CASE OF N.A. v. NORWAY
No violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant, Mrs N.A., was born in 1986 and lives in Norway. 6. On 16 September 2009 the applicant and her former husband Mr U.A., a Pakistani national who was born in 1985, were indicted (I) under Article 229, third alternative, cf. Article 232 of the Penal Code (straffeloven), of having caused under particularly aggravating circumstances injury to the body and health of their daughter A entailing serious damage, or of having aided and abetted in this, by having exposed her at least on two occasions to violence causing the following damage: “- Two instances of fraction to her cranium; - bleeding under the hard membrane of the brain; - bleeding between the hard membrane of the brain and scull; - oedema changes in the brain; - bleedings in the retina in both eyes; - blue marks and miscolouring on the body; - elbow out of joint. The last-mentioned injury had been discovered in December 2007 and the remainder in January 2008. The injuries to her head had been life-threatening and had led to permanent brain injury. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., directly by, amongst other things, blows and/or pushes against a hard surface and forceful shaking and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” They were also indicted (II) under Article 219 (2), cf. (1), of having seriously and repeatedly exerted violence or otherwise infringed or illtreated someone in their household – in an aggravated manner because the abuse had been carried out over a long period, had been committed against a defenseless person and had been unprovoked. During the period from 17 August 2005 until 26 January 2008, their son B had a number of times been exposed to violence resulting, inter alia, in the following injuries: “- A fracture in the upper arm caused by twisting; - blue nails on both of his big toes; - several wounds, scars and miscolouring to the body, including scars after scratching on the throat. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., either directly and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” 7. On 13 January 2010 the Oslo City Court (tingrett) convicted the applicant and her former husband of the charges and sentenced them to terms of imprisonment of two years and a half and three years and a half, respectively. It was not in doubt that the two children had been subjected to gross ill-treatment by adults but concluded that it was not possible from the evidence taken from the defendants and witnesses in the case to identify one or more perpetrators. The statements given had been contradictory to such a degree that this could not be explained as being due to misunderstandings. Several of the statements ought to be considered as untrue leaving no possibility to distinguish between lies and truth on different points. On the other hand the City Court found it established that the damage to the children had mainly occurred while the children had been in the flat. It was further proven that the accused Mr U.A. had been present in the tiny flat occupied by the family while the ill-treatment occurred, as had also been the case of the applicant. The City Court also found it proven that each of the parents had aided and abetted in the commission of the violence by not having interfered or sought to prevent the acts of violence carried out against the children in regard to whom they had a duty of care. The parents were ordered to pay the children 300,000 and 100,000 Norwegian kroner (NOK) (approximately 36,000 and 12,000 euros (EUR)) in compensation for non-pecuniary damage. 8. The applicant and her former husband appealed to the Borgarting High Court (lagmannsrett), which, sitting with a jury, held a hearing for twelve days between 17 August and 3 September 2010). It took evidence from the defendants and eighteen witnesses and two court appointed experts. After the jury had answered all the questions put to it in the negative, the professional judges decided to accept the jury’s verdict of acquittal. 9. In the same judgment of 3 September 2010, the High Court (without the participation of any members of the jury) examined the children’s claims for compensation of non-pecuniary damage under section 3-5 (1) (a) of the Damage Compensation Act 1969. It held: “According to this provision a person who with intent or gross negligence has caused personal injury may be required to pay compensation to the victim. The High Court observes that such infringements as described in Article 219 of the Penal Code can constitute a ground for awarding compensation for non-pecuniary damage under section 3-5(1)(b), cf. section 3-3, even if no damage has occurred in the sense of the Act. The assistance lawyer representing the children [‘bistandsadvokaten’] has argued on their behalf that Mr [U.A.] and Mrs [N.A.], with intent or gross negligence, have caused or aided and abetted [‘medvirket’] in causing serious injury to [A]’s head, her elbow getting out of joint and in seriously and repeatedly exposing [B] to violence. The victims’ claims for non-pecuniary damage has its basis in the same acts as those in respect of which Mr [U.A.] and Mrs [N.A.] has been acquitted in the criminal proceedings. The acquittal in the criminal proceedings does not hinder making an award of compensation for nonpecuniary damage to the victims, since less stringent evidentiary requirements applies to the latter than to criminal punishment. When a judgment of acquittal has been given in the criminal case, the presumption of innocence in Article 6 § 2 of the Convention will set limits to what could constitute the basis for a decision on the civil claims. According to the European Court’s case-law, the national courts cannot justify their decision in a manner calling into doubt the acquitted person’s innocence for criminal law purposes (see the Norwegian Supreme Court’s case-law reports Norsk Retstidende – Rt. 2003 p. 1671). A condition for establishing liability to pay compensation is that it was clearly probable that the damage had been caused by intent or by gross negligence (Rt. 2003 p. 1671). Considering the evidence in the case as a whole, the High Court finds it clearly probable that Mr [U.A.] and Mrs [N.A.] have ill-treated their children or have aided and abetted in doing so by consent or by incitement to the acts, over a long period until 26 January 2008. The High Court further finds it clearly probable that the parents had inflicted or have aided and abetted in inflicting great injuries to A’s head and have inflicted or aided and abetted in inflicting injuries to B through repeated violence, including a fracture to his arm by twisting it. In its assessment of the evidence, the High Court emphasises that several of the injuries ascertained are not compatible with accidental occurrences but on the contrary show that they have been inflicted by strong violence. The High Court also points to the children’s later reactions, including that [B] was in 2008 diagnosed as suffering from post-traumatic stress syndrome. It further refers to witness statements from neighbours about noise in the form of screams of anxiety and painful cries from children in the apartment over a longer period. The High Court is of the view that the physical and psychological injuries sustained by the children are a direct consequence of the illtreatment to which they have been exposed. In the High Court’s view it was further foreseeable for Mr [U.A.] and Mrs [N.A.] that serious injuries, including serious brain damage, could occur in the case of such small children. Accordingly, the conditions for making an award of non-pecuniary damage have been fulfilled. The lawyer representing the children had filed a claim for compensation of non-pecuniary damage in an amount of up to NOK 300,000 in respect of [A] and up to NOK 100,000 in respect of [B]. An award of compensation for non-pecuniary damage is to be evaluated on the basis of a wide discretionary assessment of what would constitute a reasonable amount. Factors which are central in the assessment are the objective seriousness of the act, the extent to which the wrongdoer (‘skadevolder’) is to be blamed and the damaging effects. This case concerns injury on very small children, from they were babies until [A] was fourteen months old and [B] was two years and a half. The ill-treatment has occurred during a considerable part of the children’s lives until it was revealed. At present [B] apparently manage well physically and has no physical ailments. However, in 2008 he was diagnosed as suffering from post-traumatic stress syndrome. [A] was in part paralysed on one side and her development is far behind compared to that of other children of her age. Her injuries can be said to be permanent. Compensation for non-pecuniary damage in respect of [A] is to be awarded in an amount of NOK 300,000 [approximately 40,000 euros (EUR)] and in respect of [B] in an amount of NOK 100,000 [approximately EUR 13,500]. The decision on the civil claims is based on the less stringent evidentiary requirements than those applicable to criminal punishment. Thus, the decision on the civil claim does not contradict [‘rokke ved’] the correctness of the acquittal.” 10. The applicant and her former husband appealed to the Supreme Court (Høyesterett), complaining inter alia of the High Court’s assessment of the evidence and that the reasoning for the award on compensation in this regard had failed to satisfy requirements of national law and entailed a violation of Article 6 § 2 of the Convention. 11. On 4 November 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused them leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations.