Limitations in Criminal Law: When Time Erases Criminal Liability

Limitation (prescription) is an important institute in criminal law, which implies that criminal liability can be extinguished due to the passage of time. In Norwegian criminal law, we recognize three forms of limitation: limitation of the right to private prosecution, limitation of the ability to initiate prosecution, and limitation of the ability to enforce an imposed sentence. This post focuses on the latter two forms.

Justification for the Limitation Rules

Several considerations justify the limitation rules in criminal law:

1. Evidentiary Considerations

As time passes, the evidence becomes more uncertain, and the risk of errors increases. Some evidence is lost, others become unreliable. Witness testimonies can change due to memory distortions and suppressions. By setting a time limit, decisions on a flawed basis are avoided.

2. Decreasing Need for Punishment

The need for punishment decreases as time goes by. From an individual preventive viewpoint, this is particularly evident: if the guilty party has behaved lawfully for many years, punishing them for something from a long time ago seems counterproductive. The general preventive or retributive considerations also weaken as the years pass.

3. Increasing Counterarguments

Counterarguments become stronger over time. For the guilty, who perhaps now is a law-abiding citizen and has stopped considering the thought of punishment, it will seem harsh to be held accountable after a long time. It can also affect their family, who may not know about this part of the past.

Limitation of the Ability to Initiate Prosecution

Limitation Periods

The periods for the limitation of the ability to initiate prosecution are stipulated in the Penal Code § 67 and vary according to the severity of the crime:

• 2 years when the maximum statutory penalty is fines or imprisonment up to 1 year

• 5 years when the maximum statutory penalty is imprisonment up to 4 years

• 10 years when the maximum statutory penalty is imprisonment up to 10 years

• 15 years when the maximum statutory penalty is imprisonment up to 15 years

• 25 years when imprisonment up to 21 years can be imposed

It is consistently the maximum prescribed penalty in the relevant penal provision that determines the length of the period, not the penalty expected in the specific case.

Starting Point for Calculating the Period

The limitation period is calculated from "the day the criminal act was completed.” When it involves continuous criminal activities, the limitation does not start running for any part of the act until the activity is completely ceased.

For sexual relations with children under 16 years, the period runs from the day the victim turns 18 years old.

When criminality depends or is affected by an occurring effect, the period is calculated from the day the effect occurred. If an assault for example leads to long-term illness and subsequently death, the prescription period is not counted from the assault but from the occurrence of death.

Interruption of Limitation

The limitation period is interrupted by legal actions that result in the suspect gaining the status of accused. What causes a suspect to gain the status of accused is set out in § 82 of the Criminal Procedure Act. It could be the issuance of an indictment, a request for a detention order, or a notification to the suspect that he is accused.

If the prosecution is discontinued, the limitation period continues as if the prosecution had never taken place. The interruption of the limitation period caused by the prosecution is disregarded.

The same applies when the prosecution is "stopped indefinitely." This requires an overall assessment in cases where the case has merely been left without an explicit decision on stopping.

Limitation of Imposed Criminal Liability

Justification

Although evidentiary considerations are not relevant when it is the limitation of already imposed criminal penalties, the other reasons for limitation – the diminishing need for punishment and the increasing counterarguments – apply here too.

Limitation Periods for Imposed Imprisonment

The limitation period for imposed imprisonment varies from 5 to 30 years, depending on the length of the sentence. Unlike the limitation of prosecution rights, where the statutory range is decisive, it is here the actual imposed sentence that determines the length of the limitation period.

For preventive detention, the same periods apply as for imprisonment, calculated based on the length of the determined time frame. Judgments on compulsory mental health care and compulsory care are prescribed after 20 years.

Limitation Periods for Fines

Imposed fines are prescribed 10 years after the decision became final. The subsidiary imprisonment lapses after 5 years unless its enforcement has begun before the expiration of the period.

Starting Point and Interruption

The starting point for the limitation is usually the day upon which the judgment becomes final. The limitation of imposed imprisonment is interrupted by the commencement of enforcement or by the convict being apprehended to ensure enforcement.

Reactions that Are Not Punishments

Confiscation

The same limitation periods apply to confiscation as for punishment, but the period shall in no case be less than 5 years, and for confiscation of proceeds and extended confiscation, not less than 10 years.

Imposed confiscation is prescribed after 5 years; for confiscation of proceeds, including extended confiscation, the period is 10 years.

Nullification

The right to demand the nullification of a defamatory statement is unaffected by the limitation of criminal liability. However, the victim’s right to initiate a nullification case themselves or to request a public nullification case is prescribed 3 years after they became aware of the criminal act and who committed it.

Disappearance of Liability upon the Death of the Guilty Party

Punishment

The ability to deliver a judgment of punishment disappears upon the death of the guilty party. If the guilty dies after a judgment has been given, the ability to enforce the judgment vanishes. The purpose of punishment is to affect the guilty themselves, not their heirs.

Confiscation

Confiscation liability generally ends with the death of the responsible party. This applies to both the ability to initiate a confiscation case and the ability to enforce a judgment already given.

But when it comes to the confiscation of proceeds and extended confiscation, the law has made exceptions. Here, it concerns relinquishing an unjust enrichment, and there is no reason for the heirs to be in a better position than the testator. Therefore, a case on such confiscation can proceed despite the responsible party's death.

Exceptions and Special Rules

For certain particularly serious crimes, it may seem unreasonable for criminal liability to be extinguished. The Penal Code Commission has therefore proposed that the criminal liability for genocide and serious war crimes should not be prescribed.

Conclusion

The limitation rules in criminal law balance the interest in effective legal prosecution against the interests of individual legal security and prospects for rehabilitation. As time passes, society's need to pursue an offense becomes less pressing, while the interest in the individual and their opportunity to leave the past behind becomes more significant. Limitation rules provide a legal expression for this balancing.