Strasbourg, 29 January 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary: Reply submitted by the delegation of Norway
Reply to Questionnaire for 2007 CCJE Opinion concerning the Councils for Judiciary
Part I – General context concerning the judiciary
1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
The Parliament (the Storting) decides to some extent regulations related to the organisation of the courts, inter alia concerning the number of courts, the laws by which the courts adjudicate, the kind of courts to have and the geographical jurisdiction for the various courts, where the courts shall be situated, and the procedure for appointing judges.
2. Is it possible for the legislative power, the Parliament, or the executive power/the government to order investigations or to establish commissions:
· in general concerning judges? If yes, please specify.
· concerning judicial performance?
· concerning facts already submitted to courts?
· concerning procedural acts (e.g. telephonic tapping, police custody)
The Norwegian Constitution is based on the principle of separation of powers between the executive (the King, i.e. the Government), the legislature (the Storting) and the judiciary.
The principle of judicial independence is not clearly stated in the Constitution, but is presupposed, e.g. in Article 88, after which the Supreme Court pronounces judgments in the final instance, and Article 90, which states that the judgments of the Supreme Court may in no case be appealed. According to the Constitution Article 22, judges may not, except by court judgment, be dismissed nor, against their will, transferred.
Presumably, neither the legislative nor the executive power may order investigation in general concerning judges. At least, so far such commissions haven’t been established. However, the executive power, and presumably also the legislative power, may order investigations and establish commissions concerning judicial performance related to the procedural matters of a case. Whether such investigation could be given a broader mandate, is not evident, and if so, the limits are not clearly defined.
Unquestionably, the other state powers can’t reverse a courts decision. Neither can the other state powers instruct the courts as to how they should decide specific cases. They may not intervene in the courts’ consideration of a particular pending case, nor review facts submitted to the courts in such cases.
The Ministry of Justice emphasize, in it’s note of 19 October 2006 regarding constitutional barriers for inquiries of the courts, whether such inquiry should be carried out, depends inter alia on:
- the similarities between an inquiry and a reversal of the case,
- the purpose of the inquiry,
- whether such an inquiry is crucial for the public trust of the courts system,
- the time lapse; inquiries could more easily be set up for elder cases,
- whether the courts decision later on has been reversed by the courts themselves
So far such commissions has been established twice, related to specific cases, and limited to the court orders that controlled the procedural matters of the cases.1
3. Is there possible interference of the executive power concerning judges?
4. If yes, is it possible for the executive power to interfere:
- in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
- in designation of presidents of courts? (if yes, please specify which authority from the executive power)
- in management of courts? (if yes, please specify which authority from the executive power)
Judges and president of courts are appointed as senior state officials by the King in Council, after formal recommendations from the Judicial Appointments Board and the Ministry of Justice.
The executive power doesn’t interfere in training of judges, nor in disciplinary procedures concerning judges or in management of courts. These tasks are given to National Courts Administration. The central administrative bodies may only instruct the National Courts Administration by giving general instructions in the form of the same administrative rules that apply to all central government agencies.
5. Is the judicial staff working under the authority of:
The judicial staff, interpreted as non-judges, is working under the authority of the president of the court.
6. What are the competences of the president of the Court:
- to evaluate the work of the judges of the court?
- to distribute the work between judges?
- to act as a disciplinary authority vis-à-vis judges?
- to intervene in the career of judges?
- other? If yes, please specify.
The president of the court is responsible for the composition of the judicial staff and administrative matters. The judges are independent in adjudication, and the president of the court cannot interfere or evaluate their performance in that sense.
The president distributes the work between the judges, in principle on random basis, but also to some extent taking into consideration the workload of each judge.
The president of the court has no power or competence to act as disciplinary authority vis-à-vis judges of the court. The Supervisory Committee for Judges2, a separate administrative body, deals with disciplinary matters.
The president of the court cannot intervene in the career of judges.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system?
8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
The denomination is the National Courts Administration (Domstoladministrasjonen).
9. What is the legal basis for the Council for the Judiciary:
- the Constitution?
- the law?
- other? If yes, please specify.
The National Courts Administration was established on 1. November 2002 in accordance to the law as amendments to the Courts Act3.
10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)
The Norwegian Law Courts Commission was appointed by Royal Decree of 8 March 1996, and was chaired by the Chief Justice of the Norwegian Supreme Court. The Commission was instructed to report on inter alia these subjects:
- The organisation of the central courts administration: At that time, the Ministry of Justice was responsible for the administration of the ordinary courts of law, and the Commission was charged with examining the advantages and drawbacks in principle and in practice of organising the central courts administration under alternative solutions, and if appropriate making substantive proposals for a new organisation.
- The appointment of judges: Judges were appointed by the Government (King in Council) on the recommendation of the Ministry of Justice, which for their part built, inter alia, on the recommendations of the Advisory Council for the Appointment of Judges. The task of the Law Courts Commission was to evaluate whether the appointments process for judges could be refined and formalised.
- New complaints and disciplinary procedure for judges: Under its terms of reference, the Commission should evaluate the need, if any, for a change in the complaints and disciplinary mechanisms in respect of judges, and also examine how such a mechanism, if any, could be regulated and organised, and what kind of reactions might be appropriate.
- In addition, the Commission also should evaluate the practice of temporary judges and extra-judicial activities.
The Commission examined the organisational solutions that would appear to be most appropriate for the central courts administration:
- The “ministry model”, consisting of variations on the previous system in the Ministry of Justice
- The “directorate model”, transferring the administration to a traditional central administrative body outside the Ministry
- The “Bank of Norway model”, setting up a new body under the instructional authority of the Government; but where to the right of instruction would be attached such procedures and duty of notification in relation to the Parliament (Storting) that the new body would in practice enjoy a very high degree of independence from both the Government and the Ministry
- A free-standing courts administration with limited connections with the Government; where, for example, the Government would be responsible for assessing and submitting budget proposals for the courts, and a minister with parliamentary responsibility for the courts administration
- A free-standing courts administration with limited connections with the Parliament (Storting); similar to the connections between the Parliament and the Office of the Auditor General or the Storting's Ombudsman for Public Administration, which are the Parliament’s own bodies
- The “court model”, transferring the administrative responsibility and administrative authority for the courts administration to the Supreme Court or to a body or bodies elected by judges.
The majority of the Commission's members proposed a new administrative system, with a separate Courts Administration headed by a board elected in part by the Parliament (Storting) and in part by the Government, and with the actual administration moved away from the Ministry.
On the basis of the Commission’s report4 a Parliamentary Bill5 was presented in March 2001. The majority of the proposals were followed and as a result the National Courts Administration was established on 1. November 2002.
Part III - Composition
11. What is the composition of the Council for the Judiciary:
- Number of members?
The board of the National Courts Administration consists of nine members.
- Qualification of the members?
The composition of the board is determined by law6, requiring that the board shall consist of three judges from the ordinary courts, one judge from the land consolidation courts, two representatives elected by the Parliament (Storting), one representative from the court executives and two advocates.
- For the “judges” members, do they need specific qualifications or experiences?
- Can non-judges be members of the Council? Please specify (number, qualification/specific functions)
The majority of the board are non-judges. Two of the members (non-judges) are elected by the Parliament (Storting). Amongst the other members, two of them are advocates and one is a representative for the court executives (the courts staff members).
12. Please describe the whole procedure of appointment:
- Who designates the members (judges or other institutions or authorities – please specify)?
- What is the appointment system (voting, individual candidates, designation, etc.)?
As mentioned, the board of the National Courts Administration consists of nine members, two of them elected by the Parliament (Storting), and seven appointed by the Government:
- three judges from the ordinary courts,
- one judge from the land consolidation courts,
- one representative from the court executives,
- two advocates
13. How is appointed the President and/or Vice-President of the Council?
The Government (the King in council) decides which of the board members to be the chairperson of the board. At present the chairperson is a Supreme Court judge. The previous chairperson was an advocate.
14. What is the term of office for a member of the Council?
The members of the board are appointed for a term of four years, with the possibility of re-election for another four years period.
15. May a member be removed from office against his/her will and, if so, under what circumstances?
The appointment or election of a member of the board may be withdrawn if he or she isn’t capable or unwilling to conduct his or her duties in a proper manner. The whole board as such may be removed from office in case of serious breaches of their duties.
Part IV – Resources
16. Where does the Council receive its financial resources?
The Council receives its financial resources from the national budget.
