AS TO THE ADMISSIBILITY OF
Application No. 27739/95
by Peter BAUNGAARD
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 May 1995 by
Peter BAUNGAARD against Denmark and registered on 28 June 1995 under
file No. 27739/95;
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 Danish citizen, born in 1970. He is at present
serving a 16 year prison sentence at Horsens State Prison. Before the
Commission the applicant is represented by Mr Morten L. Wagner, a
lawyer practising in Viborg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
From October 1992 until his arrest on 2 October 1993 the
applicant was involved in substantial criminal activity. By indictment
of 18 April 1994 the applicant was charged with theft, burglary, drug
trafficking, illegal possession of arms and ammunition, robbery and
attempted robbery, and murder in a total of 25 cases. Parts 1 and 7 of
the indictment concerned burglary where the items stolen allegedly
represented a value of approximately 900,000 DKK, and 220,000 DKK
respectively. Part 5 of the indictment concerned drug trafficking
allegedly involving 30 grammes of heroin. Part 18 of the indictment
concerned burglary allegedly involving various items of silver worth
approximately 80,000 DKK. Parts 16 and 19 of the indictment concerned
attempted robbery in two cases and part 20 concerned robbery and
murder.
The criminal case against the applicant was heard by the High
Court of Western Denmark (Vestre Landsret) sitting with a jury. During
the proceedings which commenced on 6 September 1994 the applicant, who
was assisted by counsel, pleaded guilty in respect of parts 1-15, 17-18
and 21-25 of the indictment. As regards part 1 he could only accept,
however, a value of 100,000 - 200,000 DKK and, as regards part 5, only
15 grammes of heroin. As regards part 18 the applicant maintained that
the items stolen were of stainless steel and therefore worth less than
indicated. The applicant finally pleaded not guilty in respect of parts
16 and 19 but pleaded guilty to attempted burglary. As regards part 20
of the indictment the applicant pleaded not guilty but pleaded guilty
to burglary and assault causing death.
The court heard six witnesses and one expert following which the
defence, the prosecution and the professional judges agreed on the
formulation of the questions to be put to the jury. One of the
questions (no. 26) referred to parts 1 and 7 of the indictment and
requested the jury to decide whether the offences committed were of an
aggravated nature due to the value of the stolen items involved.
Following the jury's deliberations the applicant was, by judgment
of 9 September 1994, found guilty as charged in respect of parts 1-15,
17-18 and 21-25 of the indictment. As regards parts 16 and 19 he was
found guilty of attempted burglary in accordance with his own
admissions. Finally, he was found guilty of aggravated robbery and
murder cf. part 20 of the indictment. He was sentenced to 16 years'
imprisonment.
The applicant appealed against the judgment to the Supreme Court
(Højesteret). He maintained that such procedural errors had been
committed that the conviction was questionable. Furthermore, he
maintained that the sentence was too severe. In support of his
allegations the applicant submitted that part 20 of the indictment
(charge of aggravated robbery and murder) ought to have been presented
to the jury under two separate questions, that question no. 26 ought
not to have involved both parts 1 and 7 of the indictment, and that the
High Court had wrongly convicted him of burglary in respect of parts 1
and 18 as he had not pleaded guilty in respect of the value of the
stolen items involved.
By judgment of 27 April 1995 the Supreme Court upheld the
judgment in its entirety. In its judgment the court stated inter alia:
(Translation)
"Question no. 20 which had been formulated in accordance
with (part 20 of) the indictment concerned both robbery
pursuant to section 288 ... and murder pursuant to
section 237 of the Penal Code. Pursuant to section 887 of
the Administration of Justice Act each question to the jury
ought as far as possible to concern one criminal offence.
It has not been explained for what reason question 20 was
nevertheless formulated as it was. The court finds that it
had been more in accordance with section 887, subsection 2
of the Administration of Justice Act that two questions
concerning part 20 had been put to the jury but finds that
the failure to do so does not make the correctness of the
conviction for robbery and murder questionable.
