Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13926/88

by N.

against Denmark

The European Commission of Human Rights sitting in private

on 4 October 1990, the following members being present:

MM. S. TRECHSEL, Acting President

C.A. NØRGAARD,

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

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 5 May 1988

by N. against Denmark and registered on 9 June 1988 under file

No. 13926/88;

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 28 December 1989 and the observations submitted in

reply by the applicant on 16 March 1990;

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 an Iraqi citizen, born in 1957. When

introducing his application he was serving an eight year prison

sentence at Vestre Faengsel, Copenhagen, Denmark. Before the

Commission the applicant is represented by his lawyer, Mr. Jørgen

Jacobsen, Copenhagen.

A. The particular facts of the case

The applicant came to Denmark in 1986 and was granted asylum.

On 31 October 1987 he was arrested and charged with homicide under

Section 237 of the Danish Penal Code (Straffeloven). The trial took

place from 2 to 4 March 1988 before the High Court of Eastern Denmark

(Østre Landsret) sitting with a jury and three professional judges.

During the trial in the High Court the applicant was heard.

Furthermore the Court heard fourteen witnesses and written evidence

was submitted, including certain medical expert opinions. After the

hearing of evidence had finished the prosecutor, counsel for the

applicant as well as the applicant himself had the opportunity to

submit their conclusions to the Court, and the questions to be put to

the jury were agreed upon by the parties. The jury was asked to

consider four primary and six secondary questions. The presiding judge

then summed up the circumstances of the case and its legal aspects to

the jury in accordance with Section 893 of the Administration of

Justice Act (Retsplejeloven) after which the jury retreated to the

jury room to deliberate.

From the court transcripts it appears that the presiding judge

was called to the jury room in accordance with Section 895 of the

Administration of Justice Act. In this respect the court transcripts

state as follows:

(translation)

"The presiding judge was called to the jury room at 11.13 hours

and answered questions from the jury who wished to have an

elaboration of the term criminal intent.

The presiding judge left the jury room at 11.25 hours.

The presiding judge was called to the jury room at 13.25 hours.

The jury wished to know whether the possibilities of reducing

the sentence, as set out in Section 84 of the Penal Code,

would allow a sentence below the statutory minimum of the

law.

The presiding judge left the jury room at 13.40 hours.

The presiding judge was called to the jury room again at

14.25 hours.

The jury wished to have further details concerning the

voting procedure.

The presiding judge left the jury room at 14.40 hours.

The jury returned to the court room at 15.00 hours.

The presiding judge announced that he had been called to the

jury room three times and answered questions concerning the

interpretation of criminal intent, concerning the question

whether the possibilities of reducing the sentence, as set out in

Section 84 of the Penal Code, would allow a sentence below the

statutory minimum of the law and concerning the voting procedure."

Having deliberated the jury found the applicant guilty of

homicide under Section 237 of the Penal Code. Furthermore they

answered one question in the affirmative as regards the reduction of

the sentence in accordance with Section 84 subsection 1 no. 1 of the

Penal Code. The applicant was subsequently sentenced to eight years'

imprisonment, a sentence meted out jointly by the jury and the

professional judges.

The applicant appealed against the judgment to the Supreme

Court (Højesteret). He requested the Court to quash the judgment and

to send the case back to the High Court for renewed consideration. In

the alternative the applicant requested a reduction of the sentence

imposed.

On 4 May 1988 the Supreme Court rejected the appeal for the

following reasons:

(translation)

"Counsel, who has submitted that the presiding judge's

summing up was very neutral, has in support of his plea in

particular referred to the fact that the important parts of

the presiding judge's statements in the jury room must be

entered in the court records in accordance with Section 895

subsection 1, 4th sentence. An important aspect of the case

was the question whether (the applicant) had the intention

to kill or whether it was to be considered as bodily harm

resulting in death. As the court records do not indicate

anything about the presiding judge's answers to the jury's

questions, in particular the question concerning the

interpretation of the term criminal intent, the defence has

been prevented from evaluating whether the jury's verdict

was based on a wrongful legal instruction. Due to this

procedural error the case should be sent back to the High

Court for renewed consideration.

Four judges ... find:

The passages in the High Court transcripts do not fulfil the

requirements set out in Section 895 subsection 1, 4th sentence

regarding the entering in the records of the presiding judge's

statements. Having regard to this, compared with the

circumstances of the case, there is, however, no reason to

assume that fulfilling this requirement would have led to

another outcome of the case as required by Section 946

subsection 1. ... (T)hese judges therefore decide to reject

the request to quash the judgment.

As the sentence is found to be appropriate they vote in favour

of upholding the judgment.

Judge ... agrees with the majority that the entering in the

records does not fulfil the requirements of Section 895

subsection 1, 4th sentence of the Administration of Justice

Act and finds furthermore:

Section 895 subsection 1 of the Administration of Justice Act

was introduced as an exception to Section 898 regarding the

possibility to put questions to the presiding judge during the

court hearing with a right for the parties to demand that the

presiding judge's answer be entered in the records. From (the

travaux préparatoires) it appears that Section 895 subsection

1 was considered 'not to cause any problem when it is

observed ... that the important parts of the presiding judge's

statements in the jury room are entered in the records and may

constitute a basis for appeal like statements made during his

actual summing up of the case under Section 893 ...'.

One of the questions answered by the presiding judge concerned

the interpretation of the term criminal intent. This was of

central importance for the outcome of the case.

In these circumstances the non-observance of Section 895

subsection 1, 4th sentence should lead to the quashing of

the judgment and to the case being referred back to the

High Court."

B. Relevant domestic law

The relevant Sections of the Administration of Justice Act

read as follows (in translation):

Section 893:

"When the questions have been agreed upon the presiding judge

sums up the case and explains, where necessary, the questions and the

legal principles which shall form the basis for the answers. Where the

presiding judge finds it necessary copies of the questions are given

to the jury before he starts his summing up.

After the presiding judge has finished his summing up of the

case and before the jury retreats for their deliberations, both

parties may demand that particular parts of the presiding judge's

explanations as regards the legal principles are entered in the

records."

Section 895 subsection 1 :

"When the jury chairman finds that the jury has had

appropriate time for a preliminary discussion of the case, the actual

deliberations start. During these deliberations the presiding judge

shall be present in the jury room if at least five members of the jury

express such a wish in order to answer questions the jury might wish

to put to him concerning the case. In such circumstances he is

furthermore entitled to take the floor when he finds it necessary in

order to prevent the jury from making mistakes. When the presiding

judge takes the floor in accordance with these rules the clerk of the

court shall be called and enter the important parts of the statements

in (the records) of which the state prosecutor and the defence counsel

may demand a copy once the court has pronounced judgment. Where the

presiding judge finds it more appropriate he may decide to give the

jury the necessary information in accordance with the procedure set

out in Section 898."

Section 898:

"If doubts arise among members of the jury as regards the way

in which they shall proceed or regarding the meaning of the questions

asked or regarding the way in which their answers should be submitted,

or if they consider it necessary that further or amended questions are

asked, they may, in addition to putting questions to the presiding

judge in accordance with Section 895 subsection 1, request him in the

court room to inform them as required or see to it that the necessary

requests are taken care of. If it becomes necessary to decide upon

changes in or supplements to the questions or if the presiding judge

otherwise finds it necessary, the court proceedings shall be resumed

and the parties shall have the opportunity to submit comments."

Section 946:

"The non-observance or the incorrect application of procedural

rules shall not lead to the annulment of a judgment appealed against

unless it is considered very likely that the observance of the rule in

question could have led to a different outcome of the case."

COMPLAINTS

The applicant invokes Article 6 para. 1 of the Convention. He

is of the opinion that he did not get a fair trial due to the

procedural error committed by the High Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 May 1988 and registered on

9 June 1988.

The Commission decided on 12 October 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 28 December

1989 and the applicant's observations in reply were submitted on

16 March 1990.

Legal aid was granted to the applicant by the Commission on

18 May 1990.

THE LAW

The applicant has complained of his conviction by the High

Court of Eastern Denmark, a conviction which in his opinion was based

on such a procedural error that his right to a fair trial secured to

him under Article 6 (Art. 6) of the Convention has been violated.

Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in

the interests of morals, public order or national security

in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The Government contend that the applicant received a trial

fully consonant with the provisions of the Administration of Justice

Act since the Supreme Court, while dealing with the applicant's

appeal, looked specifically into the question of whether the missing

entry of the presiding judge's statements to the jurors should call

for remission of the case for re-trial by the High Court.

The Government do not consider themselves better qualified

than the Supreme Court when it comes to evaluating the legal aspects

of the case and conclude, therefore, that the error committed has not

led to an outcome different from what would have emerged had the rule

of the Administration of Justice Act been observed.

The Government submit, moreover, that while recording pursuant

to section 895 subsection 1 of the Administration of Justice Act is a

technicality meant to offer protection under the law the rule is over

and above what is required to fulfil the conditions set out in Article

6 (Art. 6) of the Convention regarding fair trial. The legislation of

individual Member States features a range of procedural rules,

stemming from historic, practical, technical or economic factors,

aimed at providing guarantees of a fair trial. But not every rule is a

necessary element of Article 6 (Art. 6). In Denmark, the vast majority of

criminal cases is heard by courts of lay assessors where a legally

trained judge together with two lay judges, or three legally trained

judges and three lay judges, jointly decide on legal and evidentiary

issues. The Administration of Justice Act requires a voting procedure

in these trials according to which the lay judges shall always vote

first and the presiding judge last. The reason for this rule is to

safeguard the integrity of the lay judges but the parties of the case

are left ignorant of whether the rule is complied with since the

voting records are, as in cases heard by a jury, not open to the

public. There is, in other words, no record for inspection by the

public. As a result it will be difficult for the parties to

substantiate any infringement of the said rule.

This demonstrates, so the Government maintain, that procedural

errors do not always lead to the reversal of a judgment, nor should

they, and that failure to comply is not necessarily of relevance for

an evaluation based on Article 6 (Art. 6).

The applicant submits that the case-law of the Commission and

the European Court of Human Rights shows the central importance of

Article 6 (Art. 6) of the Convention. The essential principle is that

not only shall the accused receive a fair trial de facto, but the

trial shall also appear fair, i.e. justice must be seen to be done.

The purpose of the rule regarding the recording of the presiding

judge's statements under Section 895 subsection 1 of the

Administration of Justice Act is to guarantee an accused a fair trial

and it cannot be ascertained in advance whether a given rule generally

speaking goes further than what is required to meet the requirements

of Article 6 (Art. 6). The decisive point is whether the accused

received in concrete terms a fair trial.

The applicant further maintains that the main issue in the

present case, as it stood before the national courts, was the

understanding of the term criminal intent and disregarding the

Administration of Justice Act when examining this question was not a

mere formality but resulted in a materially unjust outcome since no

evidence was produced to justify interpreting the term criminal intent

in such a way that intent to kill could legitimately be deduced.

The importance of the rule of receiving the presiding judge's

statements is also exemplified, the applicant submits, by the fact

that his statements may constitute the basis for an appeal, a

possibility which the applicant was deprived of. It is undisputed that

a procedural error was committed, an error in the application of

procedural rules enacted to secure to an accused a fair trial. The

"secret" guidance given to the jury and the circumstances of the case

as a whole accordingly meant that the applicant did not receive a fair

trial within the meaning of Article 6 (Art. 6) of the Convention.

The Commission recalls that according to Article 19 (Art. 19)

of the Convention, the duty of the Commission and of the European

Court of Human Rights is to ensure the observance of the engagements

undertaken by the Contracting States in the Convention. In

particular, it is not their function to deal with errors of fact or of

law allegedly committed by a national court unless and insofar as they

may have infringed rights and freedoms protected by the Convention

(cf. Eur. Court H.R., Schenk judgment of 12 July 1988, Series A

no. 140, p. 29, para. 45).

While Article 6 (Art. 6) of the Convention guarantees the

right to a fair trial, it does not lay down any rules concerning the

national courts' internal procedure, which is therefore primarily a

matter for regulation under national law. In particular, none of the

Convention's provisions expressly requires that the presiding judge's

statements to a jury be entered in the court transcripts. Nevertheless

the Commission cannot exclude that the non-observance of such national

rules may raise an issue under Article 6 (Art. 6) of the Convention

for which reason the Commission must ascertain whether the applicant's

trial was fair within the meaning of this provision.

In this connection the Commission refers to its consistently

held view that the conformity of a trial with the rules laid down in

paragraph 1 of the above-mentioned Article 6 (Art. 6-1) should be

examined in the light of the entire trial. It is true that one

particular aspect or incident could have been influential or assumed

such importance as to constitute a decisive factor in a general

appraisal of the trial as a whole. But it is important to note in

this regard that, 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).

In the present case the Commission recalls that the

applicant's trial lasted from 2 to 4 March 1988 during which time the

High Court of Eastern Denmark sitting with a jury heard fourteen

witnesses. In addition the applicant, who was represented by counsel,

had the opportunity to address the Court and to submit whatever he

found relevant to the outcome of his case. Nothing has emerged during

the Commission's examination of the case which could lead to the

conclusion that the hearing of evidence was in any way contrary to the

concepts of a fair trial as envisaged by Article 6 (Art. 6) of the Convention.

Nor has it been alleged that the subsequent summing up of the case by

the presiding judge infringed the applicant's rights under this

provision.

What remains at issue is the fact that the presiding judge at

the request of the jury for a period of 12 minutes explained to the

jury in camera the term criminal intent within the meaning of the

Danish Penal Code without this being properly recorded as prescribed

in the Administration of Justice Act.

As regards the question of any influence this might have had

on the jury, the Commission finds that it cannot deal directly with

this point under the Convention, as it is impossible to ascertain why

the jury replied as it did to the questions concerning the applicant's

guilt. Furthermore, whether the jury appraised the evidence and the

law correctly or incorrectly is, as already indicated above, a

question which lies beyond the competence of the Commission as

established by the Convention.

It cannot be inferred from the fact that the recording of the

presiding judge's explanations to the jury is made mandatory in Danish

law, that a non-observance of this rule would be contrary to Article 6

para. 1 (Art. 6-1) of the Convention. Furthermore, the legal concept

of criminal intent, which is entirely a matter for the national courts

to determine, was not decided upon by the jury in circumstances where

the applicant was at any disadvantage vis-à-vis the prosecution.

Accordingly, the Commission's examination of the case as a whole has

established that the evidence produced for or against the applicant

was presented in such a way as to ensure a fair trial and that, in

particular, the equality of arms in this respect was respected.

In these circumstances the Commission finds that the

applicant's trial, when regarded as a whole, cannot be considered to

have been conducted in a manner contrary to Article 6 para. 1

(Art. 6-1) 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 Acting President of the Commission

(H. C. KRUGER) (S. TRECHSEL)

Menu

N. v. DENMARK

N. v. DENMARK

LEXI