17. Does the Council have its own staff?
18. If not, is the personnel provided by:
19. What is the staff number?
There are about 90 persons working in the National Courts Administration.
20. What are the qualifications of the staff?
The National Courts Administration is divided into seven departments: one ICT unit; one unit for Human Recourses, Organisation and Competence work; one unit which takes care of budgets and property matters, one unit for information and communication strategies, one judicial department and one unit for matters concerning the Land Consolidation Courts.
The staff members have diverse qualifications depending on the position, e.g. some have legal background, others from information technology, from personnel management, the press or public information, as economists and so on.
21. Must the staff be composed, albeit only in part, by judges?
No, but some judges are posted on a temporary basis in the National Courts Administration.
22. What are the tasks of the staff of the Council:
- preparing materials for the Council members?
- providing them with analysis and evaluation of the courts’ practice?
- other? Please specify.
Part V – Tasks
23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):
The National Courts Administration is the central administration for the Supreme Court, six Courts of Appeal, 79 District Courts and 39 Land Consolidation Courts/superior Land Consolidation Courts. The National Courts Administration is not responsible for the prosecutors. The responsibility includes the support staff.
- in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
Judges are appointed as senior state officials by the Government, after the Judicial Appointments Board - a separate judicial appointments body7 - has given its formal recommendations. The Judicial Appointments Board is composed of three judges, two non-lawyers appointed as public representatives, one advocate and one lawyer employed in the public sector.
The chairperson and the other members of the Board are all appointed by the Government.
The Judicial Appointments Board deals with applications to the District and City Courts, the Courts of Appeal, and the Supreme Court. An exception is made for the post of Chief Justice of the Supreme Court. The Board recommends three applicants. The recommendations of the Board carry a great deal of weight when the Government makes its final choice. The Government may not choose an applicant who has not received the recommendation of the Board, unless it has asked for the Board to make a special assessment of the applicant in question. The Board's recommendation, but not the reasons for the recommendation, is made public.
The National Courts Administration administrates the secretariat for the Judicial Appointments Board.
The National Courts Administration also:
- administrates the secretariat for the Supervisory Committee for Judges
- is the entity responsible for keeping and managing the national register of the judge’s extra-judicial activities.
- is responsible for the acquisition and general management of all courthouses in the country
- in area of initial and/or continuous training for judges and/or courts’ staff?
The National Courts Administration has an overall responsibility for the ongoing competence work within the judiciary, and acts as secretariat for different professional training committees, for example the Council for Professional Training of Judges in Norway.
- in area of courts’ performance in general (assessment of quality of court performance, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
The National Courts Administration takes initiatives concerning organisational development and improvement of the management of the courts.
- in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements)?
- in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
The National Courts Administration administrates the secretariat for the Supervisory Committee for Judges, a separate independent administrative body, dealing with disciplinary matters, established as a result of the report of the Norwegian Law Courts Commission8, cf. question 10.
The National Courts Administration has the right to complaint, both for misconduct of a judge in the performance of his or her office, and for misconduct outside office, but the Courts Administration hasn’t as such any power in disciplinary matters.
The procedure in disciplinary cases is based on the provisions of the Public Administration Act and the Freedom of Information Act. The decisions of the Supervisory Committee in disciplinary cases are regarded as individual decisions, which will allow the special rules in the Public Administration Act regarding such decisions to be applied.
The judge and the complainant will have a universal right to give oral evidence before the Supervisory Committee, unless the Committee finds it clearly unnecessary for the elucidation of the case. The Supervisory Committee can call witnesses, and evidence can be taken from persons at a distance.
The meetings of the Supervisory Committee are in general held in camera.
The Supervisory Committee's decisions may not be appealed, although the parties in an administrative case can challenge the Committee's decision in court by bringing a civil action for judicial review. The time limit for bringing such an action is two months.
- in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
The Norwegian Courts Act section 33 underlines that it is the responsibility of the National Courts Administration to administrate the courts in a proper and sufficient way.
The National Courts Administration has various tasks. One of the most important duties is the responsibility for the courts budgets and the making of budgetary proposals.
The National Courts Administration is responsible for the courts` budgets and makes budgetary proposals both to the Government and directly to the Parliament (Storting).
The National Courts Administration is also responsible for finance strategies and cost effective measures within the courts. The National Courts Administration brings forward budget proposals to the Government but may also go directly to the Parliament.
Total annual budget allocated to all courts is EUR 164 m (1,373 Billions NOK). This includes the Supreme Court and the special courts (e.g. land consolidation court).
- in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
The National Courts Administration contributes to the development of regulatory framework, and reports to the Government on substantial problems in the court system.
24. Does the Council have investigation powers? If yes, please specify.
25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe.
By annual and periodical reports from the various courts.
26. What are the types of norms that the Council can issue:
- opinions on the functioning of the judiciary?
- instructions to the courts?
Yes, to some extent in administrative and economic matters.
27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
Yes, described in law, cf. answer to question 28.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
The formulation of these tasks is rather general, described in the Norwegian Courts Act section 33, underlining that it is the responsibility of the National Courts Administration to administrate the courts in a proper and sufficient way.
29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
No. Though a committee appointed by the National Courts Administration is preparing a code of ethics for judges.
30. Does the Council handle external relationships of the courts:
- has it a public relations department?
- how does it ensure the transparency of its functioning and organisation?
The National Courts Administration is responsible for developing the information work within the courts, between the courts as well as to the public and the media. The Internet site9 together with intranet, various publications and media relations are important tools in this respect. Information about the National Courts Administration, its organisation and functioning, are available at its web site, also including information from the meetings of the board.
31. Are decisions of the Council published and available to all?
The National Courts Administration is a central government body considered to be an administrative agency, and according to the act on publicity for such agencies, the case files are public, unless exception is made by law or in accordance with law.
Part VI – Assessment of the self-governance and the independence of the judiciary
32. To what extent is the work of the Council influenced by:
- the executive power?
The King in Council (The Government) may according to the Courts Act section 33 take decisions concerning the activities of the National Courts Administration and for the courts system. The Government must inform the Parliament on the decision. This provision has yet not been used.
The Ministry of Justice itself does not have any authority to impose instructions on the National Courts Administration or the courts in administrative matters.
- the legislative power?
The Norwegian Parliament (Storting) may give instructions for the tasks that are given to the National Courts Administration.
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
The National Courts Administration is independent from other States entities, and not subject to control liability in their respect.
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
The Ministry of Justice deal with the budget and all preparatory work on new laws concerning the courts. The National Courts Administration has a very free hand in its administration of the courts. A draft budget is presented to the Ministry and is included in the Government's overall draft budget. Apart from the usual budget reporting, the Parliament (Storting) will also keep a check on the courts and the Courts Administration through the Office of the Auditor General, which, in addition to auditing the accounts, also is able to audit the administration in the area of the courts.
35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
The National Courts Administration has the responsibility for the general administration of the courts. The presidents of the courts are responsible for the composition of the judicial staff and economic and administrative matters of the individual courts. Neither the Supreme Court nor its president is, in this sense, in any other position than subordinate courts or presidents of subordinate courts.
36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
The Supreme Court is subject to the exercise of the powers of the National Court Administration in relation to administrative and financial matters.
37. Who decides which the priorities of actions of the Council are?
The Parliament (Storting) may give overall instructions for the tasks that are given to the Norwegian Courts Administration, but the Courts Administration decides its own priorities within the framework of its recourses and various tasks.
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
39. Which instruments or practices are used by the Council:
- to guard the independence of judges?
- to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
- to intervene in case of attacks against its own interests?
- to improve the working methods of judges?
The Norwegian Courts Administration has initiated and developed a new computer based system for administrative and judicial procedure, inter alia improving the quality control for procedures and to some extent simplifying the work load by elaborating templates and applicable standard document forms.
Part VII – Future trends of Councils for the Judiciary
40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
Yes. There are meetings between the National Courts Administration and the Norwegian Association of Judges, between the respective boards once a year, and more often between the Judges Association and working parties within the Courts Administration. The Judges Association also nominate candidates to - and is represented - in a number of various working groups established by the Courts Administration.
43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
Norway is not a member of the ENCJ due to the fact that Norway is not a member of the European Union. The Norwegian Court Administration has applied for observer status, but there is no decision on the application so far.
44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Part VIII – Countries without a Council of the Judiciary