CEDH · PRESS;GENERAL;ENG — 11 février 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE832CA2 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sD3427EA2 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     078   11.2.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS IN THE CASES OF O, HAMMERN, RINGVOLD AND Y v. NORWAY   The European Court of Human Rights has today notified in writing judgments [1] in the cases of O v. Norway, Hammern v. Norway, Ringvold v. Norway and Y v. Norway (application nos. 29327/95, 30287/96, 34964/97 and 56568/00). (The judgments are available only in English.)   The Court held unanimously that the applicant’s complaint under Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights in Y. v. Norway was admissible.   In the cases O v. Norway, Hammern v. Norway and Y v. Norway the Court held, unanimously, that Article 6 § 2 was applicable and that there had been a violation Article 6 § 2 .   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant in O v. Norway 5,000 euros (EUR) for non-pecuniary damage and EUR 2,900 - less EUR 2,848 paid by the Council of Europe in legal aid - for costs and expenses. In Y v. Norway , the Court awarded the applicant EUR 20,000 for non-pecuniary damage and EUR 4,500 for costs and expenses. Mr Hammern made no claim for just satisfaction.   In Ringvold v. Norway , the Court held by six votes to one that Article 6 § 2 was not applicable and that there had therefore been no violation of Article 6 § 2 .   1.     Principal facts   The cases were brought by four Norwegian nationals. The first three applicants were acquitted of sexual abuse of minors after a jury had answered all the questions put to it in the negative. The fourth applicant was acquitted, on appeal, of violent sexual assault and manslaughter, again after a jury had answered all the questions put to it in the negative.   Following their acquittal, the applicants in O and Hammern brought compensation claims for inconvenience suffered as a result of the criminal proceedings. In Ringvold and Y the victim and the victim’s parents lodged civil compensation claims against the applicants.   O is a Norwegian citizen, born in 1955 and living in Norway. He and his father were charged with having sexually abused over a number of years the applicant's daughter, L., born on 18 October 1981. The applicant was acquitted in June 1994 by Eidsivating High Court ( lagmannsrett ).   On 29 August 1994, the applicant and his father filed for compensation under Articles 444 - 446 of the Code of Criminal Procedure. On 25 January 1995 the High Court rejected the applicant's claim.   Considering the case as a whole the High Court did not find it shown, on the balance of probabilities, that the applicant did not have sexual intercourse with his daughter.   Ulf Hammern is a Norwegian citizen, born in 1949 and living in Bjugn, Norway. On 10 March 1992 the local police received reports that the applicant had sexually abused one or more children at Botngård kindergarten, where he worked as an assistant. On 13 March 1992 he was suspended from his post.   On 9 January 1993 the applicant was formally charged with having sexually abused 36 named children and an unknown number of children at the kindergarten. On 22 September 1993 he was formally charged with having sexually abused ten children at the kindergarten. He was acquitted by Frostating High Court on 31 January 1994.   The applicant filed for compensation and was awarded NOK 170,000. However, the Court rejected his claim for supplementary compensation under Article 444, it not having been shown probable that he did not perform the acts which were the basis of the charge.   Ivar Ringvold is a Norwegian citizen, born in 1965 and living in Oslo. On 24 June 1993 he was charged with the sexual abuse of a minor, G., born in December 1979, during the period from 1986 to 1990. 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.   On 18 February 1994 Eidsivating High Court acquitted the applicant of the charges and rejected G.’s civil compensation claim for non-pecuniary damage. G. subsequently appealed to the Supreme Court which awarded her compensation, finding that, on the balance of probabilities, it was clear that she had been sexually abused by the applicant.     Y is a Norwegian national, born in 1977. On 1 October 1997 he was charged with sexually assaulting his cousin Ms T. (aged 17) and, among other things, hitting her with a 23 kg stone and fracturing her cranium. Ms T. later died of the head injuries.   Karmsund District Court ( herredsrett ) convicted the applicant of the charges and sentenced him to 14 years’ imprisonment, and ordered him to pay NOK 100,000 in compensation to Ms T.’s parents. Gulating High Court acquitted the applicant but upheld the award of compensation to Ms T.’s parents.   All four applicants appealed unsuccessfully.         2.     Procedure and composition of the Court   The cases O , Hammern and Ringvold were lodged with the European Commission of Human Rights on 11 October 1995, 14 December 1995 and 5 December 1996 respectively. All three cases were transmitted to the Court on 1 November 1998. The application Y v. Norway was lodged with the Court on 23 March 2000. O was declared partly admissible on 14 December 1999, and Hammern and Ringvold were declared admissible on 11 September 2001. A hearing was held concerning all four applications on 17 September 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Willi Fuhrmann (Austrian), Loukis Loucaides (Cypriot), Pranas Kūris (Lithuanian), Françoise Tulkens (Belgian), Karel Jungwiert (Czech), Hanne Sophie Greve (Norwegian), judges , and also Sally Dollé , Section Registrar .     3.     Summary of the judgments [2]   Complaints The applicants all complained that decisions taken by the Norwegian courts concerning the compensation claims in question were based on reasoning which contained assumptions of criminal guilt despite their acquittal, in violation of Article 6 § 2 of the Convention.     Decisions of the Court   Article 6 § 2   O v. Norway and Hammern v. Norway (concerning compensation claims made by the acquitted)   The Court noted that the outcome of the criminal proceedings in both O and Hammern was decisive; compensation claims could only be made by a person who had been acquitted or where the criminal proceedings in question had been discontinued.   The Court also found that the issue of compensation overlapped to a very large extent with the issues decided in the applicants’ criminal trials. The issue of compensation was determined on the basis of evidence from these trials by the same courts, sitting in the same - or largely the same - formation, in accordance with the requirements of Article 447 of the Code of Criminal Procedure.   The compensation claims not only followed the criminal proceedings in time, but were also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject-matter. Their object was to establish whether the State had a financial obligation to compensate the applicants for the burden created by the prosecution engaged against them.   Although the applicants were not “charged with a criminal offence”, the Court considered that, as the conditions for obtaining compensation were linked to the issue of criminal responsibility, Article 6 § 2 was applicable.   The Court reiterated that Article 6 § 2 embodied a general rule that, following a final acquittal, even the voicing of suspicions regarding an accused’s innocence was no longer admissible.   The Court observed that, in O , the High Court had found it probable that the applicant’s daughter had been subjected to sexual abuse and, “considering the case as a whole, ... [did] not find it shown on the balance of probabilities that [he] did not engage in sexual intercourse with [her]”. In Hammern the High Court had reiterated the conclusions of the medical experts, “imply[ing] a very high degree of probability that the 10 children referred to in the indictment have been exposed to sexual abuse ” and summarised at length the different types of evidence pointing to Mr Hammern as the perpetrator of the acts described. The High Court had reached the conclusion that the applicant had failed to show that it was probable that he had not perpetrated the acts which formed the basis of the charges.   In both O and Hammern , the Court concluded that the High Court’s reasoning clearly amounted to the voicing of suspicion against both applicants with respect to the charges of sexual abuse for which they had been acquitted. Despite the fact that the Appeals Selection Committee of the Supreme Court had restated its view in each case that the refusal of a compensation claim did not undermine or cast doubt on a prior acquittal, the Court was not convinced that the impugned affirmations were not capable of calling into doubt the correctness of the applicants’ acquittals, in a manner incompatible with the presumption of innocence. There had, therefore, been a violation of Article 6 § 2 in O v. Norway and Hammern v. Norway .   Y v. Norway and Ringvold v. Norway (concerning compensation claims made by the victim or the victim’s parents)   In Y and Ringvold the Court noted that criminal liability was not a prerequisite for liability to pay compensation and that the compensation claims in question were not viewed as a “criminal charge” under Norwegian law.   The Court further observed that, while the conditions for civil liability could in certain respects overlap with those for criminal liability, the civil claim was nevertheless to be determined on the basis of principles that belonged 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 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 applied to criminal liability.   In the view of the Court, the fact that an act that might give rise to a civil compensation claim under the law of tort was also covered by the objective constitutive elements of a criminal offence did not mean that the person allegedly responsible for the act in the context of a tort case had been “charged with a criminal offence”. Nor could the use of evidence from the criminal trial to determine the civil law consequences of the act warrant such a characterisation. Otherwise 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. This again could give an acquitted perpetrator 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 of the countries which had ratified the European Convention on Human Rights. On the contrary, in a significant number of those countries, an acquittal did not preclude establishing civil liability in relation to the same facts.   The Court therefore considered that, while the acquittal from criminal liability ought to be maintained 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. However, Article 6 § 2 would come into play if the decision on compensation included a statement imputing criminal liability.   In Ringvold , the ruling on compensation did not state that all the conditions were fulfilled for holding the applicant criminally liable for charges of which he had been acquitted. The ensuing civil proceedings were not incompatible with, and did not “set aside”, that acquittal. Furthermore, the purpose of establishing civil liability to pay compensation was, unlike that of criminal liability, primarily to remedy the injury and suffering caused to the victim. The amount of the award could be considered justified on account of the damage caused. Neither the purpose of the award nor its size constituted a penal sanction. The Court did not therefore find that the compensation claim amounted to the bringing of another “criminal charge” against the applicant after his acquittal.   Considering further whether there were links between the criminal case and the ensuing compensation case which justified extending the scope of the application of Article 6 § 2, the Court reiterated that the outcome of the criminal proceedings was not decisive for the compensation issue. Despite the applicant’s acquittal it was legally feasible to award compensation. Regardless of the conclusion reached in the criminal trial against the applicant, the compensation case was thus not a direct sequel to the former. Article 6 § 2 was therefore inapplicable in the case Ringvold v Norway and there had, therefore, been no violation of Article 6 § 2.   In Y , the Court observed that the High Court opened its judgment with the following finding: “Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act.   ...”     The judgment was upheld by the majority of the Supreme Court, albeit using more careful language.   The Court took account of the fact that the domestic courts noted that the applicant had been acquitted of the criminal charges. However, in seeking to protect the legitimate interests of the victim, the Court considered that the language employed by the High Court, upheld by the Supreme Court, overstepped the limits of the civil proceedings, casting doubt on the correctness of that acquittal. Accordingly, there was a link to the earlier criminal proceedings which was incompatible with the presumption of innocence. The Court therefore found that Article 6 § 2 was applicable and that there had been a violation of Article 6 § 2 in the case Y v. Norway . Judge Greve expressed concurring opinions in the cases of O v. Norway, Hammern v. Norway and Y v. Norway , each of which is annexed to the judgment. Judge Tulkens expressed a concurring opinion and Judge Costa a dissenting opinion in the case of Ringvold v. Norway ; these separate opinions are also annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).         Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.