AS TO THE ADMISSIBILITY OF
Application No. 21863/93
by Stefan Karl Jørgen TRØBER
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 1988 by
Stefan Karl Jørgen TRØBER against Norway and registered on 17 May 1993
under file No. 21863/93;
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 1947. He is
divorced and his former wife has sole custody of their two sons, born
in 1975 and 1979 respectively. When introducing his application the
applicant was serving an eleven year prison sentence in Norway. He has
now been released on probation and resides in Oslo.
On 19 December 1986 the applicant was arrested, suspected of
having been involved in large scale drug trafficking together with a
number of other persons. The case attracted the attention of the media
and the case was followed by several newspapers which published
articles concerning the ongoing investigation, copies of which have
been submitted to the Commission.
By indictment of 5 August 1987 the applicant was charged with
four counts of drug trafficking contrary to section 162 of the
Norwegian Penal Code (straffeloven) and two counts of illegal threats
contrary to section 222 of the Penal Code. Furthermore he was charged
with one count of illegal possession or use of narcotics contrary to
the Medicament Act (legemiddelloven) and two counts of offences against
the foreign currency exchange legislation. The applicant was one of
eight accused who were all assisted by counsel. The case was heard in
the Agder High Court (Lagmannsrett) sitting with a jury.
By judgment of 9 October 1987 the applicant was found guilty of
seven of the charges brought against him whereas he was acquitted of
one count of drug trafficking and one count of illegal threats. He was
sentenced to eleven years' imprisonment and the sum of 100,000 NOK,
corresponding to the presumed profits gained through the illegal acts,
was confiscated.
On 22 October 1987 the applicant applied to the Appeals Selection
Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) for leave
to appeal to the Supreme Court which is competent to examine questions
concerning alleged procedural errors and sentence but not the question
of guilt. The applicant's appeal was exclusively directed against the
sentence, which the applicant found to be too severe, whereas he did
not allege that any procedural errors had been committed.
On 19 November 1987 the Appeals Selection Committee refused leave
to appeal. The applicant was informed hereof on 17 December 1987.
On 19 April 1988 the applicant requested the High Court to reopen
his case. However, the request was rejected on 5 August 1988. The
applicant's appeal against this decision was rejected by the Appeals
Selection Committee of the Supreme Court on 11 November 1988.
Following the High Court's judgment of 9 October 1987 the
applicant was transferred, on 14 October 1987, to Ullersmo State
Prison. In April 1988 he was transferred to Trondheim District Prison
as the prison authorities had found reason to believe that he planned
an escape from Ullersmo. In June 1988 he was transferred to Oslo
District Prison and, on 15 June 1988, back to Ullersmo. On
30 November 1988 he was sent to Sem District Prison, on
23 February 1989 to Drammen District Prison and from there back to
Ullersmo where he arrived on 28 June 1989. It appears that the
applicant then remained at Ullersmo until spring 1992 when he was
transferred to Krogsrud prison. He remained there until his release on
probation in April 1994.
While the applicant stayed at Oslo District Prison in June 1988
he submitted, on 13 June 1988, a letter to the Commission in which he
made a number of complaints in respect of his trial. The Commission's
reply of 28 June 1988 addressed to the applicant at Oslo District
Prison was redirected to him several times as a consequence of his
transfers to other prisons and it did not reach him until 14 March 1989
when he was placed at Drammen District Prison.
Following his return to Ullersmo in June 1989 the applicant was
immediately placed in a security wing pursuant to a decision of the
prison director which read as follows:
(translation)
"(The applicant) serves a sentence for very serious
narcotics offences having obtained, kept and imported large
quantities of narcotic substances.
On the basis of information from various sources and
certain findings in prison in 1988, there were clear
reasons to believe that an insurrection and escape from
Ullersmo State Prison was imminent. Together with five
other inmates (the applicant) was moved from Ullersmo to
another prison. From the information obtained it was
considered most likely that (the applicant) belonged to
those who stood behind these plans.
Furthermore all inmates started a `sit-down' strike in
November 1988, i.e. they refused to work or to follow the
educational offers.
Information was received from several sources which
indicated that certain inmates were behind the organisation
of this, among them (the applicant), and that they
seriously threatened other inmates in order to obtain their
participation. On the basis of this, (the applicant), among
others, was removed from the prison community cf. section
53, subsection 4 second sentence no. 1 of the prison rules,
and placed in a special wing.
Considering the situation as a whole (the applicant) must
be considered as having a particularly negative influence
on the other inmates' prison conditions and it is thus
decided to place him in the security wing cf. section 1
point c of the placement rules ..."
The applicant remained in the security wing until
17 September 1990. It appears that during this period he was refused
telephone contact with his sons from June until December 1989 and
certain problems arose as to the access to documents and other personal
belongings.
Due to the circumstances relating to his placement in the
security wing at Ullersmo the applicant, assisted by counsel,
instituted proceedings before the Eidsvoll District Court (herredsrett)
on 25 February 1990 against the State represented by the Ministry of
Justice maintaining, inter alia, that his placement in the security
wing was illegal and that the lack of telephone contact with his
children between June and December 1989 violated Article 8 of the
Convention. He furthermore maintained that he did not have access to
all his documents and referred to the fact that he did not receive the
Commission's letter of 28 June 1988 until 14 March 1989. In respect of
the two last points the applicant referred to Article 25 read in
conjunction with Article 8 of the Convention.
By judgment of 13 December 1991 the District Court found that the
State, represented by the Ministry of Justice, had obstructed the
applicant's right of individual petition and shown lack of respect for
his correspondence due to the fact that he had not received the
Commission's letter of 28 June 1988 until 14 March 1989. Furthermore,
the Court found that the applicant had been prevented from complaining
effectively to the Commission during certain periods when he had not
had access to all his documents. The Court, however, rejected the
remainder of the applicant's complaints.
Both the applicant and the Ministry of Justice appealed against
this judgment. On 18 January 1993 the Eidsivating High Court rejected
all the complaints submitted by the applicant. In its judgment the
Court found it established that the applicant had been treated in
accordance with the applicable prison rules and furthermore stated
inter alia as follows:
(translation)
"...
3. The Commission's letter of 28 June 1988
...
The Court finds that the Commission's letter did not reach
(the applicant) until 14 March 1989. (The applicant) has
not maintained that the letter was intentionally withheld.
The Court finds that the delay was caused by mistakes. The
prison authorities have expressed their regrets to (the
applicant).
The Court does not consider that the delay has influenced
(the applicant's) subsequent work on his petition.
Accordingly, the State has not objectively obstructed the
right of individual petition under Article 25 para. 1 of
the Convention.
4. (The applicant's) access to documents
...
The Court finds that the volume of documents possessed by
(the applicant) while he was serving his sentence was of
such magnitude that no cell at Ullersmo could contain them
without disturbing (the applicant's) prison conditions and
making necessary control impossible. Neither did (the
applicant) want to have all documents at once. The Court
furthermore finds that the documents, during (the
applicant's) stay in the security wing, were transferred to
the wing's store room when (the applicant asked for it). In
so far as (the applicant) managed only to a certain extent
to survey and to get access to all documents the Court
finds that this was due to practical difficulties. These
difficulties were subsequently overcome. The prison
authorities and the prison staff have not hindered (the
applicant) in his right of individual petition. The
problems with the documents were not of any real
importance. It was not until (the applicant) at a later
stage was assisted by counsel and was granted leaves of
absence in order to obtain further material that a rational
preparation of the case could be made.
On this basis the Court finds that the State has not acted
contrary to Article 8 or Article 25 of the Convention."
On 6 September 1993 the applicant appealed against this judgment
to the Supreme Court. In his appeal he maintained that it was contrary
to Article 8 of the Convention to refuse telephone contact with his
children from June until December 1989 and contrary to Article 8 read
in conjunction with Article 25 of the Convention that he did not
receive the Commission's letter of 28 June 1988 until 14 March 1989.
On 3 January 1994 the Appeals Selection Committee of the Supreme
Court refused leave to appeal.
COMPLAINTS
In relation to the criminal proceedings against him the applicant
maintains that the extensive press coverage was mainly based on
statements made by the police and the prosecution. He complains that
the statements and the way in which they were used amount to the
presumption of his being held guilty of crimes which were not covered
by the subsequent indictment. Thus the applicant maintains that the
behaviour of the police and the prosecution prior to his conviction
constituted a violation of Article 6 para. 2 of the Convention.
The applicant furthermore maintains that press coverage in
general and the entire atmosphere surrounding narcotics cases in Norway
are likely to influence potential jurors to the detriment of the
accused and that he did not have any practical means of participating
in the selection of the jury. The applicant considers that this amounts
to a violation of Article 6 para. 1 of the Convention.
Under Article 6 para. 3 (d) of the Convention the applicant
complains that certain earlier statements from a co-accused were read
out in court without giving the defence the opportunity of putting
questions to this person.
Finally, the applicant maintains that the presiding judge's
instructions to the jury showed bias against him contrary to Article 6
para. 1 of the Convention.
Under Article 2 of Protocol No. 7 to the Convention the applicant
complains of the fact that the Appeals Selection Committee refused
leave to appeal to the Supreme Court. He maintains that thereby he did
not get a review of his conviction or sentence within the meaning of
this provision. Finally, the applicant complains that by turning down
his request to reopen his case the Supreme Court violated Article 6 of
the Convention.
In respect of his prison conditions the applicant complains,
under Article 8 of the Convention, that he could not make telephone
calls to or receive such calls from his two sons while at Ullersmo from
June until December 1989.
He furthermore complains that a letter from the Commission was
delayed for approximately 81/2 months. He maintains that this obstructed
his right to submit an application to the Commission contrary to
Article 8 read in conjunction with Article 25 of the Convention.
THE LAW
1. The applicant complains that the extensive coverage by the
Norwegian mass media was for a great part based on statements made by
the police and the prosecution. The statements and the extent to which
they were made and used amounted, in the applicant's view, to a
presumption of his being held guilty before he was convicted and, thus,
to a violation of Article 6 para. 2 (Art. 6-2) of the Convention which
reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission notes that the applicant apparently did not raise
the issue of media coverage in the criminal proceedings against him.
However, it may be left open whether the applicant in such
circumstances has exhausted domestic remedies as required by Article
26 (Art. 26) of the Convention because the complaint is in any event
inadmissible for the following reasons.
The Commission has accepted that in some cases a virulent press
campaign can adversely affect the fairness of a trial and involve the
State's responsibility, particularly where it is sparked off by one of
the State's organs (cf., for example, No. 10486/83, Hauschildt v.
Denmark, Dec. 9.10.86, D.R. 49 p. 86 with further references).
Furthermore, the Commission and the Court of Human Rights have held
that the presumption of innocence is not limited to a procedural
guarantee but requires that no representative of the State shall
declare a person guilty of an offence before his guilt is established
by a court. On the other hand, this does not mean that the authorities
may not inform the public about criminal investigations. They do not
violate Article 6 para. 2 (Art. 6-2) if they state that a suspicion
exists, that people have been arrested, that they have confessed, etc.
What is excluded, however, is a formal declaration that somebody is
guilty (cf. Eur. Court H.R., Allenet de Ribemont judgment of
10 February 1995, Series A no. 308, paras. 35-38).
The applicant maintains that nearly all the newspaper articles
were prejudiced and based on biased information given by the police and
the prosecution which allegedly caused the newspapers to publish false
allegations which never resulted in any indictment. The Commission
considers, however, that an interest by the press must be expected
after the discovery of an important drug case and the question whether
the alleged information released by the police or prosecution to the
mass media was contrary to the presumption of innocence depends on the
content of the information.
The Commission has taken note of the newspaper articles
concerning the applicant's case as submitted by him and finds that the
case was indeed subjected to an extensive press coverage. However, the
Commission does not find it established that this information had any
impact on the outcome of the trial. Furthermore, the Commission does
not find it established that the newspaper articles contained an
affirmation of guilt expressed by the police or the prosecution
contrary to the presumption of innocence. Thus, the Commission does not
consider it established that the authorities made statements to the
press to the effect that the applicant was guilty, thereby affecting
his right to be presumed innocent.
An examination of this complaint does not, therefore, reveal any
appearance of a violation of Article 6 para. 2 (Art. 6-2) 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. Under Article 6 (Art. 6) of the Convention the applicant has
furthermore submitted a number of complaints relating to the fairness
of his trial. He complains that the jury was unduly influenced and its
selection made to his detriment, that he was prevented from examining
a witness and that the summing up of the presiding judge was biased
against him.
However, the Commission recalls that under the terms of
Article 26 (Art. 26) of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted, according to the
generally recognised rules of international law. This condition is not
met by the mere fact that an applicant has submitted his case to the
various competent courts. It is also necessary for the complaint
brought before the Commission to have been raised, at least in
substance, during the proceedings in question. On this point the
Commission refers to its constant case-law (cf. for example, No.
6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and 5670/72,
Dec. 16.7.76, D.R. 7 p. 8).
In this case the applicant failed to raise the issues mentioned
above during the trial in the District Court. Moreover, the applicant
did not base his appeal to the Supreme Court on these points. His
appeal was only directed against the sentence imposed. Thus, the
applicant did not at any moment during his criminal case, in substance,
raise the issues which he now raises before the Commission.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
raising his complaints in the proceedings referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. As regards the criminal case against him the applicant also
complains of the fact that the Appeals Selection Committee, on
19 November 1987, refused leave to appeal to the Supreme Court against
the judgment of the High Court of 9 October 1987. He maintains that
thereby he was not afforded a review of his conviction or sentence
within the meaning of Article 2 of Protocol No. 7 (P7-2) to the
Convention. This provision reads as follows:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence
reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall
be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first
instance by the higher tribunal or was convicted following
an appeal against acquittal."
However, the Commission recalls that the events concerned took
place prior to 1 January 1989 which is the date of the entry into force
of Protocol No. 7 (P7) to the Convention with respect to Norway.
Furthermore, in accordance with the generally recognised rules of
international law, the Convention or its Protocols only govern, for
each Contracting Party, facts subsequent to their entry into force with
respect to that Party (see e.g. No. 9453/81, Dec. 13.12.82, D.R. 31
p. 204).
It follows that this complaint is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
4. The applicant also complains, under Article 6 (Art. 6) of the
Convention, that his claim for a retrial was refused. However, under
Article 25 para. 1 (Art. 25-1) of the Convention, it is only the
alleged violation of one of the rights and freedoms set out in the
Convention that can be the subject of an application presented by a
person, non-governmental organisation or group of individuals. With
regard to the present complaint, no right to a retrial is as such
included among the rights and freedoms guaranteed by the Convention.
Furthermore, in accordance with the Commission's established case-law,
proceedings concerning applications for retrial fall outside the scope
of Article 6 (Art. 6) of the Convention, since a person applying for
a retrial, having been finally convicted of a criminal offence, is no
longer a person charged with that offence within the meaning of that
Article (see e.g. No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
5. In respect of his prison conditions the applicant complains that
his right to respect for his family life and correspondence has been
unjustifiably interfered with. He refers in this respect to the
prohibition against receiving telephone calls from or making such calls
to his two children during six months and to the fact that the letter
from the Commission of 28 June 1988 was not delivered to him until
14 March 1989 and claims that he was thereby prevented from submitting
an application to the Commission. He invokes Articles 8 and 25
(Art. 8, 25) of the Convention which, as far as relevant, provide as
follows:
Article 8 (Art. 8)
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
Article 25 (Art. 25)
"1. The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person,
... provided that the High Contracting Party against which
the complaint has been lodged has declared that it
recognises the competence of the Commission to receive such
petitions. Those of the High Contracting Parties who have
made such a declaration undertake not to hinder in any way
the effective exercise of this right."
a. The Commission notes that while serving a sentence in a prison
is by its nature a limitation on private and family life, it is an
essential part of a prisoner's right to respect for family life that
prison authorities assist him in maintaining effective contact with his
close family members (cf., mutatis mutandis, No. 9054/80, Dec. 8.10.82,
D.R. 30 p. 113).
In the present case, however, the Commission recalls that the
decisions to place the applicant in a security wing, where the
conditions for the prisoners are less favourable, were taken by the
prison authorities as a consequence of the applicant's behaviour and
the legality of these decisions was later examined by the courts which
found the transfer as well as the restrictions imposed in this section
to be within the relevant rules. The Commission furthermore recalls
that the applicant's ex-wife had sole custody of the children and that,
therefore, his contacts with them were also dependent on her consent.
The Commission finds that it can be left open whether the children at
all made any telephone calls during the period in question because,
given that the restriction was only imposed for a limited period and
that communication by letter was possible, subject to the consent of
the custody holder, the Commission finds that the restriction in
question does not in the circumstances disclose any lack of respect for
the applicant's private or family life.
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.
b. In so far as the applicant complains that the Commission's
letter was delayed approximately 81/2 months, it is recalled that in the
present case there was no decision as to interception of the
applicant's mail or any other interference with his correspondence and,
furthermore, it does not appear that the authorities intentionally
withheld the letter from the Commission. The delay appears to have been
the result of some unfortunate incidents following the applicant's
transfers to different prisons for which the authorities have already
presented their regrets to him.
In these circumstances the Commission finds that there has been
no interference with the applicant's right to respect for his
correspondence and his complaint is accordingly manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
c. As to the applicant's reference to Article 25 para. 1
(Art. 25-1) in fine of the Convention the Commission, in the light of
the above conclusion, finds no indication that the applicant has been
hindered in the effective exercise of his right of individual petition.
The Commission therefore concludes that it need take no further action
in respect of the alleged interference with this right.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE;
DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged
interference with the effective exercise of the right of
individual petition.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy