Summaries

22 December 2004 Interference with ownership rights/transfer of ownership rights.

Salmon and Freshwater Fishing Act section 18, - the Norwegian Constitution Article 105 Section 18 of the Salmon and Freshwater Fishing Act provides that children under the age of 16 are entitled, without charge, to fish freshwater fish with rods and hand-held lines, subject only to certain restrictions. The issue in the case was whether this right could be exercised without compensation to the landowner, see Article 105 of the Norwegian Constitution, and whether section 18 of the Salmon and Freshwater Fishing Act was in violation of Article 1 of Protocol 1 to the European Convention on Human Rights. Reference: HR-2004-02115-A, case no. 2004/759, civil appeal.

22 December 2004 Reading aloud of witness statement. Sentencing. Drug offences.

Penal Code section 162 subsections 1 and 2, and section 162 subsections 1 and 3 The issue in the case was whether, in a drug case, it was incorrect to allow a statement made by a co-accused to the police during the investigation to be read aloud during the appeal proceedings before the Court of Appeal. The case also concerns sentencing. Reference: HR-2004-02116-A, case no 2004/1409, criminal appeal.

22 December 2004 Criminal Procedure Act sections 74, 75 and 59a

The issue in the case was whether a criminal case where prosecution had been discontinued could be resumed. Reference: HR-2004-02117-A, case no. 2004/1553, criminal appeal.

22 December 2004 Value added tax. Tax basis. Value Added Tax Act sections 18 and 73 et al.

The case concerns the validity of an administrative order for the supplementary calculation of value added tax. The dispute related to the determination of the tax basis in circumstances where a firm of consultants had agreed to prepare and organise the printing of annual accounts and other publications for its customers. The issue in the case was whether the full remuneration should be included in the tax basis, or whether this should be limited to the remuneration for the technical production of the publications. The case concerns the situation prior to the value added tax reform in 2001, when consultancy services were not subject to value added tax. Reference: HR-2004-02118-A, case no. 2004/1169, civil appeal.

22 December 2004 Compulsory purchase. Compensation

The case concerns the amount of compensation payable following the compulsory purchase of land to extend a graveyard. At the reappraisal, compensation was calculated on the basis of the market value for residential land. The issue in the case was whether the foreseeability criteria in section 5 subsection 2 of the Act of 6 April 1964 relating to Compensation for Expropriation of Real Property had been applied wrongly, and whether the grounds given for the reappraisal were inadequate. Reference: HR-2004-02119-a, case no. 2004/1249, civil appeal.

22 December 2004 Compensation. Assessment of duty of care. Compensation Act section 2-1

The issue in the case was whether a local authority was liable in damages for injuries suffered by a school pupil whilst doing high jump in a gym lesson; see the Compensation Act section 2-1. Reference: HR-2004-02122-A, case no. 2004/1166, civil appeal.

22 December 2004 Reopening of a paternity case. Costs

The decision in a paternity case was quashed after a DNA test showed that A could not be the father of B’s child, C, who was born in 1956. B was ordered to pay the costs of the case before the Supreme Court. Reference: HR-2004-02123-A, case no. 2004/764, civil suit, petition for reopening of the decision recorded in Rt. 1960 page 878.

22 December 2004 Access to documents

The case concerns a claim for access to documents concerning control of communications in a criminal case, see the Criminal Procedure Act section 242 and the rules concerning control of communications in sections 216a- 216k of the same Act. Reference: HR-2004-02124-A, case no. 2004/1504, criminal interlocutory appeal.

21 December 2004 Sentencing. Violence against the police. Penal Code section 127 and 28a

The case concerns sentencing for acts of violence against the police, see the Penal Code section 127. The issue in the case was whether a community service order could be made; see the Penal Code section 28a. Reference: HR-2004-02095-A, case no. 2004/1616, criminal appeal.

21 December 2004 Sentencing. Drug offence. Penal Code section 162 subsection 2

The case concerns sentencing following a conviction for the purchase of approx 180 g of amphetamine, the attempted purchase of approx 100 g heroin and use of amphetamine. In the Court of Appeal, the sentence was reduced on account of a delay of over two years, primarily on the part of the police but also on the part of the public prosecutor. The Supreme Court upheld the Court of Appeal’s sentence of three years imprisonment. Reference: HR-2004-02105-A, case no. 2004/1658, criminal appeal.

16 December 2004 Protective custody. Penal Code section 39c

The issue in the case was whether there were grounds for making a protective custody order in a homicide case; see the Penal Code section 39c. Reference: HR-2004-02083-A, case no. 2004/1507, criminal appeal.

15 December 2004 Criminal procedure. Government regulation on confiscation of driving licence. Entry

A Government regulation on the confiscation of driving licences entered into force “with effect for cases brought before the district court … after 1 January 2004”. The Court of Appeal’s order for the confiscation of a driving licence was quashed, as the case was brought before the district court on 20 October 2003. Reference: HR-2004-02074-A, case no. 2004/1436, criminal appeal.

15 December 2004 Sentencing. Sexual intercours with young sister.

Penal Code section 195 subsection 1, second sentencing alternative, section 213 and section 55 The case concerns sentencing of a boy who had sexual intercourse with his nine year old sister. The boy was 16 years old when the offence was committed. Reference: HR-2004-02076-A, case no. 2004/1562, criminal appeal.

14 December 2004 Tax assessment. Petroleum taxation.

Taxation Act (1911) section 44 subsection 1 first sentence, cf. Taxation Act (1999) section 6-1 and Taxation Act (1911) section 50. The case concerns the validity of a tax assessment for AS Norske Shell for the fiscal years 1995 and 1996. The issue in the case was from which date the company could claim a deduction in income for costs associated with the closure of an oilfield at the end of production. Reference: HR-2004-02058-A, case no. 2004/626, civil appeal.

14 December 2004 Salvage of ship. Salvage money. Maritime Code section 331 subsection 1(a)

The case concerns a claim for salvage money following salvage of a ship. The main issue was whether, on 4 April 2000, the MT Norsk Viking was “in danger” in the Hejlte Fjord, so that the ship-owners and the owners of the cargo on board were obliged to pay salvage money to the MT Senja, which came to the MT Norsk Viking’s aid. Reference: HR-2004-02061-A, case no. 2004/951, civil appeal.

14 December 2004 Insurance. Regress. Compensation Act section 4-3 cf. section 4-2

The case concerns a claim for regress following an insurance payout after a fire caused by some youths who had played with fireworks. The issue in the case was whether there was gross negligence, which is a condition for a claim for regress. Reference: HR-2004-02062-A, case no. 2004/810, civil appeal.

8 December 2004 Damages for breach of contract. Reduction of liability. Compensation Act section 5-2

The case concerns reduction of the liability for damages for a firm of civil engineers who had been engaged in the planning and construction of a breakwater. Reference: HR-2004-02014-A, case no. 2004/214, civil appeal.

8 December 2004 Calculation of deduction for time spent on remand

The case concerns the calculation of the deduction to be made in the sentence on account of time spent in isolation while remanded in custody, see the Penal Code section 60 and the Criminal Procedure Act section 186a. Reference: HR-2004-02022-A, case no. 2004/1433, criminal appeal.

8 December 2004 Sentencing. Rape.

Penal Code section 192, subsection 1(b) cf. subsection 2 (a), cf. subsection 3(a) and (d), cf. sections 206 and 205 The case concerns sentencing of three persons who together had raped a 15 year old girl who on account of intoxication was unable to object to the intercourse. Reference: HR-2004-02023-A, case no. 2004/1196, criminal appeal.

7 December 2004 Double jeopardy. Compensation. Reasonable time.

ECHR Protocol 7 Article 4, ECHR Article 6(1). Criminal Procedure Act sections 444 and 445 The case concerns a claim for compensation for economic and non-economic loss after criminal prosecution against two people for breach of the Tax Assessment Act was dismissed on account of the prohibition against repeated prosecution in ECHR Protocol 7 Article 4(1), where the accused persons had been imposed additional surcharge for the same offence. The case also concerns a claim for compensation for economic and non-economic loss for breach of ECHR Article 6(1), which requires that a prosecution must be concluded within a reasonable time. Reference: HR-2004-02002-A, case no. 2004/1014, criminal interlocutory appeal.

2 December 2004 Self-defence within the terms of the Gaming Act. Illegal killing of bear.

Standard of care. The issue in the case was whether the Court of Appeal had applied the correct standard of care when it acquitted the accused for the illegal killing of a bear on the grounds of self-defence pursuant to section 11 subsection 2 of the Gaming Act of 29 May 1981 no. 38. Reference: HR-2004-01986-A, case no 2004/1473, criminal appeal.

2 December 2004 Tax assessment.

Running of one or two businesses and co-ordination with personal income. Government regulations regarding the implementation of the Taxation Act section 12-20-1. The case concerns the validity of an adjusted tax assessment for a one-man company for the fiscal years 1999 and 2000. The issue in the case is whether the company was entitled to deduct negative personal income derived from the rent of the proprietor’s own private residence, from the personal income derived from the company’s other business which comprised the provision of services to other businesses. The answer depends on whether the company must be deemed to run one or two businesses, and, if there were two businesses, whether there was reason to co-ordinate the personal income of the two businesses. Reference: HR-2004-01989-A

1 December 2004 Employment law. Compensation. Compensation Act section 2-1, Employment Act section 1

The case concerns a claim against an employer for compensation for mental injury that the employee alleged he had suffered as a result of harassment in the workplace. The case against the employer was dismissed. Reference: HR-2004-01985-A

25 November 2004 Compensation law. Personal injury. Loss of future dividends in a limited company.

The victim or a road traffic accident was employed by and was also the majority shareholder in a limited company. The net income of the limited company had been reduced because of the injury he had suffered. The issue in the case is whether he could claim compensation for loss of owner interest – share dividends – in the company. If the person who suffered the injury is not entitled to claim this loss, the question is whether the limited company had a claim against the tortfeasor. Reference: HR-2004-01955-A

19 November 2004 Reading aloud of witness statement.

Criminal Procedure Act section 296, ECHR Article 6(1) cf. Art 6(3). Criminal Procedure Act section 122 The case concerns the right to read aloud previously given statements at the main hearing in a criminal case. The appeal was dismissed. Reference: HR-2004-01924-A

19 November 2004 Criminal Procedure. Appeal against procedure. Competence.

Compensation for non-economic loss. Civil Procedure Act section 343 subsection 1 and 2(3). Courts of Justice Act section 108. Compensation Act section 3-5 subsection 1(b) cf. section 3-3 The case concerns an appeal against the procedure in the Court of Appeal in a criminal case, and the measure of compensation to the victim. One of the lay members in the Court of Appeal did not appear on the panel of lay members for the Court of Appeal, but on the panel of lay members for the District Court. The first issue in the appeal against procedure was what consequence this should have. The second question was whether the chairman of the Court was competent to act. The chairman had participated in the decision as to whether leave to appeal should be granted, and leave to appeal one of the matters in the appeal had been refused. Reference: HR-2004-01925-A

19 November 2004 Permission to submit new claims. Civil Procedure Act sections 366 and 367

The case concerns a request to submit new claims in an appeal case before the Court of Appeal, see sections 366 and 367 of the Civil Procedure Act. One of the issues in the case is whether a local authority can bring a civil legal action against a private party concerning the validity of an administrative decision made by the County Governor. Reference: HR-2004-01930-A

19 November 2004 Criminal Procedure.

Appeal against procedure. Competence. Compensation for non-economic loss. Civil Procedure Act section 343 subsection 1 and 2(3). Courts of Justice Act section 108. Compensation Act section 3-5 subsection 1(b) cf. section 3-3 The case concerns an appeal against the procedure in the Court of Appeal in a criminal case, and the measure of compensation to the victim. One of the lay members in the Court of Appeal did not appear on the panel of lay members for the Court of Appeal, but on the panel of lay members for the District Court. The first issue in the appeal against procedure was what consequence this should have. The second question was whether the chairman of the Court was competent to act. The chairman had participated in the decision as to whether leave to appeal should be granted, and leave to appeal one of the matters in the appeal had been refused. Reference: HR-2004-01925-A

19 November 2004 Permission to submit new claims. Civil Procedure Act sections 366 and 367

The case concerns a request to submit new claims in an appeal case before the Court of Appeal, see sections 366 and 367 of the Civil Procedure Act. One of the issues in the case is whether a local authority can bring a civil legal action against a private party concerning the validity of an administrative decision made by the County Governor. Reference: HR-2004-01930-A

17 November 2004 Interpretation of the requirement of intent

The accused had been an accessory to the acquisition of 194 g of heroin when she had been the chauffeur during the crime. The Court of Appeal sentenced her to imprisonment for a term of one year and 10 months. The Supreme Court quashed the Court of Appeal’s judgement, including the main hearing, on the grounds that the reasons given by the Court of Appeal raised doubt as to whether the requirement of intent had been properly understood and, therefore, whether the requirement had been properly explained to the jury in the summing up. Reference: HR-2004-01912-A

17 November 2004 Speeding. Sentencing. III

Road Traffic Act section 31 subsection 1 cf. section 5 subsection 1, cf. subsection 2. Regulation concerning loss of right to drive a motor vehicle etc section 2-2 cf. section 2-1 The case concerns sentencing for serious speeding and, particularly, the question whether an unconditional sentence or a community service order should be passed. The accused had driven at a speed of 151 km/hr while overtaking another vehicle in an 80-km/hr traffic zone. The Court of Appeal sentenced the accused to 30 hours community service, a fine of NOK 3000 and loss of licence for 14 months. The Supreme Court amended the sentence to 18 days imprisonment, and upheld the loss of licence for 14 months. However, the Supreme Court quashed the fine. See also the judgements in HR-2004-0914-A and HR-2004-01915 A of the same date.Reference: HR2004-01913 A

17 November 2004 Speeding. Sentencing.

Road Traffic Act section 31 subsection 1 cf. section 5 subsection 1, cf. subsection 2 The case concerns sentencing for speeding and, particularly, the question whether it was appropriate to impose a community service order. The accused had driven at a speed of 102 km/hr in a 50-km/hr traffic zone at night in good driving conditions. The Court of Appeal sentenced the accused to 18 days imprisonment. The Supreme Court dismissed the accused’s appeal. See also the judgements in HR-2004-0913-A and HR-2004-01915 A of the same date. Reference: HR-2004-0914-A.

17 November 2004 Speeding. Sentencing.

Road Traffic Act section 31 subsection 1 cf. section 5 subsection 1, cf. subsection 2 The case concerns sentencing for speeding in a 100-km/hr traffic zone and, particularly, the question whether it was appropriate to impose a community service order. The accused had driven at a speed of 156 km/hr in a 100-km/hr traffic zone in good driving conditions. The District Court sentenced the accused to 14 days imprisonment. The Court of Appeal dismissed the accused’s appeal. The Supreme Court passed a sentence of 36 hours community service. See also the judgements in HR-2004-0913-A and HR-2004-01914 A of the same date. Reference: HR-2004-0915-A.

16 November 2004 Counsel’s fees. Civil Procedure Act section 52

The case concerns the determination of counsel’s fees pursuant to section 52 of the Civil Procedure Act. The Supreme Court found that the legislator had not intended that section 52 subsection 1 of the Civil Procedure Act should entitle the court to determine the fees payable to counsel in circumstances where counsel and the client had entered into an agreement concerning counsel’s fees. Any other interpretation of the provision, in line for instance with the development of principles relating to the revision of contracts, presupposes an assessment of all of the circumstances of the case. Such an assessment could not reasonably be undertaken within the scope of section 52. Furthermore, a total assessment could more safely be undertaken within the scope of an ordinary suit, rather than through the informal procedure in section 52 of the Civil Procedure Act. Reference: HR-2004-01906

12 November 2004 Control of storage of firearms in private home.

The Firearms Act section 27a. The Constitution Article 102. ECHR Article 8 Section 27a subsection 2 of the Firearms Act provides that the police subject to prior warning have the power to control the storage of firearms in private homes. The issue in the case is whether this provision is in breach of Article 102 of the Constitution, and whether such a police control represents a violation of Article 8 of the European Convention on Human Rights. Reference: HR-2004-01888-A

12 November 2004 Political TV advertising. The Broadcasting Act section 3-1, ECHR Article 10

The case concerns the validity of an administrative decision of the National Mass Media Authority which imposed a fine on TV Vest AS for breach of the prohibition against political advertising on television. The issue in the case is whether section 3-1 subsection 3 of the Broadcasting Act, pursuant to which the fine was imposed, represents a violation of Article 100 of the Constitution or Article 10 of the European Convention on Human Rights cf. section 3 of the Human Rights Act. Reference: HR-2004-01889-A

11 November 2004 Owner Occupied Unit. Owner Occupied Units Act section 6

The issue in the case was whether the Owner Occupied Units Act prohibits the owner of a housing unit that comprised a main part and a separate annex from equipping and using the annex as a separate residential unit, including for rent. Reference: HR-2004-01884-A

5 November 2004 Allodial law. Abuse of allodial rights

The issue in the case is whether a claim for redemption of allodial land represented an abuse of allodial rights. The Supreme Court upheld the judgement of the District Court item 1. Reference: HR-2004-01862-A

5 November 2004 Sentencing. Counterfeiting.

Penal Code section 176, subsection 1 The case concerns sentencing for the use of counterfeited bank notes, see the Penal Code section 176 subsection 1. The sentence of 120 days imprisonment was converted to a fully conditional sentence. The Supreme Court attached weight to the fact that the accused had been a minor accessory and that only a small amount of money was involved. Reference: HR-2004-01864-A

2 November 2004 Sentencing. Pollution.

Penal Code section 166 subsection 1, cf. subsection 2. Pollution Control Act section 78 subsection 2 first sentencing alternative The case concerns sentencing for three breaches of the Pollution Control Act. Reference: HR-2004-01840

28 October 2004 Competence. Courts of Justice Act section 108

The case raised questions concerning the competence of Justice Toril Øie to deal with a case. The Court found that, as a primary rule, a permanently appointed justice of the Supreme Court will not be incompetent to deal with a case solely on the grounds of his or her former employer’s association with the case, see the Supreme Court case reported in Rt 1005 861. Accordingly, Justice Øie was competent to hear the case. Reference: HR-2004-01818-A.

27 October 2004 Judicial review of administrative action. Freedom of religion.

Civil Procedure Act section 54. ECHR Article 9. The Constitution Article 2 The case concerns the power of the courts to review the validity of an administrative decision pursuant to which a person had been denied membership of an Islamic cultural centre and denied access to a mosque connected to the centre. Reference: HR-2004-01806-A

27 October 2004 Criminal law. Data crime

The case concerns data crime and raises questions concerning the territorial scope of the Penal Code, see the Penal Code section 12 subsection 1 together with sections 145 subsection 2 and section 393. The case also concerns the interpretation of sections 291 and 292 on criminal damage. Reference: HR-2004-01807-A

27 October 204 Sentencing. Occasioning bodily harm

The case concerns sentencing for occasioning bodily harm, see the Penal Code section 229, first sentencing alternative. The Supreme Court adjusted the sentence passed by the Court of Appeal, and converted the sentence of 60 days imprisonment to a fully conditional sentence. Reference: HR-2004-01808-A.

26 October 2004 Contract law. King Christian Vs Norwegian Law Art 5-1-2.

. Contracts Act section 36, Land Concession Act section 19, Price Policy Act section 2, Penal Code section 166. The case concerns the validity of an agreement between the purchaser and the seller of an agricultural property that was subject to concession. The agreement provided that the purchaser should secretly pay to the seller a sum of money in addition to the official purchase price. The Supreme Court held that the agreement was invalid on the grounds that it was contrary to law and public morals. Reference: HR-2004-01775-A.

26 October 2004 Employment law. Contract Act section 36.

The main issue in the case is whether an agreement concerning the redeployment of an employee could be set aside as invalid pursuant to section 36 of the Contracts Act. Reference: HR-2004-01787 A

26 October 2004 Violence and threats to the police. Community service

The case concerns sentencing for two offences against section 127 of the Penal Code – violence against the police – and two threats issued on the same occasions. The main issue in the case is whether it was appropriate to make a community service order, see the Penal Code section 28a. Reference: HR-2004-01788-A

26 October 2004 Fee payable upon subdivision of land. Self-cost principle.

The Land Subdivision Act section 5-2. The case concerns the validity of an administrative decision fixing the fee payable on the subdivision of land, and raises certain questions related to the interpretation of the self-cost principle in section 5-2 of the Land Subdivision Act and the apportionment of the costs among the occupants. Reference: HR-2004-01789-A

20 October 2004 Sentencing. Possession of child pornography. Penal Code section 204

The case concerns sentencing for the possession of child pornography, and the question of which correct legal provision is applicable to the facts. The Supreme Court quashed the judgement of the Court of Appeal and ordered a retrial. Reference: HR-2004-01762-A.

15 October 2004 Criminal procedure. Provisional guardian.

Standard of proof. Criminal Procedure Act section 343 The case concerns the quashing of a criminal conviction on the grounds that a provisional guardian had not been appointed for the accused, who claimed to be a minor, see the Criminal Procedure Act section 343. The case also concerns the standard of proof in criminal cases with regard to matters of procedure. The fact that a prosecution against a minor had proceeded without a provisional guardian having been appointed and given warning in the circumstances mentioned in the Criminal Procedure Act section 83, is not a procedural error that unconditionally must lead to a judgement being quashed upon appeal pursuant to the Criminal Procedure Act section 343 subsection 2. The Supreme Court quashed the decision of the Court of Appeal. Reference: HR-2004-1732-A

15 October 2004 Criminal Procedure

The issue in the case is whether the Court of Appeal had made a procedural error in quashing a conviction on the grounds that the judgement was not sufficiently reasoned. The judgement was quashed to the disadvantage of the accused. The Supreme Court quashed the decision of the Court of Appeal. Reference: HR-2004-01733-A

14 October 2004 Insurance law. Identification. The Insurance Contracts Act sections 4-8 and 4-11

The case concerns an insurance settlement following the robbery of a money transport van, and raises certain question related to identification in insurance law. Reference: HR-2004-01719-A

14 October 2004 Sentencing. Grossly negligent rape

The case concerns sentencing for grossly negligent rape, see the Penal Code section 192 subsection 4 cf. subsection 1(a). The Supreme Court stated that the general level of sentence for grossly negligent rape is distinctly lower than the level of sentence for rape with intent. The same must also apply in the present case, where the Court of Appeal had found that there was obvious negligence bordering on intent, and where the sexual assault was bordering on sexual intercourse. Reference: HR-2004-01720-A

14 October 2004 Sentencing. Family violence.

Penal Code section 192 subsection 1 cf. subsection 4 The case concerns sentencing of a man for offences of violence against his common law wife, mainly grossly negligent rape, assault and threats. Reference: HR-2004-01721-A

11 October 2004 Criminal law. Competence.

Courts of Justice Act section 111 and 108, cf. ECHR Article 6(1) The issue in the case was whether a court of appeal judge who had participated in a case where a person was sentenced to imprisonment and preventive detention, was competent to participate in a case concerning the conversion of the preventive detention order to a protective custody order. Reference: HR-2004-01694-A

11 October 2004 Criminal law. Protective custody. Penal Code section 39c

The case concerns the conversion of a preventive detention order to a protective custody order. In particular, the case concerns whether the convicted person could be deemed to have “impaired mental faculties”, and the relevance of symptoms of “early impaired development”. Reference: HR-2004-01695-A

11 October 2004 Criminal procedure. Criminal Procedure Act sections 74 and 75

The case concerns an appeal against the application of law in a criminal case. The Court of Appeal had acquitted the accused for offences against section 127 of the Penal Code (assaulting and obstructing a public servant in the course of his duty). The judgement was passed with dissenting votes. Before the accused was indicted, the accused was mistakenly sent a data printout from the police informing that the case had been dropped on account of the lack of evidence. The issue in the case was the relevance to be attached to this error, see section 74 subsection 1 of the Criminal Procedure Act. Reference: HR-2004-01696-A, case no. 2004/1061, criminal appeal.

8 October 2004 Criminal law. Fishing law. Double jeopardy. Sentencing. Loss of rights. Confiscation

The main issue in the case was whether a decision by the Directorate of Fisheries to temporarily remove a person’s name from the register of first hand purchasers of raw fish (pursuant to section 3 subsection 3 of the Act of 24 June 1994 no. 34 relating to the Registration of First Hand Purchasers of Raw Fish) represented a bar against subsequent criminal proceedings based on the same facts that formed the basis of the administrative decision, cf. the non bis in idem principle in Article 4(1) of Protocol 7 to the European Convention on Human Rights. The case also concerns sentencing for a number of offences committed in the course of the accused’s fishing business, including loss of rights pursuant to section 29 no. 2 of the Penal Code, and confiscation of the gain obtained by criminal acts pursuant to section 34 of the Penal Code. Reference: HR-2004-01693-A, case no. 2004/591, criminal appeal.

7 October 2004 Trademark law. Domain name. Trademark Act sections 4 and 6, Trademark Directive (89/

The issue in the case was whether the use of the domain name “volvoimport.no” was an infringement of the registered trademark “Volvo”. The Supreme Court upheld the judgement of the Court of Appeal. Reference: HR-2004-01671-A, case no. 2004/213, civil appeal.

7 October 2004 Damages for non-economic loss. Defamation. Compensation Act section 3-6, cf. Penal Co

The case concerns a claim for compensation brought by the victim of a criminal offence against a newspaper for allegedly defamatory statements made in a newspaper report on the criminal judgement. Reference: HR-2004-01672-A, case no. 2004/338, criminal appeal.

7 October 2004 Sentencing. Drug offences. Admission

The case concerns sentencing for drug offences, including the weight to be attached to an admission, see section 59 subsection 2 of the Penal Code. Reference: HR-2004- 01677-A, case no. 2004/1091, criminal appeal.

4 October 2004 Criminal law. Penal Code section 128

The case concerns the interpretation of section 128 of the Penal Code, which concerns threats and bribery of public servants. The issue in the case was whether the threats that the accused had made to the public servant sought to obtain the performance of an “unlawful” official act. Reference: HR-2004-01649-A, case no. 2004/1081, criminal appeal.

1 October 2004 Corporate criminal liability. Political youth organisation. Penal Code sections 48a

The case concerns the application of corporate criminal liability to a political youth organisation. The appeal was dismissed with dissenting votes (3-2). Reference: HR-2004-01639-A, case no. 2004/1009, criminal appeal.

27 September 2004 Sentencing. Loss of rights. Concurring offences. Act relating to the Marketing of

The issue in the case was whether section 166 of the Penal Code (false testimony) can be applied concurrently with section 9, cf. section 7 subsection 2 of the Act relating to the Marketing of Raw Fish and section 1 of the government regulations issued pursuant to that Act. The case also concerns sentencing for a number of offences committed in the course of the convicted person’s fish business. Reference: HR-2004-01616-A, case no. 2004/372, criminal appeal.

24 September 2004 Sentencing. Road Traffic Act section 31. Penal Code section 28a

The case concerns sentencing for drink-driving. The main issue was whether difficult care responsibilities justified the imposition of a community service order or, alternatively, a suspended prison sentence, rather than an unconditional sentence. Reference: HR-2004-01591-A, case no. 2004/1021, criminal appeal.

17 September 2004 Criminal Procedure. Reading aloud of police statement

Criminal Procedure Act sections 296 and 297, ECHR Article 6(3)d and Article 6(1) The issue in the case was whether the Court of Appeal had made a procedural error when it refused to allow the victim’s statement to the police to be read aloud in court. The prosecution argued in vain that the case was special on account of the cultural background of the family and because it concerned forced marriage. The Supreme Court rejected the prosecution’s appeal. Reference: HR-2004-01554-A, case no. 2004/890, criminal appeal.

15 September 2004 Drug felony. Sentencing.

Calculation of deduction for time spent in custody on remand. Penal Code section 162 subsections 1 and 2. Penal Code section 60 subsection 1 second sentence The case concerns aiding and abetting the storage of drugs, and the application of law in relation to the question of guilt and sentencing. The case also concerns the calculation of the deduction for time spent in custody on remand. The convicted person had been subject to police control of visits and correspondence, and was kept in isolation from the other inmates. Reference: HR-2004-01531-A, case no. 2004/732, criminal appeal.

15 September 2004 Occasioning bodily harm. Sentencing. Penal Code section 229, second sentencing alt

The case concerns sentencing for occasioning bodily harm where the violence was triggered off by particularly extraordinary circumstances. The Supreme Court was in no doubt that section 232 (intent etc) did not apply, and imposed a suspended sentence of seven months’ imprisonment. Reference: HR-2004-01532-A, case no. 2004/956, criminal appeal.

15 September 2004 Right of journalists to protect their source. Criminal Procedure Act section 125

The case concerns the right of two journalists to protect the source of information in articles they had written, see section 125 subsection 2, cf. subsections 1 and 3 of the Criminal Procedure Act. Reference: HR-2004-01533-A, case no. 2004/887, criminal appeal.

15 September 2004 Sentencing. Sexual assault.

. Penal Code section 195 subsection 1, first sentencing alternative and Penal Code section 197 (incest) The case concerns sentencing for sexual assault (incest) of a 4½-year-old girl who was the convicted person’s daughter. The Supreme Court found that the Court of Appeal had not attached sufficient weight to the length of time it had taken to bring the case to trial, and reduced the sentence to seven months’ imprisonment. Reference: HR-2004-01534-A, case no. 2004/889, criminal appeal.

13 September 2004 Sentencing. Insurance fraud. Community service. Penal Code section 272 subsection

The case concerns sentencing for insurance fraud, and the question of application of a community service order. See also the Supreme Court’s judgements in HR-2004-01508-A and HR-2004-01506-A. Reference: HR-2004-01507-A, case no. 2004/797, criminal appeal.

13 September 2004 Insurance fraud. Sentencing. Community service. Penal Code section 272 subsection

The case concerns sentencing for insurance fraud, and the question of application of a community service order. See also the Supreme Court’s judgements in HR-2004-01507-A and HR-2004-01506-A. Reference: HR-2004-01508-A, case no. 2004/797, criminal appeal.

10 September 2004 Double jeopardy. Placement in an institution. Child Welfare Act section 4-24

The case concerns the scope of the non bes in idem principle in Article 4(1) of Protocol 7 to the European Convention on Human Rights. The County Board for Social Welfare made an order to place a child in a treatment and training institution pursuant to section 4-24 subsection 2, cf. subsection 1 first alternative of the Child Welfare Act. Subsequently, criminal proceedings were brought based on the same facts that formed the basis of the administrative order. The question in the case was whether, in terms of the non bis in idem principle, the criminal proceedings related to the same offence as the administrative order. Reference: HR-2004-01501-A, case no. 2004/721, criminal appeal.

10 September 2004 Courts of Justice Act section 100

The issue in the case was whether the judgement of the district court in a criminal case should be quashed because one of the lay members of the court who served for the first time did not give oath until the opening of the second day of the proceedings. Reference: HR-2004-01502-A, case no. 2004/932, criminal appeal.

8 September 2004 Right of inspection of documents. Criminal Procedure Act section 242

The issue in the case was whether the prosecution could lawfully reject an accused’s application to inspect the documents in the case for a given period without having made a concrete assessment of whether inspection would cause “detriment or risk to the purpose of the investigation”, see section 242 of the Criminal Procedure Act. The accused’s appeal was dismissed. Reference: HR-2004-01476-A, case no. 2004/575, criminal appeal.

8 September 2004 Criminal procedure

Reference: HR-2004-01477-A, case no. 2004/525, criminal appeal.

8 September 2004 Sentencing. Penal Code section 233 subsection 1, cf. section 56 (c)

The case concerns sentencing for murder, including the application of section 56 (c) of the Penal Code , which provides for the reduction of sentence where the offender, at the time of the offence, suffered from a serious mental illness and a substantially reduced ability to realistically judge the nature of his actions. The case also concerns a claim for damages for non-economic loss brought by the victim’s parents. Reference: HR-2004-01478-A, case no. 2004/613, criminal appeal.

8 September 2004 Company Taxation Act section 5-2 no. 1, Regulations of 13 May 1991 no. 336 relatin

The case concerns the taxation of profit on shares that were transferred within a group of companies. The case raises questions related to lifting the corporate veil in relation to taxation and, where this is done, whether a company can apply for adjustment of group contribution on the grounds that the tax authorities have increased its alleged income. Reference: HR-2004-01486-A, case no. 2003/1592, civil appeal.

8 September 2004 Loss of rights, damages, double jeopardy.

Medical Practitioners Act of 1980 section 9, cf. section 8, Penal Code section 29, ECHR Protocol 7 Article 4(1) The case concerns a claim for damages in circumstances where the health authority had suspended a medical practitioner’s licence to practice. The underlying question was whether the health authority was barred from suspending the licence where criminal proceedings had already been brought against the medical practitioner based on the same facts upon which the suspension order was based, and a plea by the prosecution for the deprivation of the right to practice (cf. section 29 of the Penal Code) had been rejected. The issue arose in relation to both the Medical Practitioners Act of 1980 and Article 4(1) of Protocol 7 to the European Convention on Human Rights. Reference: HR-2004-01487-A, case no. 2003/1539, civil appeal.

8 September 2004 Criminal law. Unlawful deprivation of liberty and occasioning bodily harm

The case concerns sentencing for premeditated bodily harm comprising battery performed by several persons who acted collectively, see the Penal Code section 229 second sentencing alternative, cf. section 232, and for unlawful deprivation of liberty causing abnormal suffering, see section 223 subsection 2 of the Penal Code. Reference: HR-2004-01488-A, case no. 2004/936, criminal appeal.

8 September 2004 Sentencing. Breach of terms of a community service order

The case concerns sentencing where the convicted person had breached the terms of a community service order and committed new criminal offences, see sections 58 and 59 of the Implementation of Criminal Sentences Act and section 28b of the Penal Code. Reference: HR-2004-01489-A, case no. 2004/845, criminal appeal.

