Summaries
22 December 2017
Judgment
Employment law. Civil service law. Summary dismissal. Officer.
A major in the army had been summarily dismissed from his position pursuant to the Civil Service Act of 1983 section 15 subsection 1 b, currently the Government Employee Act section 26. The basis for the dismissal was a suspended sentence and fine for assault on a number of occasions against the major's two sons. The Supreme Court's majority of three justices concluded that the dismissal was unlawful. The majority stated that there was no basis for reading any fairness or proportionality requirements into the Civil Service Act section 15 subsection 1 b, as is the case under the provisions on summary dismissal in the Working Environment Act. Furthermore, it was stated that when assessing the person's unworthiness pursuant to section 15 subsection 1 b, one had to consider the position he held at the time of the dismissal, and not his position as a major in the army. In the individual assessment, it was mentioned that the acts for which he had been convicted were clearly reprehensible. On the other hand, they were situational and not an effect of a violent disposition. Nor did his history of service suggest that he lacked the personal qualifications that were required in the army. After an overall assessment, the majority concluded that the conditions for a summary dismissal had not been fulfilled. Dissent 3-2.
The Supreme Court HR-2017-2479-A (case no. 2017/985), civil case, appeal against judgment
21 December 2017
Judgment
Criminal law. Dual criminality.
A foreign national was indicted for violation of the Penal Code 1902 section 219. The abuse of the defendant's family, which the case concerned, had started in Yemen and continued after he moved to Norway. The acts were not punishable in Yemen. The Supreme Court concluded like the court of appeal that dual criminality is required to punish the defendant for the part of the offence that took place in Yemen, see the Penal Code 1902 section 12 subsection 1 no. 4 b, also if the abuse was regarded as a continued offence. The abuse committed in Yemen was also not punishable under the Penal Code 1902 section 12 subsection 2. The prosecution authority's appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2017-2429-A (case no. 2017/1660), criminal case, appeal against judgment
21 December 2017
Judgment
Criminal law. Drugs. Storage. Sentencing.
The punishment for violation of the Penal Code 2005 section 232 subsection 1, cf. section 231, and for certain minor offences was imprisonment of one year and eight months. Decisive for the sentencing was the offender's storage of 1225 grams of amphetamine. These drugs would probably not have been found if the offender had not told the police about the hiding place. The Supreme Court stated that the starting point was imprisonment of two years and nine months for the storage. However, the confession gave a credit of 12 months, and extra credit was given as this concerned sentencing for acts that in principle should have been included in the basis for an aggregate sentence under a previous judgment, see the Penal Code 2005 section 82 subsection 2.
The Supreme Court HR-2017-2444-A (case no. 2017/1782), criminal case, appeal against judgment
21 December 2017
Judgment
Public administration law. Reindeer husbandry. Cull order. Protection of minorities. Protection of property.
A young reindeer herder and leader of a siida unit, had received a government order to reduce his herd from 116 to 75 animals pursuant to the Reindeer Husbandry Act section 60 subsection 3. As opposed to the lower instances, the Supreme Court concluded that the cull order was valid. A majority of four justices found that the cull order did not violate the herder's rights under the UN Covenant on Civil and Political Rights (SP) Article 27. Although it was not possible to earn a profit with such a low number of reindeer, the herder was not entitled under SP Article 27 to any proceeds or profit in this case. Nor did he have any legitimate expectation of increasing his herd considerably, as there were already too many reindeer in the district when he became leader of the siida unit. The rules governing reduction were implemented in the interest of the reindeer herders as a group, and the cull was ordered on reasonable and objective grounds. It was also mentioned that the primary solution under the Reindeer Husbandry Act is that the siida itself may decide how to carry out the cull, while the smallest units may be spared by fixing a maximum number of reindeer per siida unit. The Supreme Court also unanimously concluded that the siida unit's rights under the ECHR P1-1 have not been not violated. Dissent 4-1.
The Supreme Court HR-2017-2428-A (case no. 2017/981), civil case, appeal against judgment
20 December 2017
Judgment
Insurance law. Recourse between insurance companies.
An insurance company that had made a payment under a product liability insurance policy submitted a claim for recourse against another insurance company stating that the insurance event occurred already during the liability period of the other company. The event involved damage to panel and other woodwork due to corrosion to the nails that had been used. The Supreme Court concluded like the court of appeal that the insurance event did not occur until after the damage to the woodwork had been detected, despite the fact that the corrosion had been detected already during the liability period of the other company. In obiter dicta, the Supreme Court stated that the claimant as a starting point would be entitled to have its claim covered by the preceding company if that company had been liable for the policyholder's claim, and that the one-year deadline in the Insurance Contracts Act section 8-5 subsection 1 could not be asserted towards the company pursuing recourse. The appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2017-2414-A (case no. 2017/1152), civil case, appeal against judgment
20 December 2017
Judgment
Criminal law. Serious abuse in close relations. Sentencing.
The punishment for violation of the Penal Code 1902 section 219 subsection 2 – currently the Penal Code 2005 section 282 and 283 – was imprisonment of one year, of which three months were suspended. The offender had, together with her husband, for a period of one year and ten months committed extensive physical and mental abuse against her four minor children. The offender and her husband came to the country as resettlement refugees. Her cultural background was not an argument for a community sentence, nor were her situation and abilities in general. The Supreme Court held that a correct punishment would be imprisonment for a bit less than one year and six months. This sentencing level is higher than the sentencing level applied by the court of appeal. The prosecution authority, however, had not demanded an increased sentence. Thus, the Supreme Court did not increase the sentence measured by the court of appeal, although the issue was raised during the proceedings allowing both sides to present their arguments.
The Supreme Court HR-2017-2415-A (case no. 2017/1764), criminal case, appeal against judgment
20 December 2017
Judgment
Tax law. Loss carry-forward. Lapse of tax position.
A company that was a minority shareholder in another company had purchased all other shares in that company. The acquired company had a substantial accumulated loss carry-forward, which in the years that followed was largely set off against the company's profit and group contributions. The Tax Appeals Board did not accept the carrying forward of the loss, see the Tax Act section 14-9. Like the court of appeal, the Supreme Court concluded that the Tax Appeals Board's resolution was valid. It was stated that the predominant motive for the purchase of shares was not due to the subjective motivation for the transaction, but to an objective assessment. The term "predominant" also suggested that it is sufficient that the tax motive is stronger than the commercial motive for the transaction, without further requirements for qualified predominance. Nor was there room for any disloyalty assessment, as is found in the non-statutory right to exercise the "substance over form" concept. In its specific assessment, the Supreme Court concluded that being able to exploit the loss carry-forward seemed to be the predominant motive for the purchase of the other shares in the company.
The Supreme Court HR-2017-2410-A (case no. 2017/1042), civil case, appeal against judgment
14 December 2017
Judgment
Immigration law. Family immigration. Procedure.
An asylum seeker whose application for protection had been rejected, had a child with a Norwegian woman. The child welfare service had taken the child into care and placed it in a foster home. The parents had been granted limited visitation rights. A subsequent application for a residence permit in family immigration pursuant to the Immigration Act section 49, was rejected by the immigration authorities. The rejection was set aside by the district court, after which the Immigration Appeals Board came to the same result in its review of the case. As opposed to the court of appeal, the Supreme Court concluded that the most recent resolution by the Immigration Appeals Board was valid. It was not considered whether the Immigration Appeals Board was obliged to send a new notification after its first resolution had been set aside by the district court, as the failure to do so could not in any case have affected the result of the second procedure. The case had also been satisfactorily reviewed, and the argument concerning the best interest of the child, see the Immigration Regulation section 17-2 a, was adequate. The right to a family life pursuant to the Constitution Article 102 and the ECHR Article 8 was also not infringed.
The Supreme Court HR-2017-2376-A (case no. 2017/1114), civil case, appeal against judgment
12 December 2017
Judgment
Ground lease. Remuneration for lessee's building upon termination.
In revaluation case with regard to the redemption price for commercial property pursuant to the utility value option in the Ground Lease Act section 41 subsection 2, the court of appeal had taken as a starting point a capitalisation of net lease income to determine the property's total value, and then deducted the raw land value. The Supreme Court's majority of three justices held that a substantial part of the earnings potential came from the ground, and that the calculation method applied by the court of appeal implied the lessee, to a large extent, was entitled also to this part of the income potential. It was also mentioned that the court of appeal's method resulted in a redemption price for the building that was significantly higher than both the technical value and the costs for a potential new building. Under the court of appeal's procedure, the value of the building was set much higher than "the value that the houses and their arrangements has to the lessor", see section 41 subsection 2. The court of appeal's revaluation was set aside. Dissent 3-2.
11 December 2017
Judgment
Intellectual property law. Trademark. Colour.
A manufacturer of pharmaceutical drugs had asserted that two specific shades of purple on a product constituted an established trademark, see the Trademarks Act section 3 subsection 3, and that a competitor was thus banned from using these shades on its corresponding product. The Supreme Court held that a colour trademark can be considered established if the colour well-known as someone's sign. In this case, however, the manufacturer had used a number of different shades of purple in its marketing, which implied that the relevant shades had not been consciously established as a sign for the product. There was also nothing unusual about the use of purple on drugs. These aspects implied that the relevant shade was not perceived as a sign for the relevant drug or for a specific manufacturer. Market surveys that had been carried out suggested the same. The appeal against the court of appeal's judgment in favour of the defendant was dismissed.
The Supreme Court HR-2017-2356-A (case no. 2017/1062), civil case, appeal against judgment
8 December 2017
Judgment
Income from sale of sexual favours. Recoverability.
Prostitute women who had been robbed and assaulted, submitted during the criminal proceedings a claim for compensation for lost income since they had been unable to sell sexual favours for a short period of time after the assaults. The Supreme Court's majority of three justices concluded that loss of income from prostitution is not recoverable. The majority pointed out that the purchase of sexual favours is a criminal offence, and that, based on the context of the judicial system, one cannot base a claim for compensation on criminal acts that will be committed. Furthermore, it was pointed out that the lawmaker has assessed prostitution as strongly undesirable for criminal and social policy purposes. Recoverability would obstruct the reducing effect the criminalisation of such purchase seems to have had and contribute to a 'normalisation' of a strongly undesired activity. A minority of two justices found that such a loss is recoverable in line with other individual loss of income. The minority emphasised that prostitution income is legal, which means that demanding compensation from an injuring party must be appropriate.Dissent 3-2.
Supreme Court HR-2017-2352-A (case no. 2017/691), civil case, appeal against judgment
8 December 2017
Judgment
Criminal law. Abuse of power. Mental disability. Sentencing.
Punishment for violation of the Penal Code 2005 section 295 b was imprisonment of one year and six months. The defendant had engaged in sexual activity with a woman by exploiting her slight mental disability. He had, among other things, touched the woman's naked genitals, made her masturbate him and – which was regarded as the most serious of his actions – made her take his penis into her mouth. The sentence involved a pronounced increase from the sentencing level before 2010, which was in accordance with the premises in the preparatory works of the law amendment of 2010.
The Supreme Court HR-2017-2327-A (case no. 2017/1737), criminal case, appeal against judgment.
Judgment
5 December 2017
Expropriation law. Utility value.
In connection with a road project, the Directorate of Public Roads expropriated stripes of farmland on both sides of the road. Some landowners rented out the land, while others cultivated it themselves. The court of appeal based the utility value compensation pursuant to the Expropriation Damages Act section 6 for all the expropriated properties under a presumption of a future, multi-annual shift between cereal crops, potatoes and onions. The Supreme Court took as its staring point that the utility value was to be determined based on the landowners' own likely future usage of the property, and that within the scope of such likely usage, an objective assessment would be made. The court of appeal had not made any such specific assessment of likelihood taking each property's actual usage into account. The assessment of foreseeability was then based on a possible, not on a likely, operational shift. The objective approach to the assessment of foreseeability, which did not take into account how each landowner would have exploited the property, had resulted in a too general and standardised assessment of the likelihood of future operational shifts, both for landowners who cultivated the land themselves and for those who rented it out. The court of appeal's reappraisal thus suffered from errors in the application of the law and was set aside as far as the appeal concerned.
The Supreme Court HR-2017-2338-A (case no. 2017/520), civil case, appeal against judgment.
Judgment
5 December 2017
Law of torts. Employer's liability.
An assistant for a man in need of care had helped the latter using an internet bank. In connection with that, he had acquired the user's personal code and embezzled material amounts from his account. The embezzlements persisted after the employment relationship had been terminated, as the assistant had stolen the user's code device. The assistant's employer accepted employer's liability pursuant to the Compensatory Damages Act section 2-1 no. 1 for the embezzlement carried out during the period the assistant was in service and immediately thereafter. The majority of the Supreme Court concluded that the embezzlements from the period that followed were not comprised by the employer's liability, as this part of the loss was not suffered "during the employee's performance of work". The employer was found for. Dissent 3-2.
The Supreme Court HR-2017-2292-A (case no 2017/884) civil case, appeal against judgment.
Judgment
4 December 2017
Employment law. Transfer of an undertaking.
A personal assistant employed to provide user-managed personal assistance in accordance with health care legislation, was laid off when the specific user changed service providers. The Supreme Court concluded, like the court of appeal, that the change of providers was a transfer of an undertaking pursuant to the Working Environment Act section 16-1, and that the assistant was thus entitled to continued employment with the new provider. The unit consisting of five persons assisting the user was clearly separated from the provider's other business activities and constituted a separate economic entity. Also, the economic activity remained mainly the same after being transferred to the new provider. Both the entity requirement and the identity requirement were thus regarded as fulfilled.
The Supreme Court HR-2017-2277-A (case no 2017/789) civil case, appeal against judgment.
4 December 2017
Judgment
Criminal law. Serious bodily harm. Shaking. Duty to act. Sentencing.
Punishment for violation of the Penal Code 2005 section 274 subsection 2 and section 288 was imprisonment of seven years. The defendant had shaken his four-week old daughter with so much force that she suffered permanent and serious brain damage, and he convinced the mother not to seek medical care until after 32 hours.
Supreme Court HR-2017-2282-A (case no. 2017/1507), criminal case, appeal against judgment.
30 November 2017
Judgment
Criminal procedure. Duty of confidentiality. Limited access to patient record.
