AS TO THE ADMISSIBILITY OF
Application No. 20434/92
by J. H.
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
H.G. SCHERMERS
F. MARTINEZ
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 13 December 1991
by J. H. against Norway and registered on 4 August 1992 under file
No. 20434/92;
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 1944. He resides
at Raadal, Norway. Before the Commission he is represented by his
lawyer, Mr. Dag Saltnes, Bergen.
In 1984 and 1986 the applicant established certain companies in
Norway and abroad through which he engaged in foreign and national loan
activities and financing. Generally speaking the applicant established
contacts between private individuals and companies in need of capital
and foreign investment and financing companies, in particular the
Export-Finanzierungsbank in Vienna, hereinafter the EFB. Often the
clients were required to deposit certain money in advance in order to
obtain the loans or the financing requested. It turned out, however,
that a number of clients never received any capital and never saw their
deposits again for which reason a police investigation commenced into
the applicant's activities, which extended to several European and non-
European countries.
On 25 April 1990 the public prosecutor for economic crime
(ØKOKRIM statsadvokatembetet) issued an indictment charging the
applicant with nine counts (I - IX) of fraud and/or embezzlement
against a large number of private individuals and companies, as well
as offences against the tax and accounting legislation.
The case commenced in the Bergen City Court (byretten) on
14 January 1991. On that day the applicant requested the hearing of
additional witnesses and furthermore requested the court to refuse the
prosecution permission to submit certain documentary evidence. On
15 January 1991 the City Court adjourned the examination of the
applicant's requests pending the examination of the available evidence
following which the court considered it would be in a better position
to determine the relevance of the applicant's requests.
From 16 January until 11 February 1991 the applicant was heard
as well as 36 witnesses and four expert witnesses. A substantial amount
of documentary evidence was also submitted.
On 12 February 1991 the prosecution requested permission,
pursuant to section 297 of the Criminal Procedure Act (straffeprosess-
loven), to read out statements made by the witnesses Zani and Kadouch
in a French court on 12 January 1989 as well as their statements made
to the French police in June 1988. Counsel for the applicant protested
against this maintaining that neither he nor the applicant had had the
opportunity to question these two witnesses.
Having deliberated, the court decided to allow the prosecution
to read out the statements made in the French court whereas it rejected
the request in respect of the statements made to the French police. The
City Court stated inter alia:
(translation)
"The court finds that section 297 of the Criminal Procedure Act
allows reading out the evidence obtained in a French court on
12 January 1989 concerning the interrogation of the witnesses
Zani and Kadouch. The court assumes that French law does not
allow the accused or his counsel to be present during such
interrogations.
It has been tried to arrange new interrogations of Zani and
Kadouch, where counsel could have been present, prior to the main
hearing, not least through several requests by counsel directly
addressed to the two witnesses. This has not been successful. The
court finds that new interrogations where counsel could be
present must in the present circumstances be considered to entail
such a disproportionate inconvenience to the case that the
existing (transcript of the) court interrogations may be read
out. The court does not find that this would infringe the
Convention on Human Rights as interpreted and implemented by the
Supreme Court (Høyesterett) ...
As regards the statements made to the police in France in
June 1988 in the presence of Norwegian police officers but
in the absence of a representative of the applicant, the
court finds, with some hesitation, that these statements
may not be read out. This should be seen in the light of
the fact that interrogations of the same witnesses in court
took place subsequent to the police interrogations. In such
circumstances, and as the statements made to the police
should comply with the principle in the Human Rights
Convention concerning the accused's right to examine
witnesses, the court finds that this must lead to the
conclusion that these police statements cannot be read out
during the main hearing."
Following this decision the applicant requested the hearing of
fifteen additional witnesses. These were
1. Antansio Panahon, former director and board member of the EFB,
2. Sedfrey A. Ordonez, former member of board of the EFB,
3. Jose Almonte, former member of board of the EFB,
4. Michael de Guzman, former member of board of the EFB,
5. Melquior, former member of board of the EFB,
6. Kit Bradshaw,
7. Felix Ajegbo,
8. Rattan Aggarwal,
9. Susan Carlin,
10. Stuart Conway,
11. Colin Ivin,
12. Roger A. Conway-Hyde,
13. Larry Wilcox,
14. Abraham Kadouch,
15. Charles Zani.
The applicant requested that these witnesses be heard as the
charges against him, mainly in respect of count VI of the indictment,
would not otherwise be sufficiently elucidated. The public prosecutor
on the other hand claimed that these witnesses were of no significance
to the case.
Having deliberated the City Court rejected the applicant's
request. It stated inter alia :
(translation)
"When the main hearing commenced counsel submitted a similar
request for additional evidence in the form of an examination of
witnesses. The court then decided to adjourn the examination of
this request until the available evidence had been submitted.
The court has now been presented with substantial evidence, i.e.
witnesses' statements, statements from four experts and a
considerable amount of documentary evidence. In addition the
accused has made extensive statements.
In view of this, compared with what is at issue in regard
to the different charges, the court finds that the evidence
proposed will be of no relevance in the sense that the
request concerns matters which are sufficiently
proved (bevist). Accordingly, the request is rejected
cf. section 293, subsection 1 (of the Criminal Procedure
Act)."
Section 293, subsection 1, of the Criminal Procedure Act referred
to by the court reads as follows:
(translation)
"The court may refuse to adjourn the proceedings for the
production of evidence when it finds that such evidence
would be of no significance or would lead to delay or
inconvenience which is not in reasonable proportion to the
significance of the evidence and the case."
On 27 February 1991 the City Court pronounced judgment in the
case. The applicant was found guilty of all charges contained in the
nine counts in the indictment except one, and sentenced to four years
and six months imprisonment for offences under the Penal Code, sections
255 and 256 (aggravated embezzlement), and sections 270 and 271
(aggravated fraud), as well as certain offences against the tax and
accounting legislation.
On 19 March 1991 the applicant applied to the Supreme Court for
leave to appeal against the judgment directly to the Supreme Court or,
in the alternative, leave to obtain a new trial in the High Court
(Lagmannsretten). The request for leave to appeal was based in
particular on the fact that the City Court had rejected the applicant's
request to hear witnesses, that witness statements had been read out
and that, in his opinion, the law had been wrongly applied. The request
for a new trial in the High Court was primarily based on the allegation
that the City Court had made a wrong evaluation of the facts and the
evidence.
On 5 July 1991 the Appeals Selection Committee of the Supreme
Court (Høyesteretts Kjæremålsutvalg) refused leave to appeal (to the
Supreme Court) but allowed a new trial in the High Court in so far as
the case concerned the counts VI and VIII of the indictment. In respect
of the remainder of the case the request for a new trial was also
refused.
On 25 November 1991 the new trial commenced in the Gulating High
Court. On that date the applicant requested the hearing of additional
witnesses. The High Court, however, adjourned the examination of this
request until other available evidence had been examined.
From 25 November until 17 December 1991 the applicant was heard
as well as a number of witnesses. Furthermore, a substantial amount of
documentary evidence was submitted. During the trial it became an
object of dispute between the prosecutor and the applicant whether a
statement to the police previously made in the case by the witness,
Harry Andreassen, should be read out. The applicant requested an
examination of the witness in court to which the prosecutor objected.
In a decision of 9 December 1991 the High Court stated inter alia the
following:
(translation)
"With reference to section 297 of the Criminal Procedure
Act, the prosecutor has requested that the witness
Harry Andreassen's statement to the police be read out.
Counsel has objected. Counsel claims that the witness must
appear in court or, alternatively, that the request to read
out the police report be rejected.
The witness's involvement in the case is twofold. He is an
injured party ... and he has also procured loans as an
agent for the witness Solhaug who is involved as an
agent/intermediary. Particularly the witness's role as an
intermediary is the ground for counsel's protest.
According to available information the witness is working
for the UN in Pakistan (Kashmir) on a contract which runs
until November 1992, and will not come to Norway until the
end of that period, except possibly for a summer vacation.
