Remand in custody. The significance of denied access to underlying material from a foreign police authority and whether the gathering of evidence is contrary to basic Norwegian value conceptions.
The Supreme Court's Appeals Selection Committee's order 22 June 2021, HR-2021-1336-U, (case no. 21-088528STR-HRET), criminal case, appeal against judgment.
A (Counsel Knut-Erik Storlykken Søvik) v. The Public Prosecution Authority (Counsel Odd Skei Kostveit)
Justices: Skoghøy, Bull, Falch
Appeal dismissed in a 2-1 ruling.
The case concerned an appeal against a remand order by the Court of Appeal. The suspicion was based on information procured from communication monitoring carried out in the USA. The information was forwarded to the National Criminal Investigation Service (Kripos), and then passed on to relevant police districts for follow-up. The majority of the Appeals Selection Committee concluded that the grounds given for the order were not flawed. The majority also found that the method of gathering evidence did not imply that the use of the information was in conflict with basic Norwegian value conceptions or with Article 8 of the ECHR, since the users of the platform at least had to acknowledge that the police would assume that the platform was mostly used by criminal networks. The minority of the Appeals Selection Committee found that the Court of Appeal's reasoning was flawed due to the failure to discuss the fact that the evidence was based on communication monitoring by another country’s authorities and aimed at a person residing in Norway.
A united Appeals Selection Committee also found that the Court of Appeal was free to use the police’s extracts from the monitoring results although the court and defence counsel at this stage had not been granted access to the underlying material. During the initial phase, the FBI had opposed release of this material. The Committee stated that if the Norwegian police were prevented from taking action simultaneously with the police authorities of other countries because they could not even in the initial phase of the operation comply with a foreign police authority’s request for secrecy, it would be detrimental to the Norwegian police’s ability to investigate and bring such cases to trial. The Supreme Court has been informed that defence counsel now have access to the underlying material.
The Appeals Selection Committee's ruling gives guidance on the assessment of whether evidence gathered from communication monitoring by a foreign police authority may be used in Norwegian proceedings, and on the requirement of "equality of arms" when such information is used.