AS TO THE ADMISSIBILITY OF
Application No. 31074/96
by Håkan WESTER
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 28 February 1996
by Håkan WESTER against Sweden and registered on 19 April 1996 under
file No. 31074/96;
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, a Swedish citizen born in 1963, is presently
serving a prison sentence in Sweden. Before the Commission he is
represented by Mr Per Stadig, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
On or about 21 May 1994 a quantity of 0.2 kilogrammes of cocaine
was smuggled from Brazil to Sweden and subsequently sold to a drug
dealer.
In respect of the drug-smuggling operation and the following
transaction with the dealer, police suspicions centred on three
persons: a woman, A, her brother, B, and the applicant. A and B were
arrested and remanded in custody in June and July 1994, respectively.
The applicant, wanted also for aggravated fraud, was arrested in the
United Kingdom in November 1994 and extradited to Sweden in April 1995.
The case against A and B came on for trial before the District
Court (tingsrätten) of Stockholm in October 1994. By judgment of 21
October 1994, both A and B were convicted of illegally possessing the
said quantity of cocaine. Furthermore, B was found guilty of conspiracy
(stämpling) to smuggle the drugs from Brazil to Sweden. On the same
occasion, they were also convicted of other drug-related crimes which
are, however, not relevant in the present case. On 15 December 1994 the
convictions were upheld on appeal by the Svea Court of Appeal (Svea
hovrätt).
Before the courts, as indeed during the preliminary criminal
investigation, A made a full confession and gave a detailed account of
the circumstances under which she had come into possession of the
relevant quantity of cocaine. This account incriminated not only B, but
also the applicant. B, for his part, pleaded not guilty, contending
that the applicant alone had smuggled the drugs and subsequently handed
them over to A. In their respective judgments, having found the
information provided by A to be credible, both the District Court and
the Court of Appeal concluded that this account should form the basis
for the assessment whether A and B were guilty of the offences charged.
Thus, both A and B were convicted on the strength of these statements.
Following his extradition to Sweden, the applicant's case was
heard by the District Court of Jakobsberg in June 1995. By judgment of
3 July 1995, that court convicted the applicant of, so far as relevant,
illegally possessing the quantity of cocaine mentioned above and also
of smuggling that quantity into Sweden. He was sentenced to eight
years' imprisonment, a sentence calculated to include also several
counts of aggravated fraud.
The persons to be heard in the District Court included both A and
B, who had been called by the prosecution to give evidence as former
co-accused. Although duly summoned, however, A did not attend the
trial. According to the minutes of the hearing, in which reference was
made to a doctor's certificate submitted on A's behalf, she had fallen
ill and could not be expected to recover in the foreseeable future. For
this reason, so the court stated, she was legally excused (laga
förfall) from giving evidence. On being told of A's absence, the Public
Prosecutor requested that the accounts previously given by A in the
case against her and B, and as recorded in the judgments of the
District Court of Stockholm and the Svea Court of Appeal, be read out.
He also requested the reading out of a statement made by A when
interviewed by the police on 7 July 1994. Contrary to a defence
submission - and relying on Chapter 35, Section 14 of the Code of
Judicial Procedure (Rättegångsbalken) - the court granted the
Prosecutor's requests. The following statements and summaries of
statements were therefore read out.
A's account according to the District Court judgment of
21 October 1994:
(Translation)
"[O]n 20 May [B] called and invited her on a cruise between
Gothenburg and Harwich. She was told to bring [B's wife],
who was staying with her temporarily. Next day she borrowed
a car from her mother and went, together with [B's wife],
to [the harbour] in Gothenburg. There they met [B] and [the
applicant]. [B] suggested that they drive into town. She
stopped the car in [an avenue] and [B] and [the applicant]
left the car for some thirty minutes. Following their
return, they all drove back to the harbour. While still in
the car [the applicant] said 'this is how we have figured
it out', but was interrupted by [B] who said that this was
not to be discussed now. She realised that it all had to do
with cocaine. They had a good time during the boat trip.
[The applicant] said that cocaine had been hidden under the
back seat of the car, back in Gothenburg. They all slept in
the same cabin. In the morning, on their arrival at
Harwich, [B] told her to bring the cocaine to her flat and
keep it there. [The applicant] suggested that she bury it
in her parents' garden. She was to be contacted by
telephone by someone interested in acquiring the cocaine.
She does not remember if a name was mentioned in this
context. She thinks that [B] and [the applicant] told her
to charge 500 or 600 crowns per gramme. The person making
the phone call would know the price. The money was to be
handed over to her and [B's] parents. She does not know
which of [B] and [the applicant] carried the cocaine into
Sweden. They said that it was wrapped in condoms and
plastic film and told her to redistribute it into smaller
plastic bags. - [B] and [the applicant] disembarked at
Harwich. She and [B's wife] returned to Gothenburg and went
on to Stockholm. She removed the cocaine from the car and
put it in a cupboard. Next day she was alone in the flat.
She tried to weigh the cocaine and redistribute it. She was
not successful. The cocaine fell apart and she spilt it on
to the floor. [B] called almost every day and asked about
money. On 31 May, a Tuesday, she called [a drug dealer] and
told him that she had cocaine in her flat. Since April she
knew that he was [B's] contact. She wanted to get rid of
the cocaine as soon as possible. ..."
The Court of Appeal judgment of 15 December 1994, which
summarised A's statements before that court only to the extent that
they were in any way inconsistent with or complementary to her account
before the District Court:
(Translation)
"In the Court of Appeal [A] has stated that she cannot
recall which of [the applicant] and [B] made what remarks
when, on their arrival at Harwich, they discussed what she
should do with the drugs. However, she has also stated that
both of them kept speaking at the same time and that she
had a clear impression that [the applicant] and [B] had
conspired in respect of the drugs. ..."
The police interview of 7 July 1994:
(Translation)
"Now, she also recalls that when [B] and [the applicant]
returned to the car - and while sitting in the car, which
was still parked in [the avenue] - they discussed where to
hide the cocaine. They agreed to hide it in the car, but
they never said in what part of the car. She recalls that
they also discussed the fact that, if the car were to be
stolen while they were on the boat, it would be a bargain
for a car thief who was also a drug addict, considering the
amount of cocaine hidden in the car."
Unlike A, B presented himself at the hearing. When heard by the
court he confirmed that the accounts previously given by him before the
District Court of Stockholm and the Svea Court of Appeal - to the
effect that the applicant alone had smuggled the drugs and subsequently
handed them over to A - had been correctly recorded in the judgments
of 21 October 1994 and 15 December 1994. He added, however, that they
were not true. On the contrary, he now stated, the drug-smuggling
operation had been entirely his own doing, thus in no way involving the
applicant. In order to explain the fact that he now provided new
information, B stated that, by previously accusing the applicant of
being involved in the operation, he had hoped to receive a somewhat
lighter sentence.
In its judgment of 3 July 1995 the District Court of Jakobsberg
noted that the applicant denied the charges but admitted to have
travelled with B from Brazil to Sweden in April 1994, allegedly fully
aware of the fact that B was smuggling drugs. Observing - at the
outset - that such a journey must have exposed also the applicant to
risks and that this would be rather a remarkable behaviour for a person
in his position, the court found reason to question the veracity of the
applicant's statements. The court went on to state the following:
(Translation)
"As regards the other statements, the District Court would
first like to point out that the information provided by
[A] must be assessed with great caution, considering that
[the applicant] has had no opportunity to examine her
during the trial. For this reason, it is also out of the
question to base a conviction solely on the information
provided by her. However, the District Court is of the
opinion that, to some extent, it should be taken into
account that [A's] statements have been made not only
during police interviews but also before courts at two
levels, seized with the question of her and [B's]
involvement in the operation. The information given by [A]
is, to a substantial extent, corroborated by the statements
made by [B] under identical circumstances. Their accounts
are very much mutually consistent when it comes to [the
applicant's] involvement in the operation. The explanation
with which [B] has provided the court today, as to why he
allegedly falsely accused [the applicant] of being involved
in the operation, does not appear to be plausible."
The statements made by A and B during the 1994 trials thus
satisfied the District Court that the applicant was guilty of the
offences charged.
The applicant appealed to the Svea Court of Appeal, which held
a hearing in the case in August 1995. Since A was deemed still to be
legally excused from giving evidence, the prosecution requested that
the statements previously read out in the District Court be read out
also in the appellate court. The request was granted under Chapter 35,
Section 14 of the Code of Judicial Procedure. Again, this was contrary
to a defence submission. B attended the trial but now refused to give
evidence, contending that he had been beaten by fellow prisoners. At
the request of the prosecution, however, B's account as recorded in the
District Court judgment of 21 October 1994 - to the effect that the
drugs had been smuggled by the applicant and subsequently handed over
to A - was read out.
By judgment of 8 September 1995, the Court of Appeal upheld the
whole of the District Court's judgment. Invoking the reasons already
stated by the lower court, and referring to Swedish case-law as well
as to the case-law of the European Court of Human Rights, the appellate
court first found that a conviction could not be based solely on the
statements made by A. Turning to B's statements, however, the court
found the situation to be somewhat different. The court stated the
following:
(Translation)
"It has been possible to examine [B] in both the District
Court and the Court of Appeal. In the District Court
proceedings against [the applicant] he has confirmed that
the statements previously made by him concerning [the
applicant's] involvement in the operation have been
correctly recorded, but has stated that they are not true.
However, he has been unwilling to explain why the
statements are incorrect. As previously noted, he has
refused to give evidence in the Court of Appeal. ...
In the case now before the court, no reasonable ground has
appeared as to why [B] would want to incorrectly accuse
[the applicant] of being involved in the operation. On the
contrary, the fact that [the applicant] has been named also
by [A] strongly corroborates [B's] statements concerning
[the applicant's] involvement. ..."
Considering B's original statements concerning the applicant's
involvement to be credible, the appellate court found, on balance, that
the latter was guilty of illegally possessing the relevant quantity of
cocaine and also of smuggling it into Sweden.
Leave to appeal against the Court of Appeal's judgment was
refused by the Supreme Court (Högsta domstolen) on 26 October 1995.
b. Relevant domestic law
Chapter 36, Section 1 of the Code of Judicial Procedure provides
that, in criminal cases, a person charged with any form of complicity
in the offence with which the defendant is charged must not be heard
as a witness. However, there is nothing to prevent that such a person
is heard as a co-accused.
Provisions concerning the use as evidence of statements made by
witnesses, victims of crime or co-accused at an earlier stage of the
proceedings - preceding the trial - are found in Chapter 35, Section
14 of the Code of Judicial Procedure. Section 14 provides, so far as
relevant, the following:
(Translation)
"An account, given by someone in writing for the purpose of
a trial that has already commenced or is about to commence,
or a record of an account, given by someone before a public
prosecutor or a police authority or otherwise out of court
for the purpose of such a trial, may be submitted as
evidence only
...
2. if the person who gave the account cannot be heard at a
main hearing or out of court or otherwise before the court
..."
COMPLAINT
Invoking Article 6 of the Convention, the applicant claims that
he was convicted by the District Court and the Court of Appeal on the
basis of statements made by a person - A - whom neither he nor his
counsel ever had an opportunity to examine.
THE LAW
The applicant complains of a violation of his rights under
Article 6 (Art. 6) of the Convention. The Commission considers that the
essence of the applicant's complaint must be said to be that he did not
have a fair trial. That being so, the Commission has examined the
complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1+6-3) taken
together, the guarantees in paragraph 3 being specific aspects of the
right to a fair trial set forth in paragraph 1 (see, e.g., Eur. Court
H.R., Kostovski v. the Netherlands judgment of 20 November 1989, Series
A no. 166, p. 19, para. 39). The respective paragraphs read - so far
as relevant - as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights: ...
(d) to examine or have examined witnesses against him ..."
The applicant contends that the statements made by A - as read
out in the District Court and the Court of Appeal - were used by the
courts not only as corroborative evidence when assessing the veracity
of the statements originally made by B, but also as independent
incriminating evidence. In both respects, so he claims, decisive
importance was attached to these statements.
In view of the autonomous interpretation to be given to the term
"witness", the Commission first finds that A should be so regarded for
the purposes of paragraph 3 (d) of Article 6 (Art. 6-3-d) of the
Convention. This is so since her statements - although not made at the
trials against the applicant and although, under Swedish law, not made
by her as a "witness" in the strict sense of the word - were in fact
before the courts and were taken into account by them (see, e.g., Eur.
Court H.R., Windisch v. Austria judgment of 27 September 1990, Series
A no. 186, p. 9, para. 23).
The Commission points out that the admissibility of evidence is
primarily a matter for regulation by national law and that, as a
general rule, it is for the national courts to assess the evidence
before them (see the above-mentioned Kostovski judgment, p. 19,
para. 39). Thus, in the instant case, the Commission's task under the
Convention is not to determine whether A's statements were correctly
admitted and assessed by the courts but rather to ascertain whether the
proceedings considered as a whole - including the way in which evidence
was taken - were fair (ibid.).
In principle, the evidence must be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
However, as regards the reading out at a trial of statements made by
witnesses at the investigating stage of criminal proceedings, the
European Court of Human Rights has already held that such a practice
is not in itself inconsistent with Article 6 paras. 1 and 3 (d)
(Art. 6-3-d) of the Convention, provided that the use of such
statements as evidence complies with the rights of the defence, which
it is one of the purposes of Article 6 (Art. 6) to protect. Admittedly,
this would, prima facie, create particular problems where the person
"charged with a criminal offence", who has the right under Article 6
para. 3 (d) (Art. 6-3-d) to "examine or have examined" witnesses
against him, has not had an opportunity at any stage of the earlier
proceedings to question the person whose statements are read out at the
hearing (see, e.g., Eur. Court H.R., Unterpertinger v. Austria judgment
of 24 November 1986, Series A no. 110, p. 14, para. 31).
Since it is clear that the applicant never had an opportunity to
challenge and question A before the courts or, for that matter, at the
pre-trial stage, the Commission must thus examine whether there are any
such problems in the present case.
The Commission recalls at the outset that, at the time of the
trial against the applicant, A had fallen ill and could not be expected
to recover in the foreseeable future. Consequently, she was deemed to
be legally excused from giving evidence in both the District Court and
the Court of Appeal. The Commission is of the opinion that A's illness
could not be allowed to block the prosecution. That being so, the
Commission finds that the prosecution had reason to produce as evidence
the statements submitted by A in connection with the trial against her
and B.
The Commission further recalls that the statements made by A were
not the only evidence in the case. On the contrary, the District Court
and - in particular - the Court of Appeal attached decisive importance
to the information provided by B, who, unlike A, attended the trial
against the applicant at both levels. It is true that B, when heard in
the District Court, retracted the allegations previously made by him
against the applicant. It is also true that B refused to give evidence
in the Court of Appeal, contending that he had been beaten by fellow
prisoners. In this respect, however, the Commission notes that the
District Court was able to observe B's demeanour during questioning and
to form its own impression of the nature of his retraction.
Furthermore, having regard to B's subsequent refusal to give evidence,
the Court of Appeal had reason to take into account the circumstances
under which B had given evidence in the District Court. Thus, having
found that there existed no reasonable ground as to why B would want
to incorrectly accuse the applicant of being involved in the drug-
smuggling operation, the Court of Appeal concluded that B's original
statements concerning the applicant's involvement were credible. Noting
that they were also corroborated by the statements made by A, the Court
of Appeal found the applicant guilty of the offences charged.
Finally, the Commission observes that both the District Court and
the Court of Appeal were aware of the secondary nature of A's
statements. Also, both courts could rely on the applicant's own version
of the events leading up to his arrest, to the effect that he had not
been involved in the operation.
In sum, and having regard to all the circumstances in the case,
the Commission cannot find that the applicant's conviction was based
solely on A's statements. Nor did the limitation, which derived from
her absence at the hearings, restrict the possibilities of the defence
to a degree that was irreconcilable with the Convention. Consequently,
the Commission does not find that the applicant's trial was unfair due
to the fact that A's statements were used as indirect evidence.
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.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy