It is welcome that both the Norwegian courts and the Ministry of Justice have followed up the decision by the UN Human Rights Committee of 17 July 2008 that the appellant has the right under article 14, paragraph 5 to have the Court of Appeal’s reasons for denying the appeal, cf. communication No. 1542/2007.
According to Norwegian case law37 courts can allow evidence against an accused even if the evidence is obtained through illegal means. The Court may further allow evidence obtained through illegal means even when the objective of the violated rule is to secure that the evidence is real. The Supreme Court38 stated that the more serious the charge, the more likely that the Court would allow illegally obtained evidence. In defence of permitting such evidence it was argued that the court would also allow arguments to the fact that the evidence was faked.
The example of this case indicates that it is a violation of the fair trial principle to allow evidence which is not obtained according to regulations that are supposed to secure that the evidence is real. Such evidence is especially unfortunate in serious criminal cases, where the consequences of a wrong judgement are greatest. It is not sufficient that the Defence is allowed to give counter-evidence, especially since there is no rule granting the Defence access to all the documents in the Police`s possession, for example all photographs. The police may choose the documents which they consider relevant for the Defence, and the Police are not obliged even to inform the Defence or the court about the existence of other documents. The Defence will therefore not know about documents which may have given basis for counter-evidence.
Recommendations to Norway:
Establish an absolute rule that forbids illegally obtained evidence in court.
Establish a rule granting the Defense access to all the documents in the Police`s possession.
Following the conclusions of both the Human Rights Committee in 2004 and the European Court of Human Rights in 2007 that the compulsory religious education subject39 in schools was in violation of the right to freedom of religion, the regulations of religious teaching in schools have been adjusted for better compliance. The Christian object clause of the Educational Act40 was altered from 1 January 2009, to downplay the Christian foundation of the teaching. This framework which the schools and kindergartens operate within is still not free of religious preferences. The statements of objectives in the laws on both schools and kindergartens mention humanity and Christianity specifically, with no reference to other religions or beliefs.
Furthermore, the content of lessons is still to a great extent left up to the teachers, there has been no systematic replacement of teaching materials and teachers have not received any concrete guidelines as to how to alter the teaching. The Norwegian Centre for Human Rights stated that:41 ”When the Educational Directorate to a large degree chooses to leave the practical implementation of the subject to the schools and teachers based on vague guidelines in the curriculum, it is hard to ensure that the legislator's intentions in the new decisions in the Educational Act are being fulfilled for each pupil and his or her parents. Consequently, there will still be a considerable risk of human rights violations.”
There is still a guiding principle that every child needs to have his or her religion strongly internalized before he or she is able to participate in dialogue with children of other religions. The government therefore holds that, because the majority of children have parents of Evangelical-Lutheran parents, the state schools must provide a thorough teaching in the Evangelical-Lutheran faith so that it is internalized. This is compulsory for all pupils. We hold that religious freedom can best be achieved if the basic religious teaching is done outside the compulsory school. In this way the compulsory teaching on religion can concentrate on dialogue and knowledge about all major religions and life stances.
Recommendation to the Committee:
To ask Norway how it ensures that the religious and ethical instruction in compulsory education organized by the state is genuinely objective and neutral for the individual pupil.
Recommendations to Norway:
Thoroughly examine the implementation of the new rules on religious and ethical instruction, to ensure that the rights of the child to freedom of religion are met.
Reconsider whether there is a need for explicitly highlighting the Christian belief in the statement of objectives in the laws on schools and kindergartens.