PEDERSEN v. DENMARK
Doc ref: 13445/87 • ECHR ID: 001-1159
Document date: October 14, 1991
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AS TO THE ADMISSIBILITY OF
Application No. 13445/87
by Flemming PEDERSEN
against Denmark
The European Commission of Human Rights sitting in private
on 14 October 1991, the following members being present:
MM. J.A. FROWEIN, Acting President
C.A. NØRGAARD
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
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 30 October 1987
by Flemming Pedersen against Denmark and registered on 10 December
1987 under file No. 13445/87;
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 31 October 1989 and 13 May 1991 and the observations
submitted in reply by the applicant on 19 December 1989 and 18 June
1991;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Danish citizen, born in 1940. At the time
of introduction of the application the applicant was serving a three
year prison term at Vridsløselille state prison, Denmark. Before the
Commission he is represented by his lawyer, Mr. Peter Ørbæk.
A. Particular facts of the case
I
On 18 August 1986 the applicant and a Dutch citizen, C, were
arrested in a hotel lobby in Copenhagen and charged with drug
trafficking. The following day, 19 August 1986, the applicant and C
were separately brought before the Copenhagen City Court (Københavns
Byret) which decided, on the basis of their statements and other
available information, to detain them on remand.
The applicant did not confess to the charge brought against
him. When questioned by the police in connection with his arrest on
18 August 1986, the applicant said he had by chance met C in the
health club at Hotel Scandinavia in Copenhagen. C had asked him about
the hotel shops' prices and opening hours. There had been no other
contact between them. In particular the applicant denied any knowledge
of heroin being smuggled from the Netherlands to Denmark.
When questioned in the presence of his counsel on 4 September
1986, the applicant changed his statement, informing the police that
he, being a drug addict, had turned up at Hotel Scandinavia to buy
heroin from a female Dutch courier, unknown to him. He knew from one
of his trips to Amsterdam that the person in question would be at the
hotel on that particular day. C had sat down at his table in the
health club, and he had asked her whether he could buy 8 grammes of
heroin from her. She had said that this was not possible in the health
club, but that they could meet in the hotel lobby. He was carrying a
pink towel in the health club. The applicant denied, however, that he
had been there to receive the total quantity of 80 grammes of heroin
which had been smuggled to Denmark by C.
As C confessed to the charge brought against her, i.e. that
she was a drug courier, her case was dealt with separately and on 6
October 1986 she was convicted by the Copenhagen City Court and
sentenced to nine months imprisonment for drug trafficking contrary to
Section 191 of the Danish Penal Code.
The conviction was based primarily on C's own statements to
the police and during the trial. She explained inter alia that she had
met a person in the sauna of the hotel in question who answered to the
description of the person to whom she had been instructed to hand over
the drugs she had smuggled into Denmark. He was a Dane by the name of
Flemming, around forty, corpulent, thin-haired and with spectacles. He
was wearing a golden necklace with a pendant in the shape of a pyramid
and he was dressed in a pink towel.
In the judgment it was finally decided that C should be
expelled from Denmark after having served her sentence. The
applicant's defence counsel was present during C's trial but he could
not put questions to her.
As the applicant assumed that C would be released in January
1987, after having served only part of the sentence imposed, he
informed the City Court on 11 December 1986, through his
representative, that he wanted C heard as a witness in his case or at
least obtain her evidence in court prior to her expulsion. He
demanded a decision of the Court against which he could appeal to the
High Court of Eastern Denmark (Østre Landsret) should the Court refuse
his request.
Due to this the prosecuting authority informed the
applicant on 16 December 1986 that his case would be dealt with as
quickly as possible and that a request to obtain the evidence from C
would be made to the City Court, should it not be possible to hear her
during the trial. The indictment was served on the applicant on 17
December 1986. He was charged with drug trafficking contrary to
Section 191 of the Penal Code involving a total of 80 grammes of
heroin. During a court session on 22 December 1986 his case was
scheduled for examination by the Copenhagen City Court on 12 January
1987 as the prosecutor submitted that, according to the information he
had received, C would be released and expelled on 25 January 1987.
In the meantime C had submitted to the prison authorities a
request of 25 November 1986 to be released after having served half of
her prison sentence. Her request was forwarded to the Ministry of
Justice on 11 December 1986 and it was supported by the prison
authorities. On 17 December 1986 the Ministry of Justice granted
C's request and she was released and expelled to the Netherlands
on 19 December 1986.
Unaware of this the applicant submitted, on 7 January 1987, to
the City Court his list of evidence for the forthcoming trial. He
requested inter alia the hearing of two witnesses, including C. The
prosecuting authority, which apparently now had been informed of the
fact that C was no longer in Denmark, did not attempt to summon C as a
witness through a rogatory commission to the Dutch authorities because
it could not be expected that the request would yield any positive
result before the date set for the trial.
During his trial before the Copenhagen City Court on 12
January 1987 the applicant was heard. Subsequently the prosecutor
informed the Court that C, due to certain misunderstandings, had been
released and expelled from Denmark on 19 December 1986 and instead he
submitted as evidence C's statements made before the Court on 19
August 1986 after her arrest and during her trial on 6 October 1986.
The applicant did not protest against this procedure nor did he ask
for an adjournment in order to try to obtain the attendance of C in
court.
The prosecutor, however, subsequently opposed the applicant's
request concerning the hearing of another witness but accepted certain
facts which the applicant wanted to prove by hearing this witness.
Thereupon the applicant abandoned his request.
In addition to the above evidence records of four telephone
conversations between a person in the Netherlands and a person in
Denmark as well as a statement form the Medico-Legal Institute
(Retsmedicinsk Institut) concerning the heroin were submitted as
evidence.
On the basis thereof the City Court found the applicant guilty
of the charge brought against him and rejected his claim that he,
being a drug addict, had only tried to purchase a small amount for
himself. In its judgment of 12 January 1987 the Court stated:
(translation)
"It is clear that (C) was arrested on 18 August 1986 at 16.39
hours when she left the dressing room of the Hotel Scandinavia
sauna and that she carried approximately 80 grammes of heroin
with a purity of 46 to 60%.
Furthermore it is clear that (the applicant) was arrested on
18 August 1986 at 16.45 hours when he came out of the dressing
room of the Hotel Scandinavia sauna and that he was in
possession of, inter alia, a pink towel, a necklace with a
pyramid-like pendant and an envelope containing 10,000 crowns.
Finally it is clear that (C), during the criminal trial against
her, inter alia explained that she came to Copenhagen where
she should deliver narcotics to a person by the name of Flemming
whom she should meet in the sauna and swimming pool at Hotel
Scandinavia around 16.00 hours and that she could recognise
this person on a golden necklace with a pyramid and that he
had very little hair on his head. He should recognise her by
her wearing a green and black bathing suit.
Furthermore it must be considered established that G.K. (a
Dutchman) in the telephone conversation of 18 August 1986 at
14.16 hours named the person who was calling Flemming, and
that this person was informed that he should go to the sauna
at 15.30 hours. G.K. would call at 4 o'clock whereafter
Flemming could note who would go to the phone. She would
wear a green top and a dark bottom. Flemming should then
call her by the name of Sarinam and she should give him
everything. From the telephone conversation of 18 August
1986 at 15.21 hours it appears, inter alia, that a person
calls G.K. and informs him that now he is there and that he
carries a pink towel. The man asks G.K. what he should give
her and G.K. answers that he shall give her 8 and G.K.
repeats green top black bottom.
On the basis of the explanations submitted by (the applicant)
and by (C) it is clear that they met in the sauna area and
started talking and that someone called (C) at around 16.00 hours.
Regardless of the fact that the Court has not had the
opportunity to hear (C's) explanations directly, since she was
released and expelled from Denmark on 19 December 1986, the
Court finds, on the basis of the above particulars of the
evidence produced, that (the applicant) is identical with the
man with whom G.K. talks on the telephone. Hereafter (the
applicant) is guilty in accordance with the indictment."
