Conviction under a different penal provision than that in the indictment

A woman was indicted for violating section 286 of the Penal Code, which concerns violence against particularly exposed occupational groups. She had struck a taxi driver, but was acquitted in the District Court because another condition for punishment was not met. The District Court believed it was not possible to instead convict her of violating section 271 of the Penal Code, which concerns bodily harm. The Court of Appeal disagreed and set aside the District Court's judgment.

The question in the Supreme Court was whether the Court of Appeal was correct in that the woman could be convicted under section 271 Penal Code even though the indictment concerned section 286. A person can only be convicted of the "same criminal act" as that stated in the indictment. If the penal provisions have significantly different legal characteristics, they do not cover the same act.

In its ruling, the Supreme Court agreed with the Court of Appeal that nothing prevented the woman from being convicted of violating section 271 of the Penal Code. The Supreme Court emphasised that the two provisions do not protect fundamentally different interests, that their basic features are not dissimilar, that differences in penalty range and level cannot be given particular significance, and that the woman was being convicted under a more lenient penal provision than that in the indictment. The woman's appeal was dismissed.

The judgment clarifies what constitutes the same criminal act, see section 38 of the Criminal Procedure Act.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal law. Section 38 of the Criminal Procedure Act, sections 286 and 271 of the Penal Code. 

Key paragraphs: 18, 24, 30, 32, 34–36 

Justices: Øie, Webster, Falkanger, Bergsjø, Lund