Strasbourg, 1 February 2006

CCJE/REP(2006)12
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “ The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Norway

Reply to Questionnaire

"The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"

NORWAY

A.1
The Council for Professional Training of Judges in Norway1 (CPTJ) offers international study tours for judges, i.a. to Haag, where the participants visit the permanent International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia, The International Court of Justice (ICJ) and the EU based network Euro jurist and Europol. The CPTJ also arrange one study tour to Luxembourg and Strasbourg, were the participants visit the European Court of Human Rights, the EU and EFTA courts.

Norwegian judges have for several years been offered a yearly two days training course which mainly focuses on the European Convention on Human Rights. Unfortunately the course, normally consisting of about 20 judges2, was not offered in 2005. The CPTJ is also responsible for an obligatory starting course of four weeks for all new judges, which also embodies the ECHR within its subject matters.

A.2.

There are no procedures or routines for dissemination of recent international or European legislation and case law to Norwegian judges. The most common way for Norwegian judges to become acquainted with international and European legislation and case law, is by using the World Wide Web. All Norwegian courts have the requisite IT facilities. However, brief summaries of Court decisions now appear in Norwegian Journal of Penal Law and Nordic Journal of Human Rights. The latter is published by the Norwegian Centre for Human Rights.

A.3.
All judges have the opportunity to attend the course English for judges, which is arranged by the Council for Professional Training of Judges. The course is free of charge.

Judges may also attend other language courses, which are not arranged by the Council for Professional Training of Judges, and not necessarily subsidised by the state.

Norwegian courts do not have in-house legal translation facilities. When translation is needed, this will be provided by commercial services.

B.1.
On a national level steps are being made for international bilateral legal co-operation between Norway and other specific countries. Two Norwegian courts will participate as Pilote courts in a programme managed by the CEPEJ. Furthermore, tours to the different international courts are being arranged, cf. answer to A.1 above. Such visits may also be arranged by some courts themselves. As an example the whole Supreme Court visited the European Court of Human Rights in the fall of 2005

B.2.
There are no further events organized for the purpose of bringing together Norwegian and international courts.

C.1.
a)
The European Convention on Human Rights was incorporated3 into Norwegian law in 1999, when the Human Rights Act4 was adopted by the Parliament. But also prior to the Act, the Convention had both in principle and in practice been of great significance for Norway.

The Human Rights Act states i.a.:

    Section 1
    The purpose of the Act is to strengthen the status of human rights in Norwegian law.

    Section 2
    The following conventions shall have the force of Norwegian law insofar as they are binding for Norway:

        1. The Council of Europe Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol no. 11 of 11 May 1994 to the Convention, together with the following protocols:

        a) Protocol of 20 March 1952,
        b) Protocol no. 4 of 16 September 1963 on the protection of certain rights and freedoms other than those already included in the Convention and in the First Protocol to the Convention,
        c) Protocol no. 6 of 28 April 1983 on the abolition of the death penalty,
        d) Protocol no. 7 of 22 November 1984

        2. The UN International Covenant of 16 December 1966 on Economic, Social and Cultural Rights.

        3. The UN International Covenant of 16 December 1966 on Civil and Political Rights, together with the following protocols:

        a) Optional Protocol of 16 December 1966,
        b) Second Optional Protocol of 15 December 1989 on the abolition of the death penalty.

    Section 3
    The provisions of the conventions and protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.

In 2003 the UN Convention on the Right of the Child was added to the list in Section 2.

According to the Human Rights Act, Section 3 cf. Section 2 no. 1, the provisions of the European Convention on Human Rights shall take precedence over statutory provisions that conflict with them.

The responsibility for the authorities of the State to respect and ensure human rights is reflected in Article 110c 5 in the Constitution of Norway:

    ”It is the responsibility of the authorities of the State to respect and ensure human rights. Specific provisions for the implementation of treaties hereof shall be determined by law.”

This provision was inspired by the principal human rights conventions, i.a. by the European Convention on Human Rights.

b)
Since Norway is not a member of the EU, the EU treaties have no immediate or direct impact on Norwegian legislation.

Nevertheless, as a consequence of the Agreement on the European Economic Area (the EEA Agreement)6 of 2 May 1992, which came into force 1 January 1994, Norway is closely integrated with the Union, and the EU law has thus become of significant importance in Norway.

A two-pillar structure has been established both regarding supervision and in respect of judicial control; the EU Member States are supervised by the Commission - the EFTA States party to the EEA by the EFTA Surveillance Authority (ESA), whereas for judicial control the EFTA Court operates in parallel to the Court of Justice of the European Communities. The EFTA Court has jurisdiction with regard to EFTA States, which are parties to the EEA Agreement. The Court is mainly competent to deal with infringement actions brought by the EFTA Surveillance Authority against an EFTA State with regard to the implementation, application or interpretation of an EEA rule, for the settlement of disputes between two or more EFTA States, for appeals concerning decisions taken by the EFTA Surveillance Authority and for giving advisory opinions to courts in EFTA States on the interpretation of EEA rules. Thus the jurisdiction of the EFTA Court mainly corresponds to the jurisdiction of the Court of Justice of the European Communities.

The EEA Agreement provides for no transfer of sovereign rights to the intergovernmental institutions set up. Obligations arising from EEA treaties must be transformed or incorporated in Norwegian law by statutory law, with the rank of ordinary statutory law.

The fact that the EEA Agreement is lacking the supranational character of the EU should however not be exaggerated since under the EEA Agreement EU directives are incorporated into Norwegian law in the areas covered by the Agreement.

c)
i) The case law of the European Court of Human Rights:
Although the case law of the European Court of Human Rights has no formal rank in the hierarchy of law, this case law is of significant importance for the application of law in Norway.

In 1984 the Supreme Court stressed that “the decision in the case must, inter alia, be based on” the consideration that “…Norwegian law must as far as possible be presumed to be in accordance with treaties by which Norway is bound…” 7

In 1993 the Committee preparing the Human Rights Act stated8:

    “The Committee next considers the significance of the practice of convention bodies. It is not feasible to lay down any general principle concerning to what extent a state is bound by international law to follow the interpretation of a convention provision by convention bodies. Inter alia, a distinction must be made between the significance such pronouncements have for the state to which they are addressed (“the force-of-law-effect”) and the significance for other states which are bound by the convention (the source-of-law-effect”). But in any case the decisions of the supervisory bodies will normally be sources or factors of considerable weight for the interpretation of the conventions.”

In 1994 the Supreme Court held that Norwegian courts have to apply national procedural provisions in such a manner that the court procedures are in accordance with the obligations arising from the treaties by which Norway is bound. The Supreme Court also stated that if a treaty provision shall take precedence over a statutory provision in conflict with it, the treaty provision must be sufficiently unambiguous.9 This has also been described as the demand for clarity of treaty provisions.

In 2000, by a judgment in plenary session10, the Supreme Court took note of the preparatory works of the Human Rights Act, and stated that it is the aim for Norwegian case law to be in accordance with the current international practice of interpretation (of the conventions). As a consequence of this judgement, as well as of the Human Rights Act, the demand for clarity has been modified in favour of a principle of independent interpretation based on the principles for interpretation as applied by the European Court of Human Rights.

ii) The case law of the Court of Justice of the European Communities:
The EEA Agreement Article 6 states:

    “Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.”

Therefore, although the EFTA Court is independent, the rulings of the Court should be in conformity with the relevant rulings of the Court of Justice of the European Communities. No such similar obligation is relevant for the EC Court. In practice, though, and due to a procedure for exchange of information between the EFTA Court and the EC Court, the EC Court has agreed upon, and based decisions upon, rulings by the EFTA Court. This underlines the dynamic character of the EEA Agreement.

As stated by the Court of Justice of the European Communities11;

    “Furthermore, both the Court and the EFTA Court have recognised the need to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly (Case C-452/01 Ospelt and Schlössle Weissenberg Familienstiftung [2003] ECR I-0000, paragraph 29, and Case E-1/03 EFTA Surveillance Authority v Iceland, not yet published in the EFTA Court Reports, paragraph 27).”

Thus, both Courts have recognised the need to ensure that the rules of the EEA Agreement, which are identical in substance to those of the EC Treaty, are interpreted uniformly.

In Norwegian law, the Court of Justice of the European Communities is anchored as a court of precedent regarding the EEA law. The Norwegian Supreme Court has stated that the obligations arising from the EEA Agreement binds Norwegian judges to interpret national law in accordance with the EU law, and to sanction any breaches of these obligations12.

One may conclude that, although the case law of the Court of Justice of the European Communities has no formal rank in the hierarchy of law, this case law is of great importance for the application of the EEA law in Norway.

d) The Human Rights Act takes as a starting point some conventions that form the foundation for the international protection of human rights13, cf. the Act, section 2. The provisions of these conventions shall take precedence over statutory provisions that conflict with them. For other international treaties, cf. C.1, footnote 4, the ascertainment of normative harmony entails ascertaining that the Norwegian national law is in accordance with the obligations arising from the treaties by which Norway is bound.

C.2.
The case law of Norwegian courts recognise – at least for interpretation purposes – recommendations and resolutions of the Council of Europe. 14

C.3.
In its plenary ruling of 23 June 2000, see footnote 10 above, the Norwegian Supreme Court stated that it is the pronounced aim of Norwegian case law to be in accordance with the current international practice of interpretation of Human Rights conventions by which Norway is bound. As a consequence of this judgement, which based itself on the Human Rights Act, the “demand for clarity”15 has been modified in favour of a principle of independent interpretation based on the principles for interpretation applied by the European Court of Human Rights. This ruling implies that a provision contained in the European Convention on Human Rights will form the basis for the national courts’ decisions, even though the consequence may be that Norwegian law or case law may be neglected.

Thus, if the European Court of Human Rights were to hold that certain provisions of the Norwegian legislation violate the European Convention on Human Rights, the Norwegian national courts would be bound not to apply those provisions.

C.4.
According to the Criminal Procedure Act section 391, first paragraph no. 2, and the Civil Procedure Act section 407, first paragraph no. 7, reopening of the proceedings may be required when the decision is deemed to be based on an interpretation of international law or a treaty which differs from the interpretation that an international court has in a parallel case laid down as binding on Norway, and it must be assumed that such an interpretation should lead to a different decision.

Reopening may also be required if the proceedings of a case conflict with international law by which Norway is bound, assumed that the procedural error had impact on the judgment, and a reopening is necessary to remedy the wrong done.

Reopening under such circumstances may found basis for a claim for compensation.16

D.1.

The UN Security Council adopted 28 September 2001 resolution 1373 to combat international terrorism. Norway adopted on 5 October 2001 the necessary enabling legislation in order to implement the Security Council resolution. At the same time, Norway implemented in its laws the relevant rules contained in the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999. Since the Norwegian parliament was not in session when the resolution was adopted, a Royal Decree laid down a Provisional Ordinance to this effect. The parliament later on gave its consent to this initiative.

In 2002 the parliament adopted new provisions to combat terrorism by amendments to the Penal Code17. In 2005 the parliament adopted a bill on the use of compulsory measures to prevent serious crimes, including acts of terrorism18. These initiatives are presumed to be in accordance with the Council of Europe recommendations and resolutions.19

D.2.
The amendments to the Penal Code in 2002, define acts of terrorism as some specific felonies against public safety20 committed with the intension to seriously disturb basic functions in the society, to cause serious fear in the population or enforce authorities to do or omit significant actions for the country. On the same occasion, amendments were made to the Alien Act, whereby an alien may be expelled for committing an act of terror, or for giving safe haven for someone who has committed an act of terror.

The amendments made to the Criminal Procedure act in 2005 mainly gave the police access to, when investigating, measures as bugging housings and flats, and for identification of cellular phones, communication installations etc. These measures have a limited range of application; meant for suspected terrorism and other serious crimes. The provisions do not demand probable cause for suspicion21, but “reason to believe”22 that the suspected will commit a serious crime. The objective of these provisions is to avert serious criminal offences. The judge has the role, as for other compulsory measures, to control that the terms of the provisions are fulfilled, and to ensure the rule of law. In this sense, the provisions didn’t alter the role of the judge compared to ordinary proceedings. D.3. In Norway there have been almost no cases concerning suspected terrorism, and no one has been convicted of a charge of terrorism. For cases concerning suspected terrorism, the legislator has pointed out the court to ensure the rule of law. This is the main means to reconcile the demand for security and the protection of the human rights in cases regarding suspected terrorism. Any compulsory measure taken by the police authority has to be sanctioned and approved by the court, and if indicted, the accused will, in accordance with the European Convention on Human Rights, be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 1 Administered by the Norwegian Courts Administration, composed by a majority of judges. 2 The total number of judges in Norway is approx. 500 3 In Norway, the methods for implementing treaties in national law are usually called ”transformation”, ”incorporation” and ”ascertainment of legal harmony”. Transformation entails the reproduction of a treaty in legislation, in the form of a translation with any adaptations that may be necessary. Incorporation entails the legal enactment of a treaty as part of the national law, in its original form and language. Ascertainment of normative harmony entails ascertaining that the national law is in accordance with the convention. The latter has been the most usual method of implementing treaties in Norway. 4 The Act of 21 May 1999 relating to the strengthening of the status of human rights in Norwegian law. 5 Amendment of 15 July 1994 6 The aim of the EEA Agreement is to guarantee the free movement of persons, goods, services and capital; to provide equal conditions of competition and to abolish discrimination on grounds of nationality in all 28 EEA States – the 25 EU States and 3 of the EFTA States (at present Iceland, Liechtenstein and Norway). 7 The Norwegian Legal Gazette, Rt. 1984 page 1175. 8 NOU (Official Norwegian Report) 1993:18 page 194. 9 The Norwegian Legal Gazette, Rt. 1994 page 610 10 The Norwegian Legal Gazette, Rt. 2000 page 996

11 Case C-286/02, Judgment of the Court (Third Chamber), 1 April 2004, between Bellio F.lli Srl and Prefettura di Treviso, cf.

12 The Norwegian Legal Gazette, Rt. 2000 page 1811 (Finanger I) and HR-2005-01690-P (Finanger II), cf. prof. Hans Petter Graver, the journal Lov og Rett, 2005, page 385-386. 13 Cf. NOU (Official Norwegian Report)1993:18, page 197. 14 E.g. The Norwegian Legal Gazette, Rt. 2001 page 1413, Rt. 2001 page 1322. 15 Cf. C.1.c) i) 16 For criminal cases reference is made to the Criminal Procedure Act, Chapter 31: Compensation in connection with a prosecution. 17 28 June 2002, by amending section 147 a and 147 b. 18 17 June 2005, by amendments to the Criminal Procedure Act 19 European Convention on the Suppression of Terrorism of 27 January 1977 with amending protocol 15.V.2003, Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism 16.V.2005, Council of Europe Convention on the Prevention of Terrorism 16.V.2005, Rec(2005)7 of the Committee of Ministers to member states concerning identity and travel documents and the fight against terrorism, Rec(2005)9 of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice, Rec(2005)10 of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism. 20 E.g. To cause fire, collapse, explosion, railway or aircraft accident, boarding of ships, aircrafts or constructions on the continental shelf, destroying installations for supplying power etc. 21 Which is the usual demand for implementing compulsory measures in Norway. 22 Which is weaker than ”probable cause”.

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