Now the municipality in Nordland must pay compensation of several hundred thousand kroner for violations of the European Convention on Human Rights (ECHR). When the verdict was handed down in the district court on 15 August, the court decided that no one was allowed to discuss it publicly. But after news and the family’s lawyer appealed the decision to the Court of Appeal, this was overturned. The case concerns a family with several adopted children. The children are said to have suffered developmental trauma as a result of growing up in an orphanage before they came to Norway. In 2020, the parents sued the municipality. They demanded compensation for a number of conditions. Among other things, they believed that the municipality had breached the duty of confidentiality when the school sent reports of concern to child protection. They also believed that the children had not received a proper school offer. However, the District Court rejects these accusations in the judgment. Violation of the ECHR But the parents also sued the municipality for an incident in the summer of 2019. Then an expert psychologist sent a report of concern to the child welfare service. A week later, a decision was made on emergency placement of the children outside the home. ILLUSTRATION PHOTO: Together with the police, child protection took the children out of the home and forcibly moved them. Photo: Karen Gjetrang / news – The Child Protection Service made an emergency decision, which meant that the children were woken up early one morning without warning and taken from their parents by the police. They were moved to an institution at a secret address, says the family’s lawyer, Fridtjof Piene Gundersen to news. The parents appealed against the decision and were upheld. 12 days later they were able to bring the children back. The municipality must pay The District Court states in its judgment that this emergency decision violates the ECHR – and that both parents and children have the right to compensation from the municipality. – There was no emergency situation and the child welfare service had alternatives and they could approach the case with less invasive measures, the judgment states. The court also points out that caring for the children has been difficult and challenging for the parents. But the court has no evidence for anything other than that the parents have been and are very happy with the children, and have given them good care. The municipality was sentenced to pay compensation for a breach of the ECHR. NOK 100,000 for each child, and NOK 50,000 for the parents. Consequences for the FIRST TIME: Lawyer Fridtjof Piene Gundersen says the judgment in the district court is probably the first time a municipality has been convicted of a breach of the ECHR. Photo: Barneadvokatene DA – This is completely new, says the family’s lawyer, Fridtjof Piene Gundersen to news. – With this judgment, the court for the first time makes a municipality directly responsible for the municipal child protection service’s human rights violations, implies an absolutely necessary development. – Up until now, it has been the case that municipal child protection can make mistakes and flawed decisions without any consequences. All you get is criticism from the state or Bufdir, and then it is the state that has taken the burden when Norway is judged in Strasbourg, continues Gundersen. The Tolga case opened the door The Tolga case received a lot of attention in Norway. For several years, three brothers were unknowingly registered as mentally disabled. The story was revealed by VG. Two of the brothers demanded that the municipality should pay them compensation of NOK 3 million for violations of the Constitution and the European Convention on Human Rights. The European Convention on Human Rights The European Convention on Human Rights (ECHR) is an international agreement entered into by all 47 member states of the Council of Europe, where the states commit themselves to each other to ensure the freedoms and rights of individuals. The convention was adopted on 4 November 1950 and entered into force on 3 September 1953. Norway ratified the ECHR in 1952. The ECHR is the human rights instrument that has had – and still has – the greatest practical importance in both European and Norwegian legal life. The rights in the ECHR The rights in the ECHR mainly protect civil rights, but also certain political and economic rights. The main convention protects the following rights: the right to life (Article 2) prohibition of torture, inhuman and degrading treatment and punishment (Article 3) prohibition of slavery and forced labor (Article 4) the right to liberty and security (Article 5) the right to a fair trial ( article 6) the right not to be punished except according to law (article 7) the right to private life and family life (article 8) freedom of thought, conscience and religion (article 9) freedom of expression (article 10) freedom of assembly and association (article 11) the right to to marry (Article 12) the right to an effective remedy (Article 13) prohibition of discrimination (Article 14) SOURCE: https://snl.no/den_europeiske_menneskerettskonvensjon The case went to the Supreme Court when both the District Court and the Court of Appeal believed that the lawsuit had to be directed against the state, not the municipality. The Supreme Court concluded that the brothers can claim compensation from the municipality. Last week, however, it became clear that Tolga municipality has entered into a settlement with the brothers: But the case thus opened the way for a municipality to be sued for alleged human rights violations. And this is precisely what the court highlighted in its decision. news has been in contact with a number of lawyers. No one can point to examples of municipalities having had to pay compensation after the Tolga case opened the door for that. Thought they did the right thing The municipal director in the municipality tells news that they thought they had done everything by the book. – In a case before the court, there is always a risk of being convicted, no matter how good a case you initially think you have. In that sense, it was not a surprise. We were of the opinion that we had handled the case correctly, says the director and adds: – We note that the court has seen it differently. news has chosen to anonymize the director of the municipality so that the municipality remains anonymous for the incidents. – More clarification is important Michael Reiertsen has written his PhD on Article 13 of the European Convention on Human Rights (ECHR). He says there is still no clarity on the issue of whether a municipality can be ordered to pay compensation for a breach of the ECHR. – A municipality can of course be ordered to pay restitution compensation by virtue of general Norwegian provisions in, for example, the Damages Compensation Act. The problem is that these provisions have a very limited scope and do not give access to compensation for all types of human rights violations. Reiertsen has not read the judgment, but assumes that a judgment like this, and similar ones in the future, can provide a basis for greater clarity on the issue. – Cases like this mean that the Supreme Court will have the opportunity to clarify this issue by appealing it. There is no final clarification on that question as of today’s date. Reiertsen says it is important that such a clarification is put in place. – Yes, I think that is important. There has been discussion about this for many years, and there has been uncertainty in the legal environment. It is therefore important that there is a clarification. The director says they take seriously the fact that they have been convicted of a breach of the ECHR. – We are satisfied that the court has essentially rejected the case and that we have been heard. At the same time, we take seriously the court’s opinion that we have breached the ECHR through our intervention through the child protection service. Not afraid of more similar cases. Furthermore, the director emphasizes that the residents of the municipality must have security that they will be treated in a proper way in line with laws and regulations. – When the court believes that the ECHR has been violated, there is every reason to take a step back and consider whether we could have done something differently and learn from it for the future. The municipality will decide next Thursday whether the verdict will be appealed or not. – If the verdict is upheld, does the municipality fear more such cases? – This case is special. It is probably not that easy to find comparable cases, at least not in our municipality. In this sense, I do not fear any more cases, replies the director. – Having said that, there will always be a risk that a municipality has handled a case differently in relation to how the court sees the case. It is every citizen’s right to try a case before the court where they believe that a municipality has made a mistake, then the court can assess whether it is right or wrong.
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Several children were forcibly relocated – the municipality convicted of violating human rights – news Nordland
