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Norwegian Life and Society

THE NORWEGIAN LEGAL SYSTEM



Thomas Horn

Attorney-at-law, admitted to the Supreme Court

Research fellow, Dept. of Public and International Law UiO

10th October 2011

THE NORWEGIAN LEGAL SYSTEM



THE NORWEGIAN LEGAL SYSTEM

THE NORWEGIAN LEGAL SYSTEM



1. Introduction – some question marks

2. Foundation: The Constitution of 1814

The division of powers

Judicial review

3. The Parliament (Stortinget) – the legislative branch

Parliament as a main power in the legal system

The principle of legality

The principle of non-retroactivity



4. The Government – the executive branch

Law making capacity of the executive branch

Executive power – enforcing legal order

5. The Court System – the judicial branch

The independence of the Courts

The tasks of the Courts

The hierarchy of the Courts

Composition of the Courts – professional judges

Composition of the Courts – lay judges

Court proceedings and hearings

Transparency



6. The Norwegian legal system compared to other western legal systems

7. Some major trends in the Norwegian legal system

Wide administrative powers in the aftermath of WWII

Increased protection of citizen’s position

Consumer protection

Deregulation – more free market

EU/EØS-legislation

Soft on crime – or tougher on crime?

Human Rights

In the aftermath of the Utøya-massacre



1.Introduction – some question marks


(...)

2.Foundation: The Constitution of 1814

The division of powers


The modern history of the Norwegian legal system starts with the year 1814.

Prior to 1814 Norway had been ruled by the Danish king.

However, Denmark had been fighting with Napoleon, and in 1814 it was quite clear that Norway would be handed over to Sweden – as a reward for the Swedish war-effort against Napoleon.

The Norwegian people did however have different ideas. The Norwegian people wanted to be free, and managed to adopt a new Constitution just in time before the country was handed over to Sweden.

This Constitution was inspired by the American Constitution of 1787, the French Constitution of 1791, as well as the popular idea of the peoples right to self determination.

The Norwegian Constitution is one of the oldest constitutions in the world still in force today, second only to the US constitution.

The Norwegian Constitution was considered to be both radical and democratic since it was based on the sovereignty of the people:



Power resides with the people. The absolutist rule of the Danish monarchy, where all power resided in the hands of the King, was to be replaced by a constitutional monarchy.

A National Assembly (Stortinget) was to be established, and the monarch's power would be limited by the terms of the constitution.



Power was to be divided between:

  • the legislative branch (Stortinget),

  • the executive branch (the King)

  • the judiciary (the Courts of Justice).

This, of course, was inspired by the French philosopher Montesquieu’s ideas of division of power within the state.

Judicial review


The Norwegian Constitution was also among the first constitutions to be regarded as legally binding.

At that point in history, in the first half of the 19th century, constitutions were largely seen only as a declaration of political will.

  • If the political authorities acted in breach of the constitution, no legal consequences could be drawn.

In Norway however, the constitution was seen as legally limiting the legislative and executive powers.

This means that the courts can disregard parliamentary legislation when such legislation is in contradiction with the Constitution.

This important principle of judicial review was confirmed by the Norwegian Supreme Court during the 1840s.

Later on – mainly after the Second World War – the principle of judicial review has also gained importance in many other European countries.

Some countries have established constitutional courts, like Germany and France.

Some countries leave the judicial review to ordinary courts, like Sweden and Denmark.

However, in many countries the courts are still left without the possibility of judicial review.

Thus, in countries like England and the Netherlands, Parliament has kept it undisputed supremacy (parliamentary sovereignty).

3.The Parliament (Stortinget) – the legislative branch

Parliament as a main power in the legal system


Speaking about the legal system, many people will tend to think about the courts of justice.

However, the most powerful position in the legal system lies with the Parliament, which has the power to issue new legislation.

The Parliament’s power to issue new legislation is only limited by the Constitution.


  • Remember: The Parliament has to keep new legislation within the scope of the Constitution – unconstitutional legislation should be disregarded by the courts (judicial review).

The principle of legality


The powerful position of the Parliament is supported by the principle of legality.

Rule of law does imply that state authorities are obliged to act through parliamentary legislation when infringing upon legal rights of the individual.

This is the principle of legality (a constitutional principle).

According to the principle of legality neither the executive branch nor the courts can infringe upon legal rights of the individual without basis in parliamentary legislation.


  • I will give you some examples:

  • Criminal penalties can only be imposed when such penalties have legal basis in parliamentary legislation.

  • Private property can only be confiscated in the interest of society if confiscation is specifically allowed by parliamentary legislation.

  • Further, the same applies to imposing taxes on the citizens and all other sorts of infringements of the individual legal position.

The principle of legality ensures the people’s sovereignty – the people should only have to obey the rules laid down by the elected representatives in parliament.

The principle of legality also ensures that the citizens are able to foresee their legal position in society.


The principle of non-retroactivity


The Parliament’s legislative power is also limited by the prohibition on retroactive legislation.

This principle is laid down in the Constitution.

The prohibition on retroactive legislation ensures that new legislation adopted by Parliament is not put into effect for former actions.

I will give you one example:



  • A new criminal law can only have effect for actions committed after the new criminal legislation has been adopted.

  • Previous actions, actions that were not criminal at the time they were committed, have to be left unpunished.


4.The Government – the executive branch

Law making capacity of the executive branch


Even if it is the Parliament that has the power to adopt new legislation, the Government is of course left with substantial influence on the legislative process.

In a modern complex society very few laws are shaped by the parliament itself.

In real life new legislation has to be prepared by the bureaucracy, and the Government controls the bureaucracy.

Thus, it is very difficult to enact any form of legislative power if not in Government.

One could perhaps say that the Government controls the steering wheel, while the Parliament controls the gas pedal and the brakes.

*

Additionally, the Government is trusted by legislation with wide powers to issue new directives (“forskrifter”).



Thus, the Government has a substantial “law making” capacity itself.

Executive power – enforcing legal order


As the executive branch, the Government is also entrusted with the responsibility to enforce legal order.

Thus, the Government controls the police.

In theory the Government is also in charge of the Prosecuting authority.

To a large extent, however, the Public Prosecutors act independently from the political authorities.

The prosecutors office, therefore, independently decides which cases or persons to investigate, and which persons to prosecute.

The government is also responsible for executing the criminal sentences pronounced by the courts.

The Government is also responsible for enforcing civil court rulings.

This could be done by evicting tenants who don’t pay their rent, by seizing property to pay for debts – and son on.


5.The Court System – the judicial branch

The independence of the Courts


The courts are separate from the legislative branch (Storting) and the executive branch (the government).

This is a consequence of applying the division of powers principle.



The independence of the Courts is protected by the Constitution.

Article 88 ensures that The Supreme Court’s decisions can not be overruled by any other authoritiesnot by the Parliament, and not by the Governement.

The independence of the courts is further ensured in two ways:



Firstly, the decisions made by the Courts in each and every case are to be independent of external influence. Judges cannot be instructed or influenced.

Secondly, the judges are guaranteed protection of office. This enables the judges to make rulings and give verdicts that may be unpopular.

The judges have to be free of the fear of dismissal even if their decisions are not supported by the authorities or by other judges.

Therefore, the judges hold permanent positions and cannot be dismissed or moved against their will.

Thus all parties appearing in court are ensured an independent and impartial ruling from the courts.

However, permanent judges can be punished for breaking the criminal law while carrying out their duties or for offences committed outside their workplace.

However, the decision about whether to prosecute for offences relating to a judge's duties may only be taken by the King’s Council.


The tasks of the Courts


Norwegian courts rule in both civil and criminal cases.

*

According to the Constitution, criminals can only be punished after conviction in a court of law.



The Courts, however, can never commence a case on their own initiative.

In criminal cases there are no investigative courts in the Norwegian legal system.

All investigation in criminal cases is carried out by the police and prosecutors. Therefore the courts have no role before the case is brought to court for judgment.

This is different from the French legal system, as well as many other European legal systems.

*

Turning to civil cases, the courts could be seen as society's most important instruments in the settlement of disputes between citizens.



However, only a tiny proportion of disputes between citizens are brought to court.

Court proceedings take time and a lot of personal energy and focus.

- And of course: Court proceedings cost a lot of money.

Most disputes between citizens are therefore settled by negotiations – or perhaps even left unsolved.

In recent times the Courts have been using conciliation proceedings as an alternative to ordinary court proceedings.

Conciliation proceedings involve active participation of the disputing parties to find a compromise. The mediator is usually a judge.

Conciliation proceedings have proved to be an effective method for the settlement of civil cases in court.

Conciliation proceedings often enable the parties to find different and more constructive solutions than what would be the outcome of an ordinary court case.

*

Sometimes citizens try to use the courts to solve all kinds of disputes – even political issues, moral issues, religious issues, professional and scientific issues, social issues, hypothetical issues and so on.



However, the courts are not meant to solve all those kind of issues.

The Courts can therefore only deal with issues of legal matter.

In political issues the courts lack political legitimacy. Purely political issues are therefore best left to the Parliament or the Government to decide.

Likewise, the court is hardly the best forum to discuss which scientific theories are right or wrong.



  • When one professor brought a case to court and asked the court to decide that a certain scientific theory was false, the case was of course dismissed.

Another famous example is the case concerning the exclusion from a five-man music band.

The Supreme Court did not allow this case either, as the exclusion was seen as a purely social matter between the members of the band.

*

However, in all cases concerning legal matters, the courts of law have a duty to reach a decision in all individual cases brought before them.



*

According to the European Convention of Human Rights, court decisions should also be reached “within reasonable time”.

In some legal systems the slowness of the system is a great problem.


  • The European Court of Human rights has for instance convicted Italy in a large number of cases due to unreasonable lengthy court cases.

Norwegian court cases will however generally comply with the “reasonable time”-criteria. Exceptions do however occur.

The hierarchy of the Courts


The structure of the Courts of Justice in Norway is like a pyramid.

The pyramid has three levels:




  • The District Courts (“tingrett”)

  • Appeals Courts/High Court (“lagmannsretten”)

  • Supreme Court (“Høyesterett”)

*

The District Courts are the courts of the first instance.

There are 70 district courts in Norway, each covering a relatively small part of the country.

The Norwegian courts have general jurisdiction of all legal matters.

All cases will therefore have to start in the district courts.

In Norway there is no division between ordinary courts and administrative courts (like in Sweden and France).

There is no division between criminal courts and civil courts.

Neither is there a separate constitutional court.

This is unlike the system in many countries, particularly in continental Europe, like in France and Germany.

Therefore, all courts have the same all-encompassing competence to handle all criminal cases and all civil cases.

*

The second instance court is the Appeals Court.



There are only six Appeals Courts.

Appeal is the judicial remedy normally pursued in respect of judgments rendered by the lower courts.

Thus, a verdict by the District Court can be altered by the Appeals Court after an appeals procedure.

There is a right to appeal in most civil cases and most criminal cases.

In civil cases the right to appeal is barred if the dispute is concerning a sum of money less than 125.000 NOK.

In criminal cases where the accused have been sentenced to prison, the right to appeal is only barred if the Appeals Court find the appeal clearly without substance (“klart ikke vil føre frem”).

In the most serious criminal cases a convicted person has an unlimited right to appeal.

*

The Supreme Court is of course the nation's highest court.

The Supreme Court is situated in Oslo, and it has jurisdiction over the entire country.

There are only 19 Supreme Court judges.

It goes without saying that the Supreme Court can not be the final instance in all Norwegian court cases.

The right to appeal to the Supreme Court is therefore heavily restricted.

Any matter brought before the Supreme Court must initially be considered by the Appeals Selection Committee, consisting of three Supreme Court justices.

An appeal may not be brought before the Supreme Court without obtaining a leave to appeal from the Appeals Selection Committee.

Only about 15 % of the appeals are granted a leave to appeal to the Supreme Court.

However, the purpose of the Supreme Court is not primarily to make sure that the outcome of each and every court case in Norway is correct.



  • This purpose is considered sufficiently taken care of by the right to appeal to the Appeals Court.

The purpose of the Supreme Court is more restricted:

  • To ensure uniformity of legal process in the whole country.

  • And even more important: The Supreme Court should contribute to the resolution of matters on which the law is unclear.

  • In this effect, the Supreme Court is also responsible for developing law.

Accordingly, leave to appeal to the Supreme Court is normally granted only in cases that raise matters of principle beyond the specific subject matter of the issue in dispute.

Composition of the Courts – professional judges


All cases are presided over by professional judges.

Professional judges are always qualified lawyers.

In ordinary cases there will be:


  • one judge in the District court

  • three judges in the Appeals Court

  • five judges in the Supreme Court

In some very important cases, the Supreme Court may sit in a plenary session – with all 19 Supreme Court judges participating.

Composition of the Courts – lay judges


In civil cases the parties may demand that the professional judges are supported by lay judges (but not in the Supreme Court).

In criminal cases the ordinary citizen will always be strongly represented in the courts by lay judges.

It is a deeply rooted principle of Norwegian Criminal Law that a defendant is to be judged by his equals.

Thus, in a District Court, there would be two lay judges and only one professional judge.

The professional judges and the lay judges have one vote each. The lay judges may therefore decide the case against the vote of a professional judge.

If the accused pleads guilty, the criminal case may be heard by only the professional judge.

*

Lay judges also participate in criminal cases heard in the Courts of Appeal.



In ordinary cases, there will be three professional judges and four lay judges.

In major criminal cases the lay judges form a bench with 10 jury members with sole competence to decide on issue of guilt.

If the jury finds the defendant guilty, four of the jury members and three of the professional judges will then join to decide the punishment.

Court proceedings and hearings


Civil cases

In many European countries, the parties will present their arguments in writing.

Statements from parties and witnesses will be written down and the case will be decided upon the written material.

That is not the case in Norway.

Even if there will be some written preparation of the case, the Norwegian courts will decide the case primarily on the material presented orally directly before the tribunal through a session called a “main hearing”.

During the “main hearing” the court will hear all the parties and all the witnesses in person, and all legal arguments will be presented orally directly before the tribunal.

The proceedings of the Supreme Court are also oral, and are generally conducted in open court. However, evidence and testimony are not presented directly before the Supreme Court as in cases before the District Courts and the Court of Appeal.

Criminal cases

The oral tradition is even stronger in criminal cases.

In criminal cases the judges should start out the “main hearing“ as a tabula rasa.

At the start of the “main hearing“ the judges will know little more about the case than the written accusation and the list of witnesses.

This is to protect the presumption of innocence.

This procedure also enables the judges to consider people and not papers and thus giving them a good basis to evaluate the evidence.

Also, any unclear points in the statement could be addressed and handled at once – giving a good basis for contradiction.

Transparency


A main rule for the administration of justice in Norway is that the public and the press should have free admission court hearings.

This is to ensure a fair and secure administration of justice, and to encourage criticism and the possibility of controlling what the courts are doing.

It is also a goal to keep the general public well informed about the legal system and its application.

Further, openness encourages trust in the courts’ administration of justice.


6.The Norwegian legal system compared to other western legal systems


Basically it can be said that Norway share the same legal culture as the rest of Western Europe.

However, Western law can be said to be divided between two main traditions:



  • Continental law (i.a. France, Germany)

  • Common law (Anglo/American law).

To put it bluntly, Continental law is primarily focusing on extensive and detailed legislation and principles of law.

In Common law the focus is more on case-law developed by the Courts, as well as tradition.

The Norwegian legal system is somewhere between those systems – and also a bit on the side of them.

Parliamentary legislation has always been a key figure in the Norwegian legal system.

However, the legislation is often less detailed.

To a certain degree the legislator trusts the courts to find the “spirit of the law”.

However, in this respect the courts place heavy emphasis on the legislators own “preparatory works” – almost to such extent that the wording of the “preparatory works” work can be as important as the wording of the legislation itself.

Still, in Norway the courts have the power and the duty to develop the law.

Supreme Court case-law is recognised as highly important.

The Norwegian way of legal thinking is less focused on principles, and more about finding the pragmatic solution to each and every case. Therefore, Norwegian law belongs to the tradition of Scandinavian “legal pragmatism”.

7.Some major trends in the Norwegian legal system

Wide administrative powers in the aftermath of WWII


In the aftermath of the Second World War Norway and Norwegian culture was dominated by the social democrats for decades.

Society was perceived with strong emphasis on common goals, such as the rebuilding of the country after the Second World War.



The state was expansive and took on to regulate most fields of society.

The state and the bureaucracy were generally trusted to act in the best interest of the people.

Therefore, a major trend in the legal system was legislation that provided the social democrat Government and the bureaucracy with wide administrative powers.

At the same time the Supreme Court was very reluctant to conduct judicial review in this period of time.


Increased protection of citizen’s position


The strong state eventually led to a demand for increased procedural rights in favor of the citizen.

During the 1960s citizens gained a right to transparency in administrative matters and a right to review concerning administrative decisions.

During the later decades there have also been a development from wide discretionary powers towards more legally binding rights for the citizens.

This is especially so in the field of social rights.



  • An example: According to law every child has a legally binding right to day care from one year age.

Such legally binding rights for individuals makes national politicians popular.

But at the same time such expensive rights give the local authorities less possibility to use public money according to political wishes and needs.


Consumer protection


Consumer protection has also been a major trend.

The protection of the weaker parties been a purpose in much of modern Norwegian legislation.

This trend has also influenced the contract law.

As an example, the Parliament have passed a law that gives the Courts the power to declare contracts not binding if the contract is deemed to be “unreasonable”.


Deregulation – more free market


At the same time, another major trend is deregulation and introduction of free market mechanisms in new areas of society.

Examples can be taken from the housing sector, the banking sector, the health sector and even the electricity sector (Norway was the first country in Europe to introduce a free market for electricity).


EU/EØS-legislation


A very strong influence has also come from the EU.

Due to the EØS-agreement (The European Economic Cooperation) Norway is obliged to implement EU-legislation en masse.

There have also been established a specific surveillance authority (ESA) to monitor that Norway complies with the EØS-duties, as well as a specific Court that have the power to decide in such issues (the EFTA Court).

Soft on crime – or tougher on crime?


Prisoner rates have been relatively low in Norway.

Harsh punishments have traditionally not been perceived to be the solution on the crime problem.

However, also in Norway there is a constant cry that “something have to be done” about the crime problem.

Human Rights


Human Rights have always been considered important in Norway.

However, until the 1990s few court cases ever mentioned the human rights conventions.

In 1999 the Parliament passed an act that explicitly made the European Convention on human rights part of Norwegian law.

And even more important: The European Convention shall prevail if any Norwegian act is in breach of the Convention.

The main purpose of this act is to show the world that Norway takes Human Rights seriously.


  • Norway wants to promote Human Rights on the international arena. Therefore we have to make sure that the Norwegian legal system does comply with Human Right standards.

Consequently, since 2000 there have been a huge number of cases in the Supreme Court concerning the European Convention.

This has led some people, mainly state bureaucrats, to argue that the influence of Convention has become too strong and that the Convention is undermining the Norwegian democracy.

However, the Supreme Court has rejected this.

The Supreme Court points out that strong influence of Human Rights are the result of a well-considered decision in Parliament. Therefore, there are no legitimacy problems, and no undermining of the democracy.


In the aftermath of the Utøya-massacre


The society’s initial response to Utøya-massacre was loud and unified:

  • We shall ensure more democracy, more transparency and more compassion.

  • And: We refuse to be forced into a surveillance-society limiting our quality of life

Still: It will be interesting to observe what will happen in the long run?

We can all fear that the “we have to do something”-syndrome will lead society several steps in the opposite direction – towards more surveillance and state control.





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