Resolution CM/ ResDH (2011)235 [1]

Execution of the judgment of the European Court of Human Rights

Hammern against Norway

(Application No. 30287/96, judgment of 11 February 2003, final on 11 May 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the presumption of innocence in that suspicions were expressed in a court decision dealing with compensation for the applicant because of criminal proceedings engaged against him on charges of which he was eventually acquitted (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having noted that no claim for just satisfaction was submitted to the Court and that consequently no award of just satisfaction was made in the Court ’ s judgment (see details in the Appendix),

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of any just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)235

Information about the measures to comply with the judgment in the case of

Hammern against Norway

Introductory case summary

The case concerns a violation of the presumption of innocence on account of judicial decisions taken in 1995 subsequent to the applicant ’ s acquittal in criminal proceedings (violation of Article 6§2). The Court found that the decisions of 28 February 1995 of the Frostating High Court and of 8 June 1995 of the Norwegian Supreme Court, which had limited the applicant ’ s right to compensation for the damage suffered as a result of the criminal proceedings, were based on a reasoning clearly voicing suspicion of criminal guilt despite the acquittal (in application of Article 444 of the Criminal Procedure Act as worded at the time).

I. Just satisfaction and individual measures

The applicant ’ s lawyer submitted no claim for just satisfaction to the Court and the Court ’ s judgment did not deal with the question of the application of Article 41.

As regards the measures taken by the applicant subsequent to the Court ’ s judgment to obtain redress from national authorities, the government indicated before the Committee of Ministers that the applicant could receive redress by requesting reopening of the proceedings by either a civil or a criminal-law procedure.

The applicant indicated to the Committee of Ministers that he had been ill advised by his lawyer as regards the question of just satisfaction before the Court and that he wished to request compensation from the Norwegian Government.

New tort action

To this end, o n 12 December 2003 the applicant filed a new independent tort action against the Norwegian State . He did not request the reopening of the proceedings at issue. Instead he requested compensation for the costs and expenses incurred in the proceedings before the Court, expenses that he would have in order to clear his name and just satisfaction (non- ­ pecuniary damage) because of the violation of the Convention as determined by the Court.

The new tort action was rejected by the courts of first and second instance and finally, on 3 June 2005, by the Norwegian Supreme Court (Rt. 2005 p. 730). The Supreme Court found that the decisions of Norwegian courts criticised by the European Court were still valid and gave the compensation issue the statute of res iudicata . The Supreme Court added, however, referring to Recommendation (2000)2 [2] , that the possibility offered by the Code of Civil Procedure to request re-opening of proceedings seemed to satisfy the Convention ’ s requirement to provide redress. The Supreme Court also noted, however, that such an action was now time barred – see further below in connection with the second request for reopening of proceedings.

Complaint to the European Court

However, instead of requesting the reopening of the proceedings, the applicant sent a new application to the Court and alleged that Article 13 of the Convention had been violated because the Norwegian courts had refused to treat his claim for damages, inasmuch as it was a direct consequence of the judgment of the Court. On 1 June 2007 the Court (first section) rejected the application (No. 44125/05) by decision. The Court stated:

"In the light of the material available to the Court, and to the extent that the Appeal falls within the competence of the Court, the Court has under no circumstance found any fact that would indicate a violation of the rights and freedoms described and protected by the Convention and its Protocols" [3]

First requests for reopening

On 26 February 2007 the applicant requested the Norwegian Supreme Court to reopen the proceedings criticised by the Court, basing himself on the rules governing criminal procedure under which the time limit for such a request had not yet expired. In addition, he sought the reopening of the Norwegian Supreme Court ’ s decision of 3 June 2005 rejecting his new tort claims.

On 23 July 2007 (Rt. 2007 p. 1119) the Norwegian Supreme Court rejected the requests.

The request to reopen the two decisions questioned by the Court was rejected on the ground that the applicable rules were those relating to civil proceedings and that consequently the request had to be put before the High Court, and not the Supreme Court. The reopening request regarding its decision of 3 June 2005 was found to lack any legal basis.

Second request for reopening

On 16 August 2007 the applicant filed a new request of reopening, now under the rules governing civil proceedings before the High Court of Frostating . The request was rejected on 8 September 2008 as being out of time. The applicant appealed to the Supreme Court which, on 15 December 2008 (Rt. 2008 p. 1719) confirmed the rejection, as the time-limit set by the Code of Civil Procedure had been exceeded: reopening had to be requested within three months from the circumstances that substantiated the request, i.e. the European Court ’ s judgment of 11 February 2003.

The Supreme Curt noted, however, that the law provided a possibility to waive this three-month time limit in case of a non-deliberate breach thereof. Such a request had, however, to be made less than a month after the "opportunity [to seek reopening] arose". The Supreme Court found that in its earlier decision of 3 June 2005, rejecting the new tort action (see above) , the applicant had been made expressly aware of the fact that reopening under the Code of Civil Procedure was the right remedy. The fact that it had also noted such a reopening request appeared to be time-barred did not change the conclusion that as from the date of that decision the applicant had been informed of the correct remedy and had had the “opportunity” to request a waiver of the three-month time limit. As he had not done so within one month from the decision of 3 June 2005, the possibility to request a waiver had been lost.

The applicant ’ s further argument that the Norwegian state had a direct duty to pay him compensation independently from any procedural limitations was rejected, as the Supreme Court found that it was the complainant himself who had chosen not to request compensation before the Court and that the right to reopen the proceedings had clearly satisfied the right to an effective remedy as described in the Convention Article 13.

Subsequently, the applicant filed a lawsuit against one of his former lawyers (the lawyer who pleaded his case before the Court) and demanded compensation. A friendly settlement was reached in Oslo County Court on 13 October 2009. The content of the friendly settlement is not known to the Norwegian government.

II. General measures

The provisions of the Criminal Procedure Act relating to compensation in case of acquittal, including section 444, were amended, shortly before the Court ’ s judgment was rendered in the present case, by Act No. 3 of 10/01/2003. According to the amended law, it is no longer required, in order to obtain compensation for detention after acquittal, to prove that it is probable that the accused did not carry out the act that formed the basis for the charge of which he or she has been acquitted .

The judgment of the European Court was published on the Internet site of the Norwegian government ( www.odin . dep.no ) and sent out to judicial authorities in a press release by the Ministry of Justice on 11/02/2003.

III. Conclusions of the respondent state

The government considers in the light of the considerations above that no further individual measure appears necessary in this case and that the general measures taken will prevent other, similar violations. Norway has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] Recommendation R ec (2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights .

[3] Unofficial translation.