Resolution CM/ ResDH (2009)9 [1]

Execution of the judgment of the European Court of Human Rights

Ekeberg and others against Norway

(Application No. 11106/04, judgment of 31 July 2007, final on 31 October 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 lack of impartiality of the High Court on the ground of the participation. in the trial and sentencing of one of the applicants by a judge who had previously been involved in a decision to extend the applicant ’ s provisional detention (violation of Article 6, paragraph 1) (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 Norway ’ s 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;

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)9

Information about the measures taken to comply with the judgment in the case of Ekeberg and others against Norway

Introductory case summary

This case concerns a lack of impartiality of the High Court in that a judge, G., who took part in the trial and sentencing of the fourth applicant in 2003, had already been involved in a decision to extend the same applicant ’ s detention on remand in 2002 (violation Article 6§1).

The European Court found that the fourth applicant might have legitimate doubts regarding the impartiality of the appellate court in view of the decisive role played by professional judges, such as G., in appeal proceedings before a jury. It qualified as “tenuous” the distinction drawn between the role of the judge G. in extending detention on remand (a decision which must be based on a relatively firm presumption as to the applicant ’ s guilt; see Article 172 of the Code of Criminal Procedure), and the role played by the same judge when confirming or not the verdict of the jury.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court awarded no just satisfaction in this case.

b) Individual measures

When the European Court delivered its judgment, the fourth applicant was serving a 12-year prison sentence. As a consequence of the European Court ’ s judgment, the Criminal Cases Review Commission decided on 12/10/2007 to accept the applicant ’ s request for re-opening of his case. The case was transferred to the Supreme Court, which, in its decision of 19/11/2007, quashed the High Court ’ s judgment in the part concerning the applicant. In the same decision the Supreme Court ordered the release of the applicant as there was no longer a legal basis for his detention.

II. General measures

Given the direct effect of the European Convention in Norway , publication and dissemination of the European Court ’ s judgment to all competent courts should be sufficient to guarantee that the requirements of the Convention and the case-law of the European Court will be taken into account in the future, in order to prevent new, similar violations. In this context it should be noted that, according to the information provided by the Norwegian government (1/07/08), a summary of the Ekeberg judgment was published in Norwegian in the judicial database Lovdata ( http://www.lovdata.no/avg/emdn/emdn-2004-011106-2-norge.html ). The Lovdata database is widely used by those who practice law in Norway : lawyers, civil servants, prosecutors and judges alike.

The judgment has also been communicated to all courts and judges by an electronic letter sent by the National Courts Administration. In addition to a copy of the judgment, the judges have been provided with an explanatory note containing a summary of the decision of the European Court and detailing the consequences for the interpretation of the Criminal Procedure Act. The note underlines that the rule precluding a judge who has participated in a decision regarding detention under section 172 of this Act, from taking part in the main hearing in the same case also applies to cases heard by a jury, and not only to the presiding judge but also to the other professional judges.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant 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 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies