Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17168/90

by Gabor NEMET

against Sweden

The European Commission of Human Rights sitting in private

on 7 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 14 August 1990

by Gabor NEMET against Sweden and registered on 19 September 1990

under file No. 17168/90;

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 applicant is a Hungarian citizen, born in 1954. He

resides in Sweden. For the time being he is serving a sentence of

seven years imprisonment. Before the Commission he is represented by

his lawyer, Mr. Per Svensson, Njurunda, Sweden.

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

summarised as follows.

On 26 January, 4 February and 23 February 1987 the Swedish

Police held interviews in the Netherlands with a Hungarian citizen,

J.O., who had been arrested there. At the interviews, J.O. gave

himself up as being one of the robbers in a robbery which took place

on 22 September 1986 at Stuvsta, a suburb of Stockholm. J.O. stated

that he, the applicant and a third Hungarian, J.N., had committed the

robbery.

Subsequently, the applicant was prosecuted at the District

Court (tingsrätten) of Huddinge for inter alia the robbery. The

prosecutor claimed in essence the following: The applicant had

together with two other men [J.O. and J.N.] decided and planned to

commit an armed robbery at a bank at Stuvsta. The robbery was

committed on 22 September 1986. The previous night the applicant and

the two others went to Stuvsta in a car. The applicant and J.O. broke

into the bank, each of them armed with a sawn-off shotgun. In the

morning the two men, who were masked, overpowered the arriving bank

clerks and had them tied up with tape. One of the clerks was forced to

open the vault. The robbers managed to get away with approximately

1,5 million SEK (Swedish Crowns). They escaped together with the

third man [J.N.], who was waiting outside. The stolen money was shared

between the three of them.

There was a hearing at the District Court. The applicant, who

was present, denied that he had anything to do with the robbery.

Neither J.O. nor J.N. were present at the hearing. However,

the three police reports containing the interviews with J.O. were

invoked by the prosecutor and read out at the hearing. The two

policemen, L.-G.J. and N.E., who had conducted the interviews were

heard. Furthermore, the four bank clerks concerned were heard as well

as two other witnesses.

The applicant admitted that he knew J.N. and J.O. The latter

he had met earlier in a prison in Sweden. He had no explanation for

the statements made by J.O. The applicant further stated that during

the period of 13 December 1985 - 27 January 1987, when he was on the

run from prison in Sweden, he had earned his living inter alia by

undeclared work and that some money (87,000 SEK) that was found when

he was arrested, derived from this work.

In its judgment of 28 December 1988 the District Court stated

inter alia the following:

(translation)

"When considering the question of guilt the Court finds that

the applicant essentially has refused to answer questions.

[The applicant], who has been on the run from prison since

September 1986, has not even tried to provide an alibi for the

relevant period of time.

...

The statements made by J.O. at the interviews in the

Netherlands are of great importance when deciding the

question of guilt.

...

When examining the police reports more closely, the Court

finds that the statements of J.O. are very detailed and that

the contents strongly indicate that J.O. himself took part

in the relevant course of events.

Considering whether the statement of J.O. can be used in

order to find [the applicant] guilty of the robbery the

Court notes [inter alia] that it was not possible to have

J.O. examined before a Swedish Court. [The applicant's]

lawyer had not had the possibility to put questions to J.O.

Therefore the Court must be very careful when evaluating the

strength of J.O.'s statements. Only when they are supported

by other evidence invoked, the statements can be used in a

judgment against [the applicant].

In accordance with the statements of [the bank clerks and a

policeman] it is without any doubt that the course of events

concerning the robbery was similar to what the prosecutor

has alleged. The statements of J.O. are in all important

parts essentially consistent with this scenario. As an

example it could be mentioned that J.O. described that he

first tried to drill a hole into the bank, but failed. This

is in accordance with what the policeman who examined the

bank observed. Further examples are J.O.'s statements

on how and in what order the bank clerks were overpowered

and how the robbers took the money.

...

To sum up, the Court finds that the statements made by J.O.

are so detailed and that they get such a support from other

evidence in the case that they must be considered as being a

correct description of the robbery.

There is nothing to indicate that J.O. should have any

reason for reporting [the applicant] on false grounds. [The

applicant] has no alibi and he has not co-operated in the

investigation at all. What he has alleged about the 87,000

SEK, is not probable.

All in all the Court finds that the statements of J.O. are

getting so much support from other circumstances that it is

without any doubt that [the applicant] was one of the

persons committing the robbery."

The applicant was found guilty of inter alia aggravated

robbery. He was sentenced to seven years imprisonment and ordered to

pay 1,368,000 SEK in damages to the bank and 10,000 SEK to each of

two bank clerks.

The prosecutor and the applicant appealed against the judgment

of the District Court to the Svea Court of Appeal (Svea hovrätt), the

prosecutor applying for an increased sentence and the applicant

claiming that he should be acquitted or, a least, that the penalty

should be reduced.

In addition the applicant alternatively claimed the following:

1. The Court should not allow the prosecutor to invoke the police

reports containing the interviews with J.O.

2. The Swedish authorities should make a request for the

extradition of J.O. to Sweden in order to ensure his presence at the

hearing before the Court of Appeal.

3. The Court of Appeal judges, the applicant's counsel and the

prosecutor should be present if there were to be a separate hearing of

J.O. before a Belgian Court. (At the time of the proceedings in the

Svea Court of Appeal, J.O. was in prison in Belgium where he served a

life sentence.)

4. At least the applicant's counsel and the prosecutor should be

present at such a separate hearing before a Belgian Court.

A Swedish request for the extradition of J.O. to Sweden was

rejected by the Belgian authorities.

Subsequently, in a decision of 31 March 1989, the Svea Court of

Appeal stated:

"The Court considers that taking of evidence at a Belgian

Court is the best available possibility and decides

accordingly as there are particular reasons (synnerliga

skäl) at hand for the taking of such evidence."

The prosecutor and the applicant's lawyer were invited to submit

questions in writing to the Court of Appeal to be asked at the Belgian

Court.

Later, it was known that according to Belgian law a defence

counsel was not allowed to be present at an examination before a

Belgian Court. Therefore, the applicant objected to the Svea Court of

Appeal against the taking of evidence at a Belgian Court unless his

counsel was allowed to be present at the examination. Furthemore, his

counsel submitted a list of questions he wished to be put to J.O. and

reserved the possibility to ask supplementary questions.

In a decision of 7 June 1989 the Svea Court of Appeal decided

to maintain its decision of 31 March 1989. The Court stated that it

had no competence to decide who should be present at a hearing before

a foreign court.

On 9 and 10 November 1989 J.O. was heard before the Belgian

Court.

On 11 December 1989 the Svea Court of Appeal started the

hearing in the case. The applicant's lawyer invoked an obstacle to

the hearing (hinder mot huvudförhandling) on the ground that the

interrogation of J.O. in Belgium was not reliable as evidence. After

delibarations the Court stated:

(translation)

"The taking of evidence in Belgium is in accordance with

Swedish law. It does not concern an anonymous witness. [The

applicant] has had the possibility to put questions to J.O.

through his lawyer. The question of the reliability of

J.O.'s testimony will later be examined by the Court in the

light of the other evidence adduced. There are no reasons to

change previous decisions to admit J.O.'s statements as

evidence before the Court. There is accordingly no obstacle

to a hearing."

At the hearing before the Svea Court of Appeal, which was on

11 and 13 December 1989, all the witnesses and victims heard by the

District Court were heard again. The questions put to J.O. and his

answers at the examination before the Belgian Court were read out.

Some parts of the police reports containing the interviews with J.O.,

in the Netherlands, were invoked by the applicant.

The applicant invoked as new evidence a doctor's certificate

(läkarintyg enl 7 § lagen om personundersökning i brottmål)

originally used in a criminal case in 1980 in Sweden against J.O.

The certificate stated that J.O. is inter alia "subsolid" (verbally

talented, imaginative, opportunistic, unreliable, a duper, attracted

to things being unusual and sensational), "super-valid" (full of

energy and enterprise) and "super-stable" (insensitive).

