(May 14, 2020) On May 8, 2020, the Supreme Court of Norway overturned a decision to detain a man suspected of attempted murder because the pretrial detention hearing had been conducted remotely. (Supreme Court Decision HR-2020-972-U (sak nr. 20-065997STR-HRET).)
To limit the risk of spreading COVID-19, the court of first instance conducted an initial pretrial detention proceeding using remote technology, over the objection of the defendant. During the proceeding, the defendant appeared via video-link from the detention facility; the prosecutor from home; and the judge from the court. (Decision ¶¶ 4–5.) Following the proceeding, the court of first instance decided that the suspect could be held in pretrial detention until May 23, 2020.
The defendant appealed, arguing that Norwegian law did not give the court the right to hold the initial detention hearing via remote technology. (¶ 9.) The appeals court upheld the detention, and the Supreme Court gave leave to hear the case. (¶ 8.)
On March 28, 2020, the Norwegian government issued a regulation (FOR-2020-03-27-459) instituting temporary measures for the justice sector to prevent the spread of COVID-19, including a reduced right to in-person court hearings.
Under Norwegian law, suspects detained pending trial must be brought before the court no later than three days after the initial arrest. (§ 183 Straffeprosessloven [Criminal Procedure Act].) They also normally have a right to appear in person throughout the investigation, including the pretrial detention hearings. (§ 244 Straffeprosessloven; Decision ¶ 14.) However, the Criminal Procedure Act also allows for extensions of pretrial detentions to take place using remote hearings despite the objections of the defendant. (§ 185 st. 4 p 3 Straffeprosessloven.)
The new COVID-19 response regulation of March 28 extends the right to hold remote hearings to all cases when doing so is “necessary and justifiable” (nødvendig og ubetenkelig). Thus, the regulation could arguably on its face also cover the first pretrial detention hearing. However, as noted in the regulation, any Norwegian regulation, including the COVID-19 regulation at issue in the case, may not violate the Norwegian Constitution nor the European Convention on Human Rights. (§ 2 FOR-2020-03-27-459.)
The primary issue in the case was whether a first-time pretrial detention determination could be decided using a remote hearing on the basis of § 2 FOR-2020-03-27-459 when the defendant opposed the remote hearing.
Supreme Court Holding
The Supreme Court unanimously found that holding the first pretrial detention proceeding remotely when the defendant opposed such a measure may have violated the defendant’s rights protected under article 5(3) of the European Convention on Human Rights. (Decision ¶ 31.) Specifically, the Court found that the precedents of the European Court of Human Rights do not allow the court, absent a clear explanation to the necessity of the measure, to limit the defendant’s right to an in-person hearing.
The Norwegian Supreme Court cited the European Court of Human Rights decision Medvedyev et al. v. France:
The Court also notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment. (Medvedyev et al. v. France (application no. 3394/03) § 118, cited in Decision ¶ 23.)
The Court did not hold that a remote hearing may never take place in instances like the one in the present case, but it did find that a court must make an active evaluation and determination, weighing the risks of transmission of disease with the defendant’s rights, which had not been done in this instance. (Decision ¶ 31.) The case was thus remanded to the court of first instance to immediately determine if it is unjustifiable (uforsvarlig) to have the defendant appear in court because of the risk of spreading COVID-19. (¶ 33.)