AS TO THE ADMISSIBILITY OF
Application No. 18672/91
by Karstein Jarle GJERDE
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second 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 26 July 1991 by
Mr. Karstein Gjerde against Norway and registered on 14 August 1991
under file No. 18672/91;
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 Norwegian citizen, born in 1952. He is at
present serving a 6 1/2 year prison sentence at Bergen. Before the
Commission he is represented by his lawyer, Mr. Bjørn Lillebergen,
Bergen.
On 16 November 1989 the Gulating High Court (Lagmannsrett),
sitting with a jury, convicted the applicant's brother of having
participated in the acquisition and importation into Norway of
approximately 1 kilogramme of amphetamine. The judgment acquired legal
force. The applicant, who was charged with the same offences, was not
tried at the same time as he was detained on remand in Spain and was
resisting his extradition to Norway.
In the judgment of 16 November 1989 concerning the applicant's
brother the High Court stated inter alia :
(translation)
"The Court finds it established (det legges til grund) that the
accused in this case, in accordance with a previous arrangement
with his brother (the applicant), agreed with the latter to
obtain approximately one kilogramme of amphetamine and that it
should be brought to Norway via a courier provided by the brother
... The Court finds it established that the accused, compared
with his brother, played a less important role in respect of
obtaining and bringing to Norway [the amphetamine], but that he
was a necessary and important link in the planned trade ..."
Subsequent to his eventual extradition to Norway the applicant's
own case was heard from 5 to 8 November 1990 by the Gulating High Court
sitting with a jury. During the trial the applicant, represented by
counsel, was heard. Furthermore, a total of ten witnesses, including
the applicant's brother, were heard and a number of documents were
submitted as evidence. Among these documents was a copy of the judgment
of 16 November 1989 by which the applicant's brother had been convicted
of drug trafficking involving the same kilogramme of amphetamine as the
one involved in the applicant's case. When the applicant protested
against the use of this judgment as evidence the High Court decided as
follows:
(Translation)
"The public prosecutor has in his list of evidence
requested the submission of the judgment of 16 November
1989 concerning [the applicant's brother]. He has referred
to Section 292, subsection 2, of the Criminal Procedure Act
(Straffeprosessloven) and maintained that there are no
grounds for rejecting this evidence.
Counsel for the defence has maintained that the judgment is
without relevance in the present case. He has inter alia
maintained that the judgment contains certain evaluations
which cannot be of relevance as evidence in the present
case.
The High Court finds that there is no reason for rejecting
the judgment as evidence in this case. It concerns a High
Court judgment, which has acquired legal force, according
to which the applicant's brother was found guilty, and
which concerns the same amphetamine as in the present case.
It concerns evidence which is readily available. The Court
does not find that the evidence concerns matters which are
without relevance to this case and it cannot, therefore, be
rejected, cf. Section 292, subsection 2, second sentence.
This decision is unanimous."
On the basis of all available evidence the jury found the
applicant guilty of the charge brought against him. As it was a jury
trial the judgment contained no reasons. The applicant was subsequently
sentenced to 6 1/2 years' imprisonment.
The applicant appealed against the judgment to the Supreme Court
(Høyesterett). In its decision of 1 March 1991 rejecting the appeal
Justice Dolva stated on behalf of the unanimous Court inter alia:
(Translation)
"In the Supreme Court the appeal is based partly on the
same grounds as in the High Court, but in addition it is
submitted that in any event it was so unfortunate that the
judgment was produced as evidence before the question of
guilt had been decided upon that this must be considered as
being contrary to fundamental procedural principles.
I find it obvious that the evidence could not be rejected
on the basis of Section 292, subsection 2, of the Criminal
Procedure Act which allows the rejection of evidence which
'concerns matters without relevance to the case'. It
relates to statements concerning the applicant's role in
the same factual circumstances, set out in a judgment which
has acquired legal force in respect of another person who
was convicted for having dealt with the same amphetamine as
[the applicant], and where the evidence to a large extent
was the same as in the present case. The parts of the
judgment which were read out cannot be considered to be
without relevance to the case.
I cannot see either that the reading out of parts of the
judgment should be considered as being contrary to
fundamental procedural principles. As mentioned the
evidence was to a large extent identical in the two cases,
with the exception that [the applicant's brother] appeared
as a witness in the case against [the applicant]. The
defence had full opportunities to express its views on the
documentary evidence submitted, including the statements in
the judgment in the other case, and the High Court had to
decide upon this in accordance with the principles of the
free evaluation of evidence. Of course it would have been
an advantage if the cases against both brothers could have
been dealt with in the same proceedings. However, when the
case against [the applicant's brother] was examined, [the
applicant] was detained on remand in Spain and resisted
extradition to Norway ..."
