Bergen journal of criminal law & criminal justice - BJCLCJ

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University of Bergen
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Bergen journal of criminal law & criminal justice - BJCLCJ

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This open-access electronic journal aims at strengthening the communication between the Nordic criminal law science and the international arena. The main idea is to make Nordic criminal law research available for an international audience, as well as allowing international research to interact with a Nordic audience. Therefore, contributions in English are favoured, but text written in the Nordic languages and in German can be accepted as well. The journal is published with two issues per year, freely available for everyone.
Meine Notizen
Criminal Responsibility and Challenges in the Criminal Justice System for People with Intellectual Disability in Norway
The purpose of this article is to present and discuss Norwegian legislation concerning intellectual disability and criminal responsibility. Current legislation has an internationally unique feature, in that the rules governing criminal responsibility are based on what is known as the medical principle. This implies that criminal responsibility is determined by the defendant’s mental health status at the time of the crime. Norwegian criminal law does not require any causal or correlational relationship between the mental condition and the crime, as do most other jurisdictions. A brief description of historical perspectives and the Norwegian criminal justice system with regard to offenders with intellectual disabilities is also included.
Impending Danger: The Meaning of Danger as a Legal Requirement for Involuntary Psychiatric Treatment in the Norwegian Criminal Justice System
A proposal for the revision of the rule regulating involuntary psychiatric treatment of criminally insane offenders has been accepted by the Norwegian parliament. As a result, greater emphasis will be placed on the requirement of ‘danger’ in future decisions on whether criminally insane offenders shall be subjected to sanctions. This paper gives an overview of the rule in question and makes a preliminary analysis of the legal contents of the danger requirement. Possible problem-areas that have not been addressed in the proposal for revision are identified. The need for future research is explained.
Court-Ordered Compulsory Psychiatric Care and the Prosecutor’s Control Function
The health care system is responsible for the implementation of court-ordered compulsory psychiatric care. In order to ensure that the health care system fulfills the statutory responsibility for crime protection, the legislature has added a control function to the prosecuting authority. Case law shows that the courts place emphasis on this control function in assessing whether court-ordered compulsory psychiatric care is necessary to protect society. This article highlights the prosecution’s legal remedies and professional prerequisites for fulfilling the control function.
A Revisionary Theoretical Framework of Responsibility: A Philosophical Exploration of Incapacity for Responsible Behaviour (utilregnelighet)
The article presents the main features of a theory of responsibility and the conditions that determine who can and cannot be held responsible, with a focus on different types of incapacity for responsible behaviour. The article has four parts. The first three parts answer the following questions: what is responsibility; what is capacity for responsible behaviour; and, what is incapacity for responsible behaviour. Part four answers some possible objections. The answers are based on Antonio Damasio’s understanding of the mind, Manuel Vargas’ revisionary theory of responsibility, and previous work by the author on free will.
Criminal Insanity, Psychosis and Impaired Reality Testing in Norwegian Law

How mental disorder relates to criminal insanity is a contested matter. Norway has a tradition of using a ‘medical model’ for the definition of criminal insanity that is unique in an international perspective. According to this model, insanity is determined only in relation to a medical criterion, so that all that is required is the presence of a qualifying mental disorder. Criminal insanity is, under the current rule, equated with psychosis, although this rule has recently been subject to a law reform.

This article explains and discusses this medical model by gathering together legal, forensic, and clinical empirical perspectives on the legal meaning and relevance of psychosis. The article will provide an explanation of the background of the medical model in Norwegian law, and the justifications for tying criminal insanity to psychosis. It will also explain how criminal insanity is operationalised in forensic practice, and discuss the legal conceptualisation of psychosis from a medical perspective. A main conclusion is that the legal meaning of psychosis is unclear, and the authors describe several challenges in legal and forensic practice. The authors emphasise the need for further knowledge development in the intersection between law and medicine.

The Insanity Defence: How Do We Handle Doubt?

This paper discusses how the legal definition of criminal insanity has been altered several times in the Norwegian criminal law, most recently in June 2019. There are difficulties in communicating between psychiatric experts, legal experts, and lay judges, since the description and understanding of psychotic cognition as well as the definition of legal terms are not equally understood.

Not all insanity cases are clear-cut. The Norwegian forensic experts must not conclude that the charged person is considered ‘psychotic’ in the legal sense if they are not clinically sure of this. The courts, on the other hand, must not conclude that a person is ‘sane’ if there is doubt about this. This paper discusses how there is little practical knowledge of how experts and courts handle such doubts, and highlights the lack of discussion of these questions in the legal sources.

Criminal Insanity: Concepts and Evidence
The article presents an analytical model of possible legal concepts of criminal insanity and highlights evidential aspects of these concepts. The framework is used to differentiate between insanity rules from different jurisdictions, and to explain the recent amending of the Norwegian rule on criminal insanity. The arguments made are general and of relevance to all types of legal regulations on divergent mental states.
#MeToo - Implications for Criminal Law?
MeToo became a powerful social movement, and the accusations of sexual misconduct destroyed the careers of many persons. In its first part, the article critically examines #MeToo, concluding that the naming and shaming of individuals in social media is a problematic instrument of social control. The second part analyses changes in criminal laws on sexual offenses, for instance the new German law on sexual assault. The traditional model of sexual assault and rape that emphasizes violence deserves criticism. For contemporary criminal laws, the focus must be on consent and communication. The article discusses the merits and disadvantages of “No means No” and “Only Yes means Yes” as starting points for law reform.
To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland
According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power.
Increasing Salience of Crime Control in Finnish Parliamentary Data from the 1970s to the 2000s

In Finland, a post-war expansion of the welfare state was associated with a decline in the use of imprisonment. The 1990s marked the beginning of a more ambivalent era in Finnish criminal justice. How does this turning point appear in the public discourse on crime by political decision-makers? All parliamentary questions and members’ initiatives from 1975 to 2010 were examined with a keyword-based quantitative search, and further content analysis was conducted on data made up of 1589 written parliamentary questions about crime control from 1970 to 2010. The relative prevalence of criminal policy issues rose significantly in the early 1990s. During the same period, the political initiative moved towards the right and the views of the left seemed to move closer to the right concurrently. Although stances became tougher, expressions of leniency were in the minority before the 1990s too, which stresses the significance of the general level of political attention itself. Developments regarding specific types of crime are discussed.

Keywords: Criminal justice, penal policy, legal history, parliamentary democracy, political parties, Finland.

The Dual Penal State á la Markus Dirk Dubber
Functionality of the Criminal Justice System: A research programme in Bergen 2011 – 2018
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