CASE OF KRISTIANSEN v. NORWAY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1984 and lives in Borgenhaugen. 6. On 18 September 2008 the Sarpsborg City Court (tingrett) convicted the applicant inter alia on a charge of attempted rape committed against Ms A during the night of 9 March 2008 in a car parked near a petrol station. At the time Ms A and the applicant had been seventeen and twenty-three years old, respectively. Together they had left a party at Mr C’s home in order to buy mineral water at the petrol station. The applicant had borrowed the car from Mr D, Ms A’s boyfriend. They had both attended a party at Mr C’s home one week before but they did not know each other. The applicant and Ms A had been sitting in the car talking and listening to music for a while before they had decided to return to the party. As the car’s battery was flat it would not start. The applicant had called a friend, Mr B, who worked as a taxi driver and who collected him and Ms A and brought them back to Mr C’s home. The City Court did not find credible the applicant’s explanation that he and Ms A had kissed and to a little extent touched one another voluntarily and that he had not forcibly attempted to rape her. 7. By a judgment of 5 February 2009, the Borgarting High Court (lagmannsrett), hearing the applicant’s appeal with a jury, convicted him on the attempted rape charge and sentenced him to one year’s imprisonment on account of this (and a number of other offences of which he had been charged in the same proceedings). It ordered him to pay 60,000 Norwegian kroner (NOK) (approximately 7,500 euros at that time) in compensation to Ms A for non-pecuniary damage. 8. In its reasoning the High Court described in detail how the applicant, after he had called Mr B (who could not come straight away), had attempted to obtain sexual contact with Ms A by force. It stated that in the beginning, when the applicant had tried to kiss and touch her, Ms A had told him that she was not interested because she was the girlfriend of Mr D and slapped the applicant. The applicant had not stopped, but had moved himself over to her seat and held her arms behind the neck support. Ms A tried to defend herself and after a while the situation involved into a fight between them, in which she had been physically inferior and had to come to terms with the situation. The applicant had had such control over Ms A that he was also able to call Mr B again and the fact that Mr B was on his way had not hindered the applicant from continuing, until the moment when the lights from Mr B’s car appeared. 9. The High Court also noted that Mr B had testified that he had not noticed anything conspicuous about Ms A; she had been cheerful and friendly and her clothes had not been in disorder. However, this did not suggest, in the High Court’s view, that she had not been exposed to sexual abuse causing a great burden on her. She had managed to pull herself together when Mr B had arrived. Her reaction had been expressed vis-à-vis others only when she and the applicant had returned to Mr C’s home, where Ms A cried and was in great despair. Her boyfriend, Mr D, had understood that something was very wrong. After opening herself gradually to him, she had explained what had happened. 10. During a pause in the oral proceedings before the High Court, after both Ms A and the applicant had been heard, one of the jurors –“J” – had informed the presiding judge of the High Court about her previous contacts with Ms A. When the hearing resumed after the break, the presiding judge informed the public prosecutor, counsel for the defence and Ms A’s assistant advocate (bistandsadvokat) about the matter. Counsel for the defence requested that J be disqualified from taking part in the further proceedings on grounds of lack of impartiality. Ms A’s assistant advocate (bistandsadvokat for offeret) supported counsel’s motion. The public prosecutor expressed understanding for the motion without taking a stance. 11. The applicant’s contestation of J’s impartiality was made with reference to section 108 of the Administration of Courts Act (domstolloven – see paragraph 23 below) and Article 6 § 1 of the Convention. According to the relevant court record, counsel for the defence had stated: “Counsel stated that he had been informed by the High Court’s presiding judge and the other members of the court, that [J] [who was a member of the jury] had informed the presiding judge that she was the foster mother of a child who had been a pupil in the same school class as the victim, and that she had had contacts with the victim in connection with birthday celebrations at her home. [J] thought that she could recall knowing that the victim had participated in class outings which [J] had attended as a parent. The presiding judge had further informed counsel that [J] did not have any further personal knowledge of the victim, but she had a personal view [bilde] of her as a calm girl. Last time there had been any contact between the victim and [J] dated far back in time.” 12. The High Court withdrew to deliberate on the issue and decided that J ought not to withdraw. It pointed out that a member might be disqualified if the person in question had particular reasons for identifying himself or herself with the victim or if there were any other circumstances to the effect that he or she had a prejudging attitude because of prior knowledge of the victim. However, that was not the situation in the present case. The High Court observed that “the jury member had formed a picture [bilde] of the victim from many years ago where she at the time had experienced her as a quiet and calm person”. However, it could not see that this was capable of influencing J’s attitude to the sustainability of the victim’s explanation and J’s assessment of the question of guilt in the case. In particular the contact had been sporadic many years ago and the High Court did not find that such a contact was capable of influencing, in one way or another, the assessment in the criminal case. The High Court had special regard to the fact that the parties to the case had requested that J recuse herself, but it found the absence of partiality so clear in this case that this could not be decisive. 13. Consequently, juror J took part in the entire trial before the High Court, including the jury’s deliberations and vote on the questions put to it by the presiding judge on the charge of attempted rape. After the jury had answered the questions in the affirmative and the professional judges had confirmed the jury’s verdict, she took part, together with the other two jurors selected by drawing of lots, in the deliberations with the professional judges on the question of sentencing and award of compensation of non-pecuniary damage to the victim Ms A. 14. The applicant appealed against the High Court’s procedure to the Supreme Court (Høyesterett), arguing that J’s participation had been incompatible with section 108 of the Administration of Courts Act and Article 6 § 1 of the Convention. 15. By a judgment of 26 June 2009 the Supreme Court, by three votes to two, rejected the applicant’s appeal. 16. The majority did not consider that J’s knowledge of the victim from her attendance at birthday parties and class outings with the victim in itself indicated an identification with the victim or weakened in any other way the confidence in J’s impartiality. It had involved sporadic contacts, not a personal knowledge, and the contacts dated several years back in time. Neither had counsel for the defence alleged before the Supreme Court that this was a sufficient ground for disqualification. 17. Nor could the mere fact that the juror in question had formed a picture of the victim disqualify her. When it was deemed acceptable that a juror may have some prior knowledge of a victim, it ought also to be accepted that the juror has formed a picture of the latter. Therefore, the question was whether the fact that the juror had stated this to the presiding judge and the matter had thereafter been repeated by the defence counsel in open court would bring the matter into a different light. 18. In the majority’s view, a statement that one had a picture of a young woman one had previously met when she was younger, as a quiet and calm girl, could hardly be perceived as an expression of an assessment of the person’s credibility or give the impression of identification with, or particular sympathies for, her. This was a neutral value judgment; an observation about the child’s inconspicuous conduct. It could possibly be maintained that one could draw the conclusion that a calm girl would hardly make a fuss without any justifications for doing so, which suggested that Ms A’s crying and despair after she returned after the drive was a sign that she had actually been exposed to an attempted rape. However, there was no basis for such a conclusion and there was in any event no reason for attaching weight to such a possibility. J’s information about Ms A had emerged after she had given evidence to the High Court for one hour. At that point, the jury, including J, had a good opportunity to form an independent and updated picture of the victim as a person. That defence counsel and the assistant advocate had requested that J withdraw could not be decisive. Accordingly, there were no particular circumstances capable of calling into doubt J’s impartiality for the purposes of section 108 of the Administration of Courts Act, as interpreted in the light of Article 6 of the Convention. 19. The minority considered that the assessment of the impartiality issue ought to take as a starting point that the case concerned a serious and stigmatising accusation against the defendant. There was a lot at stake for the victim, as she could easily perceive a verdict acquitting the defendant to mean that the jury believed that she had made an unfounded and serious accusation against the defendant. The minority shared the majority’s view (see paragraph 16 above) that previous contacts between the victim and J could not, of their own, disqualify the latter. What was decisive was whether J’s statement made after she had heard the evidence given by the accused and the witness describing the latter as a “quiet and calm person” would lead to a different conclusion. In this regard, the minority took as a starting point that the credibility of the victim was the decisive evidence in this case. An additional factor of lesser importance was how the surrounding persons had perceived the victim’s behaviour after the alleged rape attempt. 20. The timing of J’s statement was of considerable importance. For the persons present in court it could seem conspicuous that the juror, after having heard both the accused and the victim’s evidence, had not confined herself to informing about her previous contacts with A but had found it correct to add that she had experienced the victim as a “quiet and calm person”. The timing of J’s affirmation could easily have given the impression that J expressed a positive assessment of the victim. 21. Whilst a literal interpretation of “quiet and calm person” was not directly related to the credibility assessment, the affirmation was positively loaded and, when expressed just after the victim had given evidence, could at least easily have been perceived as if, according to J, one had to do with a person who would not make a fuss and thus would not make a false accusation about an attempt of rape. That J had expressed a view on how she had perceived her “at the time”, was of secondary importance. This was a nuance that could easily be overlooked by a person overhearing her statement and which, having regard to the timing, could hardly be perceived as a reservation with regard to A’s current character. 22. An important, albeit not decisive, consideration under section 108 of the Administration of Courts Act was also the fact that both counsel for the defence and the assistant advocate had demanded that J recuse herself. Under Article 6 § 1 of the Convention, “the standpoint of the accused [was] important but not decisive”; in this case the “fear” of lack of impartiality by the applicant had been “objectively justified” (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports of Judgments and Decisions 1996III).