The applicant received a copy of the Supreme Court's decision on
13 March 1991.
COMPLAINTS
The applicant complains that in the judgment of 16 November 1989,
by which his brother was convicted of drug trafficking, he was
described as being the ringleader. He considers this to violate Article
6 para. 2 of the Convention.
Furthermore, the applicant maintains that he was not presumed
innocent and that he did not get a fair trial in his own case, since
the prosecutor was allowed to use the judgment in the brother's case
as evidence. He invokes in this respect Article 6 paras. 2 and 1 of the
Convention.
THE LAW
1. The applicant complains that in connection with his brother's
conviction on 16 November 1989 the court in question did not respect
his right to be presumed innocent until proved guilty according to law.
He invokes in this respect Article 6 para. 2 (Art. 6-2) of the
Convention.
The Commission notes that the judgment was pronounced on
16 November 1989 whereas the application was submitted on 26 July 1991,
that is more than six months after the date of the judgment. The
applicant was at that moment in time detained on remand in Spain and
may not have been aware of this judgment. However, even assuming that
he has complied with the six-months' time-limit set out in Article 26
(Art. 26) of the Convention the application is inadmissible for the
following reasons.
The presumption of innocence enshrined in Article 6 para. 2
(Art. 6-2) of the Convention may be violated if a judicial decision
amounts in substance to a determination of a person's guilt without
that person having been proved guilty according to law and in
particular without him having had an opportunity to exercise the rights
of the defence (Eur. Court H.R., Minelli judgment of 25 March 1983,
Series A no. 62, p. 18, para. 37; mutatis mutandis, Eur. Court H.R.,
Lutz/Englert/ Nölkenbockhoff judgments of 25 August 1987, Series A no.
123, p. 25, para. 60, pp. 54-55, para. 37, and p. 79, para. 37,
respectively).
However, in the present circumstances the Commission finds that
this is not the case. In its judgment of 16 November 1989 the High
Court was not called upon to determine the guilt of the applicant but
that of his brother. Part of the evidence against the brother concerned
the extent to which he (the accused) was involved in the drug
trafficking and what conclusions could be drawn therefrom. As the facts
established indicated the involvement of the applicant in the case the
Commission finds that the High Court's impugned findings must be
considered to be a relevant part of the Court's evaluation of the
evidence presented in the case against the brother. It did not,
however, through this evaluation determine the guilt of the applicant,
something which was a matter to be considered during the applicant's
own trial.
The Commission therefore concludes that the judgment of
16 November 1989 did not amount to a breach of the presumption of
innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the
Convention and 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.
2. The applicant also complains that the use of the judgment of
16 November 1989 as documentary evidence in his own case amounts to a
violation of his right to a fair trial under Article 6 para. 1
(Art. 6-1) and his right to be presumed innocent until proved guilty
according to law under Article 6 para. 2 (Art. 6-2) of the Convention.
The Commission recalls that its task under Article 6 (Art. 6) of
the Convention with regard to the applicant's allegations is to examine
whether the evidence for and against him has been presented in such a
manner, and the proceedings in general have been conducted in such a
way, that he has had a fair trial. However, whether the Court has
evaluated the evidence correctly or not is a question on which the
Commission is not called upon to pronounce. Furthermore, the validity
of the Court's factual conclusions is not subject to the Commission's
control.
In the present case the Commission recalls that the High Court
examined the statements of ten witnesses and numerous documents and is
of the opinion that the judgment was based on an evaluation of these
statements and documents. Especially there is nothing indicating that
the High Court in fulfilling its functions started from the conviction
or 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.
However, the question arises whether the use of the judgment of
16 November 1989 as documentary evidence - a question which was indeed
considered by the High Court and the Supreme Court - complied with the
requirements of a fair trial as guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention. 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, as indicated above, 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, p. 19,
para. 39).
In the present case the Commission finds that the judgment of
18 November 1989 was far from being the only evidence in the case. In
the course of the main proceedings in the High Court the testimony of
ten witnesses was heard, including the applicant's brother, as well as
the applicant himself. Other documentary evidence was produced. It is
undisputed that, in this respect, nothing could give rise to any
misgivings as regards the fairness of the applicant's trial or his
right to a proper defence. Moreover, the Commission recalls that the
question concerning whether or not to allow the judgment of 16 November
1989 as evidence was thoroughly examined by the High Court before the
decision was taken.
Having regard to this, and considering the proceedings as a
whole, the Commission is of the opinion that the taking of evidence was
fair, and it does not find that the fact that the High Court admitted
the judgment of 16 November 1989 as evidence could lead to the
conclusion that the applicant did not get a fair trial within the
meaning of Article 6 (Art. 6) of 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy