Summaries

19 December 2008             Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber

The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision are not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. The Supreme Court referred to its decision in HR-2008-02175-S (see below) where it held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal.

Reference:         HR-2008-2177-S, case no. 2008/1398, criminal appeal against interlocutory decision. 

 

19 December            2008            Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber

The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision were not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. The Supreme Court referred to its decision in HR-2008-02175-S (see below) where it held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal. 

Reference: HR-2008-2176-S, case no. 2008/1265, criminal appeal against interlocutory decision. 

 

19 December 2008            Disclosure of reasons for denying an appeal to the Court of Appeal. Grand Chamber 

The issue in the case was whether a decision to deny an appeal against conviction pursuant to section 321 subsection 2, first sentence of the Criminal Procedure Act, where the reasons for the decision were not disclosed except for a reference to the statutory condition that an appeal may be disallowed if the court finds it “obvious that the appeal will not succeed”, was in breach of Art 14(5) of the UN Covenant on Civil and Political Rights. A unanimous Supreme Court held that compliance with Art 14 (5) requires that the decision to disallow an appeal must be accompanied by a duly reasoned judgement, and that this must also apply as a matter of Norwegian law, see the Human Rights Act section 3. The Supreme Court quashed the decision of the Court of Appeal.

Reference:         HR-2008-2175-S, case no. 2008/1360, criminal appeal against interlocutory decision. 

 

16 December 2008   Civil procedure. Capacity to sue and be sued. Norwegian branch of foreign company. Disputes Act section 2-1. 

The issue in the case was whether the Norwegian branch of a foreign registered company (So-called NUF) has the capacity to sue and be sued in civil proceedings in Norway. The Supreme Court held that it did not, and quashed the judgements of the Conciliation Board, the District Court and the Court of Appeal and dismissed the case from the Norwegian courts.

Reference:         HR-2008-2150-A, case no. 2008/1316, civil appeal against judgement

 

11 December 2008   Public procurement. Claim for compensation. Offer of rebate. Public Procurement Act section 5

The case concerns a claim for compensation for expectation interest following a tender competition, and whether in determining the competition the tender issuer was entitled to take account of an offer of a rebate which was conditional on the company winning another contract with the same contractor. The Supreme Court held that the issuer was not permitted to take account of the rebate offer in its determination of the competition, but that this procedural error did not give the losing party a claim for compensation.

Reference:          HR-2008-2134-A, case. no. 2008/1201, civil appeal against judgement.

 

3 December 2008   Sentencing. Detonation of bomb. ECHR. Lengthy processing time

The case concerns sentencing for conviction for, among other things, breach of section 148 of the Penal Code (criminal damage), in this case perpetrated by detonating a bomb. The case was reopened following a decision of the European Court of Human Rights. The main question before the Supreme Court was the relevance to be attached to the time that it had taken to bring the case to trial as a consequence of ECHR case. The sentence was reduced to nine years’ imprisonment, of which 18 months was made conditional.

Reference: HR-2008-2074-A, case no. 2008/1251, criminal appeal against judgement

 

3 December 2008               Sentencing. Drug offence. ECHR. Lengthy processing time

The case concerns sentencing following conviction for, among other things, storing and attempted importation of approximately 48 kg of amphetamine. The case was reopened following a decision of the European Court of Human Rights. The main question before the Supreme Court was the relevance to be attached to the length of time it had taken to process the ECHR case and the subsequent reopening proceedings. The Supreme Court amended the sentence handed down by the Court of Appeal by making five of the seven years’ imprisonment conditional.

Reference: HR-2008-2073-A, case no. 2008/1647, criminal appeal against judgement

 

1 December 2008    Limitation. Value added tax. Deduction rule. Additional time limit. Limitation Act section 10 no. 1. Value Added Tax At section 21.

The case concerns limitation of a claim by hotel owners for reimbursement of too much paid value added tax. The question before the Supreme Court was whether the additional time limit in section10 no. 1 of the Limitation Act could apply where the hotel owners’ lack of knowledge of the claim was due to a misunderstanding of the deduction rule in section 21 of the Value Added Tax Act. The Supreme Court dismissed the appeal. Dissent 3-2.

Reference: HR-2008-2067-A, case no. 2008/1017, civil appeal against judgement

 

1 December 2008               Requirement of proof. Freedom from penalty. Inducement of crime

The case concerns the requirement of proof when determining whether a crime shall be exempt from penalty because the police had induced the action that was the subject of the indictment. The direction of the Court of Appeal concerning the requirement of proof was wrong in law. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-2063-A, case no. 2008/1092 and case no. 2008/1093, criminal appeals against judgement

 

27 November 2008              Occupational Injury Insurance Act section 11 subsection 1 (c).

The case concerns a claim for compensation pursuant to the Occupational Injury Insurance Act section 11 subsection 1 (c). An employee had injured his shoulder while carrying out a job that required heavy lifting. The issue before the Supreme Court was whether the provision in section 11 subsection 1 (c) supplements both section 11 subsection 1 (a) (on occupational injury) and subsection 1 (b) (on equation of injury and illness), or only subsection 1 (b). The Supreme Court dismissed the insurance company’s appeal.

Reference: HR-2008-2053-A, case no. 2008/1099, civil appeal against judgement.

 

26 November 2008  Estate Agents Act section 1-1. Remuneration for assistance in connection with property purchase.

The case concerns a claim for remuneration for assistance in connection with the purchase of real property. The issue before the Supreme Court was whether the assistance amounted to estate agency pursuant to the Estate Agents Act of 16 June 1989 no. 53 section 1-1. The appeal was dismissed.
Reference: HR-2008-2048-A, case no. 2008/923, civil appeal against judgement

 

26 November 2008              Criminal law. Sexual offence. Loss of carriage licence for a fixed period of time. Occupational Transport Act section 37f, and the Regulation on loss of license section 10-1. 

The question before the Supreme Court was whether a taxi driver who was convicted of a sexual assault of a female passenger (see the Penal Code section 200) should have his carriage licence confiscated and, in that case, for how long. The Supreme Court dismissed the appeal.

Reference: HR-2008-2047-A, case no. 2008/1535, criminal appeal against judgement. 

 

26 November 2008              Regulation of ground rent. Public purpose. 

The case concerns regulation of a ground rent, and the relevance of the fact that the property was regulated and used for public purpose.

Reference: HR-2008-2046-A, case no. 2008/1068, civil appeal against judgement. 

 

25 November 2008             Sentencing. Murder with intent. Expert. ECHR Article 6. 

The case concerns procedure and sentencing following conviction for murder with intent. The main issue was whether the court’s refusal to appoint an expert requested by the accused was a violation of Article 6(3)(d) of the European Convention on Human Rights, which entitles an accused to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. 

Reference: HR-2008-2041-A, case no. 2008/1123, criminal appeal against judgement. 

 

25 November 2008            Reindeer Management Act (1978) section 24. 

The issue in the case was whether there had been a breach of the provisions of the Reindeer Management Act of 9 June 1978 no. 49 section 24. After the events in the case took place, the new Reindeer Management of 15 June 2007 no. 40 entered into force on 1 July 2007. The Supreme Court acquitted the accused. 

Reference: HR-2008-2040-A, case no. 2008/1167, criminal appeal against judgement. 

 

25 November 2008             Testamentary disposition. Inheritance Act section 53 cf. section 35. 

The issue in the case was whether the transfer of an interest in a housing corporation should be rendered void as a testamentary disposition pursuant to section 53 cf. section 35 of the Inheritance Act. An important matter in the case before the Supreme Court was the weight to be attached to the fact that the transferee, after he had acquired the interest, had taken out a mortgage with security in the interest.

Reference: HR-2008-2039-A, case no. 2008/1268, civil appeal against judgement. 

 

24 November 2008            Sentencing. Serious drug offence. Penal Code section 162 subsections 1 and 2. 

The case concerns sentencing for a serious drug offence involving the transport of approx 40 kg low-strength hashish. The main question in the case was the weight to be attached to the fact that the hashish was of low strength. The Supreme Court found that the sentences  passed by the Court of Appeal - one year’s imprisonment for the first accused, and one year and eight months’ imprisonment for the second accused – were appropriate. The Supreme Court dismissed the appeals against sentence.

Reference: HR-2008-2037-A, case no. 2008/1184 and case no. 2008/1186, criminal appeals against judgement.

 

24 November 2008   Tariff fee. Wage Agreement. Nordic NIS-Agreement section 15. 

The issue in the case was whether employees who benefit from a wage agreement but who are not members of the trade union that has entered into the agreement, can be required to pay a fee to cover a proportionate share of the trade union’s costs in negotiating, administering and renewing the agreement (a so-called tariff fee). The Supreme Court held that the Norwegian Seamen’s Union was not entitled to require a tariff fee pursuant to the Nordic NIS Agreement section 15, and the union was ordered to repay amounts that had been withdrawn from wages as a tariff fee after the statement of claim had been filed with the District Court. Dissent. 

Reference: HR-2008-2036-A, case no. 2008/978, civil appeal against judgement. 

 

24 November 2008            Application of law. Penal Code section 255, first sentencing alternative 

The case concerns an appeal against the Court of Appeal’s application of law, and the question whether an accountholder who uses money that has mistakenly been transferred to his or her bank account can be convicted of embezzlement, see the Penal Code section 255. 

Reference: HR-2008-2033-A, case no. 2008/1126, criminal appeal against judgement. 

 

17 November 2008   Patent law. Patent Act section 2 subsection 1. 

The case concerns the validity of the Patent Board’s refusal to issue a patent for the addition of a certain amount of histidine in salmon feed in order to prevent an outbreak of cataracts in farmed salmon. The Supreme Court affirmed the judgement of the District Court. 

Reference: HR-2008-1991-A, case no. 2008/859, civil appeal against judgement. 

 

13 November 2008   Tax law. Petroleum Tax Act section 3. Tax avoidance. 

The issue in the case was whether income from interest on a debt bought by the subsidiary company Conoco Investments Norge AS with the help of equity capital paid from the parent company Norske ConocoPhillips AS (NCAS) must be assigned to NCAS for tax purposes, and thus form part of NCAS’ net financial assets to be distributed between offshore and onshore. The Norwegian State submitted that the transaction should be avoided for tax purposes. Directly, the question concerns avoidance pursuant to the Petroleum Tax Act section 3(d) subsection 2, which must also be viewed in the light of the Petroleum Tax Act section 3 (h). A majority of three Supreme Court justices held that there were no grounds to avoid the transaction and dismissed the State’s appeal.

Reference: HR-2008-1981-A, case no. 2008/1010, civil appeal against judgement. 

 

12 November 2008             Inheritance tax. Transfer of franchise rights and shares. Inheritance Tax Act section 2 subsection 2 (e) and section 11A. Non-statutory anti-avoidance rules. 

The case concerns the validity of a decision of the Inland Revenue in a complaint against a decision on inheritance tax. The question was whether the transfer of franchise rights from one family-owned limited liability company to another which was incorporated by the main shareholder in the transferor company, followed by a transfer of shares in the newly-established company to the children of the shareholders in the transferor company, triggers inheritance tax. The Supreme Court held that the decision of the Inland Revenue of 17 October 2005 was void.

Reference: HR-2008-1977-A, case no. 2008/808, civil appeal against judgement. 

 

5 November 2008              Sentencing. Drug offence. Court supervised drug program. Penal Code section 162 subsection 2 cf. subsection 1. 

The case concerns sentencing for serious drug offences - purchase of 3 kg hashish, purchase of 3 kg amphetamine, storing 3.6 kg hashish and 1.4 kg amphetamine, and sale of 1.3 kg amphetamine, or aiding and abetting the same. The main question was whether part of the prison sentence should be made conditional on the convicted person participating in a drug program under the supervision of the court, see the Penal Code section 53 no. 3 (e), cf. no. 6 item 3. The Supreme Court dismissed the prosecution authority’s appeal, and upheld the Court of Appeal’s sentence of 4 years’ imprisonment, of which 18 months was conditional on the convicted person participating in a drug program under the supervision of the court.

Reference: HR-2008-1928-A, case no. 2008/1241, criminal appeal against judgement. 

 

5 November 2008            Criminal law. Threats. Penal Code section 227 first sentencing alternative. Health Personnel Act section 23 no 4 and section 31. 

During a consultation with his psychiatrist, the accused had made threats against a policeman. The psychiatrist considered the threats to be so serious that he informed the police. The issue in the case was whether section 227 of the Penal Code on threats should be interpreted narrowly when a threat is made during a consultation with a psychiatrist. The Supreme Court dismissed the appeal against the suspended sentence of 21 days’ passed by the Court of Appeal. 

Reference: HR-2008-1927-A, case no. 2008/1288, criminal appeal against judgement. 

 

5 November 2008            Inheritance law. Undivided estate. Inheritance Act section 24 subsection 2. 

The issue in the case was whether a surviving spouse had forfeited the right to remain in possession of the undivided estate by virtue of improper conduct which exposed the estate to considerable loss, see section 24 subsection 2 of the Inheritance Act. The main question was whether the action that exposes or can expose the estate to loss must in fact have been accomplished.

Reference: HR-2008-1926-A, case no. 2008/849, civil appeal against judgement. 

 

4 November 2008            Sentencing. Serious disloyalty and serious corruption. Penal Code section 276, section 276a and section 276b. Penal Code section 62 subsection 1. 

The case concerns sentencing for serious disloyalty and serious corruption, see the Penal Code section 276 and section 276b. The Supreme Court dismissed the appeals from all five accuseds. 

Reference: HR-2008-1913-A, case no. 2008/890, criminal appeal against judgement.

 

4 November 2008            Competence of the members of the Court of Appeal - Courts of Justice Act section 108, Civil Procedure Act section 171 subsection 1 no. 2, European Convention on Human Rights Article 6(1). 

The case concerns the competence of the Court of Appeal, more particularly whether two judges who had determined an interlocutory appeal against a decision to retain the accused on remand in custody could subsequently participate in the criminal appeal proceedings concerning the same offence. The Supreme Court quashed the judgement of the Court of Appeal and the appeal proceedings. 

Reference: HR-2008-1912-A, case no. 2008/1285, criminal appeal against judgement. 

 

31 October 2008            Competence. Courts of Justice Act section 108. 

The case concerns the competence of nine justices of the Supreme Court in a grand chamber case. The grand chamber case concerned whether the power to refuse leave to appeal to the Cout of Appeal without giving a reason is in violation of Norway’s obligations pursuant to human rights conventions. The precursor to the case was the decision of the UN Committee on Human Rights in the so-called restaurant-owners case, see Communication No. 1542/2007. Mrs Justice Coward, Mrs Justice Øie and Mrs Justice Indreberg were held to be incompetent to sit on the case on the grounds of partiality, whereas the other justices of the Supreme Court were found to be competent to hear the case. 

Reference: HR-2008-1894-S, case no. 2008/1265, sak no. 2008/1360 og sak no. 2008/1398), straffesaker, anke over beslutning. 

 

29 October 2008            Plenary. Tax law. Surtax. Evidence. Tax Assessment Act section 10-2 and section 10-4. European Convention on Human Rights Art 6. UN Convention on Social and Political Rights Art 14. 

The tax authorities had imposed a 60 % surtax on the appellant, who appealed the decision of the tax authorities to the courts. The District Court upheld the decision, while the Court of Appeal reduced the surtax to 30 %. The case before the Supreme Court concerned the standard of proof for the imposition of ordinary surtax, see the Tax Assessment Act section 10-2 and section 10-4. The Supreme Court overruled the decision of the Court of Appeal. A majority of seven justices held that the imposition of ordinary surtax requires that the facts are proven on a clear balance of probabilities. A majority of six justices also held that Art 6(2) of the European Convention on Human Rights contains a requirement as to the standard of proof in penal cases pursuant to Article 6 of the Convention.

Reference: HR-2008-1861-S, case no. 2008/880, civil appeal against judgement, 

 

28 October 2008            Sentencing. Compensation for non-economic loss. Sexual abuse of minors. Child pornography. Penal Code section 195, section 196, section 203, section 204a and section 224. 

The case concerns a number of sexual offences against children and young boys in Thailand and, in that connection, the production and import of pornographic material involving children. The question before the Supreme Court concerned sentencing and who should participate in the court of appeal’s assessment of a claim for compensation for non-economic loss. 

Reference: HR-2008-1856-A, case no. 2008/475, criminal appeal against judgement. 

 

23 October 2008            Standard of care. Self-inflicted intoxication. Unconsciousness. 

The case concerns the standard of care in an acquittal for violence against a police officer on account of unconsciousness caused by self-inflicted intoxication, see the Penal Code section 45. The main question was whether the intoxication could be deemed to be self-inflicted in circumstances where a woman had first voluntarily consumed a large quantity of wine and then consumed vodka-based drinks in the mistaken belief that it was lemonade. The Supreme Court held that it was not possible to review whether the Court of Appeal’s application of law as regards the standard of care was correct, and quashed the Court of Appeal’s judgement pursuant to the Criminal Procedure Act section 342 subsection 2 no. 4 cf. section 343 subsection 2 no. 8.

Reference: HR-2008-1842-A, case no. 2008/1101, criminal appeal against judgement. 

 

23 October 2008   Social security fraud. Reasons for judgement. Penal Code section 270. 

The case concerns social security fraud and, in particular, whether the reasons for the decision given in the written judgement were adequate. The Supreme Court quashed the interlocutory judgement of the Court of Appeal and the judgement of and proceedings before the District Court.

Reference: HR-2008-1841-A, case no. 2008/1096, criminal appeal against judgement. 

 

23 October 2008   Social security fraud. Sentencing. Community service order.  Maximum amount of fraudulently received benefit. 

The case concerns sentencing for social security fraud where the convicted person had unlawfully received NOK 64 289 in unemployment benefit, see the Penal Code section 270 subsection 1 no. 1. The issue in the case was whether a community service order was an appropriate reaction. Counsel for the defence argued that the maximum amount of fraudulently received benefit, above which a community service order will not be deemed appropriate, should be increased in line with increases in the basic amount – G – in the National Insurance Act. The Supreme Court agreed, but also emphasised that the threshold is not absolute and can be departed from both in aggravating and mitigating circumstances. In the present case, the benefit that had been received as a result of the fraud was approximately NOK 3 600 higher than the basic amount at the time the fraud took place. The Supreme Court did not find it appropriate to make a community service order. 

Reference: HR-2008-1840-A, case no. 2008/1116, criminal appeal against judgement. 

 

23 October 2008            Sentencing. Compensation for non-economic loss. Sexual abuse of a minor. Penal Code section 195 subsection 1 first sentencing alternative, and subsection 2(c) 

The case concerns sentencing and compensation for non-economic loss for two counts of sexual abuse of a seven year old girl. The Supreme Court dismissed the appeal. 

Reference: HR-2008-1839-A, case no. 2008/1078, criminal appeal against judgement

 

23 October 2008   Nordic Convention on Inheritance and Division of Deceased Estates 

The issue in the case was whether an heir to a Norwegian deceased estate could bring legal proceedings before a Norwegian court in his own name but for the benefit of the Swedish estate, and which country’s law this question should be determined by. Both the District Court and the Court of Appeal held that this question must be determined by Swedish law, which precluded the heir from initiating proceedings in Norway. The Supreme Court dismissed the appeal.

Reference: HR-2008-1838-A, case no. 2008/505), civil interlocutory appeal. 

 

23 October 2008            Sentencing. Drugs. Penal Code section 162 subsections 1 and 3, first sentence. 

The case concerns sentencing following conviction for the import and attempted acquisition of a large quantity of prohibited drugs - approx 14 kg amphetamine with a strength of 7 %. The Supreme Court reduced the sentence for all three appellants due to the very low strength of the drug.

Reference: HR-2008-1833-A, case no. 2008/1308, criminal appeal against judgement. 

 

23 October 2008            Contract law. Revision. Contract Act section 36. Sale and purchase of painting. 

The case concerns revision pursuant to section 36 of the Contract Act of a contract clause that provided for equal division of the proceeds of sale of a painting. The Supreme Court dismissed the appeal.

Reference: HR-2008-1832-A, case no. 2008/720, civil appeal against judgement. 

 

23 October 2008            Sentencing. Compensation for non-economic loss. Road Traffic Act section 31 cf. section 3. 

The case concerns sentencing for breach of the Road Traffic Act section 31 cf. section 3. Because he was not paying sufficient attention, a motorist who was driving along a country road discovered too late that it was necessary to reduce his speed drastically because of a difficult traffic situation further ahead. As a result, several pedestrians were run over and injured. The case also concerns a claim for non-economic loss from one of the injured persons. The conditional sentence was increased to 18 days’ imprisonment. Damages for non-economic loss for one of the injured persons was fixed at NOK 30 000.

Reference: HR-2008-1831-A, case no. 2008/1097, criminal appeal against judgement. 

 

21 October 2008            Damages. Regress. Mitigation. Damages Act section 5-2. 

The case concerns the mitigation of liability for damages following the armed robbery of the NOKAS money-counting service in Stavanger, see the Damages Act section 5-2. The appeal was brought by a former security guard who claimed that his liability in damages to the insurance company of NOK 51 465 574 should be reduced because he had given important information about the plans for the robbery. In dismissing the appeal, the Supreme Court attached determinative weight to the element of guilt and held that the liability for damages was not disproportionately burdensome.

