Iris Nguyên-Duy, Dept. Of Public and International Law

Introduction to the Norwegian Legal System

Lecture 4

”The Protection of Human Rights

in Norwegian Law”

”The Protection of Human Rights in

Norwegian Law”

I. Overview: the national and international

provisions on human rights

II. The constitutional protection of human rights

in Norway

III. The status of ECHR and UN conventions in

Norwegian law

IV. Examples

I. Overview: the national and international

provisions on human rights

• UN Universal Declaration of Human Rights of

1948

• International Covenant on Civil and Political

Rights & the International Covenant on

Economic, Social and Cultural Rights (1966)

• Human Rights Act of 1999

• Etc.

II. The constitutional protection of human

rights in Norway

1. The “catalogue of rights” in the Constitution

a. The Human Rights in the original text of the

Constitution (See the first chapter of the Adler-Falsen

proposal + Chapter E, § 96, 97, 99, 105; § 2, 50)

b. The constitutional reforms (until now – 2012)

2. The programmed reform of the Constitution

a. Which rights should be entrenched in the Constitution?

b. Arguments for and against the strengthening of human

rights via the Constitution.

II. 1. a. The Human Rights in the original

text of the Constitution

Examples:

• § 96 according to which “No one may be convicted except according

to law, or be punished except after a court judgment. Interrogation by

torture must not take place” (prohibition of torture).

• § 97 according to which “No law must be given retroactive effect”

(prohibition of retroactive laws).

• § 99 that stipulates that: “No one may be taken into custody except in

the cases determined by law and in the manner prescribed by law”.

• § 105 according to which “If the welfare of the State requires that any

person shall surrender his movable or immovable property for the

public use, he shall receive full compensation from the Treasury” (no

expropriation without compensation).

II. 1. b. The constitutional reforms

(until now – 2012) For example:

• In 1851: the interdiction for the Jews to enter the Realm of Norway

was repealed (article 2 of the Constitution).

• In 1884, 1898 and 1907, the right to vote is extended. It is universal

for men in 1898 (alminnelig stemmerett for menn).

• In 1913, the right to vote is universal, for both men and women in

Norway (article 50 of the Constitution).

• In 1956-7, the interdiction for the Jesuits to enter the Realm of

Norway was also repealed (article 2 of the Constitution).

• In 1964, the freedom of religion (religionsfrihet) is included in article

2 of the Constitution. Since 2012, it has been moved to article 16.

• In 1988, a new article 110 a on the Sami people is adopted.

• In 1990, it is stated in article 3 of the Constitution that women also

can inherit the throne of Norway.

• And then the “big steps” / reforms of 1994 and 2004.

• 2012: Revised article 2 on Norway’s core values: (…) This

Constitution will ensure democracy, the rule of law and human rights.

II. 2. The programmed reform of the

Constitution (2012) • When the Constitution gives a better protection than the ECHR

For example, article 97 of the Constitution offers a protection against retroactive

laws that is much more comprehensive than article 7 of the ECHR, which is

limited to acts punishable by law (straffbare handlinger).

Another example is the prohibition of prior censorship of article 100, 4th

paragraph, which is a priori absolute.

• When the Constitution does not protect as well as the ECHR

When we look, for example, at the second sentence in article 96 of the

Constitution, we see that the prohibition of torture is limited to “interrogation

by torture”. Article 3 of the ECHR protects better.

• When the Constitution and the ECHR provide for (almost) the same

level of protection.

That’s supposedly generally the case, but it is more apparent in countries where

the catalogue of rights in the Constitution is a copy of the ECHR (like in

Finland, for example).

II. 2. a. Which rights should be entrenched in the

Constitution?

Rights that are not entrenched in the Constitution – the right to live (prohibition of death penalty)

– the prohibition against slavery and forced labor

– the right to a fair hearing within a reasonable time by an independent and impartial

tribunal.

– freedom of association and freedom of assembly

– principle of equality before the law and the prohibition against discrimination

– the right to participate in cultural life, enjoy the benefits of scientific progress, freedom

of science and art, and protection of copyright

– the right to education

– the right to social security, to an adequate standard of living (including the right to

food, water, clothing and housing) and to the best possible health

– the right to seek and obtain asylum in case of persecution

– freedom of movement

– principle of the children’s best interests (barnets beste)

– the right to be heard

– the right to marry and to found (stifte) a family – and the family's right to protection

– the right to form political parties and to participate in free secret ballot

– the right to an effective remedy.

II. 2. a. Which rights should be entrenched

in the Constitution?

Rights that have been entrenched in the Constitution for

some time / since the beginning (f.ex.)

– The freedom of religion (since 1964)

– The prohibition of torture

– The principle of legality (legalitetsprinsippet)

– Freedom from arbitrary deprivation of liberty (frihet fra

vilkårlig frihetsberøvelse)

– Respect for privacy (respekt for privatliv)

– ”freedom of livelihood” (næringsfrihet)

– Respect for property rights

– Prohibition of retroactive laws

II. 2. a. Which rights should be entrenched

in the Constitution?

A list of rights entrenched in the Constitution

more recently

– Freedom of expression

– Right to work

– Protection of the Sami people

– Right to an environment that is conducive to health and

to a natural environment whose productivity and

diversity are maintained.

The propositions of the Commission Lønning

The Commission proposes the creation of a new Chapter E of the Constitution, beginning with the

current § 110 c of the Constitution. They propose, among other things:

- § 93: Right to live. Prohibition of death penalty, torture or any form for inhuman or degrading

punishment. Prohibition of slavery and forced labor.

- § 94: Freedom for arbitrary deprivation of liberty

- § 95: Right to a fair hearing within a reasonable time by an independent and impartial tribunal.

- § 96: Presumption of innocence, no double jeopardy, protection of the right of property

- § 98. Principle of equality before the law and the prohibition against discrimination.

- § 99: Freedom of thought, conscience, religion.

- § 101: Freedom of association and freedom of assembly. Right to form political parties.

- § 102: Right to respect for private life, family life and to communicate + personal integrity and

privacy.

- § 103: Right to marry and to found (stifte) a family. Prohibition of forced marriage.

- § 104: Rights of the child. Children are entitled to respect for their human dignity.

- § 106: Freedom of movement

- § 107: Right to respect for cultural identity. Right to participate to cultural life and to cultural

diversity.

- § 108: Rights of the Sami

- § 109: Right to education. Obligation for the children to receive basic education.

- § 110: Right to be employed

- § 111: Right to an adequate standard of living

- § 112: Right to a healthy environment and to a natural environment whose

productivity and diversity are maintained.

- § 113: Principle of legality (Myndighetenes inngrep overfor den enkelte må ha

grunnlag i lov.)

- § 114: Judicial review

- § 115: Any restriction of rights that are recognized in this constitution must be

prescribed by law and respect the essential rights. The restriction must be

proportionate and necessary to protect public interests and the others’ human

rights.

- § 116: Emergency situations.

- § 117: (former article 92)

- § 118: (former article 93)

- § 119: (former article 106)

- § 120: (former article 107)

- § 121: (former article 108)

- § 122: (former article 109)

- § 123: (former article 111)

- § 124: (former article 112)

One can distinguish between four categories of proposals:

• The rights that protect life: right to life, prohibition of death penalty, torture, slavery…

• Proposals concerning principles deriving from the Rule of law (viktige rettsstatsprinsipper):

right to a fair trial, prohibition of double jeopardy, presumption of innocence.

• Individual rights and freedoms: freedom of speech, right to privacy, freedom of religion and

beliefs.

• The second- and third-generation rights: Participation to cultural life, education, health, right to

be employed.

NB: Second-generation human rights are fundamentally economic, social and cultural in nature. They

guarantee different members of the citizenry equal conditions and treatment. Secondary rights would

include a right to be employed, rights to housing and health care, as well as social security and

unemployment benefits.

Third-generation human rights go beyond the mere civil and social. They cover an extremely broad

spectrum of rights, including:

• Group and collective rights

• Right to self-determination

• Right to economic and social development

• Right to a healthy environment

• Right to natural resources

• Right to communicate and communication rights

• Right to participation in cultural heritage

• Rights to intergenerational equity and sustainability.

Some critics

Professor Smith has criticised some of the proposals – and/or the way they were

formulated in an article published in Aftenposten, March, 1st, 2012, “Feilskjær om

Grunnloven”.

** The first problem is that the Commission did not have much time to submit its

proposals, all because of the 200 year jubilee of the Constitution. They want it

revised by 2014. It has been done at the expense of the redactionnal (and sometimes

material) quality of certain proposals.

** He gives examples:

*** The proposed title for the new Chapter E of the Constitution “The Human

Rights” is misleading. They are not gathering all the human rights in this part of the

Constitution. And some articles do not really belong to this part.

*** Only “human beings” shall be protected against unreasonable discrimination –

not the associations or private companies, for ex.?

*** Only the children would have the right to have their human dignity respected.

What about the disabled and the elderly?

*** Why is the article 114 on judicial review placed in this chapter: does it mean

that the judges have a “right to judicial review”? Does it mean that there will only

be judicial review of legislation that is contrary to human rights? Etc…

III. The status of ECHR and UN

conventions in Norwegian law

1. History

2. Article 110 c of the Constitution + art. 2

3. The rule of precedence / primacy of

fundamental human rights over national

legislation (forrang)

4. The position of the Courts

5. The new “controversy” on human rights in

Norway

¨2. Article 110 c & art. 2 of the Constitution

According to article 110 c of the Constitution, all authorities of the State have to respect and secure

the human rights.

There may be a distinction between “respect” and “secure”,

** where it seems as if respect is a matter of a negative duty of the state authorities to abstain

from anything that would violate the human rights, and

** whereas the duty to “secure” human rights is a more wide reaching positive obligation that

includes a duty for the authorities of the state to act in order to ensure that human rights are

respected, how far that duty extends is not per se clear from the text of the law.

When it comes to the scope of article 110 c, it is defined as addressed to the “authorities of the

State”.

It is not entirely clear whether it includes local government administrations.

It is not entirely clear either if it is a duty that extends to the courts.

Another problematic feature of §110 c of the Norwegian Constitution is that it speaks of “human

rights”, without particular reference to any human rights instrument, or to any other

sources of law that may define them more clearly. The dilemma when it comes to § 110 c

of the Constitution is thus that it is extremely wide because of its vague formulation.

But now, since may 2012, we have an amended article 2 of the Constitution that states that the

Constitution shall secure / ensure “Democracy, the Rule of Law and the Human Rights”.

This statement, as some kind of “preamble” to the rest of the Constitution, is strong,

symbolically and it presupposes that Human rights are included in the Constitution. It implies

that they have a more preeminent place on a national level.

3. The rule of precedence / primacy of the human rights

over national legislation

Article 3 of the Human Rights Act of 1999 (menneskerettsloven), stipulates, inter alia, that

provisions concerning rights and fundamental freedoms shall, in case of conflict, take

precedence over other (legislative, f.ex.) provisions.

The fact that the incorporated rights are reinforced through a clause whereby they are to take

precedence in the event of conflict with other parts of national legislation makes some

commentators say that the Conventions assume a sort of “semi-constitutional status”.

However:

• They do not have the same rank as the Constitution, but they supersede ordinary legislation.

• BUT the incorporating Act has the rank of ordinary law and it can be amended or departed

from by statute law (even though the likelihood of such a change or departure is of course, in

practice, very small).

And you have the “presumption principle” (presumsjonsprinsippet)

• according to which Norwegian law / domestic law is presumed to be in conformity with

(Norway's obligations under) international law, and

• according to which the Norwegian laws have to be interpreted, as far as possible, so as to

avoid conflict with Norway's obligations under international law, including human rights.

Moreover, national law should, as far as possible, be made to conform with the ECHR.

III. 4. The position of the courts

Norwegian courts may review the constitutionality of statutory provisions. But there is

no control ex ante in Norway. Only an ex post control, in concrete cases.

The interpretation of the Constitution as well as of unwritten constitutional principles

may be influenced by international law. The ECHR is part of the Human Rights Act

and has priority over other kinds of provisions (but not constitutional ones).

The Norwegian courts may use international law and the ECHR as “guides” vis-à-

vis the interpretation of national legislation. And the renaissance of constitutional

judicial review in Norway stemmed from a stronger influence of the European

human rights ideology.

The Supreme Court took a strong position in the Kløfta decision, in 1976 (Rt. 1976 s.

1), saying that:

• The power to review the constitutionality of statutes was derived from “established

constitutional customary law”

• And that, when dealing with provisions which protect the individual’s personal

liberty or security, the constitution’s weight must be considerable and the courts

should exercise a more thorough review of the constitutionality of statutes and

provide for a better protection.

III. 4. The position of the courts What are the effects of the European Courts case law in the Norwegian legal order?

As of October 2012, the European Court of Human Rights has delivered 31 judgments

against Norway finding violations of the ECHR in 22 of them. • 31. CASE OF LINDHEIM AND OTHERS v. NORWAY (13221/08 and 2139/10)

• 12 June 2012 (Merits and Just Satisfaction) Read more

• 30. CASE OF ANTWI AND OTHERS v. NORWAY (26940/10)

• 14 February 2012 (Merits and Just Satisfaction) Read more

• 29. CASE OF NUNEZ v. NORWAY (55597/09)

• 28 June 2011 (Merits and Just Satisfaction) Read more

• 28. CASE OF AUNE v. NORWAY (52502/07)

• 28 October 2010 (Merits and Just Satisfaction) Read more

• 27. CASE OF PROCEDO CAPITAL CORPORATION v. NORWAY (3338/05)

• 24 September 2009 (Merits) Read more

• 26. CASE OF EGELAND AND HANSEID v. NORWAY (34438/04)

• 16 April 2009 (Merits) Read more

• 25. CASE OF A. v. NORWAY (28070/06)

• 9 April 2009 (Merits and Just Satisfaction) Read more

• 24. CASE OF TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY (21132/05)

• 11 December 2008 (Merits and Just Satisfaction) Read more

• 23. CASE OF K.T. v. NORWAY (26664/03)

• 25 September 2008 (Merits) Read more

• 22. CASE OF DARREN OMOREGIE AND OTHERS v. NORWAY (265/07)

• 31 July 2008 (Merits) Read more

• 21. CASE OF ORR v. NORWAY (31283/04)

• 15 May 2008 (Merits and Just Satisfaction) Read more

• 20. CASE OF A. AND E. RIIS v. NORWAY (No. 2) (16468/05)

• 17 January 2008 (Merits and Just Satisfaction) Read more

• 19. CASE OF SANCHEZ CARDENAS v. NORWAY (12148/03)

• 4 October 2007 (Merits and Just Satisfaction) Read more

• 18. CASE OF EKEBERG AND OTHERS v. NORWAY (11106/04, 11108/04, 11116/04, 11311/04 and 13276/04)

• 31 July 2007 (Merits) Read more

• 17. CASE OF FOLGERO AND OTHERS v. NORWAY (15472/02)

• 29 June 2007 (Merits and Just Satisfaction) Read more

• 16. CASE OF A. AND E. RIIS v. NORWAY (9042/04)

• 31 May 2007 (Merits and Just Satisfaction) Read more

• 15. CASE OF TONSBERGS BLAD AS AND HAUKOM v. NORWAY (510/04)

• 1 March 2007 (Merits and Just Satisfaction) Read more

• 14. CASE OF KASTE AND MATHISEN v. NORWAY (18885/04 and 21166/04)

• 9 November 2006 (Merits and Just Satisfaction) Read more

• 13. CASE OF WALSTON (No. 1) v. NORWAY (37372/97)

• 3 June 2003 (Merits and just satisfaction) Read more

• 12. CASE OF Y v. NORWAY (56568/00)

• 11 February 2003 (Merits and Just Satisfaction) Read more

• 11. CASE OF RINGVOLD v. NORWAY (34964/97)

• 11 February 2003 (Merits) Read more

• 10. CASE OF O. v. NORWAY (29327/95)

• 11 February 2003 (Merits and Just Satisfaction) Read more

• 9. CASE OF HAMMERN v. NORWAY (30287/96)

• 11 February 2003 (Merits) Read more

• 8. CASE OF BECK v. NORWAY (26390/95)

• 26 June 2001 (Merits) Read more

• 7. CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY (26132/95)

• 2 May 2000 (Merits and just satisfaction) Read more

• 6. CASE OF NILSEN AND JOHNSEN v. NORWAY (23118/93)

• 25 November 1999 (Merits and just satisfaction) Read more

• 5. CASE OF BLADET TROMSO AND STENSAAS v. NORWAY (21980/93)

• 20 May 1999 (Merits and Just Satisfaction) Read more

• 4. CASE OF ERIKSEN v. NORWAY (17391/90)

• 27 May 1997 (Merits) Read more

• 3. CASE OF JOHANSEN v. NORWAY (17383/90)

• 7 August 1996 (Merits and just satisfaction) Read more

• 2. CASE OF BOTTEN v. NORWAY (16206/90)

• 19 February 1996 (Merits and just satisfaction) Read more

• 1. CASE OF E. v. NORWAY (11701/85)

• 29 August 1990 Read more

Source http://www.norway-coe.org/general/hr/echr/Cases-against-Norway/

III. 4. The position of the courts The most recent case, Lindheim v. Norway (12 June 2012) concerned the violation of

Article 1 of Protocol No. 1 (protection of private property) to the ECHR by article 33

of the Norwegian Ground Lease Act.

NB: The case had been brought directly before the Supreme Court (Høyesterett), which

by judgment of 21 September 2007 (HR 2007-1593-P, case no. 2007/237) found

against the lessor. It considered that section 33 of the Ground Lease Act should be

examined exclusively in the light of Article 97 of the Constitution, with which it was

compatible, and that there was no infringement of Article 1 of Protocol No. 1 to the

Convention.

Some of the cases concerned article 6 of the ECHR, others, article 10, and others articles

5 and 8 ECHR. Norway has mainly had problems concerning the freedom of

expression, the equality of arms, the right to a fair trial and the presumption of

innocence.

At the same time, the courts try to follow closely with the ECtHR’s practice, making use

of the principles of interpretation and of the national remedies; and many legal

reforms have taken place to bring national law in conformity with the ECtHR’s case

law, even when it concerned other States.

NB: According to art. 46 (1) ECHR, all the State authorities – even the domestic courts –

are bound by the decisions on the ECtHR, in the way that they have to take them into

account (not to comply with the result/verdict – but then they have to justify

understandably why they do not follow them).

III. 4. The position of the courts

Before the incorporation of the ECHR

• During the first twenty years after the ratification of the ECHR, it is fair to say that

the ECHR has had little impact on the Norwegian courts or on the legislative

process. The Supreme court tended to uphold the principle of dualism.

• But, already in 1984, in Rt 1984 s. 1175, the Norwegian Supreme Court was

influenced by the ECHR in its judgement, and that was also an example of the

development towards greater reliance on the ECHR as well as on the case law of the

EctHR. The basis for the application or use of the ECHR was the notion of

consistent interpretation, which in turn relied on that there was a presumption

that Norwegian law and international human rights law should be in conformity

with each others. The case concerned the possibility for an inmate to challenged

detention in a psychiatric facility which was decided not on basis of criminality but

on the basis of dangers to oneself which was related to the Winterwerp case of the

EctHR.

• In 1990, the Norwegian Supreme Court again relied not just on the text of the

ECHR, but also on the judgement of the EctHR in the case of Lingens v. Austria

where the EctHR struck a balance between on one hand protection of individual

rights of privacy and reputation and on the other hand freedom of expression for

public figures, in particular politicians (Rt. 1990 s. 257).

III. 4. The position of the courts After the adoption of art. 110 c of the Constitution and the incorporation of

the ECHR in the Human Rights Act of 1999

• §110 c of the Constitution solidified the already existing application of the

ECHR, and that it opened up possibilities for more extensive use of other

international human rights instruments. In several cases, the Court presumed

there was consistency between Norwegian legislation and international

treaties.

• However, in the event of a conflict of norms, domestic legislation had usually

priority. One of the seminal cases was Rt. 1994 s. 610 (Bølgepapp). Here the

Court said that if an international norm was to be given priority, it would

have to “appear as sufficiently clear and manifest”.

• There have traditionally been three kinds of filters or factors that have been

taken into account by the courts in cases concerning human rights, and that

have, sometimes, in one way or the other, hindered or restrained a bit the

dynamic interpretation of the ECHR. But things are evolving!

• These “filters” are/were: 1) the principle of clarity, 2) the margin of

appreciation of the States and 3) the reference to national values.

III. 4. The position of the courts

a. Clarity

It seems that the exigence / requirement of clarity is no longer a prerequisite.

The case law on the matter was “short lived”.

In order to be able to set aside a Norwegian norm on the basis of an incorporated

international rule, this rule had to appear to be sufficiently clear and

unambiguous (tilstrekkelig klar og entydig) [Rt. 1994 s. 610, Bølgepapp].

This requirement of clarity was abandoned in the Bøhler case of 2000 (Rt. 2000

s. 996) where the Supreme court declared that: It results from § 3 of the

Human Rights Act that when the interpretation of the ECHR gives results

that “appear to be reasonably clear” (rimelig klart), the Norwegian courts

have to apply the provisions of the Convention even if this would mean that

Norwegian law or case law will have to be disregarded.

It was confirmed in the decision KRL (Rt. 2001 s. 1006) that the clarity

requirement had lost its function as a threshold that could be used to give a

more limited interpretation of the decisions coming from the ECtHR.

III. 4. The position of the courts

b. The margin of appreciation of the States

It is equally difficult to find new Supreme court decisions that rely on an argumentation

in favour of the State based on a so-called “national margin of appreciation”

(nasjonal skjønnsmargin).

The last time it happened, it was in 2004, in the decision TV-Vest (Rt. 2004 s. 1737).

The majority of the Supreme court found that there were no violation of the

Constitution or of the ECHR and hold that political television advertising was an

area where weight should be given to what Parliament had meant on the

constitutionality of the provision. Neither the majority or the minority found that

the § 100 of the Constitution or article 10 had been violated, as the prohibition of

the Broadcasting Act fell under the exception clause in Article 10, paragraph 2 of

the ECHR. What was crucial was that, according to the EctHR, the ban concerned

the regulation of the political debate, not the prohibition of political speech. In the

absence of a European common legal opinion on the regulation of political

advertising, the political authorities were given a wide margin of appreciation in

assessing the necessity of measures in this field.

But there are no other examples of case law based on the issue of margin of

appreciation after this case of 2004.

A recent debate on the subject (in Norwegian): Skoghøy, Lov og rett 2011, nr. 4 ;

Borvik, Lov og rett 2011, nr. 10 ; and again Skoghøy, Lov og rett 2012, nr. 3.

III. 4. The position of the courts c. National values and dynamic interpretation

It might mainly be because the Supreme court has relied, instead, on the argument

based on “national values”. And according to Andenæs and Bjørge, the

Supreme court had the choice between two approaches on this matter:

One approach was that the Supreme Court could use the argument of national

values to limit a dynamic interpretation of the EctHR’s case law.

The second approach turns the perspective around, and national values and

"reasonable assurance" can be used as tools to develop legal security and the

principles of the rule of law (rettssikkerhet og andre rettsstatsprinsipper).

The Supreme court chose the second one, for example, in the decision on the

“Double Jeopardy I” (Rt. 2002 s. 557), in the decision on the “Presumption of

innocence” (Rt. 2008 s. 1409) and in a recent ruling of 2011 (HR-2011-01118-

A).

[NB: Developments based on the findings in an article (written in Norwegian) by prof.

Mads Andenæs and PhD student Eirik Bjørge, “Norske domstoler og utviklingen av

menneskerettene”, published in the periodical Jussens venner (2011).]

III. 4. The position of the courts

NOTA BENE!

• The Supreme court did not only set aside the requirement of clarity, it seems it

strengthened its protection of human rights by building its interpretation on

Norwegian values and rule of law.

• Recent Supreme court case law does not provide any support for stating that

Norwegian values are prioritorised over or used to limit the impact of human rights

law. On the contrary, decisions such as Rt. 2005 s. 833 (P), Rt. 2008 s. 1764 (S),

Rt. 2009 s. 1118 (S) and Rt. 2010 s. 1170 (S) illustrate the fact that the Supreme

court takes human rights seriously into account.

• There is an increasing tendency of support of a loyal implementation of international

human rights and an open mind to the practice of the ECHR, BUT the post 1999

cases show how much the justices remain skeptical to a strong implementation of

international human rights, more sometimes than certain politicians. Thus, the

significance of the incorporation of the ECHR in Norway should not be

overestimated. The incorporation only provides for a minimum system of

protection and the process of reception of the ECHR depends inter alia on the

judge’s constitutional ideology when engaging in judicial review.

Skoghøy, Lov og rett, 2012, nr. 3, p. 178

“Since 2000, the Norwegian Supreme Court, when interpreting the ECHR, has

followed the method used by the EctHR. This means that the identification of

the rights protected by the ECHR, the appreciation of the violation of a

convention right and of the legitimacy of the violation are assessed following

the same method as the EctHR. At the same time, the Supreme Court has

affirmed that the Norwegian courts, when they are balancing of different

interests and values at stake, must be able to take into account the values and

priorities on which the Norwegian legislation and jurisprudence rely. This

corresponds well with the fact that the courts must apply the ECHR in a

Norwegian social and cultural context, and that they must act in accordance

with the role that the courts have according to our national standards, when

examining which encroachment in ECHR rights that will be accepted as

necessary.” [(poorly) translated from norwegian...]

*

About the controversy about human rights, see among many other articles

(unfortunately all in norwegian): E. Smith, Those who are against human

rights, raise your hand, Nytt norks tidsskrift, 2011, nr. 1.

IV. 1. The protection of the freedom of

expression [GL § 100]

One can distinguish between two conceptions of the freedom of

speech/expression in article 100:

• Freedom of expression as freedom from PRIOR censorship (also

known as formal freedom of expression) [4th paragraph] and

• Freedom of expression as freedom from POST censorship (known as

material freedom of expression) [1st and 2nd paragraphs]. The material

freedom of expression cannot, in principle, be limited by law – but some

issues are still debated, such as those in case of “hate speech”, especially

when they invite to violence, for example [Vigrid case, Rt. 2007 s. 1807].

All in all, there is a general prohibition of censorship

[NB: But exemptions from prior censorphip and other precautionary

measures are allowed to protect minors from harmful influence of moving

pictures and for certain forms of censorship of mail in prisons and other

institutions.].

Concerning the formal freedom of expression, the freedom of the press was

already considered as freedom from prior state censorship: printing and

publishing required no state licence and the State had no right to control

expressions prior to publication. Print being the only media technology in 1814,

the original intention was clearly to protect mass communication as such. It

could therefore be concluded that the new article 100 expands formal freedom

to all media.

Concerning the material freedom of expression, the issue at stake is whether the

new article 100 has reduced the risk of sanctions after having expressed oneself.

With the new article 100, sanctions presuppose that two conditions are fulfilled:

1) that the limits for speaking one’s mind frankly are clearly defined and 2) that

the sanctions must be justifiable in relation to the three reasons for freedom of

expression: the search for truth, the promotion of democracy and the individual

freedom to form an opinion.

NB: It is implicit in the freedom of expression that political statements shall,

broadly speaking (all topics of interest), enjoy special protection. And there is a

necessity of not prohibiting “undesirable” statements, because they have, as

such, a necessary function in a sound society. So, in a sound society, there are

limits to what restrictions are necessary – and not the other way round.

IV. 1. The protection of the freedom of

expression [GL § 100]

Example of case law on “discriminatory speeches” or “hate

speech”:

• The Kjuus case (Rt. 1997 s. 1821)

• In the Boot Boys case (Rt. 2002 s. 1618), the majority of the

Supreme court took into account the fact that the neo-nazi

statements, against Jews, did not incite to the committing

violent acts. This case shows it is difficult to trace a limit.

• The Vigrid case (Rt. 2007 s. 1807) is considered to be a

rectification of the Boot Boys case of 2002. At issue were

statements of neo-nazi character. They were found to go over

the authorised limit as they incited to violence. The so-called

“hate speeches” seem to be allowed as long as the distinction

between words and acts is not too closely infringed.

IV. 2. The protection of the minorities – the Sami

population [GL § 110 a.]

Ethnically, the residents of Norway are predominantly ethnic Norwegians

who are of North Germanic / Nordic descent, although there are

communities of the Scandinavian native people Sami who settled the

area around 8,000 years ago, probably from continental Europe through

the Norwegian coast and through Finland along the inland glaciers.

The Sami are the Nordic countries’ only officially indigenous people (in

1990, according to ILO convention nr. 169 of 1989, concerning

Indigenous and Tribal Peoples in Independent Countries).

They are thus entitled to special protection and rights according to

international law. They are protected, inter alia, by the International

Covenant on Civil and Political Right (1966). Article 27 protects

minorities, and indigenous peoples, against discrimination: “In those states

in which ethnic, religious or linguistic minorities exist, persons belonging

to such minorities, shall not be denied the right, in community with the

other members of their group, to enjoy their own culture, to profess and

practice their own religion, or use their own language”.

IV. 2. The protection of the minorities –

the Sami population Norway officially designates the Sami as an ethnic minority and a separate people,

but Norwegian citizens too.

According to Carsten Smith, the Sami people may seek support of two main groups of

legal norms:

• The general sources of law applying to minorities (to protect the culture of the

minorities) [f.ex. article 27 of the UN Convention on civil and political rights] and

• Special sources of law which are specially applicable to indigenous peoples (to

regulate their territorial rights).

The legal status, protection and rights of the Sami can be found in:

• Article 110 a of the Norwegian Constitution.

• The Sami Act (act of 12 June 1987 No. 56 concerning the Sami Parliament (the

Sámediggi) and other legal matters pertaining to the Samis). This Act is an

embodiment of the international and constitutional obligations to which Norway is

bound.

• The Sami Reindeer Husbandry Act of 2007

According to article 110 a of the Constitution: “It is the responsibility of the

authorities of the State to create conditions enabling the Sami people to preserve

and develop its language, culture and way of life”.

The Sami Act provides special rights for the Sami people. For example:

• “...the Samis shall have their own national Sami Parliament elected by and

amongst the Samis” (Chapter 1–2). It was founded in 1989. The Sami Parliament in

Norway has a very weak political influence. It is formally a public authority, ruled

by the Norwegian government, but it has democratically elected parliamentarians,

whose mission is to work for Sami People and culture. Every Norwegian citizen

registered as a Sámi has the right to vote in the elections for the Sami Parliament

of Norway. Elections are held every four years by direct vote from 13

constituencies covering all of Norway (12 of which are in Sápmi), and run parallel

to the general Norwegian parliamentary elections. The establishment of a Sami

Parliament is a fundamental recognition of the status of the Sami as a people.

• The Sami people shall decide the area of activity of the Norwegian Sami

Parliament.

• The Sami and Norwegian languages have equal standing in Norway (article 15;

Chapter 3 contains details with regards to the use of the Sami language).

[In addition, the Sami have special rights to reindeer husbandry.]

NB: The Sami population of Norway is around 40.000 persons. If all people who speak

Sami or have a parent, grandparent, or great-grandparent who speaks or spoke Sami are

included, the number reaches 70,000. As of 2005, 12.538 people were registered to vote

in the election for the Sami parliament in Norway.

According to the Act No. 56 of 12 June 1987 relating to the Sami Parliament and other Sami

legal issues (The Sami Act), a Sami is a person who:

• has Sami as his/her first language, or whose father, mother or one of whose grandparents

has Sami as their first language, or

• considers himself/herself a Sami and lives in entire accordance with the rules of the

Sami society, and who is recognized by the representative Sami body as a Sami, or

• has a father or mother who satisfies the above-mentioned conditions for being a Sami.

• Thus, the everyday use of the Sami language is decisive in determining a person's right

to be classified as a Sami and his or her right to vote for representatives to the Sami

Parliament or be eligible for election.

• The Sami participate in two systems: In one system based upon territory (local council,

county council, Parliament) and in one system based upon descent (the Sami

Parliament).

NB: Most of the case law of the Supreme court relating to Sami questions deals with land

rights.

NB2: The questions of rights to natural resources in the Sami areas should be based on the

obligation of the State to provide the Sami people with a material basis for their culture

(C. Smith).

IV. 2. The protection of the minorities –

the Sami population

NB: Like article 110, article 110 a of the Constitution contains also an

injunction to the State authorities.

According to Smith, it is more a political “declaration of principle” (politisk

prinsipperklæring) than a provision on rights and duties of a legal kind, as

it does not go as far as giving persons or their organisations the right to

present any legal claims themselves. However, it lays down a political,

moral and legal responsibility on the part of the State and it has

significance both as a guideline and a limitation for legislation and acts of

the State organs. According to the Supreme Court (Rt. 1992 s. 1037),

article 110 a is addressed to the Government and the Parliament. In the

preparatory works of this article, it was pointed out that this provision

was intended to protect the Sami people against any pressure originating

from the Norwegian society in the direction of a politics of forced

assimilation (tvunget assimilasjonspolitikk) against the Sami minority.

Article 110 a should probably be interpreted a little differently than article

110. [ See the article on the subject in the compendium!]

You can also read:

• Sand, Inger Johanne (2009). Judicial Review in Norway

under Recent Conditions of European Law and

International Human Rights Law – A Comment. Nordisk

tidsskrift for menneskerettigheter. 27(2), s 160- 169

• Bjørge, Eirik (2010). The Status of the ECHR in Norway:

Should Norwegian Courts Interpret the Convention

Dynamically?. European Public Law. 16(1), s 45- 50