Trial lecture - time and place
Adjudication committee
- Professor Mads Andenæs, University of Oslo (leader)
- Professor Jon Petter Rui, University of Bergen (1. opponent)
- Professor Eva Smith, University of København (2. opponent)
Chair of defence
Supervisors
Summary
Norwegian custody practices have been under debate and has been subject to criticism, both nationally and internationally for a long time. In this thesis the right to personal liberty in the European Convention on Human rights, during the investigation of criminal cases, is analyzed together with Norwegian case law.
Fair balance and the principle of proportionality
Article 5 of the Convention guarantees the fundamental right to liberty and security. The right is of primary importance in a democratic society within the meaning of the Convention. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty save in accordance with the conditions specified in paragraph 1 of Article 5. The list of exceptions set out in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty. According to settled case-law from the European Court of Justice, the presumption under Article 5 is in favor of release. Until conviction, the individual must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable. Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention. Havre finds that detention pursuant to Article 5 § 1 (c), and art.5, § 3 embodies a proportionality requirement.
Today‘s practice is not in accordance with the convention
The European Convention on Human Rights applies to Norwegian law. The thesis shows the Norwegian courts does not fully apply the principles of proportionality, and shows therefore a model that can be followed to ensure that Norway grant the right to personal freedom - for all – also the one accused in a criminal proceeding.