HEDSTROM AXELSSON v. SWEDEN
Inadmissible
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.”