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Johansen Prosecutors Appeal
kmitnick writes "Jon Johansen will be back in court, tried again in an appeals court, because Hollywood knows better than the Norwegian legal system." Norway's legal system is different than the U.S.; the government can appeal a loss in a criminal case.
if the defendant thinks the court's decision is wrong, he/she can appeal...why shouldn't the prosecutors have the same possibility?
and btw, the maximum number of appeals in norway is 2 before the case reaches the supreme court (and the supreme court won't take most cases)
Its not legal in Norway.
g =E &doc=query&ctry=NOR&llx=02
t ml /117.htm
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1999-05-21 NOR-1999-L-53741
Act (No. 30 of 1999) to strengthen the position of human rights in Norwegian law (Human Rights Act).
Contains six sections whereby the following international human rights instruments are given force of national law to the extent that they are considered as binding on Norway: the European Council's Convention for the Protection of Human Rights and Fundamental Freedoms, its Protocol of November 1950, its Protocols Nos. 4 (securing certain other rights and freedoms), 6 (abolition of death penalty), and 7 (furthering certain human rights and freedoms);
http://natlex.ilo.org/Scripts/natlexcgi.exe?lan
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Protocol 7 from November 1950 is here:
http://conventions.coe.int/treaty/EN/Treaties/h
Article 4 - Right not to be tried or punished twice
So they adopted it into Norwegian law as part of human rights legislation.
Needs a lawyer to check it out, but what they're doing isn't just unethical and a breach of human rights. ITS NOT LEGAL EVEN IN NORWAY.
Fair use in Norway:
Basically, you can make private copies of anything as long as you do not distribute them in any way. One might call it backups.
Appeal system:
You can appeal a sentence, but each time this is done the next trial is by a higher instance in the justice system. If a higher instance refuses to take on the case, the old verdict is the one that counts. There are 3 levels + the Human Rights tribunal in Haag or so.
1. Herreds/Byrett (county/city court)
2. Lagmannsretten (laymen's court)
3. Høyesterett (Supreme court)
The supreme court, (translated from http://www.mossbyrett.of.no/info/i_straff.html) cannot retry whether the accused is guilty or not. It is only there for matters og priniciples, and has more or less been abolished as an instance for appeals. So basically, you can be retried for the same crime, but only a very limited amount of times, and by significantly different courts.
Rest in peace Malin "looxn" Kristiansen. We miss you...
"If you're accused of a crime and prosecuted under state law in the state you reside, then acquitted, you can be tried again for the same crime by the feds."
The doctrine at work is Dual Sovreignty. The State cannot try you twice for the same crime, another State cannot try you, but since the State and the Federal government both have sovreignty over you, then you are subject to separate prosecution by both governments. It was an open question but was settled by the Supreme Court in one of the first Federal prosecutions for liquor under prohibition, US v. Lanza, 260 U.S. 377 (1922).
So you can thank the War on Some Drugs for it, but it goes back much further than most people seem to realize.
-fb Everything not expressly forbidden is now mandatory.
Here is how it works in Sweden, which I suppose has a similar system.
All trials begin at the lowest instance.
After that the second instance can choose to accept an appeal. It is always harder to get an appeal accepted when trying to sentence someone who was declared not guilt in a lower instance.
Then there is the highest instance, which doesn't accept many cases every year, but this case most likely WILL end up there, because it is a new crime, and this is the instance which details how new, untested laws should be interpreted. If they make a clear enough innocent verdict in this case, no further "not guilty" verdicts would make it to second instance next time a person is tried for a similar crime under this law.
And no slashdot post is complete without... IANAL...
Here, any level of court is essentially free to set whatever sentence they want in a new trial, also including the Supreme court, though they *mainly* stick to law interpretation. They've changed sentence lengths to set the correct precedent though, if they feel it's too high or too low. In fact, they are also free to set it higher than what the prosecutor asks for (within the laws they're found guilty of) and have done so at times.
In short, it's the assumption that every step up is in a "more competent" (bigger jury, better judges and so on). You might call it double jeopardy - but I'm sure the US have examples of people which would have been found guilty if there had been more competent staff. Getting off because the lowest level of the court system just wasn't up to the task doesn't do much for justice either. You can however not be trialed for the same twice, though the supreme court can send it back down one step for a retrial, but once it's over it's over.
Personally, I have great trust in our Supreme court. They certainly aren't bending in the wind, some went as far as calling them racist based on what they let through under "freedom of speech". Not that I particularly agree with that case (think of hate speech as class-action libel), but they certainly aren't afraid to stand their ground. And I respect that greatly.
Kjella
Live today, because you never know what tomorrow brings
Perhaps submitter "kmitnick" is experienced with criminal law, but the sentence "Jon Johansen will be back in court, tried again in an appeals court, because Hollywood knows better than the Norwegian legal system." makes no sense. The Norwegian legal system is the one prosecuting, appealing, and deciding the case. Hollywood "filed the complaint" -- exactly as it is done in the US -- but doesn't the Norwegian legal system take the blame for heeding it?
The article says, "There is no specific legislation in Norway to protect digital content, but Johansen's program has been criminalized in the United States under the Digital Copyright Millennium Act" -- a strange comment, too. Who cares about the DMCA with Johansen in Norwegian court? Another article explained better, "Johansen was accused of violating Norway's computer crime law by helping to create the DeCSS DVD-descrambling utility."
On the double jeopardy angle, I looked around and can't find enough info. I assume that, as in several other countries, the appeals court looks for mistakes of law committed by the judge, not the weight of the evidence. I doubt he would be "tried again in an appeals court," notwithstanding the submitter's implication; it probably goes back to the Norwegian trial court. But who knows. Anyway, American double jeopardy has a surprising number of holes in it, such as the dual sovereignty doctrine that allows reprosecution up to 3 times in state/federal/military courts.
The US has some especially strict criminal rules. Whether Norway's system is a violation of fundamental civil rights is Norway's question, not Hollywood's. To compare Norway's system to, say, the United States, we'd want to weigh all their criminal rules as a batch, plus their discretion and fairness in executing those laws.
Disclaimer, I think this prosecution is a bunch of cr*p, but am totally confused by the reporting as to what's actually happening.
Obviously, IANANL. (Norwegian lawyer.) Be glad to hear from one!