In its judgment of 22 December 1989 the Svea Court of Appeal

stated inter alia:

(translation)

"[The applicant] has essentially refused to answer

questions. He claimed that the confiscated money - 87,000

SEK - originates from another robbery in which he took

part. He believes that J.O. reported him as a revenge.

...

At the interrogation before the Belgian Court, J.O. has

explained in detail how he and [the applicant] robbed the

bank while J.N. was waiting in an escape car. J.O. has

essentially confirmed what he previously told the police.

...

There is no technical evidence nor are there witnesses'

statements that link [the applicant] with the robbery or its

preparation. It is, however, clear that [the applicant],

J.O. and J.N. were in the area of Stockholm at the relevant

time and that they knew each other before then. The

observations of the bank clerks do not exclude that [the

applicant] was one of the robbers. Both J.O. and [the

applicant] have been convicted for armed robbery before.

J.O. has also confessed other robberies during 1986.

...

There are a number of aggravating circumstances against [the

applicant] which he has refused to comment upon, i.e. the

money hidden in the flat and the packet in J.M.'s safe

deposit box, the possession of typical robbery equipment

(inter alia a sawn-off shotgun and a pistol with ammunition

and tear-gas spray) and his contacts with J.N. In addition

there is [the applicant's] trip to Norway together with J.M.

at the end of September 1986 in order to buy weapons.

...

It is in the light of these circumstances that the

statements of J.O. should be considered. The examination of

J.O. in Belgium took place before an investigating judge.

J.O. was asked more than 70 questions and has essentially

confirmed what he has stated on several previous occasions.

The witnesses L.-G.J. and N.E., who are investigating

policemen with great experience, have considered the answers

of J.O. as being truthful and without any subsidiary

motives. N.E. has added that J.O. also reported four other

robberies during 1986 and that his statements, so far, have

not been refuted. Concerning these robberies J.O. has named

many other perpetrators. [The applicant's] assumption that

J.O. wanted to take revenge on him by having him wrongly

convicted is not very likely. There is nothing to indicate

that J.O. is lying about the robbery. [The applicant's]

refusal to speak about what he was doing during the time of

the robbery and to comment upon the circumstances against

him therefore strikes back on him. His explanation about the

hidden money is not convincing.

...

To sum up, the Court holds the following. Except for [the

applicant's] denial there is nothing that speaks against the

conclusion that he took part in the robbery. On the

contrary, there are a number of circumstances indicating

that he is one of the robbers. The statements of J.O. must

be considered as being reliable in all important parts. The

Court finds the evidence against [the applicant]

convincing..."

The Svea Court of Appeal thus upheld the judgment of the

District Court in its relevant parts.

The applicant appealed to the Supreme Court (Högsta

domstolen), which on 20 March 1990 granted leave to appeal only

concerning the question whether the decision of the Svea Court of

Appeal of 31 March 1989 to order the taking of evidence before a

Belgian Court was in accordance with the 1946 Act on Taking of

Evidence before a Foreign Court (lagen (1946:817) om bevisupptagning

vid utländsk domstol), and decided that the remainder of the case

remain pending before the Supreme Court awaiting its decision on this

particular point.

In this respect the applicant argued that the 1946 Act was not

applicable to the examination of an accomplice.

In a judgment of 11 May 1990 the Supreme Court stated that the

interrogation of J.O. before the Belgian Court was in accordance with

Swedish law as the 1946 Act should be interpreted to cover the

examination of an accomplice. The Supreme Court found no reason to

grant leave to appeal in respect of the remainder of the complaint and

therefore upheld the judgment of the Svea Court of Appeal of

22 December 1989.

In a dissenting opinion two of the five judges in essence

argued that further examination of the case would be necessary before

deciding whether the taking of evidence before the Belgian Court was

in accordance with Swedish law. They therefore suggested that the

Supreme Court grant leave to appeal for the whole case and that a new

hearing be held.

COMPLAINTS

The applicant complains that he did not get a fair trial as he

was convicted on the basis of statements made by the accomplice, J.O.,

who was not present at the hearing. Furthermore, he complains that

J.O.'s statements were made before an investigating judge at a Belgian

Court without him or his counsel being present and without a

possibility to ask J.O. supplementary questions. The applicant also

complains that the decision to have J.O. questioned by a Belgian judge

was not in accordance with Swedish law. He invokes Article 6 paras. 1

and 3 (d) of the Convention.

THE LAW

1. The applicant complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that he did not get a fair trial

as he was convicted on the basis of statements made by the accomplice,

who was not present at the hearing, that the statements were made

without him or his counsel being present and without a possibility for

him to ask supplementary questions. Article 6 (Art. 6) in so far as

relevant reads:

"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; ..."

As the guarantees contained in paragraph 3 of Article 6

(Art. 6-3) are specific aspects of the right to a fair trial set forth

in paragraph 1, the Commission will consider the complaint under the

two provisions taken together (cf. Eur. Court H.R., Asch judgment of

26 April 1991, Series A no. 203, para. 25).

Although J.O. was questioned as an accomplice, he should for

the purposes of Article 6 para. 3 (d) (Art. 6-3)d) be regarded as a

witness - a term to be given an autonomous interpretation (Eur. Court

H.R., ibid.) - because the Court of Appeal took account of his

statements, which were read out at the trial.

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law and, 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

(Eur. Court H.R., ibid., para. 26).

The Commission further recalls that according to constant

case-law all the evidence must normally be produced in the presence of

the accused at a public hearing with a view to adversarial argument.

This does not mean, however, that the statement of a witness for it to

be admitted in evidence must always be made in court and in public; in

particular, this may prove impossible in certain cases. The use of

statements obtained at the pre-trial stage is not in itself

inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-1,

6-3-d), provided that the rights of the defence have been respected.

As a rule, these rights require that the defendant be given an

adequate and proper opportunity to challenge and question a witness

against him, either when he is making his statements or at a later

stage of the proceedings (Eur. Court H.R., ibid., para. 27).

In the present case the Swedish authorities tried to have J.O.

extradited to Sweden in order for him to give evidence before the

Court of Appeal. However, he served a life sentence in Belgium and

the request was refused. Therefore the Court decided to have him

questioned by a Belgian Court, this being the best available

possibility. The Commission considers that it would clearly have been

preferable if it had been possible to hear J.O. in person, but in the

circumstances, this could not be done. Subject to the rights of the

defence being respected, it was therefore open to the Svea Court of

Appeal to have regard to the statements made by J.O. before the

Belgian Court, in particular in view of the fact that it could

consider them to be corroborated by other evidence (cf. Eur. Court

H.R., ibid., para. 28).

The applicant and his counsel were not, according to Belgian

law, allowed to be present when J.O. was questioned. On this

situation, however, the Swedish Court had no influence. Both the

prosecutor and the counsel of the applicant submitted questions in

writing to be asked at the Belgian Court. The previous statements of

J.O. from the pre-trial stage were then available to them. J.O. was

asked more than 70 questions. In his answers he essentially confirmed

what he had stated earlier. His statements were detailed. The

defence had the possibility to criticise the statements before the

Court of Appeal. In these circumstances, the Commission finds that

the rights of the defence have been sufficiently respected on this

point.

Furthermore, the Commission notes that, although the

statements in question were of great importance in the case, which the

Svea Court of Appeal was well aware of, the Court also considered

other circumstances - i.e. the hidden money, the packet in a safe

deposit box, typical robbery equipment that was found, etc. - when

evaluating the statements of J.O. Moreover, the bank clerks and the

investigating policemen were heard. The statements of J.O. were thus

not the only evidence on which the Svea Court of Appeal based the

conviction.

In the light of these circumstances, the Commission does not

find that the limitation, which derived from J.O.'s absence at the

trial, restricted the possibilities of the defence to a degree

irreconcilable with the Convention. Accordingly, the Commission

does not find that the applicant's trial was unfair.

2. As regards the question whether the decision to take evidence

at a Belgian Court was in accordance with Swedish law, the Supreme

Court gave an affirmative reply. The admissibility of evidence is

primarily a matter for regulation by national law, and it is, as a

rule, for the national courts to assess the evidence before them (Eur.

Court. H.R., Asch judgment of 26 April 1991, Series A no. 203, para.

26). This is therefore not a task incumbent on the Commission.

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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NEMET v. SWEDEN

NEMET v. SWEDEN

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