Reference: HR-2008-1818-A, case no. 2008/932, civil appeal against judgement. 

 

17 October 2008            Clarification of the case. Threats. Criminal Procedure Act section 294. 

The issue in the case was whether the Court of Appeal had ensured that the case was sufficiently clarified in accordance with section 294 of the Criminal Procedure Act, and whether the reason for the decision given in the written judgement was sufficient as regards the question whether threats that had been made were «likely to cause serious fear» as required by the Penal Code section 227 first sentencing alternative. The judgement of and the appeal proceedings before the Court of Appeal were quashed on the grounds of procedural error. 

Reference: HR-2008-1806-A, case no. 2008/1111, criminal appeal against judgement. 

 

15 October 2008            Patients compensation. Damages Act section 3-2a. 

The case concerns a claim for compensation from the Patients Compensation Scheme (NPE). The main issue was whether compensation for loss of future earnings and non-economic loss should be measured according to the rules on standardised compensation for children in the Damages Act section 3-2a, or whether the ordinary rules in the Damages Act section 3-1 and section 3-2 were applicable. The Supreme Court dismissed the appeal against the judgement of the Court of Appeal, who had measured the compensation for loss of future earnings and non-economic loss in accordance with the provisions of the Damages Act section 3-2a. 

Reference: HR-2008-1795-A, case no. 2008/568, civil appeal against judgement. 

 

15 October 2008            Sentencing. Causing bodily harm by negligence. Penal Code section 237. 

The case concerns sentencing for negligent bodily harm occasioned by a motor vehicle. Reference: HR-2008-1794-A, case no. 2008/1028, criminal appeal against judgement. 

 

15 October 2008            Disloyal misappropriation of funds. Confiscation of proceeds. Penal Code section 34. 

The case concerns confiscation of the proceeds gained through the disloyal misappropriation of the funds of a wholly owned limited liability company. 

Reference: HR-2008-1793-A, case no. 2008/950, criminal appeal against judgement. 

 

15 October 2008            Application of law. Storing drugs. Penal Code section 162. 

The case concerns appeals against the Court of Appeal’s application of law in two convictions for the illegal storage of drugs pursuant to section 162 of the Penal Code. The Supreme Court dismissed the appeals. 

Reference: HR-2008-1792-A, case no. 2008/823, criminal appeal against judgement. 

 

9 October 2008   Tax case. Validity of tax assessment. Reclassification of remuneration as income from employment. Tax Assessment Act section 8-1. 

The case concerns the validity of a decision of the Tax Appeal Board. The main issue concerned the fiscal classification of remuneration for a sole proprietorship, where the seller became employed by the buyer, and whether part of the remuneration, which the taxpayer had alleged was business value, must be deemed to be payment in advance of salary to the seller. The Court of Appeal had found in favour of the State, and the Supreme Court dismissed the taxpayer’s appeal. 

Reference: HR-2008-1748-A, case no. 2008/690, civil appeal against judgement. 

 

9 October 2008            Sentencing. Penal Code section 132 subsection 2. Assisting in escape. 

The case concerns an appeal against sentence, where the main question was the sentence to be applied for assisting an escape, see the Penal Code section 132 subsection 2. The Supreme Court held that the sentence for breach of section 132 subsection 2 of the Penal Code in isolation would have been six months’ imprisonment. The accused was also convicted of breach of the Firearms Act section 33 and for receiving the proceeds of crime. Altogether, the sentence was fixed at 18 months’ imprisonment, which was four months less than the sentence passed by the Court of Appeal. 

Reference: HR-2008-1745-A, case no. 2008/1038, criminal appeal against judgement. 

 

8 October 2008            Reasons for the judgement of the Court of Appeal. Acquittal in sexual offences case. Compensation. European Convention on Human Rights Article 6 (2) and Article 13. 

The issue in the case was whether the reasons in a judgement concerning the determination of a claim for compensation for non-economic loss after an acquittal was a violation of the presumption of innocence in Article 6 no. 2 of the European Convention on Human Rights. The Supreme Court dismissed the appeal.

Reference: HR-2008-1736-A, case no. 2008/776, civil appeal against judgement. 

 

7 October 2008            Dismissal of legal proceedings. Social security benefits. 

The case concerns dismissal of legal proceedings for a claim for compensation for lost social security benefits, and the consequence of the Court of Appeal’s possible wrongful dismissal of part of the case. Item 1 of the judgement of the Court of Appeal was quashed and referred for continued trial before the Court of Appeal. In all other respects, the Supreme Court dismissed the appeal.  

Reference: HR-2008-1731-A, case no. 2008/308), civil interlocutory appeal. 

 

2 October 2008   Trade mark law. Likelihood of confusion. Trade Mark Act section 4 and section 14 no. 6. 

The issue in the case concerns was whether there had been an infringement of a trade mark and the validity of trade mark registration. The Supreme Court affirmed the judgement of the District Court. Dissent.

Reference: HR-2008-1686-A, case no. 2008/617, civil appeal against judgement. 

 

29 September 2008            Criminal law. Negligent driving. Penal Code section 239 and Road Traffic Ac section 31 subsection 1 cf. section 3. 

The case concerns an appeal against the Court of Appeal’s application of law in an acquittal for breach of section 239 of the Penal Code and section 31 subsection 1 cf. section 3 of the Road Traffic Act. A ten year old boy who was on his bicycle was run over and killed by a cement lorry as it crossed a pedestrian pavement and cycle path whilst exiting a building site. The driver of the cement lorry was acquitted by the Court of Appeal. The Supreme Court found that the driver ought to have understood that making a right turn on a pedestrian pavement and cycle path, without first ensuring that no-one was close to the right hand side of the vehicle, could lead to a fatality. The Supreme Court quashed the judgement of and appeal proceedings before the Court of Appeal. 

Reference: HR-2008-1665-A, case no. 2008/1025, criminal appeal against judgement. 

 

29 September 2008            Pension rights. Regulation of pension. Occupational Pension Act. 

The issue in the case was whether an employer was contractually bound to pay contributions to the company’s pension fund to enable it to regulate matured pensions proportionately with increases in the basic amount (G) in the National Insurance. The Supreme Court affirmed the judgement of the District Court and held that Statoil was not contractually bound, either by virtue of the individual employment contracts or in any other way, to maintain the G-regulation in matured pensions.

Reference: HR-2008-1664-A, case no. 2008/288), civil appeal. 

 

26 September 2008            Sentencing. Repeated drink-driving. Road Traffic Act section 22 and section 31 tredje ledd. 

The case concerns sentencing for a second drink-driving offence, and whether the sentence should be unconditional. The main question was whether there were special mitigating circumstances that justified a deviation from the general rule that the punishment for repeated drink-driving is an unconditional term of imprisonment. The first drink-driving offence took place 12 years ago and, for this reason, the Supreme Court reduced the sentence to a conditional sentence. 

Reference: HR-2008-1659-A, case no. 2008/965, criminal appeal against judgement. 

 

19 September 2008            Sentencing. Insurance fraud. Penal Code section 272 susbsections 1 and 3. European Convention on Human Rights Article 6 no. 1 – lengthy prosecution. 

The case concerns sentencing for insurance fraud, see the Penal Code section 272 and, in particular, the weight to be given to the fact that the insurance fraud took place a long time ago. The Supreme Court amended the judgement of the Court of Appeal by making fifteen months of the sentence conditional on a two year probationary period.

Reference: HR-2008-1609-A, case no. 2008/681, criminal appeal against judgement. 

 

19 September 2008            Insurance law. Liability insurance. Insurance Agreements Act section 1-3 subsection 2(d) 

Pursuant to section 7-6 subsection 1 of the Insurance Agreements Act, an injured party can bring a claim under a liability insurance directly against the insurance company. The issue in the case was whether it is possible to derogate from this provision by agreement where the liability insurance relates to aircraft, see the Insurance Agreements Act section 1-3 subsection 2(d), and whether the parties in the case had in fact agreed to derogate from it. The Supreme Court affirmed the judgement of the District Court. 

Reference: HR-2008-1602-A, case no. 2008/428), civil appeal. 

 

19 September 2008            Corporate criminal liability. Penal Code section 48a. 

The case concerns the application of corporate criminal liability, see the Penal Code section 48a, following the sale of the assets of a division of a company. The Supreme Court dismissed the appeal by the prosecuting authority.

Reference: HR-2008-1601-A, case no. 2008/634), criminal interlocutory appeal. 

 

19 September 2008   (The Wonderboy case). Penal Code section 162 subsection 3, second sentence cf. section 60a. Sentencing. Serious organised drug offence. 

The case concerns application of the Penal Code section 162 subsection 3, second sentence, which concerns drug offences perpetrated under particular aggravating circumstances, sentencing for serious drug offences which formed part of the operations of an organised criminal gang, see the Penal Code section 60 a, serious drug offences and receiving the proceeds of crime. For two of the accused persons, the case also concerned procedural issues before the Court of Appeal. The Supreme Court increased the sentence for seven of the accused persons, and reduced it for two of them.

Reference: HR-2008-1600-A, case no. 2008/703, criminal appeal against judgement. 

 

19 September 2008            Sentencing. Attempted murder Penal Code section 233 cf. section 49. 

The case concerns sentencing for attempted murder. An18 year old man had stabbed an elderly woman in the stomach with a knife. The action was unmotivated and perpetrated whilst the man was intoxicated with drugs. He had had a difficult upbringing and suffered from psychiatric problems, but was receiving treatment, taking an education and had prospects of obtaining work. A majority of three justices held that this positive development ought to be maintained, and affirmed the sentence passed by the Court of Appeal of 3 years imprisonment, of which two years were conditional and 320 days were already served by custody pending trial, but fixed the probationary period at three years.

Reference: HR-2008-1593-A, case no. 2008/921, criminal appeal against judgement. 

 

18 September 2008            Unjustified termination of agreement. Remuneration for treatment 

The issue in the case was whether the Ullevål University Hospital was obliged to pay another treatment clinic for the treatment and care of a young boy. The hospital had terminated a treatment and care agreement with the clinic, but the treatment program continued. The Supreme Court held that the hospital was entitled to terminate the agreement provided that a satisfactory arrangement for the continued care and treatment of the patient had been made at the same time.

Reference: HR-2008-1592-A, case no. 2008/514, civil appeal against judgement. 

 

18 September 2008            Criminal liability. Temporary access road without planning permission. Planning and Building Act section 110 subsection 1 no. 2, section 93 subsection 1(j), section 93 subsection 2 cf. section 85 subsection 1; Cultural Heritage Act section 3 subsection 1. 

