Summary of Supreme Court Decisions 2009

23 December 2009                       

Reopening of paternity case. DNA analysis. 

The case concerns the rehearing of a paternity case following a decision to reopen the case as a consequence of a DNA analysis. The Supreme Court recalled that a DNA analysis performed in 2009 ruled out the possibility that the petitioner was the father. The petitioner’s plea that he was not the father of the child was allowed. 

Reference: HR-2009-2439-A, case no. 2008/1997, civil appeal, petition to reopen case reported in Rt-1968-442. 

 

23 December 2009                       

Reopening of paternity case. DNA analysis.

The case concerns the rehearing of a paternity case following a decision to reopen the case as a consequence of a DNA analysis. The Supreme Court recalled that a DNA analysis performed in 2004 proved to a high degree of probability that A was B’s father as alleged in the plea. 

Reference: HR-2009-2437-A, case no. 2009/1132, civil case, petition to reopen case reported in Rt-1973-1257 

 

22 December 2009                         

Partiality of lay judge. Courts of Justice Act section 71 no.5 

The issue in the case was whether the judgments of the District Court and the Court of Appeal in a criminal case must be quashed because one of the lay judges in the District Court had limited police authority, see section 61 no. 5 of the Courts of Justice Act. The Supreme Court held that regard must be had to the purpose behind section 71 no. 5. The purpose of the provision, which provides that persons in certain positions are not eligible to sit as lay judges, is to ensure the independence of the courts from the other powers of the state. The conferral of limited police authority creates an affiliation between the police and the person on whom the power is conferred. Powers are exercised upon order and instruction and under the control of the chief constable. This must mean that a person with limited police authority should not be eligible for appointment as a lay judge pursuant to section 71 no. 5 of the Courts of Justice Act. The judgments of and the proceedings before the District Court and the Court of Appeal were quashed.

Reference: HR-2009-2405-A, case no. 2009/1690, criminal appeal against judgment. 

 

22 December 2009                         

Driving ban. Disqualification Regulation. Penalty Points Regulation. 

The case concerns a driving ban imposed pursuant to the Disqualification Regulation. The defendant driver had two penalty points on his license pursuant to the Penalty Points Regulation, and the issue before the Supreme Court was what implication this should have on the period of the ban.  The Supreme Court held that the Court of Appeal had misinterpreted section 2-9 subsection 2 of the Penalty Points Regulation when assessing the period of the ban. The Supreme Court fixed the period of the ban at eight months.

Reference: HR-2009-2404-A, case no. 2009/1735, criminal appeal against judgment. 

 

22 December 2009 

Impartiality of District Court judge. Courts of Justice Act section 108. ECHR Article 6(1). 

The issue in the case was whether a conviction in the District Court must be quashed on the grounds that the presiding judge had been employed as a lawyer in the prosecution department of the relevant police district whilst the case was under investigation there. The Supreme Court held that it was difficult on account of the connection between the judge, the police district and the case to indicate in general terms the distance that there must be between the parties and the court. As a consequence, in circumstances such as these the judge must, as a general rule, be deemed to be incompetent on the grounds of partiality. In order for the rule to be clear and practicable, this must apply irrespective of the nature of the case, length of service and the size of the police district. Since responsibility for the investigation and the decision to prosecute or not lies with the police district as such, it is irrelevant whether the person in question has served in the particular department where the case was handled. Neither the accused nor the general public can be expected to be aware of such organizational issues. The Supreme Court quashed the judgment of and the proceedings before the District Court and the Court of Appeal.

Reference: HR-2009-2403-A, case no. 2009/1709, criminal appeal against judgment.

 

22 December 2009                        

Patent law. Indirect patent infringement. Patent Act section 3 subsection 2  

The issue in the case was whether a research foundation, which had delivered a data program to the principal that had commissioned the research, had indirectly infringed patent rights, see the Patent Act section 3 subsection 2. The Supreme Court held that the Court of Appeal, in finding that the research foundation did not ”exploit” the invention by delivering the data program to the principal, had based its judgment on a misunderstanding of the law. The judgment was passed with dissenting votes (3-2).

Reference: HR-2009-2402-A, case no. 2009/694, civil appeal against judgment. 

 

22 December 2009 

Tax law. Value added tax. Corporate finance services. Value Added Tax Act section 5b no. 4 (e). 

The case concerns the validity of a decision to recalculate value added tax payable by a securities trading company for fees received for corporate finance services in connection with the merger of two financial institutions and, for one of the companies, for fees received for similar services in connection with the sale of two companies. The main issue before the Supreme Court concerned interpretation of section 5b no. 4 (e) of the Value Added Tax Act, which grants an exemption for VAT for “the sale of … financial instruments and the like, and brokerage services during such supply “. The Supreme Court held that the appeal from ABG Sundal Collier Holding ASA must be dismissed, while the appeal from Carnegie ASA was allowed in part.

Reference: HR-2009-2396-A, case no. 2009/1153, civil appeal against judgment. 

 

21 December 2009 

Occupational injury insurance. Occupational injury. Knee injury. National Insurance Act section 13-3 subsection 2, second sentence. 

The case concerns a claim for cover under an occupational injury insurance, more particularly whether there was an occupational injury under the mitigated concept of industrial injury in section 13-3 subsection 2 of the National Insurance Act. A secondary school teacher suffered a knee injury while teaching dance during a music lesson. The Supreme Court held that although the distinction between occupational injuries and other injuries can sometimes be subtle, the legislator had expressly wanted to distinguish between the two different types of injury. If the court were to find that there was an occupational injury in the present case, it would extend the scope of the concept of occupational injury, for which there was no legal authority. This was a task for the legislator, not the courts. The Social Security Tribunal had not misapplied the law in finding that the conditions for an occupational injury were not fulfilled. The Supreme Court found in favour of the state.

Reference: HR-2009-2380-A, case no. 2009/1120, civil appeal against judgment. 

 

21 December 2009 

Damages for personal injury. Occupational injury. Mosquito bite. National Insurance Act section 13-3 subsection 2, first sentence. 

The case concerns a claim for damages for personal injury under an occupational injury insurance, more particularly whether injury caused by a group A streptococcal infection following a mosquito bite qualified as an occupational injury in the terms of the National Insurance Act. The Supreme Court held that a mosquito bite and subsequent infection caused by the bite was not an accidental occurrence that qualified for occupational injury insurance pursuant to the National Insurance Act section 13-3 subsection 2 first sentence. The appeal was dismissed. 

Reference: HR-2009-2379-A, case no. 2009/1040), civil appeal against judgment.

 

21 December 2009                         

Impartiality of five Supreme Court justices, see the Courts of Justice Act sections 106 and 108. 

The Supreme Court had decided that Appeal Case no. 2009/1575 Bergshav Tankers AS v. The Ministry of Finance on behalf of the State and Appeal Case no. 2009/1663 The Ministry of Finance on behalf of the State v. Bergesen Gas Shipping AS, BW Green Gas AS, AS Hektorgas, AS Havgas Partners, AS Centum, Edda Gas AS, Farstad Supply AS and Farstad International AS should be heard in plenary. The issue in the appeal cases was whether the tax assessment of these ship owning companies for the fiscal year 2007 is based on a statutory amendment which violates the prohibition against legislation with retroactive effect in Article 97 of the Norwegian Constitution, or violates the right to peaceful enjoyment of property in Article 1 of Protocol 1 to the European Convention on Human Rights. The Supreme Court held that five justices were incompetent to hear the case on the grounds of partiality.

Reference: HR-2009-2378-P, case no. 2009/1575, civil appeal against judgment, and case no. 2009/1663, civil appeal against judgment.

 

15 December 2009                       

Corporate penalty. Animal Protection Act section 31 second sentence, cf. section 2, cf. section 5a no. 1, cf. Regulation on protection of animals at slaughterhouses section 8 subsection 1, cf. section 12 subsection 6, Penal Code section 63 subsection 1, cf. Penal Code section 48a. 

The case concerns the imposition of a corporate penalty for breach of the provisions of the Animal Protection Act. 85 sheep were stalled and fed with hay and corn waste during the weekend before they were slaughtered. Ten of the sheep died or were destroyed as a result of malnutrition and the other animals suffered severe pain. The Supreme Court held that the breach must be deemed to be serious due to the consequences of the malnutrition, and that no-one else could be held responsible for the breach. The company itself was the obvious liable party in a case like this, where the breach was the consequence of  a system fault. There was no Supreme Court practice for the level of sentence for breach of the Animal Protection Act. The Supreme Court referred to the company’s turnover as an indication that it was a large and professional player. On the other hand, the Supreme Court attached weight to the fact that the breach was situational and that the degree of guilt was simple negligence. The Supreme Court fixed the fine at NOK 300 000.

Reference: HR-2009-2344-A, case no. 2009/1411, criminal appeal against judgment.

 

15 December 2009                       

Illegal pyramid game. Gaming Act section 17 subsections 1 and 2, cf. section 16 (prior to a statutory amendment in 2006). 

The case concerns section 17 cf. section 16 of the Gaming Act and, in particular, the scope of the prohibition against pyramid games. The Supreme Court dismissed the appeal of two appellants who had been convicted in the Court of Appeal and sentenced to two years and six months, and one year and nine months, imprisonment respectively. Both sentences included a one year suspended sentence and confiscation of the proceeds of the crime. The Supreme Court held that the activity without doubt was an illegal pyramid game and that the sentence was not too strict having regard to the extent of the activity.

Reference: HR-2009-2343-A, case no. 2009/1255, criminal appeal against judgment. 

 

11 December 2009                       

Rejection by Court of Appeal of application for leave to appeal. Financial crime. Contradiction. Reason. 

The case concerns the rejection by the Court of Appeal of leave to appeal pursuant to section 321 subsection 2 of the Criminal Procedure Act in a case concerning financial crime. The appeal concerns the requirements of the right to contradiction in circumstances where the Court of Appeal, when considering the question of leave to appeal, relied on information in a police statement from a witness who had not testified before the District Court. The Supreme Court held that on the basis of the written procedure that had taken place in the Court of Appeal, the Court’s failure to give prior written notice to the parties did not constitute a procedural error. The Supreme Court also held that the Court of Appeal had clearly articulated the grounds on which its decision was based, and that these showed that there had been a substantial review of the District Court’s judgment. Appeal dismissed.

Reference: HR-2009-2324-A, case no. 2009/1253), criminal appeal against decision. 

 

11 December 2009                       

Tax law. Validity of tax assessment. Residence for tax purposes. Tax Treaty between Norway and the United Kingdom. 

The case concerns the validity of a tax assessment and, in particular, whether a taxpayer was resident in the United Kingdom for tax purposes pursuant to Article 4(1) of the Tax Treaty between Norway and the United Kingdom. The Supreme Court held that the Norwegian state was not entitled to require documentation of the United Kingdom tax return and tax assessment in order to determine the question of residence. A statement from the UK tax authorities was sufficient to prove on a balance of probabilities that the taxpayer was resident in the UK for the fiscal year 2005. The tax assessment for 2005 should have been quashed, and the decision of the Oslo Tax Office was overruled.

Reference: HR-2009-2323-A, case no. 2009/580, civil appeal against judgment. 

 

10 December 2009                  

Non-statutory right to personal photographs. Compensation. Copyright Act section 45c. 

Tromsø 2018 used a photograph from a snowboard event in its bid for Norway to organize the Winter Olympics in 2018. The organizer of the event and the participant who was photographed objected to the picture being used and claimed compensation. The Supreme Court held that the person in the photograph, who was not resident in Norway, fell within the scope of the exception in section 58 subsection 3 of the Copyright Act and was therefore not protected by section 45c of the Act. However, he was protected by the non-statutory right to personal photographs and the non-statutory rules on compensation. The Supreme Court awarded the appellant compensation in the amount of NOK 80 000 and legal costs for all instances. The judgment was passed with dissenting votes (4-1). 

Reference: HR-2009-2318-A, case no. 2009/585, civil appeal against judgment. 

 

4 December 2009                       

Sentencing. Drugs for personal consumption. Penal Code section 162 subsection 1, cf. subsection 5.

The case concerns sentencing following conviction for illegally importing 3.9 grams of cannabis for personal consumption and, in particular, whether a suspended prison sentence should be imposed in addition to a fine. The Supreme Court held that, on the facts of the case, there was no distribution risk. The quantity of drugs in question was small and intended solely for personal consumption. The defendant had confessed to the offence immediately and a fine was an appropriate reaction. The Supreme Court held that the fine imposed by the Court of Appeal did not reflect the fact that import of drugs was a more serious offence than mere purchase of drugs, and fixed the fine at NOK 6 000 with an alternative term of imprisonment of 15 days.
Reference: HR-2009-2279-A, case no. 2009/1545, criminal appeal against judgment.

 

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.

 

1 December 2009           

Criminal law. Application of law. Robbery. Drugs.

The defendant appealed against the application of law following conviction for aiding and abetting breach of the Penal Code section 268 subsections 2 and 3, cf. section 267 subsections 1 and 3 – aggravated robbery with serious harmful consequences. The object of the robbery was 200 grams of hashish. The issue before the Supreme Court was whether the provisions of the Penal Code on robbery also apply to robbery of drugs. The Supreme Court held that it is not a condition for conviction for robbery that the object of the robbery is lawful. The only requirement regarding the object is that it belongs wholly or partly to another and that the purpose of the act is to obtain an unlawful gain for oneself or another. Nor does the condition that the object must belong to another presuppose that the object must be lawful. Although an object may be unlawful, it need not be ownerless. The Supreme Court dismissed the appeal.

Reference: HR-2009-2260-A, case no. 2009/1223, criminal appeal against judgment.

 

1 December 2009           

Sentencing. Attempted murder. Civil procedure. Preclusion of evidence. Tape recording.

The case concerns an appeal against the Court of Appeal’s procedure and sentencing in a case concerning attempted murder with intent. The issue before the Supreme Court was whether there had been a procedural error when a tape recording of a confidential conversation in prison between the prison priest and two of the defendants had been played for the Court of Appeal, see the Disputes Act section 22-7. Although the tape recording had been obtained by improper means, the Supreme Court held that the need for a substantively correct decision in a case concerning particularly serious criminal offences like this was paramount and that the Court of Appeal had not committed a procedural error in allowing the tape recording to be submitted as evidence. As regards the sentence, the Supreme Court emphasised that the sentencing level for grievous assault had gradually been increased since 2002, and increased the sentence to 12 years imprisonment.

Reference: HR-2009-2259-A, case no. 2009/1169, criminal appeal against judgment.

 

26 November 2009           

Allotment in kind of real property. Probate Act section 61 subsection 2 second sentence

During probate following his parents’ death, the eldest son applied for a smallholding to be allotted to him in kind pursuant to the Probate Act section 61 subsection 2, second sentence. His four siblings opposed the application. The District Court refused the application but the Court of Appeal came to the opposite conclusion. The Supreme Court held, with dissenting votes, that the eldest son had not proved that his interest in the smallholding was considerably stronger than that of his siblings. The four siblings who opposed the application for allotment in kind had a strong connection to the property. The conditions for allotment in kind of the property were therefore not satisfied.

Reference: HR-2009-2232-A, case no. 2009/716, civil appeal against judgment.

 

26 November 2009           

Mortgage law. Scope of lien. Proceeds of sale. Participants Act. Liens Act. Regulation on fishing permits upon insolvency, forced sale etc.

The issue in the case was whether a mortgage right in a fishing vessel extended to the proceeds of sale that were attributable to the value of the fishing permits attached to the vessel. The Supreme Court held that, in terms of revenue, the value represented by a fishing permit was indivisible from the asset to which it was attached and must be deemed to be a part of it, see Skoghøy on Mortgage Law, 2nd Edition at page 39-40. The appeal was dismissed.

Reference: HR-2009-2231-A, case no. 2009/794, civil appeal against judgment.

 

24 November 2009  

Aiding and abetting robbery. Penal Code section 268 subsection 1, section 267 and section 223.

The defendant was the driver of a taxi in which the victim and three other persons were passengers. The victim was restrained in the taxi against his will and one of the other passengers threatened him with a knife to withdraw money from two cash machines. After the case was reopened, the defendant was again convicted of aiding and abetting robbery but acquitted of depriving a person of his liberty and sentenced to six months imprisonment. The Supreme Court dismissed the defendant’s appeal against the application of law and procedure, but quashed the Court of Appeal’s award of costs, see the Criminal Procedure Act section 436.
Reference: HR-2009-2210-A, case no. 2009/1275, criminal appeal against judgment.

 

20 November 2009  

Social security law. Occupational injury. Food poisoning. National Insurance Act section 13-3 and section 13-4. Occupational Injury Regulation section 1.

The case concerns an application for recognition of reactive arthritis as a result of food poisoning during business travel abroad as an occupational injury or equivalent occupational sickness.  The Supreme Court held that injury as a result of infection did not fall within the scope of section 13-3 of the National Insurance Act except in very special circumstances where the infection was the result of an accident. That was not the case here. However, a majority of three justices held that the insured was entitled to benefits pursuant to section 13-4 of the National Insurance Act cf. section 1(H) no. 2 of the Occupational Injury Regulation, where the last part of the second sentence refers to “by other workers where the activity is performed in environments exposed to special risks of sickness or infection”. The majority held that there were not sufficiently strong indications that this alternative in the Regulation was to be interpreted more strictly than the ordinary language suggests, and that it therefore also covered infections contracted in geographical areas where there was a special risk of sickness and infection. The Supreme Court annulled the decision of the Social Security Tribunal.

Reference: HR-2009-2191-A, case no. 2009/880, civil appeal against judgment.

 

20 November 2009                                      

Tax law. Deductions. Fraud. Tax Act section 6-1.

A taxpayer had agreed with a Spanish company to buy two apartments in a property development in Spain with the intention of reselling the rights under the agreement. The development was never realised and the taxpayer lost his investment due to fraud in the company. The Supreme Court held that the loss could not be defines as a loss on receivables. Section 6-1 of the Tax Act also applies to losses incurred by private persons, and there was a sufficiently strong connection between the expense – the investment – and the potential income. A deduction could only be refused in exceptional circumstances on the grounds that an expense was objectively inadequate. The Supreme Court held that the taxpayer was entitled to a deduction.

Reference: HR-2009-2190-A, case no. 2009/657, civil appeal against judgment.

 

19 November 2009           

Employer’s prerogative. Employment contract. Working Environment Act (2005) section 14-6 subsection 1(j).

The case concerns the employer’s prerogative and the interpretation of employment contracts. The issue was whether the employer’s right to decide when the daily working hours were to be worked had been limited by the provisions of the individual employment contracts. The Supreme Court held that the contractual scheme of evening shift work could only be amended by constructive dismissal, which had to be effected in accordance with the dismissal procedure in the Working Environment Act. The employer, a local authority, could be criticised for not having observed this procedure. The appellants, on the other hand, could not be criticised for the way they had acted during the dispute, which had been a great burden to them. The Supreme Court affirmed the judgment of the District Court.

Reference: HR-2009-2181-A, case no. 2009/5, civil appeal against judgment.

 

19 November 2009        

Keeping of daily catch log. Failure to publicise in the Norwegian Gazette. Sea Water Fisheries Act section 53 with regulations and order.

A fisherman and a ship owner were fined and had their catch confiscated for failure to keep their daily catch log in a proper manner. They alleged that there was no legal authority for the penal sanction because a new order laid down in 2005 had not been publicised in the Norwegian Gazette at the time when the offence took place, see the Public Administration Act section 39. The allegation was dismissed. The Supreme Court held that the original order from 1996 which, despite its title, must be deemed to be a regulation had only been amended by the subsequent orders. The amendments did not affect the obligation to complete the daily catch log before arriving at the harbour, and the failure to publicise the amendments did not mean that the rest of the regulation, of which the appellants were fully aware, was inapplicable. There was therefore legal authority for the fine and the confiscation, and the appeal was dismissed.

Reference: HR-2009-2180-A, case no. 2009/1389, criminal 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.

 

13 November 2009           

Immigration law. Expulsion. Proportionality. Immigration Act section 30 subsection 3.

The issue in the case was whether the expulsion of a foreign national who held a settlement permit was disproportionate pursuant to section 30 subsection 3 of the Immigration Act. An Iranian man, born in 1980, came to Norway when he was 14 years old and was granted a settlement permit in 1998. Following two criminal convictions in 2003 and 2005, he was expelled from the realm for a period of five years. The Supreme Court held that because of his young age when he came to Norway, the length of time he had lived here, his family attachments and his education and background, it must be assumed that he had a strong cultural and social connection with Norway and that it would be arduous for him to re-establish himself in Iran At the same time, there was reason to believe that he also had a connection to Iran, having lived there until he was almost 14. His case was on the borderline of the group of cases where “the main rule is that expulsion shall be deemed to be disproportionate”, see Ot.prp.no.75 (2006-2007) at page 293. In view of the gravity of the offences for which he had been convicted, the Supreme Court held that the five year expulsion order was not disproportionate.

Reference: HR-2009-2152-A, case no. 2009/744, civil appeal against judgment.

 

13 November 2009           

Occupational injury. Compensation. Occupational Injury Insurance Act sections 11 and 21. Tinnitus. Date of ascertainment of injury.

The case concerns a claim for coverage pursuant to the Occupational Injury Insurance Act section 11 for injury in the form of impaired hearing and tinnitus caused by long-term exposure to noise at a printing workshop. The main question was whether the Act applied in circumstances where the impaired hearing, but not the tinnitus, was established before the Act entered into force, see section 21 which provides that the Act shall not apply “to injuries or diseases which are ascertained” before the Act enters into force. The Supreme Court held that section 21 of the Occupational Injury Insurance Act could not be construed narrowly in a case where an injury which entitled a person to social security benefits and insurance payments had not been ascertained before the Act entered into force. Such an interpretation would also be contrary to public policy. The applicant, who had suffered serious problems with tinnitus after the Act entered into force, was therefore entitled to coverage pursuant to the occupation injury insurance scheme.

Reference: HR-2009-2149-A, case no. 2009/460, civil appeal against judgment.

 

13 November 2009           

Sentencing. Bodily harm resulting in death. Relevance of statements in travaux preparatoires regarding sentencing levels. Retroactive effect. Penal Code section 229, third sentencing alternative and section 232. Norwegian Constitution Article 97. ECHR Article 7. Grand Chamber.

The case concerns sentencing following conviction for breach of section 229 third sentencing alternative, cf. section 232 of the Penal Code – occasioning bodily harm with a particularly dangerous weapon (a knife) that resulted in the death of the victim. The question of principle before the Supreme Court was whether regard should be given to statements in the travaux preparatoires to Act no. 74 of 19 June 2009 concerning a considerable increase in sentencing levels when passing sentence in cases where the offence had been committed before the Act was passed. The Supreme Court referred to its judgment in HR-2009-2135-S, and held that a development in sentencing levels had to take place gradually. The Supreme Court dismissed the appeal and affirmed the Court of Appeal’s sentence of four years and six months imprisonment. The judgment was passed with dissenting votes (10-1).

Reference: HR-2009-2136-S, case no. 2009/1035, criminal appeal against judgment.

 

13 November 2009           

Sentencing. Sexual offence. Relevance of statements in travaux preparatoires regarding sentencing levels. Retroactive effect. Penal Code section 195, first sentencing alternative and section 197. Norwegian Constitution Article 97. ECHR Article 7. Grand Chamber.

The case concerns sentencing following conviction for breach of section 195 first sentencing alternative and section 197 of the Penal Code – sexual assault by the defendant of his daughter who was under 14 years of age.  The question of principle before the Supreme Court was whether regard should be given to statements in the travaux preparatoires to Act no. 74 of 19 June 2009 concerning a considerable increase in sentencing levels when passing sentence in cases where the offence had been committed before the Act was passed. The Supreme Court held that a development in sentencing levels had to take place gradually. A majority of the Supreme Court held that greater regard would have to be given to statements in the travaux preparatoires in cases where the offence was committed after the new Act was passed but before it entered into force, but even in these cases the development must be gradual. The Supreme Court fixed the sentence at one year and nine months imprisonment. The judgment was passed with dissenting votes (10-1).

Reference: HR-2009-2135-S, case no. 2009/1354, criminal appeal against judgment.

 

12 November 2009  

Gross negligent fraud. Penal Code section 271a cf. section 270 subsection 1 no. 1 cf. section 271.

The case concerns an appeal against the Court of Appeal’s application of law and procedure following conviction for gross negligent fraud, see Penal Code section 271a cf. section 270 subsection 1 no. 1 cf. section 271. In particular, the case concerns the seller’s obligation to provide information in connection with the sale to businesses of almost valueless catalogue listings in “dinedistrikter.no” (internet site “your district”). The Court of Appeal found it proven that customers had not been given a realistic impression of the availability and functions of the internet site, and the Supreme Court held that there was no error in the Court of Appeal’s application of the law. The Supreme Court also stated that it was reasonably foreseeable that the business carried on by the defendant would fall within the scope of section 270 of the Penal Code, and that Article 7 of the European Convention on Human Rights was not an obstacle to conviction. The appeal was dismissed.

Reference: HR-2009-2146-A, case no. 2009/757, criminal appeal against judgment.

 

12 November 2009  

Tax law. Liability for costs. Dispute Act sections 20-2 and 20-4. Civil Procedure Act sections 173, 174 and 177.

The case before the Supreme Court concerns liability for costs in a case concerning the tax liability in Norway of a foreign company where the parties during the appeal proceedings before the Supreme Court in all other respects had entered identical pleas. The provisions of the  Dispute Act applied to the question of costs before the Supreme Court, while the provisions of the Civil Procedure Act applied to the question of costs before the District Court and the Court of Appeal. The liability for costs in the lower courts must be based on the substantive result of the judgment in the Supreme Court, see the Dispute Act section 20-9 subsection 2. The Supreme Court held that the foreign company should be awarded costs for proceedings before the District Court, but that each of the parties must bear their own costs for proceedings before the Court of Appeal and the Supreme Court.

Reference: HR-2009-2145-A, case no. 2009/789, civil appeal against judgment.

 

12 November 2009  

Drug offence. Sentencing. Penal Code section 162 subsections 1 and 2 cf. subsection 5.

The case concerns sentencing for aiding and abetting the import of 10 000 ecstasy tablets and other drug offences. The two defendants were deemed to have played equally important roles in the drug import operation. Defendant no. 1 had initiated the operation and was involved in transporting the drugs to Norway. He also made an agreement with defendant no. 2 who arranged the further distribution of the drugs. The Supreme Court agreed with the sentencing decision of the  Court of Appeal in relation to defendant no. 1. In addition to his dealings with ecstasy, the defendant was found guilty of three counts of selling altogether 600 grams of amphetamine. Sale of such a large quantity of amphetamine was a particularly aggravating factor, and the appeal was dismissed. In the case against defendant no. 2, the Court of Appeal had found that the sentence must be increased, and the Supreme Court held that this sentence was too strict. His dealings with the import of 10 000 ecstasy tablets was the main factor when determining his sentence, and even though he had played a central role, the Supreme Court held that the sentence should be fixed at three years imprisonment.

Reference: HR-2009-2144-A, case no. 2009/809 and case no. 2009/810, criminal appeal against judgment.

 

6 November 2009           

Immigration law. Gross unreasonableness. Immigration Act section 8, Immigration Regulation section 21b.

The case concerns the validity of a decision of the Immigration Board where the Board found that the conditions in section 8 subsection 2 of the Immigration Act for granting a residence and work permit on humanitarian grounds were not satisfied. The issue in the appeal was whether the decision was invalid because it was grossly unreasonable or unlawfully discriminatory. The Supreme Court held that on the facts of the case and in light of prevailing practice, the present case was far from the kind of decision that might fall within the scope of the exception for gross unreasonableness. The Supreme Court allowed the appeal and found in favour of the Immigration Board. 

Reference: HR-2009-2074-A, case no. 2008/1979, civil appeal against judgment.

 

29 October 2009           

Sentencing. Serious drug offence. Amphetamine. Community service. Penal Code section 162 subsections 1 and 2.

The case concerns sentencing following conviction for dealings with altogether 300 grams of amphetamine. The Supreme Court held that it was justifiable to make a 350 hour community service order in view of the defendant’s considerable care responsibilities for his wife, who suffered from serious angst, the fact that he had made an unconditional confession and that he was undergoing rehabilitation.

Reference: HR-2009-2057-A, case no. 2009/1318, criminal appeal against judgment.

 

29 October 2009           

Application of law. Collection of drug debt. Distinction between robbery and extortion.

The case concerns the application of law and sentencing where the defendant was convicted for having used serious threats to collect a drug debt. The questions concerning the application of law concern the distinction between robbery pursuant to section 267 subsection 2 of the Penal Code and extortion pursuant to section 266 of the Penal Code, and questions related to aiding and abetting. The appeal against sentence was successful, but the appeals against the application of law were dismissed. The feature that distinguishes robbery from extortion is the element of force that is used and the gravity of the force. The connection between the offences indicates that the offence of robbery is reserved for the most grievous means of force. The Supreme Court found no error in the Court of Appeal’s summing up on the distinction between robbery and extortion when it is determined that the offence of robbery does not contain a requirement of proximity in time between the threats and the unlawful gain. However, the Supreme Court found that the Court of Appeal’s assessment of the robbery and the attempted robberies was somewhat stricter than the prevailing court practice, and reduced the sentence for the two defendants to three years and nine months imprisonment, and three years imprisonment respectively.

Reference: HR-2009-2056-A, case no. 2009/829, criminal appeal against judgment.

 

29 October 2009  

VAT. Limitation. Value Added Tax Act section 21. Limitation Act section 28.

The case concerns limitation of a claim for input VAT. The question was whether the state was barred from invoking limitation or liable to pay damages pursuant to section 2-1 of the Damages Act for failure to submit the claim before the limitation period had expired. The Supreme Court held that the tax authorities cannot be held liable for having contributed to a general expectation among commercial businesses that future claims will also be dealt with in accordance with current practice. Nor had there been any reason for the tax authorities to enter a reservation in case of a change in future practice. Such a change is always possible, and professional parties are expected to know this and to act accordingly. The appeal was dismissed.

Reference: HR-2009-2055-A, case no. 2009/577, civil appeal against judgment.

 

23 October 2009           

Sentencing. Grievous family violence. Plea bargain. Penal Code section 219 subsection 2.

The question of principle before the Grand Chamber of the Supreme Court was whether the fact that the prosecution authority had given an undertaking to enter a particular plea in return for a confession from the defendant was to be given independent weight when passing sentence. The Supreme Court held unanimously that the court was not bound by the plea bargain, see section 38 subsection2 of the Criminal Procedure Act and section 59 subsection 2 of the Penal Code. It would be unfair if more weight were to be given to a negotiated confession than to a confession given at an earlier stage. The Supreme Court held that the Court of Appeal’s sentence of one year and four months unconditional imprisonment for grievous assault of three children over a 12 month period was in any event not too strict. One of the justices held that the sentence should be fixed at one year and seven months imprisonment.

Reference: HR-2009-2021-S, case no. 2009/983, criminal appeal against judgment.

 

 

22 October 2009           

Operating grant to physiotherapist. Compensation law. Public administration law

The issue in the case was whether a local authority had committed a procedural error in connection with the award of a contract and operating grant for health services with a physiotherapist pursuant to the Municipal Health Services Act section 4-2 and whether, as a consequence, the local authority was liable in damages. The Supreme Court held that the local authority had not dealt with the application in accordance with good administrative practice. The local authority had assigned the assessment of applications and interviews to an institution in which the person who received the operating grant was a co-owner. This constituted a breach of the provisions on impartiality in section 6 subsection 2 and section 10 of the Public Administration Act. The errors in procedure constituted grounds for liability for the local authority. The requirement of causation was also satisfied, but the applicant had not documented his economic loss. The Supreme Court awarded damages of NOK 250 000 for loss of income and 70 % of the legal costs, see the Dispute Act section 20-3. The judgment was passed with dissenting votes (4-1).

Reference: HR-2009-2022-A, case no. 2009/22, civil appeal against judgment.

 

16 October 2009                       

Real property. Right of preempture. Redemption Act section 12.

The case concerns a preferential right to purchase a property at ”valuation price” in connection with the administration of an estate. The main issue was whether the preferential right to purchase had in fact been submitted pursuant to the Redemption Act section 12 in circumstances where the beneficiary had reserved the right not to exercise the preferential right if the final valuation was higher than the offer she had made. The Supreme Court came to a different conclusion than the District Court and Court of Appeal, and held that the beneficiary of a preferential right to purchase is generally not entitled to wait and see what the redemption sum is before she decides whether to exercise the right.

Reference: HR-2009-1977-A, case no. 2009/102, civil appeal against judgment.

 

16 October 2009           

Allodial rights. Prescription rule in the Allodial Rights Act 1821 section 9.

The case concerns prescription of an allodial right. The main question before the Supreme Court was whether the prescription rule in section 9 of the Allodial Rights Act 1821 applies in circumstances where the property, during the prescription period, had been assigned by a registered transfer to the separate estate of a spouse who did not have allodial rights to the property. The Supreme Court held that the branch of the family that originally had allodial rights to the property had lost these rights at some point between 1933 and 1940 whilst title to the property had formed part of the separate estate of the spouse who did not have allodial rights. The appeal was allowed.

Reference: HR-2009-1976-A, case no. 2009/441, civil appeal against judgment.

 

16 October 2009                       

Sentencing. Bodily harm. Penal Code section 229 first or second sentencing alternative.

The issue before the Supreme Court was whether the Court of Appeal had correctly applied the law in convicting pursuant to the second sentencing alternative, as opposed to the first sentencing alternative, of section 229 of the Penal Code on bodily harm. If the legal authority was corrected, the next question was what implications this must have for the sentence. The Supreme Court held that the defendant should have been convicted pursuant to the first, not the second, sentencing alternative of section 229 because the Court of Appeal had found that it was not certain that the period that the victim had been off sick was a direct result of the assault. The Supreme Court reduced the sentence from 60 to 50 days imprisonment, of which 36 days were suspended on account of the defendant’s youth; he was only 17 years and 5 months old when the offence was committed.

Reference: HR-2009-1969-A, case no. 2009/1316, criminal appeal against judgment.

 

9 October 2009  

Public administration law. Immigration law. Residence permit. Article 3 of the Convention on the Rights of the Child together with the Immigration Act section 4 and the Human Rights Act sections 2 and 3.

The case concerns the validity of a decision of the Immigration Board, which rejected an application to overturn the immigration authority’s refusal to grant a residence permit on humanitarian grounds to a boy below the age of majority. The Supreme Court held that general statement from the UN Committee on the Rights of the Child regarding the weight to be given to the best interest of the child in such cases could not be understood to mean that the best interests of the child should be considered independently from his family ties in his own country. The Immigration Board’s decision was based on a correct understanding of the best interests principle, and the Board had correctly weighed the conflicting interests against each other. The decision was therefore valid. There was dissent (4-1) regarding the reason for the judgment.

Reference: HR-2009-1932-A, case no. 2009/459, civil appeal against judgment.

 

8 October 2009           

Compensation law. Non-statutory principle of strict liability.

The case concerns a claim for damages against the state by four divers for injury suffered from diving in the North Sea during the pioneer period of petroleum exploration in Norway. The Supreme Court held that the circumstances alleged by the divers did not, either alone or in conjunction, create a sufficiently close relationship between the state and the allegedly dangerous operation to impose liability pursuant to the non-statutory principle of strict liability. The safety authority’s practice could not be characterised as negligent. Petroleum exploration was not in breach of the human rights conventions invoked by the applicants.

Reference: HR-2009-1931-A, case no. 2009/213, civil appeal against judgment.

 

7 October 2009           

Inheritance law. Mutual will. Child of other relationship.

A childless couple had written a mutual will. The husband died first, and after the surviving wife’s death it was revealed that the husband had grandchildren who were offspring of a child by a different relationship and who were legal heirs. A majority of the Supreme Court held that section 75 subsection 2 last sentence of the Inheritance Act applied and that their legal right of inheritance was therefore not statute barred. Pursuant to the terms of the mutual will, a claim for inheritance could not be invoked until after the surviving spouse’s death. The right of inheritance had not lapsed on the grounds of passivity notwithstanding that the legal heirs had not been obliged to respect the mutual will. There was dissent (4-1) on the grounds for the decision.

Reference: HR-2009-1917-A, case no. 2009/277, civil appeal against judgment.

 

7 October 2009  

Tax law. Tax assessment. Profit on sale of shares.

The case concerns the validity of a decision of the Tax Assessment Board concerning the tax payable on profit from the sale of shares. There were several conditions precedent to the share sale agreement. The Supreme Court held that the shares had not been realised in the terms of section 10-31 of the Tax Act at the date of the agreement, but at a later date. It was feasible that the agreement could have been set aside as a result of the purchaser’s investigations, the due diligence and the competition authority’s scrutiny of the agreement. The sellers had therefore not ascertained and secured their profit at the date of the agreement and the exception in section 2-38 of the Tax Act, which was adopted after the share sale agreement was entered into, must apply.

Reference: HR-2009-1916-A, case no. 2009/276, civil appeal against judgment.

 

7 October 2009           

Driving ban. Period of ban. Penalty Points Regulation section 4, cf. section 6. Disqualification Regulation section 1-4.

The case concerns a driving ban imposed pursuant to the Penalty Points Regulation section 4. The issue before the Supreme Court concerned the circumstances that could be invoked to reduce the period of the ban pursuant to section 6 subsection 2 of the Regulation, in particular whether section 1-4 of the Regulation was applicable. The Supreme Court held that the reference in the banning order to the wrong legal authority for the ban was a procedural error but that it could not be deemed to have affected the substance of the decision. However, it would have been an advantage if the order, in addition to referring to the proper legal authority, had expressly referred to the Penalty Points Regulation so that the defendant could immediately understand the background for the ban. The appeal was dismissed.

Reference: HR-2009-1915-A, case no. 2009/1163, criminal appeal against judgment.

 

7 October 2009           

Criminal law. Drug offence. Sentencing.

The case concerns sentencing following conviction for grievous drug offences of one of two defendants who together had cultivated cannabis plants on a grand scale, see the Penal Code section 162 subsections 1 and 2. The Supreme Court held that the defendant’s confession during the court proceedings and the information that he had given to the police did not justify a rebate in sentence that was any larger than the increase in sentence that must be made on account of the central role he had played in the offence. The sentence was fixed at three years imprisonment, the same as for the co-defendant, see the case reported in Rt-2009-518.

Reference: HR-2009-1914-A, case no. 2009/1166, criminal appeal against judgment.

 

6 October 2009           

Criminal procedure. Compensation for non-economic loss for time spent in custody on remand.

The case concerns compensation for non-economic loss for time spent on remand in custody for an accused who was acquitted, see the Criminal Procedure Act section 447, cf. section 446 subsection 1 (a). The accused had refused to give a statement to the police, first and foremost because he was afraid of implicating his uncle. The Supreme Court held that the accused was entitled to full compensation, see the Regulation on Standardized Compensation for Non-economic Loss for Unwarranted Prosecution section 2, and the parties agreed that he was also entitled to a 25 % supplement pursuant to section 3 of the Regulation.

Reference: HR-2009-1907-A, case no. 2009/307, civil appeal against judgment.

 

18 September 2009   

Drug felony. Amphetamine. False accusation. Penal Code section 162 subsections 1 and 2 and section 168. Implementation of Sentences Act section 45.

The case concerns sentencing following conviction for unlawfully acquiring amphetamine, unlawfully selling methamphetamine and false accusation of a criminal offence, see the Penal Code section 162 subsections 1 and 2 and section 168. In this connection, the Supreme Court was also required to consider whether it should pass a common sentence which also took account of the remainder of the term of a former sentence after the defendant had been released from prison on probation, see the Implementation of Sentences Act section 45. The Supreme Court held that the lower courts had attached too much weight to the defendant’s confession when it reduced the term of the sentence by 22 percent. Since the case had to be heard by a composite court and the defendant’s arrest was the result of undercover surveillance, his confession had hardly assisted the police at all. The criminal offences for which the defendant was convicted were committed shortly after he was released on probation and the Supreme Court found without doubt that a common sentence should be passed. It was inappropriate to pass a community service order or a suspended sentence. The Supreme Court allowed the prosecution authority’s appeal and fixed the sentence (as a common sentence) to imprisonment for a term of three years and three months

Reference: HR-2009-1827-A, case no. 2009/658, criminal appeal against judgement.

 

18 September 2009   

Family reunion. Immigration Act section 9 subsection 2.

The case concerns the validity of an administrative decision to refuse an application for family reunion pursuant to the Immigration Act section 9 subsection 2. Two siblings from Morocco applied to be reunited with their mother in Norway. The application had been refused on the grounds that the mother was now married to a man who was convicted of sexual assault of a child under 14 years of age, and it was therefore likely that the applicants “could be” mistreated or seriously abused if a residence permit was granted. The Court of Appeal had found that the administrative decision was invalid. The Supreme Court agreed with the Court of Appeal that there was insufficient evidence to show that the applicants more likely than not would be mistreated if the application was granted. The appeal was dismissed.

Reference: HR-2009-1826-A, case no. 2009/745, civil appeal against judgement.

 

18 September 2009            

Expropriation. Land Act section 14.

The case concerns the validity of a Royal Decree dated 7 October 2005 authorising expropriation of a smallholding pursuant to section 14 of the Land Act. The smallholding had been owned by the same family for three generations, and it was not disputed that the conditions for expropriation in section 14 subsection 2 of the Land Act were satisfied. However, the owner argued that the assessment of interests in section 2 subsection 2 of the Expropriation Act, which states that the “intervention must without doubt be more beneficial than detrimental” requires that the arguments in favour of expropriation must be substantially stronger than the arguments against. The Supreme Court disagreed and held that the term “without doubt” denotes an evidential requirement only. The owner also argued that the authorities were precluded from passing an expropriation order to his detriment on account of a previous decision on expropriation, which had been in his favour. The Supreme Court held that the expropriation order was invalid and that it should be set aside pursuant to section 35 subsection 1 (c) of the Public Administration Act.

Reference: HR-2009-1825-A, case no. 2009/212, civil appeal against judgement.

 

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.

 

9 September 2009   

Tax law. Corporate Tax Act section 1-6 no. 2. Corrective taxation. “Temporary difference”.

The case concerns interpretation of the concept ”temporary difference” in section 1-6 no. 2 of the Corporate Tax Act 1991, which is now abolished and replaced by section 10-5 subsection 2 of the Tax Act 1999. The issue in the case was whether a company was liable to corrective taxation because of a conditional tax exemption it had been granted in 1998 pursuant to the Group Regulations of 13 May 1991 no. 1158 in its capacity as transferring company in an inter-group transfer of shares. The Regulations were now abolished and replaced by Regulation of 19 November 1999 no. 1158 to supplement and implement section 11-21 of the Tax Act 1999. The Supreme Court stated that although a number of factors lent support to the state’s interpretation of “temporary difference”, this was not sufficiently explicit to allow tax payers to adjust to the consequences of this interpretation. The Supreme Court held – under some doubt – that the conditional tax exemption pursuant to the Group Regulations was not a ”temporary difference” and could not therefore justify corrective tax pursuant to section 1-6 of the Corporate Tax Act. The Supreme Court dismissed the state’s appeal against the Court of Appeal’s judgement.

Reference: HR-2009-1782-A, case no. 2009/117, civil appeal against judgement.

 

8 September 2009   

Penal law. Corporate penalty. Protection of countryside. Mistake of law. Nature Preservation Act section 24 subsection 1 cf. subsection 5, cf. Regulation of 29 April 2005 no. 392 section 3. Penal Code sections 57, 48a and section 48b.

The defendant had landed a helicopter in a protected area and the issue in the case was whether there was excusable mistake of law and whether the Norwegian Broadcasting Company (NRK) had aided and abetted the offence and was liable to penal sanctions. The Supreme Court set aside the judgement of and the appeal proceedings before the Court of Appeal insofar as they related to the conviction of the pilot. The Supreme Court held that because of the lack of information, among other things about the reliability of Avinor’s information systems AIP and NOTAM, a retrial before the Court of Appeal was necessary before it could consider whether the mistake of law was excusable. As regards NRK, the Supreme Court held that the basic conditions in section 48a of the Penal Code on the criminal liability of corporate enterprises were satisfied, but that the level of culpability displayed by NRK was not sufficiently high for a corporate penalty to have any purpose.

Reference: HR-2009-1767-A, case no. 2009/825, criminal appeal against judgement.

 

4 September 2009   

Appeal against sentence. Lack of reason. Implication for civil claim in criminal case. Criminal Procedure Act section 342 subsection 2 no. 3, cf. section 3, cf. section 343 subsection 1, Criminal Procedure Act section 434.

The appeal to the Supreme Court concerned sentencing following conviction for deprivation of liberty, threats and breach of an interim exclusion order. During the appeal proceedings before the Supreme Court, counsel for the defence alleged that the judgement of the Court of Appeal and its earlier decision to grant leave to appeal for only part of the appeal must be set aside on the grounds that the Court had not given a reason for its decision. The question before the Supreme Court was whether the decision to refuse leave to appeal should be set aside only in so far as it concerned the criminal claim, or whether it should also be set aside in so far as it applied to the civil claim that was submitted together with the criminal prosecution. The judgement was passed with dissenting votes.

Reference: HR-2009-1755-A, case no. 2009/729, criminal appeal against judgement.

 

3 September 2009           

Separate appeal against a civil claim for compensation determined in connection with criminal proceedings.

The case concerns a separate appeal against a civil claim for compensation adjudicated in connection with criminal proceedings, see the Criminal Procedure Act section 435. The parties had waived their claim at a point in time when it had to be assumed that the claims were abandoned, see the Disputes Act section 18-4 subsections 1 and 2. The defendant alleged that the matter had to be determined by the court, see the Disputes Act section 18-4 subsection 1 second sentence, cf. section 30-8 subsection 1 cf. section 9-7. The Supreme Court passed a judgement acquitting the defendant.

Reference: HR-2009-1747-A, case no. 2009/743, civil appeal against judgement.

 

2 September 2009            

Injunction. Patent law. Doctrine of equivalence. Patent Act section 39.

The appeal concerns a petition for an injunction in a case concerning alleged infringement of an analogy method patent for a drug. The question before the Supreme Court concerned the scope of protection given by the patent, see the Patent Act 39, and the dispute concerned the so-called doctrine of equivalence. The Supreme Court dismissed the appeal.

Reference: HR-2009-1735-A, case no. 2009/738, civil appeal against interlocutory order.

 

31 August 2009           

Sentencing. Negligently causing death by driving. Penal Code section 239, section 257 cf. sections 258 and 260. Road Traffic Act section 17 subsection 2.

The case concerns sentencing for negligently causing the death of another person by driving. It was not proven which of two youths had driven the car and which of them had been the passenger. Both youths were under the influence of alcohol when the accident happened and the passenger in the back seat of the car was killed. Both youths were convicted of manslaughter and of theft of the car keys and the car and for breach of the Road Traffic Act section 17 subsection 2. The Supreme Court reduced the sentence passed by the Court of Appeal to two years and one month and two years respectively. The judgment was passed with dissenting votes.

Reference: HR-2009-1719-A, case no. 2009/653, criminal appeal against judgement.

 

31 August 2009   

Drug felony. Amphetamine. Sentencing.

The case concerns sentencing for an aggravated drug felony, see the Penal Code section 162 subsections 1 and 2. The main question before the Supreme Court was whether there were grounds for imposing a community service order instead of a term of imprisonment. The defendant had stored 100 grams of heroine. The Court of Appeal had imposed a community service order on account of the defendant’s special family situation. The Supreme Court allowed the appeal and held that the sentence should be fixed at eight months imprisonment, of which 4 months were suspended.

Reference: HR-2009-1718-A, case no. 2009/902, criminal appeal against judgement.

 

31 August 2009   

Liability pursuant to the Limited Liability Companies Act section 2-19, cf. section 10-9.

The case concerns the liability of a former director of the board towards the company’s bankrupt estate for a shortfall in payment of registered share capital following a share capital increase – i.e. the extent of liability pursuant to the section 10-9 subsection 2 cf. section 2-19 of the Limited Liability Companies Act. The statutory provision provides that the directors and the company’s auditor are jointly and severally liable for “any shortfall in the share capital which has been reported to the Register of Business Enterprise and confirmed as paid or otherwise settled”. The defendant was acquitted. The judgement was passed with dissenting votes.

Reference: HR-2009-1717-A, case no. 2009/500, civil appeal against judgement.

 

31 August 2009           

Confiscation. Penal Code section 34. Pay for illegal work.

The case concerns breach of the Immigration Act section 47 subsection 1 (a), cf. section 6 subsection 1, which provides that it is illegal to work in Norway without a valid work permit. The main question before the Court of Appeal was whether the defendant’s liability to surrender the gain from the criminal offence should be reduced, see the Penal Code section 34 subsection 1 second sentence. The Supreme Court reduced the confiscated amount slightly on account of the fact that the defendant’s son required an operation.

Reference: HR-2009-1716-A, case no. 2009/835, criminal appeal against judgement.

 

26 August 2009           

Sentencing. Drug felony. Requirement of intent. Dolus eventualis. Penal Code section 162 subsection 1, cf. subsection 3, first sentence.

The issue before the Supreme Court was whether the reasons for the sentence given by the Court of Appeal demonstrated a proper understanding of the requirement of intent associated to the size of a quantity of drugs – the question of dolus eventualis. This required that the Court of Appeal had found it proven that the defendant had consciously decided that he would assist in storing the drugs notwithstanding that there was 15 kg of methamphetamine. The Supreme Court could not see that the Court of Appeal had done this, and there were no other indications in the reasons for the judgement that could remove the doubt that the Court of Appeal had correctly understood the requirement of intent. The Supreme Court set aside the Court of Appeal’s judgement and the appeal proceedings in so far as these related to item 1 of the indictment. It could not be ruled out that the jury had also misunderstood the requirement of intent in its determination of the question of guilt.

Reference: HR-2009-1694-A, case no. 2009/400, criminal appeal against judgement.

 

30 June 2009           

Occupational injury insurance. Interpretation of Occupational Injury Insurance Act section 11 subsection 1 (c). Burden of proof.

In the Supreme Court judgement reported in Rt-2008-1646, which was delivered three days after the Court of Appeal’s judgement in the present case, the Supreme Court had held that section 11 subsection 1 (c) of the Occupational Injury Insurance Act supplements not only subsection 1(b) but also subsection 1(a). Since the Court of Appeal had come to the opposite conclusion, the Supreme Court set aside the Court of Appeal’s judgement. The Supreme Court also found that the Court of Appeal had assessed the question of the burden of proof too narrowly when, in finding that the burden of proof lies with the insurance company, it had only attached weight to the injured party’s ability to secure evidence. The injured party was 21 years old and engaged as extra help during the Easter holiday. The Court of Appeal criticised the manner in which the employer had dealt with the case. In these circumstances, the court should have assessed more closely the parties’ incentive to secure evidence.

Reference: HR-2009-1376-A, case no. 2009/267, civil appeal against judgement.

 

30 June 2009           

Human trafficking. Pimp. Penal Code section 224 subsection 1 (a).

The main issue in the case was the interpretation of the alternative “or who induces another person to allow himself to be used for such purposes” in section 224 subsection 1 of the Penal Code, and whether the Court of Appeal’s directions to jury on this point was wrong. A majority of the Supreme Court dismissed the defendants’ appeal. One of the justices found that the appeal of one of the victims should be allowed.

Reference: HR-2009-1368-A, case no. 2009/754, criminal appeal against judgement.

