Courts of Norway PAGE

Transcription

1 Courts of Norway

2 Courts of Norway The ordinary courts consist of three instances: the Supreme Court (Høyesterett 1 ) in the third instance, the Courts of Appeal (Lagmannsrett) in the second instance and the District Courts (District Court) in the first instance. The courts hear both civil and criminal cases. Courts of Norway PAGE Most civil disputes are considered initially by the Conciliation Boards (forliksråd), which are to be found in every municipality and consists of laypeople. The ordinary courts are supplemented by special courts, including the Labour Court (Arbeidsrett) and the Land Consolidation Courts (jordskifetdomstolene). The courts do not take up cases of their own accord, but resolve legal disputes by considering the cases brought before them. Civil cases are brought before the courts by the parties, whereas criminal cases are brought by the prosecution authority. The prosecution authority consists of the Director of Public Prosecutions (riksadvokat), the Public Prosecutors (statsadvokat) and the Prosecuting Authority in the police. Read more about the norwegian courts at Korridor i Høyesterett 1 The Norwegian names in parentheses are given in indefinite singular form.

3 Courts of Norway PAGE The judges and the independence of the courts All cases before the courts are presided over by a professional judge. The layjudge system, however, ensures that citizens who do not have a law qualification also play a key role in Norwegian jurisprudence. A judgment may be changed by a superior court after appeal consideration. A higher court cannot, of its own accord, instruct a lower court in how it should handle individual cases. If, on the other hand, one party takes a decision further, instead of entering a new judgment the higher court can decide that the lower court must hear the case again. In order to prevent doubt about the independence of the judges the Storting, the Norwegian Parliament, has adopted an approval and registration scheme for judges extra-judicial activities, that is to say their membership or office in organisations, in accordance with particular rules. The scheme applies to judges in all instances including assistant judges, Supervisory Judicial Committee is an independent body that hears complaints against judges, for example for unprofessional conduct. It can also take up cases on its own initiative. The Supervision Committee is appointed by the King-in-Council and the Courts Administration is its secretariat. Courts of Norway PAGE 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. The judges are independent in their adjudication of the individual case, and cannot be instructed. Deputy judges are legally qualified persons who are appointed to a court for a limited period. The arrangement is used only in the courts of first instance, and was introduced in order to give law graduates practical experience of the courts. The assistant judges preside over proceedings in court and decide cases just like other judges, but there are certain restrictions on what kind of cases they can consider. but not to lay assessors. The register of the judges extra-judicial activities is published on Lay judges are selected by municipal councils for four years at a time. The precondition for being selected is that a person can stand in municipal elections. There are different pools of lay judges for the Courts of Appeal and the District Courts, but no lay judges participate in the Supreme Court. In the District Courts the lay judges sit on the bench, in the Court of Appeal either on the bench or in the jury-box. The lay judges participate in The Supreme Court The Supreme Court is the highest court in Norway. The decisions of the Supreme Court are final and cannot be appealed. The Supreme Court sits in Oslo. The court is chaired by the President of the Supreme Court, and has another 18 other judges. Individual cases are normally heard by a panel of five judges, but certain cases are considered by the Supreme Court in plenum. both criminal and civil cases. Appeals to the Supreme Court are first Anyone selected as a lay judge is obliged to accept the office. Certain occupational groups are exempt from selection, including judges, police officers and prosecutors, employees of the Ministry of Justice considered by the Supreme Court s appeals committee, which decides whether a case shall proceed to the Supreme Court. The Appeals Committee is constituted with three judges per case. and the National Courts Administration. There are also certain restrictions regarding individuals with a criminal record. The lay judges must be between 21 and 70 when their period of office begins. The Supreme Court is an appellate court that hears appeals against decisions made by the District Courts and the Courts of Appeal. The Supreme Court considers both civil and criminal cases, Høyesterett Especially in civil cases, expert lay judges can be appointed, with special expertise in a given field. and has authority in all areas of the law. In criminal cases the question of guilt is determined by the Courts of Appeal, whereas the Supreme Court may decide

4 Courts of Norway PAGE on sentencing and the quality of the procedure. Proceedings in the Appeals Committee are in writing alone, the decisions are made on the strength of the documents in the case. Proceedings of the Supreme Court prop- Agder Court of Appeal. Sits in Skien, and covers the following counties: Vestfold, Telemark, Aust-Agder and Vest-Agder. Gulating Court of Appeal. Sits in Bergen, and covers the following counties: Hordaland, Sogn and Fjordane and Rogaland. Courts of Norway PAGE 7 er are oral, and are open to the public. Frostating Court of Appeal. Sits in There is no immediate presentation of Trondheim, and covers the following evidence in the form of party or witness counties: Møre and Romsdal, Sør-Trøn- testimony as in the District Courts and delag and Nord-Trøndelag. the Courts of Appeal. Hålogaland Court of Appeal. Sits in Read more about the Supreme Court at Tromsø, and covers the following coun- ties: Nordland, Troms and Finnmark. INDRE FINNMARK TINGRETT The Courts of Appeal There are six Courts of Appeal in Norway, each covering a certain geographical area, called a circuit. Each Court of Appeal is chaired by a president. The Courts of Appeal adjudicate appeals against decisions from the District Courts in their circuits. They decide both civil and criminal cases. There are six Courts of Appeal: Borgarting Court of Appeal. Sits in Oslo and covers the following counties: Oslo, Buskerud, Østfold and the southern part of Akershus. Eidsivating Court of Appeal. Sits in Hamar, and covers the following counties: Hedmark, Oppland and the northern part of Akershus. In the Courts of Appeal the individual case is always heard by a panel of three appellate judges. In criminal cases the appeal may be against various aspects of the District Court s decision. If the appeal concerns the question of guilt, the case shall be decided by a jury or a bench consisting of three professional and four lay judges (meddomsrett). The lay judges are laymen selected at random from a panel; there shall always be two women and two men. The professional and lay judges take all decisions collectively, and all votes are equal. In cases where the sentencing framework is more than six years, the question of guilt shall be decided by a jury (lagrett). The jury consists of ten persons, if feasible five women and five men. Members of the jury for a particular

5 Courts of Norway PAGE 8 MØTELOKALE I TROMSØ case are drawn from a panel at random, years imprisonment, the Court of Appeal fourteen plus two alternates. Then the is constituted with three professional accused and the prosecution can, in accordance with specific rules, challenge and four lay judges. (exclude) up to two jury members each. If the appeal concerns application of If this method of eliminating jury members is not used, lots are drawn to decide peal shall only decide whether the Dis- the law or procedure, the Court of Ap- who is to sit on the jury. trict Court has applied the law correctly or has made procedural errors. In such When the jury has decided on the question of guilt, four of the jury members professional judges. cases the court is constituted with three participate in the sentencing together with the three professional judges. A civil case is as a rule heard by three professional judges. In certain types of If the appeal to the Court of Appeal only case there must be lay judges as well. concerns the sentencing for offences in The parties can also demand that two to which the framework is imprisonment four lay judges be empanelled. for up to six years, the case shall be determined by three professional judges, The Court of Appeal s decisions other as a rule after oral proceedings. When than decisions on the question of guilt in hearing appeals against sentencing criminal cases can be appealed to the All the Courts of Appeal have their own homepages that can be reached via The District Courts The country is divided into judicial districts, with one District Court per judicial district. In Oslo there are two district courts, one court (Oslo tingrett) considers criminal and civil cases, the other court (Oslo Byfogdembete) considers inter alia enforcement cases, bankruptcy, probate, marriages and the issue of official certification. A judicial district may consist of one or more municipalities. Structural reorganisation of the courts has been in progress since 2002, and when this is completed in 2010 there will be 66 courts of first instance. The court structure is decided by the Storting. Criminal cases in the District Court are decided either by a guilty plea or by the mixed panel of professional and lay judges. In addition, the District Court can take certain decisions during the investigation of criminal cases. The criteria for entering judgment on a guilty plea is that the accused makes an unreserved confession supported by the evidence in the case. In such cases the sentencing framework cannot exceed ten years, and the accused must concur with the procedure. These cases are heard by a single professional judge. The decisions of the District Court regarding imprisonment or other coercive sanctions during the investigation, and any ban on visits to remand prisoners are also taken by a professional judge. In ordinary criminal cases the District Court sits as a mixed panel of one professional and two lay judges. In lengthy and other special cases, the court may be constituted as an extended court with two professional and three lay judges. The professional judges and the lay judges participate on an equal basis as regards both the question of guilt and the sentencing. The lay judges are drawn for the individual case from a pool of persons appointed by the municipal council for four years at a time. 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 civil disputes in the District Courts include a number of different case types, such as family cases, neighbours quarrels, compensation suits, quashing of administrative decisions and disputes in employment and business relationships. One party may file a writ of summons with the District Court, but a judgment in the conciliation council can also be brought before the District Court. Courts of Norway PAGE where the framework is more than six Supreme Court.

6 Courts of Norway PAGE 10 Instead of a normal main hearing, the court can call the parties in for court conciliation. The District Courts also consider cases on enforcement, bankruptcy, debt settlement (composition), division of joint property and decedent estates. These cases are heard by a judge alone. Court hearings or creditors meetings can be be tested only once. Having the question of guilt tested by two instances improves the rights of the accused. The Court of Appeal s appeals committee determines whether the case can be brought before the Court of Appeal, but in the most serious criminal cases the convicted person is entitled to a new hearing in the Court of Appeal if he contests the judgment. Courts of Norway PAGE 11 held, and the judge decides questions The question of guilt in criminal cases that arise during this procedure or adju- cannot be appealed to the Supreme dicates the case. Court. Any party that is unhappy with the result of a civil case can bring it before the Court of Appeal. The Land Consolidation Courts All courts of first instance have their own homepages that can be reached via Conciliation Boards Most civil cases are handled by the Conciliation Boards, which are mediation bodies that have a certain power to enter judgment as well. They deal with more than 250,000 cases per year. The two-instance system In 1995 Norway introduced a new system whereby all cases can be considered in two instances. This means that all cases start in the District Courts. Previously, serious criminal cases began in the Court of Appeal, which means that in such cases the question of guilt in could The Land Consolidation Courts are special courts that work with cases falling under the Land Consolidation Act. Their duties are mainly demarcation of properties, facilitation of collaboration across property boundaries, clarification of title to real property, fixing of boundaries and various exercises of discretionary powers. The remit of the courts has gradually grown from only dissolution of realproperty co-tenancies and agricultural properties to problem-solving for everyone who owns land in Norway. The Land Consolidation Act has been amended so that all instrumentalities are available also in cities and urbanised areas. There are two kinds of Land Consolidation Courts in Norway: the Land Consolidation Court as first instance and the Land Consolidation Appeal Court as appeal instance. Judgments and other decisions with legal effect made by the first instance can be appealed to the Court of Appeal, while the Land Consolidation Appeal Court has appellate jurisdiction inter alia in technical land division questions. The right to appeal from the Land Consolidation Appeal Court to the Court of Appeal is restricted mainly to procedure and application of the law. The Land Consolidation Courts comprise 34 first-instance courts and five appeal courts. The administrative responsibility for the Land Consolidation Courts is vested in the National Courts Administration. Read more about the Land Consolidation Courts at TROMSØ Freedom of information in the justice system The courts possess considerable powers over the individual, and in a democratic society it is important that this is combined with a high degree of openness and freedom of information. Norwegian law prescribes a right to know when court hearings are to be held, to attend them and publish what is said there. In particular cases and under particular conditions the courts may restrict freedom of information. International conventions Like other states, Norway has undertaken to respect legally binding international conventions. We are, for example,

7 Courts of Norway PAGE 12 signatory to various UN conventions, for example on the Rights of the Child. Other important conventions include the Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights) and the EEA Agreement. By acceding to these, the state commits itself to fulfilling duties and respecting rights under the conventions. pendence of the courts in relation to the other branches of government. The DA is an independent administrative body with its own board consisting of nine members, of whom two are elected by the Storting and the others appointed by the King-in-Council. The DA is headquartered in Trondheim. Courts of Norway PAGE 13 The Storting adopts general guidelines There are several international courts and framework budget for the National that deal with questions related to the Courts Administration and the courts. conventions. The European Court of Hu- The DA and the Ministry of Justice are man Rights has great significance for in dialogue about the courts develop- Norwegian citizens. The courts task is ment, resource needs and regulations. to ensure that signatory states to the The Ministry of Justice has no power to European Convention on Human Rights instruct the DA, but has the principal are fulfilling their obligations, which responsibility for drafting legislation means that the citizens of these coun- concerning the courts. The DA initiates tries can have their cases heard if they legislative amendments and is a consul- consider that their country s own courts tation instance for new acts and regula- have made decisions that contravene the tions. Convention. The Court of Human Rights can decide complaints with binding effect Among other things the DA has the re- on the states. Member states can also sponsibility for the courts premises, bring other states before the court. finances and ICT equipment and development. It assists the courts in most Read more about the Court of Human administrative questions, such as for Rights at example expertise development, personnel questions, media contact and The Courts Administration service development. The DA cannot influence the courts judgments and rul- In 2002 the administrative control of the ings. courts was moved out of the Ministry of Justice, where it had been since the creation of the Norwegian state in The National Courts Administration Read more about the Court Administration at TROMSØ (Domstoladministrasjonen, DA) was established in order to safeguard the inde-

8 Courts of Norway PAGE 14 Evolution of the Norwegian courts The Viking Age We know that there were legislative, judicial and executive authorities as early as the 10 th century. In those days the kinship group was the most important executive power; crimes and conflicts were resolved by negotiation between the kin-groups, often involving agreement on the penalty. In the course of the 11 th century there developed local and regional assemblies (bygdeting and lagting), which also functioned as courts; the Norwegian word ting still means both. Their most important function was to reach solutions to various disputes and their formation was driven by population growth, bigger districts and increased collaboration between districts. King Håkon I the Good changed the composition of the assemblies from universal attendance to representation by delegates. The most famous regional assemblies from that period are the Gulating for Western Norway and the Frostating for the Trøndelag. The Hålogaland, Eidsivating and Borgarting assemblies developed in the 12 th and 13 th centuries, but never achieved the same influence as Gulating and Frostating. Legislative codes from the Gulating and Frostating were rediscovered in modern times. The development of the assemblies and the discovery of the codes clearly show that the rule of law was well on the way to becoming centralised as early as the 12 th century. The most usual legislative instance at that time was customary law: that is to say, there were many rules of law, but not laid down by any public authority. Customary or common law is still in use today not only in international law, but also in national areas such as constitutional and administrative law, some parts of private law and the law of damages. The High Middle Ages In the course of the High Middle Ages the king acquired more power, and ultimately discharged all three roles legislative, judicial and executive. The Church also had a role in all three areas, resulting in a constant tug-of-war for supremacy. The need for codification increased, and in 1274, under king Magnus VI Lawmender the old regional laws were reworked and called the National Law (Landsloven). This was meant to be authoritative for the regional courts and to some extent for the district courts. The Law was regarded as an administrative unification of Norway, the political unification being traditionally dated to The National Law also involved amendments to the judicial and executive aspects of the legal system, such as royally appointed court presidents (lagmenn) to chair the proceedings between the parties. More higher courts (lagting) were created, and sited in towns or other centres. Crime was no longer conceived as an offence against the kin-group, but as against the King. The period saw not only the beginnings of centralisation, but also of bureaucratising and professionalisation. The Union period Norway was in union with Denmark, and intermittently with Sweden too, from 1390 to 1814, a period in which the Norwegian legal system saw further professionalisation. Norwegian cases began in the city or district court, proceeded to the higher courts and finally to the Overhoffretten in Oslo, from 1624 called Christiania. After Denmark created a Supreme Court in 1661, Norwegian cases could be appealed there. The Danes had little knowledge of Norwegian laws and legal thinking, and therefore settled cases by their own laws. The Supreme Court was subject to the king, and until 1771 all decisions made by the Supreme Court were to be reviewed by him. In 1771 this review power was abolished, except for death sentences. In the course of the Danish Union, attempts were made to increase the distinction between the judicial and executive powers, at the same time as the king maintained his position as the fount of legislation. The National Law promulgated under Magnus Lawmender was still applicable law in Norway. As the 17 th century progressed a need was felt to update it, leading to the Norwegian Law (Den norske lov) of 1687, which was to a certain extent based on the Danish code of The Supreme Court in Denmark could now deal with two legal codes that were more or less similar. The separation of powers and the Norwegian Constitution The principle of separation of powers that is, between the legislative, executive and judicial functions was formulated by the French philosopher Montesquieu. Montesquieu s separation of powers was central to the Norwegian constitution of 1814, adopted after that year s separation from Denmark. The King was the executive power, the Storting the legislative power and the courts the judicial power. The Norwegian constitution was more liberal than many others, inter alia being based on the principle of popular sovereignty. Norway acquired its own Supreme Court in The Norwegian constitution remained in force after the young state entered a union with Sweden, and so the final Norwegian independence in 1905 did not represent any change in the Norwegian legal system. During the German occupation of the Supreme Court resigned, and judges were appointed who were loyal to the occupiers. Neither the judges nor their decisions from this period were recognised after Liberation. Courts of Norway PAGE 15

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