Summaries
Judgment
22 December 2015
Criminal law. Corporate penalty. Occupational accident.
An industrial enterprise was imposed a corporate penalty of NOK 100,000 pursuant to sections 48a and 48b of the Penal Code of 1902 for violation of section 19-1, subsection 1 of the Working Environment Act, cf. section 2-1, cf. section 3-1, subsection 2 letter c, cf. section 5, subsection 6 of the Internal Control Regulations, cf. section 4-4, subsection 1 of the Working Environment Act, cf. section 2-11, subsection 1 of the Workplace Regulations. An employee fell and suffered concussion as a result of poor lighting in a factory. The working management were aware of the lighting problem. Objectively speaking, there was a violation of section 19-1 of the Working Environment Act and it was negligent that no mobile light had been set up or that the employee was not instructed to use another machine. A majority of the three justices concluded that corporate penalty should be imposed. It was pointed out that in order to act as a general deterrent a corporate penalty should be imposed, that the violation concerned provisions put in place to protect the employees’ life and health and that the working management knew about the poor lighting without doing anything about it, despite there already having been an occupational accident for the same reason. Two justices believed that a corporate penalty should not be imposed on the enterprise. Dissenting votes 3-2.
HR-2015-2557-A, (case no. 2015/1842), criminal case, appeal against judgment.
Order
18 December 2015
Human rights. Freedom of information for the media. Surveillance video. Anonymization.
A man died during an arrest at Oslo Emergency Hospital. After the prosecuting authority had made a final decision not to pursue criminal proceedings against the two police officers and the emergency medical technician involved in the incident, the Norwegian Broadcasting Corporation (NRK) submitted a petition for access to the video of the event, captured by the emergency hospital’s surveillance cameras. This video was now part of the evidence in the criminal proceeding. The majority opinion of the Supreme Court concluded that denying access would constitute a violation of Article 10 of the ECHR, as well as Article 19, no. 2, of the ICCPR, and found in favour of the NRK. With reference to judicial precedents from the ECtHR and the Supreme Court’s ruling in Rt-2013-374, the court concluded that the freedom of information principle, as established by Article 10, no. 1, of the ECHR, could entail a duty to grant media access to information in cases that are of public interest, even though the article cannot be construed as a general freedom of information principle parallel to the domestic laws of the individual nation states. The court specifically pointed out that the case was of great public interest, that the video evidence was the material evidential basis for the decision to not pursue criminal proceedings, and that the principle of public access could no longer be preserved by hearings in court. The privacy of the individuals concerned could be protected by anonymization. Dissenting votes: 3-2.
Supreme Court HR-2015-2536-A, (case no. 2015/1490), criminal case, appeal against judgment.
Order
18 December 2015
Criminal Procedure. Inadmissibility of evidence. Duty of confidentiality. Assistant.
A private administrator, hired by a defendant’s counsel, had been entrusted with information from the defendant. The intention was for the information not to be known by the defendant’s counsel. The investigator had given a statement to the police about this information. In line with the court of appeal’s decision, the Appeals Selection Committee concluded that this information was not covered by the provision regarding inadmissibility of evidence, as established in Section 119, Subsection 2, of the Criminal Procedure Act, meaning it was admissible as evidence in the case. This provision pertains to information available for the defence counsel to apply as part of his defence strategy. This condition has not been met if the information is not available to the defence counsel.
Supreme Court HR-2015-2532-A, (case no. 2015/1577), criminal case, appeal against judgment.
18 December 2015
Immigration law. Asylum. Internal displacement. Best interests of the child.
An Afghani family, with children aged six and two, had their applications for asylum rejected by the Immigration Appeals Board (UNE) in 2013. The family was entitled to protection pursuant to the Immigration Act section 28 subsection 1 b), but the rejection was justified by the family having the option of seeking protection elsewhere in Afghanistan, see the Immigration Act section 28 subsection 5. The Supreme Court, which heard the case in a plenary session, found in favour of the state. The court stated that UNE, in its assessment into whether internal displacement would be unreasonable, did not misinterpret the Immigration Act section 28 subsection 3, see Article 3, no. 1, of the Convention on the Rights of the Child, by only considering the circumstances within the internal displacement area and not weighing these against equivalent circumstances in Norway. Section 7-1 of the Immigration Regulations establishes that internal displacement is only considered unreasonable if the condition of strong humanitarian considerations, as provided by section 38, has been met. This provision was found to have sufficient statutory authority in section 28 subsection 8. A majority opinion of 12 justices concluded that UNE had not violated any rules of procedure by not giving the eldest child the opportunity to give her statement to the board. The grounds for the decision were also deemed sufficient by the majority opinion, pursuant to both section 28 (13 justices) and section 38 (12 justices) of the Immigration Act. The Supreme Court emphasised that UNE had applied a correct interpretation of the concern for the best interests of the child. Dissenting votes 13-6 on the question of invalidity pursuant to section 28, and 12-7 in the question of invalidity pursuant to section 38. A majority opinion of 10 justices stated that the question of whether internal displacement is unreasonable pursuant to section 28 subsection 5 can be tried by the courts.
Supreme Court HR-2015-2524-P, (case no. 2015/203), civil case, appeal against judgment.
Order
17 December 2015
Criminal Procedure. Communications control. Conversations with counsel. Deletion of recordings.
The prosecuting authority had charged a lawyer with aiding and abetting to gross human trafficking on the basis of information revealed in phone conversations he had had with a client. This information had been collected by way of communications control directed at his client. The Supreme Court, which heard the case in chambers, concluded that the recordings were to be deleted, cf. Section 216g, litra b), of the Criminal Procedure Act. The court pointed out that it follows from the wording of the provision that the police may listen to conversations with a lawyer if the lawyer himself is suspected of criminal activities that would have qualified for communications control on their own. In contrast to what applies to conversations between close associates, however, suspicion must have been established in advance in these types of cases. This condition had not been met at the time of the recording. The fact that it was met at a later point in time, is not sufficient to retain the material and admit it as evidence during the main proceedings.
Supreme Court HR-2015-2527-A, (case no. 2015/1558), criminal case, appeal against judgment.
Order
17 December 2015
Criminal Procedure. Communications control. Conversations with close associates. Deletion of recordings.
The prosecuting authority had charged a mother with aiding and abetting to gross human trafficking on the basis of information revealed in phone conversations she had had with her son. The information had been collected by way of communications control directed at her son. The Supreme Court, which heard the case in chambers, rejected a petition to delete the recordings that included the mother, cf. Section 216g, litra b), of the Criminal Procedure Act. Following a comprehensive review of the history of the act and its preparatory works, the majority opinion of the Supreme Court concluded that the provision establishes that the police in general has access to review recordings of material covered by the provision, unless it can be clearly established beforehand that the material includes conversations covered by Section 199 of the Criminal Procedure Act. Information gleaned from the review can be used to establish the suspicion required to retain the material pursuant to Section 216g, litra b), meaning that suspicion does not have to be established beforehand. The court furthermore pointed out that the phrasing “as soon as possible” does not refer to what is technically possible, but rather allows for a duration of time that is necessary to conclude whether the conditions for retaining the material have been met. Discretion must be applied in determining how long this is, depending on the complexity of the case and the scope of the communications control. Dissenting opinion: 3-2.
Supreme Court HR-2015-2526-A, (case no. 2015/1559), criminal case, appeal against judgment.
Judgment
17 December 2015
Criminal Procedure. Question for the jury. Consent to homicide.
In a murder case, where the defendant had confessed to the murder, the court of appeal had rejected a petition to pose a supplementary question to the jury about whether the victim had consented to the murder, in which case the provision regarding sentencing reductions in Section 235, Subsection 2, of the Penal Code of 1902 comes to apply. In line with the court of appeal, the Supreme Court concluded that this question was relevant for sentencing and not for the question of guilt, which meant the question could not be posed to the jury. Material emphasis was placed on the context of the provisions, primarily how they relate to the provisions regarding sentencing reductions in Sections 55–59 of the Penal Code of 1902, which must be taken into account in sentencing.
Supreme Court HR-2015-2522-A, (case no. 2015/1164), criminal case, appeal against judgment.
Judgment
14 December 2015
Tax law. Limited tax liability to Norway. Limited partner.
A Norwegian limited partnership had leased a drilling rig to an operating company holding a drilling contract on the Norwegian continental shelf. The holding company had hired a Norwegian management company to carry out support functions in the execution of the lease. All decisions regarding the lease were made by the partners’ meeting. Contrary to the lower courts, the Supreme Court concluded that a foreign participant in the holding company did not have limited tax liability to Norway for income derived from the rig lease, cf. Section 2-3, Subsection 1, litra b), of the Taxation Act. The court pointed out that the value of service production in Norway only accounted for a small fraction of the annual rig lease payment, and that lease decisions, both formally and actually, were decided by the partners’ meeting, which was held abroad. Consequently, the statutory condition for tax liability—that the activity “takes place here”—has not been met. The tax assessment for the year in question was overturned. Dissenting vote: 4-1.
Supreme Court HR-2015-02488-A, (case no. 2015/466), civil suit, appeal against judgment.
Judgment
11 December 2015
Criminal law. Confiscation. Failure to keep accounting records. Proceeds.
In connection with a conviction for failure to keep accounting records, cf. Section 15, Subsection 1, first penal option, of the Accounting Act, cf. Sections 7 and 4 of the same, the Supreme Court stated that any money the person convicted had saved by failing to retain an accountant, constituted proceeds fit for confiscation, cf. Section 34 of the Penal Code of 1902. In calculating the amount to be confiscated, one would have to take into account the tax concession from the accounting fees, which would have been tax deductible. Given that general deterrence was a major concern in this case, there was no basis on which to reduce liability for confiscation pursuant to Section 34, Subsection 1, second sentence.
Supreme Court HR-2015-2469-A, (case no. 2015/1265), criminal case, appeal against judgment.
Judgment
11 December 2015
Criminal Procedure. Impartiality. Threats against the prosecutor.
A defendant had made death threats against the prosecutor during the district court’s hearing of the case. The Supreme Court concluded that these threats did not disqualify the prosecutor from fulfilling her duties as the prosecutor in the case, cf. Section 60, Subsection 1, second sentence, of the Criminal Procedure Act. The court pointed out that specific indications must be present to depart from the presumption that the prosecution’s officials will handle these types of situations in a professional manner, and the threshold for a defendant’s reactions against the prosecutor’s actions, performed in the course of her duties, to cause the prosecutor’s disqualification must be set very high. Specifically, the Supreme Court pointed out that neither the threats in themselves, nor the fact that the prosecutor found them intimidating, were grounds for disqualification.
Supreme Court HR-2015-2468-A, (case no. 2015/1482), criminal case, appeal against judgment.
Judgment
11 December 2015
Criminal law. Sexual activity. Application of the law. The term “step-child”.
For violations of Section 195, Subsection 1, first penal option; Section 196, Subsection 1, cf. Section 206; and Section 199, cf. Section 206, of the Penal Code of 1902, the court of appeal had sentenced the defendant to imprisonment for a period of three years and nine months. The defendant had regularly engaged in sexual activity with his cohabitant’s daughter, from the time she was 12 years old until she was almost 19 years old. In contrast to the court of appeal’s decision, the majority opinion of the Supreme Court concluded that the term “step-child”, as provided in Section 199, also applies to a cohabitant’s child by a previous relationship. Pursuant to this provision, the criminal aspect of the defendant’s actions continued past the victim’s 18th birthday, and did not cease when the victim turned 18, as the court of appeal had concluded. The court of appeal’s sentencing was upheld. Dissenting opinion: 3-2.
Supreme Court HR-2015-2467-A, (case no. 2015/1598), criminal case, appeal against judgment.
Judgment
11 December 2015
Criminal law. Confiscation. Failure to keep accounting records. Proceeds.
In connection with a conviction for failure to keep accounting records, cf. Section 15, Subsection 1, first penal option, of the Accounting Act, cf. Sections 7 and 4 of the same, the Supreme Court stated that any money the person convicted had saved by failing to retain an accountant, constituted proceeds fit for confiscation, cf. Section 34 of the Penal Code of 1902. In calculating the amount to be confiscated, one would have to take into account the tax concession from the accounting fees, which would have been tax deductible. Given that general deterrence was a major concern in this case, there was no basis on which to reduce liability for confiscation pursuant to Section 34, Subsection 1, second sentence.
Supreme Court HR-2015-2469-A, (case no. 2015/1265), criminal case, appeal against judgment.
Judgment
8 December 2015
Labour law. Termination. Selection criteria.
An employee was terminated when his employer closed down the division he managed, where he was the sole employee. The employer had not considered terminating one of its other employees instead of the person who was terminated. The Supreme Court concluded that it was not unfair for the company to limit the selection of employees for termination to the individual division, even though the division in question only had one employee, cf. Section 15-7, Subsections 1 and 2, of the Working Environment Act. Among other things, references were made to the company’s previous strategies in downsizing processes, and its financial position. The employee was offered another position, which satisfied the requirement of “other suitable work within the undertaking”, cf. Section 15-7, Subsection 2, even though the position in question was not as well compensated. The termination was found to be fair. The appeal against the court of appeal’s judgment in favour of the defendant was rejected.
Supreme Court HR-2015-2449-A, (case no. 2015/828), civil suit, appeal against judgment.
Judgment
2 December 2015
Damages for non-economic loss. Sexual violation.
The Supreme Court stated that a conviction pursuant to Section 200, Subsection 1 or 2, of the Penal Code of 1902 does not constitute grounds for the award of damages for non-economic loss pursuant to Section 3-5, Subsection 1, first sentence, litra a), cf. Section 3-3, of the Act Relating to Compensation in Certain Circumstances. This applies even if the actions of the person convicted are covered by the acts described in Section 228 of the Penal Code of 1902, which is expressly mentioned in Section 3-3 of the Act Relating to Compensation in Certain Circumstances. The preparatory works to Section 3-5 show that this was a conscious choice on the part of the lawmaker, limiting the provision regarding damages to gross violations described in Section 200, Subsection 3.
Supreme Court HR-2015-2409-A, (case no. 2015/1072), civil suit, appeal against judgment.
Order
20 November 2015
Criminal Procedure. Protection of sources. Documentary film.
In connection with the investigation of a case into violations of Section 147d of the Penal Code of 1902, the police had seized unpublished video footage from a documentary film-maker, cf. Section 197, Subsection 2, second sentence, of the Criminal Procedure Act. The film-maker was working on a film documenting why Norwegian citizens allow themselves to be recruited as foreign fighters in Syria. The Supreme Court overturned the seizure. The material was fit to reveal unidentified sources, causing Section 125 to come to apply. In its considerations pursuant to Section 125, the Supreme Court did take into consideration that weighty public interest concerns spoke in favour of granting the prosecuting authority access to the material. On the other hand, strong concerns for the protection of sources were also present in the case, and any doubts as to whether the protection of sources must yield, should favour the protection of sources. Given the weighing of interests and the broad protection of unpublished material fit to reveal the identity of unidentified sources established by the ECtHR pursuant to Article 10 of the ECHR, there were no grounds on which to yield the protection of sources.
Supreme Court HR-2015-2308-A, (case no. 2015/1462), criminal case, appeal against judgment.
Judgment
12 November 2015
Tax law. Tax assessment. Assignment. Carried interest.
Three Norwegian investors had established a company (the controlling company) through their own holding companies, which in turn established two investment funds on Jersey. The three were employed in the controlling company. They had also established two companies with the same underlying corporate structure, which were to have a role as a so-called general partner - a partner with unlimited liability for the obligations - in their own funds. It was also agreed that a share of the additional return from the funds, over and above a fixed annual return to the investors, should go to the general manager as so-called carried interest. In the tax assessment, a significant amount, which in 2007 was paid as carried interest to the general partner and passed on to the owners’ holding companies, was allocated to the controlling company as business income, cf. section 5-30 of the Tax Act and at the same time allocated to the three owners as earned income from this company, cf. section 5-1 of the Tax Act. The Supreme Court set aside the tax assessment decisions. The reason for this was that the classification as regards tax law and allocation must be based on the reality as regards civil law. It was the general partner who had made the investment decisions, and the chosen corporate structure and allocation of carried interest to the general partner had real business justification. Therefore, from a tax point of view, the payment could not be allocated to the controlling company. Although the owners’ efforts had contributed significantly toward developing the value of the funds, the income had also come to them in their capacity as owners of the fund management operations and the profits were also related to the value creation in the portfolio companies and the general market trend. It could not then be concluded that the income was earned through the efforts of the owners.
Dissenting judgment 3-2 regarding the reasons
HR-2015-2268-A, (case no. 2015/725), civil case, appeal against judgment.
Judgment
12 November 2015
Law of damages. Patient injury The State’s liability for damages. Vaccine.
A 12 year old boy was diagnosed with multiple sclerosis (MS) a few months after he had received his second dose of MMR vaccine. Following a review of the expert statements available, the Supreme Court concluded that the causal connection between the vaccine and the illness could be a practical reality. The low standard of proof in section 8-2, subsection 1, first sentence of the Infectious Disease Control Act was then met. It was also found that the boy would not have developed MS symptoms in the foreseeable future without the MMR vaccine. As it was not established that another cause was more likely than the MMR vaccine, the State was liable for the damage.
HR-2015-2265-A, (case no. 2015/596), civil case, appeal against judgment.
Judgment
11 November 2015
Tax law. Employer’s National Insurance contributions (payroll tax). Foreign employees. Taxable fringe benefit of free meals.
In their tax assessment, polish employees, who had received free meals from their employers, were taxed for the cost savings this had for the households using the Directorate of Taxes’ rates, cf. section 5-12, subsection 3 of the Tax Act. Payroll tax was calculated on the same basis. The Supreme Court stated that the cost savings for the households should be determined according to the Directorate of Taxes’ rates, without taken into account the lower cost level in Poland, where the taxpayers’ had their homes. There was no room for any restrictive interpretation of section 5-12, subsection 3 and section 7-1 of the Tax Act did not apply.
HR-2015-2257-A, (case no. 2014/2250), civil case, appeal against judgment.
Judgment
10 November 2015
Social security law. Survivor’s pension. Court jurisdiction of judicial review.
A couple, who had lived together for 12 years, and who had two children together, married 10 days before the man, who was a member of the Norwegian Public Service Pension Fund, died. The surviving spouse’s application for survivor's pension was denied. The Supreme Court stated that the decision of whether survivor’s pension is to be granted pursuant to the excepting provisions of Section 32, Subsection 3, second sentence, of the Norwegian Public Service Pension Fund Act, is subject to administrative discretion, whereby the condition of “special circumstances” cannot be fully reviewed by the courts. In its specific assessment, the court found that the concerns taken into account were not unfair, and that the discretion applied was sufficiently broad. The court furthermore found that a more detailed weighing of the individual aspects in the consideration of whether “special circumstances” were present, was subject to administrative discretion and not justiciable in the court system. The appeal against the court of appeal’s judgment in favour of the defendant was rejected.
Supreme Court HR-2015-2252-A, (case no. 2015/235), civil suit, appeal against judgment.
Judgment
5 November 2015
Criminal law. Unfair exploitation. Corporate penalty.
A married couple were sentenced to a term of imprisonment of 9 months for unfair exploitation of Philippine nurses when arranging work and accommodation, etc., cf. section 108, subsection 3, letter b of the Immigration Act. A hospital trust was found guilty of complicity in the exploitation and was imposed a corporate penalty of NOK 1 million, cf. Section 48a and 48b of the Penal Code of 1902. The Supreme Court deemed the violations to be less serious than the Court of Appeal did, particularly with reference to the fact that the couple are not affected by the alternative course of action “arranges... accommodation” and that the penal provision only concerns some of the remuneration the couple demanded for the services they had rendered. In mitigation, the Supreme Court attached some importance to the fact that the couple’s conduct toward the nurses was not purely exploitative.
Dissenting judgment 4-1
Supreme Court of Norway HR-2015-2225-A, (case no. 2015/755), civil case, appeal against judgment.
Judgment
27 October 2015
Property law. Ground lease. Sub-lease. Determination of the redemption price.
Sub-lessees of residential plots submitted claims against the landowner regarding redemption of the plots, cf. section 42, subsection 4 of the Ground Lease Act. There was consensus that the capitalised value of the landowner’s loss of rental income from the first lessee should be used when determining the protection under section 105 of the Constitution. The majority of the Supreme Court concluded that the redemption price should be determined on the basis of the so-called gross method, after which the reduction in rent is calculated on the basis of the rental fee divided according to the total area of the housing estate, including common areas. The individual contracts between the ground owner and the first lessee gave no grounds for another solution. A minority of two justices believed that the so-called net method, where the rental fee is divided according to the area of the housing estate after deduction of common areas, should be used. Dissenting judgment 3-2.
HR-2015-2165-A, (case no. 2014/1669), civil case, appeal against judgment.
Judgment
22 October 2015
Criminal law. Police officer. Conduct unbefitting a police officer. Choice of law.
The punishment for violation of section 325, subsection 1 no. 3 of the Penal Code of 1902 was a set at a fine of NOK 5,000, or alternatively a term of imprisonment of 10 days. The defendant, who was a police superintendent, had, in violation of section 5-2 of the Police Conduct Regulations, made harassing statements against a female prisoner, and in violation of section 3-1 of the Police Conduct Regulations had made a false allegation against the prisoner. The statements, which were made over time and without there being any official requirement, constituted conduct unbefitting a police officer. The offence was also deemed to come under section 171 of the Penal Code of 2005 but there was no evidence that this provision has a higher criminal liability threshold than section 325, subsection 1 no. 3 of the Penal Code of 1902, or that actions which come under both provisions shall be punished more leniently than previously.
Supreme Court HR-2015-2122-A, (case no. 2015/1134), civil case, appeal against judgment.
Judgment
22 October 2015
Criminal law. Sentencing. Insurance fraud. Long processing time.
The punishment for two men for violation of Section 272, subsection 1 of the Penal Code was set at a term of imprisonment of one year and six months, of which six months were suspended, for both. Following an agreement between them, one man set light to the other’s house so that he, as owner, could claim the insurance. The house burned to the ground. The loss risk for the insurance company was around NOK 5.6 million. It was taken into consideration that the police had had the case for nine months, and that it had taken almost three years and four months from the time of the offence until judgment was delivered by the Supreme Court.
HR-2015-2121-A, (case no. 2015/565), civil case, appeal against judgment.
Judgment
22 October 2015
Property law. Common ownership. Lapse. Non-statutory basis.
Over a period of 18 years, one of several co-owners had at his own expense completely renovated an old and completely dilapidated cabin. In the same period, he had covered all the costs related to the cabin. The other co-owners had remained passive and none of them had used the cabin since the renovation started. The majority of the Supreme Court concluded that the active co-owner now had to be considered the sole owner of the cabin on a non-statutory basis. It was pointed out that it was natural for the other co-owners to interpret his conduct as a result of him considering the renovated cabin to be his. They had then every reason to make an opposite opinion known to him at a much earlier stage. It was agreed that the land was still co-owned. Two justices believed that the co-owners’ still had a right to the cabin. Dissenting judgment 3-2.
HR-2015-2111-A, (case no. 2015/723), civil case, appeal against judgment.
Judgment
21 October 2015
Criminal law. Sentencing. Drugs. Human rights Time limit for appearance in court following an arrest.
The punishment for possession of around 4.8 kg amphetamine was set at a term of imprisonment of 4 years and 10 months, cf. section 162, subsection 1 of the Penal Code of 1902, cf. subsection 1, first sentence. Following arrest, the convicted person was kept in an isolation cell for 4 days, and did not appear in court until after 52 hours, cf. Section 183 of the Criminal Procedure Act. The Supreme Court concluded that this did not represent a violation of CCPR or ECHR or the provisions of national law that could give grounds for reduction of the sentence. Before the trial, the convicted person had been subject to prolonged passport confiscation and a duty to report to the police and this gave some reduction in sentence.
HR-2015-02103-A, (case no. 2015/1005), criminal case, appeal against judgment.
Judgment
21 October 2015
Criminal law. Sentencing. Hampering an investigation
The penalty imposed for violation of section 132, subsection 1, section 317, subsection 4 of the Penal Code of 1902, cf. subsection 1 and section 162, subsection 1, was set at a term of imprisonment of 1 year. The convicted person had helped an acquaintance dispose of a murder victim and remove blood and objects that would have served as evidence for the murder. He then accepted money that had been taken from the victim and bought hashish. Violation of section 132 was clearly the gravest offence. In mitigation, it was emphasised that he had acted under pressure from the murderer and that through no fault of his own; two and a half years had passed since the crime was committed.
HR-2015-2104-A, (case no. 2015/1274), civil case, appeal against judgment.
Judgment
19 October 2015
Administrative law. Apprentice contract. Apprenticeship.
An apprentice under upper secondary education and training in the ambulance service had entered into a time-limited training agreement and an agreement on temporary employment in a health trust. Due to prolonged illness, she was forced to take a long absence from her apprenticeship. She requested a corresponding extension of her apprenticeship in the same enterprise beyond the agreed period, cf. section 4-2 of the Education Act. The Supreme Court concluded that the training establishment was not obliged to extend the apprenticeship. It was pointed out that the apprenticeship agreement was time-limited, that the Education Act and regulations did not entitle her to complete the organised training programme in the apprenticeship beyond the time limit in the agreement, and that the overall responsibility for ensuring that students complete their education lies with the county. The court found in favour of the health trust.
Supreme Court of Norway HR-2015-2085-A, (case no. 2015/468), civil case, appeal against judgment.
Judgment
14 October 2015
Criminal law. Sentencing. Serious drug crime. Import.
The penalty imposed for violation of Section 162 (2) of the Penal Code of 1902 was a term of imprisonment of two years and six months. As a drug mule, the convicted person had imported around 1 kg metamphetamine chloride with a purity that was three time higher than normal. The Supreme Court stated that due weight must attributed to the aggravating factor that the drug had a particularly high level of purity, even though the convicted person had not been aware of this, in the same way as a particularly low purity would result in a discretionary reduction in the penalty. It was pointed out that a high level of purity involves a greater risk of distribution, thus making the offence more harmful to society.
Supreme Court of Norway HR-2015-2074-A, (case no. 2015/1199), civil case, appeal against judgment.
Judgment
12 October 2015
Administrative law. Child welfare. Adoption.
A local government authority had requested consent to forced adoption of a girl aged six years and seven months. Since being placed in emergency foster care as an infant, due to neglect by the mother, who was now deceased, the girl had been in a a foster home. Her foster parents wanted to adopt her. Like the court of appeal, the Supreme Court concluded that the application should be turned down, as adoption would not be in the child's best interests pursuant to section 4-20 (2) b) of the Child Welfare Act, a condition that is supported by the requirement that there must be particularly weighty reasons. It was pointed out that the child currently has a safe and sound base in the foster home, and therefore does not have much to lose if the adoption issue is postponed until her needs and the relationship with her biological father have been clarified. There is currently not enough assurance that the benefits of adoption outweigh the objective of maintaining the biological bonds between the father and daughter.
Supreme Court of Norway HR-2015-2041-A, (case no. 2015/824), civil case, appeal against judgment.
Judgment
12 October 2015
Criminal law. Sentencing. Family violence.
The penalty imposed for violation of Section 219 (1) of the Penal Code of 1902 was 298 hours of community service with a completion time and alternatively, a term of imprisonment of 10 months. Over a period of three years, the convicted person had regularly hit two sons with a flat hand, who were 2 1/2 and 1 1/2 years old when the abuse started. The majority of the Supreme Court pointed out that the convicted person’s children, who were very vulnerable, were the only aggrieved parties in the case. The children’s father was under prosecution abroad and the convicted person was the primary caregiver in the family. It would be important for the children that in future, the mother also had care and control of them. A community service sentence was therefore considered to be in the best interests of the children . A minority of two Justices believed the penalty should be a term of imprisonment of 10 months. Dissenting judgment 3-2.
Supreme Court of Norway HR-2015-2042-A, (case no. 2015/1248), civil case, appeal against judgment.
Judgment
10 October 2015
Criminal law. Sentencing. Long processing time.
In 2007, the District Court sentenced the defendant to a term of imprisonment of one year and a fine of NOK 500,000 for tax evasion. The Court of Appeal dismissed the convicted person’s appeal against an unfounded decision. In 2011, it was decided to allow the case to be reviewed by the Norwegian Criminal Cases Review Commission. The Supreme Court, which pointed out that the original penalty was appropriate, now delivered a sentence with a term of imprisonment of nine months, of which five months were suspended, and a fine of NOK 250,000. It was pointed out that the case had been mislaid by the police for eight and a half months after the appeal to the Supreme Court was filed, and that this must be seen in connection with the unusually long processing time, which was due to a previous human rights violation, cf. Section 95 of the Norwegian Constitution and ECHR Article 6, no. 1.
Supreme Court of Norway HR-2015-2033-A, (case no. 2015/982), civil case, appeal against judgment.
Judgment
24 September 2015
Criminal law. Customs. Obligation to declare. Unlawful export of cash. Sentencing.
The penalty imposed for violation of Section 16-2 (1) and (2), cf. section 16-1, cf. section 3-1 (6) - the ban on export of more than NOK 25,000 without declaring this - was a fine of NOK 150,000, or a term of imprisonment of 25 days. The person convicted had hidden NOK 1,000,000 in the seat of a rocking chair he had taken with him in his car on the ferry from Oslo to Copenhagen. When delivering the sentence, the Supreme Court pointed out that in the majority of such cases, the offender is imposed a fine of 20 per cent of the amount that has or has been sought to be exported or imported. In the interests of equality, the penalty should be equivalent to the fine that would have been imposed for the offence. Such interests also speak in favour of a standardisation of the penalty, so that the offender’s financial situation s of less importance when determining the fine. It was also pointed out that in order to deter others, violation of the obligation to declare in accordance with the Customs Act should be treated severely by the court. The offender was given a more lenient sentence because of his confession.
Supreme Court of Norway HR-2015-1944-A, (case no. 2015/640), civil case, appeal against judgment.
Order
24 September 2015
Legal venue. Interlocutory order.
A Dutch sub-contractor to a Korean shipyard, which was building a platform for use on the Norwegian Continental Shelf, had provided a demand guarantee through a Dutch guarantee company for possible liability due to breach of contract. Norwegian law was to apply to both the underlying contractual relationship and the guarantee agreement. When the yard filed a claim against the guarantee company for payment under the guarantee, the Dutch sub-contractor submitted an application to a Norwegian court for an interlocutory order to stop the payment. The dispute did not have jurisdiction in Norway under Section 32-4 of the Dispute Act, and the Supreme Court, which heard the case in chambers, concluded that it also could not be heard here pursuant to section 32-2 of the Dispute Act, cf. section 4-3 (1) Reference was made to the assumption of the preparatory works that there would then have to be special circumstances, and that the connection to Norway on its own is not sufficient. It was further stated that it would be difficult to establish Norwegian jurisdiction in cases related to the law of property where there is no proven jurisdiction in Norway, and this would be especially difficult if there was a requirement for an interlocutory order in such cases.
Supreme Court of Norway HR-2015-1943-A, (case no. 2015/882), civil case, appeal against judgment.
Judgment
24 September 2015
Criminal law. Sexual intercourse with a minor. Equality in age and development. Sentencing.
The penalty imposed for violation of Section 195 (1), second penal alternative, was a term of imprisonment of one year and six months, where the whole sentence was suspended. The defendant, who was mildly mentally handicapped, had only just turned 18 years of age when she had sexual intercourse with a boy of almost 14 years of age. The two were considered equal in development, but the age difference was too great for the exculpatory rule in Section 195 (4) of the Penal Code to be applicable. At sentencing, emphasis was placed on the defendant’s developmental disability, cf. section 56 c) of the Penal Code, her confession and that the case was old.
Supreme Court of Norway HR-2015-1946-A, (case no. 2015/810), civil case, appeal against judgment.
Judgment
24 September 2015
Tax law. Deduction for a contribution toward building a school.
A holding company with significant ownership interests in the aquaculture industry gave a contribution of NOK 50 million toward building a public sector school in combination with a cultural centre in the municipality where the majority of the subsidiaries’ operations were located. The main purpose of the contribution was to be able to attract, hold onto and develop manpower and expertise for the subsidiaries’ operations in the municipality, which in turn would ensure and increase the dividends to the holding company. The majority of the Supreme Court concluded that the contribution was deductible under Section 6-24 of the Tax Act, cf. section 6-1. The requirement of close and immediate connection between the contribution and the holding company’s business activity was deemed to have been fulfilled. It was also pointed out that the connection requirement in Section 6-24 is the same as under Section 6-1. Section 6-24 could not lead to a different outcome. Dissenting judgment 4-1
Supreme Court of Norway HR-2015-1947-A, (case no. 2015/310), civil case, appeal against judgment.
Judgment
24 September 2015
Tax law. Double taxation. Property tax. Power plant.
A local authority that had previously levied property tax on power plants in the municipality, introduced a general property tax in 2009, and then levied property tax on other property belonging to the power company, including transmission lines from two power stations and up to the regular power grid, referred to as production lines. The Supreme Court concluded that the term “power plant”in section 18-5 of the Tax Act, cf. section 18-1, did not include the production lines, as the interface is where the generator terminal voltage is stepped up to the transmission voltage. Consequently, the transmission lines were not part of the property tax basis for the power plants. Levying property tax on these lines did not then involve double taxation, as the power company had asserted. The court found in favour of the local authority
Supreme Court of Norway HR-2015-1945-A, (case no. 2015/334), civil case, appeal against judgment.
Judgment
23 September 2015
Tax law Tax penalty. Timing error. Legal costs.
With no intent to evade taxes, a private limited company had failed to report as income its share of the profits in an internal company in the tax assessment for the year in question. The Tax Office imposed a tax penalty on the whole amount that had not been reported for taxation. The company submitted that the amount would in any event be reported for taxation in a later year, and that the tax penalty should then only have been calculated on the net benefit of the deferred taxation, cf. section 10-4 no. 4 c) of the Tax Assessment Act. The Supreme Court concluded that the term “timing error”in section 10-4 no. 4 of the Tax Assessment Act should be interpreted in such a way that the error concerns a taxable benefit being carried to income in a different income period than the one stipulated by the law. Failure to recognise income due to other errors, falls outside the scope of the provision. The court found in favour of the Norwegian state represented by Skatt Øst. The claim for cover of costs pursuant to Article 6 no. 3 c) of ECHR could not be admitted as a legal cost claim in the case, but had to be submitted as an application for supplementary authorisation of free legal representation.
Supreme Court of Norway HR-2015-1934-A, (case no. 2015/906), civil case, appeal against judgment.
Judgment
15 September 2015
Administrative law. Examination misconduct.
A law student at the University of Bergen had, prior to the start of the examination, left unauthorized aids on his desk by mistake. He had no intentions of taking advantage of these aids during the examination. The aids were confiscated by book inspectors before the examination started. The examination was annulled and the student was expelled for one semester. The Supreme Court concluded that leaving these aids on the examination desk constituted examination misconduct in the sense this term is applied in Section 4-7, Subsection 1, litra b), of the Universities and University Colleges Act, as this provision read in the spring of 2012, even though the student had no intention of taking advantage of these aids in his paper. The relevant provision in the university's academic and examination regulations, stating that the examination begins when the inspection of authorized aids begins, is conferred by statute, and the student's actions constitute examination misconduct even though he did not have access to the aids when he was preparing his examination paper. Also, the student's negligence was considered gross. The Supreme Court found in favour of the State of Norway, represented by the University of Bergen.
The Supreme Court HR-2015-01878-A, (case no. 2015/358), civil suit, appeal against judgment.
Judgment
14 September 2015
Insurance law. Compensation. Duty to mitigate loss. Insurance company discount scheme.
In the insurance settlement following an aggravated robbery, the settlement was reduced by the discount the policyholder could obtain by reacquiring equivalent items from a jeweller with whom the insurance company had a discount agreement. In the criminal case against the person who committed the robbery, the aggrieved claimed compensation for the discount amount. Contrary to the lower courts, the Supreme Court allowed the claim. The court pointed out that an aggrieved person, as a main rule, can claim monetary compensation for a loss instead of compensation in kind, and that this similarly applies when the aggrieved person accepts an insurance payout that has been reduced in comparison with his full economic loss. The court further pointed out that the aggrieved person could have claimed compensation for his entire loss from the person who committed the robbery without regard to his insurance coverage, cf. Section 4-2, no. 1, litra a), of the Act Relating to Compensation in Certain Circumstances, and that it would be jarring in the eyes of the public if the insurance settlement facilitated for the robber, even after paying the compensation, being able to sell the proceeds from the robbery at a profit.