7 September 2004 Sentencing. Implementation of Criminal Sentences Act section 59. Penal Code sectio

The main issue in the case was whether the court could impose an unconditional sentence where the convicted person had committed new criminal offences after he had been convicted and sentenced to community service but before the sentence had been implemented. The case also concerns sentencing for theft-related offences. Reference: HR-2004001475-A, case no. 2004/995, criminal appeal.

3 September 2004 Criminal law. Cheque fraud. Penal Code section 270, the Cheque Act section 66

It is a condition for criminal liability pursuant to section 270 of the Penal Code that the accused at the time of the offence had as an aim to obtain an unlawful gain. The Supreme Court found that the grounds of the judgement of the District Court were deficient, unclear and inaccurate, and raised doubt as to whether the court had properly understood the requirement of unlawful gain. The Supreme Court quashed items I and IV of the District Court’s judgement and the judgement of the Court of Appeal. Reference: HR-2004-01455-A, case no 2004/1026, criminal appeal.

27 August 2004 Penal Code section 195. ECHR Article 6(2)

The issue in the case was whether a girl aged 13 years and 7 months and a man of 21 years were “about equal in age and development” when the sexual intercourse took place, see section 195 subsection 4 of the Penal Code. The case raises the issue whether the strict liability rule in section 195 subsection 3, which provides that mistake as to the child’s age shall not exclude criminal liability, is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. Reference: HR-2004-01445-A, case no. 2004/534, criminal appeal.

27 August 2004 Drugs. Sentencing

The issue in the case was whether the import and sale of 600 kg of khat amounts to an aggravated drug felony in the terms of section 162 subsection 2 of the Penal Code. The case also concerns sentencing for the offence. Reference: HR-2004-01448-A, case no. 2004/846, civil appeal.

26 August 2004 Contract law. Limited Liability Companies Act section 4-17

The case concerns the consequences between the parties that the board of directors of a limited liability housing company refused to approve the purchase of shares in the company, and the implications when the resolution of the board was subsequently reversed. Reference: HR-2004-01439-A, case no. 2003/1588, civil appeal.

26 August 2004 Surety. Limitation Act section 17 no. 1 cf. section 21 no. 3

The issue in the case was whether the implementation of execution proceedings where there are no assets against which to make an execution order, interupts the limitation period in circumstances where the creditor has no grounds for execution, see section 17 no. 1, cf. section 21 no. 3 of the Limitation Act. Reference: HR-2004-01440-A, case no. 2004/6000, civil appeal.

26 July 2004 Summary dismissal of a teacher.

Entitlement to salary until binding judgement. Primary and Lower Secondary Education Act section 24 no. 3, Education Act section 16-2 and Employment Act section 66 no. 3 A teacher was summarily dismissed. She contested the validity of the dismissal and made a claim for salary to be paid from the date of dismissal until a binding judgement in the dismissal proceedings was passed. The dismissal was legally binding, and no legal proceedings had been instituted pursuant to section 66 no. 3 of the Employment Act claiming a right to remain in her post pending judgement with a corresponding right to salary. The Supreme Court held that the Employment Act did not empower the courts in summary dismissal cases to find the dismissal to be valid and fair but at the same time award salary from the date of dismissal, as the Court of Appeal had done. The order of the Court of Appeal was therefore overruled. Reference: HR-2004-01299-A, case no. 2003/1064, civil appeal.

30 June 2004 Extended confiscation.

Penal Code section 34a subsection 2. Confiscation of money found on the premises of a convicted drug offender The case concerns the standard of proof that property belongs to the convicted person that is required for the court to make an order to confiscate such property, see section 34a subsection 2 of the Penal Code. The case also raises questions related to the presumption of innocence in Article 6(2) of the European Convention on Human Rights. The Supreme Court held that it must be proven on a balance of probabilities that the property belonged to the convicted person. The confiscation order was upheld. Reference: HR-2004-01147-A, case no. 2004/581, criminal appeal.

28 June 2004 Property law, preservation order, grazing right.

Reindeer Farming Act section 11 subsection 2, second sentence. The case concerns the validity of a preservation order imposed on a part of a grazing area for reindeer pursuant to section 11 subsection 2 second sentence of the Reindeer Farming Act, and the compensation payable as a consequence of the order. The Supreme Court upheld the decision of the District Court and found that section 11 of the Reindeer Farming Act provided the requisite legal authority to make the order, and did not limit the power to make a permanent preservation order. Furthermore, the preservation order did not appear to be clearly unreasonable and it could not therefore be deemed to be invalid on those grounds. In coming to this conclusion, due consideration was given to Article 1 of the First Additional Protocol to the European Convention on Human Rights relating to protection of property. Article 27 of the International Covenant on Civil and Political Rights concerning ethnic, religious and linguistic minorities, could not lead to any other conclusion. The reindeer owners were not awarded compensation, cf. Article 105 of the Constitution. No order as to costs. Reference: HR-2004-01128-A, case no. 2003/1602, civil appeal.

28 June 2004 Tax law. Company Taxation Act section 6-6.

Taxation Act of 1911 section 51A-6 The case concerns two questions related to the special taxation scheme for ship owners as it applied in the fiscal year 1997. The first question was whether the limitation on the right of deduction in section 6-6 of the Company Taxation Act applies to unlimited liability partnerships taxable pursuant to the scheme. The second question was whether only the limited liability shipping company was liable to an income supplement for high equity/capital ration and low interest expenses pursuant to section 51A-6 no. 6 of the Taxation Act of 1911, or whether such a supplement should also apply to the underlying participating unlimited liability partnerships. The Supreme Court upheld the judgement of the Court of Appeal and found in favour of the State. Reference: HR-2004-01130-A, case no. 2003/1377, civil appeal.

28 June 2004 Forced mental health care. Penal Code section 39

The case concerns the conversion of preventive detention to forced mental health care. The main question was whether breach of section 229 first sentencing alternative cf. section 232 (occasioning bodily harm committed with intent and under aggravated circumstances) constitutes a “serious act of violence” within the terms of section 39 no. 1 of the Penal Code. The Supreme Court upheld the Court of Appeal’s decision to transfer the appellant to forced mental health care. Reference: HR-2004-01142-A, case no. 2004/580, criminal appeal

25 June 2004 Right of contact with a child taken into care

The case concerns the right of a parent to contact with a child after the child had been taken into care, see the Child Welfare Act section 4-19 subsection 2, first sentence. Reference: HR-2004-01112-A, case no. 2003/1577, civil appeal.

25 June 2004 Social security fraud. Value Added Tax Act section 72

Value Added Tax Act section 72 no. 2 subsection 2 cf. no. 3. Penal Code section 270 subsection 1 no. 1, cf. subsection 2 The case concerns sentencing for social security fraud and evasion of value added tax. The appellant’s appeal to have the sentence reduced to community service was dismissed. Reference: HR-2004-01113-A, case no. 2004/739, criminal appeal.

25 June 2004 Criminal procedure. Quashing of judgement. Criminal Procedure Act section 342

A man who was born in 1969 was convicted in the Court of Appeal of breach of section 132a subsection 1 (a) of the Penal Code for obstructing the course of justice, when he had unlawfully tried to get the victim of an assault to withdraw his report to the police. He appealed to the Supreme Court against the application of law relating to the question of guilt, and the appeal was upheld. The Supreme Court held that the Court of Appeal’s direction to the jury was so unclear that it was liable to give rise to uncertainty among the members of the jury. The Supreme Court therefore quashed the judgement of the Court of Appeal and the appeal proceedings. Reference: HR-2004-01114-A, case no. 2004/731, criminal appeal.

25 June 2004 Sentencing. Penal Code section 28a. Community service

The accused was convicted in the Court of Appeal and sentenced to 30 days’ imprisonment for breach of the Penal Code section 229, first sentencing alternative (occasioning bodily harm). Following his appeal against sentence, the Supreme Court passed a sentence of 45 hours’ community service together with an unconditional fine of NOK 5000. The Supreme Court held that there were special circumstances that justified not imposing an unconditional prison sentence in this case. The accused, who was a shop assistant in a kiosk, had hit a customer several times with his closed fist. However, the victim’s behaviour towards other customers and directly towards the accused had been both provoking and irritating. The Court held that the accused had acted in justified anger, see section 56(b) of the Penal Code. The Court also attached some weight to the fact that the accused had made a full admission as soon as he was arrested. The accused had previous fines for assault. Reference: HR-2004-01116-A, case no. 2004/590, criminal appeal.

25 June 2004 Compensation for non-economic loss. Compensation Act section 3-5 subsection 1(b)

The case concerns the amount of an award of compensation for non-economic loss following a conviction for sexual assault, cf. section 195 of the Penal Code. A man had sexual intercourse with a girl aged 13 years and 10 months with whom he had come into contact through a chat-line on the internet. Reference: HR-2004-01117-A, case no. 2004/249, civil appeal.

25 June 2004 Double jeopardy. Article 4(1) of Protocol 7 of the ECHR

The main issue in the case was whether there had been a violation of the ne bis in idem principle in Article 4(1) of Protocol 7 to the European Convention on Human Rights where a person had been imposed additional tax pursuant to section 10-2 of the Tax Assessment Act and surcharge pursuant to the Value Added Tax Act section 73, and later charged for failure to keep accounts during the same period. The Supreme Court held unanimously that the prohibition against repeated criminal proceedings did not apply. The appellant’s appeal against sentence was also dismissed, but with dissenting votes (3-2). Reference: HR-2004-01118-A, case no. 2004/350, criminal appeal.

18 June 2004 Sentencing. Sexual assault

The case concerns sentencing for five to six counts of sexual assault of an 8-9 year old boy, including one count of rape, see the Penal Code section 192 subsection 1 (a) and section 195 subsection 1, first sentencing alternative and subsection 2 (c). Reference: HR-2004-01077-A, case no. 2004/699, criminal appeal.

16 June 2004 Care proceedings

The case concerns judicial review of an order to take a child into care pursuant to section 4-12 of the Child Welfare Act and chapter 33 of the Civil Procedure Act. Reference: HR-2004-01057-A, case no. 2004/265, civil appeal.

16 June 2004 Assault, bodily harm. Community service.

Penal Code section 228 subsection 1 and section 229, first sentencing alternative cf. section 28 The appellant was convicted of bodily harm for having knocked a person to the ground. He was also convicted of assault for having head-butted another person a few months later. The Supreme Court amended the sentence passed down by the Court of Appeal from 60 hours’ community service to 60 days’ imprisonment. The Supreme Court held that a community service order as a general rule should not be made in assault cases, particularly if the accused commits a new and similar offence after he has been indicted for assault, as in the present case. Reference: HR-2004-01058-A, case no. 2004/532, criminal appeal.

16 June 2004 Venue and jurisdiction. Bankruptcy Act section 145

The case concerns the international competence of the Norwegian courts in a claim to set aside a transaction on the grounds of fraudulent preference in bankruptcy proceedings. In particular, the issue in the case was whether section 145 subsection 2 of the Bankruptcy Act gives the district court – formerly the probate court – jurisdiction to entertain a civil legal action against a company that otherwise does not have legal venue in Norway or, alternatively whether legal venue could be founded on unwritten general principles of law. Reference: HR-2004-01059-A, case no. 2004/256, civil appeal.

15 June 2004 Appraisal proceedings. Wrongful procedure.

Appraisal Proceedings Act section 2, Civil Procedure Act section 394 subsection 2 The Supreme Court quashed reappraisal proceedings a first time on the grounds of wrongful application of the law, having found that the threshold for nuisance pursuant to section 2 subsection 4 of the Neighbouring Properties Act had been set too low. At the new reappraisal proceedings, the landowner claimed compensation pursuant to section 2 subsection 3 of the Neighbouring Properties Act. The Court of Appeal found that it only had power to deal with a claim for compensation pursuant to section 2 subsection 4. The landowner appealed against the new reappraisal proceedings to the Supreme Court, who this time quashed the proceedings on the grounds of wrongful procedure. The Supreme Court referred to section 394 subsection 2, cf. section 392 subsection 2 and section 383 subsection 1 of the Civil Procedure Act, and held that a claim for compensation for general nuisance must be deemed to be one claim for the purposes of determining the courts’ powers to entertain a new claim pursuant to the Civil Procedure Act. This applies irrespective of which of the provisions of section 2 of the Neighbouring Properties Act the claim is based upon. The issue in section 2 subsection 4 is different to the issue in subsection 3. The possibility that compensation might have been awarded if the court had considered the claim in the light of section 2 subsection 3 could not be ignored. The requirements of section 384 subsection 1 of the Civil Procedure Act were therefore fulfilled, and the reappraisal proceedings must be quashed. Reference: HR-2004-01055-A, case no. 2003/1626, civil appeal.

8 June 2004 Tax law. Tax Agreement between Norway and the Ivory Coast

The issue in the case was whether a company which, for two short periods of time in 1996, had carried out seismic investigations on the seabed of the continental shelf off the Ivory Coast, was deemed to have a permanent establishment on the Ivory Coast for the purposes of the Tax Agreement between Norway and the Ivory Coast. Reference: HR-2004-01003-A, case no. 2003/1311, civil appeal.

8 June 2004 Claim for compensation following an acquittal in criminal proceedings.

Presumption of innocence in ECHR Article 6(2) The issue in the case was whether the grounds for the judgement determining a claim for compensation against the State following an acquittal in criminal proceedings constituted a violation of the presumption of innocence in Article 6(2) of the European Convention on Human Rights. The case also raised the question whether the court could entertain a plea to increase the amount of compensation, or whether such a plea was barred pursuant to section 366 subsection 1 of the Civil Procedure Act. This provision provides that a plea relating to an award that has already been made can only be extended if it can be shown on a balance of probabilities that the reason for the extension is circumstances that arose or became known to the party making the plea after the main hearing, or if the other party consents. Reference: HR-2004-01004-A, case no. 2003/772, civil appeal.

14 June 2004 Jurisdiction. Lugano Convention Article 5(1)

The case concerns jurisdiction for proceedings involving a claim for damages for breach of a sole distributor agreement. The dispute related in particular to the scope of the decision of the European Court in the WABAG case in 2002 (62000J0256). In that case, the European Court had found that the special jurisdictional rule in Article 5(1) of the parallel Brussels Convention is not applicable where the place of performance of the obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit. The Supreme Court found that the same must apply when the only designation of the place of performance in the purported sole distributor agreement was that it applied to sales on the Norwegian market. In those circumstances, jurisdiction could only be determined in accordance with the primary rule in Article 2 of the Lugano Convention. Reference: HR-2004-01040-A, case no. 2003/1520, civil interlocutory appeal.

8 June 2004 Dismissal of criminal proceedings. Sentencing. Implementation of Criminal Sentences Act

The issue in the case was whether criminal proceedings should be dismissed due to the fact that the appellant’s application for parole had been refused pursuant to section 42 subsection 5 of the Implementation of Criminal Sentences Act when serving sentence for previous convictions. The grounds for the refusal were that he was under indictment for the offences in the present case. See Article 4(1) of Protocol 7 to the ECHR. The case also concerns sentencing for false accusation and false testimony. Reference: HR-2004-00997-A, case no. 2003/1640, criminal appeal.

8 June 2004 Refusal of application for parole. Subsequent criminal proceedings. ECHR Protocol 7, Ar

The issue in the case was whether the refusal to grant an application for parole after two-thirds of the sentence had been served constitutes a bar to subsequent criminal proceedings against the prisoner, see Article 4(1) of Protocol 7 to the ECHR. The refusal was based on the risk of repeated offences on the grounds that a new indictment had been taken out for several serious criminal offences. Reference: HR-2004-00998-A, criminal appeal.

8 June 2004 Refusal of application for parole. Subsequent criminal proceedings. Reading aloud of po

The issue in the case was whether the refusal to grant an application for parole on the grounds that the prisoner was subject to prosecution for other/new criminal offences – in this case serious drug-related offences – constitutes a bar to subsequent criminal proceedings for those offences, see Article 4(1) of Protocol 7 to the ECHR. A second question was whether the Court of Appeal had committed a procedural error when it permitted the reading aloud of a statement made to the police by a witness who was not present in court at the time and upon whom it had not been possible to serve a summons to attend court. Reference: HR-2004-00999-A, case no. 2004/44, criminal appeal.

8 June 2004 Refusal of application for parole. Subsequent criminal proceedings. ECHR Protocol 7, Ar

The issue in the case was whether the refusal to grant an application for parole constitutes a bar to subsequent criminal proceedings against the appellant, see Article 4(1) of Protocol 7 to the ECHR. The refusal was based partly on the appellant’s behaviour whilst serving sentence in prison, which included smuggling drugs into prison when returning from parole, and partly on the presumed risk of him committing new offences during probation. Reference: HR-2004-01000-A, case no. 2004/395, criminal appeal.

8 June 2004 Freedom of choice of defence counsel. Sentencing. Murder. Penal Code section 233 subsec

The case concerns the appellant’s freedom to appoint defence counsel of his or her choice in circumstances where the choice results in a delay of the appeal hearing before the Court of Appeal, see section 275 subsection 2 and section 105 cf. section 102 of the Criminal Procedure Act. The case also concerns sentencing for murder, including the question whether the murder was perpetrated under especially aggravating circumstances. Reference: HR-2004-01002-A, case no. 2004/253, criminal appeal.

4 June 2004 Parallel import of drugs. Trade Marks Act section 4. Trade Marks Directive 89/104/EEC

The case concerns the parallel import of drugs, more particularly the right of the parallel importer to use his own packaging with vertical or horizontal coloured stripes or other graphical markings on the packaging for repacked drugs that carry the manufacturer’s trade mark, see section 4 of the Trademarks Act. The case gives rise to questions concerning the application of Article 7(2) of the First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to Trade Marks (89/104/EEC) (The Trade Mark Directive) Reference: HR-2004-00981-A, case no. 2002/582, civil appeal.

3 June 2004 Reading aloud of police statement

In a large drug case, the Court of Appeal had permitted a statement made by a witness to the police to be read aloud in court although the witness was not present in court at the time. The issue in the case was whether this was a procedural error and in breach of section 297 of the Criminal Procedure Act and Articles 6(1) and 6(3)(d) of the ECHR. Reference: HR-2004-00974-A, case no. 2004/322, criminal appeal.

1 June 2004 Registration Act

The issue in the case was whether a registered prohibition against sub-division of land was an impediment to the registration of proceedings relating to the partition of land. Reference: HR-2004-00960-A, case no. 2003/1267, civil interlocutory appeal.

25 May 2004 Reading aloud of police statement. Criminal Procedure Act section 232 subsection 3

The Court of Appeal had permitted a statement made by the appellant and recorded by the police without the appellant’s guardian being present to be read aloud. The issue in the case was whether this was a procedural error that must lead to the Court of Appeal’s judgement being quashed, see section 232 subsection 3 of the Criminal Procedure Act. Reference: HR-2004-00931-A, case no. 2004/451, criminal appeal.

25 May 2004 Sentencing. Speeding. Road Traffic Act section 31

The case concerns sentencing for speeding offences where the speed of the car had been measured using a laser gun. The issue in the case was whether defects in carrying out the laser measurement were of such a nature that the laser measurement could not be relied upon when determining the sentence to be applied. The Supreme Court found that the errors that had taken place did not cast any doubt upon the result of the measurement, and dismissed the appeal. Reference: HR-2004-00932-A, case no. 2004/137, criminal appeal.

14 May 2004 Prohibition against water-scooters. EEA Agreement Articles 8 and 11

The appellant had submitted that the prohibition against water scooters in section 39 cf. sections 38 and 40 of the Pleasure and Small Watercraft Act fell within the scope of “quantitative restrictions on imports” or “ measures having equivalent effect” in Article 11 of the EEA Agreement. Consequently, the prohibition must be set aside pursuant to the provision relating to precedence in Article 2 of the EEA Act. However, once it was proven that the water scooters originated from outside the European Economic Area, Article 11 could not apply pursuant to Article 8 no. 2 of the EEA Agreement. Reference: HR-2004-009+2-A, case no. 2003/1094, criminal appeal.

14 May 2004 Long-standing family violence. Sentencing. Penal Code section 228 cf. section 232

From 1995 until 2000, the appellant had repeatedly beaten his wife around the head with his fist and open hand, and pushed and kicked her. The offence was deemed to be a continuing assault causing serious mental harm and perpetrated under especially aggravating circumstances. The District Court and the Court of Appeal had sentenced the appellant to 18 months imprisonment. The Supreme Court reduced the term of the prison sentence to 15 months. The Court stated that the sentence should reflect the threat of violence under which the appellant’s wife and children had lived for many years and the risk of long-term damage that living under such circumstances carries. Reference: HR-2004-00907-A, case no. 2004/389, criminal appeal.

14 May 2004 Penal Code section 235. Consent to assault.

The issue in the case was whether a 15-year-old boy had given informed consent to an assault comprising the injection of amphetamine into his veins, with the result that the assault could not be penalised, see section 235 of the Penal Code. The Supreme Court dismissed the appeal that was brought by the prosecution, and concurred with the Court of Appeal’s and District Court’s interpretation of the law. Reference: HR-2004-00908, case no. 2004/391, criminal appeal.

12 May 2004 Amendment to contact order. Children Act section 31. UN Convention on the Rights of the

The issue in the case was whether there had been a procedural error when a child had not been asked to express its opinion in connection with a petition to amend a contact order. The Supreme Court referred to the decision reported in Rt 1997 442. A child is entitled to express its opinion in questions related to contact provided he or she is of sufficient age, maturity and development. This is laid down both in section 31 of the Children Act and in Article 12 of the UN Convention on the Rights of the Child. However, in each individual case, these considerations must be weighed against the overriding principle of the best interests of the child. The Supreme Court found that in this particular case, there had been no procedural error when the child had not been asked by the court whether he wished to state his opinion. Reference: HR-2004-00882-A, case no. 2004/104, civil appeal.

12 May 2004 Sentencing. Failure to render necessary assistance. Penal Code section 314 subsection 1

The mate on watch on board a chemical vessel failed to render the necessary assistance when two vessels collided and several lives were lost. He was convicted in the District Court and sentenced to five years’ imprisonment. His appeal against sentence was dismissed. The Supreme Court found that the mate was aware that the crews on board the ships were in serious danger after the collision. Notwithstanding, he consciously and intentionally failed to render the assistance that was necessary and continued his journey as if nothing had happened. He exposed those who in the end were saved to a serious risk of death. It was an aggravating circumstance that the mate’s motive for failing to render assistance was exclusively to avoid his share of the liability for the collision. In addition, he had ordered the seaman on watch not to report the collision to anyone else. Reference: HR-2004-00833-A, case no. 2004/270, criminal appeal.

10 May 2004 Occasioning bodily harm. Community service.

Penal Code section 229, second sentencing alternative, cf. section 232, Penal Code section 228 subsection 1 and section 28a. The case concerns sentencing of a 15-year-old boy for occasioning bodily harm under especially aggravating circumstances. The offence involved grievous, planned and unprovoked violence against a 62-year-old man, whom the appellant had repeatedly beaten and kicked in the head. The appellant’s appeal against sentence to the Supreme Court was dismissed, and he was ordered to 210 days’, community service in accordance with the judgement of the Court of Appeal. The majority of the Supreme Court found that although the general sense of justice might indicate that an unconditional custodial sentence is the appropriate sanction for such a grievous act of violence, the situation is different when the offender is so young, where the individual preventive considerations weigh heaviest. Two of the five justices dissented. Reference: HR-2004-00860-A, case no. 2004/392, criminal appeal.

7 May 2004 Owner-Occupied Units Act section 43

The issue in the case was whether a claim for enforcement against an owner-occupier co-ownership can be issued against the chairman of the board of the co-ownership on behalf of the co-ownership as such, or whether the claim has to be issued against the individual owners of each unit. Reference: HR-2004-00849-A, case no. 2003/1564, civil interlocutory appeal.

6 May 2004 Inheritance Act section 18 subsection 1

The case concerns the right of disposition of a surviving spouse over property held by her for life, where the deceased had left the property in his will to the spouses’ common issue. Reference: HR-2004-00836-A, case no. 2003/911, civil appeal.

6 May 2004 Condictio indebiti. Claim for reimbursement after settlement of an execution lien

In connection with the sale of the common home, A settled her former cohabitee’s execution debt to the appellant bank in order that the property could be transferred free of all mortgages and charges. A then sued the bank to have the money reimbursed. She was successful in the District Court and the Court of Appeal. The lower courts found that the bank should not have claimed payment of the secured debt insofar as it was aware that payment would have to be covered from that part of the proceeds of sale that was due to A. The bank appealed to the Supreme Court, which upheld the appeal. The Court found that it was up to the bank whether it would consent to cancel the execution lien without having received full satisfaction. A was in a difficult situation when she paid Bs debt, and was left with only an unsecured claim in regress against him. However, this was a consequence of the sale agreement that they had signed. Settlement of the execution debt to the bank was not due to any misunderstanding on A’s part. It was unnecessary to consider whether the conditions for reimbursement pursuant to the principle of condictio indebiti were fulfilled. Reference: HR-2004-00838-A, case no. 2003/1580, civil appeal.

6 May 2004 Sentencing. Murder with intent. Penal Code section 233 subsection 1

A, who was an asylum seeker, had killed another asylum seeker at an asylum centre by stabbing him with a knife in the face, throat, back and hip. Injuries suffered in the course of defending himself and the fact that the act took place over a length of time indicated that the victim must have suffered great fear. In the District Court and the Court of Appeal, A argued unsuccessfully that he had acted in self-defence when A had raped him. A was sentenced by both the District Court and the Court of Appeal to 11 years’ imprisonment. A’s appeal against sentence to the Supreme Court was dismissed. The level of sentences for murder has increased slightly over the last few years, and a sentence of 11 years’ imprisonment was not wrong when compared to the general level of sentences for the kind of murder in the present case. Reference: HR-2004-00839-A, case no. 2004/221, criminal appeal.

3 May 2004 Patent Act section 61 and Enforcement of Civil Claims Act chapter 15

The main issue before the Supreme Court was whether a court charged with determining a petition for an injunction can make a prejudicial ruling on the validity of a patent, see section 61 of the Patent Act and chapter 15 of the Enforcement of Civil Claims Act. Reference: HR-2004-00813-A, case no. 2004/75, civil interlocutory appeal.

3 May 2004 Penal Code section 162, subsections 1 and 2 (drug offences)

The case concerns sentencing for several offences, including drug-related offences, accounting offences and violation of the firearms legislation. The main issue in the case was whether it was justified in the circumstances to impose a community service order. Reference: HR-2004-00814-A, case no. 2003/1525, criminal appeal.

3 May 2004 Drug offences. Sentencing. Penal Code section 162

The case concerns sentencing for the storage of 1856.3 grams of hashish pursuant to section 162 subsection 1 cf. subsection 1 of the Penal Code. The term of the unconditional prison sentence imposed by the Court of Appeal was reduced from 12 to 7 months. The Supreme Court took into account the length of time it had taken to bring the case to trial. See also the judgement of the Supreme Court of the same date in HR-2004-00815-A, case no. 2004/363. Reference: HR-2004-00816-A, case no. 2004/297, criminal appeal.

30 April 2004 Sentencing. Penal Code section 195 subsection 1

The case concerns sentencing for breach of section 195, subsection 1, second sentencing alternative of the Penal Code. A 20-year-old man had sexual intercourse with a girl aged 13 years and 9 months. The sentence also included sentences for breach of section 229 of the Penal Code (occasioning bodily harm) and breach of section 17 of the Sobriety Act. Reference: HR-2004-00803-A, case no. 2004/371, criminal appeal.

29 April 2004 Sentencing. Premeditated murder. Penal Code section 233

The case concerns sentencing for premeditated murder, cf. section 233 subsections 1 and 2 of the Penal Code. The appellant’s appeal was dismissed. Reference: HR-2004-00700-1, case no. 2003/1457, criminal appeal.

29 April 2004 Submission of advisory opinion

The issue in the case was whether a party to a civil action was entitled to submit as evidence a question that had been submitted to the EFTA Court by the Supreme Court in its application for an advisory opinion, or whether the question fell within the definition of a statement made for the purpose of the case in section 197 of the Civil Procedure Act (in which case the right to submit the statement as evidence is limited). Reference: HR-2004-00800-A, case no. 2002/582, civil appeal.

28 April 2004 Recurring desertion from civil military service

After having served six months’ civil military service in 1996, A failed to return after a period of leave. Thereafter, he refused to meet every time he was called up. Reference: HR-2004-00796-A, case no. 2004/423, criminal appeal.

28 April 2004 Prizes awarded by a radio channel. Calculation of VAT

The case concerns the calculation of VAT on prizes donated by advertisers and awarded to listeners to the P4 Radio Hele Norge AS radio channel. Reference: HR-2004-00795-A, case no. 2004/10, civil appeal.

22 April 2004 Motor car accident. Sentencing

A was convicted in the District Court and sentenced to 30 days’ unconditional imprisonment for having negligently caused serious personal injury. He had run down a pedestrian who was crossing the road at a pedestrian crossing. It was dark, but the crossing was lit up. Reference: HR-2004-00764-A, case no. 2004/215, civil appeal.

22 April 2004 Pollution Control Act

Esso Norge AS ran an oil refinery at Slagentangen near the town of Tønsberg. On 16 September 1998, it was discovered that there had been a leakage in a 115 700 cubic metre crude oil tank. The leakage was estimated at 300 cubic meters, of which 200 cubic meters of oil were retrieved. There was no proof that oil had leaked out of the refinery area or into the sea. Reference: HR-2004-00763-A, case no. 2004/47, criminal appeal.

21 April 2004 Compensation for plant disease

The case concerns a claim for compensation brought by a cucumber farmer against a supplier of bamboo canes. The canes were used as support canes for cucumber plants. The farmer suffered loss when his cucumber crop was destroyed by a plant disease caused by an infection that was transmitted by the canes. Reference: HR-2004-00755-A, case no. 2003/803, civil appeal.

20 April 2004 Date for informal service in the event of absence from the office over several days.

The appellant’s counsel had been out of the office and out of town from before the post was delivered on Monday, 24 February 2003 until the afternoon of Friday, 28 February 2003. The judgement of the Court of Appeal was delivered to counsel’s office on Tuesday, 25 February 2003. Service was acknowledged on Friday, 28 February 2003. The respondent’s petition to dismiss the appeal on the grounds that it was out of time was dealt with by a chamber of the Supreme Court together with the appeal. The Court found that the appeal was out of time, as the judgement was deemed to be served at an earlier date. Reference: HR-2004-00727-A, case no. 2003/577, civil appeal.

20 April 2004 Sentencing. Deduction for time spent on remand in custody

A was convicted in the District Court for serious fraud and sentenced to 4 years and 9 months’ imprisonment. He appealed against the judgement of the District Court in its entirety. The Court of Appeal granted leave to appeal against sentence, whilst leave to appeal in all other respects was refused. The appeal was heard without an appeal hearing pursuant to section 322 subsection 1 no. 3 of the Criminal Procedure Act, and the sentence was reduced to 4 years’ imprisonment. A reduction was granted for time spent on remand in custody in Norway, but not for a longer period spent in custody in the USA after the judgement of the District Court had been delivered. Reference: HR-2004-00741-A, case no. 2003/753, criminal appeal.

19 April 2004 Tax Assessment Act. ECHR

The background for the case was the plenary decisions of the Supreme Court of 3 May 2002. The issue in the case was whether, when imposing a fine for breach of the Tax Assessment Act, an amount equivalent to 30 % surcharge could be incorporated into the fine. A had failed to deliver a personal tax declaration for 2001 within the specified deadline. Reference: HR-2004-00721-A, case no. 2004/184, criminal appeal.

19 April 2004 Breach of terms of community service order

The issue in the case was whether, in the event of a breach of the terms of a community service order, the court has the power to convert a suspended prison sentence to a partially conditional sentence, cf. section 28 b, subsection 1 of the Penal Code. A was sentenced to 120 days’ community service, alternatively 120 days’ imprisonment, on the condition that he complied with terms regarding place of residence etc. to be determined by the probation service. Reference: HR-2004-00722-A, case no. 2004/135, criminal interlocutory appeal.

3 April 2004 Right to extract power at cost

The case concerns a claim by five local authorities in the County of Østfold to a perpetual right to extract power from the Borgund power station at cost. Reference: HR-.2004-00678-A, case no. 2003/1062, civil appeal.

3 April 2004 Sentencing. Drug offences

A, who was born in 1957, was convicted in the District Court and Court of Appeal and sentenced to 12 months’ imprisonment for having stored 1856.3 grams of heroin with the intention to sell. The offence was committed together with his common law wife. Reference: HR-2004-00816-A, case no. 2004/297, criminal appeal.

2 April 2004 Sentencing, mistreatment of corpse

Three men were convicted in the District Court of aggravated theft, criminal damage and mistreating a corpse in connection with a break-in at the funeral chapel at Nordre Gravlund graveyard on the nights of 14 and 15 June 2003. Reference: HR-2004-00666-A, case no. 2004/126, criminal appeal.

2 April 2004 Punishment of children. Sentencing. Compensation

A man was convicted of physical assault of three children. The case concerns sentencing of the man and compensation to the children. From 1989 until 2001, A had treated his stepson and two biological sons very harshly. On a regular basis – between once a week and every other month – he pulled their hair, pinched them hard on their arms and legs, their cheeks and ears, or twisted their ears round causing pain. Reference: HR-2004-00659-A, case no. 2004/217, criminal appeal.

2 April 2004 Sentencing for murder with intent

The case concerns sentencing for murder with intent. A was convicted in the District Court and in the Court of Appeal and sentenced to 13 years’ imprisonment for the murder of a taxi driver, cf. section 233 subsection 1, cf. subsection 2 of the Penal Code. A stabbed the victim, whom he knew, approx. 30 times with a knife, and many of the stab wounds were fatal. The killing took place in the victim’s taxi. Reference: HR-2004-00658-A, case no. 2004/289, criminal appeal.

2 April 2004 Protective custody following conviction for sexual abuse of child

A 69-year-old man was convicted in the District Court and in the Court of Appeal, and a protective custody was imposed, for breach of section 195 cf. section 49 of the Penal Code – attempted anal intercourse with a 12-year-old boy. Reference: HR-2004-00667-A, case no 2004/271, criminal appeal.

1 April 2004 Allodial rights

The issue in the case was whether an area of land subject to a regulation plan, which included an area regulated for building holiday homes, could be assigned as allodial land together with the rest of the property. Reference: HR-2004-00643 A, case no. 2003/1374, civil appeal.

1 April 2004 Release from forced mental health care

The case concerns the time taken to process a decision to release a person from forced mental health care. A was taken into forced mental health care in November 2001 and he applied for his release on 14 August 2002. The Control Commission for Mental Health dismissed the application on 29 August 2002. Reference: HR-2004000655-A, case no. 2004/56, civil appeal.

31 March 2004 Statutory lien for renovation tax

The issue in the case was whether a statutory lien pursuant to section 34 subsection 5 of the Pollution Protection Act, cf. section 6-1 subsection 2 (a) of the Mortgage Act, includes debt recovery costs pursuant to section 17 subsection 1 of the Debt Recovery Act where debt recovery takes place out of court. Following an application from the Norwegian State Housing Bank, the Lofoton Sheriffs Court ordered the compulsory sale of a property in the local authority of Vågan. In the order concerning the distribution of the proceeds of sale, unpaid renovation tax for the period from the first quarter of 2000 to the second quarter of 2002 was allocated to the Vågan local authorty/Lofoton Renovation Company. The Court found that the costs of recovering the debt, amounting to NOK 7 674, were not protected by a statutory lien. Reference: HR-2004-00639-A, case no. 2003/1486, civil appeal.

24 March 2004 Allodial rights. Smallholding run as a hobby

Three siblings took over the running of a smallholding following the death of their parents. The eldest son, who was also the first in line to inherit the smallholding pursuant to the Allodial Rights Act, ran the smallholding together with his younger brother from 1982 until 1995, when he pulled out. It was the younger brother who was most interested in farming and who did most of the work. Reference: HR-2004-00612-A, case no. 2003/1262, civil appeal.

24 March 2004 Illegal import and storage of a very large quantity of Rohypnol tablets. Sentencing

A and B, who were brothers and 33 and 24 years old respectively, were convicted in the Asker and Bærum District Court for the legal import and storage of 257 270 Rohypnol tablets. Reference: HR-2004-00611-A, case no 2004/113, criminal appeal.

24 March 2004 Right to set off employer’s national insurance contribution against a bankrupt’s clai

In October 2001, the estate of the company Brødrene Karlsen AS was put into liquidation by order of the probate court. After the liquidation was ordered, the estate made a claim for deficit accrued in 2000 and 2001 to be repaid to the fiscal year 1999, see section 14-7 of the Taxation Act. Reference: HR-2004-00610-A, case no. 2003-1376, civil interlocutory appeal.

24 March 2004 Attempted murder. Drugs. Protective custody. Requirement of risk of repeated offences

The case concerns the imposition of a protective custody order for two attempted murders. A, who was 25 years old and a member of a drug community, was convicted of the attempted murder of two men, both of whom he knifed in the stomach. Reference: HR-2004-00613-A, case no. 2003/1239, criminal appeal.

23 March 2004 Publication of photograph of an accused person on her way out of court

The question in the case was whether the editors of the two national newspapers, Aftenposten and Dagbladet, could be punished for having published photographs of Veronica Orderud leaving the Nes District Court on 21 June 2001 after her conviction for triple murder. The photographs were published without Orderud’s consent. Reference: HR-2004-00586-A, case no. 2003/1485, criminal appeal.

23 March 2004 Norwegian Maritime Code

The case concerns the limitation of the carrier’s liability related to the gross weight of the goods. During a bad-weather crossing from Norway to Denmark, a semi-trailer tipped over and hit a similar semi-trailer that was parked next to it. Both trailers were condemned, whilst the damage to the cabs was only very moderate. Reference: HR-2004-00588-A, case no. 2003/1542, civil appeal.

19 March 2004 Stolen debit card. Misuse. Gross negligence

The issue in the case was whether A had acted grossly negligently. In 2002, A rented a private apartment in Barcelona. On the final day, he left the apartment for a couple of hours. His Mastercard and two other bankcards were in his wallet, which was packed in a locked suitcase. The PIN-codes to the bankcards were written down in a slightly camouflaged manner in his diary, which was also in the suitcase. The Mastercard was stolen and money was withdrawn from his account. Reference: HR-2004-00568-A, case no. 2003/1111, civil appeal.

18 March 2004 Embezzlement. Sentencing. Community service

A was an agent for a company. His work involved emptying and servicing slot machines in his district. Over time he developed pathological addiction to gambling, and between August 2002 and January 2003 he embezzled approx NOK 500 000 from the company. Reference: HR-2004-00565-A, case no. 2003/1632, criminal appeal.

17 March 2004 Competence of judge. Courts of Justice Act section 108

The appellant was convicted in the District Court and sentenced to 13 years’ imprisonment for grievous drug offences and aggravated theft. He appealed against procedure, including the competence of the presiding judge of the District Court, and against the assessment of evidence related to the question of guilt and against sentence. Reference. HR-2004-00546-A, case no. 2003/793, criminal appeal.

17 March 2004 Tax for use of road in a port area. Change in circumstances

The main issue in the case was the lawfulness of a provision in the tax regulations for Tromsø Port Authority. The provision imposed a tax on the owners of heavy vehicles of NOK 100 pr day pr vehicle for access to and from a site leased by Nordic in the port area. Reference: HR-2004-00545 A, case no. 2003/1370, civil appeal.

17 March 2004 Occupational injury. Injury caused by falling whilst on a social outing with work

The issue in the case was whether an injury suffered by an employee whilst he was on a social outing organised by his employer falls within the scope of an occupational injury pursuant to section 13-6 subsection 2 of the National Insurance Act. Reference: HR-2004-99556-A, case no. 2003/1466, civil appeal.

17 March 2004 Storage of 460 g amphetamine. Sentencing.

The case concerns an appeal brought by the prosecuting authority against sentence in a narcotics case where the primary offence was the storing of 460 g amphetamine of 40-45 % purity. The main question was whether it was justified in the circumstances to impose a fully suspended sentence or a community service order. Reference: HR-2004-99558-A, case no. 2004/421, criminal appeal.

16 March 2004 Criminal Procedure Act section 297, ECHR Article 6

The case concerns the right to read aloud in court the appellant’s statement to the police in a case concerning compensation for non-economic loss, cf. section 297 of the Criminal Procedure Act and Article 6 of the ECHR/Human Rights Act. Reference: HR-2004-00544-A, case no. 2003/1026, civil appeal.

12 March 2004 Sexual assault of a child. Penal Code section 195 subsection 1.

The case concerns sentencing for three counts of sexual assault of a 9-year-old girl, cf. section 195 subsection 1, first sentence and subsection 2(c) of the Penal Code. Reference: HR-2004-00518-A, case no. 2004/168, criminal appeal.

5 March 2004 Murder. Penal Code section 233, subsections 2 and 3

The case concerns sentencing for murder with intent, including murder perpetrated under especially aggravating circumstances, cf. section 233, subsections 2 and 3 of the Penal Code. Reference: HR-2004-00467-A, case no. 2003/1488, criminal appeal.

27 February 2004 False accusation of murder

The case concerns sentencing pursuant to section 168, first sentencing alternative of the Penal Code for false accusation of murder. Reference: HR-2004-00467-A, case no. 2003/1488, criminal appeal.

27 February 2004 Occasioning bodily harm. Penal Code section 229

The case concerns the interpretation of the term “reduces any person to helplessness, unconsciousness or any similar state” in section 229 of the Penal Code (occasioning bodily harm). Reference: HR-2004-00419-A, case no. 2003/1599, criminal appeal.

25 February 2004 Reopening of criminal case. Sentencing

The case concerns an interlocutory appeal against the decision of the Court of Appeal to dismiss a petition to reopen a case. The grounds for the petition were that the appellant was convicted pursuant to a provision in section 192 of the Penal Code (rape) which, at the time of the criminal act, had been passed by the parliament but not publicised in the Legal Gazette. Reference: HR-2004-00393-A, case no. 2003/1169, criminal interlocutory appeal.

25 February 2004 Sentencing. Theft. Penal Code section 257

The case concerns sentencing for theft in circumstances where the appellant had several previous convictions, mostly for petty crimes for profit and drug-related offences. Case history: Gulating Court of Appeal LG-2003-02156 – Supreme Court HR-2004-00395-A, criminal appeal.

24 February 2004 Employment law. Salary during notice period. Pay after termination of employment

The case concerns the right to salary during the notice period and to pay after termination of employment in the form of a compensation package following reduction in production levels at the workplace. Case history: Oslo City Court no. 00-10888 A/63 – Borgarting Court of Appeal LB-2002-02932 A/01 – Supreme Court HR-2004-00374-A, civil appeal.

24 February 2004 Conversion of preventive detention to protective custody.

Norwegian Constitution Article 97, ECHR Article 7, ECHR Protocol 7, Article 4 The case concerns an appeal against the application of law in a case concerning the conversion of the former criminal sanction of preventive detention to a protective custody order. There were two main questions. Firstly, whether the instigation of proceedings to convert the preventive detention order to a protective custody order represents a violation of the ne bis in idem principle in Article 4(1) of Protocol 7 to the ECHR. Secondly, whether the actual conversion represents a violation of the rule whereby legislation shall not be given retroactive effect, see Article 97 of the Convention and Article 7 of the ECHR/The Human Rights Act. Case history: Asker and Bærum District Court no. 02-02722 M/01 – Borgarting Court of Appeal LB-2003-01614 M/02 – Supreme Court HR-2004-00375-A, criminal appeal.

24 February 2004 Local authorities’ right of first refusal to purchase apartment building

The case concerns the conditions that have to be fulfilled to exercise the right of first refusal upon sale of a property pursuant to the Act of 29 April 1977 no. 34 relating to local authorities’ right of first refusal to purchase apartment buildings. The main issue was whether a garage area shall be deemed to be an area for commercial or residential use. Case history: Oslo City Court no 2000-09714 A – Borgarting Court of Appeal LB-2002-01662 A/01 – Supreme Court HR-2004-00378-A, civil appeal.

24 February 2004 Presumption of innocence in the ECHR

The issue in the case was whether a judgement ordering the accused in a criminal case to pay compensation to the victim after the accused had been acquitted of the crime, constitutes a violation of the presumption of innocence in Article 6(2) of the ECHR. Case history: Eidsvoll District Court no. 02-00101 – Eidsivating Court of Appeal LE-2003-00060 M – Supreme Court HR-2004-00379, civil appeal.

24 February 2004 Penal Code section 195. Sexual assault of a minor

A 17-year-old boy was convicted of sexual assault of a 7-year-old girl. Case history: Inderøy District Court no. 03-237 M – Frostating Court of Appeal LF-2003-03490 AST – Supreme Court HR-2004-00380-A, civil appeal.

24 February 2004 Exploitation of another person’s prostitution

The issue in the case was what amounts to “exploiting another person’s engaging in prostitution” in section 206 of the Penal Code prior to the amendment of Chapter 19 of the Penal Code, and “exploiting another person’s prostitution” in section 202 subsection 1 (b) following the statutory amendment. More particularly, the question was whether the proprietors of a campsite at which a large number of the female guests were engaged in prostitution could be punished in circumstances where they did not know which of the guests were engaged in prostitution. Case history: Tana and Varanger District Court nos. 01-00462/00463/00464/00465 – Hålogaland Court of Appeal nos. LH-2003-00315, LH-2003-00316, LH-2003-00317 and LH-2003-00318 – Supreme Court HR-2004-00381-A, criminal appeal.

24 February 2004 Tax law. Tax assessment. Deduction for business travel

The case concerns a pilot’s claim for tax deductions for air travel between his home and place of work, based on a kilometre rate, in circumstances where the air ticket was purchased at a reduced rate by virtue of the pilot’s employment. Case history: Bergen City Court 02-1595 A/01 – Gulating Court of Appeal LG-2002-02241 A/01 – Supreme Court HR-2004-00384-A, civil appeal.

19 February 2004 Requirement of intent

The case concerns the Court of Appeal’s interpretation of the requirement of intent in section 127 subsection 1, first sentencing alternative of the Penal Code (incitement of public servant to perform or omit to perform an official act). Case history: Borgarting Court of Appeal – Supreme Court HR-2004-00352-A, criminal appeal.

12 February 2004 Industrial Injury Insurance Act

The case concerns an employee’s claim for compensation pursuant to section 11 subsection 1(c) of the Industrial Injury Insurance Act. The issue in the case was whether a deep vein thrombosis, which a welder developed in the course of his work, fell within the scope of the provision and, consequently, whether the If insurance company was liable as insurer. Kragerø District Court no. 00-00250 A – Agder Court of Appeal LA-2002-00446 A – Supreme Court HR-2004-00410-A, civil appeal.

12 February 2004 Civil protection of lease

The issue in the case was whether a lease on real property enjoys civil protection in the event of expropriation and, consequently, whether the lessee is entitled to claim damages. Case history: Eidsivating Court of Appeal – Supreme Court HR-2004-00311-A, civil appeal.

12 February 2004 Sexual assault of a minor

The case concerns sentencing for sexual assault of a 14-year-old girl with whom the appellant had established contact via the internet, see section 196 subsection 1 of the Penal Code. Case history: Gulating Court of Appeal – Supreme Court HR-2004-00312-A, criminal appeal.

11 February 2004 Sentencing. Smuggling of Humans. Immigration Act section 47

The case concerns sentencing for the organised smuggling of humans. Case history: Gulating Court of Appeal – Supreme Court HR-2004-00299-A, criminal appeal.

11 February 2004 Company Taxation Act section 5-5 subsection 2

The issue in the case was whether dividends from a foreign company that were not liable to taxation pursuant to a tax agreement, should be taken into account in calculating the RISK-value (regulation of the input value of shares in connection with a change in the company’s taxable capital) of the Norwegian parent company, see section 5-5 no. 2 of the Company Taxation Act. Case history: Oslo City Court no. 01-11990 A/27 – Borgarting Court of Appeal LB-2003-00087 A/01 – Supreme Court HR-2004-00300-A, civil appeal.

11 February 2004 Multiple rape

One of the issues in the case was what comprises “insertion of the penis into the mouth” and thereby to be equated with sexual intercourse, see section 206, second sentence of the Penal Code. The case also concerns sentencing for several rapes committed on the same day. Case history: Drammen District Court no. M02-1703 – Borgarting Court of Appeal LB-2003-00747 M/02 – Supreme Court HR-2004-00301-A, criminal appeal.

6 February 2004 Sale of heroin

The case concerns sentencing for the illegal sale of 17.5 grams of heroin. Case history: Stavanger City Court – Gulating Court of Appeal LG-2003-00983 M/01 – Supreme Court HR-2004-00263-A, criminal appeal.

5 February 2004 Taxation Act. Severance pay.

The issue in the case was whether severance pay paid pursuant to a wage agreement between Posten Norge and the Postal Workers Union was not liable to tax pursuant to section 42 subsection 3 (h) of the Taxation Act of 1911 and section 5-15 subsection 1 (a) of the Taxation Act of 1999. Case history: Bergen City Court – Gulating Court of Appeal LG-2002-02147 – Supreme Court HR-2004-00246-A, civil appeal.

5 February 2004 Protective custody. Penal Code section 233 subsection 1

The case concerns the imposition of a protective custody order following a conviction for murder. Case history: Moss District Court no. 03-00166M – Borgarting Court of Appeal LB-2003-02185 M/01 – Supreme Court HR-2004-00247-A, criminal appeal.

5 February 2004 Child pornography

The case concerns sentencing for the illegal possession of child pornography. Case history: Borgarting Court of Appeal – Supreme Court HR-2004-00248-A, criminal appeal.

3 February 2004 Courts of Justice Act section 108. Competence

The case concerns the competence of two judges to hear a case. Case history: Borgarting Court of Appeal LB-2003-00087 A/01 – Supreme Court HR-2004-00215-A, civil appeal.

3 February 2004 Ground Lease. Ground rent

The issue in the case was whether the interest stipulated in a ground lease erroneously provided double compensation for inflation in the calculation of a ground rent where the lease also contained a regulation clause. Case history: Sunnfjord District Court no. 2001-00087 – Gulating Court of Appeal LG-2001-02268 B/02 – Supreme Court HR-2004-00218-A, civil appeal.

30 January 2004 Reduction of liability. The Compensation Act

A 22 year-old-man was convicted for breach of section 148 subsection 1 of the Penal Code (arson) and for grievous criminal damage, see section 291 cf. section 292 of the Penal Code. In the criminal judgement, he was ordered to pay almost NOK 1.5 million to the insurance company that had paid out compensation for the damage caused by the fire. The issue in the case related to the reduction of his liability towards the insurance company pursuant to section 5-2 of the Compensation Act. Case history: Tønsberg District Court no. 02-01105 – Agder Court of Appeal LA-2002-01871 – Supreme Court HR-2004-00198, civil appeal.

27 January 2004 Tax law. Article 6(1) of the European Convention on Human Rig

The issue in the case was whether an administrative decision to impose surcharge was made within a reasonable time, see Article 6(1) of the European Convention on Human Rights. Case history: Oslo City Court no. 00-07134 A/53 – Borgarting Court of Appeal LB-2002-00254 A/03 and LB-2002-00256 A/03 – Supreme Court HR-2004-00155, civil appeal.

26 January 2004 Product Liability Act section 2-1

The issue in the case was whether the importer and distributor of dental reconstruction material is liable in damages towards a dentist who developed an allergic reaction to the material and who therefore had to change his occupation, see section 2-1 of the Product Liability Act. Case history: Oslo City Court no. 00-01484 A/21 – Borgarting Court of Appeal LB-2002-00615 A/01 – Supreme Court HR-2004-00145, civil appeal.

26 January 2004 Penal Code section 326 no. 1. Police Instructions section 12-4

The case concerns the application of section 326 no. 1 of the Penal Code, which provides that any person shall be liable to fines or imprisonment for a term not exceeding six months who prevents or attempts to prevent any public servant from lawfully performing his duties or refuses to admit him to places he is lawfully entitled to enter. Case history: Oslo City Court no. 02-08951 M/34 – Borgarting Court of Appeal LB-2003-01110 M/01 – Supreme Court HR-2004-00146, criminal appeal.

22 January 2004 Cyber crime

The case concerns a person who was convicted of several counts of hacking into the data system of a competing business. Case history: Kristiansand District Court – Agder Court of Appeal LA-2003-00083 – Supreme Court HR-2004-00127, criminal appeal.

22 January 2004 Criminal procedure.

Criminal Procedure Act section 290. Article 6of the European Convention on Human Rights The issue in the case was whether the Court of Appeal had committed a procedural error in a comprehensive drugs case. The Court had allowed the statement that one of the accused persons had made to the police to be read aloud, notwithstanding that he had availed himself of his right to refuse to testify in court. Case history: Oslo City Court no 2000-02884 – Borgarting Court of Appeal LB-2002-01805 M/02 – Supreme Court HR-2004-00128, criminal appeal.

22 January 2004 Marriage Act section 59 subsection 1

The case concerns the calculation of the value of an undeveloped plot of land which one of the spouses had inherited and upon which the spouses had built the marital home, for the purposes of withholding the said value from the equal division of the estate upon divorce, see section 59 subsection 1 of the Marriage Act. Asker and Bærum Probate Court no. 02-01308 A – Borgarting Court of Appeal LB-2003-00500 A/03 – Supreme Court HR-2004-00143, civil appeal.

21 January 2004 Employment law. Education Act section 10-1

The issue in the case was whether the employment contract of a teacher at a school in Oslo had been terminated. Case history: Oslo City Court no. 02-07144 A/48 – Borgarting Court of Appeal LB-2003-00442 A/03 and LB-2003-00443 A/03 – Supreme Court HR-2004-00119, civil appeal.

20 January 2004 Employment Act section 47 no. 1

The issue in the case was whether the requirement in section 47 no. 1 of the Employment Act that an agreement on the calculation of average working hours must be in writing is a formal condition that must be fulfilled in order for such agreement to be valid. Case history: Midt-Trøndelag District Court no. 02-323 A – Frostating Court of Appeal LF-2003-00231 – Supreme Court HR-2004-00099, civil appeal.

14 January 2004 Sentencing. Penal Code section 192 subsection 1 b

The case concerns sentencing of a man who was convicted of rape including intercourse with a woman who was incapable of resisting. Case history: Kristiansand District Court no. 02-00666 – Agder Court of Appeal LA-2003-00045 – Supreme Court HR-2004-00053, criminal appeal.

14 January 2004 Sentencing. Penal Code section 192 subsection 1

The case concerns sentencing of a man who was convicted of rape including intercourse of a woman who was sleeping. Case history: Bergen City Court no. 02-03233 – Gulating Court of Appeal LG-2003-00430 M/02 – Supreme Court HR-2004-00078, criminal appeal.

9 January 2004 Sentencing. Penal Code sections 195 and 197

The case concerns sentencing of a man who was convicted of sexual intercourse with his 12-year-old daughter. Case history: Nord-Troms District Court no. 02-02550 – Hålogaland Court of Appeal LH-2003-00396 – Supreme Court HR-2004-00034, criminal appeal.

9 January 2004 Sentencing. Penal Code section 195

The case concerns sentencing of a doctor who was convicted of sexual assault of his young daughter, including the question whether he should be disqualified from practising as a doctor. Case history: Fredrikstad District Court no. 02-00817 M – Borgarting Court of Appeal LB-2003-00871 M/02 – Supreme Court HR-2004-0035, criminal appeal.

9 January 2004 Sentencing. Sexual intercourse with a young girl

The case concerns sentencing of a 33-year-old man who was convicted of unlawful sexual intercourse with a young girl aged 13 years and 8 months. Case history: Sarpsborg District Court no. 01-01149 M – Borgarting Court of Appeal LB-2002-02417 M/02 – Supreme Court HR-2004-00036, criminal appeal.

7 January 2004 National Insurance Act section 22-13 subsection 1 first sentence

The issue in the case was whether an award of invalidity pension could be given retrospective effect for three years prior to the submission of the claim, see the National Insurance Act section 22-13 subsection 1 first sentence. Case history: Social Security Tribunal – Frostating Court of Appeal LF-2002-00769 A – Supreme Court HR-2004-00022, civil appeal.

7 January 2004 Industrial Injury Insurance Act.

Measure of damage for short-term loss of income. The issue in the case was whether – and if so, how – the rules for measuring damages for loss of earnings due to an industrial injury in government regulation 21 December 1990 no. 27 on standardised compensation pursuant to the Industrial Injury Insurance Act, should be applied in a case where the claimant’s earning capacity was reduced for only a short period of time. Case history: Oslo City Court no. 02-04650 A/79 – Supreme Court HR-2004-00023, civil appeal.