AS TO THE ADMISSIBILITY OF
Application No. 29309/95
by C.T.
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 7 November 1995
by C.T. against Norway and registered on 17 November 1995
under file No. 29309/95;
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 1954. He resides
in Oslo. Before the Commission the applicant is represented by
Mr Leidulv Digernes, a lawyer practising in Oslo.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 8 March 1994 the applicant was arrested and charged with
certain narcotics offences involving several hundred kilos of hashish.
The indictment was served on 11 January 1995 and the case against the
applicant and four co-accused commenced in the Eidsivating High Court
(lagmannsrett) on 8 May 1995. From 8 May until 10 May 1995 the
applicant and the co-accused as well as 4 witnesses were heard.
Documentary evidence was also submitted.
On 11 May 1995 the prosecutor informed the court that the witness
N had not appeared although duly summoned. The police had
unsuccessfully tried to find her but it turned out that she had changed
her address and now used a different name. The prosecutor further
stated that the witness was a drug addict and that there was reason to
believe that she was at present "on a tour". Thus, the prosecutor
requested permission to read out statements made by the witness to the
police and during a previous preliminary court session. Counsel for the
applicant protested against this and pointed out that the defence had
not had the opportunity to put questions to the witness.
Having deliberated, the court decided to allow the prosecution
to read out the statements. In its decision the Court stated inter
alia:
(Translation)
On the basis of the available information the court finds
that hearing (the witness N) would entail disproportionate
inconvenience or expense cf. section 297 of the Criminal
Procedure Act (Straffeprosessloven). Reference is made to
(the submission made by the prosecution). The main hearing
would thus have to be adjourned for an unknown period of
time awaiting a possible arrest (of N).
As regards the European Convention on Human Rights the
court agrees with the prosecution that (N's) statements
cannot be considered as the main evidence in the case.
The court has heard (the applicant's) statements in court
and parts of his statements to the police. In addition the
statements from (three co-accused) concerning the money
transports related to (the applicant) are available to the
court.
The reading out of (N's) statements to the police will not
run counter to the principle of a fair trial within the
meaning of Article 6 para. 1 and Article 6 para. 3 of the
Convention. When it comes to the question the defence has
raised as to whether possible promises have been made by
the police, such questions may be put to (the witness S).
That (N's) statements appear to be hear-say evidence and
that she is a drug addict is undisputed." The main hearing
then continued with the hearing of further witnesses and
the production of further documentary evidence.
On 16 May 1995 the High Court pronounced judgment in the case.
The applicant was found guilty of the charge brought against him and
sentenced to three years and six months' imprisonment.
Leave to appeal to the Supreme Court (Høyesterett) was refused
on 28 July 1995.
COMPLAINTS
The applicant complains that he was denied the possibility of
cross-examining the witness N as the court allowed the use of her
statements made to the police and in a preliminary court session. He
invokes Article 6 para. 3 (d) of the Convention.
THE LAW
The applicant complains of the fact that certain statements made
by the witness N to the police and during a preliminary court session
were read out in court, instead of hearing the witness directly. He
considers this to be contrary to Article 6 para. 3 (d) (Art. 6-3-d) of
the Convention which reads as follows:
"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."
With regard to the evidence of witnesses the Commission notes
that, according to the case-law of the European Court of Human Rights,
the reading out at a hearing of the records of statements made by a
witness cannot, in itself, be regarded as being inconsistent with
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention but the use made
of such statements as evidence must nevertheless comply with the rights
of the defence (cf. Eur. Court HR, Unterpertinger v. Austria judgment
of 24 November 1986, Series A no. 110, p. 14, para. 31). In this regard
the Commission considers that save in exceptional circumstances,
requiring specific justification, witnesses must be heard in the
presence of the accused at a hearing where both parties can present
their arguments and which, since it is subject to public scrutiny,
offers a tangible guarantee of the fairness of the proceedings
(cf. Eur. Court HR, Delta v. France judgment of 19 December 1990,
Series A no. 191-A p. 16, para. 36 and Isgrò v. Italy judgment of
19 February 1991, Series A no. 194-A, p. 12, para. 34).
Accordingly, the Commission must examine whether the present case
offered such justification as it is clear that N was not heard in the
High Court.
The Commission recalls that N was at the time in question a drug
addict whose whereabouts were unknown, that her statements in the High
Court's view were of little relevance having regard to the other
evidence produced and that, therefore, it would amount to a
disproportionate inconvenience and expense to hear her personally
instead of reading out her statements made to the police and during a
preliminary court session. Furthermore, the Commission recalls that the
High Court heard several other witnesses as well as the applicant and
the co-accused. Thus, N's statements were not the only evidence in the
case and the Commission finds it established that the applicant's
conviction was not based solely or even essentially on her statements.
The limitation, which derived from her absence at the hearing, did not
in the Commission's opinion in these circumstances restrict the rights
of the defence to a degree which was irreconcilable with the Convention
(cf. also Eur. Court HR, Asch v. Austria judgment of 26 April 1991,
Series A no. 203).
In addition an examination of the conformity of the trial as a
whole with the rules laid down in Article 6 (Art. 6) of the Convention
has not disclosed any appearance of a violation of this provision.
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