EL-ABTH v. NORWAY



                      AS TO THE ADMISSIBILITY OF

                       Application No. 22125/93

                       by Majed Deb EL-ABTAH

                       against Norway

      The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 4 June 1993 by

Majed Deb EL-ABTAH against Norway and registered on 28 June 1993 under

file No. 22125/93;

      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 facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant is a Lebanese citizen, born in 1952. He resides at

Jönköping, Sweden, but is at present serving a prison sentence in

Ullersmo prison, Norway. Before the Commission he is represented by

Mr. Svein Duesund, a lawyer practising at Drammen, Norway.

      On 29 April 1991 the applicant was arrested and accused of having

infringed the Norwegian Penal Code by drug trafficking together with

five others. The applicant hereafter remained in detention on remand

during the investigations.

      The case commenced in the Eidsivating High Court (Lagmannsretten)

sitting with a jury on 10 June 1992. The Court heard the accused and

twelve witnesses. However, during the hearing, on 17 June 1992, a

witness disclosed certain evidence that was unknown to the prosecution

as well as most of the defence lawyers. Hereafter two of the defence

lawyers requested that the case be adjourned until further

investigations of the new evidence had been carried out. Three defence

lawyers, and among those the applicant's counsel, objected to an

adjournment and requested that the case continue as the new evidence

did not concern their clients. They submitted, inter alia, that an

adjournment until 10 August 1992, which turned out to be the first

possible date for a further hearing, would make it impossible for the

jury to remember the first part of the case clearly. However, the Court

decided on 18 June 1992 to adjourn the case until 10 August 1992. In

its decision the Court stated, inter alia, as follows:

(translation)

      "This (the additional investigation of the new evidence) will

      necessarily take some time and it will in no circumstances be

      possible to continue the hearings before 10 August 1992. The

      question is whether such an interruption will be too long. The

      alternative is obviously that the case would be discontinued in

      order to start again with a completely new examination. Such a

      new examination could in no circumstances take place before 1993.

      The detention on remand would presumably for one or all (of the

      accused) have to be correspondingly extended.

      The Court finds that when all circumstances have been taken into

      consideration it must be the best solution to continue the

      hearings on 10 August 1992 with the same judges and the same

      jury."

      On 10 August 1992 the Court continued the hearings with a summary

of the facts and the prosecution as well as the defence were given the

possibility to sum up the facts established so far. From the court

transcript it appears that the presiding judge furthermore inquired

whether the jury wished to have a more profound elaboration of the

facts or to hear any of the accused or the witnesses again. After

having deliberated on the issue, the jury stated that there was no wish

or need to complement the evidence obtained so far. Finally, the

presiding judge directed the same question to the prosecution and the

defence who also did not request any further explanations either from

the accused or the witnesses previously examined.

      The Court then examined the new evidence which had caused the

adjournment and the prosecution as well as the defence were given the

opportunity to examine those among the accused who were affected

thereby.

      On 19 August 1992 the Court pronounced its judgment. The

applicant was found guilty of the charges brought against him and he

was sentenced to 10 years' imprisonment, the 420 days spent in

detention on remand being credited towards the sentence.

      The applicant declared immediately in the High Court that he

intended to appeal to the Supreme Court (Høyesterett) against the

judgment. His appeal was directed against alleged procedural errors

(saksbehandlingen) due to the unreasonably long interruption of the

hearings at the moment when almost all the evidence had been produced.

He maintained that in this complicated case the jury would have

problems of comprehension after such a long break and, in addition, the

risk of an influence on the jury from the outside had been increased.

Finally, the applicant appealed against an alleged lack of reasoning

in the judgment (mangelfulle domsgrunner) as well as against the

sentence imposed.

      By judgment of 14 January 1993 the Supreme Court rejected the

applicant's appeal as a whole. Concerning the adjournment for a period

of seven weeks justice Gjølstad stated on behalf of a unanimous court,

inter alia, as follows:

(translation)

      "I note that the adjournment, which in the present case was more

      than seven weeks, is unusual and I consider it, per se, to be

      problematic. However, I find the examination of the case, as it

      has been conducted, justifiable.

