AS TO THE ADMISSIBILITY OF
Application No. 29185/95
by M.A. and B.S.
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mr J.-C. GEUS, Acting President
Mrs G.H. THUNE
MM G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 15 June 1995 by
M.A. and B.S. against Norway and registered on 9 November 1995 under
file No. 29185/95;
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 applicants are Iranian citizens, born in 1967 and 1968
respectively. At the time of lodging their application they were
serving their prison sentences at Bergen Prison in Norway. Before the
Commission the applicants are represented by Mr John Christian Elden,
a lawyer practising in Oslo.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants were arrested on 1 September 1993 and detained on
remand. They were charged with drug trafficking. Other persons who were
to some extent involved in the criminal offences were arrested in
Denmark and subsequently convicted of the charges brought against them
there.
During the police investigations in the applicants' case a
request was made on 25 November 1993 to the Danish authorities in order
to obtain evidence from witnesses in Denmark. One of these witnesses,
A, was at that time serving his prison sentence in Denmark having been
convicted of drug trafficking related to the applicants' case. A court
session took place in Denmark on 16 December 1993 in the presence of
representatives of the Norwegian public prosecutor and the applicants'
defence counsel. It turned out, however, that the witnesses could not
testify under the applicable Danish rules since the applicants were not
present in person and since their counsel insisted on their presence.
The case against the applicants commenced on 5 April 1994 in the
Gulating Lagmannsrett (High Court) sitting with a jury. During the
proceedings which lasted until 15 April 1994 the applicants, assisted
by counsel, had the opportunity to address the court and to submit what
in their opinion was of relevance to the outcome of the case. The court
furthermore heard a total of 17 witnesses and a substantial volume of
documentary evidence was submitted.
During the proceedings a dispute arose regarding the hearing of
a Danish police officer, B, as to what the above mentioned witness, A,
had told him in private, something which apparently differed from A's
submissions as set out in the official police reports. Counsel for the
applicants protested against this and maintained in particular that
this would amount to inadmissible hearsay evidence and that in fact
this would furthermore be equivalent to obtaining evidence from A
without the defence having had the opportunity to put questions to him.
On 8 April 1994 the High Court decided in favour of allowing B
to be heard. The court stated, inter alia, as follows:
(Translation)
"As regards (the applicants) the court finds that the
European Convention on Human Rights does not prohibit (B)
from testifying in the circumstances. Quite a substantial
volume of evidence has been submitted concerning their
involvement and the court finds that (B's) testimony is not
of such importance that there is reason to refuse the
evidence having regard to case-law.
The court does not consider it to be of importance that it
concerns a statement from (B) concerning interrogations/
talks with (A) and not a de facto police interrogation
... . The prosecution has acted correctly and allowed the
accused to defend their interests as far as possible.
Considering the case as a whole - which is required in this
kind of cases - the court attaches importance to the fact
that considerable evidence has been submitted concerning
(the applicants) in addition to the statements from (B) ...
. A possible conviction would not in their case have to be
based mainly on (B's) statement but mainly on (statements
from) witnesses and documentary evidence presented in
court. In addition counsel for the defence may refer to the
doubts which may appear due to the fact that (A) did not
make his statement directly to the court. Furthermore, in
Norwegian law there is no prohibition against hearsay
evidence. The right to take evidence from a police officer
shall at least not be less than the right to read out
statements made by him."
Following an evaluation of all available evidence the applicants
were found guilty by judgment of 15 April 1994 and sentenced to
six years' and four years and six months' imprisonment, respectively.
On 28 and 29 April 1994 the applicants requested leave to appeal
to the Supreme Court (Høyesterett). They maintained, inter alia, that
the hearing of B about his private talks with A violated the principles
of a fair trial and Article 6 para. 3 (d) of the Convention. On
25 June 1994 the Appeals Selection Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) granted leave to appeal.
On 15 December 1994 the Supreme Court rejected the appeal on its
merits by three votes to two. On behalf of the majority Justice Skåre
stated, inter alia, as follows:
(Translation)
"(A) was called to appear in court during the main hearing
in accordance with the provisions of the Act of
21 March 1975 on the obligation to give evidence in the
Nordic countries (lov om nordisk vitneplikt) but he refused
to appear. The Act does not ... contain provisions by which
he could have been brought by force to the court. I agree
... that the situation according to (the Criminal Procedure
Act) would have allowed the reading aloud of the police
reports and that, in such circumstances, it must be
examined whether the court ought to have adjourned the case
or refused to hear (B), having regard to the elucidation of
the case and the general requirement of an appropriate
procedure.
The case was investigated having in mind that (A) as well
as the other Danish witnesses might refuse to appear during
the trial in Norway. The request for the taking of evidence
(in Denmark) must be seen in this light. The prosecution
requested in this respect that the presence of the accused
should be refused according to section 748, subsection 5 of
the Danish Administration of Justice Act (retsplejeloven).
