THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4248/02 by Pamela Kay REEVES against Norway

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr G. Ress , President , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 16 November 2001,

Having regard to the observations submitted by the applicant and by the respondent Government in reply,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Pamela Kay Reeves, is a national of the United States of America (the USA), who was born in 1969 and lives in Smyrna, Georgia, the USA. She is represented before the Court by Mr T. Randby, a lawyer practising in Oslo.

The respondent Government were represented by Mr H. Harborg of the Attorney general’s Office (Civil Matters) as Agent.

A. The circumstances of the case

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

The applicant and T.F. met in New York in 1993. The same year she moved to Norway and settled in Bergen. In December 1994 they married. Together they have a daughter born in September 1998. The couple separated in the spring 1998 and later divorced. The applicant and her former husband had acquired an undetached house in Bergen in 1995, in which she continued to live with her daughter until 30 December 1998.

On the latter date, at around 11 p.m., the house was severely damaged by fire. As was subsequently found established in the ensuing judicial proceedings mentioned below, ten, or maximum fifteen, minutes elapsed between the applicant’s leaving the house and a neighbour discovering the fire.

On 15 September 1999 the applicant was charged with (1) having set fire, on her own or together with others, to her own main residence home and causing arson, entailing damages amounting to NOK 1,000,000; (2) having done so in order to obtain insurance compensation; (3) having reported to the police a theft of a Rolex watch and other valuables, worth NOK 90,000, despite the fact that she was in the possession of the watch and the other objects were lent to friends of her (Articles 291, 292, 272, first and second paragraphs, 171 (1) of the Penal Code and section 13 of the Fire Prevention Act together with Article 62 of the Penal Code).

The Bergen City Court ( byrett ) held a trial hearing over 7 days, during which it heard 26 witnesses, including fire experts, and carried out an on site visit of the property. On 23 March 2000 the City Court convicted the applicant of the charges and sentenced her to two years’ imprisonment, from which the 30 days she had spent in pre-trial dentition were to be deducted. In addition, she was ordered to pay to the Vesta Forsikring AS , the insurance company with which the house was insured, NOK 1,430,347 in compensation, corresponding to the insurance payments made by the company. She was held liable under the general principle of law on civil compensation (“ culpa-grunnlag ”) because she had with intent caused the insurance company damage.

The applicant appealed against the conviction and sentence as well as the compensation order to the High Court. Sitting with three professional judges and four lay judges ( meddommere ), the High Court heard the case between 8 and 23 January 2001, during which it took evidence from 34 witnesses, including fire experts, and made an on site visit of the property.

On 16 February 2001 the High Court maintained the conviction of the applicant on the charges of insurance fraud with respect to her declarations of thefts of certain objects, but acquitted her with respect to the remaining charges. It sentenced the applicant to 30 days’ imprisonment, from which the period (30 days) spent in custody were to be deducted. Moreover, the High Court upheld the City Court’s judgment in so far as concerns the order that the applicant pay compensation.

In reaching the above conclusions the High Court was divided. All the professional judges and two of the lay judges voted for the applicant’s conviction on the charge of false declaration of theft, the other two lay judges voted against.

As regards the charges related to arson, the majority (composed of two professional judges and two lay judges) voted for the applicant’s conviction, finding it established beyond reasonable doubt that she had with intent started the fire and this with the intention to obtain insurance compensation.

The minority (composed of one professional judge and two lay judges) voted for the applicant’s acquittal, finding it not proven beyond reasonable doubt that the house had been set fire to and that it could not be excluded that the fire had its origin in the house’s electric installations. Under Article 35 of the Code of Criminal Procedure, requiring a minimum of five votes for conviction, the votes of the minority, was decisive and the applicant was accordingly acquitted of these charges.

As to the issue whether the applicant in the specific circumstances should be held liable to pay civil compensation, the judgment contained the following reasons:

“The High Court’s majority refers to its above-mentioned observations with regard to the fire.

“Justice Einarsen finds that on the balance of probabilities there is a clear probability that the defendant is guilty of setting the fire as described in the indictment even though in his opinion the evidence in the case does not suffice to establish criminal guilt as regards these charges for the reason that he is unable to exclude that the fire could have been caused by an electrical fault.”

...

In the [new] majority’s view there is no doubt that the conditions for making an award for compensation are fulfilled, even though there is internal disagreement as to the extent to which the evidence satisfies the criminal burden of proof.... There is no dispute as to the other conditions for compensation or its size. ...

The minority ([the two lay judges of the minority]) finds that the conditions for compensation have not been fulfilled.”

The applicant sought to appeal against the above judgment and the High Court procedure but, on 29 June 2001, the Appeals Selection Committee of the Supreme Court refused her leave to appeal.

B. Relevant domestic law and practice

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 ).

Reasons are to be given for the High Court’s decision on criminal liability, unless it sits with a jury, and for its decision on compensation (Article 40, second sub-paragraph, of the 1981 Code of Criminal Procedure and Article 144 (4) of the 1915 Code of Civil Procedure).

Pursuant to Article 35 of the Code of Criminal Procedure:

“A decision on the issue of guilt in disfavour of the person charged requires five votes in the High Court. ...

Otherwise all decisions shall be made by an ordinary majority unless otherwise provided. ...”

Under the Code of Criminal Procedure, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. Consequently, the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. 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. On the said conditions the following claims may also be pursued:

(4) recourse claims which an insurance company or any other person that has paid out compensation, insurance or a pension on account of the damage has against the person charged.

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...”.

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. ...”

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 trial hearing is held. ...”

Article 435

“A separate appeal against a decision on 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.”

A claim for compensation for damage submitted by a victim under the general principles on the law of torts 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. 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. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case.

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. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Norwegian Official Reports) 2000:33, “ Erstatning til ofrene hvor tiltalte frifinnes for straff ” (“Compensation to victims in cases where the accused has been acquitted on the criminal charge”), a study by J.T. Johnsen, Professor of Law, Chapter 1, section 1.3.2).

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 allocation of financial loss. The two systems also supplement one another in important respects. While criminal-law sanctions are particularly designed to deter 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, section 1.2.1).

COMPLAINTS

The applicant complains under Article 6 § 2 of the Convention about the decision of the national courts ordering her to pay compensation and the reasons given therefore which in her opinion amounted to establishing criminal guilt.

THE LAW

The applicant complains that the High Court’s judgment awarding the insurance company compensation entailed a violation of her 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.”

A. The parties’ submissions

1. The applicant

The applicant submitted that, by ordering her to pay compensation to the insurance company, the High Court had, in the same judgment concluding with acquittal, nevertheless found it established that it was clearly probable that she was guilty of the arson. It was clear in the circumstances of the present case that what was decisive for both the question of criminal liability and that of civil liability was whether the applicant actually had perpetrated the fire. The High Court’s reasoning contained an express affirmation of guilt, both by the indecisive majority’s reference to its reasoning under the issue of criminal liability and by the statement of Mr Justice Einarsen that there was “a clear probability that the defendant is guilty of setting the fire as described in the indictment”.

The applicant further stressed that the same judges took the decision on compensation in the same judgment and on the basis of the same evidence, as in the criminal case. For these reasons, her case was even stronger than that of Y v. Norway (no. 56568/00, judgment of 11 February 2003).

In the light of the foregoing, the applicant maintained, the High Court’s decision on compensation fell within the scope of Article 6 § 2 and was incompatible with that provision.

2. The Government

The Government disputed the applicant’s arguments and requested the Court to declare the application inadmissible as being manifestly ill-founded. From the Court’s judgments in the cases of Ringvold v. Norway (no. 34964/97, judgment of 11 February 2003) and Y. v. Norway (cited above), it followed that Article 6 § 2 was not applicable to the national court’s decision and reasoning on compensation and that in any event no issue of compatibility with that provision arises in the present case.

In so far as the reasoning of the four members of the majority was concerned, the Government stressed that one crucial difference between this case and that of Ringvold and Y. , was that the question of criminal guilt was determined, not by a jury, but by the same members of the High Court, three professional judges and four lay judges, who were called upon to decide also on compensation. Each member was required under the Code of Criminal Procedure to give comprehensive reasons for his or her conclusions. Article 6 § 2 could not prevent these judges from stating in the High Court’s judgment their dissenting opinion on criminal liability or to make a reference to this opinion in the reasoning on compensation. Having already given their account of the facts and evidence and found, on the basis of a far stricter standard of proof, that the applicant had set fire to her house, the most expedient and pertinent way of dealing with the same factual issues was for those four judges to just refer to their prior findings with regard to the fire. Had they instead opted for the more cumbersome approach to restate their findings of fact in the civil context, it would hardly have enhanced the exonerating effect of the acquittal.

In so far as the reasoning of Mr Justice Einarsen was concerned, the Government maintained that it could not be taken to impute criminal liability on the applicant. Rather the contrary, he had made it clear that the conditions for criminal liability had not been fulfilled.

B. The Court’s assessment

The Court will examine the applicant’s complaint in the light of the principles enunciated in its recent judgments in Ringvold v. Norway and Y v. Norway (both cited above) and its application of those principles in those cases (see respectively at paragraphs 36-42 and 39-47 of the judgments). It will examine whether the compensation proceedings in her case gave rise to a “criminal charge” against her 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.

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 was taken on the basis of general principles on the civil law on tort. Under Article 3 of the Code of Criminal Procedure, the insurance company’s compensation claim was considered a “civil” one. The compensation claim was not viewed as a “criminal charge” under the relevant national law.

As regards the second and third criteria, the nature of the proceedings and the type and severity of the “penalty”, the Court notes from the outset that it is not submitted that either the purpose of the award or its size conferred on the measure the character of a penal sanction for the purposes of Article 6 § 2. It sees no reason to hold otherwise. In the case at hand the applicant was ordered to re-pay to the insurance company.

The Court further considers that, although formulated with particular regard to the situation of a compensation claim by an individual victim, the following considerations relied on in its Ringvold judgment (§ 38, see also the Y. judgment at § 41; and Tommy Lundkvist v. Sweden (dec.) 48518/99, 13.11.2003) are relevant to the insurance company’s claim in this case:

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

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

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

As to the language used in the reasoning on compensation in the case now under review, the Court notes, firstly, that the four members of the majority referred to their “observations with regard to the fire”, as addressed in relation to the issue on criminal liability, as their ground for ordering the applicant to pay compensation. Secondly, Mr Justice Einarsen stated that “on the balance of probabilities there is a clear probability that the defendant is guilty of setting the fire as described in the indictment even though in his opinion the evidence in the case does not suffice to establish criminal guilt as regards these charges for the reason that he is unable to exclude that the fire could have been caused by an electrical fault”. Whether the reasons in question gave rise to an issue under Article 6 § 2 must be viewed in the context of the proceedings as a whole and their special features.

Like in the Y case, the compensation matter was here dealt with in connection with the criminal charges. This does not of itself bring the matter within the ambit of Article 6 § 2. However, unlike in that case, it was determined, not by a jury, but by the same judges who ruled on compensation. After the closure of the oral hearing in the case, the judges decided first on the criminal charge and acquitted the applicant and then proceeded to determine the compensation claim. They gave their decisions in the same judgment, which is structured accordingly. Both in the criminal round and in the compensation round, each member of the High Court was required to give reasons for his or her vote. It is further to be noted that, under Article 35 of the Code of Criminal Procedure, a minimum of five votes were required for the applicant’s conviction. Since only four out of the seven members voted in favour, she was acquitted of the arson charges. The requirement of a qualified majority for conviction was aimed at safeguarding the defendant’s interests. In contrast, only a simple majority was required for making an award of compensation. Five members, those four who voted for conviction plus one who voted against, found that the conditions were fulfilled for making an award of compensation.

Thus, it transpires that the outcome in the compensation case diverged from that in the criminal case essentially because of differences in the rules on voting. In such a situation, the Court does not find that a judge, who, as part of an indecisive majority, has concluded that the defendant is guilty of the commission of an offence and has voted for conviction, is required by Article 6 § 2 to disregard his or her findings in that part of the case concerning elements that are relevant to the issue of compensation.

A different matter is the reasoning on compensation of a judge who has previously voted for acquittal, as was the case of Mr Justice Einarsen. The first limb of his reasoning (“on the balance of probabilities there is a clear probability that the defendant is guilty of setting the fire as described in the indictment ”, emphasis added), is open to criticism, if read on its own. However, it is contradicted by the second limb of the same sentence (“even though in his opinion the evidence in the case does not suffice to establish criminal guilt as regards these charges for the reason that he is unable to exclude that the fire could have been caused by an electrical fault ” emphasis added), which suggests that the choice of words in the first limb was an unfortunate slip. It cannot reasonably be read as an affirmation imputing criminal liability for arson on the part of the applicant. The judge’s detailed grounds, stated over several pages in the same judgment, for acquitting the applicant of the arson-related charges confirms this. When read in the context of the judgment as a whole, the reader cannot be left with any doubt as to the meaning of the judge’s reasoning on compensation: while the evidence was insufficient for establishing criminal liability, it was sufficient for ascertaining civil liability to pay compensation.

Against this background, the Court does not find that the decision and reasoning on compensation were incompatible with, and “set aside”, the applicant’s acquittal and amounted to the bringing of another “criminal charge” against her. On the other hand, it would not exclude that there were such links between the criminal case and the compensation case as to justify extending the scope of application of Article 6 § 2 to the latter. Meanwhile, even assuming that this provision was applicable to the compensation case, the Court does not find that the reasons given for ordering the applicant to compensate the insurance company for the damage caused were incompatible with the presumption of innocence.

It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President