CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)