AS TO THE ADMISSIBILITY OF
Application No. 18425/91
by K.J.
against Denmark
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
C. A. NØRGAARD
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 14 June 1991 by
K.J. against Denmark and registered on 28 June 1991 under file
No. 18425/91;
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 Danish citizen, born in 1964. At present, he
is serving an eight year prison sentence at Vridsløselille, Denmark.
Before the Commission he is represented by his lawyer, Mr. Peter Ørbæk.
In 1987 the applicant rented a workshop where he started a
business of repairing and selling old cars. Subsequently, the applicant
let an office in his workshop to his father (one of the co-accused in
the case) from where the latter apparently ran a business of buying and
selling used cars.
On 23 November 1988 the applicant and his father were arrested
on suspicion of having committed certain drug offences contrary to
Section 191 of the Danish Penal Code. The applicant was released by the
police the same day.
However, on 5 April 1989 he was arrested again and this time
charged with having participated in his father's drug trafficking.
According to the indictment of 22 January 1990 the applicant and
four co-accused were charged with a total of 15 counts of drug
trafficking. The charges concerning inter alia the applicant, nos. 8-9
and 11-15 of the indictment, related to the importation of a total of
approximately 26 kilogrammes of amphetamine from the Netherlands to
Denmark.
The case commenced in the High Court of Eastern Denmark (Østre
Landsret) sitting with a jury on 14 June 1990. From 14 June until
22 June the accused had the possibility of addressing the Court and to
submit what they found to be of relevance to the case. Furthermore, a
total of nine witnesses were heard. One of the witnesses, who was asked
to give evidence on 19 June, requested leave to be relieved from this
duty as he had received a threatening letter. This was granted by the
High Court and the prosecutor was allowed to submit as evidence the
statements made by the witness during a pre-trial court session of 31
August 1988. No objection was made against this by counsel for the
defence.
On 22 June another witness, H, refused to give evidence fearing
for his own and his family's safety. He had participated in the drug
trafficking and had already been convicted therefor. He also refused
to give evidence in the absence of the accused. In these circumstances
the prosecutor read out the statements H had made during his own trial,
a procedure to which counsel for the applicant objected. Counsel
furthermore requested the Court to use coercive measures in order to
make H give evidence and pointed out that H's statements differed
substantially from those of the applicant. H nevertheless refused to
answer any questions and the Court did not use coercive measures.
Subsequently the presiding judge informed the applicant and the co-
accused of the contents of the statements in question. There were no
further incidents in respect of the hearing of the other seven
witnesses.
On 25 June the prosecution and counsel for the defence pleaded
the case. The prosecutor dropped the charges nos. 8 and 9 in so far as
the applicant was concerned. On 26 June the presiding judge summed up
the case and instructed the jury. In respect of the applicant and the
witness H, who on 22 June had refused to give evidence, the presiding
judge directed the jury as follows:
(translation)
"There exists a police report of 14 June 1989, with
subsequent corrections, which concerns [the applicant] and
which involves him in the offences committed to a certain
degree. We know why [the applicant] rejects this report. I
agree with [the applicant's] counsel that police reports
which are not abided by in Court are of very little value
as evidence - if any - in particular if they are retracted
for plausible reasons. I leave it to the jury to decide
whether the retraction is plausible, but let us disregard
the police report.
Next [the applicant] wants to disregard [the witness H's]
statements made in Court during his own trial. Statements
which [the applicant's] counsel otherwise uses against [a
co-accused]. In my opinion the statements involve both [the
applicant] and [the co-accused] in the offences committed
to such an extent that they could lead to their conviction
in respect of the charges nos. 11-15, if the statements
could be taken into account.
However, I agree with [the applicant's] counsel that these
statements were made by [the witness H] during his own
trial - at a time when he was not, as an accused, obliged
to make statements under criminal liability and when [the
applicant's] counsel did not have the possibility of cross-
examination. This is unfortunate, and it is clear that it
reduces the value of the evidence when [H] refused to
confirm the statements during the present trial - to what
extent it reduces the value is for the jury to determine.
But let us also disregard [H's] statements.
With what may the prosecutor then reproach [the applicant]
- and now I only refer to what [he] has stated himself:
- in so far as the charge no. 11 is concerned, probably
only that it is his landcruiser which was used for the
smuggling and which, according to his own statements, he
sometimes let to [one of the co-accused].
- in so far as the charge no. 12 is concerned, that [H]
maybe by the end of the summer came with the landcruiser -
maybe together with [a co-accused] who said he needed the
car a few more days.
By the way the car has disappeared under mysterious
circumstances - and an attempt has been made to make it
unrecognisable,
- in so far as the charge no. 13 is concerned, that induced
by [a co-accused], he delivered 10,000 DKK to [H] in order
to rent or buy a car - the money came from [the co-
accused's] safe in the workshop to which [the applicant]
had access. [H] delivered the car and the keys and said
that it was a car which he should deliver to [the co-
accused].
- in so far as the charge no. 14 is concerned, that when
dismantling the spare tyre he found 3 strange packets and
that he had 3 conversations with [a co-accused] in which
the latter first told him to look at the damage to the
camper and when [the applicant] called to explain that the
damage was an insurance matter, he was subsequently asked
to repair the spare tyre, and that when he found the 3
strange packets he was informed by [the co-accused] to tell
[H] that the latter would only get 30,000 DKK; there was
something about there not being enough,
- in so far as the charge no. 15 is concerned, that for
money belonging to [a co-accused] and also deriving from
the safe in the workshop, he bought a Toyota Corolla under
a false name (because the co-accused bought and sold cars
without declaring the income), and that he delivered the
car to [H] and gave the latter 10,000 DKK from [the co-
accused's] safe on his request."
After the presiding judge's summing up and after the jury's
deliberations in camera the applicant was found guilty in respect of
the charges nos. 13-15. He was acquitted of the charges nos. 11-12. He
was sentenced to eight years' imprisonment. His co-accused received
sentences of between six and twelve years.
On 29 June 1990 the applicant appealed against the judgment to
the Supreme Court (Højesteret). In his appeal the applicant inter alia
referred to Article 6 para. 3 (d) of the Convention complaining of the
fact that the High Court had allowed the prosecution to use the
statements of the witness H, made during his own trial, thereby
preventing the applicant from cross-examining this witness.
By judgment of 1 February 1991 the Supreme Court upheld the
judgment of the High Court in its entirety. In respect of the hearing
of the witness H the Court stated:
(translation)
"Regardless of the fact that the witness refused to speak
and that [the applicant's] counsel therefore did not have
the possibility of cross-examining him, the Supreme Court
finds, on the basis of an evaluation of the case as a
whole, that there is no basis for reaching the conclusion
that [the applicant] did not get a fair trial."
COMPLAINTS
The applicant complains that he did not get a fair trial by an
impartial tribunal. He maintains that due to the fact that the witness
H refused to give evidence and that, therefore, the High Court allowed
the prosecutor to use his statements made during his own trial, his
rights secured to him under Article 6 para. 3 (d) of the Convention
have been violated.
The applicant also complains that since the High Court allowed
such a procedure, despite the applicant's protests, this Court cannot
be considered impartial within the meaning of Article 6 para. 1 of the
Convention.
THE LAW
1. The applicant complains that he did not get a fair trial by an
impartial tribunal as he was convicted on the basis of statements made
by a witness during his own trial. The statements of the witness were
read out at the hearing and therefore the applicant was not given the
opportunity to examine or have examined the witness against him. He
invokes Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention which reads in so far as relevant:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an ...
impartial ... tribunal ...
...
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; ..."
As the guarantees in paragraph 3 of Article 6 (art. 6-3) are
specific aspects of the right to a fair trial set forth in paragraph
1, the Commission will consider the complaint under the two provisions
taken together (cf. Eur. Court H.R., Asch Judgment of 26 April 1991,
Series A no. 203, p. 10, para. 25).
The Commission further recalls that according to its own case-
law, and that of the European Court of Human Rights, all evidence must
normally be produced in the presence of the accused at a public hearing
with a view to adversarial argument. This does not mean, however, that
the statement of a witness must always be made in court and in public
if it is to be admitted in evidence; in particular, this may prove
impossible in certain cases. The use of statements obtained at a pre-
trial stage is not in itself inconsistent with paragraphs 3 (d) and 1
of Article 6 (Art. 6), provided that the rights of the defence have
been respected. As a rule, these rights require that the defendant be
given an adequate and proper opportunity to challenge and question a
witness against him, either when he is making his statement or at a
later stage of the proceedings (Eur. Court H.R., ibid., p. 10, para.
27).
In the present case, the Commission first recalls that before the
decision was taken to allow the statements made by the witness H to be
read out at the hearing both sides had the opportunity to express their
views to the Court. The fact that the witness refused to give evidence
meant that the applicant's counsel was not able to examine the witness
at the hearing but neither was the prosecutor. However, the applicant's
counsel who was present at the hearing when the statements were read
out had the possibility to criticise the witness's statements and thus
cast doubt on his credibility. The Commission does not consider that
the High Court's refusal to use coercive measures in order to make the
witness give evidence, as requested by the applicant's counsel, raises
an issue under Article 6 para. 3 (d) (Art. 6-3-d) as it would most
likely have been to no avail. In these circumstances, the Commission
finds that the rights of the defence have been sufficiently respected
at this stage.
However, the question arises whether the use as evidence of the
statements made by the witness H during his own trial 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 and, 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 (Eur. Court H.R., ibid., p. 10,
para. 26).
In the present case the Commission recalls that the witness H's
statements from his own trial were not the only evidence in the case.
In the course of the main proceedings in the High Court several
witnesses were heard as well as the applicant and the co-accused. Other
documentary evidence was also 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 statements made by H at his
own trial and his refusal to give evidence at the applicant's trial
were considered by the presiding judge in his summing up and
instructions to the jury at the applicant's trial. The presiding judge
then observed that H had made the said statements "at a time when he
was not ... obliged to make statements under criminal liability", that
it was 'unfortunate' that the applicant's counsel could not cross-
examine H and that "it is clear that it reduces the value of the
evidence when (H) refused to confirm the statements during the present
trial." Furthermore, he directed the jury rather to base their decision
on the applicant's own statements.
Having regard to this the Commission is of the opinion that the
administration of evidence in the applicant's case was fair, also in
respect of H's statements, and it does not find that the fact that the
High Court did not expressly exclude H's statements 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 manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Leaving aside the question whether the applicant has exhausted
domestic remedies as regards the complaint that his case was not heard
by an impartial tribunal, the Commission has not found any
substantiated allegations which would merit a further examination
thereof. 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) (S. TRECHSEL)
Full & Egal Universal Law Academy