Information Note on the Court’s case-law No.
February 1996
Botten v. Norway - 16206/90
Judgment 19.2.1996
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Public hearing
Oral hearing
Fairness of criminal proceedings before Supreme Court: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.GOVERNMENT'S PRELIMINARY OBJECTION (NON-EXHAUSTION OF DOMESTIC REMEDIES)
Notwithstanding fact that applicant or his counsel did not raise themselves the matter complained of under the Convention, the Norwegian court could not be said to have been denied opportunity which rule of exhaustion was designed to afford to States, namely to put right the violations alleged against them.
Conclusion: objection dismissed (unanimously).
II.ARTICLE 6 § 1 OF THE CONVENTION
City Court had held a public hearing, the fairness of which was undisputed - appeal proceedings in Supreme Court included public and oral hearing at which applicant was represented by counsel - issue to be determined was whether applicant's right to fair hearing was breached inasmuch as Supreme Court had given new judgment under Article 362 § 2 of Code of Criminal Procedure without having summoned and heard him in person.
That Supreme Court was empowered to overturn acquittal by City Court without summoning and hearing defendant in person did not in itself infringe fair hearing guarantee - however, necessary to examine whether, in view of Supreme Court's role and nature of issues to be decided by it, there had been a violation in the particular circumstances - not for Court to express view on whether Supreme Court's interpretation of Norwegian law was correct or to substitute its own assessment for that of Supreme Court as to whether facts in City Court's judgment were sufficient to ground conviction.
On question of liability, even with reference only to main point in respect of which applicant was convicted, Court not persuaded that prosecution appeal raised exclusively questions of law - although facts relating to question of guilt established by City Court were undisputed, Supreme Court had to some extent to make its own assessment for purposes of determining whether they provided sufficient basis for convicting applicant - this was compounded by fact that serious questions were raised.
As to sentencing, Supreme Court had full jurisdiction to examine questions of fact and of law and had discretion to impose up to six months' military custody - in view of nature of offence, sentencing was, whatever the considerations relied on by Supreme Court, capable of raising issues going to such matters as applicant's personality and character - however, Supreme Court did not even have benefit of prior assessment by lower court.
Bearing in mind character of offence, no reason to doubt that outcome of proceedings could have adversely affected applicant's career.
Considering what was at stake for applicant, issues to be determined by Supreme Court when convicting and sentencing him could not, as a matter of fair trial, properly have been examined without direct assessment of evidence given by him in person - Supreme Court was under duty to take positive measures to this effect, notwithstanding fact that he neither attended hearing, nor asked for leave to address Supreme Court nor objected through his counsel to new judgment under Article 362 § 2.
Conclusion: violation (seven votes to two).
III.ARTICLE 50 OF THE CONVENTION
Costs and expenses: not necessary to make an award (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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