Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20434/92

by J. H.

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

H.G. SCHERMERS

F. MARTINEZ

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 December 1991

by J. H. against Norway and registered on 4 August 1992 under file

No. 20434/92;

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 1944. He resides

at Raadal, Norway. Before the Commission he is represented by his

lawyer, Mr. Dag Saltnes, Bergen.

In 1984 and 1986 the applicant established certain companies in

Norway and abroad through which he engaged in foreign and national loan

activities and financing. Generally speaking the applicant established

contacts between private individuals and companies in need of capital

and foreign investment and financing companies, in particular the

Export-Finanzierungsbank in Vienna, hereinafter the EFB. Often the

clients were required to deposit certain money in advance in order to

obtain the loans or the financing requested. It turned out, however,

that a number of clients never received any capital and never saw their

deposits again for which reason a police investigation commenced into

the applicant's activities, which extended to several European and non-

European countries.

On 25 April 1990 the public prosecutor for economic crime

(ØKOKRIM statsadvokatembetet) issued an indictment charging the

applicant with nine counts (I - IX) of fraud and/or embezzlement

against a large number of private individuals and companies, as well

as offences against the tax and accounting legislation.

The case commenced in the Bergen City Court (byretten) on

14 January 1991. On that day the applicant requested the hearing of

additional witnesses and furthermore requested the court to refuse the

prosecution permission to submit certain documentary evidence. On

15 January 1991 the City Court adjourned the examination of the

applicant's requests pending the examination of the available evidence

following which the court considered it would be in a better position

to determine the relevance of the applicant's requests.

From 16 January until 11 February 1991 the applicant was heard

as well as 36 witnesses and four expert witnesses. A substantial amount

of documentary evidence was also submitted.

On 12 February 1991 the prosecution requested permission,

pursuant to section 297 of the Criminal Procedure Act (straffeprosess-

loven), to read out statements made by the witnesses Zani and Kadouch

in a French court on 12 January 1989 as well as their statements made

to the French police in June 1988. Counsel for the applicant protested

against this maintaining that neither he nor the applicant had had the

opportunity to question these two witnesses.

Having deliberated, the court decided to allow the prosecution

to read out the statements made in the French court whereas it rejected

the request in respect of the statements made to the French police. The

City Court stated inter alia:

(translation)

"The court finds that section 297 of the Criminal Procedure Act

allows reading out the evidence obtained in a French court on

12 January 1989 concerning the interrogation of the witnesses

Zani and Kadouch. The court assumes that French law does not

allow the accused or his counsel to be present during such

interrogations.

It has been tried to arrange new interrogations of Zani and

Kadouch, where counsel could have been present, prior to the main

hearing, not least through several requests by counsel directly

addressed to the two witnesses. This has not been successful. The

court finds that new interrogations where counsel could be

present must in the present circumstances be considered to entail

such a disproportionate inconvenience to the case that the

existing (transcript of the) court interrogations may be read

out. The court does not find that this would infringe the

Convention on Human Rights as interpreted and implemented by the

Supreme Court (Høyesterett) ...

As regards the statements made to the police in France in

June 1988 in the presence of Norwegian police officers but

in the absence of a representative of the applicant, the

court finds, with some hesitation, that these statements

may not be read out. This should be seen in the light of

the fact that interrogations of the same witnesses in court

took place subsequent to the police interrogations. In such

circumstances, and as the statements made to the police

should comply with the principle in the Human Rights

Convention concerning the accused's right to examine

witnesses, the court finds that this must lead to the

conclusion that these police statements cannot be read out

during the main hearing."

Following this decision the applicant requested the hearing of

fifteen additional witnesses. These were

1. Antansio Panahon, former director and board member of the EFB,

2. Sedfrey A. Ordonez, former member of board of the EFB,

3. Jose Almonte, former member of board of the EFB,

4. Michael de Guzman, former member of board of the EFB,

5. Melquior, former member of board of the EFB,

6. Kit Bradshaw,

7. Felix Ajegbo,

8. Rattan Aggarwal,

9. Susan Carlin,

10. Stuart Conway,

11. Colin Ivin,

12. Roger A. Conway-Hyde,

13. Larry Wilcox,

14. Abraham Kadouch,

15. Charles Zani.

The applicant requested that these witnesses be heard as the

charges against him, mainly in respect of count VI of the indictment,

would not otherwise be sufficiently elucidated. The public prosecutor

on the other hand claimed that these witnesses were of no significance

to the case.

Having deliberated the City Court rejected the applicant's

request. It stated inter alia :

(translation)

"When the main hearing commenced counsel submitted a similar

request for additional evidence in the form of an examination of

witnesses. The court then decided to adjourn the examination of

this request until the available evidence had been submitted.

The court has now been presented with substantial evidence, i.e.

witnesses' statements, statements from four experts and a

considerable amount of documentary evidence. In addition the

accused has made extensive statements.

In view of this, compared with what is at issue in regard

to the different charges, the court finds that the evidence

proposed will be of no relevance in the sense that the

request concerns matters which are sufficiently

proved (bevist). Accordingly, the request is rejected

cf. section 293, subsection 1 (of the Criminal Procedure

Act)."

Section 293, subsection 1, of the Criminal Procedure Act referred

to by the court reads as follows:

(translation)

"The court may refuse to adjourn the proceedings for the

production of evidence when it finds that such evidence

would be of no significance or would lead to delay or

inconvenience which is not in reasonable proportion to the

significance of the evidence and the case."

On 27 February 1991 the City Court pronounced judgment in the

case. The applicant was found guilty of all charges contained in the

nine counts in the indictment except one, and sentenced to four years

and six months imprisonment for offences under the Penal Code, sections

255 and 256 (aggravated embezzlement), and sections 270 and 271

(aggravated fraud), as well as certain offences against the tax and

accounting legislation.

On 19 March 1991 the applicant applied to the Supreme Court for

leave to appeal against the judgment directly to the Supreme Court or,

in the alternative, leave to obtain a new trial in the High Court

(Lagmannsretten). The request for leave to appeal was based in

particular on the fact that the City Court had rejected the applicant's

request to hear witnesses, that witness statements had been read out

and that, in his opinion, the law had been wrongly applied. The request

for a new trial in the High Court was primarily based on the allegation

that the City Court had made a wrong evaluation of the facts and the

evidence.

On 5 July 1991 the Appeals Selection Committee of the Supreme

Court (Høyesteretts Kjæremålsutvalg) refused leave to appeal (to the

Supreme Court) but allowed a new trial in the High Court in so far as

the case concerned the counts VI and VIII of the indictment. In respect

of the remainder of the case the request for a new trial was also

refused.

On 25 November 1991 the new trial commenced in the Gulating High

Court. On that date the applicant requested the hearing of additional

witnesses. The High Court, however, adjourned the examination of this

request until other available evidence had been examined.

From 25 November until 17 December 1991 the applicant was heard

as well as a number of witnesses. Furthermore, a substantial amount of

documentary evidence was submitted. During the trial it became an

object of dispute between the prosecutor and the applicant whether a

statement to the police previously made in the case by the witness,

Harry Andreassen, should be read out. The applicant requested an

examination of the witness in court to which the prosecutor objected.

In a decision of 9 December 1991 the High Court stated inter alia the

following:

(translation)

"With reference to section 297 of the Criminal Procedure

Act, the prosecutor has requested that the witness

Harry Andreassen's statement to the police be read out.

Counsel has objected. Counsel claims that the witness must

appear in court or, alternatively, that the request to read

out the police report be rejected.

The witness's involvement in the case is twofold. He is an

injured party ... and he has also procured loans as an

agent for the witness Solhaug who is involved as an

agent/intermediary. Particularly the witness's role as an

intermediary is the ground for counsel's protest.

According to available information the witness is working

for the UN in Pakistan (Kashmir) on a contract which runs

until November 1992, and will not come to Norway until the

end of that period, except possibly for a summer vacation.

The witness works in a border area which means that it will

take some time for him to come to Norway or even to obtain

his statements there. In addition it may also be doubtful

whether he will obtain the necessary permission from the UN

due to lack of staff in the area.

Accordingly, the conditions for reading out a police report

under section 297 are fulfilled. The court does not

consider that this is contrary to Article 6 para. 3 (d) of

the European Convention on Human Rights to which counsel

has referred. This provision must be viewed in the light of

the principle of Article 6 to secure a fair trial. Until

now the court has heard 33 witnesses apart from the accused

himself. Thus, the court has heard explanations both from

(the witness) Solhaug and from witnesses whom Andreassen

brought into the case. The court has been informed that the

remaining witnesses are not involved in what Andreassen

should possibly explain. In these circumstances the court

cannot but find that the witness Andreassen will be of

little relevance in respect of the court's subsequent

evaluation of the question of guilt ...".

Section 297, subsection 1, of the Criminal Procedure Act to which

the court referred reads, in so far as relevant, as follows:

(translation)

"When a witness is not present at the main hearing, any

reproduction in the court records or a police report of any

statement the witness has previously made in the case may

only be read out if an oral examination is not possible or

would entail disproportionate inconvenience or expense."On

13 December 1991 after the hearing of the available

witnesses had come to an end the applicant maintained his

request to hear further witnesses. These were:

1. Antansio Panahon, former director and member of the board of the

EFB,

2. Sedfrey A. Ordonez, former member of the board of the EFB,

3. Jose Almonte, former member of the board of the EFB,

4. Kit Bradshaw, and

5. Susan Carlin.

The request for the hearing of witness no. 5 was subsequently

withdrawn.

In a decision of 13 December 1991, the High Court rejected the

applicant's request that the remaining four witnesses be heard. The

court stated inter alia as follows:

(translation)

"Counsel for the defence has requested that the proceedings

be adjourned in order to obtain statements from four

additional witnesses, three from the Philippines and one

from the USA. This request was also made at the initial

stage of the proceedings, but the court decided that for

the time being there was no sufficient basis upon which the

significance of these witnesses for the case could be

evaluated. The defendant has withdrawn the request as

regards one of the witnesses. The court has now heard the

accused, 43 witnesses, two experts and in addition,

extensive documentation has been provided. Accordingly, the

court has gained a better position than at the initial

stage of the proceedings, to evaluate this request. The

prosecutor has objected to an adjournment.

The statements of the witnesses at issue can only be

obtained abroad. It is unclear when this could be done and

as regards some of the witnesses, their agreement is

required.

Three of the requested witnesses, Ordonez, Almonte and

Bradshaw are only marginally related to the issues on which

the court must decide and the court considers that they are

of no significance to the case.

Panahon was the director of the EFB and possibly has some

information relevant to the case, but according to what has

already been revealed, the court considers that additional

information from him would not be of any significance in

the case. Besides, having regard to counsel's allegations,

Panahon may easily end up in a position where, as a

suspect, he could refuse to answer questions, cf. section

123 of the Criminal Procedure Act, in case he were to be

questioned in Norway.

Therefore, the court rejects the request to adjourn the

proceedings under section 295 of the Criminal Procedure Act

and considers that the issues are sufficiently clarified

according to section 294. The refusal to hear witnesses is

not considered to be contrary to Article 6 of the European

Convention on Human Rights and the court refers inter alia

to the reasoning for the decision as regards the witness

Harry Andreassen."

Sections 123, 294 and 295 of the Criminal Procedure Act read, in

so far as relevant, as follows:

(translation)

"Section 123. A witness may refuse to answer questions when

the answer may expose the witness ... to any penalty or

loss of esteem.

Section 294. The court shall in its official capacity see

to it that the case is fully clarified. For this purpose it

may decide to obtain new evidence and to adjourn the

hearing.

Section 295. The court shall ... refuse the production of

evidence which it finds to be of no significance, or whose

significance is not in reasonable proportion to the damage

that may be caused to the aggrieved party or other persons.

Likewise the court may refuse to allow the hearing of a

witness or other evidence which has, without reasonable

cause, been concealed during the preparatory proceedings."

On 10 January 1992 the Gulating High Court pronounced judgment

in the case. The outcome was the same as in the City Court of Bergen.

The applicant was sentenced to four years and six months imprisonment.

On 12 March 1992 the applicant applied for leave to appeal to the

Supreme Court. He submitted inter alia that the High Court had applied

the law wrongly and furthermore that procedural errors had been

committed in that the High Court had refused to hear the four witnesses

proposed and allowed the reading out of the statements made by the

witness Andreassen. He maintained that these procedural errors amounted

to a violation of Article 6 of the Convention.

On 30 April 1992 the Appeals Selection Committee of the Supreme

Court refused leave to appeal.

COMPLAINTS

The applicant complains of several infringements of Article 6 of

the Convention in connection with the criminal proceedings instituted

against him. He maintains that the City Court of Bergen violated

Article 6 para. 2 of the Convention, read in conjunction with Article 6

para. 1, when it refused his request for the examination of an

additional fifteen witnesses. He contends that the reasons for the

refusal indicated that the court had already determined the question

of guilt and thereby also showed bias towards him.

The applicant also complains that the refusal to hear the

additional fifteen witnesses violates Article 6 para. 3 (d) of the

Convention.

Furthermore, in respect of the proceedings in the Gulating High

Court the applicant complains of the fact that the court allowed the

reading out of the statements made by the witness Harry Andreassen and,

finally, he maintains that the court's refusal to hear the four

additional witnesses proposed also amounts to a violation of Article 6

para. 3 (d) of the Convention.

THE LAW

The applicant complains in essence that he did not have a fair

trial since, allegedly, he was not presumed innocent until proved

guilty according to law, since he was refused to have witnesses

examined on his behalf, and since the High Court allowed the use of

certain written evidence.

The applicant invokes Article 6 paras. 1, 2 and 3 (d)

(Art. 6-1, 6-2, 6-3-d) of the Convention which read as far as relevant:

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

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

by an impartial tribunal ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

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 applicant has referred not only to Article 6 para. 1

(Art. 6-1) but also to paras. 2 and 3 of this Article. In this respect

the Commission recalls that the guarantees in paras. 2 and 3 are

specific aspects of the right to a fair trial set forth in para. 1

(cf., inter alia, Eur. Court H.R., Unterpertinger judgment of

24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, the

Commission will have regard to them when examining the facts under

para. 1 of Article 6 (Art. 6). The Commission further recalls that it

must consider the proceedings as a whole. Its task is to ascertain

whether the proceedings in their entirety were fair (cf. for example

Eur. Court H.R., Stanford judgment of 23 February 1994, Series A

no. 280-A, para. 24). It follows that the Commission must examine the

question of fairness on the basis of the proceedings in the City Court

as well as the proceedings in the High Court. This also follows from

the fact that the guarantees of Article 6 (Art. 6) continue to apply

to the appeal proceedings where the opportunity to lodge an appeal in

regard to the determination of a criminal charge is provided for under

domestic law, since those proceedings form part of the whole

proceedings which determine the criminal charge at issue (cf. for

example Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,

Series A no. 115, p. 21, para. 54).

The applicant first maintains that the grounds on which the

Bergen City Court refused to hear the additional fifteen witnesses

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

in that the court stated that the matter on which these witnesses were

to express themselves had already been "sufficiently proved"

(tilstrekkelig bevist). Thereby, so the applicant contends, the court

in reality had already made up its mind as regards the question of

guilt.

The Commission points out first of all that the question of the

examination of witnesses is a matter which normally falls to be

examined under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention,

cf. below. Neither Article 6 para. 2 nor para. 3 (d) (Art. 6-2, 6-3-d)

of that Article gives a person charged with a criminal offence an

unlimited right to hear witnesses and, accordingly, a refusal to hear

further witnesses does not as such infringe Article 6 para. 2

(Art. 6-2) of the Convention.

The refusal to hear witnesses was based on section 293 of the

Criminal Procedure Act which inter alia allows a court to refuse to

adjourn proceedings for the production of evidence which is found to

be of no significance. Having regard to the circumstances of this case,

the Commission finds that the City Court merely exercised its power

under this provision to decide whether further evidence was necessary

or of any significance in addition to that which had already been

submitted. In particular the Commission finds that, despite the words

chosen, the City Court did not express any finding of guilt and an

examination of this complaint thus fails to disclose any appearance of

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

The applicant also maintains that the City Court's refusal to

hear the fifteen witnesses in question violated his right to have

witnesses examined in accordance with Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention.

In this respect the Commission recalls that, as a general rule,

it is for the national courts to assess the evidence before them as

well as the relevance of the evidence which defendants seek to adduce.

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention leaves it to the

national courts, generally speaking, to assess whether it is

appropriate to call witnesses and it does not require the attendance

and examination of every witness. Its essential aim is to secure an

equality of arms in the matter (cf. Eur. Court H.R., Vidal judgment of

22 April 1992, Series A no. 235-B, p. 32, para. 33).

In the present case the Commission recalls that the case was

rather complex, involving financial transactions which necessitated

investigations in several countries. The City Court heard 36 witnesses

and four experts and was presented with a substantial amount of

documentary evidence. It was only after having evaluated this evidence

that the court found it unnecessary to obtain further evidence in

respect of the issues which were the basis for the applicant's request

as this evidence, in the court's view and given the evidence available,

would be of no relevance to the evaluation of the substance of the case

which the court had to consider. The Commission has found no elements

which could indicate that the court's decision in these circumstances

was unfair or arbitrary. The court did not, in the Commission's view,

go beyond its proper discretion to refuse to take evidence when

refusing to hear the witnesses requested. Accordingly, an examination

of this complaint does not disclose any appearance of a violation of

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

As regards the proceedings in the High Court the applicant

complains of the fact that this court refused to hear an additional

four witnesses. However, in these proceedings the Commission recalls

that the court, like the City Court in the earlier proceedings, first

examined the available evidence in order to be in a better position to

evaluate the relevance of the further evidence proposed. Having regard

to the general principles set out above and to the High Court's reasons

for its refusal as stated in its decision of 9 December 1991, the

Commission does not consider that the refusal to hear these four

witnesses discloses any appearance of a violation of Article 6 para.

3 (d) (Art. 6-3-d) of the Convention.

Finally, as regards the High Court proceedings, the applicant

complains of the fact that certain statements made by the witness

Andreassen to the police were read out in court, instead of hearing the

witness in court.

With regard to the evidence of witnesses the Commission here

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 paras. 1 and 3 (d) (Art. 6-1, 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 H.R., Unterpertinger

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 H.R., Delta judgment of 19 December 1990,

Series A no. 191-A, p. 16, para. 36 and the Isgrò 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 Andreassen was not heard

in the High Court.

The Commission recalls that Andreassen was at the time in

question working for the UN in Pakistan, that his statements in the

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

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

disproportionate inconvenience and expense to hear him personally

instead of reading out his statements made to the police. Furthermore,

the Commission recalls that the High Court heard 43 witnesses as well

as the applicant. Thus, Andreassen's statements were far from being the

only evidence in the case and the applicant's conviction was not based

solely or even essentially on Andreassen's statements. The limitation,

which derived from his 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 H.R., Asch judgment of 26 April 1991, Series A

no. 203).

Summing up, the Commission recalls that the guarantees in

paragraphs 2 and 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 aspects and incidents invoked

by the applicant and has found that these 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.

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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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J.H. v. NORWAY

J.H. v. NORWAY

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