Conditional Sentence in Norwegian Criminal Law: An Overview of Conditions and Application

Conditional sentences are considered the most important innovation in criminal law in recent times and today represent a central form of punishment in Norwegian criminal law. Norway was the first country in the Nordic region to introduce conditional sentences, as early as 1894. The institution was primarily introduced as an alternative to short terms of imprisonment for occasional offenders, particularly young offenders, but has since broadened in scope.

What is a conditional sentence?

In a conditional sentence, the convicted individual has the opportunity to avoid serving the sentence if they remain law-abiding during a specified probationary period and comply with any special conditions. The idea is that the convicted person is spared the imprisonment and its social consequences, while also having a special motivation to stay on the right path in the future.

Two forms of conditional sentences

There are two main forms of conditional sentences:

1. Suspension of Judgment (postponement of sentencing): The court only decides the question of guilt, while the determination of the sentence is postponed. If the convicted individual succeeds in meeting the conditions, no sentence is imposed. This form is the original Anglo-Saxon model.

2. Suspension of Execution (postponement of enforcement): The sentence is determined in the usual way, but the enforcement is postponed. This is the continental model chosen when the institution was introduced in Norway in 1894.

Since 1955, Norwegian courts have been able to choose between both forms. The traditional form, suspension of execution, still dominates in practice and accounts for over 99 percent of all conditional sentences. However, suspension of judgment is considered the mildest form of conditional sentence.

Prerequisites for granting a conditional sentence

The Penal Code today does not provide specific limitations on when the court can grant a conditional sentence. Previously, only those with no prior convictions could receive a conditional sentence, and it was limited to short terms of imprisonment, but these restrictions have been gradually relaxed and are now completely removed.

The court is therefore free in its assessment of whether a conditional sentence should be given and what form it should take. However, case law has developed norms that limit this freedom.

Central considerations in the assessment are:

1. General preventive considerations: For many types of offenses, the Supreme Court has established that unconditional imprisonment should be used unless there are special circumstances justifying exceptions. This applies, among others, to violence against police, failure to report for military service, negligent homicide, and very serious traffic offenses.

2. Individual preventive considerations: For theft and other common property crimes, it has become standard practice that the sentence is made conditional for those without prior convictions unless it involves particularly large sums or there are specifically aggravating circumstances.

3. Rehabilitation considerations: If there is reason to believe that the offender is in a phase of rehabilitation that may be interrupted by imprisonment, the Supreme Court often goes to great lengths to grant a conditional sentence.

4. Defendant's situation: Circumstances outside the criminal act can be significant, for example, if the accused has care responsibilities or if imprisonment would threaten the family's economic basis of existence.

5. Time lapse: If a long time has passed since the act was committed, it may argue for a conditional sentence.

Partially conditional sentence

In addition to a sentence being either fully conditional or fully unconditional, the law allows for:

1. Dividing an imposed prison sentence into a conditional and an unconditional part. This is particularly practical when the indictment involves several criminal acts of different nature.

2. Imposing an unconditional fine alongside a conditional prison sentence, even if fines are not prescribed as punishment for the offense.

The option to make a sentence partially conditional is increasingly used in Norwegian legal practice.

Probationary period and terms

In a conditional sentence, a probationary period is set, which generally should be two years. In special cases, a longer probationary period can be set, but not exceeding five years.

The most important condition for a conditional sentence is that the convicted individual refrains from new criminal acts during the probationary period. Additionally, special conditions may be set, such as:

1. Reporting duty to the police

2. Conditions regarding residence, work, or education

3. Abstinence from alcohol or other intoxicants

4. Completion of treatment

5. Alcohol program for those convicted of driving under the influence

6. Payment of compensation to victims or other injured parties

7. Payment of maintenance contributions

The convicted individual must be given an opportunity to express their views on the conditions in advance. This is important so that the offender perceives the conditions to be reasonable and appropriate.

Consequences of breaching conditions

If the convicted person breaches the conditions of the conditional sentence, the court has several alternatives:

1. In case of breach of special conditions, the court can decide that the sentence be enforced in whole or in part. Alternatively, the court can set a new probationary period and new conditions.

2. In case of a new offense during the probationary period, the court can issue a combined sentence for both acts or a separate sentence for the new act. The court is free to make whichever decision it finds most appropriate.

In practice, the option to grant a new conditional sentence is often used, especially for young property offenders. But also for older, frequently sentenced offenders, the court may grant a new conditional sentence if it finds positive indications that this will provide the best chance of keeping the accused on the right path.

The effect of passing the probation

If the convicted individual passes the probation, the responsibility under the conditional sentence is extinguished. A conditional sentence is still recorded in the criminal register under the same rules as an unconditional sentence. In other contexts, the effects of a conditional sentence do not attach to it as they do to serving a prison sentence, for example when considering repeat offenses.

Conclusion

The conditional sentence is an important tool in Norwegian criminal law today. It allows courts to tailor the punishment to the individual offender and situation and can, in many cases, be a better alternative than unconditional imprisonment. At the same time, it is important that the use of a conditional sentence is balanced against the need for general deterrence and the general public's sense of justice.