Summaries of rulings 2014
18 December 2014
Criminal law. Administrative procedure Presumption of innocence. Live link examination.
In a conviction regarding drunk driving, where the person convicted claimed that someone other than himself had operated the vehicle at the time in question, but that he could not remember who this person was, the court of appeal concluded that it spoke against him that he could not identify the alleged other driver, in that he could, and ought to, have figured out who this person was. This imposed on the person convicted a burden of investigation and evidence that conflicts with the presumption of innocence, as laid down in Section 96, Subsection 2, of the Constitution, cf. Article 6 of the ECHR, and Article 14, no. 2, of the ICCPR. The court of appeal had allowed a key witness, who stated that she saw the person convicted driving the car, to give her statement by telephone examination. The Supreme Court remarked that it would have been unproblematic to make arrangements for the witness to give her statement to the court of appeal directly, and that this presumably would have given the court a significantly more accurate basis on which to assess the evidence than a telephone examination. Both of the above concerns were grounds on which to overturn the court of appeal's judgment.
Ref.: HR-2014-2472-A, (case no. 2014/1747), criminal case, appeal against judgment.
18 December 2014
Criminal law. Sentencing. Firearm in a public place.
The penalty imposed for violation of Section 33, Subsection 2, cf. Section 33, Subsection 1, second period, cf. Section 27 b), of the Firearms and Ammunition Act was 5 months imprisonment. The person convicted had, at night and while intoxicated, brought a loaded revolver into a crowded nightclub in Oslo's city centre. The basis for sentencing was a period of imprisonment of six months. The court took into account the convicted person's unreserved confession.
Ref.: HR-2014-2476-A, (case no. 2014/1700), criminal case, appeal against judgment.
18 December 2014
Contract law. Construction contract. Contradiction.
An appeal in a case involving a construction contract submitted that the court of appeal's ruling fell outside the scope of the parties' bases for claim or was based on facts that the parties had not had the opportunity to comment on, cf. Section 11-2, Subsection 1, second period, and Section 11-1, Subsection 3, of the Dispute Act. The Supreme Court based its assessment on the determining factor, which is whether “the parties have had sufficient opportunity to comment on material facts that will be of significance for the court's decision”, cf. Rt-2013-1158, paragraph 45. The bases for claim before the court of appeal were related to whether a defect was present at the time of transfer according to the contract, and the Supreme Court, following a specific assessment of the evidence presented during the appellate proceedings, and on the basis of the reasons for judgment, the closing arguments, outlines for opening arguments and procedure, concluded that the court of appeal's ruling did not fall outside the scope of the bases for claim or override the condition of contradiction.
Ref.: HR-2014-2467-A, (case no. 2014/712), civil suit, appeal against judgment.
18 December 2014
Social security law. Period of prescription. Notice of claim.
A former employee of a hospital trust did not succeed in her claim for disability pension under the group insurance with her employer's insurance company, outside of the claim for the last three years prior to the claim being submitted to the company, cf. the provision on period of prescription in Section 18-6 of the Insurance Contracts Act. The employee had been unaware that she had been entitled to pension payments from the company, but her employer was informed of her health problems and that she could have an insurance claim. The Supreme Court's majority vote of three judges concluded that this was insufficient for the claim to be considered submitted to the policyholder under the terms of Section 19-9, cf. Section 18-6, of the Insurance Contracts Act, in that no actual claim had been submitted. Nor were there grounds on which to interpret these provisions in a wider sense, thus establishing a duty to act on the part of the policyholder upon learning that an insured person could have a claim. Dissenting vote: 3-2.
Ref.: HR-2014-2470-A, (case no. 2014/998), civil suit, appeal against judgment.
18 December 2014
Tax law. Calculating withdrawal VAT
A contractor had erected a large house for personal use. For some time, the house would also be used as a showroom for business purposes. As a general rule, the Supreme Court stated that for withdrawals of distributable objects for personal use, a discretionary calculation of value-added tax would have to be made, insofar as the withdrawal was intended for use that is not liable to VAT, in line with the calculation of input VAT for acquisitions, cf. Section 14, cf. Section 23, of the VAT Act of 1969. The Supreme Court furthermore stated that a minimum threshold must apply to claim proportionate withdrawal calculations in connection with the acquisition of goods and services for joint use, and for having to conduct equivalent calculations for partial withdrawal for purposes not liable to VAT. In the present case, the total use of the house for business purposes was not sufficient to claim proportionate tax exemptions for such use of the house.
Ref.: HR-2014-2471-A, (case no. 2014/772), civil suit, appeal against judgment
17 December 2014
Family law. Division of community property. Unequal division.
A mother, who had retained undivided possession of her deceased spouse's estate, had transferred real property valued at no less than NOK 1.3 million to one son. As performance in return, the son were to make a home available to the mother, either by her remaining a resident of one of the transferred properties, or by him acquiring an apartment of her choice for her, which he would own, at a value of up to one million kroner. Regardless of which of the above options were chosen, there would be a significant gap between the value of the properties and the mother's right of occupation. This was sufficient to conclude that a transfer of assets to the son had taken place, and the Supreme Court furthermore concluded that the condition of donative intent had been met. In the division of property with his estranged wife, the son was allowed to withhold 60 percent of the value of the property from the division, cf. Section 59, Subsection 1, of the Marriage Act. Furthermore, the parties agreed that 20 percent of the value of the transferred property would be equally divided due to improvements made during the marriage. In the remaining, the share to be unequally divided was established at the court's discretion with reference to the uncertainties associated with the value of the usufruct.
Ref.: HR-2014-2456-A, (case no. 2014/980), civil suit, appeal against judgment.
12 December 2014
Tax law. Value-added tax. “Investment goods”.
A wholly-owned municipal developer transferred a development project to the municipality, which claimed compensation pursuant to the Act no. 108 of 2003 relating to Compensation for value-added tax paid by the developer in connection with the project planning. The parties agreed that the municipality was entitled to compensation insofar that it related to deduction or adjustment rights under Chapter 9 of the VAT Act. In line with the court of appeal, the Supreme Court concluded that the project, as transferred, could not be classified as investment goods in accordance with Section 9-1, Subsection 2, litra b), of the VAT Act, in that no actual construction had taken place on the property. Project planning for development purposes was not sufficient. Decisive emphasis was placed on the wording of the law. A majority of four of the judges also concluded that the demolition work performed did not constitute new developments under the terms of the law, but did not rule out that demolition could be included if demolition and erection has been agreed to take place in one, continuous operation. Dissenting vote: 4-1.
Ref.: HR-2014-2430-A, (case no. 2014/878), civil suit, appeal against judgment.
12 December 2014
Law of damages Capitalization rate. Tax disadvantage.
In this case involving damages, the Supreme Court concluded that the capitalization rate, which is to be applied in the discounting of future loss of income, future costs and compensation for permanent injury at present value, as a norm shall be four percent, compared to five percent in the past. The court based its assessment on the average achievable real yield from managing awarded damages over a period of several decades, and took into account that the injured party would have to invest in a more diverse portfolio than one consisting of 80 percent government stock. Presumably, part of the damages would also have to be used to finance a home. Uncertain financial prospects and the fact that the capitalization rate would presumably remain unchanged for a long period of time, pointed to caution in making any major changes from prevailing law. There were no grounds on which to establish a separate capitalization rate for means managed by the county governor in its capacity as the guardianship authority. This is an issue the legislator ought to consider. The tax disadvantage, which in most cases has been established at 25 percent, was now established at 20 percent. The Supreme Court did not find in favour of the injured party on all counts, but was successful on the issue of the capitalization rate, as this issue is of general public importance. She was awarded costs of action before the Supreme Court and the court of appeal, cf. Sections 20-3 and 20-9, Subsection 2, of the Dispute Act. Grand Chamber action. Dissenting vote 7-4 on the issue of a separate capitalization rate for means managed by the county governor.
Ref.: HR-2014-2425-S, (case no. 2014/604), civil suit, appeal against judgment.
11 December 2014
Law of damages. Reduction. Loss of provider. Influence of alcohol.
The case involved the calculation of survivor's compensation for the loss of a provider following a car accident where the driver, who died, was under the influence of alcohol, and the Supreme Court concluded that the compensation was to be reduced by 20 percent due to a partial identification between the survivors and the driver, cf. Section 7 of the Automobile Liability Act and Section 5-1 of the Act relating to Compensation in Certain Circumstances. In this, the Supreme Court deviated from the decision in Rt-1997-149, where the reduction in a similar case was set to 50 percent. In its assessment, the Supreme Court attached particular importance to the evolution of the law since 1997. Reference was made to the fact that passengers are no longer included in the exclusion provision of Section 7, Subsection 4, of the Automobile Liability Act; reductions for passengers are now instead subject to Section 7, Subsection 1, of said act, cf. Section 5-1 of the Act Relating to Compensation in Certain Circumstances, with the consequence that a reduction of 30 percent has become the norm. The court also pointed out that particular emphasis should be placed on social concerns in the identification assessment. Also, survivors of the driver should not fare worse than the passenger. There were no grounds on which to differentiate between cohabitant partners and children.
Ref.: HR-2014-2423-A, (case no. 2014/1128), civil suit, appeal against judgment.
6 November 2014
Tax law. Tax allowance for withholding tax paid abroad.
Norwegian companies, which had paid withholding tax abroad on dividend from shares in foreign companies, claimed tax allowances pursuant to Section 6-24, Subsection 1, of the Taxation Act for said withholding tax. The majority vote of the Supreme Court concluded that the tax allowance did not cover withholding tax. Reference was made to Section 6-24 of the Taxation Act, which, unlike Section 6-1, does not refer to Section 6-15 on tax and duty on real property or specific activities or occupations, and it was emphasized that withholding tax is a cost incurred as a result of income, and not a cost incurred to generate income. The preparatory works to Section 6-24 did not lend support to any other solution. The appeals against the Court of Appeal's judgment in favour of the defendant were rejected. Dissenting vote: 3-2.
Ref.: HR-2014-2162-A, (case no. 2014/626), civil suit, appeal against judgment.
9 December 2014
Defamation. Damages for non-economic loss.
A newspaper had reported on surgeries performed by a named surgeon, and in such at way that it implied that the doctor had operated on healthy individuals for no reason, causing them irreparable harm by removing vital organs. The publication also wrote that one of these patients had not consented to the surgery. On the basis of statements given by expert witnesses and the Norwegian Board of Health Supervision, the Supreme Court concluded that the surgeries were justified, that the patient in question had consented to the surgery, and that the newspaper's allegations were unfounded. The newspaper had access to information indicating that its accounts of the surgeries were incomplete and misleading, but issued no reservations. The allegations were found to be in contravention of the law, cf. Section 247 of the Penal Code. The Supreme Court awarded damages for non-economic loss in the amount of NOK 400,000 in favour of the surgeon, cf. Section 3-6 of the Act Relating to Compensation in Certain Circumstances. Emphasis was attached to the fact that the allegations were serious, and that the media coverage had serious consequences for the doctor, both personally and professionally.
Ref.: HR-2014-2398-A, (case no. 2014/338), civil suit, appeal against judgment.
3 December 2014
Labour law. Dismissal. Standard of proof.
An employee was dismissed, cf. Section 15-14 of the Working Environment Act, on the grounds that he had acquired cash from his employer. The Supreme Court, who pointed out that it has been established in case law that a higher standard of proof may be required for actual circumstances that are particularly incriminating for a party, stated that the court's conclusion that the conditions for dismissal have been met, would be very incriminating, even though it could not be concluded that the employee had committed criminal embezzlement. In a dismissal case such as this, it would also have to be generally required to be qualified by the preponderance of evidence that the conditions for dismissal were met. In defamation law, neither the relationship to the standard of proof nor consideration for the presumption of innocence could result in a higher standard of proof so that this was congruent with what applies in criminal law. The employee's appeal against the Court of Appeal's judgment for the defendant was dismissed.
Ref.: HR-2014-2364-A, (case no. 2014/1449), civil case, appeal against judgment.
27 November 2014
Criminal law. Sentencing. Repeated rape offences
The punishment for violation of Section 192 1 a) of the General Penal Code, cf. sub-section 2 a) and violation of Section 192 1 a) of the General Civil Penal Code, cf. Section 49, was set at a term of imprisonment of 11 years. In two of the rape cases, the convicted person had abused his position as a basketball coach, cf. Section 193 of the General Civil Penal Code. The rapes had partly occurred before and partly after the amendment of the law in 2010. Emphasis was placed on the time lapse as regards the three oldest rape offences from 2005 and 2006. The fact that the convicted person had acknowledged having had sexual intercourse with the aggrieved parties gave no grounds for a reduction in sentence pursuant to Section 59 (2) of the General Civil Penal Code.
Ref.: HR-2014-2325-A, (case no. 2014/1419), criminal appeal against judgment.
27 November 2014
Criminal law. Actual bodily harm causing death. Aiding and abetting.
In the case pursuant to Section 22 (1) of the General Civil Penal Code, cf. third penal alternative, cf. Section 232, the aggrieved party died after receiving a blow from one of the defendants and then a kick from the other defendant. As it was uncertain which of these actions was the direct cause of death, neither of the two defendants could be convicted of having caused the death. They could also not be convicted of mental complicity toward the cause of death, as there was no inducement or strengthening of the other's intent as this requires. In the Court of Appeal, both were sentenced pursuant to Section 229, first penal alternative of the Criminal Procedure Act, cf. Section 49, cf. Section 232, to a term of imprisonment of seven months. The prosecuting authority's appeal against the decision on the legal claim was dismissed. The Court of Appeal had dismissed the survivors' claim for compensation against the defendant who had delivered the blow. In the decision it was correctly concluded that a clear preponderance of evidence was required for the causal connection between the blow and the resulting death, and that the causal connection requirement would be met if the blow was a necessary condition for the resulting death in combination with the other defendant's kick. The survivors' appeal was dismissed.
Ref.: HR-2014-2324-A, (case no. 2014/1149), criminal case, appeal against judgment.
24 November 2014
Criminal procedure. Communication control. Surplus material.
After the indictment pursuant to Section 60 a) of the General Civil Penal Code was dropped, recordings and notes from the communication control conducted in 2008 were classified as surplus material. According to the wording of the provision up to Amending Act no. 86 of 21 June 2013, this could not be used as evidence in the District Court, cf. Section 216 i) of the Criminal Procedure Act. The majority of the Supreme Court concurs that the surplus material could not be used as evidence in the Court of Appeal pursuant to Section 216 i) d) of the Criminal Procedure Act, as the provision now reads. It should have been destroyed no later than when the indictment was issued in 2011, cf. Section 216 g) of the Criminal Procedure Act. The continued storage of the material by the police was therefore in violation of the law and thereby also in violation of EHCR Article 8 and SP Article 17. Continued use of the material would then represent a further breach of the law, cf. Section 102 and 113 of the Norwegian Constitution. Interviews in which the spouse of one of the defendants participated should have been completely deleted immediately and therefore, outside the subject matter of the appeal, the Supreme Court ordered immediate deletion, cf. Section 92 of the Norwegian Constitution, EHCR Article 13 and SP Article 2 no. 3 b). Opinions relating to retrospective application of new procedural rules. Dissenting judgment 3-2
Ref.: HR-2014-2288-A, (case no. 2014/1435), criminal, appeal against decision.
30 October 2014
Tax law. Transfer of fishing vessel with associated fishing rights.
In connection with the transfer of two fishing vessels from sole proprietorships to partially-owned limited liability companies, the companies earned an acquisition and commercial licence pursuant to Section 4 of the Fishing Participation Act, and access to the same fisheries as the transferor. The Supreme Court concluded that the transfers entailed that the transferors had waived all fishing rights, and that the value of said rights consequently would constitute taxable self-employment income on the part of the transferors, cf. Section 5-1, Subsection 2, of the Taxation Act. Reference was made to the fact that enterprises can meet the terms and conditions for participation in fishing, and that the fisheries legislation generally indicates that permits required to engage in fishing must rest with the same legal person. The Supreme Court furthermore concluded that the value of participation rights would be included in the taxable assets of the acquiring companies, in that the exemption for time-limited usufruct in Section 4-2, Subsection 1, litra b), of the Taxation Act did not come to apply.
Ref.: HR-2014-2108-A, (case no. 2014/636), civil suit, appeal against judgment.
Criminal law. Sentencing. Violence in family relationships
The person convicted was sentenced to a period of imprisonment of 120 days for violation of section 219, Subsection 1, of the Penal Code. She had, on at least eleven occasions, committed violence against his son over a period of two years, from age 7 to age 9. The violence consisted of at least six punches with a closed fist, at least one slap with a flat hand, and several smacks with a belt. Section 219 of the Penal Code clearly specifies that violations shall be subject to a period of immediate imprisonment, and there were no special circumstances present in this case to justify suspension of the sentence entirely or in part.
Ref.: HR-2014-2101-A, (case no. 2014/1248), criminal case, appeal against judgment.
29 October 2014
Law of damages Damages for non-economic loss. Transfer through inheritance.
A claim for damages for non-economic loss pursuant to Section 3-10 of the Act Relating to Compensation in Certain Circumstances was submitted after the victim's death. The Supreme Court concluded that the condition in said provision, specifically that the claim would have to be submitted prior to the victim's death in order to be transferable through inheritance, had not been met. It is not sufficient that the indictment specified that claims for compensation/damages for non-economic loss would be submitted by counsel for the victim. When the victim has been appointed counsel, all claims must be submitted by said counsel, cf. Sections 427 and 428 of the Criminal Procedure Act. This similarly applies when counsel for the victim has been summoned by police pursuant to Section 107, Subsection 3, of the Criminal Procedure Act. The claim for damages for non-economic loss was dismissed.
Ref.: HR-2014-2102-A, (case no. 2014/1118), civil suit, appeal against judgment.
23 October 2014
Child welfare. Access. Abduction risk.
The court of appeal denied parents access to their daughter, for whom child welfare services had assumed care, cf. Section 4-19, Subsections 1 and 2, of the Child Welfare Act, Article 9, no. 3, of the Convention on the Rights of the Child, and Article 8 of the ECHR. Access was denied due to the abduction risk. The Supreme Court pointed out that special and compelling circumstances have to be present to deny access, and consequently, there must, in this case, be a real and present risk of abduction if access is carried out. It was not clear whether the court of appeal had taken this into account. Also, the facts of the case were not found to be sufficiently clarified to conclude that there was a real and present risk of abduction. The court of appeal's judgment was thus overturned.
Ref.: HR-2014-2068-A, (case no. 2014/1252), civil suit, appeal against judgment.
23 October 2014
Tax law. Transfer of a medical practice. Asset classification of a regular GP agreement.
Following the transfer of a medical practice, there was a dispute whether the right to a municipal basic grant is a business value (goodwill), for which deductions for depreciation can be claimed pursuant to Section 6-10, Subsection 2, letter a) of the Taxation Act, or whether this basic grant must be classified as an “intangible business asset other than business value”, cf. Section 6-10, Subsection 3. The Supreme Court concluded that the part of the compensation tied to an expectation that the acquirer upon completion of the transfer would stand to receive a municipal basic grant, would necessarily have to be classified as a business value for which deductions for depreciation can be claimed. Inter alia, the court pointed out that the right to the basic grant in question is entirely contingent on the number of individuals on the physician's patient list. As such, the acquirer lacks the kind of control over the asset that, in an accounting context, is required for it to be classified as an intangible business asset other than goodwill. The tax assessment for the year in question, wherein the right to claim deductions had not been accepted, was overturned. Dissenting opinions of 4-1 over grounds.
Ref.: HR-2014-2069-A, (case no. 2014/688), civil suit, appeal against judgment.
23 October 2014
Calculating a minimum sentence for preventive custody
For postponed sentences for sexual crimes, cf. Section 64 of the Penal Code, the Supreme Court established a collective penalty of preventive custody with a minimum sentence of five years and five months, and a maximum sentence of 13 years. The court concluded that the establishment of a minimum sentence pursuant to Section 39e of the Penal Code is subject to Section 64 of the Penal Code, cf. Section 62 of the same, meaning that the minimum sentence, even for postponed sentences, cannot exceed 10 years. Given that the collective penalty in cases involving postponed sentences must not be more stringent than if the offences were adjudicated at the same time, the court took as its starting point in establishing the minimum sentence the maximum penalty of 10 years, and deducted the part of the initial sentence of imprisonment that had already been served.
Ref.: HR-2014-2065-A, (case no. 2014/562), criminal case, appeal against judgment.
23 October 2014
Criminal law. Fisheries law. Reporting. Confiscation.
The captain of a fishing vessel had been fined for violations of Section 62, cf. Section 36, of the Marine Resources Act. On two occasions, he had violated provisions regarding position logs and electronic catch logs. The Supreme Court concluded that there were sufficient grounds on which to order confiscations from the shipping company, cf. Section 65 of the Marine Resources Act. Reference was made to the significance of proper reporting for effective resource management, and to the importance of the confiscation remedy for enforcement of fisheries legislation. In determining the size of the amount to be confiscated, the court took into account the unreported catch, without regard for costs or other deductions, such as the crew's share.
Ref.: HR-2014-2070-A, (case no. 2014/1438), criminal case, appeal against judgment.
23 October 2014
Criminal law. Application of the law. Assault. “Considerable pain.”
The person convicted pursuant to Section 228, Subsection 2, first penal option, of the Penal Code in the court of appeal, had punched the victim in the head twice. At least one of the punches hit the victim's left ear, and the victim suffered dizziness, ear pain and moderate tinnitus as a result. The dizziness subsided after approx. a week and a half, but the ear pain persisted for a little longer than six months. Viewed collectively, the intensity and duration of the overall pain must necessarily be categorized as “considerable pain”. The appeal against the court of appeal's application of the law was rejected.
Ref.: HR-2014-2066-A, (case no. 2014/1537), criminal case, appeal against judgment.
23 October 2014
Criminal law. Converting a community sentence. Long processing time.
In a case involving the conversion of a community sentence due to a violation of the terms, cf. Section 28b, Subsection 1, letter a, of the Penal Code, a number of errors made by the Norwegian Correctional Service and the prosecuting authority meant that two years had passed from the court of appeal's judgment until the appeal was received by the Supreme Court, which meant that the application to set the judgment aside could not be granted. This was true both when domestic principles for the administration of justice were applied and when the court assumed that Article 6 of the ECHR came to apply, so that a claim for compensation would follow from Article 13.
Ref.: HR-2014-2067-A, (case no. 2014/1546), criminal case, appeal against judgment.
25 September 2014
Criminal law. Application of the law. Sentencing. Forfeiture. Refugee espionage.
For violating Section 91a of the Penal Code, the person convicted was sentenced to imprisonment for a period of one year and three months. The person convicted, who was a Sudanese intelligence officer, had, under the pretence of being a Sudanese refugee, gathered information from the Sudanese exile community in Norway, and forwarded this information to his handlers at the Sudanese Embassy in Oslo. The Supreme Court pointed out that conviction pursuant to Section 91a requires that the information collected is information that is not openly accessible. The requirement that the collection of information has to be done secretly had been met by the person convicted pretending to be a refugee. The fact that his intelligence-gathering activities had not led to negative consequences as described in the provision, is not a determining factor. On the line between application of the law and assessment of the evidence the court gave the following remarks: Any interpretation of a statement made by a court to determine the legal consequences of that statement is part of the application of the law, but determining whether a conversation, which, objectively speaking, has a given content, still has another layer of meaning due to the participant's own understanding of words and content, falls under assessment of the evidence.
Ref.: HR-2014-1900-A (Case no.: 2014/1260), criminal case, appeal against judgment.
25 September 2014
Damages. Measure of damages. Gross involuntary manslaughter. Large number of survivors. Low-cost country.
A person convicted of gross involuntary manslaughter was ordered to pay damages for non-economic loss to the victim's spouse, five children and parents, who lived in Kenya, in the amount of NOK 125,000 to each, cf. Section 3-5 of the Act Relating to Compensation in Certain Circumstances. The Supreme Court concluded that the standard amount paid in damages for non-economic loss in connection with gross involuntary manslaughter suitably could be adjusted to NOK 125,000, and that this amount would be applied to all groups of survivors entitled to compensation. Exceptions would not be made for survivors solely for living in a low-cost country. It would also take a lot for this standard amount to be reduced due to the offender's financial position and the fact that there was a large number of survivors.
Ref.: HR-2014-1899-A (Case no.: 2014/655), civil suit, appeal against judgment.
23 September 2014
A company had a debt instrument loan and an operating account in the same bank. The loan agreement specified that the bank could make the loan due and payable “effective immediately” if the borrower went bankrupt or if enforcement proceedings were initiated against the borrower. The operating account agreement specified that the bank could “set off any claim against the account owner against the balance in the account”. Following commencement of bankruptcy proceedings against the company, the estate in bankruptcy demanded payment of the balance on the operating account. The Supreme Court concluded that the bank could set-off the debt instrument loan against the balance of the operating account pursuant to Section 8-1 of the Satisfaction of Claims Act. The fact that several executions had been levied against the account prior to the commencement of bankruptcy proceedings did not entail that the “nature of the claim” precluded set-off, cf. Section 8-1, Subsection 2, first period. The debt instrument loan was made due and payable already when the first execution was levied, and thus matured before the principal claim, cf. Section 26 of the Debt Instrument Act, cf. Section 5-7, Subsection 2, second period, of the Mortgage Act.
Ref.: HR-2014-1890-A (Case no.: 2014/223) civil suit, appeal against judgment.
22 September 2014
Contract law. Additional consideration. Service provision licensing. Contract interpretation. False premises.
A ferry company claimed additional consideration for operating a ferry connection on the Norwegian national road network, because anticipated infrastructure projects, which would have resulted in increased traffic, had been postponed. The claim, which was brought on the basis of the contract, and alternatively pursuant to the provisions on false premises, was not successful. The majority vote of the Supreme Court concluded that the ferry company, in accordance with the contract, which would have to be interpreted objectively, bore the risk of the consequences associated with the postponement. Given a comprehensive assessment of the circumstances of the case, bringing the case on the basis of general provisions regarding false premises had no merit. Dissenting vote: 4-1.
Ref.: HR-2014-1873-A (Case no.: 2014/576), civil suit, appeal against judgment.
19 September 2014
Compensation. Administrative procedure Appointment of expert witness.
A person convicted pursuant to Section 196, Subsection 1 of the Criminal Procedure Act, had also been ordered, by the district court and the court of appeal, to pay a significant amount in compensation to the victim. The appointed medical expert witness had found it highly probable that there was a causal link between the abuse and the health problems the victim had sustained. The Supreme Court concluded that it was necessary to appoint more than one expert witness to establish a fair factual basis on which to determine whether or not there is a causal link in this case, cf. Section 25-3, Subsection 1 of the Dispute Act. The victim's diagnosis was in dispute, and the brief justification given by the court of appeal did not allow for an evaluation of whether any real assessment into the potential need for more than one expert witness had been made. The court of appeal's judgment was overturned.
Ref.: HR-2014-1865-A (Case no.: 2014/716), civil suit, appeal against judgment.
Tax law. Taxation of profit from sale of convertible bonds. Exemption model.
17 September 2014
A bond loan to a company had been combined with the right for lenders to convert the claim to shares in the company at a fixed conversion rate. Bondholders were later offered the chance to take part in a private placing in the company at the same rate, in exchange for waiving the right to convert their claims into shares. The Supreme Court concluded that the difference between the market price and the issue price counted as taxable income for bondholders taking advantage of the offer. The Supreme Court found that the amendment entailed a conversion of the convertible bonds to another type of financial instrument as a consequence of separating the claim from the pre-emption rights. For tax law purposes, this is equivalent to a sale of the convertible bond. Consequently, the exemption model described in Section 2-38, Subsection 2, letter c) of the Tax Act does not apply.
Ref.: HR-2014-1847-A, (case no. 2014/384), civil suit, appeal against judgment
11 September 2014
Compulsory mental health care. Discharge. Deterioration provision.
A woman who was subject to compulsory mental health care pursuant to Section 3-3 of the Mental Health Care Act, requested that the compulsory mental health care be terminated pursuant to Section 3-7 of the Act. The request was not granted. A discharge would likely lead to a significant deterioration of her condition in a period of three to four months. The Supreme Court concluded that the condition in Section 3-3, no. 3 a) regarding significant deterioration “in the very near future” had been met. It was pointed out that the long-acting effects of current antipsychotic medications gave grounds to adjust the premise in the preparatory works of a maximum limit of two months.
Ref.: HR-2014-1792-A, (case no. 2014/1279), civil suit, appeal against judgment.
11 September 2014
Compulsory mental health care. Terms.
A man who was subject to compulsory mental health care pursuant to Section 3-3 of the Mental Health Care Act, requested that the compulsory mental health care be terminated. The request was not granted. The Supreme Court made reference to the man's underlying condition of schizophrenia simplex, a diagnosis on which all healthcare professionals who has been in contact with him over time agreed. A history of violent incidents proved that the risk provision of Section 3-3, Subsection 1, no. 3 had been met. Attempting voluntary mental health care was obviously pointless. Collectively, protecting the public interest and protecting the patient's own interest are concerns that speak against his discharge at this time, cf. Section 3-3, no. 6.
Ref.: HR-2014-1799-A, (case no. 2014/932), civil suit, appeal against judgment.
5 September 2014
Civil procedure. Inadmissibility of evidence. Advocate law. Investigative report.
An advocate employed by an auditing and consulting firm had led an inspection and investigation of a company. One employee, who was dismissed—as a result of the investigation, among other things, demanded the report presented as evidence in the case involving the validity of his dismissal. The Supreme Court made reference to the advocate acting as an advocate in connection with the investigation. In addition to heading up the investigation task force and assuming responsibility for any legal assessments, he also had the overall responsibility professionally for the entire investigation. On this basis, the majority vote of the Supreme Court concluded that the report was subject to the provision regarding inadmissibility of evidence in Section 22-5 of the Dispute Act. Dissenting vote: 4-1.
Ref.: HR-2014-1775-A, (case no. 2014/1317), civil suit, appeal against interlocutory order.
5 September 2014
Corruption. The improper advantage criterion.
The Operations Manager of a municipal company responsible for much of the public transport in the area had attended three dinners paid for by the bus manufacturer who supplied buses to several of the companies with whom the municipal company had operating agreements. The Supreme Court cited that the expression "improper" in Section 276a, Subsection 1 of the Penal Code implies that there must be a quite clear improper advantage and stated that when an advantage is not of a permanent nature, but is consumed in connection with an event, which on its own is relevant to the employee's position, it would not normally be relevant to apply the corruption provision in the Penal Code. There was also no element of influence in the case, which on its own indicated that the Operations Manager had acted reprehensibly and he had not concealed his participation in the dinners. The prosecuting authority's appeal against the Court of Appeal's judgment in favour of the defendant was dismissed.
Ref.: HR-2014-1779-A, (case no. 2014/1017), criminal appeal against judgment.
4 September 2014
Sale of goods law. Defects. Burden of proof.
When selling a round baler, the seller confirmed that it would function "under normal autumn conditions in Northern Norway that season". As opposed to the lower courts, the Supreme Court concluded that this was a functional warranty that came under Section 21, Subsection 2 of the Sale of Goods Act. Such a warranty implies that the seller has the burden of proof that any malfunction which occurs during the warranty period is not due to defects in the sales object. The Court of Appeal's judgment was overturned.
Ref.: HR-2014-1770-A, (case no. 2014/805), civil appeal against judgment.
4 September 2014
Tax law. New submissions to the courts
Based on a shareholder agreement, two shareholders in a company, who were both employed in the company, had been allocated shares at par value through a private placement. The difference between the nominal value and the estimated sales value of the shares was reported as wage income. The Tax Office then made the decision to increase the basis for payroll tax. During processing by the tax authorities, the advantage of acquiring the shares at par value was regarded by all parties as an advantage gained through work, cf., Section 5-1, Subsection 1 of the Tax Act. In the subsequent legal proceedings, as opposed to the lower courts, the Supreme Court concluded that a new submission: that the advantage had not been gained through work after all, could be asserted in the courts. It was pointed out that the courts are free to apply rules of law to the facts of the case. The taxpayer must then be able to make new submissions relating to information that has been presented to the tax authorities, as long as the underlying private-law disposition is the same as was considered there. Section 11-2, Subsection 1 of the Dispute Act does not result in any change in this. The Court of Appeal's judgment was overturned.
Ref.: HR-2014-1758-A, (case no. 2014/277), civil appeal against judgment.
25 August 2014
Criminal Law Apportioning of punishmentAggravated damages to police officers Threats Narcotics
The punishment for violation of Sections 128, 227, first sentencing alternative, and Section 162, etc. of the Penal Code was set at a term of imprisonment of 10 months. The convicted person had threatened to shoot police officers, who were searching his residence, and then ran after them with a gun and a sword. The police threats, which were considered to be particularly serious, exposed the police officers to serious mental strain. On their own, the drug offences would have resulted in a punishment of a term of imprisonment of two to three months. The convicted person's unreserved confession was taken into some consideration. Each police officer was awarded NOK 25,000 in damages, cf. Section 3-5 of the Compensatory Damages Act, cf. Section 3-3. It was stated that police officers who suffer injury or violation of rights while performing their job duties may be awarded damages for non-economic loss on a level with others, even if it cannot be precluded that the police role could be of importance in the assessment of when damages for non-economic loss should be awarded. Dissenting votes 4-1 regarding the question of damages for non-economic loss.
Ref.: HR-2014-1695-A, (case no. 2014/919), criminal appeal against judgment.
26 June 2014
Extradition to the USA. Dual criminality
US authorities had requested extradition of a US citizen. The factual basis for the US indictment had alternative formulations, some of them concerning acts that are not punishable under Norwegian criminal law as independent offences. The Supreme Court stated that the dual criminality requirement in section 3 (1) of the Extradition Act implies that the factual basis for the indictment must be punishable under Norwegian law, given that the act is adjudicated under Norwegian law and that the defendant is the perpetrator. When it is possible in the requesting state to be convicted solely on the basis of elements that would not be punishable in Norway, as in this case, dual criminality does not exist. The court of appeal's judgment, which was based on a different interpretation of the law, was set aside.
Ref.: HR-2014-1357-A, (case no. 2014/417)
26 June 2014
Criminal law. Serving alcohol without a licence to sell alcoholic drinks. "Private party".
Three men with no licence to sell alcoholic drinks had served alcohol at a gathering in a club's premises. The guests were invited via a closed Facebook page. Each of the invited guests was allowed to invite friends, who in turn were allowed to invite their friends, and there some kind of control at the front door had been arranged. The Supreme Court concluded that this could not be defined as a "private party", cf. Section 8-9, Subsection 1 no. 3 and Subsection 4 of the Alcohol Act. There was also no mistake of law that could exempt from punishment. The Court of Appeal's judgment for the defendant was quashed.
Ref.: HR-2014-01359-A, (case no. 2014/514)
26 June 2014
Criminal law. Sentencing. Community Service. Aggravated theft. Support person
Punishment for violation of Section 255 of the Penal Code, cf. Section 256, was a term of imprisonment of 60 days, of which 30 days was suspended. The convicted person was a support person for the aggrieved person, had power of attorney over this person's bank account, and during one year withdrew around NOK 79,000, which she had used for own purposes. The Supreme Court deemed the theft to be aggravated.. It was pointed out that the theft represented a breach of the special trust associated with the job of a support person, and that the aggrieved person was vulnerable to risk of material loss. The Supreme Court also concluded that the offence was too serious for community service to be used. This applied even though the case had been lying unprocessed with the police for around eight months.
Ref.: HR-2014-1360-A, (case no. 2014/625)
26 June 2014
Criminal law. Abuse in family relations
In the case where the indictment concerned Section 219 of the Penal Code, the Court of Appeal had convicted for violation of Section 228 of the Penal Code. On a single occasion, the defendant had used violence against his daughter, who was then aged 14. The offence concerned was gross maltreatment, which is also likely to cause fear of future abuse. With support in the preliminary works, the Supreme Court concluded that one case of violence may be sufficient for application of Section 219. The facts the Court of Appeal's controlling minority used as a basis also gave sufficient grounds for a conviction for violation of Section 210 of the Penal Code. The Court of Appeal's judgment with appeal proceedings was quashed.
Ref.: HR-2014-1361-A, (case no. 2014/479)
25 June 2014
Debt settlement. Spouse’s income.
In a debt settlement case that raised the question of the importance of the income of the debtor's spouse for the question of confirmation, the Supreme Court stated that the spouse's income may be taken into consideration when applying Section 4-3 of the Debt Settlement Act, and that this assessment should be made before deciding whether confirmation would seem offensive, cf. Section 5-4, Subsection 1 of the Act. A specific assessment must be made of what is reasonably required for the debtor to maintain himself and his household, and a number of factors may be included in the assessment of whether and to what extent importance should be attached to the spouse's income.
Ref.: HR-2014-1338-A, (case no. 2014/533)
25 June 2014
Criminal law. Sentencing. Sexual abuse of children under the age of 10
The punishment for violation of Section 195, Subsection 1 of the Penal Code, cf. Subsection 2, letter c) and Sections 193, Subsection 1, was set at a term of imprisonment of 4 years. The convicted person had on several occasions forced two children under 10 years of age to masturbate him. As an aggravating feature, the Supreme Court attached importance to the fact that the convicted person had earned the trust of the aggrieved parties, and that he had already had several previous convictions for sexual offences. The Supreme Court used a standard penalty of a term of imprisonment of 5 years as its basis. However, the police had had the case for around two and a half years without any investigative steps of importance being conducted. This was a violation of rights under Article 6 no. 1 of ECHR that a case should be decided within a reasonable time. To remedy this violation of the Convention, the standard penalty will be reduced to a term of 4 years imprisonment.
Ref.: HR-2014-1334-A, (case no. 2014/734)
25 June 2014
Criminal law. Application of the law. Violation of a person's right to be left in peace.
A person was convicted in the District Court and Court of Appeal for violation of Section 390 a) of the Penal Code. He had pulled open the passenger door of a car that was standing still with the engine running, and stretched over the person sitting in the passenger seat to turn they key in the ignition. The Supreme Court stated that violation of a person's right to be left in peace is only punishable pursuant to Section 390 a) of the Penal Code if it markedly exceeds such unpleasantness regularly associated with ordinary human contact. This criteria was not met in this case. The defendant was acquitted.
Ref.: HR-2014-01336-A, (case no. 2014/873)
24 June 2014
Liability. Non-statutory objective basis. Municipal sewerage. Disclaimer. Modification.
A private house was damaged by backflow from the municipal sewer system, after a large stone had unexplainably entered the system. The Supreme Court concluded that the local authorities could not be held responsible for the damage pursuant to Section 24 (a) of the Pollution Act, as it was not rendered probable that the damage could be traced back to objective shortcomings in the maintenance. However, the local authorities are responsible on a non-statutory objective basis. The local authorities had disclaimed liability for damages associated with accommodation that has not been approved by the building authorities. This disclaimer of liability held and was also not affected by Section 36 of the Contracts Act. Compensation for lost rental income for the unauthorised accommodation will not be granted, based on the mitigation provision in Section 5-2 of the Damage Compensation Act.
Ref.: HR-2014-1322-A, (case no. 2013/2422)
24 June 2014
Criminal law. Asylum seeker. Forgery. Refugee Convention.
A citizen of Cameroon was convicted in the District Court and the Court of Appeal for violation of Section 182 of the Penal Code. Upon arrival at Gardermoen airport, he had presented a false Portuguese residence card. After being taken aside for an immigration check, he informed that he was seeking protection in Norway. The Supreme Court concluded that he was protected by Article 31 no. 1 of the Refugee Convention. The Convention's requirement that a refugee shall seek protection "without delay" was met, as he had sought protection before the immigration check was completed. The Court of Appeal's judgment with appeal hearing was overturned.
Ref.: HR-2014-1323-A, (case no. 2014/220)
20 June 2014
Criminal law. Sentencing. Rape to sexual intercourse with a minor.
The punishment for violation of Section 192, Subsection 1, letter a) and Section 196, Subsection 1 of the Penal Code, was set at a term of imprisonment of 3 years. The convicted person, who was 29 years at the time, forced a young girl aged 14 to engage in sexual activity. The offence took place in the convicted person's car in a deserted place, and was an extremely frightening experience for the aggrieved party. The Supreme Court took the confession of the convicted person into consideration. Although this confession was not given until during the main hearing in the District Court, it had the intrinsic value of the aggrieved party being believed.
Ref.: HR-2014-1298-A, (case no. 2014/503)
19 June 2014
Constitution. Administrative law. Aquaculture. Violation charge.
A salmon farming enterprise, which was imposed a contravention penalty pursuant to Section 4 of the Aquaculture Act, argued that the penalty was to be considered as punishment and thereby imposed contrary to the court judgment requirement in Article 96 of the Norwegian Constitution. The Supreme Court pointed out that the legislation contains authority for administrative sanctions in a number of areas, and that the traditional view is that the legislator's characterisation of such sanctions is usually decisive in relation to the Norwegian Constitution, even if the reaction has a clearly penal purpose. It was also pointed out that the provisions on production control have been established in the interests of the industry itself and protection of the environment, that the contravention penalty is levied against a limited group of industry practitioners and that it is usually always aimed at one enterprise. The right of appeal and to take action against the validity of the decision gave sufficient due process guarantees to uphold the rationale behind the judgment requirement. Imposition of the penalty was not then contrary to Article 96 of the Norwegian Constitution. The decision was also not invalid under administrative law, as it was not considered to be questionable that the material conditions for imposing the contravention penalty were fulfilled.
Ref.: HR-2014-1296-A, (case no. 2014/23)
18 June 2014
Tax. Withdrawal Taxation. Apartment abroad.
A Norwegian company had purchased an apartment in Spain. The Norwegian Tax Administration considered that the apartment had been purchased for the sole shareholder's indirect private use. Tax was levied on the company for withdrawal of assets for private use in accordance with Section 5-2 of the Tax Act, cf. Section 13-1, and dividend tax was levied on the shareholder for the gratuitous transfer of the assets from the company, equivalent to the value for which tax was levied on the company for withdrawal of the assets, cf. Section 10-11 of the Tax Act. The Supreme Court noted that the apartment had actually and legally been available to the shareholder the whole year during the entire period, and that the company's expenses for the apartment exceeded the rent he had paid by a substantial amount. The potential for a profit on the sale of the apartment due to future appreciation in value was not enough to make the transaction a normal commercial transaction. The shareholder's private interests had been motivating for the transaction as a whole. The appeal against the Court of Appeal's judgment in favour of the defendant was dismissed. The judgment was passed with dissenting votes 4-1
Ref.: HR-2014-1293-A, (case no. 2014/598)
5 June 2014
Civil procedure. Paternity. Jurisdiction. Resumed awry. Biological materials. Opening of the grave.
In a reopened paternity case, the Supreme Court concluded that the provision in Section 28 (a) of the Children Act, read on the basis of the provisions on evidence and securing of evidence in the Dispute Act, must be construed so that the court has the jurisdiction to order that a sample of biological material may be collected from a deceased, also when this person has been buried. Such a decision must be made by the court on the basis of the circumstances in each case, and opening of a grave will not be an option if biological material suitable for DNA testing already exists or may be obtained in another way.
Ref.: HR-2014-1165-A, (case no. 2013/2355)
5 June 2014
Civil procedure. Lawsuit expertise. Trustee. Bond.
The Supreme Court concluded that a trustee for three bond issues had right of action in a damages suit brought on behalf of the bondholders against, among others , directors and senior management in the borrowing company, cf. Section 1-3, Subsection 2 of the Dispute Act. The Supreme Court emphasised the importance that there is a strong practical need for the trustee to be able to take legal action, provided that there are no potent counter-considerations.
Ref.: HR-2014-1161-A, (case no. 2013/2303)
4 June 2014
Second appraisement. Renunciation of usufruct to railway crossing. Tolerance.
An old railway crossing was closed in agreement with the land owner. The Supreme Court stated that any loss suffered as a result of this railway crossing closing, would only give rise to compensation if it exceeded a certain tolerance level. This would have to be established on the basis of an appraisal norm similar to a norm applied in cases involving closing off access to a public road. Implementation of a tolerance level does not contravene Section 105 of the Constitution nor P1-1 of the European Convention on Human Rights. The Court of Appeal concluded that there was no room to apply a tolerance level in such cases, and did not consider adjustment costs in its assessment of the obligation to make adjustments. The second appraisement was overturned and remitted for rehearing in the Court of Appeal.
Ref.no.: HR-2014-1159-A, case no.: 2013/2325, civil suit, appeal against judgment.
3 June 2014
Landlord tenant law. Fair rent. Tenant refurbishments.
A tenant had refurbished the attic floor of the apartment he rented, and he had personally borne the costs associated with this. The Supreme Court concluded that the deduction for the tenant's refurbishments in fixing the rent for the former attic space, cf. Section 4-3 of the Tenancy Act, had to be based on broad discretion, wherein the tenant's contributions are seen in relation to the parts of the demised premises not attributable to him. The Court of Appeal's judgment, which hinged on the reduction being based on the residual value of the tenant's refurbishments, in accordance with a depreciation plan, was overturned.
Ref. no.: HR-2014-1143-A, case no. 2014/102, civil suit, appeal against judgment.
23 May 2014
Compulsory purchase. Parking area. Road Act provisions relating to building limits.
In a compulsory purchase case involving concession of land for the construction of a two-way cycle track with footpath along the county road, the majority vote of the Supreme Court concluded that the prohibition of Section 30 of the Road Act against installing structures inside of building limits pursuant to Section 29 of the Road Act, do not automatically apply to parking within the building limit. Application of the provision is dependent on whether the parking has traffic safety implications similar to those the prohibition is intended to prevent. The Court of Appeal's valuation, in which the court concluded that the parking was not legal under any circumstances, and that the loss of parking space thus did not give rise to compensation rights, was overturned. Dissenting vote: 4-1.
Ref.: HR-2014-1079-A, case no.: 2013/2278, civil suit, appeal against judgment
20 May 2014
Construction contract. Compensation. NS 8406, Item 28.
Pursuant to NS 8406:2009, "Simple Norwegian Construction Contract", reductions in payment due to deductions and additions in connection with changes, shall be regarded as a partial cancellation if the reduction exceeds 15 percent. In the event of a cancellation, the contractor is entitled to compensation for financial loss as a consequence of the cancellation. The Supreme Court concluded that a reduction in quantity compared to the estimates in the tender specifications for a contract based on unit prices, would not be regarded as a cancellation and, as such, give rise to compensation, even if the total consideration was reduced by more than 15 percent in comparison with the contractual amount.
Ref.: HR-2014-1021-A, case no.: 2013/2405, civil suit, appeal against judgment
19 May 2014
Ground lease. Calculation of interest in connection with ground rent adjustments.
In a lease, where the ground lease agreement had included a provision for interest liability if the ground rent was not paid in time, the new ground rent was established by the courts following the ground lessee not accepting the ground lessor's demand for adjustment. The ground lessor claimed interest on the difference between the ground rent the lessee had actually paid and the new ground rent established by the courts, from the due date of each individual rent period that had fallen due since the date of adjustment. The Supreme Court concluded that the interest liability provision applied to defaulted payments only, and that the increased ground rent, when established by judicial discretion pursuant to the provisions of the Ground Lease Act, cannot be considered to be in default until the adjustment in ground rent is final and enforceable. This is true even for payments to be settled retroactively once the rent has been adjusted. The Court of Appeal's second appraisement, which awarded interest, was overturned. Statements regarding relevant considerations in determining whether loss of use interest is applicable.
Ref.nr HR-2014-996-A case no. 2014/135 civil suit, appeal against second appraisal.
19 May 2014
Social security law. Occupational injury. "At work". Sledding accident.
An employee got injured in a sledding accident in connection with a professional seminar organized by the employer. The sledding was part of the scheduled activities. The Supreme Court concluded that the injury had occurred "at work", and that the injury thus qualified as an occupational injury pursuant to the corporate provisions in Section 13-6 of the National Insurance Act. Particular emphasis was paid to the fact that the employer expected that the employees took part in the sledding, even though participation was not compulsory, and that the purpose of the sledding was to reinforce the team-building among the seminar participants and generate enthusiasm for the professional part of the seminar. The court also placed emphasis on the fact that the employer organized and paid for the sledding activity.
Ref.nr HR-2014-997-A case no. 2014/110, civil suit, appeal against judgment.
15 May 2014
Tax law. Tax base. Online newspaper
A newspaper had fixed the subscription price for its online version (e-paper) significantly lower for customers who subscribed to both the printed edition and the e-paper, than for customers who subscribed to the e-paper only. The sale of printed newspapers are exempt from value-added tax pursuant to Section 6-1 of the VAT Act, whereas the sale of e-papers is subject to tax pursuant to the main provision in Section-3-1, Subsection 1 of the same. The majority vote concluded that the e-paper had different commercial purposes as an independent subscription and as an addition to the subscription for the printed paper. The subscription price for the e-paper as an addition to the printed edition thus served as actual consideration, which means it is subject VAT taxation, cf. Section 4-1, Subsection 1 of the VAT Act. Dissenting vote: 4-1.
Ref.nr HR-2014-969-A case no. 2013/2240, civil suit, appeal against
7 May 2014
Criminal law. Grossly negligent rape. Application of the law Requirement of due care. Community sentence
As punishment for violating Section 192, Subsection 1, letter b, cf. Subsection 4 of the Penal Code, the court passed a community sentence of 360 hours. Prior to the rape, the defendant had participated in sexual activity with the victim and her cohabitant, but he had not verified that she was not sleeping when he later inserted his penis into her vagina after the three of them had gone to sleep in the same bed. This conduct warranted strong reproach for negligence. The victim's participation in the sexual activities preceding the rape, during which she performed oral sex on the defendant while having sexual intercourse with her cohabitant, means the criminal act was much less aggravated than what is normally the case in convictions for grossly negligent rape. The court also emphasized the defendant's confession and current circumstances. Dissenting vote: 4-1.
Ref. no.: HR-2014-890-A, case no.: 2014/436), criminal case, appeal against judgment
7 May 2014
Criminal procedure. Lay assessor. Impartiality.
Counsel for the defence in a criminal case before the Court of Appeal had two years previously represented the employer in a case involving summary dismissal of one of the lay assessors in the criminal case. The lay assessor was very emotionally involved in the case, and counsel for the defence had, on the employer's behalf, presented the employer's extremely incriminating accusations against him. There were no grounds on which to conclude that the lay assessor in fact was influenced by the previous case. However, the nature of the circumstances associated with this dismissal case were fit to raise doubt as to the neutrality and impartiality of the lay assessor in the eyes of the defendant and the public. As such, the lay assessor was disqualified by reason of impartiality, pursuant to Section 108 of the Courts of Justice Act. The Court of Appeal judgment and main proceedings were dismissed.
Ref.no.: HR-2014-891-A, case no.: 2014/281, criminal case, appeal against judgment
7 May 2014
Criminal law. Sentencing. Complicity. Assautl, threats and destruction of property. Long procedural time.
As punishment for violating Section 229, first penal option, cf. Section 232, Section 228, Subsection 1, cf. Section 232, Section 227, Subsection 1, and Section 292, cf. Section 291, of the Penal Code, the two persons convicted were sentenced to a period of imprisonment of eight months, which was suspended in its entirety. The two had participated in the planning of a major attack on an asylum reception centre, and later participated in the attack itself. During sentencing, the court strongly emphasized the fact that it took almost three years from the criminal acts were committed until the Court of Appeal rendered a final judgment, and a further three years until the case was heard by the Supreme Court, and the persons convicted had no part in the latter delay whatsoever. The significant delay represented an infringement of Article 6, no. 1, of the European Convention on Human Rights, which necessitated a significant reduction in the sentence that would otherwise have been passed.
Ref.no.: HR-2014-892-A, case no.: 2014/342, criminal case, appeal against judgment
5 May 2014
Criminal law. Sentencing. Rape. Preventive custody
As penalty for violating Section 192, Subsection 1, letter a) of the Penal Code, and Secion 192, Subsection 1, letter a), cf. Section 49, of the Penal Code, a sentence of a period of imprisonment of 5 years and 6 months was laid down. The person convicted, who was 18 years old at the time of the crimes, had forced sexual intercourse with a woman he had just met at a party, and he had also committed attempted assault rape on another woman. The Supreme Court concluded that there was imminent risk that he would commit another serious sexual crime if he were released today. However, in concluding that he would not be sentenced to preventive custody, the court strongly emphasized his young age, combined with his having no previous convictions.
Ref.nr HR-2014-970-A, case no. 2014/253, criminal case, appeal against judgment.
29 APRIL 2014
LAWYERS’ PROFESSIONAL LIABILITY. DUTY OF CARE. LIMITATION
Three weeks before a claim for damages became statute-barred, the injured party sent an e-mail to her lawyer informing him that she had requested another lawyer to take over the case. In a letter of the same date to the client, the lawyer explained how she was to proceed and also gave her new information about expiry of the limitation period. The claim nevertheless became statute-barred and the client filed suit against the lawyer. The Supreme Court stated that the e-mail must be interpreted as a notice of termination of the assignment. The lawyer was accordingly not guilty of negligence when restricting himself to sending a letter to his client given that he must be able to rely on a client opening and reading letters. Nor was he under any obligation to verify that the client did in fact obtain legal assistance with the further proceedings. In this light the lawyer had not violated the code of ethics for lawyers and the court found in his favour.
Ref.: HR-2014-840-A, case no. 2013/2238, civil appeal against judgment.
29 APRIL 2014
PUBLIC DUES. WATER AND SEWAGE CHARGES. CONNECTION FEE. FOREIGN PROPERTY.
After an agreement had been entered into between a Norwegian municipality and a business enterprise in Sweden for the provision of municipal water to the enterprise, the municipality introduced a connection fee before the enterprise was connected to the municipal water main. Like the lower instances, the Supreme Court concluded that the enterprise was obligated to pay the connection fee. A majority of three judges concluded that all users were obligated to cover the municipality’s total expenses for the service rendered, limited upwards to full cost, and that there was no basis for placing foreign users in a different position. Nor did the Act relating to Municipal Water and Sewage Charges of 31 May 1974 no. 17 – now Act relating to Municipal Water and Sewage Plants of 16 March 2012 no. 12 – provide any right to exemption from the connection fee once this fee had been established before the connection took place. A minority of two judges held that the Act was not applicable to foreign users, but that the claim for a connection fee was in this case founded on an agreement. The judgment was passed with dissenting votes 3-2 concerning the rationale.
Ref.: HR-2014-841-A, case no. 2013/2395, civil appeal against judgment.
29 APRIL 2014
LABOUR LAW. GENDER EQUALITY. ARMED FORCES
A claim from an applicant, who considered herself to have been passed over for the appointment as head of the Armed Forces’ Education Centre, to the effect that the appointment that had been made was in violation of section 4, cf. section 3 and section 3a, of the Gender Equality Act. The Supreme Court found that the courts must be able to conduct an objectivity and safety check of the qualification requirements for the appointment to the position in question and that they must also be able to verify whether the qualification requirements stipulated were in effect met. It was also stated that the courts’ checking of the decision as to who among several qualified applicants is the best qualified must be limited to reviewing whether the decision is objective and proper. In the concrete assessment the Supreme Court majority held that the determination of the applicants’ qualification requirements and the weighting of these requirements were objective and proper and that – in the light of the applicants’ qualifications that were considered important – it was also objective and proper to consider the person who was appointed to be the best qualified for the position. The argument that she was a woman, which had partly been brought into the appointment process, was accordingly not decisive for the appointment. Hence, the appointment was not in violation of section 4 subsection 2, cf. section 3, of the Gender Equality Act. The judgment was passed with dissenting votes 4-1.
Ref.: HR-2014-831-A, case no. 2013/1275, civil appeal against judgment.
SUPREME COURT - JUDGMENT
23 APRIL 2014
CRIMINAL LAW. SENTENCING. DAMAGES FOR NON-ECONOMIC LOSS. ACTUAL BODILY HARM RESULTING IN CONSIDERABLE INJURY.
The punishment for violation of section 229 3rd penal alternative, cf. section 232, of the Penal Code was set at a term of imprisonment of four years and six months. The offender had struck his cohabitant in the face once with his fist with an object in his hand with the result that she suffered a fracture to the eye socket, bleeding of the tissue and injuries to the eyeball and the retina. The injuries resulted in permanent loss of sight of the left eye and a changed appearance. Damages for non-economic loss under section 3-5 of the Compensation Act were set at NOK 120 000.
Ref.: HR-2014-790-A, case no. 2013/2314, criminal appeal against judgment.
23 APRIL 2014
CRIMINAL LAW. APPLICATION OF THE LAW. SENTENCING. ACTUAL BODILY HARM RESULTING IN CONSIDERABLE INJURY. AIDING AND ABETTING.
The punishment for violation of section 229 3rd penal alternative, cf. section 232, of the Penal Code was set at a term of imprisonment of four years. The offender had struck the victim several times with a bicycle seat on a fastening bar. The exercise of violence showed signs of abuse and resulted in the victim losing the sight of one eye. The court granted a 6-month reduction of the sentence for confession. For the aider and abettor the punishment was set at a term of imprisonment of three years and three months. He had not participated physically in the actual exercise of violence, but had been present while it took place. The two of them had planned the violence in advance and had set off together for the purpose of beating up the victim. The idea was that the aider and abettor was to act as a ”back-up” if the ringleader encountered problems with the victim. The aiding and abetting was not so insignificant as to make section 58 of the Penal Code applicable.
Ref.: HR-2014-791-A, case no. 2013/2313, criminal appeal against judgment.
10 APRIL 2014
EXPROPRIATION. PUBLIC OUTDOOR RECREATION AREA. COMPENSATION. THE DIFFERENTIATION PRINCIPLE
Part of a property was zoned as a public outdoor recreation area. This part was redeemed by the municipality. In connection with the valuation the Supreme Court stated that what is known as the differentiation principle is also applicable if the renounced area is zoned as a public outdoor recreation area. The value of the property before the renunciation of ownership must therefore be based on current zoning, including the restrictions on the use that follow from the zoning of public outdoor recreation areas. The Court of Appeal’s reappraisal, which was based on a different conception of law, was set aside.
Ref.: HR-2014-754-A, case no. 2013/2130, civil appeal against judgment.
10 April 2014
Insurance law. Disability capital insurance. Insurance events. Duty of disclosure.
A man, who became permanently disabled, claimed under a disability capital insurance which was in effect when the injury that led to his disability occurred. The insurance company dismissed the claim on the grounds that the term of insurance had expired when he became permanently disabled. The Supreme Court concluded that it followed from the general insurance terms and conditions that it was the permanent disability that constituted the insurance event so that permanent disability that had occurred after expiry of the term of insurance did not entitle the claimant to cover under the disability capital insurance. The question whether the company had failed in its duty of disclosure was kept open given that neither the provisions in section 11-2 of the Insurance Contracts Act nor the ambiguity rule were applicable. A failure to disclose information about the consequences of not resuming the insurance could not under any circumstances lead to cover under the insurance and no claim for damages on a fault liability basis had been presented.
Ref.: HR-2014-755-A, case no. 2013/2384, civil appeal against judgmen.
9 April 2014
Tax law. New submissions to the courts.
Based on a shareholder agreement, two shareholders in a company, who were both employed in the company, had been allocated shares at par value through a private placement. The difference between the nominal value and the estimated sales value of the shares was reported as wage income. The Tax Office then made the decision to increase the basis for payroll tax. During processing by the tax authorities, the advantage of acquiring the shares at par value was regarded by all parties as an advantage gained through work, cf., Section 5-1, Subsection 1 of the Tax Act. In the subsequent legal proceedings, as opposed to the lower courts, the Supreme Court concluded that a new submission: that the advantage had not been gained through work after all, could be asserted in the courts. It was pointed out that the courts are free to apply rules of law to the facts of the case. The taxpayer must then be able to make new submissions relating to information that has been presented to the tax authorities, as long as the underlying private-law disposition is the same as was considered there. Section 11-2, Subsection 1 of the Dispute Act does not result in any change in this. The Court of Appeal's judgment was overturned. Code 23.4.
HR-2014-1758-A, (case no. 2014/277), civil appeal against judgment.
8 April 2014
Criminal law. Sentencing. Narcotics. PMMA
The punishment for violation of section 162 subsections 1 and 2 cf. section 5 of the Penal Code was set a term of imprisonment of five years and six months. The offender had kept 5 kilos of the amphetamine-like substance parametoxymetamphetamine or PMMA. The punishment was a combined sentence with a final and enforceable court of appeal judgment for the handing over of approximately 1100 grams of amphetamine. The Supreme Court found that the harmful medical effects meant that dealings with PMMA must be judged more strictly than dealings with amphetamine, in the same way as dealings with ecstasy, and that a quantity of PMMA corresponded to double the amount of amphetamine of normal concentration. After correction for normal concentration level the Supreme Court took for its starting point punishment for dealings with 3.8 kilos amphetamine of normal concentration, which was set at a term of imprisonment of four years and six months. Punishment for the handing over of 1.1 kilo of amphetamine was as a starting point set at a term of imprisonment of two years and three months, or two years and six months, whereupon the combined sentence was set at a term of imprisonment of five years and six months.
Ref. HR-2014-739-A, case no. 2013/2218, criminal appeal against judgment.
8 April 2014
Criminal law. Abandonment of attempted homicide. Judge’s instructions to the jury
The Court of Appeal had convicted a defendant for attempted homicide. The offender had stabbed the victim with a knife aimed at the heart region, which the victim succeeded in preventing. The parts of the judge’s instructions to the jury that were entered in the court records reflected ambiguities as regards the difference between a completed and an uncompleted attempt so that it could not be assumed that the jury’s decision was based on a correct understanding of the conditions for an acquittal in the event of abandonment of attempt, cf. section 50 of the Penal Code. Nor was it made clear to the jury that a defendant may be acquitted in the event of abandonment of attempt, if the attempt must be regarded as uncompleted. The Court of Appeal’s judgment with appeal proceedings was quashed.
Ref.: HR-2014-740-A, case no. 2014/133, criminal appeal against judgment.
8 April 2014
Contract law. Waterfall rights. Compensation. Contract revision.
After a power company had in 2005 entered into an agreement with a landowner about the planning and development of a waterfall that belonged to the property it was discovered that the power company’s predecessor had acquired the waterfall rights in question already in 1935. The 2005 agreement contained provisions to the effect that if the power company decided to initiate a development, the parties were to enter into a new agreement for the leasing of waterfall rights for 50 years against a running consideration of 50 % of the profit from the power production. The Supreme Court found in favour of the power company disallowing the landowner’s claim that the company was under obligation to enter into a new agreement. Section 36 of the Contracts Act was considered to be applicable to the situation. It was found decisive that the agreement would give the landowner 50 % of the profit without any quid pro quo. Nor were there any circumstances to prevent the agreement from appearing as qualified unreasonable.
Ref.: HR-2014-738-A, case no. 2013/2165, civil appeal against judgment.
8 April 2014
Criminal law. Criminal procedure. Compulsory mental health care. Processing time. Compensation for non-economic loss. ECHR. Competence of the courts.
A convicted person, whose claim for the termination of compulsory mental health care was disallowed, claimed compensation for non-economic loss on the grounds of long processing time. The Supreme Court cited that it follows from section 449 of the Criminal Procedure Act that such claims shall be decided by the Ministry and stated that the consideration for the ECHR does not require any other solution. The claim for compensation for non-economic loss was dismissed by the courts. There was agreement that the right to speedy proceedings under Article 5 no. 4 of the ECHR was violated, but this did not entitle the convicted person to have the violation established in the conclusion of the judgment.
Ref. HR-2014-741-A, case no. 2014/28, criminal appeal against judgment.
3 APRIL 2014
Criminal law. Sentencing. Community service. Threats against a victim
Punishment for violations of section 132 subsection 1 a, cf. subsection 2, cf. subsection 4 first penal alternative, section 227 1st penal alternative and section 228 subsection 1 of the Penal Code was set at 120 hours of community service. The offender, who was 19 years and two months old when the last criminal offences took place, had kicked and punched the victim and later made threats against him in order to make him retract the charges, as well as threatened and spit on a friend of the victim’s. The Supreme Court took as a point of departure a punishment level of 6 months’ custodial prison. The reason for the use of community service was first and foremost the time aspect. Two and a half years had elapsed since the criminal offences were committed, where the case had simply been left sitting for twelve and a half months.
Ref.: HR-2014-701-A, case no. 2014/10, criminal appeal against judgment.
31 March 2014
SOCIAL SECURITY LAW. DAILY ALLOWANCE DURING LAY-OFF
The Social Security Appeal Tribunal had rejected the claim for daily allowance under section 4-7 of the Social Security Act from two print workers who were for a period of time partly laid off due to a negative market trend in the industry. The Supreme Court stated that it did not transpire directly from the wording of the Act that the granting of daily allowance was contingent upon the lack of work being attributable to unforeseeable or unanticipated events, and that this would entail a restrictive interpretation of the provision. Moreover, neither the legislative history, nor the preparatory works, nor social security practice suggested any requirement for the market trend to be unanticipated. The Social Security Appeal Tribunal’s decision was set aside.
Ref.: HR-2014-656-A, case no. 2013/2074, civil appeal against judgment.
27 March 2014
Administrative law. Revocation of taxi licences. Abuse of public authority.
The taxi licences of two taxi owners, who were in 2009 convicted of violations of the tax and accounting legislation in 2000-2002, were revoked in 2011, cf. section 29 subsection 1 of the Industrial Transport Act. The Supreme Court stated that the rationale in the confiscation decisions satisfied the requirements of the law, as it must be justifiable to seek a certain standardisation when, as in this case, we are looking at mass decisions. At the same time, it was clear from the decisions that individual assessments had been made. Submissions about ulterior considerations, arbitrariness and gross unreasonableness were not upheld. The fact that the criminal offences had taken place a long time ago and that one of the taxi owners had contributed to clearing up the case did not mean that the decisions were grossly unreasonable. The appeals against the Court of Appeal’s judgment in favour of the defendant were quashed.
Ref.: HR-2014-630-A, case no. no. 2013/1156, civil appeal against judgment.
27 March 2014
Revocation of taxi licenses. Abuse of public authority.
The taxi licences of two taxi owners, who were in 2009 convicted of violations of the tax and accounting legislation in 2000-2002, were revoked in 2010, cf. section 29 subsection 1 of the Industrial Transport Act. The Supreme Court, which heard the case in connection with the case HR-2014-630-A, stated that there was no difference between these cases to suggest a different outcome. The fact that the sentence in the criminal case did not include the loss of civil liberties did not extend the courts’ competence to review the administration’s free discretion. Nor did the fact that the confiscation period for the other taxi owners would be shorter result in the confiscation decisions being invalidated on the grounds of gross unreasonableness at the time of the decisions. The taxi owners’ appeals against the Court of Appeal’s judgment in favour of the defendant were quashed.
Ref.: HR-2014-631-A, case no. 2013/1084,civil appeal against judgment.
26 March 2014
Criminal procedure.Seizure of documents. The accused’s notes.
The police had seized notes which a prisoner remanded in custody had taken during an interview and which he intended to use during a subsequent conference with his counsel. The Supreme Court held that such notes are comprised by the prohibition relating to evidence in section 119 subsection 1 of the Criminal Procedure Act and accordingly cannot be seized, cf. section 204 subsection 1 of the Criminal Procedure Act. This prohibition also comprised information in the notes which was already known to the police.
Ref.: HR-2014-626-A, case no. 2013/2397, criminal appeal against interlocutory order.
26 March 2014
Allodial property rights. Allodial land. Totally protected forest.
Of a productive forest area of 564 decares 176 decares were located within a natural reservation where all forestry was prohibited. The Supreme Court concluded that the protected part of the forest area could not count as a productive forest area under section 2 of the Allodial Rights Act. The property was accordingly not allodial land under section 1 of the Allodial Rights Act.
Ref.: HR-2014-627-A, case no. 2013/2247, civil appeal against judgment.
21 March 2014
FISHERIES PROTECTION ZONE. FISHERIES RESTRICTION. THE SVALBARD TREATY. PRINCIPLE OF EQUAL RIGHTS
A German fishing vessel had in the fisheries protection zone at Svalbard carried out a trawl haul with an element of haddock which exceeded the regulatory restriction of 19 %. In contrast to vessels from Norway, Russia and Greenland, vessels from the EU no longer have a special haddock quota, but can only take haddock as a subsidiary catch. The Supreme Court cited that the regulation of the haddock fisheries is based on the need for administering the stock with a view to a sustainable development, which is a factual consideration based on objective criteria. A regulation with such a view was not in conflict with the principle of equal rights in Articles 2 and 3 of the Svalbard Treaty. An allocation of a haddock quota of the same quantity as the allowed subsidiary catch would have given vessels from the EU the same conditions for the cod fisheries in the protection zone as vessels from countries with haddock quotas. It was nevertheless considered as decisive that the regulation was not disproportionate and discriminating, that a subsidiary catch regulation – in conrtrast to a quota arrangement – could be decided quickly and unilaterally.
Ref.: HR-2014-577-A, case no. 2013/1772, criminal appeal against judgment.
21 March 2014
SENTENCING. HOMICIDE. PARTICULARLY AGGRAVATING CIRCUMSTANCES
The punishment for violation of section 233 subsection 1, cf. subsection 2, of the Penal Code was set at a term of imprisonment of 17 years for both defendants. After having perpetrated gross violation against the victim they had first, unsuccessfully, tried to hang him and subsequently hanged him again. The act was characterised as torturelike. The court found that the circumstances were particularly aggravating. The Supreme Court relied on the principle that after the amendment of the law in 2010, punishment will on conviction under section 233 subsection 2 of the Penal Code normally be from 15-16 years’ imprisonment and upwards.
Ref.: HR-2014-576-A, case no. 2013/2194, criminal appeal against judgment.
19 March 2014
TAX LAW. PROPERTY TAX.
The municipality of Lindås levied property tax on a test plant for the development of capture of CO2 from flue gas. The plant was erected in connection with the Mongstad oil refinery. The Supreme Court did not find it doubtful that the plant, which was described as “a large complex industrial plant”, must in principle be regarded as an “industrial plant”, cf. section 4 subsection 2 of the Property Tax Act. The processes at the plant were also a type of production that made the plant an industrial works in the sense of the law. That the capture was released into the atmosphere after the testing was not decisive. Nor was the generation of value a condition for the classification of a works in the sense of the law. The court found in favour of the municipality.
Ref.: HR-2014-554-A, case no. 2013/1908), civil appeal against judgment.
12 March 2014
Tax law. Petroleum tax. Oil company. Shares. Substance over form.
It was decided to sell an office building which an oil company leased from a wholly owned real estate company. The building was leased out again and the oil company bought its way out of the remainder of the lease. The other assets in the real estate company were subsequently demerged, and the shares in the company, whose only asset was now the office building, were sold. The Supreme Court held that the provision in section 3 f subsection 4 of the Petroleum Tax Act must be understood to mean that the withdrawal of such assets from the petroleum activities with the resulting tax consequences does not take place until a decision to use the asset outside the activities has been implemented. This meant that the lease was not withdrawn from the petroleum activities until the company bought its way out of the lease, not by virtue of the prior decision to sell. The Supreme Court also concluded that the profit from the sale of the property could not be taxed on the basis of the non-statutory substance-over-form rule. Even if tax saving was the most important motivation for the choice of demerger and sale of shares, the transaction was not in conflict with the purpose behind the exemption rules in sections 2-38 and 11-4 of the Tax Act. The District Court’s judgment, which set aside the assessment for the relevant tax years, was affirmed.
Ref.: HR-2014-496-A, case no. 2013/1687, civil appeal against judgment.
12 March 2014
The Nature Diversity Act. Killing of totally protected goshawk. Self-defence.
A person who had shot a totally protected goshawk which had attacked a hen was indicted under section 75 cf. section 15 subsection 1 of the Nature Diversity Act. The Supreme Court held that a condition that the killing of the quarry must be “necessary” can be interpreted into section 17 subsection 2 second sentence of the Nature Diversity Act in contrast to what applies under the first sentence. The prosecuting authority’s appeal against the Court of Appeal’s acquittal was quashed.
Ref.: HR-2014-497-A, case no. 2013/2197, criminal appeal against judgment.
6 March 2014
Tax law. Exemption method. Low-tax country
A Norwegian company which had sold the shares in a wholly owned subsidiary in Singapore to another Norwegian subsidiary at the assumed market value was taxed for the profit. Like the lower courts, the Supreme Court concluded that Singapore must be regarded as a low-tax country, cf. section 2-38 subsection 3 a, cf. section 10-63, of the Tax Act so that there was no basis for tax exemption under what is known as the exemption method under section 2-38. Reference was made to the fact that it was the effective tax level for the relevant type of company that must be compared, that share revenues – limited to dividend – must be included in the comparison basis, that the dividend tax in Singapore is 0 and that the effective dividend taxation in Norway is significantly higher, also in cases where the exemption method is applicable. Tax treaties shall not be taken into consideration in the assessment of low-tax countries, which appears to be assumed when the NOKUS rules are viewed collectively. The effective general tax level in Singapore for taxation of the relevant type of company was hence clearly lower than two thirds of the corresponding tax level in Norway.
Ref.:HR-2014-468-A, case no. 2013/104, civil appeal against judgment.
6 March 2014
Criminal law. Sentencing. Attempted forced marriage.
The punishment for violation of section 222 subsection 2 first penal alternative cf. section 49 of the Penal Code was set at a term of imprisonment of one year and four months. The defendant had attempted to force his daughter of 16 to marry his brother’s son through consistent social pressure to break down his daughter’s resistance, and by preparatory acts, such as contacting a mullah in Iran and to arrange for a marriage contract. No violence or threats of violence were used.
Ref.: HR-2014-469-A, case no. 2013/2086), criminal appeal against judgment.
6 March 2014
Criminal law. Impoundment of vehicle. Aggravated theft.
It was decided to impound a van that had been used in an aggravated theft of a copper cable worth NOK 20 000, cf. section 35 subsection 2 cf. subsection 1 of the Penal Code. It was stated that the Supreme Court may review the valuation in connection with an appeal against the impoundment claim and that such valuation will normally have to be rather routine and purpose-oriented and found that the value of the van was closer to the value of the stolen goods than an original valuation of a little less than NOK 100 000. In the concrete valuation the Supreme Court cited the effects of the impoundment as a general deterrent and that, concretely, the impoundment limits the potential of the relevant vehicle as a tool for criminal purposes.
Ref.: HR-2014-470-A, case no. 2013/2279, criminal appeal against judgment.
6 March 2014
Criminal law. Criminal procedure. Exclusion of witness testimony.
In a case concerning violation of section 224 and section 317 of the Penal Code the indictment for a handling offence concerned money which “was the proceeds from criminal offences, including human trafficking and organised prostitution”. The Court of Appeal had in a separate ruling during the appeal proceedings excluded a witness testimony related to possible transfers of money connected to drug crimes which had been foreshadowed shortly before the appeal proceedings. The reasons given for the exclusion were considerations for the adversarial principle. The prosecuting authority did not request an adjournment. The defendant was acquitted on both counts. The Supreme Court did not take a stand on the question whether it was a procedural error that the appeal proceedings were not adjourned in view of the fact that such an error could not under any circumstances lead to a quashing of the judgment, cf. section 343 subsection 1 of the Penal Code. Reference was made to the fact that the witness testimony was of very limited significance for the indictment under section 224 of the Penal Code and to the fact that it transpired from the Court of Appeal judgment that the court had on its own initiative considered the question of adjournment. This must be understood to mean that the Court of Appeal, after conclusion of the appeal proceedings, had found the case to have been adequately elucidated and that, under any circumstances, the conditions for an adjournment under section 293 of the Penal Code were not met.
Ref.: HR-2014-471-A, case no. 2013/1964, criminal appeal against judgment.
5 March 2014
Defamation. Damages for non-economic loss.
A man of Somalian origins who had suffered brain damage after having been knocked down was left behind by an ambulance that had arrived on the scene. One of the ambulance drivers brought a defamation action against the tabloid Dagbladet as a result of the paper’s presentation of the matter. The Supreme Court stated that the paper’s coverage of the matter was in the central core area of what is protected by freedom of speech. On the other hand, the case concerned serious accusations against a public official of grave and discriminating treatment of a patient, which makes it all the more important that the accusations against him are based on fact. It was also stated that this concerned a requirement as to general preponderance of probability for evidence of facts in the published material, that the threshold for acceptance for passing on statements is lower than for acceptance of the paper’s own opinions in commentaries and editorials and that the more concrete and precise an accusation is, the more factual evidence must be required. The paper’s accusations about unjustifiable treatment of a patient was on this basis found to fall within the scope of what was protected by freedom of speech. The paper also had sufficient factual grounds for citing witnesses’ accusations of racism, but the presentation of racist allegations in the paper’s commentaries and in an editorial were considered to be so serious as to not be protected by Article 10 of the ECHR. The amount of damages under section 3-6 of the Compensatory Damages Act was set at NOK 200 000. The judgment was passed with dissenting votes 4-1.
Ref.: HR-2014-445-A, case no. 2013/1300, civil appeal against judgment.
13 February 2014
Contractual relationship. Exclusive distributor. Severance pay.
After termination of an exclusive distributorship of long standing the exclusive distributor claimed severance pay by analogy based on the provision contained in section 28 of the Agency Act. The claim was not upheld. The Supreme Court cited the decision in Rt-1980-243 (Tampax), stating that there has been no evolution of the law to provide grounds for a different assessment of the analogy question today. The rules contained in the Agency Act relating to severance pay are in the nature of a positive regulation of the law formulated for agency relationships and neither foreign law nor the regard for international unification of law supports an analogous application of the provision.
Ref.: HR-2014-306-A, case no. 2013/1887, civil appeal against judgment.
12 February 2014
Tax law. Deduction for costs of exploration for petroleum
Two companies in the Statoil Group had claimed deductions for substantial exploration expenses in its tax assessment. The companies were originally assessed in accordance with the income tax return. The subsequent amendment decision was based on the principle that the exploration expenses could not be deducted directly but had to be capitalised on the respective exploration and production licenses and subsequently be deducted. The Supreme Court concluded that as a main rule the costs incurred in meeting exploration obligations could not be regarded as part of the payment for the production licenses. Such costs must be regarded as being consumed on an ongoing basis and thus be subject to direct deduction as and when they were incurred. Only from the time commercially exploitable findings were made and a field development became likely could costs incurred for further surveys and development be deemed to create permanent assets and accordingly a capitalisation duty. The assessments decisions were consequently founded on an incorrect interpretation of section 6-1 subsection 1 of the Tax Act. The State’s appeal against the Court of Appeal’s judgment setting aside the assessments was quashed.
Ref.: HR-2014-296-A, case no. 2013/1013, civil appeal against judgment.
4 FEBRUARY 2014
Contract law. Binding agreement. Signature reservation
On the commencement of the negotiations for the purchase of the shareholding majority in a Swedish company the Norwegian buyer had made a reservation that it was a ”prerequisite that neither of the parties has a claim against the other if the negotiations do not lead to a signed agreement”. After a purchase agreement had been negotiated and due diligence had been conducted, the buyer refused to sign the agreement citing the reservation. In contrast to the Court of Appeal, the Supreme Court held that the reservation must be understood to mean that a binding agreement was conditional upon the parties’ signatures. The buyer could accordingly refuse to sign the agreement without giving any specific reasons. In the alternative, the seller cited several reasons why the reservation had lapsed. None of these objections was upheld.
Reference: HR-2014-247-A, case no. 2013/1839, civil appeal against judgment.
29 JANUARY 2014
Labour law. Dismissal. Temporary employment. Civil servant.
A substitute employed in a scientific position at a university was dismissed when the holder of the position resigned. The substitute had more than four years of consecutive service. The Supreme Court stated that the four-year rule in section 10.1 of the Civil Service Act must be understood to mean that the expiry of the position as a substitute did not per se constitute grounds for a dismissal. However, there was no longer any need for research within the substitute’s field of research. This entailed such a marked change in the content of the position that the substitute’s work must be deemed to have ceased to exist. Nor was the substitute considered to be qualified for one of the two newly established positions at the faculty. The Supreme Court did not find any grounds for setting this assessment aside and stated that the courts must show caution when it comes to reviewing this type of professional assessments. The dismissal was found valid.
Reference: HR-2014-200-A, case no. 2013/1192, civil appeal against judgment.
28 JANUARY 2014
Common right. Uncultivated land. Alpine skiing facility
The operator of a commercial ski school instituted legal proceedings against an alpine skiing facility claiming that he had the right to run a ski school at the facility. The Supreme Court concluded that the typical descents in an alpine facility must be regarded as uncultivated land in the sense of the Outdoor Recreation Act and that the rules set out in the Act relating to access to and passage through meant that the alpine facility could not deny the right to run a ski school in these areas, cf. section 2 of the Outdoor Recreation Act. However, the ski school was not entitled to demand that its ski instructors could use the ski lifts at the regular consumer price.
Reference: HR-2014-178-A, case no. 2013/775, civil appeal against judgment.
28 JANUARY 2014
Maritime lien. Arrest. Limitation
The holders of wage claims secured by maritime liens were granted an arrest of the ship and an enforcement judgment for the wage claims. The ship was subsequently sold by an enforced sale at the request of a lower-ranking lien holder. The Supreme Court stated that section 55 subsection 1 of the Maritime Code cannot be interpreted to warrant a prompt request for an enforced sale after an arrest of the ship has been granted in order to prevent the maritime lien claim from becoming statute-barred. The claim was not secured by an attachment and the maritime lien did not per se constitute grounds for demanding an enforcement of the claim. The claimants had exceeded the time limit in section 33-10 subsection 1 f of the Disputes Act. The arrest was accordingly no longer valid with the consequence that the maritime lien was time-barred under section 55 subsection 1 of the Maritime Act. The District Court’s interlocutory order as to distribution, which was based on the maritime lien being valid, was quashed.
Reference: HR-2014-194-A, case no. 2013/1195, civil appeal against interlocutory order.
28 JANUARY 2014
Criminal procedure. Competence. Professional judge.
One of the professional judges in a criminal case concerning financial crime had for many years been chairman of the board and a partner in the auditing firm which had audited the defendant’s accounts during the relevant period of time. The Supreme Court stated that it was natural to assume that such a person would continue to be concerned with the firm’s good reputation after having joined the ranks of the retired. Given that the role of the auditor had been brought into the court’s evaluations, the professional judge must be considered to be incompetent pursuant to section 108 of the Courts Act. The Court of Appeal’s judgment with trial was set quashed.
Reference: HR-2014-197-A, case no. 2013/1572, criminal appeal against judgment.
28 JANUARY 2014
Criminal procedure. Competence. Lay judge.
A lay judge in a pending criminal case had made a statement to the police in connection with the burglary of a neighbour. He had to the police voiced an extremely critical attitude to the defendants’ willingness to ensure an efficient conduct of the criminal proceedings and stated that he could not rule out the possibility that the purpose of the defendants’ burglary had been to make problems in connection with the case. Like the Court of Appeal the Supreme Court concluded that the lay judge was incompetent, cf. section 108 of the Courts Act. The District Court’s judgment with trial was quashed, cf. section 343 subsection 2.3 of the Criminal Procedure Act.
Reference: HR-2014-198-A, case no. 2013/1846, criminal appeal against judgment.
15 JANUARY 2014
Criminal law. Sentencing. Voluntary manslaughter.
The penalty for violation of section 233 subsection 1 of the Penal Code was set at a term of imprisonment of 13 years. The offender had stabbed the victim in the upper part of his body and head 33 times with a knife. One of the stabs hit the heart. An aggravating circumstance was the fact that the offender had prevented a person who was at the scene of the crime from calling for help and had threatened those present to tell the police a story about an unknown perpetrator. An extenuating circumstance that carried some weight was the offender’s confession which, however, he did not make until in the District Court.
Reference: HR-2014-81-A, case no. 2013/2009, criminal appeal against judgment.
15 JANUARY 2014
Criminal law. Sentencing. Actual bodily harm causing death.
The punishment for violations of section 229 third penal alternative cf. section 232, section 162 subsections 1 and 2, cf. subsection 5, and section 258 cf. section 257 of the Penal Code was set at a term of imprisonment of eight years and six months. The offender had struck the victim with clenched fists several times and subsequently kicked or hit him in the head causing his death. The victim was severely physically impaired. The exercise of violence was characterised as serious and ruthless. The appropriate punishment for the violence exercised was deemed to be a term of imprisonment of seven years and six months. In addition, the sentence included punishment for handling approximately 90 grams of amphetamine and for having removed a number of objects from the victim’s flat after the exercise of violence, an offence that clearly resembled robbery.
Reference: HR-2014-80-A, case no. 2013/1924, criminal appeal against judgment.
15 JANUARY 2014
Enforced sale. Basis of enforcement. Bankruptcy. Statutory lien.
A security interest granted for the bank debt of a debtor in bankruptcy gave the bankruptcy estate a statutory lien on the mortgaged property for the costs of the administration of the estate, cf. section 6-4 subsection 1 of the Mortgage Act. The Supreme Court majority concluded that this right to a statutory lien provided grounds for enforcement without registration. The Supreme Court also unanimously concluded that the District Court could request an enforced sale of the lien based on a preliminary needs assessment. The Court of Appeal’s interlocutory order finding that this assessment was not to be made until the conclusion of the administration of the estate was set aside. Dissenting votes 2-3 regarding the rationale.
Reference: HR-2014-87-A, case no. 2013/1553, civil appeal against an interlocutory order.