Apr 16, 2025
Criminal Participation in Norwegian Law: Cooperation, Responsibility, and Legislative Solutions
In Norwegian criminal law, it is not uncommon for multiple individuals to participate in the same criminal act. Complicity in criminal activities raises important legal questions about the scope of responsibility, conditions for criminal liability, and legislative technical solutions. This article provides an overview of the central principles for complicity responsibility in Norwegian criminal law.
Different forms of complicity in criminal actions
Complicity in criminal actions can occur in various ways:
Physical complicity
Several people can collaborate in the execution of the crime, either by acting equally (for example, two people jointly breaking into a house) or by one being the principal and the other an accomplice (the principal commits the theft, while the accomplice keeps watch).
Physical complicity can also occur when a person assists in preparations, even if they do not partake in the execution. For example, a person may help with burglary tools or fake keys for a planned theft. Another example is renting premises with the knowledge they are to be used for illegal activities, which can be punishable as complicity.
Psychological complicity
Complicity can be psychological in nature, involving persuasion, encouragement, or advising the commission of a criminal act. It is also considered psychological complicity if someone threatens or deceives another into committing a crime.
If assistance is promised beforehand - for example, a pledge to conceal stolen goods or help a perpetrator escape - this is regarded as psychological complicity, even if the assistance occurs after the crime.
Complicity during an ongoing crime
If the principal’s crime extends over time, a person who joins after the crime is legally complete but before the criminal activity has ceased can be punished for complicity in the continued activity. This might apply, for instance, to rape or robbery.
Legislative technical solutions for complicity responsibility
The Penal Code has adopted a somewhat unique legislative technique: It specifies complicity responsibility in individual crime provisions rather than through general rules in the general part of the law. The only provision on complicity in the general part of the law is § 58, which concerns sentencing when the criminality of complicity is established.
The crime provisions in the law can be divided into three groups:
Those that explicitly mention complicity
Those that do not mention complicity
Those that only mention certain forms of complicity, typically "incitement and encouragement"
Crime provisions that explicitly mention complicity
When a crime provision explicitly mentions complicity - as the law does for most serious crimes - it not only covers those who fall under the principal conduct description but also all those who in some way have aided. Whether the complicity is psychological or physical, or whether it occurred before or during the main act, is not decisive.
The penalty range is almost always the same for complicity as for the principal act. Therefore, there is little practical significance in distinguishing between principal and accomplice - this primarily becomes a question of sentencing.
For complicity to be punishable, it is not required that the complicity was necessary for the outcome. It is sufficient that there is a contributing causal relationship. For example, a lookout during a burglary will be accountable for complicity even if the burglary would have occurred in the same manner without his lookout service.
Crime provisions that do not mention complicity
When a crime provision does not mention complicity, it depends on the interpretation of the individual crime provision whether it only targets the person who has engaged in the executable action or also targets accomplices to a greater or lesser extent.
In some cases, the act is described so narrowly that an accomplice is not affected. For instance, § 385, which imposes penalties on the person who "uses a knife in a fight," does not affect an outsider who encourages a participant to use a knife or hands him the knife.
In other cases, the expression of the law is so general that, in addition to the executing act, it includes more or fewer acts of complicity. Where the provision affects someone who "causes" something, it may also include acts of complicity.
The fundamental principle was established in a Supreme Court judgment from 1936: "If the crime provision's own description of the act content is so generally formed that the law, after a natural interpretation, includes the act even when it would linguistically be described as complicity, the individual will be punished according to the provision, even if complicity is not mentioned in the crime provision, unless there are specific reasons to attribute a narrower scope to the crime provision."
Crime provisions that only mention certain forms of complicity
In certain cases, the crime provision does not mention complicity generally, but only certain forms, such as "incitement" or "incitement and encouragement." Here, both those who directly fall under the statutory description and those forms of complicity mentioned by the crime provision, but not others, are affected.
Psychological complicity and passivity
Requirements for psychological complicity
For psychological complicity to exist, it is not sufficient for a person, in words or actions, to express that they have no objection to the act being carried out. Being an interested spectator is not complicity. Generally, positive encouragement is required.
In practice, the line between passive approval and direct encouragement can be challenging to draw. Case law shows that a passive attitude cannot be considered punishable complicity even if it suggests approval or acceptance of the act.
Special duty to prevent crime
Even if a person has a special duty to prevent the criminal act, mere passivity generally cannot be punished as complicity. If a night watchman fails to intervene against thieves, he cannot be punished for complicity in theft, but instead for breach of duty.
For someone with a particular duty to intervene, it is not necessary to incite positively for complicity responsibility; it may be sufficient if they express they do not object to the act. A tacit or explicit consent from someone with a special duty to prevent the criminal act signifies the removal of one of the standard obstacles to the crime.
Negligent complicity
In the 1902 Penal Code, complicity is not mentioned in any of the crime provisions targeting negligent offenses. For instance, § 233 regarding intentional homicide targets the person who causes another's death or assists in doing so, while § 239 on negligent homicide targets the person who by negligence causes another's death.
In special legislation, it is common for the criminal provisions to also target negligent complicity, for example, in the Pricing Act and Customs Act. In the Penal Code itself, some newer provisions are formulated to also target those who negligently contribute.
A practically important form of negligent complicity, especially concerning violations in business, is when a superior fails in the necessary oversight to ensure subordinates follow legal rules.
Special cases of complicity responsibility
Complicity in criminal acts in printed material
When a criminal act is committed through printed material - for instance, if a newspaper article contains a defamatory accusation - the standard complicity rules apply. If the subjective conditions for punishment are present, each participant in the production and distribution of the material is responsible as accomplices.
The law, however, has two special rules:
§ 431 emphasizes the editor's duty of care. The editor can be targeted even if they did not know the content, unless they can prove that no blame can be attributed to them in content oversight.
§ 254 exempts those who only partake in the technical production or distribution of the material from responsibility for defamation.
Complicity in actions where the victim also participates
In certain crimes, complicity from the victim's side is required ("necessary complicity"). In usury, a contract is made between the exploiter and his victim. However, the victim cannot be punished for complicity.
The situation is different when a transaction between two parties is prohibited because it goes against public interests, such as the illegal sale of alcohol. Here, the buyer can be considered as an accomplice to the unlawful sale. But when the law only targets the sale and complicity in it, the natural interpretation is that the buyer is not affected.
Conclusion
Norwegian criminal law has a nuanced system for assessing complicity liability. The system is based on a combination of explicit complicity references in certain crime provisions and an interpretative doctrine for crimes that do not mention complicity. This provides the courts with flexibility to determine the boundaries of criminal liability based on the character and seriousness of the action.
It is particularly noteworthy that complicity is generally subject to punishment in all major legal breaches, while several crime provisions against lesser infringements only target the direct perpetrator. This reflects an assessment of which actions are considered serious enough that complicity should also be punished.
