Summaries

22 December 2011

Section 19-2 of the Disputes Act

The Supreme Court quashed the appeal.

Reference:  HR-2011-2401-F, case no. 2011/2124), civil appeal against judgment.

 

22 December 2011

Criminal law. Serious customs violation. Loss of right to drive. The Road Traffic Act section 33.1, cf. the Loss Regulation sections 2-6 and 1-4.

A man was convicted of complicity in the illegal import of 140000 cigarettes, 2328 litres of beer and 750 litres of vodka, cf. section 16-7 of the Customs Act. The case before the Supreme Court concerned the loss of the right to drive. The Supreme Court held that there was in this case no qualified connection between the offence and the use of a car, even if the use had undoubtedly been practical. The Supreme Court noted that even if the case concerned a particularly serious customs violation, it had not been taken for a basis that the vehicle had been used for dissemination and sale of the goods. The appeal was allowed and the count on the loss of the right to drive in the District Court's judgment was quashed.

Reference: HR-2011-2400-A, case no. 2011/1669), criminal appeal against judgment.

 

21 December 2011

Criminal law. Offence against the body. Sentencing. The Penal Code section 229 2nd sentencing alternative, cf. section 232, section 228, cf. section 232.

The case concerned sentencing for two offences against the body - one violation of section 229 2nd sentencing alternative, cf. section 232, of the Penal Code and one violation of section 228, cf. section 232 of the Penal Code. The Supreme Court noted that the act of violence, which was perpetrated by blows with a rock, was very brutal and bore the unmistakable signs of abuse.  The act was unprovoked and could easily have had even more serious consequences. The Supreme Court increased the sentence to one year and nine months' imprisonment.

Reference: HR-2011-2391-A, case no. 2011/1568), criminal appeal against judgment.

 

21 December 2011

Criminal law. Offence against the body. Sentencing. The Penal Code section 229 2nd sentencing alternative, cf. section 232, section 228, cf. section 232.

The case concerned sentencing for two offences against the body - one violation of section 229 2nd sentencing alternative, cf. section 232, of the Penal Code and one violation of section 228, cf. section 232 of the Penal Code. The Supreme Court noted that the act of violence, which was perpetrated by blows with a rock, was very brutal and bore the unmistakable signs of abuse.  The act was unprovoked and could easily have had even more serious consequences. The Supreme Court increased the sentence to one year and nine months' imprisonment.

Reference: HR-2011-2391-A, case no. 2011/1568), criminal appeal against judgment.

 

22 December 2011

Criminal law. Confiscation. The Penal Code section 7d subsection 2. Limited Companies.

The case concerned a claim that confiscated profit was to cover the injured party's claim for compensation, cf. section 37d subsection 2 of the Penal Code. The issue was how this provision was to be interpreted when the injured party is a limited company which is wholly owned by the defendant. In the criminal case about breach of trust with fraudulent intent. The defendant and her company were regarded as two independent legal persons. This had to be carried over when applying the compensation rules. The judgment for breach of trust with fraudulent intent was based on the fact that the limited company had suffered a loss of  NOK 2 500 000. The situation would be set back to zero by "the gain" of NOK 2 500 000 being reversed to the company. The Court of Appeal had relied on too high a general threshold for applying section 37 subsection 2 . The Court of Appeal's decision as to costs where the company was ordered to cover the prosecuting authority's costs with reference to section 439 of the Criminal Procedure Act, cf. section 20-2 of the Disputes Act, was also quashed.

Reference: HR-2011-2408-A, (case no. 2011/1367), criminal appeal against judgment.

 

22 December 2011

Criminal law. Insurance fraud. Sentencing. Reopening. Time course. ECHR.

The case concerned the issue of sentencing after a new hearing of an appeal against the Court of Appeal's judgment after a reopening of the decision by the Appeals Committee of the Supreme Court to disallow the appeal. The earlier conviction had after the reopening been maintained in full. The sentence for the offence was in 2008 determined after ordinary appeal proceedings in the Supreme Court, and the breach of human rights was not related to the sentencing. The issue now was whether the additional procedure time should entail a further reduction of the sentence. The Supreme Court attached importance to the fact that the sentence had been served and that also the parole period after the prisoner was released on parole had expired. Importance was also attached to the nature of the breach of human rights; that the fact that no rationale was given for the decision to disallow the appeal against the Court of Appeal's judgment could not be deemed as very onerous for the defendant.

Reference: HR-2011-2395-A, case no. 2011/1026, criminal appeal against judgment.

 

22 December 2011

Sale of goods law. Real estate. Calculation of time limit for lodging complaints. The Sale of Property Act section 4-19 subsection 1.

The case concerned a claim for the cancellation of a purchase of three owner-tenant flats. Already before the prior instances there was agreement that the flats suffered from such defects as to warrant a cancellation if the buyers had lodged a complaint within a reasonable period of time, cf. section 4-19 subsection 1 of the Sale of Property Act. Before the Supreme Court the case had been further cut down so that the dispute was limited to the disagreement about the starting point for the calculation of the time limit. The parties agreed that the complaint had not been lodged in due time if the basis for the evaluation were to be an information letter sent to the tenants in November 2008, but that on the other hand the complaint had been lodged in due time if the time limit did not start to run until the tenants received information from the board on 3 April 2009. The Supreme Court held that the time limit did not start to run until April 2009, and the parties then agreed that all the respondents had lodged their complaints in due time. The Supreme Court rejected the appeal.

Reference: HR-2011-2394-A, case no. 2011/1210), civil appeal against judgment.

 

22 December 2011

Sentencing. Preventive custody. Aggravated sexual abuse of children. The Penal Code section 39c, section 192 subsections 1 and 3, section 193, section 195 subsection 1 1st and 2nd sentence alternatives, sections 197, 199, 204a, 205 and 206.

Reference: HR-2011-2403-A case no. 2011/1201, criminal appeal against judgment.

 

22 December 2011

Labour law. Transfer of an undertaking. Discrimination on the basis of membership of a trade union. The Working Environment Act sections 16-1, 13-1 and 13-4. EU law.

The case concerned the application of the rules relating to transfer of an undertaking in chapter 16 of the Working Environment Act and the discrimination provisions contained in chapter 13 regarding the transfer of a catering business for airlines from one company to another. The Supreme Court held that the appeal must be allowed as regards the issue relating to transfer of an undertaking, but rejected the appeal as regards the discrimination issue.

Reference: HR-2011-2393-A, case no. 2011/539 civil appeal against judgment.

 

21 December 2011

Sentencing. Community service. Drugs. Storage and safekeeping of hashish. The Penal Code section 162 subsection 1, cf. subsection 3. The Penal Code section 28a. Convention on the Rights of the Child, art. 3.

The case concerned sentencing for the storage and safekeeping of approximately 95 kg of hashish. The crucial question was whether there were grounds for applying community service. The majority of the Supreme Court held under doubt that it would be justifiable to apply community service on the grounds of the defendant's responsibility of care for her daughter and the fact that she had confessed her own offence and cooperated with the police allowing the entire case to be cleared up. The sentence was changed to 390 hours of community service with a period of implementation of 1 year and 6 months. The judgment was passed with dissenting votes 3-2.

Reference HR-2011-2385-A, case no. 2011/1388, criminal appeal against judgment

 

21 December 2011

The Criminal Procedure Act (1981) section

The Supreme Court quashed the appeal.

Reference: HR-2011-2387-U, case no. 2011/2114, criminal appeal against interlocutory injunction.

 

21 December 2011

Corporate penalty. Seal hunting. The Penal Code sections 48a and 48b. The Marine Resources Act section 61 and Regulation on seal hunting in Vesterisen (the Western Ice) and Østisen (the Eastern Ice).

The case concerned the issue of applying corporate penalty against a shipping company for contravention of the Marine Resources Act with related regulations on seal hunting in Vesterisen and Østisen. The Supreme Court found it clear that the contraventions were committed in the interests of the shipping company and were based on a wish for harvesting efficiency and the biggest quantitative harvest possible. The Supreme Court held that a corporate penalty should be imposed on the shipping company and found no grounds for reducing the size of the fine.

Reference: HR-2011-2382-A, case no. 2011/1329, criminal appeal against judgment.

 

19 December 2011

The Criminal Procedure Act (1981) section 54

The Supreme Court quashed the appeal.

Reference: HR-2011-2352-F, case no. 2011/2088), criminal appeal against interlocutory order

Sentencing. Preventive custody. Attempted premeditated murder. The Penal Code section 39c.

The case concerned sentencing where the predominant factor was attempted premeditated murder, cf. section 233, cf. section 49, of the Penal Code. The crucial issue was whether a sentence of preventive custody should be imposed instead of a determined prison sentence. The Supreme Court held that there was an obvious danger that the defendant would again commit a serious crime of violence and that a determined prison sentence could not be regarded as adequate to protect society. The Supreme Court attached particular importance to his many serious and unprovoked acts of violence which started already at a very young age. Not only had he at regular intervals been guilty of new offences, but it also seemed as if there was a certain escalation of the acts of violence. The timeframe for the preventive custody of nine years and a minimum term of six years remained unchanged as determined by the Court of Appeal.

Reference: HR-2011-2354-A, case no. 2011/1365), criminal appeal against judgment.

 

19 December 2011

Criminal law. Environmental action. Necessity. Compensation. The Penal Code, sections 47, 48, 355. The Police Act, section 30.1 cf. section 5. The Compensation Act sections 5-1 and

5-2.

The case concerned the issue of necessity in the face of lawful orders issued by the police and claims for compensation caused by demonstrations. Three men were convicted for not having complied with orders issued by the police to remove themselves in connection with three different demonstrations related to the project "A Clean Oslo Fjord". The object of the demonstrations was to direct attention to a breach of concession. Neither a plea of necessity or self-defence succeeded. The three men were also sentenced to pay compensation to the Oslo Port for loss of production caused by the two incidents. The Supreme Court acquitted them of one of the claims for compensation, but not the other.

Reference: HR-2011-2349-A, case no.. 2011/1483, criminal appeal against judgment.

 

19 December 2011

Ownership. Parking. Co-ownership contract. The Owner-Occupied Units Act 1983.

The case concerned the ownership of three garages with parking spaces in a co-ownership which was converted into individual units in 1984. The issue was whether the garages belonged to the co-ownership as common areas or to the successors in title of the former owners of the property who had used the garages. The Supreme Court held that the parties' co-ownership contract could not be interpreted to mean that the garages with parking spaces were transferred to the co-ownership. The parties' conduct reflected a clear and unambiguous understanding that the co-ownership contract should be interpreted to mean that the garages with parking spaces would be kept by the unit owners in 1981. This would have to be decisive for the contractual relationship between the parties in spite of the fact that the wording of the contract might indicate otherwise. The Supreme Court rejected the appeal.

Reference: HR-2011-2353-A, case no. 2011/1148, civil appeal against judgment.

 

13 December 2011

The Criminal Procedure Act (1981) section 54

The appeal will be suspended until Thursday 15 December 2011 1500 hrs.

Reference: HR-2011-2320-U, case no. 2011/2052, criminal appeal against judgment.

 

13 December 2011

Mental health care. Compulsory observation. Wrong defendant. The Mental Health Care Act

section 3-2. The Health Institutions Act section 6. ECHR Article 5 no. 1.

The issue was whether a health institution breached the rules of procedure set out in the Mental Health Care Act in connection with a decision to commit a person for compulsory observation and whether this constituted a breach of Art. 5.1 of the European Convention on Human Rights. The case also gave rise to the question whether a declaratory action can be brought against the health institution for breach of human rights. The Supreme Court noted that the hospital did not have any reason to suspect that the basis for the compulsory observation was defective and the hospital did not breach the Mental Health Care Act

by relying on the medical certificate from the primary treating physician. The Supreme Court concluded that it is the state represented by the Ministry of Health and Care Services that must be sued if the Claimant is to have legal interest in obtaining a judgment establishing that a health institution has breached an incorporated human rights convention. The case had to be summarily dismissed on the grounds that an absolute procedural prerequisite relating to legal person was not satisfied. The Supreme Court quashed the judgments of the District Court and the Court of Appeal , and the case was summarily dismissed from the courts.

Reference: HR-2011-2325-A, case no. 2011/1002, civil appeal against judgment.

 

13 December 2011

Labour law. Wrongful dismissal. The Employment Act, section 15-7.

The case concerned the question whether a breach of routines for swapping duties could constitute due grounds for dismissal. A cabin attendant employed by a small airline company was dismissed because she had, contrary to the rules, failed to notify her employer and obtain approval of a swapping of duties with a colleague. The Supreme Court held that the employee's failure to clear the swapping of duties did not constitute due grounds for dismissal. A written warning should have been a sufficient measure on the part of the company. The Supreme Court quashed the judgment of the Court of Appeal.

Reference: HR-2011-2327-A, case no. 2011/1421), civil appeal against judgment.

 

22 December 2011

Criminal Procedure. Appeal. Retrial after reopening. Time course - ECHR

The case concerned an appeal against the Court of Appeal's interlocutory order to disallow an appeal against the sentencing in connection with a retrial after the reopening of a criminal case. For the Supreme Court the question was whether it was correct of the Court of Appeal to disallow the appeal against the sentencing for fraud in the District Court's judgment from 2006. The defendant had after a retrial had a two-instances trial with a rationale for the grounds also for the conviction of fraud, and the breach of human rights had thereby been rectified. However, the defendant argued that the additional time that had elapsed due to the breach of human rights must lead to a reduction of the sentence. The Supreme Court held that the Court of Appeal was in error when disallowing the appeal against the sentencing. What the court should have done was to consider how onerous it would be for the defendant to be put back in prison to serve his sentence and the hardship which the additional period of procedure due to the breach of human rights had caused. The Court of Appeal's disallowing of the appeal against the sentencing was quashed.

Reference: HR-2011-2396-A, case no. 2011/1488, criminal appeal against interlocutory order.

 

6 December 2011

Company pension. The linearity principle. The Company Pensions Act section 16-2.

The case concerned the understanding of the interim provisions in section 16-2 of the Company Pensions Act upon adaptation of an earlier pension scheme to statutory provisions. The question is whether it is the start date of employment or the later date of enrollment in the earlier scheme which shall form the basis of the linearity calculation. The Supreme Court held that the adaptation agreement between the companies and the insurance company could not, with effect for the employees, be understood to mean that the linearity calculation was to extend all the way back to the start date of employment, even if a requirement to that effect was to comply with the interim rules of the act. The Supreme Court quashed the appeal.

Reference: HR-2011-2270-A, Case no. 2011/981, civil appeal against judgment

 

6 December 2011

Child welfare. Parties' rights. Foster mother. The Child Welfare Act section 4-19

subsection 4.

The issue was whether a former foster mother was entitled to have a case relating to right of access heard by the county social welfare board. Another issue was how the courts were to deal with the county social welfare board's decision to dismiss the request. The procedural errors that had been committed did not lead to a quashing of the prior instances' decisions, and the Supreme Court found that there were sufficient grounds for making a decision on the merits of the case. The Supreme Court majority upheld the foster mother's claim that she is entitled to the county social welfare board making a decision as to whether she shall have right of access to the children, cf. section 4-19 subsection 4 of the Child Welfare Act. The Supreme Court rejected the appeal. The judgment was passed with dissenting votes 4-1.

Reference: HR-2011-2269-A, case no. 2011/1556), civil appeal against judgment.

 

14 December 2011

Expropriation. Reappraisal. Compensation for waterfall rights. Expropriation Compensation Act section 5

The case concerned an appeal against a reappraisal where compensation was granted for waterfall rights following the transfer of water from the waterway that passes through the expropriatees' properties to another waterway. The main issue of the case concerned the understanding of the requirement in section 5 of the Expropriation Compensation Act to the effect that the use of the property on which the calculation of lost sales value is based must be foreseeable. The Supreme Court held that held that the reasons given by the Court of Appeal for the appraisal were deficient, which prevented the review of the issue whether the reappraisal was based on a correct application of the law. The Supreme Court quashed the reappraisal.

Reference HR-2011-2329-A, case no. 2011/860, appeal against reappraisal.

 

9 December 2011

Housing law. Interpretation of bye-laws. Housing cooperatives.

The case concerned a dispute as to the price to be paid on the conveyance of a flat in a housing cooperative for the elderly. It specifically raised questions regarding the interpretation of a provision in the bye-laws relating to the principles for the fixing of prices and whether this provision should, subject to certain conditions, be revised under section 36 of the Contract Act or section 4-4 of the Housing Cooperatives Act. The Supreme Court found it clear that the most natural understanding of the provision was as a point of departure and main rule that the valuation must be based on a consumer-price regulation. Both the background history of the housing cooperative and the opinion of the original members of the housing cooperative moreover substantiate this opinion. Neither circumstances at the time when the member bought the flat, nor the subsequent price trend, suggested an adjustment of the price regulation provision in the bye-laws pursuant to section 36 of the Contract Act. Legislator has as recently as in 2003 chosen to continuing the possibility of laying down price regulation clauses in the bye-laws of housing cooperatives, especially with a view to cases where the flats are reserved for certain groups. It would then be up to the legislator to prohibit any regulation that entails that cooperative shares are sold at lower prices than market price.

Reference: Supreme Court-2011-2303-A, case no. 2011/752), civil appeal against judgment.

 

9 December 2011

Housing law. Interpretation of bye-laws. Housing cooperatives.

The case concerned a dispute as to the price to be paid on the conveyance of a flat in a housing cooperative for the elderly. It specifically raised questions regarding the interpretation of a provision in the bye-laws relating to the principles for the fixing of prices and whether this provision should, subject to certain conditions, be revised under section 36 of the Contract Act or section 4-4 of the Housing Cooperatives Act. The Supreme Court found it clear that the most natural understanding of the provision was as a point of departure and main rule that the valuation must be based on a consumer-price regulation. Both the background history of the housing cooperative and the opinion of the original members of the housing cooperative moreover substantiate this opinion. Neither circumstances at the time when the member bought the flat, nor the subsequent price trend, suggested an adjustment of the price regulation provision in the bye-laws pursuant to section 36 of the Contract Act. Legislator has as recently as in 2003 chosen to continuing the possibility of laying down price regulation clauses in the bye-laws of housing cooperatives, especially with a view to cases where the flats are reserved for certain groups. It would then be up to the legislator to prohibit any regulation that entails that cooperative shares are sold at lower prices than market price.

Reference: Supreme Court-2011-2303-A, case no. 2011/752), civil appeal against judgment.

 

8 December 2011

Tax law. Tax liability on realization of convertible bonds. Section 2-38 subsection 2 c, cf. subsection 1, of the Taxation Act.

The issue was whether the main rule in section 5-1 of the Taxation Act applied, or whether the exemption method in section 2-38 of the Taxation Act was applicable, either to the part of the gain that could be linked to the subscription-rights element in the convertible bonds, or to the entire gain. The Supreme Court majority attached decisive weight to the fact that before the introduction of the exemption method in 2004 it was an established conception of law that convertible bonds where the subscription rights could not be separated from the claim were fully liable to tax as a gain obtained from the realization of the claim. The preparatory works of the exemption method did not provide any indications that the legislator had a decomposition in view. This solution could accordingly not be taken for a basis even if a strictly financial assessment might appear to provide indications to the contrary. The companies submitted in the alternative that an assessment of what constituted the most essential component of the convertible bonds at the time of realization must be made - which would here entail that the gain was in its entirety comprised by the exemption method. Also this argument was disallowed. The judgment was passed with dissenting votes 4-1.

Reference: HR-2011-2285-A, case no. 2011/869, civil appeal against judgment.

 

6 December 2011

Child welfare. Parties' rights. Foster mother. The Child Welfare Act section 4-19

subsection 4.

The issue was whether a former foster mother was entitled to have a case relating to right of access heard by the county social welfare board. Another issue was how the courts were to deal with the county social welfare board's decision to dismiss the request. The procedural errors that had been committed did not lead to a quashing of the prior instances' decisions, and the Supreme Court found that there were sufficient grounds for making a decision on the merits of the case. The Supreme Court majority upheld the foster mother's claim that she is entitled to the county social welfare board making a decision as to whether she shall have right of access to the children, cf. section 4-19 subsection 4 of the Child Welfare Act. The Supreme Court rejected the appeal. The judgment was passed with dissenting votes 4-1.

Reference:HR-2011-2269-A, case no. 2011/1556), civil appeal against judgment.

 

6 December 2011

Company pension. The linearity principle. The Company Pensions Act section 16-2.

 

2 December

International tax law. Tax treaty. Permanent establishment. Section 2-3 of the Taxation Act.

The case concerned review of a tax assessment decision where an Irish company had been taxed in Norway for the years 2003 to 2006. The issue was whether the company had a permanent establishment in this country under the Tax Treaty between Norway and Ireland of 22 November 2000, Article 7. 1, cf. Article 5.5. The Supreme Court held that the company did not have a permanent establishment in Norway and the tax assessments for the years 2003-2005 were set aside.

Reference: HR-2011-2245-A, (case no. 2011/755), civil appeal against judgment.

 

2 December 2011

International tax law. Tax treaty. Permanent establishment. Section 2-3 of the Taxation Act.

The case concerned review of a tax assessment decision where an Irish company had been taxed in Norway for the years 2003 to 2006. The issue was whether the company had a permanent establishment in this country under the Tax Treaty between Norway and Ireland of 22 November 2000, Article 7. 1, cf. Article 5.5. The Supreme Court held that the company did not have a permanent establishment in Norway and the tax assessments for the years 2003-2005 were set aside.

Reference: HR-2011-2245-A, (case no. 2011/755), civil appeal against judgment.

 

1 December 2011

Family law. Law of minors. Parental responsibility. Access. The Children Act sections 48,  42, 43.

The case concerned parental responsibility and contact arrangements for two joint children.

The Court of Appeal held that the mother was to have sole parental responsibility and that the father was to have visitation rights every fourth weekend, partly under supervision.

The Supreme Court came to the same conclusion for both boys as regards parental responsibility and weekend contact, but one of the boys was to have an additional afternoon once a week with eventual overnight stay. Reference was here made to the statement before the Supreme Court by the expert who stated that such increase of the visitation rights was safe. In the decision regarding parental responsibility the Supreme Court referred to case law where the rule is that in case of a breakdown of marriage the parents get joint parental responsibility, unless special reasons suggest that one of the parents should have sole custody.

No presumption could be established for the father to be granted ordinary access as defined in section 43 subsection 2 3rd sentence of the Children Act. The text of the law contained a definition of what is ordinary access if this has been agreed or determined. It follows from the travaux preparatoires that the decision as to access shall be based on what is the best for the child.

The father had referred to the fact that his work permit in Norway would not be extended if he was not granted "ordinary access". The Supreme Court stated that it would be wrong to establish access with a view to obtaining a favourable decision from the immigration authorities instead of  the best interests of the child.

Reference: HR-2011-2244-A, case no. 2011/1135, civil appeal against judgment.

 

The case concerned the understanding of the interim provisions in section 16-2 of the Company Pensions Act upon adaptation of an earlier pension scheme to statutory provisions. The question is whether it is the start date of employment or the later date of enrollment in the earlier scheme which shall form the basis of the linearity calculation. The Supreme Court held that the adaptation agreement between the companies and the insurance company could not, with effect for the employees, be understood to mean that the linearity calculation was to extend all the way back to the start date of employment, even if a requirement to that effect was to comply with the interim rules of the act. The Supreme Court quashed the appeal.

Reference: HR-2011-2270-A, Case no. 2011/981, civil appeal against judgment

 

29 November 2011     

Law of obligations. Bank guarantee 

The case concerned interpretation of a guarantee provided by a bank as security for a shipyard’s payment obligation towards a subcontractor. The bank had guaranteed as surety for "proper payment" pursuant to a contract between the yard and the subcontractor. A majority of the Supreme Court majority held that, on the wording of the guarantee, the bank had given a surety to secure the yard's obligation to make "proper payment ... pursuant to the contract dated ... ". The bank had drafted the wording of the contract and therefore must bear the responsibility for the uncertainty that the wording had given rise to. The majority of the Supreme Court interpreted the guarantee to also include additional work and variations to the work performed within the framework of the contract. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-2228-A, case no. 2011/762, civil appeal against judgment. 

 

29 November 2011   

Family law. Parental responsibility. Jurisdiction.

The case concerned the jurisdiction of the Norwegian courts and a provisional decision in proceedings concerning parental responsibility. A mother had moved to Australia taking her daughter with her but without notifying the child’s father beforehand. The Supreme Court held that there had been a breach of the duty in the Children Act sections 42 and 46 to notify a parent with contact rights about relocation abroad, and that the child must continues to be deemed to be resident in Norway in relation to the rules on jurisdiction, see the Childrens Act section 82 subsection 1 (b).

Reference: HR-2011-2229-A, case no. 2011/1222, civil appeal against interlocutory order.  

 

28 November 2011            

Criminal Procedure Act 1981 section 54 

The Supreme Court quashed the appeal proceedings.

Reference: HR-2011-2222-F, case no. 2011/1931, criminal appeal against judgment.

 

21 November 2011            

Criminal Procedure Act 1981 section 434 

The Supreme Court quashed the appeal in so far as it concerned the civil claim.

Reference: HR-2011-2163-F, case no. 2011/958, criminal appeal against judgment. 

 

17 November 2011            

Inheritance law. Civil Procedure. Compulsory joinder of parties. Deceased estate. Inheritance Act section 19

The case concerned the compulsory joinder of parties in an inheritance dispute in which a brother alleged that dispositions had been made in breach of the Inheritance Act section 19. Proceedings were filed with the Conciliation Board against the other brother but, by error, the mother was not named as a party in the proceedings. The mother died before the case was dealt with by the Conciliation Board. The Supreme Court held that the error lapsed by and with the mother’s death. Furthermore, there was no error when the deceased estate was not joined in the proceedings when the matter came before the District Court. The Supreme Court rejected the appeal.

Reference:HR-2011-2146-A, case no. 2011/832, civil appeal against judgment. 

 

17 November 2011            

Criminal Law. Gross tax fraud. Sentencing. Fine. Tax Assessment Act section 12-1 no. 1 a, cf. section 12-2

A man was convicted in the Court of Appeal of gross tax fraud by failing to declare income abroad and thus evading approximately NOK 5 million in taxes. The Supreme Court stated that general considerations of deterrence carry full weight in cases of extensive tax fraud and held that a penalty of 2 years and 8 months imprisonment was an appropriate starting point. The time taken to bring the case to trial was not a mitigating circumstance because the matter had been complicated and the investigation had been challenging. After granting a penalty rebate on account of the defendant’s confession, the Supreme Court fixed the penalty at imprisonment for a term of 2 years and 1 month, as in the Court of Appeal. When calculating the fine, no allowance should be made for the fact that administrative surcharges are no longer imposed in tax fraud cases, but the level of the fine must be increased slightly compared to previous practice. The Supreme Court held that the prison sentence must be determined independently and that when the fine is then assessed the court shall take account of the imposed prison sentence and the criteria in section 27 of the Penal Code. The Supreme Court reduced the fine from NOK 1,500,000 to NOK 750,000.

Reference: HR-2011-2145-A, case no. 2011/1351, criminal appeal against judgment. 

 

17 November 2011         

Inheritance law. Civil Procedure.  Compulsory joinder of parties. Gift. Inheritance Act section 19

A surviving spouse had gratuitously transferred shares in the family business to a son who was to carry on the business. The daughter filed proceedings to set aside the transfer pursuant to section 19 of the Inheritance Act. The Supreme Court referred to section 1-3 subsection 2 of the Disputes Act and to the preparatory works to the Disputes Act and concluded that proceedings should also be filed against the donor. In this case, the donor had a strong interest in the outcome of the case and, on the whole, the same interest in the outcome as the beneficiary. The claimant’s wish to shield the surviving spouse from legal proceedings could not be given similar weight and it was reasonable to assume that a conflict had already arisen. Procedural considerations also advocated this solution, as it will often be difficult to distinguish between pure gifts and gift sales. The Supreme Court held that section 16-5 of the Disputes Act does not prevent the courts from granting a right to correct the error by joining the donor as a party to the case. However, in order to ensure that the donor has the opportunity to defend the claim, the final decision should be made by the District Court if a claim for rectification of the error is made. The Supreme Court quashed the rulings of the District Court and the Court of Appeal.

Reference: HR-2011-2144-A, case no. 2011/522, civil appeal against interlocutory order. 

 

17 November 2011            

Criminal Law. Gross breach of trust. Penal Code section 276b cf. section 276a

The case concerned interpretation of the law, sentencing, forfeiture of office and forfeiture of profit for a police officer / enforcement officer who was convicted in the Court of Appeal of gross breach of trust. The defendant had accepted a private commission and made his skills as an enforcement officer available to a private party. The Supreme Court held that the conditions to convict for gross corruption were satisfied, see the Penal Code section 276b cf. section 276a. The remuneration that the police officer had received represented an "advantage" even though his net profit from the commission was only small. The advantage was received in connection with a position and was clearly improper. There are very strict requirements of neutrality for persons in the defendant's position and the offence must therefore be regarded as gross. The Supreme Court upheld the Court of Appeal’s judgment regarding forfeiture of office and forfeiture of profit, but reduced the sentence from ten to eight months imprisonment.

Reference:            HR-2011-2143-A, case no. 2011/1164, criminal appeal against judgment. 

 

17 November 2011    Civil procedure

The Supreme Court quashed the appeal proceedings

Reference: HR-2011-2142-F, case no. 2011/1863, civil appeal against judgment. 

 

16 November 2011            

Immigration law. Asylum and protection against repatriation. Requirements of proof. Immigration Act 1988 sections 15, 16 and 17. Immigration Act 2008 sections 28 and 73. Convention relating to the Status of Refugees Article 1 A

The case concerned the validity of a decision of the Immigration Appeals Board to deny a married couple asylum and protection against repatriation to Iran in circumstances where the husband alleged that he was politically persecuted. The main question before the Supreme Court concerned the lower threshold for the requirement of proof. The reason why the application was refused was that the Immigration Appeals Board did not find the husband’s explanation about his alleged persecution and a death sentence against him in Iran credible. Neither the current nor the former Immigration Act contains express provisions on standards of proof or burden of proof. Following a review of the preparatory works to the legislation, the Supreme Court stated that the authorities must rely on the statement made by the applicant at his or her asylum interview as far as it appears reasonably probable, and that it is not required that it is more likely than not that the explanation is correct. The requirement of substantiation depends on the severity of the consequences that the applicant risks if the application is refused. In this case, the Supreme Court held that the statement made by the applicant at his asylum interview appeared on the whole to be so unlikely that it could not justify a right to residence or protection against repatriation

Reference: HR-2011-2133-A, case no. 2011/817, civil appeal against judgment. 

 

14 November 2011            

Criminal Law. Criminal Procedure. Grooming. Provoked action. Child pornography. Two instance procedure. Penal Code sections 201a and 204a. International Covenant on Civil and Political Rights (ICCPR) Article 14 no. 5. ECHR Article 6 

The appeals concerned convictions for attempted violations of section 201 a of the Penal Code, which is directed at persons who, by prior arrangement, meet a child under 16 years of age with the intent to commit sexual abuse ("grooming"), and section 204 a of the Penal Code, which, among other things, criminalises the production, importation and possession of "child pornography". The main questions before the Supreme Court were what is required for conviction of the offences in section 201 a or attempt at such offences, whether the fact that the action was provoked by someone pretending to be the victim should lead to an acquittal, and whether there had been a procedural error when the indictment for violation of section 204 A was brought before the Court of Appeal at first instance. The judgment was passed with dissenting votes (4-1) in so far as it set aside the conviction for child pornography

Reference: HR-2011-2105-A, case no. 2011/964, criminal appeal against judgment. 

 

10 November 2011            

Criminal Procedure. Time limit for appeal. Domestic violence. Compensation for non-economic loss. Compensation Act section 3-5, cf. section 3-3. Criminal Procedure Act section 434

A man was convicted in the Court of Appeal of domestic violence and ordered to pay compensation for non-economic loss to his former partner. In its ruling in HR-2011-1691-A, the Supreme Court had acquitted the man after allowing his appeal against the application of the law in section 219 subsection 1 of the Penal Code. The present case before the Supreme Court concerned the order to pay compensation to his former spouse. In his original appeal, he had not applied for review of the compensation order and the Supreme Court dismissed the request for a retrial of the civil claim on the grounds that it was submitted out of time. The Supreme Court rejected the application to quash the decision of the Court of Appeal related to the compensation claim.

Reference: HR-2011-2098-A, case no. 2011/863, criminal appeal against judgment. 

 

10 November 2011

Parental responsibility. Permanent residence. Biological connection. Children Act section 48 subsection 1, section 63 subsection 3, 3^rd sentence. UN Convention on the Rights of the Child Articles 3 and 7. ECHR Article 8

The case concerned parental responsibility and permanent residence for a child after its mother died. The dispute was between the child's biological father, who had never had custody of the child, and the child’s stepfather, who had been a close carer since the child was two years old. The Supreme Court stated that biological connection is only one of several factors to be taken into account in the overall assessment of the best interests of the child. The Court of Appeal had placed too much emphasis on the biological connection between the child and its biological father and its judgement did not, in the Supreme Court's opinion, correctly reflect current jurisprudence. The Supreme Court held that the child should continue to live with its stepfather and that custody should be shared between the biological father and the stepfather.

Reference: HR-2011-2097-A, case no. 2011/1048, civil appeal against judgment. 

 

8 November 2011            

Administrative Law. Patient Rights. Right of appeal. Access to documents. Individual decision. Public Administration Act sections 2, 18 and 28

A doctor was ordered to disclose patient records in connection with a control of his practice. The issue in the case was whether one of the patients had a right to appeal against the order. The order was made in connection with investigations into the doctor’s practice that could result in an individual administrative decision against him and was therefore a procedural decision. The preparatory works to the Public Administration Act assume that procedural decisions cannot normally be appealed separately. The Supreme Court considered whether, in this case, the interests of the doctor’s patients could justify treating the disclosure order as an individual decision, as opposed to a procedural decision, but concluded that there was no basis for this. Although patients have an interest in preventing the spread of personal data, and this interest is worthy of protection, the protection is not absolute, see the Patients Rights Act section 3-6. A patient has no right of confidentiality about the information in his journal beyond that which follows from the statutory duty of confidentiality. The order to disclose the records could not be said to “specifically determine the rights" of patients in the sense this term is used in section 2 of the Public Administration Act. The Supreme Court allowed the state’s appeal.

Reference: HR-2011-2072-A, case no. 2011/944, civil appeal against judgment. 

 

8 November 2011            

Criminal Law. Sexual intercourse with minor. Equality of age. Remittance of penalty. Penal Code section 195 subsection 4.

The defendant was convicted of having sexual intercourse with a minor below 14 years of age. The age difference between the defendant and the victim was three years and two months and the Court of Appeal had held that they were of equal age and development. The question before the Supreme Court was whether the penalty should be remitted on account of the equality of age. The Supreme Court held that special circumstances in the case justified not applying the provision on remittance of penalty in section 195 subsection 4 of the Penal Code. The Supreme Court attached particular weight to the victim's young age, the fact that the age difference was in the upper range of what can be deemed to be equality of age, the degree of abuse and the fact that the victim had contracted a venereal disease from the defendant. The Supreme Court rejected the appeal.

Reference: HR-2011-2071-A, case no. 2011/1121, criminal appeal against judgment. 

 

7 November 2011            

Criminal Procedure Act 1981 section 341.

The Supreme Court dismissed the appeal case.

Reference: HR-2011-2061-F, case no. 2011/1679, criminal appeal against judgment. 

 

1 November 2011      

Criminal Law. Tax evasion. Accounting. Sentencing. Long time span. Value Added Tax Act section 72 nos. 1 and 3, Penal Code section 270 cf. section 271, Accounting Act section 8-5, Tax Assessment Act section 12-1.

In a case concerning serious violations of key provisions of company taxation and accounting legislation, more than four years had passed between the date when the facts of the case had been established and the charge was filed. The Supreme Court held that there had been a violation of ECHR Article 6 no. 1, which requires that a criminal prosecution shall take place within a reasonable time. The Supreme Court held that recent developments in the use of community service did not apply to the types of criminal offence for which the accused was convicted. However, there were strong considerations of general deterrence to be taken into account, see the Penal Code section 28a subsection 1 (b). The penalty was fixed at imprisonment for a term of 12 months, of which 10 months was suspended.

Reference: HR-2011-2030-A, case no. 2011/1083, criminal appeal against judgment.

 

1 November 2011            

Criminal Law. Rape and family abuse. Application of the law. Sentencing. Penal Code section 219, subsection 1 (d).

The defendant and the victim had, for about two and a half years, shared accommodation in the defendant’s bed-sit, where they slept, ate and spent leisure time together. Although the victim also had her own bed-sit where she kept her own things and washed her clothes, and although she had not contributed much financially, the Supreme Court held that it was clear that she must be deemed to be a member of the defendant’s "household" and, therefore, that section 219 subsection 1(d) of the Penal Code must apply. When sentencing for abuse pursuant to the Penal Code section 219 subsection 2, cf. subsection 1, the Supreme Court emphasized that the abuse was relatively prolonged, sometimes quite severe, and formed a pattern where the victim lived under a "regime of terror". The Supreme Court held that the sentencing level which the Court of Appeal had taken as its starting point for this offence was too low, but that that the penalty imposed for one count of rape pursuant to the Penal Code section 192 subsection 1(a) was too high. In addition, the Supreme Court passed sentence for one count of actual bodily harm and use of cocaine. Altogether, the sentence was fixed at four years imprisonment.

Reference: HR-2011-2029-A, case no. 2011/1218, criminal appeal against judgment. 

 

31 October 2011            

Criminal Law. Family violence. Penal Code section 219 subsection 1.

The case concerned an appeal against conviction for domestic violence. The acts of violence committed against the mother and her children were so closely connected that they must be deemed to constitute one criminal offence. The Supreme Court found no justification for amending the sentence of 14 months imprisonment imposed by the Court of Appeal.

Reference: HR-2011-2011-A, case no. 2011/1001, criminal appeal against judgment. 

 

31 October 2011            

Waterways. Regulation. Concession for transfer of water. Watercourse Regulation Act, sections 1, 8 and 16

The case concerned the validity of Royal Decree of 15 December 2006 for the regulation of the Jørpeland River where, among other things, a license was granted to transfer water from Brokavatnet to the Jørpeland River. Like the Court of Appeal, the Supreme Court held that the transfer was valid and had authority in the Watercourse Regulation Act. Transfer of water shall be considered and evaluated in the same manner as other watercourse regulation. The provisions in sections 5 and 6 of the Watercourse Regulation Act are supplemented by the procedural rules in the Expropriation Act and the Public Administration Act and, in this case, the landowners had been given adequate prior notice and the matter had been adequately investigated. The Supreme Court rejected the appeal.

Reference: HR-2011-2010-A, case no. 2011/571, civil appeal against judgment. 

 

26 October 2011   

Child welfare. Liability for expenses. Child Welfare Act section 8-4 subsection 2 and section 4-4 subsection 5.

The issue in the case was whether a municipality that initiated welfare measures for a young boy who had moved into the municipality could seek reimbursement from the boy's former municipality of residence. Pursuant to the Child Welfare Act section 8-1, the municipality of residence is responsible for necessary welfare measures, including voluntary placement in care pursuant to section 4-4 subsection 5. The Child Welfare Act aims to eliminate reimbursement between municipalities as far as this can be justified. Not even the systematic additional costs incurred by municipalities with institutions as a consequence of placements can justify a refund. Municipalities are responsible for the decisions they make pursuant to the Child Welfare Act and for the measures they initiate by instigating legal proceedings. It is immaterial whether the need for care which necessitates child welfare measures in the new municipality of residence was already present when the child moved away from the former municipality of residence. The Supreme Court held that the Court of Appeal had misinterpreted the law. It follows from section 9-1 cf. section 8-4 subsection 2 of the Child Welfare Act that a municipality of residence cannot bring a claim for reimbursement of costs against a former municipality of residence that previously instigated legal proceedings pursuant to section 4-4 subsection 5 of the Child Welfare Act on the grounds that no further measures have been ordered after the former measures had lapsed. The Supreme Court set aside the judgment of the Court of Appeal. The judgement was passed with dissenting votes (3-2).

Reference: HR-2011-1999-A, case no. 2011/380, civil appeal against judgment. 

 

26 October 2011   

Ground lease. Upward regulation of ground rent. Ground Lease Act section 15. Contract Act section 36. 

Ground leases entered into in the late 1960s required the lessees to grant loans to the landowner which corresponded to the maximum lawful sale price for the lot. Subsequently, the ground rent was considered to be equivalent to the interest on the loans and had not been called in. The landowner now demanded an upward regulation of the ground rent in accordance with changes in the value of money pursuant to section 15 of the Ground Lease Act. The Supreme Court recalled that although there is power to make an order on the basis of reasonableness also when applying the main rule in the Ground Lease Act section 15, cf. the Ground Lease Act section 11 and the Contract Act section 36, the concept of what is "unreasonable" must be construed strictly. Furthermore, the threshold for finding that a contractual term is unreasonable is higher when a party seeks to modify contractual terms due to subsequent events, and considerable weight must also be given to the solution prescribed in the legislation. The upwardly regulated ground rent in this case was not unreasonably high and the Supreme Court concluded that the balance between the parties was not significantly disturbed bearing in mind that the Ground Lease Act 1996 in many ways strengthened the position of the lessees. The Supreme Court rejected the appeal.

Reference: HR-2011-1998-A, case no. 2011/751, civil appeal against judgment.

 

28 October 2011            

Appointment of an expert.

The case concerned the appointment of an expert to the Supreme Court in a case concerning so-called loan-financed structured savings products, see the Disputes Act section 25-2. The preparatory judge concluded that, in the interests of the proper elaboration of the case, it would be preferable for the Court not to appoint an expert and for the parties to seek to support their respective arguments by calling expert witnesses.

Reference: HR-2011-2006-F, case no. 2011/1053, civil appeal against judgment. 

 

25 October 2011           

Criminal Law. Application of the law. Promotion of prostitution. Penal Code section 202 subsection 1 (a).

The publisher of an illustrated advertising magazine and an advertising website was acquitted in the Court of Appeal of having promoted prostitution when it had published adverts for the sale of sexual services. The Supreme Court held that although the defendants’ activity went beyond what could be considered to be pure advertising, their activities did not fall within the scope of section 202 subsection 1 (a) of the Penal Code. The appeal to the Supreme Court was rejected. The managing director of the publishing company had been convicted in the District Court of the same offence of which the other two defendants were now acquitted. It was apparent from the District Court's judgment that the managing director had played a far less prominent role than the other two. The Supreme Court held that he must also be acquitted and that a judgment to that effect must be pronounced, see the Criminal Procedure Act section 342 subsection 3, second sentence

Reference: HR-2011-1989-A, case no. 2011/959, criminal appeal against judgment. 

 

25 October 2011   

Civil Law. Procedure. Impartiality. Lay judge. Courts of Justice Act section 108. ECHR Article 6.

In a labour dispute between a teacher and a municipality, the teacher claimed that one of the expert lay judges in the hearing before the District Court was disqualified to act on the grounds of impartiality pursuant to the Courts of Justice Act section 108. The lay judge had connections to the municipality, among other things through certain offices that he held and through his business, which received grants and loans from the municipality. The Supreme Court considered first whether the Court of Appeal had power to pronounce a separate judgment on the disqualification issue, whether such judgment could be given in writing, and whether the question could be determined without the participation of the expert lay judge. The Supreme Court held that there was no error in the Court of Appeal’s procedure. As regards the question of impartiality, the Supreme Court noted that it was unfortunate that the lay judge had eaten dinner together with the chief administrative officer of the municipality and the municipality’s legal counsel on the evening of the first day of the District Court hearing. However, the facts that were alleged by the teacher to affect the expert lay judge’s impartiality were neither individually nor as a whole "special circumstances" apt to undermine confidence in the lay judge’s impartiality. The Supreme Court rejected the appeal.

Reference: HR-2011-1988-A, case no. 2010/1952, civil appeal against judgment.

 

19 October 2011           

Criminal Law. Extortion. Sentencing. Application of the law. Penal Code section 266

The defendant was acquitted in the Court of Appeal in a major drug case, but was convicted of extortion and sentenced to imprisonment for a term of one year and ten months, which was a joint sentence for this and a previous conviction. He had contacted a man and told him that his daughter had a drug debt to the Russian mafia, and that one of them could be killed if he did not pay the debt. The man paid him NOK 250,000. The Supreme Court held that there can be "coercion" within the meaning in section 266 of the Penal Code even if the victim in fact is able to resist the pressure, but finds that the consequences of resisting makes it necessary to concede. The Court of Appeal had found that the victim had handed over the money because of the pressure of the possibility that someone could be killed, and not of his own free will, and the Supreme Court held that the Court of Appeal had applied the law correctly. The Supreme Court did not find it necessary to deliberate upon the defendant’s appeal against the basis for application of a joint sentence. It was in accordance with practice pursuant to section 54 subsection 3 of the Penal Code to measure out a separate penalty for the breach of section 266.  The Supreme Court took account of the amount of money, the nature of the extortion and the defendant's many previous criminal convictions and fixed the sentence at six months’ imprisonment.

Reference: HR-2011-1958-A, case no. 2011/705, criminal appeal against judgment. 

 

19 October 2011            

Sentencing. Import of opium. Penal Code section 162 subsections 1 and 2

The defendant had received 2,934 grams of opium in a mail package via Iraq. The Supreme Court held that since there was no established sentencing level for dealing with opium, it was natural to use the sentencing level for dealing with heroin as a starting point. From a sentencing point of view, the seized opium was comparable to approximately 105 grams of heroin. The Supreme Court held that the penalty for importing drugs must generally be stricter than the penalty for selling and purchasing drugs. The defendant had been the principal in the offence and the opium was intended for resale. The Supreme Court increased the defendant’s sentence to imprisonment for a term of three years and three months.

Reference: HR-2011-1957-A, case no. 2011/924, criminal appeal against judgment.

 

18 October 2011   

Sale of real property. Non-payment. Breach of contract. Seller's repudiation. Compensation. Sale of Real Property Act section 5-4 subsection 1

The buyer of a residential property alleged that the electromagnetic radiation from a transformer under the house was stronger than he was aware of when the property was purchased. He claimed that this constituted a defect that must be remedied pursuant to the Sale of Real Property Act section 4-10. The Supreme Court held that, by failing to complete the purchase and to pay the purchase price, the buyer had acted as if he had repudiated the purchase. However, it was clear that the buyer had not expressly invoked his right to repudiate. At the most, therefore, the alleged defect could only entitle the buyer to claim repair or a price reduction and to withhold a proportionate part of the purchase price. By withholding the full purchase price except for the deposit, the buyer was clearly in fundamental breach of his payment obligation, which entitled the seller to terminate the contract. The buyer was liable for the seller’s loss when the price achieved upon a reasonable substitute sale was lower than the price in the contract between the seller and the buyer; see the Sale of Real Property Act section 5-4 subsection 1. The Supreme Court rejected the appeal.

Reference: HR-2011-1947-A, case no. 2011/524, civil appeal against judgment. 

 

18 October 2011   

Law of Damages. Objective liability for municipality. Pollution Control Act section 24a.

