Loss of Rights in Norwegian Criminal Law: An Overview of Content and Conditions

Loss of rights represents a distinct penal reaction in Norwegian law, entailing that a convict is deprived of certain rights for a specified period or permanently. This article provides an overview of the rules regarding loss of rights, including its nature, main types, conditions for imposition, and duration.

The Nature of Loss of Rights

In the legislation from the era of absolute monarchy, punitive measures affecting honor played a significant role, but these were abolished by the Criminal Law of 1842. However, criminal legislation continued to include rules concerning various forms of loss of rights. An amendment law of 22 May 1953 No. 3 significantly restricted the use of loss of rights, and the former "loss of civil rights" disappeared entirely.

The purpose of the current rules on loss of rights is not to affect the convict’s honor, but to prevent the individual from holding positions or exercising rights or professions for which they have demonstrated unfitness through their criminal behavior. This distinguishes loss of rights from other penalties such as imprisonment and fines, where the central aim is to impose a penalty as a reaction to the offense.

According to the terminology of the Penal Code, the loss of rights is still a penalty—meaning that prosecution aimed at imposing loss of rights under the Penal Code constitutes a "criminal charge" in relation to the European Convention on Human Rights (ECHR). Loss of rights can also be subject to pardon.

Loss of Rights as Principal Penalty

Two types of loss of rights can be imposed as a principal penalty under Section 29 of the Penal Code:

1. Loss of Public Office

This concerns the loss of "public office for which the guilty party has demonstrated unfitness or unworthiness through the criminal act." It is not necessary for the criminal act to have occurred in the line of duty; if a police officer or teacher is guilty of burglary or rape, there may be grounds for dismissal from the position.

What constitutes being "unfit or unworthy" for the position must be assessed specifically based on the nature of the position and the offense. For police officers, the Supreme Court has emphasized the importance of being able to act with authority and being met with trust.

Loss of position is a harsh legal consequence, and according to the introductory words of Section 29, loss of rights can only be imposed "when public considerations require it." Special caution is necessary when considering the dismissal of elected officials, such as members of the Parliament or municipal councils, who have been chosen through direct elections.

2. Loss of the Right to Hold Position or Exercise Profession

According to Section 29 No. 2, there is an option to deprive someone of "the right to hold a position or exercise a profession or occupation for which they have demonstrated unfitness through the criminal act or are feared to abuse or which especially requires public trust."

Before the legal revision in 1953, this option was limited to specific, enumerated professions. The rationale for making the deprivation option general was that any enumeration must necessarily be arbitrary and insufficient and would fall short against developments. However, it was also expressed here that the provision should be applied with caution.

An important factor in the assessment is whether the criminal conduct was committed in connection with the profession to which the question of loss of rights relates. However, even if the conduct was not linked to the exercise of the profession, it may, due to its nature and severity, be so damaging to the trust the profession requires that loss of rights must be imposed.

It is not only the right to professional activity that can be deprived but also other types of activity. In several cases, the Supreme Court has imposed loss of the right to engage in hunting.

In professions that "particularly require public trust," deprivation can occur without evidence that the guilty party has demonstrated unfitness for the profession or that there is reason to fear future misuse of the profession. Professions of this qualified nature include roles such as lawyer, doctor, or teacher.

Regarding the duration of deprivation, the law provides a specific rule: The deprivation can be imposed for a certain period of up to five years or permanently—but not, for example, for 10 or 15 years. The idea is that if the offense is not of such a nature that deprivation should be permanent, then deprivation for at most a few years should suffice.

A person deprived of the right to engage in an activity cannot also undertake such activity on behalf of another. They may also be required to surrender documents or objects that served as evidence of a deprived right, such as certificates, licenses, or hunting permits.

Loss of Rights Instead of Other Penalties

Loss of rights often accompanies a custodial sentence or a fine. However, losing one's position or the right to practice one's profession can in itself be such a severe reaction that no additional penalty is necessary. Therefore, Section 15, Subsection 4, of the Penal Code states that loss of rights can replace another penalty, except when the minimum prescribed punishment for the act is a custodial sentence of one year or more.

The Supreme Court has highlighted in several cases that loss of rights and other penalties must be considered together, to ensure that the overall reaction is not too severe.

Loss of Rights as Additional Penalty

Certain rights can be deprived as an additional penalty under Sections 30 and 31:

1. The Right to Serve in the Military

The right to serve in the national armed forces (military service) can, according to Section 30, be deprived of the guilty for life or a specific period when, due to the criminal act, it is presumed to be contrary to the defense’s interests for them to serve. The purpose is to remove adverse elements who would otherwise be called up during mobilization or for military exercises.

In practice, the option to deprive military service is used very rarely, except for repeated violations of military penal law Section 35 concerning refusal to fulfill military obligations.

2. Voting Rights

Section 31 of the Penal Code provides, in certain cases, the option to deprive "voting rights in public matters." The option to impose loss of voting rights is now only maintained for violations of Chapters 8, 9, and 10 of the Penal Code (treason, rebellion, and electoral offenses).

Formerly, legislation included rules on the loss of "civil rights," which encompassed both voting rights and access to public office. These rules were criticized for being unfavorable in terms of criminal policy and were repealed by the revision in 1953.

The loss of voting rights leads, according to the Constitution, also to the loss of eligibility for election to the Parliament, and the same applies to eligibility for county council or municipal council under the election law.

Commencement and Duration

"A deprived right is lost from the day the judgment becomes final" (Section 32). A judgment is final when the ordinary appeal period has expired. Thus, a person deprived of a right in the lower court retains the right until the judgment becomes final.

The period for a time-limited loss of rights does not run while the convict is serving a custodial sentence imposed in conjunction with the loss of rights. The same applies if they evade serving the custodial sentence.

Prohibition of Residence

Under certain conditions, a prohibition of residence can be imposed as an additional penalty according to Section 33. A person who has committed a criminal act can be prohibited by judgment from residing in certain areas if the act indicates that their presence there may pose a particular danger or nuisance to others.

The provision specifically targets cases of domestic violence, where a former spouse or partner cannot leave the victim alone. However, the provision has broader reach and can, for example, be applied to someone convicted of threats or invasion of another’s privacy.

The area for the prohibition must be specified in the judgment. Section 33, Subsections 2 and 3, of the Penal Code provide rules on the ability to amend or lift the prohibition. Violation of the prohibition is punishable according to Section 342.

A prohibition of residence under Section 33 does not take effect until the judgment is final. Since there can sometimes be a need to impose a prohibition quickly, Section 222a of the Criminal Procedure Act grants the prosecution authority similar power to impose a prohibition on residence in a specific place or contact with another person. Such a prohibition takes immediate effect, but the prosecution must bring the matter before the District Court, which will decide the issue by ruling, as quickly as possible and no later than three days after the decision.

Conclusion

Loss of rights signifies a specific form of reaction in Norwegian criminal law, which primarily does not aim to impose a penalty but to prevent individuals from holding positions or exercising activities for which they have demonstrated unfitness. The reaction should be applied with caution and only when public considerations demand it. Simultaneously, case law shows that loss of rights can be an effective reaction both on its own and in combination with other penalties, especially in cases where the convict has demonstrated unfitness for certain positions or activities.