CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1998

.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. 34826/97                       by Anders JOHANSSON                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 1998, the following members being present:                MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  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 6 November 1996 by Anders JOHANSSON against Sweden and registered on 11 February 1997 under file No. 34826/97;         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, a Swedish citizen born in 1964, is residing in Mariestad. He is currently serving a prison sentence in Hällby prison. Before the Commission he is represented by Tomas Algons, a lawyer practising in Skövde.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On the evening of 17 January 1996 K.J. (hereinafter called the plaintiff) was beaten severely, abducted, tied and left in a desolate place by two men. At first the plaintiff claimed that the perpetrators were two unknown hitchhikers whom he had offered a ride in his car. However, he later changed his statement and named and accused two persons of the assault, i.e. the applicant and another person called J.S. Subsequently, the applicant and J.S. were charged with, inter alia, kidnapping and committed for trial.         The hearing of the District Court (tingsrätten) of Skövde, scheduled for 21 March 1996, had to be postponed until 25 March as the plaintiff failed to appear. On the latter date he was brought to the hearing by the police.         On 9 April 1996 the District Court found the applicant and his co-accused not guilty of the kidnapping and, thus, acquitted them in that respect. In its judgment the court stated that, in view of all circumstances of the case, including the denial of the accused and the fact that the charges were supported solely by the plaintiff's statement, it was not proven beyond reasonable doubt that the accused had committed the alleged crime. The court's judgment was appealed against by the Public Prosecutor.         Soon afterwards, on 2 May 1996, the applicant, J.S. and a third person (M.P.) were charged with aggravated assault and battery of two other persons. The co-accused M.P. was also charged with obstruction of the course of justice (övergrepp i rättssak) as he, before the kidnapping trial was held, had tried to persuade the plaintiff to change his statement. Allegedly, he had threatened the plaintiff with a knife and told him to make sure that the applicant and J.S. be acquitted. With regard to the obstruction case, the court stated, inter alia, that the plaintiff had made a credible impression and that the court's assessment could be based on his statement. Thus, on 28 May 1996, the court found M.P. guilty as charged. Furthermore, the court found the applicant and the two co-accused guilty of aggravated assault and battery. All three appealed against the judgment.         The Court of Appeal decided to have joint proceedings in the above cases. The court scheduled six days for the proceedings at which the kidnapping case was to be examined first, i.e. on 18 July, 19 July and in the morning of 22 July 1996. The obstruction case against M.P. was scheduled to be examined in the afternoon of 22 July 1996 whereas the assault and battery charges and some additional charges which were brought against the accused were to be examined during the last three days of the proceedings, i. e. on 24 - 26 July 1996.    On 27 June 1996 the applicant was summoned to appear at the Court of Appeal's hearing concerning the kidnapping case on 18 July 1996, on 19 July 1996 and on 22 July 1996. Moreover, on 28 June 1996 he was summoned to the court's hearing on 24 - 26 July 1996 regarding, inter alia, the assault.         During the Court of Appeal's hearing in the kidnapping case the applicant and his representative were present in person while the plaintiff and other witnesses gave their statements before the court. At the end of this part of the proceedings, the court informed the parties that the proceedings were to be continued with, inter alia, the obstruction charges against M.P. and that the applicant's presence was not required until 24 July 1996. During the examination of the obstruction charges against M.P., the plaintiff, the accused and one witness were heard.         On 2 August 1996 the Court of Appeal sentenced the applicant to a total of six years and nine months' imprisonment for, inter alia, kidnapping and aggravated assault and battery. In its judgment the Court of Appeal, inter alia, made the following assessment as to the plaintiff's statement regarding the kidnapping case.   (Translation)         "Lacking witness observations or binding technical       evidence, the charges are based, as the District Court has       found, solely on the [plaintiff's] statements. However,       this does not mean that the submitted evidence cannot be       sufficient for a conviction. It is therefore of significant       importance to assess the credibility of [the plaintiff's]       statements in the light of the other circumstances of the       case.         [The plaintiff] has given a long story which is coherent in       details. It has been given in a credible manner. It is in       all relevant parts in accordance with his earlier       statements to the police and before the District Court.       Like the District Court, the Court of Appeal has the       impression that [the plaintiff] has been afraid to talk       about the events and that he has given his statement in       agony without exaggerations.       ...         When [the plaintiff] was found and questioned he first       claimed that he had been assaulted by two unknown       hitchhikers. The Court of Appeal finds his explanation why       he did not want to name the perpetrators as highly       credible. During the questioning of the accused and others       it has emerged that it was an unwritten rule not to "grass"       on the people with whom he was associating. Therefore, [the       plaintiff's] statement that, at first, he did not want or       dare to tell who the perpetrators were appears to be a       natural reaction. ... Thus, the Court of Appeal concurs in       the District Court's opinion that [the plaintiff's] changed       statement concerning the perpetrators does not give reason       to doubt the credibility of his statement. As it turned       out, his fears were confirmed as he was exposed to threats       before the District Court's hearing. As the Court of Appeal       will show in the following, it has been proven that [M.P.]       threatened him with a knife so that he would "get out" [the       applicant] and [J.S.]. Having regard to what has emerged       about the threat which [M.P.] exposed [the plaintiff] to       before the hearing in the District Court, the fact that he       did not voluntarily appear at that hearing does not give       reason to doubt his statements. The fact that [the       plaintiff] has moved to another place also indicates that       he found the threats to be serious.       ...         With regard to the question whether the applicant and       [J.S.] are the perpetrators, ...   [the plaintiff] has given       an acceptable and reasonable explanation why he first       stated that he was assaulted by unknown hitchhikers but       later ... changed his mind and named the perpetrators of       the crime. ...         It has also emerged that the accused do not hesitate to       commit serious and violent crimes together. Furthermore, in       the Court of Appeal, a reasonable motive has been       presented. Accordingly, and in view of all other       circumstances in the case, the Court of Appeal finds that       the assessment of the charges shall be based on the       statements made by [the plaintiff]."         With regard to the charges concerning obstruction of the course of justice, the appellate court concurred in the District Court's judgment.         The applicant appealed against the judgment but, on 6 September 1996, the Supreme Court refused leave to appeal.     COMPLAINTS         The applicant complains that he was denied a fair hearing in the Court of Appeal. He claims that he was unable to defend himself properly as he was not allowed to be present during a part of the proceedings in which the plaintiff gave evidence. Therefore, he was deprived of the possibility to cast doubt on the witness's credibility. He maintains that this affected the judgment against him. The applicant invokes Article 6 of the Convention.     THE LAW         The applicant alleges that the proceedings in the Court of Appeal were unfair as he was not allowed to be present at the entire hearing. He invokes Article 6 (Art. 6) of the Convention, which, in relevant parts, reads as follows:         "1. In the determination ... of any criminal charge against       him, everyone is entitled to a fair ... hearing ... by [a]       tribunal...       ...         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 submits that, with regard to the kidnapping case, the plaintiff's statement constituted the only incriminating evidence in the proceedings against him as there were no binding technical evidence or witness observations. Therefore, the appellate court must have based its judgment solely on the plaintiff's credibility at the hearing. However, the court's impression of his credibility has not only been appreciated during the court's   examination in the kidnapping case, but also when the plaintiff gave his statement in the obstruction case against M.P., a part of the hearing at which the applicant was not present and, thus, unable to cast doubt on the plaintiff's credibility by questioning him.         The Commission recalls that the guarantees in paragraph 3 (d) of Article 6 (Art. 6) are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article (cf. Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 25). Furthermore, the taking of evidence is primarily governed by the rules of domestic law and it is in principle for the national courts to assess the evidence before them. Accordingly, the Commission's task in the present case is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken, were fair. This requires, in principle, that all the evidence be produced in the presence of the accused at a public hearing with a view to adversarial argument.         The Commission notes that the Court of Appeal decided to have joint proceedings in two different cases. Thus, the court's hearing concerned several different crimes allegedly committed by different persons. In so far as relevant, the proceedings involved the examination of not only a kidnapping charge brought against the applicant, but also a charge against another person, M.P., for obstruction of the course of justice. However, the victim was the same person in both matters.         It is not disputed that the applicant was present in person while the court examined the kidnapping charge brought against him and that the plaintiff's statement was given in his presence with a view to adversarial argument. It is true that the applicant was not present when the plaintiff gave his statement in the obstruction case. However, no criminal charges were brought against the applicant in this matter and, as it appears, he was in no way responsible for the threats against the plaintiff. Moreover, when examining the kidnapping charge, the Court of Appeal took into account the plaintiff's statements with regard to the obstruction matter only in so far as it found that his credibility was not lessened by the fact that he had failed to appear at the District Court's hearing as originally scheduled. The statements which were given in relation to the kidnapping case and which formed the basis of the applicant's conviction, were all given in the applicant's and his representative's presence. Thus, they had ample opportunity to cast doubt on the plaintiff's statements.         In these circumstances, the Commission considers that the facts submitted do not disclose any appearance of a violation of the applicant's right to examine witnesses under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention or his general right to a fair hearing under para. 1 of the same Article.         It follows that the application is manifestly ill-founded within the meaning of Article 27 paragraph 2 (Art. 27-2) of the Convention.         For this reason the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE            M.-T. SCHOEPFER                            J.-C. GEUS          Secretary                                President    to the Second Chamber                    of the Second Chamber