FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32231/96 by Gísli KONRÁÐSSON against Iceland

The European Court of Human Rights (First Section) , sitting on 3 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 September 1995 and registered on 12 July 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is an Icelandic citizen, born in 1960 and resident in Reykjavik.  Before the Court he is represented by Mr Ragnar Aðalsteinsson , an advocate practising in Reykjavik.  The respondent Government are represented by their Agent, Mr Thorsteinn Geirsson , Director General, Ministry of Justice and Ecclesiastical Affairs.

The facts of the case, as described mainly in the domestic courts’ judgments, may be summarised as follows.

On 24 November 1989, the applicant drove his car along a country road up a slope, and met three lorries travelling at short intervals in the opposite direction.  As the applicant met the third lorry he lost control of his car which went off the road, which went unnoticed by the lorry drivers.  The car went over a patch of stony gravel, came to a halt at a fence and was damaged.  His head was knocked against the windscreen; he lost consciousness and was taken to hospital.

The applicant instituted proceedings against the company that owned the lorries and its insurance company before the District Court of Reykjavik and requested compensation for the damage to his car and the loss of its use, claiming that the third lorry was being driven unduly fast and very carelessly.  According to the applicant when he noticed the lorries he reduced his speed from 50-60 km to approximately 20 km per hour.  The third lorry drove so far over to the applicant’s side of the road that the applicant had been forced to the edge and off the road.  The applicant had stated that he drove on radial tyres of the so-called all year type.

The respondents disputed that the accident could be attributed to any facts for which they were responsible and challenged the applicant’s assertion that the driver of the third lorry had failed to yield to the side and was travelling at high speed.  While the lorry drivers had been travelling as slowly and carefully as possible under the circumstances, the applicant had himself acknowledged in the police reports that he had been travelling at 50-60 km per hour.  There was no evidence as to the position on the road of the respective vehicles when they met.  In any event the applicant was in part responsible, as he had driven with summer tyres at a considerable speed on a slippery road.

According to the applicant, during the proceedings before the District Court he had submitted certain evidence, mainly police reports, in support of his statement of the facts of the case, which counsel for the defendant had stated was a correct presentation of the facts.  Moreover, counsel for each party had the following declaration recorded:

“That they are in agreement to base their case on the statements given by witnesses as if they had been confirmed in court, should witnesses be unable to appear before it.”

By judgment of 19 February 1993 the District Court ordered the respondents to pay the applicant approximately ISK 572,000 in compensation plus an amount for legal costs.

In its judgment the District Court observed that, while the applicant was driving up the slope at Glerárskógar , he met three lorries driving in succession down the slope in a southerly direction.  According to the statements of witness E., who was driving at a short distance in front of the applicant’s car, and of witness M., who observed the events at a distance of 200 to 300 metres, the vehicles proceeded fast, in spite of the fact that the road was slippery and narrow compared to their size.  The drawing made by Dalasýsla police indicated that the road was 3 metres wide and flanked by gravel shoulders 0.70 metre wide at the point where the applicant’s car went off, while the rearmost lorry was 2.48 metres wide.  The District Court further observed that the road was covered with a thin layer of snow and was slippery.  The driver of the leading lorry stated that its speed was approximately 50 km per hour, the driver of the second lorry stated that its speed had been 30-40 km.  Given the conditions at the scene and, in particular, the third lorry’s width, its speed was deemed excessive.  Considering witness E.’s statement that the lorry had not been swung to the side to make room for the applicant’s car and police officer S.G.’s report to the effect that no evidence had been found to the contrary, the District Court upheld the applicant’s assertion that its driver had failed to observe the relevant provisions of the Road Traffic Act.  It found it not established that the applicant’s car had been inadequately equipped.  Nor could he be considered to have driven with such lack of care as to make him partly responsible for the accident.

The company that owned the lorries and the insurance company appealed to the Supreme Court.

By judgment of 5 March 1995 the Supreme Court found for the appellant companies.

