“It is better that 10 guilty go free than that one innocent is convicted.”
This quote is often attributed to Voltaire, the great philosopher of the French Enlightenment, but over time has become a common Norwegian saying that most people would probably agree with. Perhaps mostly because of the opposite – mass arrests of innocents after one or a few have committed an offence. – is something that often happens in countries we don’t like to compare ourselves to.
A close example is the case against Viggo Kristiansen, who has already served 21 years in prison in the Baneheia case, but where it now appears likely that Jan Helge Andersen alone was responsible for the murder of the two girls. The question of what should be done in the case is now with the Attorney General for decision. If Viggo Kristiansen is eventually acquitted, there has been a legal scandal that must be done to prevent it from happening again.
Another more special case is the murder of Birgitte Tengs, where the “cousin” initially confessed to the murder, but retracted the confession during the court proceedings. He was acquitted, but still sentenced to pay her parents so-called restitution because the requirement of guilt in civil compensation cases is less strict than in criminal cases. In civil cases, it holds that there is a “preponderance of probability” for a claim to be justified. People like to say that in civil cases there is a 51 percent probability of conviction – in criminal cases you have to be at least 95 percent certain. To the extent that this is measurable. And some time ago, a completely different person was charged with the murder. Even though the “cousin” was acquitted of the murder, he was still branded a murderer because in a civil case he was sentenced to pay Birgitte’s parents NOK 100,000 in compensation. So he was not guilty, but still guilty.
Any reasonable and reasonable doubt…
It is to avoid such cases that in Norwegian criminal law it is stated that in order to be convicted in a criminal case it must be proven beyond any reasonable and reasonable doubt that the basis for the indictment has taken place.
Those of us who have spent a few years at the Faculty of Law at the University of Oslo thoroughly learned what it takes to convict someone in a criminal case. The lecture series in criminal law with the legendary professor dr. juris Johs. Andenæs were particularly memorable. His textbooks are still part of the curriculum and are frequently quoted in Norwegian courtrooms. It is also claimed that his textbook on state constitution was written on a dorull while he was imprisoned during the war.
One of Johs. Andenæs’s examples of acquittal in a murder case based on “reasonable and reasonable doubt” concerned a person who had beaten another in the street. The blow itself was not fatal, but the victim fell, hit his head on the pavement and died. At the autopsy, it turned out that he had an unusually thin skull that could not withstand the fall. Andenæs dryly commented that with such a thin skull he should not have gone out into the street.
Holmlia and Prinsdal
HRS has several times mentioned cases that many of our readers – including us – have reacted to, where the defendant seems to have got off very cheaply from a murder charge.
We were ourselves represented in the courtroom at the Oslo district court during the treatment of the so-called Holmlia murder, where a 21-year-old with origins from Albania hit a 16-year-old with origins in Iraq because the 16-year-old was accused of being in love with his little sister. He had hit the 16-year-old, who presumably suffered a cardiac arrest and fell over. That in itself does not qualify as negligent homicide, but the 21-year-old refused the witnesses to call for an ambulance. The ambulance therefore arrived too late to save the 16-year-old
We who were present in court probably thought that refusing those present to call for an ambulance, after which the 16-year-old died, would qualify as negligent homicide. But the prosecutor instead submitted a request for 1 year’s imprisonment for bodily harm resulting in death, which is a significantly milder sentence. And so was the verdict.
A few days ago, a decision came from the Supreme Court that we are also reacting to, namely that the murderer from Prinsdal got away with 5.5 years in prison for negligent homicide. He was sentenced to 13 years in prison for premeditated murder in the Oslo District Court, but the sentence was reduced to 5.5 years because the Court of Appeal believed that the defendant did not know that the gun was loaded. He had only put the gun to the victim’s head to scare him and pulled away, and was “very surprised” that the shot went off.
The judgment was of course appealed to the Supreme Court, which has recently refused the appeal.
As Julie Dahle writes:
Execute someone you don’t like, say you didn’t understand the gun was loaded and stick to that story. Take the sentence of 5.5 years. If you are extra kind and sensible, §42 of the Penal Code provides for the possibility of release after 2/3 of the sentence has been served.
And why do we mention the Prinsdal case in the same breath as the Holmlia case? That is because defendant no. 2, who also received 5.5 years in prison for complicity in the murder, is the same person who got away with 1 year in the Holmlia case. Now he also gets away with 5.5 years for complicity in “negligent murder” when his friend shot a person in the head outside Prinsdal Grill in Mortensrud. He was present, and was the one who had obtained the murder weapon.
Raise your hand who thinks he didn’t know that the gun he had provided himself was loaded.
Legal certainty costs
These examples are not unique. If you look in Norwegian judgments, there are plenty of cases where most people will be convinced that the defendant is guilty of what he is accused of, but where he escapes because there is what in legal theory is called “reasonable and reasonable doubt” that the person concerned is guilty.
The ones who decide this are of course the judges in the individual courts – a professional judge and two associate judges in the District Court and two professional judges and five associate judges in the Court of Appeal. The co-judges are always in the majority because the defendant must be judged by his “peers”. But in practice, it probably takes a lot for the co-judges to cross-examine the professional judges, although it certainly occurs.
Legal certainty costs. Therefore, we probably have to live with gang criminals getting away with the fact that someone they hit in Holmlia dies of cardiac arrest and those who are there refuse to call for an ambulance. Or that shortly after this he hands a loaded gun to a comrade who uses it to regularly execute someone he doesn’t like outside Prinsdal Grill. And is heard to say that he only wanted to scare and had no idea that the gun was loaded.
Because as Voltaire is said to have said – it is better that 10 guilty go free than that one innocent is convicted.