Summaries of rulings 2019
28 June 2019
Criminal procedure. Offence punishable under another provision. Attempted homicide. Attempted threats.
The court of appeal had acquitted a man of attempted homicide under section 233, cf. section 49 of the 1902 Penal Code. The Supreme Court held that the court of appeal should have assessed whether to convict the man of attempted threats under section 227, cf. section 49 of the 1902 Penal Code. In that case, the court would not go beyond the scope of section 38 of the Criminal Procedure Act. The defendant would have been convicted of the same acts as those described in the indictment, and the interests the two penal provisions maintain are not essentially different. Although the difference in maximum sentence and normal sentence is large, it was a question of applying a less strict penal provision. The court of appeal's judgment was set aside for the part that concerned the acquittal for attempted homicide. Dissenting votes 4-1.
Supreme Court HR-2019-1259-A (case no. 19-017044STR-HRET), criminal case, appeal against judgment
28 June 2019
Criminal law. Combination of Nordic sentences.
A Norwegian citizen was sentenced to 14 years of imprisonment in Norway for serious drug offences. After the district court's conviction, he committed new serious drug offences in Sweden, for which he was, there, sentenced to 10 years of imprisonment. Both sentences are to be served in Norway. The Supreme Court, having conducted an oral hearing, denied the convicted persons' request for a combination of the sentences in analogy with section 49 of the Criminal Procedure Act. The request concerned the first conviction, but there was no basis for a follow-up sentence in accordance with section 82 of the Penal Code, and a free application of section 49 of the Penal Code based on combination according to Swedish rules, would conflict with the system for Nordic cooperation within criminal law. The serving in Norway also implied that it was not possible to combine the two sentences at the time of enforcement. Not in any case could section 49 be given such a wide analogous application as that requested. It was the pardon system and the possibility of advanced release on probation under section 42 of the Execution of Sentences Act that could remedy long aggregate sentences in a case like that at hand.
Supreme Court HR-2019-1261-A (case no. 19-035777STR-HRET), criminal case, appeal against order
28 June 2019
Criminal procedure. Defendant's absence from hearing.
The court of appeal had given judgment in a criminal case where the prosecution authority had appealed against the district court's sentence, in the absence of the defendant. The defendant did not show up at the hearing. The court of appeal allowed the appeal nevertheless, as it considered the defendant's presence superfluous, see section 336, cf. section 334 subsection 1 second sentence of the Criminal Procedure Act. The Supreme Court referred to preparatory works stating that the defendant is to be summoned when the prosecution authority has appealed against the sentence. It could also not be assumed that the defendant had absconded. The court of appeal's judgment and hearing were set aside.
Supreme Court HR-2019-1267-A (19-029012STR-HRET), criminal case, appeal against judgment
28 June 2019
Family law. Adoption. Child welfare.
The County Social Welfare Board had made a care order for a boy, who is now six and half years old, and consented to his foster parents adopting him, see section 4-20 of the Child Welfare Act. During his two first years, the boy had lived partially with his parents under difficult conditions and partly in emergency shelters. After a thorough review of case law from the ECtHR and from the Supreme Court itself, the Supreme Court concluded like the lower courts that it was in the child's best interests to be adopted by his foster parents. The Court stated that adoption would provide considerable advantages to the boy, who was in a good and stable situation in a well-functioning foster family who wanted to adopt him. Because of his difficult background with a violent father and mother who was not able to care for him properly, he was in urgent need of calm and stability. He himself wanted to be adopted. The biological bonds to his parents were of less importance in a case like the one at hand, and for his future connection to the culture of his homeland, it did not matter whether he was adopted or remained a foster child.
Supreme Court HR-2019-1272-A (case no. 19-051417SIV-HRET), civil case, appeal against judgment
27 June 2019
Criminal procedure. Qualification. Lay judge. Board position.
In a rape case in the court of appeal, one of the lay judges belonging to the majority who found the defendant guilty was deputy chairman of the board at the inter-municipal local center for battered women. The Supreme Court found that this position did not make her disqualified under section 108 of the Courts of Justice Act. The aggrieved party had not been in contact with the centre, and the position did not give the public reasonable and objective grounds to doubt the lay judge's qualification in a rape case like the one at hand.
Supreme Court HR-2019-1245-A (case no. 19-053595STR-HRET), criminal case, appeal against judgment
27 June 2019
Criminal law. Depletion of assets in connection with insolvency.
The court of appeal had convicted three persons of gross depletion of assets in connection with insolvency, see section 283 subsection 1 b, cf. subsection 2, of the 1902 Penal Code, cf. section 287 subsections 1 and 2. The provision in section 283 is continued in section 404 of the 2004 Penal Code. The three had had various functions in two companies that went bankrupt. Shortly prior to the bankruptcy proceedings, they had transferred copies of production drawings to newly established companies, where they also had various functions. The use of the copies reduced the value of the drawings. The Supreme Court found that section 283 of the 1902 Penal Code also covered reduction in value, although the provision used the term "prevent". The term "suited to" entailed that there is no requirement that a reduction in value actually occurs, but there must be a certain proximity between the act and a potential reduction in the value of the relevant asset. If the drawings had not been owned by the bankruptcy debtors, but by a subsidiary – a question the court of appeal had not considered – an act reducing the value of an asset owned by a subsidiary would be suited to affect the value of the parent company's shares in the subsidiary, and thus constitute depletion of assets. The appeals against the court of appeal's judgment were dismissed.
Supreme Court HR-2019-1234-A (case no. 19-009758STR-HRET)
27 June 2019
Criminal law. Serious drug offence. Community sentence. Care for children.
The penalty for violation of section 232 subsection 1, cf. section 231 subsection 1 was two years of imprisonment, of which one year was suspended. The convicted person had imported 645 grams of cocaine from Germany to Norway. She was the only care person for five children from the age of 15 to three months. The Supreme Court found that the care of the children was not sufficient reason for imposing community sentence under section 48 subsection 2, cf. subsection 1 a of the Penal Code. The consideration for the children strongly suggested community sentence, but the consideration for general deterrence was stronger and indicated imprisonment rather than community sentence. The Court argued that the convicted person had a clear profit incentive and that the important amount involved a considerable risk of distribution. The Court emphasised the help offered by the Norwegian Correctional Service to make parents' serving of time less strenuous to the children, and the fact that one year of the sentence was suspended.
Supreme Court HR-2019-1236-A (case no. 19-058441STR-HRET), criminal case, appeal against judgment
26 June 2019
Contract law. Contracting. Additional compensation. "Trouble and inconvenience". Acceleration.
Following the completion of a road project, the contractor claimed additional compensation for reduced productivity – trouble and inconvenience – and for acceleration. The Supreme Court found that causality for trouble and inconvenience must be established in two steps. First, it must be proved that there have been disruptions or ineffective operation due to the owner's conditions. Then, causality must be substantiated between those conditions and the contractor's extra costs. The contractor must demonstrate which operations were affected by the owner's circumstances, and calculate the extra costs incurred because of that. Causality is established based on specific evidence, but the requirements of evidence cannot be so strict that it becomes practically impossible or unreasonably burdensome to the contractor to present evidence for trouble and inconvenience. As for acceleration, there must also be causality between the owner's conditions and the contractor's compensation. The court of appeal had awarded extra compensation for trouble and inconvenience and for acceleration. The amounts were measured by discretion. The measure was not made in accordance with legal requirements for causality for trouble and inconvenience. Also, no individual assessment had been made of causality in the alleged acceleration. This was an error of law. The judgment was set aside to the extent that it was appealed.
Supreme Court HR-2019-1225-A (case no. 18-175510SIV-HRET), civil case, appeal against judgment
26 June 2019
Family law. Moving abroad. Child's best interests.
A separated couple had joint care for two children aged six and five. The children lived permanently with their mother, who was from Italy, while the father had extensive access rights. The Supreme Court found in favour of the mother's claim to move to Italy with the children, see section 56 subsection 1 third sentence of the Children's Act. The starting point was that the ruling had to be based on which of the existing options would best secure the children's years of growth and development, after an individual assessment of all relevant aspects of the case. In the individual assessment, the Supreme Court found that the children would receive more robust care if they lived with their mother in Italy. Moving there would secure their years of growth and development. There was more uncertainty attached to the care situation if the mother and the children were to stay in Norway. The circumstances were also arranged so that the children could maintain a good and strong contact with their father, also after moving to Italy.
Supreme Court HR-2019-1230-A (case no. 19-009047SIV-HRET)
26 June 2019
Criminal procedure. Registration of DNA-profile. Tax fraud.
The Office of the Public Prosecutor had decided to register the DNA profile of a man who had been sentenced to one year and six months of imprisonment for tax fraud, in the identity register of the DNA register, see section 12 subsection 2 no. 1. After a thorough review of case law from the ECtHR and of the legislative process, and after an overall assessment of the conflicting considerations, the Supreme Court concluded that the decision was valid, as the registration was not a disproportionate measure under Article 8 no. 2 of the EHCR. It was emphasised that he was convicted of a serious offence and that the right to registration is limited in a sufficiently precise manner. It was also mentioned that the Norwegian rules allow deletion after an individual assessment, and that detailed provisions on, among other things, access, blocking, transparency and storage give the necessary privacy guarantees. Dissenting votes 4-1.
Supreme Court HR-2019-1226-A (case no. 19-014740SIV-HRET), civil case, appeal against judgment
25 June 2019
Criminal law. Industrial espionage. Unlawfulness.
An engineer in an oil service company was convicted in the court of appeal of violation of section 208 of the Penal Code – of so-called industrial espionage. He had downloaded large amounts of sensitive commercial information on two external hard disks. Being employed in the company, he had access to the documents, but they concerned a project in which he himself was not involved. The Supreme Court agreed with the court of appeal that the appropriation was unlawful. The Court argued that the interpretation of the unlawfulness term had to be based on a broad balancing of the various considerations, and that conviction was required for the highly reprehensible conduct. The individual assessment showed that the purpose of the downloading was personal use, which was against the employer's interest and clearly disloyal. Emphasis could also be placed on his purpose and conduct otherwise in the overall assessment of the unlawfulness. The act was considered grossly reprehensible, and instead considered punishable under section 405a of the 1902 Penal Code.
Supreme Court HR-2019-1218-A (case no. 19-027848STR-HRET), criminal case, appeal against judgment
25 June 2019
Tax law. Property tax. Levy deadline. Basic allowance.
In 2015, Oslo municipality adopted Regulations on property tax for 2016. The municipality used the tax levy option in section 3 g of the Property Tax Act, and stipulated a basic allowance of NOK 4 million for all independent residential units on non-commercial property. This implied that almost 80 % of all residential units in the municipality were exempt from property tax. In the group action contesting the validity of the Regulations and the property tax notifications, the Supreme Court unanimously concluded that the Regulations' provision on basic allowance was valid, as the general characteristics of the tax were adequately maintained. The Court argued that the tax affects a high number of taxpayers that are spread over all parts of the city. However, the law sets a limit for the basic allowance, and the municipality had been close to this limit. The fact that the basic allowance was stipulated for the individual residential unit and not for each property was not contrary to the law. The Supreme Court's majority of three justices found however that the decision to levy tax was invalid because the deadline in section 14 of the Property Tax Act had been exceeded. The property tax notifications were issued in June 2016. Section 14 subsection 2 third sentence was not applicable, as the municipality had levied property tax earlier. The fact that the practice ceased in 1998 was not decisive. To obtain postponement until after 1 March, see section 14 subsection 2 first sentence, the municipality would have had to make a realistic plan giving the municipality time to levy tax within 1 March 2016. No such plan had been made. The case was dismissed for group members that had not filed a complaint before joining the group action. Dissenting votes 3-2.
Supreme Court HR-2019-1198-A (case no. 18-193373SIV-HRET and case no. 19-002038SIV-HRET), civil case, appeal against judgment
24 June 2019
Property law. Ground lease. Adjustment of ground rent. ECHR.
In an appraisal to determine new ground rent for a leased property consisting of 54 residential units in connection with an extension of the lease, the lessor claimed he had a right to increase the rent beyond the maximum amount in section 15 subsection 4 of the Ground Lease Act, to avoid violation of ECHR Protocol 1 Article 1, cf. section 15 subsection 9 of the Ground Lease Act. The maximum amount entailed that the rent could not be increased under subsection 4 first sentence. The Supreme Court found that the limitations of the Act, after the amendments in 2015, do not entail any disproportionate measure under ECHR Protocol 1 Article 1. The Court argued that the legislature had carefully followed up the order from the ECtHR in the Lindheim judgment from 2008. A broad and compound balancing had been made, assessing the economic consequences for both the lessor and the lessee. The judgment also determines that the deduction for value increase under subsection 4 first sentence is also applicable for the site preparation the first buyers paid for when buying the residences, and that the value must be based on the buildings actually present on the site, and not on a different and more space-efficient exploitation of the same buildings.
Supreme Court HR-2019-1206-A (case no. 18-179157SIV-HRET)
18 June 2019
Land consolidation. Urban land consolidation. Consolidation grounds.
In a case on urban land consolidation under section 2 subsection 1 j), cf. section 28 subsection 4 of the 1979 Land Consolidation Act – provisions continued in section 3-30 cf. section 3-31 of the 2013 Land Consolidation Act – the Supreme Court held that former regulation plans do no dictate what is to be considered foreseeable use when establishing the characteristics of the affected properties for development purposes. However, it cannot be ruled out that such plans may be significant. In the individual assessment, the court of appeal had assumed that an existing road and a recreation area belonging to the municipality, would most likely have been kept if the plan area had been developed, and was therefore unsuited for development purposes. These areas were thus not allocated any share of the net value increase. The Supreme Court supported the court of appeal's application of the law. With regard to two other land owners, the court of appeal had found that they could continue their business without tearing down any buildings, and that they therefore did not incur any loss. The Supreme Court stated that, here, one had not considered the fact that the these land owners had to pay shares of common costs in the plan area, and that one of them had to pay a difference in connection with a new design of the lots. Although these as a starting point were investments in the development of the area, they became in fact a cost as long as the landowners refused to participate in the development, but wanted instead to continue their business from the existing buildings. The conditions in section 3 b) of the 1979 Land Consolidation Act that each property was to have its share of the value increase, was thus not met. The court of appeal's land consolidation ruling was set aside.
Supreme Court HR-2019-1152-A (case no. 18-169674SIV-HRET), civil case, appeal against judgment
18 June 2019
Contract law. Mitigation. Compensation. Loss of income.
A woman who had suffered injuries in a car collision, entered into a settlement agreement with the responsible insurance company three years later. She was later granted full occupational disability pension, and demanded that the insurance settlement be resumed in accordance with section 36 of the Contracts Act. The Supreme Court found that the claim could not succeed. Based on the situation when the agreement was entered into, it appeared clear that the subsequent development – that the occupational disability turned out to be permanent – was not beyond what the parties had to expect. Also, at the time of signing, it must have appeared highly uncertain what would be the outcome of a potential dispute if the professional disability should turn out to be permanent.
Supreme Court HR-2019-1153-A (case no. 18-188052SIV-HRET), civil case, appeal against judgment
18 June 2019
National insurance law. Disability pension. Waiting period (karens). Norwegian Public Service Pension Fund.
A woman who had been diagnosed with MS, was a member of the Norwegian Public Service Pension Fund. A couple of years before becoming a member, she had suffered an infection to the optic nerve, which could be temporary, but also a symptom of an early stage of MS. At the time, she was not aware that it could be connected to MS. The Supreme Court's majority of four justices found that she was not entitled to disability pension from the Public Service Pension Fund, because of the waiting period rule in section 27 subsection 4 of the Public Service Pension Act. It was concluded that a waiting period could be imposed even if the relevant symptom was inactive on the date she became a member. The condition of knowledge was met if the member had understood that the symptom indicated an "illness" or a "blemish" beyond everyday afflictions, not necessarily that the symptom had to be an indication of future illness beyond the illness she was treated for at the time. The woman had acknowledged this. The Public Pension Fund's individual assessment leading to the decision not to grant a pension, could not be reviewed by the courts. Dissenting votes 4-1.
Supreme Court HR-2019-1154-A (case no. 18-182181SIV-HRET), civil case, appeal against judgment
7 June 2019
Tort law. Professional liability. Appraisers. Liability norm.
The buyers of a residential building had been successful in claiming a price reduction due to moisture and dry rot damage, which was caused by the basement walls being built in so-called multimur. The seller demanded the amount she was ordered to pay covered by the appraiser she herself had used for the sale, and by the appraiser who had estimated the prince of the house when she herself had bought it. The claim was justified by both appraisers' omission to mention the multimur in their respective estimated. The Supreme Court held that the norm in section 3-7 of the Alienation Act was not applicable, so that both appraisers had to be considered based on general professional liability. In the assessment of due care, it was stated that based on the conditions at the site, the appraisers could not be expected to discover the use of multimur without any information of such use being given in advance. Thus, they had not acted negligently. The Supreme Court found in favour of the appraisers and their insurance company.
Supreme Court HR-2019-1079-A (case no. 18-137830SIV-HRET), civil case, appeal against judgment
6 June 2019
Company law. Claim for damages. Bankruptcy. Limitation.
A limited company that had entered into disadvantageous agreements contrary to section 3-8 of the Companies Act, subsequently went bankrupt. The bankruptcy estate filed a claim for performance against the company's general manager and his general insurer in accordance with section 3-8 subsection 3, cf. 3-7 subsection 2. The claim was time-barred on the company's part. The Supreme Court found that the bankruptcy estate could not assert such a claim as an independent claim on a non-statutory basis. It was stated that the liability norm on which section 3-8 subsection 3 is based, had to be considered essential to determine whether the bankruptcy estate could assert an independent claim. The solution to the question whether the contributor's liability for performance would be complex and subject to much assessment, and could also raise issues of evidence, as opposed to liability more characterised by guarantees under section 2-19 of the Companies Act. Here, it has been accepted that a claim that would have been time-barred on the company's part, could be pursued as an independent claim for the estate. Extended protection for the bankruptcy estate in cases like this would therefore require legislation, like in the question of extended protection in connection with claims under section 17-1 of the Companies Act. The claim was thus time-barred also on the part of the bankruptcy estate. The appeal against the court of appeal's judgment, which like that of the district court had concluded that the claim was time-barred, was set aside.
Supreme Court HR-2019-1073-A (case no. 18-168174SIV-HRET), civil case, appeal against judgment
6 June 2019
Odel law (Odel = right to inherit agricultural land). Joint odel. Terminated cohabitation. Odel period.
A cohabiting couple bought an agricultural property in 1996. The man took over the property alone when their cohabitation ended in 2006. In 2017, a forced sale of the property was carried out, after which the previous owner requested that the property be released by odel. Like the court of appeal, the Supreme Court concluded that the cohabitation period from 1996 to 2006 had to be included in the calculation of the period for which odel could be claimed, although cohabitants did not have joint odel to such land until in 2009 with the addition of section 15 subsection 4 of the Odel Act. The requirement of an odel period in section 7 subsection 1 of the Odel Act was thus met. The transition rules with the amendment of 2009 did not solve the issue. The Supreme Court placed decisive emphasis on the principle in section 79 subsection 1 of the Odel Act, and held that this interpretation complied with the principle of odel while also satisfying the consideration for equality and cohabitation.
Supreme Court HR-2019-1074-A (case no. 18-177508SIV-HRET), civil case, appeal against judgment
27 May 2019
Civil procedure. Access to evidence. Electronic documents.
The court of appeal had ordered a party to make available a considerable amount of electronic documents, see section 26-5 of the Dispute Act. The Supreme Court, having conducted an oral hearing, held that it would take far more time and effort to comply with the order than what the court of appeal had assumed. The grounds explaining the relevance of the evidence, which were joint and very brief, were not sufficient. The court of appeal should also have considered, by its own initiative, the limitations for ordering presentation of documents. The order was not sufficiently specified and had to be regarded as disproportionate, see section 26-5 subsection 3 of the Dispute Act. The significance of the prohibition against evidence in section 22-5 of the same Act when it comes to information related to invoices from a law firm was also not assessed. The court of appeal's order was set aside.
Supreme Court HR-2019-997-A (case no. 18-186326SIV-HRET), civil case, appeal against order
15 May 2019
Employment law. Notice of changed employment. The Ship Workers Act.
A chief officer on Hurtigruten was dismissed after he had chosen the wrong path when passing Finnsnesrenna in Troms in dense fog, which made the ship touch the ground. He had not beforehand registered a route plan for the passing, and the navigation took place without a radar or map machines being controlled to determine the ship's position. Nor had he communicated the choice of route with the second officer, who was with him on the bridge. The Supreme Court agreed that he had made a serious mistake by leading the ship through Finnsnesrenna without the support of radars and map machines, and that Hurtigruten had justifiable cause to dismiss him, see section 5-6 subsection 1 of the Ship Workers Act. It was emphasised that the dismissal was a notice of changed employment, as he was allowed to continue in the shipping company as a second officer.
Supreme Court HR-2019-928-A (case no. 18-145269SIV-HRET), civil case, appeal against judgment
13 May 2019
Criminal law. The Export Control Act. Incorrect information.
An employee in the Norwegian Armed Forces with responsibility for sale of military maritime material had been the officer in charge of a sale of seven demilitarised vessels to a English company. A licence is required from the Ministry of Foreign Affairs to export material for military purposes to areas with war or conflict or to a country involved in civil war. Under an agreement with the Ministry, the officer obtained a so-called end-user declaration from the English buyer stating this company was also the end-user. When he, before the export, became aware that a Nigerian company was the real buyer and end-user of the vessels, he omitted to inform the Ministry of Justice. The Supreme Court found that the omission to rectify the previously submitted end-user information was clearly covered by the penal provision in section 5 subsection 1 of the Export Control Act, which is aimed at anyone giving incorrect information to a public authority in connection with export or application for permission to export. The duty to provide the Ministry with correct information regarding matters of significance to the right to export must apply during the entire period up to the date of export.
Supreme Court HR-2019-900-A (case no. 19-007393STR-HRET), criminal case, appeal against judgment.
14 May 2019
Transport law. Maritime law. Transport damage. Combined transport.
A transportation firm had been commissioned to carry goods from Norway to England. The carriage was to take place partially by road in both countries and partially by sea between the countries. The goods were damaged beyond repair during the sea carriage. The Supreme Court held that the transport assignment judged as a whole had the characteristics of carriage of goods by road, so that the Road Transport Act as a starting point was applicable in the decision of the liability issue. The Supreme Court found nevertheless, unlike the court of appeal, that the exception in section 4 subsection 2 of the Road Transport Act was applicable, with the effect that the liability issue was regulated by the provisions of the Maritime Code. It was held that it was not the road carrier's inadequate securing of the load to the trailer, where it was placed also during the sea carriage, that caused the damage, but the sea carrier's inadequate securing of the load. The damage had thus occurred because of an event that could only take place during and because of the sea carriage.
Supreme Court HR-2019-912-A (case no. 18-154904SIV-HRET), civil case, appeal against judgment
13 May 2019
The Courts of Justice Act. Qualification. Court of appeal judge.
A court of appeal judge had participated in a ruling on continued remand in custody before she later administered the appeal hearing in the criminal case. The Supreme Court held that the court of appeal, through wordings during the remand case, had been so close to establishing guilt that she could not serve as a judge in the appeal case, see section 108 of the Courts of Justice Act. It was held that since 2008, there has been a development in case law showing that the threshold for establishing disqualification under section 108 of the Courts of Justice Act has become somewhat lower, and that more importance is now attributed to the parties and the public's perception of the situation. The court of appeal's judgment and the appeal proceedings were set aside.
Supreme Court HR-2019-899-A (case no. 19-012694STR-HRET), criminal case, appeal against judgment
2 May 2019
Criminal law. Sentence. Aggravated insurance fraud. Aggravated vandalism. Arson.
The penalty for violation of section 352 subsection 2, cf. subsection 1, and section 376, cf. section 375 subsection 1, was six years and six months of imprisonment. The convicted person had participated, with his brother, in the planning and execution of arson to a hotel, which they owned together. The restauration costs were estimated to NOK 93.7 million. The Supreme Court took as a starting point the basic offence – the insurance fraud – and increased the sentence due to the vandalism, which directly described the fraud. It was considered aggravating that the offence had been committed together with another person and that it was planned and executed over time. However, the Court found that the convicted person had only participated in the final phase of the concrete planning and preparations. One year of imprisonment for offences for which the person had been convicted in the district court, and which had not been appealed, was added to the penalty for the insurance fraud and the vandalism.
Supreme Court HR-2019-831-A (case no. 18-193963STR-HRET), criminal case, appeal against judgment
2 May 2019
Contracting. Price adjustment. Road building.
A contractor engaged by the Public Roads Administration (Statens vegvesen) to build a road section had priced the blasting work based on the documentation provided on area and volume in the tender documentation. It turned out that the blasting area was much larger than stated, which complicated the blasting work and made it more expensive than estimated. The Supreme Court found that the contractor was entitled to a price adjustment. The builder was responsible and carried the risk for the error in the tender documentation. There was however information showing the correct bench heights. Considered against the information on the area, this information only caused confusion, for which the Public Roads Administration, as builder, also had to be blamed. There was nothing to suggest that the contractor had not acted like any sensible service provider when basing his estimates on the information on the area provided by the Public Roads Administration. The court of appeal's judgment in favour of the state was set aside.
Supreme Court HR-2019-830-A (case no. 18-156371SIV-HRET), civil case, appeal against judgment
2 May 2019
Criminal law. Sentence. Attempted homicide. Preventive detention. Young perpetrator.
The penalty for violation of section 275, cf. section 16 of the Penal Code was four years of preventive detention. The convicted person was 17 years and three months old when he tried to kill a random person with a total of 53 stabs. The ordinary conditions for preventive detention were clearly met. The attempted homicide, considered in conjunction with the convicted person's general behavior pattern and social and personal ability to function, also constituted extraordinary circumstances. The risk of repetition of gross violence offences was particularly high. The protection of society could not be maintained in any other manner. Against this background, the special condition for defendants under the age of 18, see section 40 subsection 1 final sentence of the Penal Code, was also considered met.
Supreme Court HR-2019-832-A (case no. 19-028849STR-HRET), criminal case, appeal against judgment
25 April 2019
Tenancy law. Office premises. Compensation for repair costs.
Leased office premises were to be completely rehabilitated following termination of the lease, so that the lessee's omission to leave the premises in the agreed condition did not represent any economic loss for the lessor. The Supreme Court found that the lessor could thus not claim compensation for necessary repair costs under section 10-3 subsection 2 of the Tenancy Act. A majority of three justices found that any claim under section 10-3 subsection 2 must be regarded as a claim for damages. The provision must thus be interpreted to mean that an economic loss must have been suffered, a condition that was not met in the present case. A minority of two justices found that the provision gives the lessor a right to compensation for the repair costs irrespective of whether the breach has caused a loss for the lessor, but that it must be interpreted restrictively, so that compensation cannot be claimed for repair costs in cases where such repair serves no reasonable purpose, as in the case at hand.
Supreme Court HR-2019-781-A (case no. 18-139381SIV-HRET), civil case, appeal against judgment
12 April 2019
Civil claims. Limitation of action. The court's duty to give guidance.
The two defendants in a rape case had been acquitted of the charges in the court of appeal, but ordered to pay damages for non-economic loss to the aggrieved party. Due to the acquittal, section 11 of the Statute of Limitations was not applicable. Counsel for the defendant had however not asserted that the claim was time-barred, and the Supreme Court found that the court of appeal's lack of guidance on the limitation of action issue was not due to a procedural error. Section 11-2 of the Dispute Act applies in connection with civil claims in a criminal case. The court could then not base its ruling on limitation of action without this having been asserted by the parties. The assessment of the court of appeal's duty to provide guidance had to be based on section 11-5 of the Dispute Act. Special circumstances must be present for the court to have a duty to give guidance to a party that is represented by counsel. Nor was it clear that the two defendants had suffered a loss of rights by not having asserted limitation. Overall, the situation was not such that the court of appeal had committed a procedural error by not giving guidance on the limitation of action issue.
Supreme Court HR-2019-741-A (case no. 18-177107SIV-HRET), civil case, appeal against judgment
10 April 2019
Criminal law. Sentence. Sexual abuse over the internet.
The penalty for violations of section 192 subsection 2 a, cf. subsection 1 c, section 192 subsection 1 c, section 192 subsection 1 c, section 200 subsection 2 second sentence, cf. subsection 3 of the 1902 Penal Code, section 305 b of the 2005 Penal Code, section 204 a subsection 1 a, section 204 subsection 1 c and section 201 subsection 1 c, cf. subsection 2 of the 1902 Penal Code, all in conjunction with sections 62 and 64, was 13 years of imprisonment. The convicted person had sexually abused a total of 49 girls under the age of 16. The abuse had been committed solely over the internet. He had made the girls perform sexual acts on themselves while he was watching via a web camera. Two offences were considered rape in the first degree with a correct penalty level, considered in isolation, of around five years of imprisonment, and two offences were considered rape in the second degree with a correct penalty level, considered in isolation, of around four and half years of imprisonment. In addition, there were a number of incidences involving inducement of children to exhibit sexually offensive conduct. The fact that the offences were closely connected to each other was emphasised. They were a result of the convicted person's ruthless use of girls under age to satisfy his own needs. The large number of aggrieved parties, their young age and the seriousness and scope of the acts were also emphasised. As a starting point, the offences qualified for a sentence of 15 to 16 years. A reduction was granted for his confession and for the time use.
Supreme Court HR-2019-721-A (case no. 19-024643STR-HRET), criminal case, appeal against judgment
10 April 2019
Criminal law. Sentence. Attempted homicide.
The penalty for violation of section 275 cf. section 16 of the Penal Code was six years of imprisonment. The convicted person had, under the influence, tried to kill his former girlfriend by throwing her from a balcony eight meters above the ground. Despite his various attempts to make her lose her grip, he did not manage to do it. The Supreme Court stated that it is difficult to stipulate a normal penalty for attempted homicide, as the cases may be so different. However, it involved a very serious act, which may easily have had a tragic outcome. The particularly aggravating circumstances in other cases concerning attempted homicide in the Supreme Court after the penalty was increased in 2010, were nevertheless not present here.
Supreme Court HR-2019-714-A (case no. 19-004606STR-HRET), criminal case, appeal against judgment
4 April 2019
Criminal law. Gross embezzlement. Employer's credit card.
A senior employee was sentenced in the court of appeal to 10 months of imprisonment for violation of section 256, cf. section 255 of the 1902 Penal Code. She had used the company's credit card, which had been issued to her, in a large number of illegitimate purchases of goods and services for private purposes. The Supreme Court found that the offence had to be considered embezzlement and not misappropriation of funds. The credit card gave her access to easily available liquid funds on behalf of the company, which had to be considered on par with being entrusted with the company's money. As long as the use of the card triggered a claim against the company under the credit card agreement, she was in fact also in control of the company's money. The embezzlement had to be considered completed the moment she, in order to obtain an illegitimate gain, paid for the goods or the services by using the credit card.
Supreme Court HR-2019-676-A (case no. 18-190271STR-HRET), criminal case, appeal against judgment
4 April 2019
Criminal law. Sentence. Execution of suspended sentence. Breach of drug-treatment programme under court control.
A woman was sentenced to a suspended penalty of one year and six months of imprisonment on the condition that she undergo a drug-treatment programme under court control, see section 37 subsection 1 (e) of the Penal Code. Because she breached the conditions set out in the programme, the prosecution authority applied for execution of the suspended sentence. The Supreme Court stated that section 39 subsection 2 was a legal basis for giving a credit for the partially completed drug-treatment programme. It then had to be decided how much of the sentence was to be executed and how much was to be dropped. The treatment period that had actually been completed was considered an appropriate starting point for the deduction. Emphasis had to be placed on how long she had actually been subject to the programme, and not on when she breached it. Since the programme was delayed, the date of the actual commencement was decisive. This implied a two-third completion, which in turn gave a remaining sentence to be executed of six months. After making a correction for her poor compliance with the programme, while at the same time taking the delayed start-up into account in her favour, the Court decided that eight months of the sentence were to be executed.
Supreme Court HR-2019-677-A (case no. 19-010822STR-HRET), criminal case, appeal against judgment
3 April 2019
Criminal procedure. Deferred execution of sentence. Serious mental illness.
A defendant had been denied a deferred execution of sentence under section 459 of the Criminal Procedure Act due to mental illness. The rejection of the application was upheld by the district court and the court of appeal. The Supreme Court, having conducted an oral hearing, and that under section 388 of the Criminal Procedure Act could only review the court of appeal's general interpretation of the law, arrived at the same conclusion. The Supreme Court stated with reference to the history of law that the expression "serious mental illness" in section 459 must be interpreted in the same manner as "psychotic" in section 20 subsection 1 (b) of the Penal Code. The court of appeal had correctly based its decision on psychosis being a narrower terms under criminal law than in medicine, and landed on a correct assessment of the expression "serious mental illness". The Supreme Court unanimously concluded that the requirement for deferment under section 459 subsection 1 first option was not met. A majority of three justices found that the requirement under section 459 subsection 1 second option was not met either, and stated that the requirement for deferment under this option is strict. In summary, an overall assessment must be made, in which a number of aspects may be relevant, of whether execution is inadvisable. The majority found that the court of appeal had discussed the relevant aspects in an adequate manner. The appeal against the court of appeal's order was dismissed.
Supreme Court HR-2019-653-A (case no. 18-190497STR-HRET), criminal case, appeal against judgment
2 April 2019
Revaluation of property. Valuation of agricultural and forest land.
A property consisting of 27 decares of agricultural land and 136 decares of forest land had been revaluted under section 49 of Odelsloven (act relating to inheritance of such land) to NOK 13 million. Eighty-five decares of the forest land had been reserved for housing development in the municipality's long-term plan, and the appraisal therefore included an added value in the forest area with development potential of approximately NOK 10 million. The Supreme Court took as its starting point that the valuation should reflect that the property was mainly to be kept as agricultural land. The portion of the appraised value that could be linked to other exploitation had to be assessed individually, placing emphasis on the conditions for agricultural operation on the property. The is no basis in legislation or preparatory works for establishing an upper limit for how much of the appraised value may be linked to exploitation other than agricultural operation. In the individual assessment, it was decisive that the forest area with housing potential had little or no relevance to the operation of the agricultural area, so that the agricultural operation on the property could be continued. The appeal against the court of appeal's judgment, that had dismissed the appeal against the revaluation, was dismissed.
Supreme Court HR-2019-647-A (case no. 18-193765SIV-HRET), civil case, appeal against judgment
28 March 2019
Criminal case. Sentence. Sexual assault.
The penalty for violation of section 299 (a), cf. section 301 subsection 1 first sentence, cf. subsection 2 (b), section 295 subsection 1 of the 2005 Penal Code, section 204 a subsection 1 (a) and section 311 subsection 1 was six years and six months of imprisonment. The convicted person had on two occasions licked a four-year-old girl on her genitals. He had also had intercourse three times with a slightly mentally challenged girl of the age of sixteen. Finally, he had systematically searched for and found at least 500 photos showing sexual abuse of children, and stored 38 of them on his own computer. His assault on the four-year-old demonstrated a firm criminal intent, and it was emphasised that he had been in a care relationship with the child. The intercourse on three occasions was considered one offence. It was stated that four years and three months of imprisonment was a suitable penalty for the first among these offences, and three years for the second. The penalty for the photos depicting sexual abuse of children should, considered in isolation, be six months of imprisonment.
Supreme Court HR-2019-608-A (case no. 19-006708STR-HRET), criminal case, appeal against judgment
28 March 2019
Search. Third-party search. Search in data on a server abroad.
In connection with an investigation of possible computer fraud, the prosecution authority had requested a warrant to conduct a search at a company that was not itself a suspect, see section 192 (3) of the Criminal Procedure Act, to access information stored by this company on servers abroad, and that was assumed to shed light on the possible fraud. The Supreme Court, having conducted an oral hearing, concluded that under Norwegian internal law, there was nothing that prevented the search from being conducted. Nor were there treaty provisions or any custom under international law preventing it. A search in a case like this would also not entail any violation of other states' exclusive enforcement jurisdiction. In this regard, it was emphasised that the coercive measure had been commenced on Norwegian soil, and that the relevant data had been made available by a coercive measure against a Norwegian company with offices in Norway. The decision was made by Norwegian courts while maintaining general rule of law guarantees. The search would only give access to data that the company itself had stored, and that the company could freely retrieve from the storage place abroad. The data also remains on the foreign server, and no changes are made to the information. The court of appeal dismissed the company's appeal against the district court's order to allow the search. The appeal against the court of appeal's order was dismissed.
Supreme Court HR-2019-610-A (case no. 19-010640STR-HRET), criminal case, appeal against judgment
28 March 2019
Criminal law. Lower threshold for criminal abuse in close relations.
A 68-year-old man was convicted in the court of appeal of violation of section 219 subsection 1 of the 1902 Penal Code and sentenced to 120 days of imprisonment. He had over a period of four months, under the influence, treated his foreign wife with aggression, threats and degradation – and on one occasion with violence. The Supreme Court's majority of three justices found, as opposed to the court of appeal, that the ill-treatment on an overall level could not be characterised as abuse, although it was close. It was held that the case was less aggravating than that heard in HR-2018-390-A. The court of appeal's judgment was set aside. Dissenting votes 3-2.
Supreme Court HR-2019-621-A (case no. 18-160032STR-HRET), criminal case, appeal against judgment
28 March 2019
Criminal law. Drugs. Contribution to sale.
The penalty for violation of section 232 subsection 2 first option, cf. sections 231 subsection 1 and section 15 was four years of imprisonment. The convicted person, who is a 66-year-old Polish citizen, was hired by a Polish transport company to drive a heavy goods vehicle from Poland to Norway. In the vehicle's cab, 217 kilos of hashish were hidden. The defendant was aware of this when the passenger in the vehicle took the hashish out from the hiding place. This took place while the vehicle was parked after the delivery of the load in Norway. Half an hour later, the defendant helped the passenger with handing the drugs over to the recipient, who had arrived at the place where the vehicle was parked. The modest role of the defendant was considered in the sentencing, as well as the unnecessarily long appeal process before the Supreme Court, the long time in custody and the fact that the defendant as a foreign national had to be prepared for a more harsh prison regime.
Supreme Court HR-2019-609-A (case no. 18-185009STR-HRET)
27 March 2019
False statement. Illegal residence. Au pairs. Application of the law. Sentence. Confiscation. Contribution.
The penalty for violation of section 166 of the 1902 Penal Code and section 108 subsection 4 (a) of the Immigration Act was 75 days of imprisonment for each person of a married couple. The case concerned employment and exploitation of four Philippian women with residence permits as au pairs. The married couple had given false information to the immigration authorities in connection with the au pairs' applications for residence in Norway. Among other things, they did not say that the family – contrary to the rules – was to have more than one au pair at a time. Nor did they say that the au pairs were to work more hours than allowed. This was considered incorrect information within the meaning of the law. The offence was deemed covered by section 166 of the Penal Code, while it was also covered by section 108 of the Immigration Act. The couple was also convicted of having arranged the women's illegal residence and of illegally having made use of their labour. A befriended couple was sentenced to a suspended term of 18 and 30 days, respectively, one of them for violation of section 166 of the Penal Code and section 108 subsection 4 of the Immigration Act and the other one for section 166 of the Penal Code. This couple had given incorrect information to the immigration authorities that two of the au pairs were to stay at their house, which enabled the other family to have more than one au pair at the same time. The fine was stipulated based on the extra costs of hiring domestic help compared to what the couple had saved by instead hiring the Philippian women.
Supreme Court HR-2019-599-A (case no. 18-174004STR-HRET), criminal case, appeal against judgment
21 March 2019
Criminal law. Application of the law. Glancing into houses and filming and photographing of young women.
A man who late at night had moved about in a residential area, glanced into houses, and on three occasions filmed or photographed young women on the inside, was indicted for violation of sections 266 and 298 of the Penal Code. The women were not identified. The Supreme Court held that the requirement for conviction under section 266 is that the perpetrator intends that the aggrieved party perceives the invasion of privacy. The court of appeal found that he had had no such intent. He could then not be convicted of violation of section 266 of the Penal Code. It is also an objective requirement, under both sections 266 and 266a, that the aggrieved party actually becomes aware of the harassing conduct. As this requirement was not met, he could not be convicted under section 266a. On one occasion, he had filmed a young woman wearing panties only. The Supreme Court found that this is covered by section 298 of the Penal Code on sexually offensive conduct. However, the Supreme Court found that filming and photographing of fully dressed women, which the women did not perceive to be sexually offensive, could not be covered by this provision. Nor could glancing from a general walkway into a flat where a young woman was visible wearing a T-shirt and panties. The Supreme Court found no basis for awarding damages for non-economic loss.
HR-2019-563-A (case no. 18-162196STR-HRET), criminal case, appeal against judgment
21 March 2019
Criminal law. Passive contribution. Abuse in close relationships.
A woman was convicted in the court of appeal for passive contribution to violation of section 219 subsection 1 cf. subsection 3 of the 1902 Penal Code and section 282 cf. section 15 of the Penal Code 2005. On several occasions, the woman's husband had abused his son, who was the woman's stepson and also in her care. The Supreme Court's majority of three justices concluded that the woman, who had tried to stop or prevent the abuse several times, had not done enough to avert continued abuse. It was held that in order to fulfil the duty to act, the person must do something that physically or psychologically prevents the criminal acts. In her particular situation, the woman had a duty to seek help, either from her private network or from public bodies with which she had been in contact, to stop the abuse. The Supreme Court's minority of two justices found that the woman was not guilty of criminal contribution to her husband's abuse of the son. A united Supreme Court found that the exemptions from punishment in section 196 subsection 3 of the Penal Code 2005 are not similarly applicable in the determination of whether passive contribution to a crime has been committed. The appeal against the court of appeal's application of the law was dismissed. Dissenting votes 3-2.
HR-2019-561-A (case no. 18-173981STR-HRET), criminal case, appeal against judgment
20 March 2019
Courts of Justice Act. Closed doors.
In a case regarding the interpretation of the requirements for a deferred sentence under section 459 of the Criminal Procedure Act, the defendant had requested that the hearing be conducted behind closed doors in accordance with section 125 subsection 1 (b) of the Courts of Justice Act. The case has been referred to an oral hearing before a division of five justices. The request was made because counsel were planning to address personal and sensitive information regarding the convicted person's health. The Supreme Court, taking as a starting point that one should be restrictive about closing the doors to the public, stated that it was not necessary to address the health situation with regard to the general interpretation of the law with regard to section 459 of the Criminal Procedure Act. However, information would emerge regarding physical ability, development of disease and diagnosis etc. of such a sensitive character that the requirements for closing the doors were met. Against this background, the doors were to be closed during long reports on the defendant's health. When it came to brief references to the documents, it was deemed sufficient that counsel pointed at the relevant paragraphs without reading them aloud. With reference to section 127 of the Courts of Justice Act, two persons were, upon the parties' request, allowed to attend the hearing in its entirety.
Supreme Court HR-2019-568-A (case no. 18-190497STR-HRET), criminal case, appeal against judgment
14 March 2019
Bankruptcy law. The right of shareholders and creditors to appeal against an order to commence bankruptcy proceedings.
A shareholder that also asserted a status as creditor, appealed against a court order to commence bankruptcy proceedings in a company. The Supreme Court, having conducted an oral hearing, held that it followed from section 72 subsection 2 of the Bankruptcy Act, as the provision read after an amendment of 22 April 2016 no. 3, that creditors still have a right to appeal against orders to commence bankruptcy proceedings. The fact that the shareholder was also a creditor was considered. A shareholder's interests in the company and the significance of the company's economic situation after the commencement of the bankruptcy proceedings, were however not sufficient to give the shareholder a right to appeal. It was also held that under general rules on civil procedure, a third party does generally not have a right to appeal in the capacity of creditor or shareholder. The court of appeal's order, having dismissed the appeal against the bankruptcy proceedings for lack of a right to appeal, was set aside, and the appeal against the county court's order was referred to the court of appeal.
HR-2019-515-A (case no. 18-153598SIV-HRET), civil case, appeal against judgment
14 March 2019
Criminal law. Criterion of guilt. Sentence. Homicide. Shaking of baby.
The penalty for violation of section 333 subsection 1 of the 1902 Penal Code was 12 years of imprisonment. The defendant had shaken his 10-month old son so harshly that the baby died from the injuries. The Supreme Court held that intent in the form of dolus eventualis – section 22 (c) of the 2005 Penal Code - had been correctly presented in the directions to the jury and in the court of appeal's judgment. There were no other aggravating circumstances, thus section 233 subsection 2 was not applicable. A credit of one year was given to the sentence due to long processing time. The defendant's appeal against the court of appeal's application of the law and procedure did not succeed. Dissenting votes 4-1 with regard to the sentence.
HR-2019-509-A (case no. 18-175834STR-HRET), criminal case, appeal against judgment
14 March 2019
Criminal law. Confiscation of data equipment.
In a case concerning production and storage of descriptions of sexual abuse against children or descriptions sexualising children, the police had confiscated a substantial amount of data equipment at the convicted person's home. The court of appeal had ordered confiscation of the equipment used in the criminal act, to which the convicted person had consented. The Supreme Court found that there was no basis for confiscating the other equipment, under neither section 69 nor section 70 of the Penal Code. There was nothing in the wording of section 69 indicating that any functional unit could be counted as one thing. Not under any circumstances could the confiscated equipment be counted as one thing. It concerned a large number of components, which were not joined together, and they were not meant for simultaneous use. Only a very small part of the total equipment could have been used in the criminal act. Also under section 70 of the Penal Code, the equipment had to count as several things. For confiscation under this provision, each thing must be assessed individually. There was no basis for stating that there was a sufficient risk of irreparable harm upon return of the equipment. The prosecution authority's appeal against the court of appeal's decision in the confiscation issue was dismissed.
Supreme Court HR-2019-514-A (case no. 18-188925STR-HRET), criminal case, appeal against judgment
12 March 2019
Criminal law. Negligent infliction of considerable harm to body or health. Negligent skiing.
The penalty for violation of section 280 of the Penal Code was suspended imprisonment for 18 days. The defendant, who was seventeen and a half years old, had collided with a girl in a ski slope. The accident occurred because the defendant came at a very high speed over a drop-off and was thus unable to avoid the girl who was standing right below. The Supreme Court found that the standard of care in a ski slope entails that the skier must move in control and adjust to the conditions to avoid endangering others. Not any careless movement or skiing at high speed is negligent, but in this case the defendant had clearly deviated from the standard of care. Age or other personal circumstances could not prevent that he was to blame for the accident. The Supreme Court also agreed with the court of appeal's majority that gross negligence had been demonstrated within the meaning of section 3-5 of the Compensatory Damages Act, so that the conditions for awarding damages for non-economic loss were met. The judgment gives general guidance on the duty of care when skiing, within the meaning of both criminal law and tort law.
Supreme Court HR-2019-497-A (case no. 18-176486STR-HRET), criminal case, appeal against judgment
11 March 2019
Courts of Justice Act. Filming and recording during hearing.
A newspaper had applied for permission to make film and audio recordings during a hearing in the Supreme Court of a further appeal against a search order, see section 313a of the Courts of Justice Act. The Supreme Court stated that section 131a must be interpreted to mean that recordings are also allowed in a case like the present where a further appeal against an order had been granted an oral hearing in the Supreme Court. It must be possible to make such a decision not only during, but also prior to, the main hearing or the appeal hearing when permission has been applied for in advance. The Supreme Court also found that there were special reasons for granting an exemption from the filming and recording ban. The case involved issues of interest to the general public and had been given much attention, see section 3 subsection 1 (b) of Regulations of 15 November 1985 no. 1910. The prosecution authority had not objected to the filming and recording, and the search in question would not raise any privacy issues for individuals, see section 3 subsection 3 of the Regulations. Consequently, the newspaper was given permission to make film and audio recordings during the hearing.
Supreme Court HR-2019-495-A (case no. 19-010640STR-HRET), criminal case, appeal against order
8 March 2019
Criminal law. Sentence. Follow-up sentence. Driving without a licence.
A 50-year-old man, previously convicted multiple times of driving without a licence, see section 31 subsection 1 cf. section 24 subsection 1 first sentence of the Road Traffic Act, was convicted by the district court of driving under the influence and of two counts of driving without a licence, and sentenced to one year of imprisonment. Following the main hearing, but before judgment was given, he drove once more without a licence. The district court gave an additional sentence of 45 days of imprisonment for the new offence. During the hearing of the appeal against the sentence in the latest judgment, the Supreme Court held that section 82 of the Penal Code was applicable although the new offence had been committed between the main hearing and the judgment in a previous case. In the first judgment, the man was convicted of driving under the influence – of which he had been convicted 18 times before – and of two cases of driving without a licence. Even when taking three instead of two counts of driving without a licence into account, the sentence would not have been stricter than one year of imprisonment. There was no basis for passing an additional sentence under section 82 of the Penal Code. The Supreme Court then passed an aggregate sentence of one year of imprisonment.
HR-2019-486-A (case no. 18-168707STR-HRET), criminal case, appeal against judgment
4 March 2019
Civil procedure. Reversal of procedural order. Mandate for expert.
In a case where evidence in the form of digital files was ordered secured under section 28 of the Dispute Act, the district court had appointed an expert and formulated a mandate for the expert in a separate order. The claimant later demanded a reversal of the expert's mandate. The Supreme Court, having conducted an oral hearing, first referred to the mandate order being a procedural order. As opposed to the court of appeal, which had set the district court's decision aside, the Supreme Court also found that the mandate could not freely be reversed, but that the only legal basis for reversing a procedural order was section 19-10 subsection 1 of the Dispute Act. The appeal against the district court's decision was dismissed.
Supreme Court HR-2019-439-A (case no. 18-141709SIV-HRET), civil case, appeal against order
4 March 2019
Criminal law. Sentence. Aggravating threats. Damages for non-economic loss.
The penalty for violation of sections 264 and 263, cf. section 79 subsection 1 (a), was one year and eight months of imprisonment. The convicted person had repeatedly threatened to kill his daughter and his son, who he found had violated the family's honour, and ordered his son to kill his daughter. The daughter in particular was strongly affected by the threats. The conduct was close to attempted contribution to homicide. Damages for non-economic loss were stipulated to NOK 80 000 for the daughter and NOK 60 000 for the son.
Supreme Court HR-2019-440-A (case no. 18-168736STR-HRET), criminal case, appeal against judgment.
28 February 2019
Employment law. Dismissals. Workforce reduction. Seniority.
A large construction firm, that had reduced its workforce due to declining orders, had departed from the seniority principle when selecting which persons to dismiss and instead emphasised competence and professional skills. The Supreme Court held that a conclusion of unfair dismissal under section 15-7 of the Working Environment Act and section 8-2 subsection 1 of the Basic Agreement must always be specific and based on an overall assessment, and that the selection may be based on other criteria than seniority, such as qualifications, professional skills and competence. Referring to the seniority principle as a main rule could have misleading connotations, although it must form the basis for the selection. The court of appeal had applied the seniority principle beyond its legal basis. The Supreme Court found nevertheless, like the court of appeal, that the dismissals were invalid due to errors in the employer's procedure. A real assessment had been made of only a minority of the selection group. The assessment was thus too narrow and inadequate to justify the dismissals.
Supreme Court HR-2019-424-A (case no. 18-048786SIV-HRET), civil case, appeal against judgment
28 February 2019
Criminal law. Sentence. Community sentence. Physical assault.
The sentence for violation of section 271 of the Penal Code was 42 hours of community service over a period of 120 days, alternatively 36 days of imprisonment. The defendant had struck the aggrieved party in the face with his fist, causing a nose fracture and a cut above the eye that required three stitches. The court of appeal, that had sentenced the defendant under section 273 of the Penal Code, had referred to the district court's statement that the defendant had considered it more likely than not, that an injury could be sustained from the strike. This was an error in law, as the defendant had to have considered it certain or most likely that the strike would cause an injury to establish intent. The Supreme Court found that the act was instead physical assault covered by section 271. It was an aggravating factor that the act had been committed late Saturday at a petrol station. It was mitigating that the defendant had confessed, that the blow had been provoked by a statement from the aggrieved party and that 2 ½ years had passed since the act was committed. The defendant could not be blamed for the lack of progress in the case. The district court's conviction under section 201 (b) of the 1902 Penal Code was set aside, as the act had been committed in Greece, and the district court had not discussed the requirement of dual criminality under section 12 of the 1902 (3) (c) of the Penal Code.
HR-2019-425-A (case no. 18-173910STR-HRET), criminal case, appeal against judgment
15 February 2019
Company law. Board liability. Liquidation board.
An advocate acting as a liquidation board for a company with four municipalities as shareholders had excluded a reported claim from the list of creditors sent to the shareholders, and later dismissed it. The creditor concerned filed a claim for damages against the advocate under section 17-1 of the Companies Act. The Supreme Court found that the advocate had not acted negligently when excluding the claim from the list of creditors. It had to have appeared highly unclear whether a legitimate claim existed. Nor had the advocate acted negligently later, when refusing to acknowledge the claim. He had also advised the general meeting to await deletion until the reported claims had been clarified. If this advice had been followed, the creditor could have obtained recovery through the municipal guarantees issued. There were also no other manners in which the advocate had failed to protect the creditor's interests. The district court's judgment in favour of the advocate was upheld.
The Supreme Court HR-2019-317-A (case no. 18-103200SIV-HRET), civil case, appeal against judgment.
15 February 2019
Tort law. Injury sustained on a RIB tour.
A woman sustained a fracture in her back during a RIB tour. The Supreme Court found like the court of appeal that the owner of the RIB was not liable for the injury, see section 2-1 of the Compensatory Damages Act and section 418 of the Maritime Code with further references. The regulations applicable for RIB tours had not been violated by the owner or the skipper. In no other way had it been demonstrated that the skipper had acted contrary to what the passenger could reasonably expect when participating in such an event that was associated with a certain risk. There is always a chance that a person is injured, without it being possible to identify any specific negligent act causing it. And although the requirement of due care is strict, it is not so that any deviation from ideal conduct is negligence giving rise to liability. The woman's appeal against the court of appeal's judgment in favour of the owner's insurance company was dismissed.
The Supreme Court HR-2019-318-A (case no. 18-128574SIV-HRET), civil case, appeal against judgment
14 February 2019
Criminal law. Illegal catching. International law. Snow crab. Norwegian continental shelf. Fisheries protection zone.
The court of appeal had convicted a Latvian shipping company and the Russian captain of one of the shipping company's vessels of violation of section 61, cf. section 4, cf. section 16 of the Marine Resources Act, cf. section 5, cf. section 1 of the Regulations on the Prohibition against Catching of Snow Crab. The vessel had been catching snow crab on the Norwegian continental shelf in the Svalbard Fisheries Protection Zone without having applied for a permit from Norwegian authorities. The Supreme Court, sitting in a grand chamber, concluded that the snow crab is a sedentary species under Article 77 (4) of the United Nations Convention on the Law of the Sea, and thus comprised by the coastal state's exclusive right to exploit the natural resources on the continental shelf. Norway's obligations under international law did not exempt the defendants from punishment. If the defendants had been Norwegian, they would have been punished in any case for having harvested without a valid exemption. Neither section 6 of the Marine Resources Act, section 2 of the Penal Code nor the Svalbard Treaty can be interpreted to mean that Norway in a case like this is precluded from punishing foreign nationals that, for commercial purposes, act without a permit where such a permit is required for everyone. The principle of equal rights in the Svalbard Treaty had not been violated. The defendants' appeal against the application of the law in the question of guilt was dismissed.
The Supreme Court HR-2019-282-S (case no. 18-064307STR-HRET), criminal case, appeal against judgment
13 February 2019
Property law. Dock system. Foreshore rights. Ownership rights to sea area.
In 2005, Skjærhalden Gjestehavn AS built a guest dock at Skjærhalden in Hvaler. After extensions, the dock system currently consists of a main dock stretching some 230 meters into the basin with crossing piers on the landside. The main dock is positioned at an angle in front of a neighbouring property. The Supreme Court held that the foreshore rights – here in the form of a development right, which includes a right to install a floating dock outside one's own property – are exclusive rights for the owner of the shore to exploit the sea area outside of the property boundary. As far as the exclusives right reach, they protect against interference from owners and right holders on the neighbouring properties. Whether or not the rights are violated is not determined by whether the interference has already been carried out. In regulated dock areas, the foreshore rights reach at least to the relevant regulated boundary, provided that the development does not conflict with the foreshore rights of others. There is no basis for determining each property owner's rights in the sea area outside the property boundaries based on a balancing of interests. In the individual assessment, the Supreme Court referred to dock being partially placed in an area which the neighbour had an exclusive right to develop. It was therefore a violation of her foreshore rights. However, the neighbour had acted in such a manner that she appeared to have accepted the building of the dock system and given the developer good reason to act in reliance thereon. She had thus lost her right under the principle of acceptance by conduct.
The Supreme Court HR-2019-280-A (case no. 18-112942SIV-HRET), civil case, appeal against judgment
13 February 2019
Criminal law. Sentencing. Importation of khat.
The court of appeal had stipulated the punishment for violation of section 231 subsection 1 of the Penal Code to 18 days of imprisonment. The defendant had transported some 29 kilos of khat from Nairobi to Gardermoen. The Supreme Court referred to facts that khat is an addictive substance with serious harmful effects, medically and socially. There was no basis for increasing the upper limit for the use of suspended sentence for importation of khat, which is 20 kilo. The defendant's confession was considered a mitigating circumstance to a certain extent. The defendant's appeal against the court of appeal's sentence was dismissed.
The Supreme Court HR-2019-281-A (case no. 18-163008STR-HRET), criminal case, appeal against judgment
12 February 2019
Tax law. VAT. Harness racing. Taxable income.
The VAT Appeals Board had reassessed outgoing VAT for a jockey's fixed pay for each race (oppsittpenger) and his shares of the cash prizes won, see section 3-1 subsection 1, cf. section 1-3 subsection 1 (a) of the VAT Act. The Supreme Court concluded that the payments were taxable income from sale of services, and that the decision was valid. The fixed payments for each race were considered a form of start money (startpenger). The Court referred to the fact that a fixed and clear public administration practice assumed that start money in a competition constituted payment for a service and thus taxable income. The share of the cash prize was considered payment from the horse owner for the service the jockey delivered by driving the horse in harness races, which also constituted taxable income. The decision was also not invalid due to violation of the principle of equal treatment.
The Supreme Court HR-2019-273-A (case no. 18-096925SIV-HRET), civil case, appeal against judgment
6 February 2019
Tort law. Transport law. Delivery of goods. Seller's right of stoppage.
A carrier had delivered the goods to the buyer in Norway despite the Canadian seller's instruction that the delivery be stopped. The buyer's bankruptcy entailed a loss for the seller, that claimed damages from the carrier. The Supreme Court's majority of four justices found that the seller's right of stoppage applied, and that the carrier was liable for the loss. None of the carrier's contentions – that the goods were already paid for, that the buyer's economy was failing already before the carrier had received the goods, that the goods had been delivered to the buyer before the stoppage was instructed, that the buyer must be notified before the right of stoppage is exercised and that a bill of lading had been handed to the buyer – succeeded. The carrier had an obligation to comply with the seller's instruction to stop the delivery to the buyer. The company thus acted negligently by handing the goods to the buyer, which gave rise to liability. Dissenting votes 4-1.
Supreme Court HR-2019-231-A (case no. 18-051892SIV-HRET), civil case, appeal against judgment
1 February 2019
Criminal law. Rape in the first degree. Lower threshold for conviction for attempt.
A man convicted in the court of appeal of violation of section 292, cf. section 291, cf. section 16 of the 2005 Penal Code – attempted rape in the first degree – had followed the aggrieved party into a toilet cubicle and locked the door. He had then ordered her to take off her clothes, and hit her in the face when she refused. However, he did not succeed in his attempt to carry out the rape, as another person came to the woman's rescue. The Supreme Court agreed with the court of appeal that, qualitatively, so little remained before the act was committed that the lower threshold for conviction for attempt had been passed, see section 16 subsection 1. The court of appeal had considered it proven that the defendant had an intention of committing a rape in the first degree, which could not be reviewed by the Supreme Court. The defendant's appeal against the court of appeal's application of the law was dismissed.
Supreme Court HR-2019-189-A (case no. 18-131695STR-HRET), criminal case, appeal against judgment
31 January 2019
Employment law. Duty to pay laid-off employees.
A recipient of redundancy pay under sections 3 and 4 of the Redundancy Pay Act of 6 May 1988 no. 22, had had his salary reduced during the employer-financed period to 6 G – six times the basic national insurance contribution. The Supreme Court found like the lower instances that no such reduction can be made, but that the employee is entitled to full salary during this period. The reference in section 4 of the Redundancy Pay Act to section 8-28 of the National Insurance Act, which in turn refers to section 8-10, did not entail that the reduction to 6 G under section 10 subsection 2 of the National Insurance Act was applicable when calculating the redundancy pay. This followed from a textual analysis of the Act, and the preparatory works did not suggest otherwise.
Supreme Court HR-2019-178-A (case no. 18-163837SIV-HRET), civil case, appeal against judgment
28 January 2019
Tax law. Deduction. Group contribution. EEA law.
A Norwegian international group, claimed a tax deduction for group contributions made to a Lithuanian subsidiary undergoing liquidation proceedings. The Supreme Court found like the Tax Appeals Board and the lower instances that there was no basis for such deduction, as a refusal would not be contrary to Article 31, cf. Article 34 of the EEA Agreement. A majority of three justices placed decisive emphasis on the group's failure to demonstrate that the losses suffered in Lithuania were final, which was a condition for claiming deduction. The minority of two justices considered it decisive that the subsidiary was still receiving interest income, and that this precluded application of the exception for final losses. Dissenting votes 3-2.Supreme Court HR-2019-140-A (case no. 18-069096SIV-HRET), civil case, appeal against judgment
28 January 2019
Civil procedure. Rectification.
A lawyer that had been awarded costs in a case before the Supreme Court, had stated the amount claimed exclusive of VAT in her statement of costs. Her petition for rectification of the costs ruling, so as to include VAT, did not succeed. It did not appear from the statement of costs that the lawyer demanded costs inclusive of VAT. Thus, no such error had been committed that it formed a basis for rectification under section 19-8 of the Dispute Act.
Supreme Court HR-2019-146-A (case no. 18-084484SIV-HRET), civil case, appeal against order
14 January 2019
Tort law. Non-statutory strict liability. Personal injury. Fitness centre.
A woman was injured after falling off a spinning bike at a fitness centre. The fall was caused by the breaking of the bike's saddle bolt. The Supreme Court found that the fitness centre was not liable for the injuries under the principle of non-statutory strict liability. The probability of being injured from using such a bike had to be regarded as low. The risk related to the use of a spinning bike was not larger than the risks otherwise incurred in daily life, in connection with leisure and fitness activities among others. Thus, there was no basis for strict liability. Judgment was given in favour of the fitness centre.
Supreme Court HR-2019-52-A (case no. 18-070984SIV-HRET), civil case, appeal against judgment.
10 January 2019
Criminal case. Withdrawal from attempted homicide
A woman who had been convicted of attempted homicide under section 275, cf. section 16 of the Penal Code, had on several occasions tricked her husband into eating mouse poison with the purpose of killing him. On the last occasion, she wanted it to look like a suicide. She called the emergency service (AMK) at night, when the man was unconscious, and said she thought he had taken poison. She was instructed to wake him up by pinching him so hard that he had bruises. In this manner, she managed to revive him, and he survived. The Supreme Court held that she was still intent on killing him when she called AMK, and that she understood she would be revealed if she did not follow their instructions. Thus, she had not voluntarily desisted from committing an offence under section 16 subsection 2 of the Penal Code, which could have released her from penalty for attempted homicide. The appeal against the court of appeal's application of the law was dismissed.
Supreme Court HR-2019-47-A (case no. 18-127806STR-HRET), criminal case, appeal against judgment
9 January 2019
Criminal procedure. Qualification. Co-prosecutor. Grand chamber
An advocate serving at the office of the Attorney General had been appointed as co-prosecutor under section 77 of the Criminal Procedure Act in a criminal case regarding catching of snow crab on the Norwegian continental shelf, which is shortly to be heard by a grand chamber of the Supreme Court. He had not been involved in the investigation or in the indictment, and was to assist the main prosecutor with legal issues only. The Supreme Court, which had also this matter heard by a grand chamber, found that he was not disqualified under section 60, cf. section 55 final subsection of the Criminal Procedure Act. Neither his service at the Attorney General nor his role as assisting Attorney General or his participation in the office's management resulted in disqualification. Nor were there other circumstances that, in objective terms, gave the outside world a fair or justifiable reason to doubt the impartiality of the advocate. It was mentioned that he was subject to instructions by the main prosecutor and the superior prosecution authority. The request that the advocate be disqualified did not succeed.
Supreme Court HR-2019-34-S (case no. 18-064307STR-HRET), criminal case, appeal against judgment