Summaries

Judgment

21 December 2012

Public administration law. Immigration law. Asylum. Children. Courts' competence.

In a case concerning the validity of the Immigration Board of Appeals' refusal of the application for asylum and residence in Norway for an Iranian family with children who, at the time of the decision, had lived here for a long time, the Supreme Court's majority concluded, after an extensive review of theory, preparatory works of acts and case law that the review of administrative decisions shall in general be based on the facts at the time when the decision was made. Norway's human rights obligations do not give grounds for any other solution, including in immigration cases. The obligation to ensure an effective right of review under Article 13 of the EHRC is safeguarded through the system we have in Norway today. The Immigration Board of Appeals, which is to be regarded as a court of law according to the EHRC system, is required to hear requests for reversals based on new circumstances, and refusals to grant reversals may also be heard by the courts. Section 38 subsection 3 of the Immigration Act, according to which the child's bests interests shall be a fundamental consideration in cases relating to the granting of a residence permit on the grounds of strong humanitarian considerations or a special connection to Norway, shall be interpreted to mean that the consideration for the child's best interests shall carry significant weight. This is in conformity with Article 3 of the Children's Convention. Importance shall be attached to a connection that has developed while the child has been an illegal immigrant in the country. Immigration-regulating considerations, cf. section 38 subsection 4 of the Immigration Act, including derived consequences of a decision and the regard for the respect for the other rules of the Act may, however, carry so much weight that they must prevail over the consideration for the best interests of the child. However, the consideration for the child may, depending on the circumstances, nevertheless be so weighty that it takes precedence regardless of any other existing counter considerations. Section 38 subsection 1 of the Immigration Act does not allow for a right of judicial review of the administration's application of the conditions "strong humanitarian considerations" or "special connection to Norway". In cases under section 38 subsection 3 of the Immigration Act it must be clear from the decision that the regard for the child's best interests has been properly evaluated and weighed against conflicting considerations and carries weight as a fundamental consideration. Whether the decision satisfies these requirements may be examined by the courts. The concrete weighing of interests cannot be examined.  A concrete review of the Immigration Board of Appeals' decisions showed that the consideration for the child had been duly evaluated and that there were no errors in the decision leading to invalidation. Decision in plenary. Dissenting votes 14-5.

Reference: HR-2012-2398-P, case no. 2012/688, civil appeal against judgment.

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Judgment

21 December 2012

Administration law. Immigration law. Residence permit on humanitarian grounds. Declaratory judgment for breach of convention.

In a case relating to the validity of the Immigration Board of Appeals' refusal of an application for a residence permit for a family  from Bosnia-Hercegovina who had children in Norway the Supreme Court's majority held that the Immigration Board of Appeals had relied on a correct understanding of section 38 of the Immigration Act in its evaluation of the question whether a residence permit should be granted. The decision satisfied the requirements as to reason in section 38 subsection 3 of the Immigration Act as these are specified in another plenary judgment of the same date in case HR-2012-2398-P. A court has a procedural right to deliver a declaratory judgment to the effect that a deportation violates Article 8 of the ECHR relating to the right to respect for private and family life. After having reviewed the European Court of Human Rights' judgment of 4 December 2012 in the case Butt v. Norway, the majority concluded that there were no such ”exceptional circumstances” that could constitute grounds for a violation of the convention when the duty to leave the country had been breached over several years. Unlike the ECHR and the ICCPR, the Children's Convention does not contain any requirement for an effective remedy in law at national level. It is accordingly not possible to deliver a declaratory judgment for a breach of this convention. Plenary decision. Dissenting votes 11-8 regarding the question whether it is possible to deliver a declaratory judgment for breach of the Children's Convention, 14-5 regarding the other issues.

Reference: HR-2012-2399-P, case no. 2012/1042, civil appeal against judgment. 

Read the whole decision

 

Judgment

20 December 2012

Criminal law. Sentencing. Computer fraud

The penalty for aiding and abetting computer fraud and computer hacking by breaking into an internet bank and draining money out of internet bank accounts was set at a term of imprisonment of 1 year and 10 months, cf. the Penal Code, section 270 subsection 1 no. 2, cf. subsection 2, cf. section 271 and section 145 subsection 2. The risk of loss amounted to around NOK 800 000. The Supreme Court stated that in order for the court's reaction to act as a general deterrent, the general level of punishment should be strict, cf. Rt-2009-397.The court also attached importance to the fact that this was a question of organised crime where the defrauders often operate across national borders, and that internet crime is an increasing social problem that threatens confidence in a payment system on which today's method of payment is based. The profit potential indicated that the fact that the actual gain was modest could not carry much weight.

Reference: HR-2012-2397-A, case no. 2012/777, criminal appeal against judgment. 

 

Judgment

20 December 2012

Financial products. Damages. Duty of disclosure. Good business practice.

A finance institution had in 2007 sold a financial product - called notes - to private customers. The note could be redeemed by the issuer if the value - determined on the basis of the trading price in the second-hand market - dropped below 20 % of the issue price. In 2009, the note was terminated and redeemed at a price of 12.4 %. A number of investors filed an action for damages against the Norwegian bank that had arranged the sales. The Supreme Court held that the customers had received sufficient information - cf. section 9-2 subsections 1 and 2 of the Securities Trading Act 1997 - about the risk of termination due to a decrease in value.  The bank could not be expected to foresee the financial crisis when the notes were sold, and it could not be expected that the information about the product also included information about the consequences of an unforeseeable development - such as the financial crisis in this case - if the consequence was dramatic. The court found for the bank.

Reference: HR-2012-2382, case no. 2012/419, civil appeal against judgment.

 

Judgment

20 December 2012

Criminal law. Preventive detention. Release on parole

In a case concerning release on parole from preventive detention the Supreme Court found on the basis of expert opinions that the regard for public interest indicated that the prisoner should not be released on parole without specifically stipulated conditions. Regarding the question of release on conditions under section 39 g subsection 1 3rd sentence of the Penal Code, the Court of Appeal found that there must be a prospect of the released prisoner being able to return to a life in freedom before expiry of the time limit for the preventive detention. This is a misinterpretation of the law in that the issue must be evaluated in a longer time perspective. The Court of Appeal's judgment was set aside.

Reference: HR-2012-2395, case no. 2012/1873, criminal appeal against judgment.

 

Order

20 December 2012

Norwegian courts' local jurisdiction. The Lugano Convention.  

A company from Singapore brought an action before a Norwegian court relating to a settlement according to a broking contract entered into in Singapore. The matter had no connection to Norway, beyond the fact that the defendant's court of domicile was here. The Supreme Court's majority - three judges - stated that it did not follow from the Lugano Convention that claimants from third countries were automatically entitled to file actions in Norway. This had to be considered an open question under international sources of law. It was also assumed that Norwegian law provides satisfactory solutions that do not conflict with the provisions of the Convention. Reference was made to the fact that under Norwegian law it would take a lot to preclude a Norwegian company, whose court of domicile is here, from being sueable here. The Court of Appeal's interlocutory order, which was based on the assumption that the Convention allowed a hearing of the case here, was set aside. Dissenting votes 3–2.

Reference: HR-2012-2393-A, case no. 2012/881, civil appeal against order.

 

Judgment

20 December 2012

Immigration law. Deportation. False identification documents.  

In a case relating to the validity of the Immigration Appeals Board's decision to deport an Iraqui national, who had presented false identification documents, the Supreme Court found that, objectively speaking, this represented a breach of the provision in section 83 subsection 2 and 93 subsection 4 1st sentence of the Immigration Act. No requirement can be stipulated for mens rea in order to consider the condition for deportation in section 66 subsection 1 a first alternative that a "serious" breach of the law must have been committed, to be satisfied. It was pointed out that the question whether this was a case of mens rea will nevertheless be an important element in the evaluation of proportionality that is required.  The appeal against the Court of Appeal's judgment in favour of the Defendant was quashed.

Reference: HR-2012-2392-A, case no. 2012/1188, civil appeal against judgment.

 

Judgment

19 December 2012

Contract law. Section 39 of the Contract Act.

The buyer of a planned flat withdrew her purchase offer approximately 2 weeks after the offer was made. The Supreme Court held that the buyer was entitled to go back on the agreement pursuant to section 39 of the Contract Act, analogously applied. No contract of sale had been entered into. The fact that a contract meeting had been held, a draft agreement been handed over and 1% of the sales price been paid up was not sufficient for the seller to have relied on the agreement. The "special reasons" requirement was satisfied in that the buyer was hospitalised when the agreement was entered into, had no financial capacity to carry out the purchase and had acquired the home she owned at that time only 6 months before the purchase. Nor did the fact that she later the same year signed the contract of sale and paid a further deposit entail that she was bound.

Reference: HR-2012-2378-A, case no. 2012/1005, civil appeal against judgment. 

 

Judgment

17 December 2012

Tax law. The non-statutory rule relating to substance over form

A limited company with two subsidiaries as the essential assets and a substantial accumulated loss carry forward was sold in 1996. In the subsequent years the loss was sett off against group contributions from other companies in the same group as the purchasing company. In 2009, Tax East decided to preclude the right to income tax allowances for the earlier losses pursuant to the non-statutory rule relating to substance over form. The Supreme Court found that the purchase of the parent company with subsidiaries constituted a natural whole. Even if the tax position was a key motivation factor for the purchase, the allowances were not in violation of the purpose behind the tax rules relating to losses carried forward and group contributions. The subsequent sales within the same group did not put the matter in a different position given that the relevant companies had substantial assets and income and the business activities continued after the transfer. The tax assessment was set aside.

Reference: HR-2012-2354-A, case no. 2012/505, civil appeal against judgment.

 

Judgment

13 December 2012

Criminal procedure. Composition of the court. Lay judge's language qualifications.

In an appeal against a conviction by the Court of Appeal the defendant submitted that one of the lay judges did not have sufficient knowledge of the Norwegian language, cf. section 70 of the Courts Act. Based on a deposition where the lay judge gave evidence, the Supreme Court found it clear that the lay judge had sufficient proficiency in Norwegian. It was added that the decisive criterion must be that the lay judge's proficiency in Norwegian is such that he understands the case and is able to express his opinion of the case. 

Reference: HR-2012-2349-A, case no. 2012/1541, criminal appeal against judgment. 

 

Judgment

13 December 2012

Labour law. Social security law. Damages. Assessment of damages. Work assessment allowance.

The Court of Appeal had awarded a dismissed employee damages for loss of earnings following unfair dismissal, cf. section 15-12 subsection 2 of the Working Environment Act. No deduction was made from the damages awarded for work assessment allowance which the employee had received after her dismissal. The Supreme Court held that it follows from section 11-19 subsection 1 of the National Insurance Act, seen in conjunction with section 22-15 subsection 3, that damages paid by the employer following unfair dismissal shall be deducted from the work assessment allowance, that it follows from the preparatory works of section 22-15 subsection 3 that all payments from the employer that constitute compensation for salary may lead to a reduction in the work assessment allowance and that in such an event repayment of already paid benefits may be claimed. There was accordingly no basis for deducting the work assessment allowance. That the compensation from the employer was not laid down by a judgment and not in an agreement between the parties did not change this fact. One judge found that the claim for repayment could not be deduced from section 11-19 of the National Insurance Act but, based on the clear wording of section 22-15 subsection 3 of the National Insurance Act relating to repayment in case of «compensation for pay», reached the same conclusion.

Reference: HR-2012-2350-A, case no. 2012/1148, civil appeal against judgment. 

 

Judgment 

12 December 2012

Law of damages. Occupational injury. Solvent injury

In a case concerning the payment of industrial injury insurance following injuries caused by solvents the Supreme Court's majority found that the presumption rule in section 11 subsection 2 of the Industrial Injury Insurance Act is not applicable to the issue whether the employee in actual fact has an injury or illness that is equivalent to an occupational injury, or the issue of causality between chemical influence and the injury. The employee has the burden of proving that these conditions are met. Preponderance of evidence is sufficient. Dissenting votes 4-1.

Reference: HR-2012-2348-A, case no. 2012/880, civil appeal against judgment.

 

Judgment

6 December 2012

Child welfare. Contact rights

In a case that concerned the extent of the parents' contact rights after the child had been taken into care, cf. section 4-19 of the Child Welfare Act, the Supreme Court found that contact must be arranged so that it does not prevent the establishment of a safe and good relationship between the child and the foster parents, while at the same time the regard for creating and maintaining the child's knowledge and understanding of its biological parents must be safeguarded. As a result of the parents' request for separate contact, it was considered natural to allow a somewhat higher total number of visits than normal. An established visitation arrangement with other close relatives also had to be included in the overall evaluation of the extent of contact. The mother’s contact was set at four annual visits of three hours’ duration. The father’s contact was set at two annual visits of two hours’ duration.

Reference: HR-2012-2309-A, case no. 2012/1092, civil appeal against judgment. 

 

Judgment

30 November 2012

Social Security Law. Disability pension. Assessment duty.

In a case relating to the validity of a refusal of an application for disability pension, the Supreme Court held that the condition in section 12-5 of the National Insurance Act, according to which benefits under chapter 12 of the Act are only granted if the person concerned has undergone, or attempted to undergo, an individual and expedient rehabilitation programme without any income ability improvement, was not satisfied. The condition entails that measures that seem expedient must have been tried out and there must be clear indications that a measure is not expedient. This requirement was not satisfied. Clarification as to whether the rehabilitation condition is met falls within the province of the rehabilitation authorities and not under the National Insurance Court, and the National Insurance Court's assessment duty, which cannot be evaluated isolated from the conditions in section 12-5 of the National Insurance Act, is limited to what is necessary in order to clarify whether the conditions in the provision are satisfied.

Reference: HR-2012-2250-A, case no. 2012/923), civil appeal against judgment.

 

Judgment

22 November 2012

The state’s liability in damages. Redress for non-economic loss. EEA. Implementation of Motor Vehicle Directives.  

Under section 6 subsection 2 of the Motor Vehicle Liability Act, as the provision read until the Amendment Act of 5 June 2009 no. 34, claims for redress for non-economic loss were exempt from the compulsory insurance coverage for motor vehicles. In a statement of 20 June 2008 the EFTA Court declared that this exemption was not compatible with the EU's Motor Vehicle Insurance Directives and that the exemption constituted a sufficiently serious breach of EEA law to entail State liability. In a class action filed by the Norwegian Organization of Traffic Victims, where the issue in dispute was whether this fault was sufficiently serious to entail liability, the Supreme Court found that the fact that the Directive had been breached may in itself be sufficient for the breach to be sufficiently serious, that the clarity of the Directive has a key position in the evaluation and that the threshold must not be set so high that there will be no reality in the compensation scheme. The Supreme Court subsequently concluded that an article in one of the Directives was worded in such a way that the Directives were not clear enough for the breach in itself to justify liability. However, the ambiguity was cleared up by a decision by the EU Court in 1996. The State was consequently held liable for claims for redress for non-economic loss following traffic accidents that had taken place after 1 January 1997. 

Reference: HR-2012-2213-A, case no. 2012/963, civil appeal against judgment.

 

Judgment

21 November 2012

Compensation for non-economic loss. Premeditated attempted murder. Retrial.

Quantum of damages for non-economic loss after premeditated attempted murder, section 233 subsections 1 and 2 cf. subsection 49 of the Penal Code, was set at NOK 400 000 and 500 000 respectively for two victims. Both had suffered very extensive injuries. The Supreme Court relied on Rt-2005-289 and subsequently made an upwards adjustment for inflation, an increased level of punishment and increased focus on the consequences for the victims. One of the victims was granted a retrial because the time-limit in section 434 subsection 7 of the Penal Code had been exceeded. First and foremost importance was attached to the weighing of interests between the parties.

Reference: HR-2012-2203-A, case no. 2012/891 and HR-2012-2208-A, case no. 2012/1515, civil appeal against judgment.  

 

Judgment

21 November 2012

Sale of goods law. Complaints.

Based on a concrete evaluation the Supreme Court concluded that the application of a corrosion-protective coating on auto spare parts was not done according to the agreement and that there was thus a defect. It was further stated that a defect must be invoked in order for it to constitute a complaint and that the crucial point as regards the content of the complaint is that the seller receives notice that the buyer may invoke a claim for defective performance. The e-mail that was invoked as a complaint did not satisfy this requirement, but had to be understood as one of many inputs in an ongoing discussion between the parties. The buyer had accordingly not filed a complaint in time. The appeal against the Court of Appeal’s ruling in favour of the defendant was set aside.

Reference: HR-2012-2204-A, case no. 2012/441, civil appeal against judgment.

 

Judgment

8 November 2012

Labour law. Competence of the Labour Court. Summary dismissal. Legal interest.                                                                                         

The Labour Court had found the summary dismissal of a shop steward invalid and awarded the employee damages. The appeal against the Labour Court’s judgment was heard by the Supreme Court in that it is due to an error when it is stated in section 58 subsection 5 of the Labour Disputes Act that the Labour Court’s judgments can be appealed to the Appeals Committee of the Supreme Court. The case was heard under the Labour Disputes Act of 27 January 2012 no. 9, in spite of the fact that the Act had not come into force when the case was appealed to the Supreme Court. The employer had executed the Labour Court’s judgment. The Appellant, NHO (Confederation of Norwegian Business and Industry) nevertheless had a legal interest in the appeal going forward in order to have the main issue of the case decided. In the main issue – the extent of the Labour Court’s competence – the Supreme Court held that the Labour Court had competence to render a judgment to the effect that the summary dismissal was invalid. Reference was made to the fact that the provisions in chapter 15 of the Working Environment Act had been made into collective agreement standards and to the fact that a superior party to a collective agreement can obtain a judgment against a member bound by a collective agreement, cf. section 35 subsection 4 of the Labour Disputes Act.

Reference: HR-2012-2127-A, case no. 2012/865, civil appeal against judgment.

 

Judgment

8 November 2012

Criminal procedure. Questions to the jury.

If a penal provision comprises alternative consequences of the same act, the jury may, in the same way as in cases of different offence alternatives within the same provision, be put one question that comprises both alternatives. The choice between the alternatives then belongs under sentencing. In the case at hand, which concerned section 229 3^rd penal alternative of the Penal Code, the Court of Appeal had proceeded correctly when the jury was asked collectively whether death or considerable injury to body or health resulted from the defendant’s act.

Reference: HR-2012-2128-A, case no. 2012/1087, criminal appeal against judgment.

 

Judgment

8 November 2012

Building contract law. Contract interpretation.

A building contract included the erection of walls in natural stone in a through-cut and filling work along a road. The contractor alleged that the relevant unit price in the contract only comprised the actual work so that the stone could be invoiced separately. The Supreme Court took for its basis that the princple of an objective interpretation of agreements between traders will carry special weight in a building contract relationship while the building owner must bear the responsiblity for the bid foundation giving a clear an accurate description of the items of costs which it is understood will be priced. After a review of a comprehensive tender basis the Supreme Court held that it was sufficiently clear from the wording of the tender basis, seen in conjunction with its structure and fundamental system, that the unit price was to comprise the stone. Accordingly, the contractor could not afterwards claim payment for the stone. Code 9.4.

Reference: HR-2012-2126-A, Case no. 2012/709, civil appeal against judgment.

 

Judgment

31 October 2012

Criminal law. Hacking. Application of the law. Right to privacy

The punishment for violation of section 145 subsection 2 of the Penal Code was set at one year's imprisonment, 9 months of which were suspended. The defendant was convicted of having hacked into private individuals' e-mail accounts and e.g. having downloaded intimate pictures, of having gained access to private information on a computer which had been handed over to him for repairs, and for hacking into an American company in that he had downloaded large volumes of customer information. The for-the-purpose-of-gain requirement, cf. section 145 subsection 3 of the Penal Code, was satisfied in that the defendant had by the hacking obtained data about a great number of people, something that was of financial value. He was acquitted of the charges under the Personal Data Act because he could not be deemed to be "responsible for the processing of personal data" under the law. If he had been given a password, a computer and access to examine the computer as a whole, he could not be convicted under section 145 of the Penal Code of having gained access to data which were open to him. The publishing condition under section 390 of the Penal Code was not satisfied by the defendant's appropriation of data. Damages for non-economic loss under section 3-6 of the Compensatory Damages Act could accordingly not be awarded.   

Reference: HR-2012-2056-A, case no. 2012/969, criminal appeal against judgment.

 

Judgment

30 October 2012

Tax law. Assessment. Time-limit for amendments. Arm's length principle.

Statoil's wholly owned insurance company had entered into reinsurance contracts through a mutual insurance company for the oil industry. In case of intra-group transactions such as this one, a lower market-based price - "the arm's-length price"  - shall be taken for a basis for the tax assessment, cf. section 13-1 of the Tax Act - section 54 of the former Tax Act of 1911. The tax authorities alleged that the system entailed a financial advantage that was not reflected in the insurance premiums which Statoil paid to its own company, that Statoil accordingly had too low a taxable income from the activities on the Norwegian Shelf and that the company had given incorrect information about the insurance premiums. This would have had the consequence that the two-year time-limit in section 9-6 no. 3a of the Tax Assessment Act for amendment of the assessment to the disadvantage of the taxpayer would not be applicable. The Supreme Court stated with reference to Rt-1999-1087 that there must be an actually paid price which differs significantly from the arm's-length price in order for the information about the actually paid price to be deemed incorrect. A discrepancy of maximum 19.8 per cent was not sufficient. Section 9-6 no. 5 c  of the Tax Assessment Act does not prevent the tax authorities' right to raise the issue of the size of the deduction within one year of a judgment which grants a deductible allowance without taking a position on the extent.

Reference: HR-2012-2041-A, case no. 2012/805, civil appeal against judgment.

 

Judgment

26 October 2012

Company law. Limited company. Voting rights restrictions.

In a limited company with a clause in the articles of association on voting rights restrictions group companies which owned shares had to be identified with each other so that decisions by the general meeting where the group companies had constituted the necessary majority were found invalid. The Supreme Court referred to the fact that the purpose of the voting rights restriction was to prevent shareholder influence being concentrated on a few hands. A sale spread to group companies exclusively for the purpose of being able to vote for shares that are all controlled on one hand would therefore be an unlawful circumvention of the voting rights restriction. The purpose of the restriction could only be protected if the group companies were judged as one shareholder.

Reference: HR-2012-2022-A, case no. 2012/518, civil appeal against judgment.  

 

Judgment

24 October 2012

Expropriation. Utility value. Base stations.

Compensation for the surrender of usufruct of land for base stations for the Norwegian National Rail Administration’s emergency communication network GSM-R was based on the utility value of the land. The Supreme Court found that in a legal sense there is no market for suitable land for base stations. There was accordingly no basis for compensation founded on the sales value. The parties agreed that the compensation would be fixed through appraisement proceedings and based on principles of expropriation law, cf. section 4 of the Appraisement Procedure Act.

Reference: HR-2012-1999-A, case no. 2012/586, civil appeal against judgment.

 

Order

22 October 2012

Criminal procedure. Prohibition against seizure. Lawyers’ duty of confidentiality. ECHR

 In a case relating to the validity of a seizure the Supreme Court's majority concluded that material which the defendant has obtained according to instructions from his defence counsel, and which is intended for the defence counsel, is comprised by the prohibition against seizure in section 204 subsection 1, cf. section 119 subsection 1 of the Criminal Procedure Act. It is not necessarily a condition that the defence counsel has in actual fact become familiar with the relevant information. Decisive is whether the material was obtained as part of the defence counsel's assignment. In that case, the prohibition against seizure will apply regardless of from whom the defendant has obtained the material. Documents obtained which relate to the issues in the criminal case and contain advice or evaluation to be used in the defendant's preparation of his defence will be subject to the evidence prohibition under Article 6 no. 2 b and c of the ECHR even if the intention was not to hand them over to the defence counsel. A judge who, like the majority, voted in favour of quashing the District Court and the Court of Appeal'sdd interlocutory orders gave a dissenting vote concerning the rationale.

Reference: HR-2012-1987-A, case no.12/1389, criminal appeal against order. 

 

Judgment 

18 October 2012

Damages for non-economic loss. Meting out of damages.

In a criminal case where the offender was convicted under section 229 first penal alternative of the Penal Code damages for non-economic loss was set at

NOK 80 000. The actual bodily harm was unprovoked, was in the nature of abuse and was in the upper strata of the first penal alternative. The Supreme Court referred to the fact that the meting out of damages for non-economic loss under section 3-5 of the Compensatory Damages Act in such cases must be discretionary and that the starting point should be an objectivised assessment of the seriousness of the act and the consequences it would generally have. The concrete consequences for the injured party should not be decisive for the meting out of damages. The infractions also took place after the amendment to the law on 25 June 2010 with an increase of the maximum penalties for actual bodily harm. This needed to be reflected in the level of damages for non-economic loss.

Reference: HR-2012-1975-A, case no. 2012/269, civil appeal against judgment.

 

Judgment

18 OCTOBER 2012

Criminal law. Repeated driving under the influence. Sentencing.

The punishment for i.a. four incidents of driving under the influence, cf. section 31 subsections 1-3, cf. section 22 subsection 1, of the Road Traffic Act, and six incidents of driving without a license, cf. section 31 subsection 1, cf. section 24 subsection 1 first sentence, of the Road Traffic Act, was set at one year's imprisonment. The offender had 37 prior convictions. 21 of these sentences included 38 incidents of driving under the influence. Reference was made to the fact that the legislator had in connection with the subsequent amendments of section 31 of the Road Traffic Act evaluated the level of punishment for repeated driving under the influence and provided that the earlier strict practice shall be carried on. When the legislator in ordinary preparatory works has explicitly made a decision as to the level of punishment, the court is obliged to comply with this decision. The limitations in section 61 of the Penal Code do not apply to driving under the influence.

Reference: HR-2012-1976-A, case no. 2012/1482, criminal appeal against judgment.

 

Judgment

11 October 2012

Competition law. Cooperation for tenders. Administrative fine.

The Norwegian Competition Authority issued an administrative fine of NOK 2 million against a contracting company for unlawful cooperation for tenders, cf. section 29 cf. section 10 of the Competition Act. The Supreme Court maintained the Competition Authority's determination of the fine. With reference to recent Supreme Court case law it was stated that the issue of an administrative fine under the Competition Act - an administrative sanction which is in the nature of a punishment under Article 6 of the ECHR - requires a clear preponderance of probability that the culpability requirement is satisfied. This applies also to the decision as to whether the infraction is intentional or negligent. The contracting company's conduct was considered to be intentional. The predominant element in the determination of the fine was that the coordination that had taken place had totally undermined the crucial purpose of the traditional announcement of tenders: as effective a competition as possible. Two judges had special comments related to the evidentiary requirement.

Reference: HR-2012-1942-A, case no. 2012/449, civil appeal against judgment.

 

Judgment

11 October 2012

Contract law. Revision of contract. Inheritance of leasing right.

A lease entered into in 1964 was non-terminable for the lessor and linked to an interest-only bond which could only be transferred jointly with the leasing right. From 1985, the premises were sublet with lessor's consent. At the time of the death of the main lessee in 2009, the rent under the main lease amounted to approximately NOK 500 000 and under the sublease approximately NOK 1 450 000. The Supreme Court held that the leasing right did not lapse upon the death of the main lessee, but passed to the spouse who retained undivided possession of the estate. As regards the question of lapse, importance was attached to the fact that the contract was not time-limited and that a solution to the contrary would entail that that the main lessee would lose the bond deposit. There were no grounds for revising the agreement under section 36 of the Contracts Act. The difference in rent was not sufficient. Importance was also attached to the fact that earlier and current subleases were approved by the lessor and that things had not developed very differently from what the lessor ha been able to foresee at the time of the last approval in 1994.

Reference: HR-2012-1938-A, case no. 2012/251, civil appeal against judgment.

 

Judgment

11 October 2012

Value added tax. Legal services abroad.

When carrying out legal assignments for foreign clients a Norwegian law firm shall invoice for the entire assignment - also the part that concerns preparatory work - with VAT, cf. section 16 subsection 1 a of the Value Added Tax Act of 1969. The exemption for so-called "remote services delivery" in Regulation of 23 February 1970 no. 1 section 8 subsection 4 is not applicable, not even if larger or smaller parts of the legal assignment consist of such services.

Reference: HR-2012-1939-A, case no.  2012/23, civil appeal against judgment. 

 

 

Judgment

 

11 October 2012

 

Value added tax. Legal services abroad.

 

When carrying out legal assignments for foreign clients a Norwegian law firm shall invoice for the entire assignment - also the part that concerns preparatory work - with VAT, cf. section 16 subsection 1 a of the Value Added Tax Act of 1969. The exemption for so-called "remote services delivery" in Regulation of 23 February 1970 no. 1 section 8 subsection 4 is not applicable, not even if larger or smaller parts of the legal assignment consist of such services.

Reference: HR-2012-1939-A, case no. 2012/23, civil appeal against judgment.

 

Judgment

10 October 2012

Law of damages. Industrial injury. Death benefit. Surviving dependents.

The surviving spouse of an injured employee who had received compensation for 100% vocational disability, filed a claim for compensation for loss of provider under section 12 subsection 2 of the Industrial Injury Insurance Act, cf. Regulation relating to standardised compensation under the Industrial Injury Insurance Act (the Standardisation Regulation) of 21 December 1990 no. 1027, section 6-1. The Supreme Court held that death benefit cannot be granted to surviving dependents under the industrial injury rules if the injured person has before his death received full compensation for future loss of income. Reference was made to the situation under the general law of damages and importance was attached to avoiding a solution entailing that the tortfeasor had to pay the full loss twice. However, the Supreme Court emphasized that there could be room for a proportional death benefit if the injured party before his death only received compensation for loss of parts of his capacity for work.

Reference: HR-2012-1926-A, case no.  2012/1037, civil appeal against judgment.

 

Judgment

10 October 2012

Administrative law. Law of damages. Predators

Sheep farmers who had lost a large number of animals because of attacks from predators were not granted any compensation under section 12a of the Wildlife Act of 29 May 1981 no. 38, which has now been superseded by section 19 of the Nature Diversity Act of 19 June 2009 no. 100, in that the compensation condition in section 6 cf. section 4 a in Regulation relating to compensation for loss and consequential loss when livestock are killed or injured by predators (the Compensation Regulation) of 2 July 1999 no. 720 was not satisfied. The Supreme Court found that the removal of the grazing animals to other pastures would be a preventive measure which could be taken into consideration in the broad evaluation of available means which needed to be undertaken and concluded that the sheep farmers who had not availed themselves of the county governor's offer to move the animals to other pastures with subsidies from the public authorities had not done what could be reasonably expected to prevent or reduce the loss.

Reference: HR-2012-1925-A, case no. 2012/316, civil appeal against judgment.

 

Order

8 October 2012

Lugano Convention (1988). Enforceability. International law of procedure.

A court order for payment with anticipatory enforcement which was decided by an Italian court could not be executed in Norway as a result of Article 27 No. 2 of the Lugano Convention (1988). That the order had been given anticipatory enforcement entailed that the principle of adversarial proceedings on which Article 27 No. 2 is based had not been sufficiently safeguarded. Reference was made to case law from the EU Court.

Reference: HR-2012-1901-A, case no. 2012/428, civil appeal against interlocutory order.

 

Judgment 

21. September 2012

Social Security Law. Liability Law. Claim for reimbursement. Fault-based liability. Interest. Limitation.

The rule relating to reimbursement in section 22-15 of the Social Security Act does not prevent that reimbursement of wrongfully received social security can in the alternative be claimed pursuant to fault-based liability under the general law of liability. That the claim for reimbursement was in this case statute-barred as a result of the fact that the Statute of Limitations for such claims has been considered to run from the time of the wrongful payment therefore did not prevent the filing of a corresponding claim for compensation which was not statute-barred. The Supreme Court further found that a claim for reimbursement from the public authorities is regarded as a monetary claim in the field of the law of property with the consequence that the Default Interest Act is in principle applicable. However, since the social security authorities had not filed a claim for interest in similar cases the state’s claim for interest under the Default Interest Act must be deemed an act of discrimination which the administration was not justified in carrying out.

Reference: HR-2012-1818-A, case no. 2012/808, civil appeal against judgment.

 

Judgment

21. September 2012

Criminal law. Sentencing. Causing death by dangerous driving  

The penalty for violation of section 239 1^st penal alternative, section 31 subsection 1, cf. section 3 and section 31 subsection 1, cf. section 4, of the Road Traffic Act, cf. section 9 no. 2 subsection 2 of the Traffic Rules, was set at 60 days’ imprisonment. The offender, who drove a long and heavy semi-trailer with extensive blind zones across a pedestrian crossing in a large and heavily trafficked intersection, ran into a woman in the pedestrian crossing. She died from her injuries. The negligence was at the lower level of the area of application of section 239 of the Penal Code. The period of loss was set at three years. No importance was attached to the fact that the defendant was a professional driver.

Reference: HR-2012-1823-A, case no. 2012/1253, criminal appeal against judgment.

 

Judgment

21. September 2012

Criminal law. Sentencing. Mobile crime of gain

The penalty for 64 executed and 18 attempted aggravated thefts, two aggravated handling offences and one handling offence, cf. section 257 cf. section 258 and section 257 cf. 258 cf. section 49 and section 317, was set at a term of imprisonment of seven years and six months. This was a case of what is known as mobile crime of gain in that the offender came from Serbia to Norway exclusively for the purpose of committing crimes of gain. The total gain amounted to several million Kroner. Statements as to the principles relating to this type of crime, including sentencing in case of attempts, and as to the principles for the application of section 59 subsection 2 of the Penal Code if the offender has only confessed to a minor part of the offences. Dissenting votes: 3-2.

Reference: HR-2012-1826-A, case no. 2012/700, criminal appeal against judgment.

 

Judgment

13 September 2012

Public taxes. Water and sewer tax.  

A local authority had pursuant to section 3 of Act of 31 May 1974 no. 17, cf. section 16-4 of the Pollution Regulation, set the annual water and sewer tax with a fixed proportion calculated on the basis of the registered area of use for the buildings and a variable proportion calculated according to consumption. The Supreme Court concluded that it was within the parameters of section 16–4 of the Pollution Regulation to determine the tax in this way. The only restriction in the regulation is that the total taxes shall not exceed the costs. Where a solution in two parts is chosen, the variable part shall reflect the consumption, but it is up to the local authorities to define the criteria according to which the fixed element shall be distributed among the subscribers. Nor could the decision regarding tax be set aside as highly unreasonable.

Reference: Supreme Court 2012–1769–A, case no.2012/489, civil appeal against judgment, written proceedings.

 

Judgment

12 September 2012

Criminal law. Application of the law. Hunting. Search. Sentencing.

In a case related to violation of section 56 cf. section 26 of the Hunting Act, cf. section 27 subsection 1 of Regulation related to Hunting, Felling and Fishing, the Supreme Court set the reaction at a suspended fine of NOK 6 000. The defendant shot a moose while the search was on for another moose that had been shot and wounded by another member of his hunting party. The Supreme Court majority found that the prohibition against hunting contained in section 27 subsection 1 3rd sentence of the Regulation was in effect for as long as the search for the wounded animal was effectively on, even if the hunting party no longer had the right and obligation to continue the search and the search had been taken over by another hunting party, cf. section 27 subsection 1 fourth and fifth sentences of the Regulation. It was stated that in order for the court's reaction to act as a general deterrent a noticeable sentence should be imposed. Due to the time that had elapsed the fine was supsended, cf. section 52 no. 1 of the Penal Code. Dissenting votes 4-1.

Reference: HR-2012-1757-A, case no.2012/1175, criminal appeal against judgment.

 

Judgment

12 September 2012

Tax law. Limited partnership. Deduction for loss.

An intra-group transfer of the limited partnership share in a wholly owned German limited partnership caused a significant loss. The Supreme Court, which took for its basis that the classification of the limited partnership shall be based on Norwegian law, found that the partnership corresponded to a Norwegian limited company in that no partner had unlimited liability. The general partner had no independent financial interest in the partnership and could not be regarded as a partner. The formal management function was not considered to be sufficient. The transferring group company was not granted a tax deduction for the loss under section 2-38 subsection 2 of the Tax Act.

Reference: HR-2012-01759-A, case no.2012/492, civil appeal against judgment.

 

Judgment

10 September 2012

Tax law. Property tax. Floating landing stages. Valuation.

A local authority's claim that floating landing stages were to be included in the valuation basis for the calculation of property tax for a marina business was upheld by the Supreme Court. It was taken for a basis that floating landing stages are comprised by the term "landing stages" in section 4 subsection 2 of the Property Tax Act and must accordingly be regarded as part of the real property, provided that they are stationary and attached to the locality. This condition was satisfied by the landing stage facility being a prerequisite for the general operation on the property and that it was made with a view to permanent location. Valuation based on the discounting of objectivised future rental revenues to present value was in compliance with general valuation principles for the appraisal of commercial property and reflected the objectivised market value, cf. sections 4 and 5 of the Town Taxation Act 1911, cf. section 33 subsection 2 of the Property Tax Act.

Reference: HR-2012-1746-A, case no.2012/359, civil appeal against judgment.

 

Judgment

6 September 2012

Water course rights. Waterfall rights.  «Special legal circumstances».  

A farm bordering on the Kaupanger river was separated from the Kaupanger main farm and sold in 1949. The water course rights were not mentioned in connection with the sale. The Supreme Court majority concluded that no special legal circumstances had been rendered probable entitling the main farm to retain these rights, cf. section 13 of the Water Resources Act. A general preponderance of probability that the rights belong to someone other than the owner of the river bed is sufficient, but neither the parties' agreement, other transfers where reservations were made, nor subsequent circumstances provided sufficient indications that the water course rights were not part of the transfer. Dissenting votes 3–2.
Reference: HR–2012–1734–A, case no. 2012/247, civil appeal against judgment.  

 

JUDGMENT

6 September 2012

Criminal law. Actual bodily harm. Sentencing.  

The penalty for violation of section 229 first penal alternative of the Penal Code was set at 5 months' imprisonment. The offender had struck the victim with his fist resulting in a broken nose and the victim being sick listed for more than two weeks. The Supreme Court stated that the actual bodily harm was within the core area of acts of violence for which there is a desire to increase punishment by the Amendment Act of 25 June 2010 no. 46, in that the act of violence was perpetrated in a public space and to a taxi driver. 

Reference: HR–2012–1726–A, case no. 2012/735, criminal appeal against judgment.

 

Judgment

28 August 2012

Criminal law. Abuse in close relations. Sentencing

The penalty for violation of section 219 subsection 1 of the Criminal Code was set at 7 months’ imprisonment. The abuse concerned the offender’s mother with whom he was living and consisted in him on at least eight occasions having twisted and pulled his mother’s ears in order to get her upstairs and to bed. Importance was attached to statements in preparatory works that the penalty for abuse in close relations should in general be stricter than for comparable crimes of violence, and it was pointed out that the elderly have a special right to protection from violence and that the elderly with diminished mental faculties are a particularly vulnerable group.

Reference: HR–2012–1693–A, case no. 2012/1235, criminal appeal against judgment.

 

Judgment

28 August 2012

Criminal law. Crimes of violence and gain. Young offender.

The penalty for a series of crimes of violence and gain, including two robberies and two attempted robberies, before the offender had attained the age of 18, and one robbery and actual bodily harm under particularly aggravating circumstances, cf. section 268 subsection 1 of the Penal Code, cf. section 267 subsection 1 and section 229 1^st penal alternative cf. section 232, of the Penal Code after turning 18, was set at one year’s imprisonment, si months of which were suspended. There were no grounds for reacting with community service.

Reference: HR-2012-1695-A, case no. 2012/1199, criminal appeal against judgment. .

 

Judgment

28 August 2012

Criminal law. Sentencing. Narcotics. Fenazepam.

The penalty for storing of 65 000 tablets and 600 grams of the mixture of benzodiazepine fenazepam, totalling 10.3 kilos, the equivalent of 300 000 user doses, cf. section 162 subsections 1 and 3 1^st sentence of the Penal Code, was set at four years’ imprisonment. The fact that the storing took place before fenazepam was added to the narcotics list did not entail that this constituted an excusable involuntary ignorance of the law, cf. section 57 of the Penal Code.

Reference: HR-2012-1694-A, case no. 2012/529, criminal appeal against judgment.

 

Judgment 

27 August 2012

Criminal law. Extended confiscation. Derelection.

In order to prevent extended confiscation under section 34a of the Penal Code the offender must prove that the concrete acquisition was paid for with legal income and in addition render probable that the total legal income exceeds what may be assumed to have been spent on ordinary consumption. Only then is it possible to build up assets that are protected from confiscation. In this connection only income which, on a balance of probabilities, are deemed legal shall be included. The findings of derelinquished goods shall not be considered in any other way than other legal income.

Reference: HR-2012-01689-A, case no. 2012/617, criminal appeal against judgment.

 

Judgment

27 August 2012

Criminal law. Tax evasion. Tax amnesty. Sentencing.  

For evasion of own tax in the amount of around NOK 728 000 and aiding and abetting the evasion of someone else’s tax in the amount of around NOK 1 000 000, cf. section 12–1 no. 1a, cf. section 12–2 of the Tax Assessment Act, the reaction was a deferment of sentencing, cf. section 52 no. 1 first alternative of the Penal Code. The offender had voluntarily requested a correction of the assessment information and satisfied the tax amnesty requirements, cf. section 10–4 no. 3 of the Tax Assessment Act as the provision read until 1 January 2010. Even if the tax amnesty basically only concerned the offender’s own tax evasion, the Supreme Court concluded that that this must also be made applicable to the aiding and abetting of the other taxpayer’s evasion in that the major part of the income and assets with which the case was concerned was the result of the concerted activities of these two. Essential importance was attached to the considerations behind the amnesty system and to the fact that the authorities through their information about the system had created an impression that voluntary correction entailed amnesty from punishment. The penalty for aiding and abetting three other persons’ tax evasion totalling around NOK 425 000 kroner, cf. section 12–1 no. 2 cf. section 12–1 no. 1 of the Tax Assessment Act, was set at a term of imprisonment of 120 days, 60 days of which were suspended. A reduction of the sentence was granted for confession, cf. section 59 subsection 2 of the Penal Code, and because the case had taken an unreasonably long period of time, cf. Article 6 no. 1 of the ECHR

Reference: HR-2012-1680-A, case no. 2012/921, criminal appeal against judgment.

 

Judgment

27 August 2012

Criminal law. Sentencing. False accusation of rape.                                                            

In a case concerning sentencing for false accusation of rape, cf. section 168 1^st penal alternative, the Supreme Court stated that the gravity and the insult implicit in a false accusation of rape have increased after the penalty level for rape has been significantly raised in recent years. Based on the gravity of the criminal act and the strong general deterrent considerations that came into play, there were no grounds for altering the sentence imposed by the Court of Appeal, i.e. a term of imprisonment of 7 months, 90 days of which were suspended.

Reference: HR-2012-1677-A, case no. 2012/1054, criminal appeal against judgment. 

 

JUDGMENT

27 August 2012

Criminal law. Sentencing. Narcotics. Rivotril. 

The penalty for dealings with 210 tablets of the benzodiazepine Rivotril (clonazepam) was set at a term of 65 days’ imprisonment. In the sentencing it was taken for a basis that the quantity was the equivalent of 420 1 mg rohypnol tablets. No comparison to hashish was made unlike in earlier cases.

Reference: HR–2012–1676–A, case no. 2012/741, criminal appeal against judgment.

 

Interlocutory Order

31 July 2012

Civil procedure. Deposition

 Request for deposition in a case related to compensation for loss of sheep on rough grazing killed by wolf, cf. section 27 subsection 1, cf. subsection 21-11 subsection 1 b. The adduction of evidence requested by the appellants concerned a central point in the assessment of evidence, which was thoroughly elucidated in the Court of Appeal. In this light the Supreme Court could not see that the examination of witnesses was liable to strengthen the decision- making basis for the issues that were to be heard by the Supreme Court. The request was disallowed.

Reference: HR-2012-1540-F, case no. 2012/316, civil appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Premeditated murder. Attempt. Sentencing.

The sentence for attempted premeditated murder committed after the sentencing level was raised by the amendment of 25 June 2010 no. 46, cf. section 233 subsections 1 and 2, cf. section 49, of the Penal Code was set at 9 years’ imprisonment. The offender had forced his way into the flat of his former girlfriend and stabbed her repeatedly with a knife inflicting lethal injuries on her. Reference was made to case law related to earlier sentencing levels and signals in the preparatory works as to the extent of the increased sentencing level for perpetrated murder. The fact that the situation – including threats which the offender was also convicted for – persisted over a long period of time – also carried weight as an aggravating circumstance.

Reference: HR-2012-1330-A, case no.  2012/656, criminal appeal against judgment.

  

Interlocutory Order

28 June 2012

Criminal Procedure. Confiscation. Dismissal. Legal force

After the owner had been convicted with final and binding force of misappropriation of funds from his own company, the company brought a claim for the amount confiscated from the offender to be used to cover its claim for compensation, cf. section 37d subsection 2 of the Penal Code. Contrary to the Court of Appeal, the Supreme Court found that the case was to go forward. The fact that the Court of Appeal during the criminal proceedings had stated that there would be no question of using the proceeds to meet the aggrieved company’s claim, did not entail any legal effects in relation to the company since it had not presented any claim or acted as a litigant party during the criminal proceedings.

Reference: HR-2012-1332-A, case no. 2012/208, criminal appeal against an interlocutory order.

 

Judgment

28 June 2012

Criminal law. Understanding of the law. Rape. Sexual activity. Sentencing

The term “sexual activity” in section 192 subsection 1 a of the Penal Code does not provide any condition that the act must be sexually motivated. The defendant’s act, which consisted in him having threatened the victim to undress and having stuck one or more fingers into her vagina to search for something that he believed she had taken from him, therefore came under the relevant provision. Nor was the lack of sexual motivation an extenuating circumstance. The Supreme Court found that the correct starting point for the sentence would have been two years and three to six months, but since the prosecuting authority had not given notice that they would be asking for an increase of the sentence in the respondent’s notice and in the oral proceedings before the Supreme Court considered themselves bound by this, the Court of Appeal’s sentence of two years’ imprisonment remained unchanged. One year was suspended due to the fact that the case had become old.

Reference: HR-2012-1337-A, case no. 2012/384, criminal appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Actual bodily harm. False accusation. Sentencing. Drug programme.

Sentence for an unprovoked kick to the head of an unknown man with great force, cf. section 228 subsection 1 after the raise of the sentencing level by Act of 25 June 2010 no. 46, cf. section 232 of the Penal Code, and for having given a false name upon his arrest, cf. section 168 1^st penal alternative, of the Penal Code, was set at a term of imprisonment of 9 months. The defendant had a previous conviction for violence. Section 61 of the Penal Code was not made directly applicable, but the earlier convictions carried weight as part of a discretionary overall assessment. It was not natural to characterize earlier convictions for violence as drug related, nor were there any grounds for a suspended sentence subject to the condition of a drug programme with court supervision, cf. section 53 no. 3 e of the Penal Code.

Reference: HR-2012-1338-A, case no. 2012/406, criminal appeal against judgment 

 

Judgment

28 June 2012

Criminal law. Premeditated murder. Attempt. Sentencing.

The sentence for attempted premeditated murder committed after the sentencing level was raised by the amendment of 25 June 2010 no. 46, cf. section 233 subsections 1 and 2, cf. section 49, of the Penal Code was set at 9 years’ imprisonment. The offender had forced his way into the flat of his former girlfriend and stabbed her repeatedly with a knife inflicting lethal injuries on her. Reference was made to case law related to earlier sentencing levels and signals in the preparatory works as to the extent of the increased sentencing level for perpetrated murder. The fact that the situation – including threats which the offender was also convicted for – persisted over a long period of time – also carried weight as an aggravating circumstance.

Reference: HR-2012-1330-A, case no.  2012/656, criminal appeal against judgment.

 

Interlocutory Order

28 June 2012

Criminal Procedure. Confiscation. Dismissal. Legal force.

After the owner had been convicted with final and binding force of misappropriation of funds from his own company, the company brought a claim for the amount confiscated from the offender to be used to cover its claim for compensation, cf. section 37d subsection 2 of the Penal Code. Contrary to the Court of Appeal, the Supreme Court found that the case was to go forward. The fact that the Court of Appeal during the criminal proceedings had stated that there would be no question of using the proceeds to meet the aggrieved company’s claim, did not entail any legal effects in relation to the company since it had not presented any claim or acted as a litigant party during the criminal proceedings.

Reference: HR-2012-1332-A, case no. 2012/208, criminal appeal against an interlocutory order.

 

Judgment

28 June 2012

Criminal law. Understanding of the law. Rape. Sexual activity. Sentencing

The term “sexual activity” in section 192 subsection 1 a of the Penal Code does not provide any condition that the act must be sexually motivated. The defendant’s act, which consisted in him having threatened the victim to undress and having stuck one or more fingers into her vagina to search for something that he believed she had taken from him, therefore came under the relevant provision. Nor was the lack of sexual motivation an extenuating circumstance. The Supreme Court found that the correct starting point for the sentence would have been two years and three to six months, but since the prosecuting authority had not given notice that they would be asking for an increase of the sentence in the respondent’s notice and in the oral proceedings before the Supreme Court considered themselves bound by this, the Court of Appeal’s sentence of two years’ imprisonment remained unchanged. One year was suspended due to the fact that the case had become old.

Reference: HR-2012-1337-A, case no. 2012/384, criminal appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Actual bodily harm. False accusation. Sentencing. Drug programme.

Sentence for an unprovoked kick to the head of an unknown man with great force, cf. section 228 subsection 1 after the raise of the sentencing level by Act of 25 June 2010 no. 46, cf. section 232 of the Penal Code, and for having given a false name upon his arrest, cf. section 168 1^st penal alternative, of the Penal Code, was set at a term of imprisonment of 9 months. The defendant had a previous conviction for violence. Section 61 of the Penal Code was not made directly applicable, but the earlier convictions carried weight as part of a discretionary overall assessment. It was not natural to characterize earlier convictions for violence as drug related, nor were there any grounds for a suspended sentence subject to the condition of a drug programme with court supervision, cf. section 53 no. 3 e of the Penal Code.

Reference: HR-2012-1338-A, case no. 2012/406, criminal appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Attempted murder. Preventive custody. Minimum time. Sentencing.

While serving a 9-year sentence for murder the offender was sentenced to preventive custody for attempted murder, cf. section 233 cf. section 49, of the Penal Code. With reference to statements in the preparatory works of the act the Supreme Court concluded that the remaining term of the prison sentence can be taken into consideration when determining the minimum time and the timeframe for the preventive custody, cf. section 39 subsection 3 of the Penal Code. The attempted murder would, seen in isolation, have warranted a prison sentence of close to seven years. The timeframe for the preventive custody was set at ten years and six months, and the minimum time at six years. Statements as to how the detailed calculation of the minimum time in a case such as the one at hand should be made.

Reference: HR-2012-1339-A, case no. 2012/437, criminal appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Drugs. GBL. Application of the law. Sentencing.

Three men were convicted for the import of  gamma butyrolactone (GBL). On the basis of expert opinions, which inter alia compared the user dosages for GBL and hash, the Supreme Court concluded that one kilo of hash is the equivalent of around10 litres of GBL. This meant that involvement with approximately 10 litres of GBL was sufficient for the offence to be regarded as serious, cf. section 162, subsection 1 cf. subsection 2 of the Penal Code. Punishment for the import of 100 litres and attempted import of 80 litres was set at three years’ imprisonment. Punishment for the import of 60 litres as a courier was set at imprisonment of one year and nine months.

Reference: HR-2012-1340-A, case no. 2012/488), criminal appeal against judgment.

 

Judgment

28 June 2012

Damages for non-economic loss. Sentencing. Rape to sexual activity. Minors.

Amount of damages for non-economic loss for rape to engaging in sexual activities with two children of less than 10 years of age, cf. section 195 subsection 1st penal alternative, cf. section 192 subsection 1 b of the Penal Code, was set at NOK 120 000 for each of the victims, cf. section 3-5 cf. section 3-3 of the Compensatory Damages Act. The abuse took place while the children were asleep. The Supreme Court referred to the victims’ age, that it was a question of serious violations of integrity and that the abuse was photographed.

Reference: HR-2012-1341-A, case no. 2012/34, civil appeal against judgment.

 

Judgment

28 June 2012

Criminal law. Extension of custody.

The prosecuting authority requested an extension of custody for a convicted person who had been released on parole from a preventive custody sentence for sexual abuse of minors. Also in the case of a parolee the timeframe may be extended under section 39e 2^nd sentence of the Penal Code. However, based on a concrete assessment, the Supreme Court found that there was now not any obvious danger of new and serious offences, cf. 39c no. 1 of the Penal Code. The court found for the offender as regards the request for an extended preventive custody.. Reference: HR-2012-1342-A, case no. 2012/653 criminal appeal against judgment. .

 

Judgment

27 June 2012

Criminal law. Child care. ECHR. Committal. Double prosecution. Parallel prosecution.

A 16-year old boy was committed to a child care institution under section 4-24 subsection 2 cf. subsection 1 of the Child Welfare Act due to serious behavioural difficulties and repeated criminal activities. After the child care measure criminal charges were filed for essentially the same offences. The Supreme Court, which stated that the penal concept is the same in ECHR Protocol 7, article 4 (P 7-4) as in ECHR Articles 6 and 7, concluded that there were no grounds for deviating from Rt-2003-1827, according to which committal under the criminality alternative in section 4-24 subsection 1 of the Child Welfare Act entailed punishment in the sense of P 7-4. The Supreme Court further concluded that it was the same facts that formed the basis of the committal and the criminal case, which meant that the requirement as to identity between the child welfare case and the criminal case was met, cf. EMD-2003-14939, but that there was such connection in terms of time and facts between the cases that this constituted legal parallel prosecution. The appeal against the Court of Appeal’s conviction in the criminal case was quashed.

Reference: HR-2012-1323-A, case no. 2012/361, criminal appeal against judgment.

 

Judgment

27 June 2012

Intellectual property right. Trademark. Vicarious liability. Damages for non-economic loss. The Tripp Trapp chair.

In 2007-2008, Trumf AS marketed and sold a high chair – the Oliver Chair - which had common denominators with the Tripp Trapp chair. The Supreme Court held, inter alia on the basis of expert evaluations and a corresponding evaluation by courts in several other countries, that the Tripp Trapp chair must undoubtedly be regarded as intellectual property. The Oliver chair was a very close imitation of the Tripp Trapp chair and accordingly infringed  its intellectual property right protection. The manufacturer was awarded damages for the infringement based on estimated lost contribution margin. The innovator was awarded damages for infringement of his ideal interests, cf. section 55 subsection 1, 2nd sentence, of the Intellectual Property Act. Vicarious liability was deemed to have been triggered by decisions made by Trumf AS’ purchase manager. Trumf AS had also infringed the manufacturer’s trademark , “The chair that grows with the child”, by marketing the Oliver chair with “This great high chair grows with your child.”

Reference: HR-2012-1325-A, case no. 2011/2020, civil appeal against judgment.

 

Judgment

27 June 2012

Criminal law. Abuse in family relations. Sentencing. Community service.

A 45-year-old man had on 14-15 occasions threatened to kill his separated wife and their children and had twice been violent to one of the children. The Supreme Court majority held that in principle punishment under section 219 of the Penal Code should be set at 8 months’ imprisonment and that there were no weighty grounds for justifying community service. Under strong doubt, however, the majority concluded that the far-reaching consequences which a long prison sentence might have for the offender’s employment possibilities suggested that 120 days of the 8-month sentence be suspended. Judgment was passed with dissenting votes 3-2.

Reference: HR-2012-1326-A, case no. 2012/320, criminal appeal against judgment. .

 

Order

26 June 2012

Judges’ affirmation. Lawfully composed court.

Under section 60 of the Courts of Justice Act, professional judges are required to make a written judge’s affirmation. Such an affirmation by a court of appeal judge was not found in the files of the Norwegian Courts Administration or in the Ministry of Justice, and the judge himself did not remember whether he had signed a judge’s affirmation. After a review of the case history, the Supreme Court found that on a balance of probabilities the judge had made a judge’s affirmation. It could not be a requirement that the affirmation be produced or in some other way certified. Under any circumstances, the absence of a judge’s affirmation could not constitute an absolute ground for a dismissal under section 29-21 subsection 2 b of the Disputes Act or section 343 subsection 2.3 of the Criminal Procedure Act. It was stated that no guarantee of due process of law is violated if the absence of a judge’s affirmation does not carry weight as an absolute ground for a dismissal.

Reference: HR-2012-1312-A, case no. 2012/398, civil appeal against order.

  

Judgment

25 June 2012

Tax law. Assessment decision. Community of interest. The courts’ competence.         

In a tax case the Supreme Court concluded that the courts cannot review the discretionary assessment in section 13-1 subsection 3 of the Taxation Act to a larger extent than what follows from the rules concerning the exercise of discretionary powers by administrative authorities. Reference was made to the fact that the limited right of review is established in case law. The wording and background history of the provision and a comparison with the courts’ right to review decisions made under section 8-2 of the Tax Assessment Act also supported this understanding. The Tax Appeal Board’s assessment was not arbitrary or highly unreasonable and there were no grounds for setting the decision aside.

Reference: HR-2012-1296-A, case no. 2011/1861, civil appeal against judgment

 

Order

25 June 2012

Appeal quashed

Notice of appeal was filed on 19 June 2012. The case came to the Supreme Court on 22 June 2012. By that time the appeal proceedings in the main action had already started and the relevant witness had been examined. The appeal must therefore be set aside, cf. section 29-2 subsection 3, cf. section 30-3, cf. inter alia Rt-2012-416.

Reference: HR-2012-1292-F, case no. 2012/1123, civil appeal against order.

 

Decision

25 June 2012

Experts. Narcotics. Fenazepam.

Professor Asbjørg S. Christophersen and Trond Oskar Aamo, head of section, appointed as experts before the Supreme Court in case no. 2012/529. The experts were given the mandate to present an opinion as to how hazardous fenazepam is, what is regarded as an average user dosage of the substance used illegally as an intoxicating substance and assess the degree of hazard/intoxication potential, including which narcotic substance it would be natural to compare it with.

SAKSGANG: Høyesterett HR-2012-1301-F, case no.  2012/529), straffesak, anke over dom.

 

Decision

25 June 2012

Expert. Narcotics. Rivotril.

Chief physician Liliana Bachs appointed as an expert before the Supreme Court in case no. 2012/741. The expert is given the mandate to give an account of the drug Rivotril and its lawful use, an average user dosage of the substance used illegally as an intoxicating substance, the number of intoxicant dosages in the drugs seized, and the degree of hazard/intoxication potential, including which narcotic substance(s) it would be natural to compare it with.

Reference: HR-2012-1302-F, case no.  2012/741, criminal appeal against judgment.

 

Judgment

22 June 2012

Fencing obligation. Railway. Responsibility for providing fencing along the Dovre Line.

The case concerned a claim from four municipalities that the Norwegian National Railway Administration provide fencing along the railway tracks. The municipalities submitted that upon the following up of the Storting's plenary decision of 18 August 1911 the state became bound under contract law to erect and maintain a fence intended to keep out horses, cattle and sheep. It was emphasized that the gist of the submission is not that the plenary decision per se binds the state, but that the obligation follows from the fact that the districts accepted the offer made by the administration on the basis of the decision. The Supreme Court majority found that no agreement relating to a fencing obligation had been made at the time in question. Nor did any obligation to erect a fence follow from the conditions for the appraisement. These were admittedly based on the assumption that a fence was to be erected, at least for some sections, but they could not be interpreted to mean that the railway had a duty of specific performance. Even if a fencing obligation could in principle be established by age and use over time, there was no basis for this here. Dissenting votes 3-2.

Reference: HR-2012-1282-A, case no. 2011/1596, civil appeal against judgment.

 

Judgment

21 June 2012

Labour law. Transfer of undertaking. Secondment agreement.

The case concerned a claim for employment based on the rules related to transfer of undertaking contained in the Working Environment Act. In the first place, the question was whether a transfer of undertaking comprised by chapter 16 of the Act had taken place. Secondly, the question was whether persons who were seconded to drilling rigs according to what is known as secondment agreements had such connections to the rig as a workplace that the rules related to transfer of undertaking  applied to them. The Supreme Court agreed with the Court of Appeal that the conditions for transfer of undertaking were satisfied. Even if the employees were formally employed somewhere else, they were entitled to invoke the rights provided by chapter 16 of the Working Environment Act since they had sufficient connection to the actual workplace. That the employees who were seconded were subject to a secondment duty was irrelevant. The employees were also entitled to compensation for financial loss suffered under the non-statutory rules related to liability in contractual relationships.

Reference: HR-2012-1280-A, case no. 2011/2085, civil appeal against judgment.

Read the whole decision

 

Order

19 June 2012

Civil procedure. Taking a child into care. Lapse of administrative decision on coercive measures. Judicial review.

The Court of Appeal quashed an action concerning the judicial review of a decision to take 2 children into the care of the child welfare services with reference to the fact that the children had in fact already been returned. Under section 36-1 subsection 2 2nd sentence of the Disputes Act the court shall quash the action if the county social welfare board makes a revocation order under section 4-21 of the Child Welfare Act while the case is still pending. The issue submitted to the Appeals Committee was whether the provision also comprises cases where the child welfare services return the children without submitting the issue to the county social welfare board. The Appeals Committee found that the Court of Appeal should have made a decision on the merits of the case regarding the question of a revocation order. The action must be brought before the Court of Appeal.

Reference: HR-2012-1262-A, case no. 2012/379, civil appeal against order.

 

Judgment

18 June 2012

Contamination. Claim for costs of clearing up.

The pollution authorities claimed repayment from the landowner for the authorities' costs involved in clearing up a strongly contaminated plot of land. The contamination was caused by an earlier leaseholder. The Supreme Court held that it followed from section 7 subsection 2, compared with subsection 1, of the Pollution Control Act, that the landowner was responsible for the contamination, regardless of whether the property was already contaminated when he bought it. The preparatory works of the Act did not provide grounds for any other result. Exceptions are only conceivable if liability becomes quite unreasonably onerous, or if it constitutes an abuse of authority to direct the claim against the landowner instead of whoever is responsible for the contamination. It was beyond doubt that the authorities were in this case entitled to claim repayment under section 76 subsection 1 1st sentence, cf. section 74 subsection 2. There was no basis for any reduction under section 76 subsection 4.

 

JUDGMENT

15 June 2012

Criminal law. Insurance fraud. False charges. Sentencing. Community service.

In a case concerning insurance fraud and false charges, cf. section 272 subsection 1 of the Penal Code and section 171 no. 1 of the Penal Code, the defendant was sentenced to 60 hours of community service, cf. section 28a of the Penal Code. Special importance was attached to the fact that the defendant withdrew the insurance claim before the insurance company suspected fraud, thereby substantially preventing the harmful consequences, cf. section 59 subsection 1 of the Penal Code. Reference was also made to the fact that he confessed during the first interview, cf. section 59 subsection 2 of the Penal Code, and that the case was subsequently left lying for eight months with the police.

Reference: HR-2012-1243-A, case no. 2012/474, criminal appeal against judgment.

 

Judgment

14 June 2012

Social security law. Occupational disease. Occupational injury. Causation requirement.

The case concerned the understanding and application of section 13-4 subsection 2 a of the Social Security Act, which contains a requirement that the "clinical picture is characteristic and in accordance with what the relevant influence may cause" in order for an occupational disease to be approved as an occupational injury. The Supreme Court found that the Court of Appeal and the Social Security Appeal Tribunal had relied on an incorrect understanding of section 13-4 subsection 2 a of the Social Security Act. This error could have had a bearing on the outcome of the case, and the appellant's claim that the Social Security Appeal Tribunal's interlocutory order was invalid was upheld.

Reference: HR-2012-1232-A, case no. 2011/2057, civil appeal against judgment.

                                                      

Order

14 June 2012

Civil procedure. Deposition. Disclosure of written statement.

The appellant objected to the disclosure of two statements in the hearing of a tax case in the Supreme Court. The Appeals Committee observed that disclosure was subject to the condition that in connection with the deposition it would be possible to examine the persons who had made the statements. None of the parties had requested a deposition within the stated time-limit and the written statements were inadmissible, cf. section 21-12 subsection 2 of the Disputes Act. Reference: HR-2012-1244-F, case no. 2012/505) civil appeal against judgment.

Reference: HR-2012-1254-A, case no. 2012/285, civil appeal against judgment.

 

Judgment

13 June 2012

Question whether the imposition of payment of interest under the National Insurance Act blocks subsequent criminal prosecution for fraud

Question whether the imposition of interest under section 22-17 a of the National Insurance Act blocks subsequent criminal prosecution for fraud, cf. P 7-4 of the ECHR.

1. deluded NAV (Norwegian Labour and Welfare Administration) employees into making an excess payment of NOK 75 486 by way of daily allowance. He had omitted listing on his reporting cards all the hours he had worked. A decision was made for the repayment of the amount plus interest. Interest was, pursuant to the law, set at 10 per cent of the amount which he had unrightfully been paid by way of benefit. The size of the interest payment is independent of the length of time the recipient of the payment has had the wrongfully received money in his possession. Later, an action was filed and in the District Court A was sentenced to 36 hours’ of community service. In a direct appeal to the Supreme Court it was argued that the interest added constituted a punishment in the sense of the ECHR and that the criminal action should have been dismissed because it represented double prosecution.

The Supreme Court held that the interest added could not be regarded as a punishment. None of the so-called Engel criteria: national characteristics, nature of the standard and the content and severity of the sanction, suggested that the interest added was a punishment in the sense of the Convention. It was set out in the preparatory works that the purpose of the interest was loss of use compensation, which suggested that the adding of interest did not constitute a punishment. The law provides that the imposition of interest is subject to intent or gross negligence. This pointed in the direction of the adding of interest constituting a punishment, but was not decisive since the requirement of culpability did not alter the nature of the adding of interest from a loss of use compensation routinely established to a penal sanction. The criminal action was rightly not dismissed by the District Court.

Reference: HR-2012-01228-A, case no. 2012/306, criminal appeal against judgment.

 

Order

12 June 2012

Criminal Procedure Act (1981) section 434

The Appeal is dismissed as regards the civil claims.

Reference: HR-2012-1215-F, case no. 2011/346, criminal appeal against judgment.

 

Judgment

11 June 2012

The case concerned the payment of forestry compensation after nature conservation in state commons

The case concerned the question whether forestry compensation after nature conservation in state commons shall be paid into the commons account, which is controlled solely by the commons board, or into a commons fund, which is managed by the commons board and Statskog SF jointly, cf. section § 1-4, subsections 1 and 2 respectively, of the Act on Forestry etc. in the State Commons. The issue was furthermore whether the commons board can in such a dispute claim costs covered from the commons fund. The question had also been raised whether the commons board could act as a litigant party. The relevant commons were what is known as loss commons, which means that forestry in the commons is not sufficient to meet the need for wood of those with rights of estovers. Those with rights of estovers, represented by the commons boards, alleged that the forestry compensation must accrue to them since it is them - and not the landowner - who suffer a loss due to the fact that forest industry is no longer possible.

The Supreme Court unanimously held that forestry compensation after a nature conservation decision shall go into the commons fund. This follows from the system of the law, from the wording of section 1-4 of the Act, and is furthermore clearly stated in the preparatory works of the provision and in the rules relating to the use for both commons. A submission that this solution is incompatible with the barriers set out in section 105 of the Norwegian Constitution and ECHR P 1-1 was not upheld.

The distribution of the funds in the commons fund is subject to agreement between Statskog and the commons board. In the absence of agreement, the commons board was not entitled to claim its costs from the fund.

The parties had made an agreement to deposit the forestry compensation into escrow until the dispute between them regarding to which party the compensation was payable had been resolved. As a party to such an agreement those with rights of estovers represented by the commons boards also had capacity to sue and be sued in the dispute which formed the basis of the deposit.

Reference: HR-2012-01210-A, Case no. 2012/64, civil appeal against judgment.

 

Order

8 June 2012   

Civil procedure. Disclosure from associations and groups.

In an appeal case before the Supreme Court two Facebook groups and seven associations had submitted a joint written contribution citing section 15-8 subsection 1 a of the Disputes Act. The preliminary judge found that none of the Facebook groups could be regarded as an "association" in the sense of the provision. The contribution was rejected to the extent that it was submitted on behalf of these groups. The interests which the contribution attempted to shed light on were of a general nature in terms of guarantee of due process of law. It was therefore also rejected to the extent that it was submitted on behalf of two associations which could not be said to be natural representatives of these interests.

Reference: HR-2012-1205-F, case no. 2012/398, civil appeal against interlocutory order

 

Judgment

6 June 2012

Decision whether the marking of a coastal path at Nesodden is valid

The local authorities failed to reach an amicable settlement with all the landowners concerning an approximately 10 km long coastal path on the west side of Nesodden, from Fjellstrand to Fagerstrand. Following an application from the local authorities, the Directorate for Nature Management gave its permission to marking and signposting pursuant to section 35 of the Outdoor Recreation Act making it clear that the path is open to the general public. One of the landowners appealed against the decision to the Ministry of the Environment, which affirmed the Directorate’s decision. The landowner brought an action claiming that the decision was invalid.

Like the District Court and the Court of Appeal, the Supreme Court held that the decision is valid. The marking and signposting of a coastal path is perfectly in line with the object of the Outdoor Recreation Act, i.e. not only to ensure the right to access and passage but also to promote such recreational activities as the path invites. The right to access to and passage through uncultivated land in general, and the beach area in particular, is given strong legal protection. However, routes and hiking paths can only be marked and signposted in uncultivated land and the issue of the case was whether the path went through cultivated land because public access and passage would “unduly hinder” the owner or user”, cf. section 1 a of the Outdoor Recreation Act.

The Supreme Court referred to case law, from which it appears that the unduly hinder standard is strict, that the landowners in the beach areas have to accept letting the general public get close and that the discretionary assessment must depend on local circumstances. For a coastal path – where access and passage are per se central – the possibilities of alternative routes should carry less weight. At any rate, where it is a question of measures facilitating access, as in this case, it is obvious to bring the probability of a future increase in the number of people passing through into the evaluation of “unduly hinder”.

In the evaluation of the concrete circumstances, the Supreme Court took for its starting point the fact that the main houses and their surrounding outdoor spaces are naturally placed on a plateau 4-5 metres above the path where the owner has established spacious and screened areas. Under such circumstances, it is of minor importance that on certain days the general public’s passage will be more noticeable around bathing huts and jetties. Even if the marking as a coastal path may lead to a certain increase in the passage of people, there is no basis for assuming that this may result in “unduly hindering the owner or user”. The possible alternative route is – as a coastal path – clearly less attractive.

The landowner had – being aware of the local authorities’ plans to ensure the general public’s access – by extensive works essentially changed the nature of the area so that the beach area appeared clearly more private than before these works were carried out. These measures were irrelevant in the evaluation of the question whether the general public’s access and passage are unduly hindering the owner or user, but they increased the need for marking and signposting.

Reference: HR-2012-01183-A case no. 2012/110, civil appeal against judgment.

 

Judgment

6 June 2012

Validity of prenuptial agreement

The case concerned the validity of a prenuptial agreement.

The prenuptial agreement determined inter alia that existing and future companies were the husband's separate property but that, in the event of the cessation of the marriage, the wife would receive a percentage of the shares in these and that the percentage would depend on the length of the marriage if the parties were divorced.

The wife submitted that section 42 of the Marriage Act does not provide for a stepwise phasing out of a separate property arrangement and that the prenuptial agreement was accordingly invalid. The Supreme Court attached decisive weight to the fact that the wording does not clearly rule out agreements for a stepwise phasing out of a separate property arrangement, finding that they must be accepted. However, this concrete agreement was of a different nature. Here there was no question of a separate property gradually becoming community of property, but the wife was to have a certain proportion of the husband’s separate property upon cessation of the marriage. The question whether it is possible to agree that a part of the separate property shall accrue to the other party in connection with the division of the estate was not an issue for consideration by the Supreme Court. The wife’s appeal was accordingly quashed.

Reference: HR-2012-01182-A, case no.2011/1939, civil appeal against judgment. 

 

Judgment

24 May 2012

Indictment for abuse in close relationships

The case concerned indictment for abuse in close relationships, and the issue was whether section 219 subsection 1 of the Penal Code should have been applied to a case where it was a question of three isolated incidents of threats/violence.

The indictment comprised a series of alleged assaults by the defendant on his wife. However, the Court of Appeal’s majority found that it had only been proved that the defendant once in the autumn of 2007 threatened his spouse and that once in 2004 and once in the autumn of 2007 he was violent to her. The majority concluded that the defendant must be acquitted of violation of section 219, essentially with reference to the fact that the incidents were not a part of any regime of violence and threats on the part of the defendant. The majority found that isolated incidents of violence and threats are not comprised if they cannot be deemed to be part of a general scheme on the part of the defendant.

The Supreme Court cited that even if the core area for section 219 is the persistent abuse and the insecurity and fear which such a pattern of behaviour by the defendant gives rise to, also isolated incidents of violence and threats may be comprised if they are sufficiently serious. But if the violation or violations are in the nature of isolated individual incidents, which are not of such a qualified nature or context as to give grounds for fear by the victim of such a behavioural pattern which falls within the core area of the provision, it is the ordinary penal provisions relating to actual bodily harm etc. that are applicable.

The Supreme Court found that the legal point of departure which the Court of Appeal relied on in its evaluation was too narrow. Based on the principle that isolated incidents of violation may, depending on the circumstances, be subject to

Section 219 of the Penal Code, the Court of Appeal’s rationale should admittedly have been more detailed as regards the facts and the basis for the majority’s conclusion that section 219 was not applicable. However, since no appeal had been filed on the grounds of an inadequate rationale, the Supreme Court fund no reason to go into this in any further detail. It was also pointed out that, instead of acquittal, the Court of Appeal should have considered an alternative subsumption.

Reference: HR-2012-01101-A, case no. 2012/376), criminal appeal against judgment.

 

Judgment

24 May 2012

Strict liability under section 24 a of the Pollution Act for damage caused by a "waste water treatment installation"

The case concerned strict liability under section 24 a of the Pollution Act for damage caused by a "waste water treatment installation". The issue was whether the waste water outlet for two county roads is comprised by the definition of the law of such installations, and whether liability was nevertheless excluded because it was a question of "pollution from roads" which, under section 5 subsection 1, falls outside the scope of the Act.

In December 2005, the houses of Arve Turbekkmo in Botngård in Bjugn and Ragnar O. Kirknes in Stordal in Åfjord were damaged by the penetration of water into the basements. The waste water outlets from county road 131 and county road 52 respectively in Sør-Trøndelag were not able to cope with large amounts of rain, snow and smelting water because the grids were clogged by snow water - so-called  "snow blocks". Instead of the water being captured in ditches with pipelines, grids and sand trap manholes and subsequently directed to adjacent water courses, the water followed the county roads. It eventually also flowed into the basements of Turbekkmo and Kirknes. The houses were insured with Tryg Forsikring, who has covered the damage under the insurance.

Tryg Forsikring claimed right of recourse against the owner of the roads, Sør-Trøndelag county municipality under the provision relating to liability for damage caused by waste water treatment installations in section 24 a of the Pollution Act. The District Court found in favour of the county municipality. The Court of Appeal held that there were grounds for liability.

The Supreme Court majority rejected the appeal. Reference was made to the fact that the waste water outlets from the county roads came under the definition of "waste water treatment installation" in section 24 a, cf. section 21, of the Pollution Act. The exemption for "pollution from roads" in section 5 subsection 1 cf. section 6, was not applicable. This was a question of humidity and water damage, not "pollution".

One judge dissented. In his opinion, it must, based on the background history and the preparatory works of sections 24 a and 21 of the Pollution Act, be a minimum requirement for liability for damage caused by storm water from roads that the water must be directed into the municipal waste water grid, or a corresponding private grid.

Reference: HR-2012-01102-A, case no. 2011/1957), civil appeal against judgment.

 

Judgment

23 May 2012

Waterfall rights in water courses which have partly been created, partly experienced an increased flow of water, as a result of the diversion of water from another water course

Reference: HR-2012-01089-A, case no. 2011/1906, civil appeal against judgment.

The case concerned the waterfall rights in water courses which have partly been created, partly experienced an increased flow of water, as a result of the diversion of water from another water course. The issue was whether the waterfall rights accrue to the owner of the land or to the party who had arranged for the diversion

The dispute between Statskog as land owner and HelgelandsKraft had arisen in connection with HelgelandsKraft, which had earlier on built a power plant further down the water course, now wanting to build two new power plants further up. The development possibilities further up were due to the regulation which HelgelandsKraft had been in charge of in connection with the original development. One of the power plants would result in a river that had been created by the earlier regulation would disappear entirely because the water would be channelled into a pipe, while the other power plant would exploit the increased amount of water resulting from the diversion along with the water in a river that had existed before the regulation. The dispute only concerned the waterfall rights to the diverted amount of water.

According to section 13 of the Water Resources Act “watercourses belong to the owner of the land it covers, unless otherwise provided by “special legal relations”. It was HelgelandsKraft’s opinion that that the term “special legal relations” had to imply that it is not necessary to establish a separate acquisition decision vis-à-vis the land owner. On the contrary, the broad formulation opens the door to an overall evaluation of the situation where both concrete and more general considerations can come into play. Special reference was made to the fact that the exploitation potential which would now be realized had been created by the company’s earlier regulation effort, and it was submitted that in connection with the regulation the relevant waterfall rights had been paid for through a compensation to the titleholders in the water course from which the water had been diverted. If Statskog as land owner where the water was now flowing were to be entitled to compensation, this would effectively mean that payment would be made twice for the same thing.

The Supreme Court took for its starting point that “special legal relations” had to be construed as a reference to the bases in law recognized by the legal order in general. Due to section 9 nos. 5 and 6 of the Water Course Regulation Act, HelgelandsKraft would be entitled to a proportional deduction for the earlier regulation costs, including earlier compensation payments. This meant that HelgelandsKraft should not pay twice for the same thing. Any added value beyond these costs generated by the regulation must accrue to the land owner, i.e. Statskog.

The Supreme Court also found that the more special circumstances surrounding the concession and discretion proceedings which took place earlier could not lead to HelgelandsKraft being deemed to be the owner of the waterfall rights that were now to be exploited. This was also the case if an overall evaluation of all elements invoked was made.

The dispute concerned only the question who was to be deemed the owner of the waterfrall rights. The question of compensation which arises now that the State has been award the waterfall rights was kept out of the matter.

 

Order

14 May 2012

Appeal against Borgarting Court of Appeal's decision.

Reference: HR-2012-01033-U, case no. 2012/662), civil appeal against decision.

 

Order

10 May 2012

Civil procedure. Access to evidence. Taking of evidence.

In a labour law case, which was to heard by the Supreme Court, a claim for witness testimonies was not allowed, cf. section 21-12 subsection 2 1^st sentence of the Disputes Act . The request for the taking of evidence was allowed, cf. section 27-1 subsection 1 cf. section 21-11 subsection 1.b of the Disputes Act. The request for access to evidence was not allowed since the request was worded as a claim for the appellants to document the respondents’ legal submission, and not as a claim for access to any real evidence, cf. section 26-6 subsection 1 of the Disputes Act.

Reference: HR-2012-1004-F, case no. 2011/2085, civil appeal against judgment.

 

Judgment

10 May 2012

Criminal law. Securities trading. Inside information. Confidentiality

The defendant had as portfolio administrator received information about an offer to acquire a major shareholding in a limited company which made him suspect that the market had different access to information. He passed on the information to the management of the limited company. The Supreme Court construed section 3-4 subsection 1 of the Securities Trading Act, cf. Council Directive 2003/6/EF, to mean that it would normally constitute a breach of confidentiality if a company is given information about attempts at concealed acquisition of the company’s shares. The defendant’s sole purpose of contacting the company was, however, to prevent inside trading and price manipulation with the risk of losing other shareholders. The management of the limited company was in this situation not to be regarded as “unauthorised” under section 3-4 subsection 1 of the Securities Trading Act. Reference was made to the fact that the purpose of the law and the Directive was to ensure a well- functioning share where the players can rely on buying selling on equal conditions. Deviating rationale from one judge. The prosecuting authority’s appeal against the Court of Appeal’ acquittal was rejected.

Reference: HR-2012-1012-A, case no. 2011/2142), criminal appeal against judgment.

 

Judgment

10 May 2012

Corporate penalty. Compensation for non-economic loss. Requirements as to safe working environment.

On the job, an operator fell 9 metres from an unsecured platform. As a result of his injuries he became 100% disabled. Objectively speaking, the Working Environment Act had been breached.  In contrast to the lower courts, the Supreme Court held that a corporate penalty should be imposed under section 48b of the Penal Code. The company’s HMS system was not in itself defective, but the company’s control system should have caught the elements of risk of the platform which, due to the design, invited the use of the unsecured part. The corporate penalty was set at NOK 500 000. The shift foremen could not be deemed to have been grossly negligent even if they were aware of the elements of danger but had not reported this as deviations to the management. There was no basis for compensation for non-economic loss under section 3-5 of the Compensatory Damages Act.

Reference: HR-2012-1016-A, case no. 2011/2102), criminal appeal against judgment.

 

Order

10 May 2012

The appeal proceedings in the Appeals Committee in case no. 2012/809 are stayed until a final decision has been made in case no. 2012/398.

Reference: HR-2012-1013-F, case no. 2012/809), civil appeal against judgment.

 

Judgment

8 May  2012

Criminal procedure. Court of Appeal judges’ competence.

After the court had set aside a jury’s verdict of acquittal, the case was submitted for a new trial with other Court of Appeal judges from the same Court of Appeal. The Supreme Court cited that the law provides that in the new trial the court shall be composed of judges from the same Court of Appeal as the one that set aside the jury’s verdict, cf. section 376 a of the Criminal Procedure Act. This system is based on the assumption that it is not contrary to section 108 of the Courts of Justice Act and must be seen in conjunction with section 38 of the Courts of Justice Act, which allows the transfer of the case to a court at the same level “if special reasons make it necessary or expedient”. The system was not in violation of Article 6.1 of the ECHR if there were no allegations of any special circumstances associated with the individual judge.

Reference: HR-2012-974-A, case no. 2011/2126), criminal appeal against judgment.

 

Judgment

8 May 2012

Tax Law. Tax allowance for gifts to charitable organisations.

The case concerned the validity of a decision by the assessment authorities. The question is whether costs of meeting profiling agreements with non-profit organisations are incurred for the purpose of securing taxable income under section 6-1 of the Act relating to Payment and Collection of Taxes and are accordingly tax deductible. The Supreme Court unanimously held that the association requirement under section 6-1 was not satisfied because the purpose of the project contribution had been to transfer funds to the organisations without receiving any agreed consideration; in other words, a gift disposition. The appeal was rejected.

Reference: HR-2012-976A, case no. 2011/1774, civil appeal against judgment.

 

Judgment

8 May 2012

Criminal law. Motorised traffic on outfield land. Helicopter.

The case concerned the understanding of section 2 of the Motorised Traffic Act. A hunting party had felled a stag and called in a helicopter to transport the dead stag out of the hunting ground. The helicopter never touched down, but was held at an altitude of 15 metres for 5-10 minutes while the stag was attached to a line. The question was whether this situation came under the ban against “landing” on outfield land. The Supreme Court held that section 2 of the Motorised Traffic Act cannot be construed to prohibit the activities at issue. The text of the law, read in conjunction with the preparatory works, suggests that the term “landing” also comprises situations where – without landing the helicopter – it is possible to carry out directly from the ground the same loading and unloading operations as by a landing on the ground. But there is no basis for taking this any further and the accused were acquitted.

Reference: HR-2012-977-A, case no. 2012/117, criminal appeal against judgment.

 

Judgment

8 May 2012

Contract law. Refund of revised tax on treated waste. Limitation.

On 12 June 2008, the Southern Norway customs region made a decision for a revision of tax on treated waste for the period 1 October 2002 – 31 October 2005 determined pursuant to the Act relating to Sales Tax of 19 May 1933 no. 11, cf. the Sales Tax Regulation of 11 December 2001 no. 1451. The tax claim was paid under protest. As regards tax that fell due for payment before the Act relating to Payment and Collection of Taxes came into force on 1 January 2008, the Supreme Court held that the limitation period for each individual instalment had started running from the reporting and limitation date for the instalment in question. The supplementary period of limitation under section 10.1 of the Statute of Limitations was not applicable. As regards tax that had not become statute-barred when the Act relating to Payment and Collection of Taxes came into force, it followed from section 10-53, cf. section 12-1 subsection 2, of the Act that the limitation period did not commence to run until the end of the calendar year when the term of payment of three weeks after the decision of a revision expired, i.e. 31 December 2008. The State was ordered to refund the part of the claim subject to taxation that was statute-barred when it was paid. Dissenting votes 4-1.

Reference: HR-2012-981-A, case no. 2011/1933, civil appeal against judgment.

 

Judgment

2 May 2012

Criminal law. Sentencing. Rape. Minor.

A man was convicted of rape with a bottle of a minor girl who, due to intoxication, was incapable of resisting the act, cf. section 192 subsection 1 b, cf. subsection 2 a, cf. subsection 3 a of the Penal Code. The Court of Appeal had set the basis for sentencing at 5 years. The Supreme Court found this to be too strict and set the basis for sentencing at a term of imprisonment of between 4 years and 4 years and 6 months. The defendant was granted a reduction of his sentence for a full confession, and the fact that the defendant was immature and that the offence seemed to be in the nature of an act of impulse carried a certain weight. The Supreme Court majority did not find that the defendant’s life situation gave grounds for deviating from the principle that the sentence shall be custodial. The sentence was set at a term of imprisonment of 2 years and 10 months. Dissenting votes 4-1.

Reference: HR-2012-914-A, case no. 2011/2125, criminal appeal against judgment.

 

Judgment

2 May 2012

Criminal law. Market manipulation.

Two « day traders » had, independently of each other, found a pattern as to how bid and ask prices were changed regardless of the volume traded. This was exploited to carry out a series of transactions that were later reversed. For the most part, the reversal generated a profit. The Supreme Court majority held that the defendants’ conduct fell under the wording of section

3-8 subsection 2.1 first alternative of the Securities Trading Act, cf. Regulation to section 3-2 subsection 1 of the Securities Trading Act, and under the wording of section

3-8 subsection 2.1 second alternative of the Securities Trading Act. The majority nevertheless concluded that the consequence of the general reservation of unlawfulness was that the defendants must be acquitted. Importance was attached to the fact that the procedure seemed to be generally accepted in the market and that the defendants did not in effect manipulate, but reacted to an inefficiency in the market. They had acted in total openness and not given any incorrect information. The appeal was rejected. (Dissenting votes 3-2).

Reference: HR-2012-919-A, case no. 2011/1916, criminal appeal against judgment.

 

Judgment

2 May  2012

Immigration law. Administrative law. Refuge on humanitarian grounds. Subsequent circumstances.

The case concerned the issue whether the courts in their reviewing of a decision refusing an application for Refuge in Norway on humanitarian grounds under section 38 of the Immigration Act have the right to rely on facts that have come to light after the decision was made. Concretely, the appeal concerned the fact that the son in the family obtained Norwegian citizenship and lost his citizenship in Sri Lanka after UNE (the Norwegian Immigration Appeals Board) refused the applications for refuge from the rest of the family. The Supreme Court majority held that the court had the right to take subsequent circumstances into account and that the Court of Appeal’s judgment must be set aside. The rationale given by two of the judges was Norway’s human rights obligations, cf. Article 8 of the ECHR and Articles 3, 8 and 9 of the UN Convention on the Rights of the Child. Two of the judges’ rationale for the result was that a court’s review of an administrative decision, unless there is a special statutory authority to the contrary, must be based on the facts to hand at the time when the matter is set down for judgment. (Dissenting votes).

Reference: HR-2012-920-A, case no. 2012/38, civil appeal against judgment.

 

Order

2 May 2012

Immigration law. Administrative law. Reversal.

The issue of the case was whether, after a final and enforceable judgment in favour of the State in a case relating to the validity of a decision made by the Norwegian Immigration Appeals Board has been made, it is possible to bring a new action claiming that a decision which refuses or declines to consider a reversal is invalid. The Supreme Court held that a refusal of a petition for a reversal of an administrative decision can, by its nature, be submitted to the courts, cf. section 1-3 of the Disputes Act. The matter could not be dismissed from the courts on the grounds that the claim had already been decided and the decision was final and enforceable, because the subject matters of the two cases were different. The appeal was rejected.

Reference: HR-2012-921-A, case no.2011/2038), civil appeal against order.

 

Judgment

2 May 2012

Criminal law. Sentencing. Mobile crime committed for personal gain.

Two Lithuanian men sentenced to two years’ imprisonment for various forms of crime committed for personal gain, cf. sections 257 and 258 of the Penal Code. Together with three other Lithuanian citizens they were convicted of having during the period from March 2009 to May 2011 committed seven aggravated thefts, three attempted aggravated thefts, one handling offence and one theft. The Supreme Court agreed with the Court of Appeal’s sentence of two years for one of the defendants and rejected his appeal. As regards the other defendant, the Supreme Court found that the sentence was too severe in that the sentence must reflect the limited actions which he was convicted of. The sentence was set at a term of imprisonment of one year and six months.

Reference: HR-2012-924-A, case no.2012/179), criminal appeal against judgment.

 

Order

25 April 2012

Section 19-2 of the Disputes Act

The appeal is quashed

Reference: HR-2012-849-F, case no. 2012/781), civil appeal against order.

  

Judgment

23 April 2012

Criminal procedure. Composition of the court.

An extraordinary judge in the Court of Appeal had not been appointed ad interim during the appeal proceedings and the handing down of the sentence. This meant that the constitution of the court was not lawful. This was a procedural error, which shall unconditionally carry weight, cf. section 343, subsection 2.3, of the Criminal Procedure Act. The Court of Appeal's judgment with trial was set aside.

HR-2012-805-A, case no. 2012/204), criminal appeal against judgment.

 

Judgment

23 April 2012

Criminal law. Grossly negligent serious fraud. The Storting’s pension scheme.

A former member of the Storting had received pension benefits to which he was not entitled according to the Pension Act for members of the Storting of 12 June 1981 No. 61 in force at the time, in that he had income which in total exceeded the income limitations in section 2 subsection 4 of the Act. In the Court of Appeal he was acquitted of the charges under section 271a cf. section 271 cf. section 270 of the Penal Code (grossly negligent serious fraud). The Supreme Court held that the Defendant had not caused, strengthened or exploited any ignorance on the part of the secretary of the pension scheme and that it was furthermore not contrary to honesty and good faith for him to have relied on the incorrect information which the secretary had given him as to what income was not to be taken into account. He had accordingly not unlawfully misled the pension scheme. The defendant’s mistake in law was to be adjudged under section 42 of the Penal Code, and not section 57. The prosecuting authority’s appeal was quashed

Reference: HR-2012-810-A, case no. 2011/2103), criminal appeal against judgment.

 

Judgment

23 April 2012

Criminal law. Application of the law. Inside trading.

The case concerned criminal inside trading and raised the question of the understanding of the term « inside information » in section 2-2 of the Securities Trading Act of 1997 (now section 3-2 of the Securities Trading Act of 2007). The Supreme Court agreed with the Court of Appeal that the definition in section 2.2 subsection 3 - the so-called "sensible-investor test" - was exhaustive and that no quantifiable price-impact effect could be required in addition. This interpretation was not contrary to the EU market abuse directive, Article 1 No. 1. The appeals against the Court of Appeal's judgment were rejected

Reference: HR-2012-812-A, case no. 2011/2045), criminal appeal against judgment.

 

Order

19 April 2012

Bankruptcy. Bankruptcy sequestration. Lawyers' professional secrecy.

The administrator of a lawyer's bankruptcy estate requested the release of the lawyer's accounts and accountancy material from the time prior to the bankruptcy. The Court of Appeal had upheld the request. The Supreme Court stated that also in a bankruptcy situation information about money transfers between lawyer and client and names of clients must be subject to professional secrecy, unless otherwise provided by a special authority in law. As a result of the reference in section 149 subsection 1 of the Bankruptcy Act, the prohibition against evidence set out in section 22-5 of the Disputes Act must also apply similarly to bankruptcy proceedings. The rules related to sequestration and duty of disclosure set out in the Bankruptcy Act cannot lead to any other result. The Court of Appeal's interlocutory order was quashed.

Reference: HR-2012-788-A, case no. 2011/1731), civil appeal against interlocutory order.

 

Judgment

17 April 2012

Value Added Tax.

A company bought a vessel for passenger transport in 1999. According to the rules contained in section 16 no. 5 of the Value Added Tax Act of 1969, incoming VAT was not deductible at that time. In 2008, the company sold the vessel and was ordered to pay VAT on the sale according to the Value Added Tax Act 1969, section 13, in that the rules on exemption from VAT related to passenger transport had been amended in the meantime. The Supreme Court majority held that the rules in force at the time of the sale were applicable. As the source-of-law picture was unclear, real considerations were decisive for the interpretation. The importance of the necessity for the rules to be easy to implement and not give rise to verification problems was pointed out. The majority agreed with the State and quashed the company’s appeal. Dissenting votes 3-2.

Reference: HR-2012-769-A, case no. 2011/1668), civil appeal against judgment.

 

Order

16 April 2012

Disputes Act (2005) section 19-2

The appeal is quashed.

Reference: HR-2012-753-F, case no. 2012/523), civil appeal against interlocutory order.

 

Judgment

13 April 2012

Criminal law. Sentencing. Assault causing bodily harm.

The defendant was in the District Court sentenced to 1 year and 6 months’ imprisonment for assault causing serious bodily harm, cf. section 229 1^st penal alternative, cf. section 232, of the Penal Code. The man had arranged a meeting with the victim in order to frighten him. One of the other defendants brought a knife for the confrontation and the victim suffered several serious knife stabs. The Supreme Court stated that the sentence needed to reflect the defendant’s dominating role as an initiator of the violent attack on the victim. The Supreme Court still held that the Court of Appeal had not to a sufficient degree taken into consideration the fact that the defendant was not aware of a knife having been brought along to the confrontation. Even though the offence was very serious, this set clear limits as to the length of the prison sentence that could be meted out. The sentence was changed to 10 months’ imprisonment.

Reference: HR-2012-742-A, case no. 2011/2110), criminal appeal against judgment.

 

Reappraisal

13 April 2012

Reappraisal. Expropriation. Compensation. Grounds for reappraisal.

Section 5 of the Expropriations Act.

The case concerned the question whether a reappraisal related to expropriation of land to the tramway system in Bergen had to be set aside on the grounds of defective reasons or misapplication of the law. The Supreme Court held that the parts of the reappraisal that concerned the determination of compensation for the surrender of land and the litigation costs before the Court of Appeal must be set aside.

Reference: HR-2012-743-A, case no. 2011/1697, civil appeal against reappraisal.

 

Judgment

30 March 2012

Administrative law. Law of damages. Partnership and company law. Limitation. Detailed regulation of fisheries

A fishing limited company was, after an appeal to the Ministry of Fisheries relating to a negative decision by the Fisheries Directorate, granted the right to participation in fisheries subject to detailed regulation. The company and the principal shareholder presented a claim against the state for damages for operating loss in the period when the Directorate’s decision was in effect. For the principal shareholder the Supreme Court stated unanimously that given that the application was filed by the company, this also had to be taken for a basis for the rights and obligations which the permission provided. Nor did section 17-6 of the Companies Act provide any right for the principal shareholder to file a direct claim against the alleged tortfeasor. As regards the company, a writ was issued 49 days after expiry of the 3-year time-limit set out in section 9.1 of the Statute of Limitations. This period was on somewhat varying grounds accepted as a necessary period for consideration after the Directorate’s decision. The claim was not statute-barred at that time. The principal shareholder’s appeal was quashed. As regards the company, the Court of Appeal’s judgment was set aside.

Reference: HR-2012-687-A, case no. 2011/1675), civil appeal against judgment.

 

Judgment

30 March 2012

Criminal law. Freedom of speech. Racial remarks.

The Defendant had in an intoxicated state made insulting accusations against a doorman at a club. The purpose was to humiliate the victim and to dispute his suitability as a doorman based on the colour of his skin. The remarks were deemed to represent a serious disparagement of the human worth of a group of people and were not protected by section 100 of the Constitution. The defendant’s appeal against the conviction under section135a of the Penal Code was unanimously quashed.

Reference: HR-2012-689-A, case no. 2012/143, criminal appeal against judgment.

 

Order

30 March 2012

Criminal Procedure Act (1981) section 434

The Supreme Court quashed the appeals as regards the civil claims.

Reference: HR-2012-707-F, case no. 2011/1445, criminal appeal against judgment

 

Judgment

29 March 2012

Law of property. Limitation. Recovery of real estate.

The case concerned the question of whether a claim for the recovery of real estate based on the transfer of the property being invalid is subject to limitation. The Supreme Court referred to the travaux préparatoires to section 1 of the Limitation Act and the legal tradition on which this is founded and held that the transferor's claim for restitution against the party who has acquired the object by an agreement which is not binding on the transferor is not statute-barred. This was a reflection of a firmly established legal tradition, it appeared to be deemed implicit by the legislator and had enjoyed general support in legal theory over a long period of time. There were also good and real grounds to suggest that the respondents' claim for a restitution of the property must be regarded as a claim for recovery of property wrongfully received, which does not become statute-barred.

Reference: HR-2012-672-A, case no. 2011/1477, civil appeal against judgment.

 

Judgment

29 March 2012

Immigration law. Asylum. Homosexuality.

The case concerned the validity of a decision by the Immigration Appeals Board and raised the question as to whether an Iraqi citizen is entitled to asylum on the grounds that he as a homosexual has a well-founded fear of persecution in Irak. The Court of Appeal found that it was not known in Irak that the asylum seeker was homosexual. The court further assumed that upon his return he would adapt his life so as to avoid persecution. In this light the Court of Appeal held that neither the conditions for asylum contained in section 17 of the Immigration Act of 1988, nor the conditions for protection against return in section 15 were satisfied. The Supreme Court quashed the Court of Appeal's judgment with appeal proceedings because the Court of Appeal had not made a decision as to what the reason was for the asylum seeker wanting to keep his sexual inclination a secret. If there were real grounds for fearing persecution and the fear of persecution was crucial to his choice, the condition that there must be a "well-founded fear of being persecuted", cf. Article 1 A of the Refugee Convention, cf. Protocol 31 January 1967, would be satisfied.

Reference: HR-2012-667-A, case no. 2011/1688), civil appeal against judgment.

 

Judgment

29 March 2012

The courts' competence to review decisions made by the Norwegian Criminal Cases Review Commission.

The case concerned the courts' competence to review a decision made by the Norwegian Criminal Cases Review Commission (the Review Commission) not to reopen a criminal case. The Supreme Court held that a convicted person, whose petition for a reopening of a case has been rejected, may bring a validity action before the courts, but there are limits to the courts' judicial review competence. The Commission's assessment of evidence cannot be reviewed. Reference was made to the fact that the considerations that formed the basis of the establishment of a separate commission were particularly relevant for the assessment of evidence and that it would be contrary to the thinking behind the establishment of the Commission if the courts could be made an arena for a replay regarding the evidence. Nor could the concrete application of the law be reviewed. The limits to the right of review were neither in violation of section 88 of the Constitution nor other constitutional rules or principles. Nor did they represent any breach of Article 6 no. 1 of the ECHR. The appeal was dismissed.

Reference: HR-2012-669-S, civil appeal against judgment.

Read the whole judgment

 

Order

22 March 2012

Section 19-2 of the Disputes Act (2005)

The Supreme Court quashed the appeal

Reference: HR-2012-610-F, case no.2012/503, civil appeal against judgment.

 

Order

22 March 2012

Section 19-2 of the Disputes Act (2005)

The Supreme Court quashed the appeal

Reference: HR-2012-614-F, case no.2012/220, civil appeal against order.

 

Order

22 March 2012

Bankruptcy. Avoidance

A parent company, which had a considerable debt to a subsidiary, paid a claim for the subsidiary and set off the payment against the debt. The subsidiary's bankruptcy estate claimed an avoidance of the payment under section 5-5 of the Creditors Recovery Act. As for the question whether a payment from a third party was voidable in relation to the recipient, the Supreme Court held that in a case as the one at hand, where the same person was in control of the liquidity in both companies and where the immediate purpose of the payment was to cover the subsidiary's debt, it must be decisive that in reality a payment had been made from the debtor itself. The Supreme Court further held, in contrast to the Court of Appeal, that the crucial point must be that the subsidiary's claim against the parent company had in actual fact represented a means of payment for the subsidiary and consequently had to be taken into account in the evaluation of the question whether the payment had significantly impaired the subsidiary's ability to pay. The Court of Appeal's interlocutory order was quashed.

Reference: HR-2012-617-A, case no. 2011/1555), civil appeal against an interlocutory order. .

 

Judgment 

15 March 2012

Tax law. Value added tax. The Value Added Tax Act 1969 section 21 subsection 1 1st sentence.

The case concerned the validity of a decision of the Board of Appeal for Value Added Tax relating to reconciliation of VAT. A commercial company liable to pay VAT acquired a plot of land for a commercial building for its business operation. By way of consideration the company erected a semi-detached house on another plot of land which it owned and transferred this property to the seller of the plot. The company subsequently claimed deduction for incoming VAT on the costs related to the erection of the semi-detached house. The Supreme Court majority held that the exchange of properties must be regarded as part of the business activities, that the erection costs were relevant for the business activities and that they must be deemed to have a sufficiently close and natural connection to those activities. The erection of the semi-detached house was thus comprised by the concept of business activities in section 21 subsection 1 1st sentence of the Value Added Tax Act so that incoming VAT related to the erection was deductible. The Board of Appeal's decision was quashed. The judgment was passed with dissenting votes 3-2

Reference: HR-2012-578-A, case no. 2011/1595), civil appeal against judgment. .

 

Judgment

15 March 2012

Labour law. Age discrimination. Person seeking work. Damages for non-economic loss.

A 61-year old male trained social worker alleged that he was the subject of age discrimination when he was not called in for an interview in connection with the filling of a public position and claimed damages for non-economic loss under section 13-9 of the Working Environment Act. The Supreme Court, which relied on the reversed burden of proof rule in section 13-8 of the Working Environment Act, held that the reason why the applicant was not called in for an interview was in all probability that the employer wanted to recruit people with other skills than social education. This was accordingly not a question of discrimination in violation of section 13-1 subsection 1 of the Working Environment Act. The appeal against the Court of Appeal's judgment in favour of the Defendant was quashed.

Reference: HR-2012-580-A, case no. 2011/1714), civil appeal against judgment.

 

Order

15 March 2012

Section 19-2 of the Disputes Act (2005)

The Supreme Court rejected the appeal.

Reference: HR-2012-596-F, case no. 2011/2033), civil appeal against judgment.

 

Decision

7 March 2012

Appointment of experts.

Request for appointment of experts before the Supreme Court in appeals case 2011/1916 - application of the law in connection with the question of guilt in a case related to market manipulation - was allowed with the same mandate as the experts had had before the Court of Appeal.

Reference: HR-2012-518-F, case no. 2011/1916), criminal appeal against judgment.

 

Judgment

6 March 2012

Family law. Pre-nuptial agreement. Separate property. Section 42 of the Marriage Act.

The case concerned the validity of a pre-nuptial agreement and the question whether the pre-nuptial agreement suffered from such defects as to make it invalid, or if subsequent circumstances entailed that it had lapsed.

Reference: HR-2012-499-A, case no. 2011/1516), civil appeal against judgment.

 

Judgment

5 March 2012

Criminal law. Sexual abuse of stepdaughter. Application of the law.

A man was convicted of having sexually abused his stepdaughter, who was 18 1/2 at the time of the abuse. The question was whether section 199 subsection 1 of the Penal Code applies to sexual abuse of stepchildren who are over 18 years of age after the words "any person under the age of 18" was included in the section by an amendment of the law in 1992, and the words

"any other person" by a new amendment in 2000. The Supreme Court majority attached importance to the history and the travaux preparatoires to the Act and held that the 18-year limit only relates to "any other person" and does not apply to foster children or stepchildren. The victim was under the care of her stepfather in the sense of the law. The conviction did not represent any infringement of Article 7 of the ECHR or section 96 of the Constitution.

Dissenting votes: 3-2

Reference: HR-2012-489-A, case no. 2011/2031), criminal appeal against judgment.

 

Judgment

5 March 2012

Contract law. Mitigation clause. Incentive agreement.

The case concerned the issue whether an incentive agreement, which itself contained a mitigation clause, should be set aside based on section 36 of the Contracts Act.

Reference: HR-2012-490-A, case no. 2011/1274, civil appeal against judgment.

 

Judgment

28 February 2012

Contract law. Contractual relationship. Loan-financed savings product.

The case concerned the validity of loan-financed purchase of composite investment products. The question was whether two private individuals' loan-financed investment in Storebrand Bank ASA's « Index bond Allocation II 2006-2010 » should be set aside, wholly or in part, under section 36 of the Contracts Act. The appeal was quashed. Dissenting vote 4-1.

Reference: case no. 2011/1053 civil appeal against judgment.

 

JUDGMENT

28 February 2012

Law of damages. Estate agent's liability

The case concerned a claim for damages against an estate agent on the grounds of extinguishing a hedge bond and on the grounds of failure to carry out an estate agent's assignment, cf. sections 6-3 and 6-9 of the Estate Agency Act. The Supreme Court found that the estate agency had acted contrary to the terms of the contract and negligently when extinguishing the hedge bond. It further entailed liability that nothing had been done to eliminate the risk of loss which the extinguishing of the bond entailed or to notify the buyers. The loss for which compensation could be claimed as a result of this must be limited to the value of a remaining and unsold section, which constituted one sixth of the purchase price. The majority concluded that the estate agent must also be held liable for the remainder of the purchase price. There was nothing to indicate that the assignment had been transferred to the buyer's lawyer and the estate agent had an independent responsibility to follow up the issuing of the deed. However, the compensation referring to the failure to register the deed was reduced by one third, cf. section 5-1 of the Compensatory Damages Act since the delayed transfer of title was caused by the purchaser's desire to transfer the title direct to the buyer of  the housing unit. (Dissenting vote 4-1).

Reference: HR-12-447-A, case no. 2011/1632, civil appeal against judgment.

 

Judgment

27 February 2012

Criminal law. Sentencing. Narcotics. Import. Cooperation with the police.

In a case concerning sentencing for the import of around 940 grams of cocaine and 900 grams of heroin, cf. section 162 subsection 1, cf. subsection 3 1st sentence, of the Penal Code, the issue was the importance of the fact that the defendant had cooperated with the police with a view to clearing up the case. The basis for the sentencing would in principle be around seven years. A discount of one year and three months was given for a full confession, cf. section 59 subsection 2 of the Penal Code. As regards what discount should be given for the cooperation with the police, this would depend on a combined evaluation where essential elements were the extent of the cooperation, the importance of the assistance the accused had given and the risk to which she had exposed herself as a result of her assistance. In this case the assistance was fairly comprehensive and not without risk, and the Supreme Court held that a discount of around 20 per cent should be given. After a few personal extenuating circumstances had also been taken into account, the sentence was set at four years' imprisonment.

Reference: HR-2012-430-A, case no. 2011/2145,  criminal appeal against judgment.

 

Judgment

23 February 2012

Contract law. Rent. Arbitration.

In a dispute relating to adjustment of rent for business premises the parties had, instead of going to arbitration as provided by the lease, agreed to request the District Court to appoint a valuation board, cf. section 12-2 of the Rent Act. The issue in the case was whether the parties had thereby waived the arbitration clause in the lease, or whether the valuation board’s determination of rent must be regarded as a form of arbitration process. The Supreme Court majority held that the parties’ correspondence in connection with the appointment of the valuation board did not provide grounds for alleging that the parties had waived the right to a trial by the courts. The Supreme Court held that case was to be submitted to the District Court. (Dissenting vote).

Reference: HR-2012-400-A, case no. 2011/1743, civil appeal against interlocutory order.

  

Judgment

23 February 2012

Family law. Visitation rights.

The case concerned legal boundaries for determination of visitation rights for others than parents. The Supreme Court held unanimously that section 43 subsection 3 of the Children Act must be interpreted to mean that it authorizes conditions associated with the implementation of the parents’ visitation rights under section 43 subsection 1. It could therefore not be interpreted to mean that there was a basis for granting the aunt such rights as the Court of Appeal had decided. The Supreme Court quashed the point of the Court of Appeal’s conclusion  that granted the aunt independent visitation rights. An important prerequisite for what was decided about the father’s visitation rights was accordingly no longer relevant and also that point in the conclusion of the judgment was rescinded,

Reference: HR-2012-405-A, case no. 2012/32, civil appeal against judgment.

 

Order

23 February 2012

Contract law. Rent. Arbitration.

In a dispute relating to adjustment of rent for business premises the parties had, instead of going to arbitration as provided by the lease, agreed to request the District Court to appoint a valuation board, cf. section 12-2 of the Rent Act. The issue in the case was whether the parties had thereby waived the arbitration clause in the lease, or whether the valuation board’s determination of rent must be regarded as a form of arbitration process. The Supreme Court majority held that the parties’ correspondence in connection with the appointment of the valuation board did not provide grounds for alleging that the parties had waived the right to a trial by the courts. The Supreme Court held that case was to be submitted to the District Court. (Dissenting vote).

Reference: HR-2012-400-A, case no. 2011/1743, civil appeal against interlocutory order.

 

Judgment

23 February 2012

Family law. Visitation rights.

The case concerned legal boundaries for determination of visitation rights for others than parents. The Supreme Court held unanimously that section 43 subsection 3 of the Children Act must be interpreted to mean that it authorizes conditions associated with the implementation of the parents’ visitation rights under section 43 subsection 1. It could therefore not be interpreted to mean that there was a basis for granting the aunt such rights as the Court of Appeal had decided. The Supreme Court quashed the point of the Court of Appeal’s conclusion  that granted the aunt independent visitation rights. An important prerequisite for what was decided about the father’s visitation rights was accordingly no longer relevant and also that point in the conclusion of the judgment was rescinded,

Reference: HR-2012-405-A, case no. 2012/32, civil appeal against judgment.

 

Judgment

23 February 2012

Criminal law. Application of the law. Sentencing. Financial crime.

The case concerned application of the law and sentencing for aggravated fraud on a creditor in the amount of NOK 2.8 million and aggravated money laundering of proceeds derived from the offender’s own criminal acts – called « aggravated self-laundering ». The Supreme Court established that the provision relating to self-laundering in section 317 subsection 2 of the Penal Code shall only be applicable together with other penal provisions (concurrence of offences) if other aspects of the criminal offence are encompassed than what is already comprised by the primary penal provision. When the self-laundering and the primary crime consisted in the same concrete act there was no room for a conviction also for self-laundering. It was further established that the provision relating to self-laundering "in contrast to the provision relating to money laundering in section 317 subsection 1" does not apply to acts to secure the offender's interests which in time precedes the primary offence. In this case there  was accordingly no basis for a conviction for self-laundering, neither in connection with the fraud on a creditor, nor the tax fraud. Sentence for the aggravated fraud on a creditor, the social security fraud and the lack of accounting system was set at imprisonment of one year and eight months. The fact that the defendant had been deprived of the right to carry on  commercial activities of his own for life was also taken into consideration.

Reference: HR-2012-409-A, case no. 2011/2111), criminal appeal against judgment.

 

Judgment

23 February 2012

Criminal law. Application of the law. Sentencing. Financial crime.

The case concerned application of the law and sentencing for aggravated fraud on a creditor in the amount of NOK 2.8 million and aggravated money laundering of proceeds derived from the offender’s own criminal acts – called « aggravated self-laundering ». The Supreme Court established that the provision relating to self-laundering in section 317 subsection 2 of the Penal Code shall only be applicable together with other penal provisions (concurrence of offences) if other aspects of the criminal offence are encompassed than what is already comprised by the primary penal provision. When the self-laundering and the primary crime consisted in the same concrete act there was no room for a conviction also for self-laundering. It was further established that the provision relating to self-laundering "in contrast to the provision relating to money laundering in section 317 subsection 1" does not apply to acts to secure the offender's interests which in time precedes the primary offence. In this case there  was accordingly no basis for a conviction for self-laundering, neither in connection with the fraud on a creditor, nor the tax fraud. Sentence for the aggravated fraud on a creditor, the social security fraud and the lack of accounting system was set at imprisonment of one year and eight months. The fact that the defendant had been deprived of the right to carry on  commercial activities of his own for life was also taken into consideration.

Reference: HR-2012-409-A, case no. 2011/2111), criminal appeal against judgment.

 

Order

15 February 2012

Criminal law. Sentencing. Aggravated robberies. Mobile persons convicted of crimes of gain.

Four men were convicted in the Court of Appeal for having in the course of four days robbed three elderly people in their own homes, section 268 cf. section 267 of the Penal Code. Aggravated and ruthless violence was exercised. The Court of Appeal found that each of the robberies would in principle have been punished with imprisonment from 3 years and 6 months to 4 years and 3 months and meted out a total sentence of 7 years and 3 months for one and 8 years for the other of the two appellants. The Supreme Court referred to the fact that an amendment of the Penal Code in 2010, which was admittedly not aimed at robbery, but concerned an aggravation of punishment for unprovoked acts of violence, must have a bearing on the matter. Importance was also attached to the fact that the aggravated violence was exercised against helpless elderly people, that mobile crimes of gain represent major social and criminal law challenges and that the robberies were well planned and organized. The Court of Appeal's sentence was found suitable and the appeals were quashed.

Reference: HR-2012-341-A, case no. 2011/1769, criminal appeal against order.

  

Order

15 February 2012

Criminal procedure. Competence

The case concerned sentencing for, amongst other things, aggravated money laundering, fraud on a creditor and conspiracy to defraud. The question was whether Chief Justice of the Supreme Court Schei was incompetent, cf. section 108 of the Courts Act because his son is working as a police lawyer with the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime. There was no reason to assume, nor was it submitted, that the Chief Justice was biased in the matter. Nor did the Supreme Court find that, objectively speaking, there were any reasonable or pertinent grounds for doubting his impartiality when seeing the situation from the position of the accused or the general observer.

Reference: HR-2012-344-A, case no. 2011/2111), criminal appeal against judgment.

  

Judgment

14 February 2012

Criminal law. Sentencing. Aggravated violence.

One evening following disagreements at a restaurant the Defendant struck the victim in the face with his fist resulting in a fractured jaw, cf. the Criminal Procedure Act section 229 1st penal alternative. The offence took place after the Amendment Act of 25 June 2010 no. 46 came into force, according to which punishment for, amongst other offences, aggravated violence was increased. The Supreme Court held that the offence was not the type of violence that fell entirely within the core area of what the aggravation of punishment was aimed at. The perpetrator and the victim knew each other well beforehand and there had in the past been a few disagreements between them. At the same time the one blow had a considerable injury potential, and the exercise of violence occurred in a public place. In the light of the clear statements about an aggravation of punishment set out in the preparatory works of the amendment, punishment was set at 5 months' imprisonment.

Reference: HR-2012-331-A, case no. 2011/1927, criminal appeal against judgment. 

  

Judgment

14 February 2012

Criminal law. Gross corruption and breach of trust with fraudulent intent. Sentencing. Procedure.

The case concerned procedure and sentencing related to the conviction of three men for, amongst other things, gross corruption and breach of trust with fraudulent intent in connection with a municipal real estate company, cf. sections 275, 276, 276b and 276a of the Penal Code. The principal offender had key duties in connection with the distribution and follow-up of assignments, the other two were running their own businesses which carried out commissions for the company. The principal offender received a total of around NOK 1.5 million in bribes from the two businesses and further bribes from a third. They had also cooperated in draining the company of large amounts by using fictitious invoices. In connection with an appeal against procedure the Supreme Court held that the Court of Appeal had not had the opportunity to review the subsumption for a matter against which an appeal had been filed, but where the Court of Appeal refused the leave to appeal. Instead of quashing the Court of Appeal's judgment, the Supreme Court based the sentencing on the District Court's subsumption. The sentence of the principal offender was set at 5 years' imprisonment. Because of a slack period of around one year, one year of the sentence had to be suspended with a period of probation of five years, cf. Article 6.1 of the ECHR. The Defendant's loss of legal rights was also to a certain extent taken into account. The sentences for the other two were set at two years' imprisonment, 6 months of which were suspended for one of them with a period of probation of three years.

Reference: HR-2012-330-A, case no. 2011/1885), criminal appeal against judgment

 

Judgment

14 February 2012

Criminal law. Driving while intoxicated. Loss of driving licence. Regulation relating to the right to drive a motor vehicle.

The case concerned the question whether it was possible in connection with a conviction for driving while intoxicated to determine a shorter period of suspension of the licence than the minimum period of one year, cf. section 33.1 of the Road Traffic Act, if the Defendant has had the licence in his possession for a long period of time after the time of the offence, cf. section 1-4 subsection 2 of the Regulation. Because the period of suspension of not less than a year is statutory it was required to find a clear authority - a derogation authority - to allow the Regulation to make provisions where the period of suspension is reduced to less than the minimum period. The Supreme Court held that neither the text of the law nor the preparatory works contained any indications that the Regulation was intended to grant exemptions from the law. There were accordingly no grounds for going below the minimum period of one year set out in section 33.1 subsection 2 of the Road Traffic Act and the appeal was quashed. Because the Defendant had had the driving licence in his possession for over six months, the District Court's judgment was amended to the effect that a new driving test was no longer required, cf. section 8-3 subsection 5 of the Regulation.

Reference: HR-2012-333-A, case no. 2011/2046), criminal appeal against judgment.

  

Judgment

14 February 2012

Labour law. Age discrimination. Collective agreement. Helicopter pilots.

The case concerned age discrimination, cf. section 13-1 cf. section 13-3, and raised the question whether the employer based on the collective agreement is entitled to demand that helicopter pilots resign upon attaining the age of 60 years. The Supreme Court referred to the fact that the rules of the Working Environment Act must be interpreted to be compatible with EU Directive 2000/78/EF relating to equal rights in working life and the European Court of Justice’s case law. In the decision C-447/09 (Prigge) the EU Court held that a special age limit for pilots could not be justified by safety considerations or health given that the certificate rules allow flying until the pilot attains the age of 65. Also in Norway the certificate rules provide that commercial flying is allowed until the pilot is 65 subject to certain specific conditions. The Supreme Court held that it then followed directly from the Prigge judgment that safety considerations or health aspects cannot justify the 60-year limit for the helicopter pilots. The pilots’ claim for continued employment was allowed and they were awarded costs before all courts.

Reference: HR-2012-325-A, case no. 2010/127, civil appeal against judgment

 

Judgment

14 February 2012

Insurance law. Motor vehicle liability

On getting out of a tank lorry the driver lost his footing and fell approximately 1.5 meters contracting a permanent injury to his shoulder. The issue of the matter was whether this was an injury that was comprised by liability under section 4 of the Motor Vehicle Liability Act, cf. its wording: “If a motor vehicle causes damage …”.  The Supreme Court evaluated the preparatory works of the Act and case law and referred to the fact that the condition “causes” contains a causal requirement. In this case the dominant causal factor was the design and height of the tank lorry. There was no basis for blaming the driver’s behaviour. The Supreme Court held that the injury was comprised by the liability and quashed the insurance company’s appeal.

Reference: HR-2012-326-A, case no. 2011/1641, civil appeal against judgment.

 

Judgment

9 February 2012

Damages. Remedy for non-economic loss after grossly negligent rape. General level of damages. Litigation costs. section 3-5 of the Compensatory Damages Act.

A man was convicted of having had sexual intercourse with the victim while she was asleep due to intoxication and fatigue, cf. section 192 subsection 1 b, cf. subsection 4,of the Penal Code. He had also taken pictures during the intercourse and distributed these to friends. The Supreme Court found that the standard for remedy for non-economic loss after grossly negligent rape, which in 2006 was set at NOK 60 000, should now be adjusted upwards to NOK 90 000, in parallel with the adjustment in 2011 of the standard damages for intentional rape to NOK 150 000. The photographs represented a considerable additional burden for the victim, and the Court of Appeal's determination of damages in the amount of NOK 100 000 was found suitable. As regards costs, the Supreme Court majority held that neither the Defendant nor the victim could demand that the other party be ordered to refund the State's costs, cf. section 100, cf. section 435,of the Criminal Procedure Act and Supreme Court judgment HR-2012-32-A . (Dissenting vote 4-1)

Reference: HR-2012-293-A, case no. 2011/1693), civil appeal against judgment.

 

Judgment

9 February 2012

Criminal law. Application of the law. Aggravated robbery resulting in death. Guilt requirement.

The case concerned the Court of Appeal's application of the law when convicting the defendant of aggravated robbery resulting in death, and the issue was whether the guilt requirement as regards the resulting death, cf. section 43 of the Penal Code, had been applied correctly. The defendant was sentenced in the Court of Appeal to 5 years' imprisonment for aggravated robbery together with two others of an elderly woman in her flat, cf. section 268, cf. section 267, of the Penal Code. Another defendant had tied up the woman, placed her on her stomach on the bed and covered her with eiderdowns and pillows before they left her. She died from a combination of pain, stress reaction, the position she had been placed in, and that her respiratory passages had been blocked under the bed clothes. After a review of the records of the presiding Court of Appeal Judge's summation to the jury, the Supreme Court held that no error had been committed for the defendant's possibility of realizing the risk of resulting death, and the appeal was quashed.

Reference: HR-2012-292-A case no. 2011/1518, criminal appeal against judgment.

 

Judgment

1 February 2012   

Law of torts and contract. Employer’s liability. Bullying in primary school. Standard of due care.

The case concerned a claim for compensation against a local authority for damage as a result of bullying in primary school during the years 1987 to 1993. Before the Supreme Court the question was whether the Court of Appeal had applied the correct standard of due care. The pupil was over several years isolated, teased and the object of verbal “mudslinging” without having the possibility of answering back. There was no doubt that the tormenting was of a nature, a frequency and a duration that must be characterized as bullying. The Supreme Court held that the follow-up from the school was inadequate. The gist of the means the school used was to improve the pupil’s social maturity. The school was guilty of negligence in having failed at an earlier point to seek a clarification of the situation and to take action against the bullies. Based on an overall evaluation the Supreme Court held that the requirements which it was reasonable to expect the school to meet had been set aside and there were grounds for awarding compensation pursuant to section 2-1 of the Compensatory Damages Act.

Reference: HR-2012-241-A, case no. 2011/1163, civil appeal against judgment.

 

Order

24 January 2012

Civil Procedure. Competence

Question of competence of a Supreme Court Justice in a case relating to invalidity and revision of loan-financed purchase of composite savings products. The justice had earlier held an office on the control committee in another finance group than the one that was a party to the case. The Supreme Court held that there were special circumstances suggesting that the justice was incompetent, cf. section 108 of the Courts of Justice Act. Importance was in particular attached to the fact that an objection to his competence had been raised by one of the litigant parties and that one of the appellants had brought an action concerning a similar investment product against the finance group in which the justice had held an office.

Reference: HR-2012-203-A, case no. 2011/1053), civil appeal against judgment.

 

Judgment

24 January 2012

Criminal law. Sentencing. Preventive custody. Attempted murder.

The case concerned determination of penalty or sanction for attempted murder under particularly aggravating circumstances. The victim had suffered a series of knife wounds to the neck region. Because of doubt whether the requirement contained in section 39c of the Criminal Procedure Act as regards imminent risk of such new crimes as addressed in the provision was met, preventive custody was not used. In the sentencing importance was attached to the fact that the victim of the attempted murder was a young sleeping boy, that it was unprovoked and carried out in an extremely painful manner and that the victim suffered serious and permanent physical injuries and major mental after-effects. The Defendant's confession only carried limited weight. Sentence was set at 7 years and 6 months' imprisonment.

Reference: HR-2012-185-A, case no. 2011/1726, criminal appeal against judgment.

 

Judgment

23 January 2012

Contract law. Surety’s liability. Guarantee agreement.

The case concerned interpretation of a suretyship of NOK 2 million that was provided as security for claims exceeding NOK 5 million in an ongoing supplier relationship. The Supreme Court majority held that it was the size of the debt at the time of default, and not at the time of the statutory demand for payment, that was decisive for the question whether the agreed threshold for when surety’s liability could be invoked was met. The Supreme Court affirmed the District Court’s judgment that the guarantor was liable.

Reference: HR-2012-167-A, case no. 2011/1383), civil appeal against judgment.

 

Judgment

23 January 2012

Criminal law. Application of the law. Environmental law. Landscape conservation.

The case concerned the application of the law in a criminal case concerning violation of section 5 of the Nature Conservation Act and section 93 i of the Planning and Building Act. A road cooperative had done some work on an old trail in a preserved landscape area without the necessary permission. The Supreme Court majority emphasized that the question whether a violation had been committed must be decided on the basis of an evaluation of how the natural and cultural landscape emerged before and after the work in question respectively, including what it would look like after some time had elapsed, taking into consideration foreseeable use of the road. The acquittal was not based on any such evaluation. The Court of Appeal’s judgment with main hearing was quashed.

Reference: HR-2012-168-A, case no. 2011/1677, criminal appeal against judgment.

  

Judgment

23 January 2012

Contract law. Surety’s liability. Guarantee agreement.

The case concerned interpretation of a suretyship of NOK 2 million that was provided as security for claims exceeding NOK 5 million in an ongoing supplier relationship. The Supreme Court majority held that it was the size of the debt at the time of default, and not at the time of the statutory demand for payment, that was decisive for the question whether the agreed threshold for when surety’s liability could be invoked was met. The Supreme Court affirmed the District Court’s judgment that the guarantor was liable.

Reference: HR-2012-167-A, case no. 2011/1383), civil appeal against judgment.

  

Decision

19 January 2012

Civil procedure. Impartiality. Section 108 of the Courts Act.

The case concerned the selection of judges for a plenary session as a Grand Chamber by drawing lots. According to section 1 subsection 1, 3^rd and 4^th sentences, of the Rules of Procedure for the Supreme Court in session as a Grand Chamber, judges who are not impartial or who “on due grounds request to be recused from handling the case” shall not be included in the drawing of lots.  The decision under the 3^rd and 4^th sentence shall be made by the Chief Justice of the Supreme Court. Justices Matningsdal, Øie, Webster and Kallerud shall be excluded from the selection of judges for the case to be tried by a Grand Chamber against the State represented by the Commission for the Reopening of Criminal Cases.

Reference: HR-2012-155-J, case no. 2011/1820), civil appeal against judgment 

 

Judgment

13 January 2012

The Land Concession Act, sections 1, 2, 9. The Public Administration Act, section 25.

ECHR Protocol 1 article 1.

The case concerned the validity of a decision by the County Agricultural Committee to deny concession for the acquisition of two pieces of forestland.

Reference: HR-2012-108-A, case no. 2011/1153, civil appeal against judgment.

Reference: HR-2012-167-A, case no. 2011/1383), civil appeal against judgment.

  

4 January 2012

Law of torts. Basis for liability. Actual bodily harm. Self-defence.

The case concerned a claim for compensation for actual bodily harm where the wrongdoer was acquitted on the grounds of self-defence because under criminal law it must be taken for a basis that in his perception he was the victim of an attack by the injured party. The Supreme Court held that mistake must be adjudged differently under criminal law and under the law of torts. While it was reasonable to exempt him from punishment on the basis of the perpetrator's perception of danger, there was, generally speaking, not much reason to deny the injured party compensation on those grounds. The exemption rule in section 1-4 2nd sentence of the Compensation Act was only applicable if the act of self-defence was aimed at a person or an object which in actual fact caused the danger. Cases where the wrongdoer incorrectly believed that he was in danger must be adjudged according to the main rule in the first sentence with the consequence that the wrongdoer was required to indemnify the damage caused by his act of self-defence. The Court of Appeal's acquittal was quashed in respect of the decision of the claim for compensation and damages for non-economic loss.

Reference: HR-2012-32-A, case no. 1/1408, civil appeal against judgment.