The City Court sentenced the applicant to 2 years and 4 months
imprisonment. This included approximately 1 year and 4 months
accumulated in connection with conditional release from his previous
prison sentences. The applicant announced that he intended to appeal
against the judgment.
On 21 January 1987 the applicant appealed against the judgment
to the High Court of Eastern Denmark (Østre Landsret). He maintained
that he had not received a fair trial in the City Court, in particular
since the Ministry of Justice had effectively excluded him from
obtaining the attendance of the witness C as she had been released and
expelled from Denmark prior to the trial regardless of the applicant's
request, supported by the prosecuting authority, to hear her as a
witness. The applicant maintained that the case had thus been dealt
with contrary to Article 6 para. 3 of the Convention in that he had
not had the possibility of examining witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him. He pointed out that the
Ministry of Justice had decided to release the witness C at a time
when both the defence and the prosecution had informed the Court that
C was an important witness. Finally, as to the merits of the case,
the applicant maintained his innocence and requested an acquittal.
On 24 January 1987 the public prosecutor's appeal against the
judgment and the indictment to be used in the High Court were served
on the applicant. It appeared from the prosecutor's list of evidence,
which was forwarded on 1 May 1987, that it was not intended to hear C
as a witness but that it was intended to use her statements made
during hearings in court as evidence.
In addition to the appeal against the City Court judgment the
applicant complained to the State Prosecutor (Statsadvokaten) of the
way in which the Copenhagen Chief of Police had handled the procedure
concerning the release of C. The complaint was rejected on 9 February
1987 and this decision was upheld by the Prosecutor General
(Rigsadvokaten) on 6 March 1987. A subsequent appeal to the Ministry
of Justice regarding this matter was rejected by letter of 8 May 1987
in which the Ministry added:
(translation)
"It should be added that it is for the High Court of Eastern
Denmark to decide whether it might entail a violation of your
client's rights - including your client's rights under the
European Convention on Human Rights - to use the statements
made in court by C during her own trial as evidence in the
case against your client.
The Ministry of Justice would therefore refer you to the
possibility of submitting your objections in this respect
in connection with the examination of the case in the High
Court of Eastern Denmark."
The hearing of the appeal in the High Court was scheduled for
14 May 1987. It was a full re-hearing of the case during which the
High Court was called upon to take evidence and to examine anew the
facts and the law. On 3 May and 10 May 1987 the applicant submitted
his list of evidence to be examined in the High Court. In particular
he wanted the witness C heard as well as three other persons,
including his own defence counsel and the City Court prosecutor. As in
the proceedings in the City Court the prosecuting authority made no
attempt to summon C as a witness through a rogatory commission to the
Dutch authorities as it would not have been possible to receive a
reply within the eleven days available (3-14 May 1987).
During the trial on 14 May 1987 the applicant maintained his
position as described in his appeal to the High Court and requested
that the judgment of the City Court be repealed and the case sent back
for a new trial. In the alternative he requested his acquittal.
Before the High Court the applicant as well as four witnesses were
heard.
The first witness was a police officer who made statements
concerning the factual circumstances of the arrest of the applicant
and C on 18 August 1986.
The second witness was another police officer who, according
to the High Court court transcripts, stated inter alia as follows:
(translation)
"The witness explained that he carried out the interrogations of
(C) and (the applicant). The witness explained that (C) did
not change her statements during the interrogations. She
explained that she should deliver the heroin to a person by
the name of Flemming who would wear a golden necklace with a
pendant. Flemming would be around forty and thin haired. (C)
should receive an envelope with money. She did not know how
much money she would receive for the heroin. No
confrontation was arranged between (the applicant) and (C).
(C) recognised (the applicant) from a photo. The witness
stated that the Dutch police has informed him that (C) does
not want to go to Denmark in order to appear as a witness
against (the applicant).
The witness received, on 16 December 1986, a letter from
(the applicant) who wrote that (C) would be released on
19 December 1986. The witness contacted the competent
authority (kriminalforsorgen) which informed him that (C)
would not be released until 25 January 1987, and since (the
applicant's) trial was scheduled for 12 January 1987 he did
not take any further steps in this respect."
