CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 mars 2001

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Rozakis , President ,   Mr   A.B. Baka ,   Mr   G. Bonello ,   Mrs   V. Strážnická ,   Mr   P. Lorenzen ,   Mr   M. Fischbach ,   Mr   A. Kovler , judges , and   Mr   E. Fribergh , Section Registrar , Having regard to the above application introduced on 21   March   1999 and registered on 16 July 1999, Having deliberated, decides as follows: THE FACTS The applicant is a Danish national, born in 1975 and living in Skovlunde. He is represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The facts of the case, as submitted by the applicant, may be summarised as follows. By indictment of 29   October   1996 the applicant was charged with   malicious damage in that, while walking on a road along with five other young men on their way to a discotheque an evening in July 1996, he had knocked his fist against the front window of an oncoming slow driving car with the result that the window cracked. At the first court session, held on 27 February 1997, the applicant was heard. Furthermore, the driver testified that she had seen the applicant very close up when the incident happened and therefore was able to identify him shortly afterwards at the discotheque and again in court. The applicant requested an adjournment of the trial in order to hear witnesses on his behalf, more specifically three of the above five men, henceforth called HK, CJ and CE. In the following court session HK testified that he had not seen any window crack and he could not remember if any of the men had discussed later who might have cracked it. The witnesses CJ and CE did not appear. It appears that GJ was not called and the applicant withdrew his request to hear CE. At the prosecution’s request a police officer who was present in the discotheque on the night when the driver had identified the applicant finally testified. By judgment of 21   August   1997 the City Court of Nykøbing Sj.( retten i Nykøbing Sj .) found the applicant guilty of the charges brought against him following an evaluation of the available evidence and sentenced him to pay a fine of 1,000 Danish kroner (DKK) . On 4 September 1997 the Leave to Appeal Board ( Procesbevillingsnævnet) received   an application from the applicant for leave to appeal, co-signed by CE, in which the applicant declared that CE was the perpetrator. Consequently, CE was provisionally charged with the offence and questioned by the police on 29   and 30 September   1997. According to the police reports CE stated that he could not remember any car or any cracked window, but the applicant had told him that he (CE) was the perpetrator. He refused to elaborate on the exact time when the applicant had told him so. According to a police report of 3   October   1997, CE   told the police on the phone that he did not have time to read his previous statements and he did not care either. However, after the last interview he remembered, although he had been very drunk, that he did stretch his arm and thereby hit the car, but he could still not remember that the window cracked. The applicant was granted leave to appeal to the High Court of Eastern Denmark ( Østre Landsret ) on 17   December   1997. On 17   April   1998 the applicant’s appeal was scheduled to take place on   22   September 1998, and on 15   July   1998 a summons was served on CE to appear as a witness. On 17   September   1998 the applicant informed the High Court that CE was going to work in Holland for three weeks as from 20   September   1998, and therefore he requested an adjournment of the trial. A copy of CE’s work contract was enclosed. The High Court, however, proceeded with the trial as scheduled. The driver and a police officer gave testimony. As for the driver she confirmed her identification of the applicant as the perpetrator once more. As to the witnesses on the applicant’s behalf HK did not appear, since he was detained on remand in another case. Accordingly his statement during the City Court trial was read out during the High Court trial. As for CE his statements given to the Police on 29   September, 30 September   and 3   October 1997 were read out during the trial. Having regard to the available evidence, including the above statements submitted by CE, the High Court did not find an adjournment necessary as requested by the applicant in order to hear CE in person. On the same day the High Court upheld the City Court’s judgment on the basis of the evidence as set out above. The applicant’s request for leave to appeal to the Supreme Court ( Højesteret ) was refused by the Leave to Appeal Board on 26   October   1998. COMPLAINTS The applicant invokes Article   6   §   1, § 2 and § 3 (d) of the Convention. He maintains that testimony on his behalf was de facto denied by the High Court since it pronounced its judgment without hearing the witnesses CE and HK, that the High Court did not give any reasoning for excluding these key witnesses, and that this infringed his right to be presumed innocent until proven guilty. THE LAW The applicant claims to be a victim of a violation of Article 6 § 1, § 2 and §   3   (d) of the   Convention which as far as relevant read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” .. 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 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 Court recalls that the guarantees in §   3 (d) are specific aspects of the right to a fair trial set forth in Article 6   § 1. Likewise the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair trial in Article 6   §   1. The Court will therefore consider the complaints under the three provisions taken together. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce (see, inter alia , the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68). More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, and it does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as is indicated by the words “under the same conditions”, is a full “equality of arms” in the matter (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 38-39, § 91). Thus, the task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair as required by Article   6 § 1 (see, inter alia , the Vidal v Belgium judgment of 22   April   1992, Series A no. 235-B, p 32-33, § 33) In the present case the Court recalls that in the City Court proceedings HK was indeed heard in person as a witness on the applicant’s behalf and the applicant himself withdrew his request to hear CE. In these circumstances the Court finds it established that the proceedings in the City Court did not in any way infringe the procedural guaranties invoked by the applicant. As regards the High Court proceedings the statements from both witnesses on the applicant’s behalf were in their absence read out, i.e. HK’s statement obtained before the City Court and CE’s statement given to the Police on 29   September, 30   September   and 3   October   1997. With regard to the evidence of witnesses the Court notes that, according to established case-law, 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, § 1 and § 3 (d) of the Convention but the use made of such statements as evidence must nevertheless comply with the rights of the defence (see inter alia Unterpertinger v. Austria judgment of 24 November   1986, Series A no. 110, p 110, § 31). In this regard the Court 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 (see inter alia the Delcourt v. Belgium judgment of 17   January   1997, Series A no. 11, p. 15, § 28, and the Isgrò v. Italy judgment of 21   February 1991, Series A no. 194-A, pp. 11-12, § 31). Accordingly, the Court must examine whether the present case offered such justification. As regards HK, the Court recalls that he was in fact heard in the presence of the accused, i.e. the applicant, before a court instance, namely before the City Court. Taking HK’s statement into consideration, the Court does not find any reason to conclude that case, as it stood before the High Court, raised questions of fact which could not be adequately resolved on the basis of the available material. Leaving aside that nothing in the material submitted discloses that the applicant protested against this witness’ statement being read out during the High Court proceedings, the Court does not find that in the circumstances the applicant’s defence thereby was placed at a disadvantage vis-à-vis the prosecution to such extent that the proceedings were at variance with Article 6 of the Convention. As regards the witness CE, it is clear that he was not heard in the presence of the applicant during the court proceedings. In this respect, however, the Court recalls that only subsequent to the applicant’s conviction by the City Court did the applicant request to hear CE as a witness though he was all along aware of this witness’ identity and alleged part in the incident. He withdrew his request to hear CE before the City Court despite his reasons, allegedly, to hear this witness. Furthermore, the Court recalls that CE’s statement to the police was read out in the High Court after it had been established that CE could not appear in person at the scheduled trial. Then, taking the available evidence before it into consideration, notably including the above statements, the High Court decided not to adjourn the trial in order to hear CE in person. Moreover, the Court recalls that the applicant was given an adequate and proper opportunity to challenge and question the witnesses against him. Therefore, the limitation which derived from CE’s absence at the hearing did not in the Court’s opinion in these circumstances restrict the right of the defence to a degree which was irreconcilable with the Convention (cf. e.g. the Asch v. Austria judgment of 26   April   1991, Series A no. 203). Summing up, the Court recalls that the guaranties in § 2 and § 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in § 1. The Court has considered the particular aspects and incidents invoked by the applicant and has found that these 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   of   the   Convention has not disclosed any appearances of a violation. It follows that the application is manifestly ill founded within the meaning of Article 35   §   3   of   the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Erik Fribergh   Christos Rozakis   Registrar   President