Lawyers – appointment of defence counsel
Everyone charged with a criminal offence is entitled to have the assistance of a defence counsel at every stage of the proceedings. This means that the person applying to reopen their final conviction also has the right to have the assistance of a defence counsel, see the Criminal Procedure Act section 94 (1).
Defence counsel is not automatically appointed, nor will the costs necessarily be paid at public expense. According to the Criminal Procedure Act section 397 (2), the Commission can only appoint a public defence counsel for the convicted when “special circumstances” are present. The reason for this restriction is the Commission’s obligation to guide the convicted person applying to reopen their case, see the Criminal Procedure Act section 397 (1). In addition, the Commission has a secretariat which investigates the cases for the Commission, see section 398 (1) and section 395 (4). It is stated in the preparatory works (Ot.prp. nr. 70 (2000-2001) page 74) that because of the Commission’s obligation to give guidance to the convicted person and to investigate the case as much as possible before making a decision, the convicted person will in most cases not need a defence counsel. However, it is also stated that defence counsel might be needed in more complex cases or in cases where the charged person needs help to take care of their best interest.
The person who petitions to be appointed as a defence counsel must therefore argue why “special circumstances” are present, so that the Commission can assess whether the statutory conditions for appointment are met. Such petition is submitted to the Commission, and is decided by the Chair, the Vice Chair or the Administrative Deputy Head.
If the Commission appoints a defence counsel, the appointment will usually be limited to a certain number of hours, corresponding to the time needed for the defence counsel to present the factual and the legal sides of the review case, see also the Criminal Procedure Act section 394 (1). In some cases, the defence counsel might give an estimate of how much work is needed to assist the convicted person in the review case. The number of hours the defence counsel is appointed for may be increased if necessary and if the defence counsel in advance explains the need for more hours in writing.
If there is reason to believe that the convicted person was not criminally accountable at the time of the act, see the Penal Code (1902) section 44 and the Penal Code (2005) section 20, the convicted shall have a defence counsel, see the Criminal Procedure Act section 397 (2), and section 96 (7). In such cases, the defence counsel will be appointed without a time limit.
When sending an application for reopening on behalf of a convicted person, the form with the signature of the convicted must be attached.
Lawyers – appointment of counsel for the injured party
Aggrieved persons and next of kin have the right to be assisted by a lawyer at their own expense. The Commission may appoint a counsel for the injured party according to the Criminal Procedure Act section 397 (2) and section 107 a. Section 107b through 107g applies with the necessary changes.
A petition to be appointed as a counsel for the injured party must be sent to the Commission and state the grounds for appointment.
Lawyers – fees
The directive on fees (salærinstruksen) applies to lawyers appointed by the Commission. Payment will be made according to the established rates. The Commission’s decision regarding payment to the defence counsel is final, see the Criminal Procedure Act section 397 (2).