his

business.

The applicant was again interrogated by the police on 14, 16, 18,

20, 21 and 22 January 1988 following which he was released from

detention on remand.

During the above interrogations the Icelandic police requested,

in December 1987, the Dutch police to question M in respect of his

involvement in the case and his connections with the applicant. The

Dutch police, however, refused the request as M at that time was under

surveillance in connection with a major drug case in the Netherlands

and because of the sensitive stage of that investigation. It does not

appear that the police made further attempts to obtain the testimony

of M before the applicant's trial in the Reykjavík District Court.

On 18 and 19 January 1988 the Icelandic police went to Antwerp

and interrogated four individuals in order to clarify how the applicant

had purchased the paint and shipped it from the Netherlands to Iceland.

Following the applicant's release from detention on remand on

22 January 1988 the police concluded the investigations and forwarded

the case to the State Prosecutor's Office in July 1988. Having

evaluated the available evidence the State Prosecutor's Office drew up

an indictment on 27 July 1990 according to which the applicant and the

co-accused, H, were charged with having jointly imported a total of

67-70 kilogrammes of hashish into Iceland from December 1985 until

November 1987 contrary to section 173a of the Penal Code. The

indictment was served on the applicant on 17 December 1990.

On 16 October 1992 the applicant was summoned to appear before

the Reykjavík District Court and the examination of the case commenced

in that court on 2 November 1992.

The applicant and the co-accused, H, were heard. H admitted

having participated, together with the applicant, in importing hashish.

He maintained, however, that it concerned less than 67-70 kilogrammes.

The applicant maintained, on the other hand, his innocence and

contended that his previous confessions to the police as set out in the

available police reports had been made under duress. In order to

clarify this the Court heard six police officers who had participated

in the interrogations of the applicant. Furthermore, two additional

witnesses were heard. The applicant did not submit any requests to the

District Court for the hearing of additional witnesses.

On the basis of an evaluation of the above evidence as well as

the documentary evidence submitted, the Court found H and the applicant

guilty of the charges brought against them. By judgment of

14 December 1992 they were both sentenced to four years' imprisonment

and a fine of ISK 500,000. In its judgment the Court stated inter alia

as follows:

(translation)

"It has been established that the defendants confessed

during an investigation by the Drug Squad of the Reykjavík

Police Department to the import with which they are being

charged in the indictment, and also that H arranged the

selling of the hashish in Iceland, its import being clearly

for financial gain.

During a court session held on 17 November 1987 counsel was

appointed to protect the defendants' rights. Neither of the

defendants, however, requested that the attorneys be

present during interrogations.

Already on 19 November 1987 H admitted during the police

interrogation that the defendants had discussed that (the

applicant) intended to purchase paint and narcotics when he

travelled abroad...

...

During the interrogation on 1 December and later

interrogations the defendant H admitted that the defendants

had imported hashish which had been concealed in shipments

of paint and mentioned the nine shipments which are

referred to in the indictment. In later interrogations by

the police the defendant testified in the same manner and

in more detail as has been mentioned above. ...

During five interrogations on 20, 25, and 30 November and

2 and 8 December 1987 (the applicant) gave an account of

his participation in the case consistent with his part in

the case as described in the indictment... The reports

concerning (the applicant) dated 22 and 28 December 1987

differ from this and on 2 January 1988 (the applicant)

claimed during the police interrogation that all his

confessions to drug offences were incorrect.

The defendants have previously explained their altered

testimony and there is no proof that they were coerced and

threatened to confess to the charges brought against them.

Both defendants had access to counsel to whom they could

turn if they thought they were subject to duress. Neither

of them did so and the defendant H admitted to all the

charges brought against the defendants in two

interrogations in court in December 1987. The testimony of

the defendant H corresponds to the testimony of (the

applicant) during five interrogations by the police. ...

The Court rejects (the applicant's) explanation that he has

undertaken the unusual errands of bringing money to M for

shipments of paint to Iceland without knowing what was

going on. The behaviour of the defendant of renting

facilities all over Reykjavík and Kopavogur under false

names furthermore firmly indicates that he knew that

narcotics were imported in the nine shipments of paint and

that he participated fully in the import. ...

Taking all circumstances into consideration it is proven by

the confession of the defendant H to the police and in

court prior to the indictment and by (the applicant's) five

confessions to the police which are supported by other

evidence pertaining to the case described above that the

defendants are guilty of having jointly imported to Iceland

hashish for financial gain from December 1985 to November

1987. ...

Punishment of both defendants will be determined taking

into consideration section 77 of the Penal Code. It is

considered aggravating that they are both adults who

jointly imported and sold a great quantity of narcotics in

the hope of a great financial gain. The method used by the

defendants in committing their offence was not decided upon

in haste but was well planned. The defendants are found to

have played an equal part in the offence even though there

is reason to believe that (the applicant) came up with the

idea to commit it. Nevertheless the defendant H

participated and enjoyed the financial gain resulting

therefrom. It is not known what the defendants' net profit

was from this offence, but there is reason to believe that

the profits were considerable. This shall also be taken

into consideration in determining the punishment of the

defendants and it is decided that they shall be subject to

fines as well as to imprisonment, cf. subsection 2 of

section 49 of the Penal Code. It is, however, considered

proper to take into consideration in determining the

punishment to be imposed on the defendants the delay which

has occurred in pronouncing judgment in this case as the

defendants are in no way responsible for this delay.

Taking into consideration all of the above the suitable

punishment for each of the defendants is four years

imprisonment and a fine of 500,000 ISK, payable within four

weeks from this judgment; otherwise an imprisonment of

90 days replaces the fines."

Both the prosecutor and the applicant appealed against the

judgment to the Supreme Court and the appeal was sent to the Court in

January 1993.

It appears that the applicant wanted to obtain a statement from

M in the Netherlands. Accordingly, on 5 March 1993, the Director of

Public Prosecutions submitted a letter rogatory to the Dutch

authorities requesting their assistance in accordance with the European

Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

On 11 March 1993 M was accordingly interviewed by the Dutch

police and his statement, in which he maintained that the applicant had

nothing to do with drug trafficking, was transmitted to the Supreme

Court.

On 1 April 1993 the Supreme Court held a hearing in the case. It

did not, however, hear any witnesses. The Court upheld the judgment of

the District Court and stated as follows:

(translation)

"The facts of the case are clearly set out in the judgment

under appeal. With reference to the facts of the

aforementioned judgment the evaluation of the District

Court judge of the defendants' guilt and the applicable

penalty clauses is confirmed. The provisions of the

judgment regarding confiscation and legal costs are also

confirmed.

A considerable delay occurred in the proceedings of this

case before it was brought before the judge who rendered

the judgment of the District Court. The police concluded

its investigation in July 1988 and the case was then

referred to the public prosecutor. Indictments were,

however, not issued until 27 July 1990. The indictment was

served on (the applicant) on 17 December 1990. The case was

not examined, however, until 2 November 1992. The

indictment was first served on the defendant H on

19 October of that year. Taking this into consideration the

decision of the District Court judge regarding the

punishment of both defendants is confirmed.

The defendants are sentenced to pay all the costs of the

appeal according to the conclusion of this judgment.

According to the reports of the Department of Criminal

Investigation a witness was not always present during

interrogation or reading of the reports of the defendants

but only witnessed the signing. This is not in accordance

with section 37 of the Code of Criminal Procedure no.

74/1974 then in force, cf. now subsection 2 of section 72

of the Code of Criminal Procedure no. 19/1991.

Conclusion of the judgment: the judgment under appeal shall

stand."

COMPLAINTS

The applicant complains that the criminal charge against him was

not determined within a reasonable time within the meaning of Article 6

para. 1 of the Convention.

He furthermore complains that the District Court and the Supreme

Court violated Article 6 para. 3 (d) of the Convention by drawing

conclusions from police reports without examining witnesses on his

behalf. He refers in this respect to the witness M from the

Netherlands.

Finally, the applicant complains that the review by the Supreme

Court was not in accordance with Article 2 of Protocol No. 7 to the

Convention as the Court did not hear any witnesses.

THE LAW

1. The applicant complains that the criminal charge against him was

not determined within a reasonable time as required by Article 6

para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, in so far as

relevant, reads:

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

him, everyone is entitled to a ... hearing within a

reasonable time by a ... tribunal ... ."

The Commission notes that the proceedings complained of commenced

on 16 November 1987 when the applicant was arrested and detained on

remand and ended on 1 April 1993 when the Supreme Court pronounced

judgment in the case. They thus lasted approximately five years and

four and a half months.

The question arises, however, whether the applicant may still

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

Convention of a violation of the provision invoked given the fact that

the courts took into account the delays which had occurred when meting

out the sentence.

The Commission recalls the Convention organs' case-law according

to which an applicant's status as a "victim" within the meaning of

Article 25 (Art. 25) of the Convention may depend on compensation being

awarded on the basis of the facts about which he/she complains before

the Commission. In cases concerning complaints of length of proceedings

the domestic authorities must have acknowledged either expressly or in

substance the alleged infringement of the Convention and, if necessary,

provide redress in relation thereto. Only when these two conditions are

satisfied does the subsidiary nature of the protective mechanism of the

Convention preclude examination of an application (see Eur. Court H.R.,

Eckle judgment of 15 July 1982, Series A no. 51, p. 32, paras. 69

et seq.; No. 10868/84, Dec. 21.1.87, Woukam Moudefo v. France, D.R. 51

p. 62; No. 10884/84, Dec. 13.12.84, H. v. Federal Republic of Germany,

D.R. 41 p. 252).

In the present case the District Court expressly acknowledged

that delays had occurred for which the applicant was in no way

responsible and for that reason afforded some redress by reducing the

prison sentence imposed. The same position was adopted by the Supreme

Court which set out in its judgment the various periods of delay which

were open to criticism and on this basis confirmed the sentence

imposed. In these circumstances the Commission finds that the domestic

courts in substance acknowledged a breach of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the right to a hearing

within a reasonable time and afforded redress therefor by the

mitigation of the sentence imposed.

It follows that the applicant may no longer claim to be a victim

of a violation of his right to a hearing within a reasonable time as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention and this

part of the application must, therefore, be rejected under Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that the District Court and the

Supreme Court violated Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention by drawing conclusions from police reports without examining

witnesses on his behalf. He refers in this respect to the witness M

from the Netherlands.

The Commission recalls that the applicant did not request the

District Court to hear M as a witness. Nor has he submitted evidence

which could substantiate that the District Court failed to comply with

requests for the hearing of other witnesses on his behalf, but it is

true that part of the documentary evidence in the case consisted of

police reports concerning the applicant's own statements to the police,

the contents of which he contested.

In this respect 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 H.R., Kostovski judgment of

20 November 1989, Series A no. 166).

The Commission finds that the police reports were not the only

evidence in the case. In the course of the main proceedings in the

District Court witnesses were heard as well as the applicant and the

co-accused. The Commission finds nothing which could give rise to any

misgivings as regards the fairness of the applicant's trial or his

right to a proper defence in this respect. Moreover, the Commission

recalls that the question concerning the contents of the police reports

was thoroughly examined by the Court and both sides had the opportunity

to express their views to the Court. In these circumstances the

Commission finds that it was clear to the Court how the reports had

been made, that the applicant denied any knowledge of their contents,

and that, therefore, they could not be considered to be a reliable

first-hand source of information.

As regards the proceedings in the Supreme Court the Commission

recalls that a public hearing was held during which the applicant could

be present and could address the Court. It is true that the Supreme

Court did not hear the witnesses in the case but, where necessary,

relied on their statements as these appeared from the District Court's

transcripts. However, the use of such statements is not in itself

inconsistent with Article 6 (Art. 6) of the Convention. Although in

principle the evidence must be produced in the presence of an accused

the Commission and the European Court of Human Rights have consistently

held that the use of statements obtained even at a pre-trial stage may

be accepted, provided the rights of the defence have been respected

(cf. for example Eur. Court H.R., Delta judgment of 19 December 1990,

Series A no. 191). These rights require that the accused had the

opportunity, either at the time the witness made the statement or at

some later stage of the proceedings, to challenge and question the

witness. It is clear that the applicant had such an opportunity.

Nevertheless, the Commission cannot exclude that situations may

occur where the appeal proceedings before a court with jurisdiction as

to both the facts and the law require that an accused's guilt or

innocence could only, as a matter of fair trial, be properly determined

with a direct assessment of the evidence given by a witness, namely

where the crucial question concerns the credibility of the person

involved (cf. Eur. Court H.R., Ekbatani judgment of 26 May 1988,

Series A no. 134). The present case, as submitted by the applicant,

does not, however, give the Commission any reason to conclude that the

case, as it stood before the Supreme Court, raised questions of fact

which could not be adequately resolved on the basis of the available

material. In this respect the Commission has also noted that the

applicant did not avail himself of the possibility under section 46 of

the Supreme Court Act to request the Supreme Court, in special

circumstances, to hear witnesses.

Having referred to the above the Commission finds no appearance

of a violation of Article 6 para. 3 (d) (Art. 6-3-d) 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.

3. Finally, the applicant complains that the review by the Supreme

Court was not in conformity with Article 2 of Protocol No. 7 (P7-2) to

the Convention as the Court did not hear any witnesses.

Article 2 of Protocol No. 7 (P7-2) to the Convention 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."

The Commission recalls that the Supreme Court held a hearing in

the case and that the Court had the competence to consider both points

of fact and law. In these circumstances, and having regard to its

conclusion in respect of Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention, the Commission finds that the review afforded fulfilled the

requirements of Article 2 of Protocol No. 7 (P7-2) to 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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EINARSSON v. ICELAND

EINARSSON v. ICELAND

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