Conflicts of Crimes in Norwegian Criminal Law: Real and Ideal Concurrence

Introduction: When One Offender Commits Multiple Criminal Acts

In criminal law, situations often arise where one defendant has committed several criminal acts that are to be adjudicated together. This is called concurrence of crimes, or competition. Norwegian criminal law distinguishes between two main forms of competition:

1. Real competition: when the offender has committed several criminal acts that are adjudicated simultaneously

2. Ideal competition: when several crimes are committed in one and the same act

The rules on competition are significant for both the criminal law assessment and the procedural handling of the case. The Penal Code §§ 62-63 regulates sentencing in competition situations.

Real Competition: Multiple Separate Criminal Acts

Real competition exists when the offender has committed multiple separate criminal acts. This can be divided into:

• Homogeneous real competition: when the acts are of the same or related nature (e.g., multiple thefts)

• Heterogeneous real competition: when the acts are of a different nature (e.g., rape, robbery, and illegal sale of liquor)

One or More Crimes in Real Competition?

A key issue in real competition is whether multiple acts should be considered as one continuous crime or as several independent crimes. This can be decisive for:

• Sentencing ranges (§§ 62-63)

• Starting point for limitation (§ 68)

• The jurisdiction of Norwegian criminal law (§ 12)

• Procedural matters such as the drafting of the indictment, res judicata, and voting rules

Collective Crimes

Some penal provisions describe by themselves a continuous or complex activity, such as:

• "by neglect, abuse or other similar conduct often or grossly violate their duties towards spouse or child" (§ 219)

• "participates in an association" (§ 330)

• "engages in an activity" (§ 332)

Such crimes are called collective crimes. As long as the activity continues in conjunction, it is considered one and the same crime, even though it extends over time.

Continuous Crime

Even beyond collective crimes, it is common to combine several acts into one crime when carried out in an immediate context, e.g.,:

• Several insults against a person on the same occasion are assessed as one defamation

• Several blows as one assault

• Removal of several items as one theft

The issue becomes more complex when the acts are not performed in immediate context. The guidelines for whether a continuous crime exists are formulated as follows in case law:

"The question of whether one is dealing with one continuous criminal conduct or separate criminal offenses depends on an overall assessment, where temporal connection, association with the same place and a possible common intent are significant factors." (Rt. 1994 p. 203)

Examples from case law on what is considered one continuous criminal conduct:

• Café owner who, over a long period, illegally sold beer (Rt. 1940 p. 25)

• Father who repeatedly had sexual intercourse with his underage daughter (Rt. 1996 p. 60 and 2002 p. 917)

• Businessman who, over a long period, sold pornographic materials (Rt. 1980 p. 1532)

• Illegal hunting over a long period (Rt. 1990 p. 156 and 1990 p. 203)

• Extensive fencing activity (Rt. 1993 p. 1009)

Examples of cases where the acts are considered separate crimes:

• Five illegal sales of liquor at different times and to four different persons (Rt. 1923 I p. 609)

• A sergeant who over several years 8-10 times took oil from military stock (Rt. 1964 p. 787)

A continuous crime may also exist even if the acts involve different criminal provisions, e.g., in cases of sexual offenses against children that continue over time so that the matter changes character from § 195 to § 196.

Ideal Competition: Multiple Crimes in the Same Act

Ideal competition exists when the offender has committed several crimes in the same act. This can occur in two ways:

Heterogeneous Ideal Competition

Heterogeneous ideal competition is present when one act is covered by several different penal provisions, for example:

• Fraud using false document (§§ 270 and 183)

• Moose hunting in the closed season on another's property (protection legislation and § 407)

• Rape committed by a father against his 15-year-old daughter (§§ 192, 196 and 197)

Homogeneous Ideal Competition

Homogeneous ideal competition exists when the same penal provision is violated multiple times in one act, for example:

• The offender throws a bomb and kills several people

• A newspaper article contains defamatory allegations against several people

From the perspective of the Penal Code, each criminal offense is an independent crime even in ideal competition. This is stated in § 62, which speaks of someone "who in the same act has committed several crimes or misdemeanors".

Boundary Issues of Competition

One or Multiple Crimes in Homogeneous Ideal Competition?

In cases of personal rights violations (homicide, bodily offenses, and defamation), it is considered that there are as many crimes as there are injured persons. However, multiple violations of the same person by one act (e.g., several defamatory statements in the same newspaper article) are regarded as one crime.

In cases of violations of property values, the practice is more varied. Theft or destruction of objects belonging to several people on the same occasion is often viewed as one offense in the criminal law sense.

Competition Between Different Penal Provisions

When an act can be subsumed under several different penal provisions, the main rule is:

1. Ideal competition is applied when the provisions target different aspects of the criminal conduct. This applies even if the penal provisions have a common core.

2. Only the most encompassing penal provision is applied when an act that falls under one provision necessarily also falls under another, and one provision fully covers the other. This particularly applies to:

   • Compound crimes (e.g., aggravated theft by breaking and entering)

   • Violations that are similar in nature but different in degree (e.g., bodily harm and bodily insult)

In some cases, the law expressly prescribes that two penal provisions should not be applied alongside each other (so-called subsidiarity clause, cf. § 255, 2nd subsection and § 275, 3rd subsection).

Practical Importance

In Norwegian law, the question of whether an act constitutes one or several crimes often has less practical importance for the actual sentencing, as the sentencing ranges are usually wide enough for the court to impose an appropriate penalty regardless of the subsumption.

The question carries more weight in procedural contexts, such as in:

• Drafting of the indictment

• The res judicata effect of the judgment

• Voting rules in jury cases

It is generally assumed that which is, from a criminal law perspective, one continuous crime is also a matter in a procedural sense, and vice versa.

Comparison with Foreign Law

In foreign law, competition rules often play a larger role than in Norwegian law because other countries have less flexible rules on sentencing. In Norwegian law, broad sentencing ranges give courts considerable leeway to determine an appropriate penalty, irrespective of how the acts are classified.

Conclusion

The rules on the concurrence of crimes in Norwegian criminal law provide a flexible framework for handling situations where one defendant has committed multiple criminal acts. Classification as real competition or ideal competition, and further as one continuous or several independent offenses, has both substantive and procedural implications.

Supreme Court practice shows that the question of competition often relies on a concrete overall assessment, where factors such as temporal connection, locational association, and subjective intent are influences. The practical significance of classification is often greater for procedural issues than for sentencing itself in Norwegian law.