In 1999, the fundamental human rights conventions were incorporated in Norwegian law through the Human Rights Act.
Today the Act encompasses the European Convention on Human Rights (ECHR), the UN Convention on Civil and Political Rights, the UN Convention on Economic, Social and Cultural rights, the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women. In 2014, several of the fundamental human rights were also incorporated in the Constitution.
Our legislation must be in accordance with the human rights. If there is conflict here, the norms of national law must be set aside or interpreted restrictively to avoid conflict.
Human rights have played a central role in several Supreme Court decisions. By way of example is a case where the Supreme Court considered whether ECHR Article 8 and Section 102 of the Constitution concerning the right to privacy were obstacles to the use of surplus material from communication control as evidence (Rt. 2014, page 1105). In a criminal case on the killing of a protected goshawk, the Supreme Court considered the legal requirement in ECHR Article 7 (Rt. 2014, page 238). EHCR Article 10 on protection of freedom of speech was a key issue in a case concerning defamatory newspaper publicity (Rt. 2014, page 152).
Moreover, the Supreme Court has considered whether ECHR Article 6 and Section 96 of the Constitution concerning the right to a fair trial were obstacles to the prosecution of a dead person. (Rt. 2014, page 1045)
Private parties sometimes appeal decisions of the Supreme Court to the European Court of Human Rights, ECtHR, in Strasbourg. The Norwegian State, and not the Supreme Court, is then the counterparty. If ECtHr finds no reason to consider the case further, the case is declared inadmissible. If the case is admissible, the court in Strasbourg decides whether the Convention has been violated or not.
If ECtHr concludes that there has been a breach of a right under ECHR, the States are obliged to end the violation and to remedy its consequences as far as possible. This may mean that a case, where the Supreme Court has ruled contrary to the Convention, must be reopened, so that if possible a new decision may be made in accordance with the Convention.
Below are summaries of several decisions
21 December 2017
Public administration law. Reindeer husbandry. Cull order. Protection of minorities. Protection of property.
A young reindeer herder and leader of a siida unit, had received a government order to reduce his herd from 116 to 75 animals pursuant to the Reindeer Husbandry Act section 60 subsection 3. As opposed to the lower instances, the Supreme Court concluded that the cull order was valid. A majority of four justices found that the cull order did not violate the herder's rights under the UN Covenant on Civil and Political Rights (SP) Article 27. Although it was not possible to earn a profit with such a low number of reindeer, the herder was not entitled under SP Article 27 to any proceeds or profit in this case. Nor did he have any legitimate expectation of increasing his herd considerably, as there were already too many reindeer in the district when he became leader of the siida unit. The rules governing reduction were implemented in the interest of the reindeer herders as a group, and the cull was ordered on reasonable and objective grounds. It was also mentioned that the primary solution under the Reindeer Husbandry Act is that the siida itself may decide how to carry out the cull, while the smallest units may be spared by fixing a maximum number of reindeer per siida unit. The Supreme Court also unanimously concluded that the siida unit's rights under the ECHR P1-1 have not been not violated. Dissent 4-1.
The Supreme Court HR-2017-2428-A (case no. 2017/981), civil case, appeal against judgment
8 June 2017
Breivik´s appeal dismissed
Supreme Court HR-2017-1127-U, (case no. 2017/778), civil case, appeal against order.
7 April 2017
Criminal procedure. Compensation for expenses following acquittal.
In a major criminal case involving alleged tax evasion, the defendants, who were acquitted, had incurred major expenses for their necessary defence. Compensation for the expenses was claimed pursuant to section 438 of the Criminal Procedure Act. The Supreme Court, which heard the case in chamber, concluded that the government rates for payment of a publicly appointed defence counsel should be used, even though the defence counsel’s expenses had been significantly higher because the defendants had hired lawyers privately. Decisive weight was not given to the fact that this was a major and complex case, where the defendants had a reasonable need for specialist defence lawyer who operate at market price. Policy considerations did not provide the basis for a restrictive interpretation of Section 438 of the Criminal Procedure Act contrary to the wording. Nor was the scheme contrary to Norway's obligations under ECHR Article 6 to ensure fair trial.
Supreme Court HR-2017-753-A, (case no. 2016/2086), criminal case, appeal against order.
14 March 2017
Criminal procedure. Institution of proceedings to dispel suspicion. Surviving relatives.
Following the fire on the “Scandinavian Star” in 1990, a Danish person, who was also one of the fatalities, was suspected of having started the fire. The case was dismissed due to insufficient evidence. The surviving relatives of the suspect did not succeed with a petition for institution of proceedings pursuant to section 241 of the Criminal Procedure Act to dispel suspicion. The Supreme Court, which heard the case in chambers, concluded that only the suspect himself can file such a petition. The wording of the Act and the statutory system were deemed decisive. An extensive or analogical interpretation of the provision can also not be made. Such an interpretation cannot be based on the Constitution’s provisions on human rights or Norway’s Convention obligations, and important considerations argue to the contrary.
Supreme Court HR-2017-552-A, (case no. 2016/1516), criminal case, appeal against order.
20 December 2016
Law relating to personal capacity. Legal capacity.
The Supreme Court concluded that a woman who was a psychiatric patient should be deprived of her legal capacity with regard to financial affairs. The provision in section 22, subsection 2 of the Guardianship Act, which allows such intervention, needed to be considered even though it would be contrary to the UN Convention on the Rights of Persons with Disabilities, which has not been incorporated in Norwegian law. The provision is not contrary to section 102 of the Constitution of Norway or ECHR Article 8. In the specific assessment, the majority of three justices found that the statutory requirements relating to risk of significant loss in value of the assets were met, so that the woman had to be fully deprived of her legal capacity with regard to financial affairs. It was also stated that by being partially deprived of legal capacity with regard to financial affairs a separate decision could be made that the person under guardianship cannot incur debts. Dissenting judgment 3-2.
Supreme Court HR-2016-2591-A, (case no. 2016/1196), civil case, appeal against judgment.
16 December 2016
Labour law. Boycott. EEA law.
The Norwegian Transport Workers’ Union had notified of a boycott to force a Danish user of the port of Drammen to enter into a collective agreement with provisions on preferential right to loading and unloading work for stevedores affiliated with the Administration Office in the Port of Drammen. The Supreme Court, which heard the case in plenary session, concluded that the boycott was unlawful, because it had an unlawful purpose, cf. section 2, letter a) of the Boycott Act. Although the overriding purpose of the boycott was to protect workers’ interests, it involved an unacceptable restriction on the right of establishment under Article 31 of the EEA Agreement. The preferential right that was claimed also did not satisfy the requirement of a fair balance between the right of establishment and any basic right to boycott. The Supreme Court stated that section 92 of the Constitution must be understood as an obligation of the courts and other authorities to enforce the human rights at the level these are incorporated in Norwegian law. It was also stated that the EFTA Court's interpretation of EEA law could not be derogated from without there being good and weighty reasons for this. Dissenting judgment 10-7 (Rt. summary)
Supreme Court HR-2016-2554-P, (case no. 2014/2089), civil case, appeal against judgment.
27 September 2016
Immigration law. Revocation of residence permit.
Three Turkish siblings, born 1983, 1984 and 1985, were first granted temporary resident permits at 17 years of age and subsequently permanent resident permits on the grounds of family reunification with their father, who was then married to a Norwegian woman. In 2013, it was decided that the marriage was a marriage of convenience, and the father’s permits were revoked. In the subsequent case concerning the validity of the immigration authorities’ revocation of the siblings residence permits, the Supreme Court’s majority of four justices concluded that reference to the general principles of administration law in section 63 of the Immigration Act implied that the right to reverse an administrative decision pursuant to section 35, subsection 1, litra c) of the Public Administration Act applies in full, provided the basis for invalidity is objectively incorrect information. The fact that the siblings’ incorrect information about the father's marriage was given in good faith was therefore not decisive. The permanent resident permits could not be considered to be disconnected from the original grounds. If the original permits were based on an incorrect factual basis, the subsequent decision on permanent resident permits could therefore be declared invalid. The requirement of clear legal authority in section 113 of the Constitution, cf. section 102 of the Constitution and ECHR Article 8 was deemed to have been met. One justice dissented and believed that section 63 of the Immigration Act did not authorise revocation. Dissenting judgment 4-1 (Rt. summary)
Supreme Court HR-2016-2017-A, (case no. 2016/755), civil case, appeal against judgment.
30 August 2016
Criminal procedure. Physical examination. Unlocking of mobile phone.
A convicted party’s mobile phone had a keypad lock that could be unlocked by using the owner’s fingerprint. The prosecuting authority believed the phone could have been used to film or photograph the acts of violence the indictment concerned. The Supreme Court, which heard the case in chamber, concluded that section 157 of the Criminal Procedure Act did not allow forcible use of the defendant’s finger to unlock the phone. It was pointed out that the wording pointed indicated examinations with the aim of using the body or what might be in it as tangible evidence, not using the defendant's finger to gain access to evidence outside the body, which is not the same as a physical examination.
Supreme Court HR-2016-1833-A, (case no. 2016/908), criminal case, appeal against order.
18 May 2016
Immigration law Protection in another Dublin country ECHR.
A Somali woman who had been granted asylum in Hungary, travelled onward to Norway and sought asylum here. Her application was rejected without substantive discussion pursuant to section 32, subsection one, litra a) of the Immigration Act. The Supreme Court pointed out that the presumption that the first arrival country would meet its obligations under ECHR and the Dublin Regulation could be disproved. When returning an asylum seeker to another Dublin country, the Norwegian courts must consider the substance of an alleged breach of ECHR Article 3 so broadly and thoroughly as necessary to decide whether the allegation will be successful. In this specific case, where it was submitted to the Court of Appeal that she would not receive the necessary health care and assistance in Hungary, the Court of Appeal’s reasons satisfied the breadth and depth requirements that ECHR sets out for being able to conclude that return to Hungary would not constitute a breach of ECHR Article 3. The appeal against the Court of Appeal's judgment in favour of the claimant was dismissed.
Supreme Court HR-2016-1051-A, (case no. 2015/1857), civil case, appeal against judgment.
29 April 2016
Release on parole. Double punishment. ECHR.
The Correctional Services had refused a convicted person release on parole because there was reason to believe that he would reoffend during the probation period, cf. section 42, subsection 5 of the Sentences Act. The Supreme Court concluded that the refusal was not a new sanction that came under the ban on double punishment in Protocol no. 7, article 4 of the European Convention on Human Rights (P 7-4). It was pointed out that the domestic sources of law do not provide a basis for regarding the relevant refusal as a sanction, and that ECHR did not guarantee prisoners a right to release on parole. (Rt. summary)
Supreme Court HR-2016-910-A, (case no. 2015/1978), civil case, appeal against judgment.
19 February 2016
The Constitution of Norway. Retrospective effect. Pension adjustment. ECHR.
The former Act no. 61 of 12 June 1981 relating to pension schemes for members of Parliament was amended with effect from 1 January 2011. The pension-qualifying income, which previously corresponded to the members of Parliament’s wages at any time, was then amended so that it would be adjusted in accordance with wage growth and then reduced by 0.75 per cent. The Supreme Court dismissed a retired member of Parliament’s claim that the new adjustment provision was contrary to section 97 of the Constitution or ECHR Firs Protocol, Article 1-1. The Supreme Court took into account that new provisions on how an established position shall be practised, allow the legislator considerable leeway in relation to section 97 of the Constitution, as opposed to what applies when burdensome effects are linked directly to past events. State pensions enjoy greater protection against intervention than applies to rights under the National Insurance Act, but the Supreme Court found no evidence that the legislator had intended to give parliamentary pensions special protection. In this specific assessment, the Supreme Court emphasised that the change did not involve any particularly extensive intervention, and that the retrospective element was not particularly strong, even though the financial loss the change would entail, was clearly noticeable. The members of Parliament’s justified expectations must primarily have been linked to having a good and secure pension, an expectation that would still be satisfied, and not that the adjustment mechanism should remain unchanged. In the view of the Supreme Court, the social considerations behind the pension reform in 2009, such as economic sustainability, equality and a fair distribution between the generations, must weigh heavily in the overall assessment. The amendment was also not deemed to be a disproportionate intervention. ECHR P1-1 was therefore not applicable.
Supreme Court of Norway HR-2016-389-A, (case no. 2015/1740), civil case, appeal against judgment.
17 February 2016
Criminal procedure. Procedure. Police interview. Information to the accused.
An Englishman, convicted of complicity in the murder of a child, had confessed during a police interview in London. The interview, which was held without defence counsel present, was recorded on video. When the accused subsequently withdrew his confession, the video footage was shown during the main hearing at the Court of Appeal, cf. Section 290 of the Criminal Procedure Act. The Supreme Court stated that there was no doubt that prior to the interview, the accused had received sufficient information that he was a suspect and what the interview concerned, cf. Section 232 of the Criminal Procedure Act. He had also received sufficient information about his right to contact a lawyer, and his waiver of defence was adequately informed and clear. The right to have defence counsel present was not then violated, cf. Section 100, subsection 2 of the Criminal Procedure Act. On the whole, the circumstances surrounding the interview met the requirements of a fair trial, cf. ECHR Article 6. It was therefore not wrong of the Court of Appeal to allow playback of the video footage. The convicted person’s appeal against the Court of Appeal's procedure was dismissed.
Supreme Court of Norway HR-2016-379-A, (case no. 2015/1628), criminal case, appeal against judgment.
10 February 2016
Ground lease. Redemption of leasehold property.
In a reappraisal to determine the redemption price when buying out a leasehold property under section 32 of the Ground Lease Act, the Court of Appeal determined the redemption price on the basis of the 40 per cent rule in section 37, subsection 1, second sentence of the Ground Lease Act. The Supreme Court, which heard the case in the Grand Chamber, found that the 40 per cent rule was consistent with the landowner’s protection of property under the European Convention on Human Rights, Article 1 of Protocol 1, even if this resulted in a significantly lower payment than the full market value of the plot. It was pointed out that P1-1 allows the statutory compensation rules to be based on a distribution of the value that deviates from the formal ownership conditions and that the legislator has a wide margin of discretion here provided that the lessors’ interests are balanced against the other interests at stake. This condition, including the requirement to protect the lessors’ interests, was deemed to have been satisfied in the legislative process that had taken place. It was also pointed out that a consequence of the right of extension of the lease under section 33 of the Ground Rent Act is that it is the value of the right to the current ground rent, not the value of the plot, which shall be compensated when redeeming a leasehold property. The future ground rent was estimated to be just over NOK 400,000, while the redemption price was determined to be NOK 1,520,000. The lessors’ financial expectation of being able to use the leasehold property at the end of the term of the lease, was then considered protected by the 40 per cent rule, which gave them a sizeable share of the increase in value created socially. Redemption at the price determined by the Court of Appeal was not then a disproportionate interference in the lessors’ right of ownership, as this is protected under P1-1. The lessors’ appeal against the Court of Appeal's reappraisal was dismissed.
Supreme Court HR-2016-304-S, (case no. 2013/1929), civil case, appeal against judgment.
18 December 2015
Human rights. Freedom of information for the media. Surveillance video. Anonymization.
A man died during an arrest at Oslo Emergency Hospital. After the prosecuting authority had made a final decision not to pursue criminal proceedings against the two police officers and the emergency medical technician involved in the incident, the Norwegian Broadcasting Corporation (NRK) submitted a petition for access to the video of the event, captured by the emergency hospital’s surveillance cameras. This video was now part of the evidence in the criminal proceeding. The majority opinion of the Supreme Court concluded that denying access would constitute a violation of Article 10 of the ECHR, as well as Article 19, no. 2, of the ICCPR, and found in favour of the NRK. With reference to judicial precedents from the ECtHR and the Supreme Court’s ruling in Rt-2013-374, the court concluded that the freedom of information principle, as established by Article 10, no. 1, of the ECHR, could entail a duty to grant media access to information in cases that are of public interest, even though the article cannot be construed as a general freedom of information principle parallel to the domestic laws of the individual nation states. The court specifically pointed out that the case was of great public interest, that the video evidence was the material evidential basis for the decision to not pursue criminal proceedings, and that the principle of public access could no longer be preserved by hearings in court. The privacy of the individuals concerned could be protected by anonymization. Dissenting opinion: 3-2.
