The scope of the Penal Code in space and time: Central principles and rules

The provisions of the Penal Code regarding its scope determine when Norwegian penal law can be applied to acts committed abroad or by foreigners, as well as which law should be applied when the legislation changes between the time of the offense and the time of the judgment. These rules form the foundation for Norwegian jurisdiction in criminal cases and are crucial for legal certainty.

The Territorial Scope of the Penal Code

The Principle of Territoriality as a Starting Point

The natural starting point is that each state punishes crimes committed on its own territory, regardless of whether the perpetrator is a citizen or a foreigner. This is called the principle of territoriality and is enshrined in Section 12, Paragraph 1, Number 1 of the Penal Code.

The principle covers acts performed:

• On Norwegian territory, including the territorial sea

• On the Norwegian continental shelf (oil activities)

• On Norwegian vessels on the high seas

• On Norwegian aircraft outside areas subject to any state's sovereignty

It is noteworthy that "in the realm" also includes acts committed aboard foreign ships in Norwegian waters, although the prosecution authorities will often refrain from pursuing cases where Norwegian interests are not affected.

The Principle of Personality

According to Section 12, Paragraph 1, Number 3 of the Penal Code (the principle of personality), Norwegian penal law can be applied to acts committed abroad by:

• Norwegian citizens

• Persons domiciled in Norway

This principle is particularly important because Norway generally does not extradite its own citizens to foreign states. Without the principle of personality, a Norwegian citizen who commits offenses abroad and then returns to Norway could evade prosecution.

The principle of personality, however, does not apply to all criminal acts. It encompasses:

• Serious violations of the Penal Code

• Crimes and misdemeanors against the Norwegian state or Norwegian state authority

• Acts that are also punishable under the laws of the country where they were committed (the principle of dual criminality)

The Principle of Universality

Section 12, Paragraph 1, Number 4 of the Penal Code allows for the application of Norwegian penal law to acts committed abroad by foreigners (the principle of universality) under certain conditions. This particularly applies to:

• Serious offenses specifically mentioned in the law

• Offenses also punishable under the law of the place of commission, when the offender is present in Norway

Prosecution under the principle of universality generally requires the decision of the King (the government), emphasizing that this is an exceptional rule.

Where Should the Offense Be Considered Committed?

The last paragraph of Section 12 of the Penal Code specifies that when criminality depends on an incurred or intended effect, the act is considered to have been committed also where the effect has occurred or was intended to occur. This means that Norwegian penal law can apply both when the act itself is committed in Norway and when the effect has occurred or was intended to occur here.

The Significance of Foreign Criminal Sentences

Being punished abroad for an act does not generally prevent prosecution in Norway for the same matter. Thus, a foreign criminal sentence does not have a preclusive effect here. However, there are certain limitations to this principle, particularly through the rules in Section 12a of the Penal Code.

When a person punished abroad is sentenced in Norway for the same act, the sentence served abroad should, as far as possible, be deducted from the one imposed here.

Extradition and Deportation

Extradition

The provisions on extradition are collected in two laws:

1. The General Extradition Act (Act of June 13, 1975, No. 39)

2. Act on Extradition to the Nordic Countries (Act of March 3, 1961, No. 1)

The main principles of extradition are:

• Norwegian citizens are not extradited

• Extradition only occurs for acts of a certain seriousness (imprisonment of more than one year)

• Extradition cannot occur for political offenses

• Extradition cannot occur if there is a risk of persecution due to race, religion, nationality, or political conditions

The process of extradition involves both administrative and judicial review of the extradition request. Norwegian courts must confirm by ruling that the conditions for extradition are met, but even if the conditions are fulfilled, the ministry is free to decide whether to comply with the extradition request.

Within the Nordic region, significantly simpler rules with broader access to extradition apply.

Deportation and Expulsion

Deportation is regulated by the Immigration Act and can occur, among other things, for individuals who have been punished abroad or are convicted in Norway. As with extradition, deportation is barred for Norwegian citizens.

Expulsion of foreigners is decided upon entry or within seven days after entry, typically for individuals without a valid passport or visa.

The Temporal Scope of the Penal Code

The Mildest Law Shall Be Applied

Section 3 of the Penal Code regulates which law should be applied when the penal legislation has changed between the time of the act and the ruling. The main rule is:

• The law at the time of the act is applied as a starting point

• If the new law results in a more favorable outcome for the accused, the new law should be applied

This means that the mildest law shall be applied. The principle is based on the idea that when the legislature finds it necessary to soften penal provisions, this should also benefit past acts.

Certain exceptions to this principle apply:

1. Time-limited laws: For violations of a temporary law, the provisions apply even if the law is repealed when the case is adjudicated

2. Blanket penal provisions: Changes in regulations referred to by a penal provision are not considered changes in "penal provisions" and thus do not benefit the accused

3. Law amendment after judgment in the first instance: On appeal, no regard shall be given to new laws that came into effect after the judgment was issued

What Are "Penal Provisions"?

Section 3 of the Penal Code does not apply to all types of legal rules:

• Procedural provisions are excluded - the rules at the time of judgment are applied

• Provisions on the execution of sentences are excluded - new rules also apply to previously imposed sentences

• Provisions on other legal consequences than imprisonment are generally excluded

Prosecution rules and statutes of limitations, however, are considered penal provisions in relation to Section 3.

When Should the Act Be Considered Committed?

With a milder new law, the time of the act is irrelevant, as the milder law shall be applied in any case.

With a stricter new law, the starting point is that it is the actual performance of the act that is decisive. If it concerns a continuing offense, which occurs partly before and partly after the law change, the matter must be partly handled according to the old, partly according to the new law.

In the case of a criminal omission, the matter is considered ongoing as long as the legally sanctioned obligation persists.