Summaries

Judgment

20 December 2016 

Insurance law. Standard of proof. Suicide.

An insurance company, which believed that a death was due to suicide, had refused to pay accident insurance to the surviving relatives, cf. section 13-8, subsection one of the Insurance Contracts Act. The Supreme Court case was confined to the issue of the standard of proof to establish suicide. As opposed to the Court of Appeal, the Supreme Court concluded that the general requirement of preponderance of evidence also applied in this case. It was stated that a qualified standard of proof is usually required where the fact to be relied on is qualified as false, incriminating or defamatory for the one party, but that neither the interests of the deceased nor the surviving relatives provided a basis for making such a requirement The Court of Appeal's judgment was overturned. (Rt. summary)

Supreme Court HR-2016-2579-A, (case no. 2016/1069), civil case, appeal against judgment.

 

Judgment

20 December 2016 

Law relating to personal capacity. Legal capacity.

The Supreme Court concluded that a woman who was a psychiatric patient should be deprived of her legal capacity with regard to financial affairs. The provision in section 22, subsection 2 of the Guardianship Act, which allows such intervention, needed to be considered even though it would be contrary to the UN Convention on the Rights of Persons with Disabilities, which has not been incorporated in Norwegian law. The provision is not contrary to section 102 of the Constitution of Norway or ECHR Article 8. In the specific assessment, the majority of three justices found that the statutory requirements relating to risk of significant loss in value of the assets were met, so that the woman had to be fully deprived of her legal capacity with regard to financial affairs. It was also stated that by being partially deprived of legal capacity with regard to financial affairs a separate decision could be made that the person under guardianship cannot incur debts. Dissenting judgment 3-2 (Rt. summary)

Supreme Court HR-2016-2591-A, (case no. 2016/1196), civil case, appeal against judgment.

 

Judgment 

16 December 2016 

Labour law. Boycott. EEA law.

The Norwegian Transport Workers’ Union had notified of a boycott to force a Danish user of the port of Drammen to enter into a collective agreement with provisions on preferential right to loading and unloading work for stevedores affiliated with the Administration Office in the Port of Drammen. The Supreme Court, which heard the case in plenary session, concluded that the boycott was unlawful, because it had an unlawful purpose, cf. section 2, letter a) of the Boycott Act. Although the overriding purpose of the boycott was to protect workers’ interests, it involved an unacceptable restriction on the right of establishment under Article 31 of the EEA Agreement. The preferential right that was claimed also did not satisfy the requirement of a fair balance between the right of establishment and any basic right to boycott. The Supreme Court stated that section 92 of the Constitution must be understood as an obligation of the courts and other authorities to enforce the human rights at the level these are incorporated in Norwegian law. It was also stated that the EFTA Court's interpretation of EEA law could not be derogated from without there being good and weighty reasons for this. Dissenting judgment 10-7 (Rt. summary)

Supreme Court HR-2016-2554-P, (case no. 2014/2089), civil case, appeal against judgment.

Read the whole judgment

 

Judgment

16 December 2016 

Law of damages. Motor vehicle liability. The loading and unloading exception.

A man was injured when he slipped and fell from a roof of a container that he had loaded onto a crane truck. The Supreme Court concluded that the injury was not covered by the objective motor vehicle liability under section 4 of the Motor Vehicle Liability Act. It was the characteristics of the cargo that were the immediate causal factor, not realisation of the risk complex that is the legal basis for the motor vehicle liability. The injury was well within the so-called loading and unloading exception. The truck’s insurance company was acquitted. (Rt. summary)

Supreme Court HR-2016-2560-A, (case no. 2016/1156), civil case, appeal against judgment.

  

Judgment

13 December 2016 

Labour law. Removal of an officer in the Armed Forces from his post.

A Commanding Officer of the Coast Guard was removed from his post due to cooperation problems and difficult working environment on board, cf. section 7 of the Armed Forces Personnel Act (as it read in 2012), cf. section 4, subsection three and the officers scheme of 1996. Like the lower courts, the Supreme Court declared the removal void. Before a decision regarding removal, which is a permanent solution, was made, it should have been considered whether a temporary solution could have been a viable alternative. When this did not happen, it was not established that removal of the officer was obviously required, as presupposed in the officers scheme of 1996. (Rt. summary)

Supreme Court HR-2016-2521-A, (case no. 2016/1114), civil case, appeal against judgment. 

 

Judgment

13 December 2016 

Tax law. Norwegian tonnage tax scheme. Withdrawal. Financial loss.

A shipping company that withdrew from the special Norwegian tonnage tax scheme in 2011, had, while it was in the scheme, accrued an unused financial loss of approximately NOK 90 million. The Supreme Court concluded that the shipping company also had to be allowed to carry forward this loss against future income in accordance with the general provisions in section 14-6 of the Tax Act, cf. Section 6-3, after it had withdrawn from the Norwegian tonnage tax scheme. Section 8-15, subsection 5 of the Tax Act, which governs the taxation of companies within the Norwegian tonnage tax scheme, gave no basis for any other outcome. However, a transitional rule related to amendments in the Norwegian tonnage tax scheme in 2007 meant that the loss could not be settled against income in 2011, but had to be accrued to future income years. (Rt. summary)

Supreme Court HR-2016-2555-A, (case no. 2016/772), civil case, appeal against judgment.

 

Judgment

9 December 2016

Criminal law. Corporate penalty. Environmental legislation. Sentencing. Loss of rights.

The corporate penalty for a fish farming company for violation of Section 166 of the Penal Code (1902) and of the Food Act and the Animal Welfare Act was set at a fine of NOK 6 million. The offences were committed by the company's former General Manager. Incorrect information was knowingly given regarding the number of salmon lice in the localities. The company had had more lice per salmon than was allowed, and had not initiated the necessary lice treatment. The company had also violated the Animal Welfare Act by causing the mass death of fish in connection with slaughtering. When determining the sentence, importance was attached to deterring others, the seriousness of the offences and the company's finances. The claim relating to loss of rights was disallowed, as the condition regarding risk of future abuse was not met. (Rt. summary)

Supreme Court HR-2016-2507-A, (case no. 2016/1391), criminal case, appeal against judgment.

 

Judgment

8 December 2016 

Criminal law. Sexual crimes. Abuse of trust and dependency. Damages for non-economic loss.

The Court of Appeal had set the punishment for violation of Section 193 of the Penal Code (1902) at a term of imprisonment of two years. Over a period of 12 years, the convicted person had regularly had sexual intercourse with a woman who was 33 years his junior. The relationship had lasted since she was 16. They had also lived together for a period of six years. She was lonely and vulnerable, and had eventually lost contact with her family. The convicted person was in fact her main caregiver. Like the Court of Appeal, the Supreme Court concluded that he had acquired sexual intercourse through abusing a state of dependency and relationship of trust. For the period until the amendment of 11 August 2000, the offence was subsumed under section 194 of the Penal Code (1902). Section 193 of the Penal Code (1902) was applicable to the remainder of the period. The Court of Appeal's sentencing was not appealed. Damages for non-economic loss, cf. section 3-5 of the Compensatory Damages Act, cf. Section 3-3, was set at NOK 200,000. Importance was attached to the extensive harmful effects and on the length of time of the abuse. (Rt. summary)

Supreme Court HR-2016-2492-A, (case no. 2016/1707), criminal case, appeal against judgment. 

 

Judgment

8 December 2016 

Criminal law. Human trafficking for prostitution. Sentencing. Compensation. Damages for non-economic loss.

The punishment for violation of Section 224, subsection 1, letter a of the Penal Code (1902), cf. Section 60a, was set at a term of imprisonment of five years and six month for the main perpetrator and four years for an accomplice. The main perpetrator had used two women from Bulgaria for prostitution in Norway over a period of approximately one year, and with proceeds of approximately NOK 1 million. The accomplice was also found guilty of having used a third woman over a period of approximately three weeks, with proceeds of approximately NOK 30,000. The Supreme Court sustained the women’s claim for repayment of the proceeds from the prostitution business, which the convicted persons had taken from them. It was not deemed decisive that the claim arose from unwanted activities, and it was pointed out that selling sexual services is not illegal. The accomplice, who had not received any of the proceeds from the first two women, was still considered liable for their claim based on the law of torts. The three aggrieved parties were also awarded damages for non-economic loss from the convicted persons jointly with NOK 200,000 to each of the first two women and NOK 100,000 to the third woman. (Rt. summary)

Supreme Court HR-2016-2491-A, (case no. 2016/1334), criminal case, appeal against judgment and (case no. 2016/1681), civil case, appeal against judgment.

 

Judgment 

24 November 2016 

Law of damages. Limitation. Time of loss. Housing cooperative.

Members of a housing cooperative, which was declared bankrupt, brought action against the bank that had financed acquisition of the cooperative’s properties, claiming compensation for lost deposits and lost value of the shares in the cooperative. Like the Court of Appeal, the majority of the Supreme Court concluded that the claim was not statute-barred, cf. section 9 no. 1 of the Limitation Act, as the limitation period for the claim did not start running until the commencement of bankruptcy proceedings. A decisive factor was the provision in section 2-10, subsection 3 of the Housing Cooperatives Act, which states that a deposit cannot be separated from the share in the cooperative. Therefore, no losses were realised that could give rise to a claim for compensation, as long as the members of the housing cooperative had not sold the property, but continued to live there in accordance with the right the share bestowed upon them. Dissenting judgment 3-2 (Rt. summary)

Supreme Court HR-2016-2399-A, (case no. 2016/152), civil case, appeal against judgment.

 

Judgment

18 November 2016 

Criminal law. Images of child abuse. Possession. Distribution. 

The punishment for violation of Section 204a, subsection one, letter a) of the Penal Code (1902) was set at a term of imprisonment of one year and eight months. In the period from 1997 to 2014, the convicted person had downloaded and stored extensive child pornography material. He had also played an active role in distribution of the material, through a chat room, among other things, which was used for distribution. He had also been a moderator for the chat room for a period. On one occasion he had share child pornography material in return for payment in the form of specific child pornography material. In connection with sentencing, it was stated that the technological development, among other things, should be important for the factors that are key benchmarks for the seriousness of the offence, and that the volume of confiscated material could not be such a key benchmark. The convicted person's confession resulted in some reduction in sentence. (Rt. summary)

Supreme Court HR-2016-2357-A, (case no. 2016/1041), criminal case, appeal against judgment.

 

Judgment 

18 November 2016 

Labour law. Right of preference under the Civil Servants Act

A temporary contract researcher at the University of Oslo was dismissed due to loss of external contract income. As opposed to the Court of Appeal, the majority of the Supreme Court concluded that the defendant did not have a right of preference under section 13 no. 1 of the Civil Servants Act to any vacant posts as associate professor. It was pointed out that the question of whether a post is suitable could not only be determined on the basis of salary, which was the same for a researcher and associate professor, and that a closer assessment had to be made of the nature of the positions. This assessment pointed out the qualification requirements and the special appointment process for the post of associate professor, and that it was difficult to find evidence that the provisions on the right of preference could override the special appointment requirements that followed from the Act relating to Universities and University Colleges with regulations. The Court of Appeal's judgment, which had ruled the dismissal invalid, was overturned. Dissenting judgment 4-1 (Rt. summary)

Oslo District Court TOSLO-2014-186762 - Borgarting Court of Appeal LB-2015-166406 – Supreme Court HR-2016-2346-A, (case no. 2016/843), civil case, appeal against judgment.

 

Judgment 

18 November 2016 

Sentencing. Abuse in close relationships. Cruel and abusive treatment.

The punishment for violation of Section 219, subsection two of the Penal Code (1902), cf. subsection one, was set at a term of imprisonment of two years and two months. The defendant had committed numerous acts of violence against his baby daughter from the time she was 20 days old until she was three months old. This involved a number of cases of pain and discomfort he inflicted, which was also his intention. Some of the actions in themselves were serious. Considering that the actions were committed against a small baby, the abuse was deemed cruel and sadistic, so that Section 219, subsection two of the Penal Code (1902) was applicable. (Rt. summary) 

Supreme Court HR-2016-2345-A, (case no. 2016/1709), criminal case, appeal against judgment.

 

Judgment 

18 November 2016 

Law of damages. Auditor’s liability for misrepresentation. 

A savings bank, which was the bank for a construction company with dwindling liquidity, subscribed for shares in the company to finance continued operations. In connection with the share subscription, the company’s auditor had made a declaration in connection with existing draft accounts. It was stated here, among other things, that no major changes in the final accounts were expected. The company was subsequently declared bankrupt, and it appeared that the residual value of the “work in progress”, which consisted of earned, but not invoiced work, had been significantly overestimated. Like the Court of Appeal, the Supreme Court concluded that the auditor was liable for the loss, cf. section 8-1 of the Auditors Act. The letter was misleading as it gave the impression that most of the auditor’s work on the assessment of the “work in progress” had already been done. It was also negligent of the auditor not to make a clearer reservation about the “work in progress” item. The bank also had reasonable and justifiable reason to trust and abide by the information in the letter. It was agreed that the third condition of liability for misrepresentation - that the information was intended for the injured party - had been met. Compensation was reduced by approximately 40 per cent, because the bank had contributed to the loss by their own negligence. (Rt. summary)

Supreme Court HR-2016-2344-A, (case no. 2016/166), civil case, appeal against judgment.

