CASE OF N.A. v. NORWAY

FIRST SECTION

CASE OF N.A. v. NORWAY

(Application no. 27473/11)

JUDGMENT

STRASBOURG

18 December 2014

FINAL

20/04/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of N.A. v. Norway,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 25 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27473/11) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Ms N.A. (“the applicant”), on 3 May 2011. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Mr P. Henriksen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their agent, assisted by Mr J. Vangsnes, Attorney.

3. The applicant alleged a violation of her right to the presumption of innocence under Article 6 § 2 of the Convention on account of the national court’s decision, despite her acquittal on criminal charges, to order her to pay compensation to the victim. She further complained that in breach of the Article 6 § 1 fair hearing guarantee the decision had not been sufficiently reasoned.

4. On 25 January 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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 ill‑treated 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 non‑pecuniary 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 ill‑treatment 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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

12. Article 229 of the Penal Code 1902, as in force at the relevant time, read:

“Any person who injures another person in body or health or reduces any person to helplessness, unconsciousness or any similar state, or who aids and abets thereto, is guilty of occasioning bodily harm and shall be liable to imprisonment for a term not exceeding three years, but not exceeding six years if any illness or inability to work lasting more than two weeks or any incurable defect or injury is caused, and not exceeding eight years if death or considerable injury to body or health results.”

13. Article 232 provided:

“If any felony mentioned in Articles 228 to 231 is committed with intent in a particularly painful manner ..... or under especially aggravating circumstances, a sentence of imprisonment shall always be imposed ... In deciding whether other especially aggravating circumstances exist, particular importance shall be attached to whether the offence has been committed against a defenseless person, ... whether it was committed by several persons jointly, and whether it constitutes ill-treatment.”

14. Article 219 stated:

“Any person who by threats, duress, deprivation of liberty, violence or any other wrong grossly or repeatedly ill-treats

...

(d) any person in his or her household, or

(e) any person in his or her care

shall be liable to imprisonment for a term not exceeding three years.

If the ill-treatment is gross or the aggrieved person ... sustains considerable harm to body or health as a result for the treatment, the penalty shall be imprisonment for a term not exceeding six years. In deciding whether the ill-treatment is gross, particular importance shall be attached to whether it has endured for a long time and whether such circumstances as are referred to in Article 232 are present.

Any person who aids or abets such an offence shall be liable to the same penalty.”

15. 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).

16. In so far as is relevant, Article 376A of the Code of Criminal Procedure 1981 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’] ...”

17. 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 judgment of acquittal.”

No reasons are given for an acquittal.

18. Under the Code of Criminal Procedure, 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 ...”.

19. 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.

20. 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.”

21. 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 3‑3, 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.”

22. Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 219 of the Penal Code.

23. A claim for compensation for non‑pecuniary 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 (Rt. 1996, p. 864, at p. 876; Ringvold v. Norway, no. 34964/97, §§ 16-19, ECHR 2003‑II) 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.

24. 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 Reports) 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).

25. According to that study, 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, sub‑chapter 1.2.1).

26. 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 (ibid., Chapter 6, sub-chapter 6.3.1 and 6.3.2).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

27. The applicant complained that in its decision on compensation the High Court had linked the matter so closely to the criminal case that it entailed a violation of Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

28. The Government contested that argument.

A. Admissibility

29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The parties’ submissions

(a) The applicant

30. The applicant, disagreeing with the Government, maintained that the High Court’s reasoning on the compensation matter had in reality covered all the constituent elements for criminal liability, objective as well as subjective, and thus cast doubts over the correctness of the applicant’s acquittal in the criminal case. This was so irrespective of the High Court’s affirmations that a different standard of proof had been applied in the criminal case and the compensation case, respectively, and that its conclusion on the latter did not call into doubt the correctness of the acquittal. In view of the High Court’s factual description in its reasoning of the applicant’s conduct in inflicting and/or aiding and abetting the infliction of injuries on the children and the absence of a mention of any alternative cause, it appeared incomprehensible that she had been acquitted of the criminal charges.

31. Furthermore, by referring at the outset to the possibility that the offences described in Article 219 of the Penal Code could constitute a ground for compensation under section 3-5 of the Damage Compensation Act, the High Court had created a direct link between the offences dealt with in the criminal case and the acts examined in the compensation case. Since it was in the nature of things that an Article 219 offence could not occur by accident or without intent by the perpetrator, the ensuing reasoning took on criminal law features. Moreover, the High Court had stated that the injuries suffered by the children had been inflicted with “repeated violence” and “severe violence” – typically criminal-law terms – and that the injuries were not compatible with accidents but showed that they had been inflicted by “severe violence”. Thus, like in Orr v. Norway (no. 31283/04, § 51, 15 May 2008), the High Court had in the instant case given reasons covering both the objective and the subjective conditions for criminal liability and using typically criminal-law terms. Since it in addition held that the injuries could not have been due to an accident, the conclusion that it had overstepped the bounds of the civil forum was inescapable.

32. Therefore, in the applicant’s opinion, there had been a violation of Article 6 § 2 of the Convention.

(b) The Government

33. The Government maintained that the High Court had made every effort to ensure compatibility with the presumption of innocence in Article 6 § 2 of the Convention. In its judgment it had provided an account of the differences in the standard of proof respectively in criminal and civil cases and had clearly distinguished between the criminal and civil liability in the case of the applicant. This distinction the High Court had reinforced by its diligent underlining and application of the standard of clear preponderance of evidence, a different standard than the criminal one. It had also stressed that its award of compensation did not affect the correctness of the applicant’s acquittal, unlike in the High Court judgment that had been the subject of review in Orr (cited above, § 53).

34. At no point in the reasoning on compensation did it state expressly or in substance that all the conditions for criminal liability had been fulfilled (see Ringvold, § 38). Nor was the High Court’s reasoning otherwise formulated in such a way as to create a clear link between the criminal case and the ensuing compensation proceedings and thereby overstep the bounds of the civil forum. Unlike in Y v. Norway (no. 56568/00, § 46, ECHR 2003‑II (extracts)), the reasoning in the present case contained no statement referring to the criminal charges. It rather established, like the national reasoning in Ringvold, the fulfilment of the objective constitutive elements of the offence in question and thus stayed within bounds while complying with the duty to provide adequate reasons.

35. Whilst it was true that the High Court had used the term “violence”, a word also used in the national judgment in Orr, the description of the events had been more detailed in the latter case than in the present instance where the reasoning had gone no further than necessary for establishing civil liability. The said term was not in itself of a criminal nature. Using words implicating the use of force would often be necessary. A national court’s discretion to make choices in this respect should not be constrained in such a way to obscure its reasoning.

36. Therefore, when read as a whole, the High Court’s reasoning in the present instance adequately justified the award of compensation while at the same time avoiding any links to the criminal case.

37. Should this reasoning be deemed to fall short of the standards of Article 6 § 2, it would entail the consequence that it would be difficult for domestic courts to adjudicate on civil claims in cases where the defendant had been acquitted. The Court had previously accepted as a possible and equitable approach the arrangement provided for in Norwegian procedural law for settling civil claims following an acquittal (see Ringvold, cited above, § 38).

38. Accordingly, the decision ordering the applicant to pay compensation did not give rise to a violation of Article 6 § 2 of the Convention.

(c) The Court’s assessment

39. In its examination of the above-mentioned complaint, the Court will have regard to the general principles stated in its case-law (see Allen v. the United Kingdom [GC], no. 25424/09 [GC], §§ 92-94, 95-97, 103-104, ECHR 2013) and will follow the specific approach adopted in previous cases concerning civil compensation claims lodged by victims (ibid. §§ 101 and 123).

40. From the outset the Court observes that, like in comparable cases dealt with previously, for instance Ringvold, Y. v. Norway and Orr, all cited above), it does not find on the basis of the three so-called Engel criteria (namely the classification of the proceedings in domestic law, their essential nature, and the degree of severity of the potential penalty, Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), that the compensation proceedings gave rise to a “criminal charge” against the applicant (see Allen, cited above, § 95). Thus, as regards the first of these criteria, it was also the position in the present instance that the compensation claim was not viewed as a “criminal charge” under the relevant national law (see Ringvold, cited above, § 37; Y. v. Norway, cited above, § 40; and Orr cited above, § 48). And as regards the second and third criteria, the Court finds equally valid the following considerations set out in paragraph 38 of the Ringvold judgment (see also Y. v. Norway, cited above, § 41; Orr, cited above, § 49; Reeves v. Norway (dec.), no. 4248/02, 8 July 2004; Diacenco v. Romania, no. 124/04, §§ 58-59, 7 February 2012; see also, mutatis mutandis, Lundkvist v. Sweden (dec.), no. 48518/99, ECHR 2003-XI; Erkol v. Turkey, no. 50172/06, § 37, 19 April 2011; and Allen, cited above, § 123):

“... [T]he Court observes that, while the conditions for civil liability could in certain respects overlap, depending on the circumstances, with those for criminal liability, the civil claim was nevertheless to be determined on the basis of the principles that were proper to the civil law of tort. The outcome of the criminal proceedings was not decisive for the compensation case. The victim had a right to claim compensation regardless of whether the defendant was convicted or, as here, acquitted, and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which in several important respects differed from those that applied to criminal liability. ...

In the view of the Court, the fact that an act that may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence cannot, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being ‘charged with a criminal offence’. Nor can the fact that evidence from the criminal trial is used to determine the civil-law consequences of the act warrant such a characterisation. Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under Article 6 § 1 of the Convention. This again could give a person who was acquitted of a criminal offence but would be considered liable according to the civil burden of proof the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude the establishment of civil liability in relation to the same facts.

Thus, the Court considers that, while exoneration from criminal liability ought to stand in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v. Austria, no. 9295/81, Commission decision of 6 October 1982, Decisions and Reports (DR) 30, p. 227, and C. v the United Kingdom, no. 11882/85, Commission decision of 7 October 1987, DR 54, p. 162). If the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention.”

41. Accordingly, having found that the compensation proceedings under review did not involve a “criminal charge”, the Court will examine whether Article 6 § 2 was engaged on different grounds (Allen, cited above, § 96), in particular whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of this provision (ibid., §§ 101, 104, 123). As in other types of situations where the Court has ascertained the circumstances in which Article 6 § 2 will be violated in the context of proceedings which follow the conclusion of criminal proceedings, the language used by the decision-maker will be of critical importance in assessing the compatibility of the decision and its reasoning with this provision (see Allen, cited above, §§ 123, 125 and 126). What the Court has to assess is whether, in the light of the nature of the task that the domestic court was required to carry out, and in the context of the decision to acquit the applicant (see paragraph 8 above), the language it employed was compatible with the presumption of innocence (see Allen, § 129).

42. In this connection, it should be emphasized by way of preliminary observation that the nature and context of the proceedings at issue in this case concerned a particular type of situations, namely the imposition of civil liability on an acquitted person to pay compensation to the victim with respect to the acts in respect of which he or she has been acquitted of criminal liability. As can be seen from the general principles of the Court’s case-law quoted at paragraph 40 above (and summarised in Allen, cited above, § 123), this category of cases has previously been dealt with on a different approach from that that applied in cases relating to decisions on an acquitted person’s compensation claim for detention on remand, where even the voicing of suspicion regarding the accused’s innocence has been deemed incompatible with the presumption of innocence embodied in Article 6 § 2 of the Convention (ibid. § 122, with further references). In contrast, as already mentioned, the question in the present type of context is whether the national decision of compensation were to contain a statement imputing criminal liability to the respondent party (ibid. § 123, with further references, and the second sub-paragraph of § 38 of Ringvold, quoted at paragraph 40 above).

43. As regards the reasoning on the compensation matter in the instant case, the Court notes that the High Court dealt with the issue in the same judgment as the criminal charges. This was a natural consequence of the fact that the two matters had been pursued in the course of the same proceedings and could not of itself bring the matter within the ambit of Article 6 § 2 (see Orr, cited above, § 50; see also Y. v. Norway and Reeves, both cited above). It is also to be observed that in two clearly distinct parts of its judgment, the High Court dealt respectively with the criminal charges against the applicant, ending in a conclusion of acquittal (a non-guilty verdict by the jury approved by the professional judges, see paragraph 8 above), and with the compensation claim made on the children’s behalf (without the participation of any members of the jury), in respect of which it ordered the applicant to pay them compensation (see paragraph 9 above).

44. In the part dealing with compensation, the High Court first reiterated the conditions for awarding compensation for non-pecuniary damage under sub-paragraph (a) of section 3-5(1) of the 1969 Damage Compensation Act (that the person had with intent or gross negligence caused personal injury), and that an award could be made under sub-paragraph (b) for an infringement described in Article 219 of the Penal Code even if no damage had occurred in the sense of the Act (see paragraphs 9, 21 and 22 above).

45. The High Court then went on to note that the children’s compensation claims had been grounded on the same acts as those in respect of which the applicant had been acquitted in the criminal case. In this connection it explained that an acquittal did not bar the possibility of awarding the victim compensation on a lesser strict burden of proof, provided that the limits of the presumption of innocence in Article 6 § 2 be respected in the reasoning which ought not to cast doubt over the defendant’s innocence. In this context it referred to the European Court’s case-law. The High Court further reiterated that under the relevant national standard a condition for compensation was that it was clearly probable that the damage had been caused by intent or by gross negligence (see paragraphs 9 and 23 above). Finally, in its conclusion, the High Court considered that its decision on the civil claim had been based on a less strict burden of proof than that which applied in criminal proceedings and did not undermine the correctness of the acquittal (see paragraph 9 above).

46. In the Court’s view, there is nothing to indicate that the High Court’s general approach to the compensation matter as such gave rise to any issue attracting the application of Article 6 § 2 of the Convention. It appears that the High Court deliberately strived to distance its reasoning on compensation from the criminal case, so as to avoid bringing the matter into the criminal sphere outside the bounds of the civil forum. That said, even if presented with such cautionary statements as mentioned above, the reasoning in a decision on compensation may raise an issue under this provision if, as already mentioned above, it involves statements imputing criminal liability to the respondent party (see Orr, cited above, § 53 and, mutatis mutandis, Hammern v. Norway, no. 30287/96, § 48, 11 February 2003).

47. In its further reasoning the High Court focused on the elements as were typically relevant for ascertaining civil liability under section 3-5 of the Damage Compensation Act. This included the finding of a clear probability – the civil standard of proof – that the applicant (and her former husband) had ill-treated or had aided and abetted in the ill-treatment of the children; a description of the serious damage inflicted on them; an affirmation that a causal link existed between the ill-treatment and the serious damage; and that the serious damage had been foreseeable to the applicant (and her former husband). It is also noteworthy that the High Court’s reasoning left open the identity of the person or persons who had inflicted the damage and thus did not single out the applicant as the perpetrator. The present case is therefore distinguishable from Ringvold, §§ 19 and 39; Reeves and Lundkvist, all cited above, where the Court found no violation; and from Y., § 44, and Orr, §§ 51 to 55, both cited above, where the Court found a violation). The High Court further left undetermined whether the applicant had incited the ill-treatment, on the view that her consent to the acts was sufficient for making her liable to pay compensation.

48. In its reasoning the High Court used the term “aiding and abetting” (“medvirkning”). In the Court’s view this does not in itself present a problem, as the expression is not reserved for the criminal-law sphere but is equally used in the civil law of tort. More problematic was the use of the terms “violence” (“vold”) and “ill-treatment” (“mishandling”). In Orr, cited above, § 51 the Chamber concluded in that particular context that the concept of “violence” overstepped the bounds of the civil forum. However, the factual circumstances of that case were different, as it related to a specific event of alleged rape involving two persons. Furthermore, the concept of “violence” is not exclusively criminal in nature (ibid.). As for “ill-treatment”, it should be recalled that in Ringvold, cited above, §§ 19 and 41, the expression “sexual abuse” used by the relevant national court did not lead to the finding of a violation by the Court. Furthermore, the Court’s case-law provides some examples of instances where no violation of Article 6 § 2 has been found even though the language used by domestic authorities and courts was criticised. It should be reiterated that when regard is had to the nature and context of the particular proceedings at issue, even the use of some unfortunate language may not be decisive (see Allen, cited above, § 126, with further references). Read in context of the judgment as a whole, the use of the said expressions by the High Court in the instant case cannot reasonably be read as an affirmation imputing criminal liability on the part of the applicant.

49. In the light of the above, the Court does not discern in the High Court’s specific reasoning for awarding compensation in the present case any element in its description of the facts in respect of which it found the applicant civilly liable to pay compensation or in its assessment of those facts that could be viewed as amounting to the establishment of criminal guilt on her part. This description did not cover all those constitutive elements, objective and subjective (see paragraphs 14 and 15 above), that would normally amount to an offence under Article 219 of the Penal Code (compare and contrast Y v. Norway, cited above, § 44, where the High Court found it probable that the applicant had “committed the offences”). Nor did the High Court’s reasoning contain any statement suggesting, either expressly or in substance, that all the conditions were fulfilled for holding her criminally liable with respect to the charges of which she had been acquitted (see Ringvold, cited above, § 38).

50. Against this background, the Court does not consider that the decision and reasoning on compensation were incompatible with, and “set aside”, the applicant’s acquittal (see Ringvold, cited above, § 38; see also Reeves and Lundkvist, cited above).

51. Nor were there any other such links between the criminal proceedings and the compensation proceedings as to justify extending the scope of Article 6 § 2 to cover the latter (see Ringvold, cited above, § 41; and Allen, cited above, § 97). Also, the outcome of the criminal case was not decisive for the issue of compensation; the situation was the reverse: despite the applicant’s acquittal it was legally feasible to award compensation. Regardless of the conclusion reached on the criminal charges against the applicant, the compensation case was thus not a direct sequel to the former (ibid.).

52. In sum, the Court concludes that Article 6 § 2 was not applicable to the proceedings relating to the compensation claim against the applicant and that this provision has therefore not been violated in the instant case.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

53. The applicant further complained that in breach of Article 6 § 1 fair hearing guarantee the High Court had failed to give adequate reasons for its decision to award compensation. In so far as is relevant, this provision reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

54. The Government disputed the applicant’s contention.

A. Admissibility

55. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

B. Merits

1. The applicant’s submissions

56. The applicant complained that in breach of Article 6 § 1 none of the arguments that militated against holding her liable to pay compensation had been rendered in the judgment. This had also made it impossible to verify whether these arguments had been considered. A reduced duty to provide reasons for making a compensation award in the event of an acquittal was unsustainable and was inconsistent with the right to a fair trial. The principle of presumption of innocence could not justify an exemption being made to the requirement to state reasons. On the contrary, the High Court ought to have rendered and discussed the arguments in question. These were clearly objective arguments, namely that it had been her uncle and aunt who had injured the children. Her aunt was known to have lied in five police interviews and a witness had stated that the uncle had confided that he had attempted to kill the daughter. In this respect she also referred to certain requirements to state reasons set out in Article 19-6 (4) and (5) of the Code of Civil Procedure 2005 (tvisteloven).

57. There had therefore been a violation of the requirement in Article 6 § 1 to give adequate reasons, a shortcoming which had not been mended by the Appeals Leave Committee of the Supreme Court’s decision refusing to grant leave to appeal, without giving reasons.

2. The Government’s submissions

58. The Government maintained that the High Court had given sufficient reasoning for its decision to award civil compensation to the children. As regards the applicant’s submission that the High Court should have discussed the counter evidence, namely the possibility of alternative perpetrators (two such perpetrators had at an earlier stage been charged but were not indicted), the Government argued that such a detailed account would inevitably challenge the presumption of innocence. Whilst a Norwegian court would give extensive reasoning for its decision in an ordinary civil case, in joint proceedings such as the present, a high court sitting with a jury would by tradition state its reasons succinctly in order to avoid making statements that could be viewed as being inconsistent with the jury’s acquittal.

59. Therefore, in cases like the present one a very delicate balancing was required in order to uphold the acquittal in the criminal case while at the same time ensuring the rights of the victim. Accordingly, there were weighty reasons for the High Court not to discuss in detail why the applicant’s arguments for acquittal could not lead to rejection of the victims’ compensation claims.

60. Moreover, the reasoning provided showed which events the High Court had found sufficiently proven, and the applicant had every possibility to form an appeal based on the High Court’s reasoning. Indeed, the applicant’s appeal to the Supreme Court did also concern the High Court’s assessment of the evidence.

3. The Court’s assessment

61. The Court has taken note of the applicant’s having invoked certain standards of national procedural law (see paragraph 56 above), but the question to be determined is whether the requirements of Article 6 § 1 of the Convention as interpreted in its case-law were complied with. It reiterates that in García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, it held as follows:

“26. ... [A]ccording to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see the Ruiz Torija v. Spain and Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303-A and 303-B, p. 12, § 29, and pp. 29-30, § 27; and the Higgins and Others v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 60, § 42). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, mutatis mutandis, the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2930, §§ 59-60).”

62. Turning to the particular circumstances of the present case, the Court notes that in holding the applicant liable to pay compensation, the High Court, considering the evidence of the case as a whole, found it clearly probable that the applicant (and her former husband) had ill-treated their children or had aided and abetted in doing so by consent or by incitement to the acts. It further held that the physical and psychological injuries sustained by the children had been a direct consequence of the ill-treatment and that it had been foreseeable to the applicant (and her former husband) that serious injuries could occur in the case of such small children (see paragraph 9 above).

63. Although the High Court’s reasoning on compensation was relatively succinct and did not identify the person or persons who had perpetrated the ill-treatment, Article 6 § 1 does not, as already stated above, require a detailed answer to every argument. On the approach adopted by the High Court, it was sufficient for holding the applicant liable that she had consented to the reprehensible acts. The Court, having regard to the entirety of the domestic proceedings, to the High Court’s role in these (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115; and Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134) and to the nature of the task it was required to carry out (see, mutatis mutandis, Allen, cited above, § 129), as well as the manner in which the applicants’ interests were presented and protected before it (see Monnell and Morris, ibid.), is satisfied that the latter stated adequate reasons for its decision ordering her to pay compensation. These reasons were sufficient to afford the applicant an opportunity to make effective use of her right to appeal to the Supreme Court (see Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; and Sanchez Cardenas v. Norway, no. 12148/03, § 49, 4 October 2007), of which she indeed availed herself by appealing against the High Court’s reasoning regarding the assessment of the evidence (see paragraph 10 above).

64. Accordingly, there has been no violation of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 2 of the Convention;

3. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 18 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

I.B.L.
S.N.

CONCURRING OPINION OF JUDGE DEDOV

I voted for a finding of no violation of Article 6 § 2 of the Convention for reasons other than those set out in the judgment. In the light of the separate opinions produced by in previous similar cases Judges Costa and Tulkens (Ringvold v. Norway, no. 34964/97, ECHR 2003‑II) and Judge Gaetano (Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013), in which they expressed serious doubts and concerns about the non-applicability of the presumption of innocence in civil compensation proceedings, it would appear that the issue of legal methodology has still not been resolved in a manner compatible with the rule of law.

Indeed, the possibility of awarding compensation in connection with criminal proceedings after acquittal cannot be justified by general reference to “the interests of economy of procedure” (see paragraph 26 of the judgment) or to the civil law of tort (paragraph 40) or to “a lesser strict burden of proof” (paragraph 45) or to “a clear probability – civil standard of proof – that the applicant...had ill-treated...the children” (paragraph 47).

In the above-mentioned separate opinions, Judge Tulkens stated that “the accused incurs civil liability if fault is established”, while Judge Costa stressed that “the presumption of innocence may continue to apply even after the criminal action has been terminated or the accused has been acquitted” and that if the person “was told that he had been acquitted of the offence with which he had been charged”, this person cannot be “subsequently told (on the basis of the same facts) that it was clear that he had committed the offence, and ordered to pay compensation to the victim”.

Thus, if the presumption of innocence must apply in terms of personal guilt, it follows that different grounds – which exclude applicability of the presumption of innocence – must be used for the purpose of liability. Such methodology requires that liability should not be based on the defendant’s personal involvement. This approach cannot be satisfied by the High Court’s view that “her consent to the acts was sufficient [to make] her liable”, because at the same time the High Court “left open the identity of the person... who inflicted the damage” (see paragraph 47). If the applicant consented to ill-treatment, then the investigators should, as a rule, identify the person to whom she gave her consent. The Court concludes that the term “aiding and abetting” is used in the civil law of tort, unlike “violence” and “ill-treatment” (see paragraph 48). Again and again, however, the discussion revolves around the issue of whether personal guilt is to be established.

However, the civil law of tort is normally based on other grounds when obliging a person who did not commit harmful acts to compensate damage. Such persons may not have been directly involved in the actions in question, but objective reasons exist which give rise to their liability. For example, an employer is liable for his/her employees’ actions, and an owner of dangerous equipment is liable for damage inflicted by that equipment on third persons. This approach is consistent with that set out in the Principles of European Tort Law:

“Article 1:101. Basic norm

(1) A person to whom damage to another is legally attributed is liable to compensate that damage.

(2) Damage may be attributed in particular to the person

(a) whose conduct constituting fault has caused it; or

(b) whose abnormally dangerous activity has caused it; or

(c) whose auxiliary has caused it within the scope of his functions.

Article 4:103. Duty to protect others from damage

A duty to act positively to protect others from damage may exist if law so provides.

Article 4:202. Enterprise Liability

(1) A person pursuing a lasting enterprise for economic or professional purposes who uses auxiliaries or technical equipment is liable for any harm caused by a defect of such enterprise or of its output unless he proves that he has conformed to the required standard of conduct...

Article 6:101. Liability for minors or mentally disabled persons

A person in charge of another who is a minor or subject to mental disability is liable for damage caused by the other unless the person in charge shows that he has conformed to the required standard of conduct in supervision.

Article 6:102. Liability for auxiliaries

(1) A person is liable for damage caused by his auxiliaries acting within the scope of their functions provided that they violated the required standard of conduct...”

In the Allen judgment, cited above, the Grand Chamber accepted a different (statutory) ground where the presumption of innocence was not to apply, namely where the conviction by a court had occurred without any miscarriage of justice and the person was released on the basis of a new circumstance which was wholly or partly attributable to the person (ibid., § 49). More specifically, the Court made its assessment in paragraph 128 of the Allen judgment:

“128. It is also important to draw attention to the fact that section 133 of [the Criminal Justice Act 1988] required that specified criteria be met before any right to compensation arose. These criteria were, put concisely, that the claimant had previously been convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. The criteria reflect, with only minor linguistic changes, the provisions of Article 3 of Protocol No. 7 to the Convention, which must be capable of being read in a manner which is compatible with Article 6 § 2. The Court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant’s criminal guilt”.

In the instant case the Court did not use the above methodology and found it unnecessary to make any reference to paragraph 128 of the Allen judgment. Instead, it referred to the Allen judgment in a different context (see paragraphs 39 and 41 of the present judgment).

It is noteworthy that both this case and the Allen case concern similar circumstances: damage was caused to children and the issue of their parents’ liability for this damage was raised before the domestic courts. Thus, liability is, in general, to be based on the positive obligation to protect the life and well-being of those who are under the control of third persons, and, in particular, parents’ liability is based on their obligation to take care of their children. This approach is consistent with a duty under Article 4:103 of the Principles of European Tort Law to act positively to protect others from damage, and with the Court’s case-law on the State’s responsibility for alleged ill-treatment of those placed under the control of the State authorities. This approach requires that the burden of proof should be shifted to such a person. The Court has reiterated in such cases that “it is incumbent on the State to provide a plausible explanation of how those injuries were caused” (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, with further references).

Returning to this case, the position of the national first-instance court is very close to this approach. The City Court found that the parents did not “prevent the acts of violence carried out against the children in regard to whom they had a duty of care” (see paragraph 7 of the judgment).

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