FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48668/99 by Aarno NIKKA against Sweden lodged on 22 April 1999

The European Court of Human Rights (Fourth Section), sitting on 25 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 22 April 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aarno Nikka, is a Finnish national, who was born in 1957 and lives in Stockholm, Sweden. He is represented before the Court by Ms K. Koorti, a lawyer practising in Stockholm. The respondent Government were represented by Mrs E. Jagander, of the Ministry for Foreign Affairs, as Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

The case concerns criminal proceedings brought against the applicant in relation to charges of assault and threats allegedly committed against his cohabitant, E., on 4 July 1996.

The same day E. reported the incident to the police. According to E., the relationship between her and the applicant had deteriorated over a period of time. The applicant had also started to drink during the days preceding the incident. During the evening of 4 July 1996 E. began to pack her belongings because she had decided to leave the applicant. The applicant became aggressive and put his finger in her mouth. He then pulled her to the floor, injuring the back of her head and her shoulder. E further stated that the applicant slapped her in the face and threatened to kill her.

The applicant admitted that they had quarrelled during the evening, but denied that he had assaulted or threatened E Instead, he alleged that E had fallen on the floor by accident. He also stated that he placed his hand over her mouth in order to prevent her from screaming.

The applicant was charged with the offences of “assault” and “unlawful threat” against E, who also joined her claim for compensation to those proceedings.

The applicant denied the charges at the hearing before the District Court trying the case, as well as civil liability to pay compensation, though he had already paid E certain sums totalling 7,210 Swedish kronor (SEK). E was heard before the court and maintained the statements she had made during the police investigation. The prosecutor also relied on a medical certificate and a photograph attesting to E’s injuries.

In its judgment of 26 July 1996 the District Court convicted the applicant and sentenced him to two-months’ imprisonment, and made him liable to pay compensation to E, not to exceed the amount (SEK 7,210) already paid.

The applicant appealed to the Court of Appeal.

The main hearing before the Court of Appeal was first scheduled to take place on 28 November 1996. On 20 November 1996, when an official of the Court of Appeal called the applicant at the apartment which used to be his and E’s home, E was present in the apartment and was informed of the date and place of the hearing. E was, however, not formally summoned to the hearing. In any event, E failed to appear at the main hearing on 28 November 1996 and the hearing was cancelled.

The trial hearing was postponed until 29 April 1997. However, E. was not notified of the hearing and it was cancelled. The parties were invited to give their views on whether it was necessary to take evidence from her again or whether the audio-tape recording of her testimony in the District Court could be played back. Both the prosecutor and the applicant were of the opinion that it was essential to take evidence from her also in the Court of Appeal.

3 March 1998 was then fixed as the new date for the hearing and E was notified of the summons. However, as she failed to appear and her testimony was deemed necessary, the hearing was cancelled. E. was ordered to pay a fine of SEK 2,000 and it was decided that next time she should be brought to the hearing by the police.

On 28 May 1998, as the attempt to fetch E. failed (she had not been notified of the hearing), the Court of Appeal cancelled the hearing since it was deemed necessary to take evidence from her. A new hearing was scheduled for 14 September 1998. The court ordered that E. be fetched and taken into custody a few hours in advance of the hearing in order to secure her attendance.

Subsequently, a hearing scheduled for 14 September 1998 was cancelled as it had not been possible to fetch E. and her renewed testimony was considered necessary. A new hearing was scheduled for 30 September 1998. The Court of Appeal ordered once again that E was to be fetched and that she could be taken into custody prior to the transportation to the court.

A sixth attempt to hold a hearing, on 30 September 1998, was also in vain since the police had failed to find E. The hearing was cancelled even though the prosecutor now claimed that E’s absence was no longer an impediment to holding a hearing. It was then decided to hold the hearing on 14 October 1998 and that the police should secure E’s attendance by fetching her and keeping her in custody a few hours before taking her to the court room.

The Court of Appeal finally held the appeal hearing on 14 October 1998, in E’s absence, as the police had not been able to fetch her. Under the Code, Chapter 35 section 13, the Court decided to go ahead with the hearing since all legal possibilities to secure E’s attendance had been exhausted and impediments therefore existed to her giving testimony once more.

The prosecutor invoked the audio-tape recording of her testimony previously given before the District Court. Defence counsel was of the view that E should be heard in person and that a new attempt to bring her to the Court of Appeal should therefore be made. However, counsel left it to the Court to decide whether E’s absence was an impediment to the holding of the hearing.

The Court of Appeal heard the applicant and an audio-tape recording of E’s testimony to the District Court. The evidence also included four letters that E had addressed to the defence counsel, the public prosecutor and the Court of Appeal respectively on 8 August and 18 November 1996 and 10 March 1998.

In her letter to defence counsel of 8 August 1996, which was only submitted by counsel to the Court of Appeal on 14 October 1998, E offered to take back all of what she had claimed previously against the applicant. She did not know how matters would evolve between them and thought that this was unimportant. In her view, the applicant had suffered enough by being detained on remand. She stated in addition that "I know, as he does, what he has done to me". E finally asked defence counsel to lodge an appeal against the District Court’s judgment and stated that she waived damages.

In her letter to the prosecutor of 18 November 1996, E stated that she had made a big mistake, had lied about what had happened, that her motive had been revenge and that she retracted everything she had stated in court.

Her letter addressed to defence counsel on the same date stated that her afore-mentioned letter to the prosecutor had not been worded in the right manner. When the event took place and the applicant "took hold of her", she had relived a rape that she had experienced as a girl. She had become very uncertain about what had actually occurred and thought that she might have mixed up the situations.

In her letter of 10 March 1998 to the Court of Appeal, E explained that she had lacked the financial means to attend its hearing on 3 March 1998. In her view, the police report was incorrect and this she had pointed out during the previous trial. Moreover, she claimed not to remember events that took place two years earlier in her and the applicant’s apartment.

In its judgment of 23 October 1998 the Court of Appeal upheld the District Court’s conviction and sentence of the applicant and, because of E’s statements, quashed the compensation order. It observed that the District Court had heard E extensively, for over an hour, and that the prosecutor, E’s counsel and the applicant’s counsel had asked her a large number of questions. The court went on to state:

“....[E.] maintained during the hearing the information that she had first given to the police and she did not give any contradictory answers. Her testimony in the District Court was full of details and gives the impression that she is talking about something that she indeed experienced. [E] had been eager not to exaggerate what happened. She had also pointed out that [the applicant] had not been violent previously and she also tried to give an explanation as to why he had acted as he did on the occasion in question. There is nothing to indicate that [E] should have any reason to tell lies about [the applicant].

[E] has stated in one of her letters that she sought revenge against [the applicant]. Nevertheless, she did not state why. [The applicant] has declared that he thinks that she would like to seek revenge on the ground that he called her a whore and that the relationship was over. It does not appear very likely that [E] would give false information deliberately for that reason.

As to the rest of the information given by [E] in the case, it is to be observed that her statements remained substantially the same, from her report to the police until her testimony before the District Court. Further, as regards the reliability of her statements, this must be considered as being strengthened by the medical certificate and the photograph. It appears unlikely that the injuries accounted for in the medical certificate had been caused by the course of events described by [the applicant].

The letters from [E] do not contain any information about what happened on the actual evening, but only the allegation that she had lied. In one of the letters she only stated that she had been uncertain about what had happened and that she could not remember the incident two years after. Her letters are vague and lacking in detail. In the light of these facts the court attaches no weight to [E’s] statements in the letters.”

The applicant appealed to the Supreme Court. On 21 December 1998 the Supreme Court refused leave to appeal.

COMPLAINTS

The applicant claims that he was not afforded a fair trial, as he was not given the opportunity to question E. before the Court of Appeal. He invokes Article 6 §§ 1 and 3 (d) of the Convention. Furthermore, he complains under Article 6 § 2 of the Convention alleging that the Swedish courts disregarded the presumption of innocence guaranteed by that provision.

THE LAW

1. The applicant complained that he had been the victim of a violation of Article 6 §§ 1 and 3 (d) of the Convention, which in so far as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... .

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 applicant stressed that the oral hearing of a witness is fundamental to a fair trial and takes precedence over written evidence. In this case E had not only withdrawn as an injured party claiming compensation but had in addition  made certain written statements in the form of letters to the effect that she had not told the truth at first instance and that the police had failed to carry out a proper investigation. The Court of Appeal could not assess the weight to be attached to E’s earlier statement as opposed to the new information provided by her without taking further oral evidence from her. Nor could the Court of Appeal refuse to take oral evidence from her as being unnecessary or worthless since the defence had requested that it do so. All the information given by her in her letters must have given the public prosecutor as well as the Court of Appeal good reasons for taking oral evidence from her.  Because the appeal hearing was held in E’s absence, the defence had no opportunity to put questions to her about the reasons for writing the letters concerned and their contents. Moreover, the Court of Appeal failed to take into consideration that, were she to be found to have lied before the District Court, she might be liable for false accusations under Swedish law.

In the applicant’s view the only conclusion that could be drawn from E’s letters was that their contents required her presence at a new oral hearing in order to ascertain what she meant, inter alia by stating that the police report was incorrect, what kind of trauma she had previously experienced and whether this could have influenced her to be able to maintain a self-experienced story in the lower court.

The Government pointed out that the present case differed considerably from those cases that had previously been before the Court in the context of Article 6 paragraphs 1 and 3 (d). In this case, the witness in question, E, had given extensive oral evidence before the District Court in the presence of the defence and answered a number of questions from the prosecution as well as the defence. However, after the District Court had delivered its judgment on 26 July 1996, E took back her story in a series of letters sent to different persons and to the Court of Appeal, but failed to appear a number of times, for which reason the appeal hearing was postponed.  As was evident from its judgment, the Court of Appeal assessed all the evidence before it, not only E.’s testimony before the District Court but also her letters that were invoked by the applicant. The applicant was thus convicted by the Court of Appeal on the basis of its own assessment of the evidence and did not result from any procedural deficiency or failure on the part of that court, in view of the demands of the Convention.

The Government further stressed that the information submitted by E before the District Court and admitted as evidence against the applicant in the subsequent proceedings before the Court of Appeal was by no means the only evidence. The evidence taken from E at the level of the District Court was corroborated by other, strong evidence. A medical certificate and a photograph taken of E only hours after the event were also invoked by the prosecutor and taken into account by the Court of Appeal.

Moreover, the Government observed, the Court of Appeal did everything within its power in accordance with domestic law in order to secure the injured party’s attendance at its main hearing. When it became clear that the hearing would eventually be held in spite of E’s absence, neither the applicant nor the prosecutor had an opportunity to put new questions to her and thus operated "under the same conditions". In the Government’s view, the present application in reality challenges the freedom and independence of domestic courts when it comes to the admissibility, assessment and evaluation of evidence in criminal proceedings, matters that are normally at the discretion of those courts. The Government maintained that there had been no breach of Article 6 § § 1 and 3 (d) and that the applicant’s complaint in this respect should be declared inadmissible as being manifestly ill-founded.

The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, amongst other authorities, S.N. v. Sweden , no. 34209/96, 2 July 2002, § 44; Perna v. Italy , 48898/99, 6 May 2003, § 29). All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with §§ 1 and 3 (d) of Article 6, 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 making his statements or at a later stage of the proceedings (see S.N. cited above, ibidem ). The Court further draws attention to the fact that Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see S.N. and Perna cited above, ibidem ); its essential aim, as indicated by the words “under the same conditions”, is a full equality of arms in the matter (see Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, § 91).

From the outset, it should be observed that the case at hand does not relate to an acquittal at first instance that was subsequently overturned on appeal but to a conviction and sentence at first instance which were both upheld on appeal (cf. Sigurþór Arnarssson v. Iceland , no. 44671/98, 15 July 2003, §§ 31- 38). Furthermore, it has not been contended that the rights of the defence were not respected before the applicant’s being convicted and sentenced by the District Court. Nor is there anything to indicate that this was not the case. When E appeared as the main prosecution witness at the District Court hearing, the applicant, represented by a defence counsel, had a full opportunity to challenge and question her in front of the court. In the light of the evidence and arguments adduced, the District Court found that E gave a consistent, detailed and balanced account of the event, which was further supported by medical and photographic evidence and was found credible.

These considerations must carry significant weight in the assessment of the shortcoming which allegedly occurred before the Court of Appeal namely, in that it upheld the applicant’s conviction and sentence by the District Court without taking oral evidence direct from the presumed victim E.

In the appeal proceedings, the only new evidence was the various letters that E had addressed to the applicant’s counsel, the public prosecutor and the Court of Appeal. Although their contents could reasonably be perceived as if E henceforth meant that she had lied about what had happened, an issue to be determined by the Court of Appeal was what weight should be attached to this new written evidence in the light of audio-records of that given by E orally as the main prosecution witness at first instance. On the various occasions when the Court of Appeal decided to postpone the hearing because of E’s absence and to use various means to compel her to appear before it, it had regard not only to the views of the defence but also to those of the prosecution that her presence was necessary. The oral hearing, initially scheduled for 28 November 1996, was postponed and cancelled a number of times, until it was held in E’s absence nearly two years later, on 14 October 1998, after the national authorities had done all they could reasonably be expected to do to secure her appearance (see Isgrò v. Italy , judgment of 19 February 1991, Series A no. 194-A, § 35). In this connection it should be borne in mind that the competent court was responsible under Article 6 § 1 for taking measures to ensure that the proceedings be concluded within a reasonable time (see Pafitis and Others v. Greece , judgment of 26 February 1998, Reports of Judgments and Decisions 1998-I, p. 458, § 93).

At the hearing on 14 October 1998, the Court of Appeal took oral evidence from both the prosecution and the defence and listened to audio - tape recordings of E’s witness statement to the District Court. As pointed out by the Court of Appeal in its judgment, this included her answers to numerous questions put by the prosecution, her own legal representative as well as counsel for the defence. Neither the prosecution nor the defence had the opportunity to put new questions to her but it was open to both parties to submit to the Court of Appeal whatever arguments they wished to make with regard to video-recorded evidence and other evidence, including the letters.

In the light of all of the above considerations, the Court does not find that E’s absence at the Court of Appeal’s hearing on 14 October 1998 meant that the defence was placed at a disadvantage or was not afforded full equality of arms vis-à-vis the prosecution.

Moreover, the Court of Appeal did indeed appraise itself of the importance of E’s letters and absence at the hearing for the establishment of the facts of the case. It found that the video-recorded evidence from the District Court hearing was not the only evidence against the applicant but was supported by a medical report on E and a photograph taken of her, shortly after the event (see, mutatis mutandis , Isgrò , cited above, § 35; and Asch v. Austria , judgment of 26 April 1991, Series A no. 203, § 30). The Court of Appeal found that it could not in the circumstances attach any weight to E’s subsequent letters, which contained no information about what had happened beyond stating that she had lied.

Thus the Court finds that, having regard to the proceedings as a whole, the Court of Appeal’s decision to go ahead with the hearing and to take evidence in the way it did clearly fell within its normal discretion in deciding on the relevance and admissibility of evidence and does not disclose any failure by the Swedish authorities to afford the applicant a fair hearing for the purposes of Article 6 §§ 1 and 3(d) of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 34 § 4.

2. The applicant further alleged a violation of Article 6 § 2 of the Convention, which reads:

“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant complained that a conviction and sentence at first instance may not normally be reversed on appeal unless the evidence in question, in this case E’s oral testimony, has been taken at the appeal hearing. Since the Court of Appeal decided to proceed with the case in E’s absence, this meant that it had found the applicant guilty even in advance of the appeal trial. In the applicant’s view, this was incompatible with Article 6 § 2 of the Convention.

The Government invited the Court to declare this complaint inadmissible.

The Court observes that it does not appear from the material submitted that the applicant invoked the substance of the above complaint before the Supreme Court and has exhausted domestic remedies as required by Article 35 § 1 of the Convention. Besides, referring to its findings above in relation to the applicant’s complaint under Article 6 §§ 1 and 3(d) of the Convention, the Court does not consider that the circumstances invoked by him under Article 6 § 2 disclose any appearance of violation of this provision. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3. It must be rejected in accordance with Article 34 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President