Rulings 2010

22 December 2010    Legal counsel’s obligation of confidentiality. Criminal Procedure Act section 119 and section 210. 

The issue in the case was whether the rules on legal counsel’s obligation of confidentiality prevented the court from making an order against a firm of lawyers to disclose to the National Authority for Investigation and Prosecution of Economic and Environmental Crime in Norway (ØKOKRIM) details about the recipients of three specific transfers of money from the firm’s client account, see the Criminal Procedure Act section 119 and section 210.  Following an assessment of all of the circumstances of the case, the Supreme Court held that where there is a genuine lawyer-client relationship, the identity of a client is protected by the obligation of confidentiality. Accordingly, the court shall not undertake any further assessment of whether information that must be deemed to have been given to the lawyer in trust will be disclosed if the client’s name is made known. The Court of Appeal had based its decision on an incorrect interpretation of the law. The Supreme Court dismissed the petition for disclosure of information filed by the National Authority for Investigation and Prosecution of Economic and Environmental Crime against the law firm Thommessen AS.

Reference: HR-2010-2212-A, case no. 2010/1115, criminal appeal against interlocutory order. 

 

22 December 2010            Sentencing. Serious drug offence. Time taken to bring the case to trial. Penal Code section 162 subsections 1 and 2. 

The case concerns sentencing following conviction for serious drug crime, in particular storage of 2 kg amphetamine. The main issue in the case was the significance of the fact that it took ten years before the case was brought to trial. The Supreme Court held that neither interests of general deterrence nor interests of individual deterrence required the defendant, after ten years, to serve any part of the sentence. However, in view of the fact that the defendant was convicted of serious drug crime, the gravity of the matter ought to be emphasized by making that part of the punishment that was deemed to have been served during the defendant’s remand in custody unconditional. The sentence was changed to imprisonment for a term of two years and nine months, of which two years and six months of the sentence were suspended.

Reference: HR-2010-2211-A, case no. 2010/1242, criminal appeal against judgment. 

 

22 December 2010            Conditions for passive complicity in occasioning bodily harm. Penal Code section 229, third sentencing alternative, cf. section 232. 

The case concerns an appeal against conviction in the Court of Appeal for breach of the Penal Code section 229, third sentencing alternative, cf. section 232. The main issue concerned the conditions for criminal liability for passive complicity and the requirements of the contents of the reasons for the judgment. Both defendants had also appealed against the sentence. The Supreme Court deliberated on the conditions that must be fulfilled in order to convict for passive complicity. In circumstances where the accomplices plan and carry out the criminal act together, an accomplice must intervene if another accomplice does something which goes beyond the scope of what was originally intended. In order to avoid full liability for the accomplished offence, he must take positive action to interrupt the criminal act or the continuation of it. However, he must be given some time and the opportunity to consider what he should do. The Supreme Court held that it was unclear whether the Court of Appeal’s judgement was based on a correct understanding of the law and set aside the Court of Appeal’s judgement and the appeal proceedings.  

Reference: HR-2010-2210-A, case no. 2010/1399, criminal appeal against judgment. 

 

22 December 2010            Sentencing. Protective custody. Rape. Penal Code section 192 subsection 1a cf. subsection 2a, Penal Code section 223 subsection 1. Penal Code section 39c. 

The case concerns sentencing for several counts of rape involving full sexual intercourse and a number of other offences. The main issue concerns protective custody. A majority of the Court of Appeal had convicted the defendant and sentenced him to protective custody for a period of seven years and six months, with a minimum period of five years. The sentence was based on an overall assessment of the criminal acts for which the defendant was convicted, his considerable personality disorders, his attitude towards women, his drug and alcohol addiction and his lack of a social network. The Supreme Court concurred with the Court of Appeal that, in view of the circumstances of the case, a prison sentence that was limited in time would clearly not be sufficient to safeguard society’s need for protection. In these circumstances, no particular weight could be given to the defendant’s age and the fact that he did not have a previous history of similar offences. The Supreme Court dismissed the appeal. 

Reference: HR-2010-2205-A, case no. 2010/1560, criminal appeal against judgment.

 

22 December 2010            Sentencing. Gross corruption. Penal Code section 276b, cf. section 276a. 

The case concerned sentencing of a case handler following his conviction for gross corruption perpetrated against another case handler at the Agency for Planning and Building Services in the City Administration of Oslo. The Supreme Court held that a key element in sentencing was that the corruption was perpetrated by and against a public servant and that interests of general deterrence carry exceptional weight when sentencing for corruption in the public sector. The Supreme Court attached weight to the fact that the defendant had possessed the necessary intent to commit corruption over a long period of time. The Supreme Court stated that corruption is difficult to detect and that although the proceedings had been prolonged, this could only carry limited weight because the progress in the case was satisfactory. The Supreme Court dismissed the appeal.

Reference: HR-2010-2204-A, case no. 2010/1114, criminal appeal against judgment. 

 

22 December 2010    Health personnel. Revocation of a doctor’s limited authorisation. Health Personnel Act section 57 and section 59. 

The case concerned judicial review of a decision by the Norwegian Board of Health to revoke a medical practitioner’s limited authorisation. A doctor had been granted an authorisation subject to considerable limitations due to events that took place while he was working as a general practitioner. At the time when the limited authorisation was issued, he was employed as a local authority physician and the limitation prohibited him from having direct contact with patients. The limited authorisation was revoked when he breached the prohibition. The doctor contested that the conditions for revocation of the limited authorisation were satisfied and filed a legal action before the courts. The Supreme Court held that the doctor’s breach of duty was gross and that the conditions for revocation of the limited authorisation were satisfied.

Reference: HR-2010-2203-A, case no. 2010/1081, civil appeal against judgment. 

 

22 December 2010            Competence of acting court of appeal judge. Cross-appointment. Courts of Justice Act section 10 subsection 2, first sentence cf. last sentence. Courts of Justice Act section 108. 

The issue in the case was whether the Court of Appeal was lawfully constituted when a district court judge who was called in had participated in the appeal hearing at the same time as he was judge pro tem pursuant to section 55e of the Courts of Justice Act at the district court that had heard the case at first instance. The majority of the Supreme Court held that the limitation in section 10 subsection 2 of the Courts of Justice Act, which provides that judges “of that district court” which has dealt with the case at first instance cannot be called in as judges in the Court of Appeal does not apply to cross-appointed judges who hold permanent appointments at a court of the same level. A majority of the Supreme Court held that the considerations that justified the limitation in section 10 did not apply to the same degree in the case of cross-appointments.  This also harmonised well with the situation where judges have served as acting judges or called-in judges in individual cases at the same office. A majority also held that there was nothing exceptional about cross-appointments per se to merit a general finding of partiality pursuant to section 108 of the Court of Justice Act. The question of partiality must be assessed on the basis of the facts and circumstances of the individual case, and there was no reason for a finding of partiality in the present case. The judgment was passed with dissenting votes.

Reference: HR-2010-2202-A, case no. 2010/1038, civil appeal against judgment. 

 

22 December 2010            Corporate punishment. Travel operator. Navigation. Glacier. Penal Code section 48a and section 48b. 

The case concerned the imposition of corporate punishment against a travel operator after an accident at Svalbard (Spitzbergen), where several passengers on a cruise ship were injured as a result of a wave caused by calving from a glacier, see the Penal Code section 48a and section 48b. The Supreme Court concurred with the Court of Appeal that the fundamental conditions for the imposition of corporate punishment were satisfied. In view of the potential harm of this type of accident, the risks involved in sailing close to a high and fractured glacier and the limited opportunity for assistance in the event of accidents on Svalbard, the travel operator should have ensured that the cruise ships did not venture as close to the glacier as they did in this case. The Supreme Court emphasized that the travel operator was aware that the ships navigated very close to the glaciers and that this was used in marketing on the company's website. The Supreme Court rejected the appeal.

Reference:            HR-2010-2201-A, case no. 2010/1328, criminal appeal against judgment.

 

22 December 2010            Admissibility of transcript of telephone traffic. Criminal Procedure Act section 370, section 369 and section 294. Sentencing. Rape of sleeping woman. 

The issue in the case was whether there had been an error in procedure when the administrator of the court had not formally reconvened the court when the jury during its deliberations asked to be given a transcript of the traffic from the victim’s telephone, see the Criminal Procedure Act section 370, section 369 and section 294. The Supreme Court held that the administrator’s answer to the jury’s request must be seen as guidance to the jury that it could not be given the transcript because it had not been submitted as evidence in the case. The administrator is entitled to give such guidance. There was little reason to perceive the jury’s question as a request for the submission of further evidence about the telephone calls that had been made, since the facts surrounding this issue were clear. The Supreme Court reduced the term of the unconditional part of the two year prison sentence from nine to six months because the appeal to the Supreme Court had been with the public prosecutor for ten months without being dealt with.

Reference: HR-2010-2200-A, case no. 2010/1606, criminal appeal against judgment. 

 

22 December 2010            Administration of estate. Spouses. Marital home. Administration of Estates Act section 63 subsection 2 first sentence. 

The deceased had brought a former agricultural property into the marriage and the spouses had lived in the property as the marital home. The deceased’s three children by a former relationship petitioned for an unequal division of the estate. The Court of Appeal found in their favour and held that the value of the property should be divided unequally to their benefit and that the property should be allotted to them. The Supreme Court, however, held that the surviving spouse was entitled to the property pursuant to the Administration of Estates Act section 63 subsection 2 first sentence. The spouses had been married for 16 years and had cohabited for four years before that. The surviving spouse had lived in the property for 17 years and still lived there. Although it had been in the family for 200 years, the children had only used the property for holidays. The assessment had to be made with regard to the children only, not with regard to the rest of the family, and it was not « manifestly unreasonable » that the property be allotted to the surviving spouse, see the Administration of Estates Act section 63 subsection 1.  

Reference: HR-2010-2199-A, case no. 2010/1201, civil appeal against judgment. 

 

21 December 2010            Jurisdiction. Immigration Act section 79. ECHR Article 6 and Article 14, ICCPR Article 26 and Article 14. 

The issue in the case was whether the special jurisdiction rule in section 79 subsection 3 of the Immigration Act must be set aside on the grounds of conflict with Article 6 and Article 14 of the European Convention on Human Rights (ECHR) or Article 26 and Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court held that section 79 of the Immigration Act did not conflict with ECHR or ICCPR and that there was neither discrimination nor unequal treatment. The Supreme Court stated that the disadvantage to applicants caused by the requirement to bring proceedings in Oslo was not disproportionate. It was significant in this regard that applicants can apply to the state for reimbursement of travel and accommodation costs. The Supreme Court dismissed the appeal.

Reference: HR-2010-2192-A, case no. 2010/1380, civil appeal against interlocutory order. 

 

21 December 2010            Contract law. Right of cancellation. Damages. Purchase of used car. Right of Cancellation Act.  

The case concerned a claim for damages for breach of contract and, in particular, the buyer’s right to repudiate a contract pursuant to section 11, cf. section 6 subsection 1, cf. section 1 of the Right of Cancellation Act (Act relating to the duty to provide information and the right of cancellation etc. in cases of distance sale and sales other than from the permanent sales outlet). A used car was advertised for sale on the Finn.no marketplace website and the buyer and seller communicated thereafter by e-mail The Supreme Court held that the contract was entered into through distance communication but that the company’s marketing on the internet was not suitable for evoking orders in this way because, among other things, there was no arrangement for payment. Accordingly, this was not a distance sale in the terms of the Right of Cancellation Act, and the Supreme Court held that the seller was entitled to damages for the loss he had incurred upon the resale of the vehicle. No award of costs.

Reference: HR-2010-2191-A, case no. 2010/1003, civil appeal against judgment. 

 

17 December 2010            Sentencing. Drug offence. Import. Drug courier. Cocaine. Penal Code section 162 subsection 1 and 2. 

A 25 year old woman was convicted of having imported 728.8 grams of cocaine with a 41 % degree of purity. She was not a drug addict herself and her only motive was money. The Supreme Court held that the two year prison sentence passed by the Court of Appeal was an appropriate sentence. As a mitigating factor, the Supreme Court attached weight to the fact that she had been convicted in the District Court of importing a larger amount than she had actually imported, and that she had confessed. She also referred to the fact that swallowing ampoules was a health risk, and that she was a foreigner and would therefore not be entitled to temporary leave while serving the sentence. However, the Supreme Court held that these were not mitigating factors.  

Reference: HR-2010-2172-A, case no. 2010/1383, criminal appeal against judgment. 

 

16 December 2010            Damages. Whiplash. Rear collision. Causation. 

A 38 year old man was injured when his car was hit from behind in a chain car accident. The car was seriously damaged and the man was transported to hospital with pains in his neck. He appeared to recover quickly and was not certified sick straight away. He worked for about 18 months before he was certified 100 % sick and has since been unable to work due to pain. The Supreme Court referred to A’s pattern of health where the symptoms worsened and the pain gradually arose from other parts of the body than the area around his neck. The occupational disability was not triggered by the neck pains and arose a long time after the car accident. On this basis, the Supreme Court concluded that the requirement of an anticipated course of sickness, and consequently also the requirement of causation in section 3-1 subsection 2 of the Damages Act, was not fulfilled. The insurance company was acquitted.  

Reference: HR-2010-2166-A, case no. 2010/970, civil appeal against judgment. 

14 December 2010            Compensation. Human trafficking. Damages Act section 3-5 subsection 1 cf. section 3-3. Penal Code section 224 subsection 1. 

A Nigerian woman had brought another Nigerian woman to Norway and forced her to prostitution. In the criminal proceedings, she was convicted and sentenced to a term of imprisonment for three years and two months and ordered to repay NOK 400 000 of illegally acquired funds. The case before the Supreme Court concerned the measure of civil damages.  The Supreme Court held that the range of offences covered by section 224 of the Penal Code  is wide and that the measure of damages, at least at present, must be based on a concrete assessment of the individual facts of the particular case. Human trafficking is a serious violation and in this case the situation lasted for seven months. The Supreme Court increased the damages to NOK 150,000.

Reference:            HR-2010-2139-A, case no. 2010/952, civil appeal against judgment. 

 

14 December 2010            Company law. Private Limited Companies Act section 14-7 cf. section 13-15. 

The case concerns a claim pursuant to section 14-7, cf. section 13-15 subsection 2 of the Private Limited Companies Act 1997 for the provision of security for a debt of the transferor company in a demerger. The issue was whether such security could be provided on condition that the recipient company waived its liability pursuant to section 14-11 subsection 3 of the same Act. The Supreme Court held that the statutory liability of the recipient company could only be waived to the extent that the creditor pursuant to the debt had given its consent. The offer of security on the condition of waiver of liability without the consent of the creditor was precluded pursuant to section 14-7, cf. section 13-15 subsection 2 of the Private Limited Companies Act. The Supreme Court dismissed the appeal.

Reference:            HR-2010-2138-A, case no. 2010/1008, civil appeal against interlocutory order. 

 

7 December 2010    Tax law. EEA law. Deficient implementation. Taxation of dividends. Taxation Act section 10-12 and section 10-13. Article 40 of the EEA Agreement. 

The case concerns a claim for compensation for deficient implementation of the Agreement on the European Area (the “EEA Agreement”), alternatively a claim for restitution of tax paid without authority in law. The Norwegian tax rules were based on the assumption that the prohibition against restrictions on the free movement of capital in Article 40 of the EEA Agreement did not prohibit discrimination in taxation, see the Taxation Act section 10-12 and section 10-13. The case before the Supreme Court concerned what consequence followed now that it was established that the discrimination in taxation was unlawful, see e.g. the judgment of the EFTA Court in case E-104  . The Supreme Court held that the legal position in the Autumn of 2003 was not so clear that the Norwegian state could be held liable for the fact that the rules on taxation of dividends were not amended by then. The Supreme Court stated that it was unlikely that the EFTA Court would uphold the opinion expressed in the Fokus Bank case (case no. E-1/04 ) if a similar case was brought before the Court again. The case illustrates the disadvantages of establishing an obligation on states to react at an early stage in the development of law. The Supreme Court dismissed the appeal.

Reference:            HR-2010-2082-A, case no. 2010/821, civil appeal against judgment. 

3 December 2010             Contract law. Purchase of land to build a garage. Duty of good faith.

Four parties had discussed purchasing a plot of land on which to build a garage. After two meetings on the subject, one of the parties bought the plot of land on his own and was no longer willing to participate in the joint project. The Supreme Court held that no binding agreement had been reached in the course of the discussions between the parties. It was not necessary to consider whether the appellant had acted in bad faith because the respondents’ claim for specific performance assumed that a binding agreement had been reached. No order for costs was made for the proceedings before the Supreme Court or the lower courts because the appellant could not be reproached for the fact that proceedings had been instigated, see section 20-3 subsection 3 of the Disputes Act.

Reference: HR-2010-2060-A, case no. 2010/853, civil appeal against judgment. 

 

3 December 2010    Duty of confidentiality. Police lawyer. Consent. Penal Code section 121. Criminal Procedure Act section 61b and section 61c. 

A police lawyer was convicted in the Court of Appeal and given a NOK 6,000 fine for breach of her duty of confidentiality. In response to a question from the grandfather of an 18 year old man who was accused of a criminal offence, the police lawyer had revealed that the 18 year old was accused of having driven a motor vehicle while under the influence of hashish. The Supreme Court held that the police lawyer had not shown gross negligence because she had acted on the assumption that there was a power of attorney, although she should have made more detailed inquiries as to whether the accused had consented to the information being given to his grandfather. The Supreme Court held that although the police lawyer’s action was criticisable, this is not the same as a criminal offence. Gross negligence requires “seriously reprehensible conduct which gives reason for strong reproach for lack of diligence” see for instance the case reported in  Rt-1970-1235. The Supreme Court acquitted the police lawyer because her assumption that the duty of confidentiality had been waived by consent/power of attorney was not grossly negligent.

Reference: HR-2010-2058-A, case no. 2010/1159, criminal appeal against judgment.

 

3 December 2010    Crimes against humanity. War crime. Penal Code 2005 Chapter 16. Norwegian Constitution Article 97. 

The issue in the case was whether the provisions on crimes against humanity and war crimes in Chapter 16 of the Penal Code 2005, which entered into force on 7 March 2008, could be applied to acts that took place in Bosnia-Herzegovina in 1992. The crucial issues were whether criminal liability was statute-barred, and whether the application of the new provision to these acts would represent a violation of Article 97 of the Norwegian Constitution, which prohibits laws being given retroactive effect. The Supreme Court held that the crimes were not statute-barred. However, a majority of eleven justices held that the application of sections 102 and 103 of the Penal Code 2005 to the crimes would violate Article 97 of the Norwegian Constitution. Developments in international law and Norway’s interest in assisting international criminal courts could not undermine the fundamental requirement that a criminal conviction must have an authority in Norwegian law. A minority of six justices were of the view that conviction pursuant to sections 102 and 103 of the Penal Code 2005 would not be manifestly more onerous than conviction pursuant to section 223 of the Penal Code 1902, which applied at the time, coupled with the possibility of trial before an international court, and held that conviction pursuant to sections 102 and 103 of the Penal Code 2005 would not violate Article 97 of the Constitution.

Reference: HR-2010-2057-P, case no. 2010/934, criminal appeal against judgment. 

 

26 November 2010            Immigration law. Expulsion. Immigration Act 1988 section 29. European Convention on Human Rights Article 8. 

The case concerns expulsion from the state pursuant to section 29 subsection 1 a) and c) of the Immigration Act 1988. The main issue in the case was whether an expulsion order for a term of five years was a disproportionately severe reaction pursuant to section 29 subsection 2 of the Act. The Supreme Court held that the complainant had lived in Norway illegally for a long time, had worked without a work permit and had a criminal conviction for violence. In view of these factors, there was a serious breach of the law. Following the rejection of his application for asylum in Norway in 2000, the complainant had knowingly lived in Norway illegally. The fact that he now had a strong connection to Norway made the breach of the Immigration Act even more serious because he had been aware all along that he was required to leave the country. The Supreme Court did not find that expulsion was a disproportionate reaction towards the complainant’s family either. The Supreme Court found in favour of the state, represented by the Immigration Appeals Board.

Reference: HR-2010-2033-A, case no. 2010/833, civil appeal against judgment.

 

24 November 2010            Sentencing. Arson. Protective custody. Penal Code section 148 subsection 1, first sentencing alternative. Penal Code section 39c. 

A now 26 year old man was convicted of three counts of accomplished arson and one count of attempted arson, in each case where the circumstances were such that the criminal act posed a risk of loss of life; see the Penal Code section 148. He was also convicted of vandalism and attempted vandalism in connection with the arson attacks, and for two further counts of arson in the form of simple and aggravated vandalism. No-one died in the fires, and the fires did not cause serious damage, but they could have done because people were sleeping in all of the houses that were set on fire. The Supreme Court referred to the testimony of expert witnesses, who stated that the prognosis for change in the circumstances of A’s personality that had led to the arson attacks was uncertain. The Supreme Court fixed the sentence to nine years protective custody with a minimum term of six years.

Reference:             HR-2010-2014-A, case no. 2010/944, criminal appeal against judgment. 

 

24 November 2010            Sentencing. Sexual intercourse. Compensation for non-economic loss. Penal Code section 196 subsection 1. 

A 25 year old man contacted a 14 year old girl who he had met on the internet. They had oral sex where she sucked his penis, and had full intercourse on one occasion. The defendant was convicted in the District Court and sentenced to 45 hours of community service, but the claim for compensation for non-economic loss was rejected. The Court of Appeal rejected the prosecution’s appeal, and held that although there was quite a large age difference between the defendant and the victim, the court in sentencing must attach weight to the defendant’s level of maturity, the fact that the act had a “teenager touch” about it and that he had made an immediate confession. However, the Supreme Court held that there were no grounds in the present case for departing from the general rule that breach of section 196 subsection 1 of the Penal Code in cases where the victim is at the lower end of the age-range which that provision is designed to protect, shall be sanctioned by imprisonment. Having taken account of the defendant’s confession, the Supreme Court fixed the sentence to 45 days imprisonment. One of the justices held that there was no reason to overrule the sentence fixed by the District Court. No order for compensation for non-economic loss was made.

Reference:            HR-2010-2013-A, case no. 2010/958, criminal appeal against judgment.   

17 November 2010    Access to documents. Verification report. Settlement permit. Dispute Act section 22-3. 

The case concerned a claim by the defendant for access to documents in connection with judicial review of a refusal by the immigration authorities to grant a settlement permit. The Supreme Court held that the Court of Appeal had erred in its application of the law when it had found that section 13 subsection 1 no. 1 cf. section 13 b subsection 1 no. 1 and section 19 subsection 2 of the Public Administration Act could not establish an obligation of confidentiality in the terms of the Dispute Act section 22-3. The Supreme Court set aside the interlocutory order of the Court of Appeal.

Reference: HR-2010-1969-A, case no. 2010/1089, civil appeal against interlocutory order. 

17 November 2010    Price reduction on the purchase of a private dwelling. Sale of Property Act section 4-12. 

The case concerned the relationship between section 4-12 subsection 1 and section 4-12 subsection 2 of the Sale of Property Act in relation to the purchase of a private dwelling – more specifically whether a reduction in price of a property that was sold could be fixed at a higher amount than the repair costs estimated by an expert. The Supreme Court held that section 4-12 of the Sale of Property Act could not be understood to mean that a reduction in price can never exceed the cost of repairs less any increase in standard. When the wording of the Act and the preparatory works are read in context, it is clear that the overriding general rule is contained in the first paragraph, which provides for a proportional reduction, even though the price reduction is normally determined pursuant to the second paragraph for practical reasons. At the same time, the Supreme Court emphasized that the when the Act requires that the claimant must demonstrate that the reduction in value deviates from the cost of repair, section 4-12 subsection 1 will only apply if there is a strong probability that the reduction in value is higher than the cost of repairs.

Reference: HR-2010-1967-A, case no. 2010/669, civil appeal against judgment. 

 

16 November 2010    Order to surrender evidence. Web-based news page. Protection of sources. Criminal Procedure Act section 210, section 125 subsection 1, cf. subsection 5, and section 125 subsection 3. 

The case concerns an order to surrender evidence pursuant to the Criminal Procedure Act section 210, and whether the publisher of a Web-based news page had privilege to withhold information pursuant to the provision on protection of sources in the Criminal Procedure Act section 125. A person writing under a pseudonym in response to an article about an archaeological find had broadcast on an Internet forum that he had found a rune stone. He wrote that he considered the finder’s fee offered by the state to be too low and he appealed to potential private buyers to come forward. The police ordered the owner of the Web-based news page to surrender the IP address and reveal the user identity behind the message. The order was upheld by the District Court and the Court of Appeal. The Supreme Court held that the editor was protected by privilege and could invoke protection of sources for messages posted on Internet forums in connection with articles on Web-based newspapers pages like “DinSide”, provided that the page is subject to the editor’s scrutiny, see the Criminal Procedure Act section 125 subsections 1 and 5. A majority of the Supreme Court held that 

17 November 2010    Price reduction on the purchase of a private dwelling. Sale of Property Act section 4-12. 

The case concerned the relationship between section 4-12 subsection 1 and section 4-12 subsection 2 of the Sale of Property Act in relation to the purchase of a private dwelling – more specifically whether a reduction in price of a property that was sold could be fixed at a higher amount than the repair costs estimated by an expert. The Supreme Court held that section 4-12 of the Sale of Property Act could not be understood to mean that a reduction in price can never exceed the cost of repairs less any increase in standard. When the wording of the Act and the preparatory works are read in context, it is clear that the overriding general rule is contained in the first paragraph, which provides for a proportional reduction, even though the price reduction is normally determined pursuant to the second paragraph for practical reasons. At the same time, the Supreme Court emphasized that the when the Act requires that the claimant must demonstrate that the reduction in value deviates from the cost of repair, section 4-12 subsection 1 will only apply if there is a strong probability that the reduction in value is higher than the cost of repairs.

Reference: HR-2010-1967-A, case no. 2010/669, civil appeal against judgment. 

 

16 November 2010    Order to surrender evidence. Web-based news page. Protection of sources. Criminal Procedure Act section 210, section 125 subsection 1, cf. subsection 5, and section 125 subsection 3. 

The case concerns an order to surrender evidence pursuant to the Criminal Procedure Act section 210, and whether the publisher of a Web-based news page had privilege to withhold information pursuant to the provision on protection of sources in the Criminal Procedure Act section 125. A person writing under a pseudonym in response to an article about an archaeological find had broadcast on an Internet forum that he had found a rune stone. He wrote that he considered the finder’s fee offered by the state to be too low and he appealed to potential private buyers to come forward. The police ordered the owner of the Web-based news page to surrender the IP address and reveal the user identity behind the message. The order was upheld by the District Court and the Court of Appeal. The Supreme Court held that the editor was protected by privilege and could invoke protection of sources for messages posted on Internet forums in connection with articles on Web-based newspapers pages like “DinSide”, provided that the page is subject to the editor’s scrutiny, see the Criminal Procedure Act section 125 subsections 1 and 5. A majority of the Supreme Court held that

4 November 2010 Sentencing. Bodily harm occasioning death. Penal Code section 229, third sentencing alternative.

 

The case concerned sentencing following conviction for bodily harm occasioning death. The main issue was what effect it should have on the sentence that the maximum penalty for violation of the Penal Code section 229, third sentencing alternative had been increased by a statutory amendment in 2010 and that the Norwegian parliament in this connection had signalised a wish to increase the general level of sentencing for violation of the provision. When determining the sentence, regard must be had to the fact that the Supreme Court has held that in the interim period between the date when the statutory amendment was passed and the date when it entered into force, the sentencing level must be increased gradually. This interim period has been considerably reduced, and the consequence of this must be that the gradual increase in the sentencing level must take place quicker than would have been the case if the maximum penalty in the Penal Code of 1902 had not been increased, see the judgment reported in HR-2010-1851-A at paragraph 4. The Supreme Court rejected the appeal and affirmed the sentence of five years imprisonment passed by the District Court and the Court of Appeal.

Reference: HR-2010-1881-A, case. no. 2010/1228, criminal appeal against judgment.

4 November 2010 Revocation of transfer of property from an undivided estate.

Succession Act section 19 subsection 1, cf. subsection 4.

The case concerned the revocation of a transfer of property from an undivided estate, where it was alleged that there was a gift sale in violation of the Succession Act. The main questions before the Supreme Court concerned the principle of compulsory joint proceedings in revocation cases, the principle for valuation of the gratuitous lifelong right of residence of the surviving spouse and the duty of care in section 19 subsection 2 of the Succession Act. Pursuant to section 1-3 subsection 2 of the Dispute Act, the lawsuit against the buyer should have been rejected by the District Court as long as proceedings had not at the same time been brought against the seller. In the circumstances, the Supreme Court held that there was no justification for granting a right to correct the error, see section 16-5 subsections 1 and 2. In view of the procedural situation, the Supreme Court held that the judgments of the Court of Appeal and the District Court had to be set aside and the case dismissed from the District Court. However, the Supreme Court expressed its views on the key substantive issues in the case and stated that the appeal would probably have succeeded if it had not been necessary to decide the matter on a procedural basis

Reference: HR-2010-1880-A, case no. 2010/847), civil appeal against judgment.

4 November 2010 Construction contract.

Claim for additional compensation. Additional Cost. Norwegian Standard Construction Contract 3430 (NS 3430).

1 November 2010-11-06 Sentencting. Vehicular manslaughter. Under 18 years of age. Permanent driving ban. Penal Code section 239. Road Traffic Act section 24a subsection 2.

Disqualification Regulations section 4-1 subsection 1.

The case concerned sentencing following conviction for vehicular manslaughter. The main question was what weight should be given to the fact that the defendant was under 18 years of age when the incident took place. The defendant drove the car without a license, drove very fast, was under the influence of drugs and had not slept the night before. A court-appointed expert assessed that the total intoxication level was approximately 1.5 ‰. The defendant lost control of the car and crashed, and his sixteen year old girlfriend who sat in the back seat died shortly after as a result of the head and brain injuries she received. The Supreme Court held that there were "particularly strong considerations of deterrence" which could not be satisfied by making a community sentence order. The Supreme Court agreed with the Court of Appeal that imprisonment for a term of 19 months was an appropriate sentence, but held that a larger portion of the sentence should be suspended and attached particular weight to the fact that the defendant had lost his girlfriend in the accident. The Supreme Court held that there was no reason to depart from the general rule that the driving ban shall be permanent in the case of vehicular manslaughter, see the Road Traffic Act section 24 a subsection 2, cf. the Disqualification Regulations section 4-1 subsection 1, cf. section 3-2 no. 3, compare section 2-4 subsection 2.

Reference: HR-2010-1850-A, case no. 2010/983, criminal appeal against judgment

The case concerned a claim for additional compensation brought by a local authority road company under a contract for winter maintenance of roads entered into after a call for tenders. The call for tenders had stated the average consumption of salt per winter season based on previous winters, and the main question was which of the parties must carry the risk that the actual average consumption of salt per winter season was almost three times as high as the average stated in the call for tenders. A majority of the Supreme Court held that the term "additional costs" in NS 3430 Art 7.5 and Art 21.1 must be construed to mean that the municipal road company could only claim reimbursement of actually incurred costs and that it could not claim compensation for the spreading of larger amounts of salt than expected. The majority held that the local authority road company was entitled to claim damages equivalent to the cost of purchasing and storing an average of 25.3 % more salt than the amount stated in the tender documents. The Supreme Court exercised its discretion and fixed the compensation for the full five year term of the contract at NOK 2 million, which also included loss of interest until the maturity date of the judgment. Two of the five justices dissented regarding the calculation of the additional costs.

Reference: HR-2010-1875-A, case no. 2010/776, civil appeal against judgment.

2 November 2010 Criminal liability of auditor. Accounting Act and Auditors Act. Concurrence of offences.

One of the main auditors in a team of auditors that audited a sponsor company had contributed to the deficient audit of a large number of accounting items, as a result of which the accounts gave a very misleading picture of the company's financial position. In the Court of Appeal, the defendant was convicted of breach of the Auditors Act section 9-3, etc, but acquitted of complicity to breach of the Accounting Act section 8-5. Following an appeal by the prosecution, the Supreme Court held that the acquittal was based on an error in the application of the law. The Supreme Court held that when the auditor issued a clean opinion despite the fact that the audit was inadequate or was lacking altogether, he had actively contributed to the client giving an incorrect annual report. His contribution had to be viewed in light of the fact that where an enterprise has an obligation to submit annual accounts, the auditor’s report will in practice be decisive for the financial report. The penal provisions in the Accounting Act and the Auditors Act could apply concurrently. The Supreme Court pronounced a new judgment in accordance with the Criminal Procedure Act section 345. The defendant was sentenced to 90 days imprisonment, which was suspended on the grounds that the matter had become old. The fine was reduced to NOK 30,000

Reference: HR-2010-1855-A, case no. 2010/971, criminal appeal against judgment.

 

 

24 September 2010 Contract. Consumer Housing Construction Act. Compensation for cancellation. Cancellation fee.

The issue in the case was whether a contractual cancellation fee could be set aside to the consumer’s detriment, cf. Housing Construction Act, section 54, second sentence. The buyers of the apartments were consumers who intended to use the apartments as personal dwellings. The Supreme Court agreed with the view expressed by the Court of Appeal that section 54 subsection 2 of the Housing Construction Act can only be invoked in the consumer's favour. For a further explanation of its findings, the Supreme Court referred to the ruling in HR 2010-1597-A, which was pronounced the same day. The Supreme Court rejected the appeal.

Reference: HR-2010-1598-A, case no. 2010/998, civil appeal against judgment.

24 September 2010 Contract. Consumer Housing Construction Act. Compensation for cancellation. Cancellation fee.

The issue in the case was whether a contractual cancellation fee could be set aside to the consumer’s detriment, see section 54 subsection 2 of the Consumer Housing Construction Act. The Supreme Court held that the mandatory character of the Act and its stated purpose of protecting the consumer indicated that if the legislator’s intention had been that the cancellation fee could be adjusted to the consumer's detriment, the legislator had had plenty of opportunity to deliberate the issue in the preparatory works. The Supreme Court remarked that doubt could be raised as to whether an interpretation of the provision that allows only for adjustment of the cancellation fee in favour of the buyer could be so unreasonable for the seller that the interpretation could not be justified. In the present case, the consequence of this interpretation was that the seller would suffer a loss because the financial crisis resulted in a significant drop in house prices. However, since the legislator had only intended that the cancellation fee can be waived in the consumer's favour, the Supreme Court held that this consideration could not be given decisive weight.

Reference: HR-2010-1597-A, case no. 2010/466, civil appeal against judgment.

17 September 2010 Dispute Act section 19-12. In court settlement. Undivided estate.

The case concerns legal proceedings instigated pursuant to section 19-12 of the Dispute Act to amend an in-court settlement entered into pursuant to the provisions of the now-repealed Civil Procedure Act. The main question before the Supreme Court was whether the transitional rules of the Dispute Act must be interpreted narrowly so that section 19-12 did not apply in cases where the normal time limit for filing an appeal against an in-court settlement had expired when the Dispute Act came into force.

Reference: HR-2010-1551-A, case no. 2009/1351, civil appeal against interlocutory order. Written proceedings.

15 September 2010 Sentencing. Drug offences. Use of suspended sentence and drug rehabilitation program. Penal Code section 162, cf. Penal Code section 53 no. 3 e.

The case concerns sentencing for dealings with a total of approximately 8.8 kg of cocaine / amphetamine and, among other things, the imposition of a partially suspended sentence on condition that the defendants participated in a drug rehabilitation program under court control. In sentencing, the Court of Appeal had attached weight to the defendants' confessions, that the police had waited a long time before intervening, that the investigations had been prolonged and that the defendants had been remanded in custody for a long time pending trial. The Supreme Court held that the reduction in sentence that the defendants had been granted on account of these factors was too large and that there was no basis for imposing a partially suspended sentence on condition of participation in the drug rehabilitation program. Both defendants were sentenced to seven years unconditional imprisonment.

Reference: HR-2010-1536-A, case no. 2010/823, criminal appeal against judgment.

15 September 2010 Sentencing. Application of law. Import of cocaine. Coercion. Penal Code section 162 subsections 1 and 2.

The case concerns the application of law and sentencing following conviction for serious drug offences where the defendant alleged he had felt under severe pressure to act as a courier for the importation of approximately 2 kg of cocaine. The Supreme Court held that the coercive pressure that the defendant experienced could not release him of criminal liability for the choice he had taken when the possibility arose to call off the transport job. Where there are alternative courses of action, it could not be less onerous to implement a serious offence than to seek protection from the law enforcement authorities in one’s own country. Nevertheless, the Supreme Court considered that the sentence ordered by the Court of Appeal was somewhat strict in so far as the Court of Appeal had held that part of the sentence should be suspended. The Supreme Court fixed the penalty at two years and two months imprisonment, of which eight months were suspended with a probation period of two years. The judgment was passed with dissenting votes (4-1).

Reference: HR-2010-1535-A, case no. 2010/935, criminal appeal against judgment.

15 September 2010 Criminal law. Application of law. Sentencing. Import of very low grade amphetamine. Penal Code section 162 subsection 1.

A 37 year old man had imported 168.7 grams of amphetamine with a potency of 1 percent. When converted to the normal level of potency for amphetamine, the amount was significantly below the threshold for serious drug offences. The Supreme Court held that when the potency is so much lower than normal, this must be taken into account even though other factors must be included in the assessment, such as the fact that the defendant had imported the drugs with a clear profit motive. The Supreme Court allowed the defendant's appeal and convicted him of a lesser offence - violation of the Penal Code section 162 subsection 1 - and sentenced him to imprisonment for six months, which was deemed to have been served due to time spent in custody on remand.

Reference: HR-2010-1534-A, case no. 2010/1133, criminal appeal against judgment.

15 September 2010 Social security law. Subsidy for the purchase of a motor car. National Insurance Act section 10-6 subsection 2 cf. section 10-7 subsection 1.

The issue in the case was whether section 2 subsection 4 of the Regulations of 7 March 2003 no. 290 on social security subsidies for motor vehicles and other means of transport can be given a wide interpretation so as to give right to social security subsidies for the purchase of a so-called group 2 car even when the claimant can get in and out of the car unassisted. The case also concerns whether the aforementioned provision of the Regulation restricts user rights in a manner that is inconsistent with the National Insurance Act section 10-6 subsection 2, cf. section 10-7 subsection 1. The Supreme Court held that the Court of Appeal had erred in its application of the Regulation and allowed the state's appeal.

Reference: HR-2010-1533-A, case no. 2010/486, civil appeal against judgment.

15 September 2010 Compulsory purchase. Hydropower development. Renewable Energy Certificates (green certificates). Norwegian Constitution Article 105. Expropriation Compensation Act sections 5 and 6. Regulation of Waterways Act section 16 no. 3. Water Resources Act sections 8, 13, 22 and 51. Assessment Procedure Act section 28.

The case concerns compensation following expropriation of waterfalls in the River Bjørnarå and the River Fjellskarå for hydropower development in the upper part of the Otra waterway in the Valle and Bykle municipalities in Setesdal. The main issue in the case was whether the Court of Appeal had erred in its application of the law when it granted compensation based on the alternative user of the waterfalls for small power plants even though the public development plans for the waterway would have prevented a separate development of this kind. The case also concerns whether there was an error in the Court of Appeal’s application of the law or in the reasoning of the valuation assessment when the Superior Court of Assessment awarded compensation for "the expected value represented by the opportunity to sell Renewable Energy Certificates ("green certificates")". The Supreme Court held that it was unclear what standard of realism and predictability the Court of Appeal had required in order for the landowner to be entitled to compensation for the value of a potential future market for green certificates. In light of the special evidential issue before the Court of Appeal and the amount of compensation awarded by it, the Supreme Court held that the reasons given in the assessment award were inadequate, and set aside the decision of the Superior Court of Assessment.

Reference: HR-2010-1523-A, case no. 2010/668, civil appeal against assessment.

15 September 2010 Priority in registration of company name. "Canvas AS". Company Names Act section 2-6 no. 4 and section 4-1.

The case concerns the validity of the Patent Office's decision to revoke the registration of a company name. A sole proprietorship called "Canvas Dyrø" changed its company form to a limited liability company and at the same time changed its name to "Canvas AS." A foundation, which before the aforementioned amendment had registered "KANVAS" as a trademark, protested. The Supreme Court agreed with the Court of Appeal that Canvas AS did not have priority from the date when the sole proprietorship was registered, but only from the date of conversion to a limited liability company. The change of name was too significant. The preparatory works of the Company Names Act supported this conclusion.

Reference: HR-2010-1522-A, case no. 2010/362, civil appeal against judgment.

10 September 2010 Release from custody.

The Supreme Court noted that the case raises complicated questions of importance for the validity of a decision of the Norwegian Criminal Cases Review Commission to refuse to reopen a criminal case. It was quite possible that the Commission's decision would be overruled and that A’s case would be reopened as a result of this. The Supreme Court therefore allowed A's claim for immediate release from custody, see the principle in section 452 subsection 2 of the Criminal Procedure Act.

Reference: HR-2010-1515-S, case no. 2010/845, civil appeal against judgment.

6 September 2010 Requirement to give reasons for an acquittal. Criminal Procedure Act section 40 subsections 4 and 5.

The defendant was acquitted in the District Court of non-consensual sexual acts, see the Penal Code section 200 subsection 1. Like the Court of Appeal, the Supreme Court held that the requirement to give reasons in section 40 subsections 4 and 5 of the Criminal Procedure Act were not satisfied. The District Court's reasoning did not describe clearly the events on which it had based its decision or what facts were crucial in reaching its decision. The Supreme Court set aside the District Court’s acquittal and the trial pursuant to section 343 subsection 1 of the Criminal Procedure Act.

Reference: HR-2010-1485-A, case no. 2010/815, criminal appeal against judgment.

3 September 2010 Procedural error. Contradiction. Dispute Act section 11-1 subsection 3.

The issue in the case was whether there was a procedural error in the Court of Appeal’s ruling because the requirement of contradiction was not met. The majority of the Supreme Court held that the explanation on which the Court of Appeal relied as the cause of the mould problem had not been raised in a manner that gave the buyers occasion to argue against it. The error could have influenced the result and the judgement of the Court of Appeal had to be set aside. The judgment was passed with dissenting votes (3-2).

Reference: HR-2010-1480-A, case no. 2010/177, civil appeal against judgment.

3 September 2010 Procedural error. Jury. Assessment of evidence. Requirement to give reasons.

The issue before the Supreme Court was whether, in a criminal trial by jury, reasons should have been given for the assessment of evidence in relation to the question of guilt when the Court of Appeal held that the defendant had not acted in self-defence. The Supreme Court found that the Court of Appeal had explicitly considered whether the matter was of such a nature that reasons had to be given. The Court of Appeal concluded that this was not the case and the Supreme Court agreed. The case also concerned the consequence of the fact that the court sat with a jury when it should have comprised three professional judges and four lay judges ("meddomsrett"), see the Criminal Procedure Act section 352 subsection 1 no. 2. The Supreme Court noted that the objective of this rule was to protect young offenders from the considerable strain that trial before the Court of Appeal sitting with a jury can imply. The reason is not to ensure a more reassuring treatment. If a procedural error of this kind always led to the judgement being set aside, the consequence would be that the accused must undergo a retrial before the Court of Appeal, with the burden that this entails. The Supreme Court held that the error had to be assessed pursuant to section 343 subsection 1 of the Criminal Procedure Act, which provides that a procedural error will only be taken into consideration if it is deemed to have affected the substance of the judgment. The Supreme Court found it clear that the error had not affected the substance of the judgement and rejected the appeal.

Reference: HR-2010-1479-A, case no. 2010/825, criminal appeal against judgment.

3 September 2010

Criminal Law. Drugs. Application of law. Sentencing. Cultivation of cannabis plants. Borderline between lawful preparation and criminal attempt. Penal Code section 162 subsection 3, first sentence, cf. subsection 1 cf. section 49. Penal Code section 60a and section 317, subsection 4.

The case primarily concerns the application of law and sentencing following conviction for attempted complicity to manufacturing of drugs, more particularly the large scale and professional cultivation of cannabis plants. The case gives rise to particular questions about the borderline between lawful preparation and criminal attempt. Three men had made extensive preparations and installed a barn for production of more than 2000 cannabis plants, which would have yielded approximately 200 to 250 kg of cannabis per year. The Supreme Court rejected the appeal in so far as it concerned the application of the law regarding the drug offence. The Supreme Court held that although the production of cannabis plants had not yet started, the defendants had demonstrated a solid, systematic and long-term intent that justified conviction for criminal attempt to manufacture drugs. The appeal on the grounds that the application of the proceeds of crime was not serious was also rejected. The proceeds of crime were approximately NOK 150 000 and these had been used in connection with other criminal activity. However, the appeal against sentence was successful and the sentences were reduced to 3 years and 6 months imprisonment for the principal offender and 2 years and 9 months imprisonment for the other two. The Supreme Court took into account that the lower threshold for attempt had been passed with a small margin, and that final production was a long way ahead in terms of both time and effort.

Reference: HR-2010-1478-A, case no. 2010/729, criminal appeal against judgment.

1 September 2010 Tax law. Taxation Act (1911) section 55 and section 42. Whether the sale of shares is a benefit received on work

The case concerned the tax assessment of the benefits received by the employees in a newly established securities company through the subscription of shares in the company, or upon a subsequent sale of the shares. It included the question whether the courts can base their assessment on a different earnings criterion than the one on which the National Tax Tribunal based its assessment. The Supreme Court affirmed the judgment of the District Court.

Reference: HR-2010-1467-A, case no. 2010/317, civil appeal against judgment.

1 September 2010 Sentencing. Bodily harm leading to serious injury. Penal Code section 229 third sentencing alternative, cf. section 232, cf. section 61 and section 62 subsection 1.

A 31 year old man with previous convictions for offences of violence was convicted in the Court of Appeal for bodily harm. He was sentenced to 3 years unconditional imprisonment and ordered to pay NOK 120 000 to the victim as compensation for non-economic loss. The violence had the character of abuse - the defendant had repeatedly hit the victim's head hard against the pavement even after he was unconscious. The District Court placed considerable emphasis on the preparatory works to the new Penal Code, where the government has expressed a desire to increase the level of punishment for serious violence, while the Court of Appeal did not comment on this. The Supreme Court referred to the decision in Rt-2009-1423, which was passed before the Court of Appeal’s ruling, and which states that an increase in the level of sentences must take place gradually. However, in view of the gravity of the acts of violence and that the victim suffered permanent brain damage and disability, the Supreme Court held that the level of punishment was appropriate and rejected the appeal.

Reference: HR-2010-1466-A, case no. 2010/872, criminal appeal against judgment.

27 August 2010 Tax law. Tax assessment. Garage used for business purposes. Taxation Act section 7-11 c) prior to a statutory amendment in 2004, section 5-20 subsection 1 a).

The case concerns taxation of rental income from a building that was originally a garage on the taxpayer’s residential property but which was subsequently extended and used as an office, warehouse and workshop in the business. The main question was whether the building should be included in the basis for calculating the tax percentage of residential property, or whether the rental income was taxable directly as income from capital. The Supreme Court came to the same conclusion as the lower courts and rejected the appeal. The building was now being used exclusively for business purposes. The fact that the building could potentially be used for residential purposes was irrelevant. The building should therefore not be included in the basis for calculating the tax percentage.

Reference: HR-2010-1455-A, case no. 2010/373, civil appeal against judgment.

25 August 2010 Use of excess information from interception of communication

The case concerns the court's right to take into account excess information obtained through interception of a communication when the court is considering convicting for an offence for which an interception warrant would not have been granted. The Supreme Court rejected the appeal and referred to the judgment in Rt-2007-1409, where it was held that whether or not the evidence was admissible must be determined solely on the basis of the terms of the indictment.

Reference: HR-2010-1431-A, case no. 2010/751, criminal appeal against judgment.

25 August 2010 Construction law. Contractor's claim for contractual remuneration.

The issue in the case was whether the portion of a contractor's claim for contractual remuneration which the owner had retained pursuant to NS 3431 General conditions of contract for turnkey contracts clause 30.3 had lapsed because it was not included in the final invoice. The Supreme Court affirmed the District Court's verdict, and found in favour of the contractor that the claim was not precluded pursuant to NS 3431 clause 36.1 even though it was not included in the final settlement.

Reference: HR-2010-1427-A, case no. 2010/577, civil appeal against judgment.

25 August 2010 Criminal law. Family violence. Application of law, compensation. Penal Code section 219, subsection 1 b) and section 219 subsection 2.

The issue in the case was whether section 219 of the Penal Code on family violence protects a child who was witness to physical and mental abuse of its mother, and the right to claim compensation for non-economic loss in that connection. The Supreme Court came to the same conclusion as the District Court and the Court of Appeal and rejected the defendant’s appeal. The situation was deemed to fall within the scope of section 219 subsection 1 of the Penal Code, both in its current wording ("in any other manner abuses") and as it was worded before 1 January 2006 ("similar conduct"). The Supreme Court affirmed the awards of compensation for non-economic loss of NOK 70 000 to the mother and NOK 90 000 to the daughter.

Reference: HR-2010-1426-A, case no. 2010/575, criminal appeal against judgment.

17 August 2010 Petition to correct a judgment.

A precondition for correcting a judgement pursuant to section 45 of the Criminal Procedure Act is that the grounds of the judgement do not give an accurate impression of what the court meant. Correction will not be allowed in circumstances where the court allegedly has misunderstood the arguments or erred in the application of law, see the judgments published in Rt-2000-1504 and Rt-1996-1495. The Supreme Court understood the application to correct to be directed at the assessment of evidence in connection with the appeal against procedure. The alleged error in the assessment of evidence cannot be corrected, and there was no power in section 45 of the Criminal Proceedings Act to review the appeal on its merits as alleged in the petition.

Reference: HR-2010-1450-A, case no. 2009/2107, criminal appeal against judgment. Petition for rectification of judgment in case HR-2010-939-A.

16 August 2010 Discrimination on grounds of age. Appeal proceedings before the Supreme Court stayed pending decision of the European Court of Justice

The appeal proceedings before the Supreme Court in case no 2010/127 were stayed until such time as the European Court of Justice has delivered judgement in case no. C-447/09. The issues raised in the present case were different from those raised in the case before the European Court and the facts in the two cases also differ in a number of respects. However, the preparatory judge was of the view that there were strong reasons to believe that the issues of principle as to whether age discrimination could be justified in the interests of security on board aircraft could be crucial in the adjudication of the present case. In these circumstances, the preparatory judge held that there were "compelling reasons" for staying the proceedings before the Supreme Court until judgement has been delivered in the case before the European Court.

Reference: HR-2010-1398-F, case no. 2010/127, civil appeal against judgment.

 

30 June 2010                Criminal law. Evaluation of evidence. Question of guilt. Obligation to give reasons. Criminal Procedure Act section 376c.

There were two main questions in the case: firstly, whether in this case the court was obliged to give reasons for its evaluation of the evidence in relation to the question of guilt; and, secondly, if it was obliged to give reasons, whether the obligation was satisfied when the three professional judges gave reasons why the jury’s verdict had not been set aside, see the Criminal Procedure Act section 376c. The Supreme Court held that there was no obligation to give reasons in the present case. The defendant had been convicted in both the District Court and the Court of Appeal and there were no particularly inexplicable issues in the evaluation of the evidence that would require explanation in order for the judgment to be verifiable, see the judgment in Rt-2009-1439 . According to section 376c, the three professional judges had power to determine the question of guilt, and although there is no general requirement that reasons must be given for decisions that are made in the form of ”beslutninger” , the majority of the Supreme Court held that the Criminal Procedure Act must be construed such that in cases where it was appropriate to give a reason for the conclusion on the evidence, this should be done by the three professional judges alone, without participation of any of the jurors. This would also ensure that the jurors retained their anonymity as presumed in the legislation. Dissent 4-1.

Reference:  HR-2010-1138-A, case no. 2010/534, criminal appeal against judgment.

29 June 2010                Refugee Convention Article 1 C (5). Refugee status. Change in personal circumstances.

The case concerned the interpretation of Article 1 C (5) of the Convention relating to the Status of Refugees dated 28 July 1951, which regulates when a person will lose his status as a refugee and the Convention will cease to apply. The main question was whether Article 1 C (5) could apply simply on account of changes in the refugee’s personal circumstances, or whether there must have been changes in his or her home country. The Supreme Court held that the Convention relating to the Status of Refugees aims to protect persons who cannot obtain protection in their home country. When circumstances change so that the refugee can obtain protection in his or her home country, the need for refugee status ceases. This also applies where the need for refugee status ceases due to a change in personal circumstances. The Supreme Court held that the Court of Appeal’s application of the law was wrong and that the judgment of the Court of Appeal must be set aside.

Reference:  HR-2010-1130-A, case no. 2010/259, civil appeal against judgment.

29 June 201                Cultural Monuments Act section 27, Penal Code section 317. Protected historic building.

The case concerned breach of the Cultural Monuments Act section 27 and the Penal Code section 317 committed in connection with the removal and sale/resale of fixtures and fittings from a protected historic building. The Supreme Court held that the question whether the fixtures and fittings were protected was a question of determining the scope of the provisions of the Act. In construing the protection legislation, the Supreme Court attached particular weight to how closely the fixtures and fittings were integrated into the building, whether removal caused structural damage to the building or otherwise caused financial or cultural loss. Whether or not a fixture or fitting formed part of the protected building must be determined for each individual item, and the Supreme Court held that fitted bureaus, buffets, food cupboards and benches were included. The case also concerned limitation of criminal liability for breach of the Cultural Monuments Act, the distinction between receiving stolen property and psychological aiding and abetting of the principal offence, the standard of care for aiding and abetting, and sentencing for breach of the Cultural Monuments Act and receiving stolen property protected by the Act.

Reference:  HR-2010-1127-A, case no. 2010/414, criminal appeal against judgment.

29 June 2010                Scope of the Penal Code section 390a. Freedom of speech

The case concerned the scope of the Penal Code section 390a concerning breach of another person peace. A 26 year old woman had sent 46 text messages to the director of the Immigration Appeal Board and was convicted pursuant to the Penal Code section 390a in the Court of Appeal. The Supreme Court held that the legal provisions on protection of the freedom of speech in Article 10 of the ECHR and the Norwegian Constitution Article 100 did not preclude conviction pursuant to section 390a of the Penal Code in this case. While the woman was fully entitled to publicly air her views on the repatriation of Afghan asylum seekers and the director’s role in this process, she was not entitled to daily send him personal text messages of such a nature that they were apt to make him and his family feel unsafe. In a democratic society, it was necessary to intervene in such conduct. Her appeal was rejected.

Reference:  HR-2010-1126-A, case no. 2010/408, criminal appeal against judgment.

29 June 201        Limited ground lease. Termination. Ground Lease Act section 10 subsection 1 and section 33.

The issue in the case was whether an agreement for a limited ground lease where the term of the lease had expired could be terminated pursuant to section 10 subsection 1 of the Ground Lease Act and, if so, whether the lessee could demand an extension of the lease agreement pursuant to section 33 after it had been terminated by the lessor. The Supreme Court concurred with the Court of Appeal that the annual lease had become terminable pursuant to section 10 subsection 1. However, a majority of the Supreme Court did not agree with the Court of Appeal that the amended lease could not be extended pursuant to section 33. Neither the wording of the Act nor the preparatory works provided support for the view that a terminable lease agreement pursuant to section 10 subsection 1 did not fall within the term “when the term of the lease has expired” in section 33. The Supreme Court emphasised the importance of clarity and predictability in matters pertaining to the Ground Lease Act , and that one ought in general to avoid a statutory interpretation that contradicts the natural understanding of the wording. A majority of the Supreme Court (3-2) found in favour of the lessees.

Reference:  HR-2010-1124-A, case no. 2009/2097, civil appeal against judgment.

25 June 2010                Restitution of license fee. Watercourses Regulation Act.

The main issue in the case was a claim for restitution of the license fee and an additional charge for concessionary power from the local authority in circumstances where the final decision relating to the regulation license imposed lesser commitments on the power company than assumed in the basis for the provisional decision. The Supreme Court held that the Watercourses Regulation Act only empowers the regulatory authorities to order payments to be made to local authorities. There is no right in the Act or otherwise in public law for the power company to require restitution or reimbursement. The Supreme Court rejected the appeal against the Court of Appeal’s judgment regarding restitution and interest. A cross-appeal was also rejected. Dissent 3-2.

Reference:  HR-2010-1104-A, case no. 2010/157, civil appeal against judgment.

24 June 2010                Appeal against reasoned refusal of leave to appeal. Criminal Procedure Act section 321 subsection 2 first sentence.

The case concerned appeal against the reasoned refusal by the Court of Appeal to grant leave to appeal in two decisions in the same matter, see section 321 subsection 1 first sentence of the Criminal Procedure Act. The Supreme Court rejected the appeal. The object of proof was limited and clear. The Court of Appeal had taken account of the allegations in the appeals and had not based its conviction on new grounds.

Reference:  HR-2010-1095-A, case no. 2010/467 and case no. 2010/470, criminal appeal against decision.

21 June 2010                Tax law. Deduction for transfer of capital. Taxation Act section 6-2 and section 13-1.

The case concerned the validity of the tax assessment of Telecomputing AS for the fiscal year 2001. The issue in the case was whether the company was entitled to a deduction in its income tax assessment for loss on capital transfers to an American subsidiary in excess of the subsidiary’s loan capacity. The Supreme Court held that the transfer of capital did not constitute an equity contribution, but must in its entirety be deemed to be a loan. That part which was not equity and subordinated loan capital must be deemed to be an ordinary unsecured claim. The Supreme Court held that section 13-1 of the Taxation Act did not provide a basis on which to reclassify the loan as an equity contribution. The company’s tax assessment for 2001 must therefore be set aside, and the appeal was rejected.

Reference:  HR-2010-1072-A, case no. 2010/81, civil appeal against judgment.

21 June 2010                Criminal law. Application of law. Duty of care. Penal Code section 238.

The case concerned an acquittal for breach of the Penal Code section 238 and whether the Court of Appeal had applied the law correctly. The defendant was convicted in the District Court pursuant to section 238 of the Penal Code for negligently having caused serious personal injury by the use of a motor vehicle. In the Court of Appeal, he was acquitted under dissent. The Supreme Court held that the Court of Appeal had misapplied the law on several key points. The Supreme Court noted that it is sufficient for conviction pursuant to section 238 that the defendant can be blamed for the car having got so much out of control that serious injury can occur. The Court of Appeal should also have considered whether the circumstances at the time required particular awareness from the defendant. The Supreme Court quashed the Court of Appeal’s ruling and the main proceedings.

Reference:  HR-2010-1068-A, case no. 2010/616, criminal appeal against judgment.

18 June 2010                Obtaining evidence extra-judicially. Illegal file sharing

The case concerned a petition to obtain evidence extra-judicially, more particularly whether an Internet service provider should be required to disclose the identity of a subscriber when it was argued that the subscriber by illegal file sharing or contributing to this had violated provisions of the Copyright Act, cf. the Disputes Act Chapter 28 in conjunction with section 22-3. The Supreme Court held that an order to disclose the subscriber’s identity was not in breach of the Disputes Act section 28-4, cf. section 28-3 subsection 4, cf. section 22-3 subsection 2. The Supreme Court also held that access to the evidence clearly satisfied the requirements of Article 8 (2) of the ECHR. The Supreme Court rejected the appeal.

Reference:  HR-2010-1060-A, case no. 2010/226, civil appeal against interlocutory order.

11 June 2010                Criminal procedure. Directions to the jury.

A man was for the second time convicted of sexually abusing children. The Supreme Court held that the jury should have been asked about the timing of the acts for which the defendant was convicted, as this pertained to the issue of guilt. This is because the time limits that apply pursuant to the Penal Code section 61 provide, among other things, that the punishment can only be increased on grounds of recurrence if the new act has been committed less than six years after the consummation of the previous sentence has ended. The Supreme Court quashed the Court of Appeal’s ruling and the appeal proceedings.

Reference:  HR-2010-1009-A, case no. 2010/435, criminal appeal against judgment.

11 June 2010                Venue. Insider trading

The case concerned determination of the correct venue in an indictment for insider trading. The Supreme Court held that it was natural to interpret the Criminal Procedure Act section 10 such that the Oslo District Court is the appropriate venue for cases concerning insider trading in financial instruments that are traded on the Oslo Stock Exchange. The place where the investor found himself when he entered into the sales or purchase orders was not decisive. Public policy also advocated this solution.

Reference:  HR-2010-1008-A, case no. 2010/457, criminal appeal against interlocutory order.

11 June 2010                Competence of Court of Appeal judge. Courts of Justice Act section 108. Criminal Procedure Act sections 171 and 172.

The case concerned first and foremost the competence of a court of appeal judge to adjudicate in a criminal case where he had already had dealings with the legal complex in connection with appeals against detention orders. The Supreme Court was in no doubt that the court of appeal judge was incompetent to sit and set aside the Court of Appeal’s judgment.

Reference:  HR-2010-1006-A, case no. 2010/436, criminal appeal against judgment.

10 June 2010                Contract Law. Right of first refusal. Agreement on valuation - arbitration.

The defendant took over a holiday property from his parents which was encumbered with a right of first refusal for his brother in the event of sale, such right to be exercised "at a reasonable value according to the same principles as apply for allodial rights”. If they did not agree on a price, the price was to be determined by a valuation committee "with binding effect." The Supreme Court held that the agreement constituted an agreement to arbitrate, and rejected therefore the appellant’s claim that that the valuation could be appealed to the courts. Two judges found that the agreement did not sufficiently clearly express that it was intended to bind the parties to arbitration. Pursuant to the agreement, the brother had to invoke the right of first refusal within four weeks after the offer of sale was made. The time limit had been extended, but had now been exceeded. The appellant brother took the burden of this risk when he chose to go to instigate legal proceedings.

Reference:  HR-2010-995-A, case no. 2010/189, civil appeal against judgment.

10 June 2010                Submission of an opinion from a law firm as evidence in court in a case concerning property tax. Public Administration Act section 18b, Freedom of Information Act section 15 subsection 2, Disputes Act section 22-5.

The Supreme Court held that the Court of Appeal's understanding of the Disputes Act section 22-5 was correct. There is no doubt that the prohibition against giving evidence for lawyers extends to the advice they give to clients. This applies equally to advice given to a public body, whether it emanates from a privately or publicly employed attorney. There was thus no error in the Court of Appeal’s application of the law with regard to the exceptions in the Public Administration Act section 18b subsection 2 and the Freedom of Information Act section 15 subsection 2. The Supreme Court also agreed with the Court of Appeal that the principles of administrative law concerning reasons also apply to the decisions of the complaints board. The appeal was rejected.

Reference:  HR-2010-994-A, case no. 2010/142, civil appeal against interlocutory order.

9 June 2010                Sentencing. Gross human trafficking for prostitution. Penal Code section 224 subsection 4.

The case concerned sentencing for gross human trafficking for prostitution. Two Albanian men were sentenced to 2 years and 10 months and 3 years and 3 months imprisonment respectively, for having brought an Albanian woman under 18 years to Norway on false papers and then having forced her into prostitution. The Supreme Court agreed with the sentence ordered by the Court of Appeal and rejected the appeals.

Reference:  HR-2010-982-A, case no. 2010/406, criminal appeal against judgment.

8 June 2010                Civil procedure. Reopening of case. Ten year time limit. Disputes Act section 31-6 subsection 2. Civil Procedure Act 1915 section 408 subsection 2.

The case concerned a petition to reopen a Court of Appeal judgment from1998. The question before the Supreme Court was whether the procedural conditions to deal with the petition on its merits were satisfied, more particularly whether the ten year time limit in section 31-6 subsection 2 of the Disputes Act applied in circumstances where the absolute time limit of five years pursuant to the now repealed Civil Procedure Act 1915 section 408 subsection 2 had expired when the Disputes Act entered into force on 1 January 2008. The Supreme Court sitting in chambers came to the opposite conclusion to the conclusion reached by the Appeals Committee in the decision published in Rt-2009-1017. Although the wording of the transitional provision in Regulation of 26 January 2007 no. 88 indicated that the time limit in the Disputes Act should apply, this interpretation of the Regulation must be viewed in light of the prohibition against the retroactive effects of legislation in Article 97 of the Constitution, which had not been discussed during the preparatory stages of the Disputes Act or the Regulation. There was therefore no basis on which to conclude that the legislature had intended to interfere with established rights of the kind in question here. The time limit in the Civil Procedure Act 1915 section 408 subsection 2 was applicable, and the petition was rejected on the grounds that it was submitted out of time.

Reference:  HR-2010-969-A, case no. 2009/1985, civil appeal against interlocutory order

7 June 2010                Defects in property. Price reduction – repudiation. Sale of Property Act section 3-7, section 3-8, section 3-9, section 4-12 and section 4-13.

A dwelling had such substantial defects that the purchaser repudiated the contract. Repair costs would amount to about 35 percent of the selling price, but the Supreme Court held that the question of the right to repudiate must be assessed by reference to several factors. These factors included, among other things, the disadvantages that the repair work would entail, the buyer's legitimate expectations of the property and the seller’s circumstances. The buyer had expressed his desire to purchase a trouble-free property and had submitted a complaint seven months after the purchase. The seller could be blamed for having given incomplete and / or inaccurate information on several key factors relating to the property.

Reference:  HR-2010-967-A, case no. 2010/36, civil appeal against judgment.

4 June 2010                Validity of will. Incompetent witnesses. Inheritance Act section 61 subsection 2, third sentence.

The case concerned the validity of a will and the question before the Supreme Court was whether the witnesses to the will were incompetent and, if so, the consequences this would have on the validity of the will, see the Inheritance Act section 61 subsection 2. The Supreme Court held that both witnesses were incompetent to witness the will, and the question whether the will was valid therefore depended on whether the exception in the Inheritance Act section 61 second paragraph, third sentence applied. The Supreme Court held that in order to satisfy the purpose of the provision, it had to be understood such that a testamentary disposition shall not be invalidated if in the particular case it is proven on a clear balance of probabilities that the witnesses’ professional relationship to the beneficiary had not influenced the content of the will. Based on the information that was available, the Supreme Court found it clear that the fact that the witnesses were members of the parish council could not have affected the content of the testamentary disposition. The will was therefore valid.

Reference:  HR-2010-959-A, case no. 2009/1922, civil appeal against judgment.

3 June 2010                Driving of small boat under the influence of alcohol.

The issue in the case was whether the prohibition in the Leisure and Small Boats Act section 33 against driving small boats under the influence of alcohol shall apply when a motor boat engine cannot be used because it has run out of fuel. The defendant submitted that he drank 10 to 12 pints of beer after the boat's engine stopped and while he waited for the rescue services, who arrived one and a half hours later. The Supreme Court held that the prohibition in the Small Boats Act section 33 applied even if the engine at the time was empty of fuel. The Supreme Court also agreed with the Court of Appeal that the defendant had to be considered to be the master of the boat even after the engine had run out of fuel. The appeal was rejected.

Reference:  HR-2010-952-A, case no. 2010/293, criminal appeal against judgment.

2 June 2010                Preventive detention. Sexual offences. Penal Code section 39c no. 1.

The issue in the case was whether to make a preventive detention order pursuant to the Penal Code section 39c no. 1 against a defendant who had committed a series of serious sexual crimes. On the basis of expert statements, the Supreme Court held that there was a risk of recurrence and that this risk would remain also after a prison sentence had been served. The Supreme Court agreed with the Court of Appeal that the conditions for preventive detention were met and that a preventive detention order should be imposed. The time frame for detention, however, was reduced to 12 years, which was the same as the alternative prison sentence would have been.

Reference:  HR-2010-945-A, case no. 2010/298, criminal appeal against judgment.

2 June 2010                Sentencing. Attempted sexual act. Sleeping female passenger. Penal Code section 200 subsection 1, cf. section 49.

The case concerned sentencing of a bus driver following conviction for attempted sexual acts perpetrated against a sleeping female passenger. The Supreme Court emphasized that although no sexual act had been accomplished, the defendant’s undressing of the passenger was mortifying in itself. In sentencing, the Supreme Court held that it was important to have regard to the seriousness of depriving passengers’ confidence in public transport employees. The Supreme Court found that 120 days' imprisonment was an appropriate penalty and rejected the defendant’s appeal against sentence.

Reference:  HR-2010-944-A, case no. 2010/314, criminal appeal against judgment.

2 June 2010                Sentencing. Sexual intercourse with child under 14 years. Similarity in age. Community service. Compensation for non-economic loss. Penal Code section 195.

The case concerned sentencing for sexual intercourse with a child under 14 years, cf. Penal Code section 195 subsection 2 (a) and, in particular, the relevance of the fact that the defendants and the victim were approximately equal in age, cf. the provision in section 195 subsection 4. The Supreme Court found that there were "special circumstances" that justified the imposition of punishment. The defendants had cynically exploited the victim by consciously trying to break down her resistance by encouraging her to drink large amounts of alcohol. However, the Supreme Court reduced both the sentences and the amount of compensation ordered by the lower court, especially in light of the defendants’ young age . The term of the community sevice order was fixed at 74 and 50 hours respectively, and the defendants were ordered to pay compensation to the victim in the amount of NOK 30,000.

Reference:  HR-2010-943-A, case no. 2010/311, criminal appeal against judgment.

1 June 2010                Recourse. Limitation. Limitation Act section 8 first sentence. Sale of Property Act section 4-16.

The issue in the case was whether a claim for recourse against the previous owner for defects following the transfer of real property was statute barred. More specifically, the question was whether the time limit in the Limitation Act section 8 first sentence shall apply in circumstances where the seller has accepted a claim from the buyer where the buyer could have made, but did not make, a direct claim against the former seller pursuant to the Sale of Property Act section 4-16. Like the District Court and the Court of Appeal, the Supreme Court held that the claim was statute barred and rejected the appeal. Dissent 4-1.

Reference:  HR-2010-940-A, case no. 2009/1853, civil appeal against judgment.

1 June 2010                Criminal law. Procedure. Application of law. Penal Code section 162. Drug offences.

The defendants were convicted in the Court of Appeal and given long prison sentences for violations of the Penal Code section 162 subsection 1 and subsection 3 first sentence, cf. subsection 5 (drug offences). The case before the Supreme Court concerned partly an appeal against procedure on the grounds that the case was not sufficiently elucidated, and partly an appeal against the application of law in relation to the question of guilt due to a record of part of the presiding judge’s summing up to the jury. The defendants had not been made aware of a memorandum from an inspection of trailers undertaken in cooperation between the police and the customs authorities until after judgment in the Court of Appeal had been pronounced. Following a concrete assessment of the facts, the Supreme Court held that there was a reasonable possibility that the error could have affected the verdict for one of the defendants and the Supreme Court quashed the Court of Appeal ruling and the appeal proceedings for his part. The Supreme Court also quashed the Court of Appeal's ruling and the appeal proceedings for two of the other defendants in so far as this concerned their conviction pursuant to Penal Code section 162 subsection 3, first sentence. The judge’s summing up did not make clear that intent with respect to the nature of the drug was required for a conviction, and that the burden of proving intent with respect to the nature of the drug lies with the prosecution.

Reference:  HR-2010-939-A, case no. 2009/2103 and case no. 2009/2107, criminal appeals against judgment.

 

The issue in the case was whether a local authority nursing home had the right to change bedding, body wash and change bandages on a patient against his will. The essential question was whether a patient by accepting a place at a nursing home also accepts the institution's general requirements regarding personal hygiene and that these may be implemented by the nursing staff, or whether a patient, with authority in the Patients Rights Act section 4-1, may lawfully refuse to be bathed and nursed - even when this leads to such discomfort for the employees that it is irreconcilable with the requirements of a safe working environment. The Supreme Court came to the same conclusion as the Court of Appeal and rejected the patient's appeal.

Reference:  HR-2010-902-A, case no. 2010/6, civil appeal against judgment.

12 May 2010                Procedure. Judicial examination of victim. Article 6(3)(d) of the ECHR.

The case concerned an appeal against the procedure in the Court of Appeal, more particularly whether it was wrong to use judicial examination of the victim during the preparatory stages of the appeal before the Court of Appeal, see Article 6(3)(d) of the ECHR. The Supreme Court held that the error in the District Court’s verdict had been corrected by a new judicial examination and that there were otherwise no material errors either in the way in which the examination had been performed or in the way it was presented to the jury. In these circumstances, there was nothing to indicate that the appeal court's verdict should be set aside. Appeal rejected.

Reference:  HR-2010-818-A, case no. 2010/284, criminal appeal against judgment.

12 May 2010                The principles for leave to appeal in the Court of Appeal. Criminal Procedure Act section 321 subsection 2.

The issue in the case was whether the Court of Appeal in the determination of an application for leave to appeal pursuant to section 321 subsection 2 of the Criminal Procedure Act had gone beyond the scope of its powers pursuant to that provision. The Court of Appeal had departed from the impression that the District Court had established on the basis of the evidence submitted directly to it. The Supreme Court held that when the Court of Appeal, on the basis of documents, disregarded evidence that was deemed by the District Court to be crucial and instead established a new basis for the conviction, it had gone beyond a judicial review of the District Court’s judgment, see the case reported in Rt-2008-1764 paragraph 51. The independent establishment of a new basis for conviction constituted a review of the evidence in relation to the question of guilt, which falls outside the scope of the procedure established in the Criminal Procedure Act for review of the appealed decision, see also sections 322 and 333. The Supreme Court quashed the decision of the Court of Appeal.

Reference:  HR-2010-817-A, case no. 2010/248, criminal appeal against decision.

12 May 2010                Confusion with Red Cross emblem. Penal Code section 328 subsection 2 (c). Geneva Convention 1949.

The issue in the case was whether the logo of a dental clinic could ”easily be confused” with the Red Cross emblem and therefore represent a violation of section 328 subsection 2 (c) of the Penal Code. The Supreme Court stated that considerable weight had to be given to the obligations in the Geneva Convention of 1949 when considering whether there could be any confusion. It was not sufficient to consider whether confusion easily could arise under normal circumstances and at close range. It was also necessary to consider what impression the logo would give at some distance and under some pressure. The Supreme Court held that the logo could be confused with the Red Cross emblem, and quashed the judgment and proceedings before the Court of Appeal.

Reference:  HR-2010-816-A, case no. 2010/253, criminal appeal against judgment.

12 May 2010                Administration of Ecclesiastical Property Fund. Article 106 of the Constitution on «ecclesiastical benefices». Instructions issued by Royal Decree of 1 September 2007 no. 1060.

The issue in the case was whether an instruction laid down by Royal Decree was in violation of Article 106 of the Constitution in so far as the instruction applies to the Administration of Ecclesiastical Property Fund (OVF). The provisions of Article 106 of the Constitution are relevant to the administration and application of OVF. The instructions in the Royal Decree provide that the rent in leases of property for residential purposes owned by the state or state governed businesses shall be subject to regulation and that the leases can be redeemed on conditions that are more advantageous for the lessee than would otherwise be the case pursuant to the lease and the Ground Rent Act. Nine of the justices of the Supreme Court (sitting in plenary) affirmed the judgment of the District Court and held that the instructions given in the Royal Decree violated the Constitution, and that it was invalid in so far as it applied to OVF. Dissent.

Reference:  HR-2010-807-P, case no. 2010/44, civil appeal against judgment.

11 May 2010                Regulation of ground rent in a forward lease. Ground Rent Act section 15 subsection 2 no. 2 cf. subsection 1.

The case concerns regulation of the ground rent in a forward lease. The issue in the case was whether the rent under the forward lease should be regulated by reference to something else than the change in monetary value, which is the normal rule under the Ground Lease Act section 15 subsection 2 no. 2 cf. subsection 1. The Supreme Court held that there was ”no doubt” that the parties in the regulation clauses in the four forward leases had agreed to something different to the normal statutory rule and that an upward regulation of the rent could be made on the basis of the value of the site. The decision of the Court of Appeal was based on an erroneous application of the law and must be set aside.

Reference:  HR-2010-812-A, case no. 2009/1682, civil appeal against judgment.

11 May 2010                Tax law. Personal income. Internal partnership.

The case concerns the extent to which payments from an internal partnership shall be deemed to be personal income as reward for the work contribution made by silent partners to the partnership, cf. Taxation Act section 12-2 f and Rt-2009-105. The Supreme Court came to the same conclusion as the lower courts and held that the decision of the tax office to reclassify the income from capital income to personal income was valid. The Supreme Court rejected the appeal.

Reference:  HR-2010-809-A, case no. 2009/1804, civil appeal against judgment.

7 May 2010                Sentencing. Sexual behaviour. Penal Code section 200 subsection 1.

The case concerns sentencing for sexual acts committed by a lawyer during a consultation with a female client. The Supreme Court held, like the Court of Appeal, that the acts bordered on sexual intercourse and the stricter penal provision in section 193 subsection 1. An aggravating factor was that the defendant had abused the victim’s trust. The Supreme Court held that a 120 day prison sentence was not too strict and rejected the appeal. Two Supreme Court justices commented that when determining the sentence for an offense committed by a lawyer, no account should be taken of whether his or her practice certificate had been revoked pursuant to the Courts of Justice Act.

Reference:  HR-2010-776-A, case no. 2010/94, criminal appeal against judgment.

16 April 2010                 Drug list section 2 second paragraph. Fenazepam.

The question in the case was whether benzodiazepine fenazepam is regarded as a drug pursuant to the so-called derivative rule in the Regulations of 30 June 1978 no. 8 on drugs, etc. (drug list) section 2 second paragraph. The Supreme Court held that fenazepam would be a drug in the terms of the Regulation if the meaning of the term “derivative” only requires equality between fenazepam and a substance which is listed on the drug list. However, there was not sufficient support for this interpretation in the wording of the Regulation to apply it in criminal proceedings, see Article 7 of the ECHR. There was not a sufficiently clear authority to impose criminal punishment, and the defendants were acquitted.

Reference:  HR-2010-630-A, case no. 2010/99, criminal appeal against judgment.

15 April 2010                 Criminal law. Preventive detention. Petition for parole. Competence of judge. Violation of Article 5 (4) of the ECHR. Courts of Justice Act section 108.

The case concerns an appeal against conviction where the Court of Appeal rejected a petition for parole from preventive detention and the question whether the appeal judge was incompetent to hear the case on the grounds of partiality. It also concerns whether the time taken to deal with the case was a violation of Article 5 (4) of the ECHR . The Supreme Court rejected the appeal in so far as it related to the competence of the appeal judge. The Supreme Court concluded that the factual basis for the decision on the issue of parole was now different, two years and three months after the appeal judge had participated in the decision as to whether to grant leave to appeal. The Supreme Court allowed the appeal regarding the time taken to deal with the case. One year had passed since the appellant was first entitled to apply for parole. Although the delay was largely due to the fact that the first conviction in the District Court had been set aside because of procedural errors, the Supreme Court found that the case had not been dealt with quickly enough after this. However, the appellant had not suffered material loss and his claim for redress for violation of the Convention was rejected.

Reference:  HR-2010-624-A, case no. 2010/375, criminal appeal against judgment.

15 April 2010                 Criminal law. Naked photographs. Penal Code section 201 (c).

A father had taken naked photographs of his 11-year-old son, and the issue in the case was whether this constituted sexually offensive or other indecent behaviour pursuant to the Penal Code section 201 (c). The Supreme Court held that the delimitation of what is criminal here depends on a legal standard, the content of which changes with the times and with developments in society. The Supreme Court emphasized that there was no sexual motive in the present case, that the son had not experienced the event as something negative and that the photographs were taken on his initiative. The defendant was acquitted.

Reference:  HR-2010-623-A, case no. 2010/267, criminal appeal against judgment.

14 April 2010                Criminal procedure. Right not to testify against relatives.

The case concerns an appeal against the Court of Appeal’s decision to disallow a petition to set aside the District Court’s verdict because of a procedural error which was submitted during the appeal hearing. The question was whether there is an error where the accused is not made aware of his right in the Criminal Procedure Act section 122 not to testify against accused relatives, but only of his general right in the Criminal Procedure Act section 232 and section 90 not to testify. The Supreme Court held that the Court of Appeal could have set aside the District Court’s verdict, but that there was no procedural error in the District Court’s verdict. It was therefore correct of the Court of Appeal to reject the petition to set aside. The appeal before the Supreme Court was rejected.

Reference:  HR-2010-612-A, case no. 2010/250, criminal appeal against interlocutory order.

12 April 2010                Sentencing. Small quantity of hashish. Conditional prison sentence. Penal Code section 162 subsection 1 cf. section 49.

The defendant had tried to sell 2.28 grams of hashish to two police officers. Both the District Court and the Court of Appeal recalled that criminals who abuse the system of asylum in order to sell drugs have become a large and growing social problem, and that general preventive considerations are particularly important in these cases. The Supreme Court held that the penalty of 18 days' imprisonment should be made conditional. In the circumstances of the present case, weight could not be attached to the fact that the defendant was an asylum seeker. The Court held, among other things, that no inference could be drawn from the conviction that he had sought asylum in Norway for the purpose of selling drugs for profit. Dissent 4-1.

Reference:  HR-2010-596-A, case no. 2010/310, criminal appeal against judgment.

8 April 2010                Criminal law. Insurance fraud. Penal Code section 272 subsection 1.

Three men were found guilty of fraud by the Court of Appeal for having reported a pleasure boat, which was insured for NOK 1 million, stolen and for having submitted an insurance claim to the insurance company. One of the men had played a subordinate role and argued that he should be given a lower sentence than the seven months’ prison sentence ordered by the Court of Appeal. The Supreme Court held that the sentence was appropriate considering his important contribution to the implementation of the well-planned fraud, the amount of money involved, and his changing explanations that severely hampered the investigation. The appeal was rejected.

Reference:  HR-2010-587-A, case no. 2010/56, criminal appeal against judgment.

8 April 2010                Occupational Injury Insurance Act section 5 subsection 3.

The case concerns the interpretation of section 5 subsection 3 of the Occupational Injury Insurance Act. The question before the Supreme Court was whether an employee who goes into business as self-employed "is no longer working" in the sense of the provision, and thus covered by his last employer's occupational injury insurance. The Supreme Court attached decisive weight to the main provisions in section 1 and section 10 of the Act, together with central statements in the preparatory works, and held that these indicate that the aim of the legislator was to establish an objective compensation program for employees in the event of occupational injuries and illnesses. The wording of the Act that the employee "is no longer working” had to be understood to mean that he or she is no longer working as an employee. The appeal was rejected.

Reference:  HR-2010-586-A, case no. 2009/1942, civil appeal against judgment.

8 April 2010                 Sentencing. Amphetamine. Import of amphetamine. Penal Code section 162 subsection 1 and 3.

The case concerns sentencing of three persons who were convicted for their various roles in the importation of approximately  24 kg of amphetamine. The Supreme Court increased the sentence for two of the defendants. A, who was held to be the principal, was also convicted of gross dealing with stolen goods. After taking account of his confession, the Supreme Court increased the term of the prison sentence he was given in the Court of Appeal by one year to 9 years and 6 months. B had participated in receiving and storing the consignments of amphetamine, but did not play a central role in the organization. After taking account of his confession, the Supreme Court increased the term of the prison sentence he was given by the Court of Appeal by one year to 8 years. C was a courier and had been sentenced to 9 years imprisonment in the Court of Appeal. His appeal against sentence was rejected. Dissent 4-1.

Reference:  HR-2010-583-A, case no. 2009/1980, criminal appeal against judgment.

7 April 2010                 Sentencing. Undeclared work. VAT evasion and breach of the Tax Assessment Act

The case concerned sentencing following conviction for complicity to VAT evasion and violation of the Tax Assessment Act for undeclared work. The defendant knowingly gave false information to the tax authorities when they inquired about certain construction work, and the total amount of the tax evasion was NOK 92,785. The Supreme Court held that these circumstances justified an unconditional prison sentence in light of the strong general preventive considerations. The defendant's family-related factors were not strong enough to justify the imposition of a community service order.

Reference:  HR-2010-572-A, case no. 2009/1953, criminal appeal against judgment.

7 April 2010                 Employer’s right to amend a free pension scheme.

The case concerns the right of an employer to unilaterally change the employees' pension plan from a defined benefit plan to a defined contribution plan. The Supreme Court referred to previous case law which entitled the employer to unilaterally change collective pension schemes. There were no indications in the present case that the employees had individual contractual rights or other legal claims to retain a defined benefit pension plan. The Supreme Court found in favour of the employer.

Reference:  HR-2010-571-A, case no. 2009/1724, civil appeal against judgment.

7 April 2010                 Civil procedure. Legal interest. Disputes Act section 1-3.

The issue in the case was whether the trustee of a bond is entitled to represent the bondholders in its own name in litigation concerning the bondholders’ claims against the borrower. The Supreme Court held that Norsk Tillitsmann ASA (the Norwegian Trustee ASA) had a sufficient connection to the claim to be entitled sue in its own name for the bondholders’ claims. The Supreme Court found in favour of the appellant.

Reference:  HR-2010-568-A, case no. 2009/1909, civil appeal against interlocutory order

7 April 2010                 Petition to reopen a case following a judgment of the European Court of Human Rights. Defamation. Disputes Act section 31-4 (b).

The case concerns a petition to reopen a civil case between two private parties following a judgment of the European Court of Human Rights in the same case, see the Disputes Act section 31-4 (b). The Supreme Court held that the compensation ordered by the European Court of Human Rights was intended to give full reparation for the violation to the extent this was possible by payment of a sum of money, and there were therefore no further violations that could provide a basis for reopening the case. The petition to reopen the case was rejected.

Reference:  HR-2010-564-A, case no. 2009/1544, civil appeal, petition for reopening of Supreme Court case no. HR-2005-1949-A .

6 April 2010                Disclosure of environmental information pursuant to the Environmental Information Act.

The case concerns a claim for disclosure of comprehensive information about forest areas in the Oslo Forest. The Supreme Court held that the information had to be disclosed. The existence and location of forests with exceptional species diversity or particular environmental qualities, which is typical in old forests, constitutes environmental information pursuant to the Environmental Information Act section 2. The public's right to environmental information pursuant to section 16 of the Act includes the right of access to a company's input factors. The information was not exempt as operating or business secrets pursuant to the Environmental Information Act section 17.

Reference:  HR-2010-562-A, case no. 2009/1674, civil appeal against judgment.

25 March 2010                 Revocation of taxi driver’s license. Occupational Transport Act section 29 cf. section 4, cf. Occupational Transport Regulations section 4 cf. section 6.

The case concerned the validity of a decision to revoke a taxi driver’s license pursuant to the Occupational Transport Act section 29 cf. section 4, cf. the Occupational Transport Regulations section 4 cf. section 6. The Supreme Court held that no assessment of whether the license ought to be revoked had been made, as required by section 29 subsection 1 of the Act. Revocation of the license appeared to have been an automatic consequence of the appellant being punished for a "serious" offence. This failure to assess whether the license ought to be revoked could have affected the outcome of the case, and the Supreme Court held that the decision of the complaints board to revoke the taxi driver’s license was invalid.

Reference:  HR-2010-528-A, case no. 2009/1874, civil appeal against judgment.

25 March 2010                 Scope of protection for performing artists. Right of quotation. Copyright Act section 42 and section 22.

In 2007, the Norwegian Broadcasting Company (NRK) broadcasted excerpts from the film ”Brent av frost” (Burnt by Frost) in which the actress Gørild Mauseth played a major role. The case before the Supreme Court concerned the scope of protection afforded to performing artists pursuant to section 42 of the Copyright Act, and whether the broadcast was protected by the right to quote from publicised works in section 22 of the Act. The Supreme Court held that NRK had quoted from the film to a greater extent than intended by the provision, and that the broadcast was therefore not protected by the right of quotation. The Supreme Court held that NRK’s broadcast of the film excerpts was unlawful and affirmed the judgment of the District Court. Dissent 4-1.

Reference:  HR-2010-527-A, case no. 2009/1905, civil appeal against judgment.

19 March 2010                Compulsory psychiatric care. Psychosis. Substance abuse. Impunity. Penal Code section 44 and section 39.

The case concerns an appeal against an order for transfer to compulsory psychiatric care pursuant to the Penal Code section 39. It concerns in particular the question whether a substance abuse related psychosis fell within the rule on impunity in the Penal Code section 44. The Supreme Court concurred with the view of the Court of Appeal that the statutory conditions for transfer to compulsory psychiatric care were fulfilled and rejected the appeal.

Reference:  HR-2010-488-A, case no. 2009/1981, criminal appeal against judgment.

16 March 2010                 Employment law. Transfer of undertaking. Employment Act section 16-1.

The issue in the case was whether the change of supplier of ground handling services at Bardufoss Airport represented a transfer of undertaking pursuant to section 16-1 of the Employment Act. The Supreme Court held that the change of supplier of ground handling services from SGS to Bardufoss Flyservice AS did represent a transfer of undertaking. The respondents were therefore employed by Bardufoss Flyservice AS with the rights and obligations in their employment contracts with SGS. The decision was based on court practice, particularly the practice of the European Court of Justice, where the scope of the provisions relating to transfer of undertakings was somewhat wider than might be deemed to follow from a literal interpretation of the term. The particular circumstances of the case fell within the scope of the term according to this practice, although they were not at its core. Appeal rejected.

Reference:  HR-2010-473-A, case no. 2009/1618, civil appeal against judgment.

10 March 2010                 Pollution. Obligated party pursuant to the Pollution Control Act section 51.

The pollution control authorities had exercised their powers pursuant to section 51 of the Pollution Control Act to order a parent company to undertake or pay for a pollution survey of discontinued paint production in the townships of Florvåg and Bakarvågen. The Supreme Court held that the words ”anyone who possesses, does or initiates anything” are vague, but that they were carefully chosen to enable the pollution control authorities to choose the obligated party based on the circumstances of the particular case in question. Appeal rejected.

Reference:  HR-2010-443-A, case no. 2009/896, civil appeal against judgment.

10 March 2010                Civil procedure. Appeal proceedings adjourned.

The issue in the case was whether the provisions of the Disputes Act on challenge to an in-court settlement by statement of claim to the District Court also apply to an in-court settlement concluded pursuant to the provisions of the now repealed Criminal Procedure Act 1915 in circumstances where the time limit in the Civil Procedure Act for appeal against an in-court settlement had lapsed before the Disputes Act entered into force. The Supreme Court stayed the appeal proceedings in case no. 2009/1351 until a final and binding decision in case no. 2009/1985 has been passed.

Reference:  HR-2010-442-F, case no. 2009/1351, civil appeal against interlocutory order.

10 March 2010                 Driving ban. Repeated drink driving. Five year time limit. Road Traffic Act section 33 no. 1 subsection 3, cf. subsection 6.

The case concerns determination of the duration of a driving ban following repeated drink driving. The defendant was arrested for drink driving three days before five years had passed since he was last convicted of drink driving. He alleged that there were “extraordinary circumstances” which justified making an exception to the minimum ban in section 33 no. 1 of the Road Traffic Act because the reason why the new drink driving offence fell within the five year rule was that the prosecution had taken such a long time to bring the previous drink driving offence to trial. The Supreme Court held that the exception in subsection 6 would no longer function as a “safety valve” if this was the case. However, the Supreme Court could not rule out the possibility that a delay in bringing a case to trial might in exceptional cases constitute "extraordinary circumstances” pursuant to subsection 6, but in that case the delay would have to be longer than in the present case. The Supreme Court increased the ban from 4 years and 6 months to a permanent ban.

Reference:  HR-2010-441-A, case no. 2009/1939, criminal appeal against judgment.

9 March 2010                 Competence of Supreme Court justice. Membership of organization. Courts of Justice Act section 108.

In appeal case no. 2009/1674 between Løvenskiold-Vækerø with NORSKOG and the Norwegian Forest Owner’s Association as interveners, and Friends of the Earth Norway in Oslo and Akershus, the appellant questioned the competence of Mrs Justice Coward to participate in hearing the case on the grounds of partiality. Mrs Justice Coward is a member of Friends of the Earth Norway, although she has never held an office or actively involved herself in the work of the organization. A majority of the Supreme Court held that although a member might not share the views of the organization in all matters, he or she would easily identify with the organization. The present case concerned the right to environmental information and in connection with the appeal proceedings before the Supreme Court Friends of the Earth had described the information as a precondition for the organization to be able to fulfil its role. In these circumstances, it was very doubtful whether a judge who was a member of the organization ought to participate in hearing the case. Mrs Justice Coward was held to be incompetent on the grounds of partiality. Dissent 3-2.

Reference:  HR-2010-427-A, case no. 2009/1674, civil appeal against judgment.

9 March 2010                Appointment of expert.

Civil engineer Tormod Bønes and professor Asbjørg S. Christophersen were appointed as experts with a mandate as described in the judgment.

Reference:  HR-2010-426-F, case no. 2010/99, criminal appeal against judgment.

5 March 2010                 Damages. Invalid local authority decision. Unlawful exercise of authority. Planning and Building Act (1985) section 93. Damages Act section 2-1 no. 1 first sentence.

The issue in the case was whether a local authority was liable in damages for an unlawful decision to refuse change of user pursuant to section 93 subsection 1(c) of the Planning and Building Act 1985. The local authority’s decision was declared unlawful and ultra vires pursuant to a binding court judgment, and the main issue before the Supreme Court was the degree of liability of the local authority for the unauthorized exercise of public authority in planning and building matters. The Supreme Court acquitted the local authority. There was no basis for establishing strict liability for the local authority in planning and building matters. The position taken by the local authority when refusing to grant consent to a change of user was perfectly justifiable from an academic point of view, and there was therefore no grounds for compensation pursuant to the provisions on vicarious liability in the Damages Act section 2-1 no. 1.

Reference:  HR-2010-412-A, case no. 2009/1456, civil appeal against judgment.

5 March 2010                Sentencing. Import of drugs. Failed attempt. Penal Code section 162 subsection 1, cf. subsection 3 first sentence, cf. section 49.

The case concerns sentencing for a failed attempt to import drugs. The defendant was convicted in the Court of Appeal and sentenced to two years and three months imprisonment for the import of cocaine. The attempt ”failed” because the substance he imported did not contain drugs. The Supreme Court held that the Court of Appeal had passed an appropriate sentence. The defendant’s subjective guilt was as strong as for the consummated offence. He was highly motivated to accomplish the offence and was well prepared. He confessed only a few days before the trial before the Court of Appeal and the confession could not be given particular weight. Appeal rejected.

Reference:  HR-2010-410-A, case no. 2009/2058, criminal appeal against judgment.

4 March 2010                Reasons for refusal of consent to appeal pursuant to section 36-10 subsection 3 of the Disputes Act.

The Supreme Court referred to its decision on the same matter in the case reported in HR-2010-404-A and rejected the appeal. In that case, the Supreme Court held that there is no general duty to give reasons for the decision to refuse consent to the parent’s appeal pursuant to section 36-10 subsection 3 of the Disputes Act. There were no special circumstances in the present case that necessitated a reasoned decision.

Reference:  HR-2010-405-A, case no. 2009/1001, civil appeal against decision.

4 March 2010                Civil procedure. Reasons for decision. Disputes Act section 36-10. ECHR Article 6 no. 1.

The issue in the case was whether the Court of Appeal was required to give a reason for its decision pursuant to section 36-10 subsection 3 of the Disputes Act refusing consent to appeal in a case concerning compulsory measures under the Child Welfare Act. The Supreme Court held that there is no general rule that such decisions must be accompanied by a reason. An important principle behind section 36-10 subsection 3 of the Disputes Act is that legal review shall be undertaken as quickly as possible in the interests of the child. The procedure in the county committees and the District Court is very thorough and it is therefore sufficient for the Court of Appeal to record that none of the conditions for leave to appeal are satisfied. Appeal rejected.

Reference:  HR-2010-404-A, case no. 2009/1464, civil appeal against decision.

2 March 2010                Right of privacy. Local history book. Penal Code section 390 and the Damages Act section 3-6.

The case concerns violation of the right of privacy in connection with the publication of a local history book, see the Penal Code section 390 and the Damages Act section 3-6. The Supreme Court held that the book contained descriptions of personal and domestic issues, but that the right of privacy had not been violated. References to individuals and personal details are natural elements in a local historical work. A description of someone that gives an overall unfavorable impression is not necessarily unlawful. The Supreme Court held that historians and authors of autobiographies have a certain degree of freedom to describe the persons who have been involved in their lives and that the content and form of the book was within the bounds of this freedom. The descriptions were therefore not unlawful.

Reference:  HR-2010-390-A, case no. 2009/1047, civil appeal against judgment.

19 February 2010                 Compensation for VAT. Compensation for VAT Act section 2 subsection 1(c).

The case concerns the validity of a decision of the Norwegian Tax Administration affirming the refusal of an application from Stiftelsen Utleieboliger in Alta for compensation for VAT pursuant to the Compensation for VAT Act section 2 subsection 1(c), which entitles “private or unincorporated non-profit organizations that provide health services, educational services or social services to local or county authorities pursuant to law” to compensation for output VAT. The Supreme Court held that the term ”provide” must be understood to include the situation where services are supplied in cooperation with another body. Reasons of flexibility and quality and the ability to provide locally adjusted services justified granting compensation in circumstances where a local authority joins forces with private bodies to provide various - and individually significant – elements in a statutory catalogue of services. The Supreme Court rejected the appeal. Dissent 4-1.

Reference:  HR-2010-313-A, case no. 2009/1434, civil appeal against judgment.

19 February 2010                Competence of three Supreme Court justices. Courts of Justice Act section 106 and section 108.

The case concerns the competence of three Supreme Court justices to hear the appeal in appeal case no. 2010/44 The State c/o the Ministry of Government Administration, Reform and Church Affairs v. KA The Church employer- and interest group, which is to be heard by the Supreme Court sitting in plenary session. The case concerns the validity of Royal Decree of 14 September 2007 no. 1060 regarding the redemption and regulation of ground rent for leasehold residential properties on land owned by the state or state entities. Mrs Justice Coward, Mrs Justice Bruzelius and Mrs Justice Webster were deemed incompetent to sit on the grounds of partiality.

Reference:  HR-2010-311-P, case no. 2010/44, civil appeal against judgment.

18 February 2010      Law applicable to lawyers. Disciplinary Council for lawyers. Standard of proof. Partiality. Courts of Justice Act section 224 and section 227 subsection 2. Regulation for lawyers Chapter 12 and Chapter 5.

The case concerns the validity of a decision of the Disciplinary Council for lawyers and, in particular, the standard of proof that applies in order for the Council to find that a lawyer has acted in violation of the code of conduct for lawyers. The case also concerned the possible partiality of one of the members of the Disciplinary Council and the implications this should have on the Council’s decision. The allegation of partiality did not render the Disciplinary Council’s decision invalid. However, the Supreme Court held that there is no established practice that the standard of proof for breach of the code of conduct is a qualified standard (beyond reasonable doubt). The Supreme Court therefore quashed the judgment of the Court of Appeal.

Reference:  HR-2010-306-A, case no. 2009/428, civil appeal against judgment.

18 February 2010      Child law. Residence. Rights of access. Parental responsibility. Children Act section 42 and section 35, cf. section 48.

The case concerned the decision about where the parties’ seven year old daughter should live, who should have parental responsibility and whether the parent with whom the daughter did not live was entitled to access. The interests of maximum parental contact suggested that the child should live with her father, but the child herself wanted to live with her mother and the experts were also of the view that there were risks involved in moving her. The Supreme Court attached weight to the best interests of the child at the current time and decided that the child should live with her mother and that the father should have access rights. The level of conflict between the parents, who had never lived together, was high and the mother was awarded sole parental responsibility.

Reference:  HR-2010-304-A, case no. 2009/1628, civil appeal against judgment.

18 February 2010                 Employment law. Dismissal. Age discrimination. Seafarers Act. Directive 2000/78/EF

The issue in the case was whether a dismissal on the grounds of age pursuant to section 19 no. 1 subsection 6 of the Seafarer’s Act was a violation of the prohibition against discrimination in section 33, cf. section 33 B of the Seafarer’s Act. The Supreme Court commented that it was questionable, on the basis of a proportionality assessment, whether the special retirement age of 62 years for seamen was compatible with the EU Directive 2000/78/EF . However, there was a wide margin of discretion in this area, and the balancing of conflicting interests was therefore a matter that should principally be undertaken by the legislator. The Supreme Court recalled that the legislator had consciously decided that the retirement age for seamen should be 62 years and that the retirement age shall apply for seamen in general, i.e. in domestic and foreign trade. Since Norway was not bound by international law to incorporate the Directive, and the legislator had applied it simply because it found it appropriate to do so, the Court should be cautious in case of doubt in setting aside the assessments that the legislator had made when deciding at the same time to retain the provision in section 19 no. 1 subsection 6. The Supreme Court held that the retirement age of 62 years for seamen was not a violation of Article 6 no. 1 of Directive 2000/78/EF and rejected the appeal. Dissent 4-1.

Reference:  HR-2010-303-A, case no. 2009/1594, civil appeal against judgment.

12 February 2010      Tax law. Tonnage tax. Retrospective effect. ECHR.

The case concerns an amendment to the tonnage tax scheme that was introduced in 1996. According to the scheme, shipping income was “exempt from tax”, but untaxed profits were taxed upon distribution to shareholders or exit of the company from the special tax system. A majority of the Supreme Court held that the tax assessment of the shipping companies must be set aside because the transitional rules in the Act of 14 December 2007 no. 107 Part X violated the prohibition against retroactive legislation in Article 97 of the Norwegian Constitution. The majority emphasised that there were no strong public policy reasons why the legislation should be given retroactive effect and it was therefore unnecessary to consider the provisions on protection of private property in Article 1 of Protocol 1 to the ECHR. Dissent 6-5.

Reference:  HR-2010-258-P, case no. 2009/1575 and case no. 2009/1663, civil appeal against judgment.

10 February 2010                 Criminal law. Family violence. Sentencing.

A man was convicted of violence, threats and other forms of abuse against members of his family perpetrated over a three year period, see the Penal Code section 219 subsection 2, cf. subsection 1 and the Penal Code section 227 first sentencing alternative. The Supreme Court attached weight to the fact that the defendant’s family as a result of his conduct had lived under a «regime» characterised by permanent anxiety and fear of violence, and that the offences had at least in part taken place while the family’s minor children were present. In light of this, the Supreme Court held that a sentence of two years’ imprisonment was an appropriate sentence.

Reference:  HR-2010-242-A, case no. 2009/1976, criminal appeal against judgment.

10 February 2010                Criminal law. Sexual offence. Rape. Sentencing. Penal Code section 192 subsection 1 (a), cf. subsection 2 (a), Penal Code section 195 subsection 1 first and second sentencing alternative, section 197 and section 219 subsection 1.

A man was convicted of rape and other sexual offences against his two daughters aged 12 and 13 respectively, cf. the Penal Code section 192 subsection 1, and for having physically abused and used violence against them and their younger brother, cf. the Penal Code section 219 subsection 1. The Supreme Court attached weight to the fact that these were serious offences against three children and that the gradual increase in the sentencing level for sexual offences which has taken place since a statutory reform in 2000 is intended to continue, see the judgment published in Rt-2009-1412 . A majority of the Supreme Court did not find justifiable grounds to reduce the sentence of seven years’ imprisonment passed by the Court of Appeal. Dissent 4-1.

Reference:  HR-2010-240-A, case no. 2009/1982, criminal appeal against judgment.

10 February 2010      Social security law. Disability pension. Rehabilitation.

The case concerns a claim for rehabilitation benefit and whether the condition in section 12-5 of the National Insurance Act, which requires that the claimant has undergone an individual and appropriate rehabilitation program, was satisfied. The Supreme Court held that the condition in section 12-5 of the National Insurance Act requires that all measures that can appear appropriate or suitable must have been attempted. The claimant was himself responsible for the fact that the last attempted rehabilitation measure had been interrupted and the Supreme Court held that the requirement of appropriate rehabilitation was without doubt not satisfied.

Reference:  HR-2010-239-A, case no. 2009/1273, civil appeal against judgment.

9 February 2010                Law of obligations. Sale of goods. Defect. Price reduction. Submission of complaint.

The case concerns a claim for a reduction in price pursuant to the Sale of Property Act section 4-12 cf. section 3-9 and whether a complaint had been submitter “within reasonable time”, cf. the Sale of Property Act section 4-19. The Supreme Court held that the cost of repairing the defect, which amounted to 3.36 % of the purchase price, was not high enough to satisfy the quantitative element in the requirement that the defect must be substantial. The Supreme Court held that the purchaser could not expect that an old property complied in every respect with current standards of craftsmanship and building regulations, so that the qualitative requirement in section 3-9 of the Sale of Property Act, which requires that that the defect must be substantial, was not satisfied either. The defects in the property were discovered two years and six months after completion and the purchaser submitted the complaint three months thereafter. The Supreme Court held that in the particular circumstances of the case, the complaint was submitted out of time.

Reference:  HR-2010-233-A, case no. 2009/1453, civil appeal against judgment.

9 February 2010                Insurance law. Occupational injury insurance. Mitigation. Occupational Injury Insurance Act section 7 and section 8.

The case concerns a claim for occupational injury compensation from an employee who was the sole shareholder, chairman of the board, managing director and sole employee of the company. The company had neglected its obligation to take out occupational injury insurance, see the Occupational Injury Insurance Act section 3. A majority of the Supreme Court held that although the victim was dyslexic and had contracted out the administrative obligations relating to the operation of the business, he had been negligent and the compensation must therefore be reduced by 50 %, see the Damages Act section 5-2. Dissent 3-2.

Reference:  HR-2010-232-A, case no. 2009/1583, civil appeal against judgment.

5 February 2010                Submission of evidence. Disputes Act section 30-7 and section 21-12 subsection 2

Written statements from former colleagues were not admissible as evidence.

Reference:  HR-2010-225-F, case no. 2009/1628, civil appeal against judgment.

4 February 2010                Criminal law. Bodily harm (assault). Criminal procedure. Provocation.

The issue in the case before the Supreme Court was whether the Court of Appeal, in a case concerning assault with unintentional consequences (see the Penal Code section 228 subsection 2) had applied the correct standard of proof as to whether there had been provocation. The Supreme Court held that the absence of provocation had to be proven beyond all reasonable doubt and that any doubt as to this issue must be interpreted in favour of the defendant. The Supreme Court quashed the Court of Appeal’s judgment because there was reason to doubt that the Court of Appeal had applied the proper standard of proof.

Reference:  HR-2010-222-A, case no. 2009/1773, criminal appeal against judgment.

4 February 2010                Criminal law. Sexual offences against minor. Sentencing.

The case concerns incestuous relations between the defendant and his step-daughter, see the Penal Code section 195 subsection 1 and subsection 2(c), cf. the Penal Code section 206 and Penal Code section 199 subsection 1, together with the Penal Code section 62. The offences took place regularly over a number of years, mainly while the victim was of primary school age. On one occasion – when the victim was 13 – the defendant had sexual intercourse with her. The Supreme Court recalled the views expressed in the Grand Chamber judgment in Rt-2009-1412 concerning an increase in the level of sentences for sexual offences against children, and endorsed the Court of Appeal’s sentence of four years and six months’ imprisonment.

Reference:  HR-2010-221-A, case no. 2009/1412, criminal appeal against judgment.

28 January 2010                 Criminal procedure. Double jeopardy. Surtax. Tax assessment. ECHR.

The issue in the case was whether the practice of the European Court of Human Rights in cases concerning the right not to be tried or punished twice in Article 4 of Protocol No. 7 to the ECHR implied that the imposition of 60 percent surtax and surcharge barred the prosecution from bringing criminal proceedings for associated breaches of the Accounting Act and the Tax Assessment Act. The Supreme Court held that the circumstances on which the criminal charges were based were neither the same nor substantially the same as the circumstances on which the decision to impose surtax were based. Accordingly, there was no double jeopardy and the appeal was rejected.

Reference:  HR-2010-173-A, case no. 2009/1499, criminal appeal against judgment.

26 January 2010                 Appointment of expert.

Specialist psychiatrist Gunnar Johannessen and specialist psychiatrist Tore Buer Christensen were appointed as experts with a mandate as described in the judgment.

Reference:  HR-2010-157-F, case no. 2009/1981, criminal appeal against judgment.

26 January 2010                 Appointment of expert.

Specialist psychiatrist, chief physician Randi Rosenqvist, was appointed as expert with a mandate as described in the judgment.

Reference:  HR-2010-156-F, case no. 2009/1981, criminal appeal against judgment.

19 January 2010                 Public administration law. Extradition.

The case concerns judicial review of the conditions for extradition to Kosovo of an ethnic Serb who had asylum status in Norway. The Supreme Court held that the decision to extradite did not affect the defendant’s asylum status. The Supreme Court agreed with the reasons given by the Court of Appeal in its judgment, where the Court held that section 6 of the Extradition Act and section 15 of the Immigration Act do not preclude extradition. Nor would extradition constitute a violation of Article 3 or Article 6 of the ECHR.

Reference:  HR-2010-106-A, case no. 2009/1873, criminal appeal against interlocutory order.

19 January 2010                 Criminal law. Sexual abuse of minor. Sentencing. Community service.

The case concerns sentencing following conviction for breach of section 196 of the Penal Code on sexual abuse of children below the age of 16 years. The defendant was 21 ½ years old and the victim was 13 years and 8 months old when the sexual offence took place. In view of the nature and gravity of the case, the respective ages of the victim and the defendant, the other circumstances surrounding the offence and general considerations of prevention, a majority of the Supreme Court held that it was inappropriate to make a community service order and sentenced the defendant to 60 days’ imprisonment . Dissent 4-1.

Reference:  HR-2010-104-A, case no. 2009/1677, criminal appeal against judgment.

19 January 2010                 Law of damages. Non-contractual damages.

The owner of a food stall on a resting place along the main E18 highway brought a claim against the Norwegian state for damages for financial loss after the highway was closed due to a landslide in the Hanekleiv tunnel. The Norwegian Public Roads Administration had been found to be liable on grounds of negligence for the damage caused by the landslide in the tunnel, see section 2-1 of the Damages Act. The contract for operation of the food stall did not regulate liability in the event of road closure and the majority of the Supreme Court held that it was not possible to imply a presumption that the stretch of highway where the food stall was situated would always be in normal operation. In the claim for non-contractual damages, a majority of the Supreme Court held that even though there was causation between the negligence and the financial loss, the connection between the two was not sufficiently close to justify liability. Dissent 3-2.

Reference:  HR-2010-102-A, case no. 2009/1092, civil appeal against judgment.

 

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