CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

I voted with the majority in finding a violation of A rticle 6 § 2 of the Convention and I agree with all the arguments in favour of that conclusion, as set out in paragraphs 5 1 to 55 of the judgment . I should like, however, to add the following considerations.

While this rule is val id in many situations, I am not persuaded that it can be applied in the present case. Admittedly, as the High Court majority affirmed, “ 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” ( see paragraph 9 of the judgment ). However, whilst recognising this, can one and the same court reach such seemingly contradictory conclusions where it rules as a criminal court on the one hand, and as a civil court on the other? I am not convinced, given that the two conclusions reached by the High Court appear so mutually incompatible .

DISSENTING OPINION OF JUDGE JEBENS

I respectfully disagree with the majority ’ s finding that Article 6 § 2 was applicable in this case. Consequently, I also disagree that the applicant ’ s right to be presumed innocent has been violated. It follows from the Court ’ s case law, especially Ringvold and Y . (both cited in paragraph 47 of the judgment), that the questions of applicability and compliance with Article 6 § 2 are closely intertwined in cases concerning criminal acquittal and subsequent civil liability for the same acts. In the following, I will discuss the relevant factors which have been developed in the Court ’ s case law with respect to the scope of Article 6 § 2 in such situations and apply them to the present case.

In the instant case the impugned act in respect of which the applicant was found liable to pay civil compensation was covered essentially by the same objective constitutive elements as the criminal offence of rape set out in Article 192(1) and (2) of the Penal Code (see paragraph 15 of the judgment). There was also an overlap with regard to the subjective constitutive elements in that the establishment of either intent or gross negligence on the part of the perpetrator of the act was a prerequisite both for criminal liability and civil liability to pay compensation. However, there were important differences.

First of all, the standard of proof that applied in view of the particular seriousness of the act in question (“whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed”), was less strict than the criminal standard of proof beyond reasonable doubt (see paragraph 2 4 of the judgment). As stated in the case-law quoted in paragraph 49 of the judgment, an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts. This is necessary in order to safeguard the interests of the victim, namely to avoid to place him or her in a worse position with regard to compensation than injured persons in non-criminal cases. It also follows from the victim ’ s right of access to a court, which the Court has included in the “fair trial” guarantee in Article 6 § 1.

Secondly, but equally important, I discern no element in the High Court ’ s description of the facts in respect of which it found the applicant liable to pay compensation, or in its assessment of those facts, that amounted to the establishment of criminal guilt on his part. The High Court was obliged to discuss factual questions which were relevant for whether or not to hold the applicant civilly responsible, and to describe its findings in the judgment, regardless of whether they coincided with the elements that constituted an offence according to the Criminal Code. As observed by the Supreme Court, no expressions of a typically criminal-law character had been used by the High Court, and there was also no ref erence to the indictment or the questions to the jury in the criminal case (cf. Y , cited in paragraph 47 of the judgment, § 44). At no point did the High Court ’ s description of the facts or its reasoning in my opinion go beyond what was necessary in order to present sufficient grounds for establishing civil liability, according to Article 144 of the Code of Civil Procedure, which was then applicable, and also Article 6 § 1 of the Convention.

The fact that the High Court dealt with the compensation issue in the same judgment as the criminal charges could, according to the Court ’ s case-law, not of itself bring the compensation issue within the ambit of Article 6 § 2 (see Reeves and also Y ., both cited in paragraph 47 of the judgment, where this factor did not lead the Court to find a violation). In this respect, reference is also made to the arguments that might be adduced in favour of maintaining such an arrangement of joint proceedings in Norwegian law (see paragraph 27 of the judgment). Furthermore, in two clearly distinct parts of its judgment, the High Court dealt respectively with the criminal charges against the applicant, ending in a conclusion of acquittal (a non-guilty verdict by the jury approved by the professional judges), and with the compensation claim made by Ms C., in respect of which it ordered the applicant to pay her compensation. In several places in the compensation part the High Court highlighted that civil liability to pay compensation was different from criminal liability.

Furthermore, it is significant that the purpose of establishing civil liability to pay compensation was quite different from that of establishing criminal liability, namely primarily to remedy the injury and suffering caused to the victim (see paragraph 26 above). Neither the purpose of the award nor its size – NOK 99,000 (NOK 74,000 and NOK 25,000 for respectively pecuniary and non-pecuniary damage), equivalent to EUR 12,500 - conferred on the measure the character of a penal sanction for the purposes of Article 6 § 2 (see Ringvold , § 39; see also Reeves and Lundkvist , all cited in paragraph 47 of the judgment).

Against this background, I do not agree with the applicant ’ s various submissions that the High Court, in the compensation part, established criminal liability anew. The High Court neither stated nor implied that the applicant was criminally responsible for the offences of which he had been acquitted. It cannot be said that the decision and reasoning on compensation were incompatible with, and “set aside” or “cast doubt on the correctness of the acquittal” (see respectively Ringvold § 38 , and Y . § 46 and also Reeves and Lundkvist , Ibidem).

As to the further question of whether there were links between the criminal case and the ensuing compensation case such as to justify extending the scope of the application of Article 6 § 2 to the latter, I reiterate that the outcome of the criminal proceedings was not decisive for the compensation issue. In the case at hand, the situation was reversed: 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 therefore not a direct sequel to the former or a consequence and concomitant of it (see Ringvold , § 41; and Lundkvist ; cf. Reeves , Ibidem).

Summing up, in my opinion, the High Court dealt with the question of “criminal acquittal and civil liability” in a manner which fully complied with the requirements in Article 6 § 2, and the Supreme Court loyally applied the criteria developed in the Court ’ s case law when deciding the appeal. As stated above, I see no reason why our court should arrive at different findings than those made by the national courts in this case.