The European Commission of Human Rights sitting in private on
5 May 1986, the following members being present:
MM. J. A. FROWEIN, Acting President
C. A. NØRGAARD
G. SPERDUTI
M. A. TRIANTAFYLLIDES
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 5 November 1984 by
B.J. against Denmark and registered on 4 January 1985 under
file No. 11349/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is a Danish citizen, born in 1942. He is a smith by
profession. At the time of introducing the application he was serving
a 5-year prison sentence at Vestre Fængsel, Copenhagen, Denmark.
The applicant was arrested on 13 October 1983 and charged with a
number of offences including one count concerning complicity in
financing and smuggling heroin. During the investigation the
applicant was in addition charged with one count of robbery. A
defence counsel was appointed by the Court and the applicant's case
was brought before the Copenhagen City Court in February 1984. During
the trial nine witnesses were heard as well as the applicant. On
21 March 1984 the Court pronounced judgment in the case. Based on an
evaluation of the statements submitted by the witnesses and the
written material brought forward, the Court found the applicant guilty
of all charges brought against him, except the robbery charge. He was
sentenced to five years' imprisonment. The applicant appealed against
the judgment to the Court of Appeal but only insofar as it concerned
the heroin charge. The prosecution appealed against the judgment
insofar as it concerned the acquittal on the robbery charge.
After having received the court transcripts the applicant informed his
counsel by letters of 22 and 23 April and 5 May 1984 that he wanted a
substantial number of witnesses examined in court in order to prove
his innocence. In his letters the applicant expressed the view that
the witnesses heard by the City Court did not tell the truth and that
other witnesses could clarify the factual circumstances. The case was
scheduled to be heard by the Court of Appeal on 11 May 1984 but it was
postponed until 14 August 1984 since by letter of 3 May 1984 the
applicant's counsel had informed the prosecution that he requested the
hearing of additional witnesses.
On 9 May 1984 the Court of Appeal was informed that the applicant
wanted another defence counsel and through his family the applicant
found another lawyer who was then officially appointed by the Court of
Appeal. Certain correspondence followed between the applicant and his
new defence counsel in which the forthcoming trial before the Court of
Appeal was discussed. An extract of the file was submitted to counsel
on 26 July 1984 and a supplementary extract was submitted on
8 August 1984.
On 17 July 1984 the applicant's cell was searched on the basis of a
search warrant from which it appeared that he had been charged with
the smuggling of narcotics into another prison while detained on
remand. The applicant submits that he has never been informed of such
a charge. Due to the outcome of the search the charge was not
pursued. From the police report on the search, it appears that the
police found 5 letters and 5 envelopes which were put in a sealed
envelope. This material was brought before the City Court the
following day and it was handed over to the police after the Court had
examined it and made sure that it did not contain correspondence
between the applicant and his counsel. Correspondence between the
applicant and his previous counsel was found during a search of
20 July 1984 carried out at the home of the applicant's friend. These
letters were put in a sealed envelope and an attempt was made to hand
them over to the applicant who, however, refused to receive them.
On 20 July 1984 the applicant complained to the prosecutor about the
search, maintaining that the charge on which the search was carried
out was hilarious and only a cover in order to read the confidential
correspondence between himself and his counsel. The applicant's
counsel furthermore appealed against the search warrant of 17 July
which, however, was eventually approved by the Court of Appeal
on 23 October 1984.
On 3, 4 and 5 August 1984 the applicant submitted to the Court of
Appeal and the prosecution a list of the witnesses he wanted examined
in court. The applicant pointed out that all witnesses mentioned,
totalling more than 30, knew the case. He did not, however, specify
what in particular he wanted to obtain by hearing the witnesses, the
reason being that the police had only just submitted the relevant
copies of the case-file to the defence counsel and that, therefore,
the applicant had not had the necessary time to consult him.
On 10 August 1984 the applicant's counsel further requested a
postponement of the criminal case due to the fact that he had not
received the necessary documents and reports from the police until
8 August 1984, that the applicant had requested the hearing of further
witnesses which necessarily should be discussed first and since he had
only recently been appointed counsel for the applicant.
The requests mentioned above were not dealt with by the Court of
Appeal prior to the actual appeal hearings which commenced as
scheduled on 14 August 1984, continued on 16 August and ended on
17 August 1984. The circumstances of the trial in the Court of Appeal
may be summarised as follows.
The requests for a postponement and the hearing of further witnesses
were considered first. Due to the prosecution's objections against
these requests the applicant intervened verbally in such a way that
the presiding judge threatened to have him removed from the courtroom.
The applicant, however, left in protest. After a short break, during
which the applicant was persuaded to return, the prosecutor continued
his arguments against a postponement due to which the applicant again
intervened, was cut off by the presiding judge and then left the
courtroom. It was thereafter decided to proceed in accordance with
Sec. 847 para. 2 no. 2 of the Administration of Justice Act which
permits the court to proceed with the case in the absence of the
accused if he has left the courtroom without permission.
The Court of Appeal then heard the parties' remaining arguments as to
the postponement and the witnesses. In particular regarding the
request for the hearing of further witnesses, counsel pointed out that
it could not be excluded that certain of the persons mentioned in the
list of witnesses, submitted to the Court of Appeal by the applicant,
could furnish information of importance for the case. The Court,
however, decided that there were not at the present stage of the
proceedings sufficient reasons to comply with the requests. The
presiding judge pointed out that the Court reserved its position as to
the production of further evidence. The case was then adjourned until
16 August.
The applicant was present when the trial continued on 16 August. He
was informed of the decisions taken. He protested loudly, demanded
the appointment of a new defence counsel, and started to sing a song.
He was thus removed from the courtroom in accordance with Sec. 151 of
the Administration of Justice Act. After this development the defence
counsel asked the Court for permission to withdraw from the case but
that was refused and the trial proceeded with the hearing of the
witnesses suggested by the prosecution.
The following day, 17 August 1984, the trial continued. The applicant
again intervened. He sang another song and again demanded a new
defence counsel. He was again removed from the courtroom in
accordance with Sec. 151 of the Administration of Justice Act. The
defence counsel anew asked for permission to withdraw since it was
obvious that the applicant refused to accept him as his counsel, but
it was refused. The last witness was thus heard and the defence
counsel subsequently requested a postponement in order to obtain
further evidence referring to the fact that the accused had not been
heard yet and to his request to have a substantial number of
additional witnesses examined. The prosecutor objected to a
postponement and the Court then decided as follows:
"Since there is, according to the information now obtained, and
considering the attitude adopted by the applicant, no reason to
adjourn the case in order to obtain further evidence it is decided
that the case shall continue."
The parties' pleadings thereafter finished and after its deliberations
the Court of Appeal found the applicant guilty of all charges. The
sentence of five years' imprisonment was upheld.
The applicant subsequently asked the Ministry of Justice for leave to
appeal against the judgment, referring to a number of procedural
errors which allegedly had occurred, inter alia that the Court did not
appoint a new defence counsel, that the trial was not postponed and
that he was refused permission to hear witnesses in his defence. The
Ministry of Justice refused leave to appeal to the Supreme Court on
20 December 1984.
COMPLAINTS
Under Art. 6, para. 3, sub-para. b of the Convention (Art. 6-3-b)
the applicant complains that he did not have adequate time to prepare
his defence. He refers to the fact that his second counsel did not
receive a copy of the case file until a few days before the trial
started in the Court of Appeal.
Under Art. 6, para. 3, sub-para. c of the Convention (Art. 6-3-c) the
applicant alleges that the Court of Appeal refused to appoint a
defence counsel of his own choice although he had asked the Court to
appoint a new defence counsel and although his counsel had asked for
permission to withdraw.
Finally the applicant maintains that the Court of Appeal refused to
hear the witnesses requested by him in a way contrary to Art. 6
para. 3, sub-para. d of the Convention (Art. 6-3-d). He alleges that
the evidence submitted by the police did not relate to the factual
circumstances and that he would have been able to prove this had he
been allowed to hear the witnesses requested.
THE LAW
1. The applicant has complained of his conviction on
17 August 1984 by the Court of Appeal and of the court proceedings
concerned.
With regard to the judicial decision of which the applicant complains,
the Commission recalls that, in accordance with Art. 19 of the
Convention (Art. 19), its only task is to ensure the observance of the
obligations undertaken by the Parties to 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 its constant
jurisprudence (see e.g. Dec. No. 458/59, 29.3.60, Yearbook 3 p. 222;
Dec. No. 1140/61, 19.12.79, Collection 8 p. 57 and Dec. No. 7987/77,
13.12.78, D.R. 18 p. 31).
It is true that in this case the applicant also complains that he did
not have adequate time to prepare his defence as secured to him under
Art. 6, para. 3, sub-para. b of the Convention (Art. 6-3-b) and refers
in this respect to the fact that his second counsel did not receive a
copy of the case-file until a few days before the trial started in the
Court of Appeal and that he could not, therefore, properly discuss
with counsel how to proceed in the forthcoming trial.
The Commission recalls that the rights secured by Art. 6, para. 3 of
the Convention (Art. 6-3) are those of the accused and the defence in
general. In order to determine whether these rights were respected,
consideration must be given to the situation in which the defence as a
whole is placed (cf. Dec. Nos. 7572/76, 7586/76 and 7587/76, 8.7.78,
D.R. 14 p. 64 (115) with further references and Dec. No. 11219/84,
10.7.85, to be published in D.R.).
Art. 6, para. 3, sub-para. b (Art. 6-3-b) states that everyone charged
with a criminal offence has the right to have adequate time and
facilities for the preparation of his defence. In the present case
the Commission observes that the applicant was apparently not
satisfied with his defence counsel in the City Court. He therefore
found, through his family, another lawyer who was then officially
appointed by the Court of Appeal. It is not clear when the new defence
counsel was appointed but it appears to have been after 9 May and
before 17 July 1984. That left the applicant and his new counsel a
minimum of almost one month to prepare the case, a period in which
there appears to have been no restrictions as to visits,
correspondence or exchange of information between the applicant and
counsel in order to prepare a defence. The extract of the case-file
was sent to counsel on 26 July 1984 and a supplementary extract
probably on 8 August 1984 that is 19 and 6 days respectively before
the commencement of the trial. Accordingly counsel had the
opportunity to acquaint himself, for the purpose of preparing the
defence, with the results of the findings of the police as well as the
previous proceedings before the lower court. It may be that the
supplementary extract of the case-file was submitted to counsel rather
late. However, considering all the circumstances mentioned above,
the Commission finds that the applicant had sufficient time and
facilities to prepare his defence. The Commission therefore
concludes that this complaint is manifestly ill-founded within the
meaning of Art. 27, para. 2 of the Convention (Art. 27-2).
2. Under Art. 6, para. 3, sub-para. c (Art. 6-3-c) the applicant
has alleged that he was refused a defence counsel of his own choice
since the Court of Appeal refused to appoint a new defence counsel at
his request notwithstanding that his counsel asked for permission to
withdraw.
The Commission recalls that Art. 6, para. 3 sub-para. c (Art. 6-3-c)
guarantees to an accused person that the proceedings against him will
not take place without an adequate representation of the case for the
defence. A right is guaranteed to an effective defence either in
person or through a lawyer (cf. No. 6694/74, Artico v. Italy, Comm.
Report, 8.3.79, paras. 87 and 88). However, if the applicant is
represented by an officially appointed defence counsel the above
provision cannot be interpreted so as to secure to the accused a right
to change the officially appointed counsel, chosen by him, without
well-founded and substantiated reasons.
In the present case the Commission recalls that an officially
appointed defence counsel assisted the applicant during the trial
before the City Court. Awaiting the appeal hearing the applicant
found another defence counsel whom he then asked the Court of Appeal
to appoint. This the Court did, but at the appeal hearing the
applicant then requested the appointment of another counsel, which was
then refused.
In the applicant's submissions there is nothing which indicates that
the applicant was barred from defending himself or from choosing his
own counsel had he been willing or able at his own expense to instruct
one. There is likewise nothing which indicates that the defence
counsel appointed was prevented from acting or that he failed in his
duties. As set out above, the Commission has already found that
adequate time and facilities were at hand for the preparation of the
defence. The Commission thus concludes that the applicant did receive
effective legal assistance in the proceedings before the Court of
Appeal and that therefore this part of the application is manifestly
ill-founded within the meaning of Art. 27, para. 2 of the Convention
(Art. 27-2).
3. The applicant has finally complained that the Court of
Appeal's refusal to hear the witnesses suggested by him violated his
right to examine witnesses as set out in Art. 6, para. 3
sub-para. d of the Convention (Art. 6-3-d).
According to Art. 6, para. 3, sub-para. d of the Convention
(Art. 6-3-d), any person charged with a criminal offence has a right
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". One of the purposes of this
provision is to ensure equality between the defence and the
prosecution as regards the summoning and examination of witnesses but
it does not grant the accused an unlimited right to secure the
appearance of witnesses in court. Furthermore, it is in the trial
court's discretion to refuse to take evidence which is considered
irrelevant or unobtainable (cf. Dec. No. 8417/78, D.R. 16 p. 200 and
Eur. Court H.R. Engel and others, judgment of 8.6.1976).
In the present case the Commission recalls that neither the applicant
nor his defence counsel during the trial indicated what kind of
information of importance for the case could be obtained by hearing
further witnesses. The Commission also recalls that the Court heard
7 witnesses but did not find it necessary to postpone the proceedings
in order to hear further witnesses since, in its opinion, and having
regard to the attitude adopted by the applicant, further evidence
would not be necessary for the evaluation of the substance of the case
which the Court had to consider. The Commission finds no elements
which would indicate that the Court in these circumstances went beyond
its discretion to refuse to take evidence when refusing to hear the
witnesses concerned. Accordingly, an examination of the facts
complained of does not disclose to the Commission any appearance of a
violation of the Convention and in particular of Art. 6 (Art. 6).
ill-founded within the meaning of Art. 27, para. 2 of the Convention
(Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (J. A. FROWEIN)