Supreme Court HR-2015-2536-A, (case no. 2015/1490), criminal case, appeal against judgment.
17 December 2015
Criminal Procedure. Communications control. Conversations with close associates. Deletion of recordings.
The prosecuting authority had charged a mother with aiding and abetting to gross human trafficking on the basis of information revealed in phone conversations she had had with her son. The information had been collected by way of communications control directed at her son. The Supreme Court, which heard the case in chambers, rejected a petition to delete the recordings that included the mother, cf. Section 216g, litra b), of the Criminal Procedure Act. Following a comprehensive review of the history of the act and its preparatory works, the majority opinion of the Supreme Court concluded that the provision establishes that the police in general has access to review recordings of material covered by the provision, unless it can be clearly established beforehand that the material includes conversations covered by Section 199 of the Criminal Procedure Act. Information gleaned from the review can be used to establish the suspicion required to retain the material pursuant to Section 216g, litra b), meaning that suspicion does not have to be established beforehand. The court furthermore pointed out that the phrasing “as soon as possible” does not refer to what is technically possible, but rather allows for a duration of time that is necessary to conclude whether the conditions for retaining the material have been met. Discretion must be applied in determining how long this is, depending on the complexity of the case and the scope of the communications control. Dissenting opinion: 3-2.
Supreme Court HR-2015-2526-A, (case no. 2015/1559), criminal case, appeal against judgment.
20 November 2015
Criminal procedure. Protection of sources. Documentary film.
During the investigation of a case relating to violation of section 147d of the Penal Code of 1902, the police seized unpublished film material from a documentary film producer, cf. section 197, subsection 2, second sentence of the Criminal Procedure Act. The film producer was working on a film to shed light on why Norwegian citizens allow themselves to be enlisted as foreign fighters in Syria. The Supreme Court revoked the seizure. The material could disclose unidentified sources, so that Section 125 of the Civil Procedure Act is applicable. When considering pursuant to section 125, subsection 2, the Supreme Court found that weighty social interests required that the prosecuting authority is given access to the material. On the other hand, it was pointed out that particularly strong protection of source considerations apply and that doubt about whether the protection of sources should be overridden, shall be set aside in favour of protection of sources. Based on the balancing of interests and the strong protection ECtHR has set up under Article 10 of the European Convention on Human Rights regarding unpublished material that may disclose unidentified sources, there were no grounds for allowing the protection of sources to be overridden.
HR-2015-2308-A, (case no. 2015/1462), criminal case, appeal against ruling.
21 October 2015
Criminal law. Sentencing. Drugs. Human rights Time limit for appearance in court following an arrest.
The punishment for possession of around 4.8 kg amphetamine was set at a term of imprisonment of 4 years and 10 months, cf. section 162, subsection 1 of the Penal Code of 1902, cf. subsection 1, first sentence. Following arrest, the convicted person was kept in an isolation cell for 4 days, and did not appear in court until after 52 hours, cf. Section 183 of the Criminal Procedure Act. The Supreme Court concluded that this did not represent a violation of CCPR or ECHR or the provisions of national law that could give grounds for reduction of the sentence. Before the trial, the convicted person had been subject to prolonged passport confiscation and a duty to report to the police and this gave some reduction in sentence.
HR-2015-02103-A, (case no. 2015/1005), criminal case, appeal against judgment.
26 August 2015
Execution of sentence. Transfer to closed prison Standard of proof.
It was decided to transfer an inmate of an open prison, who was suspected of drug crime in the prison, to a prison with a higher level of security, cf. section 14, subsection 4 a) and d) of the Execution of Sentences Act. The Supreme Court concluded that pursuant to the Act the preponderance of evidence is sufficient to determine that an inmate has committed a criminal offence and justify transfer to a prison with a higher level of security. Such transfer and the impact of this are also not of such a nature that the transfer can be considered as a punishment under Article 6 of ECHR. A stricter standard of proof can also not be derived from section 96 of the Norwegian Constitution or from ordinary civil procedural principles.
HR-2015-1757-A, (case no. 2014/2352), civil case, appeal against judgment.
1 July 2015
Criminal procedure. Appointment of public defender. ECHR.
The Court of Appeal had turned down a petition for appointment of a public defender in connection with a pending judicial examination of the defendant during the investigation. The Supreme Court, which heard the case in chambers, stated that Article 6 no. 3, letter c) of ECHR does not give a right to a public defender during the investigation to a greater extent than follows from Section 100, Subsection 2 of the Criminal Procedure Act. The condition of “special grounds” in this provision must be interpreted on the basis of the development – also internationally – in the view of the importance of assistance from a public defender during the early stages of the process. As the Court of Appeal had not attached importance to the considerations that indicate appointment of a public defender also during the investigation stage, the decision was based on an incorrect interpretation of Section 100, Subsection 2 of the Criminal Procedure Act. The Court of Appeal's judgment was overturned. Two Justices had their own grounds for the result. Code 26.2.
HR-2015-01405-A (case no, 2015/78), criminal case, appeal against judgment.
1 July 2015
Criminal procedure. Appointment of public defender. ECHR.
The Court of Appeal had turned down a petition for subsequent appointment of a public defender in connection with a police interview held where the public defender had been present. The Supreme Court, which heard the case in chambers, pointed out that the in its assessment of whether “special grounds” in Section 100, Subsection 2 of the Criminal Procedure Act were met, the Court of Appeal had not taken into account recent development on the view of the importance of a public defender being appointed in connection with interviews during the investigation. The decision was then based on an incorrect interpretation of Section 100, Subsection 2 of the Criminal Procedure Act. The Court of Appeal's judgment was overturned. Code 26.2.
HR-2015-01406-A, (case no. 2015/242), criminal case, appeal against judgment.
25 June 2015
Defamation. Freedom of speech. Protection of privacy. Compensation.
In an article, a newspaper had incorrectly accused a former manager of a football club of having aided and abetted tax evasion on behalf of the club. This was a contravention of the description of the offence in Section 247 of the Penal Code. However, the court found in favour of the newspaper as regards the claim for non-economic loss, as the majority of the Supreme Court concluded that the statements were not unlawful. The article dealt with a topic of significant public interest. The newspaper had a sound factual basis for claiming that the club had entered into an agreement that involved tax evasion, and there was a real possibility that the former manager had been involved in the agreement. The accusations were printed without the manager being given the opportunity to refute these, but the newspaper published his view online the same day and corrected the report in the printed newspaper the following day. The accusation had a somewhat guarded tone. Dissenting judgment 3-2.
HR-2015-01339-A, (case no. 2014/2312), civil case, appeal against judgment.
22 April 2015
Ground lease. Adjustment of ground rent.
In ground lease contracts entered into for a period of 40 years, in which the ground lessees had the option of renewing the lease for periods of 20 years at a time, the ground lessor could adjust the ground rent in accordance with the consumer price index every five years. Upon renewal, the ground lessor had the right to adjust the ground rent in accordance with plot value. At the time when the lease contracts were renewed, the rent had already been adjusted once in accordance with the consumer price index since the implementation of the so-called one-time increase as of 1 January 2002, cf. Section 15, Subsection 2, no. 2, of the Ground Lease Act. The Supreme Court concluded that this provision, in light of Protocol 1, Article 1 of the ECHR, allows the lessor to increase the ground rent one time, in accordance with the contract, regardless of whether the rent has previously been adjusted one or more times on the basis of the consumer price index. This entailed a change in the state of the law, as established by Rt-2007-1706 (Bøvre). The court pointed out that the legal authority has changed fundamentally as a consequence of ECtHR's judgment of 12 June 2012 in the Lindheim case (ECtHR application no. 13221/08), and that balancing interests, which the ECtHR greatly emphasized, will prove difficult if Section 15, Subsection 2, no. 2, of the Act is interpreted as such that the contractual right of ground lessors to make a one-time adjustment of the ground rent in accordance with plot value no longer applies. Grand Chamber decision.
HR-2015-00843-A, (case no. 2014/1539), civil suit, appeal against judgment.
15 April 2015
Criminal law. Sentencing. Double jeopardy. ECHR. Pollution. Car graveyard.
Pursuant to Section 73 of the Pollution Control Act, two persons had had coercive fines imposed on them of NOK 475,000 and NOK 350,000, respectively, for having kept a large number of vehicles and other objects on their property for many years, with considerable littering as a result. They were later charged with violation of Section 79, Subsection 1, litra a), of the Pollution Control Act for the same offense, and they were convicted in both the district court and the court of appeal. The Supreme Court found that the definition of criminal proceedings in Protocol 7, Article 4, no. 1, of the ECHR does not apply to the coercive fines. Consequently, the convictions did not conflict with the prohibition against double jeopardy. The Supreme Court made reference to the objective of coercive fines, which distinguishes them from punishment, and to the fundamental concern in imposing a coercive fine, which is whether it is necessary to compel compliance with the orders violated. Also, while the deadlines by which to comply were short, this did not entail that the fines imposed assumed the nature of a penal sanction. In the sentencing, the Supreme Court emphasized that car graveyards represents an environmental concern, and general deterrence concerns indicate that a palpable punishment be imposed. The actions of the persons convicted led to considerable littering, and they had failed to comply with orders to clean up. The Supreme Court upheld the sentence imposed by the court of appeal: suspended sentences of 45 days and 30 days, and fines in the amount of NOK 50,00 and NOK 30,000, respectively. Code 25.26, 26.1.
HR-2015-00791-A, (case no. 2014/2008), criminal case, appeal against judgment.
6 February 2015
Extradition. War crimes.
A man from Rwanda, who in that country had been charged with participating in genocide and crimes against humanity in 1994, was requested extradited from Norway. He has been resident here as a refugee since 1999, is married, and has three children here. The Supreme Court, which heard this case in chambers, based its assessment on the fact that basic human rights, as incorporated in Sections 102 and 104 of the Constitution, Article 8 of the ECHR, and Article 3 of the UN Convention on the Rights of the Child, are central to the interpretation of what constitutes “basic humanitarian considerations” pursuant to Section 7 of the Extradition Act, and that one must weigh society's interest in extraditing criminals on the one hand, against how such interventions affect constitutional individual rights on the other. The court pointed out that the crux of this assessment is the fact that it is in the interest of involved states that serious crimes are prosecuted in the country where the crimes were committed, and, in the case of genocide, this is an expectation and a condition of international agreements and conventions. The court stated that the right to respect for private and family life under Article 8 of the ECHR has limited validity in terms of preventing extradition in cases involving serious crimes, and that the threshold for giving the best interests of children absolute priority similarly must be very high in such cases. Given a specific assessment of the circumstances in this case, the court found no grounds on which to give the interests of the children absolute priority. Consequently, there were also no grounds on which to refuse extradition on the grounds of basic humanitarian considerations.
HR-2015-00289-A, (case no. 2014/1787), criminal case, appeal against order.
Judgment and order
29 January 2015
Immigration law. Civil procedure. Expulsion. Custody of children. Legal standing.
A Kenyan woman who remained in Norway illegally after her application for asylum was rejected, had an expulsion order imposed on her by the Immigration Appeals Board (UNE). At the same time, her application for a residence permit on the basis of family reunification with her five-year-old daughter, who is a Norwegian citizen, was also rejected. In a lawsuit brought by the mother and daughter, the Supreme Court found both decisions to be null and void, and rendered a declaratory judgment, establishing that the decisions contravened Article 8 of the ECHR. Initially, it was established that the daughter had legal interest, both in the validity suit and in the declaratory suit, cf. Section 1-3 of the Dispute Act. The fact that a potential convention violation might constitute a legal controversy without prejudice for subsequent litigation in a parallel validity suit, did not reduce the legal interest in obtaining judgment for convention violations. In the validity suit, the Supreme Court concluded that a procedural error had failed to establish the daughter as a party to the immigration authority's hearing of the case, and that the actual coercive situation the expulsion of her mother would create for the daughter, could not be equated to a decision to expel Norwegian nationals. The Supreme Court furthermore made reference to Sections 102 and 104 of the Constitution, concluding that the child's interests weigh heavily in any consideration of interests pursuant to Section 102 of the Constitution. In the assessment of this specific case, it was found that there were no alternatives to her mother's care for the daughter. The fact that the daughter is a Norwegian citizen, with the rights this status entails, is a key factor. Her care situation would be difficult if her mother were to move to Kenya with the child. The daughter's interests carried considerable weight in favour of allowing the mother to remain in Norway, and against the expulsion of her mother, who is her only care-giver. The circumstances on which the expulsion order was based, i.e. illegal residence in the realm and providing a false identity in her asylum application, could not outweigh these factors. Finally, the Supreme Court concluded that the immigration authorities' decision violated the daughter's rights pursuant to Article 8 of the ECHR.
HR-2015-00206-A, (case no. 2014/1583), civil suit, appeal against judgment.
18 December 2014
Criminal law. Administrative procedure Presumption of innocence. Live link examination.
In a conviction regarding drunk driving, where the person convicted claimed that someone other than himself had operated the vehicle at the time in question, but that he could not remember who this person was, the court of appeal concluded that it spoke against him that he could not identify the alleged other driver, in that he could, and ought to, have figured out who this person was. This imposed on the person convicted a burden of investigation and evidence that conflicts with the presumption of innocence, as laid down in Section 96, Subsection 2, of the Constitution, cf. Article 6 of the ECHR, and Article 14, no. 2, of the ICCPR. The court of appeal had allowed a key witness, who stated that she saw the person convicted driving the car, to give her statement by telephone examination. The Supreme Court remarked that it would have been unproblematic to make arrangements for the witness to give her statement to the court of appeal directly, and that this presumably would have given the court a significantly more accurate basis on which to assess the evidence than a telephone examination. Both of the above concerns were grounds on which to overturn the court of appeal's judgment.
Ref.: HR-2014-2472-A, (case no. 2014/1747), criminal case, appeal against judgment.
23 October 2014
Child welfare. Access. Abduction risk.
The court of appeal denied parents access to their daughter, for whom child welfare services had assumed care, cf. Section 4-19, Subsections 1 and 2, of the Child Welfare Act, Article 9, no. 3, of the Convention on the Rights of the Child, and Article 8 of the ECHR. Access was denied due to the abduction risk. The Supreme Court pointed out that special and compelling circumstances have to be present to deny access, and consequently, there must, in this case, be a real and present risk of abduction if access is carried out. It was not clear whether the court of appeal had taken this into account. Also, the facts of the case were not found to be sufficiently clarified to conclude that there was a real and present risk of abduction. The court of appeal's judgment was thus overturned.
Ref.: HR-2014-2068-A, (case no. 2014/1252), civil suit, appeal against judgment.
5 March 2014
Defamation. Damages for non-economic loss.
A man of Somalian origins who had suffered brain damage after having been knocked down was left behind by an ambulance that had arrived on the scene. One of the ambulance drivers brought a defamation action against the tabloid Dagbladet as a result of the paper’s presentation of the matter. The Supreme Court stated that the paper’s coverage of the matter was in the central core area of what is protected by freedom of speech. On the other hand, the case concerned serious accusations against a public official of grave and discriminating treatment of a patient, which makes it all the more important that the accusations against him are based on fact. It was also stated that this concerned a requirement as to general preponderance of probability for evidence of facts in the published material, that the threshold for acceptance for passing on statements is lower than for acceptance of the paper’s own opinions in commentaries and editorials and that the more concrete and precise an accusation is, the more factual evidence must be required. The paper’s accusations about unjustifiable treatment of a patient was on this basis found to fall within the scope of what was protected by freedom of speech. The paper also had sufficient factual grounds for citing witnesses’ accusations of racism, but the presentation of racist allegations in the paper’s commentaries and in an editorial were considered to be so serious as to not be protected by Article 10 of the ECHR. The amount of damages under section 3-6 of the Compensatory Damages Act was set at NOK 200 000. The judgment was passed with dissenting votes 4-1.
Ref.: HR-2014-445-A, case no. 2013/1300, civil appeal against judgment.
23 October 2013
The Constitution. Retroactive force. Fisheries law. Structural quotas. ECHR
The regulation relating to structural quotas for the deep-sea fishing fleet, as it originally read after the coming into force in 2005, contained no limit as to the number of years during which a vessel could be allocated such quotas. In 2007, the regulation was amended so that a time limit for the quotas was introduced. The Supreme Court majority of 9 judges concluded that the amendment of the rule did not imply any retroactive effect in conflict with Article 97 of the Constitution. The majority took for their starting point that this was a question of an infringement of an established legal position and that the norm for constitutional protection was accordingly whether the retroactive effect would be particularly unreasonable or unfair. In the assessment of reasonableness the point of departure was that the owner of a vessel that had been allocated a structural quota without any time limit based on the 2005 Regulation, and where the timeframe had now been limited to 25 years, could, objectively speaking, have strong expectations of retaining the quota without any time limit. On the other hand, importance was attached to the fact that the financial loss resulting from the time limit would not be very significant in view of the tax depreciation rules. The majority also considered it important that the shipping company would obtain advantages as a result of other elements of the established structuring regime, that the brunt of the effect would occur at some point well into the future and that the State should have considerable freedom to act when it comes to regulating the content of the fishing fleet’s framework conditions. The amendment to the regulation accordingly did not represent any particularly or clearly unreasonable or unfair infringement vis-à-vis the shipping company. Nor was the amendment in contravention of Article 1 of the 1st Protocol to the ECHR. The majority found that it was the control rule in paragraph 2 of the article that was applicable and that the infringement satisfied the proportionality requirement in this provision. A minority of 5 judges held that the amendment to the regulation was in contravention of the prohibition against retroactive effect in Article 97 of the Constitution. Another minority of 3 endorsed this position and furthermore held that the infringement was also in violation of Article 1 of the 1st Protocol to the ECHR.
Reference: HR-2013-2200-P, case no. 2012/1548, civil appeal against judgment.
18 October 2013
Criminal law. Protection of journalistic sources. ECHR
The special unit for police cases had submitted a request that a journalist be ordered to reveal the identity of a source who had made her an offer to buy police documents from the 22 July case. The Supreme Court, which decided the case in chambers, did not uphold the request. Since nothing had been disclosed as to the content of the documents, beyond the fact that they concerned the 22 July case, section 125 subsection 3 2nd sentence of the Penal Code was not applicable. The case was decided under section 125 subsection 3 1st sentence of the Penal Code, cf. Article 10 of the ECHR. The criteria in the Act about “weighty social interests” and “material importance for the clearing up of the case” were satisfied. Based on a concrete and overall assessment, the Supreme Court nevertheless held that the main rule about protection of sources in section 125 subsection 1 must be complied with. Importance was attached to the assumption that it was doubtful that the identity of the source would contribute to finding the police officer concerned and that the journalist had declined the offer.
Reference: HR-2013-2170-A, case no. 2013/1196, criminal appeal against Interlocutory Order
21 June 2013
Tax law. Access to documents. Section 3–4 of the Tax Assessment Act. Article 6 of the ECHR
In a comprehensive tax case, which was also under investigation as a criminal case, the tax payer’s request for access to documents from the Tax Administration’s internal processing of the case was denied. The Supreme Court stated that the e-mail correspondence between the official in charge at Tax West and a special advisor of the Tax Directorate were comprised by the exemption from the right to access to documents in section 3-4 no. 2 c of the Tax Assessment Act. The term ”the tax assessment administration” must be understood to be the same as “the tax assessment authority”. The preparatory works do not provide any basis for a restrictive interpretation. Section 18c of the Public Administration Act concerning access to factual information etc. is not applicable to the tax assessment administration. The exemption from right to access in section 3-4 no. 2 c is also applicable to expert advice from persons holding a public office and who voice an opinion in the name of the office. Working notes from an official from the Central Office – Foreign Tax Affairs, who belongs to Tax West, had been sent to both ØKOKRIM (the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime) and to the official in charge of the case at Tax West. Also these notes were subject to the exemption in section 3-4 no. 2 c of the Tax Assessment Act. Surtax is regarded as a penalty according to Article 6 of the ECHR so that the right to access must be fulfilled before a decision to impose a penalty tax is made. Since the Tax Directorate’s rejection of the request for access was made on a general basis without any concrete evaluation of the individual documents in relation to Article 6 of the ECHR, the decision was set aside for those document groups where the court did not find for the State.
Reference: HR–2013–1318–A, case no. 2012/1740, civil appeal against judgment.
25 APRIL 2013
Human rights. The State’s responsibility. Inadequeate protection. European Human Rights Convention.
In 1998, a man was convicted of violence against a woman with whom he had had a brief relationship. After having served the sentence he broke the restraining order on a number of occasions and subjected the woman for an extended period of time to threatening and frightening persecution which resembled mental harassment and terror. As a result of the persecution the woman’s quality of life was significantly impaired. The Supreme Court concluded that the State had not fulfilled its obligation under the EHRC to protect her from persecution from the perpetrator. Decisive importance was attributed to the fact that the police’s follow-up of the continued violations of the restraining order was highly inadequate and to the fact that two potentially very serious threats were not investigated in any detail. The acts of the perpetrator undisputedly fell under Article 8 of the ECHR. Whether it also fell under Article 3 was left as an open question.
Reference: HR-2013-881-A, case no. 2012/1900, civil appeal against judgment.
3 APRIL 2013
Immigration law. Refusal of residence permit. Validity of expulsion decision.
A Pakistani family consisting of mother and three children had legal residence in Norway during the period 1986 - 1997. In 2003, the family – now mother and four children – returned to Norway. The family’s new applications for residence were finally refused in 2010. At the same time it was decided to expel the mother. The Supreme Court quashed the family’s appeal against the Court of Appeal’s judgment. The Supreme Court majority concluded that the regard for “the best interests of the child”, cf. Article 3 of the Convention on the Rights of the Child, had been adequately evaluated and weighed in relation to immigration-regulating considerations as regards the one minor member of the family. The court also relied on the premise that the Immigration Appeals Board (UNE) was aware of the child’s earlier stay in this country. Nor could UNE’s decision be set aside as grossly unreasonable. The right to respect for private and family life, cf. Article 8 of the ECHR, had not been infringed given that UNE’s decision did not result in a splitting up of the family. The same applied to the right to respect for private and family life, the court finding that there was a clear difference between this case and the Butt case (EMD-2009-47017). Given that none of the family members had legal residence in the country, expulsion of the mother could not be regarded as a disproportionate measure vis-à-vis the other members of the family.
Reference HR-2013-704-A, Case no. 2012/886), civil appeal against judgment.
21 March 2013
Press access to tape recordings from the criminal proceedings against Arne Treholt.
During the criminal proceedings against Arne Treholt in 1985 the major part of the trial was tape recorded. In 2011, the press requested access to these recordings. The Court of Appeal denied the request. The Supreme Court held that the refusal to grant access represented an infringement of the freedom of expression according to Article 10.1 of the European Convention on Human Rights. Reference was made to the fact that the problem relating to access to tape recordings from a criminal case had not previously been submitted to the European Court of Human Rights, but that the court has relied on the premise that Article 10 must be interpreted to mean that it may be applicable to such a claim. In its concrete assessment the Supreme Court cited that the case generated great public interest, that parts of it were later strongly disputed and that the trial was for a large part conducted behind closed doors, which means that the general public has never had full access to the Court of Appeal’s evidentiary basis. It was emphasized that the decision did not entail that Article 10.1 should automatically be made applicable to potential requests from the press for access to the documents in criminal cases and that such access will depend on an assessment under Article 10.2 of the ECHR, a problem that was not pending before the Supreme Court. The Court of Appeal’s Interlocutory Order was quashed. Costs were awarded by analogy from section 20-2.1 of the Disputes Act.
Reference: HR-2013-641-A case no. 2012/1069, criminal appeal against Interlocutory Order
12 March 2013
Criminal procedure. Adduction of evidene. Confidentiality. Self-incrimination.
In a case concerning violation of section 219 of the Penal Code the Supreme Court concluded that written minutes of meetings between the child welfare authorities and the defendant were admissible as evidence in the matter. If the child welfare authorities were entitled to report the matter they were not subject to confidentiality as regards the contents of the minutes, cf. section 6-7 of the Child Welfare Act, in so far as the information in the minutes was likely to shed light on the issue of guilt. Given that the defendant hade made a voluntary statement to the child welfare authorities and admitted to violence against two of his children, it furthermore did not entail any breach of the prohibition against self-discrimination in Art. 6 no. 1 of the ECHR and Art. 14 no. 3 g of the ICCPR to use the minutes as evidence.
Reference: HR-2013-575-A, case no. 2012/1998, criminal appeal against an interlocutory order, and HR-2013-576-A, case no. 2013/330, criminal appeal against an interlocutory order.
21 December 2012
Administration law. Immigration law. Residence permit on humanitarian grounds. Declaratory judgment for breach of convention.
In a case relating to the validity of the Immigration Board of Appeals' refusal of an application for a residence permit for a family from Bosnia-Hercegovina who had children in Norway the Supreme Court's majority held that the Immigration Board of Appeals had relied on a correct understanding of section 38 of the Immigration Act in its evaluation of the question whether a residence permit should be granted. The decision satisfied the requirements as to reason in section 38 subsection 3 of the Immigration Act as these are specified in another plenary judgment of the same date in case HR-2012-2398-P. A court has a procedural right to deliver a declaratory judgment to the effect that a deportation violates Article 8 of the ECHR relating to the right to respect for private and family life. After having reviewed the European Court of Human Rights' judgment of 4 December 2012 in the case Butt v. Norway, the majority concluded that there were no such ”exceptional circumstances” that could constitute grounds for a violation of the convention when the duty to leave the country had been breached over several years. Unlike the ECHR and the ICCPR, the Children's Convention does not contain any requirement for an effective remedy in law at national level. It is accordingly not possible to deliver a declaratory judgment for a breach of this convention. Plenary decision. Dissenting votes 11-8 regarding the question whether it is possible to deliver a declaratory judgment for breach of the Children's Convention, 14-5 regarding the other issues.
Reference: HR-2012-2399-P, case no. 2012/1042, civil appeal against judgment.
Read the whole decision here.
21 December 2012
Public administration law. Immigration law. Asylum. Children. Courts' competence.
In a case concerning the validity of the Immigration Board of Appeals' refusal of the application for asylum and residence in Norway for an Iranian family with children who, at the time of the decision, had lived here for a long time, the Supreme Court's majority concluded, after an extensive review of theory, preparatory works of acts and case law that the review of administrative decisions shall in general be based on the facts at the time when the decision was made. Norway's human rights obligations do not give grounds for any other solution, including in immigration cases. The obligation to ensure an effective right of review under Article 13 of the EHRC is safeguarded through the system we have in Norway today. The Immigration Board of Appeals, which is to be regarded as a court of law according to the EHRC system, is required to hear requests for reversals based on new circumstances, and refusals to grant reversals may also be heard by the courts. Section 38 subsection 3 of the Immigration Act, according to which the child's bests interests shall be a fundamental consideration in cases relating to the granting of a residence permit on the grounds of strong humanitarian considerations or a special connection to Norway, shall be interpreted to mean that the consideration for the child's best interests shall carry significant weight. This is in conformity with Article 3 of the Children's Convention. Importance shall be attached to a connection that has developed while the child has been an illegal immigrant in the country. Immigration-regulating considerations, cf. section 38 subsection 4 of the Immigration Act, including derived consequences of a decision and the regard for the respect for the other rules of the Act may, however, carry so much weight that they must prevail over the consideration for the best interests of the child. However, the consideration for the child may, depending on the circumstances, nevertheless be so weighty that it takes precedence regardless of any other existing counter considerations. Section 38 subsection 1 of the Immigration Act does not allow for a right of judicial review of the administration's application of the conditions "strong humanitarian considerations" or "special connection to Norway". In cases under section 38 subsection 3 of the Immigration Act it must be clear from the decision that the regard for the child's best interests has been properly evaluated and weighed against conflicting considerations and carries weight as a fundamental consideration. Whether the decision satisfies these requirements may be examined by the courts. The concrete weighing of interests cannot be examined. A concrete review of the Immigration Board of Appeals' decisions showed that the consideration for the child had been duly evaluated and that there were no errors in the decision leading to invalidation. Decision in plenary. Dissenting votes 14-5.
Reference: HR-2012-2398-P, case no. 2012/688, civil appeal against judgment.
Read the whole decision here
22 October 2012
Criminal procedure. Prohibition against seizure. Lawyers’ duty of confidentiality. ECHR
In a case relating to the validity of a seizure the Supreme Court's majority concluded that material which the defendant has obtained according to instructions from his defence counsel, and which is intended for the defence counsel, is comprised by the prohibition against seizure in section 204 subsection 1, cf. section 119 subsection 1 of the Criminal Procedure Act. It is not necessarily a condition that the defence counsel has in actual fact become familiar with the relevant information. Decisive is whether the material was obtained as part of the defence counsel's assignment. In that case, the prohibition against seizure will apply regardless of from whom the defendant has obtained the material. Documents obtained which relate to the issues in the criminal case and contain advice or evaluation to be used in the defendant's preparation of his defence will be subject to the evidence prohibition under Article 6 no. 2 b and c of the ECHR even if the intention was not to hand them over to the defence counsel. A judge who, like the majority, voted in favour of quashing the District Court and the Court of Appeal'sdd interlocutory orders gave a dissenting vote concerning the rationale.
Reference: HR-2012-1987-A, case no.12/1389, criminal appeal against interlocutory order.
11 October 2012
Competition law. Cooperation for tenders. Administrative fine.
The Norwegian Competition Authority issued an administrative fine of NOK 2 million against a contracting company for unlawful cooperation for tenders, cf. section 29 cf. section 10 of the Competition Act. The Supreme Court maintained the Competition Authority's determination of the fine. With reference to recent Supreme Court case law it was stated that the issue of an administrative fine under the Competition Act - an administrative sanction which is in the nature of a punishment under Article 6 of the ECHR - requires a clear preponderance of probability that the culpability requirement is satisfied. This applies also to the decision as to whether the infraction is intentional or negligent. The contracting company's conduct was considered to be intentional. The predominant element in the determination of the fine was that the coordination that had taken place had totally undermined the crucial purpose of the traditional announcement of tenders: as effective a competition as possible. Two judges had special comments related to the evidentiary requirement.
Reference: HR-2012-1942-A, case no. 2012/449, civil appeal against judgment.
27 June 2012
Criminal law. Child care. ECHR. Committal. Double prosecution. Parallel prosecution.
A 16-year old boy was committed to a child care institution under section 4-24 subsection 2 cf. subsection 1 of the Child Welfare Act due to serious behavioural difficulties and repeated criminal activities. After the child care measure criminal charges were filed for essentially the same offences. The Supreme Court, which stated that the penal concept is the same in ECHR Protocol 7, article 4 (P 7-4) as in ECHR Articles 6 and 7, concluded that there were no grounds for deviating from Rt-2003-1827, according to which committal under the criminality alternative in section 4-24 subsection 1 of the Child Welfare Act entailed punishment in the sense of P 7-4. The Supreme Court further concluded that it was the same facts that formed the basis of the committal and the criminal case, which meant that the requirement as to identity between the child welfare case and the criminal case was met, cf. EMD-2003-14939, but that there was such connection in terms of time and facts between the cases that this constituted legal parallel prosecution. The appeal against the Court of Appeal’s conviction in the criminal case was quashed.
Reference: HR-2012-1323-A, case no. 2012/361, criminal appeal against judgment.
2 May 2012
Immigration law. Administrative law. Refuge on humanitarian grounds. Subsequent circumstances.
The case concerned the issue whether the courts in their reviewing of a decision refusing an application for Refuge in Norway on humanitarian grounds under section 38 of the Immigration Act have the right to rely on facts that have come to light after the decision was made. Concretely, the appeal concerned the fact that the son in the family obtained Norwegian citizenship and lost his citizenship in Sri Lanka after UNE (the Norwegian Immigration Appeals Board) refused the applications for refuge from the rest of the family. The Supreme Court majority held that the court had the right to take subsequent circumstances into account and that the Court of Appeal’s judgment must be set aside. The rationale given by two of the judges was Norway’s human rights obligations, cf. Article 8 of the ECHR and Articles 3, 8 and 9 of the UN Convention on the Rights of the Child. Two of the judges’ rationale for the result was that a court’s review of an administrative decision, unless there is a special statutory authority to the contrary, must be based on the facts to hand at the time when the matter is set down for judgment. (Dissenting votes).
