Strasbourg, 14 February 2002
CCJE (2002) 15
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Norway
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
There are only a few such statutory obligations. According to article 21 of the Norwegian Constitution the judge when appointed as an official is obliged to take an oath of obedience and faithfulness to the Constitution and the King.
According to section 60 of the Courts of Justice Act the judge must give a written affirmation that he or she conscientiously will fulfil the duties of office.
There are however special statutory regulations as to the procedure of removal, for example if the duties of office are severely breached. By virtue of the fact that they are senior state officials, permanent judges enjoy a special security of tenure under article 22 of the Constitution. They can only be removed from their post after a trial and court judgment. Section 15 of the Civil Service Act regulates the reasons for removal.
2. Is there a judge’s code of conduct?
Presently, there is no judge’s code of conduct. However, the Ministry of Justice exercises a certain disciplinary authority, based on the supervisory authority it has in relation to the courts and the judges. Such supervisory and disciplinary authority means that the Ministry may criticise judges with respect to matters relating to the performance of their duties, for example dilatory case handling.
In 1999 the Norwegian Law Courts Commission (NOU 1999: 19) proposed that a specifically regulated, statutory complaints and disciplinary procedure for judges be introduced. The proposal is maintained by the Ministry in Parliamentary Bill no. 44 (2000-2001). The bill was assessed by the Norwegian Parliament in June 2001 and enacted the same month. The Act has not yet come into force. For a brief description of the new system, see answer no. 6.
3. What incompatibilities are there between the duties of judge and other functions or professions?
Norwegian judges are relatively free to take on extra-judicial activities, i.e commitments, tasks, lectures etc. in addition to their judicial functions. Presently, there is no requirement for official registration of extra-judicial activities, but there is a register for Supreme Court Justices. Only to a limited extent have statutory restrictions been established. According to section 229 of the Courts of Justice Act judges are precluded from practising as advocates. A judge cannot be a member of a conciliation board (section 56) or be elected to be a juror (section 66).
Furthermore, section 1.1.4 of the State Basic Agreement contains a general limitation: Consent of the competent authority must be obtained if the taking on of supplementary duties or interests are likely to ”hamper or delay” a civil servant in the prosecution of his or her main occupation. This section of the Basic Agreement also applies for judges.
The Parliamentary Bill no. 44 (2000-2001) (enacted by Parliament, but not yet into force) introduces an overall method in regulating judges’ activities by law, including three forms of regulation: Prohibition, approval and registration.
The current prohibition against practising as an advocate is upheld and extended to include legal aid activities. There will be a general prohibition of allowing permanently appointed judges to obtain leave of absence from previous posts. Entering into a remuneration agreement with a former or future employer will also be prohibited.
A register that will include an essential part of judges’ extra-judicial activities will be established. As a starting-point all extra-judicial activities shall be registered. Some exemptions will however be made, i.e. membership of political parties and professional organisations. Judges are free to join non-profit-making organisations, but posts in service for the organisation shall be registered if the organisation has more than 100 members. Membership in a Freemason Order shall be registered.
Furthermore, a statutory procedure for approval of extra-judicial activities that may delay or hamper existing judicial duties is introduced. The new independent Courts Administration will have the authority of approval, but it may be delegated to the president of the court.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
Section 106 of the Courts of Justice Act contains a detailed list of situations and relations which automatically precludes a judge from deciding in a case. Several subsections concern various close family relations between the judge and the parties or counsel or to the judge in a lower court.
Section 108 of the Courts of Justice Act is a more general and discretionary rule: ”Nor may anyone be judge or assessor in a case if other circumstances exists which would serve to weaken confidence in his impartiality. This applies particularly if a party for this reason demands that he shall cede place.”
The case-law as to which situations a judge must cede place under this section is considerable. Some examples:
- If the judge in some way has an interest in the result of the case
- If the judge or someone close to him or her has been particularly interested in the questions raised in the case
- If the judge has some kind of relation to the parties of the case or to others that can be affected by the result of the case (for example family relations outside the scope of section 106, friendship, business relations etc.)
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties?
Compared to judges in other countries, Norwegian judges are to a very limited extent protected by rules of immunity. Although there are some special material rules, judges can incur the same criminal or civil liability for acts committed in or outside of office as other persons. There are however some special procedural rules for proceedings against judges for acts committed as such. Section 436 of The Civil Procedure Act provides that an action for damages on the basis of a judicial decision cannot be raised unless the decision is quashed or changed, or the judge is convicted for a criminal offence in connection with the decision.
Proceedings against a District Court Judge must be raised for the Court of Appeal and proceedings against a Court of Appeal Judge must be raised for the Supreme Court. According to section 438 of the Civil Procedure Act proceedings against a Supreme Court Justice can be raised for the Supreme Court. It is however presumed that a civil suit of damages must be raised for the Court of Impeachment, as is the case for criminal proceedings against a Supreme Court Justice. It is furthermore presumed that a civil suit against a Supreme Court Justice cannot be raised separate from criminal proceedings. Liability for damages presupposes that the Justice is convicted.
The question of whether charges should be brought against a judge for punishable offences in the performance of his duties, must be decided by the King in Council.
In addition to the general rules of civil and criminal liability, which applies for judges in the same way as for other persons, section 200 and 201 of the Courts of Justice Act contain special provisions of summary civil and criminal sanctions in connection with a case. For example: If the case is appealed the higher court can impose a fine for improper behaviour during court trial.
6. Can judges be subject to disciplinary proceedings?
Currently there is no system for disciplinary proceedings against judges, who as senior officials are exempted from the rules of disciplinary sanctions under the Civil Service Act.
As mentioned above (answer no. 2) a specifically regulated, statutory complaints and disciplinary procedure for judges is introduced (not yet into force).
The intention is to be able to take action against professional misconduct with a milder form of reaction, in cases where the conditions for more severe reactions such as dismissal and punishment, are not present.
The main area for the new procedure will be professional misconduct in the performance of office, i.e. behaviour at variance with what is regarded ”conduct as befitting a judge”. An important guideline for the assessment will be whether the conduct in question is likely to weaken confidence in the courts or judges.
If misconduct is revealed, a disciplinary body shall impose an authoritative reaction in the form of a ”criticism” or a ”warning”. Criticism is the milder form of reaction. Anyone who has been subjected to alleged misconduct of a judge in the performance of his or her office (parties, witnesses, counsels), will be able to bring a complaint against a judge.
The new complaints and disciplinary body shall be established as a separate, administrative, collegiate body composed of five members: two representatives of the public, two judges and one advocate, all appointed by the Government. The Ministry proposes that the designation of the complaint and disciplinary body be Tilsynsutvalget for dommere (the Supervisory Committee for Judges).
The decisions made by the Committee shall be published in anonymous form.
To guarantee due process of law, the ordinary courts shall be able to review the decisions taken by the Committee. The court will be set with lay judges to avoid an impression of self-judgment.