Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17389/90

by Arne MYRDAL

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 May 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. K. ROGGE, Secretary to the Second 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 21 July 1990 by

Arne Myrdal against Norway and registered on 5 November 1990 under file

No. 17389/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant is a Norwegian citizen, born in 1935 and resident

at Bjorbekk. Before the Commission he is represented by Mr. Erik Gjems-

Onstad, a lawyer practising in Hvalstad, Norway.

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

summarised as follows.

The applicant was a member of the organisation "Folkebevegelsen

mot Innvandring" - FMI ("The Movement against Immigration").

On 5 December 1988 the police of Oslo was contacted by a

journalist who stated that he had certain information concerning an

action against immigrants in Oslo. He alleged that five persons, among

them the applicant, planned to murder immigrants in Oslo with weapons

stolen from a military store. The journalist's "source" was one of the

persons in the group. The police was subsequently contacted by this

person. On 9 December 1988 "the source" - T.K. - and a police officer

met. T.K. confirmed that he was a member of FMI and that he had

attended a meeting at which five persons had planned murder actions

against immigrants. He also confirmed that for this purpose it was

planned to steal weapons from a certain military store, which he

afterwards pointed out to the police.

Later, on 28 December 1988, the police was again contacted by

T.K. This time he informed them that the applicant, together with

other persons, planned to set fire to an asylum camp on Tromøy, an

island near the city of Arendal, and that this attack was to take place

on 3 January 1989.

On 2 January 1989 the police was again contacted by T.K. who said

that he, the applicant and a third person, F.S., were in the process

of transferring dynamite from F.S.'s house to the applicant's home and

that the applicant planned to blow up the asylum camp in Tromøy on the

following day with the dynamite. On 2 January 1989 T.K. fetched the

dynamite at F.S.'s place and delivered it to the applicant. On 3

January 1989 the applicant and T.K. were arrested by the police - which

had followed the action - in the applicant's home. The police found

several kilogrammes of dynamite, detonation caps and electric wire.

Furthermore, they found sketches of the asylum camp. F.S. was later

arrested elsewhere.

On 4 January 1989 the chief of police (politimesteren) of Arendal

brought the applicant, T.K. and F.S. before the first instance court

(forhørsretten) of Nedenes applying for their detention while the

police investigation continued. The applicant was suspected of planning

to blow up the asylum camp on Tromøy and the others of transporting and

possessing the dynamite, respectively. In a decision of 4 January 1989

the court did not find a reasonable ground (skjellig grunn) for

suspicion of the alleged crimes. The applicant, T.K. and F.S. were thus

released.

The public prosecutor appealed againt this decision to the Agder

High Court (lagmannsrett) requesting that the applicant and F.S. be

detained. After a hearing on 6 January 1989, the High Court ordered

only the applicant to be detained. In its reasons the Court stated

inter alia:

(translation)

"Unlike the first instance court, the High Court finds

reasonable grounds for suspecting [the applicant] as

alleged in the accusation against him. In this respect the

High Court finds the fact that dynamite and detonation

caps, which he received from T.K., were found in [the

applicant's] house, to be of decisive importance.

Furthermore, relatively detailed sketches and outlines of

necessary equipment for blowing up the asylum camp were

also found. The High Court fails to see how the equipment

listed on the back of one of [the applicant's] sketches

could be used for purposes other than an explosion.

Moreover, the High Court attaches some importance to [the

applicant's] very strong criticism of Norwegian refugee

policy in general, his criticism of the asylum camp on

Tromøy in particular, and his statements on the use of

weapons in a given situation."

On 20 June 1989 the prosecutor submitted the indictment against

the applicant and F.S. He claimed that on 2 January 1989 in his home

the applicant had received and stored several kilogrammes of dynamite,

detonation caps and fuses for the purpose of damaging the asylum camp

on Tromøy by explosion. F.S. was indicted inter alia for complicity in

the crime.

On 12 September 1989 the trial hearing at the Agder High Court

started. The applicant and F.S. were present and represented by

counsel. 34 witnesses were heard, among them T.K.

By judgment of 22 September 1989, the High Court convicted the

applicant and F.S. of the crimes. The applicant was sentenced to one

year's and F.S. to eight months' imprisonment. In its reasons the Court

stated inter alia:

(translation)

"In determining the sentence, the High Court has paid

attention to the fact that the crime is serious and

generally dangerous (alvorlig almenfarlig forbrytelse). The

background of the case - in particular as regards the

applicant - has a clear undertone of political

disagreement with the official Norwegian policy concerning

the treatment of persons seeking asylum and immigrants. For

general preventive reasons (almenpreventive grunner) it is

necessary to react strongly against the intended use of

explosives as a way of expression in a society which

upholds the freedom of debate. Society must defend itself

against such an objectionable way of expression. ...

...

As a mitigating circumstance it is noted that the police

could have stopped the action earlier, which it tried to do

but failed. For this, the accused cannot be blaimed. Also

as a mitigating circumstance, [the Court] notes the role of

T.K. in the action and his co-operation with the police.

