THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29327/95 
by Terje OPPEGÅRD 
against Norway

The European Court of Human Rights (Third Section) sitting on 14 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr P. Kūris, 
 Mrs F. Tulkens, 
 Mr W. Fuhrmann, 
 Mr K. Jungwiert, 
 Mrs H.S. Greve, 
 Mr K. Traja, judges,

and Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 October 1995 by Terje Oppegård against Norway and registered on 21 November 1995 under file no. 29327/95;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 9 January and 29 April 1998 and the observations in reply submitted by the applicant on 30 March 1998;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a Norwegian citizen, born in 1955. He resides in Gjøvik, Norway.

He is represented before the Court by Mr Arne B. Krokeide, a lawyer practising in Gjøvik.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

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 near relative) of the Penal Code with having committed sexual offences, respectively, during the periods from 1985 and 1989 and 1988 to 1991, against the applicant's daughter, L., who was born on 18 October 1981.

By judgment of 1 June 1994 the Eidsivating High Court (lagmannsrett), noting that the jury had answered the questions on the charges in the negative, acquitted the applicant and his father. No appeal was lodged against the judgment which consequently gained legal force.

Subsequently, on 29 August 1994, the applicant and his father filed a petition with the High Court requesting compensation under Articles 444 - 446 of the Code of Criminal Procedure (straffeprosessloven) for pecuniary and non-pecuniary damages caused by the criminal proceedings against them.

In a decision (kjennelse) of 25 January 1995 the High Court rejected the applicant's claim but awarded his father NOK 30,000 in compensation for non-pecuniary damage. As regards the applicant's claim, the Court stated, inter alia:

“The High Court notes that pursuant to Articles 444 or 446 ... of the Criminal Procedure Act it is a condition for obtaining compensation that it must be shown to be probable that the accused did not commit 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 immoral sexual relations. 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 also her mother and her partner.

 

 Ms Anne Okstad, psychologist, ... explained as a witness during the trial (L's) behaviour. In the light of this and of symbolic games and realistic talks 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 is 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, 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 has stated that [L.] in the course of a realistic conversation had referred to 'intrusions, pawing, threats and aggressions from [the applicant]' and that she had spontaneously confirmed that abuse has 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 immoral sexual behaviour towards his daughter. ...

[The applicant's] request for compensation is thus rejected. In the light of this conclusion, there is no reason to order the reimbursement of his costs."

The applicant appealed against this decision to the Supreme Court (Høyesterett). On 20 April 1995 the Appeals Selection 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 be shown to be probable that the accused did not commit the act which grounded 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, shall - 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 committed the act which grounded the charges. It is the accused who carries the burden of proof that he did not commit 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 shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities of the accused for showing that he did not commit the offence. 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 when the accused is unable to discharge the burden of proof. I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation case 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 further concluded that it has not been shown that on the balance of probabilities [the applicant] did not engage in immoral sexual behaviour towards his daughter. The Appeals Selection Committee finds no reason for departing from the High Court's assessment of the evidence, which is based on the judges' participation at a main 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 Selection 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, have those for awarding damages under Article 446."

B. Relevant domestic law and practice

Articles 444 and 446 of the Code of Criminal Procedure read:

“Article 444: If a person charged is acquitted or the prosecution against him is discontinued, he may claim compensation from the State for any damage that he has suffered through the prosecution if it is shown to be probable that he did not commit the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been executed, any damage resulting from this shall be compensated without regard to what has been shown to be probable.

Compensation shall not be awarded when 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 entirely dispensed with."

“Article 446: 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 non-economic nature that he has suffered as a result of the prosecution.”

Under Article 444 the State may be liable to pay compensation even in the absence of proof of negligence or fault on the part of the authorities. Where it has been shown to be probable that the acquitted person did not commit the act of which he or she was charged, the liability of the State to pay compensation is strict.

According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying with respect to 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 incriminated act, in compensation proceedings it is for the acquitted person to show that, on the balance of probabilities, it was more than 50 % probable that he or she did not commit the act grounding the charge (sannsynlighetsovervekt). The requirement of proof in compensation cases may nevertheless be adjusted in the light of the accused's ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. It is thus not sufficient in order to establish liability to pay compensation that the accused has been acquitted. The competent court has to specifically assess the evidence, independently of the acquittal, with a view to establishing liability to pay compensation.

It is not a requirement for obtaining compensation that the acquitted person adduces new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings.

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 must prove that on the balance of probabilities he or she did not commit the offence giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force are not inconsistent with Norway's obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law. As regards the provision in Article 444 at issue in this case, it has stated that it creates a risk that the prosecution and national courts make statements at odds with Article 6 § 2 of the Convention (see Norges Offentlige Utredninger, Erstatning i anledning straffeforfølgning, 1996: 18, pp. 20-22, 36, 52).

 

COMPLAINT

The applicant complains that, in breach of his right under Article 6 § 2 of the Convention to be presumed innocent until proven guilty of the commission of an offence, the High Court and the Supreme Court's Appeals Selection Committee, in their decisions of 25 January and 20 April 1995, rejected his compensation claim under Article 444 of the Code of Criminal Procedure on the basis of reasoning which can be interpreted as an establishment of criminal guilt, in spite of his previous acquittal on 1 June 1994. Moreover, in as much as Article 444 requires the acquitted person to prove that he did not commit the act for which he had been charged, this provision is as such incompatible with Article 6 § 2.

PROCEDURE

The application was introduced on 11 October 1995 and registered on 21 November 1995.

On 22 October 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 9 January and 29 April 1998. The applicant replied on 30 March 1998, after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the terms of Article 444 of the Code of Criminal Procedure and the manner in which the national courts formulated their reasoning in rejecting his compensation claim entailed a violation of Article 6 § 2, which provides:

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

The applicant maintains that in proceedings regarding a compensation claim made under Article 444 of the Code of Criminal Procedure, the same judges who sat in the criminal proceedings will normally also sit in the compensation proceedings. Moreover, unless new evidence is adduced in the compensation case, their decision will inevitably be based on evidence in the criminal case and, were they to reject the claim, they would necessarily have to rely on evidence to the defendant's disadvantage. Thus, the applicant submits, the manner in which the compensation proceedings are conducted under Article 444 is, as such, incompatible with Article 6 § 2 of the Convention. In fact, the national courts' reasoning in dismissing his compensation claim was explicitly based on a reassessment of the evidence in the criminal case. It can hardly be argued, as suggested by the Government, that the national courts' reasoning remained strictly within the bounds of the particular burden of proof applying to compensation claims under Article 444. On the contrary, in rejecting the  
applicant's claim, the national courts, inconsistent with the Court's ruling in the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266), relied on grounds of suspicion against the applicant which had previously been adjudicated in the criminal case, and in respect of which he had been acquitted.

In the Government's submission, it follows from the Sekanina judgment that the pivotal question is whether the reasoning employed by the national courts in determining the compensation claim amounts to a “voicing of suspicion regarding the [claimant's] innocence”. Unlike the provisions at issue in the Austrian case, those applied by the Norwegian courts in the instant case did not require any affirmation of the claimant's criminal liability in order to reject the compensation claim or invite any discussion as to the correctness of his acquittal. The competent courts could not voice any suspicion regarding the innocence of the acquitted person. The test is solely whether, in view of the particular rule of evidence applying in such cases, it is more likely than not that the claimant did not commit the act of which he was charged. The subject-matter touches upon only one of the four conditions for establishing criminal liability, namely the objective breach of a penal provision, and thus cannot reasonably be interpreted as a supposition of criminal guilt. In the applicant's case the national courts kept their reasoning strictly within these bounds. This fact is underlined by the Supreme Court's reference to the 1994 precedent, according to which a refusal of a compensation claim does not amount to undermining or questioning an acquittal, but must be based on a separate assessment under evidentiary standards applying to ordinary compensation claims. At no point in their reasoning did the national courts discuss the applicant's acquittal in the criminal proceedings.

The Court, having regard to the parties' submissions, the terms of Article 444 of the Code of Criminal Procedure and the reasoning in the Norwegian court's decisions concerning the applicant's compensation claim, considers that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé N. Bratza 
 Registrar President

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