FIRST SECTION

Application no. 27473/11 N.A. against Norway lodged on 3 May 2011

STATEMENT OF FACTS

1. The applicant, Mrs N.A., is a Norwegian citizen (according to information provided in the application form) , who was born in 1986 and lives in Norway . The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Mr P. Henriksen , a lawyer practising in Oslo .

A. The circumstances of the case

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

3. On 16 September 2009 the applicant and her former husband Mr U.A., a Pakistani national who was born in 1985, were indicted (I) under Article 229, third alternative, cf. Article 232 of the Penal Code ( straffeloven ), of having caused under particularly aggravating circumstances injury to the body and health of their daughter A entailing serious damage, or of having aided and abetted in this, by having exposed her at least on two occasions to violence causing the following damage:

“ - Two instances of fraction to her cranium;

- Bleeding under the hard membrane of the brain;

- Bleeding between the hard membrane of the brain and scull;

- Oedema changes in the brain;

- Bleedings in the retina in both eyes;

- Blue marks and miscolouring on the body;

- Elbow out of joint.

The last-mentioned injury had been discovered in December 2007 and the remainder in January 2008. The injuries to her head had been life-threatening and had led to permanent brain injury. The violence had been caused by the child ’ s parents, Mr U.A. and Mrs N.A., directly by, amongst other things, blows and/or pushes against a hard surface and forceful shaking and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.”

They were also indicted (II) under Article 219 (2), cf. (1), of having seriously and repeatedly exerted violence or otherwise infringed or ill ‑ treated someone in their household – in an aggravated manner because the abuse had been carried out over a long period, had been committed against a defenceless person and had been unprovoked. During the period from 17 August 2005 until 26 January 2008, their son B had a number of times been exposed to violence resulting, inter alia , in the following injuries:

“-A fracture in the upper arm caused by twisting;

-Blue nails on both of his big toes;

-Several wounds, scars and miscolouring to the body, including scars after scratching on the throat.

The violence had been caused by the child ’ s parents, Mr U.A. and Mrs N.A., either directly and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.”

4. On 13 January 2010 the Oslo City Court convicted the applicant and her former husband of the charges and sentenced them to terms of imprisonment of two years and a half and three years and a half, respectively.

5. The applicant and her former husband appealed to the Borgarting High Court, which, sitting with a jury, held a hearing for twelve days between 17 August and 3 September 2010 during which it took evidence from the defendants and eighteen witnesses and two court appointed experts. After the jury had answered all the questions put to it in the negative, the professional judges decided to accept the jury ’ s verdict of acquittal.

6. In the same judgment of 3 September 2010, the High Court (without the participation of any members of the jury) examined the children ’ s claims for compensation of non-pecuniary damage under section 3-5 (1) (a) of the Damage Compensation Act 1969, according to which a person who with intent or gross negligence had caused personal injury could be required to pay compensation to the victim. The High Court observed that such infringements as described in Article 219 of the Penal Code could constitute a ground for awarding compensation for non-pecuniary damage under section 3-5(1)(b), cf. section 3-3. The lawyer representing the children had argued that the parents, with intent or gross negligence, had caused or aided and abetted in causing serious injury to A ’ s head, her elbow getting out of joint and in seriously and repeatedly exposing B to violence.

7. The High Court observed that the victims ’ claims for non-pecuniary damage had its basis in the same acts as those in respect of which their father and mother had been acquitted in the criminal proceedings. The acquittal did not hinder making a n award of compensation for non ‑ pecuniary damage to the victims, since less stringent evidentiary requirements applied to the latter than to criminal punishment. When a judgment of acquittal had been given in the criminal case, the presumption of innocence in art 6 § 2 of the Convention would set limits to what could constitute the basis for a decision on the civil claims. According to the European Court ’ s case-law, the national courts could not justify their decision in a manner calling into doubt the acquitted person ’ s innocence for criminal law purposes.

8. A condition for establishing liability to pay compensation was that it was clearly probable that the damage had been caused by intent or by gross negligence.

9. Considering the evidence in the case as a whole, the High Court found it clearly probable that Mr U.A. and Mrs N.A. had ill-treated their children or had aided and abetted in doing so by consent or by incitement to the acts, over a long period until 26 January 2008. It further found it clearly probable that the parents had inflicted or had aided and abetted in inflicting great injuries to A ’ s head and had inflicted or aided and abetted in inflicting injuries to B through repeated violence, including a fracture to his arm by twisting it.

10. In its assessment of the evidence, the High Court had emphasised that several of the injuries ascertained had not been compatible with accidental occurrences but on the contrary showed that they had been inflicted by strong violence. The High Court pointed to the children ’ s later reactions, including that B had in 2008 been diagnosed as suffering from post-traumatic stress syndrome. It further referred to witness statements from neighbours about noise in the form of scream of anxiety and painful cries from children in the apartment over a longer period.

11. The High Court was of the view that the physical and psychological injuries sustained by the children had been a direct consequence of the ill ‑ treatment to which they had been exposed. It had further been foreseeable for Mr U.A. and Mrs N.A. that serious injuries, including serious brain damage, could occur in the case of such small children.

12. Accordingly, the conditions for making an award of non-pecuniary damage had been fulfilled.

13. The High Court ordered the applicant and her former husband, jointly and severally, to pay 300,000 Norwegian Krone ( NOK ) (approximately 40,000 euros ( EUR ) ) to A and NOK 100,000 (approximately EUR 13,500) to B, in compensation for non-pecuniary damage.

14. Finally, the High Court stated that its decision on the civil claims was based on the less stringent evidentiary requirements than those applicable to criminal punishment. Thus, its decision did not contradict (“ rokke ved ”) the correctness of the acquittal.

15. The applicant and her former husband appealed to the Supreme Court, complaining inter alia that the reasoning for the award on compensation and been inadequate and entailed a violation of Article 6 § 2 of the Convention.

16. On 4 November 2010 the Appeals Leave Committee of the Supreme Court refused them leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations.

COMPLAINTS

17. The applicant complained that in its decision on compensation the High Court linked the matter so closely to the criminal case that it entailed a violation of Article 6 § 2 of the Convention. None of the arguments against holding her liable to pay compensation had been rendered in the judgment. This had also made it impossible to verify whether these arguments had been considered. There had therefore also been a violation of the requirement in Article 6 § 1 to give adequate reasons, a shortcoming which had not been mended by the Appeals Leave Committee of the Supreme Court ’ s refusal to grant leave to appeal, without giving reasons.

QUESTION s TO THE PARTIES and requests

1. Having regard to the Court ’ s case-law, notably Orr v. Norway , no. 31283/04, § § 50-55 , 15 May 2008 ; Y v. Norway , no. 56568/00, § § 42 ‑ 44 , ECHR 2003 ‑ II (extracts) and Ringvold v. Norway , no. 34964/97, § § 38-42 , ECHR 2003 ‑ II )

(a) Did the Borgarting High Court ’ s judgment of 3 September 2010 distinguish sufficiently clearly between criminal- and civil liability in its reasoning and conclusions in the present case?

(b) What specific elements, if any, in the High Court ’ s reasoning on civil liability gave rise to an issue under Article 6 § 2 of the Convention, bearing in mind the obligation of national courts under Article 6 § 1 to give sufficient and adequate reasons in civil judgments?

(c) Did the High Court ’ s decision ordering the applicant to pay compensation give rise to a violation of her presumption of innocence under Article 6 § 2 of the Convention?

2. Was the decision ordering the applicant to pay compensation accompanied by reasons that were sufficient and adequate for the purposes of the fair hearing guarantee in Article 6 § 1, as interpreted and applied in the Court ’ s case-law?

3 . The Government are requested to provide an English translation of the Oslo City Court ’ s judgment of 13 January 2010 and of the High Court ’ s judgment of 3 September 2010.