NIKKA v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Aarno Nikka, is a Finnish national, who was born in 1957 and lives in Stockholm, Sweden. He is represented before the Court by Ms K. Koorti, a lawyer practising in Stockholm. The respondent Government were represented by Mrs E. Jagander, of the Ministry for Foreign Affairs, as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The case concerns criminal proceedings brought against the applicant in relation to charges of assault and threats allegedly committed against his cohabitant, E., on 4 July 1996. The same day E. reported the incident to the police. According to E., the relationship between her and the applicant had deteriorated over a period of time. The applicant had also started to drink during the days preceding the incident. During the evening of 4 July 1996 E. began to pack her belongings because she had decided to leave the applicant. The applicant became aggressive and put his finger in her mouth. He then pulled her to the floor, injuring the back of her head and her shoulder. E further stated that the applicant slapped her in the face and threatened to kill her. The applicant admitted that they had quarrelled during the evening, but denied that he had assaulted or threatened E Instead, he alleged that E had fallen on the floor by accident. He also stated that he placed his hand over her mouth in order to prevent her from screaming. The applicant was charged with the offences of “assault” and “unlawful threat” against E, who also joined her claim for compensation to those proceedings. The applicant denied the charges at the hearing before the District Court trying the case, as well as civil liability to pay compensation, though he had already paid E certain sums totalling 7,210 Swedish kronor (SEK). E was heard before the court and maintained the statements she had made during the police investigation. The prosecutor also relied on a medical certificate and a photograph attesting to E’s injuries. In its judgment of 26 July 1996 the District Court convicted the applicant and sentenced him to two-months’ imprisonment, and made him liable to pay compensation to E, not to exceed the amount (SEK 7,210) already paid. The applicant appealed to the Court of Appeal. The main hearing before the Court of Appeal was first scheduled to take place on 28 November 1996. On 20 November 1996, when an official of the Court of Appeal called the applicant at the apartment which used to be his and E’s home, E was present in the apartment and was informed of the date and place of the hearing. E was, however, not formally summoned to the hearing. In any event, E failed to appear at the main hearing on 28 November 1996 and the hearing was cancelled. The trial hearing was postponed until 29 April 1997. However, E. was not notified of the hearing and it was cancelled. The parties were invited to give their views on whether it was necessary to take evidence from her again or whether the audio-tape recording of her testimony in the District Court could be played back. Both the prosecutor and the applicant were of the opinion that it was essential to take evidence from her also in the Court of Appeal. 3 March 1998 was then fixed as the new date for the hearing and E was notified of the summons. However, as she failed to appear and her testimony was deemed necessary, the hearing was cancelled. E. was ordered to pay a fine of SEK 2,000 and it was decided that next time she should be brought to the hearing by the police. On 28 May 1998, as the attempt to fetch E. failed (she had not been notified of the hearing), the Court of Appeal cancelled the hearing since it was deemed necessary to take evidence from her. A new hearing was scheduled for 14 September 1998. The court ordered that E. be fetched and taken into custody a few hours in advance of the hearing in order to secure her attendance. Subsequently, a hearing scheduled for 14 September 1998 was cancelled as it had not been possible to fetch E. and her renewed testimony was considered necessary. A new hearing was scheduled for 30 September 1998. The Court of Appeal ordered once again that E was to be fetched and that she could be taken into custody prior to the transportation to the court. A sixth attempt to hold a hearing, on 30 September 1998, was also in vain since the police had failed to find E. The hearing was cancelled even though the prosecutor now claimed that E’s absence was no longer an impediment to holding a hearing. It was then decided to hold the hearing on 14 October 1998 and that the police should secure E’s attendance by fetching her and keeping her in custody a few hours before taking her to the court room. The Court of Appeal finally held the appeal hearing on 14 October 1998, in E’s absence, as the police had not been able to fetch her. Under the Code, Chapter 35 section 13, the Court decided to go ahead with the hearing since all legal possibilities to secure E’s attendance had been exhausted and impediments therefore existed to her giving testimony once more. The prosecutor invoked the audio-tape recording of her testimony previously given before the District Court. Defence counsel was of the view that E should be heard in person and that a new attempt to bring her to the Court of Appeal should therefore be made. However, counsel left it to the Court to decide whether E’s absence was an impediment to the holding of the hearing. The Court of Appeal heard the applicant and an audio-tape recording of E’s testimony to the District Court. The evidence also included four letters that E had addressed to the defence counsel, the public prosecutor and the Court of Appeal respectively on 8 August and 18 November 1996 and 10 March 1998. In her letter to defence counsel of 8 August 1996, which was only submitted by counsel to the Court of Appeal on 14 October 1998, E offered to take back all of what she had claimed previously against the applicant. She did not know how matters would evolve between them and thought that this was unimportant. In her view, the applicant had suffered enough by being detained on remand. She stated in addition that "I know, as he does, what he has done to me". E finally asked defence counsel to lodge an appeal against the District Court’s judgment and stated that she waived damages. In her letter to the prosecutor of 18 November 1996, E stated that she had made a big mistake, had lied about what had happened, that her motive had been revenge and that she retracted everything she had stated in court. Her letter addressed to defence counsel on the same date stated that her afore-mentioned letter to the prosecutor had not been worded in the right manner. When the event took place and the applicant "took hold of her", she had relived a rape that she had experienced as a girl. She had become very uncertain about what had actually occurred and thought that she might have mixed up the situations. In her letter of 10 March 1998 to the Court of Appeal, E explained that she had lacked the financial means to attend its hearing on 3 March 1998. In her view, the police report was incorrect and this she had pointed out during the previous trial. Moreover, she claimed not to remember events that took place two years earlier in her and the applicant’s apartment. In its judgment of 23 October 1998 the Court of Appeal upheld the District Court’s conviction and sentence of the applicant and, because of E’s statements, quashed the compensation order. It observed that the District Court had heard E extensively, for over an hour, and that the prosecutor, E’s counsel and the applicant’s counsel had asked her a large number of questions. The court went on to state: “....[E.] maintained during the hearing the information that she had first given to the police and she did not give any contradictory answers. Her testimony in the District Court was full of details and gives the impression that she is talking about something that she indeed experienced. [E] had been eager not to exaggerate what happened. She had also pointed out that [the applicant] had not been violent previously and she also tried to give an explanation as to why he had acted as he did on the occasion in question. There is nothing to indicate that [E] should have any reason to tell lies about [the applicant]. [E] has stated in one of her letters that she sought revenge against [the applicant]. Nevertheless, she did not state why. [The applicant] has declared that he thinks that she would like to seek revenge on the ground that he called her a whore and that the relationship was over. It does not appear very likely that [E] would give false information deliberately for that reason. As to the rest of the information given by [E] in the case, it is to be observed that her statements remained substantially the same, from her report to the police until her testimony before the District Court. Further, as regards the reliability of her statements, this must be considered as being strengthened by the medical certificate and the photograph. It appears unlikely that the injuries accounted for in the medical certificate had been caused by the course of events described by [the applicant]. The letters from [E] do not contain any information about what happened on the actual evening, but only the allegation that she had lied. In one of the letters she only stated that she had been uncertain about what had happened and that she could not remember the incident two years after. Her letters are vague and lacking in detail. In the light of these facts the court attaches no weight to [E’s] statements in the letters.” The applicant appealed to the Supreme Court. On 21 December 1998 the Supreme Court refused leave to appeal.