Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16648/90

by S.L.

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

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 27 December 1989

by S.L. against Norway and registered on 31 May 1990 under file No.

16648/90;

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

in Oslo. Before the Commission he is represented by Messrs. Alf and

Svein Harald Nordhus, lawyers practising in Oslo.

Since 1971 the applicant was the leader of a religious foundation

called Samaritan Misjon Stiftelse. On 24 October 1983 one of the

members of the foundation authorised a lawyer to request an audit of

the foundation's accounts.

The conclusions of this audit led the police to commence

investigations against the applicant, and on 3 November 1983 he was

arrested, suspected of embezzlement in respect of the foundation's

funds contrary to Section 256 of the Norwegian Penal Code. He was

detained on remand the following day and several offices in Oslo,

Lillesand and Kristiansand were searched.

On 17 January 1984 the applicant was released from detention on

remand but the police investigations continued. He was arrested again

on 24 April 1984 suspected of having violated Section 166, subsection

2 of the Penal Code, and released again around 15 May 1984.

The police investigations continued and eventually, by indictment

of 22 October 1986, the applicant was charged with embezzlement and

having caused somebody to make use of an incorrect statement in

relation to a public authority, contrary to the above-mentioned

provisions of the Penal Code.

The case was scheduled for trial in the City Court (Byrett) of

Kristiansand on 14 September 1987. The applicant did not appear but his

counsel did. The case was adjourned and rescheduled for 2 May 1988. In

April 1988, however, the applicant informed the Court that he could not

appear for the trial since he would be in the USA to do missionary

work.

On 22 October 1988 the applicant was arrested at Gjøvik, Norway,

and detained on remand. The trial was then scheduled for 24 January

1989 against which both the applicant and his counsel protested.

However, the City Court rejected the protests and the trial took place

from 24 January to 9 February 1989. The applicant, present and

represented by counsel, had the opportunity to submit what in his

opinion would be of relevance to the case. In addition the Court heard

14 witnesses and two experts. After an evaluation of the evidence

submitted the applicant was found guilty by judgment of 27 February

1989 of the charges brought against him and sentenced to 1 year and 9

months imprisonment. Furthermore the Court confiscated 1.026.416 NOK

in accordance with Section 34 of the Penal Code, having found that the

applicant had obtained this amount through the offences committed.

Finally, the applicant was ordered to pay 50.000 NOK in costs.

On 9 March and 10 April 1989 the applicant appealed against the

judgment to the Supreme Court (Høyesterett). The appeal was based on

alleged procedural errors, alleged wrongful application of the law, the

severity of the sentence, the confiscation question and the question

of costs.

By decision of 19 April 1989 the Supreme Court rejected the

appeal in so far as it concerned the alleged procedural errors and the

alleged wrongful application of the law, whereas the appeal was allowed

as regards the remainder.

In a decision of 18 August 1989 judge Backer stated on behalf of

the unanimous Court the following as regards the remainder of the

appeal, i.e. the severity of the sentence, the confiscation question

and the question of costs:

(translation)

"The appeal against the sentence is in particular based on the

fact that the case has become very old, that the applicant has

suffered from the media attention, that he has been detained on

remand three times for long periods and that he had a sincere

engagement in the missionary work.

It appears that today nearly 6 years have passed since the

applicant was arrested the first time. Due to the bad state of

the accounts, for which the applicant is to blame, it was,

however, a very complicated case to investigate. After one

accountant had dealt with the case and produced the basis for the

suspicions, two other accountants were appointed as experts. Only

after their reports were ready could the indictment of 22 October

1986 be prepared. The investigations were delayed as the

applicant for a long period of time refused to talk to the police

after he initially had been willing to do so. Even before the

investigating court he only made incomplete statements. It took

several weeks for the case to be heard. The first and second time

the case was scheduled for trial it had to be adjourned as the

applicant was abroad, in Finland and in the USA respectively.

When the case was scheduled for trial the third time it was found

necessary to arrest the applicant in advance in order to secure

his presence. In these circumstances I do not find that the

length of the proceedings should speak in favour of the applicant

when meting out the sentence.

I furthermore recall that the applicant himself, according to

what has been said, contacted the mass media several times. The

three periods of detention on remand will as usual be deducted

from the sentence, but they cannot in the circumstances be of

relevance as regards the sentence. The applicant's missionary

work has been taken into consideration as a mitigating

circumstance by the City Court.

This case concerns very serious embezzlement. It concerns large

amounts and the embezzlement took place over several years. The

applicant exploited the donors' interests in a good cause and has

breached their confidence as well as that of the colleagues whom

he engaged in the work.

I cannot see that there is in these circumstances any reason to

reduce the sentence pronounced by the City Court.

