Previous conviction of violence did not prevent new sexual assault charges
Supreme Court judgment 20 October 2025, HR-2025-2047-A, (case no. 25-053942STR-HRET), criminal case, appeal against Agder Court of Appeal's judgment 7 February 2025.
A (Counsel John Christian Elden) v. The Public Prosecution Authority (Counsel Thomas Frøberg)
In 2010, a man was convicted of two counts of aggravated assault against his then-girlfriend. In 2024, he was indicted for two sexual assaults committed in connection with the same violent episodes. The question before the Supreme Court was whether the prohibition of repeated prosecution under section 51 of the Criminal Procedure Act and Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR) prevented the indictment.
The Supreme Court concluded that the assault convictions did not constitute the “same offence” as the sexual assaults. Accordingly, the prohibition of repeated prosecution did not prevent the sexual assault charges from being heard.
The decisive factor in determining whether the acts constitute the same offence is whether the factual conduct is the same. This requires a comparison of the facts in both cases. If a new prosecution is based on facts that are identical to or essentially the same as those in the previous case, the acts consitute the same offence.
The Court clarified that if there is partial overlap between the factual bases of the prosecutions, they will only be considered the same offence if the core elements of the factual basis coincide.
In this case, the Supreme Court found that the factual basis for the assault convictions and the sexual assault charges were not essentially the same, as the core elements of the respective factual bases did not overlap.
The prosecution for sexual assault was also not in breach of the right to a fair trial under Article 6 (1) of the ECHR.
This ruling clarifies the interpretation of “same offence” in the context of the prohibition of repeated prosecution.
Read the judgment from the Supreme Court (Norwegian only) (PDF)
Area of law: Criminal procedure - enforcement - the prohibition of repeated prosecution - section 51 of the Criminal Procedure Act - ECHR P7-4
Key paragraphs: 46–47, 56, 63, 68, 73
Justices: Noer, Arntzen, Østensen Berglund, Poulsen, Vang