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FIRST
SECTION
CASE OF
KASTE AND MATHISEN v. NORWAY
(Applications
nos. 18885/04 and 21166/04)
JUDGMENT
STRASBOURG
9
November 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kaste and Mathisen v. Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 18885/04 and 21166/04)
against the Kingdom of Norway lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Norwegian nationals,
Mr Bård Kaste and Mr Per Stian Tveten Mathisen (“the
applicants”), on 23 May and 1 June 2004 respectively.
- The
applicants were represented by Mr Ø. Storrvik and Mr T. Staff,
both lawyers practising in Oslo. The Norwegian Government (“the
Government”) were represented by their Agent, Mrs F. Platou
Amble, Attorney at the Attorney General's Office (Civil Affairs).
- On
1 December 2005 the Court decided to communicate the applications.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the applications at the same time as
their admissibility. On 19 October 2006 the Court decided to join the
applications.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, Mr Bård Kaste, and the second applicant, Mr
Per Stian Tveten Mathisen, were born respectively in 1970 and 1973
and both live in Oslo.
A. Conviction and sentencing of the applicants and of
their co-accused D at first instance
- On 21 March 2002 the Oslo City Court convicted the
first applicant of illegal possession of a firearm and, with two
other co-accused, namely the second applicant and “C”, of
possessing 48.41 kg of amphetamines and attempting to import those
drugs by ferry from Kiel (Germany) to Norway on 9 January 1999. The
first applicant was sentenced to 14 years' imprisonment, whereas the
second applicant was sentenced to 12 years and C to 6 years.
- The summary of facts contained in the City Court's
judgment took note of statements made to the Norwegian police by a
fourth person, T.A, concerning transportation of the drugs from
Rotterdam to Kiel by “Percy” (the second applicant's
nickname) and another person. Before driving his car onto the ferry
in Kiel, T.A. was stopped by German customs officials, who found a
total of 48.41 kg of amphetamines in a rucksack and a bag in the car
boot. Immediately after T.A.'s arrest, Norwegian police officers
travelled to Kiel to take part in his questioning. T.A. was tried and
convicted in Germany in June 1999.
- In its reasoning in the first applicant's conviction,
the City Court based its decision on circumstantial evidence, notably
on his and his co-habitant's use of a mobile telephone, and its
finding that there could be no doubt that the phone in question,
which used two specific pre-paid card numbers, had functioned as a
communication point in the operation and had played a central role in
the case.
- On 9 October 2002 the City Court, in separate
proceedings, convicted a fifth person, “D” (who had
absconded to the USA but later returned) in relation to the same
offences and sentenced him to 11 years' imprisonment.
B. Appeal proceedings before the High Court
- The first applicant, the second applicant, C and D
subsequently appealed to the Borgarting High Court, which decided to
join the proceedings. Whereas D appealed only against the sentence,
the other appellants appealed against other aspects, including the
procedure, the assessment of evidence and application of the law with
regard to the question of guilt.
- In the appeal trial before the High Court the
prosecutor requested that D be heard first, before the other
defendants, because this sequence would be the most appropriate in
the interests of elucidating the case and ensuring effective
administration of justice. The applicants' respective defence lawyers
protested against the sequence requested by the prosecutor. The High
Court considered that, since D was to give evidence on matters of
relevance to his sentence, normal practice should be followed, which
was to hear first those defendants who had appealed against the lower
court's judgment as a whole. After C, the first applicant and the
second applicant had given oral evidence, it turned out that D did
not wish to give oral evidence. As to the procedure thereafter, the
court record states:
“The Prosecution asked, making reference to
Article 290 of the Code of Criminal Procedure, for permission to read
out the depositions that the accused [D] had made to the police on 22
May, 24 May and 21 June 2002.
Accused [D]'s defence counsel, Attorney Oscar Ihlebæk,
had no objections to this reading. Attorney Marius Dietrichson,
defence counsel for accused C, wanted the depositions to be read out.
Attorney Trygve Staff, defence counsel for [the first applicant], did
not wish to express any particular opinion on the right to read them
out. Attorney Øystein Storrvik, defence counsel for [the
second applicant], opposed the reading out of the police depositions.
He argued that such a reading would be in conflict with the
requirements for a fair trial in the European Human Rights
Convention, and would also be in conflict with the minimum rights
contained in the Convention's Article 6 § 3 (d), namely the
right to examine witnesses against him, inasmuch as he maintained
that testimony from D at this stage of the case would have the nature
of witness testimony.
The Court thereafter ruled as follows:
Decision
The High Court finds that the reading of accused [D]'s
police depositions is permissible under Article 290. Reference is
made to the Bjerke-Keiserud commentary edition, volume II, page 1012,
from which the following citation is taken:
'In the High Court an evidentiary appeal may be
consolidated with a case that concerns a limited appeal... During the
appeal hearing, all the accused will normally be present. The reading
out of their previous depositions must be done under the rules of
Article 290, not Article 296, even if the deposition to be read
concerns a co-accused, that is, someone other than the deposer
himself. The solution is different when a former co-accused has had
his case finally and enforceably adjudicated and is appearing as a
witness in the case.'
The High Court finds accordingly and cannot otherwise
see that the reading out of accused [D]'s depositions will be in
conflict with ... Article 6 §§ 1 and § 3 (d) ... of
the Convention. [D] has the status of an accused, and the High Court
finds that this must be decisive even if he has filed a limited
appeal in the case.”
- The second applicant's counsel then asked the High
Court to postpone the proceedings in so far as the second applicant
was concerned until a legally enforceable judgment existed with
respect to D, so that D could be summoned as a witness with an
obligation to testify. The High Court rejected the request for
postponement.
- Thereafter, the prosecutor read out D's statement,
following which the second applicant's counsel asked to put a
question to D. He referred to the fact that in one of his statements
to the police D had stated that his deposition contained so many
errors that he saw no point in going through it any further. In this
connection, the court record states:
“The President of the Court recalled that [D] had
invoked his right to remain silent, and that it would not therefore
be permitted to question him directly, but that the President would
ask [D] whether he wanted to testify, wholly or in part.
[D] replied that he still wished to remain silent,
including in response to the questions he had heard from Attorney
Storrvik.”
- On 23 May 2003 the High Court, noting that the jury
had answered in the negative with regard to C's criminal guilt and in
the affirmative with regard to that of the other defendants,
acquitted C and convicted the other defendants. It sentenced the
second applicant and D to 9 years' imprisonment and the first
applicant to 11 years' imprisonment. The High Court's judgment
contained no summary of the assessment of facts in relation to the
jury's verdict, only a description of the facts in so far as relevant
for sentencing, which was decided by the professional judges.
C. Appeal to the Supreme Court
- Both
applicants appealed against the High Court proceedings to the Supreme
Court (the first applicant had also sought to appeal against the
sentence but was refused leave to do so), which on 22 January 2004
rejected their appeal, finding no incompatibility with the
requirements of Article 6 §§ 1 and 3 (d) of the Convention.
- In
his reasoning, approved in the main by the other four Justices
sitting in the case, the first voting judge, Mr Justice Tjomsland,
made, inter alia, the following statements.
- One
difficulty for the Supreme Court in reviewing the appeal was that the
High Court, contrary to the European Court's case-law, had proceeded
from the assumption that, as a co-accused, D had not been a “witness”
for the purposes of Article 6 § 3 (d) of the Convention. The
High Court had therefore failed to carry out an assessment of the
evidence according to the relevant criteria, notably the importance
of D's depositions in relation to other evidence in the case,
although this would have been difficult to do at such an early stage
of the proceedings.
- The
Supreme Court noted that extensive evidence had been adduced before
the High Court. The hearing had lasted for 18 days during which no
less than 40 witnesses had been heard. Documentary evidence and
statements related to the use of a number of mobile telephones
connected to the case had been of central importance. It was
difficult to say that the statements by D, the only accused who had
confessed to the offences, were an element of lesser importance
compared with the evidence seen as a whole. In his statements, D had
implicated the second applicant and, probably indirectly, also the
first applicant. However, his statements did not give any clear
negative picture of the latter individual.
- It
would be inconsistent with the purposes of proceedings involving full
examination at two judicial levels if the evaluation of evidence
carried out by the City Court should carry significant weight in the
assessment of the evidence before the High Court. In this regard the
Supreme Court pointed to the fact that C had been acquitted by the
High Court and that the High Court judges had based their findings on
certain points, in particular with respect to the transportation of
the drugs from the Netherlands to Kiel, on different facts than those
relied upon by the City Court.
- The
Supreme Court continued:
“The Prosecutor has pointed out that in her
directions to the jury, the High Court President had stated that, in
her opinion, there was no question of 'entirely dominant or crucial
evidence against any of the accused'. I find it difficult to place
particular weight on this factor. In addition, she had also said in
her direction to the jury that in her view the depositions would be
'only one of several elements in a consideration of whether the
accused are guilty'... As I see the case, I do not find it defensible
to draw any particular conclusion as regards the police depositions'
significance in the overall evidentiary picture presented to the High
Court. In view of the state of the evidence at hand, it may indeed
appear probable that D's confession was a more important element also
with respect to the other defendants' convictions than was his
deposition about their role. But the doubt that here obtains means
that, despite the other important evidence in the case, I must regard
it as 'a real possibility' that the reading out of D's police
depositions had 'decisive significance for the overall assessment of
the evidence' (see Norsk Rettstidende ('Rt')-2001-29).
In those instances where there is a real possibility
that the police statements would have a decisive influence on the
assessment of the evidence, the reading out of these would as a rule
have to be refused unless the accused has had an opportunity to put
questions to the witness (see Rt 1999-757).”
- The Supreme Court observed that in this case none of
the defendants had had an opportunity to put questions to D either
during the trial before the City Court or at any time prior to the
High Court proceedings. At the High Court hearing D had availed
himself of his right of silence. After his depositions had been read
out, the High Court president had, on a request by counsel for the
second applicant, asked D again whether he wished to give oral
evidence in full or in part. Thus the arrangement was that counsel
for the other defendants should have an opportunity to put questions
to D, but his unwillingness to give evidence had made a real
examination impossible. Under Norwegian case-law, the requirements of
Article 6 §§ 1 and 3 (d) of the Convention would be met if
the accused or his counsel had been given a formal opportunity to put
questions, even if the witness refused to reply, provided that the
proceedings considered as a whole were fair. In this connection
reference was made to Harri Peltonen v. Finland (dec.) no.
30409/96, 11.5.1999; Luca v. Italy, no. 33354/96, §§
40-45, ECHR 2001-II; and Craxi v. Italy (no. 1), no. 34896/97,
§§ 86, 5 December 2002.
- The
Supreme Court was satisfied that Article 6 §§ 1 and 3 (d)
had been respected as the defence had had an opportunity to put
questions to D during the trial, even though the latter had opted to
refuse to answer questions put to him. When the cases had been
joined, there had been no reason for believing that D would not reply
to questions at the trial. A complicating factor had been the
divergence of views among the defendants during the trial as to
whether the reading out of D's depositions should be permitted. To
separate the proceedings regarding D and to postpone the trial
concerning the other defendants until the case regarding D had been
finalised (and he could be required to answer questions as an
ordinary witness) would have entailed unreasonable consequences, both
from the point of view of elucidating the case and ensuring effective
administration of justice, and would enable defendants to obstruct
and protract trials unduly.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions on the reading out at a trial hearing of
depositions made to the police may be found in Articles 290 and 296
of the Code of Criminal Procedure, which deal respectively with
depositions made by an accused and by a witness:
Article 290
“Any reproduction in the court record or a police
report of any statement that the person indicted has previously made
in the case may only be read aloud if his statements are
contradictory or relate to points on which he refuses to speak or
declares that he does not remember, or if he does not attend the
hearing. The same applies to any written statement that he has
previously made in relation to the case.”
Article 296
“Witnesses who can give evidence that is deemed to
be of significance in the case should be examined orally during the
main hearing unless special circumstances prevent this.
At such examination any reproduction in the court record
or a police report of any statement that the witness has previously
made in the case may only be read aloud if the witness's statements
are contradictory or relate to points on which he refuses to speak or
declares that he does not remember. The same applies to any written
statement that the witness has previously made in relation to the
case.”
- The
above provisions are subject to limitations, which are not contained
in the Code of Criminal Procedure but follow from interpretations by
the Norwegian Supreme Court (see, in particular, a decision of
19 December 2003, reported in Norsk Retstidende 2003, p.
1808) in the light of the Convention case-law, which may be
summarised as follows.
(a)
As a general rule, witnesses must be examined “at a public
hearing in the presence of the accused”.
(b)
Exceptions may be made in special circumstances if, taken as the
whole, the proceedings are “proper and fair”.
(c)
The reading out of depositions may take place if the accused or his
defence is 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.”
Particular care should be exercised if a conviction is secured
“solely or to a decisive extent” on the deposition.
(d)
It is not a condition that the witness answers the questions asked by
the accused or his defence. A deposition may, as a rule, be read out
in court even if the witness invokes his right to remain silent, or
indeed chooses not to speak for other reasons.
- For
items (c) and (d) above, the Supreme Court referred to Asch v.
Austria (judgment of 26 April 1991, Series A no. 203, pp. 10-11,
§§ 27-28); Luca v. Italy (no. 33354/96, § 40,
ECHR 2001-II); and Craxi v. Italy (no. 1) (no. 34896/97, §§
85-86, 5 December 2002) and, for item (d), it also referred to Harri
Peltonen v. Finland ((dec.) no. 30409/96, 11 May 1999).
COMPLAINT
- The
applicants complained that the proceedings before the High Court had
violated their rights under Article 6 §§ 1 and 3 (d) of the
Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
- The
applicants alleged a violation of Article 6 §§ 1 and 3(d)
of the Convention, which read:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
...
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;
...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
(i) The applicants
- The
applicants stressed that, while an examination of D as a witness
would have been particularly important to their defence, their
respective convictions by the High Court had been based to a decisive
degree on D's depositions to the police which were read out at the
High Court hearing. Neither of the applicants, nor their counsel, had
been permitted to put questions to D in order to challenge the
reliability and credibility of his depositions, as D had availed
himself of his right to remain silent. The request to have the
proceedings postponed in order to have D summoned subsequently as a
witness with an obligation to testify had been rejected without good
reason.
- The
first applicant, whose counsel had not expressed any firm view on the
reading out of D's depositions, emphasised that this could in no way
be taken to mean that he had waived his rights under Article 6 §§
1 and 3 (d) of the Convention in relation to the evidence from
co-accused D before the High Court. The High Court record had
incorrectly rendered the order of comments made by the applicants'
respective counsel. In fact, counsel for the second applicant had
actually spoken before counsel for the first applicant, by prior
mutual agreement. Thus, since a protest had already been voiced by
the former, there was no need for the latter to repeat it. The fact
that counsel for the first applicant did not make the same requests
as counsel for the second applicant, only to receive the same answers
from the High Court, could not be regarded as an unequivocal waiver,
or even a tacit one, by the first applicant. The Court should be
extremely cautious in allowing waivers of human rights in criminal
proceedings to be anything but explicit.
- In
addition, the first applicant stressed that the fact that the
relevant criterion was an “adequate and proper opportunity”
in itself argued against the assumption that an opportunity as such
sufficed to meet the requirements. The right to an adversarial
procedure could not merely be a formal one but had also to be
effective, in practice as well as in law. By merely securing D's
presence, the authorities could not be said to have made every
reasonable effort and to have taken every reasonable step to ensure
that the witness in question could be examined.
- The
second applicant, whose lawyer had expressly protested against the
reading out of D's depositions, pointed out that this was a piece of
key evidence for the High Court, pertaining as it did not only to the
objective description of the course of events but also to mens
rea. The High Court found established a different course of
events than the City Court, which could in particular be traced back
to D's depositions. His evidence had been crucial because it had
contained specific accusations against the second applicant,
describing how he had handled the consignment of the drugs in Kiel as
well as his subjective knowledge of the sort of drugs involved.
- The
second applicant further submitted that, had the High Court applied
the Convention law correctly and treated D according to the rules on
the hearing of witnesses, the second applicant would have been given
an opportunity to ask questions and, for each question, D would have
been able to refuse to answer. This would have enabled counsel for
the applicants to clarify important aspects of the case to the jury
and also to give D an opportunity to consider whether he wished to
answer specific questions. However, the second applicant's lawyer had
been completely barred from asking any questions whatsoever before
D's depositions were read out. There was a significant difference
between being barred from questioning and being able to ask questions
of a person who, for each question, could have relied on the
privilege of silence.
- The
motive for asking D questions was that, in one of his statements to
the police, D had said that his deposition contained so many errors
that he saw no point in going through it any further. For the defence
it would have been vital to be able to ask D what he thought was
wrong with the record of his questioning, but the High Court
president did not allow counsel to address this specific and vital
question to D. In fact, not once during the proceedings did the
second applicant have an opportunity to ask D any questions. The High
Court ought to have permitted the questions and should have left it
to D to invoke his right of silence if he wished.
(ii) The Government
- The
Government disputed the above contentions and requested the Court to
find that there had been no violation of Article 6 §§ 1 and
3 (d) of the Convention in the present case.
- In
the Government's opinion, the central issue in the present case was
to what extent a co-accused's fundamental right to remain silent -
established by the Court in its own case-law - could interfere with
another co-accused's right under Article 6 § 3 (d) to examine or
have examined witnesses against him.
- Moreover,
referring to the Court's case-law (notably Mild and Virtanen v.
Finland, no. 39481/98 and 40227/98, §§ 46-47, 26
July 2005; and Mayali v. France, no. 69116/01, 14 June 2005),
the Government argued that the judicial authorities would have
fulfilled their obligations under Article 6 of the Convention
provided that they had made “every reasonable effort” to
secure the presence of the co-accused, or provided that the
co-accused had actually made an appearance but nevertheless refused
to answer any questions.
- In
the present case, the judicial authorities did in fact secure
co-accused D's presence at the High Court trial and did indeed
arrange for adversarial proceedings. However, they could not, and
should not, have influenced his choice as to whether to answer the
questions posed. To do so would have impinged on his right to remain
silent.
- The
Government further maintained that, provided that the proceedings as
a whole were fair, the requirements of Article 6 §3 (d) would be
met if the accused or his or her counsel at some point had been given
an opportunity to examine the co-accused. Thus, what was material for
the adversarial principle under the Court's case-law was whether the
accused had had access to examine the witness, not necessarily the
results of such an examination. This implied that a formal approach
had to be adopted in applying the adversarial principle, where the
decisive element was how the proceedings had been arranged by the
judicial authorities.
- Policy
considerations clearly supported this view. Were it to be held
otherwise, the co-accused could be put in a position where he or she
would be able to block the prosecution by not answering questions
from the defence (see Asch v. Austria, no. 12398/86) and also
to hinder compliance with the reasonable time requirement contained
in Article 6 § 1 of the Convention.
- Thus,
in the assessment of whether an accused had had a fair trial, the
behaviour of a co-accused ought not to be decisive. A right for the
defence to ask questions of a witness would rarely correspond with an
equivalent obligation or willingness on the part of the witness to
testify. Accordingly, so long as the juridical authorities gave the
defence an opportunity to examine the witness, the conditions for
adversarial proceedings were present, and thus the requirement under
Article 6 §§ 1 and 3 (d) of the Convention would be
satisfied. It was in fact the responsibility of the State, not the
witness, to secure the fulfilment of the guarantees in Article 6.
- Furthermore,
regard was to be had to the necessity of witness protection. If the
position taken by a witness in relation to whether or not to appear,
or whether or not to answer questions posed, were to influence the
assessment as to whether the obligations under Article 6 §§1
and 3 (d) were satisfied, a considerable amount of pressure could be
exerted on him or her.
- The
Government also pointed out that, in cases involving several
co-accused, joint proceedings were normally the best approach in
order to secure a fair hearing as well as consistency in their
treatment.
- Finally,
as long as the obligations under Article 6 §§1 and 3 (d)
had been met and the defence had been given an adequate and proper
opportunity to cross-examine the witness, then allowing the reading
out of testimonies, taken together with all other evidence in the
case, was the course most likely to result in secure judicial
rulings.
- Accordingly,
in the Government's opinion, as a matter of principle and provided
that the proceedings in issue as a whole were fair, the requirements
of Article 6 §§ 1 and 3 (d) of the Convention would be
satisfied if an accused was able to put questions to a co-accused,
even if the latter refused to answer them by referring to his or her
right to remain silent.
- Even
though the Supreme Court had used a different, and perhaps slightly
more restrictive criterion (“[I] ... must regard it as 'a real
possibility' that the reading out of D's police depositions had
'decisive significance for the overall assessment of the evidence”)
than the Strasbourg Court, the Government would not dispute that the
co-accused D's depositions to the police had been relied on to a
decisive extent by the High Court in convicting the applicants.
However, this point was not crucial since, in compliance with Article
6 §§ 1 and 3 (d) of the Convention, the co-accused had been
given an adequate and proper opportunity to challenge D's statements.
- Finally,
as regards the first applicant, the Government disputed his
submission that, in the light of the second applicant's protest, it
was not necessary for him to protest against the reading out of the
depositions. The Government emphasised that co-accused C and each of
the applicants took a completely different stance. If the first
applicant was opposed to the reading out, he should have expressed
this view, or in the alternative, he could have referred to the
submissions of the second applicant's defence counsel. This failure
to form an opinion and to express a view on the issue could be taken
as a tacit waiver. According to the Court's case-law, a waiver may be
inferred from the circumstances. At any rate, this omission ought to
be taken into account in assessing whether the proceedings as a whole
were “fair” under Article 6 § 1 of the Convention.
2. Assessment by the Court
- The
Court will determine the present case in the light of the principles
enunciated in its case-law (see, in particular, Lucà v.
Italy, no. 33354/96, ECHR 2001-II, §§ 37-43). In this
connection, it observes that the Government, and also the second
applicant, placed some emphasis on the considerations behind the
principle that the authorities are under an obligation to make “every
reasonable effort” to secure the appearance of a witness. The
Court considers that the appearance of a witness is a prerequisite
for the defence's opportunities to confront the witness. However,
there must also be a proper and adequate opportunity to question the
witness (ibidem, § 39).
- Turning
to the particular circumstances of the case, the Court notes from the
outset that only counsel for the second applicant protested against
the prosecution's request to read out D's depositions to the police
and requested adjournment of the case. Counsel for the first
applicant stated that “he did not wish to express a firm view
on whether reading out the statements should be permitted” (see
paragraph 10 above). After the High Court decided to grant the
prosecutor's request, counsel for the first applicant did not join
the request by counsel for the second applicant for postponement of
the proceedings (see paragraph 11 above). The Court considers that,
if the first applicant's counsel was of the view that it was
important for his case that D's depositions should not be read out,
one could, in principle, have expected him to have pointed this out.
- However,
the Court has taken note of the first applicant's explanation as to
the order of interventions, to which the Government did not object,
namely that counsel for the second applicant spoke first. Having
regard to the High Court's treatment of the second applicant's
objections and requests (see paragraphs 10 and 12 above), it appears
that it would have been futile for the first applicant to make the
same objections and requests. In these circumstances, the Court does
not find it established that the first applicant had waived
unequivocally, either expressly or tacitly, his Article 6 § 3
(d) rights.
- The
Court further observes that, as soon as D had declared his wish to
remain silent, the prosecutor requested, and the High Court granted,
authorisation to read out his depositions to the police (see
paragraph 10 above). In this respect the present instance is similar
to Lucà v. Italy (cited above, at §§ 13 to
15); and Craxi v. Italy (no. 1) (no. 34896/97, § 30,
5 December 2002), where the reading out was to be done if the
co-accused chose to remain silent. At no point during the process
until the prosecutor had read out D's statements were the applicants
given an opportunity to challenge and question D through
cross-examination. Rather than allowing the applicants' respective
counsel to put questions to D and plead their defence in the light of
D's replies or refusals to reply, the High Court gave the floor to
the prosecution so that it could read out D's depositions. Thus, D's
opting to exercise his right of silence had the effect of dispensing
him altogether from answering any question that the applicants might
have wished to address to him.
- This
appears to have been the situation also after D's statements had been
read out, when counsel for the second applicant made a reasoned
request to put a question to D. The High Court president responded
that, since D had invoked his right of silence, it would not be
permitted to question him directly. It is true that the president
nevertheless asked D if he wished to give oral evidence in full or in
part, and that D replied that he still did not wish to give oral
evidence even in relation to the specific question put to him by the
second applicant's counsel (see paragraph 12 above). However, even at
this stage, with the High Court president acting as an intermediary
filter between the second applicant as a defendant and D – here
as a witness, it cannot be said that the second applicant was given a
real opportunity to confront D (cf. Harri Peltonen v. Finland
(dec.) no. 30409/96, 11 May 1999).
- Furthermore,
the Court is not convinced that, had the applicants been afforded an
opportunity to question D directly, this could not have been
reconciled with D's right not to answer those questions that might
have incriminated him.
- The
High Court's interpretation of the law seems to have had implications
for its conduct of the proceedings in relation to the matter
complained of under Article 6 §§ 1 and 3 (d) of the
Convention. The Court cannot but note that the High Court considered
that, as a co-accused, D had not been a “witness” for the
purposes of these provisions (see paragraph 10 above). According to
the Supreme Court, the High Court appeared to have proceeded from the
assumption that the Convention limitations on the reading out of
depositions to the police did not apply to such statements made by a
co-accused (see paragraph 16 above). In the Court's view, this
interpretation by the High Court is hardly consistent with the
autonomous meaning of the term “witness” in the Court's
case-law, according to which the fact that the depositions were made
by a co-accused rather than by a witness is of no relevance (see
Vidal v. Belgium, judgment of 22 April 1992, Series A no.
235-B, pp. 32-33, § 33). It should be reiterated that, where a
deposition may serve to a material degree as the basis for a
conviction then, irrespective of whether it was made by a witness in
the strict sense or by a co-accused, it constitutes evidence for the
prosecution to which the guarantees provided by Article 6 §§
1 and 3 (d) of the Convention apply (see Lucà, cited
above, § 41).
- The
Court finds no reason for adopting a different approach in this case.
Having regard to the findings made by the Supreme Court, it must be
presumed that D's depositions had a decisive influence on the outcome
of the case (see paragraphs 19 and 45 above).
- Against
this background, the Court is not satisfied that the applicants were
given an adequate and proper opportunity to contest the statements on
which their conviction was based.
- The
applicants were therefore denied a fair trial. Accordingly, there has
been a violation of Article 6 §§ 1 and 3 (d) of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant, but not the second, claimed compensation for damage.
This included:
(a)
570,557 Norwegian kroner (“NOK”, approximately
72,000 euros (“EUR”)) in respect of pecuniary damage on
account of his loss of salary (NOK 25,000 per month for a period of
21 months, plus 0.75% interest per month) as a result of his
unjustified detention;
(b)
non-pecuniary damage on account of the suffering and distress
occasioned by the violation, at an amount to be assessed by the
Court, not to exceed NOK 240,000 (approximately EUR 30,000),
corresponding to the flat daily rate of NOK 400 applied in Norway and
652 days spent in detention before the submission of the claim.
- The
Government were of the opinion that the question was not ready for
examination. Referring to the fact that the applicant was
subsequently convicted of other serious crimes, it was not evident
that there was a causal link between any violation and the damage
claimed by the first applicant. In any event, this matter would be
better dealt with by the national authorities after judgment by the
Court.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It cannot speculate on what the
outcome of the proceedings would have been had they complied with
Article 6 §§ 1 and 3 (d). Consequently, it dismisses the
applicant's claims under this head (see Lucà, cited
above, § 48; and Cöeme and Others v. Belgium [GC],
nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 155,
ECHR 2000-VII).
- Moreover,
with regard to his claim for non-pecuniary damage, the Court, having
regard to the case as a whole and to the possibilities for the
applicant to seek the reopening of the proceedings under national law
(see Bocos-Cuesta v. the Netherlands, no. 54789/00, § 82,
10 November 2005), considers that the finding of a violation
constitutes in itself sufficient just satisfaction.
B. Costs and expenses
- The
first applicant also claimed NOK 61,090 (EUR 7,720) for the costs and
expenses incurred before the Court. This included NOK 9,940 for his
first lawyer, Mr Elden, and NOK 48,300 (60 hours at an hourly rate of
NOK 805) for his second lawyer, Mr Staff, who replaced the former in
December 2005, and NOK 2,850 for translation costs (the latter amount
is not inclusive of value added tax –“VAT”).
- The
second applicant sought the reimbursement of a total amount of NOK
44,312 (EUR 5,600), which comprised NOK 35,000 for his lawyer's work
with the case before the Court and NOK 9,312 for translation costs.
- The
Government did not object to the applicants' respective claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants EUR 7,800 and EUR 5,600
respectively for the proceedings before the Court, both amounts being
inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applications admissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 of the Convention with respect to both
applicants;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the first applicant;
- Holds
(a) that the respondent State is to pay the first and
second applicants, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 7,800 (seven thousand eight hundred euros) and
EUR 5,600 (five thousand six hundred euros) respectively in respect
of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
