On October 28, 2022, the Norwegian Supreme Court reversed a lower court ruling and held that a Russian citizen was subject to detention for operating an unregistered drone in Svalbard, Norway. The issue before the court was whether operating this type of drone was prohibited under previously adopted sanction rules prohibiting Russian citizens from operating “non-Russian-registered aircraft” and anyone from flying “Russian-registered aircraft” over Norway. (§ 19 Sanksjonsforskriften [Sanctions Regulations]; Supreme Court Decision ¶ 7.) In particular, the court had to consider whether interpreting the prohibition provision to apply to the operation of an unregistered drone would violate the “clarity requirement” (klarhetskravet) of Norwegian penal law. (Supreme Court Decision ¶ 7.) In other words, the court recognized that there must be a clear legal authority before the courts can impose any punishment upon a defendant.
Background to the Case
On October 14, 2022, a person holding dual British and Russian citizenship was arrested and detained awaiting trial in Norway for flying a drone over parts of Svalbard, Norway. The prosecutor argued that the act constituted a violation of the Norwegian Sanctions Regulations. Section 19 of the regulations states:
It is prohibited for all aircraft operated by Russian airlines, including [those operating] as the market-responsible carrier[s] in agreements on common route numbers or reservation of capacity, or for Russian-registered aircraft, or for non-Russian-registered aircraft owned, leased or otherwise controlled by Russian physical or legal persons to land in, take off from or fly over Norwegian territory. If necessary, the aircraft can be prevented from leaving the landing site. (Translation by author.)
Thus, the provision includes three situations where operation of an aircraft is illegal. First, it is illegal for Russian airlines to operate over Norway; second, it is illegal for Russian citizens to operate a “non-Russian-registered aircraft” over Norwegian airspace; and third, it is illegal for non-Russian citizens to operate a Russian-registered aircraft over Norway.
The adoption of this provision was a response to the Russian invasion of Ukraine, and following the provision’s adoption, Norway’s Civil Aviation Authority issued a clarifying statement explaining that the prohibition includes the operation of unmanned aircraft, also known as “drones.”
Relying on this provision, the Norwegian police arrested the Russian citizen for flying a drone over Norway. Following a request for detention by the prosecutor, Vestre Finnmark District Court approved the detention ahead of trial, but the Hålogaland Appeals Court reversed the detention finding on the grounds that because the defendant was flying an unregistered drone, it did not qualify under the language of the sanctions regulations. The detention order was appealed to the Supreme Court, which reversed the court of appeal decision and approved the detention.
The Supreme Court held that the language of the sanctions regulations applies to the use of drones, specifically stating:
In the expression “aircraft,” there is no distinction between registered and unregistered vessels. There is therefore no doubt that the first option includes a ban on all Russian aircraft landing in, taking off from or flying over the territory of Norway regardless of whether the aircraft is registered or not. The second option of “Russian-registered aircraft” means that the ban applies regardless of who is landing in, taking off from or flying over Norwegian territory. The term “non-Russian registered aircraft” in the third option must be understood as a contradiction to “Russian-registered” in the second option and not as a requirement that the aircraft be registered in a country other than Russia. This means that it is prohibited for both registered and unregistered aircraft that are owned, leased or otherwise controlled by Russian natural or legal persons to land in, take off from, or fly over Norwegian territory. Because Russian-registered aircraft are covered by the ban in the second option, the third option should be read in relation to [the second option and include any aircraft that is not specifically a Russian-registered aircraft]. The way the provision is structured does not provide a basis for the interpretation that the majority of the court of appeal has made. The regulation thus includes all aircraft owned, leased or otherwise controlled by Russian natural or legal persons.” (Supreme Court Decision § 19 (translation by author).)
Thus, the Supreme Court held that section 19 of the Sanctions Regulation was sufficiently clearly worded to legally hold a person responsible for operating an unregistered drone and that the detention was lawful, thereby reversing the appeals court’s decision to end the detention. The defendant’s detainment can therefore continue in accordance with Norwegian procedural law (Straffeprocessloven).
Elin Hofverberg, Law Library of Congress
November 17, 2022
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