... According to the prosecutor this request was connected
with the fact that the Danish witnesses in their statements
to the police had expressed their intention not to make
statements if the accused were present.
I understand (the Danish court records) to mean that the
court could not take evidence from (A) when he had accepted
to make his statement in the presence of the accused and
when counsel for the defence had requested their presence.
As I understand the court records, however, counsel for the
defence could themselves have ensured that the taking of
evidence proceeded, had they dropped their request that the
accused be present.
When the (Danish) court announced that it lacked competence
(A) had maintained that those who were charged in Norway
were innocent ... . By the way he had said the same during
a police interrogation the day before. Counsel for the
defence have said, however, that they wanted to confront
(A) with what (B) had stated about the explanations given
by (A) and which did not appear in the police reports.
However, counsel for the defence knew already at the time
of the taking of evidence (in Denmark) what (B) had said.
Therefore, it is difficult to see why questions were not
asked during that court session. Counsel for the defence
were prepared for a situation where (A) would give evidence
without the presence of the accused and the situation was
not particularly special ... . It is also somewhat
difficult to see the point in a further examination -
immediately or through a second taking of evidence. (A) had
given evidence which supported the accused and the question
regarding his credibility appears first and foremost to be
a question directed at the prosecution.
(A's) explanations in Denmark had to be taken into account
when the evidence available to the High Court was
evaluated. I cannot see that there was anything to gain
from adjourning the case. There is no reason to believe
that (A) would have appeared to be a stronger witness
following a new interrogation than he was vis-à-vis counsel
for the defence during the proceedings in the High Court
when he totally denied (B's) statements. On the other hand
counsel for the defence had every opportunity to challenge
(B's) credibility.
In its evaluation of the case as a whole the High Court
attached importance to the fact that in addition a
considerable volume of direct evidence had been submitted.
'A possible conviction would not in their case have to be
based mainly on (B's) statement but mainly on (statements
from) witnesses and documentary evidence presented in
court'. What the High Court says here is based on what was
already available, inter alia, as a result of the hearing
of three witnesses from Denmark. One of these witnesses was
the other (person who had sold the narcotics) and the two
others had been the couriers in the case. In my opinion
nothing has emerged which shows that the High Court's
evaluation was wrong. Considering the case as a whole I
cannot see that the High Court committed an error by
accepting statements from (B)."
COMPLAINTS
The applicants complain that their conviction was decisively
based on hearsay evidence from a person to whom they had no opportunity
to put questions. They invoke Article 6 para. 1 and Article 6 para. 3
(d) of the Convention.
THE LAW
The applicants complain in essence that they did not receive a
fair trial. In this connection they rely on the following provisions
of the Convention:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
...
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 source of the applicants' allegation was the use as evidence
by the Gulating High Court of the witness statements of the Danish
police officer (B) which included hearsay evidence, i.e. statements
from another person (A) to whom they had not had the opportunity to put
questions.
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 HR, Kostovski v. the Netherlands judgment
of 20 November 1989, Series A no. 166, p. 19, para. 39).
The Commission finds that all the evidence must normally be
produced in the presence of the accused at a public hearing with a view
to adversarial argument (cf. Eur. Court HR, Barberá, Messegué and
Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 34,
para. 78). This does not mean, however, that the statement of a witness
must always be made in court, if it is to be admitted in evidence, as
this might in some circumstances prove impossible.
The Commission does not find that the principle adopted by Norway
as regards the free evaluation of evidence as such runs counter to
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, and hearing the
Danish police officer (B) as a witness does not therefore disclose any
appearance of a violation of this provision. Nevertheless, the
Commission has not overlooked that B's testimony included information
of what A had told him in private and the Commission would not exclude
that the use of such testimony, instead of hearing A directly, could
raise an issue under Article 6 (Art. 6) of the Convention as it was to
some extent taken into account by the trial court.
The Commission notes that counsel for the applicants were
afforded the opportunity to put questions to A during the court session
in Denmark, but chose not to make use thereof. Furthermore, the
Commission finds that the information obtained by police officer B was
far from being the only evidence in the case. It was also clear to the
High Court that this evidence could not be considered to be reliable
first-hand information. The Commission finds that the applicants'
convictions were not based to any decisive extent on this evidence. In
particular it recalls that in the course of the main proceedings in the
High Court the testimony of 17 witnesses was heard at the request of
the prosecutor and the applicants and it is clear from the High Court's
judgment, as well as from that of the Supreme Court, that the
applicants' convictions were based on this testimony. Nothing has
emerged which could give rise to any misgivings as regards the fairness
of the applicants' trial or their right to a proper defence in this
respect. In these circumstances the Commission does not find that the
fact that the High Court did not exclude B's evidence could lead to the
conclusion that the applicants did not have a fair trial within the
meaning of Article 6 (Art. 6) of the Convention.
The Commission finally recalls that the guarantees in paragraph
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 incident invoked by the applicants and has
found that it 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 either.
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.
M.-T. SCHOEPFER J.-C. GEUS
Secretary Acting President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy