Summaries
JUDGMENT
20 December 2013
Labour law. Hired staff. Demand for permanent employment.
An employee who was employed with a company whose object was not to hire out staff, worked throughout the term of employment in a full-time position for another company. The employment with the company hiring out staff and the hiring out to the other company were initiated and justified by the latter company’s needs, and the employee did not have any position with the company hiring out staff to return to. The Supreme Court did not take a stand on the question of whether it was the legal section or the department where the employee was formally employed that constituted the undertaking, as this term is used in section 14-12 subsection 1 of the Working Environment Act. It was considered decisive that the hiring situation was so remote from what was intended to be comprised by section 14-12, that the hiring out could not be deemed to be warranted by this provision. The employee was accordingly entitled to permanent employment with the company to which he was hired out pursuant to section 14-12 subsection 4 cf. section 14-9 subsection 5 of the Working Environment Act.
Reference: HR-2013-2663-A, case no. 2013/717, civil appeal against judgment.
JUDGMENT
19 December 2013
Criminal law. Sentencing. Courier. Rivotril.
The punishment for violation of section 162 subsections 1 and 2 of the Penal Code was set at a term of imprisonment of two years and six months. The offender had organised the import of 20 000 Rivotril tablets with an average content of the active ingredient clonazepam of 2 milligrams per tablet. The Supreme Court cited that in practice there is little difference between Rivotril and Rohypnol and found that violations related to Rivotril shall be punished more or less like similar violations related to Rohypnol. It was also stated that the determination of the degree of hazard of a narcotic is not subject to the criminal standard of proof, but that in the evaluation of the experts’ statements the court shall rely on a ”realistic and sober comparison.”
Ref.: HR-2013-2655-A, case no. 2013/1019, criminal appeal against judgment.
JUDGMENT
19 December 2013
Criminal law. Sentencing. Actual bodily harm.
The punishment for violation of section 229 first penal alternative of the Penal Code was set at a term of imprisonment of 75 days. The offender had head-butted the injured party in the face causing a broken nose. The injury was not quite in the lower category of section 229, but still less serious than a normal case. Reference was made to the fact that the injured party was not a random victim and that the offender had made a full confession. The judgment was passed with dissenting votes 4-1.
Ref.: HR-2013-2658-A, case no. 2013/1457, criminal appeal against judgment.
JUDGMENT
19 December 2013
Law of damages. Patient injury. Mental injuries.
A woman had suffered mental injuries after having given birth to a child with Down’s syndrome. She had not received proper health care in that she had not been offered amniotic fluid diagnostics, cf. section 2 subsection 1 a of the Patient Injuries Act. The Supreme Court majority concluded that mental injuries so closely linked to the birth of a child should not be subjected to an assessment with a view to financial aims and are accordingly not protected under the law of damages. Nor was the refusal to give her an amniotic fluid test in contravention of Article 3 or Article 8 of the ECHR. The court found in favour of the State represented by the Patient Injuries Board. Dissenting votes 3-2.
Ref.: Supreme Court-2013-2640-A, case no. 2013/1187, civil appeal against judgment.
JUDGMENT
17 December 2013
Limitation period. Claim for reimbursement. Illegal state support. ESA decision
In a decision of 30 June 2004 ESA had ordered the State to claim reimbursement of illegal state support in the form of exemption from electric power tax for power-demanding industry. A reimbursement decision was made by Customs Region West Norway on 17 September 2007. The Supreme Court concluded that it was the latter decision, and not ESA’s decision of 30 June 2004 that established a reimbursement obligation. The limitation period of three years under section 2 of the Statute of Limitations consequently did not start to take effect until 17 September 2007. Hence, the claims were not statute-barred.
Ref.: HR-2013-2623-A, case no. 2013/1112, civil appeal against judgment.
JUDGMENT
12 December 2013
Division of spouses’ common estate. Apportionment of benefits in kind. Special reasons.
In connection with the division of a spouses’ common estate the former common residence was apportioned to the wife pursuant to section 67 subsection 1 a of the Marriage Act. The Supreme Court cited that the right to apportionment of benefits in kind depends on a discretionary assessment where the requirement for “special reasons” cannot be stretched very far. In the decision importance was attached to the fact that she was the only one who wanted to take over the property and that she had a strong affiliation to the place. The husband’s interest in having the property sold on the open market rather than receiving a settlement on the basis of a valuation of the estate could not carry any weight.
Ref.: HR-2013-2581-A, case no. 2013/422, civil appeal against judgment.
JUDGMENT
12 December 2013
Division of spouses’ common estate. Apportionment of benefits in kind. Familial affiliation
A husband and wife had built a common residence on a plot of land that had been parcelled out from the wife’s family farm. The plot was a gift from her parents. The Supreme Court concluded that the gift exemption in section 67 subsection 1 a of the Act relating to property relationship between spouses did not prevent the husband from claiming that the plot be apportioned to him in the division of the common estate. Reference was made to the fact that a plot that has been received with a view to development does not fall under the gift exemption. The parties were considered to be on a par in terms of needs and interests. The Supreme Court concluded that the property should be apportioned to her. Decisive weight was attached to the fact that the plot had been parcelled out from and was part of the family farm, of which she was now also the owner.
Ref.: HR-2013-2582-A, case no. 2013/938, civil appeal against judgment.
JUDGMENT
11 December 2013
Criminal law. Sexual intercourse with a minor. Equals.
By the Court of Appeal’s decision it was decided with final and binding force that two boys of 15 and 18 respectively, who had engaged in sexual activities, must be regarded as more or less equals in terms of age and development. The Court of Appeal had nevertheless convicted the elder of the two. The Supreme Court concluded that there was no basis for establishing a situation of abuse and that the exemption from punishment provision in section 196 subsection 4 of the Penal Code should therefore be applicable. It was emphasized that there is no basis for considering the question whether punishment should not be applicable pursuant to section 196 subsection 4 of the Penal Code differently in case of homosexual as opposed to heterosexual relations. The defendant was acquitted.
Ref.: HR-2013-2575-A, case no. 2013/1595, criminal appeal against judgment.
JUDGMENT
11 December 2013
Criminal law. Sentencing. Actual bodily harm. Unprovoked assault
The punishment for violation of section 228 cf. section 49 cf. section 232 of the Penal Code was set at a term of imprisonment of 45 days. After someone else attacked the victim the defendant had tried to push the victim away from the assailant and in that connection punched at the victim with his fist but missed. It was an unprovoked assault on an 18-year old boy perpetrated jointly in the street at night in Oslo. Some importance was attached to a full confession. The offender’s young age did not give grounds for a suspended sentence.
Ref.: HR-2013-2577-A, case no. 2013/1247, criminal appeal against judgment.
JUDGMENT
11 December 2013
Guarantee liability. Repairs. Parallel-imported products
The claim of a company handling parallel import of television sets from a Korean manufacturer that the manufacturer’s Nordic distribution company was obliged to cover the repair costs that were comprised by the manufacturer’s warranty liability was upheld. Reference was made to the fact that the warranty must be understood to mean that the distribution company was guarantor in Norway and that the warranty liability under the warranty was quite general and made no exception for imported products. Substantive considerations could not lead to a different solution.
Ref.: HR-2013-2576-A, case no. 2013/514), civil appeal against judgment.
JUDGMENT
5 December 2013
Bankruptcy. Limited Company. Mortgaging. Provision of security
Real estate that belonged to a limited company was put up as security for a loan to the buyers of the shares in the company. The loan was partly used to repay the company’s debt and partly paid to the sellers of the shares. The company’s bankrupt estate’s claim that the mortgaging came under the prohibition in section 8-10 subsection 1 of the Companies Act. The company was not comprised by section 9 cf. section 10 of the exemption in Regulation no. 1336 of 30 November 2007 since it was not a property holding company in the sense of the Regulation. The Supreme Court majority also concluded that the bank had not been in reasonable good faith so that also the exemption in section 11-1 of the Companies Act was unapplicable. The bank was held liable to pay to the estate an amount equivalent to the amount that had been paid to the sellers of the shares. A minority of two judges held that the bank had been in reasonable good faith. Dissenting votes 3.2.
Ref.: HR-2013-2531-A, case no. 2013/544, civil appeal against judgment.
Interlocutory Order
4 December 2013
Compulsory debt settlement. Spouses. Joint and several liability.
A spouse requested compulsory debt settlement in a situation where the spouses were joint owners of their common dwelling and were jointly and severally liable for the housing debt. The Supreme Court concluded that in this situation it was only half of the housing debt that was comprised by the exemption provision in section 4-8 subsection 1 a of the Debt Settlement Act.
Ref.: HR-2013-2519-A, case no. 2013/479, civil appeal against Interlocutory Order.
JUDGMENT
4 December 2013
Civil procedure. Competence. Court of appeal judge
A court of appeal judge who is president of the Petroleum Tax Appeal Board was not considered incompetent in the Court of Appeal’s hearing of a case relating to tax on profit from the sale of shares, cf. section 108 of the Courts Act. Decisive weight was attached to the combination of the Appeal Board’s duties as an appeal instance, the assumption of the board’s professional independence and the fact that the Petroleum Tax Office and Tax East constitute different parts of the tax authorities. Nor did the tax issue that was heard by the Court of Appeal belong under the Appeal Board’s field of competence. The issue of competence had been heard by the Appeals Committee of the Supreme Court earlier, cf. Rt. 2012-1769, but the Supreme Court was not bound by the decision of the Appeals Committee, cf. section 19-10 subsection 2 of the Disputes Act . Dissenting votes 3-2.
Ref.: HR-2013-2518-A, case no. 2013/412, civil appeal against judgment.
JUDGMENT
3 December 2013
Limitation. Claim for compensation.
Those entitled to board and lodging who had contributed to the building of a new secondary dwelling on the farm were entitled to compensation according to section 10 of the Act relating to Incidental Ownership. As regards the question whether the claim for compensation was statute-barred, the Supreme Court relied on a natural presumption that the claim could not be considered to have fallen due until the debtor of the claim acquired disposal of the part of the property that had gained the added value that formed the basis of the claim. The limitation period for the claim for compensation accordingly did not start running until the last person entitled to board and lodging had vacated the dwelling. Hence, the claim was not statute-barred.
Ref.: HR-2013-2503-A, case no. 2013/707, civil appeal against judgment.
INTERLOCUTORY ORDER
21 NOVEMBER 2013
Handing over and conveyancing of real estate
The buyers of a newly erected house stated during the takeover proceedings that they would instruct the settlement broker, who had received the entire purchase sum, to deposit a considerable part of that amount. Neither takeover nor deposit was carried into effect. The buyers requested an interim injunction claiming a right to take over the house. The Supreme Court majority concluded that section 46 subsection 1 of the Houses Construction Act must be understood to mean that seller is not entitled to payment until the transfer of title has taken place even if the parties have agreed that the buyer has been granted the right to move in before the purchase price is paid. The right to deposit is thus intact until buyer’s obligation to pay occurs, cf. section 49 of the Houses Construction Act, and this obligation does not occur until the legal title is registered in the name of the buyer. The Court of Appeal’s Interlocutory Order, which was based on the opposite assumption, was repealed. The minority of two judges held that the obligation to pay was triggered by the handing-over of the title deed to the broker and that the deposit accordingly had to be made at the latest at the same time as the take-over proceedings. Dissenting votes 3-2.
Ref.: HR-2013-2442-A, case no. 2013/1569, civil appeal against Interlocutory Order.
JUDGMENT
21 NOVEMBER 2013
Criminal law. Application of the law. Sentencing. Actual bodily harm. «Considerable injury»
The punishment for violation of section 229 2nd penal alternative, cf. section 232, of the Penal Code was set at a term of imprisonment of one year and ten months. The offender had kicked and struck the head of his former girlfriend resulting in the victim suffering, amongst other injuries, a fracture to the eye socket, several fractured ribs, a swollen face with bruises and a cut to the lip. The Supreme Court concluded that the victim’s injuries did not constitute «considerable injury to the body or health», cf. section 9 subsection 1 of the Penal Code . Nor could the alternative, «protracted illness» in section § 9 be interpreted to mean that it was possible to add a period of physical ailments to a further period of mental ailments that were not «grievous» in the sense of the law in order to thus attain a sufficiently long period of illness. In the sentencing the court took as its starting point a punishment of close on 2 years’ imprisonment while granting a certain reduction for a partial confession.
Ref.: HR-2013-2441-A, case no. 2013/1444, criminal appeal against judgment.
JUDGMENT
21 NOVEMBER 2013
Criminal law. Application of the law. Threats to a public servant.
A woman, who brought a knife to a public office and threatened to use it on herself unless she got to talk to her caseworker, was indicted under section 128 of the Penal Code. The Supreme Court stated that decisive for criminal liability under this provision is whether the public servant by giving in to the threat will act wrongfully in the performance of her official duties. The provision does not apply to a person who threatens a public servant to perform an act which will give the perpetrator something to which he is entitled from the outset, but which the public servant for various reasons cannot perform then and there. Since it would not have been wrongful of the defendant’s caseworker to have a talk with her, the threat fell outside the scope covered by section 128 of the Penal Code. The Supreme Court acquitted the defendant pursuant to section 345 subsection 2 2nd sentence of the Criminal Procedure Act.
Ref.: HR-2013-2440-A, case no. 2013/1619, criminal appeal against judgment.
JUDGMENT
14 November
Commonhold. Division of costs. Commonhold fraction
In a commonhold consisting of seven blocks of flats there were lifts in four of the blocks. The Supreme Court majority of three judges concluded that all the unit owners – also the owners of units in the blocks with no lifts – had to share in the costs of operation, maintenance and repairs of the existing lifts based on the main rule in section 23 of the Commonhold Act relating to division according to the commonhold fraction. It was stated that the exemption rule on division according to the benefit to the individual unit must be interpreted restrictively and first and foremost be applicable to costs of new installations. The judgment was passed with dissenting votes 3-2.
Ref.: HR-2013-2409-A, case no. 2013/596, civil appeal against judgment.
JUDGMENT
14 November 2013
Key words. Criminal procedure. Procedure. Disclosure of prior convictions
In a drug case the Court of Appeal had denied the prosecutor’s request for the disclosure of two earlier drug convictions against the defendant before the jury’s decision of the question of guilt, cf. section 301 subsection 2 second sentence of the Criminal Procedure Act. With reference to preparatory works of the law, case law – including case law from the ECtHR – and legal theory, the judge stated that the main rule is that prior convictions may be read into evidence, that the right is the same in jury cases as in other cases and that the criterion must be whether prior convictions are relevant to the decision the question of guilt in the case at hand. The Court of Appeal had relied on too narrow a right to read prior convictions into evidence. The error may have influenced the jury’s decision of the question of guilt. The Court of Appeal’s judgment with appeal proceedings was quashed.
Ref.: HR-2013-2408-A, case no. 2013/1236, criminal appeal against judgment.
JUDGMENT
13 NOVEMBER 2013
Contract law. Construction contract. Payment in instalments. Limitation period.
In a construction contract case the Supreme Court majority of three judges concluded that the provision in NS 8405 point 28.1 on the right to claim payment in instalments during the performance of the work implies that the limitation period under section 3.1 of the Statute of Limitations starts running as and when the contractor can claim payment for work performed, adjusted for the provision in section 28.1 subsection 2 which provides that instalment invoices cannot be sent more than once a month. The minority of two judges held that the contractor’s final invoice must form the basis for limitation.
Reference: HR-2013-2382-A, case no. 2013/376, civil appeal against judgment.
13 November 2013
Special tax. Tax on emission of nitrogen oxides (NOx) from mobile rigs
With reference to section 5-1 g of the Special Tax Regulation of 11 December 2001 no. 1451 the Norwegian Directorate of Customs and Excise had ordered Statoil ASA to pay a tax on emission of nitrogen oxides from mobile rigs that were contracted to perform services in fields where the company was an operator. The tax subject is the person who «owns or operates» the entity subject to tax in question. The Supreme Court concluded that the regulation must be interpreted to mean that it was the drilling contractors, not the operator, who operated the rigs and were accordingly tax subjects. Conclusive weight was attached to the wording of the regulation. The State’s appeal against the Court of Appeal’s judgment, which rescinded the tax decision, was quashed.
Ref.: HR-2013-2397-A, case no. 2013/192, civil appeal against judgment.
JUDGMENT
13 November 2013
Criminal law. Dumping of fish. Catch log.
The conveyor belt on a factory trawler was designed so that part of the catch fell off the end of the belt and was subsequently pumped overboard. The master was acquitted of violation of sections 61 and 15 of the Marine Resources Act – the provisions on the obligation to land all catch of fish – and of the rules relating to the keeping of a catch log. The Supreme Court majority cited that a master must in general be able to rely on his crew having the ability and willingness to comply with the rules and regulations which they know are fundamental for the enterprise. The crew was well aware of the total prohibition against the dumping of fish and knew that the shipping company had zero tolerance on this point. The master had accordingly not been criminally negligent by failing to impress on the crew that fish falling on the deck must be picked up before it is pumped out. Dissenting votes 3-2.
Ref.: HR-2013-2399-A, case no. 2013/1208, criminal appeal against judgment.
JUDGMENT
12 November 2013
Allodial property rights. Right of succession to allodial land. Order of succession.
In a dispute relating to the right to take over an allodial property under administration on the grounds of right of primogeniture the Supreme Court concluded that a son took precedence over an older sister pursuant to the exemption rule in section 52 subsection 5 cf. section 21 subsection 3 of the Allodial Rights Act. The son had had the best allodial property right of the two of them until the transition rule in section 78 of the Allodial Rights Act was repealed in 2009. Importance was attached to the fact that throughout his adult life he had had the greatest expectations of taking over, had made the most arrangements and adjustments with this in mind, had the closest attachment to the farm and was the best suited to run it.
Ref.: HR-2013-2391-A, case no. 2013/226, civil appeal against judgment.
JUDGMENT
7 NOVEMBER 2013
Construction contract. Compensation. NS 3403 section 12.
A consulting engineer, whose design of a refrigeration plant was defective, had through his insurance company absorbed the costs of an unsuccessful attempt to repair. The fact that the engineer had undertaken the project management for the unsuccessful repair project did not imply that he had undertaken any financial liability beyond what followed from NS 3403 section 12, according to which liability is limited to NOK 5 million. Nor had he undertaken any extended obligation to repair. The payments in connection with the failed attempt to repair could then be set off against the employer’s subsequent claim for compensation within the framework of NOK 1.5 million. The court found in favour of the engineer.
Ref.: HR-2013-2344-A, case no. 2013/535, civil appeal against judgment.
JUDGMENT
6 NOVEMBER 2013
Tax law. Petroelum tax. Assessment of foreign owner of vessel.
A foreign-owned tanker which carried oil between installations on the Norwegian Shelf and Norwegian and foreign ports was assessed for income tax on the transport between the Shelf and Norwegian ports. Like the District Court and the Court of Appeal, the Supreme Court concluded that the assessment must be set aside. It was difficult to reconcile the preparatory works and the wording of section 1 of the Petroleum Tax Act. The preparatory works did not provide an unambiguous answer to the question whether the transport must be regarded as “a related activity”, but tax exemption was consistent with Norwegian maritime and shipping policy when the Petroleum Tax Act was adopted. Importance must also be attached to the Storting majority’s view when the shipowners’ tax scheme was amended in 1987. It emerged clearly here that Norwegian buoy loaders and shuttle tankers would fall within the shipowners’ tax scheme and thus not be comprised by the Petroleum Tax Act. A different system for foreign-owned ships would mean a lack of consistency in the rules and regulations. Overarching political considerations also carried weight. Detailed accounts of preparatory works of the law and legal theory.
Ref.: HR–2013–2332–A, case no. 2013/275), civil appeal against judgment. h
JUDGMENT
6 November 2013
Criminal law. Tampering with evidence. Confidentiality. Doctor
In order to keep his duty of confidentiality under section 21 of the Health Personnel Act in relation to a patient who had a bag of drugs on him when he was brought unconscious to the hospital a hospital doctor had rubbed the bag between his hands in order to remove DNA before he handed it over to the police. The hospital’s guidelines provided that drugs must be handed over to the police anonymized. Objectively speaking, the doctor had violated section 132 subsection 1 of the Penal Code on tampering with evidence. The Supreme Court nevertheless concluded that the doctor had respected his duty of confidentiality. The removal of DNA from the bag accordingly served a legal purpose and did not come under section 132 subsection 1 of the Penal Code. The appeal against the Court of Appeal was quashed.
Ref.: HR–2013–2333–A, case no. 2013/877), criminal appeal against judgment.
JUDGMENT
1 November 2013
Criminal procedure. Reading of statement to the police.
In a case under section 132 a of the Penal Code the Court of Appeal had not allowed the reading out of the statement which the injured party, who was lawfully absent, had made to the police. The defendant was acquitted. The Supreme Court cited that the norm determining whether or not the reading of a statement shall be allowed is whether a conviction will “only or to a decisive degree” be based on witness statements read out, cf. section 297 of the Penal Code and article 6.3 d of the ECHR. Even though the Court of Appeal had relied on too strict a norm, the Supreme Court concurred on the basis of an evaluation of the totality of the circumstances that the conditions for reading out the statement were not satisfied. Nor could it be assumed that the lawful absence of the injured party was mainly due to circumstances attributable to the defendant. The prosecution’s appeal against the Court of Appeal’s procedure was quashed.
Reference: HR–2013–2295–A, case no. 2013/1209, criminal appeal against judgment.
JUDGMENT
31 October 2013
Purchase of real property. Bank guarantee. Financing guarantee.
A bank had given a financing guarantee in connection with the purchase of flats under construction. Due to a mistake on the part of the real estate agent the guarantee was not given to the purchasing company but to the owner personally. The purchase did not go through. Seller made a cover sale and claimed compensation for the difference from the real estate agent. The Supreme Court concluded that the financing confirmation did not entail any guarantee vis-à-vis the seller which he could invoke directly vis-à-vis the bank, but merely confirmed the financing. There was accordingly no causal connection between the broker’s error and the loss that the seller suffered. The court found for the broker and his insurance company.
Reference: HR–2013–2284–A, case no. 2013/347, civil appeal against judgment.
JUDGMENT
29 October 2013
Labour law. Temporary position. Permanent employment.
A claim for permanent employment filed by a doctor undergoing specialist training – known as a specialty registrar - who had a temporary position with a health institution was not upheld, cf. section 14-1 subsection 1 of the Working Environment Act. The Supreme Court found that the work of specialist registrars was comprised by the provision relating to temporary employment in connection with active practice in section 14-9 subsection 1 c of the Working Environment Act. Importance was attached to a natural linguistic understanding of the term “active practice” and to the fact that a firm practice had been established for temporary employment of specialty registrars. The fact that they also met a need for labour was not decisive. Alternative submissions that the position was, according to its content, not suited to give the doctor specialist competence and that it was unsuited for specialisation were not upheld.
Reference: HR-2013-2247-A, case no. 2013/311, civil appeal against judgment.
JUDGMENT
23 October 2013
Family law. Children and parents. Visitation.
In a case related to visitation rights, the Supreme Court concluded that the father was not to be granted right to visitation with his 5-year old daughter, cf. section 43 subsection 1 third sentence of the Children Act. He had been accused of sexual acts with the mother’s child of a previous relationship, but the case was dropped due to insufficient evidence. There were no circumstances about him that would exclude limited visitation under supervision. However, the level of conflict between the parents was high. Reference was made to the impossibility of refuting the risk of abuse and decisive importance was attached to the obvious strain that this would entail for the mother and accordingly also for the care situation for their joint child. This strain would outweigh the advantage of meeting the father from time to time.
Reference: HR–2013–2214–A, case no. 2013/835, civil appeal against judgment.
Judgment
23 October 2013
The Constitution. Retroactive force. Fisheries law. Structural quotas. ECHR
The Regulation relating to structural quotas for the deep-sea fishing fleet, as it originally read after its entry into force in 2005, contained no limit as to the number of years during which a vessel could be allocated such quotas. In 2007, the Regulation was amended so that a time limit for the quotas was introduced. The Supreme Court majority of nine justices concluded that the amendment of the rule did not imply any retroactive effect in conflict with Article 97 of the Constitution. The majority took for their starting point that this was a question of an infringement of an established legal position and that the norm for constitutional protection was accordingly whether the retroactive effect would be particularly unreasonable or unfair.
In the assessment of reasonableness the point of departure was that the owner of a vessel that had been allocated a structural quota without any time limit based on the 2005 Regulation, and where the timeframe had now been limited to 25 years, could, objectively speaking, have strong expectations of retaining the quota without any time limit. On the other hand, importance was attached to the fact that the financial loss resulting from the time limit would not be very significant in view of the tax depreciation rules. The majority also considered it important that the shipping company would obtain advantages as a result of other elements of the established structuring regime, that the brunt of the effect would occur at some point well into the future and that the state should have considerable freedom to act when it comes to regulating the content of the fishing fleet’s framework conditions. The amendment to the regulation accordingly did not represent any particularly or clearly unreasonable or unfair infringement vis-à-vis the shipping company. Nor was the amendment in contravention of Article 1 of the 1st Protocol to the ECHR.
The majority found that it was the control rule in paragraph 2 of the Article that was applicable and that the infringement satisfied the proportionality requirement in this provision. A minority of five justices held that the amendment to the regulation was in contravention of the prohibition against retroactive effect in Article 97 of the Constitution. Another minority of three justices endorsed this position and furthermore held that the infringement was also in violation of Article 1 of the 1st Protocol to the ECHR.
Reference: HR-2013-2200-P, case no. 2012/1548, civil appeal against judgment.
JUDGMENT
22 October 2013
Contract law. Housing cooperative. Price regulation
A local authority and a housing cooperative had entered into an agreement to the effect that the sale of the shares in the housing cooperative would be based on the original price adjusted according to the trend in the consumer price index. The agreement was undetermined in time and any amendments of the by-laws on this point were subject to the consent of the local authority. The Housing Cooperatives Act 1960, which was in effect when the Housing Cooperative was established, required the Ministry’s consent in such cases. No such consent had been given and the price regulation was accordingly invalid for as long as the 1960 Act was in force. Under section 4-4 of the Housing Cooperatives Act 2003, all that is required for an agreement about a price regulation is that the provision in the by-laws has been endorsed by all owners of the shares and that it is based on objective grounds. The Supreme Court concluded under doubt that the share owners’ conduct after the new Act had come into force entailed that the endorsement requirement was fulfilled. There was an objective purpose of the price regulation, viz. maintaining the possibility for young house hunters to settle in houses of their own and there were no grounds for setting the agreement aside under section 36 of the Contracts Act.
Reference: HR–2013–2197–A, case no. 2013/615, civil appeal against judgment.
JUDGMENT
22 October 2013
Criminal law. Sentencing. Road traffic. Right of way. Personal injury.
The punishment for violation of section 238 of the Penal Code and related traffic offences was set at a suspended prison sentence of 21 days. As the driver of a motor vehicle the offender had made a left turn cutting across a public-transport lane where he collided with a motor cyclist who was coming in the opposite direction. The motor cyclist contracted fractures of his lower leg and was wholly and partly sick-listed for close to a year. The Supreme Court stated that the starting point for sentencing in cases where the driver of a motor vehicle has significantly failed to meet the requirements he must satisfy as a driver, shall be a custodial sentence. However, the time span of one year and two months before an indictment was issued constituted grounds for suspending the sentence. Reference was made to the fact that the circumstances of the case were clear and required little investigation.
Reference: HR–2013–2198–A, case no. 2013/1238, criminal appeal against judgment.
JUDGMENT
21 OCTOBER 2013
Insurance law. Occupational injury. Scope of the Act.
In a case that concerned the understanding of the interim provision contained in section 21 of the Industrial Injury Insurance Act, the Supreme Court stated that the Act, in case of illness or injury that develops after the coming into force of the Act due to further exposure on the job, is applicable to the part of the injury or illness that is attributable to the subsequent exposure. In the District Court’s judgment,which was appealed directly to the Supreme Court, the question of a deterioration of the condition after the coming into force of the Act was not considered. The issue before the District Court was exclusively whether the basic illness had been ascertained before the Act came into force. Since the issue of a deterioration was first and foremost an evidentiary issue, which it was not deemed correct for the Supreme Court to decide as the fist instance, the District Court’s judgment was quashed.
Reference: HR-2013-2187-A, case no. 2013/171, civil appeal against judgment.
JUDGMENT
21 OCTOBER 2013
Insurance law. Occupational injury. Scope of the Act.
The insured had had a hearing injury from his working environment established before the Industrial Injury Insurance Act came into force on 1 January 1990, cf. section 20 cf. section 21. The injury had grown worse after that point in time. The Supreme Court stated that the part of the total hearing injury that was attributable to exposure to noise after 1 January 1990 fell under the Industrial Injury Insurance Act. The loss which the insured had suffered as a result of this part of the injury was accordingly recoverable under the Act.
Reference: HR-2013-2188-A, case no. 2013/221,civil appeal against judgment.
Interlocutory Order
18 October 2013
Criminal law. Protection of journalistic sources. ECHR
The special unit for police cases had submitted a request that a journalist be ordered to reveal the identity of a source who had made her an offer to buy police documents from the 22 July case. The Supreme Court, which decided the case in chambers, did not uphold the request. Since nothing had been disclosed as to the content of the documents, beyond the fact that they concerned the 22 July case, section 125 subsection 3 2nd sentence of the Penal Code was not applicable. The case was decided under section 125 subsection 3 1st sentence of the Penal Code, cf. Article 10 of the ECHR. The criteria in the Act about “weighty social interests” and “material importance for the clearing up of the case” were satisfied. Based on a concrete and overall assessment, the Supreme Court nevertheless held that the main rule about protection of sources in section 125 subsection 1 must be complied with. Importance was attached to the assumption that it was doubtful that the identity of the source would contribute to finding the police officer concerned and that the journalist had declined the offer.
Reference: HR-2013-2170-A, case no. 2013/1196, criminal appeal against Interlocutory Order
JUDGMENT
10 October 2013
Criminal law. Application of the law, procedure, sentencing, confiscation, economic crime.
The punishment for four violations of section 276 cf. section 275 of the Penal Code, three violations of section 271 cf. section 270 of the Penal Code, one violation of section 271 cf. section 270 cf. section 49, one violation of section 278 of the Penal Code and violations of the Tax Assessment Act and the Accountancy Act was set at a term of imprisonment of five years of which two years and six months were suspended. For another defendant in the same case the punishment for four violations of section 276 cf. section 275 of the Penal Code, three violations of section 271 cf. section 270 of the Penal Code, one violation of section 271 cf. section 270 cf. section 49, and one violation of the accountancy legislation was set at a term of imprisonment of four years, of which two years were suspended. The offenders’ misappropriation of funds consisted essentially in their having organised the resale of ships within a corporate sphere which they controlled for a significantly higher amount than the original purchase price and used the difference for purposes independent of the final owner. The fraudulent acts consisted essentially in lenders being given incorrect information about the real purchase prices for the same ships. The misappropriation of funds amounted to more than NOK 20 million and the fraudulent acts to more than NOK 80 million. In the judgment the Supreme Court took a stand on several questions regarding the understanding of section 275 of the Penal Code. The Court of Appeal’s ratio decidendi satisfied the requirements in section 40 of the Criminal Procedure Act. The case was old, which counted as an extenuating circumstance. That the risk of loss was in part significantly lower than the amounts involved in the fraudulent acts could not constitute grounds for a lesser sentence. The fact that the confiscation claims were examined without the third parties concerned being brought into the case did not constitute a procedural error.
Reference: HR–2013–2121–A, case no. 2012/1896, criminal appeal against judgment.
JUDGMENT
9 October 2013
Criminal law. Application of the law. Concurrence of offences. Human trafficking. Abuse of a relationship of dependency
In an appeal case that concerned the understanding of section 224 subsection 1 a) cf. subsection 2 a) and b) of the Penal Code the Supreme Court stated that the provision may also be applicable to someone who has abused the victim sexually and that the victim’s subjective experience of the situation is part of the total picture in the assessment of the question whether the person concerned was in a vulnerable situation. The provision may also be applicable to concurrence of offences in one act with section 193 of the Penal Code as it is not, in contrast to what applies under sections 193, the exploitation, which is the result of the abuse, which is covered by the provision, but the abuse leading to the exploitation.
Reference: HR–2013–2115–A, case no. 2013/1167, criminal appeal against judgment.
JUDGMENT
8 October 2013
Insurance law. Closing date for filing a claim. Insurance settlement after a fire
An insured was acquitted of a charge of arson. Notice of fire damage was filed with the insurance company three days after the fire. One year and 10 months after the advice of claim and one year and one month after the acquittal, the company advised that it considered itself exempt from liability under the non-life insurance. Under section 4-14 subsection 1 of the Insurance Contract Act such notice shall be submitted without undue delay after the company has become aware of the circumstance entailing that the rule is applicable. The Supreme Court, which agreed with the Court of Appeal that the company’s claim was filed too late, stated that the time-limit may start running even if the company is not aware of all circumstances that may justify exemption from liability and that an enhanced duty of activity arises if the company wishes to further investigate the matter in spite of a judgment acquitting the defendant.
Reference: HR-2013-2105-A, case no. 2013/189), civil appeal against judgment.
JUDGMENT
7 October 2013
Insurance law. Insurance conditions. Ship.
A ship that had had a new bilge pump system installed in connection with a reconstruction sustained considerable damage following a leakage attributable to defects in the new bilge pump system. The conditions of the shipyard’s liability insurance stipulated an exemption from liability for costs related to the performance of the shipyard’s contract, including damage to own delivery if the damage was attributable to defects or deficiencies existing at the time of delivery. The Supreme Court held that the repair costs after the damage had sufficient connection to the original reconstruction contract and that the exemption was furthermore not limited to the defective part of the delivery. Other sources of law could not lead to any other result. The court found for the defendant company.
Ref.: HR-2013-2094-A, case no. 2013/348, civil appeal against judgment.
JUDGMENT
26 September 2013
Criminal law. Sentencing. Sexual intercourse with a child under 16.
The punishment for violation of section 196 subsection 1 of the Penal Code was set at a term of imprisonment of two years and three months. The offender, who was at the time around 50 years old, had over a period of 22 months regularly had coitus and other forms of sexual intercourse with a girl from she was almost 14 until she turned 16. The young age of the injured party when the sexual intercourse started, the fact that the offender had abused his prominent public position to obtain sexual intercourse with the injured party and the fact that on several occasions sexual intercourse had taken place without the use of contraceptives counted as aggravating circumstances. Reference was also made to the fact that this was a particularly strong breach of trust vis-à-vis the injured party and her parents, who believed she was in safe hands with the offender. Extensive media coverage and the offender’s health problems as a result of the case did not count as extenuating circumstances.
Reference: HR–2013–2023–A, case no. 2013/1351, criminal appeal against judgment.
JUDGMENT
18 September 2013
Criminal law. Sentencing. Inside trading.
The punishment for violation of section 14-3 subsections 1 and 2, cf. sections 2-3, 2-4 and 9-2, of the Securities Trading Act (1997) was set at three years’ imprisonment, of which one year and six months suspended. The offender, who was a stock broker and a partner in a major brokerage firm, was guilty of 5 cases of incitement to inside trading and of breach of a non-disclosure agreement as regards inside information and breach of the rules relating to generally accepted business standards for stock brokers. He had tipped off potential investors and broker colleagues based on information he got from a friend who was a journalist. The deterrent effect consideration carried significant weight. Reference was also made to the offender’s professionalism and crucial role and the major potential damage inherent in the act. Due to the long time span, one and a half years of the sentence was suspended.
Reference: HR-2013-1977-A, case no. 2013/821, criminal appeal against judgment
JUDGMENT
18 September 2013
Aministration law. Validity of administrative decision. New information. A fish-farming company whose application for a license for aquaculture was rejected, appealed against the decision of the regional office of the Directorate of Fisheries to the Directorate and presented new information in connection with the allocation criterion which was deemed not to have been satisfied. The Directorate maintained the rejection without considering the new information. The Supreme Court found it clear that it transpired from what is known as the allocation regulation – Regulation of 12 March 2009 no. 298 relating to the allocation of license for aquaculture concerning edible fish of salmon, trout and rainbow trout in seawater in 2009 – from the Ministry’s comments on the Regulation and from the application form that new information that came in after expiry of the application deadline and which concerned the allocation criteria would not be taken into consideration. The Aquaculture Act did not prevent this application regime which limited the case before both instances to merely comprise the information that was significant for the selection of applicants available when the time-limit for application expired. There would thus not be any contravention of the provision regarding the competence and obligations of the appellate body set out in section 34 subsection 2 of the Public Administration Act.
Reference: HR-2013-1976-A, case no. 2013/35, civil appeal against judgment.
JUDGMENT
17 September 2013
Law of succession. Undivided possession of an estate. Last will and testament
A surviving spouse, who had signed a request to retain undivided possession of an estate, wrote her last will and testament in favour of a nephew. In vain, the nephew contended vis-à-vis the first deceased’s intestate heirs that the request for undivided possession of the estate was not a dispositive statement. The Supreme Court stated that it would take a lot to establish that a dispositive statement had not been made in a case such as the one at hand. The conditions for retaining undivided possession of the estate pursuant to the section 89 in force at the time, cf. section 64, of the Administration of Estates Act had not been satisfied either given that the gross value of the estate was higher than twice the basic amount of the National Insurance. A submission that the undivided possession of the estate was invalid because it was based on breach of implied conditions was not upheld either. The first deceased’s intestate heirs were awarded half of the net assets of the estate of the longest living deceased.
Reference: HR–2013–1969–A, case no. 2013/402, civil appeal against judgment.
JUDGMENT
12 September 2013
Civil proceedings. Procedure. The relationship to the parties’ statements of claim. Adversarial principle
In a case concerning the rights of owners of mountain pastures to small-game hunting, fishing and grazing the statement of claim submitted to the Court of Appeal was for exclusive right to exercise these rights. The Court of Appeal awarded the owners specific percentages of the value of the rights, not percentages of the actual rights. The Supreme Court concluded that the gist of this compromise was in terms of quality no different from the subject matter of the statement of claim so that it fell within the framework of the parties’ statements of claim. Based on a statement from the Court of Appeal judges the Supreme Court assumed that the Court of Appeal had found sufficient evidentiary grounds for a distribution even if the parties had not voiced any explicit opinions as regards the concrete distribution. The problem had been addressed by the Court of Appeal in a way that clearly must be understood to mean that the court believed it had the required formal competence within the framework of the statements of claim. The parties had thus been given sufficient incentive to voice their opinion so that the adversarial principle requirement in section 11-1 subsection 3 of the Disputes Act was satisfied. The landowners’ appeals were quashed.
Reference: HR–2013–1938–A, case no. 2013/48, civil appeal against judgment.
JUDGMENT
9 September 2013
Criminal Law. Sentencing. Pocket-picking
The punishment for four violations of section 258 cf. section 257 of the Penal Code was set at a term of imprisonment of eight months. The thefts concerned mobile phones and were committed in a public place – what is known as pocket-picking. The Supreme Court stated that the normal level of punishment for professional pocket-picking committed systematically and for the purpose of making a living of this activity – as in this case – should be 90 days’ imprisonment. Reference was made to the fact that thefts of mobile phones represent an activity harmful to the community which hits the victims hard, and to the fact that this was a case of thefts committed in a public place where many people are walking about and there is a great need to feel safe. A confession and an earlier conviction in Rumania for similar offences were to a certain extent taken into consideration.
Reference: HR–2013–1892–A, case no. 2013/776, criminal appeal against judgment.
JUDGMENT
9 September 2013
Ground lease. Sublease. Determination of redemption price.
Sublessees of building sites presented a claim against the land owner for redemption of the sites, cf. section 42 subsection 4 of the Ground Lease Act. The Supreme Court concluded that also in case of subleasing the redemption price shall be determined on the basis of the ground rent between the sublessee and the sublessor, cf. section 37 subsection 1 1st sentence of the Ground Lease Act. Reference was made to the wording and system of the Ground Lease Act and the assumptions of the preparatory works about direct application of the general rules contained in chapter VI of the Act. It was also stated that the method must be deviated from if it would result in a lower redemption price than what the landowner is entitled to under section 105 of the Constitution.
Reference: HR–2013–1891–A, case no. 2012/2101, civil appeal against judgment.
JUDGMENT
28 June 2013
Criminal law. Corporate penalty. Gross corruption.
After an employee in a consultancy company had been convicted of aiding and abetting corruption, the company was acquitted by the Supreme Court as far as the request for corporate penalty for the same violation was concerned, cf. section 276a subsection 1b, cf. section 276b, cf. section 48a and section 48b of the Penal Code. The Supreme Court pointed out that corruption belongs to the core area of corporate penalty and that the regard for the sanction to act as a general deterrent is an exceptionally strong feature in the picture. The Supreme Court majority furthermore stated that the regard for the general deterrent effect, the seriousness of the employee’s act and the company’s lack of guidelines and measures against corruption in principle called for the imposing of corporate penalty. However, 7 years had elapsed since the criminal behaviour had ceased, the company had initiated several measures to prevent corruption in the future, the employee who had aided and abetted had received a prison sentence, the act had resulted in extensive reactions from the World Bank, and there was a risk that the practising of the duty to dismiss according to the Purchase Regulation viewed collectively might have disproportionate consequences for the company. Dissenting votes 3-2 concerning the rationale.
Reference: HR-2013-1394-A, case no. 2012/2114), criminal appeal against judgment.
JUDGMENT
28 June 2013
Labour law. Construction contract. Labour leasing.
An employee demanded permanent employment based on an employment situation which he believed was comprised by section 14-12 subsection 4 cf. section 14-9 subsection 5 of the Working Environment Act relating to labour leasing. The former employer believed that the work was carried out as a construction contract. The Supreme Court stated that the distinction between leasing and construction contracts shall be based on an overall evaluation where the decisive point must be which of the parties is responsible for the management and the result of the work to be performed. For the distinction between construction contracts and labour leasing the crucial point cannot be whether the commission is to deliver a product or an ongoing service in the form of manning. Based on a concrete assessment of evidence the Supreme Court held that the disputed work, which was the delivery of intra-company postal service, was carried out as part of a construction contract. The appeal against the Court of Appeal’s judgment in favour of the defendant was quashed.
Reference: HR-2013-1391-A, case no. 2013/4, civil appeal against judgment.
JUDGMENT
27 June 2013
Criminal law. Sentencing. Preventive custody. Actual bodily harm. Especially dangerous instrument.
Punishment for violation of section 229 third penal alternative, cf. section 232 of the Penal Code was set at preventive custody with a timeframe of three years and six months. The offender had stabbed the victim in the stomach with a knife causing life-threatening bleeding. He had a previous conviction for actual bodily harm with a knife and the Supreme Court held that a suitable prison sentence would be three years and six months, cf. section 61 of the Penal Code. In this case there were grounds for preventive custody in that the offender was described as a rigid person who believed he was entitled to use violence when he felt unfairly treated or insulted, and he showed symptoms of alcohol dependence. The timeframe for preventive custody was set at the same as the prison sentence would have been, three years and six months. The Supreme Court also stated that a practice had developed where in normal cases a timeframe would be set equal to the alternative prison sentence.
Reference: HR-2013-1382-A, case no. 2013/498, criminal appeal against judgment.
JUDGMENT
27 June 2013
Criminal law. Sentencing. Preventive custody. Actual bodily harm.
Punishment for violation of section 229 first penal alternative of the Penal Code was set at 90 days’ imprisonment. At a restaurant the offender had with great force hurled an ashtray at his girl friend, but hit the doorman next to her instead. He suffered a cut to his head which required four stitches. The Supreme Court’s majority attributed importance to the fact that the level of punishment for gross violence, especially committed in a public place, has been tightened up after the amendment to the law in 2010. Dissenting votes 4-1.
Reference: HR-2013-1384-A, case no. 2013/975, criminal appeal against judgment.
JUDGMENT
27 June 2013
Criminal law. Sentencing. Narcotics. Entry ban
Punishment for violation of section 162 subsections 1 and 2 of the Penal Code and a violation of section 342 subsection 1 a of the Penal Code was set at a term of imprisonment of three years and six months. The offender had sold roughly 1 ½ kilos of cocaine and violated an entry ban after having been expelled. Parts of the cocaine had a low concentration. The Supreme Court stated that the level of punishment for violation of an entry ban should be raised so that a suitable punishment for a first offence is normally set at 60 days’ imprisonment. The fact that the case had taken a long time, for which the offender was not to blame, counted as an extenuating circumstance.
Reference: HR-2013-01388-A, case no. 2013/396, criminal appeal against judgment.
JUDGMENT
26 June 2013
Administrative law. Immigration law. Proforma marriage. Time of evaluation.
An application for a residence permit based on marriage was rejected and it was decided to expel the immigrant, the immigration authorities assuming that the marriage was proforma, cf. section 40 subsection 4 of the Immigration Act. In contrast to the District Court and the Court of Appeal, the Supreme Court held that the evaluation of the purpose of the marriage was to be based on the situation at the time of the contracting of the marriage, and not at the time of the decision. The Court of Appeal’s judgment was quashed.
Reference: HR–2013–1358–A, case no. 2013/145, civil appeal against judgment.
JUDGMENT
26 June 2013
Criminal law. Sentencing. Inside trading with bonds. Mistake of law.
Punishment for violation of section 17-3 subsection 1 of the Securities Trading Act was set at 45 days’ imprisonment. The offender had bought unsecured bonds for a little more than NOK one million issued by the company of which he was the managing director, while he knew that the company would probably be bought up. The Supreme Court stated that Supreme Court practice regarding inside trading of shares must be considered to be applicable in general and accordingly also to bonds. In case of inside trading of a certain extent, a custodial sentence will normally be imposed, which would also have to apply in case of inside trading with bonds. The inside trading was likely to weaken confidence in the market and to damage the company’s reputation. The offender’s confession and cooperation with the police carried weight as extenuating circumstances. His mistake of law did not carry any weight.
Reference: HR-2013-1367-A, case no. 2013/545, criminal appeal against judgment.
JUDGMENT
26 June 2013
Criminal law. Procedure. Sexual crimes. Competence.
A man who had been convicted in the District Court of sexual crimes appealed to the Court of Appeal against the assessment of evidence in connection with the issue of guilt. During the appeal proceedings the Court of Appeal became aware of the fact that the presiding District Court judge had conducted an interview of the child victim and that he had accordingly been incompetent, cf. section 108 of the Courts Act. The appeal proceedings were nevertheless completed and the offender convicted once again in the Court of Appeal. The Supreme Court stated that the Court of Appeal was under no obligation to quash the District Court’s judgment, cf. section 342 subsection 2.4 of the Criminal Procedure Act, if no appeal had been lodged against procedure. Decisive weight was attributed to the fact that the Court of Appeal had conducted a new independent and satisfactory hearing of the question of guilt. The offender’s appeal was quashed.
Reference: HR-2013-1359-A, case no. 2013/394, criminal appeal against judgment.
JUDGMENT
26 June 2013
Criminal law. Sentencing. Child pornography
Punishment for violation of section 204a subsection 1a of the Penal Code was set at eight months’ imprisonment. By methodical searching of the internet the offender had obtained extensive gross child pornography and contributed to the dissemination of the material by file sharing. The Supreme Court cited the legislators’ intention that the level of punishment for involvement with child pornography should be increased and that recent case law reflects a noticeable increase in the level of punishment for sexual intercourse with children.
Reference: HR-2013-1368-A, case no. 2013/523, criminal appeal against judgment.
JUDGMENT
21 June 2013
Tax law. Access to documents. Section 3–4 of the Tax Assessment Act. Article 6 of the ECHR
In a comprehensive tax case, which was also under investigation as a criminal case, the tax payer’s request for access to documents from the Tax Administration’s internal processing of the case was denied. The Supreme Court stated that the e-mail correspondence between the official in charge at Tax West and a special advisor of the Tax Directorate were comprised by the exemption from the right to access to documents in section 3-4 no. 2 c of the Tax Assessment Act. The term ”the tax assessment administration” must be understood to be the same as “the tax assessment authority”. The preparatory works do not provide any basis for a restrictive interpretation. Section 18c of the Public Administration Act concerning access to factual information etc. is not applicable to the tax assessment administration. The exemption from right to access in section 3-4 no. 2 c is also applicable to expert advice from persons holding a public office and who voice an opinion in the name of the office. Working notes from an official from the Central Office – Foreign Tax Affairs, who belongs to Tax West, had been sent to both ØKOKRIM (the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime) and to the official in charge of the case at Tax West. Also these notes were subject to the exemption in section 3-4 no. 2 c of the Tax Assessment Act. Surtax is regarded as a penalty according to Article 6 of the ECHR so that the right to access must be fulfilled before a decision to impose a penalty tax is made. Since the Tax Directorate’s rejection of the request for access was made on a general basis without any concrete evaluation of the individual documents in relation to Article 6 of the ECHR, the decision was set aside for those document groups where the court did not find for the State.
Reference: HR–2013–1318–A, case no. 2012/1740, civil appeal against judgment.
JUDGMENT
21 June 2013
Criminal law. Criminal procedure. Insurance fraud. Elucidation of the case
The Court of Appeal had acquitted two men of insurance fraud, cf. Section 272 subsection 1 of the Penal Code, following the loss of a ship. The Supreme Court found that the Court of Appeal had not fulfilled its duty to ensure that the case was “completely elucidated”, cf. section 294 of the Penal Code, when acquitting the defendants without making sure that the issues which the Court of Appeal found unclear were looked into in further detail. The Supreme Court stated inter alia that even if the court can normally rely on the evidence presented by the prosecutor, the matter may nevertheless take such a turn that it is the court’s duty to ensure the production of supplementary evidence before acquitting the defendants, and that the clearer the picture of a criminal act emerges, the stricter becomes the requirement for the court to ensure an elucidation of the case when it after all does not find grounds for sentencing the defendants. The Court of Appeal’s judgment with appeal proceedings was quashed as far as the acquittal for insurance fraud was concerned, cf. section 343 subsection 1 of the Penal Code.
Reference: HR-2013-1317-A, case no. 2013/571, criminal appeal against judgment.
JUDGMENT
19 June 2013
Tax law. Sale of shares. Share consolidation.
The shares in a limited company were consolidated into one share which was subsequently sold. Before the consolidation the share capital consisted partly of original shares whose acquisition value had been written up after valuation at 1 January 1992, and partly of shares subscribed for by new issues after that date. The Supreme Court concluded that the special rule regarding limited right to deduction for loss in section 19-2 subsection 2 a.1 of the Tax Act was applicable unchanged to the original shares, also after their consolidation with newer shares that were not subject to the relevant provision. The loss that arose for the original shares after the remuneration had been distributed equally among all shares was accordingly not deductible. Decisive weight was attributed to the wording of the law and real considerations. It was also stated that the increase of the acquisition value resulting from the adjustment from 1992 did not come under section 10-34 of the Tax Act.
Reference: HR-2013-1303-A, case no. 2012/2009, civil appeal against judgment.
JUDGMENT
19 June 2013
Criminal law. Procedure. Reasons for judgment. Family violence.
The Court of Appeal had set the punishment for violation of section 219 of the Penal Code at a term of imprisonment of eight months in a case which concerned exclusively mental and not physical violence. The Supreme Court stated that also purely mental violence must be in the form of abuse in order to be punishable and that in these cases it must be sufficient that fear of the future is limited to new mental violations. However, it requires a great deal more in a case that concerns mental abuse than where the exercise of violence is both physical and mental. As the Court of Appeal’s reasons for judgment in this light did not provide sufficient grounds for deciding whether the defendant had in some other way “grossly or repeatedly” abused the victim, cf. section 219 subsection 1 of the Penal Code, the Court of Appeal’s judgment was quashed.
Reference: HR-2013-1302-A, case no. 2013/224, criminal appeal against judgment.
JUDGMENT
13 June 2013
Consumer purchase. Complaint. Limitation.
The seller of a second-hand car had carried out an unsuccessful repair of corrosion damage. The buyer complained of new manifestations of the same corrosion damage six years after the purchase. The Supreme Court concluded that the original and absolute 5-year time-limit for complaints set out in section 27 subsection 2 of the Consumer Purchase Act does not apply to notices of defects relating to seller’s repair work if these relate to defects in respect of which complaints have already been made within the time-limit. However, such notices of defects must be given within a reasonable period of time from the time the buyer becomes, or ought to have become, aware of the fact that the defect had not been repaired in a satisfactory manner. That the buyer had already before the first unsuccessful repair become aware of the fact that the car suffered from a defect for which the seller was liable did not entail that the extended time limit in section 10.1 of the Limitation Act was not applicable.
Reference: HR–2013–1261–A, case no. 2012/2190, civil appeal against judgment.
JUDGMENT
11 June 2013
Criminal law. Sentencing. Rape to sexual intercourse. Sleeping rape.
Sentence for violation of section 192 subsection 1b of the Penal Code was set at a term of imprisonment of three years and three months. The offender had inserted his fingers into the victim’s vagina and licked her genitals while she was intoxicated and asleep. The family relationship – the victim was the offender’s niece – and the difference in age – the two of them were 25 and 51 respectively – carried weight as aggravating circumstances. On the other hand, a certain reduction of the sentence was granted because the case before the Supreme Court had to be postponed twice without the offender being to blame.
Reference: HR-2013-1240-A, case no. 2012/1655, criminal appeal against judgment.
JUDGMENT
11 June 2013
Criminal law. Sentencing. Rape to sexual intercourse. Sleeping rape.
Sentence for violation of section 192 subsection 1b of the Penal Code was set at a term of imprisonment of two years. The offender had inserted his fingers into the victim’s vagina while she was intoxicated and asleep. The Supreme Court took as a starting point a normal sentence of three years and three months and reduced the sentence for confession and for the offender’s young age. He was 18 1/2 at the time of the offence.
Reference: HR-2013-1239-A, case no. 2012/1895, criminal appeal against judgment.
JUDGMENT
11 June 2013
Criminal law. Sentencing. Rape to sexual intercourse.
Sentence for violation of section 192 subsection 1b of the Penal Code was set at a term of imprisonment of three years and six months. After a completed taxi ride the offender had held the female taxi driver in his grip, beaten and kissed her and inserted his fingers into the victim’s vagina. The Supreme Court referred to the legislators’ assumption that there shall be no marked distinction in the level of punishment for rape to sexual intercourse and rape to vaginal intercourse took as a starting point a normal sentence of three years and three months. The fact that the offender had attacked a taxi driver on duty and that he was in 2011 convicted for another sex offence carried weight as aggravating circumstances.
Reference: HR–2013–1238–A, case no. 2013/452, criminal appeal against judgment.
JUDGMENT
4 June 2013
Copyright. Intellectual property. Level of originality. Standard house.
The Supreme Court majority concluded that the standard house Ambassadør emerged in terms of exterior as the result of an original and creative effort and that the requirement as to level of originality set out in section 1 subsection 2.9 of the Copyright Act was satisfied. It is not possible to stipulate a stricter requirement as to level of originality for construction art than what otherwise applies. Dissenting votes 3-2.
Reference: HR–2013–1187–A, case no. 2013/138, civil appeal against judgment.
JUDGMENT
31 May 2013
In a case which essentially concerned violation of section 147 a of the Penal Code – entering into a terrorist alliance – two men had agreed to detonate a bomb on or close to the premises of the newspaper Jyllandsposten in Århus, Denmark. The ringleader had earlier entered into a terrorist alliance with al-Qaida in Pakistan, where he had been trained in the making of bombs. The plans were not carried into effect, but abandoned at an early stage. In the judgment the Supreme Court took a stand on a series of issues relating to the understanding of section 147a subsection 3 of the Penal Code. A conviction is not contingent upon the defendant having planned or prepared a concrete act of terrorism. The decisive factor is whether an alliance has been entered into. It is required that a de facto agreement about such an alliance has been entered into, but it is not required that any specific details relating to the act of terrorism have been agreed. It is not a condition that there is agreement about the political/religious objectives to be pursued and it is irrelevant if one of the participants is mistaken about the actual objective of the other. Nor is it a requirement that the intention of the perpetrators is to commit an act of terrorism. Wilfulness is sufficient. The term «population» shall be understood to mean that a region or a major town or city is sufficient. A conviction for aiding and abetting presupposes that the aider and abetter has himself the intent to commit an act of terrorism. The ringleader was on this basis convicted for violation of section 147a subsection 3 to a term of imprisonment of eight years. The alliance with al-Qaida carried significant weight and the level of punishment for attempted premeditated murder was taken into account. The other perpetrator was sentenced for violations of section 147a subsection 3, cf. subsection 1b, of the Penal Code and section 161 subsection 3, cf. subsection 1a, cf. section 49 of the Penal Code, to a term of imprisonment of three years. Out of regard for his children, six months of the sentence were suspended and the remainder of the sentence considered to have been served in custody. A third party was sentenced for aiding and abetting in violating section 161 subsection 3, cf. subsection 1 a, cf. section 49, of the Penal Code. He had undertaken to procure one of the ingredients for the bomb. The fact that the ringleader had been acquitted for the same offence and that the attempt was a failure did not preclude punishability. As far as he was concerned, the sentence was set at 120 days’ imprisonment.
Reference: HR-2013-1143-A, case no. 2012/2081, criminal appeal against judgment.
JUDGMENT
31 May 2013
Property law. Boundary delineation. Landscape protection. Country cottages.
After the establishment of Trollheimen protected landscape area by order of the King in Council of 11 December 1987 no. 1066, a dispute arose as to where the boundaries were to be drawn in relation to a number of cottage owners, cf. section 88 subsection 1of the Land Consolidation Act. The Supreme Court held that section 88 subsection 5 of the Land Consolidation Act relating to the delineation of boundaries is not applicable to the determination of boundaries for public regulation of the right of disposal of real property. The boundaries for the protected area had to be found by interpreting the protection regulation and the map which was a part thereof. The boundary points were not disputed on the relevant stretch and the lines between them were described as straight lines. The fact that in certain places the lines ran so that some cottage properties came right within the reservation boundary or were intersected by them could not provide grounds for a deviation from these lines. Nor could the fact that such properties were not mentioned in the Landscape Protection Regulation provide grounds for a deviation. The private parties’ request for a deviation from the set boundaries was accordingly not upheld.
Reference: HR-2013-1145-A, case no. 2012/1907, civil appeal against judgment.
JUDGMENT
31 May 2013
Damages for non-economic loss. Stepchildren.
The Supreme Court concluded that stepchildren cannot be awarded damages for non-economic loss under section 3-5 subsection 2 of the Compensatory Damages Act. A claim for damages for non-economic loss must be anchored in law, and the question as to which circle of persons shall be eligible to be awarded damages for non-economic loss has been evaluated thoroughly by legislators. The fact that other persons have not been included is due to a deliberate choice. The claim for damages for non-economic loss against the offender from the injured party’s step daughter was rejected.
Reference: HR–2013–1144–A, case no. 2013/72, civil appeal against judgment.
JUDGMENT
29 May 2013
Criminal law. Sentencing. Rape. Attempt. Juvenile offender. Community service.
Punishment for violation of section 192 subsection 1 a, cf. subsection 2 a, cf. section 49, of the Penal Code was set at a term of imprisonment of two years and nine months, of which two years were suspended. The offender, who was 17 years and three months at the time of the offence, had attempted to rape a 71-year old woman. The fact that the offender was masked and broke into the victim’s home was considered an aggravating circumstance. On the other hand, the fact that the rape was not perpetrated, the offender’s confession and young age carried weight. A majority of four judges concluded that even if the door has been opened to a wider use of community service in case of offenders under the age of 18, cf. section 28a of the Penal Code, also in cases of sexual crimes, a sentence of community service would not to a sufficient degree mark the seriousness of the offender’s act. Dissenting votes 4-1.
Reference: HR–2013–1121–A, case no. 2013/235, criminal appeal against judgment.
JUDGMENT
28 May 2013
Law of damages. Leniency.
In connection with an insurance settlement after a traffic accident the injured party accepted an amount as «final settlement», «all inclusive». The amount did not comprise future loss of income in that in the settlement it was assumed that the injured party’s capability of work was intact. When the capability of work was later reduced to 50%, the injured party filed a claim for compensation for loss of income suffered and loss of future income. The Supreme Court held that section 36 of the Contracts Act under any circumstances entitled the injured party to present his claim for compensation for reduced capability of work and that it was accordingly not necessary to make a decision on the issue as to how the agreement regarding settlement should be interpreted. Reference was made to the criteria in RG-2005-968 as guiding for the decision when section 36 of the Contracts Act will lead to the necessity of setting aside a settlement agreement for personal injury due to subsequent circumstances. The Court of Appeal’s judgment in favour of the defendant was quashed.
Reference: HR-2013-1120-A, case no. 2012/1803, civil appeal against judgment.
JUDGMENT
24 May 2013
Criminal law. Sentencing. Sexual offence. Minor.
Punishment for violation of section 195 subsection 1 first sentence and section 197 of the Penal Code was set at one year and eight months’ imprisonment. The offender had on one occasion licked the genitals of his 4-year old daughter. The act was committed after the toughening of the sanctions against sex offenders in 2010. The Supreme Court found that in principle the level of punishment would be around two years and six months. However, the offender made an immediate confession and the case had been left with the police for a certain length of time.
Reference: HR-2013-1105-A, case no. 2013/632, criminal appeal against judgment.
JUDGMENT
23 May 2013
Criminal law. Sentencing. Street robbery.
The case concerned sentencing for aggravated robberies, cf. section 268 cf. section 267 of the Penal Code, and other criminal offences in connection with the robberies, including deprivation of freedom, cf. section 223 of the Penal Code. The robberies were part of a series of in all 15 robberies which took place at Grünerløkka in Oslo in the autumn of 2011. The four offenders were men around 18-19 years of age. The robberies were committed against younger men on their way home in the evening. They were assaulted and forced to hand over bank cards, mobile phones and other valuables. In connection with the robberies they were also subjected to other criminal offences. The Supreme Court stated that consideration of the deterrent effect calls for a strict sanction against robbery of this nature and that the offenders’ age could not carry any weight as an extenuating circumstance. However, if one of the robbers had had a significantly more predominant role than the others, this should be allowed to carry weight. For one of the offenders, who was guilty of three robberies, two of which were aggravated, and two cases of deprivation of freedom, punishment was set at three years and six months’ imprisonment. For another offender, who was guilty of three robberies and two cases of deprivation of freedom, punishment was set at two years and three months’ imprisonment. For a third offender, who was guilty of two robberies and two cases of deprivation of freedom, punishment was set at one year and nine months’ imprisonment. For a fourth offender, who was guilty of one robbery and one case of deprivation of freedom, punishment was set at one year and six months’ imprisonment. For three of the offenders a certain reduction of their sentences was granted because of their confessions, cf. section 59 subsection 2 of the Penal Code. There was no basis for reacting with a community sentence in any of the cases.
Reference: HR-2013-1085-A, case no. 2012/2139, criminal appeal against judgment.
JUDGMENT
23 May 2013
Criminal law. Sentencing. Sexual intercourse with children under the age of 14. Damages for non-economic loss.
Punishment for violation of section 195 subsection 1 2nd penal alternative of the Penal Code was set at two years’ imprisonment, one of which was suspended. The offender, who at the time of the crime was 18, had had vaginal intercourse with a girl aged 13 ½. The act, which showed signs of abuse, took place in 2008. The sentence was determined in the light of case law before the amendment in 2010, but the court took into consideration the gradual tightening up of sanctions in sexual offence cases which had taken place independently of the amendment to the law. Importance was attributed to the offender’s full confession. The Supreme Court majority – three judges – set the amount of damages at NOK 75 000. A minority of two judges voted for NOK 90 000. The judgment was passed with dissenting votes 3-2 concerning the damages for non-economic loss.
Reference: HR-2013-1086-A, case no. 2012/1865, criminal appeal against judgment.
JUDGMENT
23 May 2013
Criminal law. Sentencing. Sexual intercourse with children under the age of 14. Damages for non-economic loss.
Punishment for two violations of section 195 subsection 1 2nd penal alternative and one violation of section 151 cf. section 148, of the Penal Code was set at 420 hours of community service as a combined sentence with an earlier conviction for violation of section 228 subsection 2 1st penal alternative of the Penal Code. The offender, who at the time of the crime was 16, had had vaginal intercourse with two girls aged 13 years and 5 months and 12 years and 11 months respectively. The acts showed signs of abuse. The Supreme Court stated that consideration of the deterrent effect carried significant weight. The violation of section 151 cf. section 148 did not carry much weight in the determination of the sentence. Decisive for the determination of the sanction was the offender’s very young age. The amount of damages for one of the victims was reduced from NOK 75 000 to 60 000. Importance was attributed to the fact that the two of them were more or less equal in terms of age and development, cf. section 195 subsection 4 of the Penal Code.
Reference: HR-2013-1087-A, case no. 2013/17, criminal appeal against judgment.
JUDGMENT
23 May 2013
Criminal law. Sentencing. Aggravated fraud. Practising certificate.
Punishment for violation of section 270 subsection 1.1, cf. section 271, of the Penal Code was set at two years and six months’ imprisonment. The offender, who was a lawyer, had sold a property and in breach of the contract of sale he had omitted to extinguish the security interest in the property after having received the purchase amount. The major part of this amount was subsequently withdrawn from the lawyer’s clients account. Importance was attributed to the fact that this was a question of a serious risk of loss over an extended period of time, which was not averted until the creditors arranged for the injured parties to be held harmless. There was accordingly no reason to assess the offence in a significantly more lenient way than if the risk of loss had been realised. A majority of three judges concluded that in the sentencing the fact that the lawyer’s practising license had been revoked could not carry any weight. A minority of two judged were of the opposite opinion without filing a dissenting opinion regarding the meting out of the sentence.
Reference: HR-2013-1090-A, case no. 2013/239, criminal appeal against judgment.
JUDGMENT
22 May 2013
Ground lease. Adjustment of ground rent.
A long lease determined that the ground rent was to be adjusted every 10 years in proportion to the price trend for real estate in the relevant municipality. In 2001, the ground rent was charged within the framework of the price regulations and subsequently adjusted according to the consumer price index on an annual basis. The Supreme Court stated that there is a distinction between periodic adjustments of rent, which is lawful, on the one hand, and adjustments of the ground rent according to the contract on the other and that only contractual regulations prevent later adjustments under section 15 subsection 2 of the Ground Lease Act. An annual consumer price adjustment in line with the ground lease regulations accordingly does not prevent a later one-time adjustment according to what has been agreed. The Supreme Court majority – three judges – also concluded that the Supreme Court was authorised to hear a submission that had not been presented until the Respondent’s Notice of Intention to Defend the Appeal to the effect that the adjustment that had been made was contractual. The submission was not upheld. The minority did not take a stand on this issue.
Reference: HR-2013-1073-A, case no. 2012/1732, civil appeal against judgment.
JUDGMENT
22 May 2013
Criminal law. Application of the law. Abandonment of criminal purpose. Sentencing. Sexual crimes. Minors. Web camera. Grooming.
A 39-year old man had agreed on a remuneration for sexual intercourse, cf. section 202a, of the Penal Code, but abandoned the intent after having turned up at the agreed location. This must be regarded as a withdrawal from an incomplete attempt, cf. section 50 of the Penal Code, and the Supreme Court acquitted him of this offence. Punishment for violations of section 200 subsection 2 2nd penal alternative and section 201a subsection 1 of the Penal Code was set at 120 days’ imprisonment. The offender had attempted to get a girl of almost 15 to undress in front of a web camera. He did not succeed because she refused. He had also arranged to meet with another girl, who had given her age as 16, for the purpose of having her give him oral sex. He met her, but left the place when he learned that she was 15. He had previous convictions for similar offences.
Reference: HR-2013-1072-A, case no. 2013/534, criminal appeal against judgment.
JUDGMENT
21 May 2013
Criminal law. Sentencing. Aggravated fraud. Reopening. Supplemental judgment. Combined sentence. Breach of human rights.
In 2006, the District Court had set the sentence for violations of sections 132 a and section 271, cf. section 270, of the Penal Code at a term of imprisonment of six years. The Court of Appeal, which granted leave to appeal against the conviction under section 132 of the Penal Code while refusing to grant leave to appeal against the conviction under section 271 cf. section 270, of the Penal Code, in 2007 set the same sentence. The appeal against the refusal was the same year dismissed by the Appeals Committee of the Supreme Court. In 2008, the offender was convicted in the District Court for further violations of section 271 cf. section 270 and section 182 of the Penal Code, committed before the conviction of 2007, to a prison sentence of two years and six months, cf. section 64 of the Penal Code. In 2010, the Appeals Committee’s ruling from 2007 was revived as a result of the fact that the Court of Appeal had failed to give a rationale for its partial refusal to grant leave to appeal the same year, cf. article 14 no. 5 of SP. The Court of Appeal’s judgment from 2007 was subsequently set aside by the Appeals Committee. In the new trial the Court of Appeal set the sentence at a term of imprisonment of five years. The Supreme Court set the sentence as a combined sentence with the District Court’s judgment from 2008, cf. section 64 of the Penal Code, at a term of imprisonment of seven years and six months. The sentence was reduced by one year due to the time that had elapsed and the violation of human rights.
Ref.: HR–2013–1055–A, case no. 2012/1973, criminal appeal against judgment.
JUDGMENT
21 May 2013
Criminal law. Pollution. Emission to water courses.
A well drilling company engaged in drilling energy wells had emitted waste water mixed with dry matter from the well drilling into water courses. Even if the drilling of energy wells must be regarded as “temporary construction activities”, cf. section 8 subsection 1 of the Pollution Control Act, this was not a question of the type of normal pollution that is allowed. In this connection importance was attributed to the fact that water courses are vulnerable to this type of pollution and that the pollution in question could have been prevented by simple means. This meant that the pollution was in contravention of section 7 of the Pollution Control Act. This would also have been the situation if the polluted water had been conducted through municipal outlet pipes to the water course. The penalty for the polluter under section 78 subsection 2 of the Pollution Control Act was set at a fine of NOK 400 000.
Reference: HR-2013-1056-A, case no. 2013/46, criminal appeal against judgment.
JUDGMENT
8 May 2013
Occupational injury. Industrial accident. Post traumatic stress disorder
An ambulance driver developed a post traumatic stress disorder in the form of a media victim syndrome following intense media focusing after an incident in connection with an assignment. The Supreme Court concluded that the injury must be regarded as a stress injury that had developed over time and that it accordingly fell outside the occupational injury concept set out in section 11 subsection 1 a of the Industrial Injury Insurance Act, cf. section 13-3 of the National Insurance Act. The court found in favour of the employer’s insurance company.
Reference: HR-2013-985-A, case no. 2012/1840, civil appeal against judgment.
JUDGMENT
8 May 2013
Health law. Patient injuries. Damages.
Following chemotherapy as part of a treatment of cancer the patient contracted an infection that resulted in brain degeneration and death. The Patients’ Injury Compensation Board rejected the surviving relatives’ claim for damages. The parties agreed that the concrete cause of death was a “particularly extensive or particularly unanticipated” consequence of chemotherapy, cf. section 2 subsection 3, of the Patient Injuries Act. The issue was whether the injury was “the effect of a risk which the patient has to accept”. The Supreme Court cited that section 2 subsection 3 is a safety valve which must be used with caution. Where the treatment is foreseeable and necessary in order to save the patient’s life, injuries resulting from treatment will normally be regarded as “the effect of a risk which the patient has to accept”. Also extremely extensive and unexpected injuries, including death, may be deemed an acceptable risk in case of a life-threatening illness. In this light the court found for the State represented by the Patients’ Injury Compensation Board.
Reference: HR-2013-986-A, case no. 2012/2142, civil appeal against judgment.
JUDGMENT
3 May 2013
Criminal law. Sentencing. Community penalty. Serious drug crime.
The penalty for violation of section 162 subsection 1, cf. subsection 2, of the Penal Code was set at a term of imprisonment of one year and two months. The offender had stored approximately 300 grams of amphetamine. The Supreme Court concluded that, from an overall point of view, there were no rehabilitation considerations sufficiently weighty to make community penalty a correct reaction, cf. section 28a subsection 2, of the Penal Code.
Reference: HR-2013-949-A, case no. 2013/82, criminal appeal against judgment.
JUDGMENT
3 May 2013
Criminal law. Sentencing. Community penalty. Serious drug crime.
The penalty for violation of section 162 subsection 1, cf. subsection 2, of the Penal Code was set at a term of imprisonment of one year. The offender had bought and stored approximately 150 grams of amphetamine/metamphetamine. He was not in a situation where there were strong and unambiguous rehabilitation considerations or any other special or weighty reasons for applying community penalty, cf. section 28a subsection 1, of the Penal Code. It was pointed out that in recent years the Supreme Court has gone further than before when it comes to imposing community penalty in the event of a promising rehabilitation situation, but that the main rule was still to impose a custodial sentence. Without an amendment to the law, there was no room for any significant extension of the use of community penalty in this area.
Reference: HR-2013-947-A, case no. 2012/2120, criminal appeal against judgment.
JUDGMENT
3 May 2013
Criminal law. Sentencing. Community penalty. Serious drug crime.
The penalty for violation of section 162 subsections 1 and 2 of the Penal Code was set at a term of imprisonment of one year and four months. The offender had bought approximately 200 grams of amphetamine. The Supreme Court concluded that there were not sufficiently weighty grounds to suggest community penalty under section 28a subsection 2, cf. subsection 1 a, of the Penal Code. Nor would a prison sentence ruin the offender’s rehabilitation situation.
Reference: HR-2013-948-A, case no. 2012/2017, criminal appeal against judgment.
JUDGMENT
3 May 2013
Expropriation. Waterfall rights. Compensation. The natural horse power method.
Otra II.
In the determination of compensation upon expropriation of waterfall rights where a separate development of small power plants was not foreseeable, the Supreme Court stated that the natural horse power method could still be put to practical use. This was also the case when the absence of foreseeability was based on a concession evaluation. Since there is no market for the sale of this type of waterfall rights today, there were no prices with which it would be natural to make a comparison, cf. section 5 subsection 2 of the Expropriation Compensation Act. Nor had any other models been pointed out as better suited than the natural horse power method for the valuation of a waterfall right which is not separately developable.
Reference: HR-2013-943-A, case no. 2012/1783, civil appeal against second appraisement.
JUDGMENT
2 May 2013
Criminal law. Sentencing. Equality. Rape. Sexual activity with minors.
The sentence for violation of section 192 subsection 1 a of the Penal Code, cf. subsection 2 a, section 195 subsection 1 2nd penal alternative and section 201 c of the Penal Code, in addition to a total of six violations of section 196 subsection 1, was set at a term of imprisonment of six years. At the time of a few of the violations of section 196 of the Penal Code, the offender was himself 17, while he had at the time of the other offences turned 18. The Supreme Court stated that the point of departure for the sentencing for the rape, where there were threats with a knife and the victim was a girl of under 17, would in case of an isolated assessment have been slightly above the normal level of punishment of four years. As regards the violations of section 196 of the Penal Code the court found that the offender and the victims were more or less equal in terms of age and development. The age difference was from three years to three years and 11 months. It was a question of systematic and planned assaults and about the abuse of several and very young girls. There was accordingly no basis for setting aside the sentence pursuant to section 196 subsection 4 of the Penal Code.
Reference: HR–2013–00930–A, case no.2013/8, criminal appeal against judgment.
JUDGMENT
2 May 2013
Criminal law. Gross rape. Actual bodily harm. Sentencing.
The sentence for violation of section 192 subsection 1 a, cf. subsection 2 a of the Penal Code, and section 229 first penal alternative, cf. section 232, of the Penal Code, was set at a term of imprisonment of seven years and six months. In order to force one of the three victims to pay a drug debt the offender had committed a particularly gross rape of one of them and struck the other two in the face with his fist with resulting injuries. These acts formed part of a brutal, cynical and terrorising pattern of action and needed to be seen in context when the sentence was determined. The offender had not made a full confession, cf. section 59 subsection 2 of the Penal Code, but which did entail a certain advantage in terms of prosecution costs. The Supreme Court found that a custodial sentence of around eight years was a suitable level and reduced the sentence by six months as a result of the confession.
Reference: HR-2013-945-A, case no. 2013/34, criminal appeal against judgment.
JUDGMENT
25 April 2013
Human rights. The State’s responsibility. Inadequeate protection. European Human Rights Convention.
In 1998, a man was convicted of violence against a woman with whom he had had a brief relationship. After having served the sentence he broke the restraining order on a number of occasions and subjected the woman for an extended period of time to threatening and frightening persecution which resembled mental harassment and terror. As a result of the persecution the woman’s quality of life was significantly impaired. The Supreme Court concluded that the State had not fulfilled its obligation under the EHRC to protect her from persecution from the perpetrator. Decisive importance was attributed to the fact that the police’s follow-up of the continued violations of the restraining order was highly inadequate and to the fact that two potentially very serious threats were not investigated in any detail. The acts of the perpetrator undisputedly fell under Article 8 of the ECHR. Whether it also fell under Article 3 was left as an open question.
Reference: HR-2013-881-A, case no. 2012/1900, civil appeal against judgment.
JUDGMENT
24 April 2013
Criminal law. Sentencing. Aggravated robbery. Mobile crime of gain.
The sentence for violation of section 268 subsection 2, cf. section 267 subsection 1, of the Penal Code was set at a term of imprisonment of three years and two months for two convicted defendants. By using weapons they had robbed a jewellers and watchmakers shop of watches worth close to NOK 200 000 kroner. The Supreme Court stated that such shops are extremely vulnerable to robbery and that consideration for the shop, the employees, customers and passers-by called for a strict reaction. It was also an aggravating circumstance that this was a question of a mobile crime of gain. The offenders’ confessions, which were not made until they had been caught red-handed with the stolen goods, carried a certain weight. There was no basis for differentiating the sentences for the two offenders even if one of them, who was considerably older, had had a somewhat more dominating role in the planning and perpetration of the robbery.
Reference: HR–2013–871–A, case no. 2012/1972, criminal appeal against judgment.
JUDGMENT
24 April 2013
Criminal law. The Road Traffic Act. Sentencing. Repeated driving under the influence and without a driver’s license
Punishment for violation of section 31 cf. section 3, section 31 cf. section 22 subsection 1 and section 31 cf. section 24 subsection 1, of the Road Traffic Act and section 31 cf. section 24 subsection 1 of the Drug Act was set at a term of imprisonment of 11 months. The violation of section 3 of the Road Traffic Act resulted in serious personal injuries. The offender had 12 previous convictions for a total of 17 violations of section 22 of the Road Traffic Act and 17 convictions and 4 fines for a total of 69 violations of section 24 of the Road Traffic Act. In the sentencing considerable weight was attributed to the earlier convictions, however, so that the fact that the last conviction for driving under the influence took place in 2002 also carried some weight.
Reference: HR-2013-872-A, case no. 2013/395, criminal appeal against judgment.
INTERLOCUTORY ORDER
24 April 2013
Civil procedure. Paternity case. Biological material
The Supreme Court concluded that section 24 subsection 2 of the Children Act allowed the release of biological material from a deceased person which was stored in a biobank for use as DNA evidence in a paternity case against the undistributed estate of a deceased. In the absence of any clear expression of the legislator’s will to the contrary, section 15 of the Biobank Act, which by virtue of its wording prevents such release as a result of the requirement for consent from the donor of the material must be interpreted restrictively so as not to prevent the obtaining of biological material from a biobank for DNA analysis in paternity cases.
Reference: HR-2013-868-A, case no. 2012/1511, civil appeal against an interlocutory injunction
INTERLOCUTORY ORDER
22 April 2013
Law of mortgages and pledges. Execution lien. Annulment. Foreign insolvency proceedings.
A English creditor obtained an attachment on claims which a Spanish shipyard had against a Norwegian debtor. Insolvency proceedings were subsequently instituted against the shipyard in Spain. The estate requested an annulment of the attachments under section 5-8 or section 5-9 of the Satisfaction of Claims Act. The Supreme Court concluded that foreign insolvency proceedings did not prevent individual prosecution or collective prosecution against debtor’s assets in Norway. The traditional sources of law did not provide any indications for accepting such a preventive effect. This means that nor was there any basis for annulling attachments that had been established before the commencement of the foreign insolvency attachments. Reference was made to the fact that recognition in Norway of insolvency proceedings in another state gives rise to a series of questions that remain to be clarified and to the fact that acceptance of insolvency proceedings in other states is primarily based on synallagmatic agreements or regulations. Cf. section 161 of the Bankruptcy Act.
Reference: HR-2013-853-A, case no. 2012/1771, civil appeal against interlocutory order.
JUDGMENT
19 April 2013
Criminal law. Road Traffic Act. Driving under the influence of drugs. Requirement of due diligence
The Court of Appeal had acquitted a woman of violation of section 31 subsections 1 and 2 of the Road Traffic Act, cf. section 22 subsection 1. She had mistaken the tray of sleeping pills that was in the same bag for the tray of a blood pressure medication which she used to take every morning. Measurement after the driving revealed a level of influence corresponding to a blood alcohol concentration of 1–1.5 per thousand. The Supreme Court majority stated that in its evaluation of due diligence the Court of Appeal should have commented on and considered in more detail to what extent the drugs differed from each other and went on to say that the Supreme Court did not have a proper basis for reviewing whether the Court of Appeal had applied a correct requirement of due diligence. The Court of Appeal’s judgment with trial was set aside. The judgment was passed with dissenting votes 3-2.
Reference: HR–2013–825–A, case no. 2012/2168, criminal appeal against judgment.
JUDGMENT
17 April 2013
Criminal law. Sexual abuse of step-grandchildren. Application of the law.
The offender was convicted in the Court of Appeal for, amongst other things, violation of section 199 of the Penal Code. The abuse in question concerned his spouse’s 12-year old grandchild. The Supreme Court stated that the characterisation of “care” is not conditional upon the child living with its step-grandparents. However, it is a condition that contact is on a regular and more or less permanent basis. In the current case the Court of Appeal had characterised the offender as a “substitute grandfather figure”. The victim had visited him and her grandmother one to three times a week, in addition to staying there some weekends and during holidays. The rationale was sufficient to show that the offender had had a role and a connection with the victim indicating that she was in his care in the sense this term is used in section 199 of the Penal Code. The offender’s appeal against the Court of Appeal’s application of the law was quashed.
Reference: HR–2013–810–A, case no. 2012/1999, criminal appeal against judgment.
JUDGMENT
17 April 2013
Criminal law. Grievous bodily harm. Duty to act. Sentencing. Compensation for non-economic loss.
The Court of Appeal had set the sentence for violation of section 231 first penal alternative of the Penal Code, cf. section § 232 – grievous bodily harm – and section 242 subsection 2 cf. section 243 second penal alternative of the Penal Code – failure to fulfil the duty to act resulting in death – at a term of imprisonment of 10 years. The offender had used excessive violence resembling torture and had subsequently left the victim, who later that same night died from the injuries. The acts were close to voluntary manslaughter. The offender had made a full confession only with regard to the violation of section 242 of the Penal Code, a fact that was of little significance in terms of prosecution costs and the Supreme Court concluded that this should not warrant a reduction of the sentence, cf. section 59 of the Penal Code. The separated spouse of the deceased was entitled to claim compensation for non-economic loss pursuant to section 3–5 subsection 2 of the Compensatory Damages Act. The offender’s appeals against the sentencing and the compensation for non-economic loss were quashed.
Reference:HR-2013-811-A, case no. 2012/2001, criminal appeal against judgment
JUDGMENT
10 APRIL 2013
Criminal law. Road traffic. Loss of right to drive
The Court of Appeal had determined the period of time for loss of the right to drive for exceeding the speed limit and several subsequent incidents of driving while the driver’s license was seized by the police at two years, cf. section 33.1 of the Road Traffic Act, cf. section 2-2.3 and section 7-1 of the Regulation relating to the loss of right to drive a motor vehicle. The Supreme Court stated that even if section
- 7-1 of the Loss of the Right to Drive Regulation is not applicable, the courts must when determining the loss of right period where the accused has driven a motor vehicle in spite of the fact that his driver’s license had been seized by the police, in the exercise of discretion be able to attribute great importance to the guidelines set out in section 7-1. The offender’s appeal was quashed.
Reference: HR-2013-762-A, case no. 2012/1850, criminal appeal against judgment.
JUDGMENT
9 APRIL 2013
Compensation for Victims of Violent Crime. Date of calculation of amount limit. Interest on overdue payments. Compensation for indirect loss.
The victim’s claim for compensation according to the compensation system for victims of violent crime was limited to 20 times the basic amount of the National Insurance in accordance with section 11 of the Act relating to Compensation for Victims of Violent Crime as it read at the time of the injuries in 2008. A submission that the date when the decision was made should be taken for a basis was not upheld. Nor was the claim for interest on overdue payments upheld, the Supreme Court concluding that a claim for compensation for victims of violent crime is not a “money claim in the area covered by the law of property” pursuant to section 1 of the Act relating to Interest on Overdue Payments. Nor was there any basis for awarding compensation for indirect loss based on considerations of reasonableness.
Reference: HR-2013-759-A, case no. 2012/1733, civil appeal against judgment.
JUDGMENT
3 APRIL 2013
Immigration law. Refusal of residence permit. Validity of expulsion decision.
A Pakistani family consisting of mother and three children had legal residence in Norway during the period 1986 - 1997. In 2003, the family – now mother and four children – returned to Norway. The family’s new applications for residence were finally refused in 2010. At the same time it was decided to expel the mother. The Supreme Court quashed the family’s appeal against the Court of Appeal’s judgment. The Supreme Court majority concluded that the regard for “the best interests of the child”, cf. Article 3 of the Convention on the Rights of the Child, had been adequately evaluated and weighed in relation to immigration-regulating considerations as regards the one minor member of the family. The court also relied on the premise that the Immigration Appeals Board (UNE) was aware of the child’s earlier stay in this country. Nor could UNE’s decision be set aside as grossly unreasonable. The right to respect for private and family life, cf. Article 8 of the ECHR, had not been infringed given that UNE’s decision did not result in a splitting up of the family. The same applied to the right to respect for private and family life, the court finding that there was a clear difference between this case and the Butt case (EMD-2009-47017). Given that none of the family members had legal residence in the country, expulsion of the mother could not be regarded as a disproportionate measure vis-à-vis the other members of the family.
Reference HR-2013-704-A, Case no. 2012/886), civil appeal against judgment.
JUDGMENT
22 March 2013
Criminal law. Social security fraud. Sentencing. Care situation.
The sentence for violation of section 270 subsection 1(1) cf. subsection 2, of the Penal Code was set at 18 days’ imprisonment. The offender had received an excess payment of a little over NOK 87 000 in financial social assistance by failing to disclose information about his earned income during the same period of time. The Supreme Court cited that the guiding distinction between community punishment and a custodial sentence for a first-time social security fraud shall correspond to the basic amount of the National Insurance Scheme and that this amount was exceeded by approximately NOK 10 000 kroner. The offender was sole provider for a child with special care needs. This could have constituted grounds for community punishment, something that the offender had not consented to. The Supreme Court cited the strong considerations of general deterrence that come into play in case of social security fraud and relied on the assumption that a satisfactory care situation could be established for the child in connection with the serving of a short prison sentence. There was accordingly no basis for suspending the sentence.
Reference: HR-2013-650-A, case no. 2012/2115, criminal appeal against judgment.
JUDGMENT
22 March 2013
Tax law. Assessment. Business liable to taxation.
A general partnership had acquired approximately 300 claims defaulted on. The collection of the claims, which had been outsourced to debt collection agencies, generated a substantial profit. Like the Court of Appeal, the Supreme Court concluded that the debt collection was attributable to the general partnership with the consequence that it had been carrying on a business liable to taxation, cf. section 5-1, cf. section 5-30, of the Tax Act. The profit was accordingly not exempt from taxation under section 9-3 subsection 1 c.1 of the Tax Act. The purpose of the acquisition of the mass of claims must have been to obtain a profit, and the partnership had kept the ownership of the claims and the financial interest in them. The fact that the collection was left with debt collection agencies could not be of relevance. Importance was also attributed to the fact that the mass of claims required a high level of activity and was far from a passive placement of capital. The appeal against the Court of Appeal’s judgment was quashed.
Reference: HR-2013-651-A, case no. 2012/1414, civil appeal against judgment.
JUDGMENT
22 March 2013
Competence. District court judge. Child care.
A district court judge who presided over a child care case about the extent of the natural parents’ visitation rights, had also presided over the preceding case concerning the take over of the child care. In contrast to the Court of Appeal, the Supreme Court held that the judge was not incompetent, cf. 108 of the Courts of Justice Act and Article 6.1 of the ECHR. It was stated that the competence issue must be assessed independently of the parties’ opinion and in the same way in child care cases as otherwise. Based on a concrete evaluation of the District Court’s two decisions, the Supreme Court held that the District Court judge had not voiced any evaluations that made him incompetent. The Court of Appeal’s judgment was quashed.
Reference: HR-2013-649-A, case no. 2012/1989, civil appeal against judgment.
JUDGMENT
22 March 2013
Investment in share index bonds. Loan financed composite products. Section 36 of the Contracts Act. Section 9-2 of the Securities Trading Act. Section 47 of the Financial Contracts Act
In 2000, a consumer bought so-called share index bonds issued by a Norwegian bank. The bonds were not interest-bearing, but the consumer would upon maturity in 2006 be refunded the bond amount plus any return. This was determined by the trend in certain specific share indexes. The investment was financed by the consumer borrowing the purchase price in the issuing bank. The indexes fell during the duration of the bonds so that the consumer did not get any return on the investment while at the same time paying a substantial amount by way of interest on and costs related to the loan. The Supreme Court cited that the bank’s risk related to the contractual relationship was relatively modest. At the same time, loan-financed share index bonds represented a risky and complex product where it was difficult for non-professional investors to see the consequences. Available calculations showed that the consumer would in all likelihood lose on the investment. The product was marketed as a very good investment and the bank had also given the impression that the investment would give a return in case of a lower rise in the indexes than what was correct. The Supreme Court held that there was no basis for setting the agreement aside based on the content alone, but that misleading information about essential parameters in combination with the bank’s unilateral picture of the possibilities of a profit gave a distorted picture of the prospect of profit. On this basis the purchase agreements were set aside in extenso pursuant to section 36 of the Contracts Act. Grand Chamber decision.
Reference: HR-2013-642-S, case no. 2011/1938, civil appeal against judgment.
INTERLOCUTORY ORDER
21 March 2013
Press access to tape recordings from the criminal proceedings against Arne Treholt.
During the criminal proceedings against Arne Treholt in 1985 the major part of the trial was tape recorded. In 2011, the press requested access to these recordings. The Court of Appeal denied the request. The Supreme Court held that the refusal to grant access represented an infringement of the freedom of expression according to Article 10.1 of the European Convention on Human Rights. Reference was made to the fact that the problem relating to access to tape recordings from a criminal case had not previously been submitted to the European Court of Human Rights, but that the court has relied on the premise that Article 10 must be interpreted to mean that it may be applicable to such a claim. In its concrete assessment the Supreme Court cited that the case generated great public interest, that parts of it were later strongly disputed and that the trial was for a large part conducted behind closed doors, which means that the general public has never had full access to the Court of Appeal’s evidentiary basis. It was emphasized that the decision did not entail that Article 10.1 should automatically be made applicable to potential requests from the press for access to the documents in criminal cases and that such access will depend on an assessment under Article 10.2 of the ECHR, a problem that was not pending before the Supreme Court. The Court of Appeal’s Interlocutory Order was quashed. Costs were awarded by analogy from section 20-2.1 of the Disputes Act.
Reference: HR-2013-641-A case no. 2012/1069, criminal appeal against Interlocutory Order
JUDGMENT
20 March 2013
Labour law. Distinction between employee and independent contractor. Emergency foster home
The Supreme Court majority concluded, like the Court of Appeal, that the private party to an agreement with the child welfare service for the establishment of an emergency foster home, cf. section 4-22 of the Child Welfare Act was to be regarded as an independent contractor, and not an employee, cf. section
1-8 of the Working Environment Act. The traditional criteria for the distinction between employee and independent contractor did not provide grounds for any definite conclusion, but it was considered decisive that the assignment by its very nature was distinctly different from the circumstances of an ordinary employment in that the core of the matter was to make available a home where the foster child, in so far as possible, was to be treated as a member of the family. Reference was also made to statements in the preparatory works. The judgment was passed with dissenting votes 4-1.
Reference: HR-2013-628-A, case no. 2012/1492), civil appeal against judgment.
JUDGMENT
20 March 2013
Labour law. Distinction between employee and independent contractor. Respite care provider. Holiday pay.
Like the Court of Appeal, the Supreme Court concluded that a respite care provider for a family with especially burdensome caring work, cf. section 4-2 b of the Social Services Act, now section 3-2.6 d of the Health and Care Services Act, was to be regarded as an employee rather than an independent contractor, cf. section 1-8 of the Working Environment Act. She would then be entitled to vacation pay according to section 2 subsection 1 of the Holiday Act. Since the Holiday Act is mandatory, importance could not be attributed to the fact that the agreement between the local authorities and the respite care provider referred to itself as an assignment contract stating explicitly that the respite care provider was not entitled to holiday pay. An overall evaluation of the traditional criteria for the distinction between employee and independent contractor was a heavy indicator that the respite care provider was an employee, and the local authority’s arguments about a need for user control and the consequences for the organisation of the respite care provider system could not lead to a different result.
Reference: HR-2013-630-A, case no. no. 2013/144, civil appeal against judgment.
Interlocutory Order
12 March 2013
Criminal procedure. Adduction of evidene. Confidentiality. Self-incrimination.
In a case concerning violation of section 219 of the Penal Code the Supreme Court concluded that written minutes of meetings between the child welfare authorities and the defendant were admissible as evidence in the matter. If the child welfare authorities were entitled to report the matter they were not subject to confidentiality as regards the contents of the minutes, cf. section 6-7 of the Child Welfare Act, in so far as the information in the minutes was likely to shed light on the issue of guilt. Given that the defendant hade made a voluntary statement to the child welfare authorities and admitted to violence against two of his children, it furthermore did not entail any breach of the prohibition against self-discrimination in Art. 6 no. 1 of the ECHR and Art. 14 no. 3 g of the ICCPR to use the minutes as evidence.
Reference: HR-2013-575-A, case no. 2012/1998, criminal appeal against an interlocutory order, and HR-2013-576-A, case no. 2013/330, criminal appeal against an interlocutory order.
JUDGMENT
12 March 2013
Criminal law. Application of the law. Violence in the family. Continued crime. Limitation.
During the period 1988-2010, a father had subjected his son to maltreatment. Up to 2001, he was both violent and had aggressive and threatening verbal outbursts. The violence stopped in 2001. The Supreme Court concluded that also the verbal maltreatment after 2001, which for certain parts seen in isolation did not fit the description of the elements of crime set out in section 219 of the Penal Code, must be included in the assessment. Given that the verbally aggressive and condescending treatment of the son continued after the violence had ceased, it was correct to consider this as part of an aggregate picture. It was accordingly correct to convict for violation of section 219 subsection 2 for the entire period from 1988 to 2010. The crime was therefore not statute-barred under section 67 of the Penal Code. The appeal against the Court of Appeal’s sentence of two years’ imprisonment was quashed.
Reference: HR-2013-577-A, case no. 2012/1812, criminal appeal against judgment.
JUDGMENT
12 March 2013
Criminal law. Sentencing. Simple robbery.
The sentence for violation of section 268 subsection 1, cf. section 267 subsection 1, of the Penal Code, was set at one year’s imprisonment. The offender and a friend of his had hit the victim, who was intoxicated, in the head and face and inflicted a wound on his throat with a pointed object to get him to relinquish his bank card and pin code. In the sentencing the Supreme Court attached importance to the strong deterrent effects of the case and to the fact that the offender had two months before the robbery been apprehended by the police for a similar robbery
Reference: HR-2013-578-A, case no. 2012/1892, criminal appeal against judgment.
JUDGMENT
12 March 2013
Criminal law. Ice slide from roof. Duty of care norm. Corporate penalty
A person was seriously injured by a lump of ice that slid down from a casement ledge on the roof of a building. The manager of the day-to-day running and sole director of the building society and the manager of the group’s maintenance department were both convicted of violation of section 238 of the Penal Code in the District Court and the Court of Appeal. The Supreme Court held that the manager of the day-to-day operation had ensured safety routines on a level with what is standard among major building owners, that this meant that he had acted in accordance with the normal level of due care and that he must accordingly be acquitted.
The head of the maintenance department had personally undertaken the inspection of the roof. The Supreme Court pointed out that the potential damage in the event of a slide from the casement ledge entailed a duty of special care and stated that under the prevailing circumstances he could not disregard the risk of such slides. When he had not discovered the risk, which it would have been simple to detect, he had exceeded the limits for due and proper conduct. The Court of Appeal’s 60 days’ suspended sentence was maintained as far as he was concerned. A majority of three judges held that the building society would not be subject to corporate penalty, cf. section 48a of the Penal Code. Reference was made to the fact that this was a concrete misjudgement on the part of the person who was responsible for the inspection.
Reference: HR-2013-574-A, case no. 2012/1611, criminal appeal against judgment.
JUDGMENT
5 March 2013
Limited company. Acquisition of shares. Reasonable grounds for refusing consent to acquisition
The board of directors of a limited company carrying on a business in forestry and builder’s supplies refused consent to the acquisition of more shares by the owner of 28 % of the share capital, cf. section 4-16 subsection 2 of the Companies Act. The Supreme Court stated that the objects clause in the company’s articles of association did not suggest that a limitation of the ownership interest of the individual shareholder was desirable. The company had lost its nature of a family company and a wish among the majority of the shareholders to maintain a scattered ownership structure did not constitute reasonable grounds for a refusal. There was every likelihood that the refusal was influenced by the fact that the acquirer did not belong to the circle of family shareholders and that he might acquire a dominant position in the company. The board’s decision was not considered to be based on reasonable grounds and was accordingly invalid.
Reference: HR-2013-508-A, case no. 2012/1072, civil appeal against judgment.
JUDGMENT
5 March 2013
Labour law. EEA law. General Application of Wage Agreement
By the Tariff Board’s adoption of Regulations of 6 October 2008 concerning partial general application of the Engineering Industry Agreement to the maritime construction industry -
later superseded by corresponding Regulations of 20 December 2010 no. 1764 – unorganised and foreign employees acquired a right to wage and working conditions which are equal to those that Norwegian employees have within the scope of the wage agreement. A group of industrial companies filed a legal action to have the regulations found invalid. They argued that Article 36 of the EEA Agreement and Directive 96/71/EF relating to seconded employees prevent a general application of contract conditions relating to out-of-town allowance, working hours, overtime allowance and compensation for costs of overnight stays away from home. The Supreme Court unanimously concluded that the conditions for a general application contained in the Act relating to the General Application of Wage Agreements were met, that the disputed provisions in the Regulations were compatible with Article 36 of the EEA Agreement and Article 3 of the Directive and that the Regulations were accordingly valid. Statements about the significance of advisory statements from the EFTA Court.
Reference: HR-2013-496-A, Case no. 2012/1447, civil appeal against judgment.
JUDGMENT
5 March 2013
Criminal law. Sentencing. Sexual abuse of children.
The sentence for violation of section 195 subsection 1 first penal alternative, section 197, section 192 subsection 1a, section 196 subsection 1, section 199 subsection 1 and section 219 subsection 1 of the Penal Code was set at a term of imprisonment of four years and six months. The Offender had licked the genitals of a daughter and a stepdaughter and forced the stepdaughter to masturbate him. He had also subjected the stepdaughter and her brother to isolated incidents of battery which collectively fell under section 219 of the Penal Code. A sexual trespass to the stepdaughter, which had been proved to the satisfaction of the Court of Appeal, but which had not been included in the indictment, did not carry any weight in the sentencing. The fact that the offender had a previous conviction for sexual acts with another stepdaughter was regarded as an aggravating circumstance.
Ref.: HR-2013-511-A, case no. 2012/1842, criminal appeal against judgment.
JUDGMENT
7 February 2013
Criminal law. Sentencing. Sexual crimes against children under the age of 16
The sentence for multiple sexual crimes against children under the age of 16, including violation of section 196 subsection 1 of the Penal Code, was set at a term of imprisonment of seven months. The District Court had acquitted the offender of the charge under section 196 of the Penal Code. The prosecuting authority appealed against the assessment of evidence under the question of guilt concerning this issue – not against the sentencing - and the offender was convicted in the Court of Appeal. The Supreme Court stated that section 64 of the Penal Code is not applicable to a case such as the one at hand, and that as a main rule the Court of Appeal shall rely on the District Court’s sentencing as regards counts which have been decided with final and binding force by the District Court’s judgment, and not undertake any new and independent assessment of this sentence. In the concrete sentencing importance was attached to the fact that the offender had abused his position as an example and role model and that this was a case of sexual offences against minor boys over a period of approximately five years.
Ref.: HR-2013-302-A, case no. 2012/1889, criminal appeal against judgment.
JUDGMENT
6 February 2013
Criminal law. Sentencing. Sleep rape
The sentence for violation of section 192 subsection 1 b, cf. subsection 2 a, of the Penal Code – rape to sexual intercourse with sleeping woman – was set at a term of imprisonment of three years and eight months. The Supreme Court took for its starting point a normal sentencing level of four years’ imprisonment and reduced the sentence by four months in consequence of the defendant’s immediate confession. The fact that the sentence would prevent the offender from completing commenced university studies was not taken into account as an extenuating tinghus13circumstance.
Reference: HR–2013–300–A, case no. 2012/1591, criminal appeal against judgment.
JUDGMENT
6 February 2013
Criminal law. Sentencing. Sleep rape
The sentence for violation of section 192 subsection 1 b, cf. subsection 2 a of the Penal Code – rape to sexual intercourse with sleeping woman – was set at a term of imprisonment of four years. The Supreme Court did not find any circumstances that gave grounds for departing from the normal sentencing level of four years’ imprisonment for such violations of the law.
Ref.: HR–2013–301–A, case no. 2012/1685, criminal appeal against judgment.
JUDGMENT
5 February 2013
Compensation for Value Added Tax.
A housing cooperative that offered housing for disabled people resident in the municipality was not granted compensation for VAT paid under section 2 subsection 1 c of the Act relating to compensation for VAT for municipalities, county municipalities etc. Based on the preparatory works and legislative history of the Act, the Supreme Court found that the act was made for the purpose of ensuring equal competition conditions between private enterprises that compete with municipal own production and that it should not be possible for the refund arrangement to become applicable by own acquisitions. Nor can a person’s acquisition of his own house be regarded as an activity in the sense of the law.
Ref.: HR–2013–280–A, case no. 2012/1239, civil appeal against judgment.
JUDGMENT
5 February 2013
Criminal law. Aggravated tax fraud. Reasons for judgment.
A pictorial artist was sentenced in the Court of Appeal for aggravated tax fraud, cf. section 12-2 nos. 1 and 2, section 12-1 no. 1 a, of the Tax Assessment Act, to a term of imprisonment of two years and ten months. The Supreme Court found that the Court of Appeal’s reasons for judgment were inadequate, cf. section 40 of the Penal Code as regards the discussions as to whether an income of USD 700 000 had been taxed twice and the discussions as to whether USD 450 000 of this amount had already been taxed. These inadequacies concerned a substantial part of the total amount in the case. The Court of Appeal’s judgment with appeal proceedings was quashed.
Reference: HR-2013-279-A, case no. 2012/1484, criminal appeal against judgment.
JUDGMENT
31 January 2013
Damages for non-economic loss. Labour law. Personal data.
A driver who had been dismissed because of discrepancies between his time sheets and the electronic log of his vehicle, requested damages for non-economic loss under section 49 subsection 3 of the Personal Data Act. The Supreme Court's majority concluded that reusing information collected for a different purpose than the original one cannot be anchored directly in section 8 f of the Personal Data Act. The conditions in section 11 subsection 1 c must also be satisfied. In the concrete case the employer's comparison of the log and the time sheets represented a reuse that had no basis in section 11 subsection 1 c. This was not a serious infringement and after weighing the conflicting considerations in the matter, the Supreme Court unanimously held that there were no grounds for awarding damages for non-economic loss. One judge dissented concerning the rationale.
Ref.: HR-2013-234-A, case no. 2012/1334, civil appeal against judgment.
JUDGMENT
31 January 2013
Damages. Listed cultural monument. Archaeological excavation.
An automatically listed pitfall had been destroyed by the reconstruction of a woodland motorway. The State was awarded NOK 136 000 in damages from the owner of the forest for the costs of the archaeological excavation of the pitfall and the securing of archaeological source material. Based on a legal policy evaluation the Supreme Court found it clear that the State must be entitled to compensation for costs incurred to protect and repair cultural monuments. There were no grounds for distinguishing between costs of repairing cultural monuments and costs of securing historical material that can be linked to such monuments. The State’s interest in listed cultural monuments must be protected under the law of damages, irrespective of whether or not it is designated as a third-party interest. Claiming compensation for a cost is not subject to the condition that it has in actual fact been incurred and it has been rendered sufficiently probable that an excavation would be carried out if the State was awarded damages. A decision to implement excavation is not an isolated decision under section 2 subsection 1 b of the Public Administration Act, and section 2 subsection 2 of the Expropriation Compensation Act is not applicable to cases under section 11 of the Cultural Monuments Act. There were not sufficient grounds for reducing the forest owner’s liability in damages, even if the county archaeologist had originally given incorrect information as to where the pitfall was located.
Ref.: HR-2013-233-A, case no.2012/1562, civil appeal against judgment.
JUDGMENT
31 January 2013
Criminal law. Sentencing. Doping substances
The punishment for violation of section 162 b subsection 1 cf. subsection 2 of the Penal Code was set at a term of imprisonment of three years and six months, of which one year was suspended. The defendant had imported 1.9 kilos and stored 7.2 kilos of anabolic androgenic steroids. The Supreme Court took as its point of departure an evaluation of the number of years of uninterrupted abuse which the seized substance could give rise to and the daily doses on which this calculation was based. The active ingredients in the substance seized were calculated to amount to one year’s uninterrupted abuse for 272 persons. The punishment was reduced from a starting point of approximately 4 years and six months’ imprisonment as a result of a confession, cf. section 59 subsection 2 of the Penal Code, and the fact that this was now an old case .
Ref.: HR-2013-240-A, case no.2012/1617, criminal appeal against judgment.
JUDGMENT
29 January 2013
Bankruptcy law. Reversal. Extended possessory lien. NSAB 2000.
A forwarding agent had retained a shipment received from a customer for forwarding and resold the consignment to meet older outstanding accounts. The Supreme Court's majority found that it followed from section 14 of the Nordic Forwarding Agents Association's general provisions 2000 (NSAB) that the forwarding agent had a possessory lien on goods that had been delivered to him in connection with his last assignment for debt relating to earlier assignments, notwithstanding lack of connection between the goods and the claim. This extended possessory lien was still in effect as customary law. Section 14 of the NSAB must also be regarded as accepted by the customer. The forwarding agency business in question fell within the scope of application of the extended possessory lien. Section 5-7 of the Creditors' Recovery Act concerns agreed security interest and was not applicable since the extended possessory lien also has status as customary law. The customer's bankruptcy estate's request for a reversal was not upheld. The judgment was passed with dissenting votes 3-2.
Ref.: HR-2013-213-A, case no.2012/785, civil appeal against judgment.
JUDGMENT
28 January 2013
Criminal law. Aggravated embezzlement. Procedure. Reasons for judgment.
The Court of Appeal had ordered a suspended sentence of seven months' imprisonment for violation of section 255 of the Penal Code. The defendant, who had handled the sale of a general partnership which he owned together with the aggrieved person, had withheld an amount which was to accrue to the aggrieved person alleging that he had a counterclaim against the partnership which he could set off against the aggrieved person's share of the sales price. The Supreme Court set aside the Court of Appeal's judgment since the Court of Appeal had not taken a position on the alleged counterclaims, nor discussed explicitly whether the defendant had acted for the purpose of gain. The Court of Appeal's decision of the civil claim was also set aside with reference to the connection between the requirement for punishment and the claim for damages.
Ref.: HR–2013–191–A, case no.2012/1386, criminal appeal against judgment.
JUDGMENT
23 January 2013
Criminal law. Sentencing. Narcotics
For one defendant the punishment for violation of section 162 subsection 1, cf. subsection 3, cf. section 60a, section 162 subsection 1, cf. subsection 2, cf. section 60 a and section 317 subsection 4, cf. subsection 1, cf. section 60 a, of the Penal Code, was set at 12 years' imprisonment. The Defendant had imported 12 kilos of cocaine from Holland to Norway and aided and abetted in storing this consignment and handed over to another person for shipment to Holland NOK 1.1 million acquired through the sale of drugs. As regards the application of section 317 subsection 5 of the Penal Code, the Supreme Court observed that the element of ”profit from a drug crime” belonged under the question of guilt, while the element of ”particularly aggravating circumstances” belonged under the sentencing question. The Court of Appeal's description of the facts provided sufficient grounds to enable the Supreme Court to amend the application of the law from section 317 subsection 5 to section 317 subsection 4. For another defendant in the same case the punishment for violations of section 162 subsection 1, cf. subsection 3, cf. section 60a and section 162 subsection 1 cf. subsection 2, cf. section 60 a of the Penal Code was equally set at 12 years' imprisonment. The defendant had aided and abetted in the import of five kilos of cocaine, aided and abetted in the storing of 12 kilos of cocaine and 2.5 kilos of heroin and had handed over one kilo of cocaine. The defendant had after the import learned that the consignment of cocaine was not five kilos, as originally agreed, but 12 kilos. He had nevertheless stood by the agreement to assist in selling the consignment thus contributing to strengthening the principal offender's intention to store it. This accordingly constituted criminal complicity in the storing of 12 kilos.
Ref.: HR-2013-146-A, case no. 2012/1291, criminal appeal against judgment.
JUDGMENT
23 January 2013
Ground lease. Long lease. Building obligation clause.
In a dispute concerning the scope of application of the Ground Lease Act the Supreme Court, like the Court of Appeal, concluded that section 1 of the Act must be understood to mean that it applies to agreements that entitle the lessee to erect houses on the land irrespective of the lessee's concrete plans. The decisive point is whether the long lease entails that the person who gets a house on the land is the lessee in question, irrespective of whether this is the original lessee or the leasing right has been transferred. A clause that the contract would terminate if there was no building on the land within three years conflicted with section 7 of the Ground Lease Act and had to be regarded as a building obligation agreement. However, exceeding the time-limit for fulfilling the building obligation does not entail an automatic right for the lessor to cancel, cf. section 30 of the Ground Lease Act.
Ref.: HR-2013-144-A, case no. 2012/942), civil appeal against judgment.
JUDGMENT
23 January 2013
Criminal law. Violence. Sentencing. Community punishment. Young perpetrator.
Punishment for violations of section 229 first penal alternative cf. section 232, section 229 2nd penal alternative etc. was set at a term of imprisonment of one year and six months of which six months suspended. The defendant was 17 when the criminal offences were committed. The Supreme Court, attaching weight to the fact that this was a question of a serious, repeated and escalating crime of violence and to the fact that the defendant was not in a rehabilitation situation, concluded that there was no reason to react with community punishment, but that a custodial sentence was here “especially called for”, cf. section 18 of the Penal Code, notwithstanding the perpetrator’s young age.
Ref.: HR-2013-143-A, case no. 2012/1714, criminal appeal against judgment
JUDGMENT
18 January 2013
Criminal law. Human trafficking. Aggravated thefts. Application of the law. Damages for non-economic loss. Loss of right to drive
The punishment for violations of section 224 of the Penal Code was set at 5 years and 4 years and six months respectively for two defendants. They had transported four minors from Lithuania to Norway and here forced them to commit extensive thefts. The Supreme Court stated that there must be a disproportionate relationship between the defendants and the victims in order to establish exploitation and that forced labour presupposes the exercising of some sort of pressure, even though the requirements as regards the force that must be exerted are not strict. These conditions were satisfied. In the sentencing the Supreme Court attached importance to the exploitation of minors and that the mobile crime for the purpose of gain was extensive and appeared to be organised. The use of a car was a key element in the defendants’ activities. There was also a strong connection between the use of the car and the criminal acts. The conditions for the loss of the right to drive based on “the deterrent effect”, cf. section 33 no. 1 subsection 1, of the Road Traffic Act, cf. section 2-6 subsection 1 cf. no. 4, of the Right to Drive Regulation were accordingly satisfied. The quantum of damages for non-economic loss for the four victims was set at NOK 40 000 for each, cf. section 3-5 subsection 1 of the Compensatory Damages Act. Reference was made to the fact that the minors were in a very vulnerable situation and had felt under pressure to commit the thefts.
Ref.: HR-2013-104-A, case no. 2012/1464, criminal appeal against judgment.
JUDGMENT
18 January 2013
Ground lease. Long lease. Lessee's right of disposal.
A ground area was in 1958 leased for residential purposes for 99 years and three residential blocks were built on the land. In a case between lessor and lessee the Supreme Court held that the lessee, which was a housing cooperative, was entitled to build more houses on the property. This was the starting point under section 16 of the Ground Lease Act and neither the background to the establishment of the long lease nor the content of the long lease contract provided sufficient indications for deviating from the main rule of the Act.
Ref.: HR–2013–103–A, case no. 2012/869), civil appeal against judgment.