(Aug. 13, 2012) The Storting, Norway's parliament, may update the country's Penal Code in connection with the crime of making threats in public, in the aftermath of a Norwegian Supreme Court (Høyesterett) ruling, issued on August 2, 2012, upholding an appeals court decision that mandated the release of a blogger who allegedly made threats against the police on his blog. (Nina Berglund, Lawmakers React to Blogger's Release, VIEWS AND NEWS FROM NORWAY (Aug. 3, 2012).)
The Supreme Court Ruling
The defendant, blogger Eivind Berge, had been charged with violation of section 140 of the Norwegian Penal Code, on the basis that on several occasions on his blog he had “publicly called for the killing of police officers and/or glorified such action.” (The Supreme Court of Norway, HR-2012-01554-U, Case No. 2012/1332 [in Norwegian], Norway Courts of Justice website [viewed in machine translation].) Section 140 states:
Any person who publicly urges or instigates the commission of a criminal act or extols such an act or offers to commit or to assist in the commission of it, or who aids and abets such urging, instigation, extolling, or offer, shall be liable to fines or to detention or imprisonment for a term not exceeding eight years, but in no case to a custodial penalty exceeding two-thirds of the maximum applicable to the act itself.
Criminal acts shall here include acts the commission of which it is criminal to induce or instigate. (The General Civil Penal Code, Act No. 10 of May 22, 1902 (as last amended by Act No. 131 of December 21, 2005), University of Oslo Law Library Translated Norwegian Legislation online database; Almindelig borgerlig Straffelov (Straffeloven) [General Civil Penal Code (Penal Code)] (last amended June 22, 2012), LOVDATA online legal database.
The three Supreme Court Justices, however, echoing the appeals court reasoning, ruled that statements made in a blog on the Internet are not covered by the criminal law, because the Internet, on which Berge posted his threat against the police, does not constitute a “public place” or “printed matter” as currently defined in the Penal Code under sections 7 and 10, respectively. (Berglund, supra; HR-2012-01554-U, Case No. 2012/1332, supra.)
District Court Decision
By contrast, the Bergen district court had concluded that there were reasonable grounds for suspicion of violation of section 140 of the Penal Code, on the public urging or instigation of a criminal act. Moreover, the court deemed that there was the risk of recurrence of the act, referencing article 171, paragraph 1, item 3, of the Code of Criminal Procedure. Under that provision, anyone who with just cause is suspected of one or more acts punishable by more than six months of imprisonment may be arrested if it is deemed necessary in order to prevent recurrence of such an act. (HR-2012-01554-U, Case No. 2012/1332, supra; The Criminal Procedure Act, Act No. 25 of May 22, 1981 (as last amended by Act No. 53 of June 30, 2006), University of Oslo Law Library Translated Norwegian Legislation online database; LOV 1981-05-22 nr 25: Lov om rettergangsmåten i straffesaker (Straffeprosessloven) [LAW 1981-05-22 No. 25: Act on Legal Procedure in Criminal Cases (Criminal Procedure Act)] (as last amended May 11, 2012), LOVDATA online legal database.)
According to Pål Lønseth, state secretary in the Justice Ministry from the Labour Party, “[w]e must accept the ruling and the high court's interpretation of the law, … . At the same time, we can't live with the law the high court had to interpret here. Therefore we'll propose a change in the law to criminalize what this case is about.” (Berglund, supra.) Lønseth stated that the proposed amendment will make comments urging criminal action crimes when made on the Internet, just as they are when made in printed matter. It is expected that the draft legislation will be sent to the Parliament soon. (Id.)
At the same time, the Supreme Court ruling may have implications in another case, that of Islamic cleric Mullah Krekar. Krekar, found guilty of having published alleged death threats over the Internet, was sentenced to five years' imprisonment for his actions and placed in prison pending appeal, after having allegedly made more threats and being deemed dangerous. Krekar's defense attorney indicated that the Supreme Court's decriminalization of Berge's Internet statements may also apply to his client. (Id.)