Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14483/88

by T.M.

against Norway

The European Commission of Human Rights sitting in private on 10

February 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 November 1988

by T.M. against Norway and registered on 19 December 1988 under file

No. 14483/88;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 12 November 1990 and the observations submitted in reply

by the applicant on 23 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United States of America. He

was born in 1954 and is at present serving a seven-year prison sentence

in Norway. Before the Commission he is represented by his lawyer, Mr.

Gert Nørrevang, Nykøbing Falster, Denmark.

A. The particular facts of the case

On 18 December 1985 the applicant was arrested in Rio de Janeiro,

Brazil. He was in possession of approximately one kilogramme of cocaine

hidden in his pocket and his boots. Criminal proceedings were

instituted against him. As the applicant had a Danish wife, living in

Copenhagen, and his air ticket was a return ticket Copenhagen-Rio-

Copenhagen, the Danish police was informed and an investigation into

the question whether the cocaine was intended for import to Denmark

commenced. On 20 February 1986 the Copenhagen City Court (Københavns

Byret) issued a letter rogatory addressed to the Brazilian authorities

for a Danish police officer to question the applicant in Brazil, where

he was now in detention on remand. The interrogation took place in

Brazil on 17 March 1986 in the presence of the applicant's counsel and

an interpreter. The Danish police officer wrote down the applicant's

explanation by hand due to lack of typing facilities in the prison and

later the same day prepared a typewritten report. The applicant did not

receive a copy thereof. According to the report the applicant explained

about his personal situation and his involvement in the pending drug

case in Brazil. He denied, however, having had the intention to import

the cocaine into Denmark.

In August 1986 the applicant escaped from prison before he had

been brought to trial in Brazil and was, therefore, at that time wanted

in Denmark. However, no charges relating to the Brazilian drug case

were brought against him in Denmark and he is not wanted at present in

Denmark for any criminal activity or any other matter. The outcome of

the proceedings in Brazil is unknown.

On 15 September 1987 the German police in Frankfurt discovered

approximately five kilogrammes of cocaine hidden in a hole carved into

the bottom of a wooden crate containing pottery. The crate had been

sent from Ecuador and was bound for Oslo. The Norwegian police was

informed and they placed the crate under surveillance. On 2 October

1987 it was fetched at the Fornebu airport near Oslo by the applicant

and another person. In a rented van they transported the crate to a

nearby parking lot and in the process of dismantling it they were

arrested by the police under suspicion of illicit drug traffic contrary

to Section 162 of the Norwegian Penal Code.

Through investigations in Germany and contacts with Interpol the

Norwegian authorities became aware of the applicant's previous arrest

and detention in Brazil. Steps were accordingly taken in order to

obtain information in this respect, and the Danish police were inter

alia requested to submit a copy of the above mentioned report of 17

March 1986.

By indictment of 7 January 1988 the applicant and the co-accused

were charged with drug trafficking. The hearing of the case was

scheduled for 21 to 22 April 1988 in the Eidsivating High Court

(lagmannsrett) sitting with a jury.

The day before, on 20 April 1988, the public prosecutor received

a copy of the report of 17 March 1986 from the Danish police. The

Government submit that the applicant's counsel received a copy of the

report the following morning before the commencement of the trial,

whereas the applicant submits that counsel received the copy after the

trial had started. During the trial the applicant and the co-accused

were heard. In addition seven witnesses were heard, five of whom were

police officers. In connection with the examination of these witnesses

the public prosecutor submitted photos of the wooden crate when it

contained cocaine and of the accused dismantling the wooden crate. A

police report was also read out. The two other witnesses were the

manager of a hardware store where the accused had bought the tools to

dismantle the crate and the Head of the Cargo Department at Oslo

Customs Control.

In connection with the hearing of an expert, exhibits of a piece

of wood with traces of cocaine were shown to the Court, and the report

from the laboratory tests was also made available. Moreover, two

transcripts of telephone conversations of 6 and 9 October 1987 between

the co-accused and a person called "Petr" were submitted.

Among the documents submitted as evidence by the public

prosecutor was the report of 17 March 1986 containing the reproduction

of the statement from the applicant to the Danish police officer made

while the applicant was detained in Brazil. When the applicant

protested against the use of this report as evidence the Court decided

as follows:

(translation)

"The public prosecutor requested permission to use as evidence

the report of [17] March 1986 to the Chief of Police, Interpol,

Copenhagen containing an interrogation of (the applicant). The

public prosecutor referred to Section 292, subsection 2, of the

Criminal Procedure Act (straffeprosessloven) which appeared to

regulate this. He also referred to the official law gazette of

1987, page 1318 and to the Supreme Court decision of 7 January

1982 which relied on the same conception of the law.

(The applicant) contended that, although the report in question

could be considered as evidence per se within the meaning of

Section 292, Section 296 and Section 297 further regulated in

what circumstances such evidence could be used. It had been

established that the police officer who had made the report could

appear before the High Court and give evidence or could do so

through commissions rogatory if only the evidence had been made

known earlier. There was nothing in the case which indicated the

contrary. It would be unjustifiable and unacceptable to obtain

the police officer's explanations through the available report

when there was reason to obtain his explanations in court.

The Court finds unanimously that the evidence in question can be

allowed in accordance with Section 292, subsection 2, of the

Criminal Procedure Act. The document refers to circumstances

which are of significance to the case. This is not in dispute.

It concerns a police interrogation in another narcotics case

which also concerns cocaine and a relatively considerable amount.

The interrogation was carried out by a Danish police officer in

the presence of (the applicant's) defence counsel. It appears

from the report that (the applicant) was informed that it was up

to him whether he wanted to explain anything.

Conclusion:

The Court allows the use of the evidence in question."

Neither the applicant nor his counsel requested that the hearing

be adjourned until it would be possible for the Danish police officer,

who had made the report, to appear in court and answer questions.

After the report had been read out the applicant was given the

opportunity to comment on it. He stated that he had never given a

statement to the Danish police officer.

On the basis of all the above-mentioned evidence the jury found

the applicant guilty of the charge brought against him. As it was a

jury trial the judgment contained no reasons. The applicant was

subsequently sentenced to seven years' imprisonment. The co-accused was

acquitted.

The applicant appealed against the judgment to the Supreme Court

(Høyesterett) maintaining that the use of the report of 17 March 1986

constituted such a procedural error that the judgment should be

declared null and void.

On 22 June 1988 the Supreme Court decided not to allow the

appeal.

B. Relevant domestic law

Criminal Procedure Act (translation)

Section 292

"If the accused pleads guilty the court decides to what extent

further production of evidence regarding the question of guilt

is necessary.

Otherwise evidence which is readily available may only be refused

when the court finds that it concerns matters which are without

relevance to the case or matters which are already sufficiently

clarified."

Section 293

"The Court may refuse to adjourn the trial with a view to the

taking of evidence if it finds that the evidence would be without

relevance or it would lead to delays or inconveniences which are

without reasonable proportion to the importance of the evidence

and the case."

Section 294

"The Court shall ex officio see to it that the case is fully

elucidated. For this purpose it may decide to take new evidence

and to adjourn the case."

Section 296

"Witnesses who can submit statements of relevance to the case

should be heard orally during the main hearing unless special

circumstances prevent this.

During the questioning the use of the reproduction of the

witness' previous statements concerning the case to a court or

a police report may only be used if they differ from the witness'

statement during the main hearing or concern matters on which the

witness refuses to express himself or which he claims not to

remember. The same applies to a written statement concerning the

case which the witness has submitted previously."

Section 297

"When a witness is not present during the main hearing the

reproduction of his previous statements to a court or in a police

report concerning the case may only be read out if oral

questioning is not possible or would cause disproportionate

inconvenience or expense... .

A written statement which the witness has submitted concerning

the case may only be read out if both parties agree or

questioning in court cannot take place."

COMPLAINTS

The applicant invokes Article 6 paras. 1 and 3 (d) of the

Convention. He maintains that he was barred from examining a very

important witness, namely the policeman who had drafted the report of

17 March 1986. The report was used to present him to the jury as a

very suspicious person, and it led to his conviction. The applicant

disputes the contents of the report and submits that for this reason

it would have been vital to hear the policeman in court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 November 1988 and registered

on 19 December 1988.

