LINDGREN v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Leif Lindgren, is a Swedish national, who was born in 1962 and lives in Färjestaden. He was represented before the Court by Mr S. Larsson, a lawyer practising in Eksjö. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 February 1997 S. was attacked several times outside his home by a person using a knife or a bayonet. S. was heard by the police on at least three occasions in February and early March 1997. Thereafter, on 6 March, defence counsel was appointed for the applicant. A further police interview with S. was held on 18 March. According to the applicant, he and his counsel were not informed of this interview or invited to attend it. The applicant was subsequently charged with attempted murder of S. The applicant and S. knew each other, having served time together at the same prison and having met thereafter on a couple of occasions at the home of S. On 26 March 1997 the applicant received a copy of the records of the preliminary investigation. Those records state that the applicant had no objection or comments to the documentation of the investigation. On 8 April, 27 May and 2 June 1997 the District Court (tingsrätten) of Kalmar heard the case. On 8 April S. came to the court’s waiting room but then left. The prosecutor stated at the hearing that he had talked to S. in the waiting room who had said that he had nothing to add but that he stood by the information he had given to the police. The court ordered that S. be fetched by the police, proceeded with the hearing but later discontinued it as S. had not been found. On 27 May the District Court adjourned the case, noting that the police had not been able to enforce the court’s order that S. be brought to the hearing. On 2 June S. again came to the waiting room but left before the hearing started. The District Court then decided to continue the hearing of the case in the absence of S. It allowed that his statements made during the preliminary investigation be read out. By a judgment of 6 June 1997 the District Court convicted the applicant of aggravated assault of S. and attempted murder of another person who had been attacked on a different occasion. The applicant was sentenced to five years in prison. Both the applicant and the public prosecutor appealed to the Göta Court of Appeal (Göta hovrätt). The prosecutor requested that S. be heard in person before the appellate court or, alternatively – in the event that he would not appear –, that his statements to the police be admitted as evidence. The applicant objected to the alternative request, stating, inter alia, that it would violate the applicant’s rights under the Convention. On 22 July 1997 the Court of Appeal decided to refuse the prosecutor’s alternative request. The Court of Appeal heard the case on 31 July, 1 August and 7 August 1997. Following S.’s non-appearance on the first day, the court ordered that he be brought to the court by the police. The police were not able to enforce the order in time for the second day. However, on 7 August S., serving a prison sentence at the time, was taken to the court by the transportation service of the National Prison and Probation Administration (Kriminal-vårdsstyrelsen). At the hearing S. refused to give evidence except for stating that it was not the applicant who had attacked him and that he had not previously named the applicant as the perpetrator. The court then decided to allow as evidence the statements made by S. during the police investigation. By a judgment of 22 August 1997 the Court of Appeal convicted the applicant of attempted murder also in regard to the attack on S. and sentenced him to imprisonment for a total of eight years for the two crimes. With respect to the statements made in the case by S. the court stated, inter alia, the following: “During the police investigation [S.] first stated that he was attacked by a man, who was accompanied by another man, and then that the attacker came in the company of a woman. ... During the preliminary investigation it also occurred, according to the testimony made by police officer [D.], that [S.] was asked whether the right person was detained in the case, and then nodded affirmatively and said ‘you know that, of course’. [S.] was summoned twice to the District Court’s main hearing. On both occasions he came to the court’s waiting room but disappeared before the hearing started. During the hearing before the Court of Appeal, [S.] showed signs of being deeply upset. He acted as could be expected from a person, who is afraid of reprisals. ... The fact that [S.] has not been heard by the District Court and mostly refused to give evidence before the Court of Appeal raises the question of the application of Article 6 of [the Convention] – the right to a fair trial and the right to examine or have examined witnesses ... . The European Court of Human Rights has in a number of judgments dealt with this issue (see, inter alia, Unterpertinger ..., where the Convention was found to have been violated, and Asch ..., where no such violation was found). Chapter 36, section 16, subsection 2 of the Code of Judicial Procedure (Rättegångsbalken) shall be interpreted restrictively in the light of Article 6 and the European Court’s application thereof ... . The Court of Appeal notes at the outset that the presentation of material from the preliminary investigation in itself cannot be considered as a violation of Article 6. According to the above-mentioned judgments, it seems that the decisive point as to whether there has been a violation is whether the conviction has been based primarily on this material. In order for the Court of Appeal to be able to draw a conclusion on this point, it is first necessary to examine the evidence in the case. There is no doubt that [S.] has sustained the injuries alleged by the prosecutor, nor as to how this happened. As to the identity of the perpetrator, [S.] has avoided to directly identify [the applicant]. Therefore, a conviction cannot be based on [S.’s] statements alone. The prosecutor has invoked certain supplementary evidence. In addition to this evidence, it is of importance that [the applicant] has not invoked any form of alibi evidence. The Court of Appeal is of the opinion therefore that the statements made by [S.] during the preliminary investigation are not the primary evidence in the sense laid down by the European Court. Article 6 of the Convention cannot therefore be considered as prohibiting this evidence from being considered by the Court of Appeal. On the basis of the available material, the Court of Appeal makes the following assessment. According to what [S.] has stated, the perpetrator visited him on 5 February 1997. This information should be considered in conjunction with the statement of [witness 1] that [witness 1] the same day met [S.] together with a person whom [witness 1] has identified as [the applicant], and then lends support to the conclusion that [the applicant] is the perpetrator. Although the identification of [S.] made by [witness 2] at a photo line-up does not have any real value as evidence, her observation of a man outside the home of [the applicant] on 7 February 1997 confirms what [S.] has stated regarding his visit to the home of the perpetrator. The observations made by [witness 3] concerning the perpetrator’s looks do also, to some extent, support the conclusion that [the applicant] is the perpetrator. The statements made by [S.] during the preliminary investigation have thus been verified on various points. This fact together with what has otherwise been revealed in the case is highly compromising for [the applicant]. It is apparent to the Court of Appeal that [S.] throughout the investigation and the hearing of the case has been afraid of [the applicant]. The fact that [S.] during the oral hearing before the Court of Appeal denied that [the applicant] was the perpetrator can therefore be disregarded. The Court of Appeal finds it proven beyond reasonable doubt, as did the District Court, that [the applicant] is identical with the perpetrator.” On 29 September 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. Chapter 35, section 4 of the Code of Judicial Procedure provides: “A statement made in writing on the occasion of already opened or imminent legal proceedings or a written record of a statement made on the occasion of such proceedings to the prosecutor or the police or otherwise out of court may be invoked as evidence in the proceedings only 1. if this is specifically prescribed, 2. if the person who made the statement cannot be examined at or outside the main hearing in the case or otherwise before the court, or 3. if there are particular reasons, taking into account the costs and inconvenience that an examination at or outside the main hearing may entail, the possible gain of such an examination, the significance of the statement and other circumstances. The rules on statements in writing or in written records in the first paragraph apply also in regard to a phonetic or similar record of a statement.” Chapter 36, section 16, subsection 2 reads: “During the hearing of a witness, the witness’s prior statement before a court or before a prosecutor or the police may be presented only when the witness’s testimony differs from what he has previously stated or when the witness declares that he cannot or will not speak.” The latter provision applies also to a hearing of an injured party, according to chapter 37, section 3, subsection 1.