..."

The applicant and F.S. appealed against the judgment to the

Supreme Court (Høyesterett). In particular they alleged that the

conviction was based on an investigation and a taking of evidence which

was not in conformity with Norwegian law. They argued that T.K. had

acted as an undercover agent for the police and that he had provoked

them to act as they did, and, as this was not permitted, the judgment

was not correct and should be quashed or at least, the sentences should

be reduced.

In its judgment of 21 May 1990 the Supreme Court (Høyesterett)

upheld the judgment of the High Court. In its reasons the Court stated

inter alia:

(translation)

"It should be noted that the case was considered during

more than nine days in the High Court and that 34 witnesses

- ten of whom linked with the police - were heard. The

policemen explained to the Court their actions in the case

in its individual stages, i.e. the contacts with [T.K.],

internal police meetings and the police plan to avert an

attack on the asylum camp if necessary. This information

was given at a public hearing...

...

It is clearly established that it was [T.K.] who contacted

the police. [T.K.] gave the police information about the

plan made by the small circle of persons around [the

applicant] to attack persons and buildings. The police was

thus "tipped" about a plan by [the applicant]. The starting

point of the police's involvement in the further

investigation was usual information to the police. This

information gave notice of dangerous activity and clearly

gave the police full authority to look into the matter in

order to have the crime revealed and prevented.

It is clear that the police did not provoke any acts. The

police has not initiated the plan and the activity of the

circle of persons around [the applicant] to act against the

asylum camp. It is also clear that the police has not

provoked any acts in their investigation afterwards."

The Supreme Court also referred to Norwegian case-law and found

that the police investigation in the case was in accordance with the

law.

COMPLAINTS

The applicant alleges that he was provoked by the police acting

in co-operation with T.K. - to a degree which was not in accordance

with Norwegian law - to receive and store the explosives. He

furthermore alleges that he would not have been convicted without this

activity; this implies that he was not convicted "according to law".

He invokes Article 6 of the Convention.

The applicant also alleges that it was never his intention to

cause any damage or to perform the criminal act of which he was

accused, but that among friends he might have mentioned that "something

should be done". He complains that it is not in conformity with

Articles 8, 9 and 10 of the Convention to be convicted for thoughts or

remarks as long as no act has been carried out or any attempts to carry

it out have been made.

THE LAW

1. The applicant alleges that he was provoked by the police, acting

in co-operation with T.K. to receive and store the explosives. He

furthermore alleges that he would not have been convicted without this

activity and that this implies that he was not convicted "according to

law". He invokes Article 6 (Art. 6) of the Convention, which in its

relevant parts reads:

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

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law. ..."

The Commission recalls that the conduct of law enforcement

authorities in the prevention and investigation of criminal offences

is primarily a matter for regulation by domestic law. In particular,

in the field of dangerous delinquency the authorities may consider it

necessary, in some circumstances, to have recourse to the assistance

of police informers and undercover agents.

In the present case the Commission notes that both the High Court

and the Supreme Court had regard to T.K.'s role in the case. According

to the reasons in the Supreme Court's judgment, T.K. acted as a police

informer. Having received the information, the police took steps not

only to detect the crime but also to prevent the blowing up of the

asylum camp. However, the applicant has not substantiated that the

police organised any of the steps taken by T.K., inter alia the

delivery of explosives.

Furthermore, the Commission recalls that its task under Article

6 (Art. 6) of the Convention is to examine whether during the trial the

evidence for and against the accused was presented in such a manner,

and the proceedings in general were conducted in such a way, that the

applicant had a fair trial. However, whether the court evaluated the

evidence correctly is a question on which the Commission is not called

upon to pronounce itself. Furthermore the validity of the court's

factual conclusions is not subject to the Commission's control.

The Commission recalls that the trial court examined the

statements of 34 witnesses, including T.K. Other evidence, such as the

sketches of the asylum camp and the list of equipment found in the

applicant's home, was considered by the court. Nothing has emerged

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.

In these circumstances, considering the case as a whole, the

Commission cannot find that the applicant did not get a fair hearing

in accordance to Article 6 (Art. 6) of the Convention or that the

complaint as submitted discloses an appearance of any other violation

of that Article.

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 alleges that it was never his intention to

cause any damage or to perform the criminal act of which he was

accused, but that among friends he might have mentioned that "something

should be done". He complains that it is not in conformity with

Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention to be convicted

for thoughts or remarks as long as no act has been carried out and no

attempt to carry it out has been made.

The Commission has examined these complaints as they have been

submitted by the applicant. However, it finds that they do not disclose

any appearance of a violation of the rights and freedoms set out in

Articles 8, 9 and 10 (Art. 8, 9, 10) 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

(K. ROGGE) (S. TRECHSEL)

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MYRDAL v. NORWAY

MYRDAL v. NORWAY

LEXI