  

Judgment 

9 November 2016 

Labour law. Employer’s managerial prerogative. Senior policy initiative. 

As part of a senior policy initiative, two teachers had had their working hours reduced to 80%, but retained their full salary. The Supreme Court concluded that it was within the local authority’s managerial prerogative as an employer to terminate the arrangement. The local authority’s senior policy plan, which was based on the Basic Collective Agreement, involved no restrictions on the local authority’s right to terminate the arrangement. The change involved no change in the underlying employment contracts. The nature of the arrangement implied that there would be changes, and it lacked the character of reciprocity and the need worthy of safeguarding for the employee to make the necessary arrangements so that the local authority would be precluded from making changes. The District Court’s judgment, which found in favour of the local authority, was upheld. (Rt. summary) 

Supreme Court HR-2016-2286-A, (case no. 2016/616), civil case, appeal against judgment.

 

Judgment 

9 November 2016 

Criminal law. Sentencing. Animal welfare. 

The punishment for violation of section 37, subsection 2 of the Animal Welfare Act in conjunction with section 24 was set at a term of imprisonment of one year and eight months. The convicted person, who was a beef producer and was responsible for a herd of 92 cattle, had suffered a psychological blow when his father, who had helped him with the work on the farm, became ill, and as a result had completely stopped going to the barn. The animals died, due to lack of food and water over a period of up to two months. The convicted person did not want to inflict suffering on the animals, but was aware of what was happening. When determining the sentence, limited importance was attached to personal circumstances, but a limited sentence reduction of two months was granted for a guilty plea. (Rt. summary)

Supreme Court HR-2016-2285-A, (case no. 2016/1234), criminal case, appeal against judgment.

 

Order 

8 November 2016 

The Courts of Justice Act. Impartiality Supreme Court Justices. 

In a plenary case regarding the legality of an announced boycott, the Supreme Court concluded unanimously that two justices had to withdraw from the case pursuant to section 108 of the Courts of Justice Act. As a lawyer, one of the justices had been had had litigation for NHO, who acted as accessory intervener in the case. The other justice's wife was employed as a Director in one of NHO’s member organisations. A third justice, who was uncle to the wife of NHO’s counsel, and had had good familiar contact with him, did not have to withdraw from the case. Dissenting judgment 9-6 concerning the third justice. (Rt. summary)

Supreme Court HR-2016-2311-P, (case no. 2014/2089), civil case, appeal against judgment.

 

Judgment 

4 November 2016

Criminal law. Sentencing. Conspiracy to commit murder. Abuse in close relationships. 

The punishment for violation of Section 233a and section 219 of the Penal Code (1902) was set at a term of imprisonment of seven years. The convicted person had conspired with another to kill the boyfriend of the convicted person’s daughter. The defendant was tricked into believing that the murder had been committed, and paid the agreed price. He had also used violence against his daughter. The fact that the convicted person was tricked was not taken into consideration as a mitigating circumstance. A deduction was allowed for an eight month time lapse between the referral and the appeal hearing in the Court of Appeal.  (Rt. summary) 

Supreme Court HR-2016-2269-A, (case no. 2016/1151), criminal case, appeal against judgment. 

 

Judgment. 

3 November 2016 

Insurance law. Transfer of ownership insurance. The estate agent’s liability. 

When selling a residential property, the estate agent’s sales prospectus did not inform that there was no certificate of completion for parts of the property. The buyer received a price reduction and compensation from the seller’s change of ownership insurance company, which in turned claimed its losses covered by the estate agent’s civil liability insurer. The Supreme Court concluded that an estate agent had the same liability for misrepresentation to the seller’s change of ownership insurance company for losses due to errors in the sales prospectus, as an appraiser has for errors in the valuation. It was pointed out that the estate agent has a statutory obligation to prepare a sales prospectus, and that he must have been aware that the change of ownership insurance company would base the insurance on the sales prospectus being correct and complete. The requirement of proximity between the estate agent and the change of ownership insurance company was met. The estate agent’s statutory duty of independence could not lead to a discharge from liability for its civil liability insurer, which was held liable for the loss. (Rt. summary) 

Supreme Court HR-2016-2264-A, (case no. 2016/412), civil case, appeal against judgment.

 

Judgment 

3 November 2016 

Criminal law. Sentencing. Receipt of stolen computer data. Social media. Torrent technology. 

The punishment for violation of Section 317, subsection 1 and section 162, subsection 1 of the Penal Code (1902) was set at a term of imprisonment of five months. The offence concerned downloading and file sharing using so-called torrent technology of a large number of files containing private images of young women, mainly nude images, without the women’s consent. The images were obtained from social media, where most of them were originally posted by the women themselves in the belief that they could not or would not be distributed further. The images were sorted using a file-sharing tool so that many of the women could be easily identified. Emphasis was placed on considerations of general deterrence. The punishment for receiving stolen property was set at a term of imprisonment of 120 days. (Rt. summary)

Supreme Court HR-2016-2263-A, (case no. 2016/1636), criminal case, appeal against judgment. 

 

Judgment 

3 November 2016 

Child welfare. Taking into care. Foreign citizen. 

A local authority had taken into care a child born to a foreign female national while she was staying in Norway. The child was born in 2013. The child had essentially lived in Norway since its birth, and had its centre of vital interests here. The conditions set forth in section 1-2 of the Child Welfare Act, both prior to and after the amendment in 2016, to have the case heard by the Supreme Court, were then met. The Supreme Court upheld the decision to take the child into care. The fact that there was no satisfactory report on the mother’s care capabilities did not result in reversal of the decision, as the condition in section 4-21, subsection 1, second sentence of the Child Welfare Act was considered to have been met. Section 102 and 104 of the Constitution of Norway, the Convention on the Rights of the Child and ECHR could not result in a different outcome. The decision to takeover parental responsibility for this child and an older child, which the local authority had previously taken into its care, was also upheld. (Rt. summary) 

Supreme Court HR-2016-2262-A, (case no. 2016/1016), civil case, appeal against judgment.

 

Judgment 

3 November 2016 

Criminal law. Sentencing. Preventive custody. “Close connection”. 

The punishment for violation of Section 227, first penal option of the Penal Code (1902) was set at a term of preventive custody of three years with no minimum term. In 1998, the convicted person was sentenced to a term of 18 years imprisonment for murder, which was subsequently converted to preventive custody with a similar time frame. He was now found guilty of having threatened to kill a woman, commit suicide in her presence and kill random people. The Supreme Court concluded that the condition of “close connection” in section 39 c) no. 2 of the Penal Code (1902) had been met. The weight of the timing between the actions was weakened by the fact that the convicted person had served a custodial sentence virtually the entire period. He had an emotionally unstable and dissocial type of personality disorder, and there were significant similarities between the offences both at an external and internal level. (Rt. summary) 

Supreme Court HR-2016-2261-A, (case no. 2016/1345), criminal case, appeal against judgment.

 

Judgment

2 November 2016

Tax law. The Exemption Method. Expenses related to tax-exempt income

A large IT company that had had significant expenses related to consulting services in connection with a planned acquisition of another company in the same industry, which did not go ahead, claimed a tax deduction for these expenses pursuant to section 6-24 of the Tax Act, which gives the right to deduct expenses incurred to acquire income that is exempt from tax liability pursuant to section 2-38 of the Exemption Method. The Supreme Court concluded that the provision in section 6-24, subsection 2, whereby acquisition and sales costs cannot be deducted under this provision, had to be construed so that it applied regardless of whether the relevant acquisition went ahead or not. It was pointed out that the reasons behind introduction of tax-deductible expenses also under the Exemption Method did not apply to expenses related to acquisition of shares that does not take place, and that the fundamental view is that costs related to tax-exempt income in principle should not be deductible. The court found in favour of the State. (Rt. summary)

Supreme Court HR-2016-2249-A, (case no. 2016/519), civil case, appeal against judgment.

 

Judgment

1 November 2016

Trademark law. Registration of place name. “Route 66”.

In a case regarding the validity of the decision by the Norwegian Board of Appeal for Industrial Property Rights to refuse registration of “Route 66” as a trademark for certain goods and services related to tourism, the Supreme Court concluded, unlike the lower courts, that the conditions for refusal pursuant to section 14, subsection 2, litra a) of the Trademark Act were met and that the decision was valid. It was pointed out that an average Norwegian consumer would perceive “Route 66” as a geographical place, and would also perceive the “Route 66” trademark as a description of characteristics of the goods and services the refusal concerned. (Rt. summary)

Supreme Court HR-2016-2239-A, (case no. 2016/14), civil case, appeal against judgment.

 

Judgment

31 October 2016

Labour law. Qualification requirements for teachers. Temporary appointment.

A local authority employed applicants, who did not meet the formal teacher qualification requirements pursuant to section 10-1, second sentence of the Education Act, in temporary teaching posts pursuant to section 10-6 of the Act, while an applicant that met these qualification requirements was not employed, on the grounds that the local authority considered her unfit as a teacher. The Supreme Court majority of three Justices concluded that when assessing whether a person is qualified pursuant to section 10-1, first sentence of the Education Act, it is possible to attach importance to personal suitability, in addition to the person in question meeting the formal qualification requirements. The court found in favour of the local authority. Dissenting judgment 3-2. (Rt. summary)

Supreme Court HR-2016-2229-A, (case no. 2015/2239), civil case, appeal against judgment.

  

Supreme Court of Norway –Judgment

31 October 2016

Criminal law. Drinking and driving. The term motor vehicle. Self-balancing vehicle.

A defendant had, in violation of section 22, subsection 2 of the Road Traffic Act, driven a two-wheeled self-balancing vehicle - a so-called Segway, while under the influence of alcohol. The Supreme Court found that it was clear that the vehicle, which was intended to be driven on the ground with no track, and which was powered by an electric motor, came under the definition of a motor vehicle in section 2, subsection 2 of the Road Traffic Act. The characteristics of the vehicle, including weight, speed and manoeuvrability indicated that it must be considered a motor vehicle. The Supreme Court also agreed with the Court of Appeal that the distinctive features of driving a self-balancing vehicle could be taken into consideration when determining the sentence, and stated that it seemed more appropriate to determine the punishment based on general sentencing principles than on using the standardisation in section 31 of the Road Traffic Act as a basis. The appeal against the Court of Appeal’s judgment, which had set aside the District Court’s judgment in favour of the defendant on the grounds of an error in law, was dismissed. (Rt. summary)

Supreme Court HR-2016-2228-A, (case no. 2016/1086), criminal case, appeal against judgment.

 

Order

21 October 2016

Claim for damages against the State. Court decision. Ground lease. ECHR.

In Rt-2006-1547, the Supreme Court concluded that the ground rent for the leasehold the case concerned could only be regulated according to changes in the monetary value, since nothing else was “doubtedly” agreed, cf. section 15, subsection 2, no. 2 of the Ground Lease Act. In the lessor’s subsequent action for damages against the State, on the grounds that the condition “is doubtedly agreed” is contrary to ECHR P 1-1, the Supreme Court majority concluded that the case had to be dismissed, because if it were heard on its merits, the action would actually involve a review of the correctness of the Supreme Court judgment from 2006 and therefore was raised in the context of a judicial decision, contrary to section 200, subsection 3 of the Courts of Justice Act. It was not decisive that the question of violation of the Convention was not considered in 2006, since the question could already have been raised and considered at that time. A minority of three Justices believed the case had to be granted leave to proceed, because the claim for damages was actually based on the State’s responsibility as a legislator. Grand Chamber hearing. Dissenting judgment 8-3. (Rt. summary)

Supreme Court HR-2016-2195-S, (case no. 2015/1777), civil case, appeal against judgment.

 

Order

19 October 2016

Criminal procedure. Production of evidence. Judicial examination of a minor. Right of exemption.

A 14 ½ year old girl was questioned as the aggrieved party in connection with criminal proceedings against her father. She had not been informed that her statement could be used as evidence in a criminal case against her father, cf. exemption from the duty to testify in sections 122 and 123 of the Criminal Procedure Act, cf. section 127, subsection 1. The Supreme Court, which heard the case in chamber, stated that when an examination is conducted separately from a court sitting - formerly a judicial examination - the child must have the same understanding of the right of exemption as he or she would have had if they had appeared in court. When, as in this case, it is not clearly evident from the situation that it concerns a possible criminal case, in order for the right of exemption to be fair, sufficient information must be provided to enable the child to understand that his or her statement could be used in a criminal case. This must also be used in an interpretation of section 127. It was not then sufficient that she was informed that she had no obligation to make a statement. It had no significance that she would have had a duty to testify under the provisions applicable today. Concern for the aggrieved party and the need for quick clarification with respect to the scheduled main hearing required that the Supreme Court handed down a decision on the merits of the case. As the use of the judicial examination under the main hearing would have represented a new breach of the law, it was not allowed to be entered as evidence. (Rt. summary)

Supreme Court HR-2016-2171-A, (case no. 2016/1269), criminal case, appeal against order.

 

Judgment

18 October 2016

Tax law. Corporate relationships. Non-statutory anti-avoidance

In 2007, an international group reorganised its property portfolio in Norway so that the properties were demerged from the Norwegian parent company and placed in new, separate companies. The shares in these companies were placed in a newly established property company, and the shares in this company were in turn sold to the original parent company, which then became an indirect owner of the same properties. The last acquisition was funded through an inter-company loan. Based on the non-statutory anti-avoidance rule in Norwegian Tax Law, the Supreme Court concluded that the parent company could not be allowed to deduct the interest on the inter-company loan, as the main purpose of the reorganisation was considered to be to save tax. The anti-avoidance rule in section 13-1 of the Tax Act did not apply in this circumstance.

Supreme Court HR-2016-2165-A, (case no. 2016/722), civil case, appeal against judgment.

 

Order and judgment

28 September 2016

Property law. Occupation. Immemorial usage. Reindeer husbandry. The Finnmark Act. ILO Convention no. 169 Article 14.

A reindeer grazing district and a herder family, that for a years had used Stjernøya outside Altafjorden as summer grazing area, were unsuccessful with their claim that they were owners of parts of the island. The Supreme Court stated initially that the claimed rights could not be based directly on ILO Convention no. 169, but that principles of property law shall be applied on Sami terms. It was pointed out that the state had exercised rights of possession as owner to Stjernøya since the 1700s. Permanent settlers had also used the island’s uncultivated land resources. Hence, there were no sufficient grounds to establish a right of ownership on the basis of occupation. The usage had also not been sufficiently intensive and dominant to establish a right of ownership on the basis of immemorial usage. Deciding a money claim deriving from the alleged right of ownership fell outside the jurisdiction of the Uncultivated Land Tribunal for Finnmark.

Supreme Court HR-2016-2030-A (2015/2370, civil case, appeal against order 2015/2155, civil case, appeal against judgment and 2015/2369, civil case, appeal against order, 2015/2153, civil case, appeal against judgment).

Read the order and judgment

 

Judgment

27 September 2016

Immigration law. Revocation of residence permit.

Three Turkish siblings, born 1983, 1984 and 1985, were first granted temporary resident permits at 17 years of age and subsequently permanent resident permits on the grounds of family reunification with their father, who was then married to a Norwegian woman. In 2013, it was decided that the marriage was a marriage of convenience, and the father’s permits were revoked. In the subsequent case concerning the validity of the immigration authorities’ revocation of the siblings residence permits, the Supreme Court’s majority of four justices concluded that reference to the general principles of administration law in section 63 of the Immigration Act implied that the right to reverse an administrative decision pursuant to section 35, subsection 1, litra c) of the Public Administration Act applies in full, provided the basis for invalidity is objectively incorrect information. The fact that the siblings’ incorrect information about the father's marriage was given in good faith was therefore not decisive. The permanent resident permits could not be considered to be disconnected from the original grounds. If the original permits were based on an incorrect factual basis, the subsequent decision on permanent resident permits could therefore be declared invalid. The requirement of clear legal authority in section 113 of the Constitution, cf. section 102 of the Constitution and ECHR Article 8 was deemed to have been met. One justice dissented and believed that section 63 of the Immigration Act did not authorise revocation. Dissenting judgment 4-1 (Rt. summary)

Supreme Court HR-2016-2017-A, (case no. 2016/755), civil case, appeal against judgment.

 

Judgment

22 September 2016

Intellectual property law. Registration of a business name.

In a case concerning registration of a business name, the Supreme Court concluded that registration of the business name, Pangea Property Partners AS, is not in violation of the previously registered business name, Pangea AS, cf. section 2.6 no. 4 of the Business Names Act, compared with section 3-2 and 3--3. Pangea Property Partners AS offered services within brokerage and corporate finance in the commercial property market, while Pangea AS offered credit card services in the consumer credit market. Following a specific assessment, the requirement regarding the same or similar type of business, which is a necessary condition for there to be a risk of confusion, was deemed not to have been met. (Rt. summary)

Supreme Court HR-2016-1993-A, (case no. 2016/396), civil case, appeal against judgment.

 

Judgment

20 September 2016

VAT. Additional VAT. The courts’ right of a judicial review.

A Danish company that ran operations in Norway had invoiced a Danish customer for supplies in Norway with the addition of Danish - not Norwegian - VAT. An additional VAT of 20% was added when recalculating the Norwegian VAT. The Supreme Court concluded that the failure to pay Norwegian VAT meant that the State could “incur a loss of revenue”, cf. section 21-3, subsection 1 of the VAT Act, because in this regard, the effects in the next link in the chain of distribution must be disregarded.  The fact that on the whole, the State would not have had a better outcome if Norwegian VAT had been calculated, because the buyer would then have had deductions for its input VAT, was therefore not decisive. The requirement in ECHR Article 7 that the action must be punishable under national law was satisfied. This requirement must be met, as additional tax is a penalty under ECHR Article 7. The “may” assessment in section 21-3, subsection of the VAT Act, which in almost all cases can be fully reviewed by the courts, was also correctly applied. Consequently, the criteria for imposing an additional 20% VAT were met. (Rt. summary)

Supreme Court HR-2016-1982-A, (case no. 2016/378), civil case, appeal against judgment.

 

Judgment

1 September 2016

Criminal law. Fauna crime. Wolf hunt.

Four men, who were indicted for attempted unlawful culling of three wolves, were convicted in the Court of Appeal for violation of section 75, subsection 1 and 2 of the Nature Diversity Act, cf. Section 15, cf. Section 49 of the Penal Code of 1902. The Supreme Court amended the subsumption in accordance with the indictment to Section 152b, subsection 2 no. 1 of the Penal Code of 1902. It was pointed out that the provision aims at limiting the reduction of a population, which, prior to its introduction, was already an endangered species, and that the legal term “decrease” is used without qualifications of any kind. The Supreme Court found grounds for delivering a new judgment, cf. section 345, subsection 2, second sentence of the Criminal Procedure Act, and set terms of imprisonment of from one year to 120 days, depending on the extent of each defendant’s participation in the attempt. The severest punishment also included a grossly negligent violation of section 75, subsection 1 and 2 of the Nature Diversity Act, cf. section 15. All defendants also lost the right to hunt and trap for three years, cf. section 29, subsection 1, litra b) of the Penal Code of 1902. When determining the sentence, the starting point was to determine an immediate custodial sentence of a certain length, and importance was attached to the fact that the hunt was planned and well organised, that the purpose was to cull a group of three animals, of which two were a pair, and that the hunt took place in the mating season. (Rt. summary)

Supreme Court HR-2016-1857-A, (case no. 2016/779), criminal case, appeal against judgment. 

 

Judgment

1 September 2016

Criminal law. Drugs. Diazepam. Useless attempt at import.

The punishment for violation of section 162, subsection 1 and 2 of the Penal Code of 1902 was set at a term of imprisonment of one year. A 51 year old male had made a futile attempt at unlawful import of around 30,540 blue Valium pills, which would have been equivalent to 20,360 doses. The purchase was intended for resale. However, the pills, which were purchased in Thailand as blue Valium, turned out to be asthma medicine without any narcotic effect. That the attempt was futile resulted in a significant reduction of the penalty. (Rt. summary)

Kristiansand District Court TKISA-2015-113307 - Agder Court of Appeal LA-2015-166486 - Supreme Court HR-2016-1856-A, (case no. 2016/764), criminal case, appeal against judgment.

 

Judgment

30 August 2016

Criminal law. Gross corruption. Sentencing.

The punishment for violation of section 275, subsection 1 and 2 of the Penal Code of 1902, cf. section 276 and 276a, subsection 1, cf. Section 276b, was set at a term of imprisonment of four years and six months and four years and nine months respectively. One defendant had, in his capacity as Purchasing Manager in a bus company, received bribes of around NOK 3 million from a bus manufacturer. After having left the bus company and establishing his own business, he also paid NOK 346,400 to a subsequent Purchasing Manager in the company in order to buy favourably priced used buses. The other defendant had, in his capacity as Sales Manager for the bus manufacturer’s Norwegian subsidiary, contributed to payment of bribes of around NOK 7,400,000, of which he himself had received NOK 240,000. The judgment emphasises that it is equally punishable to pay bribes as it is to receive them, and that the management of publicly-owned companies, which perform important public functions, must be judged by the same stringent standard as public officials. The same applies to those who bribe such persons. The case was heard together with HR-2016-1835-A. (Rt. summary)

Supreme Court HR-2016-1834-A, (case no. 2016/455), criminal case, appeal against judgment.

 

Judgment

30 August 2016

Criminal law. Gross corruption. Application of the law. Sentencing.

The punishment for violation of section 276a, subsection 1, litra a) and subsection 3 of the Penal Code of 1902, cf. section 276b, was set at a term of imprisonment of nine months. The convicted party, who was a Maintenance Manager in a bus company, had, by participating in an inspection and by certifying unwarranted invoices, contributed toward the company being charged for work totalling NOK 575,875, which the company’s Managing Director had had carried out on his private residence. Under section 275, subsection 3, he could not be punished for gross breach of trust in addition to his conviction for complicity in corruption, as the prosecuting authority had argued. When determining the sentence, a term of imprisonment of just over one year was used as a starting point, and a deduction was made for admission of guilt and for too long a time lapse. The case was heard together with HR-2016-1834-A. (Rt. summary)

Supreme Court HR-2016-1835-A, (case no. 2016/456), criminal case, appeal against judgment.

 

Order

30 August 2016

Criminal procedure. Physical examination. Unlocking of mobile phone.

A convicted party’s mobile phone had a keypad lock that could be unlocked by using the owner’s fingerprint. The prosecuting authority believed the phone could have been used to film or photograph the acts of violence the indictment concerned. The Supreme Court, which heard the case in chamber, concluded that section 157 of the Criminal Procedure Act did not allow forcible use of the defendant’s finger to unlock the phone. It was pointed out that the wording pointed indicated examinations with the aim of using the body or what might be in it as tangible evidence, not using the defendant's finger to gain access to evidence outside the body, which is not the same as a physical examination. (Rt. summary)

Supreme Court HR-2016-1833-A, (case no. 2016/908), criminal case, appeal against order.

 

Judgment

30 August 2016

Criminal law. Road traffic. Subsequent alcohol intake.

A driver, who was stopped in a speed check, had been given permission by the police to leave the scene of the speed check to go and collect her driving licence. However, she did not return to the scene of the speed check and instead drank some vodka. The District Court had concluded that the police officer, who had allowed her go and collect her driving licence, had meant that it was not necessary to require that she took a blood or breath test, and also stated that by allowing her to leave the scene, the police confirmed this. The Supreme Court concluded that by a juristic act implied by conduct, the police had “decided” that no tests should be taken, cf. section 22, subjection 5, second sentence. It could not be claimed, as the Court of Appeal had concluded, that an explicit decision had been made - orally or in writing - that a test should not be taken. The driver could not then be punished under section 22, subsection 5 of the Road Traffic Act. The Supreme Court handed down judgment in favour of the defendant with respect to this point. (Rt. summary)

Supreme Court HR-2016-1836-A, (case no. 2016/980), criminal case, appeal against judgment.

 

Judgment

25 August 2016

Criminal procedure. Application of the law. “Obvious disproportion”.

The Court of Appeal had changed the sentencing for violation of section 258 of the Penal Code of 1902, among other things, cf. section 257, from a term of imprisonment of two years, of which ten months was suspended, to a term of imprisonment of two years, of which six months was suspended. The convicted party claimed that this change was contrary to section 344 of the Criminal Procedure Act. The Supreme Court pointed out that its role of establishing judicial precedents has meant that for a long time section 344 of the Criminal Procedure Act has been perceived more as an indicative guideline rather than a limitation of jurisdiction, and that eventually the starting point has become that a proper punishment should be imposed, even though this would involve some minor adjustments. There was no evidence that the provision restricted the Courts of Appeal more than the Supreme Court. The appeal against the Court of Appeal's application of the law was dismissed. (Rt. summary)

Supreme Court HR-2016-1803-A, (case no. 2016/941), criminal case, appeal against judgment.

 

Judgment

25 August 2016

Criminal law. Air traffic. Helicopter flying. Gross negligence

The Court of Appeal sentenced a helicopter pilot to a term of imprisonment of 60 days for wilful violations of the provisions of the Aviation Act and associated regulations relating to minimum altitude and the ban on so-called “acro-flying”, cf. section 14-13 of the Aviation Act and grossly negligent violation of the ban on careless and reckless manoeuvring, and in so doing put the lives of others or property at risk, cf. section 14-31 of the Aviation Act. The manoeuvring had no sensible purpose. The helicopter crashed and three people sustained minor injuries. When determining the sentence, importance was attached to the fact that there was an obvious risk of loss and the potential to do significant damage. This was a case of gross negligence by a professional pilot who had a special responsibility for the safety of others. Importance was also attached to the sentence acting as a general deterrent to others. The convicted person’s appeal against the Court of Appeal's sentencing was dismissed. (Rt. summary)

Supreme Court HR-2016-1802-A, (case no. 2016/731), criminal case, appeal against judgment.

 

Judgment

25 August 2016

Tax law. Deduction. The term “maintenance”.

A property company had carried out extensive maintenance and modification work in a combined residential and commercial building and pursuant to section 6-11 of the Tax Act relating to maintenance costs claimed deduction of all costs. The Supreme Court took into account that deduction for maintenance may be allowed for the cost of modification work that takes place in connection with maintenance, when the modifications are a prerequisite for or a consequence of the maintenance. When making modifications, deduction may also be allowed for the costs of the maintenance that had been required if the modification had not been made, so-called “intended maintenance”, limited to what it would have cost to carry out the maintenance, and on the condition that the relevant object’s functional properties are maintained. The costs of the modifications to adapt the premises to a new tenant had to then be capitalised in their entirety. For other costs, the Tax Appeal Board’s distribution between maintenance deduction and capitalisation was upheld. The appeal against the Court of Appeal’s judgment, which had also dismissed the appeal against the District Court’s judgment for the defendant, was dismissed. (Rt. summary)

Supreme Court HR-2016-01801-A, (case no. 2016/290), civil case, appeal against judgment.

 

Judgment

30 June 2016

Criminal law. Sexual intercourse with a child under 14 years. Incest.

The punishment for violation of section 195, subsection 1 and 2, section 197 and section 227, first penal option, of the Penal Code of 1902 was set at a term of imprisonment of six years and six months. The convicted party had committed a large number of sexual offences against his daughter in the period from when she was five and a half years of age and until she was around 11-12 years of age. The abuse involved fingering, oral sex and attempts at vaginal intercourse. The Supreme Court found that in 2005, when the abuse ended, the punishment would have been a term of imprisonment of 5-6 years. In view of the increased severity of the punishment prior to amendment of the law in 2010, a normal punishment of seven years and six months was used as a basis, and this was reduced by one year, due to the 15 months the convicted party had already spent in police custody. (Rt. summary)

Supreme Court HR-2016-1454-A, (case no. 2016/575), criminal case, appeal against judgment.

 

Judgment
30 June 2016

Criminal law. Application of the law, Passenger transport.

Three persons were fined for having provided passenger transport for reward without a licence. The contact between the driver and the passenger took place through the mobile app Haxi. Like the lower courts, the Supreme Court concluded that the requirement of having a taxi operator licence pursuant to section 4, subsection 1, second sentence of the Professional Transport Act - where such passenger transport services are offered to “the general public at a public location” - had not been met. The circumstances did not come under the wording of the law, and there were no grounds for analogical interpretation. Any extension of the penalised requirement to have a taxi operator licence had to be arranged through new legislation, cf. article 96 of the Constitution and ECHR Article 7. The appeal against the Court of Appeal’s judgment, which had also dismissed the appeal against the District Court’s acquittal, was dismissed. (Rt. summary)

Supreme Court HR-2016-1458-A, (case no. 2016/477), criminal case, appeal against judgment.

  

Judgment

30 June 2016

Criminal law. Sexually offensive behaviour in the presence of a minor. Sentencing.

The punishment for violation of Section 201, subsection 1, litra c) of the Penal Code of 1902 was set at a term of imprisonment of six months. The convicted person had on more than ten occasions masturbated in the presence of his 14 year old daughter. On a few occasions he had also forced his daughter to witness him masturbating. The offences took place while she had visitation with her father in her own home. The breach of trust toward the daughter which the actions involved, weighed heavily in the sentencing. (Rt. summary)

Supreme Court HR-2016-1467-A, (case no. 2016/558), criminal case, appeal against judgment.

 

Judgment

30 June 2016

Criminal law. Preventive custody. Re-imprisonment. Breach of parole.

A person serving an extended custodial sentence was released on parole on the condition of abstinence from consuming alcohol or taking other intoxicants or anaesthetics. A few days after his release on parole, he took drugs. Like the lower courts, the Supreme Court concluded that the condition for re-imprisonment pursuant to section 46, subsection 1, litra a) of the Penal Code of 2005 had been met. It was found that, as a rule, the requirement of serious breach of parole will be met if there is a breach of a condition that has been essential to maintaining the protection of society. The violent criminal acts that formed the basis for the extended custodial sentence were triggered by substance abuse, and taking drugs once again after being released on parole involved a genuine risk of new drug-fuelled acts of violence. (Rt. summary)

Supreme Court HR-2016-1457-A, (case no. 2016/615), criminal case, appeal against judgment.

 

Judgment

30 June 2016

Criminal procedure. Procedure. Long time lapse before delivery of judgment.

The Court of Appeal delivered a judgment in an extensive economic criminal case with a hearing that took place over 24 court days, almost more than six months after the end of the appeal hearing. The Supreme Court concluded that there were no grounds for quashing the judgment due to the time lapse between the end of the appeal hearing and the judgment, cf. section 42, subsection 3 of the Civil Procedure Act. The time lapse represented a clear procedural error, but there was no reasonable possibility that the error had had an impact on the content of the judgment, cf. section 343, subsection 1 of the Civil Procedure Act. It was pointed out, among other things, that the judgment was very thorough, that the objective conditions in the case were not disputed, and that it had not been argued that the oral presentation of evidence had been incorrectly rendered. (Rt. summary)

Supreme Court HR-2016-1461-A, (case no. 2016/342), criminal case, appeal against judgment.

 

Judgment

30 June 2016

Criminal law. Murder. Psychiatric expert.

In an appeal against the Court of Appeal’s proceedings, a female that was convicted of violation of section 233 of the Penal Code of 1902 argued that use of the psychiatric experts had meant that she had not received a fair trial, cf. section 95 of the Constitution and ECHR Article 6. The Supreme Court stated that it was not an error that the psychiatric experts had explained their assessments of the defendant’s personality before the jury had decided on the question of guilt. It was also not an error that the experts had observed the defendant in the court and had also attached importance to her body language. The same applied to the fact that the experts had pointed out the District Court’s grounds of the judgment regarding matters that received a final and binding decision there. Other objections were made to the experts’ work, without any of these being successful. Even though the experts’ work did not represent a procedural error, there were some doubts as regards the expert evidence, as the information in the case left the impression that the experts had not acted with the distance that is expected of the role of an expert. However, based on the Court of Appeal’s directions to the jury and the grounds of the judgment, there was no indication that the right to a fair trial had been violated. The expert evidence therefore provided no grounds for setting aside the Court of Appeal’s judgment. (Rt. summary)

Supreme Court HR-2016-1459-A, (case no. 2016/317), criminal case, appeal against judgment.

 

Judgment

29 June 2016

Corporate law. Dissolution of a limited liability company. Redemption of shares.

A minority shareholder in a limited shipping company was unsuccessful with his claim for dissolution of the company. The Supreme Court concluded that persistent payment of low or no dividend and financing of dividend for one financial year through a share issue at a discount with pre-emptive right to the shareholders, represented an abuse of authority that could trigger the right to demand dissolution pursuant to section 16-19, subsection 1 of the Private Limited Liability Companies Act. The condition that there must be particularly weighty reasons in favour of dissolution was however not deemed to have been met. Emphasis was placed on the fact that the minority shareholder’s share ownership appeared to be a financial position, so that his interests could be protected otherwise than through dissolution. The minority shareholder’s alternative claim of withdrawal pursuant to section 4-24, subsection 1 of the Private Limited Liability Companies Act was allowed. It was stated that the redemption price should then be calculated based on the company’s underlying value without a discount for minority, lack of voting rights and illiquidity. The Court of Appeal's judgment, which had determined the redemption price with such discount, was overturned. (Rt. summary)

Supreme Court HR-2016-1439-A, (case no. 2015/2124), civil case, appeal against judgment.

 

Judgment

29 June 2016

Law of damages. Agreement interpretation. Objective liability.

A lessee's business in rented commercial premises had caused a fire on the premises. The Supreme Court concluded that the provision in the lease agreement, which was a standard contract, regarding the lessee's liability “for all damages or defects caused by himself or people in his employ” presumed a breach on the part of the lessee. It was stated that the other provisions in the contract, which could provide guidelines for the question of interpretation, had to be used in the interpretation, and that there were a number of such provisions that pointed along the lines that liability assumed breach. The background rules of law also did not provide any other solution. It was not argued that there had been a breach by the lessee. The recourse claim by the owner’s insurance company against the lessee was dismissed, cf. section 4-3 of the Damages Act. (Rt. summary)

Supreme Court HR-2016-01447-A, (case no. 2015/2355), civil case, appeal against judgment.

 

Judgment

29 June 2016

Pension. Pension-qualifying income. Negotiated pension schemes. Night allowance.

Class actions by unions that organise employees in the offshore sector, claiming that night allowance should in included in the pension-qualifying income for the negotiated, group pension schemes in the sector, did not succeed. The Supreme Court concluded that the employees’ agreed pension rights were determined in the collective bargaining agreements, and that it followed from an interpretation of these that the pension-qualifying income was pay according to wage scale without night allowance. Entry into force of the Act on company pension schemes did not involve any change in the established agreement situation. The Supreme Court also pointed out inconsistency between the collective bargaining agreements and section 5-4, subsection 2, litra a) of the Act on company pension schemes, which must be construed so that the night allowance is to be included in the pension-qualifying income. However, violation of the Act on company pension schemes does not involve contractual invalidity, and therefore the law did not interfere with collective bargaining agreements. It was also stated that the occupational pension schemes meet the requirements in section 5, subsection 3 of Act no. 124 of 21 December 2005 on mandatory occupational pensions, so that the claim could also not be based on this provision. (Rt. summary)

Supreme Court HR-2016-1446-A, (case no. 2015/2019), civil case, appeal against judgment.

 

Judgment

29 June 2016

Law of damages. Personal injury. Contributory negligence.

A woman was hit by a tram while crossing the tram line against a red light on a pedestrian crossing. Like the lower courts, the Supreme Court found that compensation from the tram owner’s insurance company should be reduced by 50% due to contributory negligence, cf. Section 9 of the Railway Liability Act, cf. section 12, subsection 1, cf. section 5-1 of the Damages Act. It was found that the norm for assessment of the claimant’s circumstances is the same pursuant to the Railway Liability Act as pursuant to the Motor Vehicle Liability Act. The claimant had clearly acted negligently, but it was still necessary to determine whether the negligence had been gross. (Rt. summary)

Supreme Court HR-2016-1464-A, (case no. 2016/17), civil case, appeal against judgment.

 

Judgment

28 June 2016

Criminal law. Participation in a terrorist organisation. Sentencing.

The punishment for violation of Section 147d) of the Penal Code of 1902 was set at a term of imprisonment of four years and six months and four years and three months respectively for two defendants. The longest punishment also included an attempt at violation of section 147d of the Penal Code of 1902. The convicted parties had joined terrorist organisation ISIL in Syria as foreign fighters. The offence took place over 11 months. They had not participated directly in hostilities, and were considered to be “rank and file”. The punishment for a third defendant for violation of section 147d of the Penal Code of 1902, cf. section 49, was set at a term of imprisonment of seven months. He had attempted to send material support to a foreign fighter in the form of military clothes, among other things. (Rt. summary)

Supreme Court HR-2016-1422-A, (case no. 2016/554), criminal case, appeal against judgment.

 

Judgment

28 June 2016

Contract law. Compensation. Breach of implied conditions.

Rights and obligations under a lease that applied to parts of an agricultural property were transferred from the lessees to a company they had founded, which the contract allowed. The lessees had planned to develop the site as a tourist destination, and in the contract had undertaken significant financial obligations. The majority of the Supreme Court’s three justices concluded that the company had not met the equity requirement in section 3-4 of the Private Limited Liability Companies Act and also could not have any reasonable expectation of achieving this in the foreseeable future, given the obligations they had undertaken upon transfer. It was negligent of the lessees in their capacity as management of the company to incur obligations on the company which it did not have realistic possibilities of fulfilling. They were deemed liable for damages to the lessor pursuant to section 17-1 of the Private Limited Liability Companies Act. The Court of Appeal found in favour of the lessees with respect to the lessor’s claim for damages. As the proceedings before the Supreme Court were limited to the question of liability for damages as a result of undercapitalisation of the company, the Court of Appeal’s judgment was overturned. Dissenting judgment 3-2 (Rt. summary)

Supreme Court of Norway HR-2016-1440-A,  (case no. 2015/2102), civil case, appeal against judgment.

 

Judgment

23 June 2016

Labour law. Definition of employee. Temporary care giver and support.

A woman performed work as a temporary caregiver and support for a family of a boy with special care needs, cf. section 3.2 no. 6, litra b) and d) of the Health and Care Services Act. Like the lower courts, the Supreme Court concluded that the woman should be regarded as an employee of the municipality, cf. section 1-8, subsection 1 of the Working Environment Act, and not as a contractor. It was pointed out that the position was of a personal nature and that she had a legal obligation to subordinate herself to municipal management of her work. The fact that the respite care was provided in her home could not result in a different outcome. Dissenting judgment 4-1 (Rt. summary)

Supreme Court HR-2016-1366-A, (case no. 2015/2308), civil case, appeal against judgment.

 

Judgment

23 June 2016

Criminal law. Juvenile punishment. Sentencing. Sexual intercourse with a child under 10 years.

The punishment for violation of Section 195, subsection 1, second sentence and subsection 2, litra c) of the Penal Code of 1902 was set at a term of imprisonment of three years and six months, of which two years and ten months were suspended. The convicted party, who was 15 to 16 years of age when the offences took place, had over a period of around 1 year committed repeated serial sexual abuse against a girl of five to six years of age, including offences that could be equated with sexual intercourse, and one case that was close to rape. Reference was made to the general opinions on the choice between juvenile punishment and imprisonment in case HR-2016-1364-A, which was heard and voted on together with this case. (Rt. summary)

Supreme Court HR-2016-1365-A, (case no. 2016/763), criminal case, appeal against judgment.

 

Judgment

23 June 2016

Criminal law. Juvenile punishment. Sentencing.  Gang rape.

The punishment for violation of Section 192, subsection 3, litra a) of the Penal Code of 1902, cf. subsection 2, litra a), cf. subsection 1, litra a) and litra c), cf. Section 206, of section 196, subsection 2, litra b), of section 204a, subsection 1, litra a) and of section 228, subsection 1, cf. section 232, was set at a term of imprisonment of four years, of which three years were suspended for two of the convicted parties. The two, who were both around 16 years of age when the offences took place, had jointly committed serious sexual offences against a particularly vulnerable boy of 14 years of age. Following a principled discussion, the Supreme Court concluded that there were grounds for use of juvenile punishment, cf. section 28c, subsection 1 of the Penal Code of 1902. The criterion in section 28c, subsection 1, litra d) was not deemed to have been met. Reference was made to opinions in the preparatory works, according to which a sentence of immediate imprisonment must also be handed down even if the offender is under 18 years of age. Emphasis was also placed on deterring others, a general sense of justice and maintaining a peaceful society. (Rt. summary)

Supreme Court HR-2016-1364-A, (case no. 2016/544), criminal case, appeal against judgment.

 

Judgment

16 June 2016

Health law. Compulsory mental health care. The deterioration option.

A woman who was taken under compulsory mental health care pursuant to section 3-3 of the Mental Health Care Act, who was receiving treatment involving first generation depot anti-psychotics, failed in her claim to be released from compulsory mental health care, cf. section 3-7 of the Act. An argument that compulsory treatment of mentally ill patients based on informed consent, on its own is a breach of human rights, if this happens solely in the interests of their own health, did not succeed. The Supreme Court also concluded that the expression “in the near future” in section 3-3, subsection 1 no.  3, litra a) -”the  deterioration option” - must be interpreted in the same way as for patients who are treated with first generation depot anti-psychotics, as for patients treated with second generation anti-psychotics, i.e., a time frame of three to four months, cf. Rt-2014-801. There were then still grounds for compulsory mental health care. (Rt. summary)

Supreme Court HR-2016-1286-A (case no. 2016/797), civil case, appeal against judgment.

 

Judgment

14 June 2016

Criminal law. Environmental crime. Unlawful hunting.

The punishment for violation of section 75, subsection 1, first sentence of the Nature Diversity Act, cf. section 15, subsection 1, first sentence, and the provisions of the Firearms Weapon Act, was set at a suspended prison sentence of 21 days, a fine of NOK 25,000, loss of the hunting rights for five years and confiscation of two weapons. The convicted party had shot a deer outside the hunting season. The shooting had taken place in a built-up area, which was deemed clearly an aggravating circumstance. The case was considered to be on the borderline between non-custodial and custodial. (Rt. summary)

Supreme Court HR-2016-1253-A, (case no. 2016/270), criminal case, appeal against judgment.

 

Judgment

14 June 2016

Immigration law. Expulsion. Security classified information. Special attorney.

It was decided that a foreign national with a residence permit for himself and his family was to be expelled for reasons of fundamental national interests, cf. section 126 of the Immigration Act. Security classified information that formed the basis for the decision, and which was not known to the foreign national, was allowed to be used as evidence in the subsequent case relating to the validity of the decision, cf. section 22-1, subsection 2 of the Dispute Act, and therefore a special attorney was appointed for the foreign national, cf. section 133 of the Immigration Act. The Supreme Court, which pointed out that the expulsion decision falls outside the area of application of ECHR Article 6, concluded that when considering whether Article 8 has been complied with, the arrangement of a special attorney satisfied the requirement of effective remedy in ECHR Article 13. It was also pointed out that the procedural requirements could differ when considering breach of Article 3 than when considering breach of Article 8, but the question of breach of Article 3 was not subject to review by the Supreme Court. The expulsion decision was therefore valid. (Rt. summary)

Supreme Court HR-2016-1252-A, (case no. 2016/561), civil case, appeal against judgment.

 

Judgment

14 June 2016

Labour law. Dismissal. Foreign-registered ship. Choice of law.

A dismissed Norwegian seaman worked on board a ship that was registered in Antigua, and chartered by a Norwegian company under a time charter. The Supreme Court found that the seaman’s employment was not regulated by the Norwegian Ship Labour Act. The ship was not Norwegian, cf. section 1, subsection 1 of the Maritime Code, and the seaman’s employment did not then come under the Ship Labour Act, cf. section 1-2, subsection 1, first sentence of the Act. The provisions must be interpreted as a choice of law rule and rely on a conscious choice by the legislator. The main rule that the flag state’s labour law shall apply was also not derogated from by agreement. (Rt. summary)

Supreme Court HR-2016-1251-A, (case no. 2015/2368), civil case, appeal against order.

 

Judgment

14 June 2016

Civil procedure. Third-party notice. Limitation.

A building owner had filed claims for compensation against the contractor and the project manager. Both cases were recommended by the Conciliation Board. The building owner then instituted legal proceedings against the contractor within the one-year time limit set forth in section 18-3, subsection 2 of the Dispute Act, while a third-party notice was issued against the project manager, cf. section 15-9 of the Dispute Act. The writ of summons against the project manager was not issued until after the one-year time limit had expired. Like the Court of Appeal, the Supreme Court found that the third-party notice in the case against the contractor did not interrupt the limitation period for the project manager. It was held that section 18-3, subsection 2 must be interpreted in accordance with the wording, so that only a writ of summons or a new application for conciliation preserves the suspensory effect of the original application for conciliation. Section 19 no. 1 of the Limitation Act is a provision relating to interruption of the limitation period when a third-party notice has been issued to one of several co-debtors, not a provision relating to preservation of a time-limit interruption that has already been made. The appeal against the Court of Appeal's judgment was dismissed. (Rt. summary)

Supreme Court HR-2016-1287-A, (case no. 2015/2367), civil case, appeal against order.

 

Judgment

13 June 2016

Ground lease. Compensation on acquisition.

After terminating a long lease, both the lessor and the lessee required that the lessor took over the building on the leased property, cf. section 41 of the Ground Lease Act. The majority of the Supreme Court’s three justices concluded that in this situation the lessor could choose whether the payment should be determined on the basis of technical value pursuant to section 41, subsection 1 of the Ground Lease Act or on the basis of the utility value pursuant to section 41, subsection 2, depending on what gave the best amount. Several opinions in the preliminary work were pointed out. Like the Court of Appeal, the minority of two justices believed that in a case such as this, the payment should be determined on the basis of the technical value. The Court of Appeal's revaluation was revoked. Dissenting judgment 3-2. (Rt. summary)

Supreme Court HR-2016-1240-A, (case no. 2016/193), civil case, appeal against order.

 

Judgment

9 June 2016

Law of contracts and torts. Concessional power. Force Majeure.

A breakdown in a pipeline to a power plant resulted in a nine-month production stoppage, so that no concessional power was supplied in this period. The breakdown was due to the pipeline being undersized relative to the external water pressure. The structure was in accordance with the established engineering experience at the time of development, and there was no negligence in connection with the development. The Supreme Court found that the owner of the power plant was the one who had to bear the risk of the breakdown, and that there were then no grounds for exempting the owner from the obligation to supply concessional power due to a force majeure. The power plant owner was ordered to compensate the regional authorities that were entitled to concessional power compensation for non-delivery. Dissenting judgment 3-2 regarding the costs (Rt. summary)

Supreme Court HR-2016-1235-A, (case no. 2015/1951), civil case, appeal against order.

 

Judgment

8 June 2016

District Court. Reindeer grazing. Reindeer migration route

An agreement on the use of private property in Alta as a landing place in connection with moving reindeer to summer pasture on an island was not extended. The Supreme Court concluded that section 22, subsection 1, first penal option, gave the reindeer grazing district concerned the continued right to use the property in connection with moving the reindeer. It was stated that provision must be interpreted so that it grants the right to a migration route within the whole reindeer grazing area, cf. section 4 of the Reindeer Herding Act and is not limited to the area where the reindeer herdsman has grazing rights. The general requirement of reasonable grounds for being able to use private property as a reindeer migration route was met. (Rt. summary)

Supreme Court HR-2016-1219-A, (case no. 2016/109), civil case, appeal against order.

 

Judgment

3 June 2016

Tax law. Time limit for alteration of tax assessment. Tax penalty.

In a tax assessment for 1999, a Norwegian wholly owned subsidiary of a foreign offshore company was allowed deduction for a foreign exchange loss related to the settlement of a capital reduction in the subsidiary. In 2009, the subsidiary’s tax assessment was altered, as the foreign exchange loss was not accepted as being deductible and the parent company was imposed withholding tax and additional tax on the same amount, which was considered to be dividend. The Supreme Court concluded that the deciding factor for the question of whether the two-year limit for alteration pursuant to section 9-6 no. 3, litra a) could be invoked, was whether the distributing company had fulfilled its duty of disclosure pursuant to Chapter 4 of the Tax Assessment Act. The subsidiary had provided incorrect information here in connection with the capital reduction and the foreign exchange loss in the 1999 tax return. It was then the 10-year time limit pursuant to section 9-6 no. 1 of the Tax Assessment Act that applied. Consequently, the tax authorities had the right to alter the parent company’s tax assessment for 1999. Pursuant to section 10-2 no. 1 of the Tax Assessment Act, the additional tax could not be imposed on the parent company, as it was the subsidiary that had provided the tax authorities with the incorrect information. (Rt. summary)

Supreme Court HR-2016-1179-A, (case no. 2015/1898), civil case, appeal against order.

 

Judgment

26 May 2016

Child welfare. Moving foster children. Right of action.

The Child Welfare authorities had come to a decision pursuant to section 4-17 of the Child Protection Act on moving foster children to another foster home. The decision was upheld by the County Social Welfare Board. At the Supreme Court, which heard the case in chamber, the majority of three justices found that the decision was aimed at the original foster parents, who had also acted as parties before the County Social Welfare Board, cf. section 36-3 of the Dispute Act. The foster parents then had a right to institute legal action to have the ruling reviewed. The municipality’s withdrawal of approval of the original foster home did not result in the legal action losing its current interest. Nor did the best interests of the child call for the dismissal. Dissenting judgment 3-2. (Rt. summary)

Supreme Court HR-2016-1111-A, (case no. 2015/2218), civil case, appeal against order.

 

Judgment

18 May 2016

Immigration law Protection in another Dublin country ECHR.

A Somali woman who had been granted asylum in Hungary, travelled onward to Norway and sought asylum here. Her application was rejected without substantive discussion pursuant to section 32, subsection one, litra a) of the Immigration Act. The Supreme Court pointed out that the presumption that the first arrival country would meet its obligations under ECHR and the Dublin Regulation could be disproved. When returning an asylum seeker to another Dublin country, the Norwegian courts must consider the substance of an alleged breach of ECHR Article 3 so broadly and thoroughly as necessary to decide whether the allegation will be successful. In this specific case, where it was submitted to the Court of Appeal that she would not receive the necessary health care and assistance in Hungary, the Court of Appeal’s reasons satisfied the breadth and depth requirements that ECHR sets out for being able to conclude that return to Hungary would not constitute a breach of ECHR Article 3. The appeal against the Court of Appeal's judgment in favour of the claimant was dismissed. (Rt. summary)

Supreme Court HR-2016-1051-A, (case no. 2015/1857), civil case, appeal against judgment.

 

Judgment

18 May 2016

Social security law. Legal action deadline. Court vacation.

In a social security case, counsel for the appellant had received the Social Security Tribunal’s negative ruling on 24 December 2014, and forwarded this to the appellant on 29 December 2014. The case was then brought before the Court of Appeal by writ of summons on 29 June 2015. The Supreme Court concluded that the six month’s time limit pursuant to section 23, subsection 4 of the Social Security Act - now section 26, subsection 5 - had been exceeded. The time limit started running when counsel received the Social Security Tribunal’s ruling, not when the party received it five days later, and the time limit was not interrupted during the court vacation. (Rt. summary)

Supreme Court HR-2016-1052-A, (case no. 2015/2246), civil case, appeal against order.

 

Judgment

12 May 2016

Criminal law. Application of the law, Choice of law. Criminal offence abroad.

In 2010, a Norwegian woman living in Dubai was indicted for a violation of Section 317 of the Penal Code of 1902 that she committed there. The Supreme Court found that the Penal Code of 2005 should be applied in the case. It was pointed out that offences committed abroad can now only be punishable in Norway if they are punishable under the law of the country where they were committed, cf. section 5, subsection 1 no. 1 of the Penal Code of 2005. The Supreme Court further stated that introduction of this additional condition, which could result in a more favourable result for the accused than if the Penal Code of 1902 had been applied, is an amendment of the penal legislation, and that this amendment is due to an altered view of which offences should be punishable in Norway. Application of the Penal Code of 2005 follows from Section 3, subsection 1 of the Penal Code. As the Court of Appeal, which had considered the offence pursuant to the Penal Code of 1902, had failed to check whether the offence was punishable in Dubai, its judgment was set aside in an appeal hearing. (Rt. summary)

Supreme Court HR-2016-1014-A, (case no. 2015/2348), criminal case, appeal against judgment.

 

Judgment

12 May 2016

Criminal law. Sentencing. Obstruction of justice.

The sentence for five violations of section 132 a, subsection 1 b of the Penal Code was seven months of imprisonment. Following two civil cases before the district court, the convicted person had posted video clips on YouTube with extremely offensive statements about a deputy judge, a judge, an advocate and a registry officer. The aggrieved parties were identified by name and photo, and partly also by address and telephone number. The Supreme Court held that there was no reason to formulate a general rule that retaliation against witnesses and parties is more serious than retaliation against professional parties, and that the sentence must be based on the circumstances in each case, irrespective of whom the retaliation was directed against. Two justices found that the sentence should be 90 days of imprisonment. Dissenting votes 3-2.. (Rt. summary)

Supreme Court HR-2016-1015-A, (case no. 2016/416), criminal case, appeal against judgment.

Read the whole judgment

 

Judgment

12 May 2016

Criminal law. Obstruction of justice. Application of the law, Sentencing.

A person who had been imposed a restraining order, interrupted a hearing in another case and using gestures and words expressed that the assistant judge was an idiot. The following day he called her on her private mobile phone and accused her of being a cruel and bad person, and sent her two text messages with a similar message. The Supreme Court concluded that this was a violation of Section 132a of the Penal Code of 1902 (now Section 157 of the Penal Code of 2005). It was pointed out that even though there are wide limits to what a judge must accept of expressions of disapproval against decisions, in principle this does not generally apply to expressions of disapproval in the form of disturbances during their leisure time or while at work. The punishment was set at a term of imprisonment of seven months, of which 60 days were suspended, as a combined sentence with a previous judgment of a six-month suspended sentence.  (Rt. summary)

Supreme Court HR-2016-1012-A, (case no. 2016/244), criminal case, appeal against judgment.

 

Judgment

11 May 2016

Tax law. Net wage agreement. Work abroad.

An employee in a Norwegian company had worked in Qatar for almost a year and met the conditions for tax reduction under section 2-1 (10), litra a) of the Tax Act. His income was taxable to Qatar. He had signed a so-called net wage agreement, which meant that the employer was to pay all taxes incurred. This raised the question which income benefits should form the basis for the conversion from net to gross income when levying tax from him in Norway. In contrast to the lower courts, a majority of three of the Supreme Court justices concluded that the tax that would have been incurred if the employee had not come under the tax reduction rule in section 2-1 (10), did not come under the definition of a taxable benefit, as was used in his tax assessment. The taxes the employer had actually covered for him were to be used as a basis, which in practice was the social security contribution on net pay. A minority of two justices came to the opposite conclusion. The tax assessment was set aside. Dissenting judgment 3-2. (Rt. summary)

Supreme Court HR-2016-01050-A, (case no. 2015/1950), civil case, appeal against judgment.

 

Judgment

10 May 2016

Tax law. Anti-avoidance. Deadline for change.

In the Supreme Court judgment in Rt-2008-1537, an oil company’s tax assessments for 2000 and 2001, which were based on anti-avoidance considerations, were set aside. While the case was before the courts, the Oil Tax Board had made a new amendment decision, which also included the tax assessment for 2002. This amendment, which was based on the same anti-avoidance considerations, was on its own to the company's advantage. Following the Supreme Court judgment, a new amendment decision was made in 2009, which reversed the anti-avoidance decision for all three years. The Supreme Court now concluded that in 2009 the tax authorities could also change the tax assessment for 2002, even though this tax assessment was not considered by the Supreme Court in 2008. It was pointed out that the need for amendments pursuant to section 9-5 no. 2, litra a) of the Tax Assessment Act extends beyond the limits for the substantive legal force, cf, section 9-6 no. 5, litra e) of the Tax Assessment Act, and stated that if the tax authorities have solved a classification or allocation issue for a transaction in the same way for several income years, and there is a final and enforceable judgment for one of the years, the provision gives the tax authorities the right and obligation to also consider the tax assessments for the other years. In the specific case, the amendment for 2002 followed from the Supreme Court’s judgment for the two preceding income years, and the tax authorities then had the authority to consider the tax assessment for this year. (Rt. summary)

Supreme Court HR-2016-988-A, (case no. 2015/1044), civil case, appeal against judgment.

 

Order

29 April 2016

The Courts of Justice Act. Impartiality Supreme Court Justices.

In a compensation case against the State, based on the content that the legislator had given the principle of clarity as pertaining to “undoubtedly” in section 15 no. 2 of the Ground Lease Act, as this was interpreted by the Supreme Court in Rt-2006-1547, being in breach of convention, the Supreme Court, which heard the case in the Grand Chamber, concluded that the four justices who had taken part in the proceedings in 2006, and who were still in service, should stand down. It was pointed out that the problem was whether the justices could take part in taking a stand on the same legal and factual issues on which they had previously decided with possible liability for damages as a result. The standard that justices must not participate in decisions if objectively speaking there is reasonable and justifiable reason to doubt their impartiality then meant that these four justices should stand down in the action for damages, cf. section 108 of the Courts of Justice Act. (Rt. summary)

Supreme Court HR-2016-956-S, (case no. 2015/1777), civil case, appeal against judgment.

 

Judgment

29 April 2016

Release on parole. Double punishment. ECHR.

The Correctional Services had refused a convicted person release on parole because there was reason to believe that he would reoffend during the probation period, cf. section 42, subsection 5 of the Sentences Act. The Supreme Court concluded that the refusal was not a new sanction that came under the ban on double punishment in Protocol no. 7, article 4 of the European Convention on Human Rights (P 7-4). It was pointed out that the domestic sources of law do not provide a basis for regarding the relevant refusal as a sanction, and that ECHR did not guarantee prisoners a right to release on parole. (Rt. summary)

Supreme Court HR-2016-910-A, (case no. 2015/1978), civil case, appeal against judgment.

 

Judgment

28 April 2016

Civil procedure. Conciliation claim. Limitation.

In a claim for compensation pursuant to the Motor Vehicle Liability Act, the Conciliation Board had discontinued the proceedings. To prevent limitation, the injured party’s lawyer initiated new conciliation proceedings before the end of the one-year time limit set out in section 6-1, subsection 5, litra a) of the Dispute Act. This conciliation claim was dismissed by the Conciliation Board. The Supreme Court stated that section 18-3, subsection 2 of the Dispute Act does not provide a legal basis for an application for conciliation proceedings to interrupt limitation before one year had passed, and that section 6-11, subsection 5 of the Dispute Act fully determines when a new application for conciliation proceedings may be submitted. The claim was still not deemed to be statute-barred, as section 22 of the Limitations Act relating to an extended limitation period was applicable. As the dismissal was not due to wilful conduct by the lawyer’s side in the case, the claim was not statute-barred. It was stated that a real indirect intention still applies here and that this involves only the procedural error that leads to the dismissal. (Rt. summary)

Supreme Court HR-2016-899-A, (case no. 2015/1661), civil case, appeal against judgment.

 

Judgment

28 April 2016

The law of obligations. The Alienation Act. Price reduction.

Extensive moisture damage was found following the sale of an apartment in a residential condominium. The Supreme Court held that the buyer's price reduction claim against the seller, cf. section 4-12, subsection 2 of the Alienation Act, had to be reduced by the amount the buyer had been paid under the condominium’s building damage insurance to cover consequential damage. It was pointed out that, in principle, the insurance payment was the seller's property, as the damage had occurred during the seller’s ownership period. As the amount was used to pay the price reduction to the buyer, it was therefore natural to consider the price reduction claim as having been settled as far as the insurance payment allowed. In this way, this resulted in an identical solution for condominiums and single-unit dwellings. (Rt. summary)

Supreme Court HR-2016-901-A, (case no. 2015/1622), civil case, appeal against judgment.

 

Judgment

27 April 2016

Criminal law. The Fishermen’s Sales Organisation Act Minimum price for first-hand sale of fish.

The Norwegian Fishermen’s Sales Organisation had determined a minimum price for first-hand sale of cod and haddock pursuant to section 11 of the Fishermen’s Sales Organisation Act. Prior to purchasing round cod at the minimum price, a fish production company had entered into an agreement with the fishermen that following delivery, the fish were to be gutted at the fishermen's expense. The reality of this was that the fishermen delivered round fish at a lower price than the fixed minimum price for round fish, as they had to repay part of the minimum price received. This was deemed to be a violation of the ban on sale at a lower price than the minimum price, which is punishable under section 22 of the Fishermen’s Sales Organisation Act. The company’s appeal against the Court of Appeal's judgment, which set aside the District Court’s judgment for the defendant, was dismissed. (Rt. summary)

Supreme Court HR-2016-895-A, (case no. 2015/2147), criminal case, appeal against judgment.

 

Judgment

25 April 2016 

Labour law. Preferential rights of part-time employees. Legal effects of board decision.

A nurse employed in a part-time position had claimed preferential rights to parts of a vacancy, in order to gain full-time employee status, cf. Section 14-3 of the Working Environment Act, but her claim was rejected. The Dispute Resolution Board later found in favour of the employee, cf. Section 17-2 of the Working Environment Act, concluding that her preferential rights had been violated. The municipality, which was also the employer, failed to bring the case before the court within the eight-week term established by Section 17-2, Subsection 3. In the subsequent action for damages against the municipality, the Supreme Court’s majority opinion of three justices concluded that the board’s decision did not have the legal effect to preclude the issue without prejudice, meaning that the employer could still file a motion before the court, claiming that the board’s decision was incorrect. Two of the justices furthermore found, contrary to the Dispute Resolution Board, that Section 14-3 of the Working Environment Act does not establish that a part-time employee can claim preferential rights to assume parts of a vacancy, provided that a specific assessment into the issue concludes that this will involve significant inconvenience for the undertaking.  The third justice concluded that Section 14-3 did apply to the circumstances, but that a division of the vacancy, as provided by the claim, would involve significant inconvenience for the municipality. A minority opinion of two justices found that since the expiration of the time limit for bringing the matter before the courts, as established by Section 17-2, both parties are substantively bound by the board’s conclusion, even though its decision is not truly binding in a civil procedural sense. These justices also found that the employee’s preferential rights pursuant to Section 14-3 had been violated, and that the nurse was entitled to compensation. The Court found in favour of the municipality. Dissenting opinions. (Rt summary)

The Supreme Court HR-2016-867-A, (case no. 2015/1854), civil suit, appeal against judgment.

 

 

 

Judgment

18 April 2016 

Criminal law. Sentencing. Conversion of a community sentence. Violation of terms.

A motion from the correctional service for conversion of a previous community sentence, cf. Section 28 of the Penal Code of 1902, had not been taken into account in the adjudication of new criminal offences. Due to long processing times with the police, the correctional service resumed execution of the community sentence. Following new violations, the correctional service filed a motion to execute the remaining period of imprisonment, to be served upon violation of terms. The court of appeal later sentenced the defendant to a partially suspended sentence. The Supreme Court based its assessment on the premise that periods of imprisonment to be served upon violation of the terms of the community sentence normally cannot be suspended, and that exceptions to this premise may only be made in response to errors on the part of the authorities. The extended processing time had been taken into account in that the execution of the community sentence had resumed, but, in reality, this compensation did not benefit the defendant as a consequence of the new violations. He also lost the opportunity to have the court render a collective judgment for new and old violations, due to an error on the part of the police. The exception concerning errors on the part of the authorities therefore applies. The prosecuting authority’s appeal against sentencing was dismissed. (Rt summary)

The Supreme Court HR-2016-799-A, (case no. 2015/1945), criminal case, appeal against judgment.

 

Judgment

14 April 2016 

Criminal law. Sentencing. Arson. Restraining order with electronic monitoring.

A defendant had been sentenced to imprisonment for a period of two years, of which six months were  suspended with a probational period of 2 years, for violation of Section 292, cf. Section 291, of the Penal Code of 1902. In addition, the defendant was ordered to subject to a 5-year restraining order, which included electronic monitoring for 3 yeras, cf. Section 33 of the Penal Code of 1902. The defendant had set fire to a house, which was damaged beyond repair. This act of arson was found to be an escalation of previous violations against the family who owned the house. The size of the exclusion zone was set to correspond with police response times. In reference to the suspended sentence, the Court emphasized that a restraining order, incl. electronic monitoring, does not entail a reduced or suspended  sentence, and that electronic monitoring in itself is not an argument in favour of a suspended sentence. An extended probational period, however, could contribute to the person convicted refraining from new violations and criminal acts against the aggrieved persons. (Rt summary)

The Supreme Court HR-2016-783-A, (case no. 2015/1982), criminal case, appeal against judgment.

 

Judgment

12 April 2016

Law of obligations. Home construction. Price estimate.

In connection with a major reconstruction job on a large estate, the electrical contractor had, during the construction period, provided a detailed “price suggestion”, including principal items and individually priced sub-items, specifying quantities and amounts. Contrary to the court of appeal, the Supreme Court found that, pursuant to Section 41, Subsection 3, of the House Erection Act, this would have to be considered a price estimate for the works specified, which entails that the total amount charged for said work cannot exceed the estimated total by more than 15 percent.  The Supreme Court based its assessment on the general premise that any pricing information provided to a consumer by a contractor shall be considered an estimate when the price is not fixed. The court of appeal's judgment was overturned. (Rt summary)

The Supreme Court HR-2016-761-A, (case no. 2014/2148), civil suit, appeal against judgment.

 

Judgment

7 April 2016 

Courts of Justice Act. Impartiality.

In the court of appeal’s hearing of a jury trial, one of the jurors was the brother-in-law of the lawyer serving as counsel for the defence before the district court. The lawyer had written the defendant’s appeal against the district court’s conviction and forwarded it to the public prosecutor’s office along with a cover letter he had personally signed. This is sufficient for the condition of “acting on behalf of one of the parties in the case”, as laid down in Section 106, no. 7, of the Courts of Justice Act, to have been met. The court of appeal's judgment, including appellate proceedings, were set aside. (Rt summary)

The Supreme Court HR-2016-739-A, (case no. 2015/2195), criminal case, appeal against judgment.

 

Judgment and order 

4 April 2016 

Courts of Justice Act. Impartiality. 

An appellate judge, who had taken part in considering leave to appeal, and then served as the judge preparing the case for trial in a criminal case that concerned, inter alia, Section 224 of the Penal Code of 1902, was married to a lawyer who was a partner in a law firm with three lawyers. One of the other lawyers in this law firm was legal counsel for one of the victims in the case. The Supreme Court concluded that, as a general premise, when a judge is associated with a law firm of this size through a close family member or a cohabitant partner, it does warrant disqualification pursuant to Section 108 of the Courts of Justice Act, cf. Article 6 of the ECHR, when another of the lawyers in the firm serves as counsel for one of the parties or as legal counsel for the victim. If the spouse had been associated with a very large law firm, the circumstances would have been different. (Rt summary) 

The Supreme Court HR-2016-681-A, (case no. 2015/2166), criminal case, appeal against judgment.

 

Order 29 March 2016

Criminal Procedure. Communications control. Exclusion of evidence.

A defendant, who was subject to communications control due to suspected drug-related offences, had made threats against his brother during a phone conversation with him. On this basis, he was indicted for violation of Section 227 of the Penal Code of 1902, as well as of Section 162. The Supreme Court, which heard the case in chambers, found that the recording collected by means of communications control was admissible as evidence in the criminal case against the defendant, and that the recording would not be destroyed. Given its content, the recording was admissible as evidence in the counts concerning both the drug-related offences and the threats. The brother had consented to the recording being used, but such consent is not in itself sufficient to reverse the duty to destroy collected recordings and notes pursuant to Section 216 g, Subsection 1, litra b), cf. Section 122, of the Criminal Procedure Act. These circumstances demand a limited exception from the duty to destroy collected material, in that the suspect in the collected recording commits a criminal act against his close relative. (Rt summary)

The Supreme Court HR-2016-644-A, (case no. 2015/1868), criminal case, appeal against judgment.

 

Order

17 March 2016

Stamp duty. Dissolution of joint ownership.

Joint ownership of a cabin lot, which appeared to be one property, but consisted of several cadastral units, was dissolved by each co-owner taking over full ownership of one or two of the cadastral units. The Supreme Court concluded that it followed from section 7, subsection five of the Stamp Duties Act that when calculating the stamp duty a deduction shall be made for the value of the transferee's co-ownership share in the cadastral unit being acquired. The Act’s calculation was given precedence over the calculation that seems to be apparent from section 2, subsection 1, litra d) of the Norwegian Storting’s tax resolution and which appears to be less favourable for the citizens than the statutory provision. The Supreme Court set a clarity requirement in the event of conflict between the law and the tax resolution, and justified the result by stating that it was not clearly evident from the tax resolution or its legislative history that the intention was to derogate from the law in the citizens’ disfavour. (Rt. summary)

Supreme Court HR-2016-606-A, (case no. 2015/1588), civil case, appeal against order.

 

Judgment
16 March 2016
Social security law. Refund of sickness benefits. Definition of employee.

A local authority that had paid remuneration to the mayor during illness was unsuccessful with its claim for a refund of the paid remuneration pursuant to section 22-3 of the National Insurance Act, as the mayor was not regarded as an employee pursuant to section 1.8 of the National Insurance Act. The Supreme Court pointed out that the mayor was not employed, but elected, and did not have an employer in the usual sense. It was therefore difficult to connect the position of mayor with the wording of the Act and the definition of employee. The legislative history provided no basis for any other solution. The mayor was regarded as a freelancer, cf. section 1-9 of the National Insurance Act, which gave no grounds for a refund pursuant to section 22-3. (Rt. summary)

Supreme Court HR-2016-589-A, (case no. 2015/1338), civil case, appeal against judgment.

 

Judgment
16 March 2016
Criminal law. Drugs. Production capacity.

The punishment for violation of section 162, subsection 1 of the Penal Code of 1902 was set at a term of imprisonment of 60 days, the whole of which was considered to have been served while the convicted person was in custody on remand. The convicted person had equipped an apartment for professional cultivation of cannabis plants. During a search, plant material and plants were found, which when dried weighed around 400 grams, while the cannabis farm had a total production capacity of around 3 kilograms. The indictment was issued pursuant to section 162, subsection 1 of the Penal Code of 1902, while the Court of Appeal had subsumed the offence into section 162, subsection 1, cf. subsection 2, without giving the parties an opportunity to express their views, cf. section 38, subsection 3 of the Criminal Procedure Act. This procedural error was rectified by the parties being allowed to comment on the subsumption during the appeal hearing before the Supreme Court. The Supreme Court stated that the judgment for violation of section 162, subsection 1 of the Penal Code, cf. subsection 2, could not be based on the production potential, as the Court of Appeal had done, but that the defendant could have been convicted of an attempt at such violation, cf. section 49 of the Penal Code. When determining the sentence, the production capacity has also been a starting point. The penalty, which basically would have been a term of imprisonment of one year and three months, was significantly reduced due to the convicted person’s unreserved confession, and due to a waiting time of around two and a half years from the time the case was fully investigated until charges were brought, which is a clear breach of the right to a decision within a “reasonable time” pursuant to section 9, subsection 1, first sentence of the Constitution, cf. ECHR Article 6, no. 1. (Rt. summary)

Supreme Court HR-2016-592-A, (case no. 2015/2194), criminal case, appeal against judgment.

 

Judgment
16 March 2016
Sentencing. Drugs. Production capacity.

The punishment for violation of section 162, subsection 1 of the Penal Code of 1902, cf. subsection 2 and section 162, subsection 1, cf, subsection 2, cf. section 49 was set at a term of imprisonment of three years and nine months for three of the four defendants and a term of imprisonment of three years and three months for the fourth defendant. The convicted persons had engaged in professional production of marijuana at a farm. There were convicted of a consummated crime involving production of six kilograms of dried plant material and of full-grown plants, which after drying would have constituted around six kilograms of marijuana. They were also convicted of attempted production of approximately 70 kilograms marijuana, based on a production capacity of around 2,000 full-grown plants, from around 3,000 seized cuttings. The Supreme Court determined the sentence using a normal punishment of 5-years imprisonment and reduced this by around six months for the confessions and around nine months for a long processing time. (Rt. summary)

Supreme Court HR-2016-591-A, (case no. 2015/2076), criminal case, appeal against judgment.

 

Judgment

16 March 2016

Criminal law. Confiscation. Market manipulation. Unrealised dividend.

The Managing Director and shareholder of a listed company were convicted of market manipulation for including a fictitious income item in the financial statements. This resulted in a temporary price increase for the company’s shares, including his own shareholding. The Supreme Court concluded that there were no grounds for confiscating the increase in value pursuant to Section 34 of the Penal Code of 1902, cf. section 67, subsection 1, first sentence of the Penal Code of 2005 It was pointed out that this was a temporary upturn in prices without any real economic basis. As no steps were taken to realise the increase in value, there was not actual enrichment that could be confiscated in the form of dividends obtained. (Rt. summary)

Supreme Court HR-2016-590-A, (case no. 2015/2201), criminal case, appeal against judgment.

 

Judgment

15 March 2016

Tax law. The exemption rule. Low-tax countries.

In 2007, a shipping group sold shares in a company registered in Singapore at a considerable profit. The Supreme Court concluded that the profit was taxable. The exemption rule in section 2-38, subsection 1 of the Tax Act did not apply, as Singapore was regarded as a low-tax country, cf. section 2-38, subsection 3, litra a) of the Tax Act. There were no sources of law to support exclusion of the company’s financial income from the assessment, even though this was not the company’s main income. As financial income was taxed at a rate of up to 18% in Singapore and 28% in Norway, Singapore came under the definition of a low-tax country in section 10-63 of the Tax Act. The shipping company’s income was exempt from tax in both countries, and therefore was not included in the comparison. The Supreme Court stated that the consequences of not including tax-exempt shipping company income in the comparison is hardly intentional, but that it is the task of the legislator to change the definition of a low-tax country. (Rt. summary)

Supreme Court HR-2016-586-A, (case no. 2015/312), civil case, appeal against judgment.

 

Judgment

10 March 2016

Copyright clearance for cable distribution of TV channels.

The court sustained the claim of cable distributor Get AS that Norwaco was not to be paid remuneration for cable transmission of TV channels TVNorge, FEM, MAX and VOX.

The case clarifies that there is no retransmission of broadcasts, cf. section 34 of the Copyright Act, when a cable company distributes television channels, which it receives in a closed electronic transmission, but which are broadcast simultaneously via satellite and the terrestrial network. Dissenting judgment 4-1

Supreme Court HR-2016-562-A, (case no. 2015/1101), civil case, appeal against judgment.

Read the whole judgment

 

Judgment

9 March 2016

Sentencing. Family violence. Bodily harm resulting in death.

The punishment for violation of section 229, first sentencing alternative of the Penal Code of 1902, cf. the third sentencing alternative, cf. sections 232 and 219, was set at a term of imprisonment of nine years. Over a period of 11 months, the convicted person had beaten and in other ways mistreated his four children, aged two to five years, and had threatened his spouse. One of the children died due to a head injury inflicted on him by his father, and the mistreatment of one of the other children could be compared to torture. (Rt. summary)

Supreme Court HR-2016-553-A, (case no. 2015/1963), criminal case, appeal against judgment.

 

Judgment

29 February 2016

Contract law. Management of municipal funds. Exceeding authority. Passiveness.

Contrary to the municipal council’s financial regulations, the Administrative Officer had entered into agreements with a bank regarding financial instruments. The agreement resulted in that the Council was exposed to a considerable financial risk Unlike the lower courts, the Supreme Court concluded that the agreements were binding for the municipal council and found in favour of the bank. There were no legitimising circumstances to indicate that the municipal council was bound. However, the municipal council's passiveness over a long period after it became clear that the financial regulations had been violated meant that the validity objection was submitted too late. It was also argued that the provision relating to management of municipal council funds, set forth in section 52 no. 3 of the Local Government Act, did not include any material limitation on the agreements into which the municipal council could enter.

Supreme Court HR-2016-476-A, (case no. 2015/1486), civil case, appeal against judgment.

           

Judgment

19 February 2016

The Constitution of Norway. Retrospective effect. Pension adjustment. ECHR.

The former Act no. 61 of 12 June 1981 relating to pension schemes for members of Parliament was amended with effect from 1 January 2011. The pension-qualifying income, which previously corresponded to the members of Parliament’s wages at any time, was then amended so that it would be adjusted in accordance with wage growth and then reduced by 0.75 per cent. The Supreme Court dismissed a retired member of Parliament’s claim that the new adjustment provision was contrary to section 97 of the Constitution or ECHR Firs Protocol, Article 1-1. The Supreme Court took into account that new provisions on how an established position shall be practised, allow the legislator considerable leeway in relation to section 97 of the Constitution, as opposed to what applies when burdensome effects are linked directly to past events. State pensions enjoy greater protection against intervention than applies to rights under the National Insurance Act, but the Supreme Court found no evidence that the legislator had intended to give parliamentary pensions special protection. In this specific assessment, the Supreme Court emphasised that the change did not involve any particularly extensive intervention, and that the retrospective element was not particularly strong, even though the financial loss the change would entail, was clearly noticeable. The members of Parliament’s justified expectations must primarily have been linked to having a good and secure pension, an expectation that would still be satisfied, and not that the adjustment mechanism should remain unchanged. In the view of the Supreme Court, the social considerations behind the pension reform in 2009, such as economic sustainability, equality and a fair distribution between the generations, must weigh heavily in the overall assessment. The amendment was also not deemed to be a disproportionate intervention. ECHR P1-1 was therefore not applicable.

Supreme Court of Norway HR-2016-389-A,  (case no. 2015/1740), civil case, appeal against judgment.

 

Judgment 

18 February 2016

Property law. Common ownership. Termination. Agreement interpretation.

A co-ownership agreement that concerned a recreational property with a total of 10 co-owners did not include provisions on termination, but on the pre-emptive right of the other co-owners if a co-owner wanted to sell, and on sale of the entire property on the open market if no co-owner wanted to purchase the undivided share. The Supreme Court concluded that the agreement did not imply that the co-owners had waived the right of termination pursuant to section 15 of the Co-ownership Act. It was pointed out that there must be clear evidence in the agreement that the Act’s declaratory principle rule on termination has been derogated from. There was no such evidence. The estate in co-ownership also had no special features that provide the basis for it falling within the statutory alternative “special legal relations”. It was also pointed out that the right of termination must not be linked to a requirement of reasonableness. The District Court’s judgment, which decided that the co-ownership could be terminated, was upheld

Supreme Court of Norway HR-2016-386-A, (case no. 2015/1621), civil case, appeal against judgment.

 

Judgment

17 February 2016

Criminal procedure. Procedure. Police interview. Information to the accused.

An Englishman, convicted of complicity in the murder of a child, had confessed during a police interview in London. The interview, which was held without defence counsel present, was recorded on video. When the accused subsequently withdrew his confession, the video footage was shown during the main hearing at the Court of Appeal, cf. Section 290 of the Criminal Procedure Act. The Supreme Court stated that there was no doubt that prior to the interview, the accused had received sufficient information that he was a suspect and what the interview concerned, cf. Section 232 of the Criminal Procedure Act. He had also received sufficient information about his right to contact a lawyer, and his waiver of defence was adequately informed and clear. The right to have defence counsel present was not then violated, cf. Section 100, subsection 2 of the Criminal Procedure Act. On the whole, the circumstances surrounding the interview met the requirements of a fair trial, cf. ECHR Article 6. It was therefore not wrong of the Court of Appeal to allow playback of the video footage. The convicted person’s appeal against the Court of Appeal's procedure was dismissed.

Supreme Court of Norway HR-2016-379-A,  (case no. 2015/1628), criminal case, appeal against judgment.

 

Judgment

17 February 2016

Civil procedure. New legal grounds. Further hearing after a ruling has been set aside.

At the further hearing of a civil appeal case in the Court of Appeal, after the Court of Appeal’s previous ruling had been set aside by the Supreme Court, the respondent submitted to the Court of Appeal a new contention basis for his claim. The Supreme Court stated that no special limitations apply to the right to invoke new legal grounds in a further hearing in the Court of Appeal after a ruling has been set aside by the Supreme Court, cf. Section 29-24 of the Dispute Act and that the new legal grounds may then be submitted up until the completion of case preparation for the Court of Appeal’s new hearing of the case, cf. Section 29-18, subsection 1 of the Dispute Act and section 9-16. The Court of Appeal’s judgment, which has used a different interpretation of the law, was overturned.

Supreme Court of Norway HR-2016-378-A, (case no. 2015/1444), civil case, appeal against judgment.

 

Judgment

10 February 2016

Ground lease. Redemption of leasehold property.

In a reappraisal to determine the redemption price when buying out a leasehold property under section 32 of the Ground Lease Act, the Court of Appeal determined the redemption price on the basis of the 40 per cent rule in section 37, subsection 1, second sentence of the Ground Lease Act. The Supreme Court, which heard the case in the Grand Chamber, found that the 40 per cent rule was consistent with the landowner’s protection of property under the European Convention on Human Rights, Article 1 of Protocol 1, even if this resulted in a significantly lower payment than the full market value of the plot. It was pointed out that P1-1 allows the statutory compensation rules to be based on a distribution of the value that deviates from the formal ownership conditions and that the legislator has a wide margin of discretion here provided that the lessors’ interests are balanced against the other interests at stake. This condition, including the requirement to protect the lessors’ interests, was deemed to have been satisfied in the legislative process that had taken place. It was also pointed out that a consequence of the right of extension of the lease under section 33 of the Ground Rent Act is that it is the value of the right to the current ground rent, not the value of the plot, which shall be compensated when redeeming a leasehold property. The future ground rent was estimated to be just over NOK 400,000, while the redemption price was determined to be NOK 1,520,000. The lessors’ financial expectation of being able to use the leasehold property at the end of the term of the lease, was then considered protected by the 40 per cent rule, which gave them a sizeable share of the  increase in value created socially. Redemption at the price determined by the Court of Appeal was not then a disproportionate interference in the lessors’ right of ownership, as this is protected under P1-1. The lessors’ appeal against the Court of Appeal's reappraisal was dismissed.

Supreme Court HR-2016-304-S, (case no. 2013/1929), civil case, appeal against judgment.

 

Judgment

9 February 2016

Criminal law. Confiscation. Evaded VAT.

A tradesman was convicted of having evaded a significant amount of collected VAT. When determining the amount to be confiscated as proceeds, cf. section 34 of the Penal Code (1902), the Supreme Court took into account that a deduction had to be made for VAT for which the Norwegian Tax Administration had already made a decision regarding payment. A discretionary assessment also had to be made for input VAT, even though this had been documented with vouchers. There were no grounds for reducing the amount to be confiscated, cf. Section 34, subsection 1, second sentence of the Penal Code (1902)

Supreme Court of Norway HR-2016-301-A,  (case no. 2015/1675), criminal case, appeal against judgment.

 

Judgment

8 February 2016

Compensation. Occupational injury. Mercury. Limitation.

In 2007, it was confirmed that a dental assistant had suffered brain damage as a result of prolonged exposure to mercury. The Supreme Court concluded that the damage could not be considered confirmed until 1990. The Occupational Injury Act, which came into force that year, was then applicable to the injury, cf. section 21 of the Occupational Injury Act. The symptoms had appeared earlier, but were misdiagnosed and then gave no grounds for ascertaining the illness from which she was actually suffering. The claim was also not deemed to be time-barred, cf. section 15 of the Occupational Injury Act. The experts, who had expressed their opinions in the 1990s, disagreed on whether she was suffering from the effects of mercury toxicity, and the leading scientific circles at the time believed she was not. It was not until new expert statements were submitted in 2007 that she had a justifiable basis for taking legal action, so that the period of limitation did not begin to run until that point in time. The appeal against the Court of Appeal’s judgment, which established that the Occupational Injury Insurers’ Bureau was liable for damages for the injury, was dismissed.

Supreme Court HR-2016-293-A, (case no. 2015/1105), civil case, appeal against judgment.

 

Judgment

8 February 2016

Sentencing. Animal welfare. Unlawful killing.

The punishment for violation of section 37, subsections 1 and 2 of the Animal Welfare Act, cf. section 12, cf. section 2 of the Regulations on the killing of dogs and cats and section 37, subsections 1 and 2 of the Animal Welfare Act, cf. section 14, subsection 1, litra a), was set a term of imprisonment of 90 days, and a ban on owning, keeping or using a dog and other household pets for five years, cf. section 33, subsection 2 of the Animal Welfare Act, cf. subsection 1. The convicted party had killed a dog by tying it to a concrete pipe and throwing it off a bridge. The dog died from asphyxiation due to drowning after three to four minutes. The Supreme Court found that the punishment should really have been a term of imprisonment of 120 days, but made an allowance for the confession. The judgment represents a significant tightening of the penalty compared with the Supreme Court’s practice pursuant to the Animal Welfare Act of 1974.

Supreme Court HR-2016-295-A, (case no. 2015/1882), criminal case, appeal against judgment.

 

Judgment

8 February 2016

Legislation. Implementation of convention. The State’s liability for damages.

A seaman was given his notice pursuant to section 19 no. 1 of the Seamen’s Act of 1975, under which the employment protection provided for seamen lapses on reaching the age of 62. The seaman filed an appeal with the European Social Policy Committee, who concluded that the provision in the Seamen’s Act was contrary to the provisions of the European Convention on Social Rights (the Social Treaty). The Supreme Court had previously (Rt-2010-202) ruled that the dismissal was valid. The United Federation of Trade Unions, which had covered all dismissed seaman’s legal costs, was not successful in its claim that the State should reimburse these costs. Following a review of the legislative process prior to the amendments to the Seamen’s Act in 2007, the Supreme Court found that the Social Treaty did not preclude the continuation of the age limit provision in section 19 no. 1. It was not out of the question that the breach of the Ministry’s duty to inform the Norwegian Storting during the legislative process could result in liability for damages to citizens who were affected by the enactment, but it was clear that there was no such breach in this case. The appeal against the Court of Appeal's judgment in favour of the claimant was dismissed.

Supreme Court HR-2016-296-A, (case no. 2015/1524), civil case, appeal against judgment.

           

Judgment

5 February 2016

Sentencing. Drugs. Community service.

The punishment for violation of section 162, subsection 1 and 2 of the Penal Code of 1902 was 420 hours of community service, with execution time and alternatively a term of imprisonment of one year and six months. In 2013, the convicted person had dealings with around 130 grams amphetamine and 380 grams hashish. Decisive weight was placed on the existence of strong and clear rehabilitation considerations. It was also emphasised that the convicted person was still vulnerable with respect to reverting to drug use and the long processing time, which was no fault of his.

Supreme Court HR-2016-286-A, (case no. 2015/1927), criminal case, appeal against judgment.

           

Judgment

5 February 2016

Criminal law. Rape. Sentencing. Mild mental retardation.

In 2012, a man born in 1992 was sentenced to a term of imprisonment of 2 years and 10 months for raping an excessively drunk 15 year old girl, which was committed by two or more persons jointly, cf.  section 192 of the Penal Code of 1902. The rape took place when the convicted person and another party pushed the neck of a beer bottle into the victim’s vagina, one time each, while she was sleeping due to alcohol intoxication. The sentencing in the case was reviewed when it turned out that the convicted person’s ability level was equivalent to a mild degree of mental retardation, cf. section 56 litra c) of the Penal Code of 1902 and  section 78 litra d) of the Penal Code of 2005. As a result of this, the convicted person’s other psychological problems and the time spent on the case, the sentence was now set at a term of imprisonment of one year and six months.

Supreme Court HR-2016-287-A, (case no. 2015/2087), criminal case, appeal against judgment.

 

Judgment

29 January 2016-01

Criminal law. Long processing time. Bodily harm with a particularly dangerous instrument. Sentencing.

The punishment for violation of cf. section 229, third sentencing alternative of the Penal Code of 1902, cf. section 232 was, as for the lower courts, set at a term of imprisonment of three years and eight months, of which eight months were suspended. The convicted party had hit the aggrieved party several times on the head and face with a bottle, causing extensive fracturing and impact injuries. The processing time from when the offence took place and until judgment was delivered by the Supreme Court was three years and one month. Over a period of seven to eight months of this time there was no activity in the case at all. This had to be taken into consideration when determining the sentence, even though it did not represent a violation of section 95 of the Constitution or ECHR Article 6 no. 1. The Supreme Court used a punishment of four years and six months as its basis. This was reduced to four years and two months, due to the convicted party’s admission and a further three years and eight months as compensation for the period of inactivity in the case. It was stated that period of inactivity in the case should be compensated with a deduction in the total penalty, not by suspending parts of the sentence, as the lower courts had done. However, the Supreme Court chose not to change this, as the case was referred with a view to obtaining a Grand Chamber decision on compensation for a long processing time.

Supreme Court HR-2016-225-S, (case no. 2015/2010), criminal case, appeal against judgment.

 

Judgment

28 January 2016

Criminal procedure. Juror. The attentiveness requirement.

In an notice of appeal filed with the Supreme Court it was claimed that a juror had fallen asleep during the defence counsel’s oral pleading. The Supreme Court stated that a juror’s breach of duty to pay close attention may be a procedural error. The attentiveness requirement does not imply that jurors must have followed every word that is said, but they must follow the proceedings with sufficient attention that they understand the contents of the presentation of evidence, the oral pleadings and the summing up. The standard of proof for failure to meet the attentiveness requirement is a general preponderance of evidence. The matter must be considered pursuant to section 343, subsection 1 of the Criminal Procedure Act, not subsection 2. In the specific assessment it was found questionable whether the inattentiveness of the juror, which some of the professional parties had registered, would be in conflict with the requirement for a proper trial. The defendants appeals on procedural grounds were dismissed.

Supreme Court HR-2016-217-A, (case no. 2015/1574), criminal case, appeal against judgment.

 

Judgment

28 January 2016

Enterprise. Termination settlement. The Housing Construction Act.

The contract to build an extension to a house was terminated when the build was almost finished, cf section 34 of the Housing Construction Act, cf. Section 21, subsection 1, due to faults and defects in the part of the building that had been delivered. The Supreme Court, which pointed out that the termination only had effect for the part of the construction that remained on the termination date, concluded that termination settlement pursuant to section 21, subsection 1, should take place through the contractor receiving payment for the whole of the part that had been delivered, with a deduction for the defects in the delivered product. The owner's argument - that the contractual money liability was limited to the part of the delivered product that had been contractually completed – was not successful. As the owner had paid an on-account amount, which exceeded the contractual money liability, the contractor was ordered to repay the difference.

Supreme Court HR-2016-219-A, (case no. 2015/1470), civil case, appeal against judgment.