Independence of the Courts
The independence of the Courts of Justice protects all citizens against arbitrary decisions and abuses committed by other branches of state power, This independence is a consequence of Norway being a constitutional democracy. The Constitution sets clear limits on legislative and executive power even when decisions are carried by a majority vote.
Control of the other branches of state power
The Courts of Justice exert a control function regarding new laws and changes to existing laws that are proposed by the National Assembly. If a law is against the Constitution by, for example, violating the constitutional rights of one or many citizens, a court may set aside the law in any trial where such rights are deemed to have been violated. In a case brought before the Supreme Court where two or more judges deem that a specific law breaks the constitutionthe case is settled in a plenary meeting of the Supreme Court. This may result in the Supreme Court setting aside the law in question in the settlement of the case.This implies that the Supreme Court through its rulings can control or limit the legislative power of the National Assembly. This control or limitation by the Supreme Court has only occurred on very rare occassions.
In concrete cases the Courts of Justice also have the authority to check on decisions made by the government or other subordinate administrative bodies. In such cases the Courts of Justice will decide whether the administration has remained within the framework of the law, whether the resolution is based on accepted facts and correct proceedure, and that the administration's judgement is not improper or seriously unreasonable. If such errors have occurred, an administrative pronouncement can be ruled invalid by the Courts of Justice. However, it should be noted that such a ruling can only occur in response to an actual dispute brought before a court.
How independence is guaranteed
According to our Constitution judges' decisions in each and every case are to be independent of external influence. Judges' verdicts cannot be instructed or influenced. The decisions of the Supreme Court cannot be rejected or altered by other authorities.
Over the last few decades the situation has changed somewhat. The influence of international courts of justice has grown, especially regarding the international conventions on human rights. Amongst others, the Court of Human Rights in Strasbourg plays an important role in the development of law and jurisdiction in Norway. When, in future, the Court of Human Rights interpretes the convention differently from the Supreme Court the Norwegian Supreme Court must act in accordance with the guidelines and rulings made in Strasbourg. So even though the Supreme Court is the 'last instance', the Supreme is obliged to take into consideration the decisions of the Court of Human Rights.
A verdict can only be altered by a superior court of justice after an appeal proceedure. In criminal cases the usual deadline for appeal is 14 days after the verdict is handed down. In civil cases the deadline is one month. A superior court on its own initiative cannot instruct a subordinate court on its proceedings in any one specific case. However, if one party makes an appeal or an interlocutory appeal against a verdict, the court of justice processing the appeal may rule that the subordinate court must process the case again. The subordinate court must then abide by the interpretation of the law which constitutes the basis for the superior court's ruling.
The National Assembly (Stortinget) passes general laws which the Courts of Justice apply in all cases heard in court. The Courts of Justice are independent in their interpretation of the law. This means that the courts, headed by the Supreme Court, have a a great influence on how the letter of each law is applied in each individual case. Furthermore, there exists large areas of the law wherecourt rulings and interpretations have developed or evolved contemporary law and jurisdiction.
The Courts of Justice and all judges must be protected from external influence over rulings and verdicts. For a state to be democratic and legal the judges must be both independent and impartial with regards disputing parties and all interests represented by such parties. The parties in a case may request a judge to step down if the judge in question has any connection with the case or the individual parties which might raise doubts over the impartiality or independence of the process. Judges have a personal responsibility to ensure that they do not give grounds for disqualification in any individual case.
Although the independence of the courts is guaranteed by the Constitution, all courts are not insulated from democratic developments insociety.The National Assembly passes regulations relating to the organisation of the courts, for example: how many courts shall be provided throughout the nation, where they shall be situated, the number of presiding judges for each court and the proceedure for appointing judges. All of the latter are practical matters reflecting the ever changing developments in society. The Courts of Justice are administratively subordinate to the independant Norwegian Courts Administration (NCA).
Judges cannot be dismissed
Judges appointed according to the constitutional regulations have, like other civil servants, an especially protected employment status according to § 22 of the Constitution. They hold permanent positions and cannot be dismissed or moved against their will. They can only be dismissed following a court hearing and a verdict of guilty. Permanently appointed judges can be suspended, but such a decision can only be carried out by the King in cabinet. Civil or criminal proceedings to remove a judge must be started immediately following the King's decision to suspend a judge. Like other civil servants permanent judges can be punished for breaking the 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 in cabinet. Permanently appointed judges cannot be indicted for public order offences according to the regulations for all civil servants. Supreme Court judges enjoy even stronger protection and can only be removed through an impeachment process.
Judges are guaranteed protection of office to enable them to make rulings and give verdicts that may be unpopular, judges have to be free of the fear of dismissal because their decisions are not supported by the authorities or by other judges. By granting judges such a secure position, all parties appearing in court are ensured an independent and impartial ruling from the Courts of Justice.
The Courts must have the people's confidence
The decisions of judges often have great significance for many individual citizens. It is a vital requirement in a state governed by law that all the citizens of that state respect a court's ruling as well as the laws on which such rulings are based. The courts need the trust of the people in order to maintain their authority and legitimacy. It is the legitimacy and the authority of a court which ensures that rulings are respected. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure.
In order for the courts to be able perform in a free and independent manner it is necessary that they have sufficient professional and economic resources to be able to fulfil their tasks.
Both the costs and the duration of court proceedings can have a negative effect on whether an ordinary citizen will take their case to court. An efficient rather than a long drawn out processing of cases is itself a guarantee of legal protection. "Justice delayed is justice denied". The issue of reducing the duration of case processing has received a great deal of attention in recent years in Norway. Norwegian courts are now among the most efficient in Europe in this context.
A brief history of the Norwegian courts
The Viking Age
We know that there were legislative, judicial and executive authorities as early as the 10th 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 11th 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 in the middle of the country. The Hålogaland, Eidsivating and Borgarting assemblies developed in the 12th and 13th 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 12th 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 1030. 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 166 1, 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 17th 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 1683. 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 – wasformulated 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 1815. 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 1940-45 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.