AS TO THE ADMISSIBILITY OF
Application No. 17168/90
by Gabor NEMET
against Sweden
The European Commission of Human Rights sitting in private
on 7 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
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 August 1990
by Gabor NEMET against Sweden and registered on 19 September 1990
under file No. 17168/90;
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 applicant is a Hungarian citizen, born in 1954. He
resides in Sweden. For the time being he is serving a sentence of
seven years imprisonment. Before the Commission he is represented by
his lawyer, Mr. Per Svensson, Njurunda, Sweden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 26 January, 4 February and 23 February 1987 the Swedish
Police held interviews in the Netherlands with a Hungarian citizen,
J.O., who had been arrested there. At the interviews, J.O. gave
himself up as being one of the robbers in a robbery which took place
on 22 September 1986 at Stuvsta, a suburb of Stockholm. J.O. stated
that he, the applicant and a third Hungarian, J.N., had committed the
robbery.
Subsequently, the applicant was prosecuted at the District
Court (tingsrätten) of Huddinge for inter alia the robbery. The
prosecutor claimed in essence the following: The applicant had
together with two other men [J.O. and J.N.] decided and planned to
commit an armed robbery at a bank at Stuvsta. The robbery was
committed on 22 September 1986. The previous night the applicant and
the two others went to Stuvsta in a car. The applicant and J.O. broke
into the bank, each of them armed with a sawn-off shotgun. In the
morning the two men, who were masked, overpowered the arriving bank
clerks and had them tied up with tape. One of the clerks was forced to
open the vault. The robbers managed to get away with approximately
1,5 million SEK (Swedish Crowns). They escaped together with the
third man [J.N.], who was waiting outside. The stolen money was shared
between the three of them.
There was a hearing at the District Court. The applicant, who
was present, denied that he had anything to do with the robbery.
Neither J.O. nor J.N. were present at the hearing. However,
the three police reports containing the interviews with J.O. were
invoked by the prosecutor and read out at the hearing. The two
policemen, L.-G.J. and N.E., who had conducted the interviews were
heard. Furthermore, the four bank clerks concerned were heard as well
as two other witnesses.
The applicant admitted that he knew J.N. and J.O. The latter
he had met earlier in a prison in Sweden. He had no explanation for
the statements made by J.O. The applicant further stated that during
the period of 13 December 1985 - 27 January 1987, when he was on the
run from prison in Sweden, he had earned his living inter alia by
undeclared work and that some money (87,000 SEK) that was found when
he was arrested, derived from this work.
In its judgment of 28 December 1988 the District Court stated
inter alia the following:
(translation)
"When considering the question of guilt the Court finds that
the applicant essentially has refused to answer questions.
[The applicant], who has been on the run from prison since
September 1986, has not even tried to provide an alibi for the
relevant period of time.
...
The statements made by J.O. at the interviews in the
Netherlands are of great importance when deciding the
question of guilt.
...
When examining the police reports more closely, the Court
finds that the statements of J.O. are very detailed and that
the contents strongly indicate that J.O. himself took part
in the relevant course of events.
Considering whether the statement of J.O. can be used in
order to find [the applicant] guilty of the robbery the
Court notes [inter alia] that it was not possible to have
J.O. examined before a Swedish Court. [The applicant's]
lawyer had not had the possibility to put questions to J.O.
Therefore the Court must be very careful when evaluating the
strength of J.O.'s statements. Only when they are supported
by other evidence invoked, the statements can be used in a
judgment against [the applicant].
In accordance with the statements of [the bank clerks and a
policeman] it is without any doubt that the course of events
concerning the robbery was similar to what the prosecutor
has alleged. The statements of J.O. are in all important
parts essentially consistent with this scenario. As an
example it could be mentioned that J.O. described that he
first tried to drill a hole into the bank, but failed. This
is in accordance with what the policeman who examined the
bank observed. Further examples are J.O.'s statements
on how and in what order the bank clerks were overpowered
and how the robbers took the money.
...
To sum up, the Court finds that the statements made by J.O.
are so detailed and that they get such a support from other
evidence in the case that they must be considered as being a
correct description of the robbery.
There is nothing to indicate that J.O. should have any
reason for reporting [the applicant] on false grounds. [The
applicant] has no alibi and he has not co-operated in the
investigation at all. What he has alleged about the 87,000
SEK, is not probable.
All in all the Court finds that the statements of J.O. are
getting so much support from other circumstances that it is
without any doubt that [the applicant] was one of the
persons committing the robbery."
The applicant was found guilty of inter alia aggravated
robbery. He was sentenced to seven years imprisonment and ordered to
pay 1,368,000 SEK in damages to the bank and 10,000 SEK to each of
two bank clerks.
The prosecutor and the applicant appealed against the judgment
of the District Court to the Svea Court of Appeal (Svea hovrätt), the
prosecutor applying for an increased sentence and the applicant
claiming that he should be acquitted or, a least, that the penalty
should be reduced.
In addition the applicant alternatively claimed the following:
1. The Court should not allow the prosecutor to invoke the police
reports containing the interviews with J.O.
2. The Swedish authorities should make a request for the
extradition of J.O. to Sweden in order to ensure his presence at the
hearing before the Court of Appeal.
3. The Court of Appeal judges, the applicant's counsel and the
prosecutor should be present if there were to be a separate hearing of
J.O. before a Belgian Court. (At the time of the proceedings in the
Svea Court of Appeal, J.O. was in prison in Belgium where he served a
life sentence.)
4. At least the applicant's counsel and the prosecutor should be
present at such a separate hearing before a Belgian Court.
A Swedish request for the extradition of J.O. to Sweden was
rejected by the Belgian authorities.
Subsequently, in a decision of 31 March 1989, the Svea Court of
Appeal stated:
"The Court considers that taking of evidence at a Belgian
Court is the best available possibility and decides
accordingly as there are particular reasons (synnerliga
skäl) at hand for the taking of such evidence."
The prosecutor and the applicant's lawyer were invited to submit
questions in writing to the Court of Appeal to be asked at the Belgian
Court.
Later, it was known that according to Belgian law a defence
counsel was not allowed to be present at an examination before a
Belgian Court. Therefore, the applicant objected to the Svea Court of
Appeal against the taking of evidence at a Belgian Court unless his
counsel was allowed to be present at the examination. Furthemore, his
counsel submitted a list of questions he wished to be put to J.O. and
reserved the possibility to ask supplementary questions.
In a decision of 7 June 1989 the Svea Court of Appeal decided
to maintain its decision of 31 March 1989. The Court stated that it
had no competence to decide who should be present at a hearing before
a foreign court.
On 9 and 10 November 1989 J.O. was heard before the Belgian
Court.
On 11 December 1989 the Svea Court of Appeal started the
hearing in the case. The applicant's lawyer invoked an obstacle to
the hearing (hinder mot huvudförhandling) on the ground that the
interrogation of J.O. in Belgium was not reliable as evidence. After
delibarations the Court stated:
(translation)
"The taking of evidence in Belgium is in accordance with
Swedish law. It does not concern an anonymous witness. [The
applicant] has had the possibility to put questions to J.O.
through his lawyer. The question of the reliability of
J.O.'s testimony will later be examined by the Court in the
light of the other evidence adduced. There are no reasons to
change previous decisions to admit J.O.'s statements as
evidence before the Court. There is accordingly no obstacle
to a hearing."
At the hearing before the Svea Court of Appeal, which was on
11 and 13 December 1989, all the witnesses and victims heard by the
District Court were heard again. The questions put to J.O. and his
answers at the examination before the Belgian Court were read out.
Some parts of the police reports containing the interviews with J.O.,
in the Netherlands, were invoked by the applicant.
The applicant invoked as new evidence a doctor's certificate
(läkarintyg enl 7 § lagen om personundersökning i brottmål)
originally used in a criminal case in 1980 in Sweden against J.O.
The certificate stated that J.O. is inter alia "subsolid" (verbally
talented, imaginative, opportunistic, unreliable, a duper, attracted
to things being unusual and sensational), "super-valid" (full of
energy and enterprise) and "super-stable" (insensitive).
In its judgment of 22 December 1989 the Svea Court of Appeal
stated inter alia:
(translation)
"[The applicant] has essentially refused to answer
questions. He claimed that the confiscated money - 87,000
SEK - originates from another robbery in which he took
part. He believes that J.O. reported him as a revenge.
...
At the interrogation before the Belgian Court, J.O. has
explained in detail how he and [the applicant] robbed the
bank while J.N. was waiting in an escape car. J.O. has
essentially confirmed what he previously told the police.
...
There is no technical evidence nor are there witnesses'
statements that link [the applicant] with the robbery or its
preparation. It is, however, clear that [the applicant],
J.O. and J.N. were in the area of Stockholm at the relevant
time and that they knew each other before then. The
observations of the bank clerks do not exclude that [the
applicant] was one of the robbers. Both J.O. and [the
applicant] have been convicted for armed robbery before.
J.O. has also confessed other robberies during 1986.
...
There are a number of aggravating circumstances against [the
applicant] which he has refused to comment upon, i.e. the
money hidden in the flat and the packet in J.M.'s safe
deposit box, the possession of typical robbery equipment
(inter alia a sawn-off shotgun and a pistol with ammunition
and tear-gas spray) and his contacts with J.N. In addition
there is [the applicant's] trip to Norway together with J.M.
at the end of September 1986 in order to buy weapons.
...
It is in the light of these circumstances that the
statements of J.O. should be considered. The examination of
J.O. in Belgium took place before an investigating judge.
J.O. was asked more than 70 questions and has essentially
confirmed what he has stated on several previous occasions.
The witnesses L.-G.J. and N.E., who are investigating
policemen with great experience, have considered the answers
of J.O. as being truthful and without any subsidiary
motives. N.E. has added that J.O. also reported four other
robberies during 1986 and that his statements, so far, have
not been refuted. Concerning these robberies J.O. has named
many other perpetrators. [The applicant's] assumption that
J.O. wanted to take revenge on him by having him wrongly
convicted is not very likely. There is nothing to indicate
that J.O. is lying about the robbery. [The applicant's]
refusal to speak about what he was doing during the time of
the robbery and to comment upon the circumstances against
him therefore strikes back on him. His explanation about the
hidden money is not convincing.
...
To sum up, the Court holds the following. Except for [the
applicant's] denial there is nothing that speaks against the
conclusion that he took part in the robbery. On the
contrary, there are a number of circumstances indicating
that he is one of the robbers. The statements of J.O. must
be considered as being reliable in all important parts. The
Court finds the evidence against [the applicant]
convincing..."
The Svea Court of Appeal thus upheld the judgment of the
District Court in its relevant parts.
The applicant appealed to the Supreme Court (Högsta
domstolen), which on 20 March 1990 granted leave to appeal only
concerning the question whether the decision of the Svea Court of
Appeal of 31 March 1989 to order the taking of evidence before a
Belgian Court was in accordance with the 1946 Act on Taking of
Evidence before a Foreign Court (lagen (1946:817) om bevisupptagning
vid utländsk domstol), and decided that the remainder of the case
remain pending before the Supreme Court awaiting its decision on this
particular point.
In this respect the applicant argued that the 1946 Act was not
applicable to the examination of an accomplice.
In a judgment of 11 May 1990 the Supreme Court stated that the
interrogation of J.O. before the Belgian Court was in accordance with
Swedish law as the 1946 Act should be interpreted to cover the
examination of an accomplice. The Supreme Court found no reason to
grant leave to appeal in respect of the remainder of the complaint and
therefore upheld the judgment of the Svea Court of Appeal of
22 December 1989.
In a dissenting opinion two of the five judges in essence
argued that further examination of the case would be necessary before
deciding whether the taking of evidence before the Belgian Court was
in accordance with Swedish law. They therefore suggested that the
Supreme Court grant leave to appeal for the whole case and that a new
hearing be held.
COMPLAINTS
The applicant complains that he did not get a fair trial as he
was convicted on the basis of statements made by the accomplice, J.O.,
who was not present at the hearing. Furthermore, he complains that
J.O.'s statements were made before an investigating judge at a Belgian
Court without him or his counsel being present and without a
possibility to ask J.O. supplementary questions. The applicant also
complains that the decision to have J.O. questioned by a Belgian judge
was not in accordance with Swedish law. He invokes Article 6 paras. 1
and 3 (d) of the Convention.
THE LAW
1. The applicant complains under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that he did not get a fair trial
as he was convicted on the basis of statements made by the accomplice,
who was not present at the hearing, that the statements were made
without him or his counsel being present and without a possibility for
him to ask supplementary questions. Article 6 (Art. 6) in so far as
relevant reads:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by [a] ... 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 contained 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, para. 25).
Although J.O. was questioned as an accomplice, he should for
the purposes of Article 6 para. 3 (d) (Art. 6-3)d) be regarded as a
witness - a term to be given an autonomous interpretation (Eur. Court
H.R., ibid.) - because the Court of Appeal took account of his
statements, which were read out at the trial.
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., para. 26).
The Commission further recalls that according to constant
case-law all the 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 for it to
be admitted in evidence must always be made in court and in public; 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. 6-1,
6-3-d), 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 statements or at a later
stage of the proceedings (Eur. Court H.R., ibid., para. 27).
In the present case the Swedish authorities tried to have J.O.
extradited to Sweden in order for him to give evidence before the
Court of Appeal. However, he served a life sentence in Belgium and
the request was refused. Therefore the Court decided to have him
questioned by a Belgian Court, this being the best available
possibility. The Commission considers that it would clearly have been
preferable if it had been possible to hear J.O. in person, but in the
circumstances, this could not be done. Subject to the rights of the
defence being respected, it was therefore open to the Svea Court of
Appeal to have regard to the statements made by J.O. before the
Belgian Court, in particular in view of the fact that it could
consider them to be corroborated by other evidence (cf. Eur. Court
H.R., ibid., para. 28).
The applicant and his counsel were not, according to Belgian
law, allowed to be present when J.O. was questioned. On this
situation, however, the Swedish Court had no influence. Both the
prosecutor and the counsel of the applicant submitted questions in
writing to be asked at the Belgian Court. The previous statements of
J.O. from the pre-trial stage were then available to them. J.O. was
asked more than 70 questions. In his answers he essentially confirmed
what he had stated earlier. His statements were detailed. The
defence had the possibility to criticise the statements before the
Court of Appeal. In these circumstances, the Commission finds that
the rights of the defence have been sufficiently respected on this
point.
Furthermore, the Commission notes that, although the
statements in question were of great importance in the case, which the
Svea Court of Appeal was well aware of, the Court also considered
other circumstances - i.e. the hidden money, the packet in a safe
deposit box, typical robbery equipment that was found, etc. - when
evaluating the statements of J.O. Moreover, the bank clerks and the
investigating policemen were heard. The statements of J.O. were thus
not the only evidence on which the Svea Court of Appeal based the
conviction.
In the light of these circumstances, the Commission does not
find that the limitation, which derived from J.O.'s absence at the
trial, restricted the possibilities of the defence to a degree
irreconcilable with the Convention. Accordingly, the Commission
does not find that the applicant's trial was unfair.
2. As regards the question whether the decision to take evidence
at a Belgian Court was in accordance with Swedish law, the Supreme
Court gave an affirmative reply. The admissibility of evidence is
primarily a matter for regulation by national law, and it is, as a
rule, for the national courts to assess the evidence before them (Eur.
Court. H.R., Asch judgment of 26 April 1991, Series A no. 203, para.
26). This is therefore not a task incumbent on the Commission.
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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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