Parliamentary Ombudsman rules Supreme Court Secretary General: Gunnar Bergby's 10 September 'admin decision' re: Review of Breivik Judgement; is an Official Court Judgement
27 December 2012 | EcoFeminist v. Breivik
On 27 August 2012, I filed an Application (PDF) to Norway Supreme Court for Review of Oslo District Court: Breivik Judgement Ruling; to Set Aside the Judgements (1) ‘Necessity (Nodrett) Ruling’ and (2) Defendant’s Conviction (Finding of Guilt) and Remit to Oslo District Court for hearing of Further Evidence to conclude Objective and Subjective Necessity Test Evidentiary Enquiry.
The Supreme Court Registrar refused to respond to my application, so i filed a complaint of Slow Processing (PDF) to the Parliamentary Ombudsman on 02 September 2012. On 10 September 2012, Supreme Court Secretary General: Gunnar Bergby responded - (Application for review of Oslo District Court Judgement of 24 August 2012 (2011-188627-24). He implied my application was an 'appeal', and that I lacked legal standing (locus standi), because only the 'parties to the case' can appeal.
On 11 September 2012, I responded (PDF) that my application was not an appeal, but a Review, and furthermore, that matters of locus standi are investigated by courts, after hearing evidence on the matter, not by Registrars. I requested him to provide me with a statute that granted him the authority to make a ruling on legal standing (locus standi); thereby denyiing me access to the court.
On 08 October 2012, I sent a reminder request to Sec. Gen. Bergby, but received no response. On 03 November I filed another complaint to the Parliamentary Ombudsman: Complaint of Supreme Crt Registrar Slow Case Processing (PDF), requesting the Parliamentary Ombudsman order Sec. Gen. Bergby to either (a) provide me with the relevant statute granting him the authority to make a ruling on legal standing, or (b) process my application for review of the Breivik judgement.
On 15 November, the Parliamentary Ombudsman ruled that Sec. Gen. Bergby's 'administrative decision' was not an 'administrative decision', but a 'Decision (Judgement) by a court of law'; and that the Parliamentary Ombudsman has no authority to investigate 'decisions by a court of law', only administrative decisions of slow case processing.
So, the Parliamentary Ombudsman is saying that if you file an application with a court, and the registrar makes some administrative decision about your application, that is a 'judgement by a court of law'. Very strange, cause 'judgements/decisions by a court of law', only occur after a court has heard all the relevant evidence in the matter, from all parties.
So, it appears that the Parliamentary Ombudsman is not willing to rock the boat, and do their job by ordering the Supreme Court Secretary General, to either provide the relevant statute granting him the authority to make a decision on locus standi, or to process my application.
This means however, that an Application can be filed with the European Court of Human Rights, since the highest Norwegian court (Supreme Court) has issued a judgement (without general due process procedures), on my Application for Review.
27 August 2012: Application to Norway Supreme Court, for Review of Oslo District Court: Breivik Judgement ruling of 24 August:
A. On 27 August 2012, an Application (PDF) was submitted to Norway Supreme Court for Review of Oslo District Court: Breivik Judgement Ruling; to Set Aside the Judgements (1) ‘Necessity (Nodrett) Ruling’ and (2) Defendant’s Conviction (Finding of Guilt) and Remit to Oslo District Court for hearing of Further Evidence to conclude Objective and Subjective Necessity Test Evidentiary Enquiry.
B. Review Orders Requested:
a. Set Aside the Judgements ‘Necessity (Nødrett) Ruling’ (pg.67)
b. Set Aside Defendant’s Conviction (Finding of Guilt) and Remit to Oslo District Court for hearing of Further Evidence to conclude Objective and Subjective Necessity Test Evidentiary Enquiry.
C. Grounds for Review:
a. The application for review is based on the grounds of (A) Irregularities & Illegalities in the Proceedings before the Oslo District Court: in terms of (1) A Failure of Justice and Failure of a True and Correct Interpretation of the Facts; (2) Judicially Un-Investigated Facts; (3) Failure of Application of Mind and (4) Rejection of Admissible or Competent Evidence: (i) Prosecutor & Judges failure to examine objective and subjective necessity test; and (ii) Courts denial of due process to applicants Habeus Mentem and Amicus Curiae applications .
b. [A.1.a] Necessity Judgement fails to provide any necessity criminal provisions that prohibit killing of Government Officials in case of Necessity
c. [A.1.b] Necessity Judgement Ignores that Criminal Necessity provisions do not prohibit the killing of Government Officials in case of objective and subjective Necessity.
d. [A.1.c] Necessity Judgement’s Erroneous interpretation of Necessity related criminal law provisions and international necessity related human rights law.
e. [A.1.d] Necessity and Guilt Judgement’s Failure to conduct required Objective and Subjective Tests for Defendant’s Necessity Defence
f. [A.1.e] Necessity and Guilt Judgement’s Absence of Objective and Subjective Test Enquiry and Conclusions Renders it Inadequate
g. [A.1.f] Necessity and Guilt Judgement’s Absence of Clarification Upon which party the Onus of Proof lies in a Case of Necessity; and how or why their evidence was insufficient renders the Judgements Conclusions inadequate.
h. [A.1.g] Necessity and Guilt Judgement’s Absence of Objective and Subjective Test Enquiry and Conclusions Renders it Discriminatory Precedent
i. [A.1.h] Necessity Judgements ‘Extreme Political Objectives’ conclusion is unsupported in the Absence of Objective and Subjective Necessity Test
j. [A.1.i] Necessity Judgements ‘Extreme Political Objectives’ conclusion is unsupported in the Absence of Objective and Subjective Necessity Test
D. Failure of Justice: Judicially Un-Investigated Facts: Necessity and Guilt:
a. No reference was made during court proceedings by any party alleging that any Norwegian or International specific necessity criminal statute specifically prohibits the killing of government or politically active young people, in the event of objective and subjective reasonably determined necessity.
b. No International or Norwegian specific necessity criminal statute specifically prohibits the killing of government or politically active young people, in the event of objective and subjective reasonably determined necessity.
c. Necessity criminal statutes do not specifically allow or disallow the killing of government or politically active young people, but provide for an objective and subjective test that examines each alleged criminal act to objectively and subjectively determine whether necessity existed, or the defendant honestly believed it existed, within the particular criminal act‘s relevant circumstances.
d. The court, prosecution and defence counsel failed to conduct the required subjective and objective tests to examine the evidence for the Defendant‘s necessity motivations to determine (I) objectively whether the defendant‘s claims – simplistically rephrased as – “Titanic Europe is on a demographic/immigration collision course with Islam Iceberg”; and (II) secondly whether the defendant subjectively perceived the Titanic Europe/Islam Iceberg circumstances this way.
e. The Judgement fails to disclose Norwegian law‘s Onus of Proof requirements in a case of necessity: i.e. upon which party – Defendant or State - does the Onus of Proof lie in case of Necessity? In South Africa, the proof in a defense of necessity, ruling out the reasonable possibility of an act of necessity, lies on the State. In the absence of the State ruling out the reasonable possibility of an act of necessity, the accused claim of necessity stands.
f. It is clear that the Court's statement of reasons does not show the results of the courts objective and subjective enquiry into the Defendant‘s claim of necessity. Thus, it is also clear that the Court's statement of reasons for its “necessity finding of guilt”, are inadequate. Hence the finding of guilt needs to be set aside for further evidence to objectively and subjective evaluate the defendants necessity defence.
g. Finally if the Courts statement of reasons remain uncorrected, they would set a bad precedent, encouraging other courts to deny necessity defendants their rights to an objective and subjective test of their necessity defence, including denying the defendant information clarifying upon whom the Onus of Proof in a defence of necessity lies.
E. Oslo Court: Breivik Defence of Necessity:
a. On 17 April 2012, the Oslo Court tweeted to Journalists attending the Breivik trial: “Wrong translation in the 22-7 trial yesterday: Breivik said "nodrett", Correct translation: "Principle of Necessity", not "self defence".”
b. The principle of Necessity is enshrined in Norwegian Law in Section 47 of the Penal Code: "No person may be punished for any act that he has committed in order to save someone's person or property from an otherwise unavoidable danger when the circumstances justified him in regarding this danger as particularly significant in relation to the damage that might be caused by his act."
F. Prosecutor Engh and Holden “Refuse to touch Breivik’s Principle of Necessity”:
a. According to Document.NO, NRK, VG, NRK, the transcripts Prosecutor Engh and Holden violated their duty of objectivity in terms of (a) impartially enquiring into and/or responding to the Accuseds‘ Defence; and (b) providing the court with the Prosecution‘s evaluation and conclusion of the evidence for and against Breivik‘s invocation of his Necessity Defence.
b. In her closing statement, Prosecutor Engh acknowledges that: (A) Norwegian prosecutors have a duty to conduct their investigation with objectivity; (B) Norwegian law allows for an accused to plead to necessity and/or self defence, (C) Where an accused does invoke necessity, it is the court and prosecutor‘s duty to investigate the accused‘s necessity defence arguments and evidence; (D) If an accused successfully invokes a necessity defence, this can and must result in either mitigation of sentence and/or a verdict of innocence; (E) Breivik invoked the defence of necessity; (F) Despite the fact that Breivik invoked the necessity defence, both Prosecutor Engh and Holden “refuse to touch the principle of necessity”.
G. Necessity in Norwegian Law:
a. LAW-2005-05-20-28: Lov om straff (straffeloven). | Act on Punishment (Penal Code) says: § 17 Necessity: “An action that would otherwise be criminal, is legal when a) it is being undertaken to save lives, health, property or any interest from the danger of injury that can not be averted in any other reasonable manner, and b) the risk of injury is far greater than the risk of injury by the action.”
b. LAW-1998-03-20-10-§ 5: Forskrift om sikkerhetsadministrasjon | Regulations relating to security management allows for “security breaches without criminal liability if the terms of the principle of necessity or self defence in criminal law law § 47 or § 48 is met.”
H. Norwegian Law Necessity Judgement: Subjective and Objective Test:
a. In LE-2012-76983 Eidsivating Appeal – Judgment of 29 May 2012, an Eritrean man was accused of several Perjury related Immigration offences to help his sister to come to Norway. He admitted the facts, but claimed necessity. In court he was found guilty on all counts and sentenced to 90 days' imprisonment. The Court of Appeal suspended the appeal to test his conviction on one point (whether the court a quo had seriously enquired into his necessity defence).
b. The court agreed with the Defendant‘s argument that asserted that the court a quo had not considered the circumstances that were invoked as the basis for the existence of a principle of necessity situation. The judgement stated that it is clear that “the courts statement of reasons does not show that the court has considered this argument. Thus it is also clear that the Court‘s statement of reasons in so far are inadequate.”
I. Necessity Defence: International and Foreign Law:
a. The rationale of the necessity defense is not that a person, when faced with the pressure of circumstances of nature, lacks the mental element which the crime in question requires. Rather, it is this reason of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.
b. The principle of the necessity defence is rooted in common law and any accused pleading to necessity argues that their actions were justified or an exculpation for breaking the law. Defendants who plead to necessity – whether common law necessity, political necessity (civil disobedience) or military necessity - argue that they should not be held liable for their actions as being criminal, because their conduct was necessary to prevent some greater harm.
J. As argued in The Necessity Defense in Civil Disobedience Cases: Bring in the Jury, by William P. Quigley:
a. [..] The doctrine of necessity, with its inevitable weighing of choices of evil, holds that certain conduct, though it violates the law and produces harm, is justified because it averts a greater evil and hence produces a net social gain or benefit to society.
b. Glanville Williams expressed the necessity doctrine this way: “[S]ome acts that would otherwise be wrong are rendered rightful by a good purpose, or by the necessity of choosing the lesser of two evils.” He offers this example: “Suppose that a dike threatens to give way, and the actor is faced with the choice of either making a breach in the dike, which he knows will result in one or two people being drowned, or doing nothing, in which case he knows that the dike will burst at another point involving a whole town in sudden destruction. In such a situation, where there is an unhappy choice between the destruction of one life and the destruction of many, utilitarian philosophy would certainly justify the actor in preferring the lesser evil.”
K. In Nuclear War, Citizen Intervention, and the Necessity Defense , Robert Aldridge and Virginia Stark, document numerous cases of Common Law and Civil Disobedience Necessity Defence Cases which resulted in Innocence verdicts or severe Mitigation of Sentencing.
L. Common Law Necessity Defence Cases Resulting in Innocence Verdicts or Severe Mitigation of Sentencing:
a. In Regina v Dudley and Stephens (1884) 14 QBD 273, three crew members and a cabin boy escaped a shipwreck to spend eighteen days on a boat, over 1,000 miles from land, with no water and only two one pound tins of turnips. After four days, they caught and ate a small turtle. That was the only food that they had eaten prior to the twentieth day of being lost at sea. Ultimately, two of the crew members killed the ailing cabin boy and “fed upon the body and blood of the boy for four days.” Four days later, they were rescued. Two of the men were charged with murder. The court found that the cabin boy would likely have died by the time they were rescued and that the crew members, but for their conduct, would probably have died as well. The Queen's Bench Division Judges held that the defendants were guilty of murder in killing the cabin boy and stated that their obvious necessity was no defence. The defendants were sentenced to death, but this was subsequently commuted to six months' imprisonment.
b. In Spakes v. State, 913 S.W.2d 597 (Tex. Crim. App. 1996), the Texas Criminal Appeals Court allowed the jury to be instructed on the necessity defense before deliberating the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them. The defendant inmate argued that because of the terribly violent crimes of which his cellmates had been convicted (one had bragged about chopping his girlfriend up with an ax), it was a necessity that he break the law, by accompanying them in their escape.
c. In United States v. Ashton, 24 F. Cas. 873, 873-74 (C.C.D. Mass 1834) (No. 14,470), sailors prosecuted for mutiny were found not guilty, after arguing the necessity for their mutiny based upon the dangerously leaky ship and that this danger had been concealed from them until after they left port. Circuit Justice Story found them not guilty of mutiny.
d. In United States v. Holmes, 26 F. Cas. 360 (E.D. Pa. 1842) (No. 15,383), Holmes was involved in a shipwreck, where the crew were charged with manslaughter for throwing sixteen passengers overboard in a frantic attempt to lighten a sinking lifeboat. The Prosecutor argued the passengers should be protected at all costs, whereas the Defence placed the jurors in the sinking lifeboat with the defendant. The Defendant was found guilty, but the jurors requested leniency, to which the court complied by sentencing the defendant to six months in prison and a fine of twenty dollars.
e. In the 1919 Arizona decision of State v. Wooten, commonly referred to as the Bisbee Deportation case, Professor Morris describes the acquittal of a Sherrif based upon the “necessity” for committing Kidnapping.
f. In Surocco v. Geary, 3 Cal. 69 (1853), a large fire threatened the unburned half of the then small town of San Francisco. A public officer ordered the destruction of houses to create a firebreak and was subsequently sued by one of the owners. On appeal, the California Supreme Court held that the action was proper because: “The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the natural rights of man, independent of society and the civil government. "It is referred by moralists and jurists as the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the safety of the vessel; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quod jura private." [Necessity leads to privileges because of private justice].”
M. Civil Disobedience Political Necessity Defence Cases Resulting in Innocence Verdicts or Severe Mitigation of Sentencing:
a. In the United States, 23 cases of left wing/liberal political protestors necessity defence cases have resulted in innocence or severe mitigation of sentencing, whereas only 1 case of right wing/conservative political protestors cases have resulted in innocence or severe mitigation of sentencing.
b. Left Wing/Liberal: Anti Nuclear (10): State v. Mouer (Columbia Co. Dist. Ct., Dec. 12-16, 1977), People v. Brown (Lake County, Jan. 1979); People v. Block (Galt Judicial Dist., Sacramento Co. Mun. Ct., Aug. 14, 1979); California v. Lemnitzer, No. 27106E (Pleasanton-Livermore Mun. Ct. Feb. 1, 1982); State v. McMillan, No. D 00518 (San Luis Obispo Jud. Dist. Mun. Ct., Cal. Oct. 13, 1987); Massachusetts v. Schaeffer-Duffy (Worcester Dist. Ct. 1989); West Valley City v. Hirshi, No. 891003031-3 MC (Salt Lake County, Ut. Cir. Ct., W. Valley Dept. 1990); Washington v. Brown, No. 85-1295N (Kitsap County Dist. Ct. N. 1985); California v. Jerome, Nos. 5450895, 5451038, 5516177, 5516159 (Livermore-Pleasanton Mun. Ct., Alameda County, Traffic Div. 1987); Washington v. Karon, No. J85-1136-39 (Benton County Dist. Ct. 1985)
c. Left Wing/Liberal: Anti US Central American Foreign Policy (3); Vermont v. Keller, No. 1372-4-84-CNCR (Vt. Dist. Ct. Nov. 17, 1984); People v. Jarka, Nos. 002170, 002196-002212, 00214, 00236, 00238 (Ill. Cir. Ct. Apr. 15, 1985); Colorado v. Bock (Denver County Ct. June 12, 1985)
d. Left Wing/Liberal: Anti-Military Industrial Complex (4): Michigan v. Jones et al., Nos. 83-101194-101228 (Oakland County Dist. Ct. 1984); Michigan v. Largrou, Nos. 85-000098, 99, 100, 102 (Oakland County Dist. Ct. 1985); Massachusetts v. Carter, No. 86-45 CR 7475 (Hampshire Dist. Ct. 1987); Illinois v. Fish (Skokie Cir. Ct. Aug. 1987)
e. Left Wing/Liberal: Anti-Apartheid (3): Chicago v. Streeter, Nos. 85-108644, 48, 49, 51, 52, 120323, 26, 27 (Cir. Ct., Cook County Ill. May 1985); Washington v. Heller (Seattle Mun. Ct. 1985); Washington v. Bass, Nos. 4750-038, -395 to -400 (Thurston County Dist. Ct. April 8, 1987)
f. Left Wing/Liberal: Pro-Environment/Cycling (1): People v. Gray, 571 N.Y.S.2d 851, 861-62 (N.Y. Crim. Ct.1991)
g. Left Wing/Liberal: AIDS: Clean Needles Campaign (2) California v. Halem, No. 135842 (Berkeley Mun. Ct. 1991); In 1993, a jury acquitted a Chicago AIDS activist charged with illegally supplying clean needles because of the necessity defense.
h. Right Wing/Conservative: Anti-Abortion (1): In 1990, in Omaha, Nebraska, a jury acquitted seventeen anti-abortion protestors because of the necessity defense. The trial judge relied on the defense to overturn the trespassing convictions of an additional eighteen defendants.
i. Neutral: Anti-Corruption (1): In 1988, a North Carolina court acquitted two Tuscarora Indians of charges in connection with their taking of twenty hostages at the office of a local newspaper to protest the alleged corruption of county officials.
j. Neutral: Anti-Alcohol Advertising (1): In 1991, a Chicago jury acquitted a Catholic priest of criminal charges for damage to the inner-city neighborhood where he was pastor after he admitted painting over three tobacco- and alcohol-related billboards. The defendant argued he should not be convicted because of the necessity defense. The jury deliberated ninety minutes before acquitting the defendant.
N. Military Necessity and International Humanitarian Law:
a. Crimes of War and Diakona define military necessity as: “a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning. The concept of military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL.”
b. Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of War Crimes during the 2003 invasion of Iraq and published an open letter containing his findings. In a section titled "Allegations concerning War Crimes" he did not call it military necessity but summed up the term: “Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).”
O. Military Necessity Justifies use of Nuclear Weapons for Self-Preservation:
a. In the International Court of Justice’s advisory opinion of 8 July 1996, on The legality of the threat or use of nuclear weapons, the final paragraph states “that such threat or use would generally be contrary to international humanitarian law. The opinion went on to state, however, that the court “cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence . . . when its survival is at stake.” The court held, by seven votes to seven, with its president‘s casting vote, that it “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a State would be at stake.”
P. Military Necessity in Nuremberg German High Command Trial:
a. In the Trial of Wilhelm von Leeb and Thirteen Others: United States Military Tribunal, Nuremberg, 30th December, 1947 – 28 the October, 1948
b. Wilhelm von Leeb and the other thirteen accused in this case were former high-ranking officers in the German Army and Navy, and officers holding high positions in the German High Command (OKW) were charged with Crimes against Peace, War Crimes, Crimes against Humanity and with Conspiracy to commit such crimes. The War Crimes and Crimes against Humanity charged against them included murder and ill-treatment of prisoners of war and of the civilian population in the occupied territories and their use in prohibited work; discrimination against and persecution and execution of Jews and other sections of the population by the Wehrmacht in co-operation with the Einsatzgruppen and Sonderkommandos of the SD, SIPO and the Secret Field Police; plunder and spoliation and the enforcement of the slave labour programme of the Reich.
c. They were acquitted of some of the charges, where it was ascertained that military necessity existed objectively and/or subjectively in the particular circumstances.
d. The Tribunal argued that “The devastation prohibited by the Hague Rules and the usages of war is that not warranted by military necessity. This rule is clear enough but the factual determination as to what constitutes military necessity is difficult. Defendants in this case were in many instances in retreat under arduous conditions wherein their commands were in serious danger of being cut off. Under such circumstances, a commander must necessarily make quick decisions to meet the particular situation of his command. A great deal of latitude must be accorded to him under such circumstances. What constitutes devastation beyond military necessity in these situations requires detailed proof of an operational and tactical nature. We do not feel that in this case the proof is ample to establish the guilt of any defendant herein on this charge.”
e. Thus, in dealing with Reinhardt's alleged responsibility for plunder and spoliation, the Tribunal said: “The evidence on the matter of plunder and spoliation shows great ruthlessness, but we are not satisfied that it shows beyond a reasonable doubt, acts that were not justified by military necessity.”
Q. Military Necessity: The Rendulic Rule: Importance of the Subjective Test:
a. In The Law of Armed Conflict: International Humanitarian Law in War, Gary D Solis provides an overview of the Rendulic Rule in evaluation of the subjective test in evaluating a defence of Military Necessity:
b. “In October 1944, Generaloberst Lothar Rendulic was Armed Forces Commander North, which included command of Nazi Forces in Norway. (Between World Wars I and II, Rendulic had practiced law in his native Austria.) Following World War II, he was prosecuted for, among other charges, issuing an order “for the complete destruction of all shelter and means of existence in, and the total evacuation of the entire civilian population of the northern Norwegian province of Finmark...” Entire villages were destroyed, bridges and highways bombed, and port installations wrecked. Tried by an American military commission, Rendulic's defence was military necessity. He presented evidence that the Norwegian population would not voluntarily evacuate and that rapidly approaching Russian forces would use existing housing as shelter and exploit the local population's knowledge of the area to the detriment of retreating German forces. The Tribunal acquitted Rendulic of the charge, finding reasonable his belief that military necessity mandated his orders. His case offers one of the few adjudicated views of what constitutes military necessity.
c. From the Tribunals opinion:
d. “Military necessity has been invoked by the defendant's as justifying.. the destruction of villages and towns in an occupied territory... The destruction of property to be lawful must be imperatively demanded by the necessities of war... There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit the wanton devastation of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone...
e. “The evidence shows that the Russians had very excellent troops in pursuit of the Germans. Two or three land routes were open to them as well as landings by sea behind German lines... The information obtained concerning the intentions of the Russians was limited.. It was with this situation confronting him that he carried out the "scorched earth" policy in the Norwegian province of Finmark.. The destruction was as complete as an efficient army could do it...
f. “There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgement, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist....
g. “..... We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgement on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties... It is our considered opinion that the conditions, as they appeared to the defendant at the time, were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act. We find the defendant not guilty of the charge.
h. The Rendulic standard remains unchanged. Fifty-four years later, in 2003, the ICTY wrote: “In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”
R. Military Necessity: Rendulic Rule: Subjective Honesty in current Military Doctrine:
a. In Unexpected Consequences From Knock-On Effects: A Different Standard for Computer Network Operations?, Eric Talbot Jensen writes:
b. “The standard the Court held General Rendulic to was the requirement to give "consideration to all factors and existing possibilities" as they "appeared to the defendant at the time."”
c. “Note that the requirement to give consideration to all factors and existing possibilities is balanced with the overarching constraint of taking facts as they appear at the time of the decision. Must the commander remain in inaction until he feels he has turned over every stone in search of that last shred of information concerning all factors and possibilities that might affect his decision? The answer must be "no." Instead, he must act in good faith and, in accordance with GPI, do everything feasible to get this information.”
S. Onus of Proof: Norwegian State or Breivik to Prove Necessity?:
a. In South African law the Onus of Proof lies on the State in a defence of necessity, to rule out the reasonable possibility of an act of necessity.
b. In S v Pretorius 1975 (2) SA 85 (SWA) Judge AJ Le Grange found that “The onus of proof in a defence of necessity as in self-defence rests on the State to rule out the reasonable possibility of an act of necessity. It is not for the accused to satisfy the court that she acted from necessity (p 293). .. (proceed) by gathering an objective view of the circumstances from the evidence itself, and the magistrate‘s finding whether the prevailing circumstances were “alarming” if viewed objectively…. Viewed objectively… was the accused confronted with a situation that …… lives were in danger….
c. “[90] [If the evidence gives a picture of threatening danger and fear, which gave rise to necessity and which would have justified the accused‘s conduct, provided the accused did not exceed the limits of necessity…. Proceed to consider whether the proven circumstances satisfy the tests for necessity set out by B & Hunt at p. 285 of their work: (a) the threatening disaster endangered the accused‘s legal interests. This in fact gave rise to a duty to act. (b) the danger was threatening and imminent. The fact that symptoms relating to the danger may only appear later does not detract from the situation… if it cannot immediately be ascertained whether or not the symptoms are dangerous, necessity arises… (d) the chances that harm would have resulted and it would have been of a serious nature.. the greater the harm, the greater the necessity…”
d. If Norwegian law also places the Onus of Proof to lie on the State in a defence of necessity, to rule out the reasonable possibility of an act of necessity; it would appear that the Prosecutor‘s decision to “refuse to touch the principle of necessity” should weigh heavily in the Defendant‘s favour.
28 August – 06 September 2012: No Response from the Norwegian Supreme Court:
A. On 28 August 2012, I contacted the Supreme Court Registrar with a request for a Case Number for my application for Review of the Oslo District Court’s Brievik Judgement.
B. On 31 August 2012, I again contacted the Supreme Court Registrar with a request for a Case Number for my application for Review of the Oslo District Court’s Brievik Judgement.
02 September 2012: Complaint to Parliamentary Ombudsman: Slow Case Processing by Supreme Court Registrar:
A. On 02 September 2012, I submitted a complaint (PDF) to the Parliamentary Ombudsman: Slow Case Processing / Failure to Provide Case Processing by Supreme Court Registrar; to Application for Review of ‘Breivik Judgement’.
10 September 2012: Response from Supreme Court Secretary General: Gunnar Bergby: No Legal Standing:
A. On 11 September 2012, I was informed of the decision by Supreme Court of Norway: Secretary General: Gunnar Bergby in: Application for review of Oslo District Court Judgement of 24 August 2012 (2011-188627-24).
B. Secretary General Bergby implied that my application was an ‘Appeal’, and stated that I lacked legal standing, because I was not a ‘party to the case’. Mr. Anders Behring Breivik and the prosecution authority “are the only parties in the specific case mentioned above, and the right of appeal is constricted to these”.
11 Sep 2012: Response to Supreme Court: Secretary General:
A. On 11 September 2012, applicant responded (PDF) to Secretary General Gunnar Bergby. Applicant requested the Secretary General to provide her with the relevant statute in Norway that provides the Secretary General the authority to refuse to process a case, citing lack of locus standi/legal standing; thereby denying such applicant due process access to be heard by an impartial court?
B. Applicant argued that it was for the court to decide the matter of locus standi, not the Secretary General; citing Scottish Salmon Growers Association Limited v. EFTA Surveillance Authority (Case E-2/94); Private Barnehagers Landsforbund v EFTA Surveillance Authority, supported by Kingdom of Norway (Case E-5/07) ; and Hans Chr. Bugge, Professor of Environmental Law at the Department of Public and International Law, University of Oslo, in his article: General background: Legal remedies and locus standi in Norwegian law : “There is no clear definition or delimitation of the concept. Whether a person has "legal interest" is decided discretionary in each case, and depends on individual circumstances.”
C. Applicant clarified her application was not an ‘Appeal’, which ‘locus standi’ was restricted to the ‘parties in the specific case’, but one of Certiorari/Review, where her locus standi/legal standing was based upon her being a member of a group of activists: known as political necessity activists, who have ‘legal interest’ in the judgement, due to its violations of ECHR Article 13 and 14, and its necessity ruling was not sufficiently precise, as required in Lithgow & others v. United Kingdom, in order to allow Political Necessity Activists to regulate their activism in accordance with the law.
D. The Oslo District Courts ‘Breivik Judgement’, discriminated against Breivik, by denying him a Free and Fair Subjective and Objective Test Enquiry into his Necessity evidence; and set a discriminatory legal precedent against future Norwegian Political Necessity activists, and furthermore due to the international prominence of the trial on the world stage, the Judgement sent a publicity message that a Court could deny an Accused pleading to Necessity, a Free and Fair Subjective and Objective Test Enquiry into their Necessity evidence, on the world stage.
E. Denying Mr. Breivik his right to an objective and subjective test of his necessity evidence, set a legal precedent where environmental, immigrant, religious or other necessity activists are also denied their right to an objective and subjective examination of their necessity evidence (or can due to ignorance from the Breivik trial’s publicity, deny themselves, by lacking the knowledge to assert their right thereto).
F. Applicants was consequently demanding her Article 13 Right to an Effective Remedy, and in terms of Article 14: to Prohibit this Discriminatory Erroneous Necessity Ruling against Breivik, herself and other Necessity Activists.
G. The applicant confirmed that the principle of an Application for Review existed in Norwegian courts, as documented by (1) Former President of Norwegian Supreme Court Justice Carsten Smith, (2) Chief Justice of the Norway Supreme Court: Tore Schei ; and (3) Supreme Court Justice: Karen Bruzelius .
H. Applicant requested that her Application be interpreted in terms of Article 13 ECHR read in conjunction with Protocol 7 ECHR and the EFTA Courts Judicial Review Posten Norge Judgement; effectively interpreted as the Right to Judicial Review of an Administrative Decision or a Court Order.
08 October 2012, 2nd Request to Secretary General Gunnar Bergby:
A. Applicant sent a reminded request for a response to her response sent Tuesday, September 11, 2012 12:04 AM.
03 November 2012: Parliamentary Ombudsman: Complaint of Supreme Crt Registrar Slow Case Processing:
A. On 03 November 2012, applicant filed a complaint (PDF) of Slow Case Processing by Supreme Court: Secretary General: Gunnar Bergby.
15 November 2012: Parliamentary Ombudsman Rules that Norway Supreme Court: Secretary General: Gunnar Bergby’s ‘Administrative Decision’ is a “Decision of a Court of Law’:
A. On 15 November 2012, the Parliamentary Ombudsman responded to Complaint on Supreme Court of Norway (PDF), declining to investigate it, because “the Storting's Ombudsman for Public Administration, section 4, first paragraph, litra c), decisions of the courts of law can not be handled by the Ombudsman”.
Contradictions between Parliamentary Ombudsman’s “Slow Case Processing” by Courts Administrative Officials of (a) 11 July 2012 Supervisory Committee for Judges: Secretariat: Espen Eiken, and (b) 15 November 2012: Supreme Court: Secretary General: Gunnar Bergby.
A. In the 11 July 2012 Parliamentary Ombudsman ruling: Lack of Response from the Supervisory Committee for Judges (PDF); in response to a complaint of Slow case processing from the Supervisory Committee for Judges, the Ombudsman’s directions were to “submit "a written request to Tilsynsutvalget for dommere, where you call for answers to your applications. If you do not receive a response to this request within a reasonable time, you can contact the Ombudsman, with an enclosed copy of the last request to Tilsynsutvalget for dommere."”
B. The Parliamentary Ombudsman clearly believed they had the authority to require the Supreme Court Administration: Supervisory Committee for Judges: Secretariat, to provide the applicant with due process, processing of her complaints against Judges Opsahl, Arntzen and Schei.
C. In the 15 November 2012 the Parliamentary Ombudsman responded to Complaint on Supreme Court of Norway (PDF); in response to a complaint of “Slow Case Processing by Supreme Court: Secretary General: Gunnar Bergby: Re: Request for Statute Granting Sec Gen Authority to make ruling on Legal Standing”; the Ombudsman’s directions are that “decisions of the courts of law can not be handled by the Ombudsman.”
D. Here the Parliamentary Ombudsman, chose to interpret the erroneous ‘locus standi’ administrative decision by Secretary General Gunnar Bergby, as a “decision of a court of law”, and hence to deny themselves the authority to require Secretary General Gunnar Bergby to provide Applicant with a response to her question requesting the Statute granting a Secretary General the authority to make a ruling on legal standing.
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