Preventive Detention and Special Sanctions in Norwegian Criminal Law: Public Protection Against Dangerous Offenders

In Norwegian criminal law, there are specific types of reactions for offenders considered to be a danger to society. For accountable offenders, preventive detention is the central special reaction, while non-accountable offenders can be sentenced to compulsory psychiatric care or compulsory supervision. These special reactions share the purpose of meeting society's need for protection against particularly dangerous offenders for longer periods than would be possible with ordinary fixed-term sentences.

History of Preventive Detention

The Penal Code of 1902 originally included some provisions for special measures against dangerous offenders. A comprehensive revision of the law in 1929 introduced two central legal institutes: security measures and preventive detention. Security measures were aimed at mentally deviant offenders, while preventive detention was intended for presumably normal repeat offenders for whom regular punishment was deemed insufficient.

Preventive detention was widely used in the initial period after 1929, especially against offenders convicted multiple times for serious theft. Later, the institute gradually fell out of use, and the last preventive detention sentence under the old regime was pronounced in 1963.

The institute of security continued to be used but became subject to strong criticism. Particularly criticized was the so-called "dual-track system," where security measures could be imposed in addition to ordinary punishment for accountable offenders. A subcommittee under the Penal Code Commission proposed new rules in 1990, which, after extensive revisions, led to legislative changes in 1997. These came into force on January 1, 2002.

The new system implied that:

• Security measures were abolished

• Preventive detention was reintroduced but now as a penal reaction

• The dual-track system was abolished

• For non-accountable offenders, two special reactions were introduced: compulsory psychiatric care and compulsory supervision

Conditions for Preventive Detention

Basic Condition

Preventive detention can only be imposed when a fixed-term sentence is considered inadequate to protect society. This means the court must assess whether an ordinary prison sentence will provide sufficient societal protection when weighed against the defendant's assumed dangerousness.

Specific Conditions

The main provision on preventive detention is found in the Penal Code § 39 c nr. 1. To impose preventive detention, the offender must have committed:

• A serious violent offense

• A serious sexual offense

• A serious deprivation of liberty

• A serious arson, or

• Another serious offense that infringed on others' life, health, or freedom, or endangered these legal goods

Pure property violations or violations of public interests fall outside the scope of application. It is also required that there is an "imminent danger" that the offender will commit another such serious offense.

In dangerousness assessments, particular emphasis should be placed on whether the offender has previously committed or attempted to commit a serious offense of the same kind. Previously, this was an absolute condition, but with the amendment in 2001, it was changed to a particularly important consideration.

Preventive detention may also be imposed under Penal Code § 39 c nr. 2 when the offender has committed a "less serious offense of the same kind" as mentioned in nr. 1. This requires that:

• The offender has previously committed or attempted to commit a serious offense as mentioned in nr. 1

• There is a close connection between the previous and the currently committed offense

• The risk of recidivism into a serious offense is "particularly imminent"

Personal Investigation and Forensic Psychiatric Assessment

Before a preventive detention sentence is imposed, a personal investigation of the accused is required. Alternatively, the court may decide that a forensic psychiatric assessment should be conducted. This ensures the best possible basis for the dangerousness evaluation.

Duration of Preventive Detention

The purpose of preventive detention suggests that the reaction should last as long as the dangerousness persists, neither shorter nor longer. However, the law does not fully implement this principle.

A preventive detention sentence must set a timeframe that should not normally exceed 15 years and cannot exceed 21 years. Additionally, a minimum time should be set, which cannot exceed 10 years.

Within the timeframe, the corrections authority must continuously assess the offender's dangerousness. When dangerousness is reduced and it is considered safe to release the convicted person, they should be released on probation.

If the convict serving preventive detention is still deemed dangerous at the end of the timeframe, the prosecution may request the court to extend the timeframe by up to five years at a time. There is no defined upper limit for the total duration of preventive detention, so, in principle, a convict can remain imprisoned for life.

Release on Probation

The probation period upon release from preventive detention should range from one to five years. If the prosecution consents, the corrections authority can decide on probationary release. Otherwise, the issue is determined by the district court through a regular hearing.

Conditions similar to those applicable to conditional sentences may be set upon probationary release. For release from preventive detention, it is also possible to make it a condition that the convict be monitored by the corrections authority, and in special cases, that the convict reside in an institution or municipal housing unit.

Special Reactions Against Non-Accountable Offenders

Compulsory Psychiatric Care

An offender who was psychotic or unconscious at the time of the offense and thereby unpunishable under Penal Code § 44, can be transferred to compulsory psychiatric care by judgment if it is deemed necessary to protect society.

The conditions for this special reaction are somewhat less stringent than for preventive detention, as the alternative is not a fixed-term sentence. It requires that the non-accountable person has committed or attempted to commit a serious offense that infringed on others' life, health, or freedom, or could endanger these legal goods.

Transfer to compulsory psychiatric care is indefinite, but the convicted person has the right to have the conditions for the reaction reviewed every twelve months. Additionally, there should be mandatory judicial review three years after the last final judgment.

The responsibility for implementation lies with the psychiatric healthcare system. The professional responsible at the institution decides how the compulsory psychiatric care should be conducted, but must particularly consider the need for societal protection.

Compulsory Supervision

For offenders who were non-accountable due to high-grade mental impairment (Penal Code § 44, second paragraph), the court may decide on transfer to compulsory supervision. The conditions are the same as for transfer to compulsory psychiatric care.

The compulsory supervision must take place in a specialized unit within the healthcare services that is tailored for the purpose. In practice, the specialized unit is linked to a regional security department within the psychiatric healthcare system.

Evaluation of the Special Reaction System

The special reactions in Norwegian criminal law represent a balance between the need for societal protection and the offender's legal security and rehabilitation. Compared to the previous security system, the current arrangement has several advantages:

1. The dual-track system has been abolished, so that accountable offenders no longer both face punishment and security measures for the same act

2. The responsibility for implementation is more clearly placed, either with the correctional system or with the healthcare sector

3. The legal protection of convicted persons has been strengthened through regular judicial review

However, the system still raises some problematic questions, particularly related to the indefinite nature of the reactions and the challenges of predicting dangerousness in individuals.