As regards the confiscation question the applicant maintains that

it must be sufficient to confiscate only a part of the sum under

Section 34 of the Penal Code since the profits are no longer

there and it would hinder the applicant's subsequent work to be

burdened with such obligations which he will never be able to

fulfil without the assistance of others. I cannot see that this

is decisive. In my opinion it would be objectionable if the full

amount should not be confiscated in a case like this.

The appeal is accordingly to be rejected. In these circumstances

there is no reason to consider the question of costs, cf. Section

442 of the Criminal Procedure Act (Straffeprosessloven)."

COMPLAINTS

The applicant complains that the circumstances surrounding his

arrest and detention on remand amounted to a violation of Articles 3

and 5 of the Convention.

He also complains that he did not get a fair hearing by an

impartial tribunal, that he was not presumed innocent until proved

guilty according to law, that he did not have adequate time and

facilities for the preparation of his defence, that he was deprived of

legal assistance of his own choosing and that he was deprived of his

right to hear witnesses. He invokes in this respect Article 6 paras.

1-3 of the Convention.

Under Article 6 para. 1 of the Convention the applicant

furthermore complains that his case was not heard within a reasonable

time.

Finally, with reference to Articles 7, 8, 9, 11 and 14 of the

Convention, the applicant complains that a law was applied in his case

retroactively, that his right to respect for his private life, his home

and his correspondence was violated, that his rights to religious

freedom and association were violated and that he was discriminated

against because of his religious views.

On 12 February 1990 the applicant submitted an additional

complaint alleging that his right to peaceful enjoyment of his

possessions was violated as a consequence of his conviction.

THE LAW

1. The applicant complains that the circumstances surrounding his

arrest and detention on remand were in breach of Articles 3 and 5

(Art. 3, 5) of the Convention. Article 3 (Art. 3) protects anyone from

torture, inhuman or degrading treatment or punishment and Article 5

(Art. 5) protects anyone from deprivation of liberty save in certain

circumstances set out in that provision.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case the Commission recalls that the applicant was

arrested on 3 November 1983 and detained on remand until 17 January

1984. He was detained on remand again from 24 April 1984 until some

time around 15 May 1984, and finally he was detained on remand from 22

October 1988 until his conviction by the City Court of Kristiansand on

27 February 1989. The Commission finds that this last date should be

regarded as the starting point for the six month period provided for

in Article 26 (Art. 26) of the Convention in respect of the applicant's

complaints of his arrest and detention. The application, however, was

submitted to the Commission on 27 December 1989, that is, more than six

months after the date of the City Court judgment. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant furthermore complains that in several respects

during the course of the criminal proceedings against him he was denied

a fair trial. He invokes in this regard Article 6 paras. 1-3

(Art. 6-1, 6-2, 6-3) of the Convention.

However, also in respect of this part of the application the

Commission is not required to decide whether or not the facts alleged

by the applicant disclose any appearance of a violation of the

provisions invoked. The Commission recalls that the applicant's appeal

to the Supreme Court was based on alleged procedural errors, alleged

wrongful application of the law, the severity of the sentence, the

confiscation question and the question of costs. Furthermore, the

Commission recalls that the Supreme Court, on 19 April 1989, rejected

the appeal in so far as it concerned the alleged procedural errors and

the wrongful application of the law, whereas the Supreme Court's

subsequent decision of 18 August 1989 only concerned the severity of

the sentence, the confiscation question and the question of costs.

In these circumstances the Commission finds that the date of 19

April 1989 should be regarded as the starting point for the six months

period provided for in Article 26 (Art. 26) of the Convention in

respect of the applicant's allegations of an unfair trial as the

Supreme Court did not in its subsequent decision of 18 August 1989

consider these issues. The application was, however, as already

indicated above, submitted to the Commission on 27 December 1989, and

it follows that also this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

3. The applicant also complains that his case was not heard within

a reasonable time. He refers in this respect again to Article 6

(Art. 6) of the Convention.

The proceedings in question commenced on 3 November 1983 when the

applicant was arrested and ended on 18 August 1989 with the decision

of the Supreme Court which in this decision examined the length of the

proceedings. Accordingly, the proceedings lasted 5 years and 9 1/2

months. The Commission considers that it is not sufficiently informed

to decide on this complaint and finds it necessary to obtain from the

parties observations on the admissibility in this respect.

4. Finally, the Commission has considered the applicant's complaints

submitted under Articles 7, 8, 9, 11 and 14 (Art. 7, 8, 9, 11, 14) of

the Convention and Article 1 of Protocol No. 1 (P1-1) to the

Convention.

Leaving aside the questions arising under Article 26 (Art. 26)

of the Convention, in particular in respect of the applicant's

reference to Article 1 of Protocol No. 1 (P1-1), the Commission finds

that this part of the application does not disclose any appearance of

a violation of the Convention or its Protocols. 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.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaint

that his case was not heard within a reasonable time,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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