A third witness gave the following evidence according to the
court transcripts:
(translation)
"Questioned by the defence counsel the witness explained
that he was interrogated by the police on 13 May 1987. He
had been detained on remand together with (the applicant) at
Blegdamvejen prison. At Vestre prison he attended a
religious service together with (C). They talked and (C)
explained that it was her fault that an innocent man was in
prison. She did not mention the man's name. At Blegdamvejen
prison (the applicant) explained that he was innocent and
the witness connected this with the conversation with (C)
who explained that the man should buy only a few grammes of
heroin. The witness has been shown a photo of (C). At
Blegdamvejen prison the witness told (the applicant) about
the conversation with (C) and he described (C) to (the
applicant)."
The fourth witness was a police officer from the Netherlands
who brought along a tape with certain telephone conversations and he
explained its contents before the tape was played in court.
C was not heard as a witness but it appears that her
statements, used as evidence in the City Court, were also submitted as
evidence in the High Court although no specific reference is made to
these statements in the court transcripts. The applicant did not
protest against this, nor did he apply for an adjournment of the
proceedings.
Finally the High Court found it unnecessary to hear the
defence counsel and the City Court prosecutor as witnesses. The
applicant had requested the hearing of these witnesses in order to
show that it was impossible to identify the voices in the taped
telephone conversations. The High Court found, however, that this was
a matter the Court should decide upon and accordingly refused to hear
the witnesses as they could not, in the High Court's opinion, add
anything of relevance to the case.
In its judgment of 14 May 1987 the High Court stated:
(translation)
"The fact that (C) due to a misunderstanding during the
investigation was not kept here in this country and heard
as a witness in the applicant's case is not found to be a
procedural error which can constitute a reason to repeal
the judgment and the applicant's submissions in this
respect cannot, therefore, be accepted.
Also on the basis of the evidence produced in the High Court
it is found established that the applicant is guilty in
accordance with the indictment."
The High Court sentenced the applicant to 3 years imprisonment
which again included the 1 year and 4 months from previous convictions.
The applicant did not ask the Ministry of Justice for leave to
appeal to the Supreme Court (Højesteret), but subsequently he asked the
Special Court of Revision (Den særlige Klageret) to reopen his case.
However, on 27 August 1987 the Special Court of Revision refused to do
so.
II
When the applicant received the indictment on 17 December 1986
he noted that, after the presentation of the charge, the prosecution
had made a certain reservation as to the possibility of further
charges to be considered under Section 191 of the Penal Code, in
particular one charge which was already under investigation. The
applicant complained to the State Public Prosecutor and requested the
reservation removed. However, on 6 January 1987 the State Public
Prosecutor rejected the applicant's request maintaining that the
reservation had been made in order to pursue the applicant's case as
quickly as possible while indicating that another charge was still
under investigation.
The applicant complained of this decision to the Prosecutor
General who rejected the applicant's complaints on 20 January 1987. A
subsequent complaint to the Ministry of Justice was rejected by the
Ministry on 15 April 1987.
B. Relevant domestic legislation
The relevant sections of the Administration of Justice Act
(Retsplejeloven) read as follows (translation):
"Section 747, sub-section 1: A court session is held when
measures, which require the participation of the court, are
requested. On request a court session is furthermore held
when this is necessary to secure evidence which would
otherwise be lost or which could only be brought before the
adjudicating court directly with considerable inconvenience
or delay, or when it must be considered necessary for the
investigation or due to public interest."
"Section 877, sub-section 2: ... the following documents may
be used as evidence during the trial and must then be read
out;
1. ...
2. enterings in the court record concerning the statements
of the accused made during the examination of the charge,
when the accused now either refuses to answer, or when the
present statement deviates from the previous one, or when
the accused fails to appear;
3. enterings in the court record concerning the statements
of witnesses or experts made during their examination when
these persons have either died or for other reasons cannot
be heard again, or when they have been heard by a court
other than the one before which the case is pending pursuant
to Sections 174 and 209, or they have been heard in the
absence of the accused pursuant to Section 847 sub-section 1,
or when the present statement deviates from the previous
one, or when a witness refuses to speak and the prescribed
coercive measures ought not to be used or have been used in
vain;
4. ...
5. ... .
Sub-section 3: In circumstances other than the above,
documents and other written material which contain
statements or testimony may only be used as evidence if the
court by way of exception so permits."
"Section 880, sub-sections 2 and 3: Adjournments for the
purpose of obtaining evidence which is not readily available
is granted by the court if it finds that the circumstances
make this desirable for the elucidation of the case.
The court may, when it considers this appropriate for the
complete elucidation of the case, decide that evidence shall
be brought which neither of the parties have relied upon or
which the party, who has announced it, has abandoned, and may
for this purpose adjourn the case; ..."
"Section 881: The court's decision in disputes which arise
between the parties during the hearing of evidence, and
where protests have been made by witnesses or experts, is
passed insofar as requested by court order."
"Section 968, sub-sections 2 and 3: Court orders and other
decisions pronounced during the court hearing or during its
preparatory stage may, unless especially provided for in
law, only be appealed against (kære) when and insofar as the
decision provides that the case be adjourned or dismissed
or repealed or concerns imprisonment, seizure, search or
similar measures, or orders punishment or costs or when
directed against somebody who is not a party to the case.
Where an ordinary appeal (against a judgment (anke)) is
excluded in accordance with the rules set out in Section 966
appeals (against court orders and decisions (kære)) may only
be submitted with leave from the Minister of Justice in
which case the rules concerning leave to appeal against
judgments are applicable."
"Section 966, sub-sections 1 and 4: The judgment of the High
Court, sitting as a second instance court, cannot be appealed
against. The Minister of Justice may, however, grant leave
to appeal if the case involves questions of principle or
where special reasons otherwise speak in favour of it.
Applications for leave to appeal shall be submitted to the
Ministry of Justice within 2 weeks from the pronouncement of
the judgment or, if it is the accused who wants to appeal
and he was not present when judgment was pronounced, from
the date it was served. The Minister may, by way of
exception, grant leave to appeal if the application is
submitted later but within one year of the pronouncement of
the judgment.
...
An appeal in accordance with this section must be based on
the reasons set out in Sections 943, 945 sub-sections 1 to 3
and 963 sub-section 1 no 1. Moreover the rules set out in
chapter 82 are applicable with the necessary modifications."
"Section 943: An appeal may be based on the allegation that
procedural rules have been set aside or applied wrongly;
however, such application of the procedural rules, which the
court does not check ex officio, may only be used as a
reason for the appeal, where objections were lodged timely
before the lower court."
"Section 945 sub-section 1 no 3: In addition to the reasons
for appeal set out in Section 943 an appeal may only be
based on:
...
3. the claim that the punishment meted out in the judgment
goes beyond the limits of the law or is obviously
disproportionate to the offence."
"Section 963 sub-section 1 no 1: In addition to the reasons
for appeal set out in Section 943 an appeal against the
judgments mentioned there may be based on:
1. the claim that the court when deciding on whether the
accused shall be found guilty has applied the Penal Code
wrongly."
COMPLAINTS
The applicant complains that he did not get a fair trial in
the criminal court proceedings against him and he invokes
Article 6 of the Convention.
The applicant alleges that he was prevented from obtaining the
attendance and examination of the witness C because this witness had
been expelled from Denmark prior to the court proceedings for which
reason it was practically impossible to obtain her attendance.
The applicant also refers to the fact that the High Court
refused to hear two witnesses, namely his defence counsel and the City
Court prosecutor.
Finally the applicant, noting that the indictment contained
reservations as to further charges under investigation, submits that
this could improperly influence the court as regards the assessment of
factors relevant for their judgments.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 October 1987 and
registered on 10 December 1987.
The Commission decided on 12 July 1989 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 31 October
1989 and the applicant's observations in reply were submitted on 19
December 1989.
On 3 December 1990 the Commission decided to invite the
parties to appear before it at a hearing on the admissibility and
merits of the application.
On 20 February 1991 the hearing, scheduled for 5 March 1991,
was cancelled due to the applicant's representative's illness.
On 13 April 1991 the Commission decided to invite the parties
to submit additional written observations on the admissibility and
merits of the application.
The Government's additional observations were submitted on
13 May 1991 and the applicant's additional observations in reply were
submitted on 18 June 1991.
THE LAW
1. The applicant has complained that he did not get a fair trial
in the criminal court proceedings against him and he has invoked
Article 6 (Art. 6) of the Convention.
The Commission recalls first of all that in accordance with
Article 26 (Art. 26) of the Convention it may only deal with a matter
after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
In this respect the Government have referred to a number of
remedies the applicant allegedly could have used in the City Court as
well as in the High Court, such as his right to demand an adjournment
of the proceedings with a view to summoning C as a witness, his right
to protest against the use of C's statements as evidence in his case,
and the possibility of applying for leave to appeal to the Supreme
Court.
The applicant maintains that these remedies are not effective
for the purposes of the present case.
Having regard to the observations of the parties on the
question of exhaustion of domestic remedies, the Commission does not
find it necessary to determine whether the applicant has fulfilled
this condition because, even assuming this to be the case, the
application is inadmissible for the following reasons.
2. The applicant has complained that he was prevented from
obtaining the attendance and examination of the witness C in the City
Court as well as in the High Court as she had been expelled from
Denmark prior to the trial. He has also complained that the High
Court refused to hear two further witnesses proposed by him and
finally he has submitted that the indictment used in the City Court
contained certain reservations which improperly influenced the Court.
a. The Commission has considered the issues relating to the
attendance and examination of the witness C under Article 6 paras. 1
and 3 (d) (Art. 6-1, 6-3-d) which as far as relevant read as follows:
"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 Commission recalls that the applicant's appeal against the
judgment of the City Court was a full appeal in the sense that a
complete re-hearing of the case had to be carried out in the High Court,
which in doing so was not bound by the findings of the City Court.
However, from this it does not follow that the lower court did not
have to provide the guarantees of Article 6 (Art. 6) of the
Convention. Such a result would be at variance with the intention
underlying the creation of several levels of courts (cf. Eur. Court
H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 18,
para. 32).
Nevertheless a higher or the highest court may in some
circumstances make reparations for a possible initial violation of one
of the Convention's provisions, in particular where the alleged defect
bears solely upon the conduct of the first-instance proceedings rather
than on matters of internal organisation.
Therefore the Commission will base its examination of the
present case on its consistently held view that the conformity of a
trial with the rules laid down in Article 6 (Art. 6) of the Convention
should be examined in the light of the entire trial. It is true that
one particular aspect or incident can be influential or assume such
importance as to constitute a decisive factor in a general appraisal
of the trial as a whole. But even in such an event, it is on the
basis of an appraisal of the whole trial that the question of whether
the case was given a fair hearing should be decided (cf. for example
No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).
As regards C's status as a witness the Government have
expressed doubts as to whether it would have been possible to impose
on C an obligation to give evidence which might deviate from her
previous statements. In this respect the Commission nevertheless finds
that C, who had been convicted and thus was no longer an accused or
co-accused person, must be considered a witness within the meaning of
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (cf. also Cardot
v. France, Comm. Report 3.4.90, para. 51).
As regards the fairness of the applicant's trial in the
absence of C the applicant submits that C was an important witness, as
shown by the fact that the prosecution itself initially wanted C
heard. The statement made by another witness in the High Court
indicates that C did not in her written statements tell the truth and
therefore it would have been essential for the outcome of the trial
that C was heard. However, although C's statements were used the
applicant did not get the opportunity to contest these or to examine
the witness C in court.
The Government submit that, as the applicant failed to request
an adjournment of the court proceedings with a view to summoning C as
a witness and failed to avail himself of the opportunity to protest
against the use of C's written statements as evidence, the courts had
reason to assume that he agreed to the hearing of the case on the
existing basis despite his previous request for anticipated evidence.
As he did not manifest his dissatisfaction with the nature of the
production of evidence the courts did not get an opportunity to
consider these issues. Furthermore, the Government maintain, C's
statements were only a minor element in the accumulated evidence and
the courts were fully aware of the secondary nature of this piece of
evidence.
With regard to the evidence of witnesses the Commission 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 in the light of its own case-law
and that of the European Court of Human Rights 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 Isgro judgment of 19
February 1991, Series A no. 194-A, para. 34).
Accordingly the Commission must examine whether the present
case offered such justification as it is clear that C was heard
neither in the City Court nor in the High Court.
The Commission recalls that C was expelled to the Netherlands
although her presence at the trial had been requested. The Danish
authorities are responsible for this situation. However, it does not
as such concern the fairness of the applicant's trial and, as pointed
out to the applicant by the Ministry of Justice by letter of 8 May
1987, it was eventually for the High Court to decide what effect this
would have on the applicant's trial.
The Commission furthermore recalls from the court transcripts
of the High Court that C had refused to return to Denmark in order to
appear as a witness during the applicant's trial. It would clearly
have been preferable if it had been possible to hear C in person but
her stand in this respect could not be allowed to block the prosecution.
Therefore the Commission finds that the prosecution had reason to
produce as evidence the statements submitted by her in court on 19
August and 6 October 1986 in connection with her own trial. In
addition the Commission notes that the High Court, having established
that the hearing of C would not be possible, tried as far as possible
to verify her statements by hearing the police officers involved in
her case as well as by hearing a witness which supported the applicant's
allegations.
The Commission has also noted that the High Court found the
applicant guilty without any direct reference to C's written statements
in its judgment and that the applicant did not at any stage consider
it essential to voice his dissatisfaction with their use as evidence
although he must have been fully aware of the consequences, in
particular in the light of the information he had received from the
Ministry of Justice on 8 May 1987.
Finally the Commission finds that, in particular during the
trial in the High Court, C's statements were far from the only
evidence in the case and it was also clear to the Court that these
statements could not at the outset be considered to be a reliable
source of information. In particular the High Court could rely on the
applicant's own version of the event which tallied with what he had
told the police. Furthermore, the investigating police officers could
explain the circumstances surrounding the arrest of C and the
applicant, and taped telephone conversations concerning the heroin
transaction were available. 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 respect of this evidence.
The Commission therefore does not find that the applicant's
conviction was based solely or essentially on C's statements, and the
limitation, which derived from her absence at the hearings, did not in
the Commission's opinion restrict the possibilities of the defence to
a degree that was irreconcilable with the Convention. Accordingly the
Commission does not find that the applicant's trial was unfair due to
the fact that C was not heard as a witness directly (cf also Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203).
b. In respect of this allegation of an unfair trial the applicant
has also complained under Article 6 (Art. 6) of the Convention that
the High Court refused to hear two further witnesses which were
readily available. The Commission finds that such a situation is
clearly distinguishable from the situation referred to above under a.
In principle it does not consider it contrary to Article 6 para. 3 (d)
(Art. 6-3-d) where a court, within its discretionary powers, refuses
to take evidence which is considered irrelevant (cf. No. 8417/78,
Dec. 4.5.79, D.R. 16 p. 200).
In the present case the Commission recalls that the High Court
refused to hear the two witnesses, i.e. the City Court prosecutor and
the applicant's defence counsel, as their "evidence" was considered
irrelevant in the light of the fact that High Court was called upon
directly to evaluate the contents and quality of the tapes in
question. The Commission finds no indications that the High Court in
these circumstances went beyond its proper discretion to refuse to
take evidence when refusing to hear the witnesses concerned.
Accordingly, this part of the complaint submitted under Article 6
(Art. 6) of the Convention has not disclosed any unfairness in respect
of the applicant's trial.
c. The Commission has finally considered the applicant's
complaint as regards the formulation of the indictment but has found
no basis for a finding that this influenced in any way the fairness of
the applicant's trial.
Summing up the Commission concludes that the applicant's
trial, when regarded as a whole, cannot be considered to have been
conducted in a manner contrary to Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) 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.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)