Grounds for Exemption from Punishment in Norwegian Criminal Law

Even when an action objectively fulfills the description of an offense, there may be circumstances that make it not punishable. These are grounds for exemption from punishment. The article provides an overview of when and why actions initially covered by an offense might still be exempt from punishment.

Descriptions of Offenses and Grounds for Exemption from Punishment

In crafting criminal provisions, it is not always possible to consider all specific circumstances that may affect the assessment of the action. For example, § 233 of the Penal Code provides penalties for "[a]nyone who causes the death of another," but by the words alone, this provision could also apply to someone acting in self-defense, the executioner carrying out a death sentence, and the soldier killing the enemy in war.

To prevent such actions from being punishable, there are rules about grounds for exemption from punishment, meaning the action is still not punishable even if it objectively fulfills the description of an offense.

Different Types of Grounds for Exemption from Punishment

Specific and General Grounds for Exemption

The law contains many rules that provide exceptions to penalties when a ground for exemption exists:

Specific grounds for exemption apply only to certain offenses. Examples include:

• § 167: Penalties for providing false testimony do not apply to a person accused of a criminal act who provides false testimony

• § 249 no. 1: Defamation is generally not punishable when it is true

• § 364, 2nd paragraph: Induction of hypnosis performed by a doctor or psychologist for scientific purposes or medical treatment is exempt from punishment

General grounds for exemption apply across offenses. The most important are:

• State of Necessity (§ 47)

• Self-defense (§ 48)

Codified and Uncodified Grounds for Exemption

Not all grounds for exemption are codified. There are also uncodified grounds for exemption developed through case law and legal theory:

• Consent of the injured party is mentioned as an exonerating factor in several sections, but there is no doubt that consent has the same effect in many other provisions as well

• Legal self-help

• Unsolicited emergency aid (negotiorum gestio)

• Acts of war: During war, not only killing and bodily harm but also material destruction, coercion, and other otherwise punishable acts may be justified

To the extent that grounds for exemption do not have a statutory basis, they result from a restrictive interpretation of the law. The reasonable intention of the law often does not extend as far as a purely linguistic interpretation might suggest.

Grounds of Justification and Grounds of Excuse

Grounds for exemption can be divided into two main categories based on their legal effect:

Grounds of Justification

Grounds of justification make the action legal. When self-defense, state of necessity, or lawful law enforcement excludes punishment, it is because the action under the prevailing circumstances appears justified. It is not just exempt from punishment but legal, not unlawful.

Grounds of Excuse

Grounds of excuse exempt the action from punishment without making it legal. For instance, § 48 of the Penal Code has a rule stating that a person exceeding the limits of self-defense is not punishable if the excess was solely due to an emotional disturbance or shock induced by the attack. Here, the action is not justified but still exempt from punishment because legislation has determined that it would be too harsh to impose punishment.

The distinction between grounds of justification and excuse has no significance in a criminal case against the perpetrator; the outcome must be acquittal in both cases. However, it can be significant in other contexts, such as:

• Whether the action could lead to liability for damages

• Whether the action can be met with self-defense

• Whether the involvement of a third party in the action can be punishable

Legal Reservations in the Penal Code

Many criminal provisions contain the reservation "unlawful," "illegal," "unauthorized," or similar. Such reservations can have different meanings:

Reference to Other Legal Areas

In many cases, the term "unlawful" serves as a reference to rules in other legal areas. For example:

• § 410: "Whoever unlawfully refuses to admit someone to or discharges someone from their service is punishable by fines." Here, the penal code refers to the rules of contract law.

• When "unlawful" is included in most provisions in Chapter 8 (crimes against the state's independence and security), it is to make it clear that the provisions must be understood with the limitations following general rules of international law.

General Limitation

In other cases, the designation "unlawful" cannot be regarded as such a reference to norms in other legal areas. Terms like "unlawful coercion" (§ 222, 2nd paragraph), "unlawful violation of another's honor" (§ 246), or "unlawful inducement" (§ 270) cannot be resolved by seeking in other legal disciplines.

In these cases, the term must be understood as a general reservation by the legislator that it is not intended to penalize all instances that would otherwise fall under the description in the offense. How the boundary should be drawn is left to the judge.

Often the term "unlawful" can be translated as "improper," "unreasonable," "blameworthy," or a similar characterization. It is the court's task to assess whether other considerations must be given such weight that an action that in itself falls under the description cannot still be regarded as unlawful.

Significance for Interpretation

It does not have much practical significance whether "unlawful" is included in the offense or not. Even when this reservation is missing, the offense often must be given a narrower scope than the words would suggest. Generally, such a limitation is included where it particularly stands out that the description would otherwise extend further than intended.

In some cases, such a reservation may still be significant for interpretation. When the legislator has pointed out the necessity of a limitation, it may be easier to establish such limitations in doubtful cases than when the wording of the law is absolute.

Illegality as Part of the Concept of Crime

In criminal law theory, it is common to refer to illegality as a general condition for criminality. In addition to fulfilling the description in an offense and satisfying the legal requirements for guilt and culpability, the act must be unlawful. This applies regardless of whether it is mentioned in the offense.

Used in this way, the requirement of illegality is merely another expression of the absence of any ground for exemption from punishment. This can be expressed either positively (as a requirement of illegality) or negatively (as a requirement for the absence of a ground for exemption).

Problems with Illegality Terminology

Illegality terminology is problematic for several reasons:

1. Absolute Limit vs. Relative Assessment: Linguistically, "unlawful" means the opposite of "lawful," which creates the impression of an absolute boundary. But the legislator may have good reason to counteract actions of a certain type with one reaction but not others. One cannot unconditionally assume that the same requirements apply for consent to exempt from punishment as for excluding liability.

2. Idea of Predetermined Rules: Using illegality terminology can lead to a mistaken belief that the question of illegality is decided by rules that exist before and independently of the offense. In reality, a sensible interpretation of the offense itself must be decisive.

To say that an act is not unlawful never provides justification for exempting from punishment but expresses the result of an interpretative process leading to the conclusion that the act does not fall under the offense despite matching the wording.

Relation to Grounds for Exemption from Penalty and Cessation of Penalty

It is important to distinguish grounds for exemption from punishment from other reasons that may lead to no penalty being imposed:

Grounds for Exemption from Penalty

These are reasons that can cause a penalty to lapse based on the judge's discretion over the gravity of the specific case, for example, § 58, last sentence, § 59, first paragraph, § 228, third paragraph, and § 392, last sentence.

The law's viewpoint is that the perpetrator is guilty of punishment, but the court can exercise a sort of pardoning authority.

Grounds for Cessation of Penalty

These are reasons that cause accrued penal liability to fall away, such as the statute of limitations.

Conclusion

Grounds for exemption from punishment are a crucial part of criminal law because they ensure that actions, which for various reasons should be legal or excused, are not punished even if they objectively fulfill the offense description.

Some grounds for exemption make the action entirely legal (grounds of justification), while others only exempt from punishment without making the action legal (grounds of excuse). This distinction affects liability for damages and complicity.

Legal reservations in the penal code can either refer to norms in other legal areas or function as a general limitation allowing the courts to assess whether the action should be punishable despite falling under the wording of the offense.