No right to acquittal for legislative error. Lex mitior.

Four individuals were charged with violations of conduct of business rules under the Securities Trading Act. They had sold shares at an inflated price without informing the buyers of the risk.

Due to a legislative error, a provision in the Securities Trading Act regarding the liability of natural persons was removed for a period between the time of the acts and the District Court’s judgment. The error was corrected after some months with a new amendment. During the interim period, only “enterprises” in securities trading could be held liable for violations of conduct of business rules, not individuals affiliated with such enterprises.

The defendants argued that they should be acquitted because the acts were no longer criminal. They contended that the “lex mitior” principle in Article 7 of the European Convention on Human Rights (ECHR) and Article 15 of the International Covenant on Civil and Political Rights (ICCPR) implied that the more favourable law from the interim period had to apply in the criminal case. The defendants also contended that Article 97 of the Constitution prevented a reintroduction of the criminal liability through a new amendment.

In the District Court, the defendants were convicted of violations of conduct of business rules under the legislation in force at the time of the acts, while the Court of Appeal acquitted them based on the legislation in force during the interim period.

The Supreme Court found, like the District Court, that the legislation in force at the time of the offense applied in the criminal case, as prescribed by the main rule in section 3 of the Penal Code. The defendants could not be acquitted because the criminal liability was incorrectly removed during an interim period. Such a right follows from neither section 3 of the Penal Code, Article 97 of the Constitution nor Norway’s human rights obligations. The Court of Appeal’s judgment was set aside.

The judgment provides guidance on the choice of legislation in cases where a penal provision has been amended during the period between the offense and the judgment.

Read the judgment from the Supreme Court (PDF)

Areas of law: Criminal law. Section 3 of the Penal Code. Article 97 of the Constitution. Article 7 of the ECHR. Article 15 (1) of the ICCPR. 

Key paragraphs: 46–47, 59, 87, 102, 110, 112

Justices: Bull, Østensen Berglund, Thyness, Stenvik, Sivertsen