Pursuant to section 285, subsection 1 of the Penal Code
burglary, among other things, carries a sentence of up to
one year and six months' imprisonment. Pursuant to
section 286, subsection 1 the sentence may, in the
circumstances mentioned in the provision, increase to
four years' imprisonment. The court does not find that
procedural errors have been committed by accepting that
question no. 26, which only concerned the issue of
referring two counts of burglary to section 286,
subsection 1, involved both these counts.
[The applicant] has admitted having committed the offences
set out in parts 1 and 18 but has disputed the value
involved. The questions to the jury in respect of these
offences have been drafted in close keeping with the
indictment and the jury has found [the applicant] guilty
accordingly. The fact that the judgment - contrary to the
court transcript - wrongly indicates that [the applicant]
has pleaded guilty to these two counts is not an error
which could question the correctness of the conviction.
...
[The applicant's] request for repealing the judgment and
returning it to the High Court for reconsideration is
accordingly rejected ...
As the sentence is found to be appropriate the court
upholds the judgment."
COMPLAINTS
The applicant complains that he did not have a fair trial by an
impartial tribunal. He maintains that he has been wrongly convicted for
having stolen goods, the value of which was determined without any
evidence and contrary to what he was willing to accept. He also
maintains that the formulation of the questions to the jury, in
particular the question concerning the aggravated robbery and murder,
made a fair determination of his guilt impossible.
The applicant furthermore maintains that the national courts'
interpretation of the notion of criminal intent violated his right to
a fair trial by an impartial tribunal.
The applicant invokes Article 6 para. 1 of the Convention.
THE LAW
The applicant complains that he did not have a fair trial by an
impartial tribunal. He invokes Article 6 para. 1 (Art. 6-1) of the
Convention which in so far as relevant reads as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
... impartial tribunal ... ."
The applicant maintains that in respect of certain charges he was
wrongly convicted and in respect of others the courts' interpretation
of domestic law was contrary to the notion of a fair trial. Having
regard to this the Commission recalls, firstly, that with regard to
Article 19 (Art. 19) of the Convention, is to ensure the observance of
the obligations undertaken by the parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to the established
case-law of the Convention organs (cf. e.g. Eur. Court HR, Schenk v.
Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.
45).
It is true that the applicant also complains that the proceedings
were not fair and that the courts were not impartial. As regards the
latter the Commission recalls that the existence of impartiality for
the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be
determined according to a subjective test, that is on the basis of the
personal conviction of a particular judge or jury in a given case, and
also according to an objective test, that is ascertaining whether the
judge or the jury offered guarantees sufficient to exclude any
legitimate doubt in this respect (cf. e.g. Eur. Court HR, Fey v.
Austria judgment of 24 February 1993, Series A no. 255, p. 12, para.
28).
In the present case the Commission finds that no evidence has
been adduced to show that there could be any legitimate doubt as to the
High Court's or the Supreme Court's subjective or objective
impartiality.
As regards the fairness of the proceedings the Commission recalls
that the question whether a trial conforms in this respect with the
standard laid down by Article 6 (Art. 6) of the Convention must be
assessed on the basis of the court proceedings as a whole. In the
present case the Commission recalls that the applicant's case was
examined by the High Court sitting with a jury during which the
applicant, assisted by counsel, had the opportunity to submit
everything which he found to be of importance to the case. Furthermore,
no evidence was refused by the court and protests as to the proceedings
were at no time lodged indicating that the proceedings progressed to
the applicant's disadvantage. Indeed the applicant does not allege that
any of the minimum rights set out in Article 6 paras. 2 and 3
(Art. 6-2, 6-3) of the Convention were infringed. He maintains,
however, that procedural errors were committed in the presentation of
the questions put to the jury, an issue which was thoroughly examined
by the Supreme Court. However, having regard to the findings of the
Supreme Court the Commission does not consider that this, in the
circumstances, assumed such importance that the applicant's trial, seen
as a whole, was unfair.
Thus, an examination of the different issues raised by the
applicant does not disclose any appearance of a violation of 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy