CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.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. 29185/95                       by M.A. and B.S.                       against Norway           The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mr     J.-C. GEUS, Acting President            Mrs    G.H. THUNE            MM     G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  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 15 June 1995 by M.A. and B.S. against Norway and registered on 9 November 1995 under file No. 29185/95;         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 applicants are Iranian citizens, born in 1967 and 1968 respectively. At the time of lodging their application they were serving their prison sentences at Bergen Prison in Norway. Before the Commission the applicants are represented by Mr John Christian Elden, a lawyer practising in Oslo.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The applicants were arrested on 1 September 1993 and detained on remand. They were charged with drug trafficking. Other persons who were to some extent involved in the criminal offences were arrested in Denmark and subsequently convicted of the charges brought against them there.         During the police investigations in the applicants' case a request was made on 25 November 1993 to the Danish authorities in order to obtain evidence from witnesses in Denmark. One of these witnesses, A, was at that time serving his prison sentence in Denmark having been convicted of drug trafficking related to the applicants' case. A court session took place in Denmark on 16 December 1993 in the presence of representatives of the Norwegian public prosecutor and the applicants' defence counsel. It turned out, however, that the witnesses could not testify under the applicable Danish rules since the applicants were not present in person and since their counsel insisted on their presence.         The case against the applicants commenced on 5 April 1994 in the Gulating Lagmannsrett (High Court) sitting with a jury. During the proceedings which lasted until 15 April 1994 the applicants, assisted by counsel, had the opportunity to address the court and to submit what in their opinion was of relevance to the outcome of the case. The court furthermore heard a total of 17 witnesses and a substantial volume of documentary evidence was submitted.         During the proceedings a dispute arose regarding the hearing of a Danish police officer, B, as to what the above mentioned witness, A, had told him in private, something which apparently differed from A's submissions as set out in the official police reports. Counsel for the applicants protested against this and maintained in particular that this would amount to inadmissible hearsay evidence and that in fact this would furthermore be equivalent to obtaining evidence from A without the defence having had the opportunity to put questions to him.         On 8 April 1994 the High Court decided in favour of allowing B to be heard. The court stated, inter alia, as follows:   (Translation)         "As regards (the applicants) the court finds that the       European Convention on Human Rights does not prohibit (B)       from testifying in the circumstances. Quite a substantial       volume of evidence has been submitted concerning their       involvement and the court finds that (B's) testimony is not       of such importance that there is reason to refuse the       evidence having regard to case-law.       The court does not consider it to be of importance that it       concerns a statement from (B) concerning interrogations/       talks with (A) and not a de facto police interrogation       ... . The prosecution has acted correctly and allowed the       accused to defend their interests as far as possible.       Considering the case as a whole - which is required in this       kind of cases - the court attaches importance to the fact       that considerable evidence has been submitted concerning       (the applicants) in addition to the statements from (B) ...       . A possible conviction would not in their case have to be       based mainly on (B's) statement but mainly on (statements       from) witnesses and documentary evidence presented in       court. In addition counsel for the defence may refer to the       doubts which may appear due to the fact that (A) did not       make his statement directly to the court. Furthermore, in       Norwegian law there is no prohibition against hearsay       evidence. The right to take evidence from a police officer       shall at least not be less than the right to read out       statements made by him."         Following an evaluation of all available evidence the applicants were found guilty by judgment of 15 April 1994 and sentenced to six years' and four years and six months' imprisonment, respectively.         On 28 and 29 April 1994 the applicants requested leave to appeal to the Supreme Court (Høyesterett). They maintained, inter alia, that the hearing of B about his private talks with A violated the principles of a fair trial and Article 6 para. 3 (d) of the Convention. On 25 June 1994 the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) granted leave to appeal.         On 15 December 1994 the Supreme Court rejected the appeal on its merits by three votes to two. On behalf of the majority Justice Skåre stated, inter alia, as follows:   (Translation)         "(A) was called to appear in court during the main hearing       in accordance with the provisions of the Act of       21 March 1975 on the obligation to give evidence in the       Nordic countries (lov om nordisk vitneplikt) but he refused       to appear. The Act does not ... contain provisions by which       he could have been brought by force to the court. I agree       ... that the situation according to (the Criminal Procedure       Act) would have allowed the reading aloud of the police       reports and that, in such circumstances, it must be       examined whether the court ought to have adjourned the case       or refused to hear (B), having regard to the elucidation of       the case and the general requirement of an appropriate       procedure.         The case was investigated having in mind that (A) as well       as the other Danish witnesses might refuse to appear during       the trial in Norway. The request for the taking of evidence       (in Denmark) must be seen in this light. The prosecution       requested in this respect that the presence of the accused       should be refused according to section 748, subsection 5 of       the Danish Administration of Justice Act (retsplejeloven).        ... According to the prosecutor this request was connected       with the fact that the Danish witnesses in their statements       to the police had expressed their intention not to make       statements if the accused were present.         I understand (the Danish court records) to mean that the       court could not take evidence from (A) when he had accepted       to make his statement in the presence of the accused and       when counsel for the defence had requested their presence.       As I understand the court records, however, counsel for the       defence could themselves have ensured that the taking of       evidence proceeded, had they dropped their request that the       accused be present.         When the (Danish) court announced that it lacked competence       (A) had maintained that those who were charged in Norway       were innocent ... . By the way he had said the same during       a police interrogation the day before. Counsel for the       defence have said, however, that they wanted to confront       (A) with what (B) had stated about the explanations given       by (A) and which did not appear in the police reports.       However, counsel for the defence knew already at the time       of the taking of evidence (in Denmark) what (B) had said.       Therefore, it is difficult to see why questions were not       asked during that court session. Counsel for the defence       were prepared for a situation where (A) would give evidence       without the presence of the accused and the situation was       not particularly special ... . It is also somewhat       difficult to see the point in a further examination -       immediately or through a second taking of evidence. (A) had       given evidence which supported the accused and the question       regarding his credibility appears first and foremost to be       a question directed at the prosecution.         (A's) explanations in Denmark had to be taken into account       when the evidence available to the High Court was       evaluated. I cannot see that there was anything to gain       from adjourning the case. There is no reason to believe       that (A) would have appeared to be a stronger witness       following a new interrogation than he was vis-à-vis counsel       for the defence during the proceedings in the High Court       when he totally denied (B's) statements. On the other hand       counsel for the defence had every opportunity to challenge       (B's) credibility.         In its evaluation of the case as a whole the High Court       attached importance to the fact that in addition a       considerable volume of direct evidence had been submitted.       'A possible conviction would not in their case have to be       based mainly on (B's) statement but mainly on (statements       from) witnesses and documentary evidence presented in       court'. What the High Court says here is based on what was       already available, inter alia, as a result of the hearing       of three witnesses from Denmark. One of these witnesses was       the other (person who had sold the narcotics) and the two       others had been the couriers in the case. In my opinion       nothing has emerged which shows that the High Court's       evaluation was wrong. Considering the case as a whole I       cannot see that the High Court committed an error by       accepting statements from (B)."   COMPLAINTS         The applicants complain that their conviction was decisively based on hearsay evidence from a person to whom they had no opportunity to put questions. They invoke Article 6 para. 1 and Article 6 para. 3 (d) of the Convention.     THE LAW         The applicants complain in essence that they did not receive a fair trial. In this connection they rely on the following provisions of the Convention:         "1.   In the determination of ... any criminal charge       against him, everyone is entitled to a fair ... hearing ...       ...         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 source of the applicants' allegation was the use as evidence by the Gulating High Court of the witness statements of the Danish police officer (B) which included hearsay evidence, i.e. statements from another person (A) to whom they had not had the opportunity to put questions.         The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law. As a rule it is for the national courts to assess the evidence before them. The Commission's task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (cf. for example Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, para. 39).         The Commission finds that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument (cf. Eur. Court HR, Barberá, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 34, para. 78). This does not mean, however, that the statement of a witness must always be made in court, if it is to be admitted in evidence, as this might in some circumstances prove impossible.         The Commission does not find that the principle adopted by Norway as regards the free evaluation of evidence as such runs counter to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, and hearing the Danish police officer (B) as a witness does not therefore disclose any appearance of a violation of this provision. Nevertheless, the Commission has not overlooked that B's testimony included information of what A had told him in private and the Commission would not exclude that the use of such testimony, instead of hearing A directly, could raise an issue under Article 6 (Art. 6) of the Convention as it was to some extent taken into account by the trial court.         The Commission notes that counsel for the applicants were afforded the opportunity to put questions to A during the court session in Denmark, but chose not to make use thereof. Furthermore, the Commission finds that the information obtained by police officer B was far from being the only evidence in the case. It was also clear to the High Court that this evidence could not be considered to be reliable first-hand information. The Commission finds that the applicants' convictions were not based to any decisive extent on this evidence. In particular it recalls that in the course of the main proceedings in the High Court the testimony of 17 witnesses was heard at the request of the prosecutor and the applicants and it is clear from the High Court's judgment, as well as from that of the Supreme Court, that the applicants' convictions were based on this testimony. Nothing has emerged which could give rise to any misgivings as regards the fairness of the applicants' trial or their right to a proper defence in this respect. In these circumstances the Commission does not find that the fact that the High Court did not exclude B's evidence could lead to the conclusion that the applicants did not have a fair trial within the meaning of Article 6 (Art. 6) of the Convention.         The Commission finally recalls that the guarantees in paragraph 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 incident invoked by the applicants and has found that it 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 either.         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                                Acting President to the Second Chamber                       of the Second Chamber