CASE OF O. v. NORWAY
Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
9. The applicant was born in 1955 and lives in Norway. 10. By an indictment of 23 June 1993, the applicant and his father were charged under Articles 195 § 1 (sexual relations with a minor) and 207 (sexual relations with a close relative) of the Criminal Code (straffeloven) with having committed sexual offences during the periods from 1985 to 1989 and 1988 to 1991 respectively against the applicant’s daughter, L., who was born on 18 October 1981. 11. By a judgment of 1 June 1994, the Eidsivating High Court (lagmannsrett), sitting with three judges and a jury, noted that the jury had answered the questions on the charges in the negative and therefore acquitted the applicant and his father. No appeal was lodged against the judgment, which consequently gained legal force. 12. Subsequently, on 29 August 1994, the applicant and his father filed a petition with the High Court requesting compensation under Articles 444 and 446 of the 1981 Code of Criminal Procedure (straffeprosessloven) for pecuniary and non-pecuniary damage caused by the criminal proceedings against them. The father sought, in the alternative, compensation under Articles 445 and 446. 13. In the compensation proceedings, the High Court, sitting with the same judges as in the trial, received written pleadings but did not hold an oral hearing. By a decision (kjennelse) of 25 January 1995, it rejected the applicant’s claim but awarded his father 30,000 Norwegian kroner in compensation under Articles 444 and 446. In the introduction to its decision, the High Court reiterated certain information derived from the criminal proceedings, notably the specific contents of the charges of sexual abuse, the jury’s verdict and the acquittal by the High Court. As regards the applicant’s claim, the High Court stated, inter alia: “The High Court notes that, pursuant to Articles 444 or 446 ... of the Code of Criminal Procedure, it is a condition for obtaining compensation that it must be shown to be probable that the accused did not carry out the act which formed the basis of the charge. Accordingly, in order to award compensation it must be shown on the balance of probabilities that the accused did not commit the acts in respect of which he has been acquitted. The High Court finds it probable that the victim [L.], born on 18 October 1981, has been subjected to sexual abuse in the form of sexual intercourse. Reference is made to the medical examination carried out ... on 21 November 1991 ... [L.’s] father and mother separated in 1989 when the mother moved to Oslo together with [L.] ... As a witness, the mother made statements about [L.’s behaviour] before as well as after the separation. This could indicate that she has been subjected to sexual abuse. The child’s behaviour resulted in the mother contacting the ... institute in the summer of 1991 where [L.] underwent individual and family therapy, as did her mother and her cohabitant. As a witness during the trial, Ms Anne Okstad, a psychologist, ... explained [L.’s] behaviour. In the light of this and of talks and symbolic games with [L.], Ms Okstad concluded that there was no doubt that [L.] had been subjected to sexual abuse. The question is therefore now whether on the balance of probabilities other persons than the defendants are behind the abuses. In this respect the judicial examinations of [L.] are of central importance and the witness evidence as to what [L.] has stated is significant. From the outset there had been no concrete information in this case about other offenders. [L.] has been subjected to judicial examinations three times ... In connection with the first examination the judge recorded that no information had been submitted which could justify a concrete suspicion of sexual abuse having been committed against [L.]. During the second examination [the applicant] was mentioned in connection with a description of immoral sexual relations and during the third examination even the grandfather was mentioned. During the examinations the information was submitted, without spontaneity, in part under pressure from the examining judge, and in part through writing down names and events on pieces of paper. According to the mother’s and her partner’s statements, [L.] had referred to both [the applicant] and the grandfather. It appeared as if the child had been under pressure to speak in order to enable the family to calm down. Ms Okstad stated that [L.], in the course of a realistic conversation, had referred to ‘intrusions, pawing, threats and aggression by [the applicant]’ and that she had spontaneously confirmed that abuse had taken place several times. She also appeared to have been agitated both during and after these conversations. Considering the case as a whole, the High Court does not find it shown on the balance of probabilities that [the applicant] did not engage in sexual intercourse with his daughter. ... [The applicant’s] claim for compensation is thus dismissed. In the light of this conclusion, there is no reason to order the reimbursement of his costs.” 14. The applicant appealed against that decision to the Supreme Court (Høyesterett). On 20 April 1995 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) upheld the High Court’s decision, stating, inter alia: “The High Court has correctly taken as its starting-point the view that under Articles 444 and 446 ... of the Code of Criminal Procedure it is a condition that it must be shown to be probable that the accused did not carry out the act which formed the basis for the charge against him and that this implies that on the balance of probabilities [sannsynlighetsovervekt] the accused did not commit the acts in respect of which he was acquitted. In this connection the Committee refers to [its decision reported in] Norsk Retstidende 1994, p. 721, where the first voting judge stated, with the approval of the other judges, inter alia: ’Compensation pursuant to Article 444, first sentence, must – when the accused is acquitted or the case against him is discontinued – cover the financial losses he has suffered if “it has been shown to be probable [gjort sannsynlig]” that he has not carried out the act which formed the basis for the charges. It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence in that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence must apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the ability of the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated, the situation may easily arise that an acquittal is not sufficient to justify a compensation claim where the accused is unable to discharge the burden of proof. I should like to stress that the refusal of a compensation claim does not imply that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation claim must be determined on an independent basis and the rules of evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting-point opted for a solution whereby the financial burden caused by the institution of criminal proceedings which are discontinued or which end with an acquittal must be borne by the accused unless he is able to show that it is probable that he did not commit the act.’ The High Court has found it probable that [the applicant’s] daughter was subjected to sexual abuse ... Considering the case as a whole, the High Court has further concluded that it has not been shown that on the balance of probabilities [the applicant] did not engage in sexual intercourse with his daughter. The Appeals Leave Committee finds no reason to depart from the High Court’s assessment of the evidence, which is based on the judges’ participation at the trial hearing in this case, where it must be deemed vital that the court had the opportunity to hear directly the accused and the witnesses – something which the Committee is not empowered to do ... The Appeals Leave Committee accordingly finds that the evidence is not such as to fulfil the conditions for compensation under Article 444 of the Code of Criminal Procedure; nor, as a consequence, are the conditions for awarding damages under Article 446 satisfied.” 15. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. Only two conclusions are possible in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, such as that formerly known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt. 16. Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted or the proceedings have been discontinued. The provisions read as follows: “If a person charged is acquitted or the proceedings against him are discontinued, he may claim compensation from the State for any damage that he has sustained as a result of the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable. Compensation shall not be awarded where the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction. If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely.” “Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal proceedings whenever this appears to be reasonable in the circumstances.” “If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.” 17. In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446: “Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally settles the case. The provisions of Article 318, first paragraph, shall apply correspondingly. If the case has been concluded without any judicial examination of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction. Otherwise the claim shall be submitted to the court that is to conduct or has last conducted any such trial. If the claim is submitted to the district court or the city court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the court of appeal shall also decide the question of compensation. When examining the claim, the court shall as far as possible sit with the same judges who decided the criminal case. In the court of appeal, lay judges or the selected jurors who join the court pursuant to Article 376 (e) shall not take part unless the decision is made at the same court sitting as that at which judgment is given in the case.” 18. Compensation after acquittal or discontinuation of the proceedings is not automatic and is not awarded unless the conditions in the above-cited Articles are met. 19. When compensation is awarded to persons who are considered innocent as they have been acquitted or the proceedings against them have been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation. 20. In the present case the applicant, unlike his father, did not seek compensation under Articles 445 and 446. Instead, the applicant claimed compensation under the special provision in Article 444, together with Article 446. Under this provision, the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act with which he or she was charged. In the assessment of that probability, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue. 21. According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying in respect of liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the impugned act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act that formed the basis of the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant’s ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge. 22. It is not a requirement for obtaining compensation that the claimant should adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion. 23. In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant had to prove that on the balance of probabilities he or she had not carried out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force were not inconsistent with Norway’s obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Norwegian Official Reports), “Erstatning i anledning straffeforfølgning” (“Compensation in connection with criminal proceedings”), 1996:18, pp. 20-22, 36, 52). On 15 May 2002 a government bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing, inter alia, the repeal of that condition.