Application no. 34964/97 
against Norway

The European Court of Human Rights (Third Section), sitting on 11 September 2001 as a Chamber composed of

Mr J.-P. Costa, President
 Mr W. Fuhrmann
 Mr L. Loucaides
 Sir Nicolas Bratza
 Mrs H.S. Greve
 Mr K. Traja
 Mr M. Ugrekhelidze, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 5 December 1996 and registered on 18 February 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:



The applicant is a Norwegian citizen, born in 1965 and living in Oslo. He is represented before the Court by Mr Sverre Næss, a lawyer practising in Lillestrøm.

A.  The circumstances of the case

The facts of the case, as submitted by the parties and which may be deduced from the domestic court’s judgments, may be summarised as follows.

On 24 June 1993 the applicant was charged under Articles 192 and 195 of the Penal Code with the sexual abuse of a minor, G., born in December 1979, during the period from 1986 to 1990.  Under these provisions he was charged with having, on one or several occasions, threatened to hit G. if she cried out, and/or having held her tight, whereupon he had introduced his penis into or towards her sexual organ and/or made her masturbate him. At the time, G.’s father was cohabiting with the applicant’s mother. The alleged offences were said to have occurred in the applicant’s home when the child visited her father.

Criminal proceedings were instituted before the Eidsivating High Court (lagmannsrett) which heard the case in February 1994. By a judgment of 18 February 1994, the High Court, noting that the jury had answered the questions concerning criminal guilt in the negative, acquitted the applicant of the charges. Moreover, it decided to reject G.’s compensation claim for non-pecuniary damage.

G. subsequently appealed against compensation refusal to the Supreme Court. In those proceedings, G.’s lawyer requested that documents produced in the context of the criminal case be submitted as evidence to the Supreme Court. This included records of the judicial examination of G., medical certificates, letters and witness statements given to the police in connection with the criminal proceedings. The applicant’s lawyer, referring to Article 6 § 2 of the Convention, objected to this request.

By a decision of 29 May 1996, the Supreme Court authorised the documents from the criminal case to be joined to the case-file in the compensation proceedings. Its decision included the following reasons:

“In their pleadings, the lawyers for the parties have dealt extensively with the issue under Article 6 § 2 of the Convention. The only question for the Supreme Court to determine is whether the submission of the criminal case documents in the civil case would as such violate this Convention provision. The question as to the significance of this provision for the decision on the compensation claim falls to be considered in connection with the decision on the merits of the appeal.

The use of documents from the criminal case as evidence in this case does not in my view fall foul of the requirement in Article 6 § 2 ... . The submission of the documents does not as such imply that the acquittal in the criminal case is being called into doubt.

The statement in the Sekanina case which the lawyer for the defendant has referred to must be read in its context. The ruling cannot be perceived as a general procedural bar against the production of the case documents from criminal proceedings in a later case.

Furthermore, I should like to add that, although this is not decisive for my view on the issue under Article 6 § 2, both parties were given the usual opportunity to supply evidence in connection with the taking of evidence by the Supreme Court.

In my view the request for submission of the criminal case documents in question must therefore be granted.”

The Supreme Court examined the case under the rules governing civil proceedings. After hearing the parties and a large number of witnesses, the Supreme Court, by a judgment of 5 June 1996, ordered the applicant to pay NOK 75,000 to G. in compensation for non-pecuniary damage, under section 3-5 (1) b of the Damage Compensation Act.

The first voting judge, Mrs Justice Gjølstad, stated on behalf of a unanimous court, inter alia:

“In as far as the appeal concerns the merits, two general questions arise, namely the relationship to the acquittal in the criminal case (cf. Article 6 § 2 of the Convention) and the requirement of proof in such cases.

Under Chapter 29 of the Code of Criminal Procedure, civil compensation claims may ... be made in criminal proceedings by the prosecution or by the injured party. This arrangement is intended to make it easier for the injured party to have a civil compensation claim examined, but it does not preclude the possibility of making such a claim in separate civil proceedings instead.

Contrary to what followed from the old Code of Criminal Procedure, it is not a condition for the examination of civil compensation claims that the accused person has been convicted in respect of the charge. Thus, it is in principle possible to both reject and uphold a civil compensation claim, irrespective of the decision concerning criminal liability. This has its background in the fact that the injured party, who does not enjoy rights as a party to the criminal case, should not forfeit his or her compensation claim as a result of an acquittal in the criminal case. Although it will hardly be a frequent occurrence that the decision on the civil compensation claim goes in a different direction than that on criminal liability, this may happen for various reasons. Amongst others, the requirement of evidence for the penal and the civil consequences of an action ... is different.

According to Article 6 § 2 of the Convention, a person who is charged with a criminal offence shall be deemed innocent until proven guilty. The presumption of innocence applies even after an acquittal (cf. in this connection the Sekanina case and the decision, reported in Norsk Retstidende 1994 p. 721, dealing with the significance of the presumption of innocence in a case concerning the right of the accused to compensation after an acquittal).

However, in my opinion it must be clear that the said provision cannot constitute an obstacle for a person injured by an act to claim compensation from the alleged perpetrator, even though the latter has been acquitted of a criminal offence, and that the court in such a case can rely on a finding that the defendant has in fact performed the act in relation to which he has been acquitted. Even assuming that the Convention provision applies to the treatment of such claims, it has not been infringed as long as no disagreement or doubt has been expressed with regard to the decision on criminal liability. I cannot see that the arrangement under Norwegian criminal procedural law, whereby it is possible to have civil compensation claims determined after an acquittal, gives rise to any particular problems in relation to Article 6 § 2 [of the Convention].  Moreover, in the case at hand, it is the High Court’s decision concerning compensation which has especially been brought before the Supreme Court under the provisions of the Code on Civil Procedure.”

As regards the requirement of evidence, Mrs Justice Gjølstad recalled that under the law on compensation the test is normally one of the balance of probabilities. However, bearing in mind the burden an allegation of reprehensible conduct may have for the defendant and the serious consequences it may have for his or her reputation, the requirement as to the strength of the evidence must be stricter than that which applies to the test of the balance of probabilities. Nevertheless, the requirement could not be as strict as that which applies for establishing criminal liability. In a case of the kind under consideration, the test must be whether on the balance of probabilities it was clearly probable that the alleged abuse had been performed.

In dealing with the particular facts of the appeal concerning compensation, the Supreme Court had regard to the video recording of the judicial examination of the alleged victim in the criminal proceedings before the High Court and which was shown during the proceedings before the Supreme Court concerning the appeal on compensation. The Supreme Court did not share the High Court’s view that the evidentiary value of the video recording was diminished by certain misgivings concerning the lack of synchronisation of sound and picture when shown to the High Court. These shortcomings had been remedied before the Supreme Court. The Supreme Court further had regard to evidence taken by it from this person, which deviated slightly from the judicial examination before the High Court. It further had regard to the statements by an expert witness and the statements of a therapist who had treated the alleged victim. Considering the evidence as a whole, Justice Gjølstad found that the evidence satisfied the standard of proof, establishing that sexual abuse had occurred and that, on the balance of probabilities, it was clear that the applicant was the abuser. Accordingly there was a basis for awarding her compensation under section 3-5 (1) b of the Damage Compensation Act. However, Justice Gjølstad emphasised that this decision was taken independently of the decision in the criminal case and that it did not undermine the acquittal. Finally, as regards the amount of compensation, she observed inter alia that she based her assessment on her finding that several infringements had occurred and that, even though the extent of this was not possible to ascertain with precision, it concerned serious violations involving a certain use of force or threats, as a result of which G. had suffered damage.

B.  Relevant domestic law and practice

The provisions of the Penal Code under which the applicant was prosecuted read as follows:

Article 192 § 1

“Any person who by force or by inducing fear for any person’s life or health compels any person to commit an act of indecency or is an accessory thereto shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years, but not less than one year if the act of indecency was sexual intercourse.”

Article 195

“Any person who commits or is accessory to another person’s committing an act of indecency with a child under 14 years of age shall be liable to imprisonment for a term not exceeding 10 years, but not less than one year if the act of indecency was sexual intercourse.”

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).

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. The criminal system knows only two conclusions in a criminal case—guilty or acquitted (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which at least was previously known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt.

Under the 1969 Damage Compensation Act, the presumed victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage.

Under section 3-5 (1) b of the Act, he or she may claim compensation for non-pecuniary damage subject to his showing that the alleged perpetrator, with intent or gross negligence, performed the wrongful act. The test is normally one of the balance of probabilities and the burden of proof lies with the claimant. This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability (see the above quoted statement by Mrs Justice Gjølstad). The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the compensation case.

Section 3-5 (1) b, as in force at the relevant time, read as follows:

“Anyone who, with intent or gross negligence has...

b.  Committed ... 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.”

Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Articles 192 and 195 of the Penal Code.


The applicant complains that the Supreme Court’s judgment awarding G. compensation entailed a violation of his right under Article 6 § 2 of the Convention to be presumed innocent until proven guilty of the commission of an offence.


The applicant complained of 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.”

The applicant argued that the Supreme Court had in its judgment of 5 June 1996 awarding G. compensation, first, based itself to a significant extent on the evidence from the criminal proceedings before the High Court, thus showing that there was a connection between the two sets of proceedings. Secondly the Supreme Court had stated that, considering the evidence as a whole, the evidence satisfied the standard of proof for establishing that sexual abuse had occurred and that, on the balance of probabilities, it was clear that the applicant had committed acts of abuse against G.

The Government disputed the applicability of Article 6 § 2 of the Convention to the proceedings before the Supreme Court. Those had in no way been tied to the criminal proceedings against the applicant and the Supreme Court had not called into question the correctness of his acquittal. Unlike the judgments in Sekanina v. Austria (25 August 1993, Series A no. 266-A) and Rushiti v. Austria (no. 28389/95, 21.03.00), the question of criminal responsibility and the right to compensation had not been linked together to such a degree that the latter issue could be regarded as a consequence and the concomitant of the decision on the former. In the present case, the compensation claim had been raised, not by the acquitted person against the State, but by the purported victim against the acquitted person. The claim determined by the Supreme Court had had no connection either legally or procedurally to the charges against the applicant. The legal basis for claiming compensation did not imply a reassessment of his guilt; nor did the Supreme Court have jurisdiction to do so. The Supreme Court could not be said to have relied heavily on the evidence from the criminal case file. On the contrary, new and extensive evidence had been added to the proceedings before the Supreme Court and had been significant to its reasoning. Rather than making a narrow assessment of the evidence in the criminal case, the Supreme Court had made a separate assessment of the totality of the evidence before it in the civil proceedings. In the light of these considerations, there was no link to the criminal proceedings rendering Article 6 § 2 applicable.

In any event, the Government submitted, there had been no violation of the applicant’s right to be presumed innocent under Article 6 § 2. They argued that the use of material from the case-file in the criminal proceedings did not entail the voicing of any suspicion of criminal guilt incompatible with this provision. Unlike the contested national decisions in Sekanina and Rushiti, the relevant law and the Supreme Court’s reasoning in the instant case did not contain anything to this effect, nor anything which called into question the correctness of the acquittal. On the contrary, the Supreme Court had expressly stated that its decision to award compensation had been taken independently of the decision in the criminal case on the basis of different criteria and did not undermine the acquittal. Thus, unlike in Sekanina and Rushiti, the Supreme Court had not made a reassessment of the applicant’s guilt.

According to the Government, these judgments in Austrian cases could not be interpreted so broadly as effectively to rule out any pronouncement in any subsequent decision on whether or not the defendant had performed the act in connection with which he or she had been charged. It was inconceivable that the Convention was intended to render it impossible for the victim to claim compensation in civil proceedings within the framework of civil-law evidentiary standards. Such an interpretation would be untenable, as it would in fact impair the victim’s right to enjoy effective access to court with respect to a civil compensation claim. In order to meet the legitimate needs of the victim, the national legal systems should provide a possibility for the victim to claim compensation after criminal proceedings.

In view of the above, the Government invited the Court to declare the application inadmissible as being manifestly ill-founded.

The Court, having regard to the parties’ submissions, 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  J.-P. Costa 
 Registrar President