AS TO THE ADMISSIBILITY OF
Application no. 66976/01
by Jonas HEDSTRÖM AXELSSON
The European Court of Human Rights (Second Section), sitting on 6 September 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 19 December 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Jonas Hedström Axelsson, is a Swedish national, who was born in 1976. He is presently serving a prison sentence in Sweden. He was represented before the Court by Mr S. Bergfeldt, a lawyer practising in Eskilstuna. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 August 1997 a prisoner was killed at Tidaholm prison where the applicant was serving a prison sentence. Suspicions quickly centred on three persons, the applicant and two other prisoners.
On 28 August 1997, while the applicant was being interviewed by the police, he was informed, in accordance with chapter 23, section 18 of the Code of Judicial Procedure (Rättegångsbalken), that he was suspected of murder. Having been informed also of his right to be assisted by defence counsel, the applicant stated that he wanted one of two named lawyers to be appointed for him; otherwise, he would not answer any questions. However, no counsel was appointed. Later the applicant contacted a lawyer with regard to the confiscation of certain objects from his cell and, at further police questioning on 5 November 1997, he stated that he wished to be represented by that lawyer. Still, he claimed that he would not make any statement before a possible court hearing in the case. No questions about the murder were put to the applicant during the two police interviews.
Assisted by the lawyer, the applicant sent written requests for counsel to be appointed, to the police on 3 November 1997 and to the public prosecutor in charge of the preliminary investigation, at the Public Prosecutor’s Office in Gothenburg, on 9 December 1997. The prosecutor did not report the matter to the court, however. Contacted by the lawyer by telephone in late January 1998, the prosecutor stated that the issue of appointing defence counsel did not arise, as the applicant refused to answer questions posed by the police. The prosecutor was reminded of the matter by a letter from the lawyer on 26 January 1998. A week later, no measures having been taken in this regard, the applicant, via the lawyer, made a request to the District Court (tingsrätten) of Falköping to have counsel appointed for him. In an opinion to the court, the prosecutor endorsed the request. On 10 February 1998 the court appointed the lawyer, who had assisted the applicant, as his defence counsel.
On 3 September 1998 the public prosecutor made a request to the District Court for the taking of evidence outside a main hearing (bevisupptagning utom huvudförhandling). The court immediately summoned defence counsel for the applicant and the two other suspects by telephone for a hearing the following day. No documents were submitted and the three suspects themselves were not summoned. At the hearing, the public prosecutor informed counsel for the defence that a witness, who allegedly had been present when the murder was committed, had expressed to the police two days earlier that he was willing to testify, but only before a court. Furthermore, fearing reprisals, he would only testify anonymously. The taking of evidence was urgent as the witness would be expelled from Sweden to a distant country three days later. Defence counsel for one of the other suspects was unable to attend the hearing and the court therefore, at the prosecutor’s request, appointed another lawyer to represent that suspect during the hearing although the counsel in question, contacted by his colleagues by telephone, disagreed with this measure.
Counsel for the defence objected to the procedure, complaining that they had not received the records of previous police interviews with the witness and had not been given adequate time to prepare for the hearing or confer with their clients. They were also opposed to the witness remaining anonymous. The public prosecutor stated that she did not have any records of previous police interviews at her disposal.
The District Court, sitting with its president, decided to allow the taking of evidence under chapter 23, section 15 of the Code of Judicial Procedure with the procedure requested by the prosecutor. The court referred to a parliamentary committee report (SOU 1998:40, p. 326) in which it had been noted that the use of anonymous testimony, in certain circumstances, was allowed according to the case-law of the European Court of Human Rights. The court had further regard to the special circumstances described by the prosecutor and considered that the fact that the suspects themselves had not been summoned to the hearing did not constitute an impediment for the hearing to go ahead. It also observed that the circumstances surrounding the hearing would have to be taken into account at a future evaluation of the evidence in question.
After having identified himself to the court in the absence of counsel for the defence, the witness was placed behind a screen, making him visible to the court and the prosecutor but not to counsel. During the questioning, counsel were able to cross-examine the witness.
Immediately after the taking of evidence the applicant was arrested and placed in custody. The public prosecutor applied for a detention order, referring to the evidence obtained from the anonymous witness.
On 8 September 1998 the District Court, sitting with a different judge, held a detention hearing in the presence of the applicant and his counsel. The prosecutor explained that there was other evidence against the suspects in the case which she could not present at that time as she needed more time to put together the material. Following the hearing, the District Court ordered the detention of the applicant. By other decisions taken on 8 and 10 September 1998, the court also ordered the detention of the other two suspects.
The applicant appealed and, on 15 September 1998, the Göta Court of Appeal (Göta hovrätt) quashed the District Court’s detention order. The appellate court noted:
“The examination by the District Court of an anonymous witness has not been permitted under Swedish law. The fact that [the European Court of Human Rights], in certain circumstances, has found such examinations to be in conformity with [the Convention] is therefore of no relevance to the question whether such examinations are allowed in Sweden.
The evidence presented by the public prosecutor is, in the Court of Appeal’s opinion, not such that [the applicant] can be considered as suspected of murder on probable cause. ...”
On 16 September 1998, at 12.20 p.m., that is less than twenty-four hours after the Court of Appeal’s decision, the public prosecutor again decided to have the applicant as well as the other suspects arrested. The applicant was arrested at 1.10 p.m. His counsel was not notified. It appears from the arrest order that the reason for his arrest was the risk that he would impede the inquiry of the murder (kollusionsfara). Following an interview with the police, which began at 1.39 p.m. and at which the applicant gave no statement, the applicant called the law offices of his counsel at 2.05 p.m. and informed another lawyer of the arrest. That lawyer immediately requested the Public Prosecutor’s Office in Gothenburg to review the arrest. On 17 September 1998, at 9.15 p.m., the assistant chief prosecutor, having considered the evidence as a whole, decided to quash the three arrest orders. She noted that she had contacted the public prosecutor who had then stated, as reasons for the arrests, that new information had surfaced.
The applicant was arrested anew on 3 December 1999 and was later detained by the District Court.
The applicant was given access to the report of the preliminary investigation on 15 March 2000.
On 27 March 2000 the applicant was indicted for murder. A copy of the report of the preliminary investigation, including a transcript of the testimony given by the anonymous witness, was submitted to the District Court. The public prosecutor sought to have an audiotape recording of that testimony played back at the court’s main hearing. She also requested that one person be heard about what had happened at the taking of evidence with that witness and that two policemen be heard about what had come out of police interviews with two inmates at Tidaholm prison.
Counsel for the three suspects in the case objected to the above evidence. They pointed out that anonymous testimony was not allowed under Swedish law; the fact that the name of the witness had been disclosed since the taking of evidence made no difference. As that evidence should be refused, the testimony of the person supposed to give evidence in that regard was irrelevant. Furthermore, the inmates in question should be heard in person at the main hearing or could have been heard in person previously outside the main hearing.
By a decision of 31 March 2000, the District Court disallowed the above evidence. It basically agreed with the arguments presented by counsel for the defence and referred to the Court of Appeal’s decision of 15 September 1998 on the anonymous testimony. It further stated that, although hearsay evidence was not as such prohibited under Swedish law or the Convention, it deprived the defendants of the possibility to cross-examine and noted that the public prosecutor had adduced no reasons as to why the two inmates had not been summoned to give evidence at the main hearing or at a taking of evidence outside the main hearing.
The District Court held an oral hearing in the case on 4 – 12 April 2000 and inspected the prison training facilities where the murder had taken place.
In a partial judgment of 28 April 2000 the District Court found one of the two other defendants guilty of murder and sentenced him to life imprisonment.
By another partial judgment of 29 May 2000 the District Court convicted the applicant of murder. He was sentenced to ten years in prison.
The main piece of evidence was an alleged eye-witness account of an inmate, W.J. According to a police memorandum included in the report of the preliminary investigation, W.J., who was to be expelled after having served his prison sentence on 16 October 1999, had expressed his willingness to testify on the condition that he would be allowed to remain in Sweden. However, it had been explained to him that only the Government could revoke an expulsion order. He had been questioned several times by the police in October and November 1999 following his release from prison, while he was awaiting expulsion. No further information was given on what had preceded the hearing of W.J. before the court.
In his testimony, W.J. claimed that he – and the person who had given evidence anonymously – had been present in the small weight-training room where the murder had been committed. He stated that he had seen the three suspects stabbing the victim with knives of the same type which he believed had been sharpened. Another inmate had told him that the defendants had proceeded to the sauna where they had placed three knives in a hole and had then gone to the shower.
W.J. further stated that, when interviewed by the police immediately after the stabbing, he had claimed, in order to protect himself, that he did not know anything about the event. However, he had later suffered from nightmares and a bad conscience and felt that it was not right to keep silent about what he had seen. When contacted by the police on 20 October 1999, he had agreed to testify.
During cross-examination, W.J. stated that the police had helped him to make a petition to the Government for the expulsion order to be revoked. Having been given a residence permit in 1989 on humanitarian grounds, he claimed that the petition had referred to political grounds and his diabetes and not to his giving testimony before the court. He had signed the petition himself but he did not know whether the police had attached any enclosures. The police had sent the petition in November 1999 and, by a Government decision of 25 November 1999, he had been granted a temporary residence permit until 24 May 2000. After he had been released from detention, where he had been awaiting his expulsion since having served his prison sentence on 16 October 1999, the police had found a flat for him with a secret address and had also helped him to buy a television set and had seen to it that he was generally comfortable. However, the police had not tried to influence his testimony.
In evaluating W.J.’s testimony, the District Court took into account that he had given his first statement about the event in November 1999, at which time the police had helped him to apply for a revocation of his expulsion order. The court noted that the application signed by W.J. stated, as reason for granting the request, that he had important information to give about the case. In an attachment dated 25 October 1999, the public prosecutor and the police stated that it was important that W.J. be allowed to remain in Sweden during the police investigation and the court proceedings. The court considered, in general, that, in view of the risks involved in talking to the police, a prisoner’s late submission of information did not necessarily diminish the credibility of the testimony. Noting furthermore that W.J. had been very anxious to stay in Sweden, the court considered that there were two possible ways to interpret his decision to testify: either he had perceived a chance to be granted a residence permit if he gave testimony and had, to this end, made up a story which corresponded with the police’s view of the case, or he had actually seen everything he now stated but had not dared to mention it until he was promised help with the above-mentioned application and concluded that the benefits of testifying outweighed the risks involved. Without giving any reasons for its conclusion, the court opted for the second interpretation.
The District Court then assessed the credibility of W.J.’s statements by comparing them with testimony given by other prisoners and the technical and other evidence in the case. The court could not infer from any of these pieces of evidence that the applicant had been involved in the murder, nor did any evidence exclude his involvement. It considered, however, that W.J.’s statements were supported by the technical evidence and were supported, or not contradicted, by the other evidence. It therefore considered that the murder had been committed as described by the public prosecutor.
In sentencing the applicant, the District Court took into account that, on 1 December 1995, he had been sentenced to three years’ imprisonment for an attempted murder in December 1994 and that, on 7 November 1996, he had been sentenced to eight years in prison for, inter alia, a murder committed in July 1996. The court noted that, as the applicant had been below the age of 21 when the murder of the prisoner had been committed, he could not be sentenced to life imprisonment.
The applicant appealed against the judgment. The public prosecutor requested that she be allowed to use the evidence that had been disallowed by the District Court.
By a decision of 16 June 2000 the Court of Appeal dismissed the evidence relating to the anonymous testimony but allowed two policemen to be heard about the statements given at the police interviews of two inmates at Tidaholm prison. At the subsequent hearing, only one of the two policemen gave evidence. The prosecutor withdrew the other policeman’s testimony.
Joining the applicant’s appeal and the appeal of the co-defendant who had been convicted by the District Court’s partial judgment of 28 April 2000, the appellate court held an oral hearing and also inspected the prison training facilities. At the hearing, W.J. stated, inter alia, that the police had not only found a flat for him but also a job. Furthermore, the police had given him financial aid, 1000 Swedish kronor in cash on four or five occasions. They had also helped him to apply for a prolongation of his residence permit, which had been granted until November 2000. He pointed out, however, that he had given the police a detailed statement of the course of events before the Government’s decision to grant him a residence permit in November 1999.
During the proceedings in the Court of Appeal in July 2000, the public prosecutor submitted a document in which the police stated that the risk assessment they had made had led to the provision of witness protection to W.J. The details of this protection were secret. It was stated, however, that the measures taken, including the financial aid, had been purely of a humanitarian nature and directly linked to the witness protection programme and that no money had been given to W.J. to bribe him to give evidence.
On 18 July 2000 the Court of Appeal upheld the District Court’s judgments. It noted that the testimony given by W.J. constituted the central evidence in the case and that it was of decisive importance whether his statements could be considered reliable enough to convict the co-defendants. According to the appellate court, the other evidence relied on by the public prosecutor had by and large no independent significance but in effect only served the purpose of showing that W.J.’s description of the course of events could be correct. In evaluating W.J.’s statements, the court considered that, although the circumstances surrounding the delivery of those statements had to be given careful consideration, his connection with the police was of no relevance to the assessment of the reliability of his statements. Instead, in assessing their credibility and reliability, it had to be determined whether they gave the impression that the events had been experienced by W.J. himself and what weight should be given to the supporting evidence. In these respects, the court found that W.J. had given a calm and confident impression, that he had given essentially identical information on all the occasions he had been heard and that there was no indication that W.J. had any reason falsely to blame the suspects. It also considered that another prisoner, heard on appeal but not at first instance, had given information which supported W.J.’s account. The latter was further supported by the location of the blood stains found in the prison training facilities. Moreover, the shape of the handles of the knives found in the sauna and the traces of blood discovered on the knives pointed towards the applicant’s involvement in the crime. In conclusion, the appellate court found that W.J.’s statements in all essential details were supported by the other evidence in the case and that they were in no essential details contradicted by any piece of evidence. The court considered that the supporting evidence was of considerable weight. However, no part of the appellate court’s reasoning was based on the evidence given by the policeman whose testimony had been allowed by the decision of 16 June 2000.
On 5 September 2000 the Supreme Court (Högsta domstolen) refused leave to appeal against the appellate court’s judgment.
The third suspect of the murder in question was apprehended and convicted in 2001. In this case, the Court of Appeal allowed the public prosecutor to invoke as evidence the reading of a transcript of the statement given by the anonymous witness in September 1998.
By a decision of 28 September 2001 the Parliamentary Ombudsman (Justitieombudsmannen), upon the applicant’s complaints, criticised the preliminary investigation in the applicant’s case in several respects. He made the following concluding remarks:
“In [the present case], which concerns a preliminary investigation of a murder, several issues of great importance for the protection of the suspect’s legal rights [rättssäkerhet] during a preliminary investigation have arisen. These issues concern, inter alia, the suspect’s right to defence counsel, the procedure for hearing witnesses before a court during the preliminary investigation, the public prosecutor’s presentation of the investigation material at the detention hearing and the possibility for the prosecutor to arrest a suspect anew following a court’s quashing of a detention order concerning that suspect.
The inquiry shows that the public prosecutor in charge of the preliminary investigation failed to forward to the court the suspect’s wish that defence counsel be appointed for him. A person who is suspected of a crime in respect of which is stipulated a sentence of no less than six months’ imprisonment has, under the Code of Judicial Procedure, an unconditional right to have appointed defence counsel upon request. If defence counsel is to be appointed for the suspect, the person in charge of the preliminary investigation is under a duty to notify the court thereof. The right to defence counsel is of fundamental importance for the protection of the suspect’s legal rights and, accordingly, there are reasons to severely criticise the responsible public prosecutor on account of her failure in this respect.
An issue of great principal interest in the case concerns the possibility to hear before a court a witness whose identity is not known to one of the parties. At the public prosecutor’s request, during the preliminary investigation a hearing for the taking of evidence was held before a court at which a witness relied on by the prosecutor was examined without his identity and appearance being disclosed to the defence counsel present. It appears, furthermore, that the suspects had not been summoned to the hearing.
As has been set out in greater detail in the present decision, the use of anonymous testimony before a court is not allowed under Swedish law, whether or not the witness is heard at or outside the main hearing in the case. The idea of allowing anonymous testimony in criminal cases has been rejected on several occasions by State authorities as well as by various committees, referring to the protection of the legal rights of the defendant. The fact that the European Court of Human Rights has stated that the use of anonymous testimony is not in all situations contradictory to the Convention is therefore of no relevance in this connection. Moreover, it is not possible under the law to refrain from summoning a suspect to a taking of evidence of the kind at issue. Accordingly, there are reasons to criticise the public prosecutor as well as the judge on account of the procedure applied in regard to the taking of evidence.
Furthermore, the facts of the case have occasioned me to stress the importance of the public prosecutor familiarising him- or herself with the investigation material before a detention hearing in a way which enables him or her to present all the circumstances that may be of importance for the court’s decision on the detention issue.
Finally, it may be questioned whether, following the Court of Appeal’s decision to quash the detention order, there were really such new circumstances which could justify the public prosecutor’s action of immediately taking a new decision to arrest.
Thus, to sum up, it has been established that the handling of the preliminary investigation has been deficient in several respects of central importance to the protection of the individual’s legal rights.”
1. The applicant complained of the fact that he had been detained on 8 September 1998 on the basis of information obtained through an illegal hearing of a witness.
He also claimed that he had been arrested on 16 September 1998 without any reasons for the arrest having been given.
2. The applicant further claimed that defence counsel had not been appointed for him within a reasonable time.
3. Maintaining that the circumstances under which W.J. had given testimony in the case had not been accounted for in the report of the preliminary investigation, the applicant asserted that he had not been able to properly prepare his defence in this respect.
Alleging that W.J. had been “bought” by the prosecution, the applicant moreover claimed that the courts’ evaluation of that evidence had not been impartial. He asserted that the circumstances surrounding W.J.’s testimony had upset the credibility of that evidence, which had been completely decisive in the case, to such an extent that it should have been dismissed by the courts.
4. The applicant finally complained that the Court of Appeal had accepted hearsay evidence which had deprived him of the possibility to cross-examine the two inmates whose statements the policemen had been allowed to recount before the court.
The applicant relied on Article 6 of the Convention in the above respects.
1. The applicant complained of the fact that he had been detained on 8 September 1998 on the basis of information obtained through an illegal hearing of a witness and that he had been arrested on 16 September 1998 without any reasons for the arrest having been given.
Whereas the applicant relied on Article 6 of the Convention, the Court finds that these issues fall to be considered under Article 5 which, in relevant parts, provides the following:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
The respondent Government submitted that the applicant had failed to exhaust domestic remedies as he had not requested compensation for the detention and the arrest under the 1974 Act on Compensation for Restriction of Liberty (Lagen om ersättning vid frihetsinskränkning, 1974:515). Moreover, his complaints (including the complaint that no reasons had been given for the arrest on 16 September 1998) had been lodged out of time, as the final decisions had been taken by the Court of Appeal on 15 September 1998 and the assistant chief prosecutor on 17 September 1998, respectively. The Government further contended that the applicant could not claim to be a victim of a violation within the meaning of Article 34 of the Convention in these respects, as the detention and arrest orders had been quashed promptly, as both orders had been criticised by the Parliamentary Ombudsman, as the time spent in custody had been counted as served time and as the applicant could have been granted compensation had he made an application therefor. Thus, any violation that may have occurred had been adequately redressed.
The applicant submitted that he would not have been awarded any compensation for the detention and the arrest as, at the time of these deprivations of liberty, he was already serving a prison sentence for, inter alia, murder. He also asserted that the complaints in issue had not been lodged out of time, as the proceedings in the case, which ended with the Supreme Court’s decision of 5 September 2000, had to be seen as a whole.
The Court reiterates that the applicant’s detention, ordered by the District Court on 8 September 1998, was quashed by the Court of Appeal on 15 September 1998. Moreover, the public prosecutor’s decision of 16 September 1998 to arrest him was quashed by the assistant chief prosecutor the following day. The decisions to quash the detention and arrest orders were final and the deprivation of liberty caused by these orders ceased immediately.
The Court has noted above that the deprivations of the applicant’s liberty fall to be considered under Article 5 of the Convention. It further finds that these issues are separate from the applicant’s complaints concerning the right to a fair trial under Article 6. Consequently, in determining whether the complaints under Article 5 have been lodged within the six-month time-limit set out in Article 35, the final decisions of the Court of Appeal and the assistant chief prosecutor concerning the detention and the arrest are to be taken into account and not the final decision of the Supreme Court in the ensuing criminal proceedings.
Leaving aside the questions whether the applicant exhausted domestic remedies with regard to his detention and arrest and whether he can claim to be a victim of a violation in these respects, the Court notes that the present application was introduced more than two years after the final decisions of the Court of Appeal and the assistant chief prosecutor.
It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant claimed that defence counsel had not been appointed for him within a reasonable time. He invoked Article 6 of the Convention, which provide the following:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
The Government submitted that, having regard to the entirety of the proceedings, the applicant had been able to defend himself. They pointed out, inter alia, that no questions about the murder had been asked on the two occasions when the applicant had been heard by the police without being assisted by a lawyer and that, on these occasions, he had declared that he would not answer questions before a possible court hearing, no matter whether he would be assisted by a lawyer. Moreover, Swedish law did not attach any consequences to the attitude of the accused at the initial stages of police interrogation. Defence counsel was appointed for the applicant in February 1998, seven months before the taking of evidence outside the main hearing and the applicant’s subsequent arrest and detention, and more than two years before the District Court trial. Furthermore, the applicant had not indicated during the domestic court proceedings that the fact that defence counsel was not appointed for him until February 1998 had had a negative impact on his chances to adequately defend himself in the criminal trial.
The applicant maintained his complaint, stressing that defence counsel had not been appointed for a long period of time although requests for such appointment had been made on at least two occasions.
The Court observes that in the Convention system the right of a person charged with a criminal offence to free legal assistance is one element, amongst others, of the concept of a fair trial in criminal proceedings (see, inter alia, Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 27). Sub-paragraph (c) of Article 6 § 3 attaches two conditions to this right. The first condition – a lack of “sufficient means to pay for legal assistance” – is not in issue in the present case. As to the second condition – whether the “interests of justice” required the grant of such assistance – the Court notes that the applicant was suspected of murder for which he was eventually convicted and sentenced to ten years’ imprisonment. Thus, by virtue of the seriousness of the offence and the severity of the penalty at stake, the interests of justice clearly called for legal representation (ibid., p. 17, § 33). However, in determining whether Article 6 § 3 (c), taken together with Article 6 § 1, was breached in the instant case, regard must be had to the proceedings as a whole.
The Court notes that, under the Code of Judicial Procedure, a person who is suspected of a crime in respect of which is stipulated a sentence of no less than six months’ imprisonment has an unconditional right to defence counsel upon request. It further notes that the Parliamentary Ombudsman, in his decision of 28 September 2001, severely criticised the public prosecutor for her failure to notify the District Court of the need to appoint defence counsel for the applicant. Defence counsel was appointed only on 10 February 1998, about five and a half months after the applicant had been informed of the suspicions against him.
Nevertheless, the Court has further regard to the fact that no questions were asked about the murder at the two police interviews held prior to the appointment of defence counsel. At all other stages of the proceedings – including the taking of evidence outside the main hearing, the applicant’s arrest and detention and the court trial – the applicant had legal assistance. The first of these events – the taking of evidence – occurred about seven months after defence counsel had been appointed and the court proceedings started more than two years after that appointment.
In these circumstances, the Court finds that, in the proceedings as a whole, the applicant was able to adequately defend himself through legal assistance.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant claimed that the circumstances under which W.J. had given testimony had not been accounted for in the report of the preliminary investigation and that, as a consequence, he had not been able to properly prepare his defence in this respect. Furthermore, he alleged that the courts’ evaluation of that evidence had not been impartial. In these respects, he relied on Article 6 of the Convention.
The Government submitted that the statements given by W.J. at two police interviews were accounted for word for word in the report of the preliminary investigation, of which the applicant was notified on 15 March 2000. It also appeared from the report that W.J. had stated that he was willing to testify if he was allowed to remain in Sweden and that the police had informed him that only the Government could revoke the expulsion order. As W.J. had been due to be expelled immediately after having served his prison sentence in October 1999, it must have been apparent to the applicant that W.J. had been allowed to remain in Sweden when he was called as a witness to the District Court trial, which took place in April 2000. Since counsel for the applicant asked W.J. at that trial whether he had been offered any privileges in order to testify, the Government stated that it could be assumed that counsel was actually aware of the circumstances under which W.J. gave his testimony. In the Government’s opinion, the grant of a temporary residence permit to enable a person to act as a witness is not unusual and must be considered as a legitimate and acceptable measure for the national authorities to take.
The Government further contended that the offer of witness protection was also a legitimate measure. It could hardly be required that information regarding such protection be made available to the suspect or the accused since any information about the measures taken could expose the witness to risks. The Government emphasised that W.J. had only been granted help in order to stay unharmed in the country during the proceedings. He had not been rewarded or reimbursed for his testimony.
Moreover, information about how the police had helped W.J. had been presented to the courts and to the applicant at the two main hearings. The circumstances under which he had given testimony had been carefully considered by both the District Court and the Court of Appeal, which had analysed his motives. Further, W.J.’s testimony had not been the only evidence on which the conviction was based; both courts had found that his statements were supported by other evidence. There was nothing to indicate that the requirement of impartiality had not been satisfied in the case. On the contrary, both courts had demonstrated their impartiality since they had disallowed some of the evidence invoked by the prosecution and had carefully assessed all the facts and evidence before them.
The applicant maintained the complaints. He submitted that the circumstances surrounding W.J.’s testimony and the conditions under which he had remained in Sweden had not been known to the defence. The aid that he had received had become known quite accidentally during counsel’s cross-examination. Some details had not been revealed until the hearing in the Court of Appeal. The applicant found it obvious that he had not had adequate time and facilities to prepare his defence as the public prosecutor had deliberately withheld information of importance for the evaluation of the credibility of W.J.’s testimony. He was of the opinion that this information should have been fully disclosed at the time of the notification of the preliminary investigation report.
The Court reiterates that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity concerning the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 359, § 47).
In the instant case, the Court notes that the statements made by W.J. at the police interviews were fully restated in the report of the preliminary investigation, of which the defence was notified on 15 March 2000, about three weeks before the start of the trial in the District Court. Moreover, according to the police memorandum included in the report, W.J. had expressed his willingness to testify on the condition that he be allowed to remain in Sweden. As W.J. was supposed to be expelled in October 1999 but remained in Sweden at the time of the court proceedings, the Court considers that the information given in this respect was sufficient for the defence to conclude that he had been allowed to remain in order to give evidence at the applicant’s trial.
However, no information was given before the trial as to the witness protection afforded W.J. and the various forms of aid given to him by the police in this connection. These circumstances were revealed only during the hearings in the District Court and the Court of Appeal. It appears from the document submitted by the public prosecutor during the appellate proceedings that some details of the witness’ protection remained secret. The question therefore arises whether the late disclosure of this information, and to some extent the non-disclosure of information, placed the defence at such a disadvantage vis-à-vis the prosecution that the trial was rendered unfair.
At the outset, the Court finds that neither the grant of a temporary residence permit to a foreigner in order for him to give evidence in a criminal trial, nor the award of financial and other aid for him to sustain himself during the stay in the country, can as such be considered unreasonable or unjustified. It further considers that a witness may find himself in a situation where his life, liberty and security of person could be threatened and that various forms of protection may therefore be required. Moreover, the protection may in some cases be imperilled if details about the measures taken are revealed to the accused.
The Court notes that it was disclosed during defence counsel’s cross-examination of W.J. at the court hearings that he had received certain financial and material aid, that the police had found a flat and a job for him and that both the police and the public prosecutor had supported his applications for the grant of a residence permit and for the prolongation of that permit. This assistance does not appear extraordinary and was given in order to make it possible for W.J. to remain in Sweden for the duration of the criminal proceedings. There is nothing to indicate that he was in any way rewarded for the testimony he gave. In these circumstances, the Court considers that the assistance given to W.J. did not have a bearing on the credibility to be attached to his statements. It notes, in this connection, that the Court of Appeal found that W.J.’s connection with the police was of no relevance to the assessment of the reliability of those statements.
In the Court’s opinion, the element that could have influenced W.J. was the fact that he had been very anxious to stay in Sweden and had been granted a temporary residence permit for the purpose of giving testimony at the applicant’s trial. However, as stated above, counsel for the defence had sufficient information thereof before the trial and was thus able to put arguments to the courts relating to W.J.’s credibility. In this connection, it should further be noted that, although the various forms of assistance mentioned above were revealed at a late stage of the proceedings, counsel for the defence was able to make submissions also in this respect during the hearings of the District Court and the Court of Appeal.
The Court therefore finds that, on the whole, the applicant had adequate time and facilities for the preparation of his defence, as required by Article 6 § 3 (b) of the Convention.
What remains to be determined is whether the courts treated the evidence given by W.J. impartially and with sufficient care. The Court reiterates, in this respect, that the admissibility of evidence is primarily governed by the rules of domestic law, and that, generally, it is for the national courts to assess the evidence before them. The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair. However, evidence obtained from a witness under conditions in which the rights of the defence could not be secured to the extent normally required by the Convention should be treated with extreme care (see, inter alia, Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, pp. 470 and 472, §§ 67 and 76, and S.N. v. Sweden, judgment of 2 July 2002, Reports 2002-V, pp. 159 and 162, §§ 44 and 53).
In its judgment of 29 May 2000, the District Court gave an extensive account of the circumstances surrounding W.J.’s testimony and analysed the motives to testify that he may have had. It did not state any reasons for its conclusion that W.J. had told the truth but had not dared to mention it until he had been promised help with the application for a revocation of the expulsion order against him, and then found that the benefits of testifying outweighed the risks involved. It did, however, assess whether W.J.’s statements were supported or contradicted by the other evidence in the case. In upholding the District Court’s conviction on 18 July 2000, the Court of Appeal noted that the circumstances surrounding the delivery of W.J.’s statements had to be given careful consideration. It examined those statements and considered, inter alia, that W.J. had given a calm and confident impression, that he had given essentially identical information on all the occasions he had been heard and that there was no indication that he had any reason to falsely blame the applicant and his co-defendant. The appellate court further found that his statements in all essential details were supported by the other evidence in the case and that they were in no essential details contradicted by any piece of evidence. It should be stressed, in this context, that the evidence given by the anonymous witness had been disallowed by the courts and thus formed no part of the courts’ analyses.
Having regard to the courts’ extensive analysis of the testimony given by W.J., the Court is satisfied that the necessary care was applied in the evaluation of his statements. The Court further notes that, although W.J.’s testimony was important for the case, it was not the only evidence on which the applicant’s conviction was based. There is no indication that the courts’ evaluation of the evidence given by W.J. failed to meet the requirements of fairness and impartiality under Article 6 § 1 of the Convention.
It follows that the present complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant finally complained that the Court of Appeal had allowed two policemen to recount hearsay evidence from two prison inmates, thereby depriving him of the possibility to cross-examine the latter. He relied on Article 6 of the Convention.
Reiterating that the admissibility of evidence is primarily a matter to be regulated and applied by the national authorities, the Court finds that the requirement of a fair hearing under Article 6 § 1 cannot be taken as a total prohibition against the use of hearsay evidence. However, by allowing such evidence, the court and the parties do not have access to the best evidence and cannot assess the credibility and demeanour of the persons whose statements are recounted. Moreover, the defence is unable to test the evidence by cross-examination. As a rule, therefore, a conviction should not be based on the testimony of a witness whom the accused or his counsel has not had an opportunity to challenge and question.
In the present case, the Court notes that, whereas the District Court disallowed the evidence in question, the Court of Appeal, by a decision of 16 June 2000, allowed the hearing of the two policemen. In the end, only one of the two policemen gave evidence before the court. However, of significant importance in evaluating the fairness of the proceedings in this respect is that the evidence given by the policeman was not mentioned in the Court of Appeal’s judgment and that no part of the court’s reasoning was based on that evidence. Instead, the applicant’s conviction was based on the other evidence presented in the case.
In these circumstances, the Court cannot find that the hearing of the policeman in question involved a breach of Article 6 § 1 of the Convention.
It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
S. Dollé J.-P.
HEDSTRÖM AXELSSON v. SWEDEN DECISION
HEDSTRÖM AXELSSON v. SWEDEN DECISION