Reference: HR-2012-920-A, case no. 2012/38, civil appeal against judgment.
22 December 2011
Criminal Procedure. Appeal. Retrial after reopening. Time course - ECHR
The case concerned an appeal against the Court of Appeal's interlocutory order to disallow an appeal against the sentencing in connection with a retrial after the reopening of a criminal case. For the Supreme Court the question was whether it was correct of the Court of Appeal to disallow the appeal against the sentencing for fraud in the District Court's judgment from 2006. The defendant had after a retrial had a two-instances trial with a rationale for the grounds also for the conviction of fraud, and the breach of human rights had thereby been rectified. However, the defendant argued that the additional time that had elapsed due to the breach of human rights must lead to a reduction of the sentence. The Supreme Court held that the Court of Appeal was in error when disallowing the appeal against the sentencing. What the court should have done was to consider how onerous it would be for the defendant to be put back in prison to serve his sentence and the hardship which the additional period of procedure due to the breach of human rights had caused. The Court of Appeal's disallowing of the appeal against the sentencing was quashed.
Reference: HR-2011-2396-A, case no. 2011/1488, criminal appeal against interlocutory order.
22 December 2011
Criminal law. Insurance fraud. Sentencing. Reopening. Time course. ECHR.
The case concerned the issue of sentencing after a new hearing of an appeal against the Court of Appeal's judgment after a reopening of the decision by the Appeals Committee of the Supreme Court to disallow the appeal. The earlier conviction had after the reopening been maintained in full. The sentence for the offence was in 2008 determined after ordinary appeal proceedings in the Supreme Court, and the breach of human rights was not related to the sentencing. The issue now was whether the additional procedure time should entail a further reduction of the sentence. The Supreme Court attached importance to the fact that the sentence had been served and that also the parole period after the prisoner was released on parole had expired. Importance was also attached to the nature of the breach of human rights; that the fact that no rationale was given for the decision to disallow the appeal against the Court of Appeal's judgment could not be deemed as very onerous for the defendant.
Reference: HR-2011-2395-A, case no. 2011/1026, criminal appeal against judgment.
13 December 2011
Mental health care. Compulsory observation. Wrong defendant. The Mental Health Care Act section 3-2. The Health Institutions Act section 6. ECHR Article 5 no. 1.
The issue was whether a health institution breached the rules of procedure set out in the Mental Health Care Act in connection with a decision to commit a person for compulsory observation and whether this constituted a breach of Art. 5.1 of the European Convention on Human Rights. The case also gave rise to the question whether a declaratory action can be brought against the health institution for breach of human rights. The Supreme Court noted that the hospital did not have any reason to suspect that the basis for the compulsory observation was defective and the hospital did not breach the Mental Health Care Act by relying on the medical certificate from the primary treating physician. The Supreme Court concluded that it is the state represented by the Ministry of Health and Care Services that must be sued if the Claimant is to have legal interest in obtaining a judgment establishing that a health institution has breached an incorporated human rights convention. The case had to be summarily dismissed on the grounds that an absolute procedural prerequisite relating to legal person was not satisfied. The Supreme Court quashed the judgments of the District Court and the Court of Appeal , and the case was summarily dismissed from the courts.
Reference: HR-2011-2325-A, case no. 2011/1002, civil appeal against judgment.
10 November 2011
Parental responsibility. Permanent residence. Biological connection. Children Act section 48 subsection 1, section 63 subsection 3, 3rd sentence. UN Convention on the Rights of the Child Articles 3 and 7. ECHR Article 8
The case concerned parental responsibility and permanent residence for a child after its mother died. The dispute was between the child's biological father, who had never had custody of the child, and the child’s stepfather, who had been a close carer since the child was two years old. The Supreme Court stated that biological connection is only one of several factors to be taken into account in the overall assessment of the best interests of the child. The Court of Appeal had placed too much emphasis on the biological connection between the child and its biological father and its judgement did not, in the Supreme Court's opinion, correctly reflect current jurisprudence. The Supreme Court held that the child should continue to live with its stepfather and that custody should be shared between the biological father and the stepfather.
Reference: HR-2011-2097-A, case no. 2011/1048, civil appeal against judgment.
30 September 2011
Criminal procedure. Protection of journalist’s source of information. Criminal Procedure Act section 125. ECHR Article 10.
The case concerned a journalist's right, as a witness in criminal proceedings, to withhold the identity of his source of information in a case where the defendant in the criminal case had already confessed to being the journalist's source. The majority of the Supreme Court held that section 125 of the Criminal Procedure Act does not apply if the source has come forward and verified his role. An exemption from the duty to testify in such a case would not serve to protect the source of information, but would constitute a right for the journalist to refrain from contributing to clarifying the criminal case. Also in relation to ECHR Article 10, the circumstances in which restrictions on the right to protect one’s sources are permitted must be considered in light of the misgivings attached to public intervention in the protection of sources in the particular case. When the circumstances are such that, on the evidence, verification from the journalist about the source of information would not contribute to clarifying the identity of the source, a duty to testify could hardly be objectionable. The Supreme Court held that it could be assumed that the European Court of Human Rights would not find that there had been a violation of human rights in a case where the source of information has come forward, and the witness’s duty to testify is expressly limited so that he is not required to answer questions that could reveal the identity of other possible sources. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-1848-A, case no. 2011/970, criminal appeal against interlocutory order.
22 June 2011
Competition law. Financial penalty. Abuse of dominant position. Competition Act section 11
The case concerns judicial review of the Competition Authority's decision to impose a financial penalty on Tine SA (Norway’s largest producer, distributor and exporter of dairy products) pursuant to the Competition Act section 29 for infringement of the prohibition against abuse of dominant position. The majority of the Supreme Court did not find that Tine had used improper means in competition with other suppliers. Tine’s agreement with the Rema grocery retail chain did not bind Rema contractually or otherwise in a manner that prevented Rema from having Synnøve Finden (another large dairy company) as a supplier. The increase in financial contributions payable from Tine to Rema was not extraordinary if one took account of Rema’s obligations in return, other factors that could influence the negotiation result and Tine’s contributions to other grocery retail chains. Neither Tine’s memo about the benefits of having a sole supplier, nor its agreement, at Rema’s request, to prepare a draft planogram which excluded the Synnøve Finden and Q-dairies brands and to manufacture a private label cheese for Rema were unacceptable means. The Supreme Court affirmed the District Court's ruling and set aside the Competition Authority's decision. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-1251-A, case no. 2010/1947, civil appeal against judgment.
1 June 2011
Disclosure of evidence. Protection against self-incrimination for corporations. ECHR Article 6 (1). Criminal Procedure Act section 210 and section 123
The case concerned an order made against a number of corporations to disclose evidence pursuant to the Criminal Procedure Act section 210. The main question before the Supreme Court was whether the prohibition against self-incrimination in the ECHR also applies to legal entities. After reviewing the case law of the ECHR and the European Court of Justice, the Supreme Court held that corporations are protected by the self-incrimination rule unless there is a legal basis for making an exception. There was no such legal basis in the present case. The protection against self-incrimination applied whether the corporations were registered in Norway or abroad, see ECHR Article 8 The Supreme Court found that the rule against self-incrimination in section 123 of the Criminal Procedure Act must be interpreted in the same way as ECHR Article 6 (1) so that the safeguards in the provision also apply to corporations. The Supreme Court set aside the ruling of the Court of Appeal on the grounds that it was based on an erroneous interpretation of the law and also contained several procedural errors.
Reference: HR-2011-1118-A, case no. 2011/456, criminal appeal against interlocutory order.
10 March 2011
Parole. Norwegian Constitution Article 97. ECHR Article 7. Prison Act section 35 subsection 1, second sentence. Implementation of Sentences Act section 42 subsection 1.
The case concerns the validity of a decision to refuse parole. The question before the Supreme Court was whether the refusal constituted a violation of Article 97 of the Norwegian Constitution and/or Article 7 of the European Convention on Human Rights because it was made pursuant to parole rules that were stricter than the rules that applied at the time the criminal act was perpetrated and at the date of conviction. The Supreme Court held that the defendant had no justified expectation, either at the date of the criminal act or at the date of conviction, of release on parole after 12 years in prison that was protected against subsequent changes in court practice or legislation. The public administration was entitled to change the rules and make them more stringent with effect for persons already serving sentences. The defendant had no immunity against legislation which introduces stricter rules either. Abolition of legislation which provided for parole after 12 years imprisonment was not a breach of the prohibition against retroactive legislation and the requirement of predictability in Article 97 of the Constitution and ECHR Article 7. ECHR Article 7 does not implicitly impose on countries that have a system of parole an obligation to have clearly defined rules for when parole shall be granted. The Supreme Court rejected the appellant’s direct appeal against the judgment of the District Court.
Reference: HR-2011-516-A, case no. 2011/231, civil appeal against judgment.
4 March 2011
License. Agricultural property. Residence obligation. Allodial Rights Act prior to a statutory amendment dated 1 July 2009 section 1 and section 27a. Concession Act section 9.
The case concerns the validity of an administrative decision of the County Agricultural Board in the County of Sogn and Fjordane, which rejected an application for a license to purchase an agricultural property where the license obligation had been imposed due to a breach of a statutory residence obligation. The main reason for the rejection was that the transferee did not intend to take up residence at the property. The County Board had found that the property must be deemed to be useable for agricultural purposes pursuant to the now-abolished conditions in section 1 of the Allodial Rights Act, although the case was a borderline case. A majority of the Supreme Court held that the decision of the County Agricultural Board must be repealed because the County Board had not exercised its discretion in accordance with the criteria specified in the (former) Allodial Rights Act section 27a, subsection 2, but in accordance with the general licensing criteria in section 9 subsection 1 of the Concession Act. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-476-A, case no. 2010/1716, civil appeal against judgment.
7 April 2010
Petition to reopen a case following a judgment of the European Court of Human Rights. Defamation. Disputes Act section 31-4 (b).
The case concerns a petition to reopen a civil case between two private parties following a judgment of the European Court of Human Rights in the same case, see the Disputes Act section 31-4 (b). The Supreme Court held that the compensation ordered by the European Court of Human Rights was intended to give full reparation for the violation to the extent this was possible by payment of a sum of money, and there were therefore no further violations that could provide a basis for reopening the case. The petition to reopen the case was rejected.
Reference: HR-2010-564-A, case no. 2009/1544, civil appeal, petition for reopening of Supreme Court case no. HR-2005-1949-A .
4 March 2010
Civil procedure. Reasons for decision. Disputes Act section 36-10. ECHR Article 6 no. 1.
The issue in the case was whether the Court of Appeal was required to give a reason for its decision pursuant to section 36-10 subsection 3 of the Disputes Act refusing consent to appeal in a case concerning compulsory measures under the Child Welfare Act. The Supreme Court held that there is no general rule that such decisions must be accompanied by a reason. An important principle behind section 36-10 subsection 3 of the Disputes Act is that legal review shall be undertaken as quickly as possible in the interests of the child. The procedure in the county committees and the District Court is very thorough and it is therefore sufficient for the Court of Appeal to record that none of the conditions for leave to appeal are satisfied. Appeal rejected.
Reference: HR-2010-404-A, case no. 2009/1464, civil appeal against decision.
4 March 2010
Reasons for refusal of consent to appeal pursuant to section 36-10 subsection 3 of the Disputes Act.
The Supreme Court referred to its decision on the same matter in the case reported in HR-2010-404-A and rejected the appeal. In that case, the Supreme Court held that there is no general duty to give reasons for the decision to refuse consent to the parent’s appeal pursuant to section 36-10 subsection 3 of the Disputes Act. There were no special circumstances in the present case that necessitated a reasoned decision.
Reference: HR-2010-405-A, case no. 2009/1001, civil appeal against decision.
2 December 2009
International private law. Choice of law. Damages. Protection of privacy. Freedom of speech.
The issue in the case was which country’s law was to apply to determine the right to damages in a case concerning alleged breach of personal privacy. The majority of the Supreme Court, like the lower courts, found that Norwegian law should apply, but for different reasons. The majority did not take a position on the general choice of law rules applicable in cases concerning protection of privacy. Pursuant to the Disputes Act section 11-3, the court is obliged to ensure that there is a proper basis on which to apply the law. The Supreme Court found that it would not be possible to ascertain the rules of afghan law with a sufficient degree of certainty. In these circumstances, the Court had to apply Norwegian law. One justice held that Norwegian law was the proper choice of law pursuant to general Norwegian principles of the choice of law.
Reference: HR-2009-2266-A, case no. 2009/869, civil appeal against judgment.
19 November 2009
Compensation claim. Presumption of innocence. Effective remedy. ECHR Articles 6 and 13.
The case concerns an appeal against the Court of Appeal’s judgment in which the accused in a criminal case, after he had been acquitted, was ordered to pay compensation to the victim. The main issue was whether the Court of Appeal, by ordering the accused to pay compensation, had violated the presumption of innocence in Article 6(2) of the European Convention on Human Rights. The Supreme Court held that when the reasons for the judgment were read as a whole, the Court of Appeal had created so much doubt as to whether the acquittal was correct that it had violated the presumption of innocence. In several previous cases, the Supreme Court has held that an adequate remedy for the violation is constituted by a finding by the Supreme Court that there has been a violation and the Supreme Court distancing itself from the Court of Appeal’s, see the judgment reported in Rt-2008-1292 at paragraphs 34 to 36 with references. The appellant had therefore been given an adequate remedy for the violation and it was not necessary to quash the Court of Appeal’s judgment. The appeal was dismissed.
Reference: HR-2009-2179-A, case no. 2009/909, civil appeal against judgment.
13 November 2009
Assessment of evidence in jury trial. Sexual abuse of minor. Criminal Procedure Act section 39 subsection 1 no. 2, cf. section 40 subsection 2 second sentence.
Reference: HR-2009-2153-A, case no. 2009/841, criminal appeal against judgment.
18 September 2009
Reason for decision to refuse leave to appeal in civil cases.
The case concerns refusal of leave to appeal pursuant to section 29-13 subsection 2 of the Disputes Act in circumstances where the Court of Appeal had not given a reason for its decision. The Supreme Court found that the considerations in Article 88 of the Norwegian Constitution are satisfied since, on appeal against procedure, the Supreme Court is able to review whether the Court of Appeal’s refusal to grant leave is justified on the basis of the legal issues raised in the case. Article 88 of the Constitution does not require the court to give a reason for its decision to refuse leave. However, a requirement to give a reason does follow from section 29-13 subsection 2 of the Disputes Act together with section 321 subsection 2 of the Criminal Procedure Act. The Supreme Court therefore set aside the Court of Appeal’s decision to refuse leave to appeal. The judgement was passed with dissenting votes.
Reference: HR-2009-1818-S, case no. 2009/363 and case no. 2009/365, civil appeal against decision.
12 June 2009
Penal law. Attempted murder. Procedure. Fair trial. No reason from jury. ECHR Article 6 section 1, ICCPR Article 14 section 1 and section 5. Grand Chamber.
The case concerns an appeal against the judgement of the Court of Appeal in a criminal case concerning, among other things, attempted murder. It gives rise in particular to whether the fact that the question of the defendant’s guilt was decided by a jury, which does not give reasons for its decision, was a violation of the right to a fair trial or the right to have one’s conviction reviewed by a superior tribunal. The Supreme Court set aside the Court of Appeal’s judgement item 3 and the appeal proceedings.
Reference: HR-2009-1192-P, case nr. 2009/397, criminal appeal against judgement.
19 December 2008
Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber
The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision were not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. A unanimous Supreme Court held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal.
Reference: HR-2008-2175-S, case no. 2008/1360, criminal appeal against interlocutory decision.
19 December 2008
Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber
The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision are not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. The Supreme Court referred to its decision in HR-2008-02175-S (see below) where it held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal.
Reference: HR-2008-2177-S, case no. 2008/1398, criminal appeal against interlocutory decision.
19 December 2008
Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber
The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision were not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. The Supreme Court referred to its decision in HR-2008-02175-S (see below) where it held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal.
Reference: HR-2008-2176-S, case no. 2008/1265, criminal appeal against interlocutory decision.