Apr 16, 2025
Prosecution Rules in Norwegian Criminal Law: Public and Private Prosecution
The prosecution rules are central in criminal law, as they determine who can initiate criminal prosecution and under what circumstances this may occur. In Norwegian criminal law, we distinguish between the public and private prosecuting principle. The trend has moved towards a more consistent public prosecuting principle, although the victim's will is still significant in several areas.
Public and Private Prosecuting Principle
The public prosecuting principle entails that it is the responsibility of the public authorities to ensure that offenses are prosecuted, while the private prosecuting principle assigns this responsibility to the victim themselves. In modern criminal law, it is primarily the public principle that applies, which aligns well with the purpose of punishment:
From an individual preventive perspective, the social danger posed by the offender is the same regardless of how the victim reacts
From a general preventive perspective, it is unfortunate that the application of punishment depends on the victim's will
Based on the idea of punishment as just retribution, similar cases should be treated alike regardless of circumstances unrelated to culpability
Types of Prosecution Rules
Under current regulations, criminal provisions can be divided into three main groups:
Unconditional public prosecution: Public prosecution must occur regardless of the victim's will
Conditional public prosecution (private-public prosecution): Public prosecution is conditional upon a request from the victim
Exclusively private prosecution: No public prosecution takes place, but it is left to the victim to hold the violator accountable
Unconditional Public Prosecution
The main rule in Norwegian criminal law is that "punishable acts are subject to public prosecution, unless otherwise stipulated" (Penal Code § 77). This means that the prosecuting authority can bring charges regardless of whether the victim desires it or not.
It is important to note that "unconditional public prosecution" does not mean that the prosecution authority must always bring charges. Under the principle of opportunity, the prosecution authority has the option to decide a case by opting not to prosecute, even if the evidence is sufficient for conviction.
In certain cases, the law prescribes that public prosecution should only take place when it is deemed necessary for "public interest." This means that the prosecution authority should select actions where there is a particular reason to assert criminal responsibility, for example, because the action is more serious than usual, has drawn particular attention, or because other reasons necessitate the enforcement of the penal provision.
Public Prosecution upon Victim's Request
For many criminal provisions, a request for prosecution from the victim is a condition for the prosecution authority to initiate a criminal case. Considerations in favor of such a scheme may include:
Consideration for the victim themselves:
A lawsuit may subject the victim to further harm or suffering (e.g., in cases of defamation or sexual offenses)
The victim may have a close relationship with the perpetrator and not wish to subject them to punishment
A criminal case may destroy the victim's opportunities to reach a settlement with the perpetrator (e.g., in cases of embezzlement)
Process economy considerations:
Many criminal provisions cover actions that are relatively insignificant
The victim's standpoint can indicate which cases are serious enough to justify the use of the judicial system's resources
There are two variants of conditional public prosecution:
"Either-or cases"
In these cases, the condition for public prosecution is either that the victim has made a request for prosecution or that public interest demands prosecution. This applies, for example, to assault not resulting in death, embezzlement, theft against the offender's nearest, and common fraud and infidelity.
"Both-and cases"
Here, both a request for prosecution from the victim and that public interest requires prosecution are necessary. This type of prosecution rules stands between the private-public and exclusively private prosecution.
Exclusively Private Prosecution
In cases of exclusively private prosecution, the victim must bring the case to court if they wish the perpetrator to be convicted. After the revision of the defamation chapter in 1939, there is no longer any case of exclusively private prosecution in the penal code, and all such rules in special legislation have gradually been repealed.
Exercise and Expiration of the Private Right to Prosecute
Who is the Victim?
The person who can request public prosecution where such a request is necessary, or can themselves bring a criminal case where it is permitted, is the victim. Not everyone affected by an offense is considered a victim in a legal sense. The victim is only the holder of the interest the penal provision aims to protect, not more remote interested parties.
Prosecution when there are Multiple Offenders
If there are multiple accomplices in a criminal act where a request for prosecution from the victim is required, the general rule is that the victim cannot select some they desire to punish while protecting others. If the victim limits their request for prosecution in this manner, it must be regarded as not made.
An exception to this rule is that the request can be limited to those who are the instigators of the criminal decision.
Retraction of Request for Prosecution
A request for public prosecution can be withdrawn until charges are filed, but not after. If the perpetrator has committed the act against one of their closest, the request for prosecution can be withdrawn with effect even after charges have been filed. This also applies otherwise in certain criminal provisions mentioned by law.
A request for prosecution that is retracted under the rules in Penal Code § 82 is regarded as not made. If the offense in question is one where public prosecution can only proceed upon the victim's request, the retraction means the prosecution authority is unauthorized to pursue the case further.
Expiration of the Private Right to Prosecute
The request for public prosecution must be submitted no later than 6 months after the eligible person has learned of the criminal act and who committed it. In the case of a demand for repudiation, the corresponding period is 3 years.
While the usual expiration of the right to bring a criminal case runs from the time the act was committed, the expiration of the private right to prosecute runs from the time the person entitled to prosecute becomes aware of the criminal act and who is guilty.
Recent Developments and Proposals for Changes
The trend in recent years has been towards more unconditional public prosecution, especially for offenses that society considers serious. For instance, the prosecution for assault was made unconditionally public in all cases where it is committed against a spouse, cohabitant, child, or parent through a law change in 1988.
The new Penal Law Commission proposed in NOU 2002:4 that the new penal code should not have a separate chapter on prosecution. According to the commission's proposal, a request from the victim should never be a condition for public prosecution. Instead, prosecution under several of the relevant criminal provisions should be conditional upon public interest suggesting further pursuit of the case. In this context, the victim's interest in prosecuting or dropping the case will still be a central - but no longer decisive - factor.
Conclusion
The prosecution rules in Norwegian criminal law result from a balancing of the interests of effective law enforcement, the interests of the victim, and process economy considerations. Although the trend is moving towards more unconditional public prosecution, the legislator has still deemed it appropriate to give weight to the victim's will in certain types of offenses. This reflects an acknowledgment that criminal cases are not only about the state's relationship with the offender but also the victim's interests and needs.
