The war crimes case: On the applicability of new and more severe penal provisions to previous crimes.
Supreme Court judgment 3 December 2010, HR-2010-02057-P, (case no. 2010/934), criminal case, appeal against judgment.
I. A (Counsel John Christian Elden, Anders Løvlie) v. The Public Prosecution Authority (Counsel Tor-Aksel Busch)
II. The Public Prosecution Authority (Counsel Tor-Aksel Busch) v. A (Counsel John Christian Elden, Anders Løvlie)
Justices: Møse, Skoghøy, Coward, Skoghøy, Matningsdal, Øie, Endresen, Noer, Gjølstad, Tjomsland, Utgård, Tønder, Bårdsen, Webster, Matheson, Falkanger, Normann, Schei
The issue in the case was whether the provisions on crimes against humanity and war crimes in chapter 16 of the Penal Code 2005, which entered into force on 7 March 2008, could be applied to acts that took place in Bosnia-Herzegovina in 1992. Key issues were whether criminal liability was time-barred, and whether the application of the new provision to these acts would amount to a violation of Article 97 of the Constitution, which prohibits laws being given retroactive effect. The Supreme Court found that the crimes were not time-barred. However, a majority of eleven justices found that the application of sections 102 and 103 of the Penal Code 2005 to the crimes would violate Article 97 of the Constitution. Developments in international law and Norway’s interest in assisting international criminal courts could not undermine the fundamental requirement that a criminal conviction must have a legal basis in Norwegian law. A minority of six justices found that conviction under sections 102 and 103 of the Penal Code 2005 would not be demonstrably more burdensome than conviction under section 223 of the Penal Code 1902, which applied at the time, with the possibility of trial in an international court, and held that conviction under sections 102 and 103 of the Penal Code 2005 would not violate Article 97 of the Constitution.