Apr 16, 2025
The Scope of Complicity Liability in Norwegian Criminal Law
Norwegian criminal law has chosen a legislative technique for complicity liability that differs from the criminal justice systems of most other countries. Unlike systems that have general provisions on criminal liability for cooperating in criminal acts, our penal code answers the question of the accomplice's criminal liability through provisions in the individual criminal statutes. The general part of the Penal Code contains only one provision on complicity (§ 58), which solely regulates sentencing in cases where the criminality of the complicity has already been established.
The Different Types of Criminal Statutes
Looking at the individual criminal statutes in the law, these can be divided into three main categories:
1. Criminal statutes that explicitly mention complicity
In most serious crimes, the criminal statutes explicitly mention complicity. In these cases, not only the person who falls under the principal description of the crime is affected, but also everyone who has contributed in some way. Whether the complicity is of a mental or physical nature or whether it occurred before or simultaneously with the principal's action is irrelevant.
The penalty range is almost always the same for complicity as for the main offense. This means that it holds little legal interest to draw a sharp line between the principal offender and the accomplice—it becomes primarily a sentencing factor.
2. Criminal statutes that do not mention complicity
When complicity is not mentioned in the criminal statute, it depends on the interpretation of the individual statute whether it only targets those who have performed the actual executing act, or whether it also encompasses accomplices.
In some cases, the act is described so narrowly that an accomplice will not be captured. For example, § 385, which penalizes the person who "draws a knife during a fight," does not affect an outsider who encourages a participant to draw a knife or someone who hands him the knife.
In other cases, the law is so general in its terms that it includes not only the executing act but also several or fewer acts of complicity. The decisive factor for criminal liability is not whether an act can be characterized as the principal act or as complicity but whether it is naturally interpreted as being covered by the statute.
The fundamental Supreme Court decision on this is found in Rt. 1936 p. 612, where the leading judge concluded: "If the law's description of the act's content is so generally formulated that the law, according to a natural interpretation, encompasses the action even when it would linguistically be described as complicity, the person is to be punished under the provision, even though complicity is not mentioned in the statute, unless there are particular reasons to give the statute a narrower scope."
3. Criminal statutes that only mention certain forms of complicity
In some cases, the criminal statute does not mention complicity generally but only certain forms of complicity, such as "instigation" or "instigation and encouragement." Here, firstly, all those directly falling under the legal description of the act are targeted, and secondly, the forms of complicity mentioned in the statute, but not others.
Requirements for the Significance of Complicity
There has been discussion about whether the complicity must be causally related to the result. It is not required for criminal liability that the complicity was necessary for the result. It is sufficient that there is a contributing causal relationship.
For example, a person who acts as a lookout during a burglary is responsible for complicity, even if the theft would have taken place in the same manner without his lookout service. The decisive factor is that he participated in the undertaking.
Mental complicity can consist of "encouragement" or good advice. It does not require proof that the principal would not have committed the act without the complicity. It is sufficient that the resolve is strengthened, or that the advice has been significant for the planning or execution. It is not even an excuse that the advisor's advice was unfortunate—as long as they have been part of the course of action, the advisor has been complicit.
If an encouragement works against its purpose, or the advice is immediately dismissed as useless, then there is only an attempt at complicity.
Particularly About Passivity and Mental Complicity
For mental complicity to exist, it is not sufficient that a person through words or actions expresses that they do not mind that the act is carried out. Being an interested spectator is not complicity—a positive encouragement is generally required.
The Supreme Court has in several cases (e.g., Rt. 1926 p. 581 and Rt. 1957 p. 476) stated that a passive attitude cannot be regarded as punishable complicity, even if one can infer approval or acceptance of the act from the passive person.
When Passivity Can Still Constitute Complicity
If a person has a special duty to prevent the criminal act, the situation can be different. For those who have a special duty to intervene, a positive encouragement for complicity liability is not required; it may be enough that they express they do not mind the act.
In some cases, an omission by the superior to intervene can already be interpreted as consent, and if the superior is aware of this, it must be regarded as mental complicity. A tacit or express consent from someone who has a special duty to prevent the criminal act removes one of the usual barriers to the crime.
This was illustrated in Rt. 1998 p. 1679, where alcohol was illegally served in the premises of a motorcycle club. The Supreme Court concluded that the members could be punished for complicity, as their presence and lack of protest amounted to a tacit approval of the serving.
Distancing from Complicity Liability
If two or more agree to commit an offense, but one has second thoughts about the execution, this does not automatically exempt them from liability for mental complicity. The Supreme Court stated in Rt. 1984 p. 1300 that anyone who has participated in the decision to commit a crime must "in a clearer way have distanced themselves from the criminal act" to free themselves from complicity liability.
In another ruling, Rt. 2002 p. 1717, a person was convicted of premeditated complicity to murder after providing weapons, even though she did not participate in the murder act itself. When she soon after handing over the guns considered it highly likely that the murder plans were seriously intended but did nothing to retrieve the guns or counteract their use, she was guilty of premeditated complicity by her omission.
Negligent Complicity
In the Penal Code of 1902, complicity is not mentioned in any of the statutes directly targeting negligent offenses. For example, § 233 on intentional homicide is directed at those who cause another's death or contribute thereto, whereas § 239 on negligent homicide addresses those who cause another's death through negligence, without mentioning complicity.
In special legislation, however, it is common for the penal provisions to also target negligent complicity, and in the penal code itself, some newer provisions are formulated such that they also cover those who are complicit through negligence.
A practically important form of negligent complicity, especially in business law violations, is when a superior fails to ensure that subordinates comply with legal rules.
Special Cases
Complicity by Criminal Omission
Complicity is declared punishable also in certain cases where the principal's offense consists of a criminal omission. Here, complicity is usually of a mental nature (inducement or encouragement).
Anyone who prevents a rescue operation, however, may incur greater responsibility than just complicity. If A attempts to save a drowning person, and B prevents him, B has caused another's death and can be punished for murder.
"Necessary Complicity" by the Victim
For some crimes, a certain complicity on the part of the victim is required. For example, usury involves a contract between the exploiter and his victim. Naturally, the victim cannot be penalized for complicity.
The situation is different when a transaction between two parties is prohibited because it contravenes public interests, such as an illegal sale of spirits. Here, the natural interpretation of the law would be that the buyer is not affected when the law only targets the sale and complicity to it.
Complicity in Printed Publications
For criminal acts perpetrated in printed publications, the usual rules of complicity apply. However, there are two special rules:
The Penal Code § 431 intensifies the editor's duty of care, as he can be punished even if he was unaware of the content unless he can prove that nothing can be held against him concerning control.
The Penal Code § 254 limits the liability for defamation in newspapers or magazines so that it does not include those who only participated in the technical production or distribution.
Assessment of the Law's System
The law's system of specifying complicity liability in individual criminal statutes ensures, in principle, a careful assessment of how far the criminal threat should extend in each case. In practice, however, it seems somewhat arbitrary where the complicity addition is included and where it is missing.
For the formulation of each criminal statute, the law's system presents a disadvantage. The descriptions of the crime become more complex than necessary when the complicity addition must be included in each statute instead of being regulated through general provisions in the law's general part.
The penal code commissions have in their draft proposals for a new penal code suggested a transition to a system with a general provision on complicity in the law's general part, which would also apply in cases of violations of special legislation unless otherwise determined.
The fact that the penalty range is generally the same for the principal and the accomplice simplifies the application of the law. One avoids difficult delimitation issues between different categories of participants, as experienced under the former criminal code of 1842.
Conclusion
The liability for complicity in Norwegian criminal law has a unique structure that distinguishes it from many other legal systems. Although there are certain challenges with the system, it provides the courts with flexibility to assess each case concretely while maintaining fundamental criminal justice principles such as legality and culpability.
The general tendency is that complicity is punishable in all serious crimes, while minor violations often limit liability to the principal offender. This reflects a balance between the need to target all participants in serious crime and the consideration to not extend criminal liability unreasonably far for minor offenses.
