CEDH · CASELAW;CLIN;ENG — 18 mars 2010

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Norway (dec.) - 53349/08 Decision 18.3.2010 [Section I] Article 10 Article 10-1 Freedom to impart information Fine imposed on defence counsel for disclosing to the press, before the jury’s verdict, evidence the trial court had ruled inadmissible: inadmissible   Facts – The applicant acted as defence counsel for a man charged with the aggravated ill-treatment of his former wife. At the trial, he requested permission to show photographs from a reconstruction he had organised with a view to proving that one of the alleged incidents could not have taken place. The court rejected his request as the reconstruction had been carried out in the absence of the victim, the accused, the prosecution or any independent observer and was therefore devoid of any evidentiary value. When interviewed by the journalists after the hearing, the applicant made the photographs from the reconstruction available to the press, explained what they showed and pointed out that it was absurd that the question of guilt was to be determined without this allegedly decisive material being made known to the jury. The following day, two newspapers published reports including the applicant’s photographs and comments. As a result, the applicant was fined approximately EUR   1,200. He appealed unsuccessfully to the Supreme Court. His client was convicted as charged. However, the conviction was quashed on appeal after the Supreme Court found that the trial court should have sought evidence, for instance, by staging a technical reconstruction or obtaining an expert evaluation. Law – Article 10: The fine imposed on the applicant had amounted to an interference with his freedom to impart information and ideas which was prescribed by law and pursued the legitimate aim of “maintaining the authority and impartiality of the judiciary”. While the trial court’s decision had not expressly prohibited the applicant from disclosing such material and comments to the press, as an advocate the applicant was under a duty to respect the court’s refusal to admit that evidence and to display restraint. The Court found no reason to call into doubt the domestic courts’ assessment that his actions had been aimed at influencing the jury and accordingly amounted to a disloyal attempt to circumvent the trial court’s decision. Whether he had in fact exerted such influence had not been decisive; it was his aim of doing so which had made his conduct an offence. Accordingly, in the Supreme Court’s reasoning it had been immaterial that the trial court had refused to hold a reconstruction. In the Court’s view, it could reasonably be considered that the disclosure of the information to the press had posed a real threat to the authority and impartiality of the judiciary.Moreover, the restriction on the applicant’s freedom to publicly criticise the conduct of the proceedings had related only to the evidence that had been excluded and there would have been no offence had he awaited the jury’s verdict. The limitation on the scope of the applicant’s freedom of expression had, therefore, not been significant. While the applicant’s client had successfully appealed against his conviction, the favourable outcome of the appeal had rather shed doubt on the appropriateness of his attempt to influence the jury extra-judicially. His conduct could hardly be regarded as compatible with the contribution that it was legitimate to expect lawyers to make to maintaining public confidence in the judicial authorities. Finally, the fine imposed, had not been particularly severe. The impugned interference with the applicant’s freedom of expression had been supported by reasons that were relevant and sufficient, and had therefore been proportionate to the legitimate aim pursued. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes