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. 29309/95                       by C.T.                       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 7 November 1995 by C.T. against Norway and registered on 17 November 1995 under file No. 29309/95;         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 applicant is a Norwegian citizen, born in 1954. He resides in Oslo. Before the Commission the applicant is represented by Mr Leidulv Digernes, a lawyer practising in Oslo.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 8 March 1994 the applicant was arrested and charged with certain narcotics offences involving several hundred kilos of hashish. The indictment was served on 11 January 1995 and the case against the applicant and four co-accused commenced in the Eidsivating High Court (lagmannsrett) on 8 May 1995. From 8 May until 10 May 1995 the applicant and the co-accused as well as 4 witnesses were heard. Documentary evidence was also submitted.         On 11 May 1995 the prosecutor informed the court that the witness N had not appeared although duly summoned. The police had unsuccessfully tried to find her but it turned out that she had changed her address and now used a different name. The prosecutor further stated that the witness was a drug addict and that there was reason to believe that she was at present "on a tour". Thus, the prosecutor requested permission to read out statements made by the witness to the police and during a previous preliminary court session. Counsel for the applicant protested against this and pointed out that the defence had not had the opportunity to put questions to the witness.         Having deliberated, the court decided to allow the prosecution to read out the statements. In its decision the Court stated inter alia:         (Translation)         On the basis of the available information the court finds       that hearing (the witness N) would entail disproportionate       inconvenience or expense cf. section 297 of the Criminal       Procedure Act (Straffeprosessloven). Reference is made to       (the submission made by the prosecution). The main hearing       would thus have to be adjourned for an unknown period of       time awaiting a possible arrest (of N).         As regards the European Convention on Human Rights the       court agrees with the prosecution that (N's) statements       cannot be considered as the main evidence in the case.         The court has heard (the applicant's) statements in court       and parts of his statements to the police. In addition the       statements from (three co-accused) concerning the money       transports related to (the applicant) are available to the       court.         The reading out of (N's) statements to the police will not       run counter to the principle of a fair trial within the       meaning of Article 6 para. 1 and Article 6 para. 3 of the       Convention. When it comes to the question the defence has       raised as to whether possible promises have been made by       the police, such questions may be put to (the witness S).       That (N's) statements appear to be hear-say evidence and       that she is a drug addict is undisputed."    The main hearing       then continued with the hearing of further witnesses and       the production of further documentary evidence.         On 16 May 1995 the High Court pronounced judgment in the case. The applicant was found guilty of the charge brought against him and sentenced to three years and six months' imprisonment.         Leave to appeal to the Supreme Court (Høyesterett) was refused on 28 July 1995.     COMPLAINTS         The applicant complains that he was denied the possibility of cross-examining the witness N as the court allowed the use of her statements made to the police and in a preliminary court session. He invokes Article 6 para. 3 (d) of the Convention.     THE LAW         The applicant complains of the fact that certain statements made by the witness N to the police and during a preliminary court session were read out in court, instead of hearing the witness directly. He considers this to be contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which reads as follows:         "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."         With regard to the evidence of witnesses the Commission 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 para. 3 (d) (Art. 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 HR, Unterpertinger v. Austria 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 HR, Delta v. France judgment of 19 December 1990, Series A no. 191-A p. 16, para. 36 and Isgrò v. Italy 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 N was not heard in the High Court.         The Commission recalls that N was at the time in question a drug addict whose whereabouts were unknown, that her statements in the High Court's view were of little relevance having regard to the other evidence produced and that, therefore, it would amount to a disproportionate inconvenience and expense to hear her personally instead of reading out her statements made to the police and during a preliminary court session. Furthermore, the Commission recalls that the High Court heard several other witnesses as well as the applicant and the co-accused. Thus, N's statements were not the only evidence in the case and the Commission finds it established that the applicant's conviction was not based solely or even essentially on her statements. The limitation, which derived from her 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 HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203).         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.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                               Acting President to the Second Chamber                       of the Second Chamber