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. Constitutional basis

2. Structure (hierarchy)

3. Presentation of the ordinary courts

4. The judges

5. How do the courts work

II. Judicial review in Norway: An Introduction

III. Judicial review of legislation

I. The Judiciary 1. Constitutional basis

2. Structure (hierarchy)

a. The ordinary courts

b. The special / specialised courts

c. The independant quasi-judicial appeal boards

3. Presentation of the ordinary courts

a. The District Courts

b. The Courts of Appeal

c. The Supreme Court

4. The judges

a. The appointment of judges in Norway

b. The issue of the judges’ independence

c. The Riksrett (the ”Court of Impeachment”)

5. 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

Source for the photos of the buildings: domstol.no

Chief Justice Tore Schei Photo: ERLEND AAS/SCANPIX

c. The Supreme Court • 19 judges (leader: Chief Justice Tore Schei

[Høyesterettsjustitiarius])

• 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. Introduction

2. Judicial review of legislation based on the Constitution –

Constitutional judicial review

- The Wedel-Jarlsberg case (1866)

- 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)

3. 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 Bosnia-

Herzegovina (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.