Application for a position as State Prosecutor did not give rise to disqualification

An acting Court of Appeal judge applied for a position as Public Prosecutor while the Court of Appeal was hearing a criminal case. The indictment had been issued by the same Public Prosecutor’s office to which the position related. The question before the Supreme Court was whether this rendered the judge disqualified from adjudicating the case.

The Supreme Court stated that such an application creates a link between the judge, the Prosecution Authority and the case, thereby reducing the distance between the court and one of the parties. It is understandable that a defendant may feel concern upon learning that one of the judges has applied for a position as Public Prosecutor at the office responsible for the case. Accordingly, a judge will, in such circumstances, most often be disqualified during the recruitment process. At the same time, the Supreme Court emphasised that the question of disqualification must be assessed on a case-by-case basis.

In the present case, a majority of four justices found that the judge was not disqualified. They emphasised that the application was submitted after the appeal hearing and withdrawn before judgment was delivered. One justice found that the judge was disqualified, emphasising that the recruitment process ran in parallel with the Court of Appeal’s consideration of the case.

The judgment provides guidance on disqualification issues arising from an application for a position with one of the parties to a case.

Read the judgment (Norwegian only) (PDF)

Area of law: Section 108 of the Courts of Justice Act

Key paragraphs: 35 to 37

Justices: Bergsjø, Thyness, Sæther, Hellerslia, Lund