The Supreme Court HR-2015-1865-A, (case no. 2015/769), civil suit, appeal against judgment.
Judgment
14 September 2015
Tax law. Tax assessment. Double taxation.
An audit assessment for 2005 included income the taxpayer had already reported for taxation in 2006. The Supreme Court referred to the principle in Norwegian law that a taxpayer cannot be taxed twice for the same income. This restriction entails that income may not be transferred from one income year to another, without simultaneously reducing the total income of the year from which it is transferred. The fact any legal action pertaining to taxation for 2006 is now time-barred has no bearing on this principle. The fact that the taxpayer had not submitted tax returns and that his conduct had been reproachable in other respects may give rise to discretionary tax assessment and other sanctions, but it does not constitute grounds on which to deviate from the proscription against double taxation without further legal authorization, which was not present in this case. The decision of the Tax Appeals Board was overturned.
The Supreme Court HR-2015-1864-A, (case no. 2015/569), civil suit, appeal against judgment.
Judgment
10 September 2015
Civil procedure. Administrative procedure Splitting proceedings.
In a case involving rights to a ship design, the district court had split the proceedings pursuant to Section 16-1 of the Dispute Act, so that the mutual claims for damages could be heard separately. Despite some conflicting information regarding the scope of the splitting during the pre-trial review, the Supreme Court concluded that there could be no doubt that the entire claim for damages, including the question of whether the parties had acted tortiously, would be heard during the second part of the case. The court pointed out that once a judgment has been delivered, review of the decision to split proceedings is limited to reviewing whether the fundamental requirement of a fair and judicious trial. The district court's splitting of the proceedings did not result in an injudicious hearing of the case. Nor were there any indications that the second part of the proceedings would not be heard in a satisfactory manner. The court of appeal had overturned the district court's judgment and main proceedings. The court of appeal's judgment was overturned.
The Supreme Court HR-2015-1842-A, (case no. 2014/1029), civil suit, appeal against judgment.
Judgment
1 September 2015
Criminal law. Sentencing. Masturbation of sleeping woman. Damages for non-economic loss
The penalty for violating Section 192, Subsection 1, litra b), of the Penal Code was set to a period of imprisonment of two years and six months. The person convicted had pulled down the trousers, tights and underwear of a woman who was highly intoxicated, sleeping on a sofa. He had then proceeded to rub his hand back and forth in contact with her genitals for a period of several minutes. It was considered an extenuating circumstance that two years and eight months had passed since the events took place. This judgment serves as a guideline for sentencing in rape cases involving sexual activity with no penetration. Damages for non-economic loss were awarded in the amount of NOK 100,000.
The Supreme Court HR-2015-1791-A, (case no. 2015/927), criminal case, appeal against judgment.
Judgment
26 August 2015
Health law. Compulsory mental health care. Severe mental illness. Anorexia
A woman, who was taken under compulsory mental health care pursuant to section 3-3 no. 3 of the Mental Health Care Act due to anorexia, failed in her claim to be discharged. The Supreme Court found that in certain cases, anorexia patients may have an illness that may be characterised as a severe mental illness, if the condition can be equated with psychosis. The experts of the Supreme Court had stated that the anorexia was very severe and had to be equated with a psychosis, and the Supreme Court concluded that the woman had a severe mental illness, so that the basic requirement in section 3-3 no. 3 of the Mental Health Care Act had been met. The additional requirement in section 3-3 no. 3 a) of the Mental Health Care Act was also met.
HR-2015-1752-A, (case no. 2015/1305), civil case, appeal against judgment.
Judgment
26 August 2015
Execution of sentence. Transfer to closed prison Standard of proof.
It was decided to transfer an inmate of an open prison, who was suspected of drug crime in the prison, to a prison with a higher level of security, cf. section 14, subsection 4 a) and d) of the Execution of Sentences Act. The Supreme Court concluded that pursuant to the Act the preponderance of evidence is sufficient to determine that an inmate has committed a criminal offence and justify transfer to a prison with a higher level of security. Such transfer and the impact of this are also not of such a nature that the transfer can be considered as a punishment under Article 6 of ECHR. A stricter standard of proof can also not be derived from section 96 of the Norwegian Constitution or from ordinary civil procedural principles.
HR-2015-1757-A, (case no. 2014/2352), civil case, appeal against judgment.
Judgment
1 July 2015
Criminal procedure. Appointment of public defender. ECHR.
The Court of Appeal had turned down a petition for appointment of a public defender in connection with a pending judicial examination of the defendant during the investigation. The Supreme Court, which heard the case in chambers, stated that Article 6 no. 3, letter c) of ECHR does not give a right to a public defender during the investigation to a greater extent than follows from Section 100, Subsection 2 of the Criminal Procedure Act. The condition of “special grounds” in this provision must be interpreted on the basis of the development – also internationally – in the view of the importance of assistance from a public defender during the early stages of the process. As the Court of Appeal had not attached importance to the considerations that indicate appointment of a public defender also during the investigation stage, the decision was based on an incorrect interpretation of Section 100, Subsection 2 of the Criminal Procedure Act. The Court of Appeal's judgment was overturned. Two Justices had their own grounds for the result. Code 26.2.
HR-2015-01405-A (case no, 2015/78), criminal case, appeal against judgment.
Judgment
1 July 2015
Criminal procedure. Appointment of public defender. ECHR.
The Court of Appeal had turned down a petition for subsequent appointment of a public defender in connection with a police interview held where the public defender had been present. The Supreme Court, which heard the case in chambers, pointed out that the in its assessment of whether “special grounds” in Section 100, Subsection 2 of the Criminal Procedure Act were met, the Court of Appeal had not taken into account recent development on the view of the importance of a public defender being appointed in connection with interviews during the investigation. The decision was then based on an incorrect interpretation of Section 100, Subsection 2 of the Criminal Procedure Act. The Court of Appeal's judgment was overturned. Code 26.2.
HR-2015-01406-A, (case no. 2015/242), criminal case, appeal against judgment.
Judgment
26 June 2015
Criminal law. Sentencing. Drugs. In the best interests of the child.
The penalty imposed for violation of Section 162, Subsection 1 and 2, was a period of imprisonment of three years, of which one year is suspended. Together with another person, the convicted person had acquired 15,000 Rivotril tablets, around 4.6 kg hashish and around 1 kg marijuana and had transported the drugs from Oslo to Bergen. Being the sole carer for a daughter of 16 with mental problems did not provide grounds for delivering a community sentence. It was pointed out that it will not always be of decisive importance that the best interests of the child shall be a primary consideration, cf. Section 104, Subsection 2 of the Constitution and Article 3 of the UN Convention on the Rights of the Child. This was a serious case and the daughter would be followed-up by the Child Welfare Services.
HR-2015-01369-A, (case no. 2015/660), criminal case, appeal against judgment.
Judgment
26 June 2015
Criminal law. Sentencing. Exploitation of a mental illness for the purpose of sexual activity and prostitution.
The penalty imposed for violation of Section 193, Subsection 2 relating to exploitation of mental illness for the purpose of sexual activity, Section 224, Subsection 1, letter a) relating to misuse of a vulnerable situations for the purpose of prostitution and Section 342, Subsection 1, letter c) relating to breach of an interim exclusion order was a period of imprisonment of 5 years. On several occasions, a 56 year old man had exploited a mentally ill female for the purpose of sexual activity and prostitution. Some of the sexual activity was verging on rape. The convicted person had also repeatedly breached an interim exclusion order.
HR-2015-01355-A, (case no. 2015/270), criminal case, appeal against judgment.
Judgment
26 June 2015
Law of damages. Compensation for permanent injury. Basic disability.
In a traffic accident, a woman suffered injuries that resulted in a 40% medical disability. At the time of the accident, she had a basic disability of 41%. The Supreme Court concluded that compensation for permanent injury under Section 3-2 of the Damage Compensation Act in a case such as this should be determined using the so-called difference principle as a starting point. This means that the compensation is determined on the basis of the difference between the medical disability following the injury and the disability related to the basic injury on its own. It was also stated that the so-called separation principle, according to which the basic injury is disregarded and the degree of medical disability resulting from the subsequent injury to the injured party is considered separately, sets a lower limit for compensation for permanent injury.
HR-2015-01362-A, (case no. 2014/2339), civil case, appeal against judgment.
Judgment
26 June 2015
Criminal law. Sentencing. Family violence.
The penalty imposed for violation of Section 219 of the Penal Code is a period of imprisonment of one year and three months. The convicted person had regularly slapped, pinched, kicked, pushed, grabbed and threatened two of his daughters over a period of 12 years. The abuse began when the children were around 20 months old. The violence occurred partly in connection with upbringing, but also occurred as a result of spontaneous, unpredictable outbursts of anger by the convicted person. The three younger siblings, who were not victims of the violence themselves, had witnessed the mistreatment of their older sisters and were also aggrieved parties. The psychological bond between the convicted person and the children was deemed an aggravating factor. In connection with sentencing it was taken into account that most of the offence was committed before the the increase in penalty in 2010.
HR-2015-01368-A, (case no. 2015/356), criminal case, appeal against judgment.
Judgment
26 June 2015
Criminal law. Sentencing. Child pornography. Possession.
The penalty imposed for violation of Section 204a, Subsection 1, letter a) of the Penal Code was a period of imprisonment of 120 days, of which 60 days were suspended due to a confession. The convicted person had downloaded 65 files with a total of 14 hours of films showing child abuse images. The downloading was not planned. The man had performed a search for lawful pornography and deleted the material has soon as he discovered what it was. He was also not aware that it was available to other users of the file sharing network until it was deleted.
HR-2015-01360-A, (case no. 2015/552), civil case, appeal against judgment.
Judgment
26 June 2015
Criminal law. Sentencing. Child pornography. Possession and distribution.
The penalty for violation of Section 204a, Subsection 1, letter a) of the Penal Code was a period of imprisonment of 120 days, of which 60 days were suspended. The convicted person had installed a search and file-sharing application on his computer, and used this to download pornography. The download in question included 17 films with a total of five hours of child pornography material. The man was aware that the downloaded films were likely to include child abuse images and that the files were made available to others in the file-sharing network. However, he deleted the films as soon as he discovered they included child pornography material. His confession was taken into account.
HR-2015-01361-A, (case no. 2015/556), civil case, appeal against judgment.
Judgment
25 June 2015
Criminal law. Threats. Deprivation of liberty. Sentencing.
The penalty imposed for violation of Section 227, second penal option, Section 223, Subsection 1 and Section 128 of the Penal Code was a period of imprisonment of one year and six months, of which nine months were suspended. The convicted person, who was dissatisfied with the way he was treated by NAV, went to the NAV office and first fired a shot at the ceiling before aiming the gun at several of the staff there. One employee was forced into an office and held against their will for around 20 minutes. In connection with the sentencing, the court pointed out that tougher penalties for violent crimes must also have consequences for the penalty for threats of violence and deprivation of liberty involving violence or threats of violence, that NAV employees are entitled to special protection and that it is also important that visitors to NAV feel safe. The case had taken so long that there was a breach of Article 6 of ECHR concerning the right to trial within a reasonable time and the equivalent provision in Section 95 of the Constitution. This was taken into account through a reduction in the sentence, which should have been a period of two years imprisonment.
HR-2015-01343-A, (case no. 2015/116), criminal case, appeal against judgment.
Judgment
25 June 2015
Administrative law. Public enterprises. Misuse of authority. Passenger charge.
In the summer season, the Hurtigruten Coastal Express passes Geiranger, where passengers who so wish may be transported ashore. The Hurtigruten vessel itself does not dock at the quay, but anchors up and transfers these passengers to a local vessel that rents a berth from the municipal port authorities. The local authorities, who required that Hurtigruten AS pay a passenger charge for the use of the port authority’s port facilities, were unsuccessful with their claim. A Supreme Court majority of three justices based their decision on the general rules of private law applied to commercial services offered by the port and that a payment claim then had to be based on an agreement. The port authorities did not own the area where the Hurtigruten vessel was anchored, so that the payment claim could not be based on ownership rights. The local vessel that rented the berth from the local authorities was entitled to drop off and pick up passengers without extra charge. The port authorities’ private autonomy then provided no grounds for demanding payment from their own contracting party’s customers. In the event, the claim would have to have been submitted to the contracting party. One Justice was also of the opinion that the claim was invalid under the administrative law doctrine of unfair discrimination. Two Justices were of the opinion that the port authorities were entitled to demand a passenger charge for all passengers on board the Hurtigruten vessels, including those who did not go ashore. Dissenting judgment 3-2.
HR-2015-01347-A, (case no. 2015/231), civil case, appeal against judgment.
Judgment
25 June 2015
Defamation. Freedom of speech. Protection of privacy. Compensation.
In an article, a newspaper had incorrectly accused a former manager of a football club of having aided and abetted tax evasion on behalf of the club. This was a contravention of the description of the offence in Section 247 of the Penal Code. However, the court found in favour of the newspaper as regards the claim for non-economic loss, as the majority of the Supreme Court concluded that the statements were not unlawful. The article dealt with a topic of significant public interest. The newspaper had a sound factual basis for claiming that the club had entered into an agreement that involved tax evasion, and there was a real possibility that the former manager had been involved in the agreement. The accusations were printed without the manager being given the opportunity to refute these, but the newspaper published his view online the same day and corrected the report in the printed newspaper the following day. The accusation had a somewhat guarded tone. Dissenting judgment 3-2.
HR-2015-01339-A, (case no. 2014/2312), civil case, appeal against judgment.
Order
11 June 2015
Civil procedure. Administrative law. Legal interest. Joinder of parties. Child maintenance. Governmental tripartite relationship.
A custodial parent initiated legal action against the state over the enforceability of an administrative decision involving maintenance payments. The state argued for the action to be dismissed, on the grounds that the non-custodial parent had not been named as co-defendant alongside the state. The Supreme Court, which heard the case in chambers, concluded that a rule for compulsory joinder of parties in governmental tripartite relationships cannot be derived from Section 1-3 of the Dispute Act. Furthermore, there is no legal basis on which to separate child maintenance cases from other cases involving governmental tripartite relationships. The case was referred for hearing.
HR-2015-01153-A, (case no. 2014/2300), civil suit, appeal against interlocutory order.
Judgment
11 June 2015
Criminal law. Public international law. Antarctic expedition.
A man was fined NOK 45,000 for violating Section 8 of the Dependent Territories Act, cf. Section 7 of the same, cf. Section 32 of the Antarctica Regulations. He had failed to provide correct information about an expedition to Antarctica, started the expedition despite the Norwegian Polar Institute ordering him to postpone it, and sailed in Antarctica without fulfilling the requirements of adequate insurance. The Supreme Court stated that the provisions of Section 7, Subsection 2, of the Dependent Territories Act, which pertains to regulations, do not conflict with Norway's treaty obligations, nor do they violate any general principles of public international law. There is furthermore no ambiguity associated with the standard legal sanctions laid down in the regulations. Antarctica was the goal of the expedition, they stayed near land for an extended period of time, and they also laid down anchor on several occasions. Submissions that the expedition enjoyed impunity, given that it sailed the open sea, were not successful.
HR-2015-01233-A, (case no. 2015/51), criminal case, appeal against judgment.
Judgment
10 June 2015
Criminal law. Sentencing. Assault and battery. Nightclub violence.
The penalty imposed for violation of Section 229, first penal option, cf. Section 232, of the Penal Code, was a period of imprisonment of five months, of which three months were suspended. The person convicted had thrown a glass at a security guard in a nightclub. The security guard suffered a cut below his chin, which needed stitches. Concerns for the defendant's daughter, who has a social adjustment disorder, and for whom the defendant has sole custody, are not enough to justify a community sentence. The court stated that in order to impose a community sentence for this type of violent crime, circumstances must be present that far transcend the considerations normally taken into account in the imposition of a custodial sentence.
HR-2015-01223-A, (case no. 2015/333), criminal case, appeal against judgment.
Judgment
8 June 2015
Value-added tax. Deduction of input VAT.
Telenor ASA had sought to deduct input VAT pursuant to Section 21, Subsection 1, of the VAT Act of 1969, for costs related to legal and financial assistance, as well as public relations assistance, in connection with the sale of shares in a subsidiary, and in connection with shareholder conflicts in partly-owned companies in Ukraine and Russia. These deductions were not accepted. The decisions to refuse deductions of input VAT were upheld. The sale of shares was found to be a corporate transaction, for which deductions may not be claimed. Furthermore, the acquisitions relating to conflicts in the partly-owned companies did not have a sufficiently intrinsic and close connection with the taxable enterprise for input VAT to be deductible. The taxes were imposed on the basis of the company's own reports, which had not been corrected at the time of appeal, and the company's claim that the order for retroactive assessment of VAT was unenforceable, given that the basis for the retroactive assessment was incorrect, was not successful.
HR-2015-01202-A, (case.no. 2014/2256), civil suit, appeal against judgment.
Judgment
8 June 2015
Criminal law. Sentencing. Violation of entry ban.
The penalty for violating Section 108, Subsection 3, litra e), of the Immigration Act was set to a period of imprisonment of one year. The person convicted, who was an Albanian national with two prior convictions for intentional violation of the entry ban imposed on him after deportation, had been granted temporary residence in Sweden. Information he had received from Swedish authorities in connection with his being granted a residence permit, had led him to believe that the entry ban to Norway had been lifted. In this case he was found to have exhibited ordinary negligence, which was considered an extenuating circumstance. He was found to have served out his sentence in full, after having spent 354 days in custody, cf. Section 60, Subsection 1, of the Penal Code.
HR-2015-01204-A, (case no. 2015/510), criminal case, appeal against judgment.
Judgment
8 June 2015
Criminal law. Sentencing. Violation of entry ban.
The penalty for violating Section 108, Subsection 3, litra e), cf. Section 71, Subsection 2, of the Immigration Act was set to a period of imprisonment of one years and seven months. The person convicted, a Ghana national with prior convictions for violations of the entry ban imposed on him, had believed that the entry ban in question had expired. However, he had not contacted Norwegian immigration authorities to find out for certain. This constituted neglect bordering on wilful, and there were no grounds on which to deviate from the sentencing norm.
HR-2015-01205-A, (case no. 2015/508), criminal case, appeal against judgment.
Judgment
27 May 2015
Tax law. Deduction for loss in enterprise.
A person who owned 50 percent of the shares in Start Toppfotball AS, and who ran the sport's club's commercial activities, had invested significant amounts in the company over a period of several years, and he had also acted as surety for large loans. In addition, he put 50-60 percent of his capacity for work into the company and the sport's club, without receiving compensation for his efforts. In connection with his tax assessment, he claimed deductions for a guaranteed amount he had had to redeem. The Supreme Court made reference to Section 6-2 of the Taxation Act, which provides that a shareholder's activity in the company may serve as a basis on which to claim tax deductions for losses incurred, and pointed out that the condition of the activity fulfilling certain requirements related to scope and duration had been met in this case. Furthermore, the activity had been carried out at the shareholder's cost and risk, and was likely to prove profitable. The court found in favour of the shareholder, in that his activities on behalf of the company were classified as personal economic activity, and he was entitled to claim tax deduction pursuant to Section 6-2, Subsection 2, of the Taxation Act.
HR-2015-01133-A, (case no. 2014/2017), civil suit, appeal against judgment.
Judgment
27 May 2015
Criminal law. Sentencing. Loss of rights. Suppression of evidence. Unlawful killing of wolf.
The penalty imposed for violation of Section 132, Subsection 1, of the Penal Code was a suspended sentence of 16 days imprisonment, a fine of NOK 30,000, a one-year ban on hunting and trapping, cf. Section 29, Subsection 1, litra b), of the Penal Code, and confiscation of NOK 15,000, cf. Section 35, Subsection 3, of the Penal Code. The person convicted had transported a wolf, illegally killed by an acquaintance of his, over a distance of approx. two kilometres. In the sentencing, the Supreme Court emphasized the fact that the person convicted had helped another hide the outcome of a serious environmental crime, and that he had helped destroy key evidence of the crime. However, the court did take into account that he believed the wolf had been shot accidentally, and he came into the situation unprepared. In connection with the overall sentencing, the Supreme Court pointed out that the person convicted had to suffer both loss of rights and confiscation.
HR-2015-01134-A, (case no. 2015/269), criminal case, appeal against judgment.
Judgment
21 May 2015
Law of damages. Contributory negligence. Psychosis.
A psychotic person had suffered serious injury as a consequence of electric shock after having accessed a Norwegian National Rail Administration rail yard and climbed up onto the roof of a parked railway carriage. In response to the issue of a potential reduction in damages due to contributory negligence, cf. Section 5-1, no. 2, of the Act Relating to Compensation in Certain Circumstances, the Supreme Court stated that the requirement of “contribution” would not have been met if it is established that the injured party was psychotic at the time of the incident and it has been substantiated that the psychosis and the injury are related. As these conditions have been met, there are no grounds on which to reduce damages on the basis of contributory negligence.
HR-2015-01110-A, (case no. 2014/1802), civil suit, appeal against judgment.
Judgment
21 May 2015
Contract law. Authority. Co-ownership.
The chairman of a co-ownership had unilaterally entered into an agreement with another co-ownership regarding parking on the land of the former co-ownership, despite the fact that such agreements are subject to approval by the meeting of co-owners, cf. Section 30, Subsection 2, of the Building Unit Ownership Act. The Supreme Court pointed out that the rules of apparent authority, as applied in Section 43, Subsection 4, of the Building Unit Ownership Act, were drafted on the basis of Section 8-15 of the former Limited Liability Companies Act, Section 6-33 of the current Limited Liability Companies Act, and this provision also includes cases involving breach of authority resting with another organizational body under peremptory rule of law. This would have to be taken into account in the interpretation of Section 43, Subsection 4, of the Building Unit Ownership Act, even in connection with matters that, by law, are matters to be addressed by the meeting of co-owners. Given that the court of appeal had applied a different interpretation of the provision, the court of appeal's judgment was overturned.
HR-2015-01109-A, (case no. 2014/2016), civil suit, appeal against judgment.
Order
20 May 2015
Civil procedure. Dismissal. Administrative law. Patient injury.
In an action for damages against the Patients' Injury Compensation Board, which concluded that no basis of liability for compensatory damages was present in the case, the public party submitted a prayer for judgment that the part of the case involving quantification of damages, which had not been heard by the Board, be dismissed. The prayer for dismissal was denied. The Supreme Court, in pointing out that the term “case”, as applied in Section 18 of the Patients' Injury Act, must be understood to denote the action for damages and not the administrative case, stated that the case is not limited to the part of the action for damages that has been settled by the Patients' Injury Compensation Board. Consequently, the court must, in the event it concludes that a basis of liability for compensatory damages and causal link are present, also consider the quantification of damages.
HR-2015-01094-A, (case no. 2015/184), civil suit, appeal against order.
Order
20 May 2015
Civil procedure. Basis for claim. Administrative law. Patient injury.
In a case involving the quantification of patient injury compensation, cf. Section 18 of the Patients' Injury Act, the public party submitted an objection to the Patients' Injury Compensation Board's decision regarding liability in damages. The majority opinion of the Supreme Court concluded that the public party had leave to make this submission. The court pointed out that the action for damages as such may be brought before the court for hearing pursuant to Section 18 of the Patients' Injury Act, and that the public party's right to have its submissions heard on their merits must be the same as for any other defendant in an action for damages. The preparatory works to the act do not propose any restrictions on what may be heard, based on the decision that led to the commencement of legal proceedings. Dissenting vote: 3-2.
HR-2015-01093-A, (case no. 2014/1766), civil suit, appeal against interlocutory order.
Judgment
20 May 2015
Law of damages. Shipbroker. Misleading information regarding shipbroker commission.
In connection with the formation of two contracts of carriage, the broker had provided the parties with misleading information regarding commission. The shipping company, who claimed that they, as a consequence, had paid more in commission than they were obligated to, demanded a refund from the shipbroker. The fact that the broker's actions gave rise to damages was not in dispute. However, the Supreme Court concluded that even if the information regarding commission had been correct, it would have had no bearing on the net freight rate on which the shipping company's offer was based. It had thus not been substantiated that the shipping company had suffered a loss. The court found in favour of the shipbroker.
HR-2015-01077-A, (case no. 2014/1899), civil suit, appeal against judgment.
Judgment
20 May 2015
Insurance law. Change of ownership insurance. Direct action against a surveyor's liability insurer.
A change of ownership insurance company had covered a buyer's price reduction claim against the seller over settlement damage, which the surveyor had been negligent in failing to notice. In line with the lower courts, the Supreme Court concluded that the surveyor's liability insurance company was directly liable to the change of ownership insurance company for the loss they suffered as a result of the surveyor's actions. The fact that the claim for damages was based on the company's coverage of the buyer's price reduction claim against the seller was no impediment to it being brought. Furthermore, the change of ownership insurance company reasonably and justifiably had faith in the appraisal having been carried out with due care and diligence. In that there were grounds on which to reduce the surveyor's liability following further assessment of the relationship between the parties, liability in this case was reduced by half, in line with the Court of Appeal's decision, given the seller's own negligence. The appeals against the Court of Appeal's judgment were rejected. Code 12.2.
HR-2015-01092-A, (case no. 2014/1921), civil suit, appeal against judgment.
Judgment
6 May 2015
Compensatory damages. Unlawful felling. Voluntary communal work.
During voluntary communal work in an area with many cabins, 80 trees were unlawfully felled on the properties of two ground lessees who did not participate in the work. These ground lessees sued for damages from two of the volunteers, who had initiated the communal work and who had been central to the planning of the work. They were also among the leading participants, and their actions were motivated by self-interest. However, they had not acquired sufficient knowledge about property boundaries. The Supreme Court found that the two had been clearly negligent in their actions. The majority of the trees had been felled by other volunteers in the communal work, but the law does not require the two to have personally felled the trees for a causal link to be present and extra-contractual liability to apply. When several parties have acted together to cause the damage as described in this case, other participants who had acted in the same manner as the respondents, would be jointly liable for the sum of the damage. In such cases, the requirements that normally apply to causal links may be somewhat reduced. The lower courts had awarded compensatory damages to cover reasonable remedies to replace the felled trees. The appeal against the Court of Appeal's judgment was rejected.
HR-2015-00989-A, (case no. 2014/2121), civil suit, appeal against judgment.
Judgment
5 May 2015
Law of damages. Master-servant liability. Advocate law.
A then-partner in a law firm had, in connection with services rendered, intentionally and deliberately acquired values in the form of shares in family companies that had been owned by the client's children. The Supreme Court concluded that the law firm, due to master-servant liability under Section 2-1 of the Act Relating to Compensation in Certain Circumstances, was liable for costs associated with returning the shares and for losses associated with the advocate draining funds from the companies. The Supreme Court stated that partners practising law must also be regarded as employees under the provisions of said Section. The provisions regarding a relevant link between the employer's activities and the tortious conduct were also found to have been met, and the Supreme Court stated that one can no longer maintain as a norm that master-servant liability does not apply to intentional tortious conduct. Given that the case before the Supreme Court was limited to the issue of liability, and the law firm had submitted other objections that had not yet been heard in the lower courts, the court of appeal's judgment in favour of the defendant was overturned, cf. Section 30-14, Subsection 2, of the Dispute Act.
HR-2015-00981-A, (case no. 2014/2127), civil suit, appeal against judgment.
Judgment
4 May 2015
Child welfare. Party status. Access.
Two children had been taken into care, and the children's biological mother had been granted access four times a year, for three hours each time. The Supreme Court concluded that this scope of access could not be deemed to be “very limited”, cf. Section 4-19, Subsection 4, litra b), of the Child Welfare Act. The court pointed out that any assessment of the scope of the access would have to compare the access granted with the norm for access rights following a care order. The children's maternal grandmother did not succeed in claiming party status on the issue of access. Even though the relationship between grandparents and grandchildren with whom they have a strong bond is protected under Article 8 of the ECHR, this does not entail an interpretation of the term “very limited” that differs from the one applied in other sources of law. The Supreme Court found in favour of the municipality.
HR-2015-00964-A, (case no. 2014/1964), civil suit, appeal against judgment.
Judgment
22 April 2015
Ground lease. Adjustment of ground rent.
In ground lease contracts entered into for a period of 40 years, in which the ground lessees had the option of renewing the lease for periods of 20 years at a time, the ground lessor could adjust the ground rent in accordance with the consumer price index every five years. Upon renewal, the ground lessor had the right to adjust the ground rent in accordance with plot value. At the time when the lease contracts were renewed, the rent had already been adjusted once in accordance with the consumer price index since the implementation of the so-called one-time increase as of 1 January 2002, cf. Section 15, Subsection 2, no. 2, of the Ground Lease Act. The Supreme Court concluded that this provision, in light of Protocol 1, Article 1 of the ECHR, allows the lessor to increase the ground rent one time, in accordance with the contract, regardless of whether the rent has previously been adjusted one or more times on the basis of the consumer price index. This entailed a change in the state of the law, as established by Rt-2007-1706 (Bøvre). The court pointed out that the legal authority has changed fundamentally as a consequence of ECtHR's judgment of 12 June 2012 in the Lindheim case (ECtHR application no. 13221/08), and that balancing interests, which the ECtHR greatly emphasized, will prove difficult if Section 15, Subsection 2, no. 2, of the Act is interpreted as such that the contractual right of ground lessors to make a one-time adjustment of the ground rent in accordance with plot value no longer applies. Grand Chamber decision.
HR-2015-00843-S, (case no. 2014/1539), civil suit, appeal against judgment.
Judgment
22 April 2015
Criminal law. Handling stolen goods. Confiscation.
In a case involving confiscation following a conviction for handling stolen goods, cf. Section 317, Subsection 1, first penal option, of the Penal Code, the Supreme Court stated that in such cases it is not a requirement to specify the underlying criminal act from which the stolen goods originated. This applies regardless of whether the confiscation is made pursuant to Section 34 or Section 35 of the Penal Code. Dissenting opinions of 4-1 over the interpretation of Section 34 of the Penal Code.
HR-2015-00856-A, (case no. 2015/17), criminal case, appeal against judgment.
Judgment
15 April 2015
Criminal law. Sentencing. Double jeopardy. ECHR. Pollution. Car graveyard.
Pursuant to Section 73 of the Pollution Control Act, two persons had had coercive fines imposed on them of NOK 475,000 and NOK 350,000, respectively, for having kept a large number of vehicles and other objects on their property for many years, with considerable littering as a result. They were later charged with violation of Section 79, Subsection 1, litra a), of the Pollution Control Act for the same offense, and they were convicted in both the district court and the court of appeal. The Supreme Court found that the definition of criminal proceedings in Protocol 7, Article 4, no. 1, of the ECHR does not apply to the coercive fines. Consequently, the convictions did not conflict with the prohibition against double jeopardy. The Supreme Court made reference to the objective of coercive fines, which distinguishes them from punishment, and to the fundamental concern in imposing a coercive fine, which is whether it is necessary to compel compliance with the orders violated. Also, while the deadlines by which to comply were short, this did not entail that the fines imposed assumed the nature of a penal sanction. In the sentencing, the Supreme Court emphasized that car graveyards represents an environmental concern, and general deterrence concerns indicate that a palpable punishment be imposed. The actions of the persons convicted led to considerable littering, and they had failed to comply with orders to clean up. The Supreme Court upheld the sentence imposed by the court of appeal: suspended sentences of 45 days and 30 days, and fines in the amount of NOK 50,00 and NOK 30,000, respectively. Code 25.26, 26.1.
HR-2015-00791-A, (case no. 2014/2008), criminal case, appeal against judgment.
Judgment
15 April 2015
Criminal law. Sentencing. Rape.
For violating Section 192, Subsection 1, litra a), cf. Subsection 2, litra a), of the Penal Code, the person convicted was sentenced to a period of imprisonment of 9 years. The person convicted had, at knifepoint, simultaneously coerced two women into oral and vaginal intercourse. The victims were subjected to threats on their life and deeply abusive acts. Both victims were forced to contribute to the rape of the other, and to engage in sexual acts with each other. Also, the person convicted exploited the vulnerability of the victims in terms of the social stigma the rape would inflict on them and their families. The Supreme Court concluded that a suitable punishment would be ten years imprisonment, but that the long period of time that had passed between the indictment and the conviction in district court indicated a reduction of one year.
HR-2015-00792-A, (case no. 2014/2114), criminal case, appeal against judgment.
Judgment
14 April 2015
Liability in damages for unfounded lawsuit. Right to a fair hearing.
A defendant filed his own lawsuit against the plaintiff, claiming damages for unjust legal action, and was awarded a significant amount in the court of appeal after the appeal against the district court's judgment, finding for the defendant, in the principal case was withdrawn during the appellate proceedings. The Supreme Court overturned the court of appeal's judgment, stating that liability in damages, except for legal costs, must be reserved for instances involving frivolous lawsuits. Normally, a lawsuit is only considered frivolous if the case is clearly without legal merit and the party understands this to be true. This narrow interpretation does not violate the right to a fair hearing, cf. Section 95 of the Norwegian Constitution and Article 6 of the ECHR.
HR-2015-00787-A, (case no. 2014/1719), civil suit, appeal against judgment.
Judgment
7 April 2015
Criminal law. Sentencing. Community sentence. Rehabilitation concerns.
For violating Section 229, first penal option, of the Penal Code and Section 228 of the Penal Code, as well as for a number of crimes of gain, the person convicted was sentenced to 198 hours of community sentence, cf. Section 28a of the Penal Code, to be completed in seven months, or, alternatively, seven months imprisonment. The most serious count of the indictment involved assault and battery, wherein the person convicted had bitten off a part of the victim's ear. As a norm, imprisonment is imposed as penalty for assault and battery, but this norm was set aside in this case due to weighty rehabilitations concerns. The person convicted had been drug free for more than a year after many years of abusing drugs, he was a trainee with prospects of employment, and his case worker in NAV (the Norwegian Labour and Welfare Administration) reported that he was doing well, both at work and in his social life.
HR-2015-00735-A, (case no. 2014/2277), criminal case, appeal against judgment.
Judgment
7 April 2015
Tax law. Deductions for research and development costs.
Two major manufacturers in the food industry had carried to expense costs related to the development of new products, incurred during a stage of development when the likelihood of the products being commercially viable was significant. In the tax assessment, capitalization of these costs as fixed assets was found to be required under the terms of Section 6-25, cf. Section 14-40, of the Taxation Act. The Supreme Court overturned the tax assessment orders. The court concluded that the two provisions specified above must be seen in context, and found that a clear preponderance of evidence is required for the conditions to collectively have been met, thus requiring capitalization. In its specific assessment of this case, the court found that most product variants statistically have an economic life shorter than three years. The condition regarding duration, cf. Section 14-40, Subsection 1, litra a), had therefore not been met.
HR-2015-00734-A, (case no. 2014/1814), civil suit, appeal against judgment.
Judgment
27 March 2015
Tax law. Discretionary tax assessment. Access to and exploitation of confidential comparative contracts.
In connection with discretionary tax assessment for a petroleum company that had sold gas to another company within the same group, the income from this sale was established on the basis of so-called arm's-length prices. As a starting point for their assessment, tax authorities compared pricing in contracts between independent parties. The company was not granted access to the contracts to which they had been compared. While the company, as the taxpayer, as a norm, has a right to access documents pertaining to its case, cf. Section 3-4, no. 1, of the Tax Assessment Act, this does not apply in this case, as the party demanding access is part of the circle against which the duty of confidentiality, pursuant to Section 3-13 of the Tax Assessment Act, is intended to protect. Tax authorities were also justified in using the contracts as a basis for comparison, even though party access could not be granted. Reference was made to tax authorities, who, prior to making their final decision, had accounted for selection criteria and provided key information about the contents of the comparative contracts, to the greatest extent possible within the limits of their duty of confidentiality. This was found to be a sound approach.
HR-2015-00699-A, (case no. 2014/498), civil suit, appeal against judgment.
Order
25 March 2015
Criminal Procedure. Appeal requirements. Duty to inform. Imputation of conduct from counsel for the defence. Procedural negligence.
A person appealed against his conviction by filling out an appeals form. No grounds for appeal were given in the space dedicated for this purpose. Counsel for the defence failed to submit a memorandum in support, and the court of appeal refused leave to appeal pursuant to Section 319 of the Criminal Procedure Act, cf. Section 314, Subsection 1, of the same, without giving the person convicted a date by which to correct his error. The Supreme Court, which pointed out that both the court and the prosecuting authority have a duty to inform the person convicted under Section 319, Subsection 2, of the Criminal Procedure Act, found that the person convicted did not make the error intentionally. Following a principled discussion, the Supreme Court also found that the error made by his counsel would not be imputed to him. Considerations of legal safeguards were found to be determinative. As the appeal would then be considered in pursuance of Section 321, Subsection 3, of the Criminal Procedure Act, and a memorandum in support satisfying the requirements established by Section 314 of the Criminal Procedure Act had already been submitted, the Supreme Court granted leave to appeal. The case was heard in chambers.
HR-2015-00666-A, (case no. 2014/2123), criminal case, appeal against judgment.
Judgment
16 March 2015
Consumer purchase. Cancellation of vehicle purchase. Duty to inform. New vehicle.
A car, sold as new, with an odometer count of 160 kilometres, showed an odometer count of 897 kilometres upon delivery. The car had also been registered to a German auto trader for close to five months prior to the sale. It had likely been used as a demo car in Germany. This registration meant that the factory warranty had been reduced, from five to two years. These circumstances constitute a breach of contract, cf. Section 16, Subsection 1, litras a, b, and c, of the Consumer Purchase Act. The Supreme Court concluded that these defects collectively could not be deemed minor, and that the buyer had just cause to cancel the contract, cf. Section 32 of the Consumer Purchase Act. Code 9.2.2.
HR-2015-00601-A, (case no. 2014/1516), civil suit, appeal against judgment.
Judgment
5 March 2015
Law of damages. Master-servant liability. Building inspection. Basis of liability for compensatory damages.
A house-building cooperative had assumed the roles of responsible contractor and responsible controller in the conversion of an older building into apartments, organized as a housing cooperative. After the conversion was completed, serious faults and defects were revealed in the building. The house-building cooperative had been clearly negligent in its execution of the roles of responsible contractor and responsible controller. The majority judgment of the Supreme Court concluded that the negligence not only had public law consequences, but that it also might entail liability under private law for third-party losses as a consequence of the dereliction of duty, cf. Section 2-1 of the Act Relating to Compensation in Certain Circumstances. Inter alia, the Supreme Court pointed out that the regulations relating to control and approval also aim to protect private interests associated with a building. The minority judgment, comprising two judges, held that the responsible party's dereliction of duty to municipal planning authorities under public law could not give rise to such liability in damages. The court of appeal had awarded damages to the housing cooperative. The appeal against the Court of Appeal's judgment was dismissed. Dissenting judgment: 3-2.
HR-2015-00537-A, (case no. 2014/1493), civil suit, appeal against judgment.
Judgment
5 March 2015
Tax law. Costs of action:
To protect their interests, two companies had covered costs of action in a dispute between two English board members and tax assessment authorities regarding the board members' liability to pay tax to Norway for benefits paid by the companies. The claims were partially successful, and the taxpayers sought recovery for costs of action, cf. Section 9-11 of the Tax Assessment Act. The Supreme Court concluded that this provision must be interpreted as such that such recovery may only be sought for costs the taxpayer personally has incurred. The Supreme Court pointed out that the taxpayers were under no obligation to repay any costs awarded to them, and that the payments were not made as a gift or remuneration to them. Therefore, the costs of action were not the taxpayers' own, which is a condition for seeking recovery. The appeal against the Court of Appeal's judgment in favour of the defendant was rejected. Dissenting judgment: 4-1.
HR-2015-00538-A, (case no. 2014/730), civil suit, appeal against judgment.
Judgment
5 March 2015
Criminal law. Sentencing. Money laundering. Self-laundering.
For violating Section 317, Subsection 2, cf. Subsection 4, of the Penal Code, the defendant was sentenced to a period of imprisonment lasting three years and six months. The person convicted had self-laundered proceeds from his own criminal acts by exchanging and ensuring the exchange of approx. NOK 15 million into EUR, and by depositing approx. NOK 2.5 million into the account of a co-defendant. The fact that the money-laundering involved significant amounts, and the fact that the payment system was used to hide illegal possession of money, constituted aggravating circumstances. A co-defendant was sentenced to a period of imprisonment lasting one year and six months for violating Section 317, Subsection 1, cf. Subsection 4, of the Penal Code. By way of three different layering transactions, she laundered approx. NOK 6.7 million on behalf of the main defendant. Emphasis was placed on the fact that significant amounts were involved for this defendant as well. However, mitigating factors were also present, such as the time that had passed and the convicted person's admission of the facts of the case.
HR-2015-00539-A, (case no. 2014/1734), criminal case, appeal against judgment.
Judgment
2 March 2015
Law of damages. Municipal liability. Planning permission.
A municipality had granted planning permission for the erection of cabins in an area that later proved to have a greater avalanche risk than permitted in the regulations. The Supreme Court concluded that the municipality's negligence in granting planning permission without further avalanche assessment was not recoverable, cf. Section 68 of the Planning and Building Act of 1985. The court's assessment emphasized the fact that known avalanche risks had been taken into account, and that neither the municipality nor the contractor – at the time the planning permission was granted – had any information that indicated any particular avalance risk in the relevant area. Furthermore, the cabins were intended primarily for use during the summer, and the general avalanche risk in the municipality is low. Dissenting judgment: 4-1.
HR-2015-00484-A, (case no. 2014/1641), civil suit, appeal against judgment.
Judgment
13 February 2015
Damages. Property damage. Unlawful tree felling.
A cabin owner, who acted with gross negligence when he believed to have consent, had felled 14 pine trees on the neighbouring property to his and topped five others. He was ordered to pay NOK 400,000 in damages to his neighbour. The market value of the neighbouring property had not been reduced as a consequence of the tree felling, but costs associated with restoring a property to its original condition are also, in principle, included in the term “pecuniary loss”, as applied in Section 4-1 of the Act Relating to Compensation in Certain Circumstances. Consequently, damages to compensate for reasonable restoration measures would have to be calculated independently of the degree of wrong-doing, but the provision allows for the court to use discretion pursuant to Section 5-2 of the Act Relating to Compensation in Certain Circumstances. Damages were awarded on the basis that they would cover planting of new, lower vegetation to re-establish privacy, with the addition of some larger trees to re-establish a forest atmosphere.
HR-2015-00361-A, (case no. 2014/1326), civil suit, appeal against judgment.
Judgment
12 February 2015
Public grant to private school. Discrimination. Parliamentary budgeting decision.
In 2009, a private upper secondary school, which had established a dedicated music programme in 2004, demanded to be included in the government budget under special grants for this type of programme, in line with another school with an equivalent programme, which had received such grants since 2001. The Supreme Court stated that Section 6-1 of the Private School Act must be interpreted to mean that these grants are offered to schools providing the education programme “Music, Dance and Drama”. The Act does not allow for special grants to only one programme area under this education programme. During the Parliamentary Fiscal Budget Procedure in 2000, when the other school first received this grant, said school was mentioned by name. The grant amount could not be divided, and the award did not necessarily entail that similar amount would be granted to other institutions. The ministry's rejection of the application was thus not based on an incorrect interpretation of the law or the Parliament's provisos, and could not be declared null and void on this basis. Submissions to declare the decision null and void on the basis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (ISESCR) were furthermore not successful, as this conventions may only be invoked by individuals, not legal entities. The appeal against the district court's and court of appeal's judgments in favour of the defendant was dismissed.
HR-2015-00342-A, (case no. 2014/1188), civil suit, appeal against judgment.
Judgment
12 February 2015
Tax law. Deductions for bad debts. Partially owned subsidiary.
A Norwegian company that owned 75 percent of an African company, wrote off a significant part of their receivables from the African company and claimed deductions for the write-off on the tax return. The Supreme Court pointed out that losses in the form of write-offs, regardless of whether these write-offs are made inside or external to the enterprise, are subject to Section 6-2, Subsection 1, of the Taxation Act, but that deductions cannot be claimed until the loss is final. As a rule, write-offs are final when a claim is finally and irreversably written off. However, when there is a community of interest between the debtor and the creditor, the outcome may be different. In order for the deduction claim to succeed, it must be established beyond any doubt that the receivable will not be paid. One must also take into account whether the creditor, by virtue of its position as shareholder, stands to receive what the company has written off as creditor. In this specific case, there were no plans to liquidate the subsidiary, and the write-off was implemented to maintain the company as a going concern. No emphasis was placed on the fact that the African state in question was a minority shareholder. Section 6-2-1, Subsection 1, litra b), and Section 6-2-2, Subsection 2, litra a), of the regulations to the Taxation Act did not come to apply. The exemption model implemented in 2004 was found to be relevant for the issue of when the loss is considered final in cases where there is a community of interest between the creditor and the debtor. The Supreme Court found in favour of the Norwegian State. Dissenting judgment: 4-1.
HR-2015-00352-A, (case no. 2014/1173), civil suit, appeal against judgment.
Judgment
12 February 2015
Criminal law. Confiscation of illegal proceeds. Sale of alcohol.
A motorcycle club had illegally sold alcoholic beverages during parties on their club premises. In calculating the amount to be confiscated as proceeds from the sale, cf. Section 34 of the Penal Code, the Supreme Court made reference to the preparatory works to the act, and stated that in cases where the illegal trade is made with goods that have a legal market value, it is reasonable to limit the confiscated amount to the net profit. Given that there were several aggravating circumstances in the nature of the club's activities, the deduction for original cost was established at half of the actual expenses.
HR-2015-00348-A, (case no. 2014/1954), criminal case, appeal against judgment.
Judgment
9 February 2015
Tax law. Value-added tax. Correction of basis for calculation.
The lessor of some business premises had paid significant amounts in value-added tax on the basis of output VAT on invoices payable by two tenants. When the tenants went bankrupt, the lessor claimed a correction of the tax base for VAT that had been invoiced but not paid, cf. Section 4-7 of the VAT Act. The letting company and the tenant companies had the same board chairman, who also indirectly had an ownership interest in all companies involved. The Supreme Court based its assessment on the fact that a reversal may be denied when the nature of the original trade credit has transformed into another form of credit balance. In this particular case, the Supreme Court pointed out that the rent had been invoiced regularly, and that one could hardly argue that the lessor ought to have understood that the rent would not be paid. However, the group's cash flow was limited, and the chairman had, in his capacity of being board chairman of the tenant companies, instructed said companies not to pay rent until they had received settlement from other companies in the group. Consequently, there were no grounds on which to conclude that the original rent claim had been transformed to be part of the tenant companies' general financing. The VAT Appeals Board's decision to deny the claim for correction was overturned.
HR-2015-00312-A, (case no. 2014/1237), civil suit, appeal against judgment.
Order
6 February 2015
Extradition. War crimes.
A man from Rwanda, who in that country had been charged with participating in genocide and crimes against humanity in 1994, was requested extradited from Norway. He has been resident here as a refugee since 1999, is married, and has three children here. The Supreme Court, which heard this case in chambers, based its assessment on the fact that basic human rights, as incorporated in Sections 102 and 104 of the Constitution, Article 8 of the ECHR, and Article 3 of the UN Convention on the Rights of the Child, are central to the interpretation of what constitutes “basic humanitarian considerations” pursuant to Section 7 of the Extradition Act, and that one must weigh society's interest in extraditing criminals on the one hand, against how such interventions affect constitutional individual rights on the other. The court pointed out that the crux of this assessment is the fact that it is in the interest of involved states that serious crimes are prosecuted in the country where the crimes were committed, and, in the case of genocide, this is an expectation and a condition of international agreements and conventions. The court stated that the right to respect for private and family life under Article 8 of the ECHR has limited validity in terms of preventing extradition in cases involving serious crimes, and that the threshold for giving the best interests of children absolute priority similarly must be very high in such cases. Given a specific assessment of the circumstances in this case, the court found no grounds on which to give the interests of the children absolute priority. Consequently, there were also no grounds on which to refuse extradition on the grounds of basic humanitarian considerations.
