CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 mai 2008

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text-indent:1.55pt; text-align:justify; font-size:10pt }     FIRST SECTION         CASE OF ORR v. NORWAY     (Application no. 31283/04)           JUDGMENT       STRASBOURG   15 May 2008       FINAL     01/12/2008     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Orr v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar , Having deliberated in private on 1 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31283/04) 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 British national, Mr Marcus Orr (“the applicant”), on 16 August 2004. 2.     The applicant was represented by Ms S. Zanker, a lawyer practising in London. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters). 3.     The applicant alleged a violation of Article 6 § 2 of the Convention on account of the national court’s decision, despite his acquittal on criminal charges, to order him to pay compensation to the victim. 4.     On 19 October 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     On 7 August 2001, the applicant co-piloted a British Airways flight from Newcastle to Gardermoen Airport outside Oslo. There were three other crew members on board, including Ms C. (1st Cabin Crew). All four crew members were to stay overnight at an airport hotel before flying back to the United Kingdom the next day. 6.     On 1 November 2002 the Eidsvoll District Court ( tingrett ) convicted the applicant of having raped C and sentenced him to 2 years’ and 6   months’ imprisonment and ordered him to pay her NOK 75,000 for non-pecuniary damage and NOK 160,000 for pecuniary damage. 7.     On an appeal by the applicant, the Eidsivating High Court ( lagmannsrett ), sitting with a jury, held a fresh hearing in the case. The jury answered the questions relating to the charges in the negative (no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury’s verdict and acquitted the applicant by a judgment of 20   March 2003. 8.     Ms C. maintained the claim that the applicant was civilly liable to pay compensation under the Damage Compensation Act 1969. The High Court, consisting of the professional judges, considered the claim the next day. By two votes to one the High Court concluded, in the same judgment, that the applicant was liable and ordered him to pay NOK 74,000 in compensation for pecuniary damage and NOK 25,000 for non-pecuniary damage. 9.     The High Court’s judgment included the following account and reasoning: “The High Court jury was asked one main question, which concerned forcible coitus. The jury answered the question in the negative. Thereafter the jury was asked one main question as to whether the accused was guilty of obtaining, by gross negligence, sexual relation by violence or threatening behaviour. There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus. The jury answered the main question in the negative. The court bases the judgment on the jury’s verdict. [The applicant] is therefore acquitted of the indictment raised against him. The victim’s assistant counsel stated, after the jury’s verdict had been made known, that the compensation claim for pecuniary and non-pecuniary damage would be maintained. The victim has claimed an amount up to NOK 74,000 in compensation for pecuniary damage and up to 75,000 NOK for non-pecuniary damage. The accused has pleaded that he should be released from the claim. Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal. The compensation issue shall be determined under the Damage Compensation Act 1969. If the victim has been exposed to an infringement or misconduct as described inter alia in Article 192 of the Penal Code, compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections 3-1 and 3-3 of the Damage Compensation Act. In section 3-5 it is further stipulated that a person who with intent or gross negligence has “... committed infringement or an act of misconduct as mentioned in section 3-3” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non-pecuniary caused thereby. Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [ klar sannsynlighetsovervekt ] that the act has taken place. This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case. [The applicant] and [Ms C.] spent the night from 7 to 8 August 2001 at SAS Radisson Hotel at Gardermoen. [...] On the basis of [Ms C.]’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof, the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during the night with the pretext that he needed to borrow or to get some drinks as he himself had ‘gone dry’. [Ms C] was lying asleep when the telephone rang and was irritated about the disturbance, but she replied that he could come and get something from her mini-bar. Immediately thereafter he knocked on the door. [Ms C.] who was not wearing night clothes did not have the time to get dressed, but covered herself with her quilt, opened the door and let the applicant into the room. She could see that he was intoxicated. He went to the mini-bar and fetched something to drink, but instead of leaving he sat down on her bed and started talking. After a short time he began pulling her quilt in order to remove it. She asked him to leave, but he did not follow her suggestion. At a certain point in time he managed to get the quilt off her, but she managed to get up and put it around her again. [The applicant] continued to pull the quilt and drew her towards himself and also got himself undressed. In the end they were both in the bed. The High Court unanimously finds that on the balance of probabilities it is clearly probable that [the applicant] during this night had sexual intercourse with [Ms C.] and that this intercourse was not consensual on her part. As to the question whether the remaining conditions for making an award of compensation have been fulfilled, the High Court is divided in a majority and a minority. The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [ vold ] that the act could be accomplished. There was no question of serious use of violence [ alvorlig voldsbruk ], only of overpowering by holding [Ms C.]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [ vold ]. Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [ vold ] has gained [ tiltvunget seg ] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled. [...] The minority , ..., has found that the conditions for ordering the accused to pay compensation have not been fulfilled. The minority does not find it has been made sufficiently probable that [the applicant] understood that the sexual intercourse was not consensual on [Ms C.]’s part or displayed gross negligence in this respect.” 10.     On 12 May 2004, on the basis of the High Court’s judgment, the applicant’s appeal within the company against his dismissal from his job as a pilot for British Airways was refused. 11.     The applicant appealed to the Supreme Court against the High Court’s procedure, assessment of evidence and application of the law. The appeal on the latter point was on the ground that, contrary to Article 6 § 2 of the Convention, the High Court had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges. By a decision of 9 October 2003 the Appeals Selection Committee of the Supreme Court granted leave to appeal with respect to this ground of appeal, while refusing such leave for the remainder. 12.     In support of his appeal against the High Court’s application of the law, the applicant argued, inter alia the following. For a judgment awarding compensation to be rendered after an acquittal, there was a requirement under the European Court’s case law relating to Article 6 § 2 of the Convention that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal. This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation. It ought to be made clear that the subject-matter for the two issues, respectively criminal and civil liability, are different and that the award of compensation did not weaken the acquittal. In this case, the High Court had failed to create the necessary distance between the two issues, since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation. Moreover, no express reservation had been stated with regard to the acquittal. Furthermore, the applicant argued, it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal. In several places, the High Court had used such formulations, including the expressions “guilty”, “the use of force” and “sexual intercourse by force”. This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated. Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case. In this connection the applicant relied on the Court’s judgment of 11   February   2003 in Y. v. Norway (no. 56568/00, ECHR 2003 ‑ II). The applicant, again referring to the aforementioned Y v. Norway judgment and also to Article 13 of the Convention, submitted that, if the Supreme Court were to find a breach of the Convention in the present case, it would have to quash the lower court’s judgment. Where a decision suffered from such defects, due process required that there be an entirely fresh assessment of the evidence. If there was no basis for setting the impugned judgment aside, then at the very least a declaratory judgment ought to be rendered, stating a violation of the Convention. 13.     On 24 February 2004 the Supreme Court unanimously rejected the applicant’s appeal against the High Court’s judgment on compensation, finding no breach of Article 6 § 2 of the Convention. The first voting judge, Ms Justice Stabel, gave the following reasons: (23)     I have concluded that the reasons given by the High Court do not contravene the presumption of innocence in Article 6 § 2 of the Convention [...] and accordingly that the appeal will not succeed. [...] (25)     With regard to the details of the provision applied in our case, it is in my view appropriate to base our assessment on the judgment rendered by the Supreme Court on 27 November 2003 in Case No. 2003/227. This judgment was rendered after the guiding judgments by the European Court of 11 February 2003 in Y. v. Norway [cited above] and Ringvold v. Norway [no. 34964/97, ECHR 2003 ‑ II]. Reference is made to the thorough discussion of the decisions – and past case-law of the European Court – contained therein. Therein it is stated that Article 6 § 2 protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence, without his having been convicted in a criminal case. (26)     It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case, even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability. However, where a person who has been acquitted of a criminal charge is ordered to pay compensation, it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal. Moreover, provided that the compensation order is not formulated in this way, Article 6 § 2 of the Convention [...] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related. (27)     According to Article 3 of the Code of Criminal Procedure, ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case, provided that the claim derives from the same act as the criminal case. The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing two trials. The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases. An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case, based on the finding that he committed the act in respect of which s/he had been acquitted. In order to enable this without creating doubts about the acquittal, strict requirements should apply to the reasoning contained in the judgment awarding compensation. (28)     The ground for the appeal is that the reasons given in the High Court’s judgment on this point violated the presumption of innocence. In its judgment of 27   November 2003, the Supreme Court found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error. This too is my finding. (29)     Under Article 144(4) of the Code of Civil Procedure, the reasoning in a judgment in a civil case must ‘state precisely and exhaustively the facts on which the Court bases its decision ...’. In our case the basis for compensation for pecuniary and non-pecuniary damage is sections 3-3 and 3-5(1)(b)of the Damage Compensation Act 1969. It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in Article 192 of the Criminal Code. The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision. The subjective conditions for liability also coincide to some extent, namely that compensation for pecuniary and non-pecuniary damage requires intent or gross negligence and that Article 192 (4) of the Criminal Code also makes sexual assault by gross negligence a criminal offence. (30)     Given the manner the conditions for compensation have been formulated, it is not possible to avoid coming close to a criminal- law assessment. In order to do this, without casting doubt on the acquittal, the court must in my view take as a starting point what inter alia distinguishes the legal consequences, i.e. the requirement of proof that the conditions have been fulfilled. The finding that, in objective terms, a breach of Article 192 has occurred cannot be avoided. The same applies to the subjective conditions for compensation. What must be avoided is casting doubt over the correctness of the acquittal, in view of the strict evidentiary requirements that apply in criminal cases. (31)     The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [the applicant], under Norwegian law [Ms C.] has not forfeited her right to claim compensation for pecuniary and non-pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place. The Court continues: ‘Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.’ (32)     The defence has argued that the interjection ‘in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment. I do not agree with this, nor that the High Court, when providing in a subsequent paragraph a further description of the evidentiary requirements, refers to [Ms C.]’s claim that [the applicant] was ‘guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law. The expression ‘guilty’, which in fact was a quote from [Ms C.]’s submissions, must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions. (33)     After having outlined the chain of events that it has found established, the High Court concluded that ‘it is clear on the balance of probabilities that on this night [the applicant] had sexual intercourse with [Ms C.] and that this intercourse was not voluntary on her part’. This cannot in my view be regarded as an attack on the acquittal. Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present. The same applies when the majority of the High Court states that on the balance of probabilities it was clearly probable that [the applicant] realised that [Ms C.] did not want sexual intercourse with him and that ‘[the applicant] by the use of violence has gained sexual intercourse with [Ms C.].’ (34)     To sum up, I note that the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation. Moreover, the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury. Furthermore, as I have already noted, I do not find that expressions of a typically criminal- law character were used. Factors of this nature were found to be decisive when the Supreme Court ruled on 27 November 2003 that the presumption of innocence had been violated in that case, see paragraphs 36 and 38 of the decision. In our case, I am accordingly of the view that the High Court marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways. (35)     I have concluded on this basis that the appeal must be rejected.” The four other judges agreed with the first voting judge “in the main and the conclusion ”. 14.     The applicant has submitted a letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime ( Kontoret for voldsoffererstatning ). It states that by a decision of 24 May 2004 the Office had granted Ms C. NOK 182,313 in compensation, “having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act.” It further notified the applicant that the Office might seek restitution of NOK 124,000 from him. II.     RELEVANT DOMESTIC LAW AND PRACTICE 15.     In so far as relevant, Article 192(1) and (2) of the Penal Code read: “Any person who a)     engages in sexual activity by means of violence or threats, [...] shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years. In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act, importance shall be attached to whether the aggrieved person was under 14 years of age. A penalty of imprisonment for not less than two years shall be imposed if a)     the said activity was sexual intercourse, or [...] A person who, due to gross negligence, is guilty of rape according to the first paragraph above shall be punished with minimum five years’ imprisonment. ... ” 16.     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 ). 17.     In so far as is relevant, Article 376A of the Code of Criminal Procedure 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 )...” 18.     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 judgement of acquittal.” No reasons are given for an acquittal. 19.     Under the Code of Criminal Procedure 1981, 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...”. 20.     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. 21.     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.” 22.     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.” 23.     Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 192 of the Penal Code. 24.     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 ( Norsk Retstidende 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. 25.     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 Report) 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). 26.     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). 27.     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 (ibidem, Chapter 6, sub-chapter 6.3.1 and 6.3.2). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 28.     The applicant complained that the High Court’s judgment awarding Ms C. 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. This provision reads: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 29.     The Government invited the Court to declare the application inadmissible and, in any event, to find that Article 6 § 2 was inapplicable and not violated in the instant case. A.     Admissibility 30.     In connection with his above-mentioned complaint, the applicant submitted that the letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (see paragraph 14 above) should be seen as an inseparable part of the compensation proceedings or could be seen as part of the enforcement of the High Court’s judgment. 31.     The Government argued that this part of the application was flawed in substance as this was a separate compensation scheme based on an independent assessment by the Office under the Compensation for Victims of Violent Crime Act 2001. A decision by the Office could be appealed to the Compensation Board for Victims of Violent Crime and a decision by the latter could be challenged before the courts according to Article 435 § 1 of the Code of Civil Procedure. This arrangement should not to be confused with criminal proceedings in the present case. The Government requested the Court to declare this part of the application inadmissible for failure to exhaust domestic remedies. 32.     As to the remainder of the application, the Government invited the Court to declare it inadmissible as being manifestly ill-founded. 33.     The Court considers that, in so far as the applicant complains about the notice of 20 October 2004 from the Compensation Office for Victims of Violent Crime, this appears to constitute a separate matter in respect of which he has not exhausted domestic remedies. 34.     As regards the remainder of the application the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. This part of the application must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (i)     The applicant 35.     The applicant submitted there where clear links between the criminal case and the compensation claim. He argued that it is relevant to the applicability of Article 6 § 2 that criminal and victim compensation proceedings were joined. The links created between the criminal case and the compensation claim led to the conclusion that Article 6 § 2 applied to the compensation claim as well. 36.     In Norway, the constitutive elements of non-pecuniary compensation for rape were identical to the preconditions for criminal liability for rape. By virtue of section 3-5 of the Damage Compensation Act 1969, a person was entitled to non- pecuniary compensation if he or she could prove the commission of a criminal offence under Article 192 of the Penal Code by wilful or grossly negligent conduct. Equally criminal liability for the offence under section 192 required proof of wilful or grossly negligent conduct. 37.     In the applicant’s opinion, the High Court did expressly and in substance state that all the conditions for criminal liability had been fulfilled on a clear preponderance of probabilities. Even the Supreme Court had made it clear that the objective and subjective constituent elements for criminal and pecuniary and non-pecuniary civil liability for rape were co ‑ extensive in the applicant’s case. In this connection he referred to paragraphs 29 to 30 of the Supreme Court’s judgment quoted above. 38.     The applicant was of the view that there were clear links between the criminal acquittal and the reasons in the compensation proceedings, in terms of the same issues, evidence, judges, parties and judgment, in terms of statutory and judicial reference to the positive fulfilment of the conditions for criminal liability, and in terms of time, so as to justify the application of Article   6 § 2 to the latter proceedings. In the circumstances, the High Court had faced the impossible task of seeking to reconcile its compensation reasoning with the criminal acquittal that immediately preceded it, without substantially casting doubt on that criminal acquittal. In the applicant’s opinion, the High Court should not have sought to determine civil liability in the face of the criminal acquittal but should have left that issue to be determined by a separate civil court, at which Article 6 § 2 would not necessarily have applied. 39.     The High Court had determined criminal and civil liability in the same judgment and appeared to have come to contradictory conclusions on the objective constituent elements and on the subjective constituent element of guilt, thereby giving rise to an issue under Article 6 § 2. The particular aspect of the High Court’s reasoning that had given rise to an issue under the Convention was the majority’s finding that "on the evidence there was a clear preponderance of probability that [the applicant] understood that [Ms   C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of force/ violence that the act could be accomplished ... the basic nature of the act was wilful violation by the application of violence". Such a finding of intention and bad faith, on the basis of the same evidence and co-extensive objective constituent elements, clearly cast doubt on the acquittal declared by the same court. 40.     The applicant submitted that there was no real difference between the standard of proof applied in the criminal case and that applied in the compensation claim. Proof beyond reasonable doubt, in whatever form of words expressed, was one standard. Proof on a preponderance of probability was another, lower standard. If there was a third standard of a "clear preponderance of probabilities", it was necessary to identify what the standard was and when it applied. The reality was that the standard of proof applied in the compensation claim appeared to be proof to the criminal standard. 41.     Even if the standard applied was lower than the criminal standard, such a heightened civil standard of proof was incapable of sufficiently distinguishing between criminal and civil liability so as to avoid casting doubt on the acquittal, because the proceedings were joined and the objective and subjective constituent elements of liability were identical for criminal and civil liability. (ii)     The Government 42.   Initially, the Government pointed out that, in its judgments in Y v.   Norway and Ringvold v. Norway (both cited above), the Court had formulated the test to be applied in this type of cases under Article 6 § 2. In the Government’s opinion, the High Court and also the Supreme Court had correctly applied that test in the applicant’s case. In their view, the present case could not be distinguished from other comparable cases in which the Court had found no violation or had declared the application inadmissible as being manifestly ill-founded. In its judgment, when read as a whole, the High Court had left no doubt as to the meaning of the judges’ reasoning on the compensation issue and thus complied with the requirements set forth in the Court’s case law. 43.     The Government pointed out that while an acquittal from criminal liability ought to be maintained in ensuing civil proceedings, it did not preclude the establishment of civil liability, based on a less strict burden of proof. Furthermore, no issue had arisen under Article 6 § 2 because civil liability had been established in joint proceedings with a criminal case that had resulted in an acquittal. The same system as in Norway had been established in several other states. 44.     The Government underlined that although the objective and subjective conditions for criminal liability and civil liability to a certain degree could overlap, there were nevertheless important differences between the basic conditions for establishing criminal liability and civil liability. Moreover, the purposes of the criminal law and the law on compensation were unlike. Also, the burden of proof required in civil cases, such as the present, was less strong then the burden of proof required in criminal cases, albeit it was somewhat stronger then the ordinary balance of probabilities that applied in civil cases, in order to safeguard the defendant’s reputation. The Court had accepted this burden of proof in previous cases against Norway. 45.   The High Court in the present case had acted under its obligation to give precise and exhaustive reasons in civil judgments. It had refrained from imputing criminal liability to the applicant with regard to the charges of rape in the ensuing compensation proceedings. In the view of the Government, the High Court distinguished sufficiently clearly between criminal and civil liability, so as not to create a link between the cases. 46.     Thus, the Government could not agree with the applicant’s submission that the High Court appeared to have come to contradictory conclusions on the matter of criminal liability and civil liability. 2.     The Court’s assessment 47.     The Court will examine the applicant’s complaint in the light of the principles enunciated in its case-law (see Ringvold v. Norway , no.   34964/97, § 36, ECHR 2003 ‑ II; and Y. v. Norway , no.   56568/00, §   39 ECHR 2003 ‑ II (extracts) and its application of those principles in those cases (see respectively at paragraphs 37-42 and 40-47 of the said judgments). These principles were reiterated in Pamela Kay Reeves v. Norway (dec.) no.   4248/02, 08.07.2004; and Tommy Lundkvist v. Sweden (dec.) 48518/99, 13.11.2003. Accordingly, it will examine whether the compensation proceedings in this case gave rise to a “criminal charge” against the applicant and, in the event that this was not the case, whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2. 48.     Turning to the first of the criteria for establishing whether there was a “criminal charge”, namely the classification of the proceedings under national law, the Court notes that the High Court’s decision to award compensation had its legal basis in Chapter 3 of the Damage Compensation Act 1969, which sets out the general principles of the national law on torts applicable to personal injuries. It is clear from both the wording of Article   3-5 and Norwe