Strasbourg, 5 February 2008

CCJE/REP(2008)17

English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Norway

Introductory remarks:

In Norway the courts have a general jurisdiction. There is no separate jurisdiction for administrative cases. In the following, when reference is made to civil cases, such cases also comprise administrative cases.

The way of drafting judicial decisions is to some extent regulated by statute, mainly pursuant to the Dispute Act[1] and the Criminal Procedure Act[2].

Judicial decisions inter alia comprise judgements, interlocutory ordersand other decisions.[3]  The latter requires no grounds, while grounds shall be given for judgements and interlocutory orders.

The Dispute Act introduced a special small claims procedure, designed to provide simpler, faster and more cost-effective processing for claims of an economic nature where less than NOK 125 000[4] is in dispute. As the procedure is simplified for small claims, so is the requirement for grounds in the judgements.

Consequently, in the following, when reference is made to judicial decisions, this will mainly refer to judgements in ordinary civil and criminal cases.   

Part I: Preparation of the judicial decision

Question 1

Is there a specific model to be followed in drafting judicial decisions?

Not a “specific” model, but a model in the sense that both for criminal cases as well as for civil cases the law prescribes the content of a judgement, dividing the judgement in three main parts: 

A)        Criminal cases

According to the Criminal Procedure Act judgements in criminal cases shall contain:

-                 a short presentation of the case and the claims that have been made,

-                 the reasons for the decision,

-                 the conclusion of the judgement.

           

B)        Civil cases

In civil cases, according to the Dispute Act, grounds shall be given for judgements and interlocutory orders. The description of the grounds shall include:

-                 a presentation of the case,

-                 the claims for relief of the parties, including the grounds upon which such prayers are based, and

-                 the assessment of the court.

Can each individual judge choose his own style of drafting his decision?

Yes, within the framework prescribed by law, as described above.

Question 2

Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?

Where the court is composed of more than one member, each ruling shall be made on the basis of majority voting unless otherwise provided by statute. A majority decision is equally effective and binding as a unanimous decision.

In criminal cases a decision on the issue of guilt in disfavour of the person charged requires five votes of a total of seven in the Court of Appeal (the court is composed of three professional judges and four lay judges). In cases tried by jury - consisting of ten members - at least seven votes are required for an answer that is in disfavour of the person indicted.

In a two or even more member panel, does the president or most senior judge have a second or casting vote?

In civil cases, in the event of a tie vote, the presiding judge has a casting vote.

In criminal cases, in the event of a tie vote concerning punishment, the opinion most favourable to the person charged shall prevail; otherwise the presiding judge has a casting vote.

Question 3

Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?

A synthetic and concise approach is considered sufficient insofar as the legal and factual arguments of the parties are presented to the extent required to explain the ruling.

Question 4

In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)

In general the rulings of the court initially specify the court pronouncing it, the time and place of its pronouncement, the members of the court, the parties and the number of the case.

A)        Criminal cases

In criminal cases the judgement thereafter gives a short presentation of the person charged, the indictment, time and place of the main hearing, the claims that have been made and a brief presentation of the evidence, normally with just a reference to the number of witnesses heard and to other evidence as noted in the written record of the proceedings. 

After this introduction the judgement will contain the reasons for the decision. In the case of judgements of a Court of Appeal, when the judgement is based on the verdict of a jury, the grounds of the judgement concerning the issue of guilt shall simply consist of a reference to the said verdict.

           

In other cases, when the person charged is convicted, the grounds of the judgement concerning the issue of guilt shall specifically and fully state the facts of the case that the court has found to be proved as a basis for the judgement and shall refer to the penal provision pursuant to which the person charged has been convicted. When the person charged is convicted, the grounds of the judgement shall also state the reasons to which the court has attached importance in determining the penalty and other sanctions.

                       

If the person charged is acquitted, the grounds of the judgement shall state which conditions for a finding of guilt are deemed to be unfulfilled, or the circumstances that exclude a penalty or any other sanction that has been proposed.

The grounds of the judgement shall in all cases state whether the judgement is unanimous or, if this is not the case, which of the members of the court do not agree with the conclusion of the judgement, and the points on which there is disagreement. Judges who do not agree with the conclusion of the judgement or the grounds of the judgement may require an account of their opinion to be included therein.

Finally the conclusion of the judgement will be presented.

B)        Civil cases

In civil cases, after the presentation of the court pronouncing the ruling etc, the judgement will give a presentation of the case, time and place of the main hearing, and a brief presentation of the evidence, with a reference to the number of witnesses heard and to other evidence as noted in the written record of the proceedings. 

Thereafter the judgement will give a description of the grounds upon which the claims for relief are based. This presentation shall provide a focused account of the legal controversy being the subject matter under dispute, the background to the case as well as the legal and factual arguments of the parties to the extent required to explain the ruling.

The court shall thereafter describe the assessment of evidence and the application of law upon which the ruling is based.

Finally, the judgement shall include a conclusion, specifying the exact outcome of the rulings made.

The ruling shall specify whether it is unanimous. If the ruling is not unanimous it shall be specified who is in dissent and to which aspects the dissent relates.

How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?

Pretty much as a decision from the first instance court, but senior courts may in full or in part base their description of the grounds on the corresponding description of the lower courts.

Appeals against first instance judgements are as a main rule determined following an oral appeal sitting.

If the appeal in civil cases relates only to procedure and the application of law, or if it only to a limited extent raises factual issues in respect of which first-hand presentation of evidence will be of material importance, the court may determine that the appeal shall be ruled on following written proceedings insofar as this will provide a sound basis for the ruling.

 

The ruling on appeal may be based on the factual description in the judgement against which the appeal has been brought without such factual description being reviewed, insofar as the description is not contested.

In criminal cases, if an appeal hearing in the Court of Appeal is to include the assessment of evidence in relation to the issue of guilt, a completely new trial of the case shall be held insofar as it has been referred. If an appeal to the Court of Appeal does not concern the assessment of evidence in relation to the issue of guilt or the assessment of sentence for a felony punishable pursuant to statute with imprisonment for a term exceeding six years, the court may with the consent of the parties decide that the case shall be dealt with in writing.

An appeal against a judgement of the first instance court may in criminal cases be decided without an appeal hearing when the Court of Appeal unanimously finds it clear:

1)    that the judgement should be set aside,

2)    that the person charged must be acquitted because the matter prosecuted is not criminal or criminal liability has lapsed, or

3)    that the judgement should, in accordance with the appeal, be altered in favour of the person charged and the evidence in relation to the question of guilt is not in issue.

Question 5

Is there a difference in the way a judgement is drafted according to the subject matter (civil, criminal, administrative)?

Yes, there is a difference, see above.

Question 6

Could you describe precisely how the decision is transmitted to the parties?

Judgements in criminal cases are served or transmitted on the parties by the court orally at a court sitting, or the court may instruct the person charged to appear before the court or another public office for service of the judgement. A judgement may also be served on the parties in writing by mail, by the police or by the district sheriffs. Judgements in civil cases are most common served or transmitted to the parties by mail.

Is the judicial decision binding only on the specific litigants or does it affect the public in general?

A legally enforceable ruling is binding on the parties only, and does not, as a general rule, affect the public as such.

Does your country acknowledge a difference in judicial decisions in personam and in rem?

As a main rule judicial decisions are in personam in the sense that they determine the legal relation of the parties only to one another. Judicial decisions are only exceptionally in rem – in the sense that they are conclusive to the world generally – e.g. decisions in some family cases and other cases (for example decisions concerning the validity of a marriage or an adoption, judgements in paternity cases and judgements on presumption of death).    

Question 7

How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?

Judicial rulings ordering someone to perform, refrain from or accept an action may be enforced pursuant to the provisions of the Enforcement Act[5]. A legally enforceable ruling is binding on the parties. Such ruling is also binding on others who would be bound by a corresponding agreement on the subject matter under dispute due to their relationship with the party. A legally enforceable ruling on a claim shall be recognised without being tried on its merits in any new action in which the court is considering the same claim.

According to the Court Act[6] section 204, a party who obstruct or impede the enforcement of a judicial decision may be fined for contempt of court.

Question 8

Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?

Judgements are announced and served on the parties orally at a court sitting, or they may be announced or served by mail etc, see answer to question 6. In practice, when a judgement is announced at a court sitting, the public and the press are allowed to be present.

Question 9

To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)? 

Personal data not relevant to the case or data not required to explain the ruling, will in general not be revealed or disclosed in the judgement. 

Question 10

Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?

In accordance with inter alia Article 6 of the European Convention of Human Rights (ECHR), freedom of information is the main principle in the Norwegian judicial system. This principle has three elements:

i)          First of all, according to the Courts Act section 124, the public has free access to court hearings.

ii)         Furthermore, the press, and media in general, are allowed to report from the hearings without restrictions.

iii)        The third element is availability to the public of information contained in the courts decisions, ensured by the Courts Act section 124. The press and the media may publish such decisions.

 

There are some exceptions:

i)          According to the Courts Act section 125, the court may decide that a hearing should be held – wholly or partly - in camera.

ii)         The court may also, according to the Courts Act section 129, decide reporting restrictions on the hearing.

iii)        And, finally, according to the Courts Act section 130, the court may also forbid publication – wholly or partly – from a courts decision.

Such decisions are based on the court’s discretion, balancing the conflicting interests of - in most cases – the right to information, on the one hand, and protection of privacy or the interest of clarification of the case, on the other.

Question 11

Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?

Most of the Supreme court decisions (judgements) and decisions from the courts of appeal are published on the Internet[7]. A selection of judgements from first instance courts is also made available on the same website.   

Part II: Evaluation of the judicial decision

Question12

Is a system of evaluation of quality of justice in force in your country?

The notion “quality of justice” is not given any clear-cut definition, and may hold many aspects, e.g related to the European Convention of Human Rights, such as the principles appearing in Article 6 on the right to a fair trial and a decision within a reasonable time etc. Other aspects may be linked to judges’ appearance in court, whether members of the judiciary act in accordance to the principles of judicial conduct, do they deliver correct decisions with intelligible grounds, how do the court users and the public in general assess the various aspects of quality of justice, etc.

The Norwegian approach to evaluation of quality of justice has traditionally been quantitative and statistical, measuring the caseload and backlog of the various courts, the number of judges and staff members, setting up goals for length of the proceedings and measure whether the various courts achieve these goals or not, etc. These methods are still applied. The computerised system for case-flow management, which is implemented for all courts, can generate statistics for caseload, backlog and length of proceedings. Based on this information, the Norwegian Courts Administration publishes annual reports on an aggregated level.

Other aspects of quality of justice is not evaluated systematically, but the Norwegian Courts Administration occasionally do surveys among the court users and the public in general on their impression of and confidence in the court system.

Judges’ behaviour is not evaluated systematically. The Supervisory Committee for Judges, established in November 2002, deal with complaints from parties, witnesses and advocates who have been subjected to alleged misconduct of a judge in the performance of his or her office. The Supervisory Committee for Judges publishes their decisions in an anonymous form, and it’s statistics and decisions may give an indication on the frequency of judicial misconduct.

Question 13

Does this evaluation include/envisage the evaluation of the quality of judicial decisions?

No.

Question 14

If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:

·                legal basis:

·                identification of the agencies that are responsible for the process:

·                parameters that are evaluated:

·                methods by which each parameter is evaluated:

Not applicable.

Question 15

What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?

Evaluation may reveal structural, functional or financial inadequacies in the judicial system as such, and may thus serve as a tool for improvements.

A disadvantage frequently mentioned by Norwegian judges is the risk of excessive focus in evaluation on speediness in proceedings, thus risking that the demand for promptness and effectiveness negatively will affect the quality of judicial decisions.  

Question 16

In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?

The level of computerization, the system for case-flow management, easily accessibly legal sources etc are all factors that might influence the quality of judicial decisions, and exist presumably to the satisfaction of most Norwegian judges. If Norwegian judges were asked which single factor could help to improve the quality of their decisions, a majority would perhaps answer adequate time resources; to have time enough allocated to the individual case in order to write high quality decisions.    

Question 17

Is a system of evaluation of quality of each of the following in force in your State:

·      professional performance of police?                                                  yes □              no □

·      professional performance of public prosecution services?                        yes □              no □

·      professional performance of lawyers?                                               yes □              no □

·      enforcement of judgements?                                                               yes □              no □

·      efficiency of ministry of justice services in general?                       yes □              no □

·      quality of legislation?                                                                           yes □              no □