HR-2015-00289-A, (case no. 2014/1787), criminal case, appeal against order.
Order
5 February 2015
Criminal Procedure. Right to be summoned and to be given notice of orders. Public reproduction of order.
A defendant who was in custody, had brought a motion for escorted prison leave to be present in court for the hearing of remand applications for other defendants in the same case complex. The Supreme Court stated that the term “defendant”, as defined in Sections 243 and 244 of the Criminal Procedure Act, must be interpreted as such that the procedural rights that follow from these provisions are bestowed upon the person(s) to whom the court proceedings pertain. In remand proceedings, this means the defendant arraigned. Similarly, the right to be given notice of orders pursuant to Section 52, Subsection 2, of the Criminal Procedure Act, only applies to the person against whom the sanction is being implemented. There were no grounds on which to restrict public access to the order under Section 130, Subsection 1, litra b), of the Courts of Justice Act, as the order pertained to a purely procedural issue.
HR-2015-00274-A, (case no. 2014/2185), criminal case, appeal against order.
Judgment
5 February 2015
Law of damages. Reduction. Action for recourse. Loss of provider. Traffic accident.
In a case involving the calculation of loss of provider compensation to survivors following a traffic accident, where the motorcycle driver who died was under the influence of alcohol and had not taken out the mandatory liability insurance, the Supreme Court concluded that the compensation would be reduced by 20 percent due to the influence of alcohol and 10 percent due to the lack of insurance coverage. The court referenced Rt-1997-149 and Rt-2014-1192, and pointed out that the lack of insurance must not entail that considerations of any deterrent elements would leave the survivors in a different standing than in these cases, and that social concerns were equally important in this case. Nor were there grounds on which to hold the surviving spouse liable for any recourse claims vis-à-vis the Norwegian Motor Insurers’ Bureau (TFF) pursuant to Section 78 of the Administration of Estates Act. Dissenting judgment of 4-1 over grounds regarding the recourse claim.
HR-2015-00277-A, (case no. 2014/1825), civil suit, appeal against judgment.
Judgment
2 February 2015
Property law. Easement entitlement. Prescription. Transfer of right of way.
In a case involving the scope of a prescriptive right of way, the Supreme Court stated that it follows from jus dispositivum that this type of right of way entails an equivalent scope to any contractual right of way. Consequently, it follows from Section 9 of the Easement Act that right of way may be extended to parcels separated from the dominant estate, provided that this does not lead to a collective use in excess of the maximum tolerance established in Section 2. In assessing the case, one must take into account the objective of the right of way, as well as any aspects relevant to the “times and circumstances”.
HR-2015-00218-A, (case no. 2014/1400), civil suit, appeal against judgment.
Judgment
30 January 2015
Family law. Forced adoption. Visitation.
The Supreme Court upheld a municipality's consent for forced adoption of a six-and-a-half-year-old boy by his foster parents, with whom he had lived for most of his life, cf. Section 4-20 of the Child Welfare Act. The Supreme Court based its conclusions on the premise that the new Section 4-20 a of the Child Welfare Act regarding visitation contact with his biological parents did not entail that the threshold for granting adoption had been lowered. Adoption must be considered on the basis of the best interests of the child, within the framework of Sections 102 and 104 of the Constitution, Article 8 of the ECHR, and Articles 3 and 21 of the UN Convention on the Rights of the Child. Whenever the circumstances for and the interests of the child indicate adoption, the interests of the biological parents must yield. In this particular assessment, the Supreme Court emphasized the boy's strong and rooted attachment to the foster home, and the fact that he is a child with particularly pressing needs for security and support. The court also pointed out that the established visitation arrangement with the biological parents means the boy is not cut off from his heritage and ethnic background.
HR-2015-00209-A, (case no. 2014/1631), civil suit, appeal against judgment.
Judgment and order
29 January 2015
Immigration law. Civil procedure. Expulsion. Custody of children. Legal standing.
A Kenyan woman who remained in Norway illegally after her application for asylum was rejected, had an expulsion order imposed on her by the Immigration Appeals Board (UNE). At the same time, her application for a residence permit on the basis of family reunification with her five-year-old daughter, who is a Norwegian citizen, was also rejected. In a lawsuit brought by the mother and daughter, the Supreme Court found both decisions to be null and void, and rendered a declaratory judgment, establishing that the decisions contravened Article 8 of the ECHR. Initially, it was established that the daughter had legal interest, both in the validity suit and in the declaratory suit, cf. section 1-3 of the Dispute Act. The fact that a potential convention violation might constitute a legal controversy without prejudice for subsequent litigation in a parallel validity suit, did not reduce the legal interest in obtaining judgment for convention violations. In the validity suit, the Supreme Court concluded that a procedural error had failed to establish the daughter as a party to the immigration authority's hearing of the case, and that the actual coercive situation the expulsion of her mother would create for the daughter, could not be equated to a decision to expel Norwegian nationals. The Supreme Court furthermore made reference to Article 102 and 104 of the Constitution, concluding that the child's interests weigh heavily in any consideration of interests pursuant to Article 102 of the Constitution. In the assessment of this specific case, it was found that there were no alternatives to her mother's care for the daughter. The fact that the daughter is a Norwegian citizen, with the rights this status entails, is a key factor. Her care situation would be difficult if her mother were to move to Kenya with the child. The daughter's interests carried considerable weight in favour of allowing the mother to remain in Norway, and against the expulsion of her mother, who is her only care-giver. The circumstances on which the expulsion order was based, i.e. illegal residence in the realm and providing a false identity in her asylum application, could not outweigh these factors. Finally, the Supreme Court concluded that the immigration authorities' decision violated the daughter's rights pursuant to Article 8 of the ECHR.
HR-2015-00206-A, (case no. 2014/1583), civil case, appeal against judgment.
Order
27 January 2015
Criminal Procedure. Communications control. Legal professional privilege.
Material collected by means of communications control also included conversations with counsel. The Supreme Court, which heard the case in chambers, stated that if it is clear in advance that the material includes conversations covered by Section 119 of the Criminal Procedure Act, the prosecuting authority must immediately see to that these are separated out and destroyed, cf. Section 216g, Subsection 1, litra b), of the Criminal Procedure Act. One must not begin to listen to or review them. If it is unclear whether a conversation with one's counsel falls under Section 119 of the Criminal Procedure Act, such conversations must also be destroyed, unless arrangements are made pursuant to Article 8 of the ECHR, for example that the recordings are submitted directly to the district court for review without the police reviewing them first. The court of appeal's order, which was based on a different interpretation of the law, was overturned.
The Supreme Court HR-2015-00181-A, (case no. 2014/2104), criminal case, appeal against order
Judgment
20 January 2015
Criminal Procedure. Administrative procedure Composition of the court.
In a criminal case handled by an assistant judge, the defendant was indicted under Section 229, second penal option, of the Penal Code. The defendant was convicted pursuant to Section 229, third penal option, of the Penal Code. The Supreme Court stated that it is not for the court to consider and, if applicable, review, the prosecuting authority's subsumption prior to the main proceedings, even when there is evidence suggesting that the offense falls under a more severe penal provision. If the district court is legally in session with an assistant judge from the start of the main proceedings, cf. Section 276, Subsection 4, of the Criminal Procedure Act, the case may continue even if it later turns out that the offense is punishable by law by a period of imprisonment exceeding six years. The appeal against procedure was dismissed.
Supreme Court HR-2015-00128-A, (case no. 2014/1870), criminal case, appeal against judgment.
Judgment
20 January 2015
Criminal Procedure. Administrative procedure Composition of the court
In a criminal case handled by an assistant judge, the defendant was indicted under Section 229, second penal option, of the Penal Code. The defendant was convicted under Section 229, third penal option, of the Penal Code. The Supreme Court stated that it is not for the court to consider and, if applicable, review, the prosecuting authority's subsumption prior to the main proceedings, even when there is evidence suggesting that the offense falls under a more severe penal provision. If the district court is legally in session with an assistant judge from the start of the main proceedings, cf. Section 276, Subsection 4, of the Criminal Procedure Act, the case may continue even if it later turns out that the offense is punishable by law by a period of imprisonment exceeding six years. The appeal against procedure was dismissed.
HR-2015-00128-A, (case no. 2014/1870), criminal case, appeal against judgment.
19 January 2015
Criminal law. Sentencing. False statement. Fisheries law. Environmental crime.
The penalty imposed for violation of Section 166, Subsection 1, of the Penal Code and Section 28, cf. Section 14, of the Food Act, cf. the Regulation no. 822 of 17 June 2008 (the Aquaculture Regulations), was a period of imprisonment of 60 days, of which 30 days were suspended. The person convicted, who was a production manager at a fish farming facility, had on seven occasions given false statement to inspection authorities when reporting salmon lice counts, and he had also, on several occasions, reported net volumes higher than the actual net volume for several cages. On four occasions, this false reporting was intentional, to disguise the fact that the facility had too many fish in the cages. The Supreme Court stated that false statement given to public authorities other than the police and courts of law may also be punishable under Section 166 of the Penal Code, and the fact that the false statement was given in connection with regular reporting does not in itself lead to a different outcome. In the sentencing, the court emphasized that environmental and industrial concerns dictate that intentional violations must be treated severely in order to deter others. The need to protect various environmental interests was also taken into consideration.
HR-2015-00103-A, (case no. 2014/1689), criminal case, appeal against judgment.
Judgment.
19 January 2015
Criminal law. Sentencing. Violation of entry ban.
The penalty for violating Section 108, Subsection 3, litra e), of the Immigration Act was set to a period of imprisonment of two years and six months. The person convicted, who has been deported from Norway, and on whom a permanent entry ban had been imposed, had violated the entry ban nine times before. The sentence was fixed in accordance with the more stringent sentencing framework established by Act no. 1 of 10 January 2014. Dissenting judgment: 4-1.
HR-2015-00104-A, (case no. 2014/1702), criminal case, appeal against judgment.
Judgment
19 January 2015
Property law. Title to seabed.
Land owners who conceded land to the municipality for the purpose of establishing public transport infrastructure and a quay in the 1930s, were successful in their claim that they owned the seabed outside the conceded land area. The history associated with this alienation meant that the so-called presumption provision established in Section 3-6a of the Alienation Act did not come to apply. A sufficient preponderance of evidence that both parties had intended for the seabed outside the conceded land to be excluded from the alienation was found to be present.
HR-2015-00105-A, (case no. 2014/1332), civil suit, appeal against judgment.
Judgment
14 January 2015
Criminal law. Sentencing. Violation of interim exclusion order.
For violating Section 342, Subsection 1, of the Penal Code, the person convicted was sentenced to a period of imprisonment of 60 days, of which 40 days were suspended. The person convicted had on three occasions violated the interim exclusion order imposed pursuant to Section 222a of the Criminal Procedure Act. The violations consisted of nuisance conduct and disturbing the peace, with no violence or threats involved, but these violations were a great burden on the aggrieved party. Concerns of general deterrence were taken into account.
HR-2015-00074-A, (case no. 2014/1958), criminal case, appeal against judgment.
Judgment
14 January 2015
Tax law. Value-added tax. Pre-registration in the Value Added Tax Register
A company intending to engage in activity contingent on the granting of a licence, had its application for an extended pre-registration period in the Value Added Tax Register denied, with reference to their lack of a licence. The Tax Office then ordered a retroactive assessment of the value-added tax for which deductions had been claimed during the pre-registration period. The Supreme Court stated that pre-registration necessarily requires a qualified preponderance of evidence that the enterprise will commence taxable activities, cf. Section 2-4 of the VAT Act, cf. Section 2-4-1 of the VAT Regulations. Given that being granted a licence was an essential premise for future production, and given that the company's licence application was still pending, it had not been sufficiently substantiated that the enterprise would commence taxable activities. The company further had to return value-added tax payments made to it during the past pre-registration period, as the pre-registration had been granted on the failed premise that the licensing issue would be settled in 2011, cf. Section 18-1, Subsection 1, litra c), of the VAT Act. The Norwegian state was acquitted.
HR-2015-00073-A, (case no. 2014/1013), civil suit, appeal against judgment.