CASE OF KASTE AND MATHISEN v. NORWAY
Violation of Art. 6-1 and 6-3;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens
4. The first applicant, Mr Bård Kaste, and the second applicant, Mr Per Stian Tveten Mathisen, were born in 1970 and 1973 respectively and both live in Oslo. 5. 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 given a prison sentence of fourteen years, the second applicant twelve years and C six years. 6. 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. 7. In its reasoning in the first applicant’s conviction, the City Court based its decision on circumstantial evidence, notably on his and his cohabitant’s use of a mobile telephone, and its finding that there could be no doubt that the telephone in question, which used two specific pre-paid card numbers, had functioned as a means of communication in the operation and had played a central role in the case. 8. On 9 October 2002 the City Court, in separate proceedings, convicted a fifth person, “D” (who had absconded to the United States of America but later returned), in relation to the same offences and sentenced him to eleven years’ imprisonment. 9. 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 the application of the law with regard to the question of guilt. 10. In the appeal proceedings before the High Court, the prosecutor requested that D be heard first, before the other defendants, because the giving of testimonies in this order 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 order 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 transpired that D did not wish to give oral evidence. As to the procedure thereafter, the court record states: “The prosecution asked, with 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. [D]’s defence counsel, Mr Oscar Ihlebæk, had no objections to this. Mr Marius Dietrichson, defence counsel for [C], wanted the depositions to be read out. Mr Trygve Staff, defence counsel for [the first applicant], did not wish to express any particular opinion on the right to read them out. Mr 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 of a fair trial laid down in the European Convention on Human Rights, and would also be in conflict with the minimum rights contained in Article 6 § 3 (d) of the Convention, namely the right of the accused 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-out of [D]’s police depositions is permissible under Article 290. Reference is made to the Bjerke-Keiserud commentary [on the Code of Criminal Procedure], volume II, page 1012, from which the following citation is taken: ‘In the High Court an appeal against the assessment of the evidence may be joined to a limited appeal ... During the appeal hearing, all the accused will normally be present. The reading-out of their previous depositions must be done in accordance with 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 person giving the deposition himself. The procedure 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 [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 lodged a limited appeal in the case.” 11. The second applicant’s counsel then asked the High Court to adjourn 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 adjournment. 12. The prosecutor then 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 noted 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 put by Mr Storrvik.” 13. 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 nine years’ imprisonment and the first applicant to eleven years’ imprisonment. The High Court’s judgment contained no summary of the assessment of the 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 judges. 14. 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. 15. In his reasoning, approved in the main by the other four justices sitting in the case, the first voting judge, Mr Justice Tjomsland, observed, inter alia, that 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. 16. The Supreme Court noted that extensive evidence had been adduced before the High Court. The hearing had lasted for eighteen days during which no less than forty 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 whether the statements by D, the only accused who had confessed to the offences, were an element of minor 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 had not given any clear negative picture of the latter. 17. 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 were to 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 regarding certain points, in particular with respect to the transportation of the drugs from the Netherlands to Kiel, on facts different from those relied upon by the City Court. 18. The Supreme Court continued: “The prosecutor has pointed out that in her directions to the jury the President of the High Court 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 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 Retstidende 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).” 19. 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 to silence. After his depositions had been read out, the President of the High Court 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 were 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 May 1999; Lucà v. Italy, no. 33354/96, §§ 40-45, ECHR 2001-II; and Craxi v. Italy (no. 1), no. 34896/97, § 86, 5 December 2002. 20. The Supreme Court was satisfied that Article 6 §§ 1 and 3 (d) had been complied with 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 those questions. When the cases had been joined, there had been no reason to believe 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 of ensuring effective administration of justice, and would have enabled the defendants to obstruct and protract the trial unduly. 21. 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. “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 out 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 out 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.” 22. 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, Rt. 2003-1808) 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 a 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 answer 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. 23. For items (c) and (d) above, the Supreme Court referred to Asch v. Austria, 26 April 1991, §§ 27-28, Series A no. 203; Lucà, cited above, § 40; and Craxi, cited above, §§ 85-86; and, for item (d), it also referred to Harri Peltonen, cited above.