The Commission decided on 2 July 1990 to bring the application

to the notice of the respondent Government, inviting them to submit

written observations on the admissibility and merits of the case.

The Government's observations were submitted on 12 November 1990

and the applicant's observations in reply were submitted on 23 April

1991.Legal aid was granted to the applicant by the Commission on 14

December 1990.

THE LAW

The applicant complains that he could not hear as a witness the

policeman who drafted the report of 17 March 1986, and of the fact that

this report was used as documentary evidence. He invokes Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which read in

so far as relevant:

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

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

tribunal ...

...

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 Government submit that the case against the applicant was

based on ample evidence to the effect that he came to Norway to fetch

the crate containing cocaine. He was charged on the basis of these

circumstances. The police report of 17 March 1986 did not alter the

basis for the indictment. The report was simply an item of information

and not proof of the truth in respect of the accusation against the

applicant for the acts committed in Norway. The purpose of submitting

the report, so the Government maintain, was to show that the

information received from Interpol was correct, and both parties were

given the opportunity to state their views in this respect. The

applicant's wish to put questions to the police officer should be seen

in this perspective, having regard to the fact that he maintained only

in his appeal to the Supreme Court that the use of the police report

constituted a procedural error.

In conclusion the Government contend that the submission of the

report of 17 March 1986 was not in conflict with Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d) of the Convention as it had no bearing on

the basis for the indictment and nothing indicates that the verdict was

based on it.

The applicant submits that the reason for using the report was

to show that he was not trustworthy, which in itself is contrary to the

principle of not using evidence which concerns an accused person's

antecedents. Furthermore, the report was made under unacceptable

circumstances and never seen by the applicant. It was therefore of

particular importance to hear the police officer who drafted the report

as a witness in order to clarify its contents. By not doing so, while

allowing the report as evidence, the Court deprived the applicant of

a fair trial and of the right secured to him under Article 6 para. 3

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

The Commission recalls that, according to its own case-law and

that of the European Court of Human Rights, witnesses must be heard in

the presence of the accused at a hearing where both parties can present

their arguments, save in exceptional circumstances requiring specific

justification (cf. for example Eur. Court H.R., Isgro judgment of 19

February 1991, Series A no. 194-A). However, in the present case the

dispute in the High Court concerned the question whether or not the

police report of 17 March 1986 could or should be accepted as evidence.

According to the court transcript the High Court did not at any stage

consider a request from the applicant to hear the police officer in

question as a witness, and in his appeal to the Supreme Court the

applicant did not complain thereof either, but only maintained that the

use of the report as evidence constituted a procedural error. In these

circumstances the Commission finds no basis for the conclusion that the

applicant has been denied, in the domestic courts, the right secured

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

However, the question arises whether the use of the report of 17

March 1986 as documentary evidence - a question which was indeed

considered by the High Court and the Supreme Court - complied with the

requirements of a fair trial as guaranteed by Article 6 para. 1

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

In the present case the Commission finds that the report of 17

March 1986 was far from being the only evidence in the case. In the

course of the main proceedings in the High Court the testimony of seven

witnesses was heard as well as the applicant and the co-accused. An

expert was heard and other documentary evidence was produced concerning

the cocaine, the crate in which it was found and the circumstances

surrounding the applicant's arrest. It is undisputed that nothing 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 whether or not to allow

the police report of 17 March 1986 was thoroughly examined by the Court

and both sides had the opportunity to express their views to the Court

before a decision was taken. In these circumstances the Commission

finds that it was clear to the Court how the report had been made, that

the applicant denied any knowledge of its contents, and that,

therefore, it could not be considered to be a reliable first-hand

source of information.

It is true that it is not possible to establish to what extent

the jury relied on the report in question when reaching the verdict of

guilty. This is, however, always so in jury trials, but it is not the

Commission's task to examine the question of guilt or innocence. Having

regard to the above considerations, and considering the proceedings as

a whole, the Commission is of the opinion that the taking of evidence

was done in a fair manner, and it does not find that the fact that the

High Court did not exclude the police report of 17 March 1986 as

evidence could lead to the conclusion that the applicant did not get

a fair trial within the meaning of Article 6 (Art. 6) of the

Convention.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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