In a criminal case pursuant to the Penal Code 1902 section 195 et seq., the guardian of the aggrieved party had consented to lifting of a special psychologist's duty of confidentiality with regard to a written statement the psychologist had made and her testimony in that respect. The prosecutor and the defence counsel had gained access to the record notes that made basis for the statement, and which the court of appeal had ordered the aggrieved party and the guardian to present. In the appeal against the court of appeal's judgment, the defence held that, due to the circumstances, not giving access to the entire record was a procedural error. The Supreme Court stated that the scope of the underlying material to be presented in such cases must be determined by the court pursuant to the Criminal Procedure Act section 294. The aggrieved party cannot limit the exemption from the duty of confidentiality in such a manner that there is a genuine chance that the court's obligation pursuant to the Criminal Procedure Act section 294 cannot be met. In that case, the court must decline the statement from the witness in question. The Supreme Court concluded that the limitation ordered by the court of appeal did not entail that there was a genuine chance that the case would not be fully clarified. Thus, it was not a procedural error that access had not been given in the entire journal. The appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2017-2262-A (case no. 2017/1253), criminal case, appeal against judgment.
30 November 2017
Judgment
Law of damages. Patient injury. Acceptance of risk.
A woman who had undergone surgery for urine incontinence was inflicted with injuries both during the surgery and during the subsequent correcting surgery. The injuries entailed a medical invalidity degree of 20-24 percent. It was not held before Supreme Court that the treatment was negligent, and the Supreme Court concluded that the woman was not entitled to compensation pursuant to the Patient Injury Act section 2 subsection 3. The injuries were not disproportionate to her medical condition before the first surgery, and it was emphasised that section 2 subsection 3 is an exemption only to be applied when there is a distinct deviation from the risk patients must accept before undergoing surgery.
The Supreme Court HR-2017-2270-A, (case no. 2017/1010), civil case, appeal against judgment.
29 November 2017
Judgment
Criminal law. International law. Catching of snow crab.
A Lithuanian vessel had been catching snow crab on the Norwegian continental shelf in the Loophole, without a Norwegian permit. The Supreme Court concluded, like the Court of Appeal, that the act committed was punishable under the penal provision in the Maritime Resources Act section 61, cf. section 16, cf. Regulation on the Prohibition against Catching of Snow Crab section 1. The Norwegian participation in the Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries (the NEAFC Convention) did not involve consent to a vessel with a Lithuanian permit catching snow crab in the Loophole. The provisions on control measures in the Northeast Atlantic Fisheries Commission's NEAFC Scheme did also not involve consent. Norway was thus not subject to any obligation under international law to accept catching of snow crab in the Loophole from a Lithuanian vessel without a Norwegian permit, see the Maritime Resources Act section 6.
Suprme Court HR-2017-2257-A (case no. 2017/1570), criminal case, appeal against judgment.
29 November 2017
Judgment
Tax law. Depreciation. Leasing.
A leasing company that was wholly owned by a car importer had leased out cars to the importer's dealers. The leasing agreement had a maximum term of 12 months. At the same time, the importer had committed to repurchase the cars after three years. The Supreme Court found, like the court of appeal, that the leasing company could claim tax depreciation on the cars as business assets, see the Tax Act section 6-1 and section 6-10 subsection 1, cf. section 14-30 et seq. It was held that the leasing company, under the depreciation rules, was to be regarded as the owner of the leased cars during the leasing period, and that the agreements with the car importer and the dealers did not imply that the leasing company could be protected against a drop in value due to wear and tear or old age.
Supreme Court HR-2017-2248-A (case no . 2017/880), civil case, appeal against judgment
28 November 2017
Judgment
Expropriation. Validity of an administrative decision. Impact assessment.
A municipality in Troms had adopted a zoning plan for a road project that would have consequences for the reindeer husbandry in the area. The reindeer grazing district and the affected herders were not supported by the Supreme Court's majority in their submission that the subsequent expropriation decision was invalid since no impact assessment had been carried out prior to the adoption of the zoning plan. The costs, that were to be determined based on the estimate at the commencement of the zoning work, not at the time of the decision, were not sufficiently high for an impact assessment to be initiated. The majority also referred to what had been known to the local authorities regarding the consequences of the road project for the reindeer husbandry, and concluded that there was no genuine possibility that an impact assessment would have altered the decisions that had been made. The lack of an impact assessment could therefore not entail an annulment of the compulsory purchase order pursuant to section 41 of the Public Administration Act. The measures were also below the threshold for being considered a violation the UN International Covenant on Civil and Political Rights (SP) Article 27. Dissenting votes 3-2.
Supreme Court HR-2017-2247-A (case no. 2017/426), civil case, appeal against judgment.
28 November 2017
Judgment
Criminal law. Compulsory mental health care. Anti-social or particularly troublesome offence.
Over a short period of time, a psychotic perpetrator had committed a series of crimes for profit. These were repeated offences of a particularly troublesome nature, and there was also a significant risk of repetition. The Supreme Court's majority of four justices concluded nevertheless, as opposed to the lower instances, that the conditions for imposing compulsory mental health care pursuant to the Penal Code 2005 section 62 subsection 1 second sentence, cf. section 20 subsection 1 b, were not met. It was mentioned that a specific plan existed for treatment and follow-up of the defendant. The plan was not dependent on a judgment imposing compulsory mental health care. The conditions in the Penal Code section 62 that the measure must be necessary and that other measures must have turned out clearly ineffective were thus not met. The defendant was acquitted. Dissent 4-1.
Supreme Court HR-2017-2249-A (case no. 2017/1615), criminal case, appeal against judgment.
15 November 2017
Judgment
Copyright. Adaptations. Il Tempo Gigante.
The puppet film Flåklypa Grand Prix [The Pinchcliffe Grand Prix], which premiered in 1975, was produced by Caprino Filmcenter AS. The film company had acquired the rights to use characters from the so-called Flåklypa universe, created by the artist and writer Kjell Aukrust. The fantasy car Il Tempo Gigante played a central part in the film. The car was based on a drawing by Aukrust and built by Bjarne Sandemose, who was employed by the film company.
The Aukrust Foundation, which manages the copyrights in Aukrust's work, later licensed the theme park Hunderfossen Familiepark AS the right to build a rollercoaster with a carriage inspired by "Il Tempo Gigante". The film company did not succeed with its claim that the carriage – called "Il Tempo Extra Gigante" – infringed Sandemose's copyright in the adaptation of Aukrust's earlier drawing. Sandemose had added elements to the car that are protected as adaptations under the Copyright Act section 4. This protection was, however, limited to the refined artistic expression with a high level of finish that Sandemose had added. These features had not been copied in "Il Tempo Extra Gigante", which has an industrial look.
The Supreme Court further concluded that the film company could not stop Aukruststiftelsen and Hunderfossen Familiepark AS from using the name "Il Tempo Extra Gigante". The Copyright Act section 46 does not grant any title protection to the adapter that prevents the original author from using the name he has given to his work.
Supreme Court HR-2017-2165-A (case no. 2017/542), civil case, appeal against judgment
14 November 2017
Judgment
Property law. Right of preemption in long-term ground lease.
A long-term ground lease was subject to provisions on mutual right of preemption for the lessor and the lessee. The Supreme Court concluded, like the lower instances, that the lessor's right of preemption had not lapsed under the 25-years rule in the Act relating to preemption and similar rights [løysingsrettslova] section 6 subsection 1, as the exemption in section 6 subsection 2 a) was applicable. It was stated that the building with the accompanying right to lease had to be regarded as a different property, and that the term "ground" must be deemed also to include a right of preemption to the right to lease ground. The wording in section 6, cf. section 1 suggests this, and preparatory works emphasise that a right of preemption in ownership and in leases should be equal.
The Supreme Court HR-2017-2160-A (case no. 2017/792), civil case, appeal against judgment
11 November 2017
Judgment
Law of damages. Incorrect information from architect. Reduced value.
In connection with a housing development project, the project architect had given incorrect information to the development company regarding the houses' primary rooms. The company, that had used this information in its marketing, gave the buyers a discount, and succeeded in the Supreme Court with its claim for a refund against the architect. The basis for the claim was not disputed. The buyers were entitled to a discount because they received an area that was smaller than agreed, see the Construction of Homes Act section 33, and the discount entailed a financial loss for the company. Thus, it was irrelevant that the company had sold identical houses for the same price shortly after the wrong information had been corrected.
Supreme Court HR-2017-2102-A (case no. 2017/651), civil case, appeal against judgment
9 November 2017
Judgment
Tax law. Rural commons. Taxation on gains.
Two rural commons had been subjected to tax for gain in connection with sale of land. The Supreme Court concluded, like the previous instances, that commons were not comprised by the Tax Act section 2-2 as taxpayers. Based on a review of the sources of law, in particular the history of the law, it was concluded that commons are not subject to taxation. This entails any gain from the sale of land, like other gains deriving from the commons, are not subject to taxation on the part of the commons, but on the part of those with rights of common. The tax liability of the commons is limited to the commons account, which, however, many also not be taxed for gain in connection with sale of land from the commons. The tax assessment was deemed invalid.
Supreme Court HR-2017-2125-A (case no. 2017-832), civil case, appeal against judgment
1 November 2017
Judgment
VAT. Adjustment. Capital goods.
Avinor AS, a company developing, owning and managing civil airports in Norway, had performed work on public roads near three airports in connection with upgrading. Upon completion, the roads were transferred free of charge to the public authorities. The state succeeded in its claim that Avinor was to re-allocate deducted input VAT on the roadwork pursuant to the provision on adjustment of input VAT in the VAT Act chapter 9. The measures concerned fell within the scope of the VAT Act section 9-1 subsection 2 b. There was no basis for interpreting the law restrictively, and it was not a condition for applying the adjustment rules that the property constituted a business asset. A minority of two justices found that no adjustment obligation is triggered when infrastructure is transferred free of charge to the public authorities.
Supreme Court HR-2017-2065-A, (case no. 2017/848), civil case, appeal against judgment.
31 October 2017
Judgment
Real property. Property law. Cabin. Cohabitation.
A man who had paid for and built a cabin on a lot owned by his then partner did not succeed in a claim that the property was jointly owned by him and his former partner. There was no adequate legal basis for establishing joint ownership, not in the form of an agreement, inaction or otherwise. His alternative submission that he owned the entire cabin and had a right to point-lease was also unsuccessful. The Supreme Court concluded that the Act relating to accidental ownership section 8 was applicable also in a situation as the one at hand, where the cabin was built on someone else's land in accordance with an agreement, and not only due to misunderstandings or errors. The claim for compensation pursuant to the said Act section 10 was limited.
Supreme Court HR-2017-2064-A, (case no. 2017/765), civil case, appeal against judgment.
31 October 2017
Judgment
Immigration law. Travel documents for refugees.
Three refugees with residence permit in Norway were denied issuance of travel documents due to doubt about their identity. The Supreme Court stated, basing its decision on the Refugee Convention article 28, pursuant to which refugees are entitled to travel documents "unless compelling reasons of national security or public order otherwise require", see the Immigration Act section 64 and the Immigration Regulation section 12-1, that it is consistent with the Convention not to issue travel documents if it is more likely that the identity stated is false.
The Supreme Court held that false identification documents constitute a serious security risk and that the trust in Norwegian travel documents may be reduced if such documents are issued to persons with uncertain identities. For one of the refugees, the Supreme Court unanimously concluded that it was more likely that the identity he stated when applying for a travel document was correct. It was emphasised that he had only used a different identity once for a short period of time, and that he had stayed in Norway for a long time under the same identify without there being indications that this identify was false. For the other two, who had stated five and three different identities respectively when staying in other countries, the Supreme Court's majority concluded that their identity had not been substantiated. Dissent 4-1.
Supreme Court HR-2017-2078-A, (case no. 2017/670), civil case, appeal against judgment.
18 October 2017
Judgment
Law of damages. Recourse. Fire in apartment building. Negligence.
A fire broke out during defrosting of a frozen water pipe in an old apartment building. The water pipe was placed in a closed kitchen shaft, and the defrosting was carried out by placing a hair dryer into a small hole in the shaft. The Supreme Court's majority concluded that the damage was caused by gross negligence, so that the wrongdoer's insurance company had to pay the restoration costs to the extent covered by his general insurance, cf. the Compensatory Damages Act section 4-3, see section 4-2. When assessing the care exercised, great emphasis was placed on the wrongdoer's lack of control of what was inside the hole. The wrongdoer's negligence was also deemed to be gross, since the action entailed a material risk of damage which required a heightened level of care. Dissent 3-2.
The Supreme Court HR-2017-1977-A (case. No. 2017/613), civil case, appeal against judgment.
23 October 2017
Judgment
Child welfare. Visitation rights. Weak bond.
The municipality had taken a seven-week old boy into care pursuant to the Child Welfare Act section 4-19. In a case raised by his parents to obtain a right to visit the boy, who was then three and a half years old, the Supreme Court concluded that there must be special and strong reasons for denying such access, also when the connection to the child's parents is merely biological. The fact that the boy neither knew nor had any bond with his parents was not deemed decisive, as even in such cases a child will benefit from having a certain knowledge of his or her biological origin. Based on the purpose of access, the boy's age and his vulnerability, the Supreme Court decided to allow visitation together with the boy's foster parents, with a duration of one hour once a year under the supervision of the child welfare service.
The Supreme Court HR-2017-2015-A, (case no. 2017/614), civil case, appeal against judgment.
Judgment
18 October 2017
Criminal law. Sentencing. Illegal lobster fishing.
A former professional fisherman was sentenced to prison for 21 days for violation of the Marine Resources Act section 61, see section 16, and for violation of the Weapons Act section 33. He had been fishing lobster out of season and to some extent with illegal gear. Some of the lobsters were 'berried lobsters', with fertilised eggs attached to their tails, and some were smaller than the minimum allowed size. The concerns of general deterrence, a previous sentence and a number of fines for similar offences were considered aggravating circumstances. Neither the fisherman's age (82) nor his admission of guilt was given weight. He was also deprived of his right to engage in fishing and ordered to hand in his vessel and fishing gear. For a period of four years, he had exercised his commercial permit under the Participation Act [relating to the right to participate in fishing and hunting] section 4 on a different vessel than the one for which the permit was granted. This was not a violation of the Participation Act section 4, and he was acquitted of this count of the indictment.
The Supreme Court HR-2017-1978-A, (case no. 2017/1268), criminal case, appeal against judgment.
Judgment
12 October 2017
Criminal law. Dual criminality. Money laundering abroad.
A woman indicted for negligent money laundering had been acquitted in the district court. She had allowed a transfer of money from fraud committed in Norway to an account she managed in the United Arab Emirates, and had then withdrawn most of the deposits in cash from various banks in Dubai. According to the Supreme Court, it follows from the Penal Code section 5 that punishment in Norway for negligent money laundering committed in the United Arab Emirates requires that negligent money laundering is also punishable in the United Arab Emirates. It was held that the prosecution authority has the main responsibility for establishing whether dual criminality exists, and that the court must have been able to establish on adequate grounds that the act is punishable also in the country in which it was committed. After reviewing the sources of law presented, the Supreme Court concluded that negligence seems to fall outside the scope of criminality for money laundering in the United Arab Emirates. The appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2017-1947-A, (case no. 2017/1060), criminal case, appeal against judgment.
Judgment
12 October 2017
VAT. Deduction for input VAT in connection with lease.
A company that was voluntarily registered in the VAT Register under the VAT Act section 2-3 subsection 1 a had claimed deduction for input VAT in connection with building of business premises. Before the building started, an agreement had been entered into with the contractor regarding lease of a substantial part of the premises. The Supreme Court concluded that no deduction could be made for input VAT for the part of the building that was to be leased by the contractor. For there to be a basis for voluntary registration of a building under construction, it must be clarified who will be the lessee and that the premises will actually be used for business activities subject to VAT. It was not set out in the agreement between the parties that the premises would primarily be used for the contractor's business activities subject to VAT. It was not sufficiently clarified who would be the lessee or whether the premises would be used for business activities subject to VAT. The VAT Appeals Board's decision regarding reversal of deducted VAT was thus valid. As for the surcharge, see the then VAT Act section 21-3 subsection 1, the Supreme Court held that the lessor should have understood that the construction chosen was not likely to be covered by the VAT rules. If the company was in doubt, further inquiries should have been made. The conditions for surcharge were thus met. This part of the Appeals Board's decision was also valid.
The Supreme Court HR-2017-1948-A, (case no. 2017/237), civil case, appeal against judgment.
Judgment
11 October 2017
Employment law. Termination. Downsizing. Length of service. EEA law.
Two foreign employees who had been terminated due to downsizing, see the Working Environment Act section 15-7, were unsuccessful with their claim that employment in foreign companies in the same group must count when estimating length of service in connection with downsizing. The non-application of the length of service in the group constituted neither direct nor indirect discrimination of the employees, see the EEA Agreement article 28. The applicable collective bargaining agreement also contained a provision stating that the length of service in the company must count in connection with downsizing. A statement in the preparatory works suggesting the opposite did not give sufficient legal basis for setting this provision aside. The employer was found for.
The Supreme Court HR-2017-1943-A, (case no. 2017/606), civil case, appeal against judgment.
Order
10 October 2017
Civil process. Arbitration. Dismissal.
A Norwegian shipping company that had ordered ships from a shipyard in China had decided to use engines from a German supplier. The shipyard entered into a contract with this supplier. The contract contained a provision for arbitration in China. Later, the shipyard entered into a contract with the engine supplier's Danish subsidiary regarding purchase of more engines. This contract contained a provision for arbitration in Denmark. The Supreme Court heard the case in chambers, and dismissed the shipyard's claim for damages against the engine supplier with regard to the engines that had been purchased by the Danish subsidiary, since the claim was covered by the arbitration clause, see the Arbitration Act section 7 subsection 1. The fact that the claim was based on non-contractual liability was not deemed decisive, as there was a sufficiently close connection between the claim and the contract entered into. On the other hand, the claim for damages was not dismissed with regard to the engines that had been supplied to the shipyard in China. The relevant arbitration clause governed the relationship between the shipyard and the engine supplier, and the shipping company was not a party to this contract. The claim for damages was also a different claim than the one the shipping company could have filed against the engine supplier.
The Supreme Court HR-2017-1932-A, (case no. 2017/136), civil case, appeal against judgment.
Judgment
29 September 2017
VAT. Right of deduction for input VAT. The affiliation requirement.
A holding company purchased the shares of a company that rented out a building to a company engaging in business subject to VAT. The holding company and the subsidiary were later registered as one taxable entity, see the VAT Act section 2-2 subsection 3, and demanded deduction for input VAT on advisory services in connection with the purchase of the subsidiary, see the VAT Act section 8-1. The Supreme Court referred to the fact that the advisory services had been provided for the share purchase and had no natural and close affiliation with the business subject to VAT. The starting point was that no deduction was to be given for input VAT. The joint registration did not alter the affiliation requirement. The rules on retrospective tax settlement under the VAT Act section 8-6 were also not applicable. The company's failure to initiate a clarification of the set of rules was regarded as negligent, thus the conditions for imposing additional VAT were also met. The district court's judgment for the defendant was upheld.
The Supreme Court HR-2017-1851-A, (case no. 2017/484), civil case, appeal against judgment.
Judgment
28 September 2017
Law of torts. Control liability. Scope of the right to claim compensation.
The person with control liability for the building of a house with a separate studio flat had given incorrect information to the municipality regarding a firewall between the studio flat and the rest of the house. The costs of rectifying the lack of fire safety were covered by the insurance company that had issued a transfer of ownership insurance in connection with a subsequent sale. The insurance company demanded compensation for the paid-out amount from the person with control liability. The claim was disallowed by the Supreme Court. It was held that such a general assessment on which any non-statutory liability for contract performance facilitators must be determined, did not justify the claim for compensation. It was further held that the person with control liability had not been grossly negligent, that the constructional defects concerned could be rectified at relatively limited costs and that the incorrect basis for the certificate of completion had not placed the last buyers in a particularly difficult position.
The Supreme Court HR-2017-1834-A, (case no. 2017/193), civil case, appeal against judgment.
Judgment
28 September 2017
Criminal law. Sentencing. Contact ban. Reverse violence alarm.
A person convicted in the court of appeal for violation of the Penal Code 1902 section 132a and for threats against an ex-girlfriend and repeated breach of the restraining order with regard to her, was, as part of the sanction, imposed with a contact ban involving electronic supervision for a period of one year within an exclusion zone covering most of Østfold county and a large part of Akershus county, see the Penal Code 2005 section 57.
The Supreme Court considered the disadvantages the electronic supervision entailed for the convicted person and concluded that the arrangement, despite the substantial limitation of the freedom of movement in addition to the prohibition against being present in a specific area, has sufficient legal basis. Because of the convicted person's repeated and serious violations of the restraining order and contact ban, the Supreme Court agreed with the court of appeal that the necessity requirement was met. The intervention was also not disproportionate when balancing the disadvantages the prohibition entailed against the need for protection of the aggrieved person. The convicted person's appeal against the sentencing was dismissed.
The Supreme Court HR-2017-1840-A, (case no. 2017/867), criminal case, appeal against judgment.
Judgment
15 September 2017
Property law. Ground lease. Rent.
A hunters and anglers' association had leased three plots of land from Statskog SF and built cottages on them. The majority of the Supreme Court found that the plots must be regarded as land for holiday houses for the association and its members, with the consequence that the rent must be adjusted for changes in the money value, see the Ground Lease Act section 15 subsection 1. It was mentioned that the preparatory works did not contain any limitation or specification of the meaning of "holiday houses". Thus, it had to be of relevance whether or not the plots were leased for commercial purposes. On this point, however, the parties agreed that neither the association nor its members profited financially from the agreements. Considered in isolation, whether the lessee was a private individual, a joint property, a union or an association was deemed irrelevant. The association also succeeded in its submission that Statskog SF had a contractual obligation to reduce the rent. Dissent 3-2.
Supreme Court HR-2017-1780-A, (case no. 2017/197), civil case, appeal against judgment.
Judgment
15 September 2017
Criminal law. Sentence. Serious welfare fraud.
The punishment for violation of the Penal Code 1902 section 270 subsection 1 no. 1, cf. subsection 2, cf. section 271 was two years and six months of imprisonment and loss of rights, cf. the Penal Code 1902 section 29, cf. section 33a. The convicted person had personally committed welfare fraud of around NOK 600,000 and was complicit in welfare fraud of nearly NOK 2.5 million. He was complicit in the sense that he, as a general manager, had confirmed the employment and income of seven persons to the Norwegian Labour and Welfare Organisation (NAV), despite the fact that the employment relationships were fictitious. The fraud was committed in an organised manner over a long period of time. In the sentencing, the acts of complicity were regarded as particularly serious. When the Supreme Court heard the case, three years had passed since the indictment was issued. The case of the convicted person had not been referred to the Supreme Court until after the cases of the other defendants were decided, nearly one year and eight months after the indictment. This did not constitute a breach of the Constitution Article 95, cf. ECHR Article 6 no. 1. In accordance with general practice, a reduction of the sentence was nevertheless granted due to lengthy proceedings, primarily in the court of appeal.
Supreme Court HR-2017-1781-A, (case no. 2017/1001), criminal case, appeal against judgment.
Judgment
15 September 2017
Contract law. Binding agreement. Re integra.
A contracting party revoked its acceptance of an offer 10 days after the offer had been made. The Supreme Court concluded that a binding agreement had been entered into, as the accepted offer regulated the central terms. There was also no condition that the agreement was signed which would imply that an acceptance by e-mail was not binding. Furthermore, it was stated that events occurring after an agreement is entered into may constitute a special reason for allowing a party to revoke a promise within the meaning of the re integra rule in the Contracts Act section 39 second sentence, but that it is difficult, in practice, to apply this rule when an agreement is entered into between professional and equal parties. In the specific assessment, the Supreme Court concluded, as opposed to the court of appeal, that the passivity the promisee had exercised after the agreement was entered into was not sufficient for the promisor to revoke its acceptance of the offer under the re integra rule. The court of appeal's judgment was set aside, cf. the Dispute Act section 29-23 subsection 4 second sentence, cf. subsection 3, cf. section 30-3.
Supreme Court HR-2017-1782-A, (case no. 2017/400), civil case, appeal against judgment.
Judgment
15 September 2017
Criminal law. Sentence. Gross corruption abroad.
The punishment for violation of the Penal Code 1902 section 276a, cf. section 276b, was seven years of imprisonment. The case concerned two separate acts of serious corruption committed by a former legal director in a major industrial company. In connection with the company's negotiations of cooperation agreements in Libya and India, he had entered into an agreement involving payments of substantial amounts to central public officials. Introductorily, the Supreme Court stated that there is no basis for a reduced sentence when the corruption is committed towards a public official in a country with widespread corruption. In the actual sentencing, it was emphasised that the corruption was committed towards high-ranking public officials, that the convicted person played a central role in the planning and execution of the corruption, and that it involved substantial amounts. It was also mentioned that it is the risk of damage, and not the actual damage, that is decisive under the relevant anti-corruption provisions.
Supreme Court HR-2017-1776-A, (case no. 2017/674), criminal case, appeal against judgment.
Judgment
5 September 2017
Environmental law. Compensation. Removal of hazardous waste.
A company licensed to carry out management of electrical and electronic waste (EE waste) had delivered such waste to a processing plant operating in leased premises. The company operating the processing plant went bankrupt, and the estate abandoned substantial amounts of EE waste in the vacated premises. The waste management company was discharged from the claim for compensation from the owner of the premises for future costs for removal of the waste. The Supreme Court held that the waste management company was liable towards the general public pursuant to the Waste Regulation section 1-18 until the waste was safely removed in accordance with regulations. It had to be assumed that the measures could impact the general public, which meant that the conditions for compensation from the person liable pursuant to the Pollution Control Act section 76 subsection 2, cf. section 77 subsection 2 were not met. The case did not concern pollution damage, so the claim could not be based on the Pollution Control Act section 55, cf. 53 subsection 3. The Pollution Act section 77 subsection 2 had to be regarded as an exhaustive special regulation of the payment obligation in a case like the one at hand, which meant that liability could also not be substantiated under the non-statutory rules on strict liability and liability for negligence.
Supreme Court HR-2017-1690-A, (case no. 2017/2433), civil case, appeal against judgment.
Order
4 September 2017
Criminal law. Complicity. Violation of restriction on correspondence and visitation.
A former lawyer was indicted for violation of the Penal Code 2005 section 170 a, cf. section 15. He had forwarded telephone conversations from clients in custody with correspondence and visits restraints and let them borrow his mobile phone during client meetings. The district court and the court of appeal had allowed handing over of material seized pursuant to section 205 subsection 3 of the Criminal Procedure Act. The Supreme Court, which heard the case in chambers, concluded that correspondence and visitation restrictions imposed in committal orders are not "prohibitions" within the meaning of the law. Such orders give the prosecution a right, but not an obligation, to carry out the measure. Nor is the convicted person made the subject who can be imposed with an obligation. When, consequently, the convicted person cannot be punished for having had contact with third parties despite the imposed restraints, one cannot punish others for having been complicit in the convicted person's actions. The order of the court of appeal was set aside due to incorrect application of the law.
Supreme Court HR-2017-1673-A, (case no. 2017/970), criminal case, appeal against judgment.
Judgment
4 September 2017
Criminal law. Application of the law. Gross negligence in the performance of duties.
The court of appeal had acquitted a defendant pursuant to the Penal Code 1902 section 325 subsection 1. The defendant, who was a police prosecutor, had made a decision to arrest that was clearly not in accordance with the Criminal Procedure Act section 171 subsection 1 no. 2. The Supreme Court's majority of three judges concluded that the decision was a result of gross negligence in the performance of duties. Regarding the norm in the Penal Code section 324 subsection 1, it was held that a police officer's clearly unwarranted use of force is in principle regarded as grossly negligent, but that the specifics of the case may suggest that criminal liability cannot be imposed. In this case, no imminent risk of interference with evidence had been demonstrated. The fact that the police prosecutor had already decided to take the person in pursuant to the Criminal Procedure Act section 230, which the court of appeal had deemed decisive, was not enough to arrest him pursuant to section 171, either. The court of appeal's judgment and appeal hearing were set aside due to incorrect application of the law. Dissent 3-2.
Supreme Court HR-2017-1677-A, (case no. 2017/696), criminal case, appeal against judgment.
Judgment
4 September 2017
Criminal law. Sentence. Drugs. LSD.
The punishment for violation of the Penal Code 2005 section 231 subsection 1 was community sentence or 45 days of imprisonment. The convicted person had imported 13 125 micrograms of LSD, equal to 6.5 grams of pure amphetamine or 20 grams of amphetamine with a strength level of 30 %. The Supreme Court stated that, based on current knowledge, there was reason to reduce the sentence for involvement with LSD compared to previous practice. It was also held that LSD is slightly less dangerous than amphetamine, and that the sentencing level for LSD must therefore be slightly lower. A punishment of 60 days of imprisonment was considered adequate before correction for the specific circumstances of the case. Mitigating aspects were the convicted person’s confession and the fact that the import was for self-consumption. After an individual assessment, the Supreme Court concluded that community sentence was an adequate sanction.
Supreme Court HR-2017-1674-A, (case no. 2017/773), criminal case, appeal against judgment.
Judgment
4 September 2017
Criminal law. Sentence. Drugs. Various substances.
The punishment for violation of the Penal Code 2005 section 232 subsection 1, cf. section 231 subsection 1, was two years and five months of imprisonment. The convicted person had imported 1 200 grams of amphetamine, 1 178 tablets of MDMA and several other narcotic substances. In its judgment, the Supreme Court gave principal statements on sentencing when the convicted person, on one occasion, has imported different types of drugs. The different drugs are not to be converted to an imaginary amount of one substance. One must first identify the basis for each of the drugs the conviction concerns and then make a coordinating overall assessment. The punishment for the most serious substance forms the basis, and a certain addition is made for the other substances. In the actual sentencing, the punishment was somewhat reduced for the unconditional and immediate confession, but not for the consent to custody.
Supreme Court HR-2017-1675-A, (case no. 2017/618), criminal case, appeal against judgment.
Judgment
4 September 2017
Criminal law. Sentence. Drugs. Rehabilitation program supervised by the court.
The court of appeal had issued a sentence for violation of the Penal Code 2005 section 232 subsection 1, cf. section 231 subsection 1, of one year and seven months of imprisonment, of which one year and one month would be suspended if the convicted person completed a rehabilitation program supervised by the court, cf. the Penal Code 2005 section 34, cf. section 37 subsection 1 f. The person was convicted for involvement with around 88 litres of GBL. The Supreme Court suspended the entire sentence on the condition that the convicted person completed a rehabilitation program supervised by the court, as mentioned. The concern for the convicted person’s rehabilitation strongly suggested such a sanction. After a specific assessment, the seriousness of the crime and the concern for general deterrence were not given decisive weight.
Supreme Court HR-2017-1676-A, (case no. 2017/659), criminal case, appeal against judgment.
Judgment
31 August 2017
Criminal law. Sentence. Match-fixing. Serious corruption. Serious fraud.
The punishment for violation of the Penal Code 1902 section 276b subsection 1, cf. subsection 2, section 276a subsection 1 (a), and section 270 subsection 1 (1), cf. section 271 was two years of imprisonment for one of the three defendants (the principal) and 10 months of imprisonment for each of the two other defendants. The principal had agreed with the two other defendants, who were football players, that they, against a compensation, would try to produce a loss for their respective clubs in two matches in the same league round. He then obtained a gain by betting on the results he was trying to achieve through the agreement with the players. In its sentence, the Supreme Court considered the circumstances of the case to be somewhat different from those of more traditional corruption cases. The nature of the actions had to count more than the size of the gain. Particular emphasis was placed on the fact that the manipulation of the results also affected third parties. For the principal, it was emphasised that the actions seemed well prepared and with a professional touch. For the football players, it was emphasised that they had breached the basic trust between the club and the players, although they were primarily pieces in a game that the principal had orchestrated. Lengthy proceedings in the court of appeal were a mitigating factor for all three of them.
Supreme Court HR-2017-1663-A, (case no. 2017/822), criminal case, appeal against judgment.
Judgment
31 August 2017
Property law. Preemption. Merger.
The owners of a commercial property with two sections had entered into an agreement containing a provision on preemption “in the event of a sale” of the other owner’s section. The company owning one of the sections then merged with a third company. The Supreme Court concluded, like the previous instances, that the merger did not trigger any preemption. The argument was that a merger still involved ownership in a functional sense, and that it would give rise to a number of issues not regulated by the agreement between the parties if preemption should be triggered by the merger. The preemption provision in section 11 subsection 5 of the Act relating to preemption and similar rights [løysingsrettslova] was also not applicable.
Supreme Court HR-2017-1664-A, (case no. 2017/23), civil case, appeal against judgment.
Judgment
29 June 2017
Criminal law. Environmental crime. Archaeological finds. Duty to report.
The penalty for violation of section 27 of the Cultural Heritage Act, first penal option, cf. section 13, subsection 2 and section 255 of the Penal Code of 1902 was set at a term of imprisonment of 14 days. Over a period of six years and using a metal detector, the convicted party had found and kept a number of loose cultural objects from ancient and medieval times. These cultural objects were not reported as required by the law, even though the convicted party was aware of his duty to report such finds to the competent authorities. The Supreme Court pointed out that the general trend in the penalties for environmental crime also had to be of importance for determining an appropriate sentence for cultural heritage crime. The failure to report was considered the key aspect of the sentencing. It was considered a particularly aggravating feature that the convicted party had deliberately set aside his duty to report. The convicted party’s prolonged and firm resolve to set aside the provisions of the Cultural Heritage Act relating to protection of the collective cultural history had to result in a sentence of immediate imprisonment.
Supreme Court HR-2017-1298-A, (case no. 2017/562), criminal case, appeal against judgment.
Judgment
28 June 2017
Criminal law. Sentencing. Sexual assault. The internet
The punishment for violation of section 300 of the Penal Code of 2005, cf. section 299, section 291, section 302, section 311, subsection 1, section 37, subsection 1 of the Animal Welfare Act, cf. section 14, subsection 1, letter c), section 304, 263 and 305 of the Penal Code, cf. section 79 letter a) and b), was set at a term of imprisonment of 12 years. The assaults were committed through contact with minors over the internet, and included rape and other sexual intercourse, including sexual intercourse with animals. The assessment also included sexual acts against children and production and sharing of sexual abuse material, among other things. The Supreme Court stated that strong general deterrence considerations were highly applicable in the area in question, and that committing general sexual assault over the internet should not receive a milder punishment than other types of assault. As an aggravating feature, it was emphasised that the offences concerned cynical, targeted and grossly violent abuse against underage girls. In mitigation, some emphasis was placed on the convicted party’s confession.
Supreme Court HR-2017-1282-A, (case no. 2017/391), criminal case, appeal against judgment.
Judgment
28 June 2017
Criminal law. Sentencing. Qualified sexual act with a child under the age of 14.
The punishment for violation of section 299 letter c) of the Penal Code of 2005 was set at a term of imprisonment of one year and six months. The convicted party had touched an eight-year-old girl’s bare genitals with his hand while they were lying in the same bed. Reference was made to statements in the preparatory works of the Act that classifying a “qualified sexual act” with a child under the age of 14 as rape signals a significant sharpening of the previous penalty for such crimes. Dissent 4-1.
Supreme Court HR-2017-1283-A, (case no. 2017/412), criminal case, appeal against judgment.
Judgment and order
28 June 2017
International private law. The Lugano Convention. Choice of law. Foreign creditor.
A Norwegian bankruptcy debtor, which was a subsidiary of a Danish group, had granted a security interest in its existing and future accounts receivable as security for the group’s debt to a Dutch bank. Existing supply contracts were subject to English law. The Supreme Court concluded that the bankruptcy estate’s claim that the bank had no security interest in the accounts receivable at the commencement of the bankruptcy proceedings was covered by the bankruptcy exemption in the Lugano Convention Article 1 no. 2, letter b), and that policy considerations strongly suggested that disputes covered by this exemption were subject to the jurisdiction of the law of the country where the bankruptcy was declared. There were therefore no grounds for dismissing the bankruptcy estate’s action against the bank brought before a Norwegian court. As regards the choice of law, the Supreme Court concluded that the question of validity and perfection of the security interest should be decided according to the law of the debtor’s home country. This meant that the case in its entirety should be decided under Norwegian law.
Supreme Court HR-2017-1297-A, (case no. 2017/445), civil and case, appeal against judgment and case no. 2017/474, civil case, appeal against order.
Judgment
26 June 2017
Criminal law. Application of the law, Redistribution of images. Sexually offensive content. The term “against”
The court of appeal had found a 16-year-old boy guilty of violation of section 201, subsection 1, letter b of the Penal Code of 1902. He had taken pictures of the aggrieved party with a sexually offensive content, and sent the pictures to two of his frieds without her consent. The images were later distributed among the youth community. The Supreme Court overturned the Court of Appeal’s judgment at the main hearing due to incorrect application of the law. It was pointed out that the aggrieved party was neither directly nor indirectly the addressee for the forwarded images and the violation had not then been committed “against” her.
Supreme Court HR-2017-1245-A, (case no. 2017/645), criminal case, appeal against judgment.
Judgment
26 June 2017
Criminal law. Statement of reasons. Sexual act with a minor.
The Court of Appeal had convicted a man of violation of section 196, subsection 1 and section 200, subsection 3 of the Penal Code of 1902, cf. subsection 2 and section 197. The judgment concerned sexual acts against the defendant’s grandchild, who was aged 14 at the time. The defendant was acquitted by the District Court, which had found that he was asleep when the offences took place. The Court of Appeal had given decisive weight to the statement from an appointed expert. The Supreme Court pointed out that it was not sufficient to refer to the assessment of evidence made by the expert, and that the assessment of evidence remained unclear on several key points. These points were expressly discussed in the District Court’s acquittal, and the Court of Appeal was then obliged to explain further its assessment of evidence on these points. The Court of Appeal's judgment was overturned.
Supreme Court HR-2017-1246-A, (case no. 2017/511), criminal case, appeal against judgment.
Judgment.
26 June 2017
Criminal law. Sentencing. Animal welfare. Dog shock colour. Cruelty to animals.
The punishment for violation of section 37, subsection 2 of the Animal Welfare Act, cf. subsection 1, cf. Section 8 and 14, subsection 1, letter a, cf. section 3 of the regulations on the use of electric devices in dog training, was set at a term of imprisonment of 15 days. The convicted party had placed a dog shock collar - a so-called “dog bark collar” - on a German Shepherd to prevent the dog from barking. The continued use of a dog shock collar was not within what could be reasonably regarded as a necessary and proportional tool in the training of the dog. Although the shocks did not cause qualified pain, the use of the shock collar caused the dog unnecessary pain and therefore had to be regarded as form of “cruelty”, which comes under the penalty clause in section 14, letter a) of the Animal Welfare Act, cf. section 37. The Supreme Court's majority of four judges also believed that the final use of the dog collar without an electric shock came under section 14 of the Animal Welfare Act. In the sentencing, significant weight was given to general deterrence.
Supreme Court HR-2017-1250-A, (case no. 2017/508), criminal case, appeal against judgment.
Judgment
26 June 2017
Criminal law. Sentencing. Child abduction.
The punishment for violation of section 216, subsection 1, second sentence of the Penal Code of 1902 was set at a term of imprisonment of 120 days. The convicted party had taken her ‘daughter, for whom she and the father had joint parental responsibility, out of the country. The child was returned after approximately four months. When determining the sentence, it was emphasised that the offence was stressful for the father and that the convicted party had not thought better of it and returned the child voluntarily to Norway. The Supreme Court also agreed with the Court of Appeal’s point of view that the punishment should have been set at a term of imprisonment of six months, but contrary to the Court of Appeal, considered that the processing time did not provide grounds for reducing the penalty. However, the prosecuting authority had not requested harsher punishment in relation to the Court of Appeal's judgment of 120 days imprisonment, nor did the Supreme Court indicate a possible sharpening of the penalty.
Supreme Court HR-2017-1251-A, (case no. 2017/434), criminal case, appeal against judgment.
Judgment
26 June 2017
Criminal law. Sentencing. Obstruction of the administration of justice. Restraining order.
The punishment for violation of section 132 a, subsection 4, first penal option of the Penal Code of 1902, cf. subsection 1, letter a), section 157, subsection 1 of the Penal Code of 2005, cf. section 158, subsection 1 and Section 266 of the Penal Code of 2005 was set at a term of imprisonment of two years and eight months, of which eight months were suspended with a probationary period of five years. In connection with a forced sale process, the convicted party had intensely, persistently and systematically harassed several employees in the judicial system. The convicted party had also visited several of the properties sold by forced sale and had committed vandalism there. The conditions for determining a longer probationary period for the suspended part of the sentence, than is the starting point of the law, were met, cf. section 34, subsection 2 of the Penal Code of 2005. A restraining order that had been imposed and prohibited contact with the employees in the local district court was not continued.
Supreme Court HR-2017-1252-A, (case no. 2017/620), criminal case, appeal against judgment.
Judgment
26 June 2017
Tax law. Property tax. Right of judicial review. Depreciation.
When determining the property tax rate for power lines, cf. section 8A2 of the Property Tax Act, three municipalities had used a progressive depreciation curve when calculating the deduction for wear and tear, with an increase in value over 40 years and then a fixed residual value. As regards the question of the scope of the courts’ right of judicial review in cases concerning property tax, the Supreme Court concluded that the courts have full right of judicial review, but also stated that the courts should exercise restraint in reviewing the tax authorities’ discretionary assessment, if this is well considered and justified. The Supreme Court then concluded that the Progressive Valuation Model used was not consistent with the provision in section 5 of the former City Tax Act, on which section 8A-2 of the Property Tax Act has been based, and with the more detailed principles for the determination of sales value, as these were developed in case law. It was then stated that the deduction for wear and tear should be based on linear depreciation over the anticipated lifetime of the installation.
Gulating Court of Appeal LG-2015-175274 - Supreme Court HR-2017-1258-A, (case no. 2016/1956), civil case, appeal against judgment.
Judgment
22 June 2017
Competition law. Tender cooperation.
Two taxi companies, which through a wholly owned subsidiary had submitted joint tenders in two tender competitions regarding purchase of patient travel, were fined under section 29 of the Competition Act for violation of section 10 of the Act. The Supreme Court upheld the fine imposed. The two companies were considered potential competitors. The tender cooperation also appeared sufficiently injurious to competition that it was a restriction of competition by object pursuant to section 10, subsection 1 of the Competition Act, cf. the EEA Agreement Article 53.
Supreme Court HR-2017-1229-A, (case no. 2015/1026), civil case, appeal against judgment.
Judgment
22 June 2017
Reindeer husbandry law. Development.
A landowner had obtained approval for a zoning plan that allowed limited building of cabins on a reindeer grazing district’s spring, summer and autumn grazing pastures. Like the lower courts, the Supreme Court concluded that a development which followed the zoning plan would not cause material damage or inconvenience to reindeer husbandry, cf. section 63, subsection 1 of the Reindeer Husbandry Act. It was pointed out that the interests of reindeer husbandry had been taken into proper consideration in the planning process, and that the plan only involved a limited number of cabins, located among already existing cabins. There would also be no road to the site, and the cabins were to be of a simple standard, with no electricity, water or drainage. It was also pointed out that the problems related to gradual development had to be addressed at political level.
Supreme Court HR-2017-1230-A, (case no. 2016/2334), civil case, appeal against judgment.
Judgment
22 June 2017
Tax law. Tax-related ownership of a power plant
In connection with expiration of previous licences, an energy company had entered into an agreement with Statkraft regarding continued lease of the waterway to which the licences were attached, and regarding access to build new developments on the waterway, The energy company built a new power plant that was to be transferred to Statkraft at the end of the lease agreement. The Supreme Court concluded that it was the energy company and not Statkraft that for tax purposes was the owner of the new power plant, cf. section 18-2, subsection 1 of the Tax Act, and thus liable for natural resource tax, ground rent tax and property tax, as opposed to the other power plants that were covered by the agreement. Significant importance was attached to the fact that the energy company was referred to in the agreements as the owner of any new facilities, and that this proprietary position in relation to private law also had to form the basis for the assessment of ownership in relation to tax law.
Supreme Court HR-2017-1231-A, (case no. 2016/2035), civil case, appeal against judgment.
Order
8 June 2017
Breivik's appeal dismissed
Supreme Court HR-2017-1127-U, (case no. 2017/778), civil case, appeal against order.
Order
7 June 2017
Administrative law. Immigration law. Legal interest.
Following a decision to revoke citizenship and expulsion, the expelled party and her spouse and children brought action against the validity of the expulsion decision. Like the lower courts, the Supreme Court, which heard the case in chambers, concluded that the family members did not have an independent right to bring action against the validity of the decision, cf. section 1-3 of the Dispute Act. It was concluded that the family members were affected by the case in such a way that they have a right of appeal to ECtHR pursuant to ECHR Article 34 and that they then are entitled to an effective remedy under ECHR Article 13. However, this requirement was deemed to be fulfilled pursuant to the provisions of section 70 of the Immigration Act and section 17-3 of the Immigration Regulations, after which the family members’ claim that the expulsion decision violates their right to privacy under EHCR Article 8 may be fully examined properly in the mother’s case relating to the validity of the decision. They also have the possibility to declare accessory intervention, cf. Section 15-7, subsection 1, letter a) of the Dispute Act, and will then be able to influence the outcome of the case through presentation of evidence and procedure before the court. Dissent 4-1 regarding the reasons.
Supreme Court HR-2017-1130-A, (case no. 2017/160), civil case, appeal against order.
Judgment
7 June 2017
Criminal law. Human trafficking for forced labour. Application of the law. Sentencing.
The punishment for violation of section 224, subsection 1 b of the Penal Code 1902, cf. subsection 4, was imprisonment for three years and two months for one of the defendants and four years and six months for the other. The defendants, who were the respective managers of two garden centres, had used Indian seasonal workers for a number of years in such a way that the offence constituted gross human trafficking for forced labour. With reference to international and national sources of law, the judgment describes in detail the contents of the terms 'human trafficking' and 'forced labour'. In the specific assessment, it was pointed out that the workers were grossly underpaid, had to sustain difficult working and housing conditions, had limited freedom of action and movement, did not understand Norwegian and did not manage their own money. They knew they were part of an illegal system and were completely bound to and dependent on their employers. It was not decisive that the agreements on seasonal work had initially been entered into voluntarily.
Supreme Court HR-2017-1124-A, (case no. 2017/318), criminal case, appeal against judgment.
Judgment
7 June 2017
Building law. Reimbursement. Increase in value.
Rezoning of two industrial properties increased the real estate value due to increased utilisation. The zoning plan also included a new access road to the properties. In the municipality’s preliminary determination of the reimbursement for the access road pursuant to section 18-8 of the Planning and Building Act, the changed utilisation was emphasised as a value-adding advantage pursuant to section 18-7, subsection 2 of the Planning and Building Act. The decision was confirmed by the County Governor. Like the lower courts, the Supreme Court concluded that the County Governor had applied section 18-7, subsection 2 of the Planning and Building Act correctly. There was nothing in the preparatory works to indicate disregarding the value-reducing restrictions in the right of disposal in the applicable zoning plan, or the added value that lies in obtaining reimbursement measures so that the area is ready for construction, when assessing the value immediately before and after implementation of the measure. Considerations of legal policy also weigh heavily against ignoring the applicable zoning plan when assessing the increase in value. The Supreme Court found in favour of the State represented by the Ministry of Local Government and Modernisation.
Supreme Court HR-2017-1125-A, (case no. 2016/2077), civil case, appeal against judgment.
Order
7 June 2017
Enforcement. Forced sale. Legal mortgage.
In a case concerning distribution of the purchase price following a forced sale of a share in a housing cooperative, the Supreme Court, which heard the case in chambers, concluded that the housing cooperative’s legal mortgage for joint costs pursuant to section 5-20 of the Housing Cooperative Act also covers claims that arise after the housing cooperative’s request for forced sale has been allowed by the District Court, but only as long as the claim does not exceed 2 G. Pursuant to section 1-5 of the Mortgages and Pledges Act, which also applies to legal mortgage, all costs related to collection of the housing cooperative’s claim are also covered by mortgage law. In addition, interest on the mortgage claim, which has accrued before the decision date, is required to be covered in full as an additional requirement. This applies to the whole housing cooperative’s claim within the framework of 2 G. No interest or compound interest may be claimed on any excess amount. As the Court of Appeal’s ruling was based on another argument, the Court of Appeal and the District Court's rulings were overturned.
Supreme Court HR-2017-1129-A, (case no. 2016/2301), civil case, appeal against order.
Judgment
31 May 2017
Criminal law. Sentencing. Gross embezzlement. Violation of human rights.
The Court of Appeal had set the punishment for gross embezzlement of approximately NOK 1,750,000, cf. section 255 of the Penal Code of 1902, cf. section 256, to a term of imprisonment of 10 months. The case had been in the hands of the police for two and a half years, which was a clear violation of section 95 of the Norwegian Constitution and ECHR Article 6 no. 1. The Supreme Court found that the starting point for the assessment would be a term of imprisonment of one year and six months, and that the deduction of eight months represented proper compensation for the violation of human rights. The convicted person’s appeal against the sentencing was dismissed.
Supreme Court HR-2017-1072-A, (case no. 2017/111), criminal case, appeal against judgment.
Judgment.
31 May 2017
Real estate. Defects. Price reduction
A 12 year old residential property sold “as is”, cf. section 3-9 of the Alienation Act, had a hidden defect in the form of damp damage in the bathroom. The necessary repair involved an improvement in standard equivalent to approximately 40 per cent of the total cost of the repair. Like the lower courts, the Supreme Court concluded that when assessing whether the property was in “a substantially worse condition than the buyer had reason to expect based on the purchase price and the conditions otherwise”, it would be natural to use as a basis whatever was needed to return the property to the condition that the buyer could expect. In this way, the extent of the repair costs would be able to constitute a measure of the size of the deviation. The full repair costs would then have to be used without deduction for the improvement in standard. In the specific assessment, neither the purchase price nor the “conditions otherwise” indicated that the buyers had reason to expect the need for a comprehensive improvement of the bathroom. There was therefore a defect that gave rise to a reduction in price pursuant to section 3-9, second sentence of the Alienation Act. When calculating the price reduction, the advantage of an improvement in standard had to be deducted.
Supreme Court HR-2017-1073-A, (case no. 2016/2259), civil case, appeal against judgment.
Judgment
16 May 2017
Criminal law. Sentencing. Care evasion.
The punishment for violation of Section 216, subsection 1 of the Penal Code of 1902 was set at a term of imprisonment of five months. A father had persuaded his 16 year old daughter to leave a child welfare institution in order to travel to Sweden with him, where they lived in a caravan for two weeks. The judgment also included two other offences where had behaved in ways that were a burden on his daughter. There were no grounds for application of section 261 of the Penal Code of 2005, as the choice of law would not be affect the sentencing. The majority of the Supreme Court found that strong considerations of general deterrence indicated use of a prison sentence for anyone who withholds a child from the care of the child welfare services. Significant importance could not be attached to the fact that the daughter herself had chosen to leave the child welfare institution, as long as she did this after repeated requests by the father. The age of the daughter was not a mitigating circumstance. Dissent 4-1
Supreme Court HR-2017-970-A, (case no. 2017/340), criminal case, appeal against judgment.
Judgment
16 May 2017
Contract law. Intermediary agreement. Commission.
Over a period, two companies had discussed the possibility of combining the various products of the businesses. The owner of company A also helped introduce the other company’s products to a purchaser, and for several months, was the intermediary between company B and the purchaser. The contact resulted in more sales for company B. Company A made a claim against company B for commission for its work. There was no written or verbal agreement between the parties, and no joint agreement. When assessing whether company A had a legitimate expectation of commission, the Supreme Court’s majority of three justices concluded that this had to be assessed in light of the parties’ cooperation and joint interests in promoting each other’s products. The majority also emphasised that there was no agreement on any of the terms in a possible commission agreement. Therefore, company A did not succeed with the commission claim. A minority of two justices were of the opinion that there was a joint understanding between the parties regarding commission. Dissent 3-2.
Supreme Court HR-2017-971-A, (case no. 2016/2248), civil case, appeal against judgment.
Judgment
16 May 2017
Tax law. Discretionary tax assessment.
A company in the restaurant business had its tax and VAT basis for three fiscal years determined by discretionary assessment, cf. section 8-2 no. 1 of the Tax Assessment Act and section 18-1, subsection 1 of the VAT Act. The Supreme Court pointed out that there was a strong suspicion of failure to register cash payments, and that the reported total cash payments was much lower than for restaurants in the same category. The conditions for discretionary tax assessment were considered to have been met. The Supreme Court also concluded that the discretionary assessment the Tax Office had made when determining the tax and VAT basis, was neither arbitrary nor highly unfair. The discretionary assessment was clearly within the scope of the Tax Office. The conditions for imposing additional tax on the company were also considered to have been met. The court found in favour of the State represented by Tax Office Midt-Norge.
Supreme Court HR-2017-967-A, (case no. 2016/1977), civil case, appeal against judgment.
Judgment
16 May 2017
Criminal law. Sexual activity / sexual act. Application of the law.
The punishment for violation of Section 195, subsection 1 of the Penal Code of 1902, second penal option, section 192, subsection 1, letter a), section 197 and section 200, subsection 3, was set at a term of imprisonment of five years. The punishment concerned several cases of sexual activity and sexual acts with the convicted party’s daughter while she was under the age of 14. The violations of Section 195 of the Penal Code of 1902 consisted of the convicted party rubbing his erect penis against his daughter's back and bottom on the outside of her nightgown and panties. The Supreme Court concluded that this must be regarded as sexual activity. The fact that the convicted party’s penis had not been in contact with naked skin, could not lead to any other outcome. It was decisive that based on the context, the offence had been a surrogate for sexual intercourse for the defendant.
Supreme Court HR-2017-968-A, (case no. 2017/406), criminal case, appeal against judgment.
Judgment
16 May 2017
Criminal law. Preventive custody. Re-imprisonment. Breach of parole.
A woman, who was released on parole from protective custody on a number of conditions, including alcohol abstinence, was requested to be returned to protective custody after having drunk a half bottle of vodka, cf. section 46, subsection 1, letter a) of the Penal Code of 2005. The Supreme Court considered the breach of conditions to be material. The Supreme Court also found that there was a risk of reoffending. However, in the overall assessment to be made, the Supreme Court concluded that the request to return the defendant to protective custody should not be allowed. It was pointed out that the authorities had not provided treatment for the woman’s drug problem as determined by the conditions of parole, that returning her to protective custody would mean that she had to stop the treatment she herself had taken the initiative to commence, and that she would also have to leave the job she had been given in a sheltered workshop.
Supreme Court HR-2017-969-A, (case no. 2017/330), criminal case, appeal against judgment.
Judgment
15 May 2017
Insurance law. Recourse. Reduced liability for the tort feasor.
Following a fire, the tort feasors were served a final and enforceable district court ruling to pay compensation to the building owner’s insurance company. The liability was reduced pursuant to section 5-2 of the Damage Compensation Act. The insurance company then submitted a recourse claim against the tort feasors’ civil liability insurer for reimbursement of the entire compensation paid. The Supreme Court concluded that the civil liability insurers could not invoke the outcome of the final and enforceable district court ruling as a framework for their liability according to the provisions relating to derived subjective legal force, cf. section 19-15, subsection 1, second sentence of the Dispute Act. Section 7-6, subsection 4, first sentence of the Insurance Contracts Act could also not be construed as meaning that the considerations which had justified the reduction of the tort feasors’ liability, could also result in a reduction of the payment obligation for the civil liability insurers. Within the framework of the liability insurance agreements, they were ordered to cover the entire recourse claim
Supreme Court HR-2017-958-A, (case no. 2016/2051), civil case, appeal against judgment.
Judgment
15 May 2017
Gifts between spouses. Value claims.
Two vacation properties were transferred from one spouse to the other while the giver was insolvent. The recipient subsequently sold the properties and paid off the outstanding mortgage debt. The giver’s main creditor required compensation from the recipient for the value of the gift, cf. section 51 of the Marriage Act. Like the Court of Appeal, the Supreme Court concluded that the transfer was a gift, as the transfer involved a shift of wealth and had been done for gift purposes. The recipient had shown gross negligence, so that the enrichment limitation in section 51, subsection 2 of the Marriage Act did not apply. When determining the amount of compensation, this had to be based on the present value of the properties, and a deduction had to be made for repayment of the mortgage debt on the properties at the time the gift was given. There was no basis for reduction of the liability pursuant to section 51, subsection 3 of the Marriage Act.
Supreme Court HR-2017-959-A, (case no. 2017/15), civil case, appeal against judgment.
Judgment
11 May 2017
Criminal law. Illegal catch of red king crab. Sentencing. Confiscation.
The penalty for violation of section 61 of the Marine Resources Act, cf. section 16, subsection 2, cf. sections 10, 9 and 4 of Regulation no. 1002 of 28 July 2014 relating to control of catches of red king crabs in an area regulated by quotas, was set at a fine of NOK 25,000, or alternatively a term of imprisonment of 25 days, As the skipper of a fishing vessel with a catch quota for red king crab, the defendant had also been in an area regulated by quotas and an unregulated area at the same time, and still had crab traps in the sea in the regulated area after taking on board the annual quota. The Supreme Court concluded that the ban on catching red king crab in an area regulated by quotas did not come into effect until a full quota had been landed and not as a full quota was being taken on board. However, the ban then came into effect immediately, so that crab traps remaining at the time of landing either had to be taken up or emptied and closed. It was not sufficient that the crabs in the remaining crab traps were returned to the sea afterwards. The exemption clause in section 4 of the Regulations was not then applicable. When determining the amount the owner of the vessel had to pay under the confiscation order, it was possible to use the value of the catch in the remaining crab traps as a basis, even though the contents had been emptied into the sea by the Norwegian Coast Guard. Supervision and resource considerations required this. The defendant was ordered to pay a confiscation order of NOK 75,000.
Supreme Court HR-2017-930-A, (case no. 2017/99), criminal case, appeal against judgment.
Order
28 April 2017
Administrative law. Child welfare. Party rights. Grandparents.
After the county social welfare board had made the decision to take the three children into care, the chairman of the county social welfare board made the decision that the request for access by the children's grandparents, cf. section 4-19, subsection 4 of the Child Protection Act, should be put forward for consideration. Following action brought by the father, the decision was overturned by the District Court, with the agreement of the Court of Appeal. The Supreme Court overturned the District Court and the Court of Appeal's rulings and dismissed the case from the courts. It was pointed out that the matter concerned a case-law decision, and that this could not be examined in independent action. In this case, it had to be examined in connection with a judicial review of the county social welfare board’s decision, and then as an attack on the board’s processing.
Supreme Court HR-2017-847-A, (case no. 2016/1740), civil case, appeal against judgment.
Order
26 April 2017
Copyright. Protection of privacy. Access to the subscriber's identity.
The owner of the copyright to a film had requested the disclosure of subscription information about the IP addresses of subscribers that had downloaded all or parts of the film in connection with a file sharing network that used so-called BitTorrent technology. The Court of Appeal disallowed the request. The Supreme Court, which heard the appeal against the Court of Appeal's order in chambers, concluded that the Court of Appeal had interpreted section 56b, subsection 3 of the Copyright Act correctly. It was stated that pursuant to the preparatory works a specific assessment must be made in each case, where privacy considerations are weighed against the copyright holder's interests, and that the grounds for the Court of Appeal’s order had to be understood in such a way that the court was aware that privacy considerations had to be included in the assessment. Nor was it the wrong interpretation of the law that the Court of Appeal had attached importance to the fact that no evidence had been presented to substantiate that the violation was of “a certain extent”. The appeal against the Court of Appeal's order was dismissed.
Supreme Court HR-2017-833-A, (case no. 2016/2216), civil case, appeal against order.
Judgment
25 April 2017
Criminal law. Money laundering. Sentencing. Confiscation.
The punishment for violation of Section 317, subsection 1 of the Penal Code of 1902, cf. subsection 4, was set at a term of imprisonment of 4 years. By using fictitious invoices, the convicted party had helped launder approximately NOK 43 million. Inactivity in the case for a period of approximately 18 months was compensated with a deduction in the sentence of up to one year. The convicted party’s proceeds from the offence, amounting to NOK 1 million, were confiscated pursuant to section 34 of the Penal Code of 1902, cf. Section 37d. The prosecuting authority’s request pursuant to section 35 of the Penal Code of 1902, for confiscation of the whole amount the convicted party had handled, was disallowed. It was stated that confiscation of an amount in excess of his own proceeds money laundering would be disproportionate, that confiscation pursuant to section 35 of the Penal Code of 1902 against the money launderer did not meet the real purpose of confiscation in this case, and that there was concern about making the claim against the convicted party when the funds the prosecuting authority wanted confiscated were no longer in the possession of the convicted party.
Supreme Court HR-2017-822-A, (case no. 2017/24), criminal case, appeal against judgment.
Judgment
25 April 2017
Criminal law. Money laundering. Tax evasion. Sentencing. Confiscation.
The punishment for violation of Section 317, subsection 4 of the Penal Code of 1902, cf. subsection 1 and section 12-2 of the Tax Assessment Act, cf. Section 12-1, was set at a term of imprisonment of three years and nine months, as well as loss of civil liberties. By using fictitious invoices, the convicted party had helped launder more than NOK 45 million over a period of three years. Importance was attached to the convicted party’s unreserved confession and that the case had been inactive for 18 months. The prosecuting authority’s request pursuant to section 35 of the Penal Code of 1902, for confiscation of a significant part of the amount the convicted party had handled, was disallowed. The argument used in the judgment in case HR-2017-822-A, which was served earlier the same day, was pointed out.
Supreme Court HR-2017-823-A, (case no. 2016/2293), criminal case, appeal against judgment.
Judgment
25 April 2017
Criminal law. Pollution. Confiscation of proceeds.
A smolt producer, who was charged with violation of section 78, subsection 1, letter a) of the Pollution Act, cf. Section 7, subsection 1, was acquitted by the Court of Appeal due to his action being statute-barred It was also decided to confiscate the net proceeds from the violation, cf. section 34 of the Penal Code of 1902. The Supreme Court pointed out that confiscation pursuant to Section 34 does not have a pecuniary purpose, and further stated that although the confiscation was a penalty, it would not infringe ECHR Article 7, should guilt be established, which the Court of Appeal had done. Presumption of innocence under ECHR Article 6 no. 2 also did not prevent establishment of culpability in a case where the defendant was acquitted due to the action being statute-barred, but at the same time was ordered to pay a confiscation order, which was not punishment. The appeal against the Court of Appeal's judgment was dismissed.
Supreme Court HR-2017-821-A, (case no. 2017/69), criminal case, appeal against judgment.
Judgment
25 April 2017
Criminal law. Sentencing. Duty to prevent loss.
The punishment for violation of Section 139 of the Penal Code of 1902 was set at a term of imprisonment of eight months. The defendant had failed to report that another person had been stabbed with scissors a number of times, resulting in this person eventually bleeding to death. The Supreme Court stated that the obligation under section 139 to seek to prevent the consequences of a criminal offence does not occur if the consequence already taken place or is inevitable. However, the obligation occurs even if there should be a significant possible that an attempt to avoid the consequences does not succeed. The appeal against the Court of Appeal's decision was dismissed. When determining the sentence emphasis was placed on the defendant’s statement, which had helped clarify the case, that there had been a long processing time, and that the sentence had already been served in custody.
Supreme Court HR-2017-824-A, (case no. 2017/122), criminal case, appeal against judgment.
Order
20 April 2017
Civil procedure. Child welfare. Appeal denial. Grounds.
In a case concerning a care order pursuant to section 4-12 of the Child Welfare Act, cf. Section 36-10, subsection 3 of the Dispute Act, the Court of Appeal had dismissed an appeal against the District Court's judgment, without justifying the decision other than citing the wording of the law. The Supreme, which heard the appeal against the Court of Appeal’s decision in chamber, stated that there is no general obligation to state grounds in cases where the Court of Appeal does not give its consent pursuant to section 36-10, subsection 3 of the Dispute Act, but that proper proceedings imply that such decisions must be substantiated when it seems necessary to ensure a proper re-examination. The key point is that the grounds for the decision show that the question of denying consent for an appeal hearing has been fairly and properly considered. In all such decisions, the Court of Appeal must also state in summary the submissions in the appeal. The Court of Appeal’s grounds did not satisfy these requirements. Instead of setting aside the Court of Appeal's decision, the Supreme Court decided to deal with the practical aspects of the case and concluded that the conditions for agreeing to hear the appeal were not met, either pursuant to Section 36-10 letter b) or c) of the Dispute Act. The appeal against the Court of Appeal's decision was dismissed.
Supreme Court HR-2017-776-A, (case no. 2016/2336), civil case, appeal against decision.
Judgment
20 April 2017
Labour law. The Labour Court’s competence. Dismissal. Collective agreement
In a case that initially concerned whether an employer’s determination of selection sectors in connection with workforce reductions was according to the collective agreement, the Labour Court had ruled that the dismissal of three of the employees was not according to the collective agreement and invalid. The Supreme Court stated that, to the extent the Supreme Court provides a basis for this, the Labour Court has the competence to rule that a dismissal is invalid, with binding effect for the employer, cf. section 33, subsection 2 of the Industrial Disputes Act, cf. section 1, letter i). The essence of such a ruling is that the employer is obliged under the collective agreement not to implement the dismissal. The fact that the dismissal is ruled invalid under the collective agreement, does not prevent the employer from using alternative grounds for dismissal based on the individual employment contract, within the general framework of the Working Environment Act. The appeal by the employer and NHO against this point in the Labour Court’s judgment was dismissed.
Supreme Court HR-2017-777-A, (case no. 2016/1884), civil case, appeal against judgment.
Judgment
7 April 2017
Criminal law. Violent sexual abuse against children. Sentencing.
The Court of Appeal had set the punishment for violation of section 195, subsection 1 of the Penal Code of 1902, cf. subsection 2, section 192, subsection 1, cf. subsection 2 and 3 and section 199 as preventive custody with a maximum term of 17 years and a minimum term of 10 years. The judgment concerned extensive sexual offences, including two counts of rape against three children. One of the children was the convicted person’s stepdaughter and the offences against her were committed from when she was four up until she was seven years old. The convicted person also had a previous conviction for sexual offences against children. The appeal concerned the time frame for the preventive custody. The Supreme Court found that the time frame should correspond to the length of the prison sentence the convicted person would otherwise have received, and stated that the alternative prison sentence of 17 years, which the Court of Appeal had determined, was appropriate. The appeal against the Court of Appeal's judgment was dismissed.
Supreme Court HR-2017-751-A, (case no. 2016/2377), criminal case, appeal against judgment.
Order
7 April 2017
Criminal procedure. Compensation for expenses following acquittal.
In a major criminal case involving alleged tax evasion, the defendants, who were acquitted, had incurred major expenses for their necessary defence. Compensation for the expenses was claimed pursuant to section 438 of the Criminal Procedure Act. The Supreme Court, which heard the case in chamber, concluded that the government rates for payment of a publicly appointed defence counsel should be used, even though the defence counsel’s expenses had been significantly higher because the defendants had hired lawyers privately. Decisive weight was not given to the fact that this was a major and complex case, where the defendants had a reasonable need for specialist defence lawyer who operate at market price. Policy considerations did not provide the basis for a restrictive interpretation of Section 438 of the Criminal Procedure Act contrary to the wording. Nor was the scheme contrary to Norway's obligations under ECHR Article 6 to ensure fair trial.
Supreme Court HR-2017-753-A, (case no. 2016/2086), criminal case, appeal against order.
Judgment
5 April 2017
Law of inheritance and succession. Qualified allodial right of inheritance. The boundary between inter vivos disposition and disposition mortis causa
A father with terminal cancer sold his family farm to his youngest son about 6 months before committing suicide. The Supreme Court, which pointed out that qualified allodial right of inheritance is not protected against inter vivos dispositions, concluded that the transfer had a legal effect for the father while he was alive. The sale was considered an inter vivos disposition, which meant that the property did not come in under the estate of the deceased father. The oldest son was not then entitled to take over the farm through distribution of the estate by virtue of the best qualified allodial right of inheritance.
Supreme Court HR-2017-716-A, (case no. 2016/2156), civil case, appeal against judgment.
Judgment
30 March 2017
Criminal law. Bodily injury. Application of the law. Procedure. Probable intent Accidental harm to a person (aberratio ictus).
A woman had thrown a kettle of hot water at another women (1st aggrieved party), but miss and hit a third woman (2nd aggrieved party), who was injured. The defendant was convicted by the Court of Appeal for violation of section 274 of the Penal Code of 2005, cf. section 273, cf. section 16 against the 2nd aggrieved party and for violation of section 274 of the Penal Code of 2005, cf. section 273 against the 1st aggrieved party. In connection with the criterion of guilt in relation to the 1st aggrieved party, the Supreme Court stated that it depended on the details whether the defendant could be convicted of intentional or negligent bodily harm against this person. However, the Court of Appeal's reasons for judgment gave no explanation why the court concluded that the defendant had acted with intent toward this aggrieved arty. No justification was given for why, when she threw the kettle, the defendant counted on it being certain or most probable that also the 1st aggrieved party would be injured. The Court of Appeal’s judgment with appeal hearing was overturned in relation to both aggrieved parties. The relationship between the circumstances was pointed out.
Supreme Court HR-2017-675-A, (case no. 2016/2114), criminal case, appeal against judgment.
Judgment
30 March 2017
Law of damages. Patient injury. Information requirement.
At a consultation with a cardiac specialist, a patient was informed that his symptoms were not due to heart disease, but a myalgia disorder. The patient had a slightly higher risk of future cardiovascular disease than the average for his age group. He was not given further information about this risk or about what to do if he experienced the symptoms of a heart attack. About three months later, the patient suffered a heart attack, but did not go to the doctor until the following day. The Supreme Court concluded that the lack of information from the doctor did not provide a basis for patient injury compensation, cf. section 2, subsection 1, letter a) of the Patient Injury Compensation Act. It was pointed out that not every injury caused by medical help entitles a patient to patient injury compensation. There must be a “failure” in the medical treatment. Following a specific assessment, the Supreme Court concluded that there had been no failure. The obligation to inform about potential risk factors had to be considered in view of the fact that the risk of heart disease in the near future was very small, not in view of the fact that he actually suffered a heart attack a few months later. It was within the legally recognised scope of practice not to provide such information, when the examination had revealed that the patient did not have any heart disease.
Supreme Court HR-2017-687-A, (case no. 2016/2070), civil case, appeal against judgment.
Judgment
30 March 2017
Criminal law. Bodily injury. Application of the law. Procedure. Probable intent Accidental harm to a person (aberratio ictus).
A woman had thrown a kettle of hot water at another women (1st aggrieved party), but miss and hit a third woman (2nd aggrieved party), who was injured. The defendant was convicted by the Court of Appeal for violation of section 274 of the Penal Code of 2005, cf. section 273, cf. section 16 against the 2nd aggrieved party and for violation of section 274 of the Penal Code of 2005, cf. section 273 against the 1st aggrieved party. In connection with the criterion of guilt in relation to the 1st aggrieved party, the Supreme Court stated that it depended on the details whether the defendant could be convicted of intentional or negligent bodily harm against this person. However, the Court of Appeal's reasons for judgment gave no explanation why the court concluded that the defendant had acted with intent toward this aggrieved party. No justification was given for why, when she threw the kettle, the defendant counted on it being certain or most probable that also the 1st aggrieved party would be injured. The Court of Appeal’s judgment with appeal hearing was overturned in relation to both aggrieved parties. The relationship between the circumstances was pointed out.
Supreme Court HR-2017-675-A, (case no. 2016/2114), criminal case, appeal against judgment.
Judgment
29 March 2017
Criminal law. Abuse in close relationships. Appeal review. Change of subsumption.
The District Court had passed sentence for four individual violations of section 228 of the Penal Code of 1902 in a case where an indictment was issued under section 219 of the Penal Code of 1902. The Court of Appeal referred to the prosecuting authority’s appeal to the appeal hearing and also stated that the facts the District Court had found proven, should be used unreviewed. The defendant was convicted in the Court of Appeal under section 219 of the Penal Code on the basis of the four violations that District Court had considered under section 228 of the Penal Code of 1902. The Supreme Court agreed here with the Court of Appeal’s application of law. However, it was pointed out as a procedural error that the decision to use the District Court’s facts unreviewed, was not justified, and also to the concerns that because of this limitation, the defendant was prevented from objecting to District Court’s evidence and from presenting evidence to substantiate this. When determining the sentence, the Court of Appeal had also placed emphasis on the actions in the indictment which were not included in the conviction by the District Court. The Court of Appeal did not have an adequate factual basis on which to base the sentencing, and had breached the obligation under section 294 of the Penal Code to provide complete information on the case. The Court of Appeal's judgment with appeal hearing was overturned.
Supreme Court HR-2017-667-A, (case no. 2016/2380), criminal case, appeal against judgment.
Judgment
23 March 2017
Health care law. Municipal health service. Expenses claim.
A young person, who had stayed at a child welfare institution in a different municipality from his original native municipality, on being discharged from said institution took up residence in the municipality where the institution was located. This municipality claimed reimbursement of its expenses for continued care services by the original native municipality, with reference to section 2, subsection 4 of the regulations relating to the municipality’s reimbursement of expenses for health and care services, which state that when an institutional resident is discharged, the municipality where the institution is located may claim reimbursement from the municipality that was the municipality of residence before admission to the institution. The Supreme Court concluded that the reimbursement provision in section 11-1 of the Health and Care Services Act applies to expenses in connection with temporary residence in the municipality of residence. The provision does not provide a legal basis for a regulatory provision that orders the previous municipality of residence to reimburse expenses for institutional residents, who after being discharged take up permanent residence in the municipality where the institution is located. There were also no grounds for an extensive interpretation under the provisions of the regulations. The claim against the original native municipality by the municipality where the institution was located was dismissed.
Supreme Court HR-2017-625-A, (case no. 2016/2032), civil case, appeal against judgment.
Judgment
23 March 2017
Tax law. Deduction in income. The term business.
The parent company of a hairdressing group had established a subsidiary that was responsible for international operations. In connection with this, the subsidiary had established a tier subsidiary in the UK. In addition to equity, the operations here were funded through a loan from the subsidiary to the tier subsidiary. Following liquidation in the UK, the loan, which amounted to approximately NOK 24 million, was considered lost, and deducted in the tax return for the year in question. The Supreme Court concluded that the conditions for the right to deduct under section 6-2, subsection 2, first sentence of the Tax Act had not been met. It was pointed out that the costs associated with those involved in the investment abroad, were partly covered at group level, and partly at operational level, as work for the companies established abroad. The work could not then be considered to have been carried out for the subsidiary, which consequently did not meet the condition of being a business in section 6-2, subsection 2, first sentence of the Tax Act. The court found in favour of the State.
Supreme Court HR-2017-627-A, (case no. 2016/2186), civil case, appeal against judgment.
Judgment
23 March 2017
Tax law. Deduction in income. The term business.
A person who worked with acquisitions and restructuring of companies, transferred the business to a sole-member limited liability company. Together with other stakeholders and through other limited liability companies, he was in charge of acquisition of extensive operations within the wood processing industry. The sole-member limited liability company gave the business a loan of approximately NOK 7 million, which was lost when the business was closed down. The company's deduction of the loss was not approved by the tax authorities. Like the Court of Appeal, the Supreme Court's majority of three justices agreed that the conditions for deduction under section 6-2, subsection 1, second sentence, were met. Decisive emphasis was placed on the fact that the shareholder had transferred to the company his personal commitments in the portfolio companies in which he was involved. His activities in the business had gone beyond the exercise of general shareholder rights, and far beyond the work that could be associated with the directorships. The business of the company was considered sufficiently extensive to be a business in the sense of taxation. There was also a sufficiently special and close connection between the business of the company and the loss of the claim for which a deduction was made. The appeal against the Court of Appeal's judgment was dismissed. Dissenting judgment 3-2.
Supreme Court HR-2017-628-A, (case no. 2016/1281), civil case, appeal against judgment.
Judgment
17 March 2017
Criminal law. Sentencing. Sexual activity. Abuse of position.
The punishment for violation of section 193, subsection 1 of the Penal Code of 1902 was set at a term of imprisonment of two years and six months. The convicted person, who was a general practitioner, abused his position of trust to sexually exploit two female patients, who had sought his help for mental health issues. As an aggravating feature, the Supreme Court emphasised that the sexual exploitation of one of the women lasted for 18 months, and that her mental health had progressively deteriorated during this period. The fact that the convicted person was stripped of his medical licence was not considered a mitigating circumstance. A minority of one justice was of the opinion that the penalty should be set at a term of imprisonment of 2 years. Dissenting judgment 4-1.
Supreme Court HR-2017-570-A, (case no. 2016/2241), criminal case, appeal against judgment.
Judgment
17 March 2017
Criminal law. Application of the law. Threats against a party in the judicial system.
Indictment under Section 132a of the Penal Code of 1902 concerned a threat that the defendant was going to kill the police prosecutor, who was appearing for the prosecution in an ongoing criminal case against him, when he was released from prison. The threat was communicated to a prison officer who served an indictment that the said police prosecutor had issued and which concerned another offence. The Supreme Court found that the condition for a conviction in a case such as this is that the threat reaches the party in the judicial system. His intent must also cover this circumstance. In the address by the presiding judge in the Court of Appeal, it was stated that the intent requirement was met if the defendant believed it likely that the prison officer heard the threat. This was bad application of law. The Court of Appeal's judgment was overturned with respect to this count.
Supreme Court HR-2017-568-A, (case no. 2016/2152), criminal case, appeal against judgment.
Judgment
17 March 2017
Immigration law. Refugee. Article 1 of the Refugee Convention Subjective “sur place”.
After arriving in Norway, an Ethiopian asylum seeker had been active in a political party that was banned in Ethiopia. His application for asylum was turned down by the immigration authorities under the so-called misuse provision in section 28, subsection 4, second sentence, second penal option of the Immigration Act, as it was deemed more likely than not that the purpose of the political activity here had been to obtain residence in Norway. The Supreme Court concluded that the misuse provision did not conflict with the definition of the term refugee in the Refugee Convention Article 1 (A) 2. It was pointed out that the wording of the Article in the Convention did not resolve the issue, but the Article’s previous history and original time limit indicated that the misuse cases were not included. It was not deemed decisive that UNHCR had stated that the misuse provision reached further than what the Convention allows. It was pointed out that the asylum seeker had been granted temporary residence under section 74 of the Immigration Act, cf. section 73, and was in any case protected against being returned to Ethiopia.
Supreme Court HR-2017-569-A, (case no. 2016/1379), civil case, appeal against judgment.
Judgment
16 March 2017
Criminal law. Sentencing. Juvenile punishment. Sexual intercourse with a minor.
The punishment for violation of section 195, subsection 2 of the Penal Code of 1902, second penal option, section 190a and section 270, was set at juvenile punishment with an implementation period of two years, and a default period of imprisonment of one year and six months. The convicted person, who was then aged 17 years and 9 months, had, over a period of approximately one month, had vaginal intercourse six to seven times with the aggrieved party, who was 13 years and 8 months at the time. He had acted with gross negligence with regard to the aggrieved party’s age. A less serious offence, for which he was convicted, was committed after he had turned 18, and did not prevent use of juvenile punishment. Importance was attached to the fact that the age difference between the convicted person and the aggrieved party was not more than four years. Considerations of general deterrence were not considered to weigh heavily against the use of juvenile punishment and considerations of individual deterrence spoke clearly in favour of such a reaction.
Supreme Court HR-2017-579-A, (case no. 2016/2262), criminal case, appeal against judgment.
Judgment
15 March 2017
Criminal law. Sentencing. Grossly negligent social security fraud.
The punishment for violation of section 271a of the Penal Code of 1902, cf. section 270, subsection 1, cf. Section 271 was set a term of imprisonment of 75 days. Over a period of approximately two and a half years, the convicted person had received work assessment allowance totalling approximately NOK 310,000, to which he was not entitled. The reason for this was that for a total of 50 weeks of this period he had lived abroad without consent from NAV. The possibility that if he had applied, he could have had parts of the stay abroad approved was not sufficient grounds for imposing community service as the Court of Appeal had done.
Supreme Court HR-2017-560-A, (case no. 2017/109), criminal case, appeal against judgment.
Judgment
15 March 2017
Labour law. Unfair dismissal. Workforce reductions.
During restructuring and workforce reductions in one of the regions of Posten Norge AS, ten distributions units were merged into five. When appointing new managers, a seniority assessment was made within each of the new units. A former distribution manager, who was an unsuccessful candidate for the position of new manager of a merged unit, was given his notice and offered a new position as postman. The Supreme Court concluded unanimously that limiting the selection group to the merged units was justifiable. Like the Court of Appeal, a majority of four justices concluded that the dismissal was not objectively justified. The majority attached decisive importance to the weighing of interests pursuant to section 15-7, subsection 2, second sentence of the Working Environment Act. It was pointed out that during the restructuring process the employer had appointed operations managers in permanent positions to meet the management needs during the reorganisation, instead of temporary positions. This was contrary to the principles that formed the basis for the general restructuring agreement with the labour organisations, and with the special discussions with the employee representatives on this matter. The appeal against the Court of Appeal's judgment was dismissed. Dissent 4-1.
Supreme Court HR-2017-561-A, (case no. 2016/1619), civil case, appeal against judgment.
Order
14 March 2017
Criminal procedure. Institution of proceedings to dispel suspicion. Surviving relatives.
Following the fire on the “Scandinavian Star” in 1990, a Danish person, who was also one of the fatalities, was suspected of having started the fire. The case was dismissed due to insufficient evidence. The surviving relatives of the suspect did not succeed with a petition for institution of proceedings pursuant to section 241 of the Criminal Procedure Act to dispel suspicion. The Supreme Court, which heard the case in chambers, concluded that only the suspect himself can file such a petition. The wording of the Act and the statutory system were deemed decisive. An extensive or analogical interpretation of the provision can also not be made. Such an interpretation cannot be based on the Constitution’s provisions on human rights or Norway’s Convention obligations, and important considerations argue to the contrary.
Supreme Court HR-2017-552-A, (case no. 2016/1516), criminal case, appeal against order.
Judgment
14 March 2017
Criminal law. Sentencing. Grossly negligent tax evasion.
The punishment for violation of section 380, first sentence of the Penal Code of 2005 and section 15, subsection 1, first sentence of the Accounting Act, cf. section 7, subsection 1 and section 5, subsections 1 and 2, cf. Section 394 of the Penal Code of 2005 was set at a term of imprisonment of 120 days, which was made conditional in its entirety, as well as an unconditional fine of NOK 90,000. The convicted person had failed to report self-employment income totalling NOK 3 million for tax years 2007-2009. Evaded tax that should have been levied on this amount totalled approximately NOK 1 million. Unlike the lower courts, the Supreme Court concluded that the tax evasion should be judged pursuant to section 380 of the Penal Code of 2005 and not pursuant to the previous provision in section 12-1 of the Tax Assessment Act. The punishment for violation of the Accounting Act was then determined pursuant to section 394 of the Penal Code of 2005. When determining the sentence, the Supreme Court emphasised that the element of systematic tax evasion is missing when the level of guilt is gross negligence. A starting point of a term of imprisonment of six to seven months was reduced to 120 days suspended sentence, primarily due to three years waiting time contrary to section 95, subsection 1, first sentence of the Constitution and ECHR Article 6 no. 1. The fine was determined on the basis of half of the alternative additional tax of 20% of the evaded tax amount under the provisions of the Tax Administration Act, which came into force on 1 January 2017.
Supreme Court HR-2017-553-A, (case no. 2016/2050), criminal case, appeal against judgment.
Judgment
9 March 2017
The Alienation Act. Compensation for defect. Calculation of financial losses.
Following the sale of an apartment, it turned out that two accompanying studio flats were not approved for permanent residence. The marketing material pointed out that the studio flats generated good income. There was consensus that the defect this represented entitled the buyers to compensation for their direct losses, cf. section 4-18, 4-14, subsection 1 and section 7-1, subsection 1 of the Alienation Act. Like the Court of Appeal, the Supreme Court’s majority of three justices concluded that compensation had to be determined on the basis of the reduction in value resulting from the defect. This, and not the repair costs, provided the best estimation of the buyer’s direct financial losses, although the repair costs would have been higher than the reduction in value. Reference was made to what was economically viable, views on unjust enrichment and the context in the provisions of the Alienation Act. Dissent 3-2.
Supreme Court HR-2017-515-A, (case no. 2016/1246), civil case, appeal against judgment.
Order
1 March 2017
Tax law. Inspection of files. Electronic records. Attorney correspondence.
In connection with an audit, the tax authorities required access to conduct an inspection, cf. section 6-1 no. 1 of the Tax Assessment Act, of the part of the taxpayer's electronic records, which the taxpayer claimed contained attorney correspondence. The Supreme Court concluded that the tax authorities were basically allowed to conduct an inspection of the taxpayer’s electronic files, as long as this was claimed to be relevant to the tax assessment, but that documents which must be assumed to be attorney correspondence should be excluded from the inspection without further review. In the specific assessment, emphasis was placed on the fact that the relevant documents were selected according to search criteria which were based on sound discretion, that the requirements for effective safeguards against abuse were addressed, and that due process protection, which satisfied the requirements under ECHR Article 8, was established, jf., section 102 of the Constitution. The taxpayer’s request for an interim order to prevent the tax authorities’ review of the material did not succeed.
Supreme Court HR-2017-467-A, (case no. 2016/1907), civil case, appeal against order.
Order
22 February 2017
The Courts of Justice Act. Impartiality.
The request that three of the Supreme Court’s justices had to recuse themselves as a result of their proposed judgments in a previous ruling by the Supreme Court's in an immigration case was disallowed. The Supreme Court pointed out that it follows from the nature of the work of the court that the opinion a justice has on a legal issue in one case could be significant in a later case. This is not a “special circumstance” in the sense this phrase is used in section 108 of the Courts of Justice Act.
Supreme Court HR-2017-327-A, (case no. 2016/1379), civil case, appeal against judgment.
Judgment
17 February 2017
Family law. Paternity. DNA analysis. Re-opening.
A final and conclusive acquittal in a paternity case was reopened pursuant to section 28a, subsection 1 of the Children Act. The result of the subsequent DNA analysis was that there was “significant preponderance of evidence” of the paternal relationship. Following written proceedings, the Supreme Court ruled for the paternity, cf. section 9, subsection 1, first sentence of the Children Act.
Supreme Court HR-2017-419-A, (case no. 2016/1943), civil case, petition for reopening the Supreme Court judgment included in Rt-1970-217.
Judgment
15 February 2017
Tax law. Interest deduction. Subordinated loan.
A local authority had transferred an amount - known as a subordinated loan - to a wholly owned subsidiary. Due to the contents of the agreement between the local authority and the company, the Supreme Court concluded that the transfer must be regarded as a capital contribution. The company was not then allowed a deduction for interest paid to the local authority, cf. section 6-40, subsection 1 of the Tax Act. Importance was attached to the fact that the local authority had forfeited its right to require repayment of the amount as long as it was owner of the company, and to the fact that it was of no real significance to the parties that the local authority’s capital contribution in the company was divided into equity and “subordinated loan”.
Supreme Court HR-2017-350-A, (case no. 2016/1047), civil case, appeal against judgment.
15 February 2017
Judgment
Tax law. Summary joint settlement. The term "employees".
A painting company that had concealed non-registered salary payments as fictitious invoices from sub-suppliers had been subject to so-called summary joint tax settlement pursuant to the Tax Assessment Act section 9-5 no. 8, currently the Tax Administration Act section 12-4 subsection 1. One of the conditions for such settlement is that the employer has given incorrect or incomplete information regarding payments to "employees". The Supreme Court found that the term "employees" also includes workers who are not employed in the company within the meaning of employment law. Thus, the provision has the same area of application as the provisions on the employer's underlying obligations in terms of advance tax deduction and payroll tax in accordance with certificates of pay and tax deducted that should have been submitted. The conditions for imposing summary joint settlement were thus fulfilled.
Supreme Court HR-2017-344-A, (case no. 2016/1433), civil case, appeal against judgment
Judgment
15 February 2017
Sale of goods law. Price reduction. The “as is” clause.
In a sold apartment, damp damage occurred after the buyers’ inspection, but before they took possession. The damage was due to hidden defects and weaknesses in the piping on the property, of which the sellers were unaware. The apartment was sold with an “as is” clause in the purchase agreement, cf. section 3-9 of the Alienation Act. The Supreme Court concluded that there was no reason to depart from the contract and the legal basis that the apartment should have been handed over “in the condition it was in at the time of the buyer’s inspection”. That hidden defects and weaknesses resulted in new damage before the buyers took possession was therefore a circumstance for which the sellers were the closest to bear the risk. The buyers’ claim for a price reduction due to the damage was sustained.
Supreme Court HR-2017-345-A, (case no. 2016/1293), civil case, appeal against judgment.
Judgment
14 February 2017
Bankruptcy. Setting aside a debtor’s preference.
The chairman of the board and general manager of a company, which was subsequently declared bankrupt, had within the date of filing received approximately NOK 1.6 million from the company. The amount was partly related to earned wages and partly to reimbursement of an expense incurred on behalf of the company. His wife had also received approximately NOK 2.1 million. This amount was partly related to accrued guarantee commission in accordance with a previous agreement on collateral, and partly to repayment of a terminated loan. Like the lower courts, the Supreme Court concluded that the payments could be set aside pursuant to section 5-5 of the Creditors Security Act, as the condition “with amounts that have significantly impaired the debtor’s ability to pay” had been met for all the payments. The payments were not deemed ordinary, and constituted a significant part of the company’s available liquidity of approximately NOK 4.5 million.
Supreme Court HR-2017-370-A, (case no. 2016/1182), civil case, appeal against judgment.
Judgment
13 February 2017
Criminal injuries compensation.
Three participants, who were attending the Norwegian Labour Party’s youth wing (AUF) summer camp on the island of Utøya, but who were on the mainland during the terrorist attack on Utøya on 22 July 2011, had in various ways helped other young people who had swum or been transported ashore by boat. Like the Compensation Board for Victims of Violent Crime and the lower courts, the Supreme Court concluded that there was no compensatory basis pursuant to section 1, subsection 1, first or second sentence of the Criminal Injuries Compensation Act. The conditions for compensation pursuant to section 1, subsection 2, letter b) of the Act, according to which compensation may be granted for having provided help to victims of a criminal offence, were deemed to have been met. Regarding this point, the Compensation Board for Victims of Violent Crime concluded that the appellants had not provided sufficient help. The Supreme Court pointed out that there is no requirement that qualified help must be provided in order for the applicant to be considered under this provision. The decision of the Compensation Board for Victims of Violent Crime was overturned.
Supreme Court HR-2017-352-A, (case no. 2016/1454), civil case, appeal against judgment.
Judgment
9 February 2017
Criminal law. Preventive custody. Premeditated murder. Juvenile offender.
The punishment for violation of section 233, subsection 1 and 2 of the Penal Code of 1902 and section 127, subsection 1, first penal option of the Penal Code was set at a term of preventive detention of nine years, with a minimum period of six years, section 39 c no. 1 of the Penal Code of 1902. The convicted person was aged 15 at the time of the offence, and like the lower courts, the Supreme Court concluded that there were exceptional circumstances that could justify the use of preventive detention, cf. Section 39c, last paragraph of the Penal Code of 1902. There were weighty reasons for protection of society. Importance was attached to aspects of the murder itself, the convicted person’s motivation for the murder, previous violent crimes she had committed and her mental state. The Supreme Court also found that the provision in section 60, subsection 1, second sentence of the Penal Code of 1902 relating to deduction for isolation was applicable, even though the defendant had received some supervision and follow-up by personnel in the relevant period.
Supreme Court HR-2017-290-A, (case no. 2016/2191), criminal case, appeal against judgment.
Judgment
9 February 2017
Environmental law. Contamination. Wreck removal. The Maritime Code’s provisions on limitation of liability. The court's examination of administrative decisions.
Follow a shipwreck, the Norwegian Coastal Administration and the affected municipalities incurred significant costs in connection with clearing up the oil spill. The Norwegian Coastal Administration ordered the owner and operator of the vessel, represented by the P&I insurer, to refund the State’s expenses for the clean-up, cf. section 76 of the Pollution Control Act and to remove the remaining part of the shipwreck, cf. section 37, subsection 2, cf. section 28. Like the Court of Appeal, the Supreme Court concluded that the VAT the Norwegian Coastal Administration had paid on goods and services purchased from tradesmen could not be included in the refund. It was not decisive that the State had already received these taxes through the VAT system. A distinction had to be made between the State as a user of services liable to VAT and the State as a collector of taxes. The Supreme Court also concluded that the affected municipalities had mistakenly considered their efforts in the operation as sales liable to VAT and calculated VAT on their claims to the Norwegian Coastal Administration. Since costs for which a refund claim may be submitted pursuant to section 76 of the Pollution Control Act must be based on a factual and legally correct basis, this VAT amount could not be included in the refund claim. In the decision on removal of the wreck, the Ministry had used the alternative condition “is unslightly” in section 28 of the Pollution Control Act as a basis. The District Court and the Court of Appeal considered the decision valid based on the alternative “may cause damage or nuisance to the environment”, which the Ministry had not considered. The Supreme Court concluded that the courts could not examine the validity of the decision on a condition the Ministry had not considered. This item in the Court of Appeal’s judgment was annulled. The Supreme Court also concluded that the management company could not be considered the owner, cf. section 37, subsection 2 of the Pollution Control Act, and therefore could not be the addressee of the removal order. It was finally decided that the obligation to comply with the removal order was not limited by the financial framework of the limitation fund that was established pursuant to Chapter 12 of the Maritime Code.
Supreme Court HR-2017-331-A, (case no. 2016/1128), civil case, appeal against judgment.
Judgment
9 February 2017
Expropriation law. Sales value. Capitalisation rate.
When determining compensation for expropriation of land from properties, where a gravel pit was in use, the parties agreed that the properties could be sold for industrial purposes when they were no longer used as a gravel pit. They also agreed that the year 2030 could be used as the average date of the future sale. The Supreme Court found that it is the current fair market value related to a hypothetical sale that constitutes the sales value pursuant to section 5 of the Expropriation Compensation Act and not the estimated sales value on the future date of sale, as the Court of Appeal had used. The Court of Appeal had also used the standardised capitalisation rate of 4 per cent, while in a case such as this the rate must be determined by discretionary assessment. The Court of Appeal's revaluation was revoked as far as it was appealed.
Supreme Court HR-2017-333-A, (case no. 2016/894), civil case, appeal against judgment.
Judgment
6 February 2017
Law relating to personal capacity. Guardianship. Legal capacity. “Financial circumstances”. Tenancy agreement.
The County Governor had made an interim decision on guardianship pursuant to section 61, subsection 1 of the Guardianship Act. The decision included a provision that the person the decision concerned could not terminate or enter into tenancy agreements without the assistance of a guardian. In the subsequent review of the decision pursuant to section 61, subsection 4 of the Guardianship Act, the Supreme Court, like the lower courts, concluded that entry into, amendment and termination of tenancy agreements had to be regarded as a financial matter and not a personal matter. The conditions for establishment of guardianship for this matter followed from section 22, subsection 2 of the Guardianship Act and not the more stringent provision on personal matters in subsection 3. It was not contested that the conditions in subsection two were met.
Supreme Court HR-2017-275-A, (case no. 2016/2160), civil case, appeal against judgment.
Judgment
30 January 2017
Labour law. Age discrimination. Compensation.
In Rt-2012-219, the Supreme Court ruled that it was in violation of the prohibition on age discrimination, cf. Chapter 13 of the Working Environment Act, when in 2008, an employer required, in accordance with the collective agreement, that ten helicopter pilots should retire on turning 60. Therefore, they had the right to be reinstated in their jobs. The Supreme Court now concluded that the pilots were not entitled to compensation pursuant to section 13-9 of the Working Environment Act, because they had not been in the job for a period. It was found that the employer could only be liable for damages if under the prevailing law at the time of the act in 2008, it was age discriminatory to rely on the collective agreement, while the 2012 ruling considered the discrimination issue based on the prevailing law on the date of judgment. The sources of law were also unclear until the provisions on age discrimination came into force in 2004. A majority of three justices concluded that the special age limit in the collective agreement was not age discriminatory, based on the sources of law in 2008. It was the subsequent legal development, including a ruling by the European Court of Justice in the autumn of 2011, which lead to the collective agreement’s age limit being in violation of the prohibition on age discrimination. On these grounds, the majority of justices concluded that the employer had not committed any breach of the law by following the collective agreement. Therefore, there was no basis of liability. The minority of two justices were of the opinion that the 2012 ruling had to be construed in such a way that the pilots were also the victims of age discrimination prior to 2012, but that in an uncertain legal and actual situation the employer did not incur liability by acting in the way he did.
Supreme Court HR-2017-219-A, (case no. 2016/512), civil case, appeal against judgment.
Order
16 January 2017
Criminal procedure. Data seizure. Attorney correspondence.
Økokrim had seized extensive e-mail correspondence from a defendant. The defendant requested a review of the seized documents pursuant to section 208 of the Criminal Procedure Act. The purpose of this was to remove attorney correspondence, which comes under the scope of the prohibition on seizure in section 204, subsection 1 of the Criminal Procedure Act.cf. section 119. The District Court dismissed the request on the grounds that the defendant had to individualise the documents he wanted exempted from the seizure. Like the Court of Appeal, the Supreme Court, which heard the case in chambers, concluded that the defendant had to be able to confine the request to specific parts of the data seizure, if these were reasonably clear and simple to extract, and that there was no legal basis for setting such conditions as the District Court had done. The Supreme Court pointed out in general to the possibility that e-mail correspondence with attorneys could also be removed according to the guidelines previously drawn up in cases relating to communication control, cf. Rt-2015-81. The prosecuting authority’s appeal against the Court of Appeal's order, which set aside the District Court’s decision, was dismissed.
Supreme Court HR-2017-111-A, (case no. 2016/1887), criminal case, appeal against order.
Judgment.
13 January 2017
Criminal procedure. Impartiality Experts.
In a case concerning violation of section 219 of the Penal Code of 1902, the District Court and the Court of Appeal appointed to experts, who were colleagues and cohabitants. The original intention was to appoint only one expert, but the person who was asked to be an expert requested the assistance of his colleague. The two experts had made a joint statement, and the situation was considered to be two experts who had cooperated on one assignment. Although the solution could cause confusion, which meant that it was not ideal, the Supreme Court concluded that the situation did not lead to disqualification of the experts pursuant to section 142 of the Civil Procedure Act, cf. section 108 of the Courts of Justice Act. A submission that an expert should have been appointed to consider the aggrieved party was dismissed. The need was considered to have been addressed by a statement from the aggrieved party’s therapist.
Supreme Court HR-2017-91-A, (case no. 2016/1865), civil case, appeal against judgment.
5 January 2017
Bankruptcy. Legal remedy. Registration. Demerger.
A company had transferred some properties to subsidiaries as part of a demerger process under company law. The properties were then made over to a third party. None of the transfers were registered. The Supreme Court concluded that transfer by demerger came under the scope of the phrase “a right established by contract” stated in section 23 of the Land Registration Act. The transferee did not then have legal protection against the bankrupt estate of the original transferor, who still held the title to the properties. Nor was any legal protection established on the basis of independent adverse possession. Failure to register the transferees was done to save stamp duty, and it would be contrary to the wording of section 23 of the Land Registration Act if the person, who for financial reasons has failed to register an acquisition by right of contract, still achieves legal protection in bankruptcy.
Supreme Court HR-2017-33-A, (case no. 2016/777), civil case, appeal against judgment.
Judgment
2 January 2017
Criminal procedure. Re-opening. Review by two courts.
In 2006, a man who was acquitted of murder in 2003 was sentenced for the same murder, after the case was re-opened to his detriment. The case was re-opened due to the discovery of new DNA evidence. The case was heard by a Court of Appeal in an adjacent judicial district, cf. section 400, subsection 1 of the Criminal Procedure Act. The Supreme Court concluded that under both Norwegian domestic law and international law a re-opened case is a continuation of the original case. Therefore, it cannot be maintained that the International Covenant on Civil and Political Rights Article 14 no. 5 requires full examination by two courts after re-opening. Neither the fact that the conviction in 2016 is based on new evidence nor the time lapse since the original hearing could result in any other outcome in this particular case. The convicted person’s appeal against the Court of Appeal's procedure was dismissed.
Supreme Court HR-2017-241-A, (case no. 2016/1999), criminal case, appeal against judgment.