Introduction to the Norwegian Legal System

- Lecture 3 -

”The Judiciary and Judicial review”

Iris Nguyên-Duy

The Judiciary and Judicial Review

I. The Judiciary1. 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 Judiciary1. 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 courtsa. The Supreme Court

b. The Courts of Appeal

c. The District Courts

4. The judgesa. 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

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)

a. The Supreme Court

• 20 judges (leader: 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.

• Certain cases are considered by the 20 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.

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

c. The District courts• = The “first instance” of the courts of justice

• 66 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.

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.

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

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 legislation1. 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.”