CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.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. 20434/92                       by J. H.                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  H.G. SCHERMERS                  F. MARTINEZ                  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 December 1991 by J. H. against Norway and registered on 4 August 1992 under file No. 20434/92;         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 1944. He resides at Raadal, Norway. Before the Commission he is represented by his lawyer, Mr. Dag Saltnes, Bergen.         In 1984 and 1986 the applicant established certain companies in Norway and abroad through which he engaged in foreign and national loan activities and financing. Generally speaking the applicant established contacts between private individuals and companies in need of capital and foreign investment and financing companies, in particular the Export-Finanzierungsbank in Vienna, hereinafter the EFB. Often the clients were required to deposit certain money in advance in order to obtain the loans or the financing requested. It turned out, however, that a number of clients never received any capital and never saw their deposits again for which reason a police investigation commenced into the applicant's activities, which extended to several European and non- European countries.         On 25 April 1990 the public prosecutor for economic crime (ØKOKRIM statsadvokatembetet) issued an indictment charging the applicant with nine counts (I - IX) of fraud and/or embezzlement against a large number of private individuals and companies, as well as offences against the tax and accounting legislation.         The case commenced in the Bergen City Court (byretten) on 14 January 1991. On that day the applicant requested the hearing of additional witnesses and furthermore requested the court to refuse the prosecution permission to submit certain documentary evidence. On 15 January 1991 the City Court adjourned the examination of the applicant's requests pending the examination of the available evidence following which the court considered it would be in a better position to determine the relevance of the applicant's requests.         From 16 January until 11 February 1991 the applicant was heard as well as 36 witnesses and four expert witnesses. A substantial amount of documentary evidence was also submitted.         On 12 February 1991 the prosecution requested permission, pursuant to section 297 of the Criminal Procedure Act (straffeprosess- loven), to read out statements made by the witnesses Zani and Kadouch in a French court on 12 January 1989 as well as their statements made to the French police in June 1988. Counsel for the applicant protested against this maintaining that neither he nor the applicant had had the opportunity to question these two witnesses.         Having deliberated, the court decided to allow the prosecution to read out the statements made in the French court whereas it rejected the request in respect of the statements made to the French police. The City Court stated inter alia:   (translation)         "The court finds that section 297 of the Criminal Procedure Act       allows reading out the evidence obtained in a French court on       12 January 1989 concerning the interrogation of the witnesses       Zani and Kadouch. The court assumes that French law does not       allow the accused or his counsel to be present during such       interrogations.         It has been tried to arrange new interrogations of Zani and       Kadouch, where counsel could have been present, prior to the main       hearing, not least through several requests by counsel directly       addressed to the two witnesses. This has not been successful. The       court finds that new interrogations where counsel could be       present must in the present circumstances be considered to entail       such a disproportionate inconvenience to the case that the       existing (transcript of the) court interrogations may be read       out. The court does not find that this would infringe the       Convention on Human Rights as interpreted and implemented by the       Supreme Court (Høyesterett) ...         As regards the statements made to the police in France in       June 1988 in the presence of Norwegian police officers but       in the absence of a representative of the applicant, the       court finds, with some hesitation, that these statements       may not be read out. This should be seen in the light of       the fact that interrogations of the same witnesses in court       took place subsequent to the police interrogations. In such       circumstances, and as the statements made to the police       should comply with the principle in the Human Rights       Convention concerning the accused's right to examine       witnesses, the court finds that this must lead to the       conclusion that these police statements cannot be read out       during the main hearing."         Following this decision the applicant requested the hearing of fifteen additional witnesses. These were   1.     Antansio Panahon, former director and board member of the EFB, 2.     Sedfrey A. Ordonez, former member of board of the EFB, 3.     Jose Almonte, former member of board of the EFB, 4.     Michael de Guzman, former member of board of the EFB, 5.     Melquior, former member of board of the EFB, 6.     Kit Bradshaw, 7.     Felix Ajegbo, 8.     Rattan Aggarwal, 9.     Susan Carlin, 10.    Stuart Conway, 11.    Colin Ivin, 12.    Roger A. Conway-Hyde, 13.    Larry Wilcox, 14.    Abraham Kadouch, 15.    Charles Zani.         The applicant requested that these witnesses be heard as the charges against him, mainly in respect of count VI of the indictment, would not otherwise be sufficiently elucidated. The public prosecutor on the other hand claimed that these witnesses were of no significance to the case.         Having deliberated the City Court rejected the applicant's request. It stated inter alia :   (translation)         "When the main hearing commenced counsel submitted a similar       request for additional evidence in the form of an examination of       witnesses. The court then decided to adjourn the examination of       this request until the available evidence had been submitted.         The court has now been presented with substantial evidence, i.e.       witnesses' statements, statements from four experts and a       considerable amount of documentary evidence. In addition the       accused has made extensive statements.         In view of this, compared with what is at issue in regard       to the different charges, the court finds that the evidence       proposed will be of no relevance in the sense that the       request concerns matters which are sufficiently       proved (bevist). Accordingly, the request is rejected       cf. section 293, subsection 1 (of the Criminal Procedure       Act)."         Section 293, subsection 1, of the Criminal Procedure Act referred to by the court reads as follows:   (translation)         "The court may refuse to adjourn the proceedings for the       production of evidence when it finds that such evidence       would be of no significance or would lead to delay or       inconvenience which is not in reasonable proportion to the       significance of the evidence and the case."         On 27 February 1991 the City Court pronounced judgment in the case. The applicant was found guilty of all charges contained in the nine counts in the indictment except one, and sentenced to four years and six months imprisonment for offences under the Penal Code, sections 255 and 256 (aggravated embezzlement), and sections 270 and 271 (aggravated fraud), as well as certain offences against the tax and accounting legislation.         On 19 March 1991 the applicant applied to the Supreme Court for leave to appeal against the judgment directly to the Supreme Court or, in the alternative, leave to obtain a new trial in the High Court (Lagmannsretten). The request for leave to appeal was based in particular on the fact that the City Court had rejected the applicant's request to hear witnesses, that witness statements had been read out and that, in his opinion, the law had been wrongly applied. The request for a new trial in the High Court was primarily based on the allegation that the City Court had made a wrong evaluation of the facts and the evidence.         On 5 July 1991 the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) refused leave to appeal (to the Supreme Court) but allowed a new trial in the High Court in so far as the case concerned the counts VI and VIII of the indictment. In respect of the remainder of the case the request for a new trial was also refused.         On 25 November 1991 the new trial commenced in the Gulating High Court. On that date the applicant requested the hearing of additional witnesses. The High Court, however, adjourned the examination of this request until other available evidence had been examined.         From 25 November until 17 December 1991 the applicant was heard as well as a number of witnesses. Furthermore, a substantial amount of documentary evidence was submitted.     During the trial it became an object of dispute between the prosecutor and the applicant whether a statement to the police previously made in the case by the witness, Harry Andreassen, should be read out. The applicant requested an examination of the witness in court to which the prosecutor objected. In a decision of 9 December 1991 the High Court stated inter alia the following:   (translation)         "With reference to section 297 of the Criminal Procedure       Act, the prosecutor has requested that the witness       Harry Andreassen's statement to the police be read out.       Counsel has objected. Counsel claims that the witness must       appear in court or, alternatively, that the request to read       out the police report be rejected.         The witness's involvement in the case is twofold. He is an       injured party ... and he has also procured loans as an       agent for the witness Solhaug who is involved as an       agent/intermediary. Particularly the witness's role as an       intermediary is the ground for counsel's protest.         According to available information the witness is working       for the UN in Pakistan (Kashmir) on a contract which runs       until November 1992, and will not come to Norway until the       end of that period, except possibly for a summer vacation.       The witness works in a border area which means that it will       take some time for him to come to Norway or even to obtain       his statements there. In addition it may also be doubtful       whether he will obtain the necessary permission from the UN       due to lack of staff in the area.         Accordingly, the conditions for reading out a police report       under section 297 are fulfilled. The court does not       consider that this is contrary to Article 6 para. 3 (d) of       the European Convention on Human Rights to which counsel       has referred. This provision must be viewed in the light of       the principle of Article 6 to secure a fair trial. Until       now the court has heard 33 witnesses apart from the accused       himself. Thus, the court has heard explanations both from       (the witness) Solhaug and from witnesses whom Andreassen       brought into the case. The court has been informed that the       remaining witnesses are not involved in what Andreassen       should possibly explain. In these circumstances the court       cannot but find that the witness Andreassen will be of       little relevance in respect of the court's subsequent       evaluation of the question of guilt ...".         Section 297, subsection 1, of the Criminal Procedure Act to which the court referred reads, in so far as relevant, as follows:   (translation)         "When a witness is not present at the main hearing, any       reproduction in the court records or a police report of any       statement the witness has previously made in the case may       only be read out if an oral examination is not possible or       would entail disproportionate inconvenience or expense."On       13 December 1991 after the hearing of the available       witnesses had come to an end the applicant maintained his       request to hear further witnesses. These were:   1.     Antansio Panahon, former director and member of the board of the       EFB, 2.     Sedfrey A. Ordonez, former member of the board of the EFB, 3.     Jose Almonte, former member of the board of the EFB, 4.     Kit Bradshaw, and 5.     Susan Carlin.         The request for the hearing of witness no. 5 was subsequently withdrawn.         In a decision of 13 December 1991, the High Court rejected the applicant's request that the remaining four witnesses be heard. The court stated inter alia as follows:   (translation)         "Counsel for the defence has requested that the proceedings       be adjourned in order to obtain statements from four       additional witnesses, three from the Philippines and one       from the USA. This request was also made at the initial       stage of the proceedings, but the court decided that for       the time being there was no sufficient basis upon which the       significance of these witnesses for the case could be       evaluated. The defendant has withdrawn the request as       regards one of the witnesses. The court has now heard the       accused, 43 witnesses, two experts and in addition,       extensive documentation has been provided. Accordingly, the       court has gained a better position than at the initial       stage of the proceedings, to evaluate this request. The       prosecutor has objected to an adjournment.         The statements of the witnesses at issue can only be       obtained abroad. It is unclear when this could be done and       as regards some of the witnesses, their agreement is       required.         Three of the requested witnesses, Ordonez, Almonte and       Bradshaw are only marginally related to the issues on which       the court must decide and the court considers that they are       of no significance to the case.         Panahon was the director of the EFB and possibly has some       information relevant to the case, but according to what has       already been revealed, the court considers that additional       information from him would not be of any significance in       the case. Besides, having regard to counsel's allegations,       Panahon may easily end up in a position where, as a       suspect, he could refuse to answer questions, cf. section       123 of the Criminal Procedure Act, in case he were to be       questioned in Norway.         Therefore, the court rejects the request to adjourn the       proceedings under section 295 of the Criminal Procedure Act       and considers that the issues are sufficiently clarified       according to section 294. The refusal to hear witnesses is       not considered to be contrary to Article 6 of the European       Convention on Human Rights and the court refers inter alia       to the reasoning for the decision as regards the witness       Harry Andreassen."         Sections 123, 294 and 295 of the Criminal Procedure Act read, in so far as relevant, as follows:   (translation)         "Section 123. A witness may refuse to answer questions when       the answer may expose the witness ... to any penalty or       loss of esteem.         Section 294. The court shall in its official capacity see       to it that the case is fully clarified. For this purpose it       may decide to obtain new evidence and to adjourn the       hearing.         Section 295. The court shall ... refuse the production of       evidence which it finds to be of no significance, or whose       significance is not in reasonable proportion to the damage       that may be caused to the aggrieved party or other persons.       Likewise the court may refuse to allow the hearing of a       witness or other evidence which has, without reasonable       cause, been concealed during the preparatory proceedings."         On 10 January 1992 the Gulating High Court pronounced judgment in the case. The outcome was the same as in the City Court of Bergen. The applicant was sentenced to four years and six months imprisonment.         On 12 March 1992 the applicant applied for leave to appeal to the Supreme Court. He submitted inter alia that the High Court had applied the law wrongly and furthermore that procedural errors had been committed in that the High Court had refused to hear the four witnesses proposed and allowed the reading out of the statements made by the witness Andreassen. He maintained that these procedural errors amounted to a violation of Article 6 of the Convention.         On 30 April 1992 the Appeals Selection Committee of the Supreme Court refused leave to appeal.     COMPLAINTS         The applicant complains of several infringements of Article 6 of the Convention in connection with the criminal proceedings instituted against him. He maintains that the City Court of Bergen violated Article 6 para. 2 of the Convention, read in conjunction with Article 6 para. 1, when it refused his request for the examination of an additional fifteen witnesses. He contends that the reasons for the refusal indicated that the court had already determined the question of guilt and thereby also showed bias towards him.         The applicant also complains that the refusal to hear the additional fifteen witnesses violates Article 6 para. 3 (d) of the Convention.         Furthermore, in respect of the proceedings in the Gulating High Court the applicant complains of the fact that the court allowed the reading out of the statements made by the witness Harry Andreassen and, finally, he maintains that the court's refusal to hear the four additional witnesses proposed also amounts to a violation of Article 6 para. 3 (d) of the Convention.   THE LAW         The applicant complains in essence that he did not have a fair trial since, allegedly, he was not presumed innocent until proved guilty according to law, since he was refused to have witnesses examined on his behalf, and since the High Court allowed the use of certain written evidence.         The applicant invokes Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the Convention which read as far as relevant:         "1.   In the determination of ... any criminal charge       against him, everyone is entitled to a fair ... hearing ...       by an impartial tribunal ...         2.    Everyone charged with a criminal offence shall be       presumed innocent until proved guilty according to law.         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;       ..."         The applicant has referred not only to Article 6 para. 1 (Art. 6-1) but also to paras. 2 and 3 of this Article. In this respect the Commission recalls that the guarantees in paras. 2 and 3 are specific aspects of the right to a fair trial set forth in para. 1 (cf., inter alia, Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, the Commission will have regard to them when examining the facts under para. 1 of Article 6 (Art. 6). The Commission further recalls that it must consider the proceedings as a whole. Its task is to ascertain whether the proceedings in their entirety were fair (cf. for example Eur. Court H.R., Stanford judgment of 23 February 1994, Series A no. 280-A, para. 24). It follows that the Commission must examine the question of fairness on the basis of the proceedings in the City Court as well as the proceedings in the High Court. This also follows from the fact that the guarantees of Article 6 (Art. 6) continue to apply to the appeal proceedings where the opportunity to lodge an appeal in regard to the determination of a criminal charge is provided for under domestic law, since those proceedings form part of the whole proceedings which determine the criminal charge at issue (cf. for example Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 21, para. 54).         The applicant first maintains that the grounds on which the Bergen City Court refused to hear the additional fifteen witnesses disclose a violation of Article 6 para. 2 (Art. 6-2) of the Convention in that the court stated that the matter on which these witnesses were to express themselves had already been "sufficiently proved" (tilstrekkelig bevist). Thereby, so the applicant contends, the court in reality had already made up its mind as regards the question of guilt.         The Commission points out first of all that the question of the examination of witnesses is a matter which normally falls to be examined under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, cf. below. Neither Article 6 para. 2 nor para. 3 (d) (Art. 6-2, 6-3-d) of that Article gives a person charged with a criminal offence an unlimited right to hear witnesses and, accordingly, a refusal to hear further witnesses does not as such infringe Article 6 para. 2 (Art. 6-2) of the Convention.         The refusal to hear witnesses was based on section 293 of the Criminal Procedure Act which inter alia allows a court to refuse to adjourn proceedings for the production of evidence which is found to be of no significance. Having regard to the circumstances of this case, the Commission finds that the City Court merely exercised its power under this provision to decide whether further evidence was necessary or of any significance in addition to that which had already been submitted. In particular the Commission finds that, despite the words chosen, the City Court did not express any finding of guilt and an examination of this complaint thus fails to disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.         The applicant also maintains that the City Court's refusal to hear the fifteen witnesses in question violated his right to have witnesses examined in accordance with Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.         In this respect the Commission recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. Article 6 para. 3 (d) (Art. 6-3-d) of the Convention leaves it to the national courts, generally speaking, to assess whether it is appropriate to call witnesses and it does not require the attendance and examination of every witness. Its essential aim is to secure an equality of arms in the matter (cf. Eur. Court H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, p. 32, para. 33).         In the present case the Commission recalls that the case was rather complex, involving financial transactions which necessitated investigations in several countries. The City Court heard 36 witnesses and four experts and was presented with a substantial amount of documentary evidence. It was only after having evaluated this evidence that the court found it unnecessary to obtain further evidence in respect of the issues which were the basis for the applicant's request as this evidence, in the court's view and given the evidence available, would be of no relevance to the evaluation of the substance of the case which the court had to consider. The Commission has found no elements which could indicate that the court's decision in these circumstances was unfair or arbitrary. The court did not, in the Commission's view, go beyond its proper discretion to refuse to take evidence when refusing to hear the witnesses requested. Accordingly, an examination of this complaint does not disclose any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.         As regards the proceedings in the High Court the applicant complains of the fact that this court refused to hear an additional four witnesses. However, in these proceedings the Commission recalls that the court, like the City Court in the earlier proceedings, first examined the available evidence in order to be in a better position to evaluate the relevance of the further evidence proposed. Having regard to the general principles set out above and to the High Court's reasons for its refusal as stated in its decision of 9 December 1991, the Commission does not consider that the refusal to hear these four witnesses discloses any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.         Finally, as regards the High Court proceedings, the applicant complains of the fact that certain statements made by the witness Andreassen to the police were read out in court, instead of hearing the witness in court.         With regard to the evidence of witnesses the Commission here notes that, according to the case-law of the European Court of Human Rights, the reading out at a hearing of the records of statements made by a witness cannot, in itself, be regarded as being inconsistent with Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention but the use made of such statements as evidence must nevertheless comply with the rights of the defence (cf. Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 31). In this regard the Commission considers that save in exceptional circumstances, requiring specific justification, witnesses must be heard in the presence of the accused at a hearing where both parties can present their arguments and which, since it is subject to public scrutiny, offers a tangible guarantee of the fairness of the proceedings (cf. Eur. Court H.R., Delta judgment of 19 December 1990, Series A no. 191-A, p. 16, para. 36 and the Isgrò judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 34).         Accordingly the Commission must examine whether the present case offered such justification as it is clear that Andreassen was not heard in the High Court.         The Commission recalls that Andreassen was at the time in question working for the UN in Pakistan, that his statements in the High Court's view was of little relevance having regard to the other evidence produced and that, therefore, it would amount to a disproportionate inconvenience and expense to hear him personally instead of reading out his statements made to the police. Furthermore, the Commission recalls that the High Court heard 43 witnesses as well as the applicant. Thus, Andreassen's statements were far from being the only evidence in the case and the applicant's conviction was not based solely or even essentially on Andreassen's statements. The limitation, which derived from his absence at the hearing, did not in the Commission's opinion in these circumstances restrict the rights of the defence to a degree which was irreconcilable with the Convention (cf. also Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203).         Summing up, the Commission recalls that the guarantees in paragraphs 2 and 3 of Article 6 (Art. 6) of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1. The Commission has considered the particular aspects and incidents invoked by the applicant and has found that these did not assume such importance as to constitute a decisive factor in the general appraisal of the trial. In addition an examination of the conformity of the trial as a whole with the rules laid down in Article 6 (Art. 6) of the Convention has not disclosed any appearance of a violation of this provision.         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.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (H. DANELIUS)