AS TO THE ADMISSIBILITY OF
Application No. 25272/94
by Wilhelm Schlüter PEDERSEN
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 13 June 1994 by
Wilhelm Schlüter Pedersen against Norway and registered on
21 September 1994 under file No. 25272/94;
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 Norwegian citizen, born in 1941. He is at
present serving a prison sentence at Ullersmo, Norway. Before the
Commission he is represented by Mr. Edvard Vogt, a lawyer practising
at Bergen.
The applicant has been convicted since the 1950s more than thirty
times for crimes related to violence and economic gain and has spent
more than thirty years in prison.
Following one of his convictions the applicant was in April 1991
placed at Bergen State Prison. On 5 October 1991 an incident occurred
there in which the applicant, being under the influence of intoxicating
beverages, held a prison officer hostage and threatened him and other
officers. After approximately two hours the applicant was overpowered
and placed in a security cell. It appears that he tried to commit
suicide there and he was therefore handcuffed in the cell until the
next day.
Following police investigations an indictment was served on the
applicant on 28 August 1992 by which he was charged with unlawful
deprivation of liberty, threats and assault contrary to sections 223,
227, 128 and 228 of the Penal Code.
On 5 February 1993 the applicant's present representative was
appointed defence counsel and in this capacity he carried out certain
investigations concerning the incident of 5 October 1991. By decision
of 16 April 1993 the Bergen City Court (Bergen byrett) withdrew
counsel's appointment as the Court considered that by the
investigations carried out counsel had violated fundamental procedural
principles and acted contrary to his duties as court-appointed counsel.
On 8 June 1993, however, the Gulating High Court (Lagmannsrett) quashed
the decision. The prosecution's appeal against this decision was
rejected by the Appeals Selection Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) on 2 September 1993.
On 29 September 1993 the applicant requested the President of the
Bergen City Court to remove the judge in charge of the case. He
maintained in particular that the judge had taken various pre-trial
decisions which showed that he was biased against the applicant and
also referred to the fact that the judge was the brother-in-law of a
carpenter who worked at Bergen State Prison.
By decision of 1 October 1993 the Bergen City Court presided over
by its President rejected the applicant's request stating as follows:
(Translation)
"Section 106 subsection 2 of the Court Act (domstolsloven)
concerns disqualification due to relationship by marriage
(svogerskab) with somebody who is involved in the case as
set out in section 106 subsection 1 of the Court Act. The
Court cannot see that Judge T has any relationship by
marriage with the victims in the criminal case. They are
named persons employed at Bergen State Prison. T's
brother-in-law is not among them.
The question remains whether Judge T, through his
brother-in-law, has received such information about the
conditions at Bergen State Prison that he has been
influenced so as to make it impossible for him to examine
the case impartially.
In a decision referred to in RT 1974 p. 1257 the Appeals
Selection Committee of the Supreme Court has examined the
question of a judge's partiality in a criminal case against
a prisoner who demolished furniture in prison. The judge's
membership of the prison's Supervisory Board was not
considered to be a reason for disqualification whereas his
engagement in disputes between the prison management and
the inmates was. Judge T's connection to the conditions at
Bergen State Prison and the inmates must be considered as
being far more remote than the conditions which were
considered as a reason for disqualification in the decision
of the Appeals Selection Committee of the Supreme Court.
Therefore, the Court does not find any reason for
considering judge T to be disqualified due to the fact that
his brother-in-law is employed at Bergen State Prison.
The Court considers that judge T's handling of the case,
including the decision to withdraw counsel's appointment
and the refusal to appoint new experts, is without
relevance to the question of his disqualification. A judge
cannot be disqualified simply because he must decide, as
part of preparing the case, on questions on which the Code
of Criminal Procedure (Straffeprosessloven) requires him to
decide. Against such decisions an appeal may be lodged.
Conclusion:
Judge T is not disqualified as regards the case in
question."
It does not appear that the applicant appealed against the
decision.
On 4 October 1993 the main hearing commenced in the Bergen City
Court presided over by Judge T. No protests were lodged as to the
composition of the Court. The applicant was present and, assisted by
counsel, had the opportunity to address the Court. From 4 to 8 October
the Court furthermore heard twelve witnesses and two experts and also
held an enquiry (åstedsbefaring) at Bergen State Prison. The
applicant's request for the hearing of three additional witnesses and
the appointment of new experts was rejected by the Court which found
that:
(Translation)
"... in the light of the Court's duties pursuant to
section 294 of the Code of Criminal Procedure the case was
fully elucidated without the hearing of the witnesses and
the evidence requested and that this new evidence in any
event would lead to delays and inconvenience which would
not be proportionate to the importance of the evidence."
Following the parties' final pleadings the hearing ended on
8 October 1993. Judgment was pronounced on 18 October 1993. The
applicant was found guilty of the charges brought against him and
sentenced to one year and six months' imprisonment. Furthermore, the
prosecuting authority was empowered to use security measures
(sikringsmidler) pursuant to section 39 no. 1 a-f of the Penal Code for
a period not exceeding five years.
On 14 November 1993 the applicant submitted a request to the
Supreme Court (Høyesterett) for leave to appeal or, in the alternative,
for a new trial in the High Court (Lagmannsrett). He maintained inter
alia that the presiding judge was partial and that a number of
procedural errors had been committed.
The requests were rejected by the Appeals Selection Committee of
the Supreme Court on 15 December 1993.
COMPLAINTS
1. The applicant complains, under Article 3 of the Convention, that
he was subjected to unwarranted and unnecessary cruel treatment by the
prison officers in connection with the incident at Bergen State Prison
on 5 October 1991.
2. Furthermore, he complains that he did not have a fair trial by
an impartial tribunal within the meaning of Article 6 of the
Convention.
THE LAW
1. The applicant complains that he was subjected to treatment
contrary to Article 3 (Art. 3) of the Convention in connection with the
incident which occurred on 5 October 1991 and following which he was
charged with unlawful deprivation of liberty, threats and assault.
The Commission does not consider it necessary to examine whether
the applicant, in respect of this part of the application, has complied
with the requirements of Article 26 (Art. 26) of the Convention as to
the exhaustion of domestic remedies and the six months rule because
even assuming this to be the case the Commission does not consider that
the treatment the applicant was subjected to discloses in the
circumstances any appearance of a violation of Article 3 (Art. 3) 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. The applicant also complains that he was not afforded a fair
trial by an independent tribunal within the meaning of Article 6
(Art. 6) of the Convention.
The Commission recalls, firstly, that with regard to the judicial
decisions involved, its only task, according to Article 19 (Art. 19)
of the Convention, is to ensure the observance of the obligations
undertaken by the parties to the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or
fact have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of any of the
rights and freedoms set out in the Convention. The Commission refers,
on this point, to the established case-law of the Convention organs
(see e.g. Eur. Court H.R., Schenk judgment of 12 July 1988 Series A no.
140, p. 29, para. 45).
It is true that the applicant also complains that the proceedings
were not fair and that the Court was not impartial. He alleges in this
respect that the presiding judge of the Bergen City Court showed bias
against him, exemplified by his attempt, albeit unsuccessful, to
withdraw the official appointment of his defence counsel, by allegedly
harassing and unduly preventing the defence from carrying out its
duties and by refusing to accept further witnesses or appoint new
experts.
The Commission finds that concerning the objective impartiality
of a tribunal appearances may be of a certain importance and account
must be taken of questions of internal organisation. In this respect
the Commission has found nothing in the actual organisation of the
adjudication which would reflect adversely on the City Court's or the
presiding judge's objective impartiality. There remains the fact that
the applicant might not have seen the Court or the presiding judge as
being free from bias due to the fact that the dispute in question, as
well as associated points of procedure, were determined against him.
However, the existence of such a sentiment on the part of a party
against whom the decisions are taken is not sufficient to establish a
lack of impartiality. The Commission has found no other elements which
could raise doubt as to the impartiality of the City Court or the
presiding judge within the meaning of Article 6 (Art. 6) of the
Convention.
The applicant also refers to the fact that he was not allowed to
hear three additional witnesses or to obtain new evidence through the
appointment of two new experts.
In this respect the Commission recalls that the admissibility of
evidence is primarily a matter for regulation by national courts. As
a rule it is for the national courts to assess the evidence before them
whereas it is the Commission's task to ascertain whether the
proceedings considered as a whole, including the way in which evidence
was taken, were fair (cf. for example Eur. Court H.R., Kostovski
judgment of 20 November 1989, Series A no. 166, p. 19, para. 39). In
particular as regards the hearing of witnesses the Commission has had
regard to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, one of
the purposes of which is to ensure equality between the defence and the
prosecution as regards the summoning and examination of witnesses. It
does not, however, grant the accused an unlimited right to secure the
appearance of witnesses in court as it is in the trial court's
discretion to refuse to take evidence which is considered irrelevant
(cf. e.g. Eur. Court H.R., Engel and Others judgment of 8 June 1976,
Series A no. 22, pp. 38-39, para. 91).
In the present case the Commission recalls that the applicant's
case was heard in public in the Bergen City Court where he was present
and assisted by counsel. The Court heard twelve witnesses and two
experts but rejected the requests to hear three additional witnesses
and to appoint two new experts since this would not, in the Court's
view, be necessary for the evaluation of the substance of the case
which it had to consider.
The Commission has found no elements which would indicate that
the Court went beyond its discretion to refuse to take evidence in
the circumstances of the present case. Furthermore, the Commission has
found no other elements which could lead to the conclusion that the
right to a fair trial within the meaning of Article 6 (Art. 6) of the
Convention was not respected.
Accordingly, an examination of the applicant's complaints as to
the fairness of his trial and the impartiality of the Court does not
disclose to the Commission, on the basis of an appraisal of the entire
trial, any appearance of a violation of Article 6 (Art. 6) 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
(M.-T. SCHOEPFER) (H. DANELIUS)
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