In reaching this conclusion the Supreme Court observed that the facts of the case were not adequately described in the District Court’s judgment.  It considered the various items of evidence in the case, notably the initial report of the Dalasýsla Police, which quoted statements by the applicant and witnesses M. and E., subsequent witness statements taken by the police from M. and E. and the latter’s testimony to the District Court, statements taken by the police in May 1990 from the three lorry drivers, and a police report of 3 April 1990.  The Supreme Court noted, inter alia , the following.

In the initial police report it was indicated that the applicant’s car was equipped with summer tyres but that, according to his own statement he had been driving with radial tyres.  The driver of the rearmost lorry had stated that he had proceeded as closely to the road edge as possible and that the applicant had done the same, that the estimated speed of the lorries was 20-30 km per hour and that the slippery condition of the road was the only factor requiring caution.  None of the lorry drivers had noticed the applicant’s mishap.  Nearly 1 month after the accident witnesses M. and E. had made statements to the effect that they were unable to say where on the road the rearmost lorry had been while meeting the applicant’s car, whereas in later statements they had indicated that the lorries proceeded on the middle of the road.  Five months after the event witness M. had stated that the lorries proceeded at high speed, while witness E. had not, until the District Court’s hearing, commented on the speed but without being able to do so with any accuracy.  In the view of the Supreme Court, the above witnesses were in a poor position to observe clearly the events leading to the accident and exactly how the danger had developed; this reduced the evidential value of their statements.

Moreover, the Supreme Court noted a number of deficiencies in the initial police report (of November 1989) and the drawing of the scene appended to it, including on such matters as tyre tracks, the absence of a scale, an indication of the time of the police’s arrival at the scene and, in particular, the road dimensions.  According to the road measurements reproduced in the police report, the width of the permanent road surface was 3 metres, and the width of each road shoulder 0.7 metre, making a total width of 4.4 metres.  The lorries had been 2.48 metres wide, and the applicant’s car 1.67 metres wide.  According to the drawing the vehicles thus had a surplus space of 0.25 metre within which to pass.  This made it clear to the Supreme Court that the road dimensions indicated could not be accurate and that the drawing had little evidential value as regards the circumstances at the scene.

The Supreme Court concluded that the applicant should have been aware that it would be difficult and risky to pass so large and voluminous vehicles on the slope, as the road could be assumed to have been narrow and his car was not perfectly equipped for winter driving.  He should have stopped his car as close to the edge as possible and waited there until the lorries had passed, as he clearly was in a better position to yield and make room on the road.  Instead he drove without hesitation up the slope, regardless of success or failure.  By this conduct he had obviously endangered his own car and safety.  He had failed to establish that the lorries proceeded too fast or unduly on to his side of the road and that the accident could be traced to any other cause than his own inadvertence.

On 29 May 1995 the applicant requested the Supreme Court to reopen the proceedings, which the latter refused on 12 July 1995.

COMPLAINTS

The applicant complains that while the parties had agreed that the police reports should constitute a factual basis for the resolution of the dispute between them, the Supreme Court had disregarded this evidence without having given them an opportunity to adduce further evidence before determining the case.  He in essence complained that he had therefore not been afforded a fair hearing as required by Article 6 § 1 of the Convention.

THE LAW

The applicant complained in essence that he had not been afforded a fair hearing before the Supreme Court and that, consequently, there has been a violation of Article 6 § 1 of the Convention, which in as far as is relevant, reads:

“In the determination of his civil rights ... everyone is entitled to a fair ... hearing … by [a] … tribunal...”

The applicant maintained that, during the proceedings before the District Court, he submitted certain evidence, mainly police reports, in support of his statement of the facts of the case.  The adversary party had accepted the police reports and had stated to the District Court that the facts so presented were correct and that no further evidence was needed.  The parties had made a formal declaration to the effect that the statements to the police should form the basis of the case as if they had been made in court.  Moreover, the parties were in agreement as to the evidentiary value of the police officers’ written statements on the factual situation at the scene of the accident which they had investigated immediately after the accident.  The District Court had based its decision on these facts and, as the parties were in agreement, there was no need to adduce further evidence under the relevant provisions of Icelandic procedural law.  At the Supreme Court’s hearing counsel for the appellants had stated specifically that the police reports should be accepted as regards the facts of the case and had submitted no evidence questioning the accuracy of the reports.  Otherwise the applicant would, of course, have adduced further evidence and had the relevant police officers and witnesses heard.  However, for unknown reasons, the Supreme Court doubted the evidential value of the police reports.  After having held a hearing but without having given the applicant an opportunity to establish the correctness of the evidence, it decided to disregard the facts of the case as agreed by the parties and reversed the District Court’s judgment on the basis of its own erroneous speculation about the facts.  Thus, by being deprived of an opportunity to present additional evidence, which would have been easily available, he was not afforded a fair hearing in violation of Article 6 § 1 of the Convention.

The Government disputed the applicant’s allegation that the proceedings gave rise to a violation of Article 6 § 1 of the Convention.  The Supreme Court had rejected the applicant’s claim on the basis of its finding that he had failed to establish on the evidence that the accident in question was to be linked to any other causes than his own inadvertence.

The Government disagreed with the applicant’s views as to the contents and effects of the declaration entered on the District Court record.  In their view, the case file did not lend support to his contention that the case was to be resolved on the basis of facts referred to in the police report concerning the scene or other information.

The Government further submitted that, even if parties to civil proceedings may agree to make an entry into the court record that certain facts described in a police report are undisputed and shall be used as a basis for the resolution of the dispute, this could not tie the court’s hands if it was clear that a mistake had occurred or that a description of the facts was inaccurate, such as the road measurements in the initial police report.  Although a police report would normally constitute important evidence on the scene of a traffic accident, the report in the instant case was in many respects defective and was lacking in various information that would have shed light on the circumstances of the accident.  More than 5 years had passed since the incident had occurred and it was impossible to amend the defects of the police report and the drawing of the scene.  The Supreme Court had no alternative but to resolve the case on the basis of the evidence at hand, which it did.  It had no obligation under national procedural law to notify the parties of its assessment of the evidence and to grant the parties an opportunity to object before passing judgment.

In the Government’s view the present application concerned exclusively the assessment of evidence made by the national court in civil proceedings and should be declared inadmissible as being manifestly ill-founded.

The Court notes that the applicant’s whole argument of violation of the fair hearing guarantee in Article 6 § 1 of the Convention relies on his assertion that there was an agreement between the parties as to the facts on which the Supreme Court should adjudicate the case.  He refers to an entry made on the District Court’s record of a declaration on witness evidence and to statements by counsel for the adversary party before the District Court and the Supreme Court to the effect that “the police reports should be accepted regarding the facts of the case”.

However, as to the agreement recorded by the District Court, it is to be observed that it was made conditional on the inability of witnesses to appear in court.  In the absence of any information on this matter, it is not clear whether and to what extent this agreement bound the parties to the proceedings.  Nor is it clear that the agreement was intended also for the proceedings before the Supreme Court.  Nor was any such agreement formally recorded in the latter proceedings.

As regards the alleged agreement emanating from statements by counsel for the adversary party before the District Court and the Supreme Court, it should be noted that, as rendered by the applicant, it referred to “police reports”, not specifically to the initial police report with the description of the scene of the accident.  Thus, so it appears from the Supreme Court’s judgment, the material in question comprised various witness statements, including those of the lorry drivers, which in part contradicted or were inconsistent with the applicant’s own version of events, on such issues as the speed of the vehicles concerned and their position on the road.

In the light of the above, it is not clear, and the Court is unable to draw any conclusion, as to what facts the parties could have agreed should form the basis for the Supreme Court’s decision.  Thus the applicant has not substantiated his allegation to the effect that he ought not to have been aware that the Supreme Court could reach different conclusions on the facts than those of the District Court and allegedly agreed on by the parties (cf. mutatis mutandis , the Pelissier and Sassi v. France [GC], no. 25444/94, § 57, ECHR 1999 -).  For this reason alone his complaint fails.

Against this background, the Court finds that the present application discloses no appearance of a violation of Article 6 § 1 of the Convention.  It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President