Aboushanif v Norway, Communication No 1542/2007, CCPR/C/93/D/1542/2007 (2 September 2008)
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
The Author was convicted in the Sarpsborg District Court of fraud and several breaches of the Norwegian Act on Value Added Tax and the Norwegian Accounting Act in relation to restaurants he owned. He was sentenced to 20 months prison and ordered to pay damages to the State revenue and social security offices (which he was also convicted of defrauding).
The Author claimed that his rights had been breached because the Court of Appeal denied his appeal against the conviction without disclosing the reasons for doing so. Section 321 of the Norwegian Criminal Procedure Act provides that an appeal may be ‘disallowed if the court finds it obvious that the appeal will not succeed’. The only reason disclosed by the Court of Appeal for disallowing the appeal in accordance with s 321 of the Act was that it was obvious that the appeal would not succeed.
A majority of the UN Human Rights Committee noted that the decision to reject the appeal was unanimous, and subscribed to by three professional judges, and that the decision was itself later appealed and subjected to the scrutiny of the Supreme Court, albeit only on procedural grounds.
The Committee noted its previous view in Reid v Jamaica (Communication 355/1989), in which it held that while States parties are free to set the modalities of appeal, compliance with art 14(5) of the Covenant requires a court to review substantially any conviction and sentence against which an appeal has been lodged.
The Committee held that the failure of the Court of Appeal to provide any substantive reason for finding that the appeal would not succeed
puts into question the existence of a substantial review of the author’s conviction and sentence … in the circumstances of the case, the lack of a duly reasoned judgment, even if in brief form, providing a justification for the court’s decision that the appeal would be unsuccessful, impairs the effective exercise of the right to have one’s conviction reviewed as required by article 14, paragraph 5, of the Covenant. (at paragraph 7.2)
Prof Ivan Shearer provided a separate opinion which sought to clarify the meaning of ‘[a duly reasoned judgment] even in brief form’ in the views of the Committee majority. Prof Shearer was of the view that although art 14(5) ‘does not require courts of appeal … to state reasons at length’, the Court of Appeal should have ‘[h]owever briefly stated … indicate to the appellant the main reasons why the Court cannot entertain the appeal’.
Relevance to Victorian Charter
Article 25(4) of the Victorian Charter states that ‘[a]ny person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law’, which largely mirrors the wording of art 14(5) of the ICCPR.
The opinion of the Committee in Aboushanif v Norway may affect the interpretation of s 25(4) of the Victorian Charter. Like art 14(5) of the Covenant, the Victorian Charter does not specify any procedural requirements. However, applying the decision in Aboushanif v Norway to the interpretation of the Victorian Charter would suggest that implicit in the right to review by a higher court is the right to receive reasons for the rejection of an appeal. However, it seems that brief reasons, so long as they set out the main reasons for a decision on appeal, will be sufficient, and Victorian courts of appeal may not need to state their reasons at length.
Lachlan McMurtrie is a member of the Mallesons Stephen Jaques Human Rights Law Group