Apr 16, 2025
Confiscation in Norwegian Criminal Law: Purpose, Forms, and Application
Seizure is a criminal law reaction that provides legal authority to deprive a person of money or specific items due to a crime or the risk of a crime. Unlike confiscation of a person's entire fortune, which was common in older law and is now prohibited under the Constitution § 104, seizure is limited to specific values or objects linked to a criminal act.
The seizure rules in the Penal Code have been subject to several revisions, most recently in 1973 and 1999. During the last revision, a new provision on extended seizure was introduced, making it easier to seize assets derived from criminal activity.
Seizure and Punishment
Previously, seizure was sometimes considered a punishment and sometimes not, which created ambiguity and inconsistency in the legislation. After the legal revision in 1973, seizure is never considered punishment, even though the purpose may, in some cases, be punitive.
The purpose of seizure can vary:
In some cases, the seizure has a punitive purpose and appears as an economic reaction similar to a fine.
In other cases, the seizure aims to prevent the risk of criminal acts.
Seizure can also have the purpose of depriving someone of a profit obtained through a criminal act.
In many cases, the purpose is mixed.
Seizure claims can be made alongside claims for punishment or alone. In both cases, the case is handled in criminal procedure forms and is decided by judgment or by acceptance of a fine. The prosecution assesses both the legal basis for the seizure claim and whether it is appropriate to pursue.
A significant difference between seizure and fine punishment is that no subsidiary imprisonment is set for the seizure. One is referred to civil enforcement.
Types of Seizure
1. Seizure of Profit (Penal Code § 34)
When someone has obtained a profit through a criminal act, it is natural for the person to return it. As long as only the profit is seized, the person does not suffer any punitive detriment but only loses the unjust advantage they have acquired.
The main rule under § 34 is that "the profit of a criminal act shall be seized." Thus, the seizure is in principle mandatory, but the responsibility can be reduced or waived if the seizure would be "clearly unreasonable."
"Profit" is considered both what is acquired directly through the criminal act, its substitutes (for example, a piece of jewelry purchased with the profit), and income or other benefits of the profit (for example, interest on deposited money).
The profit is seized from the person who has obtained it. If the perpetrator has acted on behalf of their employer, it is the employer who has obtained the profit and must accept the seizure.
When calculating the profit, the main rule is that expenses are not deducted. This means that the gross profit, not the net profit, is seized. Deductions must, if necessary, be made based on the exception rule on clear unreasonableness.
If it is difficult to ascertain the exact scope of the profit, the court can set the amount at its discretion. This eases the burden of proof, which usually lies with the prosecution.
2. Extended Seizure (Penal Code § 34a)
Extended seizure was introduced in 1999 and provides the authority to seize assets when it cannot be specified which criminal act the profit comes from.
The conditions for extended seizure are:
The person must be found guilty of an act of such nature that it can yield significant profit.
The act must have a certain degree of seriousness (could lead to imprisonment of 6 years or more, or 2 years in cases of repeat offense).
If the conditions are met, "all assets belonging to the offender may be seized unless they prove that the assets were acquired legally." Here, the offender bears the burden of proof that the asset was acquired legally.
3. Seizure according to § 35
Penal Code § 35 provides authority for three different types of seizure:
a) Items produced by a criminal act (producta sceleris), for example, counterfeit notes or moonshine.
b) Items that have been the subject of a criminal act (corpus delicti), for example, stolen goods or smuggled goods.
c) Items that have been used or intended for use in a criminal act (instrumenta sceleris), for example, the boat used for illegal fishing or the car used for smuggling.
Seizure according to § 35 is optional and can only occur when it is "deemed necessary for the purpose of the provision that penalizes the act." The court must weigh the consideration for effective enforcement of the legal provision against the fairness of seizure.
4. Seizure of Dangerous Items (§ 37b)
Under § 37b, an item may be seized "when, due to its nature and circumstances, there is a risk that it will be used in a criminal act." This can include items such as counterfeit notes, burglary tools, or poisons.
Such a seizure is purely preventive. The peculiar feature of § 37b is that seizure can occur "regardless of ownership and regardless of whether criminal liability can be established against anyone." It is not required that a criminal act has been committed.
Who Can Seizure Claims Be Directed Against?
The starting point is that seizure occurs with the person who has committed the criminal act. But in certain cases, seizure can also be made from others:
From the one the guilty party acted on behalf of
From the owner who knew or should have known that the item was to be used in a criminal act
From the recipient of profit or items transferred from someone who can be subjected to seizure
In cases of extended seizure, seizure may also be made from the offender's close relatives or a company closely associated with the offender.
Relation to Right Holders
The starting point is that a legally secured right, such as a registered pledge, remains despite the seizure. For the right to be dissolved, it must be determined in the judgment, and the right holder must be made a party to the case.
Rights that do not have legal protection are automatically dissolved by the seizure judgment.
Practical Significance
In several fields, the seizure rules have a significance equal to the provisions on liberty and fines. The amounts imposed as seizure are often many times larger than the fines discussed.
Seizure is particularly practically significant in:
Violations of customs and fisheries legislation
Drug-related crime
Violations of alcohol legislation
Economic crime
Enforcement of the Seizure Judgment
If the seizure claim concerns money, collection occurs through the State Collection Agency. The collection agency can decide deductions from salaries and can request seizure from enforcement authorities.
If the seizure concerns a specific item, the judgment creates ownership for the state treasury. Third-party rights in the item will remain unless another decision is made.
Seizure benefits the state treasury unless otherwise decided. However, the court may decide that the seized profit should be used to cover compensation claims from the victim.
Conclusion
Seizure is an important tool in criminal justice that can serve several purposes—from preventing crime from paying off, to preventing new criminal acts. Especially through the rules on extended seizure, the legislator has provided an effective tool against profit-motivated crime. At the same time, legal safeguards are built in to prevent seizure from hitting unreasonably harsh or affecting innocent third parties.