The case concerned a claim for compensation for damage to private property caused by the inadequate maintenance of a municipal sewer. The main question before the Supreme Court was to what extent the municipality could disclaim the objective liability for damage imposed by the Pollution Control Act section 24a by referring to the Regulations for wastewater treatment plants. A majority of the Supreme Court held that a right to disclaim or exclude liability for damage caused by inadequate maintenance would diminish the incentive to properly maintain, and thereby also the incentive to prevent damage which liability pursuant to section 24a of the Pollution Control Act is intended to give. The majority of the Supreme Court held that section 24a of the Pollution Act could not be construed so as to enable the owner of a wastewater plant to disclaim liability for damage caused by inadequate maintenance. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1946-A, case no. 2011/425, civil appeal against judgment.

 

5 October 2011           

Mandate for expert. 

The Supreme Court extended the mandate for the court-appointed expert. 

Reference: HR-2011-1882-F, case no. 2011/1135, civil appeal against judgment. 

 

30 September 2011            

Criminal procedure. Protection of journalist’s source of information. Criminal Procedure Act section 125. ECHR Article 10. 

The case concerned a journalist's right, as a witness in criminal proceedings, to withhold the identity of his source of information in a case where the defendant in the criminal case had already confessed to being the journalist's source. The majority of the Supreme Court held that section 125 of the Criminal Procedure Act does not apply if the source has come forward and verified his role. An exemption from the duty to testify in such a case would not serve to protect the source of information, but would constitute a right for the journalist to refrain from contributing to clarifying the criminal case. Also in relation to ECHR Article 10, the circumstances in which restrictions on the right to protect one’s sources are permitted must be considered in light of the misgivings attached to public intervention in the protection of sources in the particular case. When the circumstances are such that, on the evidence, verification from the journalist about the source of information would not contribute to clarifying the identity of the source, a duty to testify could hardly be objectionable. The Supreme Court held that it could be assumed that the European Court of Human Rights would not find that there had been a violation of human rights in a case where the source of information has come forward, and the witness’s duty to testify is expressly limited so that he is not required to answer questions that could reveal the identity of other possible sources. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1848-A, case no. 2011/970, criminal appeal against interlocutory order. 

 

30 September 2011   

Tax law. Value Added Tax. Value Added Tax Act 1969 section 21. 

The issue in the case was whether an oil company could claim a deduction for input VAT incurred on payments it had made for transport of its employees from their homes to helicopter bases on land. Pursuant to section 21 subsection 1 of the VAT Act 1969, a business may claim a deduction for input VAT on purchases that are "for use in the business" that has turnover which is liable to VAT. A condition for the deduction is that the VAT is relevant to the company’s operations and has a sufficiently close and natural relation to such operations. It does not cover procurement by an employer of goods and services for its employees that are of a personal nature. The Supreme Court held that procuring transport for its employees to helicopter bases was not procurement for use in the oil company’s business in a legal sense. Among other things, the Supreme Court emphasized that the procurement was not for direct use in the oil company’s operations, that the journeys took place in the employees' leisure time during which they did not perform work for the business, and that this was a cost that is typically and normally covered by the employee. The Supreme Court held that the procurement did not have a sufficient connection to the business that VAT could be deducted pursuant to section 21 of the VAT Act. The appeal to the Supreme Court was dismissed.

Reference: HR-2011-1847-A, case no. 2011/650, civil appeal against judgment. 

 

30 September 2011   

Ground rent. Determination of compensation. Ground Rent Act section 37. Article 105 of the Constitution. 

The case concerned the principles for determining the compensation - including the choice of capitalization rate – due to a landowner pursuant to the Ground Lease Act section 37 subsection 1, as this provision read prior to the statutory amendment of 19 June 2009 No. 76.  Following the plenary judgment reported in Rt-2007-1308, the loss for which the landowner shall be fully compensated pursuant to Article 105 of the Constitution is not the value of the land as a bare plot but the loss of future ground rent. The value of the land as a bare plot of land has no independent significance in this calculation. The Court of Appeal’s legal starting point was correct but its concrete application of the law was erroneous as the majority of the Court of Appeal had used the capitalization factor as a kind of tool in order to arrive, as close as possible, at what it believed was full compensation for the value of the land as a bare plot. The Supreme Court set aside the reappraisal.

Reference: HR-2011-1844-A, case no. 2011/267, civil appeal against reappraisal. 

 

29 September 2011            

Criminal Procedure Act 1981 section 54 

The appeal case was dismissed.

Reference: HR-2011-1833-F, case no. 2011/1566, criminal appeal against interlocutory order. 

 

27 September 2011           

Damages. Patient injury. Loss of breadwinner. Damages Act section section 3-4. 

The case concerned the measure of damages in a claim for loss of breadwinner in circumstances where liability for patient injury was acknowledged. The issue before the Supreme Court was whether savings set aside to be used during retirement could constitute maintenance pursuant to section 3-4 of the Damages Act. The savings were stated to be pension savings. The Supreme Court held that savings for the purpose of accumulating capital cannot be deemed to be maintenance "except where they are intended for repayment of mortgage on residential property". Nor can savings for consumption in principle constitute maintenance, but such savings may "in the circumstances" provide a basis for maintenance in the future. In this case, it was apparent that the savings would be used for consumption after the loss period. The Supreme Court held that the loss of savings could therefore not be deemed to be maintenance as this would indirectly entitle the surviving spouse to compensation for loss of breadwinner beyond the loss period. One of the Supreme Court justices had a different reason for part of the judgment. The Supreme Court dismissed the appeal.

Reference: HR-2011-1805-A, case no. 2011/361, civil appeal against judgment. 

 

26 September 2011           

Dismissal of appeal. 

The appeal case was dismissed in so far as it concerned the civil claim. 

Reference: HR-2011-1800-F, case no. 2010/1420, criminal appeal against judgment. 

 

26 September 2011           

Criminal law. Criminal procedure. Appeal in favour of defendants. Bank card skimming. 

Two Romanian men were convicted pursuant to the Penal Code section 186 of importing and storing equipment for skimming bank cards. Following the Supreme Court's decision in the case reported in Rt-2010-1217, it is clear that importing and storing skimming equipment was not penalized by the Penal Code section 186 until the provision was amended by an Amendment Act of 10 December 2010. The prosecution had appealed against the conviction in favour of the defendants. Counsel for the defendants alleged that the defendants therefore should be acquitted, rather than the judgement being set aside. The Supreme Court held that the possibility of a new criminal trial being brought in either Norway or Romania did not preclude the former judgement being set aside rather than the defendants being acquitted. This s is regulated in section 351 of the Criminal Procedure Act, which provides accused persons with appropriate legal guarantees. The Supreme Court set aside the judgments of the District Court and the Court of appeal.

Reference: HR-2011-1798-A, case no. 2011/1181, criminal appeal against judgment. 

 

26 September 2011           

Maritime law. Liability. Unseaworthiness at the beginning of the voyage. Maritime Code section 347, section 275 and section 276

The case concerned a claim for compensation from the insurers of goods after a vessel ran aground. The main question before the Supreme Court concerned the scope of the rules on liability for “nautical fault”, see the Maritime Code section 276 subsection 1 no. 1 and whether the vessel was "unseaworthy … at the beginning of the voyage", see the Maritime Code section 276 subsection 2. The Supreme Court held that when the vessel habitually sailed without adequate staffing on the bridge, the vessel must be deemed to be unseaworthy at the beginning of the voyage. The company running the vessel was vicariously liable for the vessel’s master. Among other things, the Supreme Court referred to the Maritime Code section 131, pursuant to which the master shall ensure that the vessel is seaworthy before a voyage begins and, during the voyage, do everything in his power to keep the vessel in a seaworthy condition. When the vessel was clearly understaffed and therefore habitually unseaworthy at night as a result of the way in which the master organised the crew, the vessel must be deemed to be unseaworthy at the beginning of the voyage. The Supreme Court held that there was a causal link between the master's negligence and the loss arising from the grounding, and the company was therefore liable for the insurance companies’ losses.

Reference: HR-2011-1797-A, case no. 2011/72, civil appeal against judgment. 

 

23 September 2011            

Criminal law. Drugs. Application of the law. Procedure. Intent. Grounds for judgment. Penal Code section 162 subsection 3.

A man was stopped during customs control with 2,410 grams of heroin sewn into the lining of his rucksack. At the trial before the Court of Appeal, the jury found him guilty of importing a very substantial quantity of drugs and he was subsequently sentenced to prison for eight years for importing 2 kg of heroin. The Supreme Court held that the description of the defendant's intent in the Court of Appeal’s judgment was not sufficient to enable the Supreme Court to review whether or not the conviction was based on a correct understanding of the concept of intent, and the Supreme Court therefore set aside the Court of Appeal’s ruling and the appeal proceedings, see the Criminal Procedure Act section 343 subsection 2 no. 8, cf. sections 345 and 347.

Reference: HR-2011-1783-A, case no. 2011/1145, criminal appeal against judgment. 

 

22 September 2011            

Criminal law. Sentencing. Burglary. Aggravated dealing in stolen goods. 

Four Romanian citizens were convicted of 28 aggravated thefts and a number of attempted aggravated thefts over a period of about two months, primarily by breaking into private homes, and of aggravated dealing in stolen goods, see the Penal Code sections 257, 258 and 317 subsection 4, cf. subsection 1. They had collaborated, but not to the extent that Penal Code section 60A (organized crime) applied. The claim for damages for just over half of the thefts amounted to NOK 1.6 million. A majority of the Supreme Court held that people who have their homes burgled experience it as particularly intrusive and that this must be reflected in the level of sentencing. The Court of Appeal had imposed prison sentences of between two years and ten months and four years. The Supreme Court increased the prison sentences to four years and four months for one of the defendants and four years for the other three. Three of the defendants had confessed and the Supreme Court held that the penalty discount given by the Court of Appeal was too high compared to the benefit of the confession to the investigation, see the Penal Code section 59 subsection 2. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-1773-A, case no. 2011/683, criminal appeal against judgment. 

 

22 September 2011      

Insurance. Hotel fire. Duty to disclose information. Identification. Calculation of time limit. Insurance Agreements Act section 4-2.

The case concerned an insurance settlement after a hotel fire and gave rise to questions about reduction of damages due to breach of the duty to disclose information and the calculation of time limits for reconstruction and replacement of the insured object in circumstances where the insured object is insured for its full value. The Supreme Court held that the insurance broker, who had given incorrect information about the area measurements of the hotel to the insurance company, had held a dual role because he not only represented the hotel, but also performed an extensive amount of work for the insurance company. In these circumstances, he could not be said to have acted only on behalf of the hotel and there was no basis for identification between the broker and the hotel. The hotel had not breached its obligation to correct the information provided in such a way that it would be reasonable to reduce the insurance sum either. The time limit in the insurance conditions for reconstructing the building had passed, but this was because the insurance company had contested the hotel’s claim from the start, which had made financing the reconstruction difficult. The delay was not due to circumstances on the policy holder's part. The Supreme Court held that the time limit for reconstruction had to be calculated from the date when the court ruling became enforceable.

Reference: HR-2011-1772-A, case no. 2011/353, civil appeal against judgment. 

 

21 September 2011            

Criminal law. Drugs. Intent. Grounds for judgement.

The accused was convicted in the Court of Appeal for having imported a substantial quantity of amphetamine, see the Penal Code section 162 subsection 1, cf. subsection 3. He appealed to the Supreme Court against the Court of Appeal's description of his intent. The accused had testified that he believed he had been carrying a small amount of marijuana. Counsel for the accused argued that the Court of Appeal had based its judgment on dolus eventualis, (i.e. that the accused assumed that the result was possible, but not highly probable, and decided to implement the action even though the result might occur) while counsel for the prosecution alleged that the judgement was based on dolus indirectus (i.e. that the result was not an intentional result of the action, but the accused assumed it to be highly probable, i.e. more likely than not to occur). The Supreme Court referred to the Penal Code 2005 section 22, which also reflects current law, and concluded that the Court of Appeal’s judgment left doubt about which form of intent it had relied on. It was therefore not possible to verify whether the jury's understanding of the requirement of guilt was correct. There was no record of the presiding judge’s summing up to the jury. Since the case involved a very serious drug offence, the Supreme Court set aside the Court of Appeal’s judgment and the appeal proceedings.

Reference: HR-2011-1755-A, case no. 2011/1038, criminal appeal against judgment. 

 

21 September 2011            

Criminal procedure. Procedure. Limitation of evidence. Criminal Procedure Act sections 321 and 331. 

In a case concerning corporate penalties for violations of the Pollution Control Act section 78, the Court of Appeal had granted the accused company leave to appeal against the District Court’s assessment of the evidence and application of the law, see the Criminal Procedure Act section 331 subsection 1, but had denied the prosecution’s application for appeal. In its appeal, the accused company had expressly accepted the District Court's assessment of the extent of the pollution, and the question before the Supreme Court was whether the Court of Appeal was now entitled to limit the presentation of evidence on this matter. The Supreme Court held that despite the wording of the Criminal Procedure Act section 321 subsection 5 there is in principle no power to limit the referral of an appeal against evidence to only a part of the question of guilt. However, in this case the prosecution’s application for appeal regarding the extent of the pollution had been refused. A refusal to grant leave to appeal cannot be reversed to the detriment of the accused and the accused had a legitimate and legally protected expectation that the extent of the pollution would not be tried again. In these circumstances, the Court of Appeal was entitled to limit the presentation of evidence pertaining to this matter pursuant to the Criminal Procedure Act section 331 subsection. The Supreme Court rejected the prosecuting authority's appeal.

Reference: HR-2011-1754-A, case no. 2011/736, criminal appeal against decision. 

 

20 September 2011            

Criminal Procedure Act 1981 section 434 

The Supreme Court quashed the appeal in so far as it concerned the civil claim.

Reference: HR-2011-1747-F, case no. 2011/113, criminal appeal against judgment. 

 

20 September 2011   

Access to documents. Mirror copy. Case documents. Criminal Procedure Act section 264 subsection 1 first sentence. ECHR Article 6. 

The case concerned the defendant's request for access to mirror copies taken by the police of hard drives and other electronic storage media which belonged to the co-defendants, other suspects and witnesses and which had been seized by the police. Because of the enormous amount of data that was stored in the data carriers, the police had only searched through parts of it, based on certain defined search criteria. Counsel for the defence had been given access to the documents extracted by the police on the basis of these searches. The Supreme Court held that the phrase "the documents relating to the case" in section 264 subsection 1, first sentence of the Criminal Procedure Act only covered the documents that the police had actually extracted, and not all of the documents in the mirror copies. The District Court and the Court of Appeal had misinterpreted the law and their rulings must be set aside.

Reference: HR-2011-1744-A, case no. 2011/866, criminal appeal against interlocutory order. 

 

20 September 2011            

Administration of estate. Sami custom. Reindeer Herding Act section 15 subsection 4. Administration of Estates Act section 61.

The case concerned an application by a Sami in relation to his siblings to take over as head of a reindeer husbandry unit (“Siida share”) together with responsibility for reindeer and the reindeer brand belonging to the estate of their deceased parents. The Supreme Court held that the dispute must be resolved pursuant to the provisions in section 61 subsection 2 of the Administration of Estates Act, and that the appellant did not satisfy the conditions in section 61 subsection 2 which must be satisfied in order to entitle him to have the right to take over leadership of the Siida share apportioned to him. The Supreme Court rejected the appeal.

Reference: HR-2011-1743-A, case no. 2011/51, civil appeal against judgment. 

 

19 September 2011   

Family law. Termination of cohabitation. Economic consideration.

The case concerned a claim for financial compensation following the termination of a cohabiting relationship. The main question before the Supreme Court was whether the woman had contributed to increasing her ex-partner’s wealth in such a way that the she had a claim for compensation based on general principles of enrichment and restitution. The Supreme Court held that the woman’s contribution did not exceed the amount that was necessary to cover her own maintenance. There was no basis on which to allege that there exists a general ability principle, see the Supreme Court judgment reported in HR-2011-1739-A at paragraph 30. It was clear that she had not given the man an economic advantage and, therefore, the Supreme Court held that there was no basis for a restitution claim.

Reference: HR-2011-1740-A, case no. 2011/205, civil appeal against judgment. 

 

19 September 2011   

Family law. Termination of cohabitation. Financial settlement. Compensation claim. Contract Act section 36.

The case concerned the financial settlement upon termination of a cohabiting relationship. The main question before the Supreme Court was whether the woman had a compensation claim against her ex-partner based on general principles of enrichment and restitution and, if so, whether it would be unreasonable pursuant to the Contract Act section 36 to enforce a settlement agreement that did not take this claim into account. On the basis of the Court of Appeal’s assessment of the evidence and the facts on which the Court of Appeal’s decision was based, the Supreme Court held that the woman would have had a compensation claim against her ex-partner, estimated to be about NOK 200,000. However, there was no basis on which to set aside the settlement agreement between the parties pursuant to the Contract Act section 36. The threshold for amending or setting aside such agreements is high. A slight discrepancy between the agreed settlement and the settlement that would have been made in the absence of an agreement is not sufficient to set aside the agreement. General norms of reasonableness dictate that there is no justification for applying an ability principle to cohabiting couples. On the contrary, it is natural to assume that the family's joint consumption costs should be shared equally between the cohabitants, so that an economic benefit for one cohabitant will only arise if the other cohabitant contributes more than its half.

Reference: HR-2011-1739-A, case no. 2011/93, civil appeal against judgment. 

 

13 September 2011            

Criminal law. Injunction. Penal Code section 33 subsection 3.

A man had entered a house whilst he was intoxicated and abused his 12 year old daughter and her friend. On another occasion, he had entered the house and attempted to steal alcohol. He rented accommodation approximately15 meters away and the question before the Supreme Court was whether there was an "imminent risk" that the man would do the same again so that the court had power to ban him from staying in his own home pursuant to section 33 subsection 3 of the Penal Code. The Supreme Court held that although the provision is primarily intended to protect persons in the same household, it also covers situations like the present one. However, the Court of Appeal had concluded that it had not been proven that it was highly probable, i.e. more likely than not, that the man would commit similar offences against his daughter again. A contact ban had been ordered against him pursuant to section 33 subsection 1 and he had abided by this for over a year. The Supreme Court dismissed the prosecution’s appeal.

Reference: HR-2011-1713-A, case no. 2011/933, criminal appeal against judgment. 

 

12 September 2011            

Criminal law. Marijuana. Sentencing. Rehabilitation. Penal Code section 162 subsections 1 and 2.

A 29 year old man was convicted in the Court of Appeal of storing about 15.3 kg of marijuana and sentenced to imprisonment for two years and six months, of which nine months was suspended. He had not been motivated by profit and the Supreme Court held that the Court of Appeal’s sentence was slightly high and reduced the penalty to two years and four months imprisonment. The 2 ½ years that had elapsed since the offence was committed did not justify a sentence reduction, and the Court of Appeal had given him an appropriate penalty discount for his confession, see the Penal Code section 59. The defendant now had an apartment and a steady job, but the positive developments in his personal life were not strong enough to justify imposing a community service order rather than a custodial sentence, see the Penal Code section 28a, second paragraph. However, the defendant’s personal situation did justify making nine months of the prison sentence suspended.

Reference: HR-2011-1692-A, case no. 2011/975, criminal appeal against judgment. 

 

12 September 2011            

Domestic violence. Cohabitation. Application of the law. Penal Code section 219.

A man was convicted in the Court of Appeal pursuant to the Penal Code section 219 subsection 1 (a) of violence against his partner committed both before and after the cohabiting relationship terminated. The Supreme Court referred to its ruling in the judgment reported in Rt-2011-469, where the Court had found that the provision, as it was then worded, did not apply to cohabiting couples. The reasons given in the Court of Appeal’s judgment did not provide the Court with a sufficient basis on which to determine whether there had been a violation of the Penal Code section 219 subsection 1 (d) before the cohabitation ceased, and the Supreme Court therefore set aside the conviction for violation of section 219. The defendant was convicted of a number of other crimes and sentenced to eight months imprisonment, fined NOK 10,000 and disqualified from driving for four years.

Reference: HR-2011-1691-A, case no. 2011/863, criminal appeal against judgment. 

 

12 September 2011            

Criminal law. Aggravated dealing in stolen goods. Sentencing. Penal Code section 317, subsection 4, cf. subsection 1. 

A 33 year old man with no previous convictions was acquitted in the Court of Appeal of theft but convicted of receiving stolen goods in circumstances where he had permitted goods stolen in the course of several aggravated thefts to be stored in his apartment. The Court of Appeal had found that the value of the stolen goods exceeded several hundred thousand kroner. According to the preparatory works to the Penal Code section 317 subsection 4, the sentencing court shall take account of "the role played by the receiver of stolen goods or the money launderer in the grand order of things." The five people who had committed the thefts were visitors to Norway without ties here, and the defendant had allowed two of them to stay with him and had facilitated the thefts by making his apartment available. The Court also attached aggravating weight to the fact that the goods originated from nine burglaries and that the insecurity created by such burglaries is often just as traumatic for the victims as their financial loss. The Supreme Court held that the penalty would in principle have been imprisonment for about 10-11 months. It granted a penalty discount for the defendant’s confession and fixed the sentence at nine months imprisonment.

Reference: HR-2011-1690-A, case no. 2011/939, criminal appeal against judgment. 

 

6 September 2011   

Civil procedure. Appointment of expert psychologist. Children Act section 31, cf. section 61 subsection 1 no. 4.

The case concerned appointment of an expert psychologist with a mandate in a case concerning custody and visitation rights

Reference: HR-2011-1667-F, case no. 2011/1135, civil appeal against judgment. 

 

1 September 2011   

Civil procedure. Impartiality of acting judge. Courts of Justice Act section 10 and section 108

The issue in the case was whether the Court of Appeal had been lawfully constituted in appeal proceedings where an acting judge had participated in an appeal against a judgment that was pronounced by the district court at which he was a permanent employee. Based on its language, section 10 (2) (4) of the Courts of Justice Act, which prohibits the calling of judges from the district court that has considered the matter at first instance, is not directly applicable to acting judges. However, a majority of the Supreme Court held that the policy considerations underlying section 10 (2) (4) are equally relevant when assessing whether an acting judge is disqualified pursuant to the general rule on disqualification in section 108 of the Courts of Justice Act. The Supreme Court recalled that, over time, increasing emphasis has been placed on how the independence of judges appears to the general public, and concluded that an acting judge from a district court is disqualified to sit as a judge in the Court of Appeal to review a case that was determined at first instance by the district court while he or she served as a judge there. The Supreme Court set aside the Court of Appeal’s ruling, see the Disputes Act section 29-21 (2) (b). The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1646-A, case no. 2011/648, civil appeal against judgment. 

 

1 September 2011           

Criminal Law. Human trafficking. Penal Code section 224. Application of the law.

The defendant had paid money to an agent and/or the victims’ guardians in order to photograph underage girls. He was convicted in the Court of Appeal for violation of section 204a of the Penal Code (child pornography offences) but was acquitted of contravening section 224 (exploitation for sexual purposes). The appeal before the Supreme Court concerned interpretation of the term "exploitation" in section 224 (1) of the Penal Code, including the question whether the provision only applies to the supply side of human trafficking – i.e. those who offer the victim of trafficking to the market and the people behind - or whether it also applies to people on the receiving end. The Supreme Court held that the legislative history of the provision clearly indicated that the ordinary purchaser or recipient of individual acts or services from a victim of human trafficking does not fall within the scope of the penal provision. The Court of Appeal had interpreted the law correctly on this main point and the Supreme Court rejected the appeal.

Reference: HR-2011-1645-A, case no. 2011/760, criminal appeal against judgment. 

 

1 September 2011   

Tort. Liability of the administrator of a deceased person’s estate. Compensation.

The administrator of an estate under public administration was sued by the beneficiaries for damages when a farmhouse was totally damaged by fire and the building was not insured, see the Administration of Estates Act section 91b last sentence and section 15. The Supreme Court held that the administrator should have taken out a full-value insurance policy and emphasised that due to the concession rules and limited demand for such properties the market price for the property amounted to only about 20 % of the cost of rebuilding it. However, according to prevailing insurance conditions, the estate would not in any event have been entitled to an insurance settlement based on full coverage of the rebuilding costs, but only on the market value of the property before the damage but no less than 20 % of the re-acquisition value. This formed the guideline when calculating the extent of the administrator’s liability to the beneficiaries. The claim of one of the beneficiaries was reduced by 50 % because he had failed to notify the administrator that he had cancelled the existing insurance for the building, see the Damages Act section 5-1.

Reference: HR-2011-1644-A, case no. 2011/238, civil appeal against judgment. 

 

24 August 2011           

Criminal law. Dolus eventualis. Attempted murder using a motor vehicle. Penal Code section 40 and section 42. 

The defendant was convicted of attempted murder after he had made ​​death threats against an acquaintance and chased him with a car and run him down twice. The case before the Supreme Court concerned the application of the standard of guilt “dolus eventualis” when the defendant was convicted of attempted murder committed while he was intoxicated. The Supreme Court dismissed the allegation that the Court of Appeal’s ruling was based on a simulation of dolus eventualis. The Court of Appeal had not expressed itself in hypothetical terms but had stated that the defendant actually had made ​​the conscious decision to run down the victim even though it might result in the victim being killed. The Supreme Court rejected the appeal.

Reference: HR-2011-1599-A, case no. 2011/682, criminal appeal against judgment. 

 

24 August 2011            

Criminal Law. Sentencing. Murder. Intent. Penal Code section 233 subsections 1 and 2.

The case concerned a conviction for murder and aggravated robbery after a woman was killed when she was thrown at high speed from the bonnet of a car while she was attempting to prevent the theft of the car. The main issue before the Supreme Court was whether the lower threshold for the requirement of intent to murder was exceeded. The Supreme Court held that the Court of Appeal’s directions to the jury and the reasons given by the Court of Appeal for the sentence showed that the ruling of the lower court was based on a proper understanding of the requirement of intent. The Court held that if the defendant had been sober, he would have realized that the most likely consequence of his actions would be that the woman could die, although a very clear idea about this is not a requirement for intent. The murder was the result of exceptionally reckless driving, committed against a helpless person. The defendant’s intent was in the lower range, bordering on gross negligence, and the Supreme Court found that the Court of Appeal’s sentence of 13 years imprisonment was appropriate. The Supreme Court rejected the appeal.

Reference: HR-2011-1598-A, case no. 2011/712, criminal appeal against judgment. 

 

12 July 2012           

Compulsory mental health care, Penal Code section 39 subsections 1 and 2, and section 39b. Transfer to an institution under the Correctional Services, see the Mental Health Act section 5-6. ECHR Article 5 (1) (e). Case law of the European Court of Human Rights.

The issue in the case was whether a person who was sentenced to compulsory psychiatric care under the Penal Code section 39 satisfied the conditions for transfer from compulsory psychiatric care to a prison under the Correctional Services, see the Mental Health Act section 5-6.  Following a broad discretionary assessment involving considerations of mental health care policy and the effect that a transfer would have on the person in question, the Supreme Court concluded that there were "special reasons" as required by the Mental Health Act section 5-6, even when taking into account that the power to transfer pursuant to this provision is intended to be particularly narrow. The transfer would be to Ila Prison, where there was currently no unit of the kind required by the case law of the European Court of Human Rights pursuant to ECHR Article 5 (1) (e). This would weaken the power of the courts to control whether the Convention requirements were met, but the majority of the Supreme Court concluded that since it is provided in legislation that an appropriate special unit will be established, it could safely pronounce judgement ordering a transfer to take place. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1389-A, case no. 2011/1008, criminal appeal against judgment. 

 

30 June 2011            

Tax Law. Limitation period. Limitation Act section 9 no. 1. Tax Payment Act 1952 section 49 no. 3.

The issue in the case was whether a claim for damages brought by the state against the CEO and chairman of three limited companies for failure to pay payroll withholding tax was time barred pursuant to the Limitation Act. The crucial question was whether there had been sufficient grounds for the treasurer to instigate legal proceedings more than three years before the complaint in the conciliation proceedings was filed, i.e. before the statute of limitations expired. The Supreme Court held that the limitation period did not start to run on the date of the omission that gave rise to liability for damages. In addition, the omission that gave rise to liability for damages had to have had financial consequences. The limitation period for the claim in this case did not start to run until bankruptcy proceedings were opened against the companies. The Supreme Court dismissed the appeal.

Reference: HR-2011-1322-A, case no. 2011/172, civil appeal against judgment.

 

30 June 2011            

Criminal Law. Sentencing. Obstructing the judiciary. Unlawful retaliation. Penal Code section 132a (b), cf. (2), cf. section 132 (4), first sentencing alternative.

The case concerns sentencing following conviction for having unlawfully revenged testimony given by a police officer ​​to the court. The defendant had made telephone calls and sent text messages to the victim, and the Supreme Court held that these actions were an unlawful retaliation against the victim for the role he had played in the judicial system when the defendant was convicted of illegal spirit smuggling. The actions were at the lower end of the range of crimes punishable pursuant to the Penal Code section 132a. As a general rule, the penalty for breach of the Penal Code section 132a is unconditional imprisonment. This applies even if the offence is at the lower end of what is punishable pursuant to the provision. Society has a strong interest in ensuring that persons who testify as witnesses in criminal proceedings are not subjected to unlawful acts in the form of retaliation for the testimony given. There were no mitigating circumstances to justify a conditional sentence in this case. The Supreme Court affirmed the penalty of 21 days imprisonment passed by the lower court and rejected the appeal.

Reference: HR-2011-1319-A, case no. 2011/583, criminal appeal against judgment.

 

30 June 2011            

Criminal Law. Repeal of conviction for rape. Procedural Error. Evidence. Criminal Procedure Act section 369 (2).

The issue in the case was whether a conviction for rape should be repealed due to procedural errors in the Court of Appeal. The Supreme Court held that the evidence which the jury had taken with it into its deliberations was liable to have exerted too much influence on the jury in its determination of the question of guilt. Among other things, the jury had been allowed to take with it two expert medical opinions which, to a certain extent, resembled party pleadings, and several documents that contained minutes of the victim's statement to the police about what had happened. The jury had been given a copy of two text messages sent by the victim on the same day that the rape allegedly took place and which had been submitted to the court by counsel for the prosecution, but not the other text messages that counsel for the defense had wanted the jury to have. In view of the totality of the material that the jury had taken with it into the deliberations, the Supreme Court held that there had been a procedural error and that it could not rule out that the error could have influenced the jury's decision. The Supreme Court set aside the Court of Appeal’s ruling and the appeal proceedings.

Reference: HR-2011-1318-A, case no. 2011/810, criminal appeal against judgment.

 

30 June 2011 Criminal Law. Sentencing. Attempted rape in victim’s own home. Penal Code section 192 (1) (a), cf. section 49

The case concerns sentencing for attempted rape committed shortly before the Amendment Act of 25 June 2010 to the Penal Code. The attempted rape was categorized as violent rape in that the defendant had forced his way into the victim's home against her will. The attempt was aborted as a result of the strong opposition put up by the victim. While the attempted rape lasted for only a short while, the defendant remained in the victim’s apartment after the act and for 45 minutes the victim was under the threat posed by the attempted rape and the defendant's continued presence. Besides the psychological consequences of the attempted rape, the victim suffered injury to her neck as a result of the violence used by the defendant and the Supreme Court referred to this as an aggravating factor. The preparatory works to the Amendment Act of 25 June 2010 no. 46 to the Penal Code 1902 say nothing about the sentencing level for attempt, but the Supreme Court held that the general increase in the level of punishment in rape cases must apply equally to attempted rape. The Supreme Court held that the sentence passed by the Court of Appeal was too low and amended it to a term of imprisonment of three years and three months.

Reference: HR-2011-1317-A, case no. 2011/449, criminal appeal against judgment.

 

30 June 2011            

Criminal Law. Sentencing. Attempted violent rape. Confession. Penal Code sections 192, 51 and 59 (2).

The case concerns sentencing following conviction for attempted violent rape. The attack took place at night against a woman who was on her way home. The defendant removed the victim’s trousers and underwear and attempted to penetrate her vagina while he held her down on her back. When the victim began to shout for help he struck her several times in the face with a flat hand to get her to keep quiet. The attempt to carry through the rape was aborted when a passer-by came on to the scene. The Supreme Court held that in cases of attempted rape much of the damage will be inflicted already with the attempt, except that the victim avoids the degradation of penetration into the vagina and ejaculation, and the risk of pregnancy and sexually transmitted diseases. The Supreme Court held that the starting point for sentencing for attempted rape is four years imprisonment. After the criminal act, the defendant had at first tried to hide, but after that the police had been on the scene for a while he came forward and surrendered. The defendant's unreserved confession had simplified the investigation and prosecution of the case. Especially in cases of this nature, it is generally also important for the victim that the offender acknowledges his guilt. The confession ought therefore to lead to a considerable reduction in the sentence compared to what would be the situation without a confession. The Supreme Court fixed the penalty at imprisonment for a term of two years and ten months.

Reference: HR-2011-1316-A, case no. 2011/597, criminal appeal against judgment.

 

30 June 2011            

Criminal law. Sentencing. Child abduction. Removal from care. Penal Code section 216 (1), cf. section 216 (2).

The case concerns sentencing of a man who had abducted his daughter who was in the custody of the Norwegian child welfare services and removed her from her foster parents' care. The abduction took place in connection with a weekend access visit, when the father took his daughter to her aunt in Sweden and failed to deliver her back to the foster home. The girl has since been living in Sweden, where she is placed in foster care with her aunt. The Supreme Court held that, as an overriding general rule, the penalty for abduction of children in the custody of the child welfare services must be a prison sentence. However, the preparatory works to the new Penal Code of 2005 state that in deciding whether the abduction is gross, special emphasis shall be given to the consequence the abduction has had for the child. In this case, the abduction itself had been undramatic for the child and the interests of the child were a key consideration in sentencing. It would be unfortunate for the child if the accused was to be sentenced to prison for what he had done in her best interests and in order to fulfil her wishes. The solution for the child’s care that was established in Sweden appeared to be better than the solution that had been established in Norway. The Supreme Court, under doubt, held that a suitable sentence was a fine. The fine was fixed at NOK 20,000, with a deduction of NOK 8,000 for time spent in custody on remand.

Reference: HR-2011-1311-A, case no. 2011/701, criminal appeal against judgment.

 

30 June 2011    

Tax law. Tax assessment. Tax liability in Norway. Petroleum Tax Act section 1, cf. section 2

The case concerns validity of a tax assessment and, in particular, whether a portion of the gross revenue earned by a Swiss plumbing company on projects performed on the Norwegian continental shelf should be assigned to the company’s headquarters in Switzerland and therefore fell outside the scope of its liability for tax in Norway pursuant to the Petroleum Tax Act. The Supreme Court held that the performance of work on the Norwegian continental shelf triggered tax liability to Norway pursuant to the Petroleum Tax Act. The company's head office had clearly provided a number of important functions in connection with the plumbing projects, such as marketing, contract negotiations and conclusion of contracts. The question of tax liability to Norway only related to that portion of the gross income that could be linked to work physically performed on the Norwegian continental shelf. The tax treaty between Norway and Switzerland does not cover activities on the continental shelf and the case therefore had to be resolved according to domestic Norwegian law. The Supreme Court held the language in the Petroleum Tax Act section 1, cf. section 2 suggests that the entire remuneration was taxable. This interpretation was supported by statements in the preparatory works and case law. The company had invoked the OECD Model Tax Convention, but the Supreme Court held that the Model Tax Convention did not contribute to an understanding of the Petroleum Tax Act. The Supreme Court rejected the appeal.

Reference: HR-2011-1309-A, case no. 2011/15, civil appeal against judgment.

 

29 June 2011            

Tort. Municipality's employer liability. Claim for recourse. Fire department's professional discretion. Damages Act section 2-1.

The case concerned a claim for recourse against a municipality and its insurance company. The municipal fire department had left a residential property one and a half hours after a small fire in the house had been extinguished without leaving a fireman on guard. The house later burned to the ground, and the question before the Supreme Court was whether the fire department had acted in such a manner that the municipality was liable for the damage pursuant to section 2-1 of the Damages Act. On the basis of the preparatory works to the Damages Act and case law, the Supreme Court held that the fire department must in general have a certain margin for errors of judgment. In this case, there were a number of factors to indicate that the fire department had been negligent. However, the Supreme Court concluded, under doubt, that the municipality was not liable. The deciding factor was that neither the Fire and Explosion Protection Act nor central government regulations impose a duty on the fire department to provide a fire guard after a fire is extinguished. It is therefore left to the fire manager's professional discretion to determine when it is safe to leave the fire scene. The Supreme Court held that, in these circumstances, the courts should exercise caution in overruling this discretion, even if it subsequently turns out that there has been an error of judgment. The head of the municipal fire department was an experienced fire manager. The first fire was relatively small and there was no danger to life or health. The Supreme Court held that, in these circumstances, there was no basis for imposing liability for the error of judgment. The Supreme Court found in favour of the municipality and its insurance company.

Reference: HR-2011-1321-A, case no. 2011/298, civil appeal against judgment.

 

29 June 2011

Criminal procedure. Court proceedings. Withdrawal of appeal. Criminal Procedure Act section 341, cf. section 311 (2).

The appeal concerned the procedure in the Court of Appeal after a conviction was overturned by the Supreme Court. The question before the Supreme Court was whether the prosecution could withdraw its appeal to the Court of Appeal without the defendant's consent before the new appeal proceedings were commenced, with the consequence that the defendant’s accessory cross-appeal also lapsed. The Supreme Court unanimously rejected the defendant's principal plea to set aside the District Court's judgment, because the subject matter of the appeal to the Supreme Court was the Court of Appeal’s ruling to dismiss the appeal proceedings. Section 341 of the Criminal Procedure Act must be understood to mean that the power to withdraw an appeal without the consent of the other party ended when the first appeal hearing before the Court of Appeal commenced. After that point in time, the prosecution could not withdraw its appeal against the District Court's judgment without the defendant’s consent. Even though the cross-appeal was an accessory cross-appeal, the defendant had a right to have it heard. The Supreme Court ruled that the appeals against the District Court's judgment should be brought to a hearing for the Court of Appeal.

Reference: HR-2011-1299-A, case no. 2011/476, criminal appeal against interlocutory order.

 

29 June 2011

Civil procedure. Remuneration to legal counsel. Disputes Act section 3-8.

The case concerns determination of counsel’s fees. The Supreme Court held that the fee charged by counsel exceeded what could reasonably be required. It was true that the case had given rise to a question of principle that had not previously been considered by the Supreme Court, namely whether the location of certain wind turbines infringed the landowner's property rights because it reduced his ability to utilize wind power over his own property. This basis for the claim had also been raised for the first time in the proceedings before the Supreme Court, and counsel had therefore been required to undertake a comprehensive review of the sources of law. However, even though the preparation of this part of the case had been time-consuming, the number of hours for which counsel had submitted a claim for costs was still too high. The Supreme Court also pointed out that the facts of the case were clear and mostly undisputed.

Reference: HR-2011-1297-A, case no. 2011/60, civil petition for assessment of costs.

 

29 June 2011

Employment law. Age discrimination. EU law. Working Environment Act section 13-1, cf section 13-3 (2) and section 15-13a (1).

The question before the Supreme Court was whether an insurance company’s internal retirement age of 67 violated the prohibition against age discrimination in the Working Environment Act, and whether it nevertheless was lawful pursuant to the exemption provisions in the Act. There is a long tradition in Norway for private companies to have a retirement age of 67 and the government has accepted this for socio-political reasons. The Supreme Court concluded that the insurance company’s retirement age policy was objectively and reasonably justified by a legitimate aim. The retirement age was therefore in accordance with the exemption clause in the Council Directive 2000/78/EC Article 6 no. 1, and thus also complied with the Working Environment Act section 13-3 (2). Dismissal of the employee did not violate the prohibition against discrimination in section 13-1 (1). The Supreme Court also held that the age limit was appropriate and necessary to achieve certain objectives of a socio-political nature.

Reference: HR-2011-1291-A, case no. 2011/366, civil appeal against judgment

 

28 June 2011

Criminal Law. Sentencing. Drugs. Penal Code section 162 (1) and (2).

The case concerns sentencing following conviction for the illegal importation of 5.1 kilograms of marijuana from Sweden. Importation of drugs is generally penalized stricter than, for instance, storage of drugs because of the potential for distribution into the market. The THC content of the drugs had not been analyzed and it could not be assumed that the THC level was particularly high. According to the case law, sentences for dealing with marijuana are generally less severe than sentences for dealing with hashish. The Supreme Court held that the appropriate starting point for the sentence was about two years in prison. The case was simple and straightforward, and the indictment should have been taken out sooner. However, a total case processing time of two years and one month from the offence was committed until the Court of Appeal passed judgment was not unduly long. The Supreme Court held that the Court of Appeal’s sentence of imprisonment for one year and eight months was appropriate, and rejected the appeal.

Reference: HR-2011-1287-A, case no. 2011/694, criminal appeal against judgment.

 

28 June 2011

Criminal law. Sentencing. Community service. Drugs. Long processing time. Penal Code section 162 (1) and (2), and section 28a (1).

The case concerns sentencing for a relatively short and limited dealing with 5 kilograms of hashish where the defendant acted as drug courier within Norway’s borders. The Court of Appeal imposed a one year prison sentence after having given a discount of six months on account of the defendant’s confession and the long processing time. The question before the Supreme Court was whether a community service order should be imposed. Almost five years had passed from the criminal act had been committed until the Court of Appeal delivered its judgment. The police had been investigating a major drug racket and had not informed the defendant about the suspicions against him until two years later. After the defendant was notified of this, he went abroad, and a further two years passed before he confessed to the offence. The Supreme Court held that a very long processing time may in exceptional cases justify the use of community service. In assessing the significance of the long processing time, a distinction must be made between the time before and the time after the defendant was notified of the suspicions against him. The long processing time after notice was given was due to the defendant's own circumstances and could not justify a reduction of the sentence. The Supreme Court held that it was clear that neither the processing time in isolation, nor the processing time and the confession in combination, could justify the use of community service, and rejected the appeal.

Reference:            HR-2011-1286-A, case no. 2011/558, criminal appeal against judgment.

 

28 June 2011 Immigration law. Deportation. Immigration Act (1988) section 29 (2). 

The case concerns the validity of the decision of the Immigration Appeals Board to deport a foreign national for breach of the Immigration Act, and whether the interests of the deportee’s children were given sufficient weight in the proportionality assessment, see the Immigration Act section 29 (2). Among other things, the children's mother had continued to work after her temporary work permit had expired, and she had in periods remained illegally in Norway. The Supreme Court held that in cases where the violations of immigration law are relatively minor, it is not necessarily a condition for avoiding deportation that the children will endure “exceptional disadvantages”. On the basis of an overall assessment pursuant to the Immigration Act section 29 (2), the Supreme Court held that deportation would be a disproportionate measure. The Supreme Court emphasized that the offences were not so serious than that they would justify deportation according to the new rules in force today, and referred to the interests of the two small children in continuing to grow up with their mother.

Reference: HR-2011-1280-A, case no. 2011/282, civil appeal against judgment.

 

24 June 2011

Civil procedure. Conditions for acting as assistant counsel in the Supreme Court.

In an appeal before the Supreme Court in a case concerning upward regulation of a ground rent, the respondents wished to use assistant counsel who did not have a license to litigate before the Supreme Court. The Supreme Court held that section 3-3 (1) second sentence of the Disputes Act must be construed to mean that in oral appeal proceedings before the Supreme Court any assistant counsel must also be a lawyer who is licensed to litigate before the Supreme Court.

Reference: HR-2011-1268-F, case no. 2011/751, civil appeal against judgment.

 

23 June 2011

Criminal Law. Sentencing. Community service. Cultivation of cannabis. Penal Code section 28a (1).

The case concerns sentencing for, among others, cultivation of 20 cannabis plants for the purpose of producing cannabis for personal use. The defendant was stopped by traffic police on suspicion of driving when intoxicated and, in this connection, he told the police that he cultivated cannabis plants at home. The Supreme Court held that the sentence should be fixed at imprisonment for a term of 90 days, which included a discount for the defendant's confession. Although general deterrence considerations alone might suggest that the appropriate reaction for manufacturing of drugs on this scale should be an unconditional prison sentence, the Supreme Court held that individual preventive considerations in this case justified imposing a community service order. The penalty was fixed at 87 hours community service.

Reference: HR-2011-1262-A, case no. 2011/653, criminal appeal against judgment.

 

23 June 2011

Expropriation. Compensation for acquisition of a recreational area. Application of the law. Planning and Building Act 1985 section 25 (1) no. 4. Expropriation Compensation Act section 5 (2), cf. section 5 (1).

A 700 m² property was expropriated by the municipality for recreational purposes. The question before the Supreme Court was whether the expropriation compensation should be determined in the same way as for expropriation for the purpose of public facilities. The Court of Assessment defined the area as agricultural land and fixed the compensation due to the landowner based on the farming activity that was established in the area. The Court of Appeal held that the compensation should be determined in the same way as for expropriation for the purpose of a public facility. The Supreme Court held that the compensation must be determined on the basis of the municipal zoning plan and that there was no basis for departing from this rule. Hiking trails are explicitly mentioned in the Planning and Building Act 1985 section 25 (1) no. 4 as a purpose for regulating “outdoor recreation areas” and a hiking trail is at the very core of the provision. The Supreme Court set aside the Court of Appeal’s judicial reassessment in so far as it was appealed

Reference: HR-2011-1261-A, case no. 2011/291, civil appeal against judicial assessment.

 

22 June 2011            

Competition law. Financial penalty. Abuse of dominant position. Competition Act section 11

The case concerns judicial review of the Competition Authority's decision to impose a financial penalty on Tine SA (Norway’s largest producer, distributor and exporter of dairy products) pursuant to the Competition Act section 29 for infringement of the prohibition against abuse of dominant position. The majority of the Supreme Court did not find that Tine had used improper means in competition with other suppliers. Tine’s agreement with the Rema grocery retail chain did not bind Rema contractually or otherwise in a manner that prevented Rema from having Synnøve Finden (another large dairy company) as a supplier. The increase in financial contributions payable from Tine to Rema was not extraordinary if one took account of Rema’s obligations in return, other factors that could influence the negotiation result and Tine’s contributions to other grocery retail chains. Neither Tine’s memo about the benefits of having a sole supplier, nor its agreement, at Rema’s request, to prepare a draft planogram which excluded the Synnøve Finden and Q-dairies brands and to manufacture a private label cheese for Rema were unacceptable means. The Supreme Court affirmed the District Court's ruling and set aside the Competition Authority's decision. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1251-A, case no. 2010/1947, civil appeal against judgment.

 

21 June 2011           

International private law. Jurisdiction. Financial loss. Lugano Convention 1988 Article 5 (3). Marketing Act 1972 section 1 and section 8a.

A Norwegian clothing manufacturer claimed to have suffered loss of income because a Swiss company had copied, manufactured and sold jackets developed by the Norwegian company. The question before the Supreme Court was whether the financial loss which the company claimed to have suffered was deemed to have been suffered in Norway. According to the case law of the European Court, legal proceedings for financial loss can only be filed in the country of the place where direct loss is suffered. The majority of the Supreme Court held that the loss of income that the company claimed to have sustained must be deemed to have been suffered in Switzerland or in the countries to which the jackets were sold. The fact that the economic loss ultimately ended up with the Norwegian producer in Norway could not be decisive. The Norwegian courts therefore had no jurisdiction to entertain legal proceedings for damages, and the Supreme Court rejected the appeal. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-1240-A, case no. 2010/1972, civil appeal against interlocutory order.

 

15 June 2011            

Criminal Procedure Act (1981) section 434

The appeal case was dismissed in so far as it concerns the civil claim.

Reference: HR-2011-1209-F, case no. 2010/875, criminal appeal against judgment.

 

15 June 2011            

Criminal Procedure Act section 434.

The appeal case was dismissed in so far as it concerns the civil claim.

Reference:  HR-2011-1205-U, case no. 2010/2063, criminal appeal against judgment.

 

14 June 2011            

Criminal law. Confiscation. Rental of premises for prostitution. Penal Code section 202 and section 34

The case concerns the rental of apartments used for prostitution. The landlord was acquitted in the Court of Appeal for offences penalized pursuant to the Penal Code section 202 (1) (b), but sentenced to confiscation of NOK 1,300,000, see the Penal Code section 34 (1) last sentence. Confiscation in a case like this – which can also be ordered where there is no guilt pursuant to the Penal Code section 34 - did not broaden the scope of the power to confiscate too far. Confiscation was not unreasonable in the circumstances, see the Penal Code section 34(1) second sentence. The Court of Appeal had correctly ordered confiscation of the gross amount, but the Supreme Court reduced the confiscation amount by NOK 100,000 for tax paid and by a further NOK 100,000 for an amount which the Court of Appeal had wrongly added for the increase in value of the apartment block.

Reference: HR-2011-1193-A, case no. 2011/257, criminal appeal against judgment.

 

14 June 2011            

Sentencing. Assault. Victim abandoned in a helpless state. Duty of help.

The case concerns sentencing of three men who assaulted a person and then ran after him. The victim jumped into a river to escape his pursuers and was later found drowned. The Supreme Court held that the Court of Appeal had correctly applied the Penal Code section 232 (which provides for a longer penalty in especially aggravating circumstances) when sentencing following conviction for assault, especially since the defendants had jointly carried out the assault. The most important factor when sentencing was the fact that the defendants had left their victim helpless and that he drowned as a consequence, see the Penal Code section 242 (1) and (3). The Supreme Court held that it was irrelevant when sentencing that section 242 (3), cf. section 43 of the Penal Code 1902, which provides for an increased penalty where the perpetrator could have foreseen the consequences of his criminal act, has not been reenacted in the Penal Code 2005. However, the sentence passed by the Court of Appeal was somewhat high compared to the sentence in comparable cases. The Supreme Court fixed the penalty for all three defendants to imprisonment for a term of two years and six months.

Reference: HR-2011-1192-A, case no. 2011/307, criminal appeal against judgment.

 

14 June 2011            

Criminal law. Gross breach of trust. Financing prohibition. Application of the law. Sentencing.

Two brothers who had incorporated a parent company in order to buy and develop real estate for sale were convicted of gross breach of trust for having charged invoices that concerned the parent company to a subsidiary of the parent company, see the Penal Code section 275 cf. section 276. The Supreme Court held that a wholly-owned subsidiary must be identified with its parent company, so that transactions between companies within a group are punishable as breach of trust in the same way as transactions with a legal entity outside the group. The Supreme Court also considered questions about the scope of the Limited Liability Companies Act section 19-1, cf. section 8-10 in relation to the situation where a real estate company with no creditors or employees had provided loans for acquisition of shares in the company. The financing prohibition in section 8-10 (1), cf. section 19-1 of the Limited Liability Companies Act is general and absolute. Exemptions from the prohibition can only be made through government regulations and administrative decisions. The prohibition applies in principle to both loans and collateral and must also apply where a property company with no creditors or employees provides loans to acquire shares in the company. The Supreme Court rejected the appeal.

Reference: HR-2011-1191-A, case no. 2011/151, criminal appeal against judgment.

 

9 June 2011            

Employment law. Employer's managerial prerogative. Relocation. Legal interest.

The question before the Supreme Court was whether the employer's managerial prerogative enabled a local authority to order a superintendant at a school to another similar position in another Oslo school. There was no doubt that the superintendant’s employment contract gave the local authority the right to relocate him. The changes to his employment were not greater than an employee must tolerate. There was nothing in the procedure that had been followed or in the local authority’s factual basis for its decision to suggest that the relocation was contrary to the general requirements of fairness, and the Supreme Court held that the relocation was fair. However, the Supreme Court made no order for legal costs on the grounds that the case had contributed to clarifying a matter of principle, and because of the difference in economic strength between the parties, see the Civil Procedure Act section 20-2 (3) (c). The Court of Appeal had in a separate interlocutory order rejected the employee's claim for unfair dismissal when it found that the employee had no legal interest in obtaining a judgment for this because he had only filed suit against the employer and not also against the person who had taken over his position. The Supreme Court disagreed with this. It was unreasonable to demand that a person who is dismissed from his job must also file suit against the person who takes over his job. The plaintiff was awarded legal costs for this part of the case even though the interlocutory order was quashed as a consequence of the Supreme Court’s ruling in its judgment.

Reference: HR-2011-1178-A, case no. 2011/284, civil appeal against judgment and case no. 2011/285, civil appeal against interlocutory order.

 

9 June 2011            

Criminal Procedure Act section 434.

The appeal case was dismissed in so far as it concerns the civil claim.

Reference:  HR-2011-1171-U, case no. 2009/1246, criminal appeal against judgment.

 

3 June 2011      

Disputes Act section 19-2.

The appeal case was dismissed.

Reference: HR-2011-1134-F, case no. 2011/826, civil appeal against judgment.

 

1 June 2011           

Disclosure of evidence. Protection against self-incrimination for corporations. ECHR Article 6 (1). Criminal Procedure Act section 210 and section 123

The case concerned an order made against a number of corporations to disclose evidence pursuant to the Criminal Procedure Act section 210. The main question before the Supreme Court was whether the prohibition against self-incrimination in the ECHR also applies to legal entities. After reviewing the case law of the ECHR and the European Court of Justice, the Supreme Court held that corporations are protected by the self-incrimination rule unless there is a legal basis for making an exception. There was no such legal basis in the present case. The protection against self-incrimination applied whether the corporations were registered in Norway or abroad, see ECHR Article 8 The Supreme Court found that the rule against self-incrimination in section 123 of the Criminal Procedure Act must be interpreted in the same way as ECHR Article 6 (1) so that the safeguards in the provision also apply to corporations. The Supreme Court set aside the ruling of the Court of Appeal on the grounds that it was based on an erroneous interpretation of the law and also contained several procedural errors.

Reference: HR-2011-1118-A, case no. 2011/456, criminal case, appeal against interlocutory order.

 

27 May 2011            

Property law. Wind power. Wind park at Jæren. Neighbours Act section 2.

The case concerned whether the location of windmills at a wind park at Jæren on the west coast of Norway violated neighbouring property rights because the windmills diminished the neighbour’s ability to utilize the wind power over his property, alternatively whether the location of windmills constituted nuisance. Although the location of six wind turbines near the border with the appellant’s property limited the appellant’s ability to utilize the wind power over his property, there was no direct violation of his property rights. The Supreme Court held that laws and legal principles on the utilization of water resources cannot necessarily be applied to utilization of wind power. The Supreme Court recalled that the government has expressed a political goal to build more wind farms, and that a thorough evaluation of the various prevailing concerns and interests will be conducted during the legislative process for future wind power regulations. After evaluating the disadvantages associated with noise, safety, traffic and diminished ability to utilize the wind power over the neighbouring property, the Supreme Court held that the placement of the wind turbines could not be regarded as unreasonable pursuant to the Neighbours Act section 2 (4). The Supreme Court dismissed the appeal.

Reference: HR-2011-1071-A, case no. 2011/60, civil appeal against judgment.

 

25 May 2011            

Sentencing. Juvenile murder. Penal Code section 233 (1).

The case concerned sentencing of a boy aged 17 years and 9 months who was convicted of murder whilst he was under a stimulant-induced psychosis. A majority of the Supreme Court held that there were no particularly aggravating circumstances. The Supreme Court upheld the sentence passed by the Court of Appeal of 7 years in prison, but changed the offence for which he was convicted to breach of section 233 (1) of the Penal Code. In all other respects, the appeal was dismissed.

Reference: HR-2011-1060-A, case no. 2011/358, criminal appeal against judgment.

 

24 May 2011

Tort. Damages for non-pecuniary loss. Brain damage of small child. Damages Act section 3-5 (1) (a).

The case concerned damages for non-pecuniary loss to a barely five months old boy who had suffered brain damage. The main question was whether the boy’s father could be said to have "caused" the injury when he failed to inform the hospital staff that he had dropped his son on the floor. The Supreme Court had no doubt that the level of damages for non-pecuniary loss had to be relatively high and awarded NOK 300,000 in compensation to the boy. It was not only the nature of the child’s injuries and his father's actions that warranted a high level of compensation. The level should also reflect the need to protect children against neglect and negligent treatment.

Reference: HR-2011-1048-A, case no. 2011/445, civil appeal against judgment.

 

27 May 2011            

Property law. Wind power. Wind park at Jæren. Neighbours Act section 2.

The case concerned whether the location of windmills at a wind park at Jæren on the west coast of Norway violated neighbouring property rights because the windmills diminished the neighbours’ ability to use the wind power over their own property, alternatively whether the location of windmills constituted nuisance. The Supreme Court dismissed the appeal.

Reference: HR-2011-1071-A, case no. 2011/60, civil appeal against judgment. 

 

24 May 2011            

Sentencing. Aggravated theft. Burglary. Penal Code sections 257 and 258. 

The case concerned sentencing of a Polish citizen who, during short-term stays in Norway, committed a number of serious thefts and burglaries. Together with three other Polish nationals, the defendant stole a total of 69 outboard motors, and burgled four boat houses and eight holiday homes. The offences were committed over three separate periods of time during 2009, and involved property to the value of approximately NOK 1.5 million. The Supreme Court stated that mobile criminals pose a serious social problem and justify a strict sentencing policy. Although there was no basis for conviction pursuant to the provisions on organized crime in section 60A of the Penal Code, the degree of professionalism and organization displayed by defendants in the perpetration of their crimes was an important factor in sentencing. The Supreme Court agreed with the sentence passed by the Court of Appeal of four years and two months imprisonment before deduction of a six month discount for a full confession. The Supreme Court dismissed the appeal.

Reference: HR-2011-1049-A, case no. 2011/260, criminal appeal against judgment. 

 

24 May 2011            

Tax law. Tax assessment. Deduction for loss made on the sale of shares in a US company. Tax Act section 10-13 and 9-4 (2). Tax treaty between Norway and USA of 3 December 1971 as amended. 

A Norwegian limited liability company claimed a deduction in its tax assessment for loss made on the sale of shares in a US company. The tax assessment committee held that the company was not entitled to a deduction , and this decision was upheld by the Tax Appeals Board. Like the Court of Appeal, the Supreme Court held that there were no grounds on which to set aside the Tax Appeals Board's decision. The parties to the case agreed that Article 12 (1) (c) of the tax treaty between Norway and the USA, viewed in isolation, meant that the US was entitled to tax a corresponding gain on the sale of the shares. The disagreement concerned whether there was also a condition that the US had legal authority in its domestic legislation to tax the Norwegian company. The Supreme Court held that a subsequent exchange of letters between the Norway and the USA had not resulted in any agreement that legal authority pursuant to domestic law was a condition for taxation in such a case. Consequently, Norway’s right to tax any gain did not require legal authority in domestic law, and the company therefore had no right to a deduction for losses, see the Taxation Act section 10-31 (1) and section 9-4 (2), as well as Article 12 (1) (c),  Article 22 no. 1 and Article 24 no. 8 of the Tax Treaty.

Reference: HR-2011-1047-A, case no. 2011/43, civil appeal against judgment. 

 

19 May 2011            

Criminal law. Requirement of intent. Drug offence. 

The defendant was sentenced by the Court of Appeal to 11 years in prison for importing heroin and for dealing in the proceeds of drug crime. The question before the Supreme Court was whether the Court of Appeal’s reasoning in its judgment gave reason to doubt whether the jury had applied a correct understanding of the requirement of intent - dolus eventualis. The Supreme Court stated that dolus eventualis constitutes the lowest threshold for intent, and must be distinguished from deliberate negligence. The distinction between the two highlights the importance of formulating the requirement precisely. The Supreme Court held that the description of the conditions for guilt given by the Court of Appeal in its reasons for the sentence was incorrect. Since one could not rule out that the jury had misunderstood the requirement of intent when deciding its verdict, the Court of Appeal’s ruling and the appeal proceedings had to be set aside in so far as they concerned conviction pursuant to the Penal Code section 162 (1) and (3).

Reference: HR-2011-1017-A, case no. 2011/86, criminal appeal against judgment. 

 

19 May 2011            

Sentencing. Compensation for non-pecuniary loss. Rape including intercourse. Penal Code section 192 (1) (a), cf. section 192 (2) (a). 

The case concerned sentencing for rape including sexual intercourse, and the calculation of compensation for non-pecuniary loss payable to the victim. The offence included two counts of sexual intercourse with a 17 ½ year old girl. The abuse had been painful for the victim, it appeared to have been planned and the defendant had threatened the victim with a knife. The offences took place in November 2009, five months after the Penal Code of 2005 was adopted and seven months before statutory amendments to the Penal Code of 1902 made by Act 25 June 2010 No. 46, which increased the penalties for sexual crimes, entered into force.  The Supreme Court recalled that there was to be a gradual increase in the level of sentences for sexual crimes during this interim period. The Supreme Court upheld the sentence of 4 years and 9 months imprisonment that had been imposed by the Court of Appeal and dismissed the appeal against sentence. The Supreme Court adjusted the compensation guideline for non-pecuniary loss for rape to NOK 150,000. The Supreme Court stated that this compensation guideline should only be departed from where there are special reasons, such as the victim’s age. Because the victim in this case was 17 ½ years old when the rape occurred, she was awarded NOK 175,000 in compensation.

Reference: HR-2011-1016-A, case no. 2011/415, criminal appeal against judgment. 

 

19 May 2011            

Sentencing. Rape including sexual intercourse. Penal Code section 192 (1) (a), cf. section 192 (2) (a).

The case concerned sentencing of a man who was convicted of rape which comprised consummated and unprotected intercourse, and where there were prominent elements of aggravated intimidation and detention. The offences were committed during a probation period when the defendant was serving a community service order for a previous conviction for violence, and the lower court had pronounced a joint sentence. Because the offences were committed in late July 2010, the penalty was determined on the basis of the Penal Code of 1902 following the statutory amendment of 25 June 2010 No. 46, which came into force on the same day. The Supreme Court emphasized that the purpose of the 2010 amendment was to accelerate an increase in general sentencing levels for some serious crimes, including sexual offences, pending the Penal Code 2005 coming into force. The gradual increase in sentences outlined in the judgment of the Grand Chamber of the Supreme Court in Rt-2009-1412, must take place faster than originally anticipated. For offences committed after the 2010 amendment came into force, the courts must base their sentencing practice on the higher levels that are indicated in the preparatory works. This does not change the courts' obligation to determine a proportionate punishment in each case, based on a wide range of considerations. The Supreme Court affirmed the sentence of five years imprisonment passed by the Court of Appeal and dismissed the appeal

Reference: HR-2011-1015-A, case no. 2011/354, criminal appeal against judgment.

 

13 May 2011            

Sentencing. Aggravated burglary. Aggravated fraud. Additional penalty.

The case concerned sentencing for aggravated robbery and aggravated fraud, both committed in the victims' home. The house robbery was carefully planned and carried out by two men wearing balaclavas, and involved violence and death threats. The defendant did not participate in the actual robbery, but had initiated it and helped with the planning. The fraud involved the defendant and an accomplice posing as police officers to perform a search of the victims' house. The victims were told that they were suspected of drug crimes, and that they would not get to see their children again if they did not come up with the money. The Supreme Court held that the fraud alone justified a sentence of one year and six months imprisonment, while the robbery justified a sentence of three years imprisonment. The fraud and the robbery were committed before sentences for two other convictions became enforceable. The Supreme Court held that the penalty should be reduced, mainly because there was now a basis for applying section 64 of the Penal Code, since the other two sentences were now enforceable and no longer subject to appeal. The additional sentence was fixed at imprisonment for three years and three months

Reference: HR-2011-984-A, case no. 2010/2082, criminal appeal against judgment. 

 

12 May 2011  

Criminal Law. Criminal Procedure. Appeal proceedings. Reopening of case. Procedure. Sentencing. Gross breach of trust. Penal Code section 255, cf. section 256

The case concerned an appeal against conviction for gross breach of trust after the Criminal Cases Review Commission reopened the Supreme Court Appeal Committee's unreasoned refusal to grant leave to appeal. The Supreme Court held that the Court of Appeal had not committed a procedural error when it had sentenced the defendant for gross breach of trust, despite the fact that the District Court had acquitted him. Notwithstanding, the Supreme Court set aside the Court of Appeal’s judgment and the appeal proceedings insofar as they concerned the indictment for breach of trust on the grounds that this was a serious indictment and there was no basis on which to conclude that the defendant had consented to a new trial. Nor had the Court of Appeal expressly considered whether the conditions for pronouncing a new sentence in section 345 (2) of the Criminal Procedure Act were satisfied. As regards a charge of gross embezzlement, the Supreme Court held that a sentence of two years imprisonment was appropriate. 15 years had passed since the embezzlement took place, and eight years since the bar against running a business, holding a management position or serving as a member of the board of directors of any company was made. The five year bar had therefore been served, and the Supreme Court did not renew the bar. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-973-A, case no. 2010/1899, criminal appeal against judgment.

 

12 May 2011           

Sentencing. Serious drug offence. Community service. Rehabilitation. Pregnancy. Penal Code section 28a.

The case concerned sentencing following conviction for a serious drug offence where the defendant had stored 1983 grams of amphetamine. The main question was whether the fact that the defendant was pregnant and undergoing rehabilitation treatment could justify making a community service order. The Supreme Court held that there was clear evidence that the defendant had stopped using drugs and had made ​​major changes in her life. When the rehabilitation treatment was seen in the context that this was her first conviction and that she had played a minor role in the case, the Supreme Court found - under a certain amount of doubt - that a community service order should be made. The Supreme Court remarked that the defendant’s pregnancy was not a weighty factor when assessing whether community service was an appropriate reaction. The Supreme Court fixed the sentence to 400 hours of community service.

Reference: HR-2011-972-A, case no. 2011/117, criminal appeal against judgment. 

 

12 May 2011            

Criminal Procedure. Appeal against the Court of Appeal’s refusal to grant leave to appeal. Procedure.

The issue in the case was whether the Court of Appeal’s refusal to grant leave to appeal pursuant to the Criminal Procedure Act section 321 (2) had to be set aside on the grounds of procedural error. The Supreme Court considered several allegations of error but found that there was no error in the Court of Appeal’s procedure and dismissed the appeal.

Reference: HR-2011-971-A, case no. 2011/234, criminal appeal against judgment. 

 

10 May 2011            

Contract law. Sales contract. Daily fines pursuant to the Housing Construction Act section 18, cf. section 10 (3). 

A building that was placed on the List of Buildings of Special Architectural or Historic Interest was renovated and sold as apartments. A firm of architects that was engaged as the responsible applicant in the application to the Planning and Building Services made ​​a mistake in the application, as a result of which the construction project was delayed. The purchaser of one of the apartments entered into a contract that stated that the apartment would be ready for occupation in the third quarter of 2007. This was an error that remained from a draft of the project and the developer knew already at that time that the timeframe would be exceeded. The purchaser did not complete on the apartment until late October 2008. The Supreme Court held that the developer was not bound by the completion date that was stated in the contract. Nor could the reference to the completion date be construed as a forecast which bound the developer to complete within a reasonable time after the end of 3rd quarter of 2007. However, the developer was in breach of contract because he was aware that the completion date was unrealistic already at the date when the contract was signed. The developer had to be identified with the firm of architects that had committed the error in the application to the Planning and Building Services and that had caused the delay.  The developer was obliged to pay daily fines for breach of the obligation regarding progress in the Housing Construction Act section 10 (3).

Reference: HR-2011-952-A, case no. 2010/1770, civil appeal against judgment. 

 

10 May 2011            

Contract law. Daily fines pursuant to the Housing Construction Act section 18. 

A contract for the sale of property in a new housing development provided that “The Seller aims for completion of the property during the second quarter of 2007”. In fact, completion of the apartments in question took place between January and May 2009. The purchasers claimed daily fines for the delay pursuant to section 18 of the Housing Construction Act. The Supreme Court held that the words in the contract must be construed to mean that the seller was unsure about the date for completion and that they did not contain a promise. Nor could the contract be construed as a forecast which bound the seller to complete within a reasonable time after the end of 2007. The seller’s belief that it was possible to complete before the end of 2007 was not negligent.  The Supreme Court rejected the allegation of negligence, and also rejected an alternative allegation that the seller had breached the obligation regarding progress in the Housing Construction Act section 10 (3).  

Reference: HR-2011-951-A, case no. 2010/1690, civil appeal against judgment. 

 

6 May 2011            

Criminal Law. Environmental crime. Water Resources Development. License.

The case concerned a violation of the Water Resources Act, section 63 (1) and (3). The developer of a small hydropower plant was found guilty of wilful violation of section 63 of the Water Resources Act for having exceeded the terms of the development license and failing to obtain approval of detailed development plans in breach of the licensing conditions. The Supreme Court held that the increased penalty in section 63 (3) for "significant harm to the environment" was applicable and increased the sentence for both defendants. In sentencing, the Supreme Court referred to statements of principle regarding environmental crimes in previous Supreme Court practice to the effect that environmental crime must be punished harshly. The Supreme Court also referred to Article 110B of the Constitution regarding protection of the environment and to the Penal Code section 152b

Reference: HR-2011-930-A, case no. 2010/2035, criminal appeal against judgment. 

 

6 May 2011            

Criminal Law. Community service. Breach of conditions. Alternative prison sentence.

The case concerned an application by the Correctional Services for enforcement of the alternative prison sentence for breach of the conditions of a community service order, see the Penal Code section 28b (1) (a). The Supreme Court held that the defendant’s breach of the conditions demonstrated that he lacked the propensity to carry out the community service order that had been made. The Supreme Court rejected the appeal and accepted the petition from the Correctional Services for enforcement of the alternative prison sentence.

Reference: HR-2011-929-A, case no. 2011/121, criminal appeal against judgment. 

 

6 May 2011    

Criminal Law. Drug offence. Reasons for judgment. Requirement of proof. Sentencing. Penal Code section 162 (1), (3) and (4), cf. Penal Code section 62 (1).

The case concerned the requirement of proof that must be satisfied before the role played by a defendant in a narcotics case can be taken into account as a sentencing factor, and whether the degree of guilt for such sentencing factor must be specified in the judgment. The defendant was convicted together with two accomplices for importing 8.85 kg of heroin from Sweden to Norway. In sentencing, the Court of Appeal had emphasized that the defendant was not only the courier, but had also served as assistant to the principal. The Court of Appeal’s judgment did not state the degree of guilt that was attached to the additional assistance. The Supreme Court held that the requirement of proof for a person’s role in a drug crime must be the same as for the quantity of the drug, also in circumstances where such role is taken into account as a sentencing factor. The requirement of proof was satisfied in the present case. The Supreme Court also stated that the weight to be given to the role at sentencing will depend, among other things, on the degree of guilt. The Court of Appeal’s judgment did not state what degree of fault the defendant had exhibited in his role as assistant to the principal, apart from his role as courier. This was a procedural error, but the error did not prevent the Supreme Court from reviewing the Court of Appeal’s judgment. The Supreme Court held that the penalty of 10 years and 6 months imprisonment was appropriate even if one disregarded the rest of assistance, and dismissed the appeal.

Reference: HR-2011-928-A, case no. 2011/216, criminal appeal against judgment. 

 

6 May 2011           

Insurance Law. Liability insurance. Identification. Notification requirements pursuant to the Insurance Contracts Act section 8-5 subsection 1.

The case concerned a claim by a firm of auditors for payment under a liability insurance policy, and whether the time limit for submitting the claim pursuant to the Insurance Contracts Act section 8-5 started to run when the auditor in charge of the audit, but not the firm's management, became aware of the circumstances on which the claim was based. The Supreme Court referred to general principles of contract law and to the provisions of the Auditors Act section 2-2 (2) and section 8-1, and held that the auditor in charge had to be identified with the firm itself for the purposes of the notification provisions in the Insurance Contracts Act section 8-5. The insurance claim was submitted out of time, and the insurance company had to be acquitted. The Supreme Court dismissed the appeal against the judgment of the Court of Appeal.

Reference: HR-2011-927-A, case no. 2010/1995 civil appeal against judgment.

 

6 May 2011      

Criminal Procedure. Obligation of the Court of Appeal to give reasons. Sexual offences.

The case concerned an appeal against the Court of Appeal’s conviction of the defendant for sexual offences. The main question in this case was whether the Court of Appeal's verdict satisfied the justification requirements in Article 14 (5) of the UN Covenant on Civil and Political Rights (ICCPR), as this provision has been interpreted and developed in Supreme Court practice over recent years. The Supreme Court held that there were special circumstances in the present case why reasons should be given. When passing sentence, the Court of Appeal had based its decision on a pattern of abuse that was significantly more extensive than the victim had testified about in the District Court. The Court of Appeal should have explained why it based its sentencing on a more extensive pattern of abuse, which could have been because the victim changed her testimony - but could also have other reasons. The Supreme Court held that the lack of an explanation could have influenced the result the Court of Appeal came to, and that the defendant’s right to have his conviction fully reviewed was not sufficiently protected. The Supreme Court set aside the Court of Appeal’s judgment.

Reference: HR-2011-919-A, case no. 2010/2101, criminal appeal against judgment. 

 

5 May 2011           

Employment. Dismissal of pilots. Age discrimination.

The case concerned the validity of the dismissals of ten pilots employed be SAS Norge AS. All of the pilots were over 60 and the main question before the Supreme Court was whether the dismissals were invalid on the grounds of unlawful age discrimination. The Supreme Court held that the selection of the dismissed pilots was based on fair and unbiased considerations; see the Working Environment Act section 15-7. The age-based discrimination was not illegal within the framework of the Working Environment Act section 13-3 (2), as this provision must be interpreted in light of Council Directive 2000/78/EC and the practice of the European Court of Justice. Consequently, there were no grounds for compensation for non-pecuniary loss pursuant to the Working Environment Act section 15-12 (2). No order for legal costs was made before any instance because the case had raised fundamental issues that were not previously debated in Norwegian law, see the Dispute Act section 20-2 (3).

Reference: HR-2011-910-A, case no. 2010/1676, civil appeal against judgment. 

 

4 May 2011           

Employment. Dismissal during sick leave. Compensation.

The master of a ship suffered an ankle injury and was off work on sick leave. Meanwhile, the part of the business where he worked was transferred to a new owner and the original employer no longer had similar work to offer. The medical certificate that he needed in order to work on board ships had also been revoked. The issue in the case was whether the dismissal occurred within the employment-protected period pursuant to the Seamen's Act section 14 (1) and whether the reason for the dismissal was that the master was on sick leave. The Supreme Court referred to the case law on section 64 of the Working Environment Act 1977, see the current Working Environment Act section 15-8, and held that the dismissal took place within the period of sick leave, and that the reason for the dismissal was that the master was on sick leave, not that he his health certificate had been revoked. The dismissal ought also to be declared invalid for reasons of public policy. The master was awarded damages and compensation for non-pecuniary loss in the amount of NOK 300,000, see the Seamen's Act section 20A

Reference: HR-2011-908-A, case no. 2010/2111, civil appeal against judgment. 

 

4 May 2011            

Criminal Procedure. Civil claim. Petition for supplementary judgment.

The case concerned the Court of Appeal’s handling of a civil claim that was adjudicated by the District Court in connection with a criminal case, see the Criminal Procedure Act section 3. A majority of the Supreme Court held that when it was alleged that the Court of Appeal in error had failed to deal with a civil claim, the defendant’s appeal to the Supreme Court should be heard by the Court of Appeal as a petition for a supplementary judgment, see the Criminal Procedure Act, section 48. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-898-A, case no. 2011/245, criminal appeal against judgment.

 

15 April 2011                        

Sentencing. Joint sentence. Assault. Occasioning bodily harm. 

The case concerns sentencing in circumstances where new information had been received that was relevant for determining the joint sentence to be passed for a criminal act committed during a probation period together with the remainder of the sentence in relation to which the defendant was on probation, see the Execution of Sentences Act section 45. The Court of Appeal held that the defendant had acted with intent. However, when referring to the requirement of intent the Court of Appeal had used the phrase “must have been highly probable”. This gave cause to doubt whether the Court of Appeal’s judgement was based on a correct understanding of the concept of intent. The Supreme Court set aside the Court of Appeal’s conviction for breach of the Penal Code section 229 first sentencing alternative (occasioning bodily harm), but held that the facts justified conviction for the lesser offence of assault causing injury to body or health in section 228 subsection 1 and 2, first sentencing alternative. The Supreme Court passed sentence for two counts of breach of section 228 of the Penal Code, and for the time remaining to be served pursuant to the judgment of the Jæren District Court dated 19 August 2004 and the judgment of the Supreme Court in HR-2004-2022-A. The time remaining from these two judgments was 590 days. In sentencing, the Supreme Court attached some weight to the fact that 2 ½ years had passed since the offences took place and that the defendant appeared to have sorted his life out. The Supreme Court agreed with the Court of Appeal that the majority of the sentence should be suspended and fixed the sentence to sixteen months imprisonment, of which eleven months were suspended.

Reference: HR-2011-843-A, case no. 2010/2115, criminal appeal against judgment. 

 

13 April 2011                        

Damages. Liability of the chairman of the board of directors in a commercial foundation

The case concerns a claim for damages against the chairman of a foundation on the grounds that the foundation continued to receive deposits after its finances had become very weak. The Supreme Court held that the chairman had breached his duty of care when he failed to stop the foundation receiving deposits after the Financial Supervisory Authority had issued a ruling that the deposit scheme was in violation of banking laws and must cease. The chairman had an independent responsibility to ensure that the matter was dealt with by the board of directors, see the Foundation Act section 31, subsection 1, first sentence. Even ignoring the fact that the foundation's saving scheme constituted a breach of the banking monopoly, it was clear that the financial position of the foundation was so serious that the chairman could not be free from liability for permitting the foundation to receive new deposits.

Reference: HR-2011-815-A, case no. 2010/1948, civil appeal against judgment. 

 

13 April 2011

Property law. Sea bed. 

The case concerns ownership of an area of sea bed and how far the right of ownership extends when the water is very deep close to the shore. The Supreme Court recalled that the main rule is that the owner of land down to the shoreline also owns the sea bed as far as the shore slope or - if the shore slope cannot be proven - to two meters deep at medium-low water level, see the judgment in Rt-2005-1577 paragraph 31. There was no shore slope in the waters surrounding the islands in question, but there was a distinct drop outside the shelf on which the islands lie. The appellants argued that this constituted a shore slope, and that the whole of the water area was therefore under private ownership. The Supreme Court disagreed and held that there was no adequate legal basis for establishing a non-statutory rule about ownership of the seabed when the water is very deep close to land to supplement the “shore slope and two meters deep” rule referred to above.

Reference: HR-2011-814-A, case no. 2010/2001, civil appeal against judgment. 

 

13 April 2011                       

Patient injury. Removal of tumour. Provisional rules on patient compensation section 3 (a)   

The case concerns a claim for compensation pursuant to the regulations dated 1 January 1988 on a provisional scheme for patient injury compensation for somatic hospitals and out-patient clinics. The issue in the case was whether a patient could claim compensation for pain, suffering and diarrhoea problems following an operation to remove a tumour which the doctors had erroneously thought was cancerous. The Supreme Court remarked that no error had been made during the operation, and that there was no doubt that the tumour ought to be removed even though it wasn’t cancerous. Given that the tumour ought to be removed, and that there was no proof that the side-effects would have been different if the operation had been performed at a later date, the Supreme Court concluded that neither the pain and suffering nor the diarrhoea problems could justify a claim for compensation pursuant to the rules on patient injury compensation. The Supreme Court found in favour of the state, represented by the Patient Injury Compensation Board. The judgment was passed with dissenting votes (4-1) as regards the claim for compensation related to the diarrhoea problems.

Reference: HR-2011-813-A, case no. 2010/1446, civil appeal against judgment. 

 

13 April 2011                       

Civil procedure. Right of action. Access to documents. Legal claim. 

In connection with the withdrawal of his settlement permit, a foreign national applied for access to a case document. The application was refused, and the issue before the Supreme Court was whether he could bring a legal action concerning the validity of this refusal. The District Court held that he had a right of action, whereas the Court of Appeal came to the opposite conclusion, with dissenting votes. The Supreme Court held that refusal to grant access gave rise to a “legal claim” pursuant to section 1-3 subsection 1 of the Disputes Act. The Immigration Appeal Board issued its decision in the complaint against the withdrawal of the settlement permit on 7 March 2011, and the requirement in section 1-3 subsection 2 that the claimant must have a genuine need to have the claim determined stood therefore in a different situation before the Supreme Court than before the District Court and the Court of Appeal. However, the fact that this decision was issued shortly before the Supreme Court heard the matter did not deprive the foreign national of his right of action. The Supreme Court overruled the interlocutory order of the Court of Appeal.

Reference: HR-2011-812-A, case no. 2010/2017, civil appeal against interlocutory order. 

 

13 April 2011                       

Civil procedure. International law. Choice of law. Compensation. Irma Mignon rule. 

The case concerned the choice of law in determining liability for acts committed abroad by foreign nationals and prosecuted in Norway pursuant to the rule on universal jurisdiction in the Penal Code section 12 subsection 1 no. 4(a). The question in the case was whether the victims of atrocities during the armed conflict in Bosnia-Herzegovina in 1992 could claim damages from the defendant for non-economic loss under Norwegian law when the defendant was prosecuted for his crimes in Norway. The Supreme Court remarked that when the defendant had fled to Norway he had made ​​himself unavailable for prosecution in his homeland and had thereby prevented the victims from claiming compensation within the time limits applicable under Bosnian law. It would go against the public sense of justice and contravene the norms that underlie international rules of law for the Norwegian courts to apply Bosnian law as the applicable law. The Supreme Court rejected the appeal.

Reference: HR-2011-809-A, case no. 2010/1100, civil appeal against judgment.

 

13 April 2011                       

Sentencing. International law. International criminal law. Deprivation of liberty during war. 

The case concerns sentencing for 13 crimes perpetrated in 1982 during the war in

Bosnia-Herzegovina, see the Penal Code section 223 subsections 1 and 2. The crimes were extremely serious, perpetrated against defenceless people and solely motivated by their ethnic background. The criminal acts included assault in connection with arrest and assault of persons after they were placed in a prison camp. The offences were committed over a period of approximately 4 1/2 months. Although nearly 19 years had passed since the crimes were committed, the Supreme Court held that the punishment had to be increased even beyond the plea entered by the Attorney General. The Supreme Court fixed the penalty to 8 years imprisonment.

Reference: HR-2011-808-A, case no. 2010/934, criminal appeal against judgment. 

 

1 April 2011                        

Criminal procedure. Sentencing. Application of law. Drug offences  

The case concerned a procedural error where the Court of Appeal had convicted the appellant for breach of the Penal Code section 162 subsections 1 and 2 (aggravated drug felony) notwithstanding that the jury had answered no to the question whether he was guilty of an aggravated drug felony. The Supreme Court held that there was no doubt that the Court of Appeal had committed a procedural error that must result in the Court of Appeal’s judgment being set aside. The Supreme Court passed sentence for the lesser offence (simple drug felony), see the Penal Code section 162 subsection 1. The Supreme Court held that the sentence for complicity to purchase approximately 40 grams of methamphetamine would normally be approximately five months imprisonment. However, the Supreme Court found that the appellant’s confession, which had been important in the investigation against and prosecution of the appellant’s accomplices, was a mitigating circumstance and fixed the sentence at 120 days imprisonment.

Reference: HR-2011-703-A, case no. 2011/225, criminal appeal against judgment.  

 

1 April 2011                        

Criminal law. Criminal procedure. Breach of conditions of a community service order. Penal Code section 28b subsection 1 (a).  

A man who was sentenced to 120 hours community service, alternatively 120 days in prison, had failed to keep appointments with the probation services four times. The Supreme Court recalled that, as a general rule, the sanction for breach of the terms of a community service order is that the alternative prison sentence shall be enforced. The breach of the terms of the community service order in the present case could not be considered minor, and the Supreme Court pronounced judgment for enforcement of the alternative prison sentence.

Reference: HR-2011-694-A, case no. 2010/2105, criminal appeal against judgment.  

 

1 April 2011                        

Sentencing. Gross corruption. Police officer.  

The case concerns sentencing of a police officer who was convicted of gross corruption and gross breach of duty, see the Penal Code section 276b, cf. section 276a and the Penal Code section 325 no. 1. The police officer had on several occasions unlawfully collected an inmate from prison in circumstances that were totally unrelated to the performance of his police duties and performed exclusively to serve the private interests of the prisoner. The police officer received NOK 5000 from the prisoner for the service. The Supreme Court held that the police officer’s conduct was a gross breach the public authorities’ trust and contempt of the legal system.  The Supreme Court held that the 18 month prison sentence passed by the Court of Appeal was appropriate. The Court of Appeal had ordered the police officer to pay legal costs pursuant to the Criminal Procedure Act section 436 subsection 2. Since the Court of Appeal acquitted him of an offence for which he had been convicted in the District Court, the Court of Appeal should have considered the question of costs for this offence separately.

The order for costs was therefore set aside, but the appeal against sentence was rejected. 

Reference: HR-2011-685-A, case no. 2010/1882, criminal appeal against judgment.  

 

1 April 2011                        

Criminal law. Criminal procedure. Time bar. Sexual offence.  

The Court of Appeal had found the defendant guilty of repeated counts of rape of his foster daughter in the period from December 1988 to mid 1995, and had considered this as one continuous offence. The issue before the Supreme Court was whether the limitation period, which was 15 years from the date when the offence ceased (see the Penal Code section 67 subsection 1, and section 68 subsection 1, first sentence) had been interrupted in time. The Court of Appeal had assumed that the limitation period had been interrupted when the defendant had been charged, but since the indictment had not been communicated to the defendant, this interpretation of the law was wrong; see the Penal Code section 69, second sentence. However, the Supreme Court held that limitation period had been interrupted when a search and arrest warrant was issued. It was irrelevant that it later transpired that the penal provision in the charge was wrong and that it was changed in the indictment. The essential issue was whether the charge concerned the same criminal acts as the indictment. After he had been notified that criminal proceedings could be instituted against him, the defendant could have no justified expectation that he might escape liability for a more serious crime when it subsequently transpired that there was sufficient evidence against him for this. The appeal was rejected.

Reference: HR-2011-684-A, case no. 2010/1853, criminal appeal against judgment.  

 

31 March 2011                        

Health law. Smoking. Outdoor catering. Application of law. Tobacco Injury Act section 6 (now section 12 subsection 3).  

The case concerned interpretation of the word ”premises” in section 6 subsection 2 of the Tobacco Injury Act as it was worded in 2009. The question of interpretation arose in connection with the validity of an order to provide non-smoking catering premises. A large sea-front restaurant in the city of Stavanger had established facilities for outdoor catering with glass walls and awnings which covered one-third of the area to protect guests from the wind and weather. The Supreme Court referred to the tightening up of the non-smoking laws in 2004. The preparatory works to the statutory amendment suggest that an area will not automatically fall within the scope of the smoking ban simply because it is protected by wind shelters and provisional roof structures, but that a concrete assessment of the ventilation and the air quality must be made. The air quality must be assessed independently of the wind conditions. The local authority could not order the restaurant to remove the awnings permanently, but could require the restaurant to either abstain from using them or to respect the smoking ban. The Supreme Court held that no order for costs should be made before any of the court instances because the case was of a principle nature.

Reference: HR-2011-666-A, case no. 2010/1825, civil appeal against judgment.  

 

31 March 2011                        

Criminal law. Aggravated or simple robbery. Application of law. Sentencing. Community service.  

A 40 year old man was convicted in the Court of Appeal of aggravated robbery and sentenced to prison for a term of one year. He had masked himself and had forced an employee at a petrol station to hand over  about NOK 5000 by threatening him with an unloaded, sawn-off shotgun. The Supreme Court held that the robbery bordered on aggravated robbery, but had to be considered as a simple robbery punishable pursuant to the Penal Code section 267, subsection 2, cf. section 268, subsection 1. The majority of the Supreme Court upheld the sentence of 12 months imprisonment. A minority of two justices held that the defendant should be given a community service order because he had sole custody of two children, see Article 3 of the UN Convention on the Rights of the Child together with section 28a subsection 1(b) of the Penal Code.  

Reference: HR-2011-667-A, case no. 2010/2062, criminal appeal against judgment.  

 

30 March 2011                       

Compulsory purchase. Grounds for valuation. Appraisal Procedure Act section 28.  

The case concerned valuation of a croft property (Hakloa Vestre) which was subject to compulsory purchase, and whether the reasons given by the Court of Appeal for its valuation were deficient. Section 5 susbection 2 of the Expropriation Compensation Act provides that the court shall have regard to the prices that are obtained in transactions for the sale and purchase of other comparable properties. The Supreme Court noted that the croft was a special property and very few such properties have been for sale on the open market. The Court of Appeal was therefore required to make an independent assessment. The Supreme Court found that the requirement to give reasons in section 28 of the Appraisal Procedure Act was satisfied and that the legal and factual basis on which the Court of Appeal's discretion was based was sufficiently clarified. The Supreme Court rejected the appeal.   

Reference: HR2011-673-A, case no. 2010/1771, civil appeal against judgment.  

 

31 March 2011                       

Criminal law. Application of law. Threatening behaviour towards former cohabitee. Penal Code section 219 and section 5 

The case concerns statutory interpretation of section 219 of the Penal Code, which penalises abuse of close relatives. The issue in the case was whether the provision also applies to abuse of a former cohabitee after the cohabitation has ceased. The Supreme Court held that a current cohabitee falls within the scope of section 219(d) (“a person belonging to his household”). However, a cohabitee could not be equated with a “spouse or former spouse” in section 219(a). The definition of “next-of-kin” in section 5 of the Penal Code, which equates persons who live together on a permanent basis in a marriage-like relationship with persons who are legally married, could not apply because section 219 does not use the term “next-of-kin”. Such a wide interpretation of a penal provision requires a clear statutory basis, see Article 96 of the Constitution and Article 7 of the European Convention on Human Rights.

Reference:  HR-2011-670-A, case no. 2011/158, criminal appeal against judgment.

 

17 March 2011                       

Contract. Binding agreement. Power of attorney. Contract Act section 25. 

The issue in the case was whether a binding agreement for the lease of commercial property had been contracted. The issues before the Supreme Court were whether the managing director had power to bind the company and whether an agreement had been reached notwithstanding that a written contract had not been signed.

Reference: HR-2011-581-A, case no. 2010/1866, civil appeal against judgment.

 

17 March 2011                       

Sentencing. Private enforcement. Penal Code section 222 subsection 1, second sentencing alternative, section 223 subsection 1, section 227 second sentencing alternative and section 228 subsection 1. 

The case concerns sentencing for unlawful detention, coercion, intimidation and assault committed by an adult man against a defenceless 17 year old boy in order to recover an alleged claim for damage to a car window screen. The Supreme Court held that the sentence must take account of the overall brutality of the act and found that the sentencing level for aggravated robbery could provide some guidance. Although the defendant’s purpose with the act was not to obtain for himself or another an unlawful gain, the consequence for the victim was largely the same. The main issue in this regard was the anxiety, helplessness and lack of control suffered and experienced by the victim, compounded by the violence that was actually exercised. The court must also have regard to the fact that the defendant had taken the law into his own hands. The Supreme Court found no basis on which to amend the Court of Appeal’s sentence of one year and two months imprisonment and rejected the appeal.

Reference: HR-2011-580-A, case no. 2011/79, criminal appeal against judgment. 

 

17 March 2011                       

Reappraisal. Common land. Mountain Areas Act section 2 subsection 3, section 2 subsection 2, fourth sentence. Appraisal Act section 38. 

The case concerns review of the application of law in reappraisal proceedings and the question of elapse of commons rights. The Supreme Court held that the arguments in support of a narrow construction of section 2 subsection 2, fourth sentence of the Mountain Areas Act, so that the term “an agricultural unit” refers only to land suitable for raising cattle, were not sufficiently strong. It must be left to the legislator to decide whether or not preservation of commons rights pursuant to the Mountain Areas Act is conditional upon a connection between the actual use of the land and the content of the user rights. The Supreme Court rejected the appeal. The judgment was passed with dissenting votes.

Reference: HR-2011-571-A, case no. 2010/1861 civil appeal against judgment 

 

17 March 2011                       

Civil procedure. Child welfare. Disputes Act section 36-1 and section 36-5. 

The case concerns judicial review of the country governor’s decision in a child welfare case, and whether the courts have power to review the placement of a child in foster care. The Supreme Court held that the courts have no power to review the merits of the placement of a child in foster care pursuant to the special procedure in Chapter 36 of the Disputes Act, and set aside the judgments of the District Court and the Court of Appeal in so far as they related to the choice of foster home. The application to place the children in foster care with their father was dismissed from the courts.

Reference: HR-2011-570-A, case no. 2010/1178, civil appeal against judgment.

 

17 March 2011                       

Involuntary mental care. Penal Code section 39 no. 1, cf. section 39b.

The issue in the case was whether an order for involuntary mental care should be upheld in a case where the patient had been convicted of murder of four members of his family in 1987. The Supreme Court held that the possibility of committing the patient to mental care in the future pursuant to section 3-3 of the Mental Health Act did not provide adequate protection to society, and that the best way of protecting the interests of society against the patient were to uphold the order for involuntary mental care pursuant to section 39b of the Penal Code.

Reference: HR-2011-559-A, case no. 2011/243, criminal appeal against judgment. 

 

16 March 2011                       

Insurance law. Industrial Injury Insurance. Grounds for liability.

The issue in the case was whether there were grounds for liability pursuant to section 11 subsection 1 (c) of the Industrial Injury Insurance Act in a case where a student at an officer candidate school suffered an injury to his shoulder during an exercise. The Supreme Court held that the injury did not fall within the scope of either section 11 subsection 1 (c) or section 11 subsection 1 (a) of the Industrial Injury Insurance Act, and rejected the appeal. 

Reference: HR-2011-556-A, case no. 2010/1790, civil appeal against judgment.

 

16 March 2011                       

Sentencing. Sexual assault. Foster parent. 

The case concerns sentencing for breach of section 199 subsection 1 and section 193 subsection 1 of the Penal Code. The defendant had had sexual intercourse with a foster child and had misused the dependency that had been established by continuing the sexual abuse after the foster relationship was terminated. The Supreme Court held that the sentence for an offence of this kind would normally be three years imprisonment. However, regard must be had to the fact that the defendant had confessed to the offence immediately after it was reported to the police. The Supreme Court concurred with the Court of Appeal that this was important from both an evidential and a procedural point of view. Not least, the confession had been important for the victim because it meant that her statement to the police could be relied on. The Supreme Court concurred with the Court of Appeal that these circumstances justified a reduction of one-third of the normal three year sentence. 

Reference: HR-2011-553-A, case no. 2010/1907, criminal appeal against judgment. 

 

10 March 2011                       

Parole. Norwegian Constitution Article 97. ECHR Article 7. Prison Act section 35 subsection 1, second sentence. Implementation of Sentences Act section 42 subsection 1. 

The case concerns the validity of a decision to refuse parole. The question before the Supreme Court was whether the refusal constituted a violation of Article 97 of the Norwegian Constitution and/or Article 7 of the European Convention on Human Rights because it was made pursuant to parole rules that were stricter than the rules that applied at the time the criminal act was perpetrated and at the date of conviction. The Supreme Court held that the defendant had no justified expectation, either at the date of the criminal act or at the date of conviction, of release on parole after 12 years in prison that was protected against subsequent changes in court practice or legislation. The public administration was entitled to change the rules and make them more stringent with effect for persons already serving sentences. The defendant had no immunity against legislation which introduces stricter rules either. Abolition of legislation which provided for parole after 12 years imprisonment was not a breach of the prohibition against retroactive legislation and the requirement of predictability in Article 97 of the Constitution and ECHR Article 7. ECHR Article 7 does not implicitly impose on countries that have a system of parole an obligation to have clearly defined rules for when parole shall be granted. The Supreme Court rejected the appellant’s direct appeal against the judgment of the District Court.

Reference: HR-2011-516-A, case no. 2011/231, civil appeal against judgment. 

 

10 March 2011                       

Tax assessment law. Deadline for adjustment of tax assessment. Tax Assessment Act section 9-6 no. 1 and no. 2. 

The case concerns the deadline for adjustment of a tax assessment for 2002, in particular whether the general ten year deadline in  section 9-6 no. 1 of the Tax Assessment Act, or the three year deadline in section 9-6 no. 2 of the same Act, was applicable. The Supreme Court held that there was no factual error in legal terms and that the three year deadline in section 9-6 no. 2 of the Tax Assessment Act applies. Following a concrete assessment of all of the circumstances of the case, the Supreme Court held that the decision of the tax authority constituted a decision on admissibility and not a decision on the merits of the case. The Supreme Court found in favour of the State, represented by the Norwegian Tax Administration.

Reference: HR-2011-512-A, case no. 2010/1478, civil appeal against judgment.

 

4 March 2011                        

License. Agricultural property. Residence obligation. Allodial Rights Act prior to a statutory amendment dated 1 July 2009 section 1 and section 27a. Concession Act section 9. 

The case concerns the validity of an administrative decision of the County Agricultural Board in the County of Sogn and Fjordane, which rejected an application for a license to purchase an agricultural property where the license obligation had been imposed due to a breach of a statutory residence obligation. The main reason for the rejection was that the transferee did not intend to take up residence at the property. The County Board had found that the property must be deemed to be useable for agricultural purposes pursuant to the now-abolished conditions in section 1 of the Allodial Rights Act, although the case was a borderline case. A majority of the Supreme Court held that the decision of the County Agricultural Board must be repealed because the County Board had not exercised its discretion in accordance with the criteria specified in the (former) Allodial Rights Act section 27a, subsection 2, but in accordance with the general licensing criteria in section 9 subsection 1 of the Concession Act. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-476-A, case no. 2010/1716, civil appeal against judgment.

 

3 March 2011  Criminal procedure. Seizure. Legal counsel’s duty of confidentiality. Criminal Procedure Act sections 203, 204 and 205. 

The case concerns the seizure of data-stored information in the course of an investigation against an attorney who was suspected of financial crime. The main issue before the Supreme Court was interpretation of the Criminal Procedure Act section 204 subsection 2, first sentence, which contains an exception to the prohibition against seizure of such information in circumstances where the lawyer is suspected of having collaborated with his client about the offence. The Supreme Court held that there were no grounds for alleging that the scope of the exception in section 204 subsection 2 should differ depending on the time when the suspicion arose. Nor was there any legal basis for imposing an additional requirement that the information must have a “direct” impact on the offence, see the Criminal Procedure Act section 203. The seizure did not violate ECHR Article 8 or Article 6. The appellate court's ruling was based on a misinterpretation of the law and was set aside.

Reference: HR-2011-468-A, case no. 2010/1637, criminal appeal against interlocutory order.

 

2 March 2011                       

Civil procedure. Admissibility of evidence. Disputes Act section 30-7. 

The case concerns the admissibility of evidence in a civil case before a chamber of the Supreme Court. The Supreme Court allowed the appellant to submit his tax return in evidence shortly before the appeal hearing on the grounds that submission would not change the nature or unnecessarily expand the scope of the case. The respondent would presumably be able to deal with the information contained in the tax return at short notice.

Reference: HR-2011-452-A, case no. 2010/1478, civil appeal against judgment. 

 

17 February 2011                       

Compensation law. Compensation for non-economic loss. Sexual abuse of children. Damages Act section 3-5 subsection 1(b) cf. section 3-3. 

A 39-year-old man was sentenced in the Court of Appeal to 6 years imprisonment for sexual abuse of his stepdaughter and her friends. The case before the Supreme Court concerned the measure of compensation to be paid to the girls. The Supreme Court held that the compensation award made by the Court of Appeal was probably higher than what was normal in previous case law, but that the level of compensation will always be subject to development, not least as a result of increased knowledge about the harmful effects of sexual abuse. The Supreme Court rejected the appeal and upheld the Court of Appeal’s order of compensation in amounts of between NOK 50,000 and NOK 180,000.

Reference: HR-2011-384-A, case no. 2010/1911, civil appeal against judgment. 

 

17 February 2011                       

Criminal law. Gross financial fraud. Sentencing. Confiscation. Penal Code section 276, cf. section 275. Limited Liability Companies Act section 19-1 (1), cf. section 3-6, cf. section 8-1, cf. section 8-7 (1). 

The defendant was convicted of two counts of gross financial fraud, three violations of the Limited Liability Companies Act, and breaches of the Tax Assessment Act and the Accounting Act. The case before the Supreme Court concerned section 275 of the Penal Code on breach of trust and the provisions of the Limited Liability Companies Act on distribution and credit to shareholders, the application of section 34 of the Penal Code relating to confiscation, and sentencing. The Supreme Court held that it was not a condition for conviction for breach of trust that the perpetrator had committed a breach of other legislation. However, when the act did constitute such a breach, the perpetrator could be convicted of the offence. The Supreme Court rejected the allegation that a connection should be made between the political-legal rationale for anti-avoidance and how the amount to be confiscated should be calculated. The anti-avoidance principle was based on a desire to streamline confiscation practice. The Supreme Court rejected the allegation that when confiscation is based on an anti-avoidance principle, one must apply a similar kind of anti-avoidance perspective from the victim’s point of view when calculating the amount to be confiscated. The Supreme Court set aside the conviction in so far as it concerned violation of Penal Code section 276 cf. section 275. The sentence was fixed at a term of imprisonment of three years and six months, of which two years and six months were suspended, and confiscation of NOK 30 million.

Reference: HR-2011-383-A, case no. 2010/1071, criminal appeal against judgment.

 

16 February 2011                       

Title and right of user. Easement. Easement Act section 17 subsection 2. 

The case concerned compensation for non-economic loss for breach of an easement. The Supreme Court stated that the developer, by proceeding in the manner which he had done, had managed to build what he wanted in violation of the easement. The Supreme Court stated that in order that compensation should have the desired deterrent effect, the developer would have to sacrifice some of the benefits of the project. In determining the measure of damages, it was pertinent that the appellant was clearly the neighbour that was most affected by the breach. The Supreme Court held that the appropriate compensation should be fixed at NOK 1.5 million.

Reference: HR-2011-369-A, case no. 2010/1436, civil appeal against judgment. 

 

16 February 2011                       

Tax law. VAT. Value Added Tax Act section 21. 

The case concerned restitution of deducted input VAT. The question was whether a company that bought a stock that was encumbered by a mortgage could claim a deduction for input VAT when it was clear that the output tax would not be paid because the seller was bankrupt and the full purchase price would be paid to the mortgagee to repay the debt. The Supreme Court stated that the rule in section 21 of the Value Added Tax Act is an expression of a reciprocity principle, whereby the output VAT and the input VAT correspond and neutralize each other. These provisions aim to be competition-neutral and to prevent tax-related differentiation between businesses. In the Supreme Court’s view, an obligation to pay duty could also be established on the basis of the Value Added Tax Act if this is necessary in order to avoid disloyal exploitation of the rules. A majority of the Supreme Court rejected the appeal, and upheld the tax authorities’ restitution of the deducted VAT. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-363-A, case no. 2010/1709, civil appeal against judgment. 

 

16 February 2011                       

Criminal law. Sentencing. Penal Code section 195 subsection 2 (c), section 192 subsection 1 (a) and section 195 subsection 1, first sentencing alternative. 

The case concerned sentencing for repeated instances of sexual intercourse with two underage girls. A 60-year-old man assaulted his partner's granddaughters when the girls stayed with him and their grandmother at weekends and during holidays. In view of recent court practice, and in light of the stricter penalties that had gradually been imposed in recent years, the Supreme Court held that there was no reason to reduce the Court of Appeal’s sentence of three years and six months imprisonment. The Supreme Court dismissed the appeal.

Reference: HR-2011-370-A, case no. 2010/1883, criminal appeal against judgment.

 

15 February 2011                       

Criminal law. Sentencing. Community service. Aggravated robbery and deprivation of liberty. 

The case concerned sentencing for aggravated robbery and deprivation of liberty where the defendant was 17 years and 10 months old at the time when the offences were committed. The Supreme Court referred to its judgment in Rt-2010-1313, and concluded that the conditions for making a community service order were present in this case. The defendant had no previous convictions, and almost two years had passed since the criminal act was committed, during which time he had not committed any new offences. He attended school and also had a permanent part-time job. The Supreme Court held that the disruption in his personal life situation would be severe if he had to serve a prison sentence, and that the interests of individual deterrence would best be met by making a community service order. The Supreme Court changed the sentence of the Court of Appeal and ordered the defendant to serve 419 hours of community service within an 18 month completion period.

Reference: HR-2011-356-A, case no. 2010/1746, criminal appeal against judgment. 

 

15 February 2011                       

Criminal law. Sentencing. Insider trading. Aiding and abetting insider trading. Securities Trading Act (1997) section 2-1 subsection 1, cf. section 14-3 subsection 1 (prior to a statutory amendment dated 1 September 2005). 

The case concerned sentencing of three different defendants and their handling of insider information in the autumn of 2005, related to three different companies. At the date of the Supreme Court's ruling, five years and three months had passed since the criminal acts were discovered. A lot of this time was due to the fact that the Court of Appeal's referral of 22 October 2007 and its sentencing judgment of 9 June 2008 had been revoked by the Supreme Court on 4 March 2009 on the grounds of breach of the International Covenant on Civil and Political Rights. The defendants could not be blamed for this delay. The Supreme Court converted the unconditional sentences for defendant no. 2 and defendant no. 3 to an entirely conditional sentence.  As regards defendant no. 1, the Supreme Court held that the unconditional part of the sentence was deemed to have been served by the time spent in custody on remand and pending sentence.

Reference: HR-2011-355-A, case no. 2010/1479, criminal appeal against judgment. 

 

10 February 2011                       

Company law. Procedural time limit. Demerger. Three-cornered structure. 

The issue in the case was whether the procedural time limit for challenging the validity of a limited liability company’s decision to demerge in section 14-10, cf. section 13-19 of the Limited Liability Companies Act, also applies to proceedings challenging the validity of a decision to increase the share capital and to issue shares as consideration in a three-cornered demerger, in which case the time limit will expire when the demerger is registered in the Register of Business Enterprises. The Supreme Court held that the procedural time limit applies. The lawsuit was filed after the demerger was registered in the Register of Business Enterprises and the legal action must therefore be dismissed.

Reference: HR-2011-313-A, case no. 2010/1564, civil appeal against interlocutory judgment. 

 

9 February 2011                       

Criminal law. Application of law. Sentencing. Rape. Distinction between assault and occasioning bodily harm. 

The defendant was convicted of rape, occasioning bodily harm and breach of the Firearms Act. The appeal to the Supreme Court concerned the distinction between bodily harm and assault, the Court of Appeal proceedings in connection with adjudication of the bodily harm, and sentencing. The Supreme Court held that the Court of Appeal’s application of the Penal Code section 229, first sentencing alternative was incorrect. The victim had sustained injuries in the form of multiple bruises but, on the basis of the size and location of the wounds, the Supreme Court held that these could not be regarded as bodily harm. The report of the Court of Appeal proceedings provided a satisfactory basis on which to convict for assault, and the Supreme Court therefore changed the conviction for violation of Penal Code section 229, first sentencing alternative (bodily harm) to conviction for violation of section 228, subsection 1 (assault). The Supreme Court fixed the punishment for rape, assault and breach of the Firearms Act at two years and ten months imprisonment.

Reference: HR-2011-296-A, case no. 2010/1742, criminal appeal against judgment

 

4 February 2011                       

Release from joint ownership. Co-Ownership Act section 13.

The issue in the case was whether a petition for release pursuant to section 13 of the Co-Ownership Act could be invoked against the transferee of a share of the joint property where the petition was based on the transferor’s breach before the transfer took place. Four siblings owned a property in common with one quarter each. After several years quarreling about the use of the property, three of the siblings wanted to take over the fourth sibling’s share and sent a letter to his lawyer giving notice of this. Immediately after, the fourth sibling transferred the property to his son. A majority of the Supreme Court held that the statutory conditions for release of the son were not met and rejected the appeal. The Co-Ownership Act section 13 only applies to the ”abuser”, and the purpose of the provision is to give the other co-owners the opportunity to get rid of the troublesome co-owner. Although the claimants in this case could not invoke the right to pre-emption because the transfer was to a related party, see section 11 subsection 1, second sentence of the Co-Ownership Act, there was no basis on which to adopt a wide interpretation of section 13 subsection 1. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-271-A, case no. 2010/1441, civil appeal against judgment.

 

1 February 2011                        

Estate agent’s liability for compensation. Duty to provide information. Sale of Real Property Act section 4-14 subsection 1.

The issue in the case was whether an estate agent could be liable in damages for a purchaser’s claim against the seller following termination for fundamental breach of a contract for the purchase of an apartment in a housing cooperative. The Supreme Court held that there was no legal basis for imposing a subsidiary joint liability on the estate agent for the seller’s failure to perform the restitution settlement. The Supreme Court held that an estate agent is liable in damages for his own negligence, and even though the estate agent could be strongly reproached for the situation that had arisen through his breach of duty to provide information, he could not be held liable for the resale of the apartment. The Supreme Court rejected the appeal.

Reference: HR-2011-235-A, case no. 2010/1069, civil appeal against judgment.

 

28 January 2011                        

Regulation of ground lease. Ground Lease Act section 15 subsection 2.

The case concerned regulation of a ground rent in a lease agreement that fell within the scope of the transitional provisions in section 15 subsection 2 of the Ground Lease Act. More specifically, the question was whether the parties could be deemed to have agreed on a regulation of the ground rent through their discussions and correspondence in 2005, so that they had exhausted their mutual right to regulate the ground lease on the basis of the value of the land and the rate of interest as provided for in the transitional provision. The Supreme Court concurred with the District Court and the minority of the Court of Appeal that no rent regulation had taken place in 2005. The parties were therefore entitled to demand that the rent regulation effective from 1 January 2009 should be based on the provisions of clause 8.1 of the lease agreement, and section 15 subsection 2 no. 2 of the Ground Lease Act. The Supreme Court upheld the judgment of the District Court.

Reference: HR-2011-217-A, case no. 2010/1586, civil appeal against judgment.

 

27 January 2011                       

Revocation of taxi permit. Occupational Transport Act section 29 cf. the Occupational Transport Regulations sections 16, 18 and 45.

The case concerned the validity of an administrative decision to revoke a taxi permit and to impose a period of quarantine because the permit holder had held another main occupation in breach of section 45 of the Occupational Transport Regulations section 45. The Supreme Court held that the decision to revoke the taxi permit was sufficiently reasoned. The case was not of a fundamentally encroaching nature, so that the requirement to give reasons was not strict. In any event, it was clear from the decision that the administrative authority had considered the relevant issues in the case. A number of other objections concerning the validity of the decision were also rejected. There was no implied condition in section 29 of the Occupational Transport Act that the breach must be fundamental. The decision was not wholly unreasonable, there was no unfair discrimination and there was no proof that the facts on which the decision was based were wrong. The Supreme Court upheld the judgment of the District Court, in which the decision of the administrative authority was affirmed.

Reference: HR-2011-205-A, case no. 2010/977, civil appeal against judgment.

 

26 January 2011                        

Compensation. Natural disaster. Application of law. Flood barrier. Natural Damage Insurance Act section 10 subsections 1 and 3.

In a case concerning the valuation of loss for natural damage, the District Court had limited the compensation to the loss of user of the damaged area and had not take into account the value of the flood barrier that was also destroyed. The issue in the case was whether this valuation was based on an incorrect application of the law. The Supreme Court rejected the appeal and agreed that compensation pursuant to section 10 subsection 1 of the Natural Damage Insurance Act was subject to limitation based on proportionality. The District Court had not misapplied the law when it limited the compensation to the loss of user of the damaged area and had not awarded compensation for the flood barrier that was also destroyed, see section 10 subsection 3. Nor had the District Court misapplied the law when it had disregarded the reduction in the sale value of the property as a consequence of the destroyed flood barrier, see section 5 subsection 2 of the Regulation on valuation of and compensation for natural damage.

Reference: HR-2011-184-A, case no. 2010/1416, civil appeal against judgment.

 

26 January 2011                        

Criminal law. Assault. Sentencing. Compensation for non-economic loss. Penal Code section 229, third sentencing alternative, cf. section 232.

The defendant and a friend had fenced with knives while under the influence of alcohol, and the friend suffered an injury to his hand. After an argument, the defendant inflicted several stab wounds to the injured friend, including a wound to his neck, which could have been fatal if he had not received immediate medical attention. The Court of Appeal sentenced the defendant to two years imprisonment, but the Supreme Court increased the sentence to two years and three months imprisonment. The Court of Appeal had also ruled that the sentence was deemed to have been served because the defendant had been detained in custody on remand for 462 days. The Supreme Court held that this was a misapplication of section 60 of the Penal Code. The difference between the number of days in custody on remand and the sentence that was imposed was too large, and the court did not have power to take account of the possibility of parole when determining whether a sentence shall be deemed to have been served on account of detention in custody on remand. The Supreme Court also increased the compensation order from NOK 50,000 to NOK 80,000.

Reference: HR-2011-183-A, case no. 2010/1443, criminal appeal against judgment.

 

26 January 2011                        

Criminal procedure. Judicial examination of children. Right of defence.

Three children in a domestic violence case had been judicially examined without counsel for the defendant being given the opportunity to confer with the accused before the judicial examination took place. The convictions in both the District Court and the Court of Appeal were largely based on the judicial examinations. Counsel for the defendant had not petitioned for re-examination of the children, and the question before the Supreme Court was whether the defendant had thereby waived his right of defence, and whether it was in law possible to do so. The Supreme Court held that it would be wrong to suggest that the right of defence at the judicial examination of children is established only by the European Convention of Human Rights and the jurisprudence of the European Court of Human Rights, and that it is established by an interaction between Norwegian law and international human rights. Moreover, the right of defence is a very important right both in the European Convention on Human Rights and in Norwegian law, see the right to a “fair trial” in Article 6 no. 1 of the Convention. The Supreme Court held that the procedural error could have affected the outcome, and quashed the judgment and the appeal proceedings before the Court of Appeal, see section 343 subsection 1 of the Criminal Procedure Act. The Supreme Court held that it was not necessary to quash the judgment of the District Court.

Reference: HR-2011-182-A, case no. 2010/1792), criminal appeal against judgment.

 

24 January 2011                        

Employment law. Dismissal during probationary period. Employment Act section 15-6, section 15-12.

A local authority social worker was dismissed during his probationary period on the grounds that he was remanded in custody for four weeks and the offences with which he was charged would have been incompatible with his job as a social worker. In addition, he had been absent for 4 ½ hours because he had overslept. He was subsequently acquitted in criminal proceedings. The Court of Appeal found that the dismissal was unfair and the Supreme Court dismissed the local authority’s appeal. Although the employee had been absent during his probationary period for four weeks because of the period in custody, and this limited the basis on which the local authority could assess his suitability for the job, there were no grounds for dismissal. The offence for which he had been charged could not constitute grounds for dismissal, see the presumption of innocence in ECHR Article 6(2). The Supreme Court reduced the award of compensation for non-economic loss to NOK 50,000.

Reference: HR-2011-165-A, case no. 2010/1246, civil appeal against judgment.

 

24 January 2011                       

Construction law. Additional remuneration. General principles of good faith. Norwegian Standard Contract NS 8401. 

Three firms of architects were awarded a design contract for the rehabilitation of a school following a tender process. The contract was a lump sum contract. The architects claimed additional remuneration for variations to the design work. The issue before the Supreme Court was whether the architects’ claim was submitted too late and whether the claim for additional remuneration was contrary to general principles of good faith between contracting parties. A majority of the Supreme Court held that the architects had not acted in breach of general principles of good faith when their claim had been extended to cover work that had in fact been performed. The Supreme Court dimissed the appeal. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-160-A, case no. 2010/1119, civil appeal against judgment.

 

24 January 2011                       

Property tax. Asset value. Town Tax Act section 5. 

The issue in the case whether, for the purposes of property tax assessment, property and buildings should be valued according to their asset value or according to their sale value where a relevant sale had taken place. The Court of Appeal had set aside the property tax assessment of a mine and appurtenant buildings on the grounds that it was based on an incorrect interpretation of the law. The decision of the Court of Appeal was passed with dissenting votes. The Supreme Court held that the valuation for property tax purposes must be determined on the basis of the asset value even in circumstances where an actual sale sum was available. This interpretation followed from the wording of the Town Tax Act section 5 and was reflected in the preparatory works to that Act and the jurisprudence of the Supreme Court. The Supreme Court held that the decision of the Property Tax Appeal Board in the Municipality of South Varanger was lawful.

Reference: HR-2011-157-A, case no. 2010/1051, civil appeal against judgment.

 

24 January 2011                       

Sentencing. Negligently having caused serious personal injury by the use of a motor vehicle. 

A motorist and a motorcyclist collided when the motorist pulled out from a side road onto a priority road. The motorcyclist was injured and the driver of the motor car was convicted of negligent breach of sections 3 and 5 of the Road Traffic Act and section 237 of the Penal Code and sentenced to 18 days imprisonment. The issue before the Supreme Court was  whether the sentence should be suspended. The Supreme Court held that the motorist’s negligence was not the result of a momentary lack of attention or that she had allocated her attention wrongly. Her car was stationary before she pulled out and there had been time for her to ensure that there was no oncoming traffic. There were strong general preventative considerations and a majority of the Supreme Court voted to uphold the unconditional sentence of 18 days imprisonment. The Supreme Court dismissed the appeal with dissenting votes (3-2). 

Reference: HR-2011-164-A, case no. 2010/1659, criminal appeal against judgment.

 

24 January 2011                       

Sentencing. Threats towards a police officer. Penal Code section § 227, first sentencing alternative. 

The case concerned sentencing for threats made against a police officer in his home. The defendant and her husband had visited the home of a police officer and the defendant had shouted to the police officer that “you will die tonight”. The reason for the event was that Child Welfare Service had made an emergency decision earlier that day to place the couple's daughter in care for a period of five years. Due to the mitigating circumstances in the case, a majority of the Supreme Court voted to reduce the sentence to 21 days imprisonment. The Supreme Court attached particular weight to the fact that the mother was distressed by the emergency decision of the Child Welfare Service and that she had been in contact with the police ten minutes after the incident and regretted what she had done. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-156-A, case no. 2010/1717, criminal appeal against judgment.

 

14 January 2011                       

Criminal law. Domestic violence. Application of law. Penal Code section 219 subsection 1.

The issue in the case was whether a father who had physically abused his son should be convicted pursuant to section 219 subsection 1 or section 219 subsection 2 of the Penal Code. The Court of Appeal had found it proven that the father had physically abused his son, who was a minor, on four occasions. One of the episodes amounted to grievous abuse. However, the Court of Appeal did not find it proven that the son had lived under a “regime of terror” - the acts of violence were viewed as individual episodes of physical abuse. The Supreme Court held that the focal area of application of section 219 of the Penal Code is cases of persistent and repeated abuse, but that the scope of the provision also extends to individual episodes provided they are sufficiently serious. Subsection 2 is applicable to individual episodes primarily where the abuse has led to death or serious injury. There was therefore no basis for applying section 219 second paragraph in the present case, and the Supreme Court rejected the appeal.

Reference: HR-2011-94-A, case no. 2010/1552, criminal appeal against judgment. 

 

10 March 2011           

Parole. Norwegian Constitution Article 97. ECHR Article 7. Prison Act section 35 subsection 1, second sentence. Implementation of Sentences Act section 42 subsection 1. 

The case concerns the validity of a decision to refuse parole. The question before the Supreme Court was whether the refusal constituted a violation of Article 97 of the Norwegian Constitution and/or Article 7 of the European Convention on Human Rights because it was made pursuant to parole rules that were stricter than the rules that applied at the time the criminal act was perpetrated and at the date of conviction. The Supreme Court held that the defendant had no justified expectation, either at the date of the criminal act or at the date of conviction, of release on parole after 12 years in prison that was protected against subsequent changes in court practice or legislation. The public administration was entitled to change the rules and make them more stringent with effect for persons already serving sentences. The defendant had no immunity against legislation which introduces stricter rules either. Abolition of legislation which provided for parole after 12 years imprisonment was not a breach of the prohibition against retroactive legislation and the requirement of predictability in Article 97 of the Constitution and ECHR Article 7. ECHR Article 7 does not implicitly impose on countries that have a system of parole an obligation to have clearly defined rules for when parole shall be granted. The Supreme Court rejected the appellant’s direct appeal against the judgment of the District Court.

Reference: HR-2011-516-A, case no. 2011/231, civil appeal against judgment. 

 

10 March 2011           

Tax assessment law. Deadline for adjustment of tax assessment. Tax Assessment Act section 9-6 no. 1 and no. 2. 

The case concerns the deadline for adjustment of a tax assessment for 2002, in particular whether the general ten year deadline in  section 9-6 no. 1 of the Tax Assessment Act, or the three year deadline in section 9-6 no. 2 of the same Act, was applicable. The Supreme Court held that there was no factual error in legal terms and that the three year deadline in section 9-6 no. 2 of the Tax Assessment Act applies. Following a concrete assessment of all of the circumstances of the case, the Supreme Court held that the decision of the tax authority constituted a decision on admissibility and not a decision on the merits of the case. The Supreme Court found in favour of the State, represented by the Norwegian Tax Administration.

Reference: HR-2011-512-A, case no. 2010/1478, civil appeal against judgment.

 

4 March 2011                        

License. Agricultural property. Residence obligation. Allodial Rights Act prior to a statutory amendment dated 1 July 2009 section 1 and section 27a. Concession Act section 9. 

The case concerns the validity of an administrative decision of the County Agricultural Board in the County of Sogn and Fjordane, which rejected an application for a license to purchase an agricultural property where the license obligation had been imposed due to a breach of a statutory residence obligation. The main reason for the rejection was that the transferee did not intend to take up residence at the property. The County Board had found that the property must be deemed to be useable for agricultural purposes pursuant to the now-abolished conditions in section 1 of the Allodial Rights Act, although the case was a borderline case. A majority of the Supreme Court held that the decision of the County Agricultural Board must be repealed because the County Board had not exercised its discretion in accordance with the criteria specified in the (former) Allodial Rights Act section 27a, subsection 2, but in accordance with the general licensing criteria in section 9 subsection 1 of the Concession Act. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-476-A, case no. 2010/1716, civil appeal against judgment.

 

3 March 2011 

Criminal procedure. Seizure. Legal counsel’s duty of confidentiality. Criminal Procedure Act sections 203, 204 and 205. 

The case concerns the seizure of data-stored information in the course of an investigation against an attorney who was suspected of financial crime. The main issue before the Supreme Court was interpretation of the Criminal Procedure Act section 204 subsection 2, first sentence, which contains an exception to the prohibition against seizure of such information in circumstances where the lawyer is suspected of having collaborated with his client about the offence. The Supreme Court held that there were no grounds for alleging that the scope of the exception in section 204 subsection 2 should differ depending on the time when the suspicion arose. Nor was there any legal basis for imposing an additional requirement that the information must have a “direct” impact on the offence, see the Criminal Procedure Act section 203. The seizure did not violate ECHR Article 8 or Article 6. The appellate court's ruling was based on a misinterpretation of the law and was set aside.

Reference: HR-2011-468-A, case no. 2010/1637, criminal appeal against interlocutory order.

 

2 March 2011                       

Civil procedure. Admissibility of evidence. Disputes Act section 30-7. 

The case concerns the admissibility of evidence in a civil case before a chamber of the Supreme Court. The Supreme Court allowed the appellant to submit his tax return in evidence shortly before the appeal hearing on the grounds that submission would not change the nature or unnecessarily expand the scope of the case. The respondent would presumably be able to deal with the information contained in the tax return at short notice.

Reference: HR-2011-452-A, case no. 2010/1478, civil appeal against judgment. 

 

17 February 2011                       

Compensation law. Compensation for non-economic loss. Sexual abuse of children. Damages Act section 3-5 subsection 1(b) cf. section 3-3. 

A 39-year-old man was sentenced in the Court of Appeal to 6 years imprisonment for sexual abuse of his stepdaughter and her friends. The case before the Supreme Court concerned the measure of compensation to be paid to the girls. The Supreme Court held that the compensation award made by the Court of Appeal was probably higher than what was normal in previous case law, but that the level of compensation will always be subject to development, not least as a result of increased knowledge about the harmful effects of sexual abuse. The Supreme Court rejected the appeal and upheld the Court of Appeal’s order of compensation in amounts of between NOK 50,000 and NOK 180,000.

Reference: HR-2011-384-A, case no. 2010/1911, civil appeal against judgment. 

 

17 February 2011                       

Criminal law. Gross financial fraud. Sentencing. Confiscation. Penal Code section 276, cf. section 275. Limited Liability Companies Act section 19-1 (1), cf. section 3-6, cf. section 8-1, cf. section 8-7 (1). 

The defendant was convicted of two counts of gross financial fraud, three violations of the Limited Liability Companies Act, and breaches of the Tax Assessment Act and the Accounting Act. The case before the Supreme Court concerned section 275 of the Penal Code on breach of trust and the provisions of the Limited Liability Companies Act on distribution and credit to shareholders, the application of section 34 of the Penal Code relating to confiscation, and sentencing. The Supreme Court held that it was not a condition for conviction for breach of trust that the perpetrator had committed a breach of other legislation. However, when the act did constitute such a breach, the perpetrator could be convicted of the offence. The Supreme Court rejected the allegation that a connection should be made between the political-legal rationale for anti-avoidance and how the amount to be confiscated should be calculated. The anti-avoidance principle was based on a desire to streamline confiscation practice. The Supreme Court rejected the allegation that when confiscation is based on an anti-avoidance principle, one must apply a similar kind of anti-avoidance perspective from the victim’s point of view when calculating the amount to be confiscated. The Supreme Court set aside the conviction in so far as it concerned violation of Penal Code section 276 cf. section 275. The sentence was fixed at a term of imprisonment of three years and six months, of which two years and six months were suspended, and confiscation of NOK 30 million.

 

16 February 2011                       

Title and right of user. Easement. Easement Act section 17 subsection 2. 

The case concerned compensation for non-economic loss for breach of an easement. The Supreme Court stated that the developer, by proceeding in the manner which he had done, had managed to build what he wanted in violation of the easement. The Supreme Court stated that in order that compensation should have the desired deterrent effect, the developer would have to sacrifice some of the benefits of the project. In determining the measure of damages, it was pertinent that the appellant was clearly the neighbour that was most affected by the breach. The Supreme Court held that the appropriate compensation should be fixed at NOK 1.5 million.

Reference: HR-2011-369-A, case no. 2010/1436, civil appeal against judgment. 

 

16 February 2011                       

Tax law. VAT. Value Added Tax Act section 21. 

The case concerned restitution of deducted input VAT. The question was whether a company that bought a stock that was encumbered by a mortgage could claim a deduction for input VAT when it was clear that the output tax would not be paid because the seller was bankrupt and the full purchase price would be paid to the mortgagee to repay the debt. The Supreme Court stated that the rule in section 21 of the Value Added Tax Act is an expression of a reciprocity principle, whereby the output VAT and the input VAT correspond and neutralize each other. These provisions aim to be competition-neutral and to prevent tax-related differentiation between businesses. In the Supreme Court’s view, an obligation to pay duty could also be established on the basis of the Value Added Tax Act if this is necessary in order to avoid disloyal exploitation of the rules. A majority of the Supreme Court rejected the appeal, and upheld the tax authorities’ restitution of the deducted VAT. The judgment was passed with dissenting votes (3-2).

Reference: HR-2011-363-A, case no. 2010/1709, civil appeal against judgment. 

 

16 February 2011                       

Criminal law. Sentencing. Penal Code section 195 subsection 2 (c), section 192 subsection 1 (a) and section 195 subsection 1, first sentencing alternative. 

The case concerned sentencing for repeated instances of sexual intercourse with two underage girls. A 60-year-old man assaulted his partner's granddaughters when the girls stayed with him and their grandmother at weekends and during holidays. In view of recent court practice, and in light of the stricter penalties that had gradually been imposed in recent years, the Supreme Court held that there was no reason to reduce the Court of Appeal’s sentence of three years and six months imprisonment. The Supreme Court dismissed the appeal.

Reference: HR-2011-370-A, case no. 2010/1883, criminal appeal against judgment.

 

15 February 2011                       

Criminal law. Sentencing. Community service. Aggravated robbery and deprivation of liberty. 

The case concerned sentencing for aggravated robbery and deprivation of liberty where the defendant was 17 years and 10 months old at the time when the offences were committed. The Supreme Court referred to its judgment in Rt-2010-1313, and concluded that the conditions for making a community service order were present in this case. The defendant had no previous convictions, and almost two years had passed since the criminal act was committed, during which time he had not committed any new offences. He attended school and also had a permanent part-time job. The Supreme Court held that the disruption in his personal life situation would be severe if he had to serve a prison sentence, and that the interests of individual deterrence would best be met by making a community service order. The Supreme Court changed the sentence of the Court of Appeal and ordered the defendant to serve 419 hours of community service within an 18 month completion period.

Reference: HR-2011-356-A, case no. 2010/1746, criminal appeal against judgment. 

 

15 February 2011                       

Criminal law. Sentencing. Insider trading. Aiding and abetting insider trading. Securities Trading Act (1997) section 2-1 subsection 1, cf. section 14-3 subsection 1 (prior to a statutory amendment dated 1 September 2005). 

The case concerned sentencing of three different defendants and their handling of insider information in the autumn of 2005, related to three different companies. At the date of the Supreme Court's ruling, five years and three months had passed since the criminal acts were discovered. A lot of this time was due to the fact that the Court of Appeal's referral of 22 October 2007 and its sentencing judgment of 9 June 2008 had been revoked by the Supreme Court on 4 March 2009 on the grounds of breach of the International Covenant on Civil and Political Rights. The defendants could not be blamed for this delay. The Supreme Court converted the unconditional sentences for defendant no. 2 and defendant no. 3 to an entirely conditional sentence.  As regards defendant no. 1, the Supreme Court held that the unconditional part of the sentence was deemed to have been served by the time spent in custody on remand and pending sentence.

Reference: HR-2011-355-A, case no. 2010/1479, criminal appeal against judgment. 

 

10 February 2011                       

Company law. Procedural time limit. Demerger. Three-cornered structure. 

The issue in the case was whether the procedural time limit for challenging the validity of a limited liability company’s decision to demerge in section 14-10, cf. section 13-19 of the Limited Liability Companies Act, also applies to proceedings challenging the validity of a decision to increase the share capital and to issue shares as consideration in a three-cornered demerger, in which case the time limit will expire when the demerger is registered in the Register of Business Enterprises. The Supreme Court held that the procedural time limit applies. The lawsuit was filed after the demerger was registered in the Register of Business Enterprises and the legal action must therefore be dismissed.

Reference: HR-2011-313-A, case no. 2010/1564, civil appeal against interlocutory judgment. 

 

9 February 2011                       

Criminal law. Application of law. Sentencing. Rape. Distinction between assault and occasioning bodily harm. 

The defendant was convicted of rape, occasioning bodily harm and breach of the Firearms Act. The appeal to the Supreme Court concerned the distinction between bodily harm and assault, the Court of Appeal proceedings in connection with adjudication of the bodily harm, and sentencing. The Supreme Court held that the Court of Appeal’s application of the Penal Code section 229, first sentencing alternative was incorrect. The victim had sustained injuries in the form of multiple bruises but, on the basis of the size and location of the wounds, the Supreme Court held that these could not be regarded as bodily harm. The report of the Court of Appeal proceedings provided a satisfactory basis on which to convict for assault, and the Supreme Court therefore changed the conviction for violation of Penal Code section 229, first sentencing alternative (bodily harm) to conviction for violation of section 228, subsection 1 (assault). The Supreme Court fixed the punishment for rape, assault and breach of the Firearms Act at two years and ten months imprisonment.

Reference: HR-2011-296-A, case no. 2010/1742, criminal appeal against judgment. 

 

24 January 2011           

Construction law. Additional remuneration. General principles of good faith. Norwegian Standard Contract NS 8401. 

Three firms of architects were awarded a design contract for the rehabilitation of a school following a tender process. The contract was a lump sum contract. The architects claimed additional remuneration for variations to the design work. The issue before the Supreme Court was whether the architects’ claim was submitted too late and whether the claim for additional remuneration was contrary to general principles of good faith between contracting parties. A majority of the Supreme Court held that the architects had not acted in breach of general principles of good faith when their claim had been extended to cover work that had in fact been performed. The Supreme Court dimissed the appeal. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-160-A, case no. 2010/1119, civil appeal against judgment.

 

24 January 2011           

Property tax. Asset value. Town Tax Act section 5. 

The issue in the case was whether, for the purposes of property tax assessment, property and buildings should be valued according to their asset value or according to their sale value where a relevant sale had taken place. The Court of Appeal had set aside the property tax assessment of a mine and appurtenant buildings on the grounds that it was based on an incorrect interpretation of the law. The decision of the Court of Appeal was passed with dissenting votes. The Supreme Court held that the valuation for property tax purposes must be determined on the basis of the asset value even in circumstances where an actual sale sum was available. This interpretation followed from the wording of the Town Tax Act section 5 and was reflected in the preparatory works to that Act and a long line of jurisprudence of the Supreme Court. The Supreme Court held that the decision of the South Varanger Property Tax Appeal Board was lawful.

Reference: HR-2011-157-A, case no. 2010/1051, civil appeal against judgment.

 

24 January 2011           

Sentencing. Negligently having caused serious personal injury by the use of a motor vehicle. 

A motorist and a motorcyclist collided when the motorist pulled out from a side road onto a priority road. The motorcyclist was injured and the driver of the motor car was convicted of negligent breach of sections 3 and 5 of the Road Traffic Act and section 237 of the Penal Code and sentenced to 18 days imprisonment. The issue before the Supreme Court was whether the sentence should be suspended. The Supreme Court held that the motorist’s negligence was not the result of a momentary lack of attention or that she had allocated her attention wrongly. Her car was stationary before she pulled out and there had been time for her to ensure that there was no oncoming traffic. There were strong general preventative considerations and a majority of the Supreme Court voted to uphold the unconditional sentence of 18 days imprisonment. The Supreme Court dismissed the appeal with dissenting votes (3-2).  

Reference: HR-2011-164-A, case no. 2010/1659, criminal appeal against judgment.

 

24 January 2011           

Sentencing. Threats towards a police officer. Penal Code section 227, first sentencing alternative. 

The case concerned sentencing for threats made against a police officer in his home. The defendant and her husband had visited the home of a police officer and the defendant had shouted to the police officer that “you will die tonight”. The background for the episode was that the Child Welfare Service had passed an emergency decision earlier that day to place the couple's daughter in care for a period of five years. Due to the mitigating circumstances in the case, a majority of the Supreme Court voted to reduce the sentence to 21 days imprisonment. The Supreme Court attached particular weight to the fact that the mother was distressed by the emergency decision of the Child Welfare Service and that she had been in contact with the police ten minutes after the incident and regretted what she had done. The judgment was passed with dissenting votes (4-1).

Reference: HR-2011-156-A, case no. 2010/1717, criminal appeal against judgment.

 

14 January 2011           

Criminal law. Domestic violence. Application of law. Penal Code section 219 subsection 1.

The issue in the case was whether a father who had physically abused his son should be convicted pursuant to section 219 subsection 1 or section 219 subsection 2 of the Penal Code. The Court of Appeal had found it proven that the father had physically abused his son, who was a minor, on four occasions. One of the episodes amounted to grievous abuse. However, the Court of Appeal did not find it proven that the son had lived under a “regime of terror” - the acts of violence were viewed as individual episodes of physical abuse. The Supreme Court held that the focal area of application of section 219 of the Penal Code is cases of persistent and repeated abuse, but that the scope of the provision also extends to individual episodes provided they are sufficiently serious. Subsection 2 is applicable to individual episodes primarily where the abuse has led to death or serious injury. There was therefore no basis for applying section 219 second paragraph in the present case, and the Supreme Court rejected the appeal.

Reference: HR-2011-94-A, case no. 2010/1552, criminal appeal against judgment. 

 

10 January 2011   

Civil procedure. Case treatment. Impartiality. Courts of Justice Act section 15 subsection 1 and section 108. 

The appeal concerned the procedure before the District Court and the Court of Appeal in the determination of a dispute between a builder and his subcontractor. The issues before the Supreme Court were whether or not the Court of Appeal judges were incompetent to adjudicate the case on grounds of partiality, whether an expert lay judge in the District Court was incompetent to participate on grounds of partiality and whether the Court of Appeal had the power to determine the substantive issues in the case after one of the lay members of the court had resigned on the grounds of partiality. The Supreme Court held that two of the judges were incompetent to adjudicate on the grounds of partiality, but there was dissent (3-2) regarding whether the judgment of the Court of Appeal had to be set aside as a consequence of this. The majority of the Supreme Court recalled that the dispute had been determined in two court instances without the geological expertise that had originally been considered necessary, and referred to section 29-22 subsection 2 of the Disputes Act and the requirement of a fair procedure in section 1-1. The majority of the Supreme Court held that the Court of Appeal should either have set aside the judgment of the District Court on the grounds of partiality, or subsequently convened a new court with different judges – and ensured that geological expertise was made available, if necessary, from an impartial source. The Supreme Court set aside the judgment of the Court of Appeal.

Reference: HR-2011-51-A, case no. 2010/1202, civil appeal against judgment. 

 

10 January 2011            

Criminal Procedure. Constitution of the Court of Appeal. Courts of Justice Act section 15 subsection 2. Criminal Procedure Act section 343. 

A case that had been joined with appeals from other defendants should have been heard by a panel comprising three professional judges. However, due to illness, only two professional judges participated. The panel also comprised two lay judges on account of the nature of the other appeals. The Supreme Court held that the participation of lay judges did not repair the procedural error. The court was not lawfully constituted and the judgment of the Court of Appeal had to be set aside in so far as it concerned the appellant’s appeal, see the Criminal Procedure Act section 343 subsection 2 no. 3.

Reference:            HR-2011-50-A, case no. 2010/1562, criminal appeal against judgment. 

 

10 January 2011           

Criminal Law. Environmental law. Sentencing. Legal costs. Planning and Building Act (1985) section 110 subsection 1 no. 2 cf. section 93 subsection 1 (a) and (i) 

A 29 year old man was convicted in the Court of Appeal and ordered to pay a NOK 500,000 fine for several violations of the Planning and Building Act perpetrated in connection with the building of a holiday cottage. The most serious offence was that he had blasted approximately 2000 m3 of solid rock which was outside the scope of the building permit. The Supreme Court recalled that there is a need for strict sanctions against environmental crime and that the legislator has increased the level of punishment for environmental crime in several recent statutory instruments. The appeal against sentence was rejected. The Court of Appeal had ordered the defendant to pay legal costs of NOK 100,000 for the proceedings before the District Court and the Court of Appeal without giving any reason. The Supreme Court held that the Court of Appeal should have explained what costs were included in this amount, see the Criminal Procedure Act sections 436 and 437, and made a new order as to costs, reducing them to NOK 50,000, see the Criminal Procedure Act section 442.

Reference: HR-2011-49-A, case no. 2010/1605, criminal appeal against judgment. 

 

7 January 2011           

Criminal law. Assault of police officer. Sentencing. Penal Code section 127 subsection 1, first sentencing alternative. 

A 21 year old man was convicted in the Court of Appeal and given a 30 days suspended prison sentence and a fine for having taken hold of a policewoman and wrenched heavily at her hair for about 2-3 minutes. The offence was committed while he was intoxicated, which was self-inflicted. The defendant had returned from military training the day before the event, and during the last week of the training he had had little sleep and food. The Court of Appeal held that he was unconscious when the violent act took place and showed signs of confusion and possible panic. The Supreme Court found that considerations of general deterrence and the gravity of the violent conduct in this case would normally justify an unconditional penalty. However, given the special circumstances of the case, the Supreme Court affirmed the Court of Appeal's sentence and dismissed the public prosecutor’s appeal.

Reference: HR-2011-47-A, (sak nr. 2010/1761), straffesak, anke over dom. 

 

6 January 2011

Criminal law. Money laundering. Legal counsel. Procedure. Application of law. 

Two lawyers were convicted in the Court of Appeal and each given a six months suspended prison sentence for breach of the Penal Code section  317 subsection 1 cf. subsection 3 cf. section 49 (attempted receiving the proceeds of crime). In the course of their legal practice, they had agreed to collect a debt in circumstances where they knew that the loan was most likely the proceeds of crime. A’s assistance comprised in sending a request for payment to a guarantor and subsequently filing a petition against him for bankruptcy. B had filed a brief with the Court of Appeal in connection with an interlocutory appeal against a ruling in the bankruptcy proceedings. The Supreme Court dismissed the defendants’ appeals against procedure and the application of law in relation to the question of guilt. As regards the application of law, the Supreme Court held that the assistance fell within the scope of section 317 of the Penal Code prior to a statutory amendment of 2006. The general principle that an act is only criminal if it is unjustified could not warrant an acquittal in a case like the present, notwithstanding that the  assistance was provided in the course of a lawyer’s assignment.

Reference:  HR-2011-31-A, case no. 2010/1148, criminal appeal against judgment.