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153. In general, it should be noted that the guarantees covered by Article 14 and the corresponding articles of the European Convention on Human Rights now play a significant role in court proceedings. In particular, a number of Supreme Court cases address the right to examine witnesses, (cf. Article 14, paragraph 3 (e)) in relation to the reading out of statements made to the police, and questions relating to the right not to be punished twice for the same offence (cf. Article 14, paragraph 7). Regarding the latter, the Supreme Court has held that some administrative sanctions (e.g. increased punitive tax) cannot be followed by convictions for the same offence, and vice versa.
The right to be tried without undue delay
154. The amendments to the Criminal Procedure Act by Act of 28 June 2002 No 55 also included measures designed to reduce the overall time spent on the investigation and adjudication of criminal cases. These include the establishment of time limits for when the hearing shall take place in cases in which special diligence is required, i.e. in cases in which the person charged was under 18 years of age when the crime was committed, or is remanded in custody. In these cases the hearing shall, if there are no particular obstacles, be held within six weeks of the date on which the trial court received the case. As for the hearing in the Court of Appeal, it must take place within eight weeks (section 275).
The right to a hearing by an independent tribunal
155. The National Court Administration was established by Act of 15 July 2001 No 62, amending the1915 Act relating to the Courts of Justice. It is now the National Court Administration that carries out the administration of the courts of law, not the Ministry of Justice. The reform is in conformity with the proposal by the majority of the Court Commission in the official Norwegian report NOU 1999:19 (cf. paragraph 149 of Norway’s fourth report), and the purpose is mainly to make the separation between the courts and the executive branch more distinct. The Storting lays down guidelines for the administration and activities of the National Court Administration through its annual budgetary process. The King in Council (i.e. the Government, but not the Ministry alone) may make decisions on the National Court Administration’s work and administration of the Courts.
156. The procedure for appointing judges was amended by the same Act (sections 55a to 55c of the Act relating to the Courts of Justice). While appointments are still made by the King (i.e. the Government), this is done on the basis of a nomination made by the Nominating Council. The Nominating Council consists of seven members of whom three are judges, one is a practising lawyer, one is a publicly employed lawyer and two are non-lawyers. The members are appointed for a period of four years, and may be reappointed once. If the King (i.e. the Government) considers appointing a candidate who has not been nominated, the Nominating Council shall be asked to state its opinion on that candidate.
Reopening of cases
157. By Act of 15 June 2001 No 63 amending both the Criminal Procedure and the Civil Procedure Acts, the provisions regarding the reopening of cases as a result of a decision by an international body were strengthened. The reopening of a case may be requested not only when an international court, but also when the Human Rights Committee in a case against Norway, has held
- that the decision violates a provision of international law binding upon Norway, and new consideration of the case must be expected to lead to another decision, or
- that the court proceedings in the case violate a provision of international law binding upon Norway, if there is reason to believe that the procedural error has influenced the decision and reopening of the case is necessary to remedy the harm resulting from the procedural error.
158. The Norwegian Criminal Cases Review Commission was established by the same Act. The Commission consists of five permanent members. The chairman of the Commission is appointed by the King in Council for a period of five years and is not eligible for reappointment. The other members of the Commission and the deputy members are appointed by the King in Council for a period of three years and are eligible for reappointment. The Commission is obliged to provide guidance to any person who petitions for the reopening of a case so that he or she can safeguard his or her interests as fully as possible. The Commission shall of its own accord consider whether a person charged needs guidance. Five of its members, of whom three shall have a law degree, decide whether the petition shall be granted. If the Commission decides that a case shall be reopened, the case shall be referred for a full retrial by a court of equal jurisdiction to the court that has pronounced the judgement challenged. The provisions regarding the Commission entered into force on 1 January 2004
159. A person may apply for the Commission to review his or her case, but the Commission also has the power to make moves to reopen cases on its own initiative. The most common causes for such reviews are new evidence or circumstances that may lead to acquittal, or that the previous verdict is seen to contradict human rights. In the legislative amendment process, the Ministry of Justice and the police estimated that the Commission would receive around 100 applications the first year from people who wanted their cases to be reviewed. The number of applicants will probably exceed this during the first year.
160. The revision of sections 444 through 449 of the Criminal Procedure Act should also be seen in relation to the establishment of the Norwegian Criminal Cases Review Commission (see under Article 9 above). Previously, the courts handled cases regarding financial compensation in connection with a prosecution. These cases are now decided by a secretariat under the authority of the Ministry of Justice and the Police. Decisions of this secretariat may be reviewed by a court. The total amount of compensation awarded is expected to increase as a result of this.
161. Act of 21 March 2003 No 18 amending both the General Civil Penal Code and the Criminal Procedure Act contained a number of legislative amendments on the treatment of juvenile offenders. Their background and expected effect is described in the bill put before the Storting, Proposition No 106 (2001-2002) to the Odelsting. The reform includes inter alia the following:
- The police are obliged to investigate a case if the offender is more than 12 years of age (the age of criminal responsibility is still 15 years). When the investigation is terminated, the police may transfer the case to the child welfare service.
- The police may instruct a child suspected of having committed an otherwise criminal act and his or her parents to meet at the police headquarter for a talk in order to reduce the risk of further criminal acts. In this way, the child is made aware of the seriousness of what has happened, and his or her parents will be involved. The child and the parents shall be informed that they are not obliged to give an explanation, cf. the right not to incriminate oneself.
- If the suspect is under 18, the decision on indictment shall be made within six weeks from the time the person was considered a suspect.
- The prosecuting authority may prohibit a child under 15 from staying at a certain place if there is reason to believe that this would increase the risk of him/her committing an otherwise criminal offence.
- Taking part in mediation is made a possible condition for a suspended sentence. (Approximately 6500 cases are referred to the mediation services each year. Most of the offenders are boys aged 15-17, followed by boys aged 12-14. The most common offences are vandalism (18 per cent), violence (16 per cent), shoplifting (16 per cent) and harassment/threats (11 per cent).
Withdrawal of reservations
162. There have been no legislative amendments that make it possible for Norway to withdraw its reservations to Article 14, paragraphs 5 and 7. Reform of the Court of Impeachment is being considered (a proposal for amendment of the Constitution has been put forward by leading parliamentarians from various parties, see Proposition No 12: 1 (2003-2004) to the Storting, cf. Proposition No 19 (2003-2004) to the Storting), but this is unlikely to affect the principle that the judgements of the Court of Impeachment are final and cannot be reviewed. As regards conviction by the Supreme Court of a person who has been acquitted by a lower court, it should be noted that this happens rarely. The Supreme Court has stated that if, in exceptional cases, the question should arise of pronouncing a new judgement in stead of quashing an existing judgement, the appeal procedure must be prepared with a view to giving the person charged the possibility to be present during the Supreme Court’s hearing of the case, and to express his or her opinion (Norwegian Supreme Court Reports 1999 page 71 et seq.).