AS TO THE ADMISSIBILITY OF
Application No. 17389/90
by Arne MYRDAL
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 May 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
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 21 July 1990 by
Arne Myrdal against Norway and registered on 5 November 1990 under file
No. 17389/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant is a Norwegian citizen, born in 1935 and resident
at Bjorbekk. Before the Commission he is represented by Mr. Erik Gjems-
Onstad, a lawyer practising in Hvalstad, Norway.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was a member of the organisation "Folkebevegelsen
mot Innvandring" - FMI ("The Movement against Immigration").
On 5 December 1988 the police of Oslo was contacted by a
journalist who stated that he had certain information concerning an
action against immigrants in Oslo. He alleged that five persons, among
them the applicant, planned to murder immigrants in Oslo with weapons
stolen from a military store. The journalist's "source" was one of the
persons in the group. The police was subsequently contacted by this
person. On 9 December 1988 "the source" - T.K. - and a police officer
met. T.K. confirmed that he was a member of FMI and that he had
attended a meeting at which five persons had planned murder actions
against immigrants. He also confirmed that for this purpose it was
planned to steal weapons from a certain military store, which he
afterwards pointed out to the police.
Later, on 28 December 1988, the police was again contacted by
T.K. This time he informed them that the applicant, together with
other persons, planned to set fire to an asylum camp on Tromøy, an
island near the city of Arendal, and that this attack was to take place
on 3 January 1989.
On 2 January 1989 the police was again contacted by T.K. who said
that he, the applicant and a third person, F.S., were in the process
of transferring dynamite from F.S.'s house to the applicant's home and
that the applicant planned to blow up the asylum camp in Tromøy on the
following day with the dynamite. On 2 January 1989 T.K. fetched the
dynamite at F.S.'s place and delivered it to the applicant. On 3
January 1989 the applicant and T.K. were arrested by the police - which
had followed the action - in the applicant's home. The police found
several kilogrammes of dynamite, detonation caps and electric wire.
Furthermore, they found sketches of the asylum camp. F.S. was later
arrested elsewhere.
On 4 January 1989 the chief of police (politimesteren) of Arendal
brought the applicant, T.K. and F.S. before the first instance court
(forhørsretten) of Nedenes applying for their detention while the
police investigation continued. The applicant was suspected of planning
to blow up the asylum camp on Tromøy and the others of transporting and
possessing the dynamite, respectively. In a decision of 4 January 1989
the court did not find a reasonable ground (skjellig grunn) for
suspicion of the alleged crimes. The applicant, T.K. and F.S. were thus
released.
The public prosecutor appealed againt this decision to the Agder
High Court (lagmannsrett) requesting that the applicant and F.S. be
detained. After a hearing on 6 January 1989, the High Court ordered
only the applicant to be detained. In its reasons the Court stated
inter alia:
(translation)
"Unlike the first instance court, the High Court finds
reasonable grounds for suspecting [the applicant] as
alleged in the accusation against him. In this respect the
High Court finds the fact that dynamite and detonation
caps, which he received from T.K., were found in [the
applicant's] house, to be of decisive importance.
Furthermore, relatively detailed sketches and outlines of
necessary equipment for blowing up the asylum camp were
also found. The High Court fails to see how the equipment
listed on the back of one of [the applicant's] sketches
could be used for purposes other than an explosion.
Moreover, the High Court attaches some importance to [the
applicant's] very strong criticism of Norwegian refugee
policy in general, his criticism of the asylum camp on
Tromøy in particular, and his statements on the use of
weapons in a given situation."
On 20 June 1989 the prosecutor submitted the indictment against
the applicant and F.S. He claimed that on 2 January 1989 in his home
the applicant had received and stored several kilogrammes of dynamite,
detonation caps and fuses for the purpose of damaging the asylum camp
on Tromøy by explosion. F.S. was indicted inter alia for complicity in
the crime.
On 12 September 1989 the trial hearing at the Agder High Court
started. The applicant and F.S. were present and represented by
counsel. 34 witnesses were heard, among them T.K.
By judgment of 22 September 1989, the High Court convicted the
applicant and F.S. of the crimes. The applicant was sentenced to one
year's and F.S. to eight months' imprisonment. In its reasons the Court
stated inter alia:
(translation)
"In determining the sentence, the High Court has paid
attention to the fact that the crime is serious and
generally dangerous (alvorlig almenfarlig forbrytelse). The
background of the case - in particular as regards the
applicant - has a clear undertone of political
disagreement with the official Norwegian policy concerning
the treatment of persons seeking asylum and immigrants. For
general preventive reasons (almenpreventive grunner) it is
necessary to react strongly against the intended use of
explosives as a way of expression in a society which
upholds the freedom of debate. Society must defend itself
against such an objectionable way of expression. ...
...
As a mitigating circumstance it is noted that the police
could have stopped the action earlier, which it tried to do
but failed. For this, the accused cannot be blaimed. Also
as a mitigating circumstance, [the Court] notes the role of
T.K. in the action and his co-operation with the police.
..."
The applicant and F.S. appealed against the judgment to the
Supreme Court (Høyesterett). In particular they alleged that the
conviction was based on an investigation and a taking of evidence which
was not in conformity with Norwegian law. They argued that T.K. had
acted as an undercover agent for the police and that he had provoked
them to act as they did, and, as this was not permitted, the judgment
was not correct and should be quashed or at least, the sentences should
be reduced.
In its judgment of 21 May 1990 the Supreme Court (Høyesterett)
upheld the judgment of the High Court. In its reasons the Court stated
inter alia:
(translation)
"It should be noted that the case was considered during
more than nine days in the High Court and that 34 witnesses
- ten of whom linked with the police - were heard. The
policemen explained to the Court their actions in the case
in its individual stages, i.e. the contacts with [T.K.],
internal police meetings and the police plan to avert an
attack on the asylum camp if necessary. This information
was given at a public hearing...
...
It is clearly established that it was [T.K.] who contacted
the police. [T.K.] gave the police information about the
plan made by the small circle of persons around [the
applicant] to attack persons and buildings. The police was
thus "tipped" about a plan by [the applicant]. The starting
point of the police's involvement in the further
investigation was usual information to the police. This
information gave notice of dangerous activity and clearly
gave the police full authority to look into the matter in
order to have the crime revealed and prevented.
It is clear that the police did not provoke any acts. The
police has not initiated the plan and the activity of the
circle of persons around [the applicant] to act against the
asylum camp. It is also clear that the police has not
provoked any acts in their investigation afterwards."
The Supreme Court also referred to Norwegian case-law and found
that the police investigation in the case was in accordance with the
law.
COMPLAINTS
The applicant alleges that he was provoked by the police acting
in co-operation with T.K. - to a degree which was not in accordance
with Norwegian law - to receive and store the explosives. He
furthermore alleges that he would not have been convicted without this
activity; this implies that he was not convicted "according to law".
He invokes Article 6 of the Convention.
The applicant also alleges that it was never his intention to
cause any damage or to perform the criminal act of which he was
accused, but that among friends he might have mentioned that "something
should be done". He complains that it is not in conformity with
Articles 8, 9 and 10 of the Convention to be convicted for thoughts or
remarks as long as no act has been carried out or any attempts to carry
it out have been made.
THE LAW
1. The applicant alleges that he was provoked by the police, acting
in co-operation with T.K. to receive and store the explosives. He
furthermore alleges that he would not have been convicted without this
activity and that this implies that he was not convicted "according to
law". He invokes Article 6 (Art. 6) of the Convention, which in its
relevant parts reads:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
The Commission recalls that the conduct of law enforcement
authorities in the prevention and investigation of criminal offences
is primarily a matter for regulation by domestic law. In particular,
in the field of dangerous delinquency the authorities may consider it
necessary, in some circumstances, to have recourse to the assistance
of police informers and undercover agents.
In the present case the Commission notes that both the High Court
and the Supreme Court had regard to T.K.'s role in the case. According
to the reasons in the Supreme Court's judgment, T.K. acted as a police
informer. Having received the information, the police took steps not
only to detect the crime but also to prevent the blowing up of the
asylum camp. However, the applicant has not substantiated that the
police organised any of the steps taken by T.K., inter alia the
delivery of explosives.
Furthermore, the Commission recalls that its task under Article
6 (Art. 6) of the Convention is to examine whether during the trial the
evidence for and against the accused was presented in such a manner,
and the proceedings in general were conducted in such a way, that the
applicant had a fair trial. However, whether the court evaluated the
evidence correctly is a question on which the Commission is not called
upon to pronounce itself. Furthermore the validity of the court's
factual conclusions is not subject to the Commission's control.
The Commission recalls that the trial court examined the
statements of 34 witnesses, including T.K. Other evidence, such as the
sketches of the asylum camp and the list of equipment found in the
applicant's home, was considered by the court. Nothing has emerged
which could give rise to any misgivings as regards the fairness of the
applicant's trial or his right to a proper defence in this respect.
In these circumstances, considering the case as a whole, the
Commission cannot find that the applicant did not get a fair hearing
in accordance to Article 6 (Art. 6) of the Convention or that the
complaint as submitted discloses an appearance of any other violation
of that Article.
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. The applicant also alleges that it was never his intention to
cause any damage or to perform the criminal act of which he was
accused, but that among friends he might have mentioned that "something
should be done". He complains that it is not in conformity with
Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention to be convicted
for thoughts or remarks as long as no act has been carried out and no
attempt to carry it out has been made.
The Commission has examined these complaints as they have been
submitted by the applicant. However, it finds that they do not disclose
any appearance of a violation of the rights and freedoms set out in
Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy