D ISSENTING OPINION OF JUDGE NICOLAOU JOINED BY JUDGE VAJIĆ

My own view that there has been no violation of Art icle 6 § 2 of the Convention may perhaps be better explained , in this very simple case, by a short re - statement of the salient facts . The applicant was convicted on a charge of rape and sentenced to a term of imprisonment. Furthe r, a civil claim based on the same facts and pursued by the complainant in connection with the criminal trial, according to Norwegian law, resulted in a compensation order against him.

On appeal by the applicant , a re-hearing took place before the High Court consisting of a panel of three judges sitting with a jury. A verdict of not guilty was brought in by the jury and accepted by the judges. The applicant was therefore acquitted. The civil claim remained and the High C ourt then proceeded, in the same judgment, to consider whether it had been proved.

Whereas criminal charges have to be proved beyond reasonable doubt, civil liability is established on the balance of probabilities depend ing on context. The same as in a number of other countries. Directing itself specifically on this matter, the High Court said that:

“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... 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 no t the same strength of evidence being required as for establishing that the perpetrato r is guilty in a criminal case.”

On that basis the High C ourt unanimously found that on the balance of probabilities it was clearly probable that sexual intercourse had taken place without the complainant ’ s consent. The unanimity extended no further. Th e majority went on to find, using the same standard of proof, that the applicant unde rstood that the complainant had not consent ed and that he overcame her resistance by holding her arms. The crucial part of the judgment reads as follows:

“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....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 applicant appealed to the Supreme C ourt on the ground that the judgment on compensation violated the presumption of innocence laid down in Art icle 6 § 2 of the Convention. On 24 February 2004 the Supreme Court unanimously dismissed the appeal. In its judgment it adverted to every aspect of the case, including the principles involved. It referred especially to the guiding, as it called them, judgments of this Court in Y v. Norway , (no. 56568/00, ECHR 2003 ‑ II (extracts) ) and Ringvold v. Norway , (no. 34964/97, ECHR 2003 ‑ II ) , both decided a year earlier , in which it was held that both the procedural and the evidentiary parts of the Norwegian system were not incompatible with Article 6 § 2.

Indeed, this system of redress for a civil wrong , where on the same facts the defendant has been acquitted of a criminal charge , was comprehensively reviewed in the above cases which relied, among others, on X v . Austria ( dec.) n o 2995/81, 6 October 1982 and M.C. v UK ( dec.) no 11882/85, 7 October 1987. Those were Commission decisions that stated in no uncertain terms that the difference in the respective standards of proof constitutes a sufficient distinction between a criminal charge on which there has been an acquittal and a civil claim ‘ arising out of the same events. ’ The same principles were, shortly after Y . and Ringvold (cited above), applied in Lu n dkvist v. Sweden (dec.) no. 48518/99 , ECHR, 13 November 2003 and Reeves v . Norway (dec.) no. 4248/02, 8 July 2004.

The majority in the present case has neither indicated a break, in some way, with past cases nor has it sought to qualify or develop any of the principles further. So the question is not now what view one takes of the system as such, for our case-law has confirmed that it is not tainted by any inherent systemic defect. The question is only whether the High Court was at fault in the language it used.

In fact all the Norwegian cases finally turned on what the Court thought of the way that the national courts had expressed themselves in their decisions, the Court repeatedly saying that if a decision contained a “statement imputing criminal liability” that would raise an issue under Article 6 § 2. The case of Y . v. Norway (cited above) concerned a finding , on the matter of compensation, that it was clearly probable that the applicant “committed the o ffences”. Not surprisingly the C ourt found a violation. But not so in the other two cases even though in Reeves v. Norway (cited above) the impugned decision contained a finding directly connected with the indictment. The question being whether the fire of a house had been started deliberately or whether it was a mere accident, it was stated in the decision regarding civil liability that the defendant was “guilty of setting the fire as described in the indictment” when the defendant had already been acquitted on a criminal charge of arson. And yet the Court held that those words , read in context , left no doubt that they were meant to refer only to the question of compensation. In contrast, the decision complained of in the present case does not seem to me to contain anything that might, even remotely, hint at criminal responsibility.

The Supreme Court in a meticulous judgment pointed out that since , under Norwegian law, a finding of civil liability had to be fully reasoned and since the act committed was one and the same , whether classified a s criminal or as civil (reality being indivisible ), civil liability could be differentiated from criminal only by reference to the respective standard s of proof. That sounds of course familiar. It was what the Commission decisions had said in the cases I have already cited. The Supreme Court stressed in this regard the need for care , so that a judgment on civil liability should not in any way cast doubt on the acquittal. It concluded that:

“ ... the High C ourt provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation ... marked the necessary distance to the criminal case and ... did not cast doubt on the acquittal in other ways”.

I entirely agree. The views of the Supreme Court were, in my opinion, both pertinent and convincing and its conclusion s were quite unavoidable. I regard its judgment as clearly right. I also can see no fault, either in substance or in form, in the way that the High C ourt had dealt with the matter. It is no t without significance that the majority judgment in the present case does not contain details of any particular fault . It takes exception to the use by the High Court of the word ‘ violence ’ but it does not amplify on that in order to explain its view. In fact the High Court appears to have been alive to the risk of misunderstanding and so it circumscribed the use of the word by explaining that what it meant was that the applicant had forced the complainant to have sexual intercourse by holding her arms. I am quite unable to understand how that can be interpreted as signifying or imputing criminal liability. I do not know how the violence used could be described in milder terms even if it were necessary to avoid calling things by their proper names. The final general statement of the majority, in its judgment, that it is not convinced that “the impugned reasoning did not ‘ set aside ’ the applicant ’ s acquittal or ‘ cast doubt on the correctness of the acquittal ’ ” remains, as I read it, totally unexplained.

The High C ourt had , obviously, to perform a delicate task . Being well awar e of the pitfalls it managed, with the necessary precision and clarity, to steer clear of any imputation of criminal liability while , at the same time , giving a judgment that was fully reasoned as required by Norwegian la w. In my opinion there has been no violation of Article 6 § 2.