Resolution CM/ ResDH (2009)8 [1]

Execution of the judgments of the European Court of Human Rights

O. and Y. against Norway

(Application No. 29327/95 and 56568/00 , judgments 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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern breaches of the presumption of the applicants ’ innocence on account of judicial acts subsequent to criminal proceedings resulting in their acquittal (see details in Appendix) (Violations of Article 6, paragraph 1);

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

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, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2009)8

Information about the measures to comply with the judgments in the cases of

O. and Y. against Norway

Introductory case summary

These cases concern violations of the presumption of the applicants ’ innocence on account of judicial acts subsequent to criminal proceedings resulting in their acquittal (violations of Article 6§2). In the O. case the European Court found that the decision taken in 1995 by the High Court concerning the compensation claim by the applicant in respect of damage suffered as a result of the criminal proceedings was based on reasoning implying suspicion of criminal guilt despite the applicant ’ s acquittal. The High Court considered, on the basis of Article 444 of the Criminal Procedure Act, that it was not shown that it was probable that the applicant had not committed the offences with which he had been charged. According to this provision, as it stood at the relevant time, “if a person charged is acquitted or the proceedings against him are discontinued, he may claim compensation from the State for any damage that he has sustained as a result of the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge”. In the Y. case the European Court concluded that the language employed by domestic courts, which accepted the civil claim by decisions of 1998 and 1999, overstepped the limits of civil proceedings, thus casting doubt on the correctness of the applicant ’ s acquittal.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

O. v. Norway

29327/95

-

5,000 euros

52 euros

5,052 euros

Paid on 11 August 2003

Y. v. Norway

56568/00

-

20,000 euros

4,500 euros

24,500 euros

Paid on 11 August 2003

b) Individual measures

According to Article 407 of the Civil Procedure Act the applicants might request the reopening of the proceedings in question.

In the Y. case, the applicant requested the reopening of his trial on the ground that new facts existed in favour of his acquittal and that without the reopening of the proceedings it was impossible to redress the damages caused by the violation of the Convention found by the European Court . His request was rejected by a decision of 17 March 2005 of the Appeals Leave Committee of the Supreme Court. The Appeals Committee indicated in particular that the violation of the Convention was due to the fact that the decision of the High Court which dealt with the case cast doubt on the correctness of the applicant ’ s acquittal due to the language it used and that this doubt was not lifted by the Supreme Court. In consequence, the Appeals Committee considered that the consequences of the violation have been sufficiently redressed through the finding of a violation by the European Court and the awarding of a just satisfaction in respect of non-pecuniary damage. Moreover, the Appeals Committee found that the outcome of the proceedings would have been the same in the absence of a violation of the Convention. In addition, the Appeals Committee expressed its agreement with the finding of a violation of the Convention by the European Court and distanced itself from the way the High Court expressed itself.

The applicant in the O. case did not exercise his right to request the reopening of the proceedings at issue.

II. General measures

As regards the O. case, the government indicated that the provisions of the Criminal Procedure Act relating to compensation in connection with prosecution, including section 444, have been amended by Act No. 3 of 10 January 2003. According to this amendment, acquitted persons are no longer required, in order to obtain compensation, to prove that they had not committed the offences with which they had been charged.

As regards the Y. case, in the government considers that the publication and the dissemination of the European Court ’ s judgment are sufficient measures to prevent new, similar violations of the Convention. The violation of the presumption of the applicant ’ s innocence in this case was related exclusively to the reasoning of the High Court, upheld by the Supreme Court, casting doubts on the correctness of his acquittal, and not to the applicable legal provisions.

The judgments of the European Court have been 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 February 2003 . The judgments raised great interest in Norway , and were covered thoroughly in the main media. They have also given rise to public debates. Furthermore, articles on these judgments were published in the legal magazine Lov og Rett (No. 4/5 of 2003). Finally, the European Court ’ s judgments have been included in the electronic information notes published by the courts administration ( Domstoladministrasjonen ) which are regularly send to all courts in Norway ( cf. Medieblikk of 10, 12 and 17 February 2003)

III. Conclusions of the respondent state

The government considers that the consequences of the violation of the Convention found in the Y. case have been sufficiently remedied through the finding of a violation by the European Court and the payment of the just satisfaction awarded in respect of the non-pecuniary damage. As regards the O. case, no specific individual measure is needed in view of the fact that the applicant received the amount awarded by the European Court in respect of the non-pecuniary damage and that he had the possibility to request the reopening of the proceedings at stake. The government considers also that the general measures adopted 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 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies