FURUHOLMEN v. NORWAY
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mr Morten Furuholmen, is a Norwegian national who was born in 1963 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo. In 2007 the applicant was appointed by Borgarting High Court to act as defence counsel before it of a person, Mr A., whom the Oslo City Court had convicted, inter alia, of aggravated ill-treatment of his former wife Mrs B. and had sentenced to two years and three months’ imprisonment. Mr A. had been charged under Article 219 of the Penal Code of having repeatedly over a period of four months subjected Mrs B. to violence, including tying a strap around her legs and/or feet and hanging her from the ceiling, hitting and kicking her and using a strangulation grip on her, and committing acts of violence using different objects; threatening to kill her and refusing repeatedly to allow her to leave the apartment where they lived. He had also been charged, inter alia, under Article 132A with putting pressure on Mrs B. to withdraw her deposition to the police and/or not to appear in court and/or to give a false statement. Mr A. had previously been represented by other counsel before the City Court. Mr A. disputed that such hanging as described in the indictment had taken place. In his written appeal submissions to the High Court the applicant announced that a reconstruction of the most serious incidents of violence would be necessary. After the Public Prosecutor declined this initiative, the applicant directed a formal request to the High Court to order a reconstruction of the alleged hanging incidents and additional investigative measures. On 26 September 2007 the High Court rejected the request for a reconstruction of the alleged hanging incidents on the ground that such a reconstruction was assumed to have little evidentiary significance compared to the other evidence in the case and which had been described in the City Court’s judgment. The High Court held the trial hearing from 18 to 29 October 2007. At the close of the hearing session of 25 October 2007 the applicant announced that he wished to present himself as a witness in the case in order to explain and show photographs from his own reconstruction of the hanging of the victim. The purpose was to prove that the hanging could not have taken place as stated by the victim. On 26 October 2007 the High Court, after hearing arguments from each side, unanimously rejected the applicant’s request, finding it obvious that the reconstruction performed by him had no value as evidence. The reconstruction had been carried out in the absence of the victim and the accused and without any representative of the prosecution or other independent persons who could monitor or control the manner in which the reconstruction had been done. Therefore, all that could be derived from the reconstruction was counsel’s own allegations, which were devoid of any evidentiary value. After the session of 26 October 2007, which had been held in the presence of the press and without any prohibition being imposed on referring to the proceedings, journalists invited the applicant to comment on the above-mentioned matter. He then made the photographs from the reconstruction available to the press, explained what the reconstruction showed and pointed out that it was absurd that the question of guilt was to be determined without this decisive material being made known to the jury. On 27 October 2007 the Dagbladet and Dagsavisen newspapers published reports on the private reconstruction that the applicant had unsuccessfully sought to have admitted as evidence. This included photographs, his explanations and his comments that the case was a “miscarriage of justice” (“justismord”), that if the evidence had been admitted he would have been able to demonstrate that the hanging had not taken place as described by the victim and that his client would have been acquitted. The Public Prosecutor was quoted as having stated that, by having sought to introduce the private reconstruction as evidence, the applicant had lost his professional distance to the case. On 29 October 2007 the High Court invited the applicant to explain his possible involvement in the above-mentioned media coverage. In a statement of 6 November 2007 he confirmed that he had been the source of the information published and acknowledged that this could be perceived by the High Court as unfortunate and apologised for that. However, he stressed that there was no reason to criticise him in this connection, even less any reason to view his conduct as having been improper. By a judgment of 8 November 2007 the High Court, sitting with a jury, convicted Mr A. on charges of aggravated ill-treatment under Article 219 of the Penal Code and two offences of obstruction of justice under Article 132A. It sentenced him to three years and six months’ imprisonment. For the assessment of the sentence, the High Court based itself notably on the following facts. Mr A. was a Norwegian citizen, thirty-four years of age, originating from Bangladesh. In 2005 he had married Mrs B., a Bangladeshi national (probably born in October 1988). The first incident of violence had occurred two weeks after the victim had arrived in Norway in March 2006. Mr A. had been irritated because Mrs B. had forgotten to move a bag of ice to a newly acquired fridge. Mr A. had shouted at her and - after his daughter had gone to bed- he had beaten her up. After this and until 25 August 2006, when Mrs B. had moved to a crisis centre for battered women, Mr A. had subjected her to violence on a number of occasions. The High Court further relied on the victims’ statement that on four occasions Mr A. had punished her by hanging her by her arms and legs. The hanging could last for an hour or more and had often been combined with blows delivered to her body and the soles of her feet. The last occurrence had been a few days before the victim had been helped to get to the crisis centre. The charges against Mr A. concerned aggravated, devious and in part dangerous physical and psychological abuse over time. The ill-treatment did not have an impulsive character but that of planned and systematic abuse. Some of the violence perpetrated had the character of torture, notably the hanging incidents and the blows to the soles of her feet. The ill-treatment had been unprovoked and had been perpetrated against a totally defenceless person who was in a relationship of dependence vis-à-vis Mr A. She was completely unfamiliar with the conditions of life in Norway and had nowhere to escape to. She lived in a constant situation of threats and fear with anxiety about further punishment. She feared being crippled for life or killed. She also feared being returned to Bangladesh as a dishonoured woman. Mr A. appealed to the Supreme Court against the High Court’s procedure and the sentence. In a decision delivered on the same date as the above judgment, the High Court imposed on the applicant a fine of 10,000 Norwegian kroner (NOK) for an offence against the good order of court proceedings (rettergangsbot). The High Court observed that publication of some of the evidence which the court had refused to admit to the case, before the case had been adjudicated, was unfortunate. Such publication could in principle contribute to influence the stance adopted by lay judges and jurors whilst pursuant to applicable rules of procedure only evidence that had been presented in court should be given weight. Where it was the defence counsel who has been the origin of the material being published, it could easily be perceived as an attempt to circumvent the courts’ decision to exclude the evidence and to influence the court extra-judicially. The High Court considered that such a conduct by a public official ought normally to be regarded as improper for the purposes of section 200 of the Administration of Court Act (domstolloven). The High Court found that the publication of the photographs, seen together with the applicant’s comments to the press, had amounted to an unacceptable attempt to influence the jury’s determination of the question of guilt. The applicant had conceded that his aiding and abetting of the publication had been unfortunate. The High Court concluded that the applicant had displayed improper conduct, which warranted severe criticism, and had done so with intent. The conditions for imposing a fine for an offence against the good order of court proceedings had been fulfilled and such a sanction should be imposed. The applicant appealed against the High Court’s decision to the Supreme Court, challenging the merits of the imposition of the fine. He also asked the Supreme Court to hold an oral hearing on the matter, referring to the important issues of principle it raised. Shortly thereafter the Public Prosecutor lodged a complaint against the applicant with the Norwegian Association of Advocates (Den Norske Advokatforening), alleging a breach of the code of ethics. The Association adjourned its examinations pending the outcome of his appeal to the Supreme Court. No further information has been supplied by the applicant regarding these proceedings. By a decision of 28 April 2008 the Supreme Court unanimously quashed the High Court judgment of 8 November 2007, finding that the latter had failed to ensure that there was sufficient understanding of the case, as required by Article 294 of the Code of Criminal Procedure. In the present instance, the High Court had good reason to seek better insight into the circumstances surrounding the hanging of the victim, a central aspect of the case. This could among other ways, have been done - taking the victim’s explanation as a starting point – by carrying out a form of technical reconstruction or by obtaining an expert evaluation of the technical and medical conditions. The defendant’s objections on this point had been presented so early in the procedure that, bearing in mind the importance of the matter, such investigations would not have entailed significant inconvenience. The fact that there was no further investigation of the technical and medical conditions surrounding the incidents of hanging of the victim meant that a central issue in the case had not been sufficiently clarified and thus amounted to a procedural error. Since there was a reasonable possibility that the error had had an effect on the substance of the judgment convicting Mr A., this part of the judgment ought therefore to be quashed. In view of this, and finding no reason to maintain the remainder of the High Court judgment, the Supreme Court quashed the judgment in its entirety. In another decision of the same date the Supreme Court unanimously dismissed the applicant’s appeal against the High Court order that he pay a fine for an offence against the good order of court proceedings. Mrs Justice Endresen stated the following reasons, which were upheld in the main by the remaining members. It was clear that a court-appointed defence counsel was to be considered a “public officer” within the meaning of section 200 of the Administration of Court Act. The decisive issue was whether the conduct at issue could be regarded as “improper”. This legal standard was applied in a number of cases; it only covered matters that were unlawful and worthy of punishment. The problem at issue in the present case had not previously been submitted to the courts. A starting point for the assessment should be the role of courts in