AS TO THE ADMISSIBILITY OF
Application No. 19011/91
by M.T.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 16 September 1991
by M.T.J. against Denmark and registered on 29 October 1991 under file
No. 19011/91;
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 an Iranian citizen, born in 1948. He is at
present serving a twelve year prison sentence at Vestre fængsel,
Denmark.
The applicant came from Iran to Denmark in 1984. He applied for
and obtained asylum in 1985.
On 14 September 1989 the applicant was arrested suspected of drug
trafficking. The following police investigations inter alia included
the interrogation of a witness, A, who was detained on remand in
Germany, being involved in drug trafficking as well. From 5 to
7 February 1990 A was interrogated in the remand prison in Germany by
a representative of the Danish prosecution authority. The applicant's
counsel attended the interrogation. It was agreed between the
prosecution and counsel for the defence that the statements obtained
from A could be used in court during the applicant's forthcoming trial
in Denmark. After 2 1/2 days of interrogation by the prosecutor, A said
that he was unable to answer further questions for the time being. No
additional interrogations of A were arranged.
On 9 July 1990 the applicant was formally charged with two counts
of drug trafficking, having smuggled a total of approximately 42
kilogrammes of heroin from Germany to Denmark. His case was heard,
together with those of two co-accused, from 19 November to 11 December
1990 in the High Court of Eastern Denmark (Østre Landsret) sitting with
a jury. During the trial the applicant and the co-accused were heard.
They were all represented by counsel. Furthermore, a total of 5
witnesses were heard, 49 taped telephone conversations were examined
and a number of documents were submitted as evidence, including the
statements obtained in Germany from the witness A. The applicant did
not at any moment during the trial object to the way in which the
evidence was produced and presented, nor did he request the hearing of
further witnesses or the submission of other evidence.
After the taking of evidence the prosecutor and counsel for the
defence pleaded the case. Subsequently, the presiding judge summed up
the case and instructed the jury. In respect of the statements
submitted by A he stated:
(Translation)
"... The interrogations in Germany.
The interrogations which took place in Germany are a
substitute for the proper hearing of the witness here in
court. Such substitution is never as good as the real
thing. It would have been an advantage if the person in
question had appeared here before us to give evidence, in
order to allow the jury and the rest of us to see and hear
him. But that was not possible. The detainee could not be
moved to Denmark. Therefore the prosecution and counsel for
the defence agreed to use the substitute and we must take
it as it is.
The interrogations in Germany did not take place in court,
but in the remand prison. [The applicant's counsel] ...
personally attended the interrogation. The witness was not
obliged to make statements and [he] did not do so under
criminal liability. This is quite the same as would have
applied had the interrogation at the time taken place in a
Danish court...
In his pleadings here [the applicant's] counsel complained
that [he] did not have the opportunity to put questions to
[A] and alleged that this reduces the value of the
interrogations...
As regards [A] it is correct that he refused to answer
counsel's questions. This is of course unfortunate and must
be taken into consideration, when one evaluates his
statements. In this I agree with counsel for the defence.
But I would like to recall - as did the prosecutor - that
even if [A] had appeared as a witness here in court he
could have answered the prosecutor's questions and
subsequently refused to answer the questions put by counsel
for the defence."
After the presiding judge's summing up and after the jury's
deliberations in camera the applicant was, on the basis of the
available evidence, found guilty of the charges brought against him.
As it was a jury trial the judgment contained no reasons. The applicant
was sentenced to twelve years' imprisonment and his expulsion from
Denmark was ordered after serving his sentence. One of the co-accused
was acquitted whereas the other was sentenced to thirteen years'
imprisonment.
On 20 December 1990 the applicant appealed against the judgment
to the Supreme Court (Højesteret). In his appeal he referred inter alia
to Article 6 para. 3 (d) of the Convention and requested the Court
either to quash the judgment because of procedural errors committed or
to reduce the sentence.
By judgment of 29 May 1991 the Supreme Court upheld the judgment
of the High Court in its entirety. In respect of the interrogation of
the witness in Germany the Court stated:
(Translation)
"The interrogation of [A] took place in the presence of
[the applicant's counsel] with whom it was agreed in
advance that the statements could be used during the trial,
which also happened without objection from counsel. In the
instruction to the jury it is stated that [A's] refusal to
answer counsel's questions must be taken into account when
considering the value of the statement. At least in these
circumstances the Court does not find that the use of the
statements was contrary to Section 877, subsection 3, of
the Administration of Justice Act (Retsplejeloven), as
interpreted in the light of Article 6 para. 3 (d) of the
Convention.
Neither has any procedural error been committed in respect
of the list of evidence or the summing up and instruction
to the jury."
COMPLAINTS
The applicant complains that he did not get a fair trial by an
impartial tribunal. In this respect he maintains that the presiding
judge's instruction to the jury was contrary to Danish law and that the
Supreme Court judges were partial since they did not correct the
procedural error allegedly made, but rather covered it up. The
applicant relies on Article 6 para. 1 of the Convention.
The applicant furthermore invokes Article 6 para. 3 (c) of the
Convention maintaining that his defence counsel did not defend him
adequately, since he did not object to the use of the witness A's
statements as evidence and did not request the hearing of this witness
in court.
Finally, the applicant complains, with reference to Article 6
para. 3 (d) of the Convention, that he had no opportunity to cross-
examine the witness A.
THE LAW
The applicant complains that he did not get a fair trial by an
impartial tribunal, that his counsel did not defend him adequately and
that he did not have the opportunity to cross-examine a witness whose
statements were used against him during the trial. The applicant
invokes Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c, 6-3-d)
of the Convention which read 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:
...
(c) to defend himself in person or through legal assistance
of his own choosing ...;
(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 complaints under the respective
provisions of para. 3 taken together with para. 1 of Article 6
(Art. 6-3+6-1).
a. In respect of the applicant's complaint that his case was not
heard by an impartial tribunal the Commission recalls that the
existence of impartiality for the purpose of Article 6 para. 1
(Art. 6-1) must be determined according to a subjective test, that is
on the basis of the personal conviction of a particular judge in a
given case, and also according to an objective test, that is
ascertaining whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect (see, for example, Eur. Court
H.R., Piersack judgment of 1 October 1982, Series A no. 53, p. 14,
para. 30).
When considering these elements in the circumstances of the
present case, and in the light of the applicant's submissions in
respect of the alleged partiality of the presiding judge in the High
Court and of the Supreme Court judges, the Commission has not found any
substantiated allegations which would merit a further examination of
this complaint.
b. As regards the applicant's complaint concerning the performance
of his defence counsel the Commission recalls first of all that it may
not, under Article 25 (Art. 25) of the Convention, receive applications
directed against private individuals, including lawyers (cf. for
example No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21). However, it has
nevertheless considered whether the High Court failed, by reason of the
alleged negligence of the applicant's lawyer, to ensure that the
applicant had a fair hearing. In this respect the Commission recalls
that the applicant did not at any stage of the proceedings before the
domestic courts express any misgivings towards his defence counsel who
assisted him before and during the trial in the High Court.
Furthermore, there is in the Commission's view nothing in the
applicant's submissions which indicates that counsel was prevented from
acting or that he failed in his duties. The question concerning the use
of the statements of the witness A was thoroughly examined (see below)
and its determination does not disclose elements which could lead the
Commission to conclude that the applicant did not receive effective
legal assistance in the proceedings before the High Court.
c. Finally, as regards the applicant's complaint that he could not
cross-examine the witness A the Commission 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 the pre-trial stage is not in itself inconsistent with
paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1), 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 (cf. Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 27).
In the present case the Commission recalls that it was clear to
all parties concerned that A could not appear in court in Denmark due
to his situation in Germany. Therefore interrogations were arranged
there with the participation of the applicant's counsel. It is true
that counsel did not receive answers to all questions as A, after 2 1/2
days of interrogation, felt unable to continue for the time being, but
it does not appear from the applicant's submissions that further
interrogations were requested.
During the applicant's trial, however, counsel raised the issue
of the strength of the evidence submitted by A in such circumstances
and in this respect the Commission recalls that, 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).
As stated above A's evidence was obtained in Germany with the
participation of the applicant's defence counsel and the statements
were considered by the presiding judge in his summing up and
instructions to the jury. It was pointed out by the presiding judge
that account should be taken of the way in which A's statements were
obtained and that A had been under no obligation to make statements
under criminal liability. He agreed with counsel for the defence that
the situation was unfortunate. However, the Commission recalls that A's
statements 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 his co-accused. Other documentary evidence and 49
taped telephone conversations were 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.
Having regard to the above, and considering the case as a whole,
the Commission finds that none of the applicant's complaints could lead
to the conclusion that he did not get a fair trial within the meaning
of Article 6 (Art. 6) of the Convention.
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) (S. TRECHSEL)
Full & Egal Universal Law Academy