Viggo Kristiansen served 21 years for a murder he did not commit. Birgitte Teng’s cousin was sentenced to pay compensation for a murder he did not commit. They have both suffered significant and irreparable damage. It is not possible to move forward after such judicial murders without learning lessons and revising the institutions. Legislative changes must also be considered. It cannot be guaranteed against similar outcomes in the future. The goal must still be that something similar never happens again. It should no longer be possible to be sentenced to compensation when one is at the same time acquitted of punishment. Different evidentiary requirements Lawyers explain the rules by saying that stronger evidence is required to impose a penalty than compensation for the same alleged act. If the court believes that the strength of the evidence lies between the demand for punishment and compensation, you will be acquitted of punishment and sentenced to compensation. However, the legislation must also safeguard international human rights, including the presumption of innocence in Article 6 of the European Convention on Human Rights (ECHR), which i.a. implies that one is entitled to be considered innocent after acquittal. It is not the rules of evidence – but this – that means most people do not understand why you can be sentenced to pay compensation for something you have been acquitted of. And rightly so. If you ask Birgitte Teng’s cousin if he felt acquitted after the verdict in 1998, the answer is guaranteed to be no. He has experienced being branded as a perpetrator and has lived abroad for many years. To award compensation after an acquittal for a crime undermines the acquittal and is therefore contrary to the common sense of law. The equalization principle The Danish “justice law” prohibits the accused from being sentenced to compensation if the person in question has been acquitted of punishment – the so-called equalization principle. In Sweden, the problem does not arise because the proof requirement for punishment and compensation there is the same. The system of independent criminal and compensation liability is therefore uniquely Norwegian. It also has no long tradition in our country. The Criminal Procedure Act of 1887, which was replaced by the current law from 1981, was also based on a rectification principle similar to Danish law. In 2016, the Criminal Procedure Law Committee also proposed reintroducing the equalization principle in Norway. However, several prosecuting authorities, including the Attorney General, opposed the proposal, which has later been put on hold by the ministry. There is now good reason to bring the proposal forward again and get it adopted. The prosecution naturally respects the presumption of innocence and the ECHR, but went against the proposal, among other things. from the point of view that it may be desirable to place liability for damages with the person who is considered to be “actually guilty”. The reasoning is clearly problematic and appears to be a contradiction in terms of the presumption of innocence. The reason why the rectification principle was deviated from in Norway in 1981 was consideration of the aggrieved party’s need for compensation. This is a legitimate reason, but it could be argued that the legislature wrongly placed the bill with innocent people. When a case remains unsolved, it is most likely that compensation for the victim is covered by the state, preferably as part of a modified version of the scheme on compensation for victims of violence. Compensation for victims of violence is given because society has a shared responsibility for protecting citizens from violence, for solving criminal cases and for repairing damage when abuse has taken place. In 2016, the Criminal Procedures Act Committee proposed, in a similar way, that compensation in the event of an acquittal should be covered through a state guarantee scheme. Correction of miscarriages of justice When a criminal case comes up in the court system, liability for compensation will regularly be dealt with and decided in the same court case according to the same rules of the game (Criminal Procedure Act). It is resource efficient and sensible. When it becomes relevant to clean up after a judicial murder, on the other hand, the criminal liability and the compensation claim must be dealt with in separate legal proceedings according to different rules of the game. The compensation claim is then processed according to the Disputes Act, not the Criminal Procedure Act. It is difficult to justify the difference. Limitation period In addition to the obvious fact that two legal processes are unnecessarily expensive for the parties and the legal system, the Disputes Act contains a separate 10-year time limit for being able to reopen a case regarding an awarded compensation. Viggo Kristiansen is in the unfortunate situation that while he will now be cleared of criminal liability in a new criminal sentence, he cannot initially be acquitted of the imposed liability for damages of approx. NOK 1.7 million, since the 10-year deadline has long since passed. Those who are initially acquitted of punishment, but are sentenced to compensation – such as Birgitte Teng’s cousin, may end up in a similar problem when the criminal offense is only clarified later than 10 years later. It is difficult to see that the 10-year deadline can be defended on the basis of the presumption of innocence and the general legal opinion. The overriding point is that in the future it should not be possible to be sentenced to compensation and at the same time be acquitted of punishment. The rectification principle should also be continued in the rules on the processing of judicial murder cases. This is because liability for damages can basically be reopened, processed and decided in the same case, together with criminal liability.
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Punishment and compensation – Speech
