A v. NORWAY
Inadmissible
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant, A, is a Norwegian national who was born in 1990. He is represented before the Court by Mr H. Birkeland, a lawyer practising in Bergen. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2 3. On 6 June 2012 an indictment was lodged against the applicant for having engaged in sexual activity – intercourse – with a child who was under 14 years of age. The indictment stated that the applicant, on an occasion during June-July 2011, had inserted his penis into the vagina of X, born in 1998. 4. The charges were heard by the District Court (tingrett) on 4 and 5 December 2012. The applicant argued that he and X had not had intercourse. On 12 December 2012 the District Court convicted the applicant, sentenced him to three years’ imprisonment and ordered him to pay X a sum of 80,000 Norwegian kroner (NOK) (approximately 8,200 euros (EUR)) as civil redress. 5. The applicant appealed against the assessment of evidence relating to the question of guilt (“bevisvurderingen under skyldspørsmålet”) and the award of redress to X. 6. On 22 February 2013 the High Court (lagmannsrett) granted leave to appeal, and appeal hearings were held from 13 to 16 January 2014. By judgment of 17 January 2014, the jury acquitted the applicant. The civil claim submitted by X was to be decided by three professional judges, of whom a majority of two found that the conditions for civil liability had been met, and again awarded NOK 80,000. 7. On the issue of the civil claim for redress – which was dealt with in a separate part of the judgment, under the heading “the High Court’s professional judges’ assessments of the civil compensation claim from [X]” (“Lagmannsrettens fagdommeres vurderinger av det sivilrettslige erstatningskravet fra [X]”) – the High Court judges unanimously stated as their starting point that the applicant had been completely cleared of the criminal accusations (“fullstendig renvasket”) and acquitted of the charges with no reservations (“reservasjonsløst frifunnet for tiltalen“). He was unconditionally innocent under criminal law (“ubetinget strafferettslig uskyldig”). This was an acknowledgment of the factual situation and the judges had neither the right nor the wish to change this (“som fagdommerne hverken er berettiget til å rokke ved eller har noe ønske om å endre”). 8. By way of introduction the majority in the High Court noted that the criminal proceedings against the applicant was by then history (“et tilbakelagt stadium”) and that it would only consider the civil claim of X. It followed clearly from case-law of the European Court of Human Rights and the Supreme Court that a civil compensation claim could be adjudicated subsequent to a criminal case having ended with acquittal. The majority went on to examine X’s claim for financial redress, recalling that the civil rules on evidence applicable to the case required a clear or qualified preponderance of likelihood (“klar eller kvalifisert sannsynlighetsovervekt”). Upon thereafter reciting the legal basis for X’s redress claim, section 3-5 of the Compensation Act (see paragraph 22 below), it noted that the only relevant open question (“det eneste relevante åpne spørsmålet”) in the case before it was whether intercourse had taken place between the parties. If that was the case, there were no questions concerning the applicant’s intention, the half-hearted consent of X or whether the applicant had been mistaken as to X’s age. 9. Considering the evidence as a whole, the majority found clear preponderance of likelihood that the applicant had on one occasion had intercourse with X. Its starting point was X’s statement that had been taken by a judge (dommeravhør). X had told a friend of her own age about having had intercourse with the applicant some two-three months earlier. Her friend had told his mother, who had in turn notified the child welfare authorities. Misconceptions had at this point developed – it had been perceived that X had been raped two times by an adult – and X was ultimately contacted and asked what had happened. X had then explained that she and the applicant once had had intercourse; it had been voluntary, although she had been uncertain. X had emphasised that the applicant was kind and it was known to her family that she was in love with him. The two had also attempted to have intercourse on one other occasion, but had not carried this out. 10. From X’s extensive statement it followed that the intercourse had taken place late night or early morning in a cabin. Besides the applicant, X’s nephew and a girlfriend of his had also been present. X had had a few glasses of cider. The nephew and his friend had gone into one bedroom; X and the applicant into another, where they had had intercourse. X had consistently upheld her statement, whereas the applicant had consistently denied it. 11. The High Court’s majority found that decisive importance had to be attached to X’s statement. It had been consistent and, if anything, X had sought to downplay (“underrapportere”) the extent of what had happened and had pointed to the applicant’s positive sides when confronted with the notification that had been given to the child welfare authorities. As to that notification (see paragraph 9 above), there could be a number of reasons why it had misrepresented X’s story; X had herself been a child, who had confided in her friend – another child – who had in turn spoken to his mother. There was no evidence to indicate that X had told what the child welfare authorities had perceived. Even if it were the case that X had used the word “rape” when speaking of what had happened, this could not be decisive; also the legislator had used that term to describe intercourse with a minor. 