      The assessment of whether a procedural error has been committed

      must take its starting point in the court's independent

      responsibility for the procedure. In a case like the present

      there are, in my opinion, reasons for emphasising how not only

      the court but also the parties - from their more detailed

      knowledge of the case - assessed the situation during the

      hearings. I have previously pointed out that no remarks were made

      to the summary after the adjournment and that the prosecutor and

      the defence did not consider that it was necessary to obtain

      additional explanations either from the accused or from the

      witnesses previously summoned and examined. Furthermore, I find

      it important that the jury, after having discussed the issue in

      private, declared that there was no wish or need to complement

      the evidence taken so far. Although it concerns a very serious

      and complicated case, I find that the adjournment, having regard

      to the examination the case underwent, did not mean that the

      limit for a justifiable procedure was exceeded. Thus there is no

      reason to quash (the judgment of the High Court)."

      On 30 March 1993 the applicant requested the High Court to reopen

his case. The applicant has not indicated whether the Court has taken

any decision yet.

COMPLAINTS

      The applicant complains, under Article 6 of the Convention, that

he did not have a fair trial by an impartial tribunal. He submits that

since the proceedings were adjourned for seven weeks the jury obviously

must have forgotten, or at least only have an unclear picture of, the

evidence taken before the adjournment and, furthermore, the possibility

of undue pressure upon the jury had increased during the long

adjournment. Consequently, the applicant claims that the jury was no

longer impartial when determining the charge in his case.

THE LAW

      The applicant complains, under Article 6 (Art. 6) of the

Convention, that he did not have a fair trial by an impartial tribunal.

Article 6 (Art. 6) reads, as far as relevant, as follows:

      "1. In the determination of his civil rights and obligations or

      of any criminal charge against him, everyone is entitled to a

      fair ... hearing ... by an ... impartial tribunal ... ."

a.    The applicant has in particular raised the question of

impartiality with regard to the jury, i.e. whether it remained

impartial after the proceedings had been adjourned for a period of

seven weeks.

      The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) 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. Eur. Court H.R., Fey judgment of 24 February 1993,

Series A no. 255, p. 12, para. 28). As regards the subjective test, the

Commission and the Court of Human Rights have constantly held that the

impartiality of a judge or a juror must be presumed until the contrary

is established (cf. for example, Eur. Court H.R., the Le Compte, Van

Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no.

43, p.25, para. 58).

      In the present case the applicant claims that the jury in the

High Court could no longer be regarded as impartial since the long

adjournment must have increased the possibility of an outside influence

on the jurors.

      The Commission notes that the jurors deliberate and vote in

camera and are not required to state how the vote was actually cast or

to state in any way in their verdict the reasons on which it is based.

A possible outside influence on a jury will accordingly not be

reflected in the jury's verdict. However, the Commission finds that a

discontinuation of the proceedings, even for a considerable period,

cannot per se reasonably be taken to affect the jury's impartiality and

in the present case the Commission finds that no evidence has been

adduced to show that the jury was influenced, or that there could be

any legitimate suspicion of the jury being influenced, against the

applicant during the discontinuation of the proceedings or any other

evidence which could raise doubt as to its subjective or objective

impartiality.

b.    The Commission has also examined the applicant's complaints in

so far as he maintains that he did not have a fair trial, in particular

due to the seven week adjournment of the case. In this respect it

recalls that the applicant was represented by a lawyer, that the High

Court heard twelve witnesses and that the investigation of the evidence

was carefully undertaken, giving the applicant the opportunity to be

heard. When the proceedings continued on 10 August 1992 the High Court

began the hearing by summing up the facts in which the defence could

participate, and the jury, the prosecution as well as the defence were

asked whether they wished to hear any of the accused or the witnesses

again. Neither the jury nor the defence had any comments on the

summary, nor did they request a further examination of the witnesses

or the accused. Accordingly, the Commission finds no indication that

the jury had problems with remembering or comprehending the evidence

obtained during the hearing before the adjournment or that the

proceedings otherwise continued in an unfair manner.

      Subsequently, the case was examined by the Supreme Court which

stated, in its judgment of 14 January 1993, that while such a long

discontinuation was unfortunate and unusual it had appeared to be the

best possible solution in the circumstances. In addition, the Supreme

Court found that an examination of this particular case had disclosed

no unfairness as to the applicant's trial. The Commission has not found

any elements which could make it conclude that these proceedings did

not comply with the requirement of fairness within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

c.    In these circumstances the Commission concludes that an

examination of the case does not disclose any appearance of a violation

of Article 6 (Art. 6) 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.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)

 

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