BAUNGAARD proti Dánsku



AS TO THE ADMISSIBILITY OF

Application No. 27739/95

by Peter BAUNGAARD

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 May 1995 by

Peter BAUNGAARD against Denmark and registered on 28 June 1995 under

file No. 27739/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1970. He is at present

serving a 16 year prison sentence at Horsens State Prison. Before the

Commission the applicant is represented by Mr Morten L. Wagner, a

lawyer practising in Viborg.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

From October 1992 until his arrest on 2 October 1993 the

applicant was involved in substantial criminal activity. By indictment

of 18 April 1994 the applicant was charged with theft, burglary, drug

trafficking, illegal possession of arms and ammunition, robbery and

attempted robbery, and murder in a total of 25 cases. Parts 1 and 7 of

the indictment concerned burglary where the items stolen allegedly

represented a value of approximately 900,000 DKK, and 220,000 DKK

respectively. Part 5 of the indictment concerned drug trafficking

allegedly involving 30 grammes of heroin. Part 18 of the indictment

concerned burglary allegedly involving various items of silver worth

approximately 80,000 DKK. Parts 16 and 19 of the indictment concerned

attempted robbery in two cases and part 20 concerned robbery and

murder.

The criminal case against the applicant was heard by the High

Court of Western Denmark (Vestre Landsret) sitting with a jury. During

the proceedings which commenced on 6 September 1994 the applicant, who

was assisted by counsel, pleaded guilty in respect of parts 1-15, 17-18

and 21-25 of the indictment. As regards part 1 he could only accept,

however, a value of 100,000 - 200,000 DKK and, as regards part 5, only

15 grammes of heroin. As regards part 18 the applicant maintained that

the items stolen were of stainless steel and therefore worth less than

indicated. The applicant finally pleaded not guilty in respect of parts

16 and 19 but pleaded guilty to attempted burglary. As regards part 20

of the indictment the applicant pleaded not guilty but pleaded guilty

to burglary and assault causing death.

The court heard six witnesses and one expert following which the

defence, the prosecution and the professional judges agreed on the

formulation of the questions to be put to the jury. One of the

questions (no. 26) referred to parts 1 and 7 of the indictment and

requested the jury to decide whether the offences committed were of an

aggravated nature due to the value of the stolen items involved.

Following the jury's deliberations the applicant was, by judgment

of 9 September 1994, found guilty as charged in respect of parts 1-15,

17-18 and 21-25 of the indictment. As regards parts 16 and 19 he was

found guilty of attempted burglary in accordance with his own

admissions. Finally, he was found guilty of aggravated robbery and

murder cf. part 20 of the indictment. He was sentenced to 16 years'

imprisonment.

The applicant appealed against the judgment to the Supreme Court

(Højesteret). He maintained that such procedural errors had been

committed that the conviction was questionable. Furthermore, he

maintained that the sentence was too severe. In support of his

allegations the applicant submitted that part 20 of the indictment

(charge of aggravated robbery and murder) ought to have been presented

to the jury under two separate questions, that question no. 26 ought

not to have involved both parts 1 and 7 of the indictment, and that the

High Court had wrongly convicted him of burglary in respect of parts 1

and 18 as he had not pleaded guilty in respect of the value of the

stolen items involved.

By judgment of 27 April 1995 the Supreme Court upheld the

judgment in its entirety. In its judgment the court stated inter alia:

(Translation)

"Question no. 20 which had been formulated in accordance

with (part 20 of) the indictment concerned both robbery

pursuant to section 288 ... and murder pursuant to

section 237 of the Penal Code. Pursuant to section 887 of

the Administration of Justice Act each question to the jury

ought as far as possible to concern one criminal offence.

It has not been explained for what reason question 20 was

nevertheless formulated as it was. The court finds that it

had been more in accordance with section 887, subsection 2

of the Administration of Justice Act that two questions

concerning part 20 had been put to the jury but finds that

the failure to do so does not make the correctness of the

conviction for robbery and murder questionable.

Pursuant to section 285, subsection 1 of the Penal Code

burglary, among other things, carries a sentence of up to

one year and six months' imprisonment. Pursuant to

section 286, subsection 1 the sentence may, in the

circumstances mentioned in the provision, increase to

four years' imprisonment. The court does not find that

procedural errors have been committed by accepting that

question no. 26, which only concerned the issue of

referring two counts of burglary to section 286,

subsection 1, involved both these counts.

[The applicant] has admitted having committed the offences

set out in parts 1 and 18 but has disputed the value

involved. The questions to the jury in respect of these

offences have been drafted in close keeping with the

indictment and the jury has found [the applicant] guilty

accordingly. The fact that the judgment - contrary to the

court transcript - wrongly indicates that [the applicant]

has pleaded guilty to these two counts is not an error

which could question the correctness of the conviction.

...

[The applicant's] request for repealing the judgment and

returning it to the High Court for reconsideration is

accordingly rejected ...

As the sentence is found to be appropriate the court

upholds the judgment."

COMPLAINTS

The applicant complains that he did not have a fair trial by an

impartial tribunal. He maintains that he has been wrongly convicted for

having stolen goods, the value of which was determined without any

evidence and contrary to what he was willing to accept. He also

maintains that the formulation of the questions to the jury, in

particular the question concerning the aggravated robbery and murder,

made a fair determination of his guilt impossible.

The applicant furthermore maintains that the national courts'

interpretation of the notion of criminal intent violated his right to

a fair trial by an impartial tribunal.

The applicant invokes Article 6 para. 1 of the Convention.

THE LAW

The applicant complains that he did not have a fair trial by an

impartial tribunal. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention which in so far as relevant reads as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

... impartial tribunal ... ."

The applicant maintains that in respect of certain charges he was

wrongly convicted and in respect of others the courts' interpretation

of domestic law was contrary to the notion of a fair trial. Having

regard to this the Commission recalls, firstly, that with regard to

Article 19 (Art. 19) of the Convention, is to ensure the observance of

the obligations undertaken by the parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to the established

case-law of the Convention organs (cf. e.g. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.

45).

It is true that the applicant also complains that the proceedings

were not fair and that the courts were not impartial. As regards the

latter the Commission recalls that the existence of impartiality for

the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge or jury in a given case, and

also according to an objective test, that is ascertaining whether the

judge or the jury offered guarantees sufficient to exclude any

legitimate doubt in this respect (cf. e.g. Eur. Court HR, Fey v.

Austria judgment of 24 February 1993, Series A no. 255, p. 12, para.

28).

In the present case the Commission finds that no evidence has

been adduced to show that there could be any legitimate doubt as to the

High Court's or the Supreme Court's subjective or objective

impartiality.

As regards the fairness of the proceedings the Commission recalls

that the question whether a trial conforms in this respect with the

standard laid down by Article 6 (Art. 6) of the Convention must be

assessed on the basis of the court proceedings as a whole. In the

present case the Commission recalls that the applicant's case was

examined by the High Court sitting with a jury during which the

applicant, assisted by counsel, had the opportunity to submit

everything which he found to be of importance to the case. Furthermore,

no evidence was refused by the court and protests as to the proceedings

were at no time lodged indicating that the proceedings progressed to

the applicant's disadvantage. Indeed the applicant does not allege that

any of the minimum rights set out in Article 6 paras. 2 and 3

(Art. 6-2, 6-3) of the Convention were infringed. He maintains,

however, that procedural errors were committed in the presentation of

the questions put to the jury, an issue which was thoroughly examined

by the Supreme Court. However, having regard to the findings of the

Supreme Court the Commission does not consider that this, in the

circumstances, assumed such importance that the applicant's trial, seen

as a whole, was unfair.

Thus, an examination of the different issues raised by the

applicant does not disclose any appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber