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Decision on admissibility
1. The author of the communication (initial submission dated 15 August 1991)
is Michel L.N. Narrainen, a Norwegian citizen born in 1942, currently
detained at Bastoy Landsfengsel, Norway. He claims to be a victim of
violations by Norway of his rights under the international Convention on the
Elimination of All Forms of Racial Discrimination, but does not invoke
specific provisions of the Convention.
The Facts as Found by the Committee:
2.1 The author is of Tamil origin and was born in Mauritius; in 1972, he was
naturalized and became a Norwegian citizen. On 25 January 1990, he was
arrested in connection with a drug-related offence. On 8 February 1991,
before the Eidsivating High Court (Court of Appeal - "Lagmannsretten"), a
jury of ten found him guilty of offences against Section 162 of the Criminal
Code (drug trafficking), and the author was sentenced to six and a half
years' of imprisonment. The author appealed to the Supreme Court, but leave
to appeal was denied in early March 1991. On 17 February 1992, the author
filed a petition for re-opening of the case. By order of 8 July 1992, the
Court of Appeal refused the request. The author again appealed the order to
the Supreme Court which, on 24 September 1992, ruled that the case was not
to be re-opened.
2.2 The author contends that there was no case against him, except for the
evidence given by another individual, S.B. already convicted of drug-related
offences, who allegedly had been promised a reduction of his sentence in
exchange for providing incriminating evidence against the author. In court,
S.B. withdrew these allegations. In the same context, the author complains
about the allegedly "racist" attitude of the investigating police officer,
S.A., who reportedly made it clear that he "wished that people like me had
never set foot in his country" (author's quote).
2.3 The author contends that under the terms of the initial indictment, he
was accused of having travelled to the Netherlands in the early summer of
1989 to buy amphetamines. When he was able to produce evidence that, at the
time in question, he was in Mauritius, the initial indictment allegedly was
changed in court, after his own legal representative had contacted the
prosecution and asked for the indictment to be changed. The author adds that
it was impossible for him to have had any contacts with S.B. or his friends
prior to or during the trial.
2.4 The author further contends that two jurors in the Court of Appeal were
biased against him and that they openly stated that individuals such as the
author, who lived on taxpayers' money, should be sent back to where they had
come from. The remarks allegedly included slurs on the colour of the
author's skin. Yet these jurors, although challenged, were not disqualified
by the Court and participated in the deliberations of the verdict.
2.5 The State party gives the following version of the incident referred to
by the author (see paragraph 2.4):
"The Court record shows that during a break in the court proceedings, a law
student, Ms. S.R.H., overheard a private conversation between two members of
the jury, Ms. A.M.J. and Ms. S.M.M. This conversation was referred to
defence counsel, who requested that one of the jurors be dismissed. The
court called the law student and the two jurors to testify. [They] agreed on
the facts: Ms. J. had expressed dismay at the defendant receiving NOK 9,000
a month without having to work for it, and had also said that he ought to be
sent back to where he came from. Ms. M. had said that the purpose of a case
like this was to get more information about the drug trafficking. The law
student, Ms. H., had at this point entered the conversation, saying that the
purpose of a case like this was to determine whether the defendant was
guilty. According to the three witnesses, the question of guilt had
otherwise not been mentioned by any of them.
Defence counsel requested that Ms. J. be dismissed from the jury because,
according to Section 108 of the Courts' Act, a juror could be disqualified
if there are circumstances...apt to impair confidence in his or her
impartiality. The Prosecutor claimed that nothing had been said that could
influence the members of the jury, and that everyone was entitled to have
opinions. Discussing private opinions during a break [was] no ground for
disqualification, and the case itself had not been discussed by the three
persons.
The Court unanimously decided that Ms. J. should not be disqualified because
she had not discussed the question of guilt in the present case, and the
views she had expressed were not uncommon in Norwegian society."
The Complaint:
3.1 The author claims that racist considerations played a significant part
in his conviction, as the evidence against him would not have supported a
guilty verdict. He adds that he could not have expected to obtain a fair and
impartial trial, as "all members of the jury came from a certain part of
Oslo where racism is at its peak". He asserts that this situation violated
his rights under the International Convention on the Elimination of All
Forms of Racial Discrimination.
3.2 The author claims that other factors should be taken into consideration
in assessing whether he was the victim of racial discrimination. In this
context, he mentions the amount of time spent in custody prior to the trial
(380 days), out of which a total of nine months were allegedly spent in
isolation, and the quality of his legal representation: thus, although he
was assigned legal counsel free of charge, his representative "was more of a
prosecutor than a lawyer of the defence." Finally, the author considers that
a previous drug-related conviction, in 1983, was disproportionably and
unreasonably used as character evidence against him during the trial in
February 1991.
The State Party's Information and Observations and Author's Comments:
4.1 The State party considers that the communication should be declared
inadmissible as manifestly ill-founded, "in accordance with the established
practice in similar international human rights monitoring bodies".
4.2 As to the author's claim that he was denied his right to equal treatment
before the courts because the jurors were selected from a part of Oslo known
for a prevalence of racist opinions, the State party notes that no
documentation has been adduced in support of this contention. Author's
counsel only requested that one juror be disqualified; for the rest of the
jurors, it is submitted that the matter should have been raised in court,
and domestic remedies cannot be deemed exhausted in their respect.
4.3 After explaining the operation of Section 108 of the Courts' Act
(governing the disqualification of jurors), the State party points out that
it is not uncommon for jurors to have negative feelings towards the
defendant in a criminal case, but that this does not imply that they are
incapable of giving the defendant a fair hearing. In the instant case, the
views expressed by the jurors were of a general nature, and the court's
decision not to disqualify the juror was unanimous.
4.4 As to the author's claim of unfairly expeditious dismissal of his appeal
to the Supreme Court, the State party notes that under Section 335,
subsection 2, of the Code of Criminal Procedure, no appeal may be filed with
the Supreme Court if it merely concerns the evaluation of evidence in the
case. In the author's case, the appeal was based on two grounds: the issue
of the jury's impartiality (as a procedural error) and the severity of the
prison term imposed on the author. The State party notes that under Section
349 of the Code of Criminal Procedure, leave to appeal should not be granted
if the Appeals Board is unanimous that an appeal would not succeed. Under
Section 360, procedural errors shall only be taken into consideration if
they are deemed to have affected the substance of the judgement. In the
author's case, the issue of the length of the prison term was considered,
but as the answer to whether the Supreme Court should hear the appeal was
negative, it was deemed unlikely that the sentence would be reduced.
Concluding on this issue, the State party insists that there is no
indication that the author was not given the same opportunities to defend
his case before the courts as other individuals, in connection both with the
appeal and the request for a re-opening of the case, regardless of race,
colour of skin, ethnic origin, etc.
4.5 As to the length of the pre-trial detention, the State party explains
that a little over one year of pre-trial custody is not unusual in cases
involving drug-related offences. According to the State party, the delay of
nine months from arrest to the dispatch of the indictment to the Court of
Appeal was partly attributable to the author himself, since he changed his
lawyer several times while in custody, which in turn delayed the
preparations for the main hearing. The State party submits that nothing
indicates that the author was kept in custody longer than other suspects
merely because of his origin; this part of the complaint therefore is also
said to be inadmissible as manifestly ill-founded.
4.6 Finally, the State party dismisses as manifestly ill-founded the
author's complaint about the quality of his legal representation. Under
Section 107 of the Code of Criminal Procedure, a court-appointed lawyer is
remunerated by the State; the author had the opportunity to choose his own
counsel throughout the judicial proceedings, and it cannot be said that he
was subjected to racial discrimination in this respect.
5.1 In his comments, the author challenges the State party's submission on
various procedural and factual grounds. He claims that the State party's
version of the judicial proceedings is one-sided, because it is adapted from
the Court Book, which according to him reveals little of substance. He
further asserts that in a letter to the Registry of the Supreme Court, the
prosecutor himself admitted that the only prosecution witness against Mr.
Narrainen acknowledge in court to have been pressed by the investigating
officer to make a false and incriminating statement. As this virtually
destroyed the probative value of the prosecution's case, the author
concludes that he was convicted on the basis of racist ideas and serious
errors committed by the investigating authorities.
5.2 The author reiterates that several factors in his case, including the
gathering and the evaluation of evidence, the omission of important
statements in the court book, the absence of serious preparation of his
defence by the court-appointed lawyers, the handling of his appeal, all
underline that he was denied a fair and impartial hearing, and that his
conviction was based on racist considerations.
Issues and Proceedings Before the Committee:
6.1 Before considering claims contained in a communication, the Committee on
the Elimination of Racial Discrimination must, in accordance with rule 91 of
its rules of procedure, decide whether or not it is admissible under the
Convention.
6.2 The Committee has duly considered the State party's objections to the
admissibility of the communication on the grounds that the author's claims
are either unfounded or unsubstantiated. The Committee concludes, however,
that the communication satisfies the conditions for admissibility, set out
in rule 91 of its rules of procedure, and that it may raise issues of an
unfair trial under article 5(a) of the Convention which should be examined
on their merits.
7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is admissible insofar as it may raise issues
under article 5(a) of the Convention;
(b) That the State party be requested to submit its written observations on
the merits of the communication within three months of the date of the
transmittal to it of the present decision, pursuant to article 14, paragraph
6(b), of the Convention and rule 94, paragraph 2, of the Committee's rules
of procedure;
(c) That any written observations received from the State party pursuant to
this decision be transmitted to the author, who may, within six weeks of the
date of the transmittal, submit comments on the State party's observations,
if he so wishes;
(d) That this decision be communicated to the State party and to the author.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
*/ All persons handling this document are requested to respect and observe
its confidential nature.
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