judicial proceedings, namely to ensure the proper conduct of the proceedings and decide on the admissibility of evidence. A basic condition for the good order of judicial proceedings was that a court’s decision be respected even when a party perceived it as purposeless or unfair. The relevant statutory provisions contained detailed rules regulating the manner in which a party could challenge such a decision. Although, technically speaking, the High Court’s decision in this case only concerned whether the evidence in question could be adduced before it, the applicant’s indirect imparting of the “evidence” clearly was disloyal in relation to the High Court’s refusal to admit the evidence to the file. According to Article 305 the jury should only take into account evidence adduced at the trial hearing. However, this did not mean that one should be indifferent about attempts to influence the members of the jury in other ways, as done by the applicant here. Whether the applicant’ The criminal case against Mr A. had given rise to extensive comment in the press, which to a large extent affirmed that a particularly serious crime had occurred despite this having not been acknowledged by the accused. Whilst it was understandable that counsel for the defence felt a need to seek a better balance in press comments, this could hardly be given any weight in the assessment of the matter for which the applicant had been fined. What was of central importance in this case was not that counsel pleaded the case in the press but that he failed to respect the court’s decision regarding the admissibility of evidence. Nor could the provisions on free speech protection be decisive. The High Court’s decision had not been aimed at limiting free speech nor had it entailed any such limitations. The applicant had been free to criticise both the decision and to elaborate on his criticism by giving an account of evidence that he wished to adduce. He could have expressed his criticism immediately. It was only in respect of the evidence that had been dismissed that he had to await the jury’s verdict before voicing his criticism. The domestic laws of other countries went much further in prohibiting comments on evidence in pending criminal proceedings, without this having been considered to amount to a violation of Article 10 of the Convention. Also, “maintaining the authority and impartiality of the judiciary” was a legitimate aim that could justify interference with freedom of expression. Further guidance on what might be considered improper in the sense of section 200 of the Administration of Court Act could be found in Chapter 12, item 2.3.2 of the Regulation on Advocates, namely the advocate’s duty to display restraint in order to hinder the danger of influence on the jury. Section 200 contained a sufficiently clear legal basis for the fine imposed in the present case. Furthermore, the applicant’s freedom of expression had not been interfered with to any significant degree. Defence counsel has the role of defending his or her client’s interests in the best possible manner and should be able to enjoy a considerable margin of error in this regard so that his or her work would not be unduly hindered by a risk of sanctions. However, this consideration could not be given much weight in the present instance. By carrying out his own “reconstruction” based on his own allegations about how the victim’s statements should be understood and by presenting himself as a witness in the case, the applicant had abandoned the core of his role as an advocate. Moreover, since it was established that the applicant’s aim had been to influence the jury’s verdict by rendering parts of the dismissed evidence public, the case raised no difficult issue of principle. The applicant’s argument that the criticism against him had been unjustified as the dismissed evidence had been considered by the High Court to be without evidential value and consequently could not have influenced the jury, was beside the point. The criticism was justified already by his aims and his having shown disrespect for the court’s decision. Also, the fact that an item of evidence had been regarded as having no evidential value clearly did not mean that it would be incapable of influencing the jury, when presented by the press as decisive evidence and outside adversarial proceedings. Finally, as to the applicant’s submission that the imposition of a prohibition on him on publicising the dismissed evidence was futile in view of the absence of any prohibition on the press or third parties on referring to the proceedings, Mrs Justice Endresen observed as follows. This argument had a certain weight in relation to the importance of the fact that the evidence could have been brought to the attention of the jury. This was so, even though the weight of the evidence had been accentuated particularly strongly by counsel making the essence of it known immediately after the High Court had refused it. However, this argument did not alter the fundamental consideration that the court’s role in assuming leadership in the conduct of the proceedings must be respected by those who act at a professional level in the proceedings. Accordingly, the applicant’s conduct had been “improper” and warranted the imposition of a fine. Section 200 in Chapter 10 (entitled “Punishment for Offences Against the Good Order of Court Proceedings ...”) of the Administration of Courts Act read: “A public officer, legal representative, court assistant or privately appointed counsel, who is guilty of neglect or other improper matters during judicial proceedings .... may be punished by the imposition of a fine and may be liable to pay compensation in full or in part to the victim.”