SUR LA RECEVABILITÉ
Application No. 22596/93
by Stefán EINARSSON
against Iceland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
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 23 August 1993 by
Stefán EINARSSON against Iceland and registered on 8 September 1993
under file No. 22596/93;
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 an Icelandic citizen, born in 1948. He resides
in Reykjavík. Before the Commission he is represented by Mr. Eiríkur
Tómasson, a lawyer practising in Reykjavík.
By 1987 the Reykjavík Police Department had obtained information
from various sources indicating that the applicant was involved in drug
trafficking. The police discovered that large quantities of hashish
were being imported to Iceland concealed in cans of paint and that the
applicant's travel and business activities appeared to be related
thereto. The applicant was kept under surveillance and search warrants
were issued by the Criminal Court for the homes of the applicant and
another suspect, H.
On 16 November 1987 H was arrested while he was placing cans of
paint, which also contained approximately ten kilogrammes of hashish,
in a garage. The applicant was arrested the same day outside his home.
They were both charged with drug trafficking and brought before a court
the following day. Counsel was appointed and they were detained on
remand.
The applicant was subsequently interrogated by the police on 20,
25 and 30 November as well as 2, 8 and 9 December 1987. He admitted
having imported hashish to Iceland on nine occasions, having bought it
from a person, M, in the Netherlands. Reports were drawn up in respect
of all the interrogations. They were read out to or read by the
applicant who subsequently signed them, except the report of
9 December 1987 which, therefore, only had the interrogator's note on
it indicating that the applicant had confirmed it as correct.
The applicant was interrogated again by the police on 22 and
28 December 1987 and 2 January 1988. On 4 January 1988 he was
interrogated in court. He then denied the contents of the police
reports made so far and maintained that he had neither read them nor
had them read out to him. He furthermore denied that he had been
involved in drug trafficking, but confirmed that he had travelled to,
inter alia, the Netherlands where he had purchased paint through M.
The applicant was again interrogated by the police on 7, 9, 10
and 11 January 1988. He then maintained that he had not been involved
in drug trafficking. He was interrogated in court again on
12 January 1988. He confirmed that he had been involved in transporting
paint to Iceland and that he had a suspicion that these shipments of
paint were related to drug offences. He maintained, however, that he
had nothing to do with it, nor did he feel that it was any of his
business.
The applicant was again interrogated by the police on 14, 16, 18,
20, 21 and 22 January 1988 following which he was released from
detention on remand.
During the above interrogations the Icelandic police requested,
in December 1987, the Dutch police to question M in respect of his
involvement in the case and his connections with the applicant. The
Dutch police, however, refused the request as M at that time was under
surveillance in connection with a major drug case in the Netherlands
and because of the sensitive stage of that investigation. It does not
appear that the police made further attempts to obtain the testimony
of M before the applicant's trial in the Reykjavík District Court.
On 18 and 19 January 1988 the Icelandic police went to Antwerp
and interrogated four individuals in order to clarify how the applicant
had purchased the paint and shipped it from the Netherlands to Iceland.
Following the applicant's release from detention on remand on
22 January 1988 the police concluded the investigations and forwarded
the case to the State Prosecutor's Office in July 1988. Having
evaluated the available evidence the State Prosecutor's Office drew up
an indictment on 27 July 1990 according to which the applicant and the
co-accused, H, were charged with having jointly imported a total of
67-70 kilogrammes of hashish into Iceland from December 1985 until
November 1987 contrary to section 173a of the Penal Code. The
indictment was served on the applicant on 17 December 1990.
On 16 October 1992 the applicant was summoned to appear before
the Reykjavík District Court and the examination of the case commenced
in that court on 2 November 1992.
The applicant and the co-accused, H, were heard. H admitted
having participated, together with the applicant, in importing hashish.
He maintained, however, that it concerned less than 67-70 kilogrammes.
The applicant maintained, on the other hand, his innocence and
contended that his previous confessions to the police as set out in the
available police reports had been made under duress. In order to
clarify this the Court heard six police officers who had participated
in the interrogations of the applicant. Furthermore, two additional
witnesses were heard. The applicant did not submit any requests to the
District Court for the hearing of additional witnesses.
On the basis of an evaluation of the above evidence as well as
the documentary evidence submitted, the Court found H and the applicant
guilty of the charges brought against them. By judgment of
14 December 1992 they were both sentenced to four years' imprisonment
and a fine of ISK 500,000. In its judgment the Court stated inter alia
as follows:
(translation)
"It has been established that the defendants confessed
during an investigation by the Drug Squad of the Reykjavík
Police Department to the import with which they are being
charged in the indictment, and also that H arranged the
selling of the hashish in Iceland, its import being clearly
for financial gain.
During a court session held on 17 November 1987 counsel was
appointed to protect the defendants' rights. Neither of the
defendants, however, requested that the attorneys be
present during interrogations.
Already on 19 November 1987 H admitted during the police
interrogation that the defendants had discussed that (the
applicant) intended to purchase paint and narcotics when he
travelled abroad...
...
During the interrogation on 1 December and later
interrogations the defendant H admitted that the defendants
had imported hashish which had been concealed in shipments
of paint and mentioned the nine shipments which are
referred to in the indictment. In later interrogations by
the police the defendant testified in the same manner and
in more detail as has been mentioned above. ...
During five interrogations on 20, 25, and 30 November and
2 and 8 December 1987 (the applicant) gave an account of
his participation in the case consistent with his part in
the case as described in the indictment... The reports
concerning (the applicant) dated 22 and 28 December 1987
differ from this and on 2 January 1988 (the applicant)
claimed during the police interrogation that all his
confessions to drug offences were incorrect.
The defendants have previously explained their altered
testimony and there is no proof that they were coerced and
threatened to confess to the charges brought against them.
Both defendants had access to counsel to whom they could
turn if they thought they were subject to duress. Neither
of them did so and the defendant H admitted to all the
charges brought against the defendants in two
interrogations in court in December 1987. The testimony of
the defendant H corresponds to the testimony of (the
applicant) during five interrogations by the police. ...
The Court rejects (the applicant's) explanation that he has
undertaken the unusual errands of bringing money to M for
shipments of paint to Iceland without knowing what was
going on. The behaviour of the defendant of renting
facilities all over Reykjavík and Kopavogur under false
names furthermore firmly indicates that he knew that
narcotics were imported in the nine shipments of paint and
that he participated fully in the import. ...
Taking all circumstances into consideration it is proven by
the confession of the defendant H to the police and in
court prior to the indictment and by (the applicant's) five
confessions to the police which are supported by other
evidence pertaining to the case described above that the
defendants are guilty of having jointly imported to Iceland
hashish for financial gain from December 1985 to November
1987. ...
Punishment of both defendants will be determined taking
into consideration section 77 of the Penal Code. It is
considered aggravating that they are both adults who
jointly imported and sold a great quantity of narcotics in
the hope of a great financial gain. The method used by the
defendants in committing their offence was not decided upon
in haste but was well planned. The defendants are found to
have played an equal part in the offence even though there
is reason to believe that (the applicant) came up with the
idea to commit it. Nevertheless the defendant H
participated and enjoyed the financial gain resulting
therefrom. It is not known what the defendants' net profit
was from this offence, but there is reason to believe that
the profits were considerable. This shall also be taken
into consideration in determining the punishment of the
defendants and it is decided that they shall be subject to
fines as well as to imprisonment, cf. subsection 2 of
section 49 of the Penal Code. It is, however, considered
proper to take into consideration in determining the
punishment to be imposed on the defendants the delay which
has occurred in pronouncing judgment in this case as the
defendants are in no way responsible for this delay.
Taking into consideration all of the above the suitable
punishment for each of the defendants is four years
imprisonment and a fine of 500,000 ISK, payable within four
weeks from this judgment; otherwise an imprisonment of
90 days replaces the fines."
Both the prosecutor and the applicant appealed against the
judgment to the Supreme Court and the appeal was sent to the Court in
January 1993.
It appears that the applicant wanted to obtain a statement from
M in the Netherlands. Accordingly, on 5 March 1993, the Director of
Public Prosecutions submitted a letter rogatory to the Dutch
authorities requesting their assistance in accordance with the European
Convention on Mutual Assistance in Criminal Matters of 20 April 1959.
