How to bell the cat? A critical assessment of the Norwegian disciplinary system for judges in light of the right to a fair trial.

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How to bell the cat?

A critical assessment of the Norwegian disciplinary system for judges in light of the right to a fair trial.

Candidate number: 217

Submission deadline: 15.06.2021 Word count: 39843

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1 Introduction

The aim of this thesis is twofold; firstly, it is to provide a descriptive account of Norway’s disciplinary regime for judges, and secondly, it is to critically assess this system in light of the human right to a fair trial. The two main questions are intimately connected, as a thorough understanding of the actual rules at play is necessary in order to properly perform the critical assessment.

Plainly, in order to accomplish our aims, we must first provide answers to some fundamental questions. For one, we must determine just what judicial disciplinary systems are, and con- ceptually extricate disciplinary sanctions from other means of holding judges to account for wrongdoing. Secondly, we must present the human right to a fair trial and explain why it con- stitutes a suitable yardstick for assessing judicial disciplinary systems from a critical perspective. We will provide answers to these questions in the following two subchapters. Having laid this necessary groundwork, I will then expend a few words on the topicality of this thesis, as well as on a few methodological issues, before we begin answering our main research questions; what does the Norwegian disciplinary system for judges look like, and how does it fare against the human right to a fair trial?

1.1 What are disciplinary systems?

Let us begin with our first query; just what is a disciplinary system for judges? When deline- ating an object of study, one must choose between two fundamental approaches, namely defi- nitions or characteristics.¹ When we define terms, we single out the worldly phenomena we wish to denote by using a specific word, in our case “disciplinary system” or “disciplinary measure”.² Conversely, when we provide characteristics, we delineate the fundamental qualities of the phenomena we presume belong to that definition.³

In my view, the latter approach is the most pertinent for our purposes, because there is no common definition of the operative terms easily available to us. One could of course investi- gate whether Norwegian legal actors share an understanding of what disciplinary systems and sanctions are, or whether the Norwegian legal framework establishes a legal definition of the

1 Eng (2014) p. 12.

2 Eng (2014) p. 12.

3 Eng (2014) p. 12.

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operative terms.⁴ However, as we are interested in examining the Norwegian disciplinary system from a broader, outside-in perspective, and as there is no common definition of the operative terms in international law, I believe it will be more illuminating to instead first delineate the fundamental characteristics of disciplinary sanctions, and then identify sanctions available under the Norwegian legal framework which possess all of these characteristics.

1.1.1 Key characteristics

Disciplinary systems and measures are firstly characterized by their purpose, which is of course to discipline judges. In its ordinary meaning, the verb “to discipline” signifies the punishment of an individual for wrongdoing, with the aim of ensuring future compliance with the norms the person has violated.⁵ In other words, the aim of a disciplinary punishment is to ensure that the punished individual exhibits disciplined conduct in the future, i.e. conduct that in accordance with the previously violated norms.⁶ A punishment can be broadly understood as the act of inflicting an intentional hurt upon an individual in retribution for the violation of norms, either by way of chastising the individual, removing her privileges, or else causing her physical or psychological pain in some other manner.⁷

As indicated by the ordinary meaning, disciplinary measures are not arbitrary punishments, but are handed down specifically to punish violations of a certain category of norms, namely those which we might call professional standards of conduct applicable to judges. Here I am using the term standard of conduct in a broad sense, encompassing all norms that regulate the proper exercise of the judicial function, and not just regulations or documents that bear a name like code or standard of conduct.

There is a distinction to be made between formal and informal disciplinary measures.⁸ Formal measures are those which are handed down by a body which has been given explicit legal authority to punish judges for not upholding professional standards, following prescribed rules designed to ensure validity and verifiability. An informal disciplinary measure on the other hand, is an unofficial, indirect, or covert form of punishment. An informal measure might be a punishment by a person or body which has not been given explicit legal authority to punish judges. Alternatively, it may be handed down by a body which possesses such an

4 Eng (2014) pp. 13-14.

5 Oxford English Dictionary Online, s.v. “Discipline”, entry 2 b.

6 Rogall (2003) pp. 925-926.

7 Oxford English Dictionary Online, s.v. “Punishment”.

8 Geyh (1993) p. 246 and Bam (2021) p. 343.

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authority, yet instead of employing the explicitly punitive measures at its disposal, the body makes use of mechanisms that are meant to be used for other purposes, such as administrative management tools.

Informal disciplinary measures can roughly be split into two subcategories: tools of judicial administration and tools of judicial socialization.⁹ Tools of judicial administration are informal measures available to judicial administration bodies, such as judicial councils or court presidents.¹⁰ For example, the central judicial administration body in Japan, i.e. the notorious- ly conservative and powerful General Secretariat of the Supreme Court, uses its administrative powers of transferral, case allocation, salary adjustment, and promotion, in order to effectively secure obedience to internal norms.¹¹ The General Secretariat’s use of these administrative tools have been so effective in fact, that formal punitive mechanisms, though legally available, are hardly ever used.¹²

Tools of judicial socialization on the other hand, are mechanisms employed by other judges to punish or admonish colleagues they feel have stepped out of line. A court president or senior judge might for instance whisper a “quiet word in the ear” of her recalcitrant junior in an ef- fort to change her colleague’s behaviour.¹³ Appellate court judges can also direct critical comments at their lower court colleagues when carrying out judicial review. In extreme cases, a collegium of judges can professionally ostracize a misbehaving judge more or less completely. An illustrative example is the fate of the German judge Orlet following his controver- sially lenient treatment of a renowned far-right activist, which caused many of his judicial colleagues to flat-out refuse to sit with him on the bench.¹⁴

Informal measures of both categories are certainly available under the Norwegian legal framework. However, Norway’s administrative toolkit is relatively sparse. For one, profes- sional judges are protected from forcible transfers and demotions.¹⁵ The Norwegian judiciary is also non-career based, as judges are usually recruited from outside the judiciary, and the career paths of judges normally do not follow along appellate lines.¹⁶ Still, misbehaving or

9 Geyh (1993) p. 243.

10 Geyh (1993) p. 243.

11 Law (2009) p. 1562.

12 Cravens (2021) p. 213.

13 Devlin (2021) p. 13.

14 Kosař (2016) p. 26.

15 The Constitution’s Article 22, second subsection, and the CJA section 55 h.

16 NOU 2019: 17 p. 23. Only 37 % of those appointed to judicial positions in 2019 already held a judgeship, see The JAB (2019) p. 5.

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unpopular judges might certainly be overlooked for promotions to leadership positions. Fur- thermore, a sizeable portion of the judicial body is made up of temporary judges, and reap- pointment could very well be used as a de facto disciplinary measure in relation to them.¹⁷ Case allotment represents another administrative and informal means for correcting judicial behaviour. Allotment is the sole responsibility of the local chief judge, and while it has been presumed that cases should be distributed according to a “principle of randomness”, there are not formal rules in place regulating the allotment of cases at individual courts.¹⁸ Fortunately, reforms have now been proposed which, if adopted, will instate statutory regulations.¹⁹ Under the current scheme however, a chief judge could theoretically abuse her power of allotment to punish colleagues she does not approve of, by burdening them with an exorbitant amount of cases, or else setting them up to fail by only giving them assignments in unfamiliar areas of law.²⁰

Judicial remuneration is unilaterally determined by the executive and the legislator.²¹ Judges have no individual bargaining rights, and additional payment is contingent on objective fac- tors, such as leadership responsibilities.²² While the system for remuneration thus could be abused by the other powers in order to punish the judiciary as a whole, salary adjustments cannot be used in order to sanction individual judges.²³ A final tool in Norway’s administrative box that merits a mention, is the authority of chief judges to issue their subordinate colleagues with informal admonishments.²⁴

Socialization tools certainly also play a significant role in judicial discipline. The Norwegian judiciary is a small and interconnected elite group, with its total body of judges consisting of around 800 individuals.²⁵ While there is little data available on the relationship between judicial recruitment and social class, there is a clear empirical connection between academic per-

17 See subchapter 2.2 and Aall (2014) p. 35.

18 NOU 2020:11 p. 178.

19 NOU 2020:11 pp. 186 et seq.

20 The former method has been operationalized by court presidents in Poland, see Zoll (2021) p. 301.

21 Parliament determines the salaries of the Supreme Court justices, whilst the Ministry of Local Government and Modernization determines the salaries of lower court judges, see NOU 2020: 11 p. 209.

