Initial remand in custody. The right of the person charged to appear physically before the court.
Order issued by the Supreme Court's Appeal Selection Committee 8 May 2020, HR-2020-972-U, (case no. 20-065997STR-HRET), criminal case, appeal against order.
A (Counsel Øivind Sterri) v. The Public Prosecution Authority (Counsel Marthe Notøy)
Justices: Kallerud, Thyness, Steinsvik
A person charged with attempted homicide or contribution to the same was remanded in custody in the District Court, which conducted a remote hearing in accordance with section 2 of Temporary Regulations 27 March 2020 no. 459 on simplifications and measures within the judiciary to mitigate the effects of the Covid-19 outbreak (the Corona Regulations). The person charged and his defence counsel had opposed a remote hearing. His appeal to the Court of Appeal was dismissed. The Supreme Court's Appeal Selection Committee stated that the right to be brought before a court upon an initial remand in custody is a basic due process guarantee. Section 2 of the Corona Regulations must thus be interpreted within the scope of Article 5 (3) of the European Convention on Human Rights and Article 94 (2) of the Constitution. The Committee did not further discuss the possibility to derogate from the right to be brought before a court in Article 5 (3) of the Convention, but mentioned that a condition would be that the court assess in each case of whether it is inappropriate for infection control reasons to conduct a remand hearing by other means than video conferencing. However, the necessity assessment of the District Court and the Court of Appeal was based on general infection control considerations. No individual assessment had been made. Thus, the Appeals Selection Committee did not have an adequate basis for examining whether the interpretation of Article 5 (3) of the Convention was correct. The orders of the Court of Appeal and the District Court were set aside.