The witness works in a border area which means that it will
take some time for him to come to Norway or even to obtain
his statements there. In addition it may also be doubtful
whether he will obtain the necessary permission from the UN
due to lack of staff in the area.
Accordingly, the conditions for reading out a police report
under section 297 are fulfilled. The court does not
consider that this is contrary to Article 6 para. 3 (d) of
the European Convention on Human Rights to which counsel
has referred. This provision must be viewed in the light of
the principle of Article 6 to secure a fair trial. Until
now the court has heard 33 witnesses apart from the accused
himself. Thus, the court has heard explanations both from
(the witness) Solhaug and from witnesses whom Andreassen
brought into the case. The court has been informed that the
remaining witnesses are not involved in what Andreassen
should possibly explain. In these circumstances the court
cannot but find that the witness Andreassen will be of
little relevance in respect of the court's subsequent
evaluation of the question of guilt ...".
Section 297, subsection 1, of the Criminal Procedure Act to which
the court referred reads, in so far as relevant, as follows:
(translation)
"When a witness is not present at the main hearing, any
reproduction in the court records or a police report of any
statement the witness has previously made in the case may
only be read out if an oral examination is not possible or
would entail disproportionate inconvenience or expense."On
13 December 1991 after the hearing of the available
witnesses had come to an end the applicant maintained his
request to hear further witnesses. These were:
1. Antansio Panahon, former director and member of the board of the
EFB,
2. Sedfrey A. Ordonez, former member of the board of the EFB,
3. Jose Almonte, former member of the board of the EFB,
4. Kit Bradshaw, and
5. Susan Carlin.
The request for the hearing of witness no. 5 was subsequently
withdrawn.
In a decision of 13 December 1991, the High Court rejected the
applicant's request that the remaining four witnesses be heard. The
court stated inter alia as follows:
(translation)
"Counsel for the defence has requested that the proceedings
be adjourned in order to obtain statements from four
additional witnesses, three from the Philippines and one
from the USA. This request was also made at the initial
stage of the proceedings, but the court decided that for
the time being there was no sufficient basis upon which the
significance of these witnesses for the case could be
evaluated. The defendant has withdrawn the request as
regards one of the witnesses. The court has now heard the
accused, 43 witnesses, two experts and in addition,
extensive documentation has been provided. Accordingly, the
court has gained a better position than at the initial
stage of the proceedings, to evaluate this request. The
prosecutor has objected to an adjournment.
The statements of the witnesses at issue can only be
obtained abroad. It is unclear when this could be done and
as regards some of the witnesses, their agreement is
required.
Three of the requested witnesses, Ordonez, Almonte and
Bradshaw are only marginally related to the issues on which
the court must decide and the court considers that they are
of no significance to the case.
Panahon was the director of the EFB and possibly has some
information relevant to the case, but according to what has
already been revealed, the court considers that additional
information from him would not be of any significance in
the case. Besides, having regard to counsel's allegations,
Panahon may easily end up in a position where, as a
suspect, he could refuse to answer questions, cf. section
123 of the Criminal Procedure Act, in case he were to be
questioned in Norway.
Therefore, the court rejects the request to adjourn the
proceedings under section 295 of the Criminal Procedure Act
and considers that the issues are sufficiently clarified
according to section 294. The refusal to hear witnesses is
not considered to be contrary to Article 6 of the European
Convention on Human Rights and the court refers inter alia
to the reasoning for the decision as regards the witness
Harry Andreassen."
Sections 123, 294 and 295 of the Criminal Procedure Act read, in
so far as relevant, as follows:
(translation)
"Section 123. A witness may refuse to answer questions when
the answer may expose the witness ... to any penalty or
loss of esteem.
Section 294. The court shall in its official capacity see
to it that the case is fully clarified. For this purpose it
may decide to obtain new evidence and to adjourn the
hearing.
Section 295. The court shall ... refuse the production of
evidence which it finds to be of no significance, or whose
significance is not in reasonable proportion to the damage
that may be caused to the aggrieved party or other persons.
Likewise the court may refuse to allow the hearing of a
witness or other evidence which has, without reasonable
cause, been concealed during the preparatory proceedings."
On 10 January 1992 the Gulating High Court pronounced judgment
in the case. The outcome was the same as in the City Court of Bergen.
The applicant was sentenced to four years and six months imprisonment.
On 12 March 1992 the applicant applied for leave to appeal to the
Supreme Court. He submitted inter alia that the High Court had applied
the law wrongly and furthermore that procedural errors had been
committed in that the High Court had refused to hear the four witnesses
proposed and allowed the reading out of the statements made by the
witness Andreassen. He maintained that these procedural errors amounted
to a violation of Article 6 of the Convention.
On 30 April 1992 the Appeals Selection Committee of the Supreme
Court refused leave to appeal.
COMPLAINTS
The applicant complains of several infringements of Article 6 of
the Convention in connection with the criminal proceedings instituted
against him. He maintains that the City Court of Bergen violated
Article 6 para. 2 of the Convention, read in conjunction with Article 6
para. 1, when it refused his request for the examination of an
additional fifteen witnesses. He contends that the reasons for the
refusal indicated that the court had already determined the question
of guilt and thereby also showed bias towards him.
The applicant also complains that the refusal to hear the
additional fifteen witnesses violates Article 6 para. 3 (d) of the
Convention.
Furthermore, in respect of the proceedings in the Gulating High
Court the applicant complains of the fact that the court allowed the
reading out of the statements made by the witness Harry Andreassen and,
finally, he maintains that the court's refusal to hear the four
additional witnesses proposed also amounts to a violation of Article 6
para. 3 (d) of the Convention.
THE LAW
The applicant complains in essence that he did not have a fair
trial since, allegedly, he was not presumed innocent until proved
guilty according to law, since he was refused to have witnesses
examined on his behalf, and since the High Court allowed the use of
certain written evidence.
The applicant invokes Article 6 paras. 1, 2 and 3 (d)
(Art. 6-1, 6-2, 6-3-d) of the Convention which read as far as relevant:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by an impartial tribunal ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. 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;
..."
The applicant has referred not only to Article 6 para. 1
(Art. 6-1) but also to paras. 2 and 3 of this Article. In this respect
the Commission recalls that the guarantees in paras. 2 and 3 are
specific aspects of the right to a fair trial set forth in para. 1
(cf., inter alia, Eur. Court H.R., Unterpertinger judgment of
24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, the
Commission will have regard to them when examining the facts under
para. 1 of Article 6 (Art. 6). The Commission further recalls that it
must consider the proceedings as a whole. Its task is to ascertain
whether the proceedings in their entirety were fair (cf. for example
Eur. Court H.R., Stanford judgment of 23 February 1994, Series A
no. 280-A, para. 24). It follows that the Commission must examine the
question of fairness on the basis of the proceedings in the City Court
as well as the proceedings in the High Court. This also follows from
the fact that the guarantees of Article 6 (Art. 6) continue to apply
to the appeal proceedings where the opportunity to lodge an appeal in
regard to the determination of a criminal charge is provided for under
domestic law, since those proceedings form part of the whole
proceedings which determine the criminal charge at issue (cf. for
example Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,
Series A no. 115, p. 21, para. 54).
The applicant first maintains that the grounds on which the
Bergen City Court refused to hear the additional fifteen witnesses
disclose a violation of Article 6 para. 2 (Art. 6-2) of the Convention
in that the court stated that the matter on which these witnesses were
to express themselves had already been "sufficiently proved"
(tilstrekkelig bevist). Thereby, so the applicant contends, the court
in reality had already made up its mind as regards the question of
guilt.
The Commission points out first of all that the question of the
examination of witnesses is a matter which normally falls to be
examined under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention,
cf. below. Neither Article 6 para. 2 nor para. 3 (d) (Art. 6-2, 6-3-d)
of that Article gives a person charged with a criminal offence an
unlimited right to hear witnesses and, accordingly, a refusal to hear
further witnesses does not as such infringe Article 6 para. 2
(Art. 6-2) of the Convention.
The refusal to hear witnesses was based on section 293 of the
Criminal Procedure Act which inter alia allows a court to refuse to
adjourn proceedings for the production of evidence which is found to
be of no significance. Having regard to the circumstances of this case,
the Commission finds that the City Court merely exercised its power
under this provision to decide whether further evidence was necessary
or of any significance in addition to that which had already been
submitted. In particular the Commission finds that, despite the words
chosen, the City Court did not express any finding of guilt and an
examination of this complaint thus fails to disclose any appearance of
a violation of Article 6 para. 2 (Art. 6-2) of the Convention.
The applicant also maintains that the City Court's refusal to
hear the fifteen witnesses in question violated his right to have
witnesses examined in accordance with Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention.
In this respect the Commission recalls that, as a general rule,
it is for the national courts to assess the evidence before them as
well as the relevance of the evidence which defendants seek to adduce.
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention leaves it to the
national courts, generally speaking, to assess whether it is
appropriate to call witnesses and it does not require the attendance
and examination of every witness. Its essential aim is to secure an
equality of arms in the matter (cf. Eur. Court H.R., Vidal judgment of
22 April 1992, Series A no. 235-B, p. 32, para. 33).
In the present case the Commission recalls that the case was
rather complex, involving financial transactions which necessitated
investigations in several countries. The City Court heard 36 witnesses
and four experts and was presented with a substantial amount of
documentary evidence. It was only after having evaluated this evidence
that the court found it unnecessary to obtain further evidence in
respect of the issues which were the basis for the applicant's request
as this evidence, in the court's view and given the evidence available,
would be of no relevance to the evaluation of the substance of the case
which the court had to consider. The Commission has found no elements
which could indicate that the court's decision in these circumstances
was unfair or arbitrary. The court did not, in the Commission's view,
go beyond its proper discretion to refuse to take evidence when
refusing to hear the witnesses requested. Accordingly, an examination
of this complaint does not disclose any appearance of a violation of
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.
As regards the proceedings in the High Court the applicant
complains of the fact that this court refused to hear an additional
four witnesses. However, in these proceedings the Commission recalls
that the court, like the City Court in the earlier proceedings, first
examined the available evidence in order to be in a better position to
evaluate the relevance of the further evidence proposed. Having regard
to the general principles set out above and to the High Court's reasons
for its refusal as stated in its decision of 9 December 1991, the
Commission does not consider that the refusal to hear these four
witnesses discloses any appearance of a violation of Article 6 para.
3 (d) (Art. 6-3-d) of the Convention.
Finally, as regards the High Court proceedings, the applicant
complains of the fact that certain statements made by the witness
Andreassen to the police were read out in court, instead of hearing the
witness in court.
With regard to the evidence of witnesses the Commission here
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 paras. 1 and 3 (d) (Art. 6-1, 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 H.R., Unterpertinger
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 H.R., Delta judgment of 19 December 1990,
Series A no. 191-A, p. 16, para. 36 and the Isgrò 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 Andreassen was not heard
in the High Court.
The Commission recalls that Andreassen was at the time in
question working for the UN in Pakistan, that his statements in the
High Court's view was of little relevance having regard to the other
evidence produced and that, therefore, it would amount to a
disproportionate inconvenience and expense to hear him personally
instead of reading out his statements made to the police. Furthermore,
the Commission recalls that the High Court heard 43 witnesses as well
as the applicant. Thus, Andreassen's statements were far from being the
only evidence in the case and the applicant's conviction was not based
solely or even essentially on Andreassen's statements. The limitation,
which derived from his 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 H.R., Asch judgment of 26 April 1991, Series A
no. 203).
Summing up, the Commission recalls that the guarantees in
paragraphs 2 and 3 of Article 6 (Art. 6) of the Convention are specific
aspects of the right to a fair trial set forth in paragraph 1. The
Commission has considered the particular aspects and incidents invoked
by the applicant and has found that these did not assume such
importance as to constitute a decisive factor in the general appraisal
of the trial. 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
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