 

29 June 2009           

Sentencing. Robbery. Community service. Penal Code section 268 subsection 2 cf. section 267.

Four young men between 17 ½ and 19 ½ years of age were convicted of robbery of a newsagent’s shop and theft of money, cigarettes and cash cards. The robbers were masked and used a soft gun to threaten an employee and her mother. The court found that two of the defendants were guilty of simple robbery bordering on aggravated robbery, while the other two were guilty of aggravated robbery. A majority of the Supreme Court found that all four defendants must be given prison sentences, and that a term of 15 months was appropriate having taken account of their youth and the fact that the offence was committed 2 years and 4 months ago. The suspended  part of the sentence was fixed at 9 months for two of the defendants and 6 months for the other two. One of the justices found, like the Court of Appeal, that two of the defendant had since changed their lifestyles completely and should therefore be given a community service order.

Reference: HR-2009-1360-A, case no. 2008/1921, criminal appeal against judgement.

 

29 June 2009           

Customs offence. Confiscation of driving licence.

The case concerns confiscation of a driving licence pursuant to section 33 no. 1 subsection 1 of the Road Traffic Act and section 2-6 of the Confiscation Regulations, and the conditions that must be met in order for a customs offence to be characterised as “particularly grievous”, see the Customs Act 1966 section 66. The Supreme Court found that smuggling 1180 litres of beer, 132 litres of wine, 600 packets of cigarettes and approximately 60 litres of spirits – which represented customs evasion of approximately NOK 88 000, did not qualify as “particularly grievous” and was therefore punishable pursuant to section 61 subsection 1 of the Customs Act, not section 66. The Supreme Court affirmed the prison sentence of 16 days. This did not preclude confiscation of the defendant’s driving licence, but the defendant’s driving licence was not confiscated in the present case because there were no particular reasons that justified this reaction.

Reference: HR-2009-1358-A, case no. 2009/499, criminal appeal against judgement.

 

29 June 2009           

Sentencing. Speeding. Road Traffic Act section 31.

Using a Police Pilot average speed radar detector, the police measured the average speed of a 20 year old man to be 163 km/hour over a distance of 34.85 km on a main highway. The issue in the case was whether the average speed reading could be used as a basis for sentencing, even though it was made using a different method than that prescribed in the government Regulations on speed measurement. The Supreme Court found that the particular facts of this case were very special and that it was therefore not possible to follow the strict wording of the Regulations. The Regulations were designed to safeguard the interests of the accused and these were sufficiently safeguarded in the present case. The Supreme Court dismissed the appeal and affirmed the District Court’s sentence of 40 days imprisonment and confiscation of driving licence for 30 months.

Reference: HR-2009-1355-A, case no. 2009/728, criminal appeal against judgement.

 

29 June 2009           

Sentencing. Aiding illegal immigration. Immigration Act section 47 subsection 3 (b).

The defendant had assisted the son of his Iranian neighbour to immigrate illegally from France to Norway. The Supreme Court pointed out that aiding illegal immigration without a view to financial gain was first criminalised in Norway in 2005. However, since illegal immigration has become a significant social problem, the Supreme Court found that preventive considerations justified a perceptible reaction. The District Court and the Court of Appeal had fixed the sentence at 120 days imprisonment. A majority of the Supreme Court reduced the prison term to 60 days. One of the justices voted in favour of a community service order.

Reference: HR-2009-1354-A, case no. 2009/662, criminal appeal against judgement.

 

26 June 2009            

Sentencing. Arson. Mental ability. Penal Code section 148, cf. section 56 (c).

The case concerns sentencing following conviction for arson involving a risk of loss of human life in circumstances where the defendant was slightly mentally retarded, see the Penal Code section 148 and section 56(c). The court could not rule out a causal connection between the defendant’s mental ability and the criminal act, and the penalty should therefore be reduced below the minimum sentence of two years’ imprisonment prescribed by section 148 of the Penal Code. However, in view of the catastrophic consequences that the arson could have had in this case, the penalty must still be proportionate to the gravity of the offence. The Supreme Court reduced the sentence to eighteen months’ imprisonment. The judgement was passed with dissenting votes

Reference: HR-2009-1338-A, case no. 2009/645, criminal appeal against judgement.

 

26 June 2009           

Procedure. Competence of juror. Courts of Justice Act section 108 and ECHR Article 6(1).

The case concerns appeal against a judgement in a criminal case concerning, among other things, attempted rape. The issue before the Supreme Court was whether a member of the jury who was acquainted with the victim was incompetent to sit on the jury panel. The juror had met the victim at birthday parties and on school trips with her foster daughter. The Supreme Court found that this contact did not in itself lead to identification between the juror and the victim or in any other way impair the juror’s impartiality. There had been only sporadic contact, not a close personal association, and the contact had taken place some years ago. The Supreme Court dismissed the appeal. The judgement was passed with dissenting votes.

Reference: HR-2009-1337-A, case no. 2009/612, criminal appeal against judgement.

 

26 June 2009           

Confiscation of driving licence. Incomplete confession. Application of law.

A motorist had collided with and damaged a parked car and had failed to inform the police or the owner of the parked vehicle. The Supreme Court found that the court record of the defendant’s statement at the trial was not sufficiently detailed for it to review whether she had made a “full confession”. Since the conviction in the District Court was based on a confession, the Supreme Court set aside both this and the Court of Appeal’s judgement and the appeal proceedings, see the Criminal Procedure Act section 342 subsection 2 no. 4. However, the Supreme Court went on to assess whether section 33 no. 1 of the Road Traffic Act, where appropriate together with the Confiscation Regulations, gave authority to order confiscation of a driving licence for breach of section 12 subsection 3, fourth sentence of the Road Traffic Act. The Supreme Court found that section 2-7 no. 2 of the Confiscation Regulations does not cover this offence. However, section 22 no. 1 of the Road Traffic Act contains a general power to confiscate a driving licence. The Confiscation Regulations are not intended to be exhaustive, see section 1-1.

Reference: HR-2009-1336-A, case no. 2009/679, criminal appeal against judgement.

 

26 June 2009           

Sentencing. Importing amphetamine. Length of time to bring the case to trial. Reduction of sentence. Penal Code section 162 subsections 1 and 3, second sentence cf. subsection 5.

The case concerns sentencing, primarily for storing and attempting to import a very large quantity of amphetamine. Due to a procedural error, more than 10 years had passed since the offence took place and the main issue was what affect this should have on the sentence. A majority of the Supreme Court found that the accused had been adequately recompensed for the delay and the additional burden he had suffered by the Court of Appeal’s reduction of the sentence from 12 years to 8 years’ imprisonment, where, moreover, two years were suspended. The appeal was dismissed. The judgement was passed with dissenting votes.

Reference: HR-2009-1335-A, case no. 2009/508, criminal appeal against judgement.

 

25 June 2009           

Immigration law. Work permit.

The case concerns review of the legality of the Immigration Board’s decision to refuse an application for a work permit and the Board’s subsequent decision not to change the decision, see the Immigration Act section 8 subsection 2 and the Immigration Regulations section 37 subsection 6, cf. section 21 subsection 5. The Supreme Court, like the Court of Appeal, found that there were strong indications that the Board had based its decision on erroneous or deficient information in finding that that the applicant, an Indian casteless woman who was divorced in Norway, would be able to sustain herself upon return to her home village in Punjab. The Supreme Court found that both decisions of the Immigration Boards were invalid.

Reference: HR-2009-1330-A, case no. 2009/178, civil appeal against judgement.

 

24 June 2009           

Alcohol advertising. EEA law. Alcohol Act section 9-2 subsection 1.

The case concerns the validity of the Marketing Board’s decision of 22 June 2005 concerning breach of the prohibition against alcohol advertising in section 9-2 subsection 1 of the Alcohol Act. The question before the Supreme Court was whether an absolute prohibition is deemed necessary. This is first and foremost a question of whether there are suitable alternative measures to obtain the same goal but which to a lesser degree limit restrictions on trade within the EEA. In addition, it has to be decided whether to weigh the political issues related to alcohol policy against the principle of freedom of movement of goods. The Supreme Court came to the same conclusion as the Court of Appeal and held that the decision of the Marketing Board did not violate EEA law. The Supreme Court dismissed the appeal.

Reference: HR-2009-1319-A, case no. 2009/43, civil appeal against judgement.

 

17 June 2009           

Tax law. Balance of payment on sale of shares. Taxation Act section 5-10.

The case concerns the validity of the shareholders’ tax assessment relating to the transfer of all of the shares in the company. The issue before the Supreme Court was whether this was a ”benefit obtained through employment” pursuant to section 5-10 of the Tax Act in circumstances where the sellers at the same time entered into an obligation to be employed by the company, or by other companies within the same group, after the sale, and not to compete with the company. Contrary to the District Court and the Court of Appeal, the Supreme Court held that the full balance on the payment of shares must be deemed to be a “benefit obtained through employment”.

Reference: HR-2009-1239-A, case no. 2008/1821, civil appeal against judgement.

 

15 June 2009           

Sentencing. Drug felony. Time spent bringing case to trial. Penal Code section 162 subsections 1 and 2. Penal Code section 59. ECHR Article 6 section 1 and Article 13.

The case concerns sentencing following conviction for drug felonies, where the principal question was whether the time spent bringing the case to trial justified the imposition of a suspended sentence or a community service order. The two defendants had imported and stored approximately 200 amphetamine tablets. Their intention was to clear a debt. The preparation of the case had taken three years and three months for reasons for which the defendants could not be blamed. The Supreme Court held that a community service order was not appropriate in the circumstances, but sentenced them to fourteen months imprisonment, of which nine months were suspended. The Supreme Court remarked that the Court of Appeal had given too much weight to the defendants’ confessions and that a reduction in sentence of approximately 20 percent was correct.

Reference: HR-2009-1220-A, case no. 2009/647 and case no. 2009/648, criminal cases.

 

15 June 2009           

Criminal procedure. Handling of case. Helicopter accident. Deficient reasons for judgement.

The case concerns the procedure before the Court of Appeal and deficiencies in the reason given for the conviction of a helicopter pilot for manslaughter, negligent serious assault and reckless or careless manoeuvring of the helicopter. It was also an issue whether the case ought to have been postponed in order to be fully clarified, see the Criminal Procedure Act section 294. The Supreme Court set aside the Court of Appeal’s judgement and the appeal proceedings.

Reference: HR-2009-1219-A, case no. 2008/1835, criminal appeal against judgement

 

12 June 2009           

Penal law. Sexual assault. Procedure. Fair trial. No reason from jury. ECHR Article 6 section 1, ICCPR Article 14 no. 1 and no. 5. Grand Chamber

The case concerns an appeal against the judgement of the Court of Appeal in a criminal case concerning, among other things, sexual offences. It gives rise in particular to whether the fact that the questions concerning the defendant’s guilt were 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 found that the appeal proceedings before the Court of Appeal represented a substantial review of the District Court’s judgement, and satisfied in other respects the purpose that a reasoned judgement should fulfil. There was no violation of the ECHR or the ICCPR. The appeal was dismissed. See also the decision in HR-2009-1192-P of the same date on the same subject.

Reference:            HR-2009-1193-P, case no. 2009/202, criminal appeal against judgement.

 

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.

 

11 June 2009            

Impartiality of judges. Courts of Justice Act section 108.

The case concerns the impartiality of Chief Justice Schei and Mr Justice Bårdsen in Supreme Court cases no. 2009/363 and 2009/365, which were to be heard by the Grand Chamber. The Supreme Court held that Chief Justice Schei and Mr Justice Bårdsen’s participation in the Civil Procedure Commission was not liable to cast doubt on their impartiality in the Grand Chamber cases. The fact that the respondent’s legal counsel, who was under examination in the case for a licence to litigate before the Supreme Court, was employed in the law firm where Chief Justice Schei’s wife was a partner, did not give grounds for a finding of impartiality on the part of Chief Justice Schei either.

Reference: HR-2009-1199-S, case no. 2009/363 and case no. 2009/365), civil appeal against decision.

 

5 June 2009            

Legal counsel. Courts of Justice Act sections 223 and 225.

The issue in the case was whether a disciplinary reaction (correction) issued by the Supervisory Council for Legal Practice against a lawyer in private practice was based on a correct understanding of section 223 of the Courts of Justice Act concerning authorised associate lawyers, and whether section 225 subsection 3 of the Act provided the legal authority for the reaction. The Supreme Court dismissed the appeal.

Reference: HR-2009-1155-A, case no. 2009/299), civil appeal against judgement.

 

5 June 2009           

Time-limit for bringing a claim. Working Environment Act section 17-4.

The case concerns a claim for compensation brought against an employer by a former employee who had resigned from his post with immediate effect. The issues in the case concern the scope of application of the special rules of procedure in chapter 17 of the Working Environment Act, and interpretation of section 17-4 on the time-limit for bringing a claim. The main issue was whether the case must be dismissed because the time-limit for bringing a claim in section 17-4 had expired. Adherence to the time-limit is an absolute procedural requirement. If the time-limit has expired, the court must dismiss the action of its own accord. The Supreme Court dismissed the action.

