THIERMANN AND OTHERS v. NORWAY
Inadmissible
Christos Rozakis
The application was introduced on 10 June 2003 by three groups of applicants. The first group included seven applicants who were parties to the first set of proceedings instituted before the domestic courts: (1) Mr Werner Hermann Thiermann (Farstad, Norway), (2) Mrs Harriet von Nickel (Al Made, Portugal), (3) Mrs Anne-Marie Grübe (Sarpsborg, Norway), (4) Mrs Gerd Synnøve Andersen (Sarpsborg); (5) Mr Karl Otto Zinken (Ski, Norway); (6) Mrs Tove Laila Strand (Oslo, Norway); (7) Mr Paul Hansen (Oslo). They are all Norwegian nationals. The second group consisted of 48 persons whose names are listed in the Appendix hereto and in respect of whom a second summons was issued before the national courts (this summons had concerned altogether 50 litigants). They are all Norwegian nationals. The third group comprises 60 persons whose names are listed in the Appendix and in respect of whom a third such summons was issued (this summons had concerned altogether 64 litigants). Two of these persons are citizens of Sweden, the remainder are Norwegian nationals. As the parties of both the second and third group were not allowed to join the case of the first group, they filed a separate action, which was stayed pending the outcome of that brought by the first group. In the light of the result they considered it futile to pursue their action. On 12 December 2003 a fourth group of 44 persons, whose names are listed in the Appendix (two of whom are citizens of Sweden, one of Germany and the remaining are Norwegian nationals), joined the above-mentioned application introduced on 10 June 2003. Because of the outcome in the case pursued by the first seven applicants, they considered bringing any proceedings themselves before the national courts to be devoid of any purpose. The applicants are represented before the Court by Mrs R.H. Spydevold, a lawyer practising in Oslo. The Government are represented by their Agent, Mr Thomas G. Naalsund, Attorney General's Office (Civil Affairs). The facts of the case, as submitted by the parties, may be summarised as follows. The applicants have in common that they have a Norwegian mother and a German father and were born during the Second World War. A number of them were registered as children of “Lebensborn” (which means “spring of life”). The “Lebensborn” was a Nazi project created by Heinrich Himmler in 1935, with the aim of taking care of mothers and children who were deemed valuable from “a racial and genetic” point of view. Young girls considered "racially pure" were to be offered the possibility to give birth to a child in secret. The child was then to be given to the SS organisation which was to look after his or her education and adoption. A Norwegian centre was established in 1941. During the period between late 1940 and 8 May 1945, between 10,000 and 12,000 children were born in Norway from a Norwegian mother and a German father. They were referred to as “war children” (krigsbarn). A large number of mothers to war children were marginalised, had great difficulties in obtaining gainful employment and were incapable of providing for the upbringing of their offspring. In many instances their children were placed for adoption, in foster homes or in institutions. Towards the end of the War and thereafter, various public officials, notably clergymen and medical doctors, expressed publicly negative opinions about the war children. This included allegations to the effect that the latter were defective individuals and potential fifth colonists. On 9 July 1945 the Ministry of Social Affairs appointed a War Children Committee (krigsbarnutvlaget) to review whether it was desirable to deport the war children and their mothers to Germany and, in any event, what special measures could be taken to integrate the children as ordinary citizens in Norway. The Commission's report, which was completed in the autumn of 1945, advised against deportation and recommended the launching of an extensive and carefully prepared information campaign in order to influence public opinion to become favourable towards the war children and to extend that concept to cover not only those children whose fathers were German but also those whose fathers were of other foreign nationalities. According to information supplied by the Government, the authorities concluded that in the circumstances at the time such a campaign was neither necessary nor desirable. In this connection the Government referred to the minutes of the Sixth Nordic Child Protection Congress in 1948, according to which the Norwegian representative, and secretary-general of the Norwegian Child Protection Council, Mr Oscar Lyngstad, stated: “The authorities have accepted the consequences of the fact that under Norwegian law the children are Norwegian citizens with the same legal position as other children. It is now generally recognised that the war children should fit into society among other children without attention being specially drawn to them.” The Government further referred to a Bill to Parliament (Odelstingsproposisjon No. 37 (1949), page 2, which stated: “The War Children Committee made its report in November 1945 and here proposed a number of measures with a view to solving the different problems that were expected to arise. The Commission also proposed a special War Children Act. None of these measures were implemented, as it was found that the children were quite quickly absorbed by society. Most were taken in by relatives or put up for adoption. It has not been necessary in the interests of either the children or their mothers to take special protective measures.” According to the applicants, the authorities were responsible for having actively and passively contributed to war children having been treated as “free for all”. This failure had occurred despite the authorities' having been aware, as it emerged from the War Children Committee's report, of widespread public opinion that the war children were potential fifth colonists, mentally retarded and carriers of poor genes. As a result, a number of war children had been placed in psychiatric institutions without adequate prior expert assessment. Many had been subjected to discrimination, harassment and ill-treatment in children's homes, educational establishments, adoptive homes and foster homes and to derogatory treatment in their close social environment. In his New Year speech to the Norwegian people on 1 January 2000 the Prime Minister, Kjell Magne Bondevik stated: “... [W]e cannot let the turn of the century pass without taking in the injustice suffered by many war children in the Post War area. On behalf of the State of Norway I should like to apologise for the discrimination and injustice to which they had been subjected.” The first, second and third groups of applicants, but not the fourth group, submitted briefs about their individual story with their initial application. In connection with the Court's oral hearing on 8 March 2007 most of the applicants in the fourth group submitted such information. On that occasion the applicants in the first group submitted various medical statements and other documents regarding their personal health that were submitted in the domestic proceedings, notably before the High Court. Also a number of the applicants in the second group and a few of the applicants in the third and fourth groups submitted such statements, mostly of more recent dates. The documents provided information on their health status and variously also on the applicant's accounts about their past as war children. For the purposes of the present decision, the Court considers it sufficient to reiterate the accounts of the first seven applicants. The first seven applicants are members of the Krigsbarnforbundet Lebensborn (Association of War Children of Lebensborn), which was created in 1999 and has approximately 80 members. There is also Norges Krigsbarnforbund (the Norwegian War Children Association), set up in 1986 and comprising around 700 members. The first applicant, Mr Werner Hermann Thiermann, was born in 1941. During the War he lived in a children's home established by the Germans. Thereafter he was placed successively in about 20 different homes. For a few years he lived with his grandmother, before being placed with foster parents. The first applicant submits that while he was living in one of the children's homes, he and a little girl were locked up in a pig house for a whole day because, so they were told, they stank. It was scorching hot and when they were released at night they were almost unconscious. They were scrubbed with a piassava brush, water and ammoniac. During this treatment they were made to understand that it was due to the fact that they were war children. Because he was a war child, the first applicant was harassed at school and in his close environment, without anybody trying to stop it. As a nine-year old he was, with his teacher's blessing, raped by some older boys at school. After having finished school at the age of 17 he went off shore. He spent a few years in Germany and then returned to Norway in order to serve his military service. He wished to pursue further education within the Army, but was dissuaded from doing so because of his background. When he was 16 or 17 years old he took for the first time formal steps to look into his background, with the assistance of the Red Cross. During most of his professional life, the first applicant had worked as a driver. From 1981 to 1985 he ran his own business as a lorry driver. In 1986 he went bankrupt and in 1987 he was granted a disability pension on account of psychological problems and back pain. In 1999 he resumed working as a driver, part time. Born in March 1942, the second applicant, Mrs Harriet von Nickel, lived during her first 17 months with her grandmother, until she was placed with foster parents who had initially asked for a boy. Love and care were totally lacking in the foster home, where she was told that she was ugly, bad, stupid and had heinous genes. She was regularly locked up in a utility room near the hall to wait for her foster father to come home and hit her. On some occasions, in order to prevent her from escaping, she was attached by a dog chain. She was spanked extensively both at home and at school. Once during a geography lesson she was asked to stand up so that the whole class could see what a “German kid” (tyskerunge) looked like. When she was seven or eight years old a dentist purposely drilled her gum. At the age of nine or ten some alcoholics in her neighbourhood marked a swastika with a nail on her forehead and verbally abused her. She fled from her foster parents and went to Germany to see her father, but there she was arrested as an illegal immigrant and was returned to Norway. For a short period she went to secondary modern school, but had to leave. In 1989 she applied for a disability pension, which she was granted with effect from 1 June 1988. In 1990 she published a book about her background. The third applicant, Mrs Anne-Marie Grübe, was born in April 1944. After the war her mother worked and left her at home all day unattended, until she was moved to her grandmother's home in Moss. There she was beaten a lot by her grandmother and her aunts. One of her aunts told her that if her mother had stayed away from the Germans her grandmother would not have had to take care of her. It did happen that she was given presents, but she experienced that these could be taken away from her after a few days. Frequently house arrest was imposed upon her. Love and care were missing in her home. She started at ordinary school but was moved to a class for children needing special attention. She was harassed at school. In her local environment people shouted words like “German kid” or “løsunge”. Over the years she has had great psychological and physical problems. She started to receive a disability pension in 1974. The medical certificate supporting her pension application referred to her traumatic childhood. The fourth applicant, Mrs Gerd Synnøve Andersen, was born in August 1944 in Sarpsborg. She believes that for the first two years of her life she was placed in a barracks. Thereafter she was placed in a children's home. She was washed with scalding hot water, being told by the headmistress that this was the best and only way of cleaning “German children” with greasy hair. The children's home deprived her of her liberty and prevented her from having normal social contacts as she was never allowed to receive visits from friends. Throughout primary school she was placed in a class for children needing special attention. Due to lack of knowledge, she did not manage to complete secondary modern school. She was regularly exposed to violence. During her sixth school year a teacher sexually abused her. This was witnessed by the whole class and led to the teacher's dismissal. When she married at 18 years old the priest stated that he thought she should be sterilised. In 1995 she started to receive a disability pension. The fifth applicant, Mr Karl Otto Zinken, was born in August 1941. He stayed in a children's home in 1945. As a six year old he was returned to his mother. He went to ordinary primary school before he was placed in a special school for retarded persons, which he completed. It is clear that he should never have been sent to such a school and that the reason for sending him there was his status as a war child. In connection with a medical examination he was subjected to brain-washing by a psychiatrist together with other men who surrounded him in a circle. They told him what a scum of the earth he was and that he should not seek to multiply; otherwise he would go to hell. He should never assert himself, or else he would be killed. He was raped by two of the men. The fifth applicant was rejected by his stepfather's family and was harassed by the latter's children. He was never cared for and had a terrible childhood and youth. As an adult he had a normal life with a good job. The ill-treatment and his attempts to suppress the traumas he had experienced led him into a deep psychotic state in 1996 and incapacity to work. In the years that followed he was committed to a psychiatric hospital a number of times. The sixth applicant, Mrs Tove Laila Strand, was born in November 1941 in Hønefoss. At the age of two she was taken from her mother and sent to Germany, where she lived with her grandparents until the age of six, when the Norwegian Red Cross returned her to her mother in Norway. The sixth applicant's mother had previously been declared unsuited to assume the care for her, which was reflected in the manner she was treated by her mother. The latter continuously ill-treated her by hitting her, making burn marks with an iron, scratching her with needles and such like. From the age of six until she turned 15 her stepfather abused her sexually. She fled home. Her physical and psychological suffering gave her an ulcer. Her grandparents in Germany were loving and caring persons and wished to keep her in their care. Had she been able to grow up with them she would most probably have had a normal life with a normal standard of living. In Norway she felt it necessary to keep silent about her origins both in her social and her professional environment, due to the negative self-image that had been imposed on her. She is now so damaged from the ill-treatment that she is incapable of carrying out normal work. The seventh applicant, Mr Paul Hansen, was born in April 1942 at Hurdal Verk. After a certain period he, together with 19 other children, was committed to the Godthåb Lebensborn Home in Bærum. In 1946 he was transferred to the Emma Hjort Psychiatric Hospital, where he stayed until 1950 when he was placed in an institution named Furuheim at Tjøme. After having spent periods at different homes under the mental healthcare services in the Vestfold County he returned to the Emma Hjort in 1960, where he stayed until 1965. He submits that no expert assessment had been made as to the propriety of his being committed to these various institutions. His being wrongly placed had been a consequence of the authorities' decision to transfer the children at the Lebensborn Home to Emma Hjort. He was not exposed to any physical abuse, but the fact that he had been considered mentally retarded and had lived together with persons so considered during his entire upbringing had marked him considerably and constituted a great burden for him, substantially reducing his quality of life. He regularly had nightmares and has been suicidal. In 1984 he was granted NOK 80,000 in ex gratia compensation (billighetserstating) from the State for having received a deficient education. On 10 December 1999 the first seven applicants instituted proceedings before the Oslo City Court (tingrett). They argued that because of their origin they had been the victims of violations of Articles 3, 8 and 14 of the Convention. They considered that the Norwegian State was responsible for the violations, inter alia because public officials had expressed attitudes towards the war children which had contributed to people adopting a negative perception of them, which in turn had led to infringements having been committed against the children. The State had failed to take any action to prevent the abuse, amongst others the measures recommended by the War Children Committee. The first seven applicants sought (1) a ruling to the effect that the State was responsible for violations of their fundamental human rights and (2) ordering the State to pay each of them compensation in an amount not exceeding NOK 2,000,000. The City Court gave a decision and a judgment (kjennelse og dom) on 16 November 2001 with a common reasoning. It observed from the outset that not only did the parties disagree about the manner of resolution of the legal disputes but they also disagreed on what questions the City Court should determine. It found that item (1) of the first seven applicants' requests could reasonably be viewed as one for a declaratory judgment (fastsettelsesdom), whereas item (2) ought to be understood as a compensation claim. The City Court considered that the State could not be held liable for any actions or omissions referable to the period between 1945 and the entry into force of the Convention in September 1953. Moreover, the various instances of abuse of which the first seven applicants complained could not be considered a continuing situation either for the purposes of national law (criminal or tort) or the Convention. In this regard the City Court stressed that it had to be demonstrated in each individual case, as the applicants had attempted to do, that he or she had been the victim of specific violations. The individual plaintiff's claims ought to be considered individually, and thus it was not decisive whether other war children had or had not been victims of violation over a shorter or longer period. Then the City Court went on: “The violations to which [first seven applicants] have referred, concern very different offences. They concern different forms of violation – passivity on the part of the Government, statements from public individuals, serious crimes such as rape, and harassment by private individuals. Moreover, the violations have taken place over a period of 55 years. These are factors that militate strongly against an ongoing situation as this term is defined in compensation and criminal law. This being so, in the City Court's opinion, it cannot be assumed that we are dealing with a single ongoing situation, in the sense that abuses committed in 1945 are not time-barred as long as the victim can today be subjected to a violation of a quite different character. As regards the relationship to the ECHR, it is the individual abuses against which the Convention protects the citizens.” The City Court considered that item 2 of the first seven applicants' request was time-barred under section 9 of the Act relating to the Limitation Period for Claims 1979 (Lov om foreldelse av fordringer nr. 18 of 18 May 1979, hereinafter referred to as “the Limitation Act 1979”), according to which a compensation claim for non-pecuniary damage was time-barred 3 years after the injured person had become or ought to have become aware of the damage and the identity of the person responsible or, in any event, 20 years after the impugned act or other circumstances giving rise to liability. In addition, a 10-year rule which was in force until 1996 was applicable. The City Court was of the view that all of the first seven applicants' claims must have been time-barred under the 20-year rule, which meant that the claims were time-barred at the latest in 1985, 20 years after the youngest plaintiff turned 21. As regards the fifth applicant, he had alleged that the abuse occurred in 1945, 8 years before the entry into force of the Convention. The City Court added that, due to the long lapse of time, it was impossible to prove the alleged violations; no witnesses or documentary evidence could be adduced. Therefore the limitation of the claims did not just have a formal reason but also a substantive one. As regards item 1 of the first seven applicants' requests, the City Court considered that they did not have an actual legal interest for the purposes of Article 54 of the Code of Civil Procedure. In reaching this conclusion the City Court had regard inter alia to its finding that the first seven applicants' compensation claims were time-barred; that the main criticism against the State, namely its failure to take certain measures in the Post War period, fell outside what could be made the subject of a review of the merits of the case; that the first seven applicants' interest in having historical truths ascertained by the judiciary could hardly be achieved given the very great number of war children compared to the number - 122 - of litigants in the proceedings. Nor did the City Court find that making a declaratory judgment in the first seven applicants' case was warranted by other reasons. In cases concerning, as here, allegations of violations of human rights, this would depend on the character of the violation, whether the proceedings had been instituted within a reasonable time, whether other possible remedies had been exhausted; the importance of the case for the victim and the jurisprudential value of the ruling. However, in this case the central points of the first seven applicants' complaint against the State fell outside the temporal scope of the Convention; the possibilities of the judiciary to review policy choices were very limited; the pecuniary claims were time-barred; the applicants had had the opportunity to have their complaints of violations of the Convention examined by the courts; the case concerned mainly circumstances more than 55 years back in time; no information had been submitted to the effect that similar proceedings had been instituted in other countries nor that the treatment of war children had been worse in Norway than in other countries, a question to be assessed by researchers; in order for the 122 out of 10,000 litigants to succeed in the proceedings it would be necessary to provide documentary evidence beyond the first seven applicants' own statements; as was undisputed by them, the alleged violations were not capable of being proved, whereas criminal liability required proof beyond reasonable doubt and civil liability for misplacement and malpractice in respect of the children raised complicated questions. In view of the above, the City Court found it difficult to see how the first seven applicants could benefit from further judicial review of the case. The parties were in agreement that the matter had not come to an end. In the view of the City Court, it would be best for all the parties involved to leave these issues to historians and politicians, not lawyers. The City Court dismissed (avviste) the case by a decision (kjennelse) in so far as item 1 of the first seven applicants' requests were concerned and rejected the claim against the State by a judgment (dom) with respect to item 2. The first seven applicants had been granted free legal aid in the proceedings and the State had made no request for costs. The first group of seven applicants then appealed to Borgarting High Court against the City Court's decision and judgment. On 29 May 2002 the first group of applicants withdrew their appeal against the dismissal by the City Court of item 1 and reformulated their appeal against its judgment regarding item 2. As a result, the former part of the case was discontinued by the High Court in a separate decision, whereas the proceedings concerning the latter part were focused on the limitation issue. By a judgment of 21 June 2002 the High Court, sitting with 3 professional judges and 4 lay judges, unanimously upheld the City Court's judgment, observing inter alia: “[The first seven applicants] argue that their claims in the case are based on Convention violation, and are not claims in damages law in the normal sense. The High Court cannot see that there is any basis for this argument. Norway's accession to the European Convention on Human Rights did not entail an obligation to incorporate the Convention into Norwegian law; the Convention mandated Norwegian authorities, through legislation and otherwise, to safeguard these rights and ensure that they were not interfered with unless authorised under the Convention. [The first seven applicants] have argued that for many years since the Second World War their human rights have been seriously violated, in part through acts of persons for whom the Government must be seen as directly liable, in part because the authorities had failed to protect the war children and safeguard their rights. The High Court bases its consideration of the time-barring on this claim, without needing to take a position on its merits. [The first seven applicants] argue that these acts and omissions on the part of the authorities have caused them damage of both pecuniary and non-pecuniary nature. The claim advanced here by [The first seven applicants] regarding financial compensation for such injury is, in the High Court's view, a compensation claim, as this expression is used for example in the Damage Compensation Act 1969 and section 9 of the Limitation Act. .... [The first seven applicants'] argument that claims for reparation for breach of human rights are not a damages claim in the normal sense cannot therefore succeed. The same applies to the argument that there were previously no statutory powers for the claim under Norwegian law, but that such powers were not created until the Convention was made part of Norwegian law in 1999. In this connection it is not necessary to discuss the detailed content of and development of the State's employer liability, the State's non-statutory objective liability and general liability for negligence in relation to public activities in the years that have elapsed since the Second World War. It follows from the presumption principle that the Norwegian compensation law must be presumed to be, and to have been, in conformity with our obligations under international law, so that the claims for damages could have been raised before the Human Rights Act entered into force, possibly in reliance on the rules of the Convention and the case law of the European Court of Human Rights. It must further be regarded as reliable law that the provisions of the Convention are not an impediment to the individual countries' operating with limitation periods also in areas that are embraced by the Convention's rules. Such time-barring rules are deemed not to be in conflict with Article 6 of the Convention, on the right to have one's civil rights determined by a court, see the European Court of Human Rights' judgment in the case of Stubbings and Others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions 1996IV, § 50-53). The time-barring rules must not be such as to make this right in reality illusory, for example by being unreasonably short. In the Stubbings case the European Court of Human Rights found that it was not incompatible with the Convention that a person's right to bring a civil action for damages for having being sexually abused as a child lapsed three years after that person came of age. It is stated in paragraph 66 of the judgment [...]: '.... Article 8 does not necessarily require that States fulfil the positive obligation to secure respect for private life by the provision of unlimited civil remedies in circumstances where criminal law sanctions are in operation.' As the High Court points out below, [the first seven applicants'] claims must be regarded as time-barred under the twenty-year rule of section 9 (2) of the Limitation Act. The High Court finds it clear that a limitation period of such duration is not incompatible with the Convention. A corresponding view of the power of the state to operate with civil-law time-barring rules follows from the Commission's decision in the case of Dobbie v. the United Kingdom ((dec.) no. 28477/95 16 October 1996) with references. Here it was not deemed to give rise to a violation of Article 8 that the right to bring an action for damages against a physician in connection with a breast operation was limited. Both the Court and the Commission have also noted that there is a 'limitation period' also as regards the right to bring cases before the Court itself, namely the six-month time-limit in former Article 25 and the current Article 35 § 1 of the Convention, a time-limit that is applied strictly, see the Dobbie decision. It follows from the Dobbie and Stubbings rulings that it is not incompatible with Article 6 [...] or Article 8 [...], for the States to operate with limitation rules for civil compensation claims. Nor have States any general duty to pay damages to those subjected to abuse from private persons, see the European Court's decision in Stuart v. the United Kingdom ((dec.) no. 41903/98, 6 July 1999). It must follow from this that, also when a damages claim is brought directly against a State, it can be limited under national rules without impediment from the Convention, even if the claim concerns loss and injury in areas covered by the Convention. It is also reliable law that damages claims against public authorities are time-barred under section 9 of the Limitation Act, and that the rule applies regardless of the ground for liability, see Kjønstad & Tjomsland's 'Foreldelsesloven' (the Limitation Act) (1983) p. 75. Under section 9(2) of the Limitation Act, compensation claims, including claims made outside contractual relations in respect of non-pecuniary damage, are time-barred 20 years after the damaging act or other circumstances giving rise to liability had ceased. The alleged ground for liability on the part of the State was [...] that the authorities had not carried out the necessary measures in order to secure the war children's human rights. As regards failures to act, the starting point for limitation is the time when the duty to act has ceased [...]. Such a duty for the State to act should in the view of the High Court have ceased at least when the [The first seven applicants] reached the age of maturity, which in the case of the youngest of them was in 1965. After this point in time there could not have been any duty for the authorities to launch an information- or attitude building campaign for persons who were born from a German father and a Norwegian mother in connection with the War, or to carry out other measures for the protection of their human rights. This cannot be altered by the fact that the [first seven applicants] have encountered abusive attitudes and speech because of their background even as adults. In this connection there is no basis for the [first seven applicants'] argument that the ground for liability consists of a continuing situation which has not ceased. That the effects of the damaging acts are durable and arise late does not mean that the 20 years' time-limit does not start to run. The High Court adds that, as pointed out by the City Court, the considerations which underlie the limitation rules apply fully in cases such as the present, where there would otherwise be question of adjudicating occurrences and causal events dating 40 to 50 years back in time. The 20 years' rule in section 9 of the Limitation Act was new when the Act entered into force on 1 January 1980. It has later been amended, without it having any importance here. It follows from the transitional provision in section 31 that the [first seven applicants'] possible claims against the State were time-barred at the latest in 1985. The proceedings against the State were instituted in 1999. Therefore the City Court's judgment must be upheld. [...]” The first seven applicants sought to appeal against the High Court's judgment to the Supreme Court, but on 11 December 2002 the Appeals Selection Committee of the Supreme Court refused them leave to appeal, finding it obvious that the appeal had no prospects of success. In January and February 2002, the second and third groups of applicants (who had been refused to join the case of the first group) and the State agreed to stay the proceedings in their cases pending a legally enforceable decision in the case brought by the first seven applicants, which the City Court decided to accept. In two decisions taken respectively on 2 June 2004 and 23 September 2004 the City Court upheld a request by the State to dismiss the suits from the second and third groups of applicants on the ground that none of the parties had requested resumption of the proceedings within the statutory two years' time limit. On 2 February 2005 the applicants filed with the Court's registry copies of two research reports published in 2004, one entitled Staten og krigsbarna- En historisk undersøkelse av statsmyndighetenes behandling av krigsbarna i de første etterkrigsårene (the State and the War Children, a historic survey of the war children's treatment by the State authorities during the first Post War years) by Mr Lars Borgersrud and the other entitled Krigsbarns levekår, En registerbasert undersøkelse (War Children's Conditions of Life, a Register Based Survey), by Mr Dag Ellingsen. The first report is an extensive study running to some 400 pages. It included (on p. 392) the information set out here below. In July 1945, 30 Norwegian war children whom the Nazis had taken to Germany for adoption had been brought to Sweden, where they had been adopted. On 17 August 1945 the Government had issued a provisional decree (provisorisk anordning) depriving mothers who had married Germans after 9 April 1940 and their children of their Norwegian citizenship indefinitely, following which most of these women were deported. On 12 October 1945 the Government decided to stop the deportation project. The provisions of the above decree had later been included in an Act of 13 December 1946. On 1 January 1949 the Act had been amended so as to make it possible for war children to re-acquire Norwegian citizenship; this did not apply to their mothers regardless of whether they continued to live in Norway. On 8 December 1950 a new Citizenship Act had been adopted, repealing the above-mentioned provisions. Under the new Act the mothers could re-acquire Norwegian citizenship and the children could have this restored as of right when they turned 18 or on application to the Government. In the Act on Child Allowances adopted on 24 October 1946 war children were in effect excluded, which situation persisted until the entry into force on 1 April 1958 of the Bread Winner Insurance Act and Advance Payment Act, both adopted on 26 April 1957. The second report stated (in a summary on p.3) that the living conditions of war children were a complex matter. On the one hand there were a number of findings that indicated that many of the war children had worse living conditions than others of the same age. The mortality during the period from 1960 until present was clearly higher among the war children. The mortality related to suicide was higher, as was that caused by heart and blood illnesses. A number of war children had become disability pensioners at a relatively young age. On the whole it suggested that a considerable proportion had health problems and, as a result, a lower quality of life. The divorce rate was clearly higher among the female war children than others. Fewer had higher education, the average income level was lower, and wealth was clearly less. On the other hand there were several similarities between the war children and other persons of the same age, such as the frequency of marriage, the divorce rate among men and the frequency of parenthood. Many war children appeared to have had a life as ordinary people: they had an ordinary education, an average income, acceptable accommodation, were married and had children. As regards the position of war children and their mothers under Norwegian law on citizenship and maintenance support, the Government submitted to the Court inter alia what is stated here below. In order to avoid dual citizenships it followed from section 8 of the Citizen Act of 8 August 1924 that a Norwegian citizen would loose his/her citizenship if he/she gained another citizenship. The exemption to the rule was if he/she still lived in Norway. The general state of law in Europe prior to the Second World War was that a wife would be accorded her husband's citizenship after marriage. After the war it was deemed as offensive to the general sense of justice if Norwegian women, married to Germans, who therefore had become German citizens, should retain their Norwegian citizenship if they still lived in Norway. The aim of the 1945 decree, transformed into state law in 1946, was to make it possible for the Government to send the spouses, both being German (or Austrian) citizens out of Norway. Other countries had parallel legislation at the time. Most of the amendments (in 1945 and 1946) to the Act of citizenship only applied to children of Norwegian mothers married to German nationals. Since most of the war children were born outside wedlock, they were not within the scope of this legislation. The same was the case as regards the Act on financial aid to mothers. This Act only applied to children of married women who had lost their Norwegian citizenship and did not discriminate against war children born outside wedlock. No acts were passed in the period after the war which would entail a clear discrimination of war children born outside of wedlock. By 1950, mothers and children who had been deprived of their Norwegian citizenship because the mother had married a German national could reacquire their lost citizenship. As from April 1958, benefits for war children who in effect had fallen outside the 1946 legislation because they were not Norwegian citizens could be sought under Bread Winner Insurance Act and Advance Payment Act, adopted in 1957. Pursuant to these Acts, the State was to advance child alimony to all children, including children with German fathers. Prior to these Acts the Norwegian authorities did not advance child alimony from any fathers, regardless of their nationality. The Damage Compensation Act 1969, section 2-1 reads: “An employer is liable for damage caused intentionally or negligently during an employee's performance of work or functions for the employer, taking into account whether the requirements, which the aggrieved person can reasonably make to the activity or service, have been neglected. The liability does not comprise damage or injury caused by the fact that the employee has exceeded the reasonable limits of his duties, considering the nature and range of the activity and the character of the work or function. For the purpose of these provisions, the term 'employer' means the public authorities and anybody who employs a person in his service, whether for gainful activity or not. For the purpose of these provisions, the term “employee” means anybody who performs work or functions in the service of an employer. The term 'employee' includes 'ombudsmann' in public service, officers and privates in military service and other persons performing compulsory service for public authorities, and inmates, patients and the like who take part in work in the prison authority's establishments, in health institutions etc.” Under this provision, the State, as an employer, can be held liable irrespective of whether it has acted with negligence. Furthermore, the employee/employees do not have to be identified and the employer can be held liable if the cumulative acts of its employees fulfil the criteria laid down in section 2-1. Prior to the 1969 Act, an individual could hold the State responsible for acts of its employees under general principles of law, developed in particular in judicial jurisprudence. Section 2-1 was aimed at codifying those principles. According to the Government, the State, like private individuals, could also be held liable for damage caused by negligence, under the general principles on the law of tort. This could arise in relation to a variety of activities, including notably decision making and the exercise of its different supervision and control functions. Financial claims, including claims for damages, may be lost through limitation. The Limitation Act of 18 May 1979 section 9 regulates the limitation period for claims for damages. The relevant parts of the section read: “1. Claims for damages or redress shall be subject to a limitation period of 3 years from the date on which the injured party obtained, or should have himself acquired, necessary knowledge of the damage and the person responsible. 2. Nevertheless, the limitation period shall be 20 years after the commission of the tort or other ground for liability ceased. ...” Until 1996 section 9 (2) also contained a 10 year limitation rule, which read: “2. Nevertheless, the limitation period shall be at the latest 10 years from the date on which the damage occurred, or 20 years after the commission of the tort or other ground for liability ceased. ....” Even if an individual war child cannot prove that he/she fulfils the legal criteria for obtaining damages from an individual or the State, he/she can apply for ex gratia compensation (billighetserstatning) from the State with respect to injury suffered, either due to the acts or omissions of public authorities or for instance criminal acts by individuals. This is meant to be the last resort to obtain damages when a person has suffered harm or distress. It is sufficient that the application describes the circumstances that form the basis for the claim, and if possible document these with for instance a doctor's or psychologist's certificate, testimony from family, friends or others that have knowledge of the applicant's situation etc. In particular if the events occurred quite some time back, as would be the case in relation to many war children, there are no strict requirements as to the evidence for the acts/omissions that form the basis for the claim. Furthermore, the relevant Ministry has an obligation to look into and examine the case. The arrangement of ex gratia compensation is not subject to any statutes of limitation. Whether the claim for compensation is granted is based on a test of reasonableness. It is in particular relevant if the public authorities can be blamed for the harm. It is sufficient that a public body is to blame; the identification of the wrongdoer among the public official is not a condition. Even where the authorities were not to be blamed, compensation has been awarded, inter alia in cases of personal injury due to criminal acts committed before the Regulation concerning criminal injuries compensation (forskrift om voldsoffererstatning) was passed on 1 January 1975. The amount of compensation awarded ex-gratia is based on an assessment of reasonableness. It does not attempt to cover all economic losses. The committee set to determine applications for ex-gratia compensation, composed by one former Supreme Court Judge and two members of Parliament, may award up to NOK 200 000 (in 2005). Cases where it is deemed necessary to award a higher amount or which are of a specific political nature are to be assessed by Parliament. On 1 July 2005 new rules for ex gratia compensation for war children entered into force and new guidelines were published. As a result, the possibility for war children of obtaining such compensation was expanded; for example, injury caused by bullying was included in the guidelines. The more serious types of infringements against war children were already covered by the existing guidelines, such as sexual assault, wrongful placement in an institution, inadequate schooling and reproachable conduct on the part of employees in the child protection services, within or outside the orphanage. In such cases, compensation is awarded if the circumstances are made sufficiently probable and if they have caused particular suffering, loss etc for the war child. The fact that the individual is a war child does not in itself qualify for compensation. It has been accepted that bullying may be particularly hard to prove after a long time. Thus, for war children Parliament accepted a special arrangement, whereby up to NOK 20,000 may be awarded on the basis of a credible personal statement. If there is documentation of more serious damage due to bullying, a higher amount may be awarded.