No. 1123:
Support Written by lawyer Brynjar Meling going for full acquittal of Evangelist and Bible teacher Jan Kåre Christensen facing the Court of Appeal!
See here for a description of the District Court:
Image of lawyer Brynjar Meling who wrote this support leaflet, which is well-founded, eventful and that goes for full acquittal of me!
Stavanger 07.feb. 2016 Responsible lawyer: B N. Meling
The Court of Appeal
SUPPORT FACE-TO APPEAL OVER OSLO THINGS BROUGHT JUDGMENT IN ITEM NO 15-073540MED-OTIR / 02
Jan Kåre Christensen against The Public Prosecution.
* * *
Introduction
Referring to the Oslo district court's judgment in case no. 15-073540MED-OTIR / 02, dated 01/25/2016 and with so's judgment:
1. Jan Kåre Christensen, b. 03/08/1964 sentenced for violation of the Criminal Code of 1902 §390 A to a fine of 12,000 - twelve thousand - million going to sit in jail for 20 - twenty - days.
2. Jan Kåre Christensen acquitted of restitution claim.
3. Jan Kåre Christensen judged on to pay costs to the public by 3000 - three thousand - respectively.
The judgment was declared for the defendant in person preaching in Oslo District Court Friday, 29.1.2016 at. 09:30. The verdict was appealed by the ministry. Support Written notification by appeal deadline.
The appeal is therefore timely.
Anke Reasons
The appeal application of the law and evidence assessing the question of guilt.
The factual side
The facts are on the whole not disputed. Provided that Christensen points out that he has not repeated attacks against the aggrieved party to such an extent as indicated by the latter. There were further convicted explanation for the court that there is also such that it is in respect to responses from victims and people who speak the victim's case that things have been repeated.
It is contested does not follow that Christensen has come with the statements reproduced in the indictment. The contested nor that this has been going on over time. The details concerning. The period length and the scope of the repetitions noted matter to be significant for the principal judicial complete in harness. It is noted, however, alternatively, that if one finds that one can be punished by the criminal code. § 390A for blog posts, so it is important that the district court in the judgment, uncritically added Torp's explanation on this point to the ground, and attached decisive importance to this in his guilt assessment, without in any way was underpinned by the prosecutor's evidence deals.
The correct according to Christensen is that he has referred the matters in significantly fewer times than alleged, and in all material then repeats come in response to the articles / posts that have hit Christensen. It is pointed out even the most times is done by the circumstances complained.
Generally these statements
It noted that the terms used is normative and based on Christensen's perception of certain theological issues. It is emphasized that the terms "living in adultery", "immoral" and "prostitute" are terms used in Bible translations, as it was presented to the district court with specific references to the relevant passages.
It is pointed out that the term "leper" is also a Biblical expression that denotes it to be unclean, and thus deserved to be ejected by the Christian community.
The reason for the conflict
It also pointed out that an item that background that Christensen "went to 'attack' 'on Torp, is a relationship that Torp in court acknowledged the correctness of. Namely an event where a young person, and a person who Christensen perceive as "easy prey", should have given Torp everything he owned and had in terms of selling their house, only to provide a donation large nearer 1.5 million NOK. This was funds that Torp received and spent in their Christian, evangelical activities.
Christensen is clear that he can not find Torp living and acting in accordance with Torp's own interpretation of the Bible. He believes that Torp live by a "double standard" where the life and teachings mismatched. It is important for Christensen to emphasize that it is Torp's outreach activities, with net evangelism, and a clear voice on the Internet, which has allowed Christensen not only think it is legitimate, but necessary to point out aspects of Torp's business and way of life, which is not in line with God's word. There is also a relevant legal argument, that such a view of a person - who chooses to play an active role as a leading figure in the Christian context and who preach the word of God - there must be legitimate to express, although it characterized clean subjek-tively both can disagree and take it to heart theological and moral criticism.
Deficiencies in the District Court's judgment
It may on occasion preceding paragraph mentioned that a defect of the District Court's judgment, is that the right whole-laughs not have sufficiently emphasized that Torp is a public figure and thus must have a higher tolerance limit than others with respect what he must accept the criticism of his person and the activity he engages.
The court has not paid sufficient attention that Torp in court acknowledged that he has called Christensen for "Anders Behring Breivik sympathizer" on a few occasions, and further that he has called Christen-sen for "demon", "bright liar," "rumor spreaders" mv. Based on the principle of provocation and retorsjon this in itself circumstances that would warrant an acquittal. Victim's contribution to the debate has in no way helped to reduce the level of conflict in the debate, and whatever there is talk of brochures, looks-which has helped to raise the bar on what Torp itself must withstand the attack. For many will have aggrieved characteristics of Christensen perceived as significant more offensive than the words that fall in the other direction.
Of law appeal.
It is noted, however, that the central and principal quotation throughout the appeal does not relate to the fact, but the actual application of the 1902 Penal Code §390a. It submits that applying this particular provision of the blog entry, regardless how extensive a blog business is - in fact implies that provision be made subject to an expansive interpretation.
It is established law that the freedom of speech area rather must interpret a penal provision home curtailed, if the provision conflicts with the Covenant obligations. In this case, the criminal code. § 390A conflict with freedom of expression. In addition to being protected by the due-law, further determine the Constitution. § 100, as is the Convention attached to the ECHR. 10 and SP art 18 and 19.
The court takes its decision a correct starting point by stating that the provision aimed at those who "by frightening or distressing behavior or other reckless behavior that infringes on another's peace."
The court uses the legislative history wrong. Proposition 41 (1954-55) pp. 20-55 is itself a legal Argue-ment in favor of acquittal and not for conviction. Referring to the allegations mentioned above, together with the legislative history says "the decision must be made concrete and circumstances of time, place and the victim's individual circumstances will affect the assessment".
It also emerges an object lesson in the legislative history that "under the term 'nuisance the occurrence' go such vexatious phone calls."
There is thus a key element in both the legislative history that the relevant case law, it is pointed out ak-cing activities aimed directly against a person; meaning that one call, send messages, or outreach-ker people or its local area. This has not Jan Kåre Christensen made. As stated-coming off Rt. 2014 p. 669 paragraphs 17-18, the "mind's integrity" as protected by the provision and "only serious violations affected".
The court discusses on page 5-6 in the judgment defender's allegations that blog is not affected because it is not aimed directly at Torp. The court will still p. 6 that the posts is a publication date advertised on the Internet and concludes that this does not preclude the application of § 390 a. It is submitted that the Court's understanding of the scope of the criminal code. § 390A, in reality involves an expansive interpretation of the wording of the criminal code. § 390 a) and thus already at this point. Infringes clarity principle ECHR 7 and legality in grl. § 96.
Harder it becomes to understand the District Court's decision, when the District Court in the judgment claims to find support for their view in the case law. Neither the Oslo District Court decision in 2013-111-859, RG 2008 p. 1499, or THEDM 2004-3964 may in fact - so the district court does - be cited for applying the criminal code. § 390A of the blog. It's in both of these decisions, talk about actions that have just aimed more directly toward or to aggrieved persons.
When the court additionally highlights that blog posts are open available for everyone and indexed so that they get hits, Torp's name on search engines like Google, it shows precisely that one is without-for the private sphere. It is not so that one can understand and interpret it as when "affected" can be regarded and have received the message when it came to his knowledge - since the accused's activity has such an about-fang and intensity as in Torp and Christensen's case. Here are making the right not only an expansive interpretation of the penal provision but they are "enough" is also the fact, which can be an equally strict violation of the principle of legality.
The court uses RG 2008 p. 1499 as the basis for its position without any discussion or in any way argue why this is relevant. On behalf of convicts noted that in RG 2008 p. 1499 had dom-trips hung hundred posters in the victim's community, where the victim was named and given information that he was convicted. The fact of the matter is therefore - unlike the present case - that the defendant has sought aggrieved community and hung him out in public bulletin. This is nothing but adding this openly in a blog, where the court is built on must actively seek Torp as keywords in Google or other search engines, to end up on the blog. Here it may be mentioned that the court in this part of the discussion - has completely disregarded in the fact that Torp own acti-ities have helped to disseminate information. (It may on that occasion almost as a curiosity) declared that the first mentioned Oslo district court's judgment against Christensen was Torp in his blog).
Torp's own activities in the case show that there is no private life Torp is committed to protecting by reporting Christensen but he does this as part of their "fight" to protect their busi-ness as an evangelist. It is argued here that the judiciary should be careful not to let himself be used in theological and personal disputes. That is why isolation a correct assessment when poli-portion has dropped Christensen reviews from Torp, while it is thus incorrect to maintain foreleg-get it any other way.
The District Court also brings into matters related to Torp's spouse in their deliberations. It is writ which is the framework for the treatment. This is, inter alia, if the accused the opportunity to prepare. As pointed out by the defender in court, would possibly Torp spouse privacy had a sturgeon-re entitled to protection than Torp itself. Torp's spouse is not a public person. It is Torp. Consideration for the spouse is still outside the writ deed description and thus outside the case. The accused argues that if he had known that there would be a focus on the accused blogging about your spouse, he would put forward blog examples that clearly showed that he spared her in their posts.
Relationship to free speech protection in the Constitution. § 100 and ECHR. 10, SP art 18 and 19 are not properly considered by the Oslo District Court. The court refers to LB-2015-24004 which states that
"It is indeed clear that the statements which in isolation are not punishable, may under the Penal Code 390 a. The condition is that they occur in a number and at times makes it particularly annoying for the recipient".
This shows once again that basically the court takes is incorrect. When Borgarting Court of Appeal in that case pointed out the number and times that make it "particularly troublesome", it shows precisely the reason the assumption mentioned above, that the inquiries must abide directly or to a person.
Reference to Rt. 2010, p. 845 in the relevant Court of Appeal judgment also shows that in the case concerns direct contact. In Rt. 2010, p. 845 there was talk about a case where the chairman of utlen-Appeals Board received repeated SMS messages with insulting and threatening content to their mobile phone.
Further elaboration of legal arguments - merits fundamental aspects
It follows from the criminal code. (1902) § 1, 2.ledd, that the criminal law applies to any restrictions imposed by agreements with foreign states or of international law in general. Christensen has therefore protection as well ECHR 10 SP art 18 and 19. It is perhaps an unnecessary clarification, but Christensen's statements are also protected by the Constitution § 100. It follows therefore of the prin-sipielle statements in Gujrat Judgment Rt. 1976 p.1. that "the Constitution provisions that regulate the individual's personal liberty must have impact that is significant."
It is argued that the District Court's interpretation of the statements, means that the judgment result is contrary to the principle of legality, clarity principle and judgment result violates Jan Kåre Christensen reli-gions- and freedom of expression. The Court has in several decisions highlighted that utterance freedom is one of the absolutely fundamental elements of the basis for a democratic society. It is emphasized that this freedom not only includes the right to submit statements that are favorably received or regarded harmless, or minor, but also statements that are offensive, shock rising-they or disturbs.
In Oslo District Court decision is not the stringent requirements of the grounds for restriction of freedom of speech-unit met. Although there is only one remedy matters, there is no proportionality between inngre-pet and the purpose of this. After EMD practice must exceptions speech subjected to a restriction tive interpretation, see. That it must be "necessary". A central element of necessity assessment is whether there is an urgent social need for the procedure - "a pressing social need". Referring to the so-called "Spycatcher" judge, Serie A # 216, judgment paragraph 60, and 217, the judgment section 50. In Christensen's case this must concretely assessed against all of the on-judged statements are his views on theological issues which he asserts to a public person. The number and intensity induced by mating or provocations made against him, whether of victims directly or by his supporters.
Review of case law
The Supreme Court has not decided reviews of blogs against freedom of expression. We must therefore see if there are other relevant experience, relating to the statements may be regarded as criminal intimidation, racism or otherwise constitute an offense. When the Supreme Court majority in Kjuus Judgment Rt. 1997 s 1821 finds that the statements are not protected by freedom of expression, this ia based on the following:
"I can not see that the right to form a political party can be inferred that groups that do this, and dons their positions form of a manifesto, should be free to agitate for any vision, whatever interventions it had to involve over others people."
Christensen advocate a view that - though it is rare now - has stood for centuries, and that is not expressed that "he dons his stances form of a religion".
Clearly, ii same decision, not only must take into account how the Almin-inal belongs will perceive the statements, see. But that
"Must also see the statements in light of the context in which they have emerged."
It appears here that the statements of Christensen is normative and emerged in a blog debate between people who share religious beliefs, and then with references to "external the" perception of a fel-les faith because tier answers to specific questions. It also pointed out that the statements came as part of a public debate. A debate that whoever statements frames also participated in, and reciprocated. Such a debate is protected by freedom of speech under the Constitution L-100 which weighs very heavily. Allowing utterances only from one party and not, for example, penalize Torp statements about Christen-sen is an "Anders Behring Brevik sympathizer" implies in itself an unreasonable restrictive of free speech which only affects one-sided.
about predictability
When the court makes the exercise over and lands on judging Christensen, and disregard the police have dismissed Christensen five reviews of Torp, interpreters in reality his statements in isolation, and not as intended by Kjus judgment, looking statements in light of the context in which they have emerged. " Does it compromise the interests of predictability. See here Eggen Norwegian Law Review 1998 p 263:
"For utters becomes jurisprudence as little predictability whether one" relaxes "the criminal liability Terms or interpreting utterances freely so that they are aligned with these terms. One of the main objectives behind legality in Norwegian law, and in allfall law requirement of ECHR is to ensure fo rutberegnelighet in jurisprudence.
He continues later on the same page:
"When legality sets limits on how far the contextual interpretation of the Criminal Code it is acceptable to go, it would be inconsistent if the courts were to stand freely in contextual interpretation of utterances"
Straight Safety, particularly ensuring predictability, is accented in Rt. 2002, p. 1618. consideration to freedom of expression implies
"That no one should be able to risking criminal liability by the statement attributed to a meaning that is not expressly stated nor with reasonable certainty can be inferred from the context"
Reference is also made to Eggen in LoR 1998 s 264, which gives rise to another consideration:
"A free interpretation involves besides less predictability of law also greater opportunity for censorship from the Court file of speech they dislike, perhaps for other reasons than they take pl-ger behind penal provision"
Then we're back to that fundamental principle. Interpreted as religious expressions and interpretations of the Bible's view of remarriage, can not utterances judged. When court excludes this - by and not discuss this interpretation option, then "pushes" one statement outside the core area of the Constitution § 100 of free speech.
It brings us in Rt 2002, p. 1618 (Boot Boys judgment) thus becomes relevant. "Boot Boys" was a neo-Nazi fighting organization, as a Saturday morning on the square in Askim belt out tea an appeal with support for Hitler on the occasion of Rudolf Hess' 100th birthday. In the appeal were, inter alia, stated that
"Every day rob, rape and kill immigrants Norwegians, every day our people and country plynd tube and destroyed by Jews, who suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts." The appeal ended with "Sieg Heil - and Hitler greetings. "
Boot Boys' leader Terje Sjølie was acquitted.
The statements were found to be derived from a political program rather than being specific threats. Although several of those in attendance were dressed finlandshet-ter, and the demonstration was a militaristic combat fascist nature. The statements fell in front of immigrant-teachers who did their errands in Askim.
Christensen's statements, however has come in response to the actions that he believes is contrary to God's word. The statements contain an blog where most statements are in response to charges from persons Christensen perceive as mouthpiece for Torp. Sjølis statements fell unprovoked face completely innocent people.
clarity requirement
The District Court's judgment is somewhat ambiguous in the legal deliberations. It is provided that either one temperature weld-sume court extends the wording of the law, or the meaning of the statement, the district court of subsumption and thus the judgment result in conflict with the clarity requirement and legality.
Supreme Court Appeals Committee rendered the 2nd August 2012 ruling, in case HR-2012-1554-U as the question of statements on a blog on the Internet was made "public," cf. Strl. § 140 cf. § 7 and § where clarity principle being discussed:
Clarity The requirement has been expressed in several decisions of the Supreme Court, including the decision in Rt-2011-469, in which the question was whether the provision in the Penal Code § 219 also applied in relation to time-expensive cohabitants, although the legal text only referred to former spouses. Section 9 states:
'Such an extension of the criminal liability, compared with what follows from the wording of § 219, must be authorized by law.
I refer to the Constitution § 96 and ECHR Article 7, ref. Rt-2009-780 Section 21. Penalties Dignity, power laughing other bona fide reasons that may justify to juxtapose previously cohabiting with former spouses, is not sufficient. '
Then comes something that is central to the Christensen case, and that is not sufficiently emphasized by things-right:
The Court of Appeal for its part, notes that the requirement for clear statutory basis for criminal liability not least will be significant in cases where penal provision implies a restriction of freedom of speech
Under section 18 comes the Supreme Court with his views.
As the Court of Appeal points out, have basically the assessment be a requirement for clear legal applicable in criminal cases, cf. The Constitution § 96 and ECHR Article 7. It appears to Rt-2011-469 by-section 9, quoted in the Court of Appeal ruling.
This is elaborated in Rt-2012-313 paragraph 29, which states:
"It is nevertheless not decisive what the legislature might have intended, when any legislator's intention has not been clearly expressed in the law. I refer to the law's requirement of the Constitution § 96 and in the ECHR ar-Article 7, so this is understood partly in Rt-2011-469. Of particular interest are paragraphs 9 and 12 of the judgment, in which it emphasized that the criminality of need resulting from the law, and that a lack of support in ordly-not remedied by that relationship is clearly worthy of punishment, and that the legislator undoubtedly wanted to frame it. "
Secondarily - restrictive interpretation of the provisions
It submits alternatively, that if the appellate court finds that the statements violate privatli-vets peace, for a general interpretation of legal provisions in the criminal code. § 390 A, and that the district court did not have extended interpretation of the statements in a way that is contrary to the ECHR 7 and Constitution. § 96, as follows from the criminal code. § 1, paragraph 2, that the interests of Christensen's rights - and our commitments - under ECHR and SP on the safeguarding of the individual's freedom of religion and freedom of expression, imply that the criminal code. § 390 a) in cases where religion and freedom of speech are violated, must be interpreted narrowly.
Termination
The issue is principled and current. It raises questions of great practical importance. The issue of blog entries may involve a violation of the criminal code. § 390A, (2005 Act § 266) needs a prinsi-piella clarification.
In addition, the principal legal interpretation question, raised the case too - as discussed above - be-vismessige questions. It therefore requests that the appeal be referred to treatment with oral negotiation.
Assertion
Emphasis for this down so reverent.
P to s t a n d:
In appeal the question: Jan Kåre Christensen's appeal against the Oslo district court's judgment in case no. 15-073540MED-OTIR / 02 referred to treatment
Essentially, Jan Kaare Christensen acquitted
Oslo 07.10.2015
Brynjar Meling Nielsen
A copy of the police lawyer Dag Paulsen, Per Email
Related links:
http://the-heavenly-blog.janchristensen.net/2016/02/no-1122-net-clergy-against-my-family.html
http://the-heavenly-blog.janchristensen.net/2016/02/no-1121-god-has-put-all-his-servants.html
http://the-heavenly-blog.janchristensen.net/2016/02/no-1120-two-letters-i-have-sent-to.html
http://the-heavenly-blog.janchristensen.net/2016/02/no-1119-through-jan-aage-torp-fake.html
http://the-heavenly-blog.janchristensen.net/2016/01/no-1118-we-have-islamic-states-in.html
