CASE OF ORR v. NORWAY
Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. On 7 August 2001, the applicant co-piloted a British Airways flight from Newcastle to Gardermoen Airport outside Oslo. There were three other crew members on board, including Ms C. (1st Cabin Crew). All four crew members were to stay overnight at an airport hotel before flying back to the United Kingdom the next day. 6. On 1 November 2002 the Eidsvoll District Court (tingrett) convicted the applicant of having raped C and sentenced him to 2 years’ and 6 months’ imprisonment and ordered him to pay her NOK 75,000 for non-pecuniary damage and NOK 160,000 for pecuniary damage. 7. On an appeal by the applicant, the Eidsivating High Court (lagmannsrett), sitting with a jury, held a fresh hearing in the case. The jury answered the questions relating to the charges in the negative (no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury’s verdict and acquitted the applicant by a judgment of 20 March 2003. 8. Ms C. maintained the claim that the applicant was civilly liable to pay compensation under the Damage Compensation Act 1969. The High Court, consisting of the professional judges, considered the claim the next day. By two votes to one the High Court concluded, in the same judgment, that the applicant was liable and ordered him to pay NOK 74,000 in compensation for pecuniary damage and NOK 25,000 for non-pecuniary damage. 9. The High Court’s judgment included the following account and reasoning: “The High Court jury was asked one main question, which concerned forcible coitus. The jury answered the question in the negative. Thereafter the jury was asked one main question as to whether the accused was guilty of obtaining, by gross negligence, sexual relation by violence or threatening behaviour. There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus. The jury answered the main question in the negative. The court bases the judgment on the jury’s verdict. [The applicant] is therefore acquitted of the indictment raised against him. The victim’s assistant counsel stated, after the jury’s verdict had been made known, that the compensation claim for pecuniary and non-pecuniary damage would be maintained. The victim has claimed an amount up to NOK 74,000 in compensation for pecuniary damage and up to 75,000 NOK for non-pecuniary damage. The accused has pleaded that he should be released from the claim. Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal. The compensation issue shall be determined under the Damage Compensation Act 1969. If the victim has been exposed to an infringement or misconduct as described inter alia in Article 192 of the Penal Code, compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections 3-1 and 3-3 of the Damage Compensation Act. In section 3-5 it is further stipulated that a person who with intent or gross negligence has “... committed infringement or an act of misconduct as mentioned in section 3-3” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non-pecuniary caused thereby. Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [klar sannsynlighetsovervekt] that the act has taken place. This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case. [The applicant] and [Ms C.] spent the night from 7 to 8 August 2001 at SAS Radisson Hotel at Gardermoen. [...] On the basis of [Ms C.]’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof, the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during the night with the pretext that he needed to borrow or to get some drinks as he himself had ‘gone dry’. [Ms C] was lying asleep when the telephone rang and was irritated about the disturbance, but she replied that he could come and get something from her mini-bar. Immediately thereafter he knocked on the door. [Ms C.] who was not wearing night clothes did not have the time to get dressed, but covered herself with her quilt, opened the door and let the applicant into the room. She could see that he was intoxicated. He went to the mini-bar and fetched something to drink, but instead of leaving he sat down on her bed and started talking. After a short time he began pulling her quilt in order to remove it. She asked him to leave, but he did not follow her suggestion. At a certain point in time he managed to get the quilt off her, but she managed to get up and put it around her again. [The applicant] continued to pull the quilt and drew her towards himself and also got himself undressed. In the end they were both in the bed. The High Court unanimously finds that on the balance of probabilities it is clearly probable that [the applicant] during this night had sexual intercourse with [Ms C.] and that this intercourse was not consensual on her part. As to the question whether the remaining conditions for making an award of compensation have been fulfilled, the High Court is divided in a majority and a minority. The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C.]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold]. Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled. [...] The minority, ..., has found that the conditions for ordering the accused to pay compensation have not been fulfilled. The minority does not find it has been made sufficiently probable that [the applicant] understood that the sexual intercourse was not consensual on [Ms C.]’s part or displayed gross negligence in this respect.” 10. On 12 May 2004, on the basis of the High Court’s judgment, the applicant’s appeal within the company against his dismissal from his job as a pilot for British Airways was refused. 11. The applicant appealed to the Supreme Court against the High Court’s procedure, assessment of evidence and application of the law. The appeal on the latter point was on the ground that, contrary to Article 6 § 2 of the Convention, the High Court had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges. By a decision of 9 October 2003 the Appeals Selection Committee of the Supreme Court granted leave to appeal with respect to this ground of appeal, while refusing such leave for the remainder. 12. In support of his appeal against the High Court’s application of the law, the applicant argued, inter alia the following. For a judgment awarding compensation to be rendered after an acquittal, there was a requirement under the European Court’s case law relating to Article 6 § 2 of the Convention that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal. This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation. It ought to be made clear that the subject-matter for the two issues, respectively criminal and civil liability, are different and that the award of compensation did not weaken the acquittal. In this case, the High Court had failed to create the necessary distance between the two issues, since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation. Moreover, no express reservation had been stated with regard to the acquittal. Furthermore, the applicant argued, it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal. In several places, the High Court had used such formulations, including the expressions “guilty”, “the use of force” and “sexual intercourse by force”. This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated. Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case. In this connection the applicant relied on the Court’s judgment of 11 February 2003 in Y. v. Norway (no. 56568/00, ECHR 2003II). The applicant, again referring to the aforementioned Y v. Norway judgment and also to Article 13 of the Convention, submitted that, if the Supreme Court were to find a breach of the Convention in the present case, it would have to quash the lower court’s judgment. Where a decision suffered from such defects, due process required that there be an entirely fresh assessment of the evidence. If there was no basis for setting the impugned judgment aside, then at the very least a declaratory judgment ought to be rendered, stating a violation of the Convention. 13. On 24 February 2004 the Supreme Court unanimously rejected the applicant’s appeal against the High Court’s judgment on compensation, finding no breach of Article 6 § 2 of the Convention. The first voting judge, Ms Justice Stabel, gave the following reasons: (23) I have concluded that the reasons given by the High Court do not contravene the presumption of innocence in Article 6 § 2 of the Convention [...] and accordingly that the appeal will not succeed. [...] (25) With regard to the details of the provision applied in our case, it is in my view appropriate to base our assessment on the judgment rendered by the Supreme Court on 27 November 2003 in Case No. 2003/227. This judgment was rendered after the guiding judgments by the European Court of 11 February 2003 in Y. v. Norway [cited above] and Ringvold v. Norway [no. 34964/97, ECHR 2003II]. Reference is made to the thorough discussion of the decisions – and past case-law of the European Court – contained therein. Therein it is stated that Article 6 § 2 protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence, without his having been convicted in a criminal case. (26) It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case, even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability. However, where a person who has been acquitted of a criminal charge is ordered to pay compensation, it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal. Moreover, provided that the compensation order is not formulated in this way, Article 6 § 2 of the Convention [...] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related. (27) According to Article 3 of the Code of Criminal Procedure, ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case, provided that the claim derives from the same act as the criminal case. The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing two trials. The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases. An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case, based on the finding that he committed the act in respect of which s/he had been acquitted. In order to enable this without creating doubts about the acquittal, strict requirements should apply to the reasoning contained in the judgment awarding compensation. (28) The ground for the appeal is that the reasons given in the High Court’s judgment on this point violated the presumption of innocence. In its judgment of 27 November 2003, the Supreme Court found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error. This too is my finding. (29) Under Article 144(4) of the Code of Civil Procedure, the reasoning in a judgment in a civil case must ‘state precisely and exhaustively the facts on which the Court bases its decision ...’. In our case the basis for compensation for pecuniary and non-pecuniary damage is sections 3-3 and 3-5(1)(b)of the Damage Compensation Act 1969. It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in Article 192 of the Criminal Code. The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision. The subjective conditions for liability also coincide to some extent, namely that compensation for pecuniary and non-pecuniary damage requires intent or gross negligence and that Article 192 (4) of the Criminal Code also makes sexual assault by gross negligence a criminal offence. (30) Given the manner the conditions for compensation have been formulated, it is not possible to avoid coming close to a criminal- law assessment. In order to do this, without casting doubt on the acquittal, the court must in my view take as a starting point what inter alia distinguishes the legal consequences, i.e. the requirement of proof that the conditions have been fulfilled. The finding that, in objective terms, a breach of Article 192 has occurred cannot be avoided. The same applies to the subjective conditions for compensation. What must be avoided is casting doubt over the correctness of the acquittal, in view of the strict evidentiary requirements that apply in criminal cases. (31) The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [the applicant], under Norwegian law [Ms C.] has not forfeited her right to claim compensation for pecuniary and non-pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place. The Court continues: ‘Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.’ (32) The defence has argued that the interjection ‘in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment. I do not agree with this, nor that the High Court, when providing in a subsequent paragraph a further description of the evidentiary requirements, refers to [Ms C.]’s claim that [the applicant] was ‘guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law. The expression ‘guilty’, which in fact was a quote from [Ms C.]’s submissions, must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions. (33) After having outlined the chain of events that it has found established, the High Court concluded that ‘it is clear on the balance of probabilities that on this night [the applicant] had sexual intercourse with [Ms C.] and that this intercourse was not voluntary on her part’. This cannot in my view be regarded as an attack on the acquittal. Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present. The same applies when the majority of the High Court states that on the balance of probabilities it was clearly probable that [the applicant] realised that [Ms C.] did not want sexual intercourse with him and that ‘[the applicant] by the use of violence has gained sexual intercourse with [Ms C.].’ (34) To sum up, I note that the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation. Moreover, the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury. Furthermore, as I have already noted, I do not find that expressions of a typically criminal- law character were used. Factors of this nature were found to be decisive when the Supreme Court ruled on 27 November 2003 that the presumption of innocence had been violated in that case, see paragraphs 36 and 38 of the decision. In our case, I am accordingly of the view that the High Court marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways. (35) I have concluded on this basis that the appeal must be rejected.” The four other judges agreed with the first voting judge “in the main and the conclusion”. 14. The applicant has submitted a letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (Kontoret for voldsoffererstatning). It states that by a decision of 24 May 2004 the Office had granted Ms C. NOK 182,313 in compensation, “having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act.” It further notified the applicant that the Office might seek restitution of NOK 124,000 from him. 15. In so far as relevant, Article 192(1) and (2) of the Penal Code read: “Any person who a) engages in sexual activity by means of violence or threats, [...] shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years. In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act, importance shall be attached to whether the aggrieved person was under 14 years of age. A penalty of imprisonment for not less than two years shall be imposed if a) the said activity was sexual intercourse, or [...] A person who, due to gross negligence, is guilty of rape according to the first paragraph above shall be punished with minimum five years’ imprisonment. ... ” 16. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g. self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 17. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...” 18. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.” No reasons are given for an acquittal. 19. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. The claim is decided by the three professional judges who have taken part in the criminal case, without the participation of the jury. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with... The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29...”. 20. The court will determine the claim on the basis of the evidence adduced during the trial. However, it may receive further evidence. Article 144 of the Code of Civil Procedure, then in force, (tvistemålsloven- Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code) required that the professional judges, precisely and exhaustively, state the facts on which they base their decision on the alleged victim’s civil claim. 21. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: Article 427 “In a public prosecution, the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ... When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...” Article 428 “Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a main hearing is held. ...” Article 435 “A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.” 22. Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Section 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a. Caused personal injury or b. Committed an infringement or an act of misconduct as mentioned in section 33, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” 23. Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 192 of the Penal Code. 24. A claim for compensation for nonpecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. However, in a landmark ruling of 1996 concerning civil liability for forced sexual intercourse (Norsk Retstidende 1996, p. 864, at p. 876; Ringvold v. Norway, no. 34964/97, §§ 16-19, ECHR 2003II) the Norwegian Supreme Court held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed (“klar sannsynlighetsovervekt”). This burden was heavier where liability may have serious consequences for the respondent’s reputation, though it was less than for criminal liability. 25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2). 26. The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, subchapter 1.2.1). 27. The above-mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal. It may serve the interests of economy of procedure and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings. In comparison with civil proceedings, such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims. If the compensation proceedings had to await a final outcome in the criminal case (at three levels of jurisdiction), it could take years before they could start. For the victim, and also for the acquitted, this could involve a considerable extra psychological burden. Moreover, in joint proceedings, the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim. Furthermore, the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones. On the contrary, in view of the problems related to examining the criminal evidence twice, the effect would tend to be more consistent under the latter. Finally, in criminal cases giving rise to more than one civil claim, deciding them all at the same time in connection with the criminal process would ensure a greater degree of “procedural equality” and coherence (ibidem, Chapter 6, sub-chapter 6.3.1 and 6.3.2).