Introduction to the Norwegian Legal
System – Autumn 2012
Lecture 3
”The Judiciary and Judicial review”
Iris Nguyên-Duy
The Judiciary and Judicial Review
I. The Judiciary
1.
2.
3.
4.
5.
Constitutional basis
Structure (hierarchy)
Presentation of the ordinary courts
The judges
How do the courts work
II. Judicial review in Norway: An Introduction
III. Judicial review of legislation
I. The Judiciary
1.
2.
Constitutional basis
Structure (hierarchy)
a.
b.
c.
3.
Presentation of the ordinary courts
a.
b.
c.
4.
The District Courts
The Courts of Appeal
The Supreme Court
The judges
a.
b.
c.
5.
The ordinary courts
The special / specialised courts
The independant quasi-judicial appeal boards
The appointment of judges in Norway
The issue of the judges’ independence
The Riksrett (the ”Court of Impeachment”)
How do the courts work
Two-instance system
The Norwegian Judicial System
Special Courts
• The conciliation board (forliksrådet)
• The Land Consolidation Court of Norway
(Jordskiftedomstolene)
• The Labour Court or Industrial Dispute Tribunal
(Arbeidsretten)
• The Riksrett (“Court of Impeachment”)
Independent quasi-judicial appeal boards
• Immigration Appeals Board (utlendingsnemnda)
• National Insurance Court (Trygderetten), etc.
a. The District courts
• = The “first instance” of the courts of justice
• Ca. 75 District courts
• Judgments of the District Court may be appealed to the
Court of Appeal. This means that for reasons of due
process, the question of guilt is tested in two instances.
• With the exception of the most serious cases, the Court of
Appeal’s appeals committee can refuse to let the Court
of Appeal hear a case.
b. The Courts of appeal
• 6 courts of appeal in Norway
• Each Court of Appeal is headed by a senior judge
president and each Court of Appeal has several appellate
judges
The District Court of Oslo (Oslos tingrett)
Source: domstol.no
The Supreme Court
Chief Justice Tore Schei
Photo: ERLEND AAS/SCANPIX
Source for the photos of the buildings: domstol.no
c. The Supreme Court
• 19
judges
(leader:
[Høyesterettsjustitiarius])
Chief
Justice
Tore
Schei
• The Supreme Court is the nation's highest court of justice
and the instance of appeal for verdicts handed down by
courts of a lower level.
• The Supreme Court’s (Interlocutory )Appeals Committee
decides whether a case shall proceed to the Supreme Court
(three judges per case)
• Certain cases are considered by the 19 Supreme Court
judges in plenum. For example:
– When there is need to determine whether a statute is
unconstitutional
– In case of other questionable issues, issues raising doubts or in
case of
– Important and principled cases against the State.
The judges - Appointment
• In Norway, all cases before the courts are presided over by a
professional judge. The lay judge system, however, ensures that
citizens who do not have a law qualification also play a key role in
Norwegian jurisprudence.
• The judiciary should reflect the broadest possible professional legal
background.
• There has never been a formal “career system” for judges in Norway
• The professional judges are always law graduates, and are civil
servants appointed by the King-in-Council. The Judicial
Appointments Board for judges, which is an independent body, makes
recommendations for judge appointments. A judge must be a
Norwegian citizen. A judge can only be dismissed by a court
judgment.
• They are appointed for “lifetime”, that is until the compulsory age of
retirement at 70, but with an opportunity to leave with full pension at
the age of 67.
A few links and references in English
About the Norwegian Courts:
http://www.domstol.no/upload/da/internett/da.no/publikasjoner/domstolen
e%20i%20norge_eng_oppsl.pdf
“Ethical principles for the proper conduct of the Norwegian judges” (2010)
http://www.domstol.no/upload/DA/Internett/da.no/Publikasjoner/Ethical%20
principles%20for%20the%20proper%20conduct%20of%20Norwegian%2
0judges.pdf
Grendstad G., W.R. Shaffer, E.N. Waltenburg (2010), Revealed Preferences
of Norwegian Supreme Court Justices. Tidsskrift for rettsvitenskap,
01/2010, pp. 73-101;
Grendstad, Gunnar, William R. Shaffer, and Eric N. Waltenburg. 2011.
"When justices disagree. The Influence of Ideology and Geography on
Economic Voting on the Norwegian Supreme Court." Retfærd 34 (2)
II. Judicial review in Norway:
An Introduction
1. Judicial review in general
a. Short history of judicial review in Norway
b. The main characteristics of the system of judicial
review
2. Judicial review of administrative decisions
A short history of judicial review in Norway
Despite the founding fathers’ ideological basis, the Supreme Court started very early to
apply the Constitution as a part of positive law.
The Norwegian system of judicial review of the constitutionality of legislative norms is the
second oldest in the World.
It has no explicit basis in the Constitution of 1814, but it grew out by court practice since
around 1820 and the final decisions – mainly those of the Supreme Court – were
systematically respected by the other constituted powers.
In 1822, we find the first case of the Court discussing whether a statute is compatible with
the standards of the Constitution.
Before 1863 the opinions by the judges in the Supreme Court were secret, and thus the
landmark judgment concerning judicial review is as late as from 1866.
In the Wedel Jarlsberg decision of 1866, the Court asked the principal question:
“What shall the Supreme Court decide, when at the same time both the Constitution and
statute are submitted before them?”
The Court then stated that in such a conflict of laws, the provisions in the Constitution must
take precedence over the statute.
Today this right to review is deemed to have the status of constitutional customary law
(konstitusjonell sedvanerett), and, as such, may only be revoked or limited by an
amendment to the Constitution.
Reform proposal (Lønning Committee): a new § 114 of the Constitution, in a new part
E…
II. 1. b. The main characteristics of Norwegian
judicial review
a) The Norwegian system of judicial review is part of the family of
“American” system as opposed to the “European” model
characterised by the existence of specialised constitutional courts.
Recently, there have been debates on the opportunity of instituting
a constitutional court in Norway especially after the Supreme
Court’s decision of 2010 on the Shipping Tax
(rederiskattdommen).
b) Review takes place in any case where constitutional norms
intervene and need to be addressed in order to determine the legal
answer to be given.
c) The review system is “decentralized” or “diffuse” in the sense
that any court (and any judge) asked to decide upon a case where
constitutional issues are involved, will have to act as a
“constitutional judge”.
II. 1. b. The main characteristics of Norwegian
judicial review
d) Review may take place in cases of any kind (civil,
administrative, penal/criminal).
e) Review operates only in individual cases (in concreto).
f) Review takes places only ex post, that is to say after the
contested provision has been set in force and has given rise to
problems of a constitutional kind [but see art. 83 of the Constitution].
g) Constitutional questions of some importance or complexity will
normally be decided by the Supreme Court in the last instance
by way of appeal (see art. 88 of the Constitution).
h) The courts do not have the power to try the constitutionality of a
statute on their own initiative.
i) When a law is declared unconstitutional, it is not applied. It is
“put on the side” (“loven settes til side”). In theory, effect of the
decision = inter partes only; but the “actual” effect may very
well be erga omnes when/as it sets a precedent for other cases.
III. Judicial review of legislation
1.
2.
Introduction
Judicial review of legislation based on the Constitution –
Constitutional judicial review
- The Wedel-Jarlsberg case (1866)
3.
- The Great Concession case (1918)
- The Kløfta case (1976)
- The Site Leasehold cases (2007)
- The Shipping Tax case (2010)
- The OVF case (2010)
- The War Criminal case (2010)
Judicial review of legislation based on the ECHR and EU/EEA
law
- The Bølgepapp case (1994)
- The Rest-Yugoslavia case (1999)
- The Double Taxation case (2000)
- The Boot Boys case (2002)
- The Presumption of innocence case (2005) + cases of 2009, 2010 & 2011
Kløfta case of 1976 (Rt. 1976 s. 1)
||||||“[T]here are different views of how much is needed for the courts to set a law
aside as inconsistent with the constitution. I do not think it necessary to speak
generally of this. The solution will, to some degree, depend on the
constitutional provisions at issue. When dealing with provisions which protect
the individual’s personal liberty or security, the constitution’s weight must be
considerable. If, on the other hand, we are talking about provisions that
regulate the workings of the other branches of government or their
competence, I believe, like the first to vote in [the whaling case of 1952] that
the courts must, to a great degree, respect Parliament’s own view. Provisions
which protect economic rights must be in a middle position.
I think it clear that Parliament’s understanding of such legislation’s relation to
the constitution must play an important role when the courts determine its
constitutionality, and that the courts must be careful when surimposing their
evaluation on the legislature’s (…) Based on this, I would, personally,
hesitate to find a law unconstitutional in cases where there is reasonable doubt
and where Parliament has clearly evaluated the law’s constitutionality and
come to the conclusion that the law is consistent with the constitution. But if
judicial review is to have any meaning, the courts must exercise it in cases in
which they find it beyond reasonable doubt that the law will lead to
consequences which are inconsistent with the constitution.”
The evolution of Judicial Review of legislation
The renaissance of judicial review of legislation in Norway since the 1970s can be
explained:
- by the courts’ increasing confidence and
- by the fact that the judges are more “aware of the constitutional tasks” they have to
perform.
- Due to the knowledge that constitutional judicial review has been widely accepted
and developed in Europe since the end of the Second World War.
- Because of the influence of the international human rights ideology – which has
lead to a development of an active review, in Norway, of legislation according to
international treaty-based human rights standards. This evolution in the field of
international and European human rights might also have contributed to embolden
the Norwegian courts, give them more confidence, make them aware of the status
of their European fellows and make them want to be more active.
- Not to mention the influence of the European case-law, especially coming from the
EctHR.
Especially since the Shipping Tax case of February 2010 (and the 2 other main
decisions of 2010, the OVF case and War Criminal case), the Supreme Court
seems to have moved away from the traditional position that the courts should show
restraint in reviewing legislative provisions.
The three decisions of 2010
The Shipping Tax case of February 2010 (Rt. 2010 s. 143)
Ten years before the contested legislation was adopted the income tax rate for ship owners was
cut to zero provided profits were kept in the company and the head-quarters kept in Norway.
While abandoning those provisions a new tax regime maintained a close to zero rate. The
transitional provisions required, however, that those who had adhered to the previous
scheme (but notably, unlike newcomers) pay their dues before entering the new system. The
Supreme Court found that this part of the statute interfered with their right to determine if or
when to take benefits out of the company and/or move their headquarters (thereby
submitting them to taxation). This was deemed to be in “clear breach” of the Constitution:
while the Parliament is more or less free to change legislation for the future, legislating for
decisions taken up to ten years ago would unduly infringe the rule of law, a system of values
of which the core of art.97 constitutes a vital part.
The OVF case [the Norwegian Church Endowment case] of April 2010 (Rt. 2010 s. 535)
concerned the application of § 106 of the Constitution.
Unchanged since 1814, the provision should be understood as arising from the church-state
relationship at least partly rooted back to the medieval age and to the church estates taken
over by the royal power by the Lutheran reformation (1537). The relevant property and
money are administered by a Foundation set up by statute. Today, the clergy is paid by the
state and education is provided by public schools. This might give reason to regard art.106
as outdated and no longer worthy of being relied upon to challenge an otherwise validly
enacted statute. That was the position of one dissenting judge.
But the large majority of the court found it “clear” that new legislative provisions opening up for
sale plots of land used for housing and rented from the relevant Foundation to people owning
the houses on the plots, for a price substantially below market value (itself partly a product of
statutory regulation as well as substantial litigation with important constitutional aspects),
was unconstitutional: even if the present day limits of the purposes listed in art.106 may not
be completely clear, legislation opening up for de facto giving of money to people hiring land
from the Foundation was well beyond the permitted purposes.
The War Criminal case [A. v. Public Prosecution] of December 2010 (Rt. 2010 s. 1445)
The appellant, a Norwegian Bosnian, was a former member of a paramilitary unit in BosniaHerzegovina (Croatian Defence Forces HOS) and allegedly took part in arbitrary detention
and violence directed against Serbian civilians during the Bosnian war. He was indicted for
crimes against humanity and war crimes. He was sentenced in December 2008 to five years in
jail for his 1992 crimes against Serbs and ordered to pay damages to his victims, while the
Appeals court in Oslo reduced the sentence by six months in April 2010. The Supreme Court
held unanimously that criminal liability was not barred (foreldet), but annulled the previous
sentencing for war crimes in December 2010. On April 13, 2011, he was sentenced, on a
“deprivation of liberty” charge, by the Norwegian Supreme Court, to 8 years prison and
ordered to pay a significant compensation to the victims.
The main legal issue in December 2010 was whether the provisions on crimes against humanity
and war crimes in the Penal Code of 2005, Chapter 16, which came into force in 2008, could
be applied retroactively to acts committed in Bosnia-Herzegovina in 1992 or whether the
prohibition of legislative retroactivity, in this case, was absolute (and the appellant would
consequently be tried on the sole ground of illegal “depravation of liberty” (ulovlig
frihetsberøvelse)).
The majority held that the constitutional prohibition of retroactive legislation is absolute and
cannot be circumvented. They concluded that it would be contrary to the retroactive
prohibition in § 97 of the Constitution to apply the new provisions of the Penal Code of 2005
§ 102 and § 103, that came into force in 2008. It would constitute a retroactivity detrimental
for the appellant if he were to be convicted under Chapter 16 of the new Penal Code of 2005 –
although the penalty remained within the legal framework set by § 223 in the former Penal
Code of 1902.]
See: E. Smith, Norway - Supreme Court strongly reaffirms supremacy of constitution by striking
down controversial legislative provisions, (2011), Public Law, pp. 188-190.
In the first and the last case, legislation was declared non conform to article 97 of the
Constitution that prohibits/forbids retroactive legislation [In the 2nd case it was article 106 of
the Constitution that was the central provision].
In these three decisions of 2010, the majority of the Supreme Court
• found it clear that the legislative provisions at stake were clearly / manifestly
unconstitutional AND
• did not take into account the Parliament’s reasoned statements about the conformity of the
statutes with the Constitution. The Supreme Court gave more weight to the constitutional text
than to the expressed and reasoned views of Parliament.
Judicial Review of Constitutional Amendments?
The problem here is to determine who has the last word as to the material or
substantive limits to constitutional amendments. Who decides on the
constitutionality of a constitutional amendment once it has been adopted in due
form?
According to art. 112 of the Constitution, there is a material limit in the Constitution
to the power of constitutional amendment  “the spirit” and the “principles”
of the Constitution.
NB: the Norwegian Judiciary has never had to decide on a question concerning the
constitutionality of constitutional amendments.
For now, one can say that the constitutionality of an amendment is definitely
established after its adoption according to the relevant procedure.
Read, f.ex.: E. Smith, Old and Protected? On the “Supra-Constitutional” Clause in the
Constitution of Norway, (2011), Israel Law Review, vol. 44, nr. 3, pp. 369-388.