On 11 March 1993 M was accordingly interviewed by the Dutch
police and his statement, in which he maintained that the applicant had
nothing to do with drug trafficking, was transmitted to the Supreme
Court.
On 1 April 1993 the Supreme Court held a hearing in the case. It
did not, however, hear any witnesses. The Court upheld the judgment of
the District Court and stated as follows:
(translation)
"The facts of the case are clearly set out in the judgment
under appeal. With reference to the facts of the
aforementioned judgment the evaluation of the District
Court judge of the defendants' guilt and the applicable
penalty clauses is confirmed. The provisions of the
judgment regarding confiscation and legal costs are also
confirmed.
A considerable delay occurred in the proceedings of this
case before it was brought before the judge who rendered
the judgment of the District Court. The police concluded
its investigation in July 1988 and the case was then
referred to the public prosecutor. Indictments were,
however, not issued until 27 July 1990. The indictment was
served on (the applicant) on 17 December 1990. The case was
not examined, however, until 2 November 1992. The
indictment was first served on the defendant H on
19 October of that year. Taking this into consideration the
decision of the District Court judge regarding the
punishment of both defendants is confirmed.
The defendants are sentenced to pay all the costs of the
appeal according to the conclusion of this judgment.
According to the reports of the Department of Criminal
Investigation a witness was not always present during
interrogation or reading of the reports of the defendants
but only witnessed the signing. This is not in accordance
with section 37 of the Code of Criminal Procedure no.
74/1974 then in force, cf. now subsection 2 of section 72
of the Code of Criminal Procedure no. 19/1991.
Conclusion of the judgment: the judgment under appeal shall
stand."
COMPLAINTS
The applicant complains that the criminal charge against him was
not determined within a reasonable time within the meaning of Article 6
para. 1 of the Convention.
He furthermore complains that the District Court and the Supreme
Court violated Article 6 para. 3 (d) of the Convention by drawing
conclusions from police reports without examining witnesses on his
behalf. He refers in this respect to the witness M from the
Netherlands.
Finally, the applicant complains that the review by the Supreme
Court was not in accordance with Article 2 of Protocol No. 7 to the
Convention as the Court did not hear any witnesses.
THE LAW
1. The applicant complains that the criminal charge against him was
not determined within a reasonable time as required by Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, in so far as
relevant, reads:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by a ... tribunal ... ."
The Commission notes that the proceedings complained of commenced
on 16 November 1987 when the applicant was arrested and detained on
remand and ended on 1 April 1993 when the Supreme Court pronounced
judgment in the case. They thus lasted approximately five years and
four and a half months.
The question arises, however, whether the applicant may still
claim to be a victim within the meaning of Article 25 (Art. 25) of the
Convention of a violation of the provision invoked given the fact that
the courts took into account the delays which had occurred when meting
out the sentence.
The Commission recalls the Convention organs' case-law according
to which an applicant's status as a "victim" within the meaning of
Article 25 (Art. 25) of the Convention may depend on compensation being
awarded on the basis of the facts about which he/she complains before
the Commission. In cases concerning complaints of length of proceedings
the domestic authorities must have acknowledged either expressly or in
substance the alleged infringement of the Convention and, if necessary,
provide redress in relation thereto. Only when these two conditions are
satisfied does the subsidiary nature of the protective mechanism of the
Convention preclude examination of an application (see Eur. Court H.R.,
Eckle judgment of 15 July 1982, Series A no. 51, p. 32, paras. 69
et seq.; No. 10868/84, Dec. 21.1.87, Woukam Moudefo v. France, D.R. 51
p. 62; No. 10884/84, Dec. 13.12.84, H. v. Federal Republic of Germany,
D.R. 41 p. 252).
In the present case the District Court expressly acknowledged
that delays had occurred for which the applicant was in no way
responsible and for that reason afforded some redress by reducing the
prison sentence imposed. The same position was adopted by the Supreme
Court which set out in its judgment the various periods of delay which
were open to criticism and on this basis confirmed the sentence
imposed. In these circumstances the Commission finds that the domestic
courts in substance acknowledged a breach of Article 6 para. 1
(Art. 6-1) of the Convention in respect of the right to a hearing
within a reasonable time and afforded redress therefor by the
mitigation of the sentence imposed.
