CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25272/94                       by Wilhelm Schlüter PEDERSEN                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              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 13 June 1994 by Wilhelm Schlüter Pedersen against Norway and registered on 21 September 1994 under file No. 25272/94;         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 1941. He is at present serving a prison sentence at Ullersmo, Norway. Before the Commission he is represented by Mr. Edvard Vogt, a lawyer practising at Bergen.         The applicant has been convicted since the 1950s more than thirty times for crimes related to violence and economic gain and has spent more than thirty years in prison.         Following one of his convictions the applicant was in April 1991 placed at Bergen State Prison. On 5 October 1991 an incident occurred there in which the applicant, being under the influence of intoxicating beverages, held a prison officer hostage and threatened him and other officers. After approximately two hours the applicant was overpowered and placed in a security cell. It appears that he tried to commit suicide there and he was therefore handcuffed in the cell until the next day.         Following police investigations an indictment was served on the applicant on 28 August 1992 by which he was charged with unlawful deprivation of liberty, threats and assault contrary to sections 223, 227, 128 and 228 of the Penal Code.         On 5 February 1993 the applicant's present representative was appointed defence counsel and in this capacity he carried out certain investigations concerning the incident of 5 October 1991. By decision of 16 April 1993 the Bergen City Court (Bergen byrett) withdrew counsel's appointment as the Court considered that by the investigations carried out counsel had violated fundamental procedural principles and acted contrary to his duties as court-appointed counsel. On 8 June 1993, however, the Gulating High Court (Lagmannsrett) quashed the decision. The prosecution's appeal against this decision was rejected by the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) on 2 September 1993.         On 29 September 1993 the applicant requested the President of the Bergen City Court to remove the judge in charge of the case. He maintained in particular that the judge had taken various pre-trial decisions which showed that he was biased against the applicant and also referred to the fact that the judge was the brother-in-law of a carpenter who worked at Bergen State Prison.         By decision of 1 October 1993 the Bergen City Court presided over by its President rejected the applicant's request stating as follows:   (Translation)         "Section 106 subsection 2 of the Court Act (domstolsloven)       concerns disqualification due to relationship by marriage       (svogerskab) with somebody who is involved in the case as       set out in section 106 subsection 1 of the Court Act. The       Court cannot see that Judge T has any relationship by       marriage with the victims in the criminal case. They are       named persons employed at Bergen State Prison. T's       brother-in-law is not among them.       The question remains whether Judge T, through his       brother-in-law, has received such information about the       conditions at Bergen State Prison that he has been       influenced so as to make it impossible for him to examine       the case impartially.         In a decision referred to in RT 1974 p. 1257 the Appeals       Selection Committee of the Supreme Court has examined the       question of a judge's partiality in a criminal case against       a prisoner who demolished furniture in prison. The judge's       membership of the prison's Supervisory Board was not       considered to be a reason for disqualification whereas his       engagement in disputes between the prison management and       the inmates was. Judge T's connection to the conditions at       Bergen State Prison and the inmates must be considered as       being far more remote than the conditions which were       considered as a reason for disqualification in the decision       of the Appeals Selection Committee of the Supreme Court.         Therefore, the Court does not find any reason for       considering judge T to be disqualified due to the fact that       his brother-in-law is employed at Bergen State Prison.         The Court considers that judge T's handling of the case,       including the decision to withdraw counsel's appointment       and the refusal to appoint new experts, is without       relevance to the question of his disqualification. A judge       cannot be disqualified simply because he must decide, as       part of preparing the case, on questions on which the Code       of Criminal Procedure (Straffeprosessloven) requires him to       decide. Against such decisions an appeal may be lodged.         Conclusion:         Judge T is not disqualified as regards the case in       question."         It does not appear that the applicant appealed against the decision.         On 4 October 1993 the main hearing commenced in the Bergen City Court presided over by Judge T. No protests were lodged as to the composition of the Court. The applicant was present and, assisted by counsel, had the opportunity to address the Court. From 4 to 8 October the Court furthermore heard twelve witnesses and two experts and also held an enquiry (åstedsbefaring) at Bergen State Prison. The applicant's request for the hearing of three additional witnesses and the appointment of new experts was rejected by the Court which found that:   (Translation)         "... in the light of the Court's duties pursuant to       section 294 of the Code of Criminal Procedure the case was       fully elucidated without the hearing of the witnesses and       the evidence requested and that this new evidence in any       event would lead to delays and inconvenience which would       not be proportionate to the importance of the evidence."         Following the parties' final pleadings the hearing ended on 8 October 1993. Judgment was pronounced on 18 October 1993. The applicant was found guilty of the charges brought against him and sentenced to one year and six months' imprisonment. Furthermore, the prosecuting authority was empowered to use security measures (sikringsmidler) pursuant to section 39 no. 1 a-f of the Penal Code for a period not exceeding five years.         On 14 November 1993 the applicant submitted a request to the Supreme Court (Høyesterett) for leave to appeal or, in the alternative, for a new trial in the High Court (Lagmannsrett). He maintained inter alia that the presiding judge was partial and that a number of procedural errors had been committed.         The requests were rejected by the Appeals Selection Committee of the Supreme Court on 15 December 1993.   COMPLAINTS   1.     The applicant complains, under Article 3 of the Convention, that he was subjected to unwarranted and unnecessary cruel treatment by the prison officers in connection with the incident at Bergen State Prison on 5 October 1991.   2.     Furthermore, he complains that he did not have a fair trial by an impartial tribunal within the meaning of Article 6 of the Convention.   THE LAW   1.     The applicant complains that he was subjected to treatment contrary to Article 3 (Art. 3) of the Convention in connection with the incident which occurred on 5 October 1991 and following which he was charged with unlawful deprivation of liberty, threats and assault.         The Commission does not consider it necessary to examine whether the applicant, in respect of this part of the application, has complied with the requirements of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies and the six months rule because even assuming this to be the case the Commission does not consider that the treatment the applicant was subjected to discloses in the circumstances any appearance of a violation of Article 3 (Art. 3) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that he was not afforded a fair trial by an independent tribunal within the meaning of Article 6 (Art. 6) of the Convention.         The Commission recalls, firstly, that with regard to the judicial decisions involved, its only task, according to Article 19 (Art. 19) of the Convention, is to ensure the observance of the obligations undertaken by the parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to the established case-law of the Convention organs (see e.g. Eur. Court H.R., Schenk judgment of 12 July 1988 Series A no. 140, p. 29, para. 45).         It is true that the applicant also complains that the proceedings were not fair and that the Court was not impartial. He alleges in this respect that the presiding judge of the Bergen City Court showed bias against him, exemplified by his attempt, albeit unsuccessful, to withdraw the official appointment of his defence counsel, by allegedly harassing and unduly preventing the defence from carrying out its duties and by refusing to accept further witnesses or appoint new experts.         The Commission finds that concerning the objective impartiality of a tribunal appearances may be of a certain importance and account must be taken of questions of internal organisation. In this respect the Commission has found nothing in the actual organisation of the adjudication which would reflect adversely on the City Court's or the presiding judge's objective impartiality. There remains the fact that the applicant might not have seen the Court or the presiding judge as being free from bias due to the fact that the dispute in question, as well as associated points of procedure, were determined against him. However, the existence of such a sentiment on the part of a party against whom the decisions are taken is not sufficient to establish a lack of impartiality. The Commission has found no other elements which could raise doubt as to the impartiality of the City Court or the presiding judge within the meaning of Article 6 (Art. 6) of the Convention.         The applicant also refers to the fact that he was not allowed to hear three additional witnesses or to obtain new evidence through the appointment of two new experts.         In this respect the Commission recalls that the admissibility of evidence is primarily a matter for regulation by national courts. As a rule it is for the national courts to assess the evidence before them whereas it is the Commission's task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (cf. for example Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 19, para. 39). In particular as regards the hearing of witnesses the Commission has had regard to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, one of the purposes of which is to ensure equality between the defence and the prosecution as regards the summoning and examination of witnesses. It does not, however, grant the accused an unlimited right to secure the appearance of witnesses in court as it is in the trial court's discretion to refuse to take evidence which is considered irrelevant (cf. e.g. Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22, pp. 38-39, para. 91).         In the present case the Commission recalls that the applicant's case was heard in public in the Bergen City Court where he was present and assisted by counsel. The Court heard twelve witnesses and two experts but rejected the requests to hear three additional witnesses and to appoint two new experts since this would not, in the Court's view, be necessary for the evaluation of the substance of the case which it had to consider.         The Commission has found no elements which would indicate that the Court went beyond its discretion to refuse to take evidence in the circumstances of the present case. Furthermore, the Commission has found no other elements which could lead to the conclusion that the right to a fair trial within the meaning of Article 6 (Art. 6) of the Convention was not respected.         Accordingly, an examination of the applicant's complaints as to the fairness of his trial and the impartiality of the Court does not disclose to the Commission, on the basis of an appraisal of the entire trial, any appearance of a violation of Article 6 (Art. 6) 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         (M.-T. SCHOEPFER)                       (H. DANELIUS)