Reference: HR-2009-1156-A, case no. 2009/188, civil appeal against judgement.

 

5 June 2009           

Immigration law. Extradition. Immigration Act section 58. Council Directive 64/221/EØF .

The case concerns judicial review of an extradition order pursuant to the special rules for citizens of member states of the EEA Agreement. A Polish citizen was convicted for the second time of serious drug felonies in Norway. He also had three other criminal convictions against him. The Directorate of Immigration issued an extradition order, limited to five years, pursuant to section 58 subsection 1 cf. subsection 2 of the Immigration Act. The Court of Appeal found that the order was void and gave decisive weight to the defendant’s family ties in Norway. The Supreme Court found that the order of the Directorate of Immigration was valid. The convictions clearly demonstrated that the defendant had no inhibitions about contravening societal norms. In such circumstances, the extradition was not disproportionate onerous on his family

Reference: HR-2009-1151-A, case no. 2009/205, civil appeal against judgement.

 

3 June 2009           

Reappraisal. Park principle. Planning and Building Act section 42.

The case concerns an appeal against a reappraisal and the determination of compensation upon realization of property regulated for recreational purposes pursuant to section 42 of the Planning and Building Act. The issue before the Supreme Court was whether the so-called park principle was applicable. The reappraisal was set aside and the case referred back to the Court of Appeal for a new hearing.

Reference: HR-2009-1130-A, case no. 2008/1971, civil appeal against judgement.

 

3 June 2009           

Validity of a dismissal. Working Environment Act section 15-12 subsection 1, second sentence

The case concerns the validity of a dismissal. If the dismissal was invalid, the employer alleged that the employment relationship should still be brought to an end pursuant to section 15-12 subsection 1 second sentence of the Working Environment Act. The Supreme Court found that when the criminal acts for which the employee had been convicted had already led to a change in his tasks and areas of responsibility, only limited weight could be given to them when applying section 15-12 subsection 1 second sentence of the Working Environment Act. The assessment in section 15-12 subsection 1 second sentence must be made on the basis of the current situation. The employer’s and colleagues’ alleged lack of confidence in the employee was irrelevant to the assessment of whether it was clearly unreasonable that the employee should continue in his employment. The employer – a county council – was under a duty, like all employers, to foster inclusive working conditions and to combat exclusion from working life, see section 1-1(e) of the Working Environment Act. The Supreme Court dismissed the county council’s claim that the employment relationship should be brought to an end.

Reference: HR-2009-1129-A, case no. 2009/101, civil appeal against judgement.

 

29 May 2009           

Amendment to the regulation plan for recreational land

The case concerns the validity of the decision of the County Governor of Oslo and Akershus dated 22 May 2006 approving the decision of the Oslo Municipal Authority dated 7 December 2005 to amend the regulation plan for an area of recreational land in Oslo. The US Embassy purchased the land in question from the Norwegian Ministry of Defence in June 2004 as a site for a new Embassy. The amended regulation plan permitted the building of the new Embassy there. The Supreme Court dismissed the appeal.

Reference:            HR-2009-1093-A, case no. 2008/1851, civil appeal against judgement.

 

11 May 2009           

Appeal against fine for unlawful fishing. Deficient fine

The case concerns an appeal against a fine for unlawful fishing which had been accepted, and whether it was sufficient that the fine had been orally translated for the accused. It also gives rise to the question whether the factual basis for the fine was sufficiently particularised, and the relevance of the fact that the legal basis for the fine was incorrectly stated. The Supreme Court held that the description of the factual basis for the fine was inadequate and that the legal basis was incorrect. Altogether, the fines were so deficient that they did not satisfy the minimum requirement that must be fulfilled. The Supreme Court seta side the acceptance of the fines.

Reference: HR-2009-988-A, case no. 2009/211, criminal appeal against judgement.

 

7 May 2009           

Extradition. War criminal. Extradition Act section 10 no. 2.

The case concerns a request for extradition of a Bosnian citizen to Bosnia and Herzegovina and whether the condition in section 10 no. 2 of the Extradition Act was satisfied. It also concerns whether the circumstances on which the request for extradition was based constitute a breach of section 225 of the Penal Code on slavery. The Supreme Court set aside the Court of Appeal’s interlocutory order.

Reference: HR-2009-976-A, case no. 2009/220, criminal appeal against interlocutory order.

                       

7 May 2009           

Labour law. Temporary employment. Working Environment Act section 14-9.

The issue in the case was whether a person who was employed in a number of temporary posts over several years case was entitled to permanent employment, either pursuant to the four-year rule in section 14-9 subsection 5 of the Working Environment Act or pursuant to the unwritten principle in the Statfjord case reported in Rt-1989-1116 and the Ambulance Case reported in Rt-2006-1158. The Supreme Court found in favour of the employer hospital, with dissenting votes (3:2).

Reference: HR-2009-975-A, case no. 2008/1888, civil appeal against judgement.

 

6 May 2009           

Competence of the courts. Public administration law. Disputes Act section 29-20 and section 36-5. Children Act section 8. Child Welfare Act section 7-10.

The case concerns the annulment of the Court of Appeal’s judgement on the grounds that the Court of Appeal had gone beyond the prayer for relief put forward in the case and had disregarded the parties’ right to contradict evidence put forward against them during the proceedings. It also concerns the duty of a local authority to submit a case to the County Social Welfare Board in circumstances where a claim has been made to release a child from care, and whether the courts can give judgement for such a duty.

Reference: HR-2009-965-A, case no. 2009/46, civil appeal against judgement.

 

30 April 2009           

Deportation. Disproportionate reaction. Immigration Act section 29 subsection 1 (c), cf. subsection 2.

The case concerns a deportation order pursuant to section 29 subsection 1 (c) of the Immigration Act and whether deportation was a disproportionate reaction pursuant to section 29 subsection 2 of the Act. Despite the seriousness of the criminal offences for which A was convicted, the Supreme Court found that in view of the fact that A was very young when he arrived in Norway and that he had no ties to Chile, the deportation order must be deemed to be a disproportionate reaction. The Supreme Court dismissed the appeal.

Reference:            HR-2009-930-A, case no. 2008/1212, civil appeal against judgement.

 

30 April 2009           

Deportation. Disproportionate reaction. Immigration Act section 29 subsection 1 (a), cf. subsection 2.

The case concerns validity of a deportation order pursuant to the Immigration Act, in particular whether the deportation order was a disproportionate reaction with regard to the deportee’s children, see the Immigration Act section 29 subsection 2. The Supreme Court found that if deportation was deemed to be disproportionate in the current case, it was difficult to see when it would not be disproportionate to deport persons who had children with partners with residence permits. The consequence would be that foreigners in these circumstances would be protected against deportation, which would be a change in current practice and would clearly have undesirable repercussions. The Supreme Court affirmed the judgement of the District Court, with dissenting votes (3-2).

Reference: HR-2009-929-A, case no. 2008/1257, civil appeal against judgement.

 

29 April 2009           

Gross breach of trust. Application of law. Intent. Penal Code section 276, cf. section 275

The case concerns conviction for two counts of gross breach of trust pursuant to the Penal Code section 276, cf. section 275. The appeal concerned primarily the Court of Appeal’s application of law and procedure – that the reasons for the judgement were deficient. A deputy bank manager had received NOK 150 000 from a bank customer. He had also released USD 200 000 to the customer that should have been applied to repayment of the customer’s loan, and had therefore gone beyond his authority. The Supreme Court found that it is not a condition for conviction for breach of trust that the principal has suffered a loss or that the perpetrator has expected a gain. The sentence delivered by the Court of Appeal of seven months’ imprisonment, of which 90 days were suspended , was clearly not too strict.

Reference: HR-2009-926-A, case no. 2009/298, criminal appeal against judgement.

 

23 April 2009           

Sentencing. Cultivating cannabis plants. Penal Code section 162 subsections and 2.

The case concerns sentencing for manufacturing and storing narcotic substances where the defendant had cultivated cannabis plants on a large scale and in a professional manner. A particular issue in the case was how to deal with the fact that the defendant had prepared a large scale production facility but that the production process had not got very far. The case concerns an extremely large number of plants, 1 170 according to the indictment. Due to a fire in the house, production was interrupted at an early stage and it was assessed that the usable portion of the plants that were confiscated would have yielded 17.9 kg of cannabis with a THC content of 2 %, or 387 g THC, equivalent to approximately 5.5 kg hashish with a potency of 7 %, or 7900 user doses. It was estimated that if the cannabis plants had grown, they would have produced more than 100 kg marihuana. The Supreme Court found that the production capacity justified a sentence of between three and a half and four years. However, it took account of the fact that the production process had not got very far and of the defendant’s role in the crime, and reduced the sentence to three years’ imprisonment.

Reference: HR-2009-879-A, case no. 2009/301, criminal appeal against judgement.

 

23 April 2009           

Procedure. Deficient reasons in Court of Appeal decision. Criminal Procedure Act section 321 subsections 2 and 3

The case concerns the Court of Appeal’s procedure in connection with a partial refusal of leave to appeal in a criminal case, and the subsequent judgement on those parts of the appeal for which leave to appeal was granted. The main questions were whether reasons should have been given for the refusal to grant leave, whether the refusal to grant leave could be set aside in connection with the appeal against the subsequent judgement, and whether such setting aside would also have consequences for the Court of Appeal’s judgement. The Supreme Court held that, in the present case, the judgement of and appeal proceedings before the Court of Appeal must be set aside on account of the failure to give reasons for the refusal to grant leave. The unreasoned decision of the Court of Appeal which in part denied leave to appeal was therefore also set aside.

Reference: HR-2009-878-A, case no. 2009/155, criminal appeal against judgement.

 

23 April 2009           

Procedure. Deficient reasons in Court of Appeal decision. Criminal Procedure Act section 321 subsections 2 and 6. ICCPR Article 14 no. 5.

The appeal to the Supreme Court in this case concerned sentencing for serious doping offences etc and the measure of a confiscation order. Outside the terms of the appeal, however, counsel for the defence had in the course of the proceedings before the Supreme Court alleged that the Court of Appeal’s judgement and its earlier decision to only partly grant leave to appeal to the Court of Appeal must be set aside on the grounds of a procedural error in that no reasons were given for the decision. The Supreme Court agreed and set aside the unreasoned decision and the judgement of and proceedings before the Court of Appeal.

Reference: HR-2009-877-A, case no. 2009/300, criminal appeal against judgement.

 

15 April 2009           

Insurance law. Insurance Agreements Act section 5-2 subsection 3.

The case concerns a dispute in connection with an insurance settlement following a fire. The issue in dispute was whether new insurance cover was established by payment of the insurance premium after the previous insurance policy had lapsed due to failure to pay premiums, see the Insurance Agreements Act of 16 June no. 69 section 5-2 subsection 3. Based on the history of the relevant provisions of the Act and public policy, the Supreme Court held that section 5-2 subsection 3 must be deemed to regulate the due date for payment. The reference in section 5-2 subsection 3 of the Act to section 3-1 subsection 3 of the Act implies that the rule whereby an insurance policy shall start to run from the date when insurance coverage is requested and not from the date when the request is accepted by the insurer also applies to insurances covered by section 5-2 subsection 3. The Supreme Court allowed the appeal from the owner of the property.

Reference: HR-2009-801-A, case no. 2008/1916, civil appeal against judgement.

 

3 April 2009           

Competence of Supreme Court justice. Cohabitation. Courts of Justice Act section 106, section 108. ECHR Article 6 (1).

The issue in the case was whether a justice of the Supreme Court was incompetent to participate in an upcoming plenary case on the grounds that she and the Attorney General are cohabitees. The plenary case concerned the Norwegian jury system’s compliance with human rights. It was likely that the case would be referred to international human rights organs if the appeal to the Supreme Court was not successful, in which case the Attorney General would be likely to represent the state. A majority of the Supreme Courts held that Mrs Justice Coward was not incompetent to hear the case. Section 106 of the Courts of Justice Act does not regulate the consequences of a close relative’s possible future association with a case. The provision is structured such that it is the person who subsequently is called on to act as judge or juror who must, where appropriate, take the consequence of a close relative’s previous association with a case. The judgement was passed with dissenting votes (11-6).

Reference: HR-2009-760-P, case no. 2009/202 and case no. 2009/397, criminal appeal against judgement.

 

2 April 2009            

Competence of Supreme Court justice. Courts of Justice Act section 108.

The issue in the case was whether a Supreme Court justice was incompetent on the grounds of impartiality to participate in a decision on the competence of another Supreme Court justice after he had raised questions concerning the said Supreme Court justice’s competence. The first-mentioned justice had sent an e-mail expressing his views, and he had written about the matter in a manuscript that was handed out at a Nordic meeting of Supreme Court Justices a few days before the plenary hearing. A unanimous Supreme Court, sitting in plenary, held that the Supreme Court justice was not incompetent to participate in the competency decision. It is important that the question of possible impartiality is raised. Even though the justice had expressed his views on the issue, the Supreme Court found that he had not reached a final conclusion. In any event, the question was one of law and not of evidence.

Reference: HR-2009-752-P, case no. 2009/202 and case no. 2009/397, criminal appeal against judgement.

 

2 April 2009           

Criminal procedure. Animal protection.

A man was by a judgement of the court prohibited from keeping domestic animals and the Court of Appeal found it proven that he had breached the prohibition, see section 32 of the Animal Protection Act. The Supreme Court held that the reasons given by the Court of Appeal did not sufficiently explain what the man had done that constituted a breach of the prohibition and therefore set aside the judgement and appeal proceedings, see the Criminal Procedure Act section 343 subsection 2 no. 8.

Reference: HR-2009-748-A, case no. 2008/1996, criminal appeal against judgement.

 

2 April 2009           

Tax law. Natural resources tax. Ground rent tax. Lease. Tax Act (1911) section 19a and section 43. Tax Act (1999) section 9-2 and section 18-2.

The case concerns the tax assessment of Nordkraft AS for the fiscal years 2002, 2003 and 2004. The main issue in the case was who, during these years, was deemed to be the owner for tax purposes of shares in the extraction rights to Kobbelv power station. The Supreme Court dismissed the appeal.

Reference: HR-2009-747-A, case no. 2008/1833, civil appeal against judgement.

 

2 April 2009           

Absconding whilst on leave from prison, threats and deprivation of liberty of prison employee. Penal Code section 227 second sentencing alternative, section 223 subsections 1 and 2, section 222 subsection 1 second sentencing alternative and section 232 and section 131 first sentencing alternative.

The case concerns sentencing of two men who were convicted of several offences committed in connection with their escape from prison. The Supreme Court dismissed the appeal.

Reference: HR-2009-743-A, case no. 2008/1990, criminal appeal against judgement.

 

1 April 2009           

Patient Injury Compensation. Damages Act section 3-2a. Cost of nursing care

The case raised two main questions. The first question was whether the applicant could claim compensation for loss of income suffered up until the date of settlement in addition to standardised compensation for injuries to minors pursuant to the provisions of the Damages Act section 3-2a. The second question concerned the calculation of damages for the cost of nursing care. The Supreme Court dismissed the appeal.

Reference: HR-2009-736-A, case no. 2008/568, civil appeal against judgement.

 

1 April 2009           

Impartiality of judge. Courts of Justice Act section 108.

The Supreme Court held that the Court of Appeal’s judgement ordering the defendant to be transferred to forced mental health care pursuant to section 39 no. 1 of the Penal Code must be set aside in its entirety because one of the Court of Appeal judges was incompetent on the grounds of partiality, see section 108 of the Courts of Justice Act. The judge had participated in the Court of Appeal’s decision to remand the defendant in custody pending trial pursuant to section 171 subsection 1 no. 3 of the Criminal Procedure Act.

Reference: HR-2009-735-A, case no. 2009/477, criminal appeal against judgement.

 

27 March 2009           

Application of law. Fraud. Penal Code section 270 subsection 1 no. 1.

A conviction for fraud pursuant to section 270 subsection 1 no. 1 of the Penal Code requires that the loss or risk of loss is suffered by the person who is induced to commit an act or the person on whose behalf he is acting. The defendant had attempted to induce an employee at the sheriff’s office in Oslo to take out a writ of execution against Lindorff AS by submitting a false promissory note as the basis of execution. In accordance with the facts set out in the indictment, the lower instance courts had found that the defendant had attempted to induce the sheriff, while the party that was in fact exposed to risk of loss was Lindorff AS. The Supreme Court set aside the proceedings and the judgements of the Court of Appeal and the District Court.

Reference: HR-2009-703-A, case no. 2009/76, criminal appeal against judgement.

 

26 March 2009           

Sentencing. Skimming. False credit card. Penal Code section 185 subsection 2 cf. section 60a. Penal Code section 270 subsection 1 no. 2, cf. subsection 2, cf. section 271, cf. section 60a. Penal Code section 183, cf. section 60a, Penal Code section 317, cf. section 60a.

The case concerns sentencing of three defendants who had played a minor role in an organised gang that had imported false credit cards, ”skimmed” authentic credit cards in Norway, manufactured false credit cards and made a large number of bank transactions which on the whole were done with the agreement of the owner of the pay terminals. The Supreme Court commented on the general sentencing level in cases like this and drew a parallel with counterfeiting money. The Court stated that a community service order would generally be out of the question. The appeal had been with the prosecution for approximately 10 months without any attention being given to it, and part of the prison sentence was therefore suspended .

Reference: HR-2009-693-A, case no. 2008/1952, criminal appeal against judgement.

 

26 March 2009           

Late submission of tax return. Application of law. Tax assessment Act section 12-1.

The case concerns application of the penalty provisions in section 12-1 no. 1 (d) of the Tax Assessment Act for failure to submit a tax return on time. The tax payer had submitted his tax return for 2005 six months after the submission deadline and his tax return for 2006 three months after the submission deadline. During these years, his income was small. The Court of Appeal held that the breach of the Tax Assessment was minor and acquitted the tax payer. The Supreme Court agreed with this and dismissed the prosecution authority’s appeal.

Reference: HR-2009-692-A, case no. 2009/32, criminal appeal against judgement.

 

19 March 2009           

Penal law. Arson. Application of law. Penal Code section 148 subsection 1, first sentencing alternative and section 292, cf. section 291.

On his way home from a party, the defendant had set light to two rubbish bags containing flammable material that were stacked up against a wooden fence in a lean-to in the grounds of a primary school. The fire spread to the wooden fence and the roof, but was quickly extinguished by a neighbour. The Supreme Court held that section 148 subsection 1 of the Penal Code applies when the act may easily result in extensive damage to another person’s property. It is not necessary to prove that it was more likely than not that this would happen. The defendant was sentenced to 30 months imprisonment, of which six months were suspended.

Reference: HR-2009-641-A, case no. 2009/203, criminal appeal against judgement.

 

19 March 2009           

Administrative law. Planning and building law. Liability for invalid decision.

The case concerns the validity of the county governor’s decision pursuant to section 113 of the Planning and Building Act to stop construction work that was being carried out in connection with the upgrading of a power plant and a water treatment plant. A majority of the Supreme Court held that the decision to stop the work was based on a misinterpretation of section 113 cf. section 23 no. 1 of the Planning and Building Act. The county governor had used the lack of a regulation plan as a general reason to stop otherwise lawful work in order to enforce the local authority’s obligation to prepare a regulation plan. Section 7 of the Regulation on Procedure and Control in Building Cases must be understood such that construction work on the power plant and associated buildings could be carried out without further approvals pursuant to the Planning and Building Act. The Supreme Court held unanimously that the order to stop work was unlawful and that the state was liable for the financial loss suffered by the proprietor as a consequence of the invalid decision.

Reference: HR-2009-638-A, case no. 2008/1720, civil appeal against judgement.

 

13 March 2009            

Criminal procedure. Reversal of leave to appeal.

The issue in the case was whether the Court of Appeal had committed a procedural error when, after it had allowed an application for leave to appeal against sentence, it reserved its decision and reduced the sentence pursuant to section 322 subsection 1 no 3 of the Criminal Procedure Act. The Supreme Court referred to the preparatory works to the Criminal Procedure Act and to legal theory and held that a decision to grant leave to appeal is irreversible. The Court also held that the procedural error could have affected the substance of the judgement and therefore set aside the Court of Appeal’s judgement, see the Criminal Procedure Act section 343 subsection 1.

Reference: HR-2009-593-A, case no. 2009/47, criminal appeal against judgement.

 

13 March 2009           

Penal law. Sexual assault. Sentencing. Penal Code section 195 subsection 1, second sentencing alternative, cf. section 206. Sentencing. Suspended sentence. The case concerns sentencing for several counts of sexual assault of a 10-11 year old girl in breach of the Penal Code section 195 subsection 1, cf. section 206. The defendant was 16 year old and lived in the same foster home as the girl when the offences took place.  The Supreme Court attached weight to the defendant’s youth and that he had also been the victim of sexual abuse and neglect. The Supreme Court also attached weight to the fact that the defendant’s liberty had been restricted by the child welfare services and that he was responding positively to a comprehensive rehabilitation program. The Supreme Court held that the defendant’s personal circumstances justified suspending execution of the full 20 month prison sentence.

Reference: HR-2009-592-A, case no. 2009/64, criminal appeal against judgement.

 

13 March 2009           

Sentencing. Rape. Penal Code section 192 subsection 1(b) cf. subsection 2(a). Community service.

The case concerns sentencing of a 17 year old man who was convicted of raping a girl who was nearly 16 years old. The girl was unable to defend herself because she was intoxicated. The rape had included full sexual intercourse and attempted sexual intercourse. The issue in the case was whether a community service order was an appropriate reaction. The Supreme Court held that the defendant’s youth and his confession were not sufficient to justify a community service order. The Supreme Court affirmed the District Court’s sentence of seven months imprisoned, of which 120 days were suspended.

Reference: HR-2009-591-A, case no. 2009/69, criminal appeal against judgement.

 

6 March 2009           

Penal law. Road Traffic Act. Manslaughter. Application of law. Sentencing. Duty of care in traffic. Penal Code section 239 and Road Traffic Act section 31 subsection 1, cf. section 3.

The case concerns conviction for breach of the Penal Code section 239 and the Road Traffic Act section 31, cf. section 3. The main question was whether the Court of Appeal had applied the proper duty of care. The Supreme Court emphasised that a buss driver must ensure that a pedestrian area is clear before he enters the area, whether or not it is regulated by traffic lights. The defendant bus driver had not done that, and was therefore convicted in accordance with the general duty of care in the Road Traffic Act section 31 subsection 1, cf. section 3. However, having regard to the reason why the error was committed and the victim’s conduct, the Supreme Court held – under doubt – that the defendant’s negligence was not of such a degree that it also warranted conviction for manslaughter pursuant to the Penal Code section 239. The bus driver was acquitted of this charge.

Reference: HR-2009-556-A, case no. 2008/1897, criminal appeal against judgement.

 

6 March 2009           

Penal law. Drug felony. Community service. Penal Code section 162 subsections 1 and 2, cf. Penal Code section 28a.

The case concerns sentencing for a serious drug felony, more particularly obtaining 90.83 gram of heroin. The issue in the case was whether there were grounds to impose a community service order. The Supreme Court was in doubt but concluded that the purpose of punishment did not preclude the application of community service in a case like this. The defendant had a long history of drug abuse behind him. He had now sorted his life out and ought therefore to be given the chance that is implicit in a community service order. As the Supreme Court had stated in its judgement recorded in HR-2009-554-A, community service is also a palpable sanction. The Court of Appeal had found that the term of the community service order should be fixed at the statutory maximum of 420 hours. However, the period for performance of the community service and the alternative term of imprisonment for breach of the order ought not to be more than 18 months, see the Penal Code section 28a subsection 3 (b), which provides that the alternative term of imprisonment should correspond to the length of the sentence that would have been imposed without community service.

Reference:            HR-2009-555-A, case no. 2009/122, criminal appeal against judgement.

 

6 March 2009           

Penal law. Sentencing. Serious drug felony. Community service. Penal Code section 162 subsection 2, cf. subsection 1, cf. Penal Code section 28a.

The case concerns sentencing for, among other things, two serious drug felonies, see the Penal Code section 162 subsection 2 cf. subsection 1. The issue in the case was whether there were grounds for imposing community service instead of imprisonment, see the Penal Code section 28a. The offence was committed two and a half years ago. The Supreme Court found that it would be unfortunate for the defendant’s continued rehabilitation if he were to serve a prison sentence now, particularly in view of the combined effect of his rehabilitation and the length of time it had taken to bring the case to trial. The Supreme Court was in doubt but concluded that the rehabilitation interests were sufficiently clear and strong in this case to justify community service instead of imprisonment, and fixed the sentence at 420 hours of community service to be performed within a period of 18 months.

Reference: HR-2009-554-A, case no. 2008/1898, criminal appeal against judgement.

 

6 March 2009           

Penal law. Sentencing. Cultivating drugs. Sentencing. Penal Code section 162 subsection 2.

The case concerns sentencing for cultivating and storing narcotic substances where the accused had cultivated cannabis plants on a large scale and in a professional manner. A man of Vietnamese background had cultivated 304 cannabis plants but the plants were far from fully grown when he was arrested. Approximately 1.9 kg of cannabis had been produced from the plants, which would yield approximately 0.3 kg of normal potency hashish. If the plants had been fully grown, they would have yielded approximately 24 kg usable material. The Supreme Court referred to the sentencing guidelines drawn up in its judgement in HR-2009-548-A and dismissed the defendant’s appeal.

Reference: HR-2009-549-A, case no. 2008/1972, criminal appeal against judgement.

 

6 March 2009           

Penal law. Cultivating drugs. Sentencing. Penal Code section 162 subsection 1 and 2, cf. subsection 5.

Three men of Vietnamese background were charged with having cultivated 224 cannabis plants, which would have yielded approximately 17.7 kg of cannabis, equivalent to 5 kg hashish with a potency of 7 % THC. The Supreme Court emphasised that when sentencing for manufacturing of drugs, less attention should be given to the quantity of drugs at the time of confiscation and more attention should be given to the production capacity that the number of plants represented. The sentencing level for cultivating drugs should be the same as for importing drugs, see the Penal Code section 162 subsection 1. The Supreme Court affirmed the sentence passed by the Court of Appeal, except that the sentence of one of the defendants was reduced because he had only looked after the plants for four weeks.

Reference: HR-2009-548-A, case no. 2008/1818, criminal appeal against judgement.

 

6 March 2009           

Compensation for non-economic loss. Freedom of speech. Right of privacy. ECHR.

A man of Libanese background was photographed whilst he participated in a demonstration against the Muhammed cartoons in Oslo. The picture was used as an eye catcher for a magazine article about immigration, but it was not clear in what connection the picture had been taken. The Supreme Court held that the use of the photograph violated section 45c of the Copyright Act and ECHR Article 8, interpreted in light of the limitations in Article 10. The Supreme Court ordered the publisher of the magazine to pay NOK 100 000 in compensation, and the editor to pay NOK 20 000.

Reference: HR-2009-547-A, case no. 2008/1808, civil appeal against judgement.

 

4 March 2009           

Criminal procedure. Refusal of leave to appeal. No reasons given for decision

The Supreme Court referred to the interlocutory judgements of the Grand Chamber of the Supreme Court of 19 December 2008 in Rt-2008-1764, Rt-2008-1783 and Rt-2008-1786, where the Supreme Court held that Article 14 (5) of the ICCPR requires that reasons must be given for a refusal to grant leave to appeal pursuant to the Criminal Procedure Act section 321 subsection 2, and held that the Court of Appeal’s unreasoned decision to refuse leave to appeal against the District Court’s conviction in a criminal case must be set aside, see the Criminal Procedure Act section 385 subsection 3, cf. section 343 subsection 1. Although only one of the defendants had filed an appeal against the procedure, the setting aside of the refusal was given effect for the two co-defendants, see the Criminal Procedure Act section 342 subsection 3 first sentence.

Reference: HR-2009-529-A, case no. 2008/1372, criminal appeal against interlocutory order.

 

3 March 2009           

Civil Procedure. Disputes Act. Disposition principle.

One of the parties appealed against the Court of Appeal’s judgement in a case concerning title to commercial premises on the grounds that the Court of Appeal had gone beyond the scope of the prayer for relief made by the parties, see the Disputes Act section 11-2 subsection 1 first sentence. The Supreme Court found that the judgement did not entirely clarify the extent of the area in dispute, but that this was not justifiable in the circumstances. The Court of Appeal had not exceeded its powers pursuant to the Disputes Act section 11-2 and the judgement was also sufficiently precise to satisfy the conditions in the Disputes Act section 19-6 subsection 7.

Reference:  HR-2009-515-A, case no. 2008/1132, civil appeal against judgement.

 

27 February 2009   

Penal law. Drug felony. Dolus eventualis. Penal Code section 162.

A man was arrested by customs officials as he attempted to smuggle 420 grams of heroin into the country. He explained that he thought that the drug was cocaine, but the Court of Appeal found that there was intent to smuggle heroin. The Supreme Court set aside the Court of Appeal’s judgement because the judgement did not show with sufficient clarity what form of guilt the Court of Appeal had found to be proven and whether the Court of Appeal had properly understood the requirements of this form of guilt, see the case recorded in Rt-2004-1769.

Reference: HR-2009-489-A, case no. 2008/1869, criminal appeal against judgement.

 

27 February 2009           

Criminal procedure. Competence of judge.

A man was convicted by the Court of Appeal and sentenced to 8 years protective custody for a series of offences, including rape, see the Penal Code section 192. Two of the judges in the Court of Appeal had previously participated in applications to remand the defendant in custody pending trial pursuant to the Criminal Procedure Act section 171 subsection 1 no. 3. During these applications, the court had been required to consider the risk that the defendant would again commit a criminal act. The Supreme Court therefore found that the two judges were incompetent on the grounds of partiality to participate in deciding whether to impose protective custody. In view of recent developments in case law regarding the competency of judges, in particular the majority view expressed in Rt-2008-1466, the whole of the Court of Appeal’s judgement must be set aside, not only the part of the judgement that concerned the sentence.

Reference: HR-2009-488-A, case no. 2008/1895, criminal appeal against judgement.

 

24 February 2009           

Property law. Crown land.

The issue in the case was whether six farmers had title to separately matriculated summer farms situated on Crown land. The Supreme Court held that registration in the land register with land and title number was only relevant to the obligation to pay tax. The circumstances fell outside the scope of the Land Registration Act section 27, so that the farmers had not extinguished title to the summer farms either.

Reference: HR-2009-452-A, case no. 2008/1383, civil appeal against judgement.

 

13 February 2009   

Civil procedure. Criminal injuries compensation. ECHR.

The victim of a violent crime sought judgement that she was entitled to compensation for loss of income and loss of future earnings from the Compensation Board for Victims of Violent Crime. The Supreme Court held that, in the absence of statutory authority, the courts can only pass judgement on the merits of a case in exceptional circumstances when reviewing administrative decisions, even if the decision concerns a statutory right, see the interlocutory order in Rt-2001-995. The victim’s right to a decision “within a reasonable time” in ECHR Article 6 (1) had not been violated by virtue of the fact that the courts only assessed the legality of the administrative decision, and the appeal was therefore dismissed.

Reference: HR-2009-379-A, case no. 2008/1361, civil appeal against interlocutory order.

                       

13 February 2009           

Contract law. Construction law. Additional remuneration. Time limit for presenting claim.

The costs of developing a hydropower plant increased due to incorrect information about the land, and the question was whether the builder’s claim for additional costs had lapsed because it was submitted too late. The Supreme Court held that the builder’s obligation to give notice of claim did not start to run from the date when it became clear that the circumstances surrounding the land differed from the information given, but from the date when it became clear who was responsible for the incorrect information.

Reference: HR-2009-375-A, case no. 2008/1634, civil appeal against judgement.

 

6 February 2009           

Sentencing. Sexual offence. Penal Code section 195 subsection 1.

The case concerns sentencing for breach of the Penal Code section 195 subsection 1 second sentencing alternative – three counts of sexual intercourse with a 13 year and 7-8 month old girl – where the defendant was 18 years and 1-2 months old when the offence was committed. The Supreme Court held that the suspended  part of the sentence, which the Court of Appeal had fixed at two years, could be reduced to 1 year and 10 months. The defendant and the victim had been friends, the defendant had confessed immediately, and the age difference between the two was 4 ½ years.

Reference: HR-2009-327-A, case no. 2008/1853, criminal appeal against judgement.

 

6 February 2009           

Sentencing. Sexual offence. Web camera. Internet. Penal Code section 195 subsection 1, second sentencing alternative. Penal Code section 200 subsection 2, second sentence cf. subsection 3. Penal Code section 204a subsection 1 (a).

The case concerns sentencing of a man who was convicted for having induced several girls under 16 to undress in front of a web camera and/or to send pictures of themselves, for sexual intercourse with two of the girls who were both under 14, and for having produced, stored and distributed child pornography. The Supreme Court increased the sentence to 5 years and 6 months. The sentence included a deduction of 18 months on account of the defendant’s confession.

Reference: HR-2009-326-A, case no. 2008/1726, criminal appeal against judgement.

 

4 February 2009   

Gross corruption. Penal Code section 276b cf. section 276a.

The case concerns an appeal against the application of law and sentencing following conviction pursuant to the Penal Code section 276b cf. section 276a for gross corruption and, in particular, the relevance of the fact that it had not been proven that the defendant was motivated by an expectation of a reward for the services he had performed. The case also raises questions concerning the powers of the Court of Appeal in the retrial of a case where the jury’s verdict had been set aside pursuant to the Criminal Procedure Act section 376a. The appeal was dismissed.

Reference: HR-2009-302-A, case no. 2008/1550, criminal appeal against judgement.

 

30 January 2009           

Limitation of criminal liability. Immigration Act section 47 subsection 1 (b).

The case concerns limitation of criminal liability. More particularly, the question was whether there was a continuing offence and whether the rules on limitation of continuing offences can apply notwithstanding that the defendant had only been prosecuted for one individual breach.

Reference: HR-2009-289-A, case no. 2008/1799, criminal appeal against judgement.

 

30 January 2009   

Tax liability of partners in an internal partnership. Tax Act section 12-2 (f).

The case concerns the extent to which payments from an internal partnership can be deemed to be personal income paid in return for silent partners’ work for the company, see the Tax Act section 12-2 (f). The Supreme Court, like the lower instances, affirmed the Tax Board’s decision. The share of profit paid to the silent partner was partly remuneration for work performed and partly business income. In the circumstances, it was natural to first assess how much must be deemed to be return on invested capital and then treat the remainder of the profit as remuneration for work performed.

Reference: HR-2009-284-A, case no. 2008/1357, civil appeal against judgement.

 

16 January 2009   

Interest and currency swap agreements. Tax Act section 14-4 subsections 1 and 2 cf. subsection 5 cf. the Securities Trading Act (1997) section 1-2 subsection 2 no. 6 cf. the Tax Act section 14-2 subsection 1 second sentence (as per 2002).

The case concerns the periodization for tax purposes of gains and losses on interest and currency swap agreements in connection with DnB NOR Bank ASA’s tax assessment for the fiscal year 2002, see the Tax Act section 14-4 subsections 1 and 2 cf. subsection 5 cf. the Securities Trading Act (1997) section 1-2 subsection 2 no. 6 cf. the Tax Act section 14-2 subsection 1 second sentence (as per 2002). The Supreme Court set aside the tax assessment insofar as it concerned the assessment of interest swaps. The new assessment must assume that an interest swap implies an unconditional right to payment or an unconditional obligation to cover the costs at the date when the amount of the next payment is fixed. In all other respects, the appeal was dismissed.

Reference: HR-2009-86-A, case no. 2008/985, civil appeal against judgement.

 

16 January 2009           

Sentencing. Manipulation of share price/market. Short sale. Social security fraud. Securities Trading Act (1997) section 14-3, section 9-2, section 2-6, cf. Securities Trading Act (2007) section 3-8. Penal Code section 270 cf. section 271.

The case concerns sentencing for breach of the provisions of the Securities Trading Act on manipulation of share price and good business practice. The sentencing also covered serious social security fraud and the giving of a false statement in connection with the fraud. The sentence was reduced slightly because of the time taken to bring the case to trial. The Supreme Court allowed the prosecution authority’s appeal and fixed the sentence at 10 months’ imprisonment, of which 120 days were suspended.

Reference: HR-2009-81-A, case no. 2008/1514, criminal appeal against judgement.

 

16 January 2009           

Sentencing. Bodily harm. Delay in service of judgement. Penal Code section 229, first sentencing alternative cf. section 232.

The defendant hit the victim with a beer glass during an argument. The beer glass broke and lacerated the victim’s left ear, which required ten stitches. After the Court of Appeal had passed judgement, almost one year passed before the judgement was served on the defendant. Due to the delay in service, the Supreme Court reduced the sentence from 120 days to 60 days imprisonment.

Reference: HR-2009-78-A, case no. 2008/1763, criminal appeal against judgement.

 

14 January 2009   

”Taxi fraud case”. Sentencing. Accounts Act section 8-5 subsection 1 second sentencing alternative. Tax Assessment Act section 12-1 no. 1 (a).

The case concerns sentencing for breach of accounting rules and tax fraud in the Oslo taxi business. The case was a pilot case in a larger complex of cases. Between 2000 and 2003, an Oslo taxi owner had employed 60-70 drivers and had evaded paying tax on large sums of money by manipulating the shift records. The tax authority had imposed 60 % surtax for the tax evasion, and this was therefore not subject to criminal proceedings. The Supreme Court found that the sentence for having delivered false accounts and for having reported artificially low salaries to the tax authorities should in principle be 15 months imprisonment. However, since the defendant had made amends, paid the 60 % surtax and confessed to the offence, the Supreme Court fixed the sentence at 12 months imprisonment, of which six months were suspended. Due to the length of time taken to bring the case to trial and because the defendant was now running his business legally, the court did not disqualify him from running a business.

Reference: HR-2009-65-A, case no. 2008/1542, criminal appeal against judgement.

 

14 January 2009   

Bodily harm caused by motor vehicle. Sentencing. Disqualification from driving. Compensation for non-economic loss. Penal Code section 238. Regulation on disqualification from driving sections 2-4 and 1-4. Damages Act section 3-5.

The defendant ran over the victim while manoeuvring into a parking space and caused him considerable and permanent injury. Due to the length of time that the prosecuting authority had taken to transfer the case to the Supreme Court, the Supreme Court reduced the sentence from 30 days unconditional imprisonment to a 21-day suspended sentence. The defendant had retained his driving licence for two years and 10 months after the accident, and the Supreme Court found that the disqualification period should be reduced from two years to 18 months. The Supreme Court found that the defendant’s driving had been grossly negligent and that the victim was entitled to compensation for non-economic loss, but reduced the amount of damages to NOK 75 000.

Reference: HR-2009-64-A, case no. 2008/1515, criminal appeal against judgement