Resolution CM/ ResDH (2009)88 [1]

Execution of the judgment of the European Court of Human Rights

Kaste and Mathisen against Norway

(Application No. 18885/04, judgment of 9 November 2006, final on 9 February 2007)

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 breach of the applicants ’ right to a fair trial due to a failure to secure attendance and examination of witnesses (violation of Article 6§§1 and 3(d)) (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 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;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of 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 (2009)88

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

Kaste and Mathisen against Norway

Introductory case summary

This case concerns the violation of the applicants ’ right to a fair trial in that they could not question directly one of the co-accused whose depositions made to the police had been read out at the hearing before the High Court at the beginning of 2003, the co-accused having invoked the right to remain silent (violation of Articles 6§§1 and 3(d)).

The European Court was not convinced that, had the applicants been given the opportunity to question the co-accused directly, this could not have been reconciled with his right to refuse to answer those questions that might have incriminated him. The Court observed that the High Court held that a co-accused could not be considered as a “witness” for the purposes of the provisions of the Convention. The Court, however, made it clear that, where a deposition served to a material degree as the basis for a conviction then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constituted evidence for the prosecution to which the guarantees provided by Article 6§§1 and 3 (d) applied. The European Court found therefore that the applicants were not given an adequate and proper opportunity to contest the statements on which their conviction was based (violation of Articles 6§§1 and 3(d)).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

13 400 euros

13 400 euros

Paid on 13/03/2007

b) Individual measures

In December 2006 and January 2007, the Criminal Cases Review Commission accepted both applicants ’ requests for the re-opening of the proceedings. The new proceedings against Mr. Mathisen ended with a judgment from the Norwegian Supreme Court on 3 December 2008. The new proceedings against Mr. Kaste are not finished yet. In both proceedings, the co-accused, who had invoked the right to remain silent in the sanctioned proceedings, was present in person and answered all questions from the prosecuting authority and the accused.

II. General measures

1) Legal context: The relevant provisions relating to the reading out at a trial hearing of the depositions made to the police are contained in Articles 290 and 291 of the Criminal Procedure Act. These provisions have been further interpreted by the Supreme Court in the light of the Convention case-law (Decision of 19/12/2003, reported in Norsk Retstidende 2003, p.1808). Upon examination, t he Royal Ministry of Justice and the Police considered it was not necessary to amend them. The judgment is by now considered as being known among legal practitioners in Norway and is taken into account by national courts when applying the Criminal Procedure Act.

2) Publication and dissemination: The European Court ’ s judgment has been published with comments on the web sites of the police and the prosecuting authority, on the web site of the courts and also in Norwegian version in the judicial database http://www.lovdata.no/avg/emdn/emdn-2004-018885-norge.html ). A letter containing more extensive comments on the judgment has been sent to all offices of the prosecuting authority and to all police districts, and it has also been published on their web sites. The judgment has been mentioned in several meetings and seminars and its implications have been described in several articles.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Norway has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 30 September 2009 at the 1065 th meeting of the Ministers’ Deputies