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Hussain v. The Norwegian Prosecution Authority

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    June 22, 2015
  • Outcome
    Affirmed Lower Court, Acquittal
  • Case Number
    14-0499903AST-BORG/01; 14-174730AST-BORG/01
  • Region & Country
    Norway, Europe and Central Asia
  • Judicial Body
    Appellate Court
  • Type of Law
    Criminal Law
  • Themes
    Hate Speech
  • Tags
    Terrorism, Internet, Threatening Statements, Extremist Speech, Journalism, LGBTI, Gender Identity/Sexual Orientation, Anti-Semitism, National Security

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Case Analysis

Case Summary and Outcome

Norwegian national Arslan Ubaydullah Maroof Hussain was a spokesperson for the Profetens Ummah, an Islamist extremist group based in Norway. After making a series of public statements on social media from 2012 to 2013, Hussain was arrested and faced several criminal charges under the Norwegian Penal Code for: (1) making threats during a criminal proceeding; (2) making threatening, discriminatory or hateful expressions against Norwegian Jews; (3) publicly supporting the stoning of a lesbian woman of Muslim faith; (4) praising terrorist acts; and (5) threatening two Norwegian journalists who had covered the activities of Profetens Ummah group.

In 2014, the Oslo Magistrate’s Court acquitted Hussain of the charges brought under §§ 135(a) and 147(c), respectively, for making a discriminatory or hateful expression against the lesbian victim of assault and his public admiration of terrorist attacks. On all other charges, the court sentenced Hussain to 120 days in prison. On appeal, the Borgarting Court of Appeals upheld the acquittal verdicts, in part due to lack of unanimity among the justices.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.


Facts

Arslan Ubaydullah Maroof Hussain was born on August 20, 1985 to Norwegian-Pakistani parents. Since the establishment of the Profetens Ummah, an Islamist extremist group based in Norway, Hussain had been a central figure of the group, and throughout 2012, he served as its spokesperson. According to the Norwegian Police Security Services (PST), the Profetens Ummah has on numerous occasions expressed support for terrorist organizations and their attacks, including the Islamic State and al-Qaida. It is also alleged that the group has been involved in recruiting Norwegian Muslims to travel to Syria and Iraq and to fight alongside of the Islamic States or al-Nusra Front.

Hussain was criminally charged under Norway’s Penal Code § 147(d) for providing material support to terrorist organizations, including the recruitment of Norwegian Muslims to join Islamic State in Syria. According to his own account, Hussain became attracted to Salafi-Jihadism through correspondence with Omar Bakri Mohammed, the former leader of the proscribed al-Muhajiroon. As a spokesperson for Profetens Ummah, Hussain also had extensive contact with Anjem Choudhary, a controversial British Muslim who has also been recently charged with inviting support for the Islamic State.

In 2013, Hussain was charged by Norwegian prosecuting authorities for making threats during a criminal trial before the Borgarting Court of Appeals. He attended the public trial of Najumuddin Faraj Ahmad, former leader of the salafi-jihadistt who in 2007 was declared a threat to national security by the Norwegian Supreme Court. During a recess, Hussain referred to an expert witness for the prosecution and a terrorism researcher at the Norwegian Defense Research Establishment as a “swine” and declared that “[b]y the Almighty Allah’s will, you will burn in hell and in this world” and “In sha Allah, the Muslims will assume responsibility.” Hussain was subsequently charged under Penal Code § 132 (a) for the use of “violence, threats, damage or other unlawful conduct aimed at a participator in the administration of justice or any of his next-of-kin.”

Hussain was also charged with two criminal felonies under Penal Code § 135(a) (discriminatory or hateful expression) and § 185 (falsification of a public record) after sharing a newspaper link on the Jewish community in Norway on a Facebook page affiliated with the Profetens Ummah group. As the link primarily concerned the lack of adequate protection of Jews, Hussain made the following comments: “I will provide them with protection, in sha Allah [if Allah wills], as soon as I get a hunting license and acquire an AK47. These bastards belong to an occupying force, Israel, and have additionally occupied our mosque, al-Aqsa. Ya Allah, drive the dirty Jews out of our mosque and provide us all with an opportunity to make salah [the prayer] in al-Aqsa before our deaths. Amin!!” The felonies also arise out of another Hussain’s Facebook comment in November 2012, regarding a violent assault by Norwegian-Somali women against a lesbian woman of Muslim background in the streets of Oslo. Hussain expressed his view that “they [the assailants] should have stoned her to death, since homosexual practice shall be punished by death.”

In a later criminal case in 2013, the Norwegian prosecution authorities charged Hussain with violating Penal Code § 147(c) for publicly inciting an individual to commit murder with the purpose of creating fear in public or illegally forcing public authorities to undertake, tolerate or accept something of crucial importance to the country. This felony charge related to his alleged expression of support for and praising of terror attacks in different parts of world, including 2013 terrorist attacks in In Amenas, Algeria, the Boston Marathon bombing in the United States, and the Westgate terrorist attacks in Nairobi, Kenya.

Hussain was also charged under Norwegian Penal Code § 227 (threatening to commit a criminal act) after making threats against two Norwegian journalists who were covering cases related to the activities of the Profetens Ummah group for two mainstream newspapers Dagsavisen and Aftenposten. Hussain on two separate occasions during October of 2012, allegedly sent threatening emails to the journalists.

On February 7, 2014, the Oslo Magistrate’s Court acquitted Hussain of uttering a discriminatory or hateful expression against the lesbian victim of assault, but sentenced him to 120 days imprisonment for his hateful speech directed at Norwegian Jews, for threats made during the criminal trial, and for two counts of threats against journalists.

Later on October 3, 2014, the court further acquitted him of charges brought under Penal Code § 147(c) of terrorism related offenses. Subsequently, the Norwegian Prosecution Authority appealed the court’s acquittal orders to the Borgarting Court of Appeals.


Decision Overview

The appellate review of the acquittals took place from June 9-12, 2015. While being present, Hussain refused to testify, leading the Borgarting Court of Appeals to admit his statements obtained from four separate police interrogations, as well as his trial testimony on January 27, 2013.

On June 22, 2015, the Court affirmed the lower court’s acquittal verdicts. With respect to Hussain’s criminal felony under Penal Code § 147(c) on terrorism, the Court saw it necessary to carefully examine his statements. By referencing to a 2002 Supreme Court case (Rt. 2002), it emphasized that “concerns relating to freedom of expression” implies that “no one should risk criminal liability by means of attributing a substantive meaning to expressions, which have not been clearly expressed and therefore cannot with reasonably great certitude by deduced from the context.” While agreeing that it was reasonable for the readers of Hussain’s Facebook posts to understand the expressions as eulogies for the described events and their perpetrators, the Court held that based on the principles of legality and concerns relating to freedom of expression, his impugned statements in support of terrorism did not constitute punishable offenses under § 147(c).

With respect to the charges brought against Hussain for threats against two Norwegian journalists, the Court held that because of the concerns relating to both freedom of expression and the media’s specific role as a facilitator of public debate, journalists must be afforded with a special protection against such threats. The Court also considered the corresponding charges under § 227 to be the most serious offenses brought against Hussain, which alone merit five months imprisonment. It indeed upheld the verdict against Hussain on those charges. Meanwhile, the Court noted that the original prison sentence of 120 days was too lenient. Despite of that, the Court upheld the prison term in light of the fact that there had been undue delays in prosecuting him. The formal trial proceedings began more than two years after the commission of the crimes.

With respect to the charges for making hate speech against the lesbian victim of assault, the Court’s majority rejected Hussain’s argument that his statement was not directed at the victim. For the majority, his statements implied that the woman’s assailant should have gone further in the violence perpetrated against the victim due to his belief that homosexuality ought to be punished by stoning in Islam. The majority further held that the statement was not protected under the constitutional right to freedom of religion on the grounds that such online expression could not be deemed as an activity in the core ambit of the free exercise of religion. The Borgarting Court of Appeal’s minority, on the other hand, noted that the prosecution had failed to prove beyond a reasonable doubt that Hussain actually knew the victim. It also accepted his claim to the effect that he only meant to give expression to his views on “proper” punishment of homosexual conduct under Islam. In accordance with Norwegian laws on due legal process in court – Straffeprosessloven, § 35 Section 1 – which requires a minimum of five votes in a court of appeals to conclusively determine a criminal defendant’s guilt, the minority’s view prevailed, and therefore Hussain was acquitted for those charges.

 


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Nor., Constitution of Norway, art. 100 (freedom of expression)
  • Nor., Penal Code § 135(a) (discriminatory or hateful expression)
  • Nor., Penal Code § 185 (discriminatory or hateful expression; replaced Paragraph 135 (a) as of October 2015)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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