It follows that the applicant may no longer claim to be a victim
of a violation of his right to a hearing within a reasonable time as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention and this
part of the application must, therefore, be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that the District Court and the
Supreme Court violated Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention by drawing conclusions from police reports without examining
witnesses on his behalf. He refers in this respect to the witness M
from the Netherlands.
The Commission recalls that the applicant did not request the
District Court to hear M as a witness. Nor has he submitted evidence
which could substantiate that the District Court failed to comply with
requests for the hearing of other witnesses on his behalf, but it is
true that part of the documentary evidence in the case consisted of
police reports concerning the applicant's own statements to the police,
the contents of which he contested.
In this respect the Commission recalls that the admissibility of
evidence is primarily a matter for regulation by national law. As a
rule it is for the national courts to assess the evidence before them.
The Commission's task is to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (cf. for example Eur. Court H.R., Kostovski judgment of
20 November 1989, Series A no. 166).
The Commission finds that the police reports were not the only
evidence in the case. In the course of the main proceedings in the
District Court witnesses were heard as well as the applicant and the
co-accused. The Commission finds nothing which could give rise to any
misgivings as regards the fairness of the applicant's trial or his
right to a proper defence in this respect. Moreover, the Commission
recalls that the question concerning the contents of the police reports
was thoroughly examined by the Court and both sides had the opportunity
to express their views to the Court. In these circumstances the
Commission finds that it was clear to the Court how the reports had
been made, that the applicant denied any knowledge of their contents,
and that, therefore, they could not be considered to be a reliable
first-hand source of information.
As regards the proceedings in the Supreme Court the Commission
recalls that a public hearing was held during which the applicant could
be present and could address the Court. It is true that the Supreme
Court did not hear the witnesses in the case but, where necessary,
relied on their statements as these appeared from the District Court's
transcripts. However, the use of such statements is not in itself
inconsistent with Article 6 (Art. 6) of the Convention. Although in
principle the evidence must be produced in the presence of an accused
the Commission and the European Court of Human Rights have consistently
held that the use of statements obtained even at a pre-trial stage may
be accepted, provided the rights of the defence have been respected
(cf. for example Eur. Court H.R., Delta judgment of 19 December 1990,
Series A no. 191). These rights require that the accused had the
opportunity, either at the time the witness made the statement or at
some later stage of the proceedings, to challenge and question the
witness. It is clear that the applicant had such an opportunity.
Nevertheless, the Commission cannot exclude that situations may
occur where the appeal proceedings before a court with jurisdiction as
to both the facts and the law require that an accused's guilt or
innocence could only, as a matter of fair trial, be properly determined
with a direct assessment of the evidence given by a witness, namely
where the crucial question concerns the credibility of the person
involved (cf. Eur. Court H.R., Ekbatani judgment of 26 May 1988,
Series A no. 134). The present case, as submitted by the applicant,
does not, however, give the Commission any reason to conclude that the
case, as it stood before the Supreme Court, raised questions of fact
which could not be adequately resolved on the basis of the available
material. In this respect the Commission has also noted that the
applicant did not avail himself of the possibility under section 46 of
the Supreme Court Act to request the Supreme Court, in special
circumstances, to hear witnesses.
Having referred to the above the Commission finds no appearance
of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Finally, the applicant complains that the review by the Supreme
Court was not in conformity with Article 2 of Protocol No. 7 (P7-2) to
the Convention as the Court did not hear any witnesses.
Article 2 of Protocol No. 7 (P7-2) to the Convention reads as
follows:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence
reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall
be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first
instance by the higher tribunal or was convicted following
an appeal against acquittal."
The Commission recalls that the Supreme Court held a hearing in
the case and that the Court had the competence to consider both points
of fact and law. In these circumstances, and having regard to its
conclusion in respect of Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention, the Commission finds that the review afforded fulfilled the
requirements of Article 2 of Protocol No. 7 (P7-2) to the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy