AHO v. SWEDEN
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Abraham Aho, is a Swedish national who was born in 1991 and lives in Södertälje. He was represented before the Court by Mr J. Karlsson, a lawyer practising in Stockholm. 3. On 23 December 2009, a person was murdered at a nightclub in Södertälje, Sweden, by a lone gunman (hereafter “the December 2009 murder”). The applicant, who belonged to a well-known criminal network in Södertälje, was arrested the same day as a suspect. He was held in pre-trial detention until 1 April 2010, with restrictions. Although released from pretrial detention on that date, he remained a suspect. On 14 December 2010 he was once again arrested and subsequently detained, with restrictions, on suspicion for the December 2009 murder as well as inter alia another murder. The prosecution against the applicant and several other defendants was brought on 16 November 2011. 4. With regard to the evidence against the applicant concerning the December 2009 murder, the prosecution, inter alia, relied on information provided by witness A., who was working at the nightclub on the night of the murder. A. told the first policeman to arrive at the crime scene that he wanted to tell another policeman, B., who the perpetrator was. On the same day, A. arrived at the police station. However, as B. was not present, he told policeman C. instead that the applicant was the perpetrator. A. had known the applicant since an early age. A. also made it clear to C. that he would not agree to be questioned formally by the police or be heard as a witness before a court. The reason was that he feared retribution from the criminal network to which the applicant belonged. C. took note of the information and a few days later A. repeated to policeman B. what he had seen on the night of the murder. During the period from 9 September 2011 to 19 April 2013, A. repeated this information to B., C. and a third policeman, D., on ten separate occasions. 5. The trial at Södertälje District Court (tingsrätt) started at the end of 2011 and lasted for approximately six months. On 1 August 2012, the applicant was convicted of the December 2009 murder, aiding and abetting a second murder, abduction and extortion. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force. 6. The applicant appealed to Svea Court of Appeal (hovrätt), which found one of the lay judges at the District Court to be biased because he was also a member of a local police commission where, among other things, the criminal case against the applicant had been discussed. For that reason, on 5 October 2012 the Court of Appeal quashed the District Court’s judgment and referred the case back to the lower court for renewed proceedings. The applicant was to remain in detention, with restrictions. 7. The new proceedings started before a new composition of judges of the District Court at the beginning of 2013 and lasted for approximately six months. 8. Policemen B., C. and D. were heard as witnesses during the trial and they concordantly testified that A. had told them that the applicant was the perpetrator. However, despite numerous requests, A. refused to relay the information at a formal police hearing or at the trial. A. nevertheless appeared as a witness at the trial and was questioned by the prosecution and the defence. He denied that he had witnessed the murder. 9. On 29 August 2013, the applicant was once again convicted by the District Court of the December 2009 murder, aiding and abetting a second murder and abduction and extortion. This time, he was also convicted of aiding and abetting a third attempted murder. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force. 10. The District Court noted in its judgment that the applicant had claimed that A. blamed him for the murder for reasons of revenge or loyalty. The court, however, found no indication of such motives. A. was deemed credible, and his explanation to the policemen B., C. and D. that he refused to testify because of fear of retribution was seen as convincing. The court also reasoned that the strength of the hearsay evidence was reduced as A. had not provided the information during a trial where cross-examination was possible. A.’s identification of the perpetrator was therefore not seen as evidence decisive enough, taken by itself, to prove the guilt of the applicant. In addition to the identification, however, there was circumstantial evidence. A. had given information about the perpetrator to the victim in the extortion crime of which the applicant was also convicted. Furthermore, the applicant had no alibi and, according to connections to telecommunication masts, he was a few minutes away from the nightclub around the time of the murder. The applicant had called a person who stored guns 15 minutes before the murder, stating that he was in a hurry and wanted to meet outside the applicant’s home. His mobile phone had thereafter been silent for the following 15 hours, which was very unusual for him. A few days earlier, the applicant had requested guns and ammunition, and he was able to handle guns. The District Court concluded that the circumstantial evidence, considered together with A.’s identification of the perpetrator, proved that the applicant was the murderer. 11. Upon appeal, the Court of Appeal held an oral hearing which lasted several months. The applicant’s restrictions were lifted on 27 May 2014 by the court. On 1 September 2014, the court upheld the lower court’s judgment as regards the applicant and he was ordered to remain in detention without restrictions until the judgment gained legal force. 12. The lower court’s evidence evaluation and conclusion were shared by the Court of Appeal, where video recordings of the witness testimony were shown. The appellate court further noted that the applicant’s mother had called his mobile phone at the time when the applicant had claimed he was sleeping in the apartment from which his mother was calling. Moreover, the court noted that the applicant had handed over his cell phones to a friend after the murder but before he was arrested, indicating that he did not want the police to get hold of them. With regard to the case as a whole, the court remarked that several injured persons and witnesses had refused to be questioned by the police or had retracted previous statements given to the police at the trial. According to the court, it was obvious that this was because of loyalty or fear of retribution. Several witnesses were accused of perjury. 13. The applicant appealed against the Court of Appeal’s judgment to the Supreme Court (Högsta domstolen) which, on 25 November 2014, refused leave to appeal. 14. The applicant appealed neither explicitly nor implicitly to the Supreme Court against the Court of Appeal’s decision to keep him in detention until the judgment gained legal force. 15. Chapter 35, section 1, of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows: “After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case. As to the effect of certain kinds of evidence, the specific provisions thereon shall apply.” 16. This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely. 17. Moreover, according to Chapter 35, section 7, of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it clearly would be to no effect.