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Damages for the Infringements of Human Rights Under Norwegian Law

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Damages for Violations of Human Rights

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 9))

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Abstract

Issues concerning damages for human rights infringements must, under Norwegian law, primarily be solved by way of the ordinary civil tort law regime. Yet, numerous international conventions on human rights have been incorporated into Norwegian law, and, although it has been disputed, a victim arguably has the option of relying directly upon the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in given circumstances, which are discussed in the chapter. Apart from taking up this debate, the chapter aims to show a number of other ways in which human rights have impacted on the tort law of Norway. This involves all the conditions for liability – protected interests, accountability and causality – as well as the rules governing the extent of a damages award. A special sub-chapter focuses on substantive and procedural implications following from the ‘shared competence’ of the national courts and the European Court of Human Rights with respect to the issue of eventual infringements as well as that of eventual damages relating to the ECHR.

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Notes

  1. 1.

    Published in a law report named Norsk Retstidende, commonly and hereinafter abbreviated as ‘Rt.’.

  2. 2.

    The three textbooks on Norwegian tort law, as of today, are Nygaard Nils. 2007. Skade og ansvar, Universitetsforlaget, Bergen, Lødrup Peter. 2009. Lærebok i erstatningsrett, Gyldendal akademisk, Oslo and Stenvik Are and Hagstrøm Viggo. 2015. Erstatningsrett, Universitetsforlaget, Oslo.

  3. 3.

    This implies that the phrase ‘liability for delicts’ in a Norwegian context, does not always point to, e.g. negligence, unlawfulness, infringements of criminal codes, et cetera. It is often used merely as a general reference to a number of common liability rules that are not dependent upon breaches of contracts.

  4. 4.

    Parliamentary act 21 June 2013 no. 59, Article 28 (entry into force 1 January 2014, replacing Parliamentary act 9 June 1978 no. 45, Article 17).

  5. 5.

    Parliamentary act 25 May 1999 no. 30.

  6. 6.

    Parliamentary act 17 July 1992 no. 100.

  7. 7.

    Cf Proposition to the Parliament 2012–2013 no. 88 L, and, for the previous act, e.g., Proposition to the Odelsting (Parliament) 1991–1992 no. 44.

  8. 8.

    Cf, e.g., Proposition to the Odelsting (Parliament) 2000–2001 no. 77.

  9. 9.

    Parliamentary act 21 June 2013 no. 60 (entry into force 1 January 2014, replacing Parliamentary act 3 June 2005 no. 33).

  10. 10.

    Cf Proposition to the Parliament 2012–2013 no. 88 L, and, for the previous act, e.g., Proposition to the Odelsting (Parliament) 2004–2005 no. 33.

  11. 11.

    Which, along with one special court in Oslo (Oslo byfogdembete), make up for the 66 courts of the ordinary first instance.

  12. 12.

    Parliamentary act 17 June 2005 no. 90.

  13. 13.

    Parliamentary act 22 May 1981 no. 25.

  14. 14.

    Parliamentary act 22 May 1981 no. 25, Chapter 29.

  15. 15.

    Parliamentary act 22 May 1981 no. 25, Article 427.

  16. 16.

    Cf, e.g., Rt. 1992 page 64.

  17. 17.

    Cf, e.g., Rt. 1995 page 1641; Rt. 1999 page 1363; and Rt. 2005 page 1322.

  18. 18.

    The case in Rt. 1987 page 1495, cf, below, chapter 2.2.4.2, gives an indication that the courts may operate with rather lenient standards of proof as regards the hypothetical assessments that have to be made in order to determine eventual loss of income due to unlawful detentions.

  19. 19.

    Parliamentary act 22 June 1962 no. 8, Article 3.

  20. 20.

    Parliamentary act 22 June 1962 no. 8, Article 10.

  21. 21.

    Parliamentary act 18 May 1979 no. 18, Article 9.

  22. 22.

    Cf on these specially adopted payment systems, Report to the parliament 2003–2004 no. 44 (“White paper”) 2 July 2004.

  23. 23.

    The Act on patient injury compensation, 15 June 2001 no. 53.

  24. 24.

    Namely, R.R. v Poland (26 May 2011); and Draon v France (6 October 2005).

  25. 25.

    Cf, e.g. Parliamentary act 13 March 1981 no. 6 (Pollution control Act), Article 53.

  26. 26.

    Cf, e.g. Parliamentary act 23 December 1988 no. 104 (Products liability Act), Article 2–3.

  27. 27.

    Some examples of rules laying down otherwise are to be found in Parliamentary acts 16 June 1989 no. 65 (Act on industrial injury insurance), Article 8 and 15 June 2001 no. 53 (Act on patient injury compensation), Article 4(3).

  28. 28.

    Cf, e.g. the judgment by the Swedish Supreme Court (Högsta Domstolen) reported in the Swedish Law Report Nytt juridiskt arkiv (NJA) 2009 page 463.

  29. 29.

    Cf, e.g. Rt. 1970 page 1192; and Rt. 2000 page 388.

  30. 30.

    Parliamentary act 13 June 1969 no. 26, Article 2–1.

  31. 31.

    Parliamentary act 17 July 1998 no. 61, Article 2–1.

  32. 32.

    Vilnes and Others v Norway (5 December 2013).

  33. 33.

    Parliamentary act 22 May 1981 no. 25.

  34. 34.

    Parliamentary act 25 May 1999 no. 30.

  35. 35.

    Cf, e.g., Leander v Sweden (26 March 1987) para 77.

  36. 36.

    Parliamentary act 13 June 1969 no. 26.

  37. 37.

    Namely, H.L.R. v France (29 April 1997) para 40; Osman v United Kingdom (28 October 1998) paras 115–116; Opuz v Turkey (9 June 2009) paras 159 and 164; Valiuliene v Lithuania (26 March 2013) paras 75–76 and 85; Wilson v United Kingdom (23 October 2012) para 37; Kontravá v Slovakia (31 May 2007) para 50; Milanovic v Serbia (14 December 2010) para 84; Dordevic v Croatia (24 July 2012) para 139; Kalucza v Hungary (24 April 2012) para 64; Kowal v Poland (18 September 2012) para 51; A v Croatia (14 October 2010) paras 78–79; Bevacqua v Bulgaria (12 June 2008) paras 64–65; Hajduová v Slovakia (30 November 2010) para 50; and E.M. v Romania (30 October 2012) para 58.

  38. 38.

    Parliamentary act 17 June 2005 no. 90, Article 16-1(2).

  39. 39.

    The Norwegian State had previously established different sorts of ex gratia schemes for the deep sea divers. Particularly, in 2004, a compensation regime was established that gave each diver the right of up to 2,300,000 NOK, today approximately 280,190 EUR. Around 600,000,000 NOK, circa 73,000,000 EUR, has been paid over through this system.

  40. 40.

    Budayeva v Russia (20 March 2008), paras 128–131, 134–136 and 146; Guerra and Others v Italy (19 February 1998); LCB. V United Kingdom (9 June 1998), para 38; Öneryildiz v Turkey (30 November 2004), paras 100–101; Niemietz v Germany (16 December 1992); Giacomelli v Italy (2 November 2006), para 76; Roche v United Kingdom (19 October 2005), paras 155–169.

  41. 41.

    Vilnes and Others v Norway (5 December 2013).

  42. 42.

    Parliamentary act 22 May 1981 no. 25, Articles 445 and 446.

  43. 43.

    Parliamentary act 25 May 1999 no. 30.

  44. 44.

    A ruling from the Oslo district court in the summer of 2014 spawned much media attention. On two occasions in 2013 a man had been arrested and kept isolated in a police detention cell for several days. The district court found that violations of ECHR Article 8 had taken place due to the isolation (the principle of habeas corpus had seemingly been respected and was not the object of the proceedings). On the issue of compensation, the court reasoned firstly that ECHR Article 41 could not form the basis of an action under Norwegian law. On the question of ECHR Article 13, the court concluded that this provision could form a basis of liability with respect to economic losses. It justified this by referral to how Norwegian tort law had already established compensation rules governing such losses, and according to which the applicant indeed had a legitimate claim in this case. On redress for non-financial injury, on the other hand, this could not be awarded according to the Compensation Act, Article 3–5, cf, below, chapter 5.2, as this is normally dependent upon gross negligence or intent. The court, however, awarded 25 000 NOK (today 3000 EUR) on the basis of ECHR Article 13. It has been reported that the State has lodged an appeal, but no further judgments have yet been delivered. Cf Oslo tingrett (District court) 2 June 2014 (Case No. TOSLO-2013-103468).

  45. 45.

    Parliamentary act 22 May 1981 no. 25, Article 438 and Chapter 31.

  46. 46.

    Parliamentary act 22 May 1981 no. 25, Article 447(2).

  47. 47.

    Parliamentary act 25 May 1999 no. 30, Article 2.

  48. 48.

    Rt. 2006 page 577.

  49. 49.

    Parliamentary act 22 May 1981 no. 25, Article 446.

  50. 50.

    Parliamentary act 20 April 2001 no. 13.

  51. 51.

    Parliamentary acts 21 June 2013 no. 58, Article 24; no. 59, Article 28; no. 60, Article 25; and no. 61, Article 31 (all will enter into force 1 January 2014).

  52. 52.

    Parliamentary act 13 June 1969 no. 26, Article 5–3.

  53. 53.

    Cf, e.g., Rt. 1992 page 64.

  54. 54.

    Cf, e.g., Rt. 2010 page 24.

  55. 55.

    Namely, Burden v United Kingdom (29 April 2008) paras 59–60; Sporrung and Lönnroth v Sweden (23 September 1982) para 69; Jokela v Finland (21 May 2002) para 57; and The National & Provincial Building Society v United Kingdom (23 October 1997) para 80.

  56. 56.

    Fred Olsen Shipping v The Ministry of Finance, Oslo District Court, Judgment 27 September 2011. The ruling was confirmed upon appeal, and the appeal court reasoned along similar lines, cf Fred Olsen Shipping v The Ministry of Finance, Borgarting Appeal Court, Judgment 20 June 2013.

  57. 57.

    Parliamentary act 13 June 1969 no. 26, Article 5–1.

  58. 58.

    Parliamentary act 13 June 1969 no. 26, Article 3-1(3).

  59. 59.

    Parliamentary act 13 June 1969 no. 26, Article 3–1. In 2011, a group appointed by the Government made suggestions for a set of rules implying, to some extent, standardisation of the damages in cases of personal injuries, published in Norges offentlige utredninger 2011 no. 16.

  60. 60.

    There exists, for instance, an Appeal Court judgment in which the court briefly noted that not awarding sufficient compensation so that a child could stay at home during nights, by reference to the existence of a municipal service of night respite care, could not amount to an infringement of the ECHR or the CRC, cf Eidsivating lagmannsrett (Appeal court) 13 June 2006 (Case no. LE-2005-80803).

  61. 61.

    Parliamentary act 13 June 1969 no. 26, Article 4–1.

  62. 62.

    Parliamentary act 13 June 1969 no. 26, Article 3–1.

  63. 63.

    Parliamentary act 13 June 1969 no. 26, Article 3–2.

  64. 64.

    Parliamentary act 13 June 1969 no. 26, Article 3–5.

  65. 65.

    Parliamentary act 13 June 1969 no. 26, Article 3–6.

  66. 66.

    Delfi v Estonia (10 October 2013).

  67. 67.

    Namely, Bladet Tromsø and Steinsaas v Norway (20 May 1999); Bergens Tidende and Others v Norway (2 May 2000); Jersild v Denmark (23 September 1994); Lingens v Austria (8 July 1986); Blaja News SP. Z.O.O. v Poland (23 November 2013); Ovchinnikov v Russia (16 December 2010); Tonsberg Blad AS and Haukom v Norway (1 March 2007); Selisto v Finland (16 November 2004); A v Norway (9 April 2009); and Ungváry and Irodalom KFT v Hungary (3 December 2013).

  68. 68.

    Others are Rt. 2002 page 764; Rt. 2003 page 914; Rt. 2003 page 928; Rt. 2003 page 1190; and Rt. 2009 page 265.

  69. 69.

    Cumpana and Mazare v Romania (17 December 2004), para 88; Radio France and Others v France (30 March 2004); von Hannover v Germany (24 June 2004); Chauvy and Others v France (29 June 2004), para 70; Pedersen and Baadsgaard v Denmark (17 December 2004), para 71, referring to Jersild v Denmark (23 September 1994), Janowski v Poland and Nilsen and Johnsen v Norway (25 November 1999); and Selistö v Finland (16 November 2004).

  70. 70.

    A v Norway (9 April 2009).

  71. 71.

    Von Hannover v Germany (24 June 2004); and Karhuvaara and Others v Finland (16 November 2004).

  72. 72.

    Von Hannover v Germany (24 June 2004); and Peck v United Kingdom (28 January 2003).

  73. 73.

    Axel Springer v Germany (7 February 2012); Von Hannover v Germany (no. 2) (7 February 2012); and Von Hannover v Germany (no. 3) (19 September 2013).

  74. 74.

    Lillo-Stenberg and Sæther v Norway (16 January 2014).

  75. 75.

    Parliamentary act 13 June 1969 no. 26, Article 5–2.

  76. 76.

    Cf Vilnes and Others v Norway (5 December 2013), para 270.

  77. 77.

    Lindheim and Others v Norway (12 June 2012).

  78. 78.

    Lindheim and Others v Norway (12 June 2012), para 141.

  79. 79.

    Cf, e.g., judgment by Oslo tingrett (District court) 9 April 2014 (Case No. TOSLO-2013-176193), which was, however, solved on the basis of an interpretation of Lindheim and Others v Norway which led to a distinguishing of that case versus that before the district court. Subsequently the district court found that no breach had taken place in its case. This judgment is currently under appeal. A different variation was in fact at issue in the aforementioned Rt. 2013 page 588. While this case dealt with the question of whether the State had fulfilled its obligations under ECHR Article 1, cf the Norwegian Human Rights Act, it appears from the dicta that the victim had already been afforded compensation under the system of compensation to victims of violence, cf, above, chapter 2.2.6. This system is, however, in one sense based on the underlying liability of the ‘direct’ infringer, as the State will seek recourse from him or her.

  80. 80.

    Parliamentary act 13 June 1969 no. 26.

  81. 81.

    Cf, particularly, Rt. 2007 page 1415; and Rt. 2005 page 769.

  82. 82.

    Parliamentary act 13 June 1969 no. 26.

  83. 83.

    Parliamentary act 22 May 1981 no. 25.

  84. 84.

    Cf Rt. 2010 page 396.

  85. 85.

    Which, inter alia, formed one of the inspirations for the Danish 2012 award-winning movie ‘The Hunt’ (‘Jagten’), directed by Thomas Vinterberg.

  86. 86.

    Frostating lagmannsrett (Appeal court) decision 28 February 1995 (LF-1994-244).

  87. 87.

    Supreme Court decision 8 June 1995 (HR-1995-1155-S), based on a rule now placed in the Act relating to the Courts of Justice of 13 August 1915 No. 5, Article 200.

  88. 88.

    Hammern v Norway (11 February 2003).

  89. 89.

    Cf Rt. 2005 page 730.

  90. 90.

    Cf Rt. 2008 page 1719.

  91. 91.

    Cf, e.g., Z and Others v United Kingdom (10 May 2001); D.P. and J.C. v United Kingdom (10 October 2002); and E and Others (26 November 2002).

  92. 92.

    Cf, above, chapter 2.2.1.

  93. 93.

    Dares v Newman, 2012 ABQB 328.

References

  • Nils, Nygaard. 2007. Skade og ansvar. Bergen: Universitetsforlaget.

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  • Peter, Lødrup. 2009. Lærebok i erstatningsrett. Oslo: Gyldendal akademisk.

    Google Scholar 

  • Are, Stenvik, and Hagstrøm Viggo. 2015. Erstatningsrett. Oslo: Universitetsforlaget.

    Google Scholar 

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Authors and Affiliations

  1. Department of Private Law, Faculty of Law, University of Oslo, Oslo, Norway

    Bjarte Thorson

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Correspondence to Bjarte Thorson .

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  1. Department of Civil Law, Gdańsk University, Gdańsk, Poland

    Ewa Bagińska

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Thorson, B. (2016). Damages for the Infringements of Human Rights Under Norwegian Law. In: Bagińska, E. (eds) Damages for Violations of Human Rights. Ius Comparatum - Global Studies in Comparative Law, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-18950-5_12

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