6.4. Mr. A’s contribution
6.4.1. The factual contribution
The indictment was based upon the physical contribution to reactivation of the vessel of Mr. A and/or his inducement to others to participate in the process. In order to evaluate the facts, it was necessary to open with some introductory remarks on what punishable contribution is. The Court of Appeal quoted from the Supreme Court:
“Neither is it required that the acts of the contributor have been necessary for the result. It is sufficient that there is a contributory causal relation … Precisely what is required, may in some instances be doubtful. As in the general stipulation in the Penal Code of 2005 Section 15, the Penal Code of 1902 Section 162 Subsection 5, a precise lower limit for what can be accepted as an act of contribution is not expressed. In doubt it may be decisive whether the act in question is of such a character and have such dimensions that it is natural to attach penal liability thereto … “ (HR.2020-1681 Section 14).
In deciding whether Mr. A’s acts came within the Penal Code Section 15, the Court of Appeal could not agree.
The majority (5 of 7) gave a detailed description of Mr. A’s participation in preparing the vessel for the sea voyage and summed up in this way:
“The Court of Appeal’s majority finds that the acts which it is proven that the defendant has performed and caused others to perform, are in a contributory causal relation to the attempt to export the vessel. They were not a necessary condition for the export of the vessel, but there is a near connection between the extensive support given and the attempt to export the vessel. The contributory acts caused in fact that the vessel was made ready considerably quicker and at a considerably lower price, compared to what would have been the situation if Wirana/Julia Shipping had had to perform all work using its own employees and external suppliers. The contributory acts are therefore at the outset, of such a character, extent and penal worthiness, that it is natural and necessary to apply penal sanction thereto. There is, however, a connection between this consideration and the general limitation on what is punishable [Norwegian: rettsstridsbegrensningen], to which the majority will revert.”
The minority (2 judges) meant that it had not been proven, “beyond reasonable doubt”, that the contribution from the Norwegian side in preparing the unlawful export was given by Mr. A personally.
6.4.2. The requirement of “intention”
The Penal Code Section 21 says that the criminal legislation “only applies to intentional offences unless otherwise provided”. Accordingly, the majority discussed whether this requirement was satisfied, and the conclusion was that the explanation given by Mr. A was not accepted. The majority concluded that Mr. A must have known that Wirana’s intention was to have the vessel scrapped in a country outside the OECD regulation – most probably also with knowledge that such export was not allowed.
6.4.3. The reservation regarding “respectable and daily” acts of contribution
Mr. A also pleaded that his acts of contribution were so “respectable and daily” that they were not a punishable breach of law.
The Court explained that contributory acts often have a “more normal and innocent character” than the acts described in main penal stipulation, implying that such contributory acts are not punishable. The decision depends upon an evaluation of the degree of freedom that the contributor shall be allowed, without trespassing on other freedoms that the relevant punishment stipulation protects. The guideline is whether the act of contribution represents “an unacceptable risk and is qualified blameworthy”.
In this case the acts of contribution were – when considered in isolation – ordinary and legal. But here Mr. A and his company had a
“long-lasting and close connection to the vessel, good knowledge of the concrete scrapping and the problems connected to such unlawful export of waste …Even though the contribution consists of isolate seen ordinary and lawful acts, they are, due to the character and closeness to the main offence, clearly blameworthy and punishable”.