AS TO THE ADMISSIBILITY OF
by Arunas MIKA
The European Court of Human Rights (Third Section), sitting on 27 January 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 26 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the Lithuanian Government’s tacit wish not to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings,
Having deliberated, decides as follows:
1. The applicant, Mr Arunas Mika, is a Lithuanian national who was born in 1970 and lives in Kaunas, Lithuania. He was represented before the Court by Mr P. Haglund, a lawyer practising in Falköping, Sweden. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
2. The applicant went to Sweden during the summer of 2004 and started work at a factory in Jössefors. A woman, K., worked for another company but in the same factory building.
3. In the evening of 22 September 2004, K. went to the factory to carry out some extra work. At around 10.30 p.m. the alarm in the factory was activated and a security guard arrived a few minutes later. He found K. walking around, very distressed, and she told him that she had been raped. He alerted the police and called for an ambulance which took K. to hospital, after she had made a formal report to the police.
4. At the hospital K. was examined and marks on her arms were documented and photographed. A medical certificate, written by the chief physician, stated that K. had no injuries to her head or face but that she had some bruises and sore points on her arms. No injuries were discovered during the gynaecological examination. From notes made by a counsellor at the women’s clinic, who met with K. the same evening, it appeared that she had been very sad and had had difficulties eating but that she had wished to leave the hospital to go home to her daughter.
5. On the following day, the applicant was picked up by the police and questioned at the police station. The police photographed him and told him that something had happened to a woman at the factory the previous evening and he replied that he knew nothing about it. Other persons were also questioned about the incident.
6. On 24 September 2004 K. was questioned by the police about the incident and stated inter alia the following.
7. It had been her birthday on 22 September and she had been celebrating it during the day with her partner, C. They had eaten, drunk some alcohol and had had unprotected intercourse. At around 8.30 p.m. she had gone to the factory to control a machine which needed to be checked from time to time. When she had entered the factory premises, she had not seen anybody but she had noticed that there were lights on in one of the halls. She had started to work and after a while she had heard a male voice say “hello” to her. She had turned around and said hello to the man and had then turned back to face the machine. The man had grabbed her from behind and forcing her to hold still by taking a strong hold of her right arm and, using the weight of his body, had raped her. She did not know whether he had ejaculated in her but she did not think so. She had tried to kick and hit him and suddenly he had let go of her and had walked away, without uttering a word. She had recognised the man, since she had seen him 10 days earlier in the factory. She described him as having short black hair, no beard, about 180 cm tall and of average build. She estimated that he was around 30 years old but did not remember what he was wearing. However, he had carried a bag which was coloured pink, green and grey. After the man had left, she had started looking for a telephone in a state of panic and the alarm had gone off. She had run out of the building and a security guard had arrived and helped her.
8. On the same day, 24 September 2004, the police also showed K. photographs of different men and she claimed to be “quite sure” that she recognised her assailant, pointing at a photograph which was not that of the applicant.
9. During the night of 28 September 2004 K. committed suicide by taking an overdose of medication mixed with alcohol. C. found her in their home.
10. Almost one year later, on 12 September 2005, the applicant was arrested and, on 29 September 2005, the prosecutor pressed formal charges against him for rape. According to the indictment, in the evening of 22 September 2004 the applicant had been on the factory premises and there he had, by the use of physical violence, forced K. to have intercourse with him. The prosecutor invoked various written evidence, including the medical certificate and the notes made by the counsellor (see above § 4), and requested that some witnesses be heard. Moreover, because K. was dead, the prosecutor invoked, with reference to Chapter 35, section 14, of the Code of Judicial Procedure (Rättegångsbalken), the written statement given by K. to the police on 24 September 2004.
11. The applicant denied the charge. He admitted that he had been working at the factory on 22 September 2004, but maintained that he had stopped working before 10 p.m. and had then cleaned up, taken a shower and left. He had put his work clothes in a plastic bag. He had seen no one in the premises of the building when he had left and it had been dark everywhere. He could not say whether there had been lights on in the hall where K. supposedly had been working, since the door to that hall had been closed.
12. After his arrest, a blood sample had been taken from the applicant and matched with sperm which had been found in K.’s underwear and her vagina after the rape. The DNA-test revealed with certainty that the sperm came from the applicant and not from C.
13. When confronted with this information, the applicant told the police that he had had intercourse with a woman unknown to him one or two days before 22 September 2004. He alleged that he had taken refuge in a bus shelter as it had started raining and that a woman with a dog had come up to him and started talking in Swedish. She had smelled of alcohol and, without further ado, she had sat down on top of him, unbuttoned his trousers and her own and they had had unprotected intercourse. She had then got up and left. It had all happened very quickly and he had been left bewildered. The reason why he had not recounted this incident before was that his family was about to arrive from Lithuania and he had been afraid that his wife would find out about it. Moreover, the police had not asked him about his private life during the previous interrogations and he had not known K. or who she was.
14. During the trial before the District Court (tingsrätten) in Värmland, the applicant was heard. He maintained his innocence and repeated what he had told the police during the interrogations. He further added that, when he had left the factory in the evening of 22 September 2004, he had been carrying his work clothes in a plastic bag. He did not own a bag like the one described by K. to the police. However, a work colleague had a bag similar to the one described. The applicant also stated that he had been married for 14 years and that his wife and two children had joined him in Sweden in November 2004.
15. Moreover, C., K.’s partner, testified during the trial, as did the security guard who had found K. and the counsellor from the women’s clinic. Upon request by the applicant, a forensic biologist working at the National Laboratory of Forensic Science (Statens kriminaltekniska laboratorium) also gave evidence, informing the court that, 3 to 5 days after intercourse, sperm still found in the vagina could be used to carry out a DNA-test. If a woman had been with two men, it was unlikely that DNA from only one of the men would show up on a test. Still, if DNA from only one man was found, it was not probable that the woman had had completed intercourse with someone else after the intercourse with the man whose DNA had been identified.
16. The District Court further visited the factory to see where the alleged rape had taken place.
17. On 20 October 2005 the District Court convicted the applicant of rape and sentenced him to two and a half years’ imprisonment and expulsion from Sweden with a prohibition on returning before 20 October 2010. In its judgment it held, inter alia, the following:
“It has been rendered difficult to evaluate the injured party’s statement since she could not be heard before the District Court. This does not prevent the statement, together with the other parts of the investigation, from constituting sufficient evidence of the rape having occurred. In the opinion of the District Court, the content and degree of detail of the statement are such that there is no reason to doubt the veracity of the information regarding the rape. That [K] has been subjected to abuse is further supported by what [C], [the counsellor] and [the security guard] have said about her reactions at different stages following the abuse. The medical certificate further confirms the account [K] has given about how she was physically attacked, that is, by the attacker, among other things, having taken a strong grip on her arm. The District Court finds no motive for why [K] would falsely claim to have been the victim of a crime. Neither is there any other reasonable explanation for why she would make a false statement in this regard. Thus the District Court finds that [K] was subjected to rape as she reported and as set out in the charge.
Turning to the question of [the applicant’s] guilt, the District Court makes the following assessment. Through the analysis by the National Laboratory of Forensic Science of the existence of sperm in [K’s] vagina and underwear, it must be taken as proven that the sperm came from [the applicant]. This, in turn, proves that [the applicant] had sexual intercourse with [K]. [The applicant] has claimed that he had sexual intercourse in a bus shelter with an unknown woman, who must have been [K], one or two days prior to the rape in question. Any questions to her concerning the alleged intercourse have not been possible. The information on how this sexual intercourse came about is in itself highly improbable. In addition, it is remarkable that [the applicant] did not mention the intercourse with the other woman until he had been informed about the results of the analysis by the forensic laboratory.
According to [K], [C] had an orgasm during their sexual intercourse earlier on the day of 22 September 2004. This is confirmed by what [C] said during the police interview on 11 November 2004. From the account given by [the forensic biologist], it can be concluded that, due to the fact that no sperm from [C] was found in [K], it is not likely that completed sexual intercourse took place between them after sexual intercourse between [K] and [the applicant] had occurred.
At a photograph confrontation on 24 September 2004, that is, two days after the rape, when she was asked to point to the photographs of her assailant, [K.] pointed out a man who was not [the applicant] and said that she was quite sure about her observation. This circumstance suggests, in effect, that [the applicant] is not the perpetrator. However, circumstances do not suggest that the person whose photographs [K] singled out has anything at all to do with the rape or any connection with the premises in question. [K] further stated during the police interview that she had recognised the man who had raped her as she had seen him in the factory on 12 September 2004 and that [C] had told her that the man was “Estonian” and worked in [the] factory in Jössefors. During the questioning of [C], he confirmed that [K] told him that it was one of two foreign men working at the [factory] that had raped her.
The District Court finds, through the information given by [K] and [C], that [K] had the impression that her assailant was a person she had seen previously in the building, who worked there and who had been looking at her also on 12 September 2004. It should be noted that this information is in accordance with the information provided about [the applicant’s] working hours on 12 and 22 September 2004. The District Court further notes that the description [K] gave the police of the perpetrator’s physical appearance and age corresponds well to [the applicant’s] physical appearance and age. [K’s] identification of another man’s photos at the photograph confrontation has, against this background, certainly importance but not decisive importance for the case.
The District Court considers the statements by [K] and [C], about completed sexual intercourse between them in the daytime of 22 September 2004, to be reliable. The above-mentioned assessments by [the forensic biologist], [at] the National Laboratory of Forensic Science, regarding the presence of sperm in [K’s] vagina, therefore contradicts the assertion that [the applicant’s] sexual intercourse with [K] had occurred before the completed sexual intercourse between [K] and [C]. The fact that sperm from [the applicant] was found in her underwear also contradicts this. Correspondingly, the circumstances supports that the sexual intercourse between [K] and [the applicant] was the last sexual intercourse which she had before the police arrived at the scene of the reported rape and, thus, that he committed the rape.
The circumstances outlined above, taken together with [the applicant’s] totally unlikely account of sexual intercourse in the bus shelter, lead the District Court to find no reasonable doubt that he is the person who committed the rape in question. The charge is thus proven.”
18. As concerned the expulsion order, the District Court noted that the applicant had only been in Sweden for about 15 months and his family not even for one year. His two children went to school in Sweden, but the oldest had already attained majority. Thus, since the crime of which the applicant had been convicted was of a serious nature, and he had only been in Sweden for a limited time and would be able to keep in close contact with his family, it was justified to expel him for a fixed period of five years. Moreover, in deciding the two years’ imprisonment, the court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence accordingly.
19. The applicant appealed against the judgment to the Court of Appeal (hovrätten) of Western Sweden, claiming that he was innocent and that he had not been given a fair trial since K. was dead and he, or his lawyer, had therefore never had the opportunity to put questions to her during the preliminary investigation or to cross-examine her during the trial. In this respect, he noted that almost eleven months had passed between the alleged rape and the investigation leading to his arrest and pointed to several discrepancies in K.’s testimony to the police. In particular, he pointed to the fact that she had not identified him during the photograph confrontation even though his photograph had been taken the day before and he was the only one with a moustache. Since he had not had the opportunity to question her many doubts remained and, in these circumstances, his possibilities to defend himself properly had been impaired.
20. On 16 December 2005, after having heard the applicant and all the witnesses whom had been heard before the lower court, as well as one more witness heard upon request by the applicant, the Court of Appeal upheld the lower court’s judgment in full, with the exception that it prolonged the applicant’s prohibition on returning to Sweden until 20 October 2015. It found that, on the basis of the evidence been presented to it, there was no reason to make a different evaluation concerning the applicant’s guilt and the seriousness of the crime to the one made by the District Court. As concerned the expulsion order, the court considered that the applicant and his family had a relatively limited connection to Sweden as they had been in Sweden for only about one year. Thus, since the applicant had committed a very serious crime, the prohibition on returning should be extended from five to ten years.
21. The applicant appealed to the Supreme Court (Högsta domstolen), maintaining that he had not benefited from a fair trial since he had been deprived of his right to question the victim and thereby properly defend himself. He further wished the Supreme Court to establish how much weight could be attached to the statement of a victim who had died before the defence had had a chance to question him or her.
22. On 1 February 2006 the Supreme Court refused leave to appeal and, on 12 May 2007, the applicant was expelled to Lithuania.
B. Relevant domestic law and practice
23. Proceedings before the general courts in criminal cases are mainly governed by the 1942 Code of Judicial Procedure (rättegångsbalken; hereafter “the Code”), with amendments.
24. Chapter 35, section 1, of the Code states that when the court is to adjudicate the facts of a case, it shall carefully evaluate everything that has occurred and determine what has been proved. 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. There is, for example, no prohibition against using hearsay evidence. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The item of evidence to be used shall generally be that which guarantees the most secure proof, in the doctrine referred to as “the principle of the best evidence” (principen om bästa bevismedlet). Consequently, witnesses and injured parties shall 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. This also improves the court’s ability to assess their credibility and reliability and, thereby, to render a correct and well-founded judgment. Hence, Swedish procedural law (Chapter 35, section 8, of the Code) presumes that a criminal case is adjudicated after a main hearing which the defendant, witnesses and the injured party are summoned to attend and it allows for the use of written testimonies and the reading of statements made during the preliminary investigation only in a few, specific situations.
25. Thus, Chapter 35, section 14, of the Code stipulates that a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand.
26. On a few occasions the Supreme Court has examined the question of evaluation of evidence in the light of Article 6 of the Convention in cases where the prosecutor’s indictment has been based to a large extent on statements from witnesses or injured parties who have not been heard by the court. In such situations, the Supreme Court has stated that the fact that the court has not had the opportunity to assess the credibility and reliability of a witness or an injured party, and that the accused has not been able to question that person, ought to entail that the statements are examined and evaluated with particular caution. Furthermore, the Supreme Court has found that it is of great significance whether the written statements have constituted the principal evidence against the defendant or whether his or her conviction has been supported by corroborative evidence (see, for example, NJA 1991 p. 512 I and NJA 1993 p. 616). Moreover, in the case NJA 1992 p. 532, the injured party had not attended the main hearing but the Court of Appeal had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. Thus, in the light of the Court’s case-law, the Supreme Court found that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention and therefore referred the case back to the Court of Appeal for re-examination.
27. The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that he had not been afforded a fair trial and that the principle of equality of arms had been upset as he could not cross-examine or put any questions to K. at any stage of the proceedings.
28. The applicant complained that he had not had a fair trial, as he had not been given the opportunity to question K. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which provide:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
29. The Government submitted that the application should be declared inadmissible as being manifestly ill-founded.
30. They first acknowledged that K. should be regarded as a witness for the purposes of Article 6 § 3(d). The Government then noted that, since K. had died only a few days after the rape, there existed an “absolute hindrance” to obtaining a hearing with her after the first police interview. Thus, in their opinion, the District Court’s decision to permit the prosecutor to invoke the written records of the police interview with K., was in accordance with Chapter 35, section 14, of the Code, as interpreted in the light of Article 6 §§ 1 and 3 (d).
31. The Government further stressed that both the prosecutor and the applicant had adduced other evidence in addition to K.’s statement before the national courts. The applicant and several witnesses had been heard before the lower courts and various written evidence had been invoked. They also observed that the District Court had evaluated K.’s statement carefully, having regard to the fact that she had not been heard in court, and had found that its weight as evidence was rendered dependent on other, corroborating evidence. As both witness statements and written evidence confirmed K.’s statement, and as the applicant’s own story about the woman in the bus shelter had been found to be unlikely, the court had based its conviction of the applicant on convincing evidence. In these circumstances, the Government submitted that the applicant’s conviction had not been based solely or to a decisive extent on K.’s statement and, consequently, the proceedings as a whole had been fair and there had been no violation of Article 6 §§ 1 or 3 (d) of the Convention.
32. The applicant maintained his claims. In his opinion, K.’s statement during the police interview should not have been allowed as evidence during the trial since neither he nor his defence lawyer had at any point been able to question her. He further argued that, except for K.’s statement, there was no witness statement, no technical evidence, nor any other circumstance which alone, or in combination with other evidence, proved that K. had actually been raped on the said evening. Moreover, the applicant stressed that K. had failed to identify him during the photograph confrontation, in fact she had been sure it had been another man, but that the national courts had ignored this fact and only attached importance to circumstances supporting K.’s story. In this respect, he observed that the written report of K.’s statement had been written down in summary form by a police officer. It could not be excluded that important information, which could have benefitted the applicant, had been left out. The applicant further claimed that it could not be ruled out that someone else had raped or had sexual intercourse with K. on the said evening in the factory, having regard to her behaviour when the security guard came and her failure to identify the applicant. He had clearly been deprived of his right to question K. about several inconsistencies in her story and to confront her with additional questions which could have freed him of any suspicion.
33. The Court first notes that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of this Article. Consequently, the complaint will be examined under the two provisions taken together (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 25).
34. It reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling about whether statements of witnesses were properly admitted as evidence, but to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
35. In addition, all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases. The use in this way of statements obtained at the pre-trial stage is not in itself inconsistent with Article 6 §§ 1 and 3 (d), provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see Asch v. Austria, cited above, § 27, and Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, § 51). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (A. M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX; Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, §§ 43-44, and Z. v. Latvia, no. 14755/03, § 96, 24 January 2008).
36. As to the notion of “witness”, the Court notes that although K. did not testify at a court hearing she should, for the purposes of Article 6 § 3 (d), be regarded as a witness – a term to be given its autonomous interpretation – because her statement, as recorded by the police, was used in evidence by the domestic courts (see, among other authorities, Asch, cited above, § 25).
37. In the present case, the Court observes from the outset that K. died only a few days after the rape for which reason the Swedish authorities cannot be blamed for failing to ensure her presence at the trial (see, Bonev v. Bulgaria, no. 60018/00, § 44, 8 June 2006, and Ferrantelli and Santangelo v. Italy, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 III). Moreover, since she died before the applicant had been informed of any suspicion against him or formally charged, he never had the opportunity to question her – a fact for which the authorities cannot be held responsible. In these circumstances, the Court finds that the national courts’ decision to allow K.’s statement, as written down in the police report, as evidence was not, in itself, contrary to Article 6 §§ 1 and 3 (d) of the Convention.
38. However, the Court has to determine whether the applicant’s conviction was based solely, or in a decisive manner, on K.’s statement in such a way that his right to a fair trial was violated. The Court first notes that K.’s statement was not the sole evidence in the case since several witnesses were heard during the trial and written evidence submitted. As to the question of whether or not K.’s statement was decisive for the conviction, it makes the following assessment.
39. Before the District Court, K.’s partner, C., was heard, as was the security guard who had arrived first at the factory and had found K. and also the counsellor at the hospital where K. had been taken following the rape. The counsellor’s notes were also submitted as evidence. Moreover, a DNA-test had been carried out which showed that there were sperm from the applicant in K.’s vagina and on her underwear and a medical certificate from the hospital showed that K. had bruises on her arms which corresponded to her statement of how her assailant had grabbed and held her. Furthermore, a forensic biologist at the National Laboratory of Forensic Science was heard and testified about in what circumstances and for how long sperm could remain in the vagina and show up on a DNA-test. The District Court further visited the factory and the place where K. had stated that the rape had occurred.
40. Furthermore, the applicant had the opportunity to discuss K.’s statement and to give his own version of events, first during the preliminary investigation and later before the District Court and the Court of Appeal. However, he had only admitted to having met K. once he was confronted with the result from the DNA-test and had then given an account of a surprise meeting with an unknown woman, whom he assumed was K., in a bus shelter one or two days prior to the rape. As this account was considered very improbable and, moreover, was contradicted by the technical evidence, it rather undermined the applicant’s credibility.
41. The Court also observes that the applicant does not appear to have requested the police officer who interviewed K. to be heard before the national courts in order to ask questions about his written report and get his impression and opinion of K. and what she had told him. The applicant did, however, request that one further witness be heard on his behalf before the Court of Appeal, which the court granted.
42. In light of the above considerations, and having regard to the fact that the District Court carried out a detailed analysis of all evidence, written and oral, presented in the case, the Court finds that K.’s statement was corroborated by a series of other items of evidence and thus not decisive for the applicant’s conviction. Hence, it takes the view that the applicant had a fair trial in accordance with Article 6 §§ 1 and 3 (d) of the Convention. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Santiago Quesada Josep Casadevall