CASE OF KASTE AND MATHISEN v. NORWAY
(Applications nos. 18885/04 and 21166/04)
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Conviction and sentencing of the applicants and of their co-accused D at first instance
B. Appeal proceedings before the High Court
“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:
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 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.”
C. Appeal to the Supreme Court
“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).”
II. RELEVANT DOMESTIC LAW
“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.”
“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.”
(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.
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
“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;
1. Submissions of the parties
(i) The applicants
(ii) The Government
2. Assessment by the Court
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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) 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.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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