The case concerns criminal liability for the construction of a temporary site access road where planning permission had not first been granted, see the Planning and Building Act section 110 subsection 1 no. 2. The main question was whether planning approval was required pursuant to section 93 subsection 1(j) of the Planning and Building Act, or whether the exemption in section 93 subsection 2 cf. section 85 applied. The Supreme Court found that the condition in section 93 subsection 1(j) that the position of the road must constitute a considerable nuisance for the surrounding areas was not satisfied, and held that the Court of Appeal’s interpretation of this requirement was too narrow. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-1591-A, case no. 2008/654, criminal appeal against judgement. 

 

18 September 2008   Act on Creditors’ Access to Assets section 5-5 and section 5-9. Revocation of disposition following bankruptcy. 

The case concerns revocation of a disposition of the debtor following bankruptcy, see the Act on Creditors’ Access to Assets section 5-5 and section 5-9. The supermarket chain Rema 1000 had used its claim against A AS to set off claims that A AS had against Rema 1000. The Supreme Court found that this constituted extraordinary payment of debt, and that the conditions for revocation of dispositions pursuant to the Act on Creditors’ Access to Assets section 5-5 were satisfied.

Reference: HR-2008-1590-A, case no. 2008/694, civil appeal against judgement.

 

18 September 2008            Sentencing. Storage of anabolic steroids etc. Penal Code section 162b. 

The case concerns sentencing for storing a large quantity of anabolic steroids and similar substances, see the Penal Code section 162b. If all of the active ingredients that are anabolic steroids are added together, the case concerns storage of more that 2.5 million mg of anabolic steroids, or a quantity that is sufficient for more than 116 years’ continuous use. The accused had played a vital role in initiating the storage. The Supreme Court reduced the penalty by six months to three years’ imprisonment.

Reference: HR-2008-1589-A, case no. 2008/824), criminal appeal against interlocutory order.

 

18 September 2008   Stamp Duty Act section 7. Land registration, date for determining the sales value. 

The case concerns refusal by the land registry to register a transfer of property because of insufficient information about the value of the property. The question before the Supreme Court was whether calculation of stamp duty pursuant to section 7 of the Stamp Duty Act shall be based on the historical value – typically the sale price agreed between the vendor and the purchaser – or the market value at the date of registration in the land registry.

Reference: HR-2008-1588-A, case no. 2008/747, civil appeal against interlocutory order. 

 

4 September 2008            Interpretation of contract for the purchase of electricity 

The case concerns interpretation of a contract for the purchase of electricity, among other things whether a maximum price per kWt had been agreed, which meant that there was a ceiling on the price. The Supreme Court affirmed the judgement of the District Court.

Reference: HR-2008-1521-A, case no. 2008/4, civil appeal.

 

4 September 2008   Penal Code section 267. Application of law. Unlawful gain. Criminal Procedure Act section 342 subsection 3, second sentence. 

The case concerns the application of law in relation to the robbery provision in section 267 of the Penal Code - the requirement that the act must be perpetrated for the purpose of attaining an unlawful gain. The Supreme Court found that the Court of Appeal had erred in law in convicting the accused of robbery. Only E and C had appealed to the Supreme Court, but the Court of Appeal’s error in law had also affected A and D and the error must also be given application for them, see the Criminal Procedure Act section 342 subsection 3 second sentence. The Supreme Court quashed items 1 to 4 of the judgement of the Court of Appeal and the appeal proceedings.

Reference: HR-2008-1520-A, case no. 2008/917, criminal appeal against judgement. 

 

4 September 2008   Road Act section 32. Cable line. 

An electric overhead cable had to be moved at the cable owner’s cost because a public road was being moved.  The issue in the case was whether the road authorities could require that the cable be laid underground. The Supreme Court came to the same result as the District Court and the Court of Appeal, and dismissed the appeal from Hafslund Nett AS.

Reference: HR-2008-1519-A, case no. 2008/387, civil appeal against judgement. 

 

2 September 2008   Claim for financial compensation following a magazine article. 

The case concerns a claim for compensation for non-economic loss pursuant to section 3-6 of the Damages Act, cf. the Penal Code section 390, alternatively the Copyright Act section 55, cf. section 45c, in both cases together with Article 8 cf. Article 10 of the European Convention on Human Rights, following the publication of an article with photographs from a wedding ceremony. The Supreme Court acquitted the publishing house (Se og Hør Forlaget AS), the editor-in-chief Odd Johan Nelvik, Anders Johan Stavseng and Morten Krogh.

Reference: HR-2008-1480-A, case no. 2008/533, civil appeal against judgement. 

 

28 August 2008   Claim for regress. Indemnity insurance in connection with transfer of ownership. Valuation of property. 

The seller of a house had taken out an indemnity insurance in connection with the transfer of ownership, and the insurance company had covered the purchaser’s claim for a price reduction on the grounds that the area of the property was not as large as was stated in the sale documents. The issue in the case was whether the insurance company could reclaim the amount that it had paid to the purchaser from the surveyor who had prepared the valuation or from his insurers.

Reference: HR-2008-1464-A, case no. 2008/543, civil appeal against judgement. 

 

28 August 2008            Receiving stolen property. Reasoning of the Court of Appeal. Penal Code section 317 subsection 1. 

The issue in the case was whether the reasoning of the Court of Appeal in a convicting judgement for receiving stolen property was sufficient when the Court did not discuss whether the criminal act from which the stolen property derived had been carried out by the convicted person himself. The Supreme Court quashed the judgement of the Court of Appeal.

Reference: HR-2008-1463-A, case no. 2008/743, criminal appeal against judgement. 

 

19 August 2008            Sentencing. Careless conduct with firearms. Penal Code section 352 subsection 1 second sentencing alternative. 

The case concerns sentencing for careless conduct with firearms and flammable substances. The main offence concerned shooting with live ammunition. The Supreme Court dismissed the appeal.

Reference: HR-2008-1437-A, case no. 2008/727, criminal appeal against judgement. 

 

19 August 2008            Criminal law. Procedure. 

The issue in the case was whether a criminal conviction should be quashed because the Court of Appeal failed to appoint an expert to assess the accused’s state of mind at the time of the criminal act, see the Criminal Procedure Act section 294. The Supreme Court quashed part of the judgement of the Court of Appeal and the appeal proceedings.

Reference: HR-2008-1436-A, case no. 2008/272, criminal appeal against judgement. 

 

19 August 2008            Sentencing. Drug offence. Quashing of conviction. Penal Code section 162 subsection 1 and 3, cf. section 60a. 

The case concerns sentencing for serious drug offences. The Supreme Court quashed the conviction for breach of the Penal Code section 60a. There had been excessive delays on the part of the prosecution, and the sentence was reduced from eight to six years’ imprisonment.

Reference: HR-2008-1415-A, case no. 2008/827, criminal appeal against judgement. 

 

26 June 2008                         Wrongful prosecution. Criminal Procedure Act section 447

The case concerns compensation for wrongful prosecution, see the Criminal Procedure Act section 447. The judgement of the Court of Appeal was upheld, except that the level of the fine in item 2 of the judgement was reduced to NOK 60 000.

Reference: HR-2008-1155-A, case no. 2008/179, civil appeal.

 

26 June 2008                        Professional liability

The issue in the case was whether the liability of the company’s auditor and the company’s lawyer concerned the same damage and the same loss, so that damages paid by the auditor must be deducted from the amount of damages that the company could claim from its lawyer. The judgement of the Court of Appeal was upheld.

Reference: HR-2008-1154-A, case no. 2008/433, civil appeal against judgement.

 

26 June 2008                         Sentencing. Receiving the proceeds of a criminal act. Negligence. Penal Code section 317 subsections 1 and 5 (as the provision read until 30 June 2006)

The case concerns sentencing for negligently receiving NOK 40 000, which was the proceeds of a criminal act. The main question was whether the imposition of a fine would be an appropriate sanction. The appeal was dismissed. Dissent.

Reference: HR-2008-1151-A, case no. 2008/499, criminal appeal against judgement.

 

26 June 2008                        Corporate penalty. Auditor Act section 9-3, cf. sections 5-1, 5-2 and 5-3, and the Accounting Act section 8-5 subsection 1, cf. section 7-1, cf. Penal Code section 48a, cf. section 63 subsection 1

The case concerns the imposition of a penalty on an enterprise following conviction for breach of the Auditor Act and the Accounting Act. KPMG AS was ordered to pay a fine of NOK 5 million by way of corporate penalty.

Reference: HR-2008-1150-A, case no. 2008/447, criminal appeal against judgement.

 

26 June 2008                         Damages. Public procurement. Public Procurement Act section 10

The case concerns a claim for damages for breach of the regulations on public procurement. The issue in the case was whether there had been a breach of the rules on notification of the tender competition and, if so, whether a potential bidder was entitled to claim compensation for the costs he had incurred, which mostly consisted of lawyers’ fees. Dissent.

Reference: HR-2008-1144-A, case no. 2008/5, civil appeal.

 

25 June 2008                         Sentencing. Compulsory military service. Military Penal Code section 35 subsection 1, first sentencing alternative, cf. section 34

The case concerns sentencing of a recruit who had failed to report to compulsory military service for a second time, see the Military Penal Code section 35 subsection 1, first sentencing alternative cf. section 34. The appeal was dismissed.

Reference: HR-2008-1139-A, case no. 2008/709, criminal appeal against judgement.

 

25 June 2008                         Purchase of housing cooperative apartment. Seller’s duty of information. Sale of Property Act sections 3-7 and 3-8

The case concerns a claim by the purchaser for a price reduction or damages in connection with the purchase of an interest and right of lease in a housing cooperative. The issue was whether the seller had failed to provide relevant information, or had provided incorrect information, about the joint debt on the property, see the Sale of Property Act sections 3-7 and 3-8. The Supreme Court upheld the judgement of the District Court, whereby the purchaser was granted a price reduction of NOK 60 000.

Reference: HR-2008-1138-A, case no. 2007/1824, civil appeal.

 

25 June 2008                        Change of debtor

The issue before the Supreme Court was whether the obligation to make a payment in kind had been transferred to a new debtor so that the original debtor was fully released from his obligation. A particular question in the case is what is required before the creditor must be deemed to have made a binding choice. The Supreme Court upheld the judgement of the Court of Appeal.

Reference: HR-2008-1136-A, case no. 2007/1873, civil appeal.

 

25 June 2008                        Housing law. Sale of Property Act section 3-9, second sentence. Invasion of rats

The case concerns a claim for a price reduction in connection with an “as is” purchase of a house, see the Sale of Property Act section 3-9. The house was damaged by rats, which damage did not exist at completion but arose as a consequence of a fault in the design of the house. The Supreme Court, like the Court of Appeal, found that the increased risk of an invasion of rats due to the design fault was not so great that it amounted to a defect within the terms of the Sale of Property Act section 3-9 second sentence.

Reference: HR-2008-1135-A, case no. 2007/1781, civil appeal.

 

20 June 2008                        Value added tax. Deduction for fees for legal services to a subsidiary

The main issue in the case concerns an application by a parent company for a deduction pursuant to the Value Added Tax Act section 21 for input VAT paid on legal fees which to a large extent concerned services delivered to a wholly-owned subsidiary. The Vestfold County Revenue Office passed a decision on 29 March 2006 rejecting the application. The Supreme Court quashed the decision.

Reference: HR-2008-1108-A, case no. 2008/106, civil appeal.

 

20 June 2008                         Skatterett. Value added tax. Value Added Tax Act section 21. Deduction for input VAT in combined business

The case concerns value added tax and, more particularly, the question whether a company that carries out a combination of businesses where part of the business is subject to VAT and part of the business is exempt, is entitled to deduct input VAT associated with the exempt business (bowling and billiard business) from output VAT associated with the business that is subject to VAT (café and sales advertising business).

Reference: HR-2008-1107-A, case no. 2008/557, civil appeal against judgement.

 

18 June 2008                         Mortgage law, priority for right of retention. Standard conditions of the Norwegian Transport Association - NSAB 2000 - section 14

The issue in the case was whether a shipping agent could assert a right of retention in the shipped goods with priority before a bank’s charge in the goods in order to secure an outstanding claim for payment for previous shipping assignments. The Supreme Court upheld the judgement of the Court of Appeal.

Reference: HR-2008-1090-A, case no. 2007/934, civil appeal.

 

18 June 2008 Sentencing. Rape, sexual assault of a sleeping victim, incest and other sexually offensive behaviour

The case concerns sentencing for rape in the form of sexual assault of the victim while she was asleep, incest and other sexually offensive behaviour.

Reference: HR-2008-1089-A, case no. 2008/565, criminal appeal against judgement.

 

18 June 2008                         Sentencing. Forfeiture of civil rights. Accounting Act. Value Added Tax Act section 72. European Convention on Human Rights Article 6 (1) cf. Article 13

The case concerns sentencing and forfeiture of civil rights for breach of the accountancy legislation and the Value Added Tax Act section 72 subsection 1. The Supreme Court found that there was a violation of Article 6 (1) of the European Convention on Human Rights on the right to a decision within a reasonable time. It was therefore inappropriate to order the forfeiture of civil rights. However, the conditional part of the sentence was increased from five to seven months, so that the penalty was fixed at 15 months’ imprisonment, of which seven months was made conditional.

Reference: HR-2008-1088-A, case no. 2008/28, criminal appeal.

 

18 June 2008                        Confiscation of the proceeds of crime. Penal Code section 34. Criminal Procedure Act section 51

The case concerns the conditions for confiscation of the proceeds of crime pursuant to the Penal Code section 34 in circumstances where the petition for confiscation was addressed to the owner of a company, whereas the proceeds had been received by the company. It also concerns whether a petition for confiscation can be filed and dealt with separately before the proceedings concerning the crime in question are dealt with in a final and binding judgement, see the Criminal Procedure Act section 51.

Reference: HR-2008-1087-A, case no. 2008/804, criminal appeal against judgement.

 

18 June 2008                        Sentencing. Penal Code section 195, cf. section 29

The case concerns sentencing for sexual assault of a minor below the age of 14 years, see the Penal Code section 195. The convicted person was a police officer, and the lower court had granted an application to remove him from office, see the Penal Code section 29. The Supreme Court quashed the order concerning forfeiture of civil rights. Four months of the eight month prison sentence were made conditional.

Reference: HR-2008-1086-A, case no. 2008/570, criminal appeal against judgement.

 

18 June 2008                         Sentencing. Rape. Penal Code section 192 subsection 1 (a) cf. subsection 2(a)

The case concerns sentencing for rape in the form of sexual intercourse. The Supreme Court dismissed the appeal.

Reference: HR-2008-1085-A, case no. 2008/687, criminal appeal against judgement.

 

17 June 2008                        Sentencing. Hashish. Penal Code section 162 subsection 1

The case concerns sentencing for the illegal import of 36.2 g of hashish for the accused’s own personal use. The Supreme Court adjusted the sentence imposed by the Court of Appeal by deferring it pursuant to the provisions of sections 52-54 of the Penal Code with a probationary period of 2 years. In addition, the Supreme Court imposed a fine of NOK 10 000, alternatively 15 days’ imprisonment.

Reference: HR-2008-1074-A, case no. 2008/541, criminal appeal against judgement.

 

17 June 2008                        Securities Trading Act (1997) sections 7-1 and 2-9

The case concerns appeals against the application of law in connection with the question of guilt following conviction for breach of the Securities Trading Act section 7-1 on the authorisation requirements for the provision of commercial investment services, and serious or repeated breaches of section 2-9, which prohibits unreasonable business methods and conduct in breach of good business practice. The appeals concerned confiscation and sentencing.

Reference: HR-2008-1073-A, case no. 2008/512, criminal appeal against judgement.

 

17 June 2008                         Securities Trading Act (1997) sections 14-3, 7-1, 1-2 and 2-9. Penal Code section 270 subsection 1 no. 1, cf. subsection 2, cf. section 271 (serious social security fraud)

The case concerns the provisions of the Securities Trading Act on authorisations to provide investment services, and the prohibition against unreasonable business methods and acting contrary to good business practice when trading in financial instruments for one’s own account. The Supreme Court quashed the judgement of and the proceedings before the Court of Appeal on the grounds of wrongful application of the law and that the judgement was not adequately reasoned.

Reference: HR-2008-1072-A, case no. 2008/90, criminal appeal.

 

 

No.60 HR Judgement, 09.06.12, HR-2009-01192-P, (case no. 2009/397), criminal appeal against judgement

A v. The Public Prosecution

 

The case concerned an appeal against a judgement of the Court of Appeal in a criminal case following conviction for, among other things, attempted murder. The main issue raised in the appeal was whether the defendant’s right to a fair trial or his right to review of a criminal conviction had been violated because the question of guilt was determined by a jury, which does not give reasons for its decision.

A was acquitted by the District Court but convicted by the Court of Appeal for attempted murder. The Court of Appeal sat with a jury, and A alleged that the lack of a reaon for the jury’s guilty verdict violated his right to a fair trial as laid down in ECHR Article 6 § 1 and ICCPR Article 14 § 1, and his right to review by a higher tribunal as laid down in ICCPR Article 14 § 5. He also alleged that Norway’s reservation to ICCPR Article 14 § 5 was invalid.

The Supreme Court heard the case in plenary and held unanimously that Norway’s reservation to ICCPR Article 14 § 5 was not invalid and that the procedure did not violate the Convention provisions. The Supreme Court found that it cannot be deduced from the case law of the Convention organs that a conviction based on an affirmative answer from the jury is incompatible with the right to a fair trial or the right to review by a higher tribunal. The decisive issue is whether the purpose behind the requirement to give a reason is sufficiently satisfied in some other way. The Supreme Court found that the Norwegian jury system contains mechanisms to satisfy these purposes, and that they were in fact satisfied in A’s case.

Notwithstanding, the Supreme Court set aside the Court of Appeal’s conviction for attempted murder and the appeal proceedings, because the description of the requirement of guilt in the reasons that were given for the sentence were wrong. This created uncertainty as to whether the jury had correctly understood the requirement of guilt.

2009/397

 

 

11 June 2008                        Application of law. Reasonable good faith. Penal Code section 196 subsection 1, section 200 subsection 2, first sentence and section 203

The appeal to the Supreme Court concerned two questions on the application of law. The first question was whether the lower threshold for criminal attempt in connection with breach of section 196 subsection 1 of the Penal Code - sexual assault of a minor below the age of 16 years – had been reached. The second question was whether the subjective conditions for conviction for breach of section 200 subsection 2, first sentence of the Penal Code (sexual conduct with a child under 16 years of age) and section 203 (sexual assault or sexual conduct with a person under years of 18 age for payment) were satisfied. The issue to be addressed was whether the accused was in sufficiently reasonable good faith regarding the victim’s age.

Reference: HR-2008-1043-A, case no. 2008/530, criminal appeal against judgement.

 

11 June 2008                        Sentencing. Enforcement of alternative prison sentence

The issue in the case was whether section 28b of the Penal Code, which contains provisions on enforcement of an alternative sentence, empowers the court to reduce the previously imposed sentence. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-1042-A, case no. 2008/615, criminal appeal against judgement.

 

11 June 2008                        Duty to share tips. “Theatre Café”

The issue in the case was whether waiters at the Theatre Café restaurant in Oslo were obliged to comply with an instruction from their employer to share tips received from customers at the restaurant with other groups of employees. The Supreme Court upheld the judgement of the Court of Appeal, which found that waiters were obliged to comply with the employer’s instruction.

Reference: HR-2008-1041-A, case no. 2007/1816, civil appeal.

 

10 June 2008                        Procedural law. Competence in compulsory proceedings pursuant to the Child Welfare Act

The issue in the case was who has the power to decide and implement procedural steps on behalf of the local authority in compulsory proceedings pursuant to the Child Welfare Act.

Reference: HR-2008-1033-A, case no. 2008/194, civil appeal against judgement.

 

10 June 2008                        Limitation. Claim from an estate in bankruptcy against a former member of the board of directors

The issue in the case was whether a claim brought by a company’s estate in bankruptcy against a former member of the board of directors pursuant to the Limited Liability Companies Act section 17-1 subsection 1 and section 10-9 subsection 2, cf. section 2 was statute barred. It was asserted that the estate in bankruptcy, in the circumstances, had an independent claim against the board member. It was also asserted that a claim pursuant to section 2-19 of the Act on liability to pay issued share capital was the same as the claim made pursuant to section 17-1. The interlocutory judgement of the Court of Appeal was quashed, and the case was returned to the Court of Appeal for continued hearing. The judgment of the Court of Appeal, however, was upheld.

Reference: HR-2008-1031-A, case no. 2008/125, civil appeal and case no. 2008/124, civil interlocutory appeal.

 

4 June 2008              Outdoor Recreation Act sections 2 and 1a. Public right of way

The case concerns a dispute over the validity of an order to remove a gate at the main entrance of a large holiday property in the local authority of Larvik. The order was made by the County Governor of Vestfold pursuant to section 40 cf. section 13 of the Outdoor Recreation Act. The County Governor found that the public’s interest in a right of way over outlying areas weighed heavier than the landowners’ interest in keeping the gate. The Supreme Court found that the character of the land between the cottages on the property and the manner in which the land was used was such that a public right of way would disproportionately interfere with the landowners’ user. The land must be deemed to be home fields pursuant to section 1a of the Outdoor Recreation Act and the County Governor’s Order was invalid.

Reference: HR-2008-981-A, case no. 2008/71, civil appeal.

 

4 June 2008              Tax. Assessment. Deduction of lawyers’ fees etc. Taxation Act section 6-1

The issue in the case was whether A was entitled to a deduction in his tax assessment for fees paid to lawyers and other advisers in defending himself in proceedings brought against him by the Financial Supervisory Authority for alleged breach of the rules in the Securities Trading Act on trading in financial instruments for own account. The Supreme Court found in favour of A that the tax assessment should be set aside and A was awarded costs for all instances.

Reference: HR-2008-980-A, case no. 2008/135, civil appeal.

 

4 June 2008              Blows and kicks to police dog. Penal Code section 127

The issue in the case was whether blows and kicks to a police dog used in connection with an arrest can constitute a breach of section 127 of the Penal Code (obstructing a public servant in the performance of his duties, by violence or otherwise). The Supreme Court found that if section 127 of the Penal Code is to fulfil its purpose,  an attack on a police dog must be treated in the same way as an attack on a police officer when the police officer and the dog work together as a team. This applies notwithstanding that the assailant only intended to attack the dog and not the public servant. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-972-A, case no. 2008/642, criminal appeal against judgement.

 

30 May 2008            Unequal division of marital estate. Gift. Marriage Act section 59 subsection 1

The case concerns a claim for the unequal division of a marital estate on the grounds that one of the spouses had paid down a loan on the marital home with money given to her by her parents, see the Marriage Act section 59 subsection 1.

Reference: HR-2008-958-A, case no. 2008/7, civil appeal.

 

28 May 2008            Employer’s fiduciary liability. Damages Act section 2-1

The issue in the case was whether a local authority was liable as employer for loss suffered by a resident who received home help services from the local authority, when the home help stole the resident’s bank debit card and used it to withdraw cash and purchase goods, see the Damages Act section 2-1. The District Court and the Court of Appeal found in favour of the local authority. The Supreme Court, however, found that the local authority was liable and order it to pay damages and costs for all instances.

Reference: HR-2008-937-A, case no. 2008/16, civil appeal.

 

28 May 2008            Employment law. Dismissal. Employment Act (1977) section 60

The case concerns the validity of a dimissal of an employee on grounds connected with the employer (redundancy). The mental health of the employee in question was crucial to the issues raised in the case. The Supreme Court upheld the judgement of the Court of Appeal.

Reference: HR-2008-936-A, case no. 2007/935, civil appeal.

 

28 May 2008            Claim for restitution of seat and passenger charges. EEA Agreement Article 36. Council Regulation no. 2408/92 (Air Passenger Transport Regulation) (392R2408).

The case concerns a claim for restitution of seat and passenger charges imposed by the Norwegian government in breach of the EEA rules. The main question was whether the claim should be limited to the actual financial loss suffered by the airline so that a deduction should be made for the amount of the charge that had been passed on to and borne by passengers. The case also concerns a question regarding surcharge.

Reference: HR-2008-935-A, case no. 2007/1738, civil appeal.

 

26 May 2008            Value added tax. Value Added Tax Act section 16 subsection 1 no. 6

The case concerns the validity of a decision of the Value Added Tax Complaints Board and, in particular, whether the sale by a bankruptcy debtor of some of his stock formed part of the transfer of the undertaking, cf. Value Added Tax Act section 16 subsection 1 no. 6, and whether the purchaser had been negligent when he had paid value added tax on the transfer and deducted this from input VAT. The Supreme Court upheld the judgement of the District Court.

Reference: HR-2008-930-A, case no. 2008/58, civil appeal.

 

26 May 2008            Group insurance. Qualifying period. Insurance Agreements Act section 11-2 subsection 2

The issue in the case was whether a provision on qualifying period in the conditions for a group insurance must be emphasised in the insurance policy in order for the insurance company to invoke it, see the Insurance Agreements Act section 11-2 subsection 2.

Reference: HR-2008-929-A, case no. 2008/92, civil appeal.

 

23 May 2008            Sentencing. Social security fraud. Penal Code section 270 subsection 1 no. 1, cf. subsection 2.

The case concerns sentencing for social security fraud committed with intent where the accused had withheld information that she was living together with the father of her child and had thereby induced the social security authorities to pay NOK 63 658 in transitional benefits and child benefits to which she was not entitled. The Supreme Court amended the sentence delivered by the District Court and fixed the sentence to 15 days’ imprisonment.

Reference: HR-2008-927-A, case no. 2008/546, criminal appeal against judgement.

 

21 May 2008            Police officer. Self-defence. Penal Code section 229 first sentencing alternative, cf. section 48 subsection 3

The issue in the case was whether a police officer who during an arrest had both objectively and subjectively inflicted bodily harm in breach the provisions of the Penal Code section 229 first sentencing alternative, could be acquitted on the grounds of self-defence, see the Penal Code section 48 subsection 3.

Reference: HR-2008-905-A, case no. 2008/405, criminal appeal against judgement.

 

20 May 2008            Social security law. Cut-off date

The case concerns what is the relevant cut-off date for the facts and circumstances which the Social Security Tribunal can or shall take into account in its determination of a case. The Supreme Court upheld the judgement of the Court of Appeal.

Reference: HR-2008-897-A, case no. 2007/1716, civil appeal.

 

20 May 2008            Residence permit. Power of the courts. Immigration Act section 8 subsection 2

The case concerns the validity of a decision of the Immigration Appeals Board to grant a limited residence permit pursuant to section 8 subsection 2 of the Immigration Act and, more particularly, the competence of the courts pursuant to this provision of the Act. The Supreme Court upheld the judgement of the Court of Appeal.

Reference: HR-2008-896-A, case no. 2008/230, civil appeal.

 

15 May 2008            Sentencing. Accounts Act section 8-5 subsection 1, first sentencing alternative, cf. section 1-2 cf. the Limited Liability Companies Act section 6-14 no. 4. cf. the former Accounts Act chapter 2.

The case concerns sentencing for failure to keep accounts and failure to submit an annual report etc to the Register of Company Accounts. The Supreme Court dismissed the appeal.

Reference: HR-2008-871-A, case no. 2008/472, criminal appeal against judgement.

 

14 May 2008            Corporate penalty. Immigration Act section 47 subsection 2(a), cf. Penal Code section 48a.

The issue in the case was whether a local authority should be fined pursuant to section 47 subsection 2(a) of the Immigration Act, cf. section 48a of the Penal Code for having employed a foreigner who did not have the necessary work permit. The main issue before the Supreme Court was whether the requirement of guilt (gross negligence) was satisfied. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-867-A, case no. 2008/431, criminal appeal against judgement.

 

14 May 2008            Application to rectify interlocutory order. Civil Procedure Act (1915) section 157

Counsel for one of the parties applied for rectification of an error in an interlocutory order of the Supreme Court pursuant to section 157 of the Civil Procedure Act of 1915. The application concerned the rendition of counsel’s submissions. The application was granted.

Reference: HR-2008-850-A, case no. 2007/677, civil appeal.

 

13 May 2008            Procedural error. Civil Procedure Act section 122

The case concerns a procedural error in connection with the reading aloud of a police statement in court. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-846-A, case no. 2008/246, criminal appeal against judgement.

 

6 May 2008               Standard of care in traffic. Penal Code section 239, first sentencing alternative

The case concerns the standard of care to be applied in traffic. The driver of an articulated lorry ran down a cyclist who was in the blind area of the vehicle. The cyclist died instantly. The Supreme Court found that the standard of care applied by the Court of Appeal was wrong and set aside the acquittal for breach of section 239 of the Penal Code (negligently causing the death of another person by driving).

Reference: HR-2008-807-A, case no. 2008/112, criminal appeal.

 

6 May 2008               Marriage Act section 69 subsection 2, first sentence. Joint residence and Household Act section 3 subsection 1 no. 3

The case concerns the relevant date for a valuation of jointly owned real property in connection with the dissolution of a co-ownership.

Reference: HR-2008-806-A, case no. 2007/1863, civil appeal.

 

28 April 2008                        Court fine. Courts of Justice Act section 200

The case concerns a court fine imposed on a lawyer who had contributed to a report in a newspaper about an item of evidence which the court had ruled was inadmissible. The Supreme Court dismissed the interlocutory appeal.

Reference: HR-2008-757-A, case no. 2007/1701, criminal interlocutory appeal.

 

28 April 2008                        Procedural error. Criminal Procedure Act section 292 subsection 2(c), cf. section 294

The case concerns an appeal against the ruling of the lower court that an item of evidence submitted by one of the parties was inadmissible pursuant to the Criminal Procedure Act section 292 subsection 2 (c). It also concerns whether the Court of Appeal had satisfied its duty to ensure that the case is fully clarified pursuant to the Criminal Procedure Act section 294. The Supreme Court found that the Court of Appeal hade made a procedural error when it had failed to examine more closely the technical and medical circumstances surrounding one of the allegations made against the accused. The Supreme Court quashed the judgement of and the appeal proceedings before the Court of Appeal.

Reference: HR-2008-756-A, case no. 2008/232, criminal appeal.

 

25 April 2008                        Confiscation. Illegal fishing

The case concerns confiscation. The issue before the Supreme Court was whether part of the value of a fishing boat and equipment can be subject to confiscation, in addition to the value of the catch, following conviction for illegal fishing within the exclusive fishery zone around Svalbard, see the Act on the Exclusive Economic Zone for Norway section 9 second sentence. The Supreme Court dismissed the appeal.

Reference: HR-2008-735-A, case no. 2008/347, criminal appeal.

 

25 April 2008                        Criminal liability for a pro forma chairman of the board and managing director. Standard of guilt. Intent. Accounts Act section 8-5. Value Added Tax Act section 72 no. 1

A was registered in the Norwegian Register of Business Enterprises as chairman of the board and managing director of a limited liability company involved in the running of a restaurant, but did not in fact hold either of these positions. The issue in the case was whether A could be criminally liable for breach of the accounts legislation and for the submission of incorrect VAT returns for the company. The judgement of the Court of Appeal and the trial proceedings were quashed as regards A.

Reference: HR-2008-734-A, case no. 2008/281, criminal appeal.

 

24 April 2008                        Competence of Supreme Court Justice. Courts of Justice Act section 108

The issue in the case was whether statements made by Mr Justice Matningsdal in a book on the right of the accused to examine witnesses, which was published in 2007, rendered him incompetent to hear a case on the grounds of partiality. The Supreme Court found that Mr Justice Matningsdal was not partial and was competent to hear the case.

Reference: HR-2008-738-A, case no. 2008/246, criminal appeal against judgement.

 

24 April 2008                        Insolvency. Land Registration Act section 23

The case concerns a claim by an estate in bankruptcy for an indemnity against the purchaser of the bankrupt debtor’s real property after the estate had discharged the mortgage on the property. The issue in the case was whether the purchaser’s acquisition, which had not been registered when the petition for bankruptcy had been filed, was enforceable, see the Land Registration Act section 23, and whether the estate in bankruptcy had a right to be indemnified for the discharged debt.

Reference: HR-2008-728-A, case no. 2008/140, civil appeal.

 

24 April 2008                        Tax law. Tax treaty between Norway and USA

The issue in the case was whether a person who had lived in the USA for 2 ½ years was resident for tax purposes in Norway or the USA, see Article 3(2) of the Double Taxation Treaty between Norway and the USA.

Reference: HR-2008-727-A, case no. 2007/1636, civil appeal.

 

18 April 2008                        Administrative law. Immigration law. Entry prohibition. European Convention on Human Rights

A man who was originally from Kosovo applied to the immigration authorities to have an entry prohibition to Norway lifted pursuant to section 29 subsection 4 of the Immigration Act. The immigration authorities refused the application despite the fact that the applicant had a wife and four children in Norway. The applicant had previously been deported from Norway after he was convicted for aggravated robbery, robbery and aggravated theft. The applicant and his wife were divorced after the conviction and the two eldest children had largely grown up without a father. The Supreme Court found that the applicant had no justifiable expectation that the prohibition would be lifted when he chose to remarry his former wife and have two more children by her. The power of the court to review the administrative decision was limited by virtue of the fact that the wording of section 29 subsection 4 of the Immigration Act did not contain any limitation with regard to proportionality. The administrative decision did not violate Article 8 of the European Convention on Human Rights or the UN Convention on the Rights of the Child.

Reference: HR-2008-695-A, case no. 2008/2, civil appeal.

 

17 April 2008                        Criminal law. Homicide. Criminal accountability. Application of law

The issue in the case was whether a person who was charged for murder pursuant to section 233 of the Penal Code was of sound mind and criminally accountable pursuant to section 45 of the Penal Code when the criminal act was perpetrated while he was high on amphetamine and clinically psychotic. The Supreme Court found that a psychosis caused by drug induced intoxication cannot free a person from criminal sanction pursuant to section 44 of the Penal Code, but must be dealt with in the same way as unconsciousness caused by self-induced intoxication pursuant to section 45 of the Penal Code. The Supreme Court referred to the preparatory works to section 45 and concluded that a drug induced psychosis must be deemed to fall within the scope of the provision notwithstanding the strict requirements of the principle of legality in criminal law, because the psychosis was a temporary state and not a lasting mental disorder.

Reference: HR-2008-694-A, case no. 2008/262, criminal appeal against judgement.

 

17 April 2008                        Insurance law. Liability insurance. Medical personnel

The case concerns insurance cover for medical personnel under a liability insurance, see the Medical Personnel Act section 20. An eye doctor who ran a private eye clinic through a limited liability company purchased artificial eye lenses from a manufacturer in the USA. The lenses were damaged as a result of bad packaging. The doctor claimed damages for economic loss when he had to perform new implant operations on patients who had been implanted with the damaged lenses. The Supreme Court found that the liability insurance did not cover this kind of loss. The patients did not have a contractual relationship with the doctor but with his company – the clinic. The company was not insured under the liability insurance. The doctor had not acted in a manner which gave rise to liability. Dissent 3-2.

Reference: HR-2008-692-A, case no. 2007/1236, civil appeal.

 

16 April 2008                        Administrative law. Concession power. Industrial Licensing Act section 2 and the Waterfalls Regulation Act section 12

The case concerns an order made by the Ministry of Petroleum and Energy for the price of concession power in 2003 and 2004, where the price calculation did not take account of the tax costs of the power companies. The Supreme Court analysed the basis for the calculation of the price of concession power and found that the price order fell within the scope of the Ministry’s margin of discretion.

Reference: HR-2008-685-A, case no. 2007/1541, civil appeal.

 

16 April 2008                        International law. Refugee law. UN Committee against Torture. Legal interest

The administrative authorities refused an application for asylum from a man who belonged to a minority Muslim group and ordered his deportation back to Pakistan in 2005. The man referred the case to the UN Committee against Torture, which requested Norway to suspend the deportation order pending the Committee’s review of the case. The deportation order was carried out, but the man returned to Norway and was granted a residence permit on the basis of new documentation. The Supreme Court found that the man had no legal interest in pursuing a claim to determine whether the deportation in 2005 was illegal. The case should therefore have been dismissed.

Reference: HR-2008-681-A, case no. 2007/677, civil appeal.

 

16 April 2008                        Criminal procedure. Road traffic law. Speeding. Driving ban. Road Traffic Act section 33. Criminal Procedure Act section 294. Loss of Licence Regulations section 1-4 subsection 2

During a traffic control of distance between motor vehicles, a motorcyclist was stopped for speeding. The speed estimate was not disputed, but there was disagreement as to whether the person who had driven too fast was the accused or another motorcyclist. The Appeals Committee fount that the question of the motorist’s identity was not governed by the stricter evidence rules that apply to speed checks, but must be determined in accordance with the general principles on the requirement of evidence in criminal cases. In sentencing, the Supreme Court made a deduction for the period of a driving ban, notwithstanding that the accused’s driving licence had not been confiscated.

Reference: HR-2008-680-A, case no. 2008/280, criminal appeal.

 

16 April 2008                        Criminal procedure. Appeal. Witness testimony. Duty of confidentiality. Criminal Procedure Act section 119

During a conversation with a psychologist, a man made murder threats against the police and the minister of justice. The psychologist informed the police about the threats, see the Medical Personnel Act section 23 and the Penal Code section 139. The man consented to the psychologist giving testimony before the District Court and to the submission of his medical notes as evidence, but at the appeal hearing he wanted to withdraw his consent. Although, as a general rule, consent to the release of confidential information can always be withdrawn, the Supreme Court found, with support in jurisprudence, that the considerations that warrant a duty of confidentiality where hardly relevant in the present case. There was therefore no opportunity to withdraw the consent in connection with the appeal hearing.

Reference: HR-2008-679-A, case no. 2008/253, criminal appeal against judgement.

 

10 April 2008            Right of privacy. Penal Code section 390. European Convention on Human Rights Article 8, Norwegian Constitution Article 100, European Convention on Human Rights Article 10 

The case concerns a claim for compensation for breach of the right of privacy. The background to the case was that the Norwegian Broadcasting Company (NRK) showed a film which, among other things, showed a scene where the appellant and her 5 year old step daughter were taken into the police office at the Central Railway Station in Oslo after the appellant had been arrested for purchasing a small dose of heroin. The appeal was dismissed and the Supreme Court affirmed the judgement of the Court of Appeal.

Reference:  HR-2008-647-A, case no. 2007/1717, civil appeal.

 

10 April 2008  Right to institute proceedings. Enforcement fine. Fish farming. Civil Procedure Act section  437. European Convention on Human Rights Article 6(1), Norwegian Constitution Article 96 

 

The issue in the case was whether a legal action concerning the validity of a decision to impose an enforcement fine pursuant to the fish farming legislation should be dismissed because the plaintiff had not availed himself of the complaints procedure, see the Civil Procedure Act section 437 subsection 1. The case gave rise, in particular, to the question whether a right to institute proceedings could be deemed to follow from the European Convention on Human Rights of the Norwegian Constitution Article 96. The interlocutory appeal was dismissed.

Reference: HR-2008-646-A, case no. 2007/1422, civil interlocutory appeal. 

 

3 April 2008 Aiding and abetting by an accountant of serious tax fraud. Breach of accountancy legislation. 

The case concerns sentencing of an accountant who was convicted of aiding and abetting extensive serious tax fraud perpetuated by several taxi owners, and for breach of the accountancy legislation.

Reference: HR-2008-601-A, case no. 2007/1831, criminal appeal. 

 

3 April 2008 Reduction in damages. Motor Vehicle Liability Act section 7 subsection 1. 

The case concerns a claim for compensation for personal injury under a motor insurance policy and the extent to which the measure of compensation should be reduced due to the victim’s contribution to the injury, see the Motor Vehicle Liability Act section 7 subsection 1.

Reference: HR-2008-600-A, case no. 2007/1341, civil appeal. 

 

1 April 2008 Civil claims when leave to appeal against the criminal claim is denied

The case concerns an appeal against a decision of the Court of Appeal to quash an order to pay civil compensation made in connection with a criminal case. In particular, the case before the Supreme Court concerns whether the Court of Appeal in a criminal case can deal with an appeal against a civil claim if leave to appeal against the criminal claim is denied. The Supreme Court quashed the Court of Appeal’s decision to quash the civil compensation order.

Reference: HR-2008-581-A, case no. 2007/1825, criminal appeal.

 

1 April 2008 Tax free demerger. Taxation Act section 11-4. 

The case concerns the conditions for a tax free demerger. The main question was whether the conditions were fulfilled when the only asset that was transferred from the demerging entity was a demerger debenture against the company that was created at the same time as the demerger resolution.

Reference:    HR-2008-580-A, case no. 2007/1413, civil appeal. 

 

14 March 2008         Value added tax. Import of dental/technical products. Value Added Tax Act

The case concerns review of the decision of the Oslo County Tax Office that value added tax was payable on the full value of imported dental/technical products, because the Norwegian company that facilitated the contact between the foreign manufacturer and Norwegian dentists was deemed to have acted as seller of the products. The Supreme Court affirmed the judgement of the District Court.

Reference: HR-2008-516-A, case no. 2007/1142, civil appeal. 

 

13 March 2008         Sentencing. Threats. Penal Code section 227, first sentencing alternative

The case concerns sentencing for threats made against a worker at the Norwegian Post Office, where the accused had, among other things, threatened the worker with “you will die”.  The majority of the Supreme Court upheld the sentence of 15 days imprisonment.

Reference: HR-2008-505-A, case no. 2008/183, criminal appeal.

 

11 March 2008         Easement. Legal interest (locus standi). Civil Procedure Act section 54

The issue in the case was whether an easement covering a large area of land that provided among other things that any buildings on the land must be residential houses had lapsed when a regulation plan for the area was passed. Another issue was whether the provisions in section 54 of the Civil Procedure Act on locus standi were satisfied. The majority of the Supreme Court found that the negative easement had not lapsed as a consequence of the regulation plan. The Court of Appeal’s application of the law was not incorrect and its judgement was affirmed. As a consequence of a change in the prayer for relief, the case before the lower instances was deemed to be partly won and partly lost for the purposes of the award on costs. Dissent.

Reference: HR-2008-484-A, case no. 2007/1266, civil appeal. 

 

7 March 2008           Validity of tax assessment. Taxation Act section 6-10 subsection 2 (a) and subsection 3

The case concerns the validity of the tax assessment of the large listed utility company Hafslund Nett AS for the fiscal year 2001. The question was whether some of the purchase price for the purchase of a plant for the transmission of electric power should be classified as goodwill, or as other intangible assets pursuant to the Taxation Act section 6-10 subsections 2 and 3. The classification would affect the right to claim a deduction for the costs related to depreciation. Unlike the District Court and the Court of Appeal, the Supreme Court found in favour of the State, represented by the Central Tax Office for Large Business Enterprises.

Reference: HR-2008-467-A, case no. 2007/1307, civil appeal. 

 

6 March 2008           Inheritance law. Inheritance Act sections 65 and 67. 

The issue in the case was whether a gift of real property was void because the gift infringed the successor’s freedom of disposition pursuant to a mutual will, or because it would be unfaithful to the purpose and spirit of the will. The Supreme Court affirmed the judgements of the District Court and the Court of Appeal. 

Reference: HR-2008-453-A, case no. 2007/1599, civil appeal.

 

21 February 2008   Rent review of a ground lease. Ground Lease Act section 15 subsection 1, first sentence

The case concerns review of the rent in the ground lease for a number of housing plots in the city of Trondheim which were entered into in the 1920s. The issue in the case was whether the landlord could claim that the new rent should be determined on the basis of the value of the land in accordance with the Ground Lease Act section 15 subsection 2 no. 2 in cases where the principles for price review were regulated in the lease. The Supreme Court affirmed the judgement of the District Court and found that that the plaintiff landlord was only entitled to have the rent regulated in accordance with the change in the value of money, see the Ground Lease Act section 15 subsection 1, first sentence.

Reference: HR-2008-359-A, case no. 2007/1508, civil appeal. 

 

21 February 2008   Transfer of shares. Limited Liability Companies Act 1976 sections 3-3 and 3-4

The issue in the case was whether a provision in the articles of association requiring approval of the board of directors to the transfer of shares also applied when the shares were acquired pursuant to a preemptive right in the articles of association.

Reference: HR-2008-358-A, case no. 2007/1710, civil appeal. 

 

15 February 2008   Enforcement of Claims Act section 2-12. European Convention on Human Rights Article 6 (1)

The issue in the case was whether the Court of Appeal should have held an oral hearing to deal with an interlocutory appeal against an order for the attachment of a bank account which was alleged to belong to a third party, see the European Convention on Human Rights Article 6 (1).

Reference: HR-2008-311-A, case no. 2007/1326, civil interlocutory appeal. 

 

15 February 2008   Eviction/summary possession. Enforcement of Claims Act section 13-2 subsection 3(d), see the European Convention on Human Rights Article 6 (1).  

The case concerns a petition for eviction from a dwelling following termination of the lease, see the Enforcement of Claims Act section 13-2 subsection 3(d). The main question before the Supreme Court was whether the tenant could demand that the petition be dealt with in an oral hearing, see the European Convention on Human Rights Article 6 (1). 

Reference: HR-2008-310-A, case no. 2007/1284, civil interlocutory appeal. 

 

13 February 2008   Calculation of compulsory purchase compensation. Expropriation Compensation Act section 5 subsections 3 and 4

The case concerns calculation of compensation for the compulsory purchase of a plot of land that was used as a fish farm. The issue in the case was whether an increase in value due to earlier investment should be taken into account or ignored, see the Expropriation Compensation Act section 5 subsection 3 and possibly subsection 4.

Reference: HR-2008-297-A, case no. 2007/1562, civil appeal. 

 

13 February 2008   Tax law. Petroleum Tax Act sections 1 and 2. Taxation Act section 14-60 et seq. Tax Treaty with United Kingdom

The issue in the case was whether a UK company was liable to pay tax in Norway on the profit from the sale of an oil rig vessel which, at the time of sale, was operative on the Norwegian Continental Shelf.

Reference: HR-2008-294-A, case no. 2007/1268, civil appeal. 

 

11 February 2008   Patient Injury Compensation Act. 

The case concerns a claim for compensation pursuant to the temporary patient injury compensation scheme. A cancer patient with a serious form of cancer suffered severe injury as a result of intensive chemotherapy and radiation therapy. The issue in the case was whether the treatment that the patient was given was adequate, see section 3 (d) of the rules, and whether the injury was the result of a known and acceptable risk, see section 3 (a).

Reference: HR-2008-272-A, case no. 2007/1113, civil appeal. 

 

6 February 2008                 Damages. Compensation Act section 2-1

The case concerns the liability of a local authority for damages after a young boy was injured while playing on a rope swing that the local authority had designed and built.

Reference: HR-2008-235-A, case no. 2007/1207, civil appeal. 

 

5 February 2008                 Determination of compensation for the “user value” of forestry land 

The case concerns several issues related to the determination of compensation for the user value of forestry land, including the capitalisation interest to be applied.

Reference: HR-2008-225-A, case no. 2007/758, civil appeal. 

 

5 February 2008                 Punishment. Intent. Penal Code section 127 subsection 1, first sentencing alternative

The case concerns the Court of Appeal’s interpretation of the requirement of intent in the Penal Code section 127 subsection 1, first sentencing alternative (attempting by violence to induce a public servant to perform or omit to perform an official act or to obstruct any such performance). The judgement of the Court of Appeal and the appeal proceedings were quashed.

Reference: HR-2008-224-A, case no. 2007/1808, criminal appeal. 

 

1 February 2008                 Criminal procedure. Law relating to legal practitioners. Right of interlocutory appeal. Supreme Court’s power of judicial review. Duty of confidentiality. Delivery of investigation documents to the tax authorities. Criminal Procedure Act sections 61c, 204, 205, 208 and 377. Tax Assessment Act section 4-10. European Convention on Human Rights Article 8

The issue in the case was whether the prosecution, in the course of investigating a tax evasion case, is entitled to deliver seized documents to the tax authorities for an opinion on the new tax assessment and of the potential imposition of surtax. In particular, the case concerns correspondence between a lawyer and his client where both were under suspicion for the same offence.

Reference: HR-2008-202-A, case no. 2007/1001, criminal interlocutory appeal. 

 

1 February 2008                 Validity of tax assessment. Taxation Act section 6-2 subsection 2

The case concerns validity of a tax assessment for the fiscal year 2001. The issue was whether the loss that a shareholder had incurred on a loan to the company and by payment under a surety for the company’s debt entitled him to a deduction in income from the company pursuant to the Taxation Act section 6-2 subsection 2.

Reference: HR-2008-196-A, case no. 2007/1039, civil appeal.

 

30 January 2008                 Termination of employment during probation period. Civil Servants Act section 8 no. 3 

The case concerns the termination of employment of a trainee customs officer who was caught drink-driving during his probation period. In particular, the issue was whether the courts had the power to review the recruitment committee’s assessment of the termination.

Reference: HR-2008-174-A, case no. 2007/1051, civil appeal. 

 

29 January 2008                 Impartiality. Lay judge. Courts of Justice Act sections 106, 108 and 111

The issue in the case was whether the impartiality of an expert lay judge of the Court of Appeal was impaired so that he was incompetent to hear a case, see the Courts of Justice Act section 108.

Reference: HR-2008-183-A, case no. 2007/863, civil appeal. 

 

29 January 2008                 Criminal procedure. Procedural issue. Application of law. Criminal Procedure Act section 252, individualisation of the act in the indictment

The case concerns a conviction for, among other things, breach of the Penal Code section 132a subsection 1 a – influencing a participator in the administration of justice. The question before the Supreme Court was whether the description of the criminal act in the indictment was sufficiently precise. 

Reference: HR-2008-165-A, case no. 2007/1621, criminal appeal. 

 

29 January 2008                 Sentencing. Drink-driving abroad. Road Traffic Act section 31 subsections 1, 2 and 3, cf. section 22 subsection 1. Penal Code section 12 no. 3 c

The case concerns sentencing and the duration of a driving ban following conviction for drink-driving in Denmark.

Reference: HR-2008-163-A, case no. 2007/1742, criminal appeal. 

 

18 January 2008                 Local authority’s first right of refusal to purchase of an apartment building 

The case concerns two appraisals, and gives rise to questions concerning the interpretation of section 2 of the Act of 29 April 1977 no. 34 relating to Local Authorities’ Right of First Refusal to Purchase Apartment Buildings.

Reference: HR-2008-88-A, case no. 2007/941), civil interlocutory appeal. 

 

17 January 2008                 Reassessment. Waterfall rights 

The case concerns an appeal against a reassessment in connection with the determination of the price payable for waterfall rights. 

Reference: HR-2008-87-A, case no. 2007/1219, civil appeal. 

 

17 January 2008                 Compensation for non-economic loss following a gang rape 

The case concerns the measure of compensation for non-economic loss to be paid to the victim of a gang rape, see the Compensation Act section 3-5 subsection 1 b cf. section 3-3. A particular question in the case was whether liability for compensation should be joint and severable or pro rata, see section 5-3 nr. 1.

Reference: HR-2008-83-A, case no. 2007/639, civil appeal. 

 

15 January 2008                 Compensation for non-economic loss following a rape. Compensation Act section 3-5

The case concerns the measure of compensation for non-economic loss following a rape and, in particular, whether there were special reasons to exceed the norm of NOK 100 000 which is established in case law.

Reference: HR-2008-65-A, case no. 2007/637, civil appeal.

 

15 January 2008                 Sentencing for speeding. Road Traffic Act section 31 subsection 1, cf. section 5 subsection 1, cf. subsection 2, cf. Road Signs Regulation section 8

The case concerns sentencing for speeding. The main issue was whether the result of a speed test that had been taken by an automatic speed camera but deleted from the system could be used as a basis for sentencing.

Reference: HR-2008-64-A, case no. 2007/1635, criminal appeal. 

 

11 January 2008                 Procedure. Sentencing. Aggravated robbery and theft of the Munch paintings “The Scream” and “Madonna”. Penal Code sections 267 and 268

The case concerns procedure and sentencing in a criminal case before the Court of Appeal where the primary conviction was for aggravated robbery or aiding and abetting aggravated robbery.

Reference: HR-2008-46-A, case no. 2007/824, criminal appeal. 

 

9 January 2008                   Confiscation of driving licence. Road Traffic Act section 33 no. 1 subsection 6, second sentence

The case concerns confiscation of a driving licence where the accused had been driving under the influence of alcohol, and whether it was appropriate to apply the exemption in the Road Traffic Act section 33 no. 1 subsection 6, second sentence, which provides that the confiscation period can be fixed at less than the stipulated minimum period in exceptional circumstances.

Reference: HR-2008-39-A, case no. 2007/1682, criminal appeal.

 

4 January 2008                   Conviction pursuant to the Fire Prevention Act 

The case concerns a conviction pursuant to the Fire Prevention Act section 42 and raises the question as to the requirements made by the Fire Prevention Act section 6 and related regulations to upgrading of fire security in old buildings.

Reference: HR-2008-10-A, case no. 2007/1623, criminal appeal.