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. 29094/95                       by Kjell Tore BRÅTEN                       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 24 October 1995 by Kjell Tore Bråten against Norway and registered on 7 November 1995 under file No. 29094/95;         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 1968. He resides in Vegårdshei, Norway. Before the Commission the applicant is represented by Mr Pål Mitsem, a lawyer practising in Stavanger.         The facts of the case, as submitted by the applicant, may be summarised as follows.         By indictment of 14 December 1994 the applicant was charged with driving under the influence of intoxicating beverages and with careless driving, having allegedly hit a pedestrian while reversing. The applicant denied the charges, maintaining in particular that he had been asleep and that someone else had had access to the car at the time in question.         The case was heard by the Stavanger City Court (byrett) on 25 January 1995. During his opening speech the public prosecutor, inter alia, referred to statements made to the police by a witness. Counsel for the defence unsuccessfully protested against this procedure which he found to be contrary to section 289 of the Criminal Procedure Act (straffeprosessloven). During the trial the applicant, assisted by counsel, was heard as well as two witnesses. Documentary evidence was also produced. On the basis of the available evidence the City Court found the applicant guilty of the charges brought against him and sentenced him to 30 days' imprisonment, which was suspended provided no criminal acts were committed for a period of two years. The applicant was also sentenced to pay a fine of 15,000 NOK.         On 2 February 1995 the applicant appealed against the judgment to the Supreme Court (Høyesterett). The appeal was based on the form and contents of the prosecutor's opening speech which, so the applicant maintained, violated section 289, subsection 2 of the Criminal Procedure Act.         Section 289 of the Criminal Procedure Act reads as follows:         (Translation)         "The hearing of the actual matter to which the indictment       relates begins with the reading aloud of the indictment.       The president of the court shall then ask the person       indicted whether he pleads guilty and shall urge him to       follow the proceedings with close attention.         The prosecutor may then make a speech in order to explain       the substance of the indictment and to mention briefly the       evidence that will be produced.         With leave counsel for the defence may be allowed to make       short comments in connection with what the prosecutor has       said."         The applicant maintained that in allowing the prosecutor to include in his opening speech references to witness statements the burden of proof would in reality subsequently lie with the accused who consequently could not rely on being presumed innocent.       On 22 August 1995 the Supreme Court rejected the appeal. On behalf of the unanimous court, Justice Gussgard stated, inter alia, the following:         (Translation)         "The addition to the records which counsel for the defence       requested - and wrote himself - during the main hearing is       a sufficient basis for allowing the Supreme Court to       examine whether the prosecutor's opening speech in the City       Court complied with section 289, subsection 2 of the       Criminal Procedure Act. The following was submitted:         'Counsel for the defence requested, pursuant to section 19       ... of the Criminal Procedure Act that it be entered in the       records that he protested against the fact that the       prosecutor in his opening speech referred to what witnesses       had said and that the presiding judge, regardless of       counsel's protest, did not prevent this.         In the opening speech mention was made of (the witness')       activities during the night in question, his observations       in respect of the car and driver, how the car reversed and       hit him, how the car was pursued, what the witness did, how       he contacted the police and who was present in the police       car.         The presiding judge requested, inter alia, that the       prosecutor explain on which facts he intended to rely       on behalf of the prosecution.'         ...         I find no reason to doubt that what has been entered in the       records concerning the opening speech and the presiding       judge's statement to the prosecutor is, as such, correct.       Although further details about the contents of the opening       speech are unknown, the records are in my opinion       sufficient in order to examine whether procedural errors       have been committed in connection with the opening       speech. ...         ...         In the legal literature, both before and after the 1981       Criminal Procedure Act, it has been pointed out that the       opening speech must be short, concise and absolutely       objective.         I agree with this point of view. At this stage in the       proceedings the prosecutor has received a more central       place than the defence. This alone could be the reason why       the opening speech shall be short and neutral. However,       also considerations in respect of the principle concerning       the direct taking of evidence carries a certain weight in       this regard ... . The purpose must be to give the court a       sufficient knowledge of the evidence on which the court       shall base its decision, but not more. How detailed the       speech shall be must to some extent depend on the       circumstances of the case, but a detailed account of the       facts which according to the prosecution ought to be relied       on, or further explanations as to what witnesses have       explained has no legal basis in section 289, subsection 2,       unless this exceptionally would be absolutely necessary in       order for the court to understand the forthcoming       evidence. ...         The present case is relatively simple. The main question       was whether the accused had driven the car. The records       show that the prosecutor in the City Court in a rather       detailed manner informed about the facts of the case, as he       saw it, based on a statement to the police. Thus, the       prosecutor anticipated the witness' statement in court.       This opening speech was in my opinion too comprehensive and       contrary to section 289, subsection 2 of the Criminal       Procedure Act. The presiding judge ought to have intervened       as requested by counsel for the defence. Accordingly, a       procedural error has been committed and the question       remains whether the error influenced the outcome of the       case, cf. section 360, subsection 1 of the Criminal       Procedure Act.         ... . In the present case there is in my opinion no reason       to repeal the judgment. The issue and the evidence of the       case were simple and clear. In addition to the accused's       explanations two witnesses were heard. There is no reason       to believe that the opening speech influenced the court's       evaluation of the evidence and thus influenced the result.         The question whether (the applicant) had a fair trial as       guaranteed by Article 6 of the Convention must be answered       having regard to the proceedings as a whole. ... As already       indicated above I find that the error was rectified through       the taking of evidence. I do not consider that the       provisions of the Convention were violated in this case."     COMPLAINTS         The applicant complains of the way in which the prosecutor was allowed to present the case to the court in his opening speech. The court was influenced thereby to such an extent as to deprive him of the guarantee of being presumed innocent and of benefiting from a fair trial. The applicant invokes Article 6 of the Convention and submits that the Supreme Court's finding of a violation of section 289 of the Criminal Procedure Act did not in any way rectify his situation.     THE LAW         The applicant complains of his conviction on 25 January 1995 by the Stavanger City Court and also of the court proceedings concerned.         With regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to the established case-law of the Convention organs (see e.g. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, para. 45, p. 29).         It is true that in this case the applicant also complains, under Article 6 (Art. 6) of the Convention, that he was not afforded the guarantee of being presumed innocent and thus did not have a fair trial due to the procedural error committed by the public prosecutor in his opening speech.         The Commission recalls first that although the Supreme Court in its decision of 22 August 1995 found in favour of the applicant as regards his views on the contents of the prosecutor's opening speech, it did not quash on that ground the judgment of the Stavanger City Court but actually rejected the appeal as the defect, in the Supreme Court's opinion, was of no relevance to the outcome of the case and had not violated any of the provisions of the Convention. Furthermore, the Commission recalls that although an applicant who has sought and gained redress in the national courts may not subsequently or any longer claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention, this conclusion can only be drawn where the applicant is no longer affected at all, for example where he has been acquitted unconditionally. However, the present applicant remained convicted. Having regard to the above considerations the Commission finds that the applicant may still claim to be a victim of the alleged violation of Article 6 (Art. 6) of the Convention.         The Commission considers, however, that the complaint is manifestly ill-founded for the following reasons.         As regards the applicant's reference to his right to be presumed innocent as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention, the Commission recalls that the Stavanger City Court heard the applicant as well as two witnesses, and certain documentary evidence was produced. Regardless of the prosecutor's opening speech the Commission is of the opinion that the judgment was based on an evaluation of the available evidence. Especially there is, in the Commission's view, nothing indicating that the City Court in fulfilling its functions started from the assumption that the applicant had committed the acts with which he was charged. An examination of this complaint therefore fails to disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.         The applicant furthermore maintains that he did not have a fair trial. The Commission has not, however, found any other factual circumstances which would merit a further examination of this complaint.         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