AS TO THE ADMISSIBILITY OF
Application No. 29094/95
by Kjell Tore BRÅTEN
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mr J.-C. GEUS, Acting President
Mrs G.H. THUNE
MM 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
A. ARABADJIEV
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 24 October 1995
by Kjell Tore Bråten against Norway and registered on 7 November 1995
under file No. 29094/95;
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 Norwegian citizen, born in 1968. He resides
in Vegårdshei, Norway. Before the Commission the applicant is
represented by Mr Pål Mitsem, a lawyer practising in Stavanger.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
By indictment of 14 December 1994 the applicant was charged with
driving under the influence of intoxicating beverages and with careless
driving, having allegedly hit a pedestrian while reversing. The
applicant denied the charges, maintaining in particular that he had
been asleep and that someone else had had access to the car at the time
in question.
The case was heard by the Stavanger City Court (byrett) on
25 January 1995. During his opening speech the public prosecutor, inter
alia, referred to statements made to the police by a witness. Counsel
for the defence unsuccessfully protested against this procedure which
he found to be contrary to section 289 of the Criminal Procedure Act
(straffeprosessloven). During the trial the applicant, assisted by
counsel, was heard as well as two witnesses. Documentary evidence was
also produced. On the basis of the available evidence the City Court
found the applicant guilty of the charges brought against him and
sentenced him to 30 days' imprisonment, which was suspended provided
no criminal acts were committed for a period of two years. The
applicant was also sentenced to pay a fine of 15,000 NOK.
On 2 February 1995 the applicant appealed against the judgment
to the Supreme Court (Høyesterett). The appeal was based on the form
and contents of the prosecutor's opening speech which, so the applicant
maintained, violated section 289, subsection 2 of the Criminal
Procedure Act.
Section 289 of the Criminal Procedure Act reads as follows:
(Translation)
"The hearing of the actual matter to which the indictment
relates begins with the reading aloud of the indictment.
The president of the court shall then ask the person
indicted whether he pleads guilty and shall urge him to
follow the proceedings with close attention.
The prosecutor may then make a speech in order to explain
the substance of the indictment and to mention briefly the
evidence that will be produced.
With leave counsel for the defence may be allowed to make
short comments in connection with what the prosecutor has
said."
The applicant maintained that in allowing the prosecutor to
include in his opening speech references to witness statements the
burden of proof would in reality subsequently lie with the accused who
consequently could not rely on being presumed innocent.
On 22 August 1995 the Supreme Court rejected the appeal. On
behalf of the unanimous court, Justice Gussgard stated, inter alia, the
following:
(Translation)
"The addition to the records which counsel for the defence
requested - and wrote himself - during the main hearing is
a sufficient basis for allowing the Supreme Court to
examine whether the prosecutor's opening speech in the City
Court complied with section 289, subsection 2 of the
Criminal Procedure Act. The following was submitted:
'Counsel for the defence requested, pursuant to section 19
... of the Criminal Procedure Act that it be entered in the
records that he protested against the fact that the
prosecutor in his opening speech referred to what witnesses
had said and that the presiding judge, regardless of
counsel's protest, did not prevent this.
In the opening speech mention was made of (the witness')
activities during the night in question, his observations
in respect of the car and driver, how the car reversed and
hit him, how the car was pursued, what the witness did, how
he contacted the police and who was present in the police
car.
The presiding judge requested, inter alia, that the
prosecutor explain on which facts he intended to rely
on behalf of the prosecution.'
...
I find no reason to doubt that what has been entered in the
records concerning the opening speech and the presiding
judge's statement to the prosecutor is, as such, correct.
Although further details about the contents of the opening
speech are unknown, the records are in my opinion
sufficient in order to examine whether procedural errors
have been committed in connection with the opening
speech. ...
...
In the legal literature, both before and after the 1981
Criminal Procedure Act, it has been pointed out that the
opening speech must be short, concise and absolutely
objective.
I agree with this point of view. At this stage in the
proceedings the prosecutor has received a more central
place than the defence. This alone could be the reason why
the opening speech shall be short and neutral. However,
also considerations in respect of the principle concerning
the direct taking of evidence carries a certain weight in
this regard ... . The purpose must be to give the court a
sufficient knowledge of the evidence on which the court
shall base its decision, but not more. How detailed the
speech shall be must to some extent depend on the
circumstances of the case, but a detailed account of the
facts which according to the prosecution ought to be relied
on, or further explanations as to what witnesses have
explained has no legal basis in section 289, subsection 2,
unless this exceptionally would be absolutely necessary in
order for the court to understand the forthcoming
evidence. ...
The present case is relatively simple. The main question
was whether the accused had driven the car. The records
show that the prosecutor in the City Court in a rather
detailed manner informed about the facts of the case, as he
saw it, based on a statement to the police. Thus, the
prosecutor anticipated the witness' statement in court.
This opening speech was in my opinion too comprehensive and
contrary to section 289, subsection 2 of the Criminal
Procedure Act. The presiding judge ought to have intervened
as requested by counsel for the defence. Accordingly, a
procedural error has been committed and the question
remains whether the error influenced the outcome of the
case, cf. section 360, subsection 1 of the Criminal
Procedure Act.
... . In the present case there is in my opinion no reason
to repeal the judgment. The issue and the evidence of the
case were simple and clear. In addition to the accused's
explanations two witnesses were heard. There is no reason
to believe that the opening speech influenced the court's
evaluation of the evidence and thus influenced the result.
The question whether (the applicant) had a fair trial as
guaranteed by Article 6 of the Convention must be answered
having regard to the proceedings as a whole. ... As already
indicated above I find that the error was rectified through
the taking of evidence. I do not consider that the
provisions of the Convention were violated in this case."
COMPLAINTS
The applicant complains of the way in which the prosecutor was
allowed to present the case to the court in his opening speech. The
court was influenced thereby to such an extent as to deprive him of the
guarantee of being presumed innocent and of benefiting from a fair
trial. The applicant invokes Article 6 of the Convention and submits
that the Supreme Court's finding of a violation of section 289 of the
Criminal Procedure Act did not in any way rectify his situation.
THE LAW
The applicant complains of his conviction on 25 January 1995 by
the Stavanger City Court and also of the court proceedings concerned.
With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in 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 (see e.g. Eur. Court HR, Schenk v.
Switzerland judgment of 12 July 1988, Series A no. 140, para. 45, p.
29).
It is true that in this case the applicant also complains, under
Article 6 (Art. 6) of the Convention, that he was not afforded the
guarantee of being presumed innocent and thus did not have a fair trial
due to the procedural error committed by the public prosecutor in his
opening speech.
The Commission recalls first that although the Supreme Court in
its decision of 22 August 1995 found in favour of the applicant as
regards his views on the contents of the prosecutor's opening speech,
it did not quash on that ground the judgment of the Stavanger City
Court but actually rejected the appeal as the defect, in the Supreme
Court's opinion, was of no relevance to the outcome of the case and had
not violated any of the provisions of the Convention. Furthermore, the
Commission recalls that although an applicant who has sought and gained
redress in the national courts may not subsequently or any longer claim
to be a victim within the meaning of Article 25 (Art. 25) of the
Convention, this conclusion can only be drawn where the applicant is
no longer affected at all, for example where he has been acquitted
unconditionally. However, the present applicant remained convicted.
Having regard to the above considerations the Commission finds that the
applicant may still claim to be a victim of the alleged violation of
Article 6 (Art. 6) of the Convention.
The Commission considers, however, that the complaint is
manifestly ill-founded for the following reasons.
As regards the applicant's reference to his right to be presumed
innocent as guaranteed by Article 6 para. 2 (Art. 6-2) of the
Convention, the Commission recalls that the Stavanger City Court heard
the applicant as well as two witnesses, and certain documentary
evidence was produced. Regardless of the prosecutor's opening speech
the Commission is of the opinion that the judgment was based on an
evaluation of the available evidence. Especially there is, in the
Commission's view, nothing indicating that the City Court in fulfilling
its functions started from the assumption that the applicant had
committed the acts with which he was charged. An examination of this
complaint therefore fails to disclose any appearance of a violation of
Article 6 para. 2 (Art. 6-2) of the Convention.
The applicant furthermore maintains that he did not have a fair
trial. The Commission has not, however, found any other factual
circumstances which would merit a further examination of this
complaint.
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 J.-C. GEUS
Secretary Acting President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy