– To destroy the life of an 18-year-old for something the court believes he has not done appears almost inhumane, says the man’s defender, lawyer Morten Andreassen at Elden Advokatfirma. The 18-year-old stood trial this week in the Oslo District Court for having intercourse with a woman of the same age at a nightclub in October this year. The woman must have been “unconscious or for other reasons unable to resist the act”, the judgment states. The defendant has now been acquitted of the “rape”, but was also sentenced to pay NOK 240,000 in restitution to the victim. PRINCIPLE: Lawyer Morten Andreassen believes that the judgment raises several issues of principle, both related to the requirement of proof in “sleep rape cases” and the connection between the criminal law and compensation law assessment. Photo: NTB – My client is thus both acquitted and convicted of the same relationship in one and the same sentence. Did we learn nothing from the Birgitte Tengs case, asks lawyer Morten Andreassen rhetorically. news has been in contact with the woman’s lawyer, neither she nor the client wish to comment on the verdict. Appealing the judgment According to Elden Advokatfirma, the judgment from the Oslo District Court primarily raises an issue of principle, namely that the defendant is perceived by the court as innocent, “but not entirely nevertheless”. In 2003, four cases against Norway were heard at the European Court of Human Rights in Strasbourg. One of them was the case of the cousin of Birgitte Tengs, who in 1998 was acquitted of the murder of her cousin. At the same time, he was sentenced to pay compensation of NOK 100,000 to Birgitte’s parents. Five years later, the cousin was upheld in Strasbourg, which held that the sentence was a violation of the human rights convention, Article 6, paragraph 2: That everyone is innocent until proven guilty. Andreassen therefore believes that the judgment against his client cannot stand, and is appealing to the Court of Appeal. Criminal law vs. civil law In criminal law, the requirement for proof is very strict. Every doubt must benefit the accused – so if there is even the slightest doubt, then the accused must be acquitted. When it comes to restitution in criminal cases, it is a civil claim that falls under civil law. The compensation claim is raised by the legal aid attorney on behalf of the victim, and the claim is independent of the prosecution’s claim or allegation of punishment. It is the connection between the criminal law and compensation law assessment, which Elden Advokatfirma believes is fundamentally problematic. – Despite the fact that my client has been acquitted of the conditions for which he was charged, he is just as fully labeled as a rapist by the court and sentenced to pay compensation that destroys all his future possibilities, says lawyer Andreassen. – Almost believed, and almost acquitted Elden Advokatfirma reacts to the verdict, and believes that it means that both the accused and the victim end up with an “unclear outcome”. – She is “almost believed”, and he is “almost acquitted”, says the company. According to Andreassen, it is difficult for his 18-year-old client to understand the sentence, and says that it is difficult to explain to his client why he has now been acquitted – but still has to pay compensation to the victim. – He is struggling to understand the logic, and what to tell the family: “Was I acquitted, or was I guilty?”, says Andreassen. Andreassen points out that it is the principle that is important in this decision, not the outcome itself, it is a “problem that we have a system that makes such unclear decisions”. Law professor: – It is, of course, problematic. The reason why this can happen in the same case, based on the same evidence, is the arrangement for “so-called civil legal claims”, explains law professor at the University of Bergen (UIB), Magne Strandberg to news. Photo: Sofie Strandberg – It is of course problematic, and there are heavy objections to this scheme. One objection is that the defendant feels both partially acquitted and partially convicted, says Strandberg. – But without this scheme, the victim will be worse off – what could be the solution? – One possible solution, and which might have been the best, is that you cannot adjudicate compensation claims if the defendant has been acquitted of the criminal claim. And that the injured party is looked after by the state in those cases, says Strandberg. The Ministry of Justice and Emergency Preparedness confirms that only parts of the Criminal Procedure Committee’s proposal were followed up. The Criminal Procedure Committee proposed in its report in 2016 to reintroduce a system whereby a person who is acquitted in a criminal sentence cannot at the same time be sentenced to a civil claim. A state guarantee scheme was then proposed. – There were divided opinions about the proposal in the hearing. Only parts of the Criminal Procedure Committee’s proposal have been followed up. This proposal has not been followed up by the ministry, the ministry writes in an email to news.
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