Tore Schei
The Supreme Court of Norway and international collaboration with courts
and justices
1. Introduction
For judges to stay in contact with, learn by and be inspired by colleagues in other countries,
is not a new phenomenon. I will not dwell on history, however; instead I will explore the
connections the Supreme Court of Norway and its justices currently hold with courts and
fellow justices in other countries. These connections are, as you will see, considerable. In my
opinion, this contact plays an important role in the quality of the decisions made and the
work performed by the justices in the Supreme Court of Norway.
Much of the motivation behind the considerable contact and communication between
national supreme courts and their respective justices, may be found in the
internationalization of the law. For Norway, central issues include EEA membership and, not
least, the incorporation into Norwegian law of major human rights conventions. Even
without this internationalization process, international justice collaboration would likely
have been useful, but the increased internationalization has made such collaboration
absolutely necessary.
The international connections and collaborations of the Supreme Court of Norway must be
seen in light of its general jurisdiction. The Supreme Court of Norway is the court of final
instance in civil disputes, criminal cases, and administrative cases and it also serves as a
constitutional court in the sense that the Supreme Court in a specific legal dispute or a
criminal case may review whether laws and decisions comply with the Constitution. There is
no justice specialization within the Supreme Court. All justices are assigned to all types of
cases.
2. Various types of collaboration—an outline
International collaboration takes many different forms. The supreme courts in the Nordic
region have formalized their collaboration with established meetings between supreme
court presidents, seminars for supreme court justices, meetings between supreme court
secretary-generals and meetings of the supreme court librarians. The Nordic supreme
courts also collaborate more informally, with activities often involving other groups of
employees as well. I will return to this in more detail later on.
Within the EU, there are various organizations for national supreme courts—one for the
presidents of the general supreme courts, and another for the supreme administrative
courts. The Supreme Court of Norway is an observer in both of these associations.
There is a European and a global association for constitutional courts, and the Supreme
Court of Norway is a member of both.
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There is also an international association of tax courts. The Supreme Court of Norway is a
member of this, too, as well as participating in an association for justices working with
environmental issues.
The Supreme Court of Norway has for many years communicated and worked with supreme
courts in other countries. There is the Nordic collaboration, as already mentioned, but we
also work or have worked closely with supreme courts in other countries.
Increased internationalization has also led to the establishment of various international
courts. Some of these courts have a direct impact on our activities—primarily because their
decisions serve as key sources of law in our own application of law. Some courts, established
under specific human rights conventions, may also review decisions from national courts for
compliance with the convention. The most important example in this regard is the European
Court of Human Rights in Strasbourg. As the Supreme Court of Norway, we believe it is
important to learn more about these international courts, and we have completed several
study trips to international courts.
Every year, the Supreme Court is invited to a number of conferences and seminars. Some of
the conferences focus on issues that are not particularly relevant to our activities, in which
case we do not attend. However, there are also a lot of highly relevant events, and we
participate in some—within the framework permitted by the nature of our work.
As you may notice, the international activity of the Supreme Court of Norway and its justices
is considerable. Nevertheless, the court's workload keep us all quite busy. The individual
justice has limited free time to engage in international collaboration. This is why we share
this task. The Norwegian delegation to an international event typically consists of one or two
representatives from the court. Even so, in some rare instances, all or a majority of
Norwegian Supreme Court justices attend a specific event —such as the court's study trips to
international courts.
3. The Nordic supreme court collaboration
3.1 Introduction
Without a doubt, the most important international collaboration for the Supreme Court of
Norway is the collaboration and communication with the supreme courts of the other Nordic
countries. This collaboration is mostly formalized, with established structures and settings,
but there is also considerable informal collaboration, which includes large groups of
employees.
3.2 Network of supreme court presidents
The annual meetings of the supreme court presidents are the heart of the Nordic supreme
court collaboration. These meetings go back more than 50 years. The task of organizing the
annual meeting of the supreme court presidents rotates between the different Nordic
countries—Denmark, Finland, Iceland, Sweden and Norway.
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It is said that it is Chief Justice Terje Wold in the Supreme Court of Norway who initiated
these meetings. Wold was Chief Justice in the period 1958–1969, and these meetings did
begin during his time of service. Meetings between the supreme court presidents were,
however not, an entirely new concept. The Nordic legal professional's meetings have been
held every third year since 1872—save for the war years in 1940–1945—and justices from all
of the supreme courts in the Nordic region actively participated in these seminars.
Until 2002, only the supreme court presidents participated in the annual meetings of the
supreme court presidents, and they brought their spouses along. True, these meetings were
primarily social events, even though there also were work-related discussions that may have
involved organizational or legal issues. The social side of the event is also important. The
leader of a nation's supreme court may from time to time need to discuss various issues with
others in a similar position, and, for that purpose, having this type of Nordic network is quite
useful.
In 2003, significant changes were made to the organization of the meeting. Norway hosted
the meeting that year, and invited the other countries. The agenda was revised to focus
more strongly on professional topics and legal discussions. Spouses were no longer invited,
which is in line with most other international forums. In addition to the president, one more
justice from each of the respective supreme courts was also invited. In Sweden and Finland,
the supreme jurisdiction is split, between a general supreme court and a supreme
administrative court. Until 2002, only the general supreme courts of Sweden and Finland
attended the meeting of court presidents. For the 2003 meeting, however, the presidents
and one justice from each of the supreme administrative courts were also invited, and the
collaboration has since included all of the Nordic supreme courts—the supreme
administrative courts included. Furthermore, there was another, more “technical” aspect to
the reorganization of the meeting, the meeting was moved out of the capital to another
location in the country. This, too, has been tradition since the 2003 meeting.
In Norway, we have, in my periode as Chief Justice, chosen locations that we presume would
be of interest for our Nordic colleagues, considering the opportunities provided by the
meeting location in informing them of key areas of trade and industry, cultural heritage, etc.
The meetings have been held at Utstein Monastery outside Stavanger (2003), which included
a briefing on the Norwegian petroleum industry, in addition to the legal discussions,
Svalbard (2008), which included a discussion on legal issues associated with the Svalbard
Treaty and various environmental issues, etc., and Lillehammer (2013), which emphasized
culture and cultural heritage, in addition to discussions of various legal issues.
These annual meetings of Nordic supreme court presidents last three days, including arrival
and departure days. All the involved agree that the reorganization of the meetings has been
a success, not least by making sure the meetings have a stronger legal focus.
So, which kinds of topics are discussed in the meetings of the Nordic supreme court
presidents? The first item on the agenda never changes. The representatives from each
country give an account of what has been going on in their respective courts since the last
meeting. These accounts focus on changes in the composition of justices and key
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organizational and administrative changes. The representatives also give a brief summary of
key decisions from the court. This item on the agenda is important. It provides insight into
the activity of our sister courts, and why these developments are taking place. Often, similar
administrative, organizational and legal issues and problems will emerge in our own court as
well. Insight into how this was addressed in one of the other Nordic countries is then
essential.
Other topics include all kinds of administrative, organizational or legal issues that may be of
relevance for the Nordic supreme courts. These may range from minor, perhaps even trivial,
issues and matters, to major and key issues of principle, which may even affect how the
courts relate to the legislative power and the executive power. Let me provide a few
examples:
Recruitment to the supreme court is, of course, a hot topic—primarily the recruitment of
justices, but also recruitment of other legal staff. We have discussed the application process
and the level of influence the national supreme court has and should have in the selection of
new justices. The issue of whether to make information about applicants publicly available
has been discussed, as has the opportunity for justices to take on side activities. At several
meetings, we have also discussed the use of law clerks. Independency issues has been
debated. Several meetings have addressed the relationship with media.
Examples from legal topics discussed are the law-making function of the national supreme
courts, and the role of Nordic supreme courts as constitutional courts. The meetings have
also consisted of discussion regarding sentencing for significant types of criminal offences,
such as those involving violence and drugs.
Issues in relation to the internationalization of the law have been frequently debated, as
have other important and complex topics, for instance such as the prohibition against
double jeopardy under the terms of the ECHR.
As you know, the relation to the EU is different in the Nordic region, with Iceland and
Norway outside the union on one side, and Denmark, Finland and Sweden inside the union
on the other. Iceland and Norway are, however, still closely connected to the EU through the
EEA, which means that all the Nordic countries are faced with similar legal issues and
challenges. In any event, it serves justices in the supreme courts of Norway and Iceland to
stay up to date on the development of institutions and legal rules within the EU, even when
these issues do not directly affect us. Key developmental trends within the EU have also
been a focus of discussions at the meetings.
How are these Nordic meetings useful? Any answer to this question must be seen in light of
the duties held by the presidents of the respective supreme courts. As Chief Justice, I hold
the ultimate responsibility for the administrative and organizational aspects of the court's
operations, while simultaneously serving as a justice like the other justices at the court, and I
am always the presiding justice in the cases I hear. The organizational and administrative
aspects of the operations of a court like the Supreme Court must continually be developed
for the Supreme Court to properly handle its responsibilities. In order to achieve such
administrative and organizational development, knowledge of what takes place in our sister
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courts in the other Nordic countries is of vital importance. The legal issues we face in cases
brought before the Supreme Court often have parallels in similar cases in the other Nordic
countries. Over time, professional input from Nordic colleagues provide valuable insight and
knowledge, which contributes to competence-building, and increasing the expertise of the
individual justice in their role as justice and Chief Justice. In the context of these meetings,
the informal element is also important. By knowing each other personally, it is easier to
reach out when we need advice. I have personally taken advantage of this opportunity
several times, primarily in organizational and administrative questions.
And finally regarding this matter: Why is a Nordic forum for supreme court presidents
important? Could a forum of supreme court presidents from other countries potentially be
equally beneficial for the Supreme Court of Norway? I believe the answer to the latter
question is a clear no, and as for the first, the answer is partly related to a community of
legal culture and partly to our linguistic common ground. The latter applies, however, only
fully to Denmark, Sweden and Norway. In Finland, Finnish is becoming increasingly more
prevalent, but so far, all supreme court presidents have been proficient in Swedish. Icelandic
delegates will necessarily have to relate to the other Scandinavian languages as foreign
languages, despite our shared linguistic ancestry. However, also from Iceland the supreme
court presidents and many of the justices have been well familiar with Danish, Norwegian or
Swedish. A third aspect that likely has contributed to the significance of the Nordic court
president meetings, is the fact that it is a relatively small and manageable group. The small
number of representatives has allowed us to get to know each other personally, gaining
each other's confidence.
3.3 Nordic seminars for supreme court justices
The Nordic seminars for supreme court justices do not go back as far as the president
meetings. The first seminar was held in 2007. They are held every year, save for every third
year, when the Nordic legal professional's meeting is held. Each country can send up to eight
supreme court justices. For Sweden and Finland, the eight delegates must be divided
between justices in the general supreme court and the supreme administrative court.
Traditionally, the presidents of the national supreme courts have also participated in the
seminar for supreme court justices.
The topics addressed in the seminars for supreme court justices are similar to many of the
topics discussed during the supreme court presidents' meetings. In the most recent seminar
the contribution of supreme courts on the development of the law was a central topic. This
topic had also been discussed at the presidents meeting the previous year. This is not
atypical. Several of the supreme court president meetings have discussed difficult and
complex topics of principle, where the conclusion has been that it needs to be discussed
further in a seminar for supreme court justices.
3.4 Other types of formalized collaboration between the supreme courts in the Nordic
countries
The secretary-generals of the Nordic supreme courts meet every year. While the court
presidents also hold ultimate administrative responsibility for their respective courts, the
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day-to-day administrative management falls to the secretary-generals. The secretarygenerals also play a central role in resolving administrative issues, where the court president
makes the final decision. The secretary-generals' meeting is an important forum for
exchanging experiences. Being able to draw on experiences from the other Nordic supreme
courts has been invaluable in the significant organizational development the Supreme Court
of Norway has undergone in the last 10 to 15 years.
Annual meetings are also held between the librarians at the respective Nordic supreme
courts.
3.5 Other types of collaboration between the Nordic supreme courts
The law clerks of the Supreme Court of Norway have traditionally communicated extensively
with their Nordic colleagues. They have completed several study trips to other Nordic
supreme courts, and we have also hosted groups of visiting law clerks from the other Nordic
supreme courts. Typical topics of discussion include responsibilities and approaches. This
exchange of experiences has been especially valuable for the Supreme Court of Norway,
because we are about to embark on a considerable restructuring of the responsibilities of
our law clerks—a process that also includes certain organizational changes. Our law clerks
have also completed study trips to the ECHR, as well as the EFTA Court and the European
Court of Justice.
Even executive officers who are not involved in legal tasks have visited the supreme courts
of Denmark and Sweden to compare approaches to work and procedures, for the purpose of
streamlining their work and improve quality-assurance.
The Supreme Court of Norway was established in 1815, modelled on the Danish supreme
court—with the same procedures, type of operations and organizational structure. Much
has changed in both the Supreme Court of Denmark and the Supreme Court of Norway in
the 200 years that have passed, yet both courts have maintained many of the basic features.
As a result, the respective supreme courts of Denmark and Norway have a unique and close
connection. On an informal basis, several of the justices of the Supreme Court of Norway
have completed study trips to the Supreme Court of Denmark, where they, for a week or
two, have been given the opportunity to sit in on court proceedings, the votings and the
drafting of judgments. This has been a most valuable experience in considering whether to
change our own practices. The justices have also found it valuable to see how the Supreme
Court of Denmark uses their law clerks in preparing for the hearing of the case, especially in
light of the impending reorganization of the work of our law clerks.
As a result of this extensive collaboration with other Nordic supreme courts, we know our
Nordic colleagues well. This relation—even friendship—means that the threshold for asking
for advice in relevant issues is quite low. It would not be exaggerating in saying that the
informal contact between the respective Nordic supreme courts is considerable.
4. Collaboration with other countries outside the Nordic region
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In the past, the Supreme Court of Norway has worked closely with some supreme courts in
countries outside the Nordic region. Russia is one of the countries bordering Norway, and
with the dissolution of the Soviet Union and a young democracy in Russia, it felt natural to
reach out to the Supreme Court of Russia. The initial contact was made in the 1990s, and
also in the first decade after the millennium there was frequent contact, including visits and
return visits. Topics discussed included procedure—how to establish justifiable procedure—
and human rights. For some years now, however, contact with the Supreme Court of Russia
has been limited. We should reactivate contact with the Russian supreme court when the
time is right.
In the 1990s, we also worked closely with Lithuania, and particularly the Constitutional Court
of Lithuania. This was part of our effort to support the establishment of good, independent
courts in a young democracy.
The same basic principle is the main thought behind our collaboration with the Supreme
Court of Georgia. Groups of justices from our supreme court have visited Georgia twice to
discuss law and procedure with justices of the Georgian supreme court, and twice groups of
Georgian justices have visited Norway for the same purpose. This collaboration must be seen
in light of Norway's long-standing effort to contribute to the development of robust courts,
prosecuting authorities and lawyers in Georgia.
We have also collaborated with the Constitutional and the Supreme Court of Slovenia. This
collaboration was established some years after the millennium, and the primary motivation
was probably Slovenia's need to further develop these courts. This collaboration, which took
the form of communication between groups of justices, provided valuable insight for the
Norwegian justices as well.
From 2004, we have worked closely with courts in South Africa, particularly its constitutional
court. South Africa's court system is highly advanced. This collaboration is a mutual exchange
of experiences and ideas. Delegations of justices from Norway have visited South Africa, and
vice versa. Organizational issues have often been a central topic of discussion. Originally, the
motivation for reaching out to South Africa was likely politically motivated. Norway provided
considerable financial and other support to the ANC under the apartheid regime.
For a while, the Supreme Court of Norway also worked closely with the Supreme Courts of
China and Vietnam. This was a part of the dialogue regarding human rights which Norway
maintained with these countries. Contact with China has been discontinued entirely. The
dialogue on human rights with Vietnam is still on-going and active, as far as I am aware, but
the Supreme Court of Norway has not been involved in recent years.
5. Study trips to and from foreign and international courts
As I have mentioned some international courts and tribunals have a great impact on our own
jurisprudence. It is important for judges, including justices to be familiar with these courts,
how they work and their decisions. That is why the Supreme Court, in my time as Chief
Justice, has completed study trips to several international courts, where all justices have
participated. We have visited the ECHR twice, where we have received briefings and have
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had discussions with justices and members of the staff. We have also visited the EFTA Court
and the European Court of Justice, where we have received similar briefings and have been
engaged in similar discussions. Finally, we have visited all of the international courts located
in The Hague.
In rare cases, study trips involving all or most of our supreme court justices have also been
taken to national courts. We visited Finland's supreme administrative court to gain insight
into how an administrative court works, and we have attended two seminars—one in Poland
and one in Norway—with justices from Poland's constitutional court, to gain insight into how
a pure constitutional court works, among other things to establish a basis for comparison
with our own responsibilities as a constitutional court. In October this year a group of
justices from our supreme court will visit the Austrian constitutional court, to participate in a
seminar with the justices there. This seminar was initiated by the Austrian constitutional
court, and a return visit from the Austrian court to ours will most likely take place in 2016 or
2017.
6. Participation in international associations
Earlier, I mentioned that the Supreme Court of Norway is an observer in the EU's
associations for general and administrative supreme courts. In reality, we participate in
these associations in much the same way as representatives of the member states. Our
status as an observer and subsequent participation is valuable, partly because we may be
affected by the same developments as the courts of the EU member states as a consequence
of our EEA membership, and partly because it is relevant for us to stay informed of
developments in law within the EU. We also participate, as I mentioned, in other
international associations where we have full membership. Responsibility for following up on
the activities within these associations is assigned to various justices.
7. Participation in seminars, etc.
Every year, a large number of seminars and conferences are held in various forums. The
Supreme Court receives an almost equally large number of invitations to attend these
events. Many of them are not particularly relevant, and in these cases the Supreme Court
will, of course, decline the invitation. Some events are relevant, and then a brief
presentation is forwarded to the justices, asking if anyone has the time and would be willing
to attend. Often, the schedule will not permit any of the justices to attend, but if the
invitation is received early, and the topic of the conference is of great relevance, one or two
justices will often report an interest in attending.
Certain seminars require an attendance from the Supreme Court of Norway. In this context, I
could mention the EFTA Court seminar, which has been held in the spring or early summer
some years now, focusing on central topics from its area of activity. Given the role of the
EFTA Court and Norway's membership in the EEA, the Supreme Court of Norway will make
sure to be represented at these seminars.
8. International visitors to the Supreme Court of Norway
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A key aspect of the Supreme Court's international activities is the international visitors we
welcome, including foreign justices and politicians working with law and justice. These
delegations are often in Norway to study various aspects of the Norwegian legal system, and
a visit to the Supreme Court of Norway is a must in this regard. These delegations are often
welcomed by a couple of justices, the Secretary-General or Deputy Secretary-General and
the Head or Deputy Head of the Legal Secretariat. If I'm not taking part in a court hearing
when they arrive, I usually join my colleagues in welcoming the visitors. Unless our visitors
have asked to be briefed on any particular subject, they usually receive an hour-long briefing
on the Norwegian court system in general and the Supreme Court in particular, before they
receive a tour of the Supreme Court Building.
A couple of these visiting delegations deserve to be mentioned. In the summer of 2003, I
received a call from the American Embassy. The American Attorney General, Robert
Ashcroft, was in Norway, and had requested to visit the Supreme Court to discuss matters of
joint interest. As many of you may remember, Ashcroft was a central figure in the
establishment and implementation of Guantánamo as a prison for prisoners suspected of
terrorist activities. The prisoners at Guantánamo were often held without any charges or
trial, and the treatment they received was beyond reprehensible. I gathered a group of
justices, comprising Ketil Lund, Lars Oftedahl Broch and Karin Bruzelius, as well as myself and
Secretary-General Gunnar Bergby. For a couple of hours, we engaged in intense debate over
the use of Guantánamo, but also the American use of the death penalty. We didn't agree on
much—or hardly anything—but in Ashcroft's defence, he had a pleasant personality and
contributed to a good debate.
The second visit deserving to be specially mentioned was when the president of Vietnam
visited Norway in 2008. At the time, Vietnam was undertaking a major court reform, and the
president had asked to meet with representatives of the Supreme Court for an opinion on
the reform proposals they had prepared. The subsequent discussion with the Vietnamese
president was both engaging and insightful, as the president was very knowledgeable about
the activities and significance of the courts.