CASE OF HAMMERN v. NORWAY
Violation of Art. 6-2
10. The applicant was born in 1949 and lives in Bjugn. 11. On 10 March 1992 the head of the social services in the municipality of Bjugn contacted the local police after having received reports from Botngård kindergarten indicating that the applicant, who was an assistant at the kindergarten at the time, had sexually abused one or more of the children there. Subsequently, a criminal investigation was carried out. On 13 March 1992 the applicant was interrogated. He denied the accusations. On the same date he was suspended from his post. 12. On 1 September 1992 the applicant was formally indicted with respect to various offences under Articles 195, 198 and 228 of the Penal Code (straffeloven) concerning the sexual abuse of minors, allegedly committed against two children at the kindergarten, and under Article 192 of the Penal Code with respect to one of them. On 12 October 1992 the indictment was extended to 14 children at the kindergarten and, on 21 October 1992, a new indictment was issued involving 15 children. On 9 January 1993 the indictment was again extended to offences of sexual abuse of 36 named children and an unknown number of children at the kindergarten. 13. On the latter date, 6 further persons were indicted for sexual offences in relation to the same matter: the applicant's wife, two employees at the kindergarten and the local sheriff. 14. As a result of the above, the applicant spent three periods in pre-trial detention – respectively 7, 7 and 32 days – a total of 46 days. In the course of the investigations, three searches were carried out at the applicant's home. 15. On 22 September 1993 the applicant was formally indicted under Articles 195, 198 and 213 of the Penal Code for having allegedly committed various offences of sexual abuse against 10 kindergarten children. 16. On the same date the charges against the six other accused persons were dropped. They later claimed compensation under Articles 444 to 446 of the Code of Criminal Procedure (straffeprosessloven). The local sheriff obtained a settlement of NOK 200,000 in compensation for non-pecuniary damage; the five others obtained a court order requiring the State to pay NOK 200,000 to each of them. The applicant's wife obtained, in addition, NOK 140,000 in compensation for pecuniary damage. 17. The applicant's trial took place before the Frostating High Court (lagmannsrett), sitting with three judges and a jury, over a period of 43 days, between 15 November 1993 and 31 January 1994. After the jury had answered all of the 25 questions relating to the indictment in the negative, the applicant was acquitted by a judgment of 31 January 1994. 18. The applicant subsequently filed a petition with the High Court, claiming compensation under Articles 444 to 446 of the Code of Criminal Procedure. The High Court, sitting with two of the judges who had taken part in the trial and a new judge (replacing the judge who had presided at the trial, disqualified from sitting in the compensation case), held an oral hearing between 13 and 15 February 1995. In its decision of 28 February 1995, the High Court ordered the State to award him the entirety of his claim of NOK 45,000 in compensation for pecuniary damage under Article 445, according to which provision such “compensation for special or disproportionate damage as a consequence of the criminal prosecution” could be awarded as was “reasonable in the circumstances”. Moreover, under Article 446, cf. 445, the High Court awarded him NOK 125,000 in compensation for non-pecuniary damage suffered as a result of the prosecution. However, on the basis of an assessment, the relevant parts of which are quoted in the Supreme Court's (Høyesterett) decision cited below (paragraph 23), the High Court rejected his claim for supplementary compensation under Article 444, it not having been shown probable that he did not commit the act which was the basis of the charge. The High Court referred to the evidence presented during the trial hearing between November 1993 and January 1994 and during the oral hearing in the compensation case in February 1995. 19. The applicant appealed against the High Court's decision of 28 February 1995 to the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg). He complained that the High Court's decision contained assumptions of criminal liability and that, consequently, it violated Article 6 § 2 of the Convention. He requested the Supreme Court to quash the High Court's decision. 20. By a decision of 8 June 1995, notified to the applicant by mail on 20 July 1995, the Appeals Selection Committee, considering that the applicant's appeal concerned the High Court's application of Article 444 of the Code of Criminal Procedure, rejected the appeal. 21. In its reasoning, the Appeals Selection Committee first recalled that in its decision reported in Norsk Retstidende 1994, p. 721, the Supreme Court had stated (at p. 725): “It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities for the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated the situation may easily arise that an acquittal is not sufficient to justify a compensation claim when the accused is unable to discharge this burden of proof. I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation case must be determined on an independent basis and the rules on evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting point opted for a solution whereby the financial burden caused by the institution of criminal proceedings, which are discontinued or which end with an acquittal, must be borne by the accused unless he is able to show that it is probable that he did not commit the act.” 22. The Appeals Selection Committee further recalled that in the above case the Supreme Court considered the relationship between the conditions for compensation under Article 444 of the Code of Criminal Procedure and the case-law of the European Court of Human Rights, in particular the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A). The Supreme Court concluded that the rules in Article 444 of the Code of Criminal Procedure were not, as such, contrary to Article 6 § 2 of the Convention. The Appeals Selection Committee affirmed that it would base itself on this view in its assessment of the present case. It further recalled that, in the 1994 decision, the Supreme Court had expressed the following view on the Sekanina judgment: “[In this case] decisive importance was attached to the reasoning in the particular case for rejecting the compensation claim. If in the reasoning for refusing compensation doubt is voiced as to whether the acquittal was correct or if the reasoning contains assumptions about criminal liability, then the relationship to Article 6 § 2 of the Convention would be problematic.” 23. Then the Appeals Selection Committee went on to state: “As pointed out by the prosecution in its reply to the appeal, the High Court had to justify why it considered that the conditions for making an award for compensation under Article 444 of the Code of Criminal Procedure had not been fulfilled. The Appeals Selection Committee must determine whether the reasoning of the High Court conflicted with the requirements of Article 6 § 2 of the Convention. The Committee refers to the fact that the reasoning must be formulated in the light of the conditions for compensation as mentioned above. It is further clear that the High Court ... was aware of the rules in Article 6 § 2 of the Convention, the European Court's Sekanina judgment and the 1994 decision of the Supreme Court. In its decision concerning compensation under Article 444, the High Court, after having quoted the provision, specifies the subject-matter of the case as follows. 'Following the High Court's acquittal, Mr Hammern is not guilty under the criminal law. This question has not been submitted to the High Court which will not deal with it. The present case is a compensation claim brought by Mr Hammern. The question is whether he, in view of the rules of evidence under the law of compensation, is able to show that he did not carry out the acts which were referred to in the indictment.' The Committee points to the fact that here the High Court clearly specifies that Mr Hammern is not liable under the criminal law. Furthermore it is specified that the compensation claim must be determined on the basis of the rules of evidence applying under the law on compensation. The High Court then concludes, against the background of the evidence adduced, that considering the case as a whole, Mr Hammern 'has not shown it to be probable that he did not carry out the acts which grounded the charge.' Moreover, in the concluding remarks, it is stated: 'When the High Court, considering the case as a whole, reached the conclusion that Mr Hammern had not discharged his burden of proof, account was also taken of the fact that the requirements as to the strength of the evidence must to a certain extent be adapted to the possibility which he has for showing that he [Mr Hammern] did not commit the acts.... Nevertheless, in the assessment, it is the usual rules on evidence which should apply....' In support of his submission that the High Court's reasoning contains assumptions about criminal liability, he points to certain intermediate passages in which the High Court states: 'Medical experts have in the light of their investigations reached conclusions which in practice imply a very high degree of probability that the 10 children referred to in the indictment have been exposed to sexual abuse. The medical experts have discounted the possibility of self-inflicted injuries, that the injuries are caused by pathological conditions or conditions at variance from the norm. As pointed out by the prosecution, the children themselves gave statements to their parents, during the judicial examinations and to a psychologist, about abuse by Mr Hammern. Through the video recording of the judicial examinations of the children, the Court has been able to see how the children expressed themselves. The Court has been able to apprise itself of how the children during the examinations changed their behaviour when presented with questions of sexual abuse. Nor does the following fact make it less likely that he carried out the acts for which he was charged: the children markedly changed their behaviour, inter alia, in the form of bedwetting, refusing or expressing fear about going to the kindergarten, several children had a sore crotch, sore abdomen and, on one or several occasions, blood on their underwear, circumstances which essentially occurred after Mr Hammern started to work at the kindergarten and which diminished after his departure. The High Court further finds it established that at the kindergarten it was possible to perpetrate such abuse without it being revealed either from a technical or practical point of view. In the aftermath, several of the employees at the kindergarten have pointed to a few surprising situations: for instance the governor's eyewitness evidence, her perception of the situation, when she came over to Mr Hammern while he was washing a child in the crotch under peculiar circumstances. The High Court does not find any reason to go further into the discussion about the possibility of paedophilia. It is not only the so-called real paedophiles who commit abuse against children. Nor can a diagnosis which excludes paedophilia be deemed accurate, or notional paedophilia be defined precisely.' Having regard to the fact that the High Court clearly specified that its assessment was confined to the compensation case which was to be determined on the basis of the rules of evidence applying in such cases, the Appeals Selection Committee finds that the High Court' s reasoning does not go further than is necessary to carry out a careful examination of the compensation claim and that it does not entail any infringement of the presumption of innocence laid down in the Convention. The Committee once more emphasises that a refusal to award compensation under Article 444 does not imply that the previous acquittal is being undermined. In the light of the foregoing, the appeal must be rejected.” 24. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant's guilt was not unanimous. The criminal system knows only two conclusions in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt. 25. Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted, or the prosecution discontinued. The provisions read as follows: “Article 444: If a person charged is acquitted or the prosecution against him is discontinued, he may claim compensation from the State for any damage that he has suffered through the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable. Compensation shall not be awarded when the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction. If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely. Article 445: Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal prosecution whenever this appears to be reasonable in the circumstances. Article 446: If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.” 26. In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446: “Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally concludes the case. The provisions of Article 318, first paragraph, shall apply correspondingly. If the case has been concluded without any judicial trial of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction. Otherwise the claim shall be submitted to the court that shall conduct or has last conducted any such trial. If the claim is submitted to the District Court or the City Court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the Court of Appeal shall also decide the question of compensation. On the hearing of the claim the court shall as far as possible sit with the same judges who decided the criminal case. In the Court of Appeal lay judges or the selected jurors who join the court pursuant to Article 376 e shall not take part unless the decision is made at the same court sitting as that at which judgement is pronounced in the case.” 27. Compensation after acquittal or a discontinued prosecution is not automatic and is not granted unless the conditions in the above-cited Articles are met. 28. When compensation is granted to persons considered innocent as they have been acquitted or the prosecution against them has been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation. In the present case the applicant was awarded compensation both under Articles 445 and 446. In addition the applicant requested compensation under the special provisions of Article 444, under which the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act of which he or she was charged. In the assessment of the latter, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue. 29. According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying with respect to liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the incriminated act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act grounding the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant's ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge. 30. It is not a requirement for obtaining compensation that the acquitted claimant adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion. 31. In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant must prove that on the balance of probabilities he or she did not carry out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force are not inconsistent with Norway's obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Official Norwegian Report), Erstatning i anledning straffeforfølgning (Compensation in connection with Criminal Proceedings), 1996: 18, pp. 20-22, 36, 5 2). On 15 May 2002 a Government Bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing inter alia the repeal of this condition.