Fraudsters can be punished for deprivation of liberty

Two fraudsters, acting on the instructions of ringleaders, presented themselves as officers from Økokrim and informed an elderly woman that they were assisting her in preventing her bank account from being depleted. They remained with her in her flat for several days, instructing her not to contact anyone or leave the premises.

They subsequently took her to Dubai, purportedly in order to trace the alleged perpetrators and recover the funds. In total, approximately NOK 5.6 million was withdrawn from the woman's account. During the two weeks in Dubai, the woman was never physically restrained or prevented from leaving. However, she trusted the false police officers and complied with their directions. The matter came to light only after the bank raised an alarm following several large transactions, which led to the arrest of the defendants.

In the District Court, the defendants were convicted of fraud but acquitted of unlawful deprivation of liberty, on the basis that the woman had not been physically prevented from escaping. One defendant was sentenced to two years and nine months’ imprisonment, and the other to three years and five months. A majority of the Court of Appeal held that the conduct did amount to unlawful deprivation of liberty, finding that such an offence may occur even in the absence of physical restraints. The sentences were not altered.

The Supreme Court first held that the indictment was valid. Although the indictment states that the acts formed part of the activities of a criminal network, which allows the statutory maximum penalty to be doubled, it was not necessary for the decision to prosecute to have been taken by a public prosecutor.

On the substantive issue, a majority of the Supreme Court agreed with the Court of Appeal. While deprivation of liberty will often involve physical constraint, this is not an absolute requirement. Psychological pressure, threats or deception may restrict the aggrieved party's freedom to such an extent that the conduct must be regarded as a deprivation of liberty. The key question is whether the woman was, in reality, deprived of the ability to move about according to her own free will.

A minority took the view that the conduct did not amount to deprivation of liberty and voted for acquittal on that count.

The non‑economic damages payable to the victim were reduced from NOK 150,000 to NOK 100,000.

Read the judgment from the Supreme Court (Norwegian only)

Areas of law: Criminal law. Section 254 of the Penal Code. Criminal procedure. Non-economic damages. 

Key paragraphs: 63, 69–70

Justices: Bergsjø, Sæther, Stenvik, Sivertsen, Steen