12. X had grown up under demanding circumstances; her parents had left each other, her mother was alcoholic and had numerous times been admitted to psychiatric treatment. The child welfare authorities had periodically placed X in care with her siblings. She had nonetheless done well, both socially and at school. Prior to the intercourse, she had to some degree harmed herself and this situation had since deteriorated considerably; she had started to cut her skin not only on her arms but also on her thighs to give vent to pain and sorrow. She had more or less gone into hiding at the attic, skipped school and also become a victim of considerable bullying. 13. Also the applicant had had a difficult childhood. He had lived in a home characterised by intoxication and violence until, at the age of 13, after having been injured by a stepfather, he had packed a bag with clothes and departed for his grandmother, where he had remained. 14. The High Court’s majority went on to state that there was “nothing to indicate” that X had been testifying incorrectly about the intercourse, “apart from” the fact that the applicant had denied having intercourse (“[f]lertallet finner at det ikke er noe som tilsier at [X] har forklart seg uriktig om samleiet, bortsett fra at [the applicant] benekter samleie”). X’s nephew had stated that he could not understand that his friend (the applicant) could do such a thing towards his aunt – a serious infringement of the friendship between himself and the applicant – but that he also could not rule it out. 15. It was uncertain how long the two couples had been in the respective bedrooms during the night at the cabin, and when X had left. The majority of the High Court did not find that any importance could be attached to the nephew and his friend not having heard anything that indicated that an intercourse took place in the neighbouring room, although one could apparently “hear every sound” between the two rooms (“det skal ha vært svært lytt mellom værelsene”). 16. Based on an overall assessment and attaching particular importance to X’s statement and her subsequent self-harm and isolating behaviour, the majority concluded that there was a qualified preponderance of likelihood for intercourse having taken place. There was accordingly a legal basis for awarding X a “purely civil-law compensation” (“en rent sivilrettslig erstatning”). 17. The minority in the High Court noted in essence that the case only gave rise to the question of what had happened (“actus reus”), not the mental element (“mens rea”) of the accusations against the applicant. In the minority’s view, the majority, by finding that there had been a qualified preponderance of likelihood that intercourse had taken place, had in reality stated that it had found the evidence insufficient for criminal conviction, but sufficient for civil liability (“det flertallet i realiteten har gjort er å si at de[t] mener det nok ikke var bevis tilstrekkelig til domfellelse bare til erstatningsansvar”). This ran, in the minority’s view, contrary to the presumption of innocence. 18. According to the minority, the question had also to be assessed in the light of the fact that the District Court had first given reasons for its conviction of the applicant, while the jury in the High Court had not given any reasons for its acquittal, and it was unknown how many had voted in favour of acquittal or conviction, respectively. Furthermore, the reasons provided by the majority of the High Court judges in their decision on the civil claim were in reality a continuation (“påbygging”) of the reasons provided by the District Court. Moreover, the jury had not been asked a separate question on whether intercourse had taken place; instead a more complex question including all conditions for criminal liability had been asked. Lastly, although the question of civil claims had been decided subsequent to the decision to acquit the applicant of criminal liability, it was nonetheless decided in continuation of the criminal case. The minority concluded that it would not, given the specific circumstances in the present case, be possible to order the applicant to pay civil redress without impinging on his right to be presumed innocent. 19. On 27 February 2014 the applicant appealed against the High Court’s ruling on the civil claim to the Supreme Court (Høyesterett). He submitted that the High Court’s reasons for awarding civil redress ran contrary to the presumption of innocence as set out in Article 6 § 2 of the Convention and that it followed from Article 13 of the Convention that the High Court’s judgment, insofar as it concerned the civil claim, had to be quashed. 20. On 4 April 2014 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) declared that the applicant’s right to be presumed innocent as enshrined in Article 6 § 2 of the Convention had been violated. The Committee first stated that the High Court had correctly explained the differences between the rules on evidence applicable to criminal and civil cases, respectively. It had also emphasised that the finding of civil liability did not affect (“ikke rokket ved”) the acquittal of criminal liability. The Committee went on to note that the High Court had stated as part of its reasons the above phrase that there had been “nothing to indicate that X had been testifying incorrectly about the intercourse, apart from the fact that the applicant had denied having intercourse” (see paragraph 14 above). In the Committee’s view, this phrase could give the impression that the High Court had not been in doubt that X’s testimony had been correct. In the light of the evidentiary situation in the case, the High Court had thereby cast doubt on whether the conditions for criminal liability had been met and hence violated the presumption of innocence. 21. The Supreme Court’s Appeals Leave Committee found that, in the circumstances (“etter forholdene”), it would be a sufficient remedy according to Article 13 of the Convention for it to declare that the presumption of innocence had been breached and to dissociate itself from the reasons provided by the High Court. It therefore unanimously found that neither the infringement of the presumption of innocence nor other submissions made by the applicant gave reasons to grant leave to appeal to the Supreme Court. 22. Section 3-5 § 1 of the Compensation Act of 13 June 1969 (skadeserstatningsloven) read at the relevant time: “Section 3-5 (Compensation (redress) for non-financial injury) Anybody who intentionally or by gross negligence (a) injures any person or (b) commits an infringement or an act of misconduct as mentioned in section 33 may, regardless of whether compensation for permanent injury under section 3-2 or standardised compensation under section 3-2a is paid, be ordered to pay the victim such non-recurrent amount as the court finds reasonable in compensation (redress) for injury of a non-financial kind. For offences or misconduct as mentioned in Articles 195, 196 and 200 § 3 of the Criminal Code, the nature of the act, the length of the matter, whether the act is an abuse of a relationship of relatives, care, dependency or trust, and whether the act is carried out in a particularly painful or hurtful way.” 23. Section 30-4 of the Dispute Act of 17 June 2005 (tvisteloven) reads: “Section 30-4 Leave to appeal against judgments (1) Judgments cannot be appealed against without leave. Leave can only be granted if the appeal concerns issues whose significance extends beyond the scope of the current case or if it is important for other reasons that the case be determined by the Supreme Court. (2) The issue of leave shall be determined for each appeal. Leave may be limited to specific claims and to specific grounds of appeal, including to specifically invoked errors in the application of law, procedure or the factual basis for the ruling. (3) The issue of leave shall be determined by the Appeals Committee of the Supreme Court by way of decision. A decision to refuse leave or to grant limited leave requires unanimity.” 24. The Supreme Court has several times dealt with cases in which the appellants have argued that the High Court, in the context of civil claims for compensation, had employed language incompatible with Article 6 § 2 of the Convention. In its judgment of 27 November 2003 (Norsk Retstidende (Rt.) 2003 page 1671) it concluded that the High Court’s reasons ran contrary to Article 6 § 2, and went on to examine how to remedy that situation under Article 13. The appellant in that case had maintained that the High Court’s judgment insofar as concerned the civil claim, had to be quashed in order for him to be afforded an adequate remedy. The Supreme Court, observing that based on the evidentiary situation in the case, the High Court would certainly reach the same conclusion if the Supreme Court were to quash the judgment under appeal and the High Court, hence, would be confined with the task of pronouncing a new judgment. Since the civil liability did not require that the conditions for criminal liability be met, a decision to impose civil liability could be given without having to impute any criminal liability to the appellant. The Supreme Court considered that in such circumstances, quashing the High Court’s judgment would not give the appellant any further degree of reparation than if the Supreme Court declared that the High Court had breached the Convention and distanced itself from the High Court’s problematic reasons. The Supreme Court made reference to, inter alia, Adolf v. Austria, no. 8269/78, 26 March 1982. It also took account of how a crucial element in the Strasbourg Court’s finding of a violation of Article 6 § 2 in Y v. Norway, no. 56568/00, §§ 45-46, ECHR 2003II (extracts), had been the Supreme Court’s failure to dissociate itself from troublesome statements in the High Court’s reasons in that case. This approach taken in Rt. 2003 page 1671 has since been followed in a number of Supreme Court decisions and judgments (inter alia, Rt. 2004 page 970; 2007 page 40; 2008 page 1292; and 2009 page 1456).