CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 octobre 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. 20087/92                       by E.M.                       against Norway         The European Commission of Human Rights sitting in private on 26 October 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission         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 May 1992 by E.M. against Norway and registered on 5 June 1992 under file No. 20087/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 15 July 1994 and the observations in reply submitted by the applicant on 17 November 1994;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant is a Norwegian citizen, born in 1944. He resides in Oslo. Before the Commission he is represented by Mr. Johan Hjort, a lawyer practising in Oslo.   A.     The particular circumstances of the case         By indictments of 16 March and 27 December 1990 the applicant and seven others were accused of having induced employees of a bank's branch-office in Oslo and the headquarters of the National Bank of Norway to pay them altogether 25,100,000 NOK. The fraud consisted in presenting certain documents and in concealing that the person who had issued them was not authorised to do so. The documents were issued under false pretences giving the holder no right to obtain the money.         The trial commenced in the City Court of Oslo (Oslo byrett) on 2 January 1991 and lasted until 10 July 1991 following a total of 102 court sessions. The Court heard 118 witnesses and police statements of six witnesses were read out in the court. Statements from witnesses questioned in Germany were also read out. The Court finally heard eight experts, five of whom were relevant to the applicant's involvement in the case.         By judgment of 6 September 1991 the applicant was found guilty of some of the charges brought against him whereas he was acquitted of others. He was sentenced to 21/2 years' imprisonment. He was also ordered to pay damages, amounting to 21 million NOK, jointly with three co-accused.         On 15 October 1991 the applicant applied to the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) for a new trial in the High Court (lagmannsrett) or, in the alternative, for leave to appeal to the Supreme Court (Høyesterett). In support of the request for a new trial in the High Court the applicant maintained his innocence and contested that the City Court had made a correct evaluation of various parts of the available evidence. In support of the alternative request for leave to appeal to the Supreme Court the applicant directed his appeal against alleged procedural errors in that the reasons for the Court's finding were incomplete (mangelfulle domsgrunner), against an alleged wrongful application of the law and against the sentence imposed which he found disproportionate when compared to that of a co-accused.         A copy of the applicant's requests was transmitted to the public prosecution authority for comments. Such comments were submitted on 2 November 1991 and the applicant's reply thereto was submitted on 13 November 1991. Further comments were submitted by the prosecuting authority on 18 November 1991 and a copy was transmitted to the applicant for information.         The applicant's request for a new trial or, in the alternative, leave to appeal to the Supreme Court were examined by the Appeals Selection Committee of the Supreme Court on 21 November 1991. Both requests were rejected. The applicant was informed hereof by letter of 28 November 1991 from the Supreme Court's Registry.         Subsequently, on 8 April 1992, the applicant requested the Appeals Selection Committee to reconsider its decision of 21 November 1991. By letter of 10 April 1992 the applicant was informed that the Appeals Selection Committee had found no reason to reconsider its previous decision.         On 15 June 1992 the applicant requested the Oslo City Court to re-open the case (begjæring om gjenopptakelse). This was refused by the City Court on 4 September 1992 and by the Eidsivating High Court on 25 November 1992.   B.     Relevant domestic law         The appeal system in criminal cases was at the relevant time governed by Act No. 25 of 22 May 1981 relating to Legal Procedure in Criminal Cases (hereinafter the Criminal Procedure Act). According to this Act the consideration of criminal cases, with certain exceptions, starts in the District Court (herredsretten) or the City Court (byretten) cf. chapter 22 of the Act. (In order to simplify the account below the expression "City Court" will cover the courts in the districts as well as in the cities). In individual cases the City Court is composed of one professional judge, who presides over the proceedings, and two lay judges (section 276).         Criminal proceedings are instituted by the public prosecuting authority when it deems it possible to produce sufficient evidence to prove that the criminal act in question has been committed by one or more specified persons. When the public prosecuting authority has decided to prefer an indictment, the said authority shall send the court a copy of the indictment with a summary of the evidence it will produce (section 262, first paragraph). At the same time, the public prosecuting authority shall send a copy of the indictment and a summary of the evidence to the defence counsel together with the documents relating to the case (section 264).         The Court shall immediately appoint a defence counsel if one has not already been appointed (section 262, second paragraph). The defendant enjoys the right to be assisted by a defence counsel of his own choice (section 94, first paragraph). As a general rule the defence counsel will be remunerated by the State. According to section 265, the defence counsel shall without unnecessary delay contact the person indicted and discuss how the defence shall be conducted. Within a fixed time-limit, the defence counsel shall return the documents relating to the case together with a statement of the evidence he will produce. Counsel may also request that an attempt be made to procure evidence in another way, and that the public prosecuting authority shall proceed to obtain any new evidence he specifies.         The proceedings of the main hearing of the City Court are oral (section 278). The person indicted (tiltalte) has the right to be present (cf. sections 280-282). The Court shall in its official capacity see to it that the case is fully clarified (section 294). Written evidence shall be read aloud by the person producing the evidence unless the Court decides otherwise (section 302). After the examination of each individual witness and after the reading aloud of each piece of written evidence, the person indicted shall be given an opportunity to speak (section 303).         When the production of evidence (bevisførselen) is completed, first the prosecutor and then the defence counsel may address the Court. Each of them is entitled to speak twice. When the defence counsel has finished, the person indicted shall be asked whether he has any further comment to make (section 304). In deciding what is deemed to be proved, only the evidence produced at the main hearing shall be taken into consideration by the Court (section 305).         The judgment of the City Court must satisfy the requirements set out in section 40, second paragraph. Hence the grounds of the judgment concerning the question of guilt shall specifically and fully state the facts of the case that the Court has found to be proved as a basis for the judgment, and shall refer to the penal provision pursuant to which the person charged has been convicted. Furthermore the grounds of the judgment shall state the reasons to which the Court has attached importance in determining the penalty and other sanctions.         Judgments of the City Court are subject to two kinds of review in criminal cases: "appeal" to the Supreme Court (Chapter 24 of the Act) or "new trial" by the High Court (Chapter 25 of the Act). The choice between these remedies depends upon the aspects of the judgment that are contested before the higher court.         Despite the wording of the Criminal Procedure Act both the "appeal" (as the Act defines the term) and the petition for a "new trial" are covered by the ordinary meaning of the term appeal. Consequently, the Norwegian criminal procedure provides for a right to appeal against a judgment of the City Court irrespective of the grounds invoked, either to the Supreme Court ("appeal") or to the High Court (petition for a "new trial"). However, the Appeals Selection Committee of the Supreme Court may, subsequent to "leave to appeal proceedings", decide that an "appeal" shall not be allowed to proceed or that it shall not give its consent for a new trial.         "Appeal" (anke) to the Supreme Court is available with one exception: error in the assessment of evidence in relation to the question of guilt (bevisbedømmelsen under skyldspørsmålet) cannot be a ground for "appeal" (section 335), but for a new trial. Consequently, "appeal" is the relevant remedy in relation to any alleged defects concerning: - the application of law with regard to the question of guilt (lovan- vendelsen under skyldspørsmålet); - the application of rules of procedure (saksbehandling); - the determination of sanctions (avgjørelsen av reaksjonsspørsmålet), for instance the meting out of the penalty (straffutmåling).         An "appeal" shall not be allowed to proceed when the Appeals Selection Committee of the Supreme Court unanimously finds it clear that it will not succeed (section 349). The Committee may itself decide an "appeal" against a judgment of the City Court when it unanimously finds that the judgment should be set aside, that the accused should be acquitted or altered in his or her favour (section 350). Otherwise, the "appeal" shall be referred to appeal proceedings (section 352 first paragraph).         The parties may petition for a "new trial" (begjæring om fornyet behandling) in the High Court of any case which has been adjudicated by the City Court when the question of evidence in relation to the issue of guilt is alleged to have been wrongly decided (section 369).         The consent of the Appeals Selection Committee of the Supreme Court is required for a "new trial". Such consent shall be given when there may be reason to doubt whether the assessment of evidence was correct or other special reasons so indicate (section 370).         The Appeals Selection Committee is composed of four Justices of the Supreme Court who serve on a rotating basis. Three of these Justices participate in each case. The Committee is assisted by the Supreme Court's Secretariat.         Both parties may lodge an "appeal" against a judgment of the City Court, or petition for a "new trial" in the High Court (section 335 first paragraph and section 369). The time-limit for an "appeal" is two weeks from the date on which judgment is delivered, i.e. to the defendant (cf. section 339 which also applies in cases of petitions for a "new trial", cf. section 371).         If the person charged has a defence counsel appointed by the state, the latter shall on request advise the defendant on the question of an "appeal" and assist him with the notice of "appeal" (cf. section 342 which also applies in cases of petition for a "new trial", cf. section 371). At this stage too the defence counsel will be remunerated by the state.         The notice of "appeal" shall state (section 343) inter alia whether the appeal relates to procedure, the application of law with regard to the question of guilt, or the decision concerning a penalty. If the "appeal" is against the application of law, the notice of "appeal" should also state the error on which the "appeal" is based, and the alteration demanded.         The notice of "appeal", the judgment of the City Court and other documents of the case are sent to the Appeals Selection Committee of the Supreme Court, which will examine the issue whether the "appeal" has been made in time and otherwise fulfils the legal requirements (sections 345-348). Corresponding rules govern the handling of a petition for a "new trial, (cf. sections 371 and 372).         According to section 351 (also applicable in cases of petition for "new trial", cf. section 371), the decisions of the Appeals Selection Committee are made without party proceedings. However, the parties may be allowed to express their views in writing, and the other party shall be informed of all statements containing new facts which are not obviously without significance.         Thus, the documents of the case, and first of all the judgment of the City Court, taken together with the arguments found in the submissions and replies by the parties, constitute the basis for the assessment by the Appeals Selection Committee as to whether an "appeal" should not be allowed to proceed or consent to a "new trial" should be given.         The Appeals Selection Committee gives no reasons for its decision not to allow an "appeal" to proceed or to refuse to give its consent to a "new trial". The decisions are final, and not subject to review.   COMPLAINTS         The applicant complains that the examination by the Appeals Selection Committee of the Supreme Court in respect of his requests for a new trial or for leave to appeal did not fulfil the requirements of Article 2 para. 1 of Protocol No. 7 to the Convention. Accordingly, he is of the opinion that he could not have his conviction or sentence reviewed by a higher tribunal within the meaning of this provision.         He also invokes Article 6 of the Convention complaining that he did not have a fair trial when the Appeals Selection Committee considered his request for a new trial in the High Court or for leave to appeal to the Supreme Court.         Finally, he invokes Article 1 of Protocol No. 1 to the Convention maintaining that, as he was ordered to pay damages, he has been deprived of his right to enjoy, in the future, the fruits of his own labour.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 28 May 1992 and registered on 5 June 1992.         On 6 April 1994 the Commission (Second Chamber) decided to bring the application to the notice of the respondent Government and to invite them to submit observations on the admissibility and merits of the complaints submitted under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention.         After an extension of the time-limit the Government's observations were submitted on 15 July 1994. Following two extensions of the time-limit the applicant's observations in reply were submitted on 17 November 1994.   THE LAW   1.     Relying on Article 2 of Protocol No. 7 (P7-2) to the Convention the applicant complains that the examination by the Appeals Selection Committee of the Supreme Court of his application for a new trial or leave to appeal, did not comply with the requirements of this provision.         Article 2 of Protocol No. 7 (P7-2) 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 highest tribunal or was convicted following       an appeal against acquittal."         Having regard to the fact that a conviction and sentence may involve severe punishment as well as an obligation to pay enormous sums in damages the applicant maintains that the above provision should be interpreted as securing a right of an accused to have a "complete review" of the entire case before a higher tribunal without a need first to obtain leave to appeal. Furthermore, he maintains that the "review" performed by the Appeals Selection Committee of the Supreme Court cannot be considered as satisfying the review required by Article 2 of Protocol No. 7 (P7-2).         The Government submit that under Norwegian law there are no limitations as to what aspects of a case an appeal court may consider. As Article 2 of Protocol No. 7 (P7-2) refers on the other hand to a review of the conviction or the sentence the Government maintain that the applicant enjoyed procedural rights which were more extensive than those prescribed by this provision.         Furthermore, the Government maintain that where leave is refused the review is carried out by the Appeals Selection Committee of the Supreme Court which under sections 349 and 370 of the Criminal Procedure Act shall consider, depending on the type of appeal requested, whether or not the appeal, which may concern all aspects of a case, is unfounded or whether there is reason to doubt the assessment of the evidence made by the first instance court. Having regard to this and to the fact that Article 2 of Protocol No. 7 (P7-2) explicitly leaves it to the national legislator to decide how the right of review shall be exercised, the Government contend that the "leave to appeal proceedings" as applied in the present case satisfied the requirements of this provision.         The Commission notes that different rules govern review by a higher tribunal in the member States of the Council of Europe. In some countries such review is in certain cases limited to questions of law such as the "recours en cassation" (in French law) or "Revision" (in German law). In other countries there is a right to appeal against findings of fact as well as on questions of law; and in some States a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal.         As regards Norway the Commission recalls that judgments of the City Court are subject to two kinds of review in criminal cases in the form of an examination by the Supreme Court or a new trial in the High Court. The choice between these remedies rests with the appellant and depends on the aspects of the judgment which are contested. Whereas a party may petition for a new trial in the High Court when the question of evidence in relation to the issue of guilt is alleged to have been wrongly decided by the City Court, an "appeal" to the Supreme Court may be based on alleged defects covering the application of the law, the application of the rules of procedure and the determination of the sanction.         Having regard to this the Commission considers that in principle the possibility exists in Norway for a person convicted of a criminal offence to have his conviction or sentence reviewed by a higher tribunal within the meaning of Article 2 of Protocol No. 7 (P7-2) to the Convention.         However, the possibility of such a "review" depends on leave from the Appeals Selection Committee of the Supreme Court. The question accordingly arises whether the Norwegian system of "leave to appeal", as applied in the present case, was such that the applicant was denied a review of his conviction or sentence as required by Article 2 of Protocol No. 7 (P7-2) to the Convention.         The second sentence of this provision requires that the exercise of the right to a review by a higher tribunal shall be governed by law but it does not otherwise specify its scope or actual implementation. However, as the reference to the grounds for the review being governed by law clearly shows the Contracting States have a discretion as to the modalities for the exercise of the right of review. Consequently, the Article gives the States the possibility to regulate the review in several ways.         The Commission recalls, as a matter of comparison, that the right of access to the courts secured by Article 6 para. 1 (Art. 6-1) of the Convention may also be subject to limitations in the form of regulation by the State. The State enjoys a certain margin of appreciation but in addition to pursuing a legitimate aim the limitations applied shall not restrict or reduce the access left to the individual in such a way that the very essence of the right is impaired (cf. for example Eur. Court H.R., Tolstoy Miloslawsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 323, para. 59).         Although it is not the Commission's task to substitute itself for the competent Norwegian authorities in determining the most appropriate policy for regulating the exercise of the right of review, the Commission finds that similar considerations should be kept in mind when examining whether the limitations on the right to a review as guaranteed by Article 2 of Protocol No. 7 (P7-2) are compatible with the very essence of this right.         In the present case the Commission recalls that the Appeals Selection Committee of the Supreme Court may decide that an "appeal" may not be allowed to proceed when it unanimously finds it clear that it will not succeed (cf. section 349 of the Criminal Procedure Act). Furthermore, the Committee may refuse leave to obtain a new trial in the High Court if there is no reason to doubt that the assessment of evidence was correct or there are no other special reasons for granting such leave (cf. section 370).         The Commission considers that these provisions of the Criminal Procedure Act pursue a legitimate aim, i.e. the fair administration of justice. Furthermore, the Commission has found no evidence which could lead to the conclusion that the Appeals Selection Committee pursued any other aims. Before the Committee the applicant had not only the opportunity to present any submissions he considered to be of relevance to his case, but also to comment on the observations submitted by the prosecuting authority. Although it is not the Commission's role to assess the facts which led the Committee to adopt one decision rather than another the Commission is satisfied that the decision taken was based on a full evaluation of all relevant factors.         In these circumstances the Commission does not find that the Appeals Selection Committee overstepped its margin of appreciation when refusing the applicant leave to appeal having found that the conditions therefor were not fulfilled. These conditions, as set out in the Criminal Procedure Act, cannot be said to impair disproportionately the essence of the applicant's right to a review by a higher tribunal within the meaning of Article 2 of Protocol No. 7 (P7-2) to 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 in the proceedings before the Appeals Selection Committee he did not have a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This provision reads, in so far as relevant, as follows:         "In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal ..."         In particular the applicant refers to the fact that there was no public hearing before the Appeals Selection Committee, no witnesses were heard and no reasons for the decision taken were given.         The Government submit that Article 6 (Art. 6) applies to the proceedings before the Appeals Selection Committee but maintain that when account is taken of the entirety of the proceedings the requirements of Article 6 (Art. 6) were fulfilled.         As regards the applicability of Article 6 (Art. 6) of the Convention the Commission recalls that the Appeals Selection Committee was called upon to decide whether the applicant's request for a new trial in the High Court or, in the alternative, for leave to appeal to the Supreme Court should be granted. The issue therefore arises whether the Committee can be said to "determine" the criminal charge against the applicant. In the present case, however, the Commission finds it can leave this question open and proceed on the assumption that Article 6 (Art. 6) applies.         The manner of application of Article 6 (Art. 6) to proceedings before appeal courts depends on the special features of the proceedings in the domestic legal order seen in their entirety and the role of the appellate court therein. Regard must be had to the nature of the appeal system, to the scope of the appeal court's powers and to the manner in which the applicant's interests were actually presented and protected before the appeal court, particularly in the light of the nature of the issue to be decided (cf. for example Eur. Court H.R., Fejde judgment of 29 October 1991, Series A no. 212-C, p. 67, para. 27).         In the present case the Commission recalls that the applicant's and the co-accused's case was heard in the City Court of Oslo from 2 January 1991 until 10 July 1991 involving a total of 102 court sessions and the hearing of 118 witnesses. Nothing has emerged from the examination of this case which indicates that the applicant was not afforded all the guarantees secured by Article 6 of the Convention during this trial.         As regards the "appeal proceedings" the Commission recalls that the Appeals Selection Committee was called upon to decide whether or not to grant leave to appeal. Had this question been answered in the affirmative, new proceedings would have commenced in either the High Court or the Supreme Court. Otherwise, as in this case, the City Court judgment would stand. Thus, the limited nature of this issue does not, in the Commission's view, in itself call for oral argument or a public hearing or the personal appearance of the applicant, but Article 6 requires that the applicant be provided, in some appropriate way, with a fair procedure to present his case to the Appeals Selection Committee (cf. Eur. Court H.R., Monnell and Morris v. the United Kingdom, judgment of 2 March 1987, Series A no. 115, pp. 22 and 23, paras. 58 and 61).         In this respect the Commission notes that the principle of equality of arms was respected in that none of the parties were heard orally by the Appeals Selection Committee. Furthermore, the applicant was assisted by counsel under a grant of free legal aid and had the possibility to submit, in writing, all that in his opinion would be of relevance to his request. He was also afforded the opportunity to study and reply to the submissions made by the prosecuting authority. Accordingly, the proceedings cannot be said to have taken place in such conditions as to put the applicant unfairly at a disadvantage. In addition, the Commission has no cause to doubt that the Appeals Selection Committee's decision to refuse the applicant leave to appeal was based on a full and thorough evaluation of the relevant factors.         As regards the applicant's reference to the fact that no reasons were given by the Appeals Selection Committee for its refusal to grant leave to appeal the Commission accepts that under specific circumstances the absence of reasons in a court decision might raise an issue as to the fairness of the procedure which is guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. It considers, however, that if the domestic law, as in the present case, subjects the acceptance of the appeal to a decision by the competent court whether it considers that the appeal raises a legal issue of fundamental importance and whether it has any chances of success, it may be sufficient for this court simply to reject or accept this petition (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).         Thus, having regard to the circumstances of the case, in particular the scope of review exercised by the Appeals Selection Committee, the Commission finds that the proceedings against the applicant, seen as a whole, do not disclose any appearance of a violation of Article 6 (Art. 6) 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.   3.     The applicant finally invokes Article 1 of Protocol No. 1 (P1-1) to the Convention complaining that the obligation imposed on him to pay damages, jointly with other defendants in the case, in the amount of 21 million NOK, deprived him of his right to enjoy, in the future, the fruits of his own labour.         As regards expectations for future income, the Commission recalls that it could only be considered to constitute a possession if it had already been earned or if an enforceable claim existed (cf. No. 10438/83, Dec. 3.10.84, D.R. 41 p. 170). Furthermore, even assuming that a possession within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention existed in the present case, the Commission finds that Article (P1-1) does not protect a person against payment of legally imposed debts.         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, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                           (S. TRECHSEL)