P4 RADIO HELE NORGE ASA v. NORWAY
Inadmissible
Georg Ress;Mark Villiger
The applicant, P4 Radio Hele Norge ASA (hereinafter referred to as P4), is a radio broadcasting company established in Norway. The applicant company is represented before the Court by Mr. Kyrre Eggen, a lawyer practising in Oslo. On 5 March 2001 P4 applied for authorisation to radiobroadcast, in whole or in part, the main hearing (hovedforhandling) in a major criminal trial concerning charges against four persons of triple murder, the so-called Orderud case, scheduled to take place before the Nes District Court (herredsrett) as from 18 April 2001. According to the applicant, this was probably the most spectacular and media-focused criminal case in Norwegian history. The case involved a son and his wife, the wife’s half-sister and a friend of the latter, who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner. The district court judge (sorenskriveren), who received the application on 26 March 2001, replied by fax: “APPLICATION FOR BROADCASTING The Orderud case Hereby rejected Nobody is granted such permission” The above decision was taken under section 131A (in its version as applicable at the relevant time) of the Administration of Courts Act 1915 (domstolloven). P4 appealed against this decision to the Eidsivating High Court (lagmannsrett) and requested it to quash the District Court’s refusal to broadcast and to give a new decision. The applicant maintained that there was no justification for refusing radio broadcasting from the lawyers’ opening statements and closing arguments and from the delivery of verdict. On 4 April 2001 the High Court dismissed (avviste) the appeal. In so far the procedure was concerned, it found no error which warranted setting aside the refusal. Regarding the substance of the decision, it held that this was a matter which by its very nature could not form the subject of an appeal (uangripelig). The High Court added incidentally that, notwithstanding this limitation on its own jurisdiction, it did not find that the disputed refusal conflicted with either the Convention provisions concerning the public character of judicial proceedings or those on freedom of expression. On 23 April 2001 the Appeals Selection Committee of the Supreme Court unanimously rejected an appeal by P4 against the High Court’s decision. The Committee’s reasoning could be summarised as follows. The Committee noted the absence, in section 131 (incorporating the provision of section 131A according to an amendment in 1999, which had not yet entered into force) of the Administration of Court’s Act 1915, of an express provision on the right to appeal against a refusal to broadcast, unlike sections 129 and 130 concerning respectively prohibition on reporting from judicial proceedings (referatforbud) and publication of judicial decisions. This suggested that section 131 decisions were not intended to be open to appeal. However, the Committee did not find it necessary to consider the applicant’s argument that a right of appeal would follow from Article 377 of the Code of Criminal Procedure (straffeprosessloven), since such a right could in any event follow from the fact that it had been claimed that a Convention right had been violated. In this connection the Committee mentioned the provisions of the Human Rights Act on the precedence of international human rights conventions over domestic law and Article 13 of the Convention on the right to an effective remedy for “arguable claims” of violation. The Committee noted a decision by the former Commission (Atkin and Others v. the United Kingdom, application no. 13366), which concerned complaints by two journalist under Articles 10 and 13 of the Convention about judicial orders to prohibit reporting and to hear a case in camera, rejected as manifestly ill-founded. It was found that the interference was justified for the purposes of Article 10 § 2 and that, absent an arguable claim of violation, Article 13 did not apply. The Committee further observed that the “arguable claim” criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under Norwegian procedural law was that the appellant’s claim of violation did not appear entirely unfounded. As regards the decision under challenge, the Committee, noting that the High Court had dismissed the appeal on jurisdictional ground, quoted its findings on the merits and upheld those findings. As regards the latter aspect, the Committee observed: “The Committee agrees with what has been stated by the High Court and points to the fact that the principle of publicity in Article 6 § 1 is to ensure democratic control of the courts, not the right of the public to receive information, and that the principle is preserved by the provisions on public hearing and the freedom to report in ... the Administration of the Courts Act. The Committee cannot see that the prohibition in section 131A, first paragraph, of the Act on, inter alia, recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under Article 10 of the Convention. It is recalled that the media are not excluded from, or imposed a duty of silence about, the proceedings. The Committee finds no support in the Court’s or the [former] Commission’s case-law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting. At last, it should be noted that, under section 131A, second paragraph, a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties.” In the meantime, on 18 April 2001 the trial started before the District Court. It was held in open court. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and picture were transmitted live and shown on a television screen. Section 131A, as in force at the material time, of the Administration of Courts Act 1915 (domstolloven) provided: “During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent. If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.” Article 377 of the Code of Criminal Procedure (straffeprosessloven) reads: “An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person, or by reason of its nature or a specific statutory provision is unchallengable.”