22 Evju (2020) pp. 9-10.

23 The remuneration system has been criticized for not adequately safeguarding judicial independence and reforms will now likely be instituted see NOU 2020:11 pp. 210-211.

24 Karlsrud (2000) pp. 7-8.

25 The NCA (2020) pp. 12-14.

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formance amongst law students and social background.²⁶ High marks is no longer a formal qualification for judgeships, but academic performance remains a determinate factor in judicial appointments.²⁷ Due to their small number and social homogeneity, individual judges are undoubtedly vulnerable to social pressures. One retired judge once described the fear of being perceived as unprofessional by ones colleagues as the most important disciplining factor for judges.²⁸ It is also not unheard of that judges higher up in the appellate hierarchy condemn the behaviour of their junior colleagues when reviewing their decisions.²⁹

While informal measures thus certainly are available in Norway and in active usage, I have decided to reserve my examinations to formal measures only. Partly this is due to the fact that many informal measures, in particular socialization tools, are hard to study due to their intrin- sically unofficial nature. Furthermore, while socialization tools and other informal measures previously constituted the only possible way in which to punish judges for wrongdoing, short of very serious sanctions such as removal, criminal prosecution, and civil liability, this is no longer the case. In 2002, as a new disciplinary regime was introduced, which has mitigated the need for informal measures.³⁰ The formal system of discipline is furthermore understudied, and the practices of the new disciplinary body, the Supervisory Committee for Judges (henceforth the SCJ or the Committee), has as-of-yet not been subject to much scientific anal- ysis.³¹

The crux of this thesis will thus be formal measures. However, some formal sanctions will not be subject to much scrutiny. For one, we will not be studying the criminal and civil liability rules applicable to Norwegian judges in any detail. Nevertheless, I will proffer some brief comments on these liabilities here at the outset, as their availability demonstrates the need for a disciplinary system as an accountability mechanism.

Norwegian law provides judges with no general immunity from neither criminal prosecution, nor civil liability for damages.³² Norwegian judges can thus in principle be criminally prosecuted, and held monetarily liable, for acts committed both in the course of their adjudication, and for conduct that bears no relationship with their judicial function. I have not been able to

26 Olaussen (2015) p.152.

27 The JAB (2020) p. 12.

28 Graver (2020) p. 34.

29 See for instance Rt. 1982 s. 1012.

30 See subchapter 3.2 for details.

31 See however Sandbukt (2019), Bøhn (2021), and Engstad (2014).

32 NOU 1999:19 p. 410 and 418.

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identify any modern examples of judges being criminally prosecuted for their judicial actions in peacetime.³³ Be this as it may, Norwegian Penal Code contains many provisions that specifically target misbehaviour committed in the execution of official functions. As such, judges can be criminally tried for, inter alia, corruption, professional misconduct, the unlawful exercise of public authority, and the misuse of public authority.³⁴ The Supreme Court justices can furthermore be tried by the Court of Impeachment for the criminal breach of constitutional duties.³⁵

Technically speaking, judges can also be criminally prosecuted for what we might call generally criminalized acts, such as the deprivation of liberty or the removal of children from care.³⁶ This is because in carrying out their professional functions, judges will regularly engage in behaviours that objectively fit the actus rei descriptions of such provisions. However, judges are of course not routinely put in prison for putting other people in prison. In Norwe- gian criminal law, this is accomplished by way of an interpretative rule termed the general exemption of rightfulness.³⁷ According to this rule, acts which fit the description of a criminal offense, yet which are nonetheless rightful, are not considered criminal.³⁸ Applying the exemption to judicial acts raises difficult questions that I will not discuss further here.³⁹

When it comes to their potential liability for damages, Norwegian judges are employees, and thus their employer, i.e. the Norwegian state, can be held responsible for their deleterious actions by way of section 2-1 of the Act Relating to Compensation in Certain Circumstances.

This is supplemented by special liability rules, laid down in the Courts of Justice Act and in our code on civil procedure, the Dispute Act. The former’s section 200 and 201 establishes two disparate liabilities based on culpa, the latter of which is a personal responsibility for the judge. However, section 200 has never been operationalized to incur a judge with damages as far as I can tell, and section 201, whilst actively used in 1930s, has since fallen into disuse.⁴⁰

33 Those who accepted judgeships to the illegal special courts established by the German occupation during World War II were however prosecuted in the post-war legal purges, see Graver (2015) pp. 170-206.

34 See sections 387-388, 171-172, 167, and 173 of the Penal Code respectively.

35 See the Constitution’s article 86.

36 Criminalized in sections 254 and 261 of the Penal Code respectively.

37 The Norwegian term is «rettsstridsreservasjonen», which more literally translates to the “reservation of wrong- fulness.” However, I feel my translation is apt, as the assessment substantively concerns whether an act, in spite of it fitting the description of criminalized conduct, can nonetheless be justified. Some legal experts have also called for reformulating the Norwegian term to something like the reservation of rightfulness, see Eskeland (2017) p. 149.

38 Rt. 2008 s. 1491 para. 14.

39 See however Graver (2016) p. 133 for some indications.

40 Andreassen (1987) pp. 53-54.

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The Dispute Act now also contains a provision in its section 20-12, which makes the state liable for additional legal costs incurred as a result of an error by the court, and which is used quite actively.⁴¹

Thus far, we have identified some key characteristics of disciplinary measures: they are punishments handed down following the breach of judicial standards of conduct, by a body which has been legally designated with the task of punishing judges for violations of the same. We have also decided not to include informal measures in our examinations, nor criminal or civil liability rules. Which formal punitive measures will thus be placed under the lens of scrutiny?

Let us in the following identify measures available under the Norwegian legal framework which possess all of these fundamental characteristics.

1.1.2 Rightly disciplinary measures

One evident disciplinary measure, are those sanctions which we might call formal repri- mands. Formal reprimands are written admonishments, in which a judge’s behaviour is criti- cized for not being up to par with standards for judicial conduct. Formal reprimands are handed down by the abovementioned SCJ, an independent administrative body whose functions will be described in much greater detail later on. At this juncture, it suffices to say that its reprimands embody all of the characteristics identified above; they are punishments, by virtue of being admonishments, the grounds for reprimands are tied to principles for good judicial conduct, and the SCJ has been endowed with its punitive powers by way of legislative decree.

Another strong candidate, are the rules governing when and how judges may be removed from their positions entirely, prior to having reached the mandatory retirement age.⁴² Judges can be removed as a result of criminal prosecution, as the loss of the right to exercise a profession is an alternative criminal sanction.⁴³ However, judges can also be removed on civil grounds.⁴⁴ The institution of civil removal certainly also possesses all of our fundamental disciplinary characteristics; removal is certainly a punishment, as it entails the loss of all privileges of employment, the grounds for removal have been tied to the improper exercise of official functions, and lastly, the legal framework clearly endows a body, namely the ordinary courts, with the legal authority to remove judges from their positions.

41 The judgements Rt. 2014 s. 571, Rt. 2012 s. 961 and Rt. 2008 s. 1716 are the most interesting here, as in these the state had not accepted responsibility.

42 The Constitution’s article 22, third subsection and NOU 1999:19 p. 412.

43 See the Penal Code section 29 f.

44 NOU 1999:19 p. 412.

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Be this as it may, Norwegian legal actors tend not to categorize removal as a disciplinary sanction.⁴⁵ A likely explanation could be that the body whose sole task is to punish judges for misconduct, namely the SCJ, only has it within its power to reprimand. The body who may strip judges of their positions, namely the ordinary courts, chiefly serve other functions. In fact, a 2014 judgement by the Borgarting Court of Appeals represents the only instance in which the judiciary has made use of its power to remove a judge on non-criminal grounds, since the adoption of our current constitution in 1814.⁴⁶Thus, when asked to identify its disciplinary regime, it is only natural that Norwegian actors point to the body which has penalized judges over 80 times since its formation only twenty years ago, than to the body which has only made use of its punitive powers once in modern constitutional history.⁴⁷

In my view, there are good reasons for counting removal among the rightly disciplinary sanctions. Alas, this thesis simply cannot accommodate a thorough exploration into both formal reprimands and removal. As removal remains an exceptionally rare sanction, I have elected to omit it from further scrutiny. A few points should however be noted regarding the rules on removal before we move on.

As I have already indicated, it falls to the ordinary courts to determine whether a judge can be removed. This has been constitutionally ordained for those professional judges who are considered as so-called “public officials”.⁴⁸ For those who are not, statutory provision nonetheless prescribed that they should be awarded the same protections.⁴⁹ Interim suspension can be unilaterally implemented by the executive.⁵⁰ This division between the power to reprimand, granted to the SCJ, and the power to remove and suspend, granted to the ordinary courts and

45 For one, the Norwegian government distinguished between disciplinary measures and removal in its response to the ENCJ’s questionnaire in 2015, see ENCJ (2015) pp. 11 and 160.

46 See LB-2013-171610-2. The Supreme Court decided not to assess the judge’s appeal, HR-2014-2174-U, and the removed judge died before he was able to lodge his complaint with the ECtHR, see Sundvor (2015).

47 Eight judges were removed in the 19th century, but these were all on criminal grounds, see NOU 1999: 19 p.

415. A further 14 judges were removed by the Nazi NS-regime, see Graver (2015) p. 61.

48 See the Constitution’s article 22. Public officials are those state servicemen who are appointed as such by the King-in-Council, and who are given a commission of appointment, i.e. pursuant to article 21 of the Constitution, see Fanebust (2018) p. 19. The first subsection of article 22 contains an exhaustive list of the so-called remova- ble public officials, i.e. those who may be removed outright by the King-in-Council. Judges are not counted among them, and thus they are irremovable, and may only be removed by court order, see the second subsection.

Constitutional reforms have now been proposed, which will make judges irremovable, irrespective of their cate- gorization as public officials, see NOU 2020:11 p. 228-229.

49 The CJA section 55 h.

50 See the Constitution’s article 22, second subsection.

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the executive, has led to the disciplinary system being described as “two-laned.”⁵¹ The constitution is silent as to the legal grounds for when judges may be removed. It has been historically considered constitutional to regulate this statutorily, meaning that the ordinary rules on summary discharge in the Civil Service Act applies.⁵² Those removal grounds that concern misconduct, substantively overlap with the grounds for reprimands, in all respects except severity.⁵³

In the following, I will reserve my examinations to formal reprimands. Unless otherwise provided for, I am referring only to these measures when speaking of disciplinary sanctions, and I use the term disciplinary system to refer to the applicable rules on how and when these measures may be implemented.

1.2 The human right to a fair trial as a yardstick for critical evaluation We now have an understanding of just what disciplinary systems are, and have thus laid the groundwork necessary in order to accomplish our first main aim of describing the Norwegian disciplinary system. However, we also wish to view the system from a critical perspective.

Let us now ask ourselves how this can be done.

A regulatory regime can be evaluated along many different qualitative lines. The central issue will nonetheless be whether the system fulfils its tasks well according to some qualitative pa- rameter or another. The central task of a judicial disciplinary system is plain; it is to punish judges for wrongdoing, i.e. for violations of judicial standards of conduct, the ultimate aim of which is to safeguard public trust in the judiciary.⁵⁴ Thus, disciplinary systems must be capable of uncovering misconduct and of sanctioning it adequately. The need to hold judges ac- countable for their wrongdoing is undoubtedly real and legitimate. Judges are in a position of great power vis-à-vis their fellow man and can, and have historically, abused their power to catastrophic effect.⁵⁵ Judges are often capable jurists, but they are also human, capable of mis- takes.⁵⁶ However, we ask of our disciplinary systems, not only that they function as accountability mechanisms, but that they do so whilst also paying heed to certain values highly prized

51 NOU 2020:11 p. 153.

52 NOU 1999:19 p. 412, i.e. currently sections 27 and 28 of the CSA. See also subchapter 3.4.4.

53 Graver (2014) pp. 53-89.

54 Devlin (2021) p. 7 and NOU 1999:19 p. 450.

55 See Graver (2016) p. 135.

56 Kosař (2016) p. 25.

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in democratic legal systems operating under the rule of law. Let us examine some such values in the following.

Judicial independence is an oft cited value at play in the design of disciplinary systems. While sometimes characterized as the flip side to accountability, the two are also intimately connected, as it is arguably only through accountability mechanisms that judges and judiciaries are able to maintain the legitimacy of their highly independent positions.⁵⁷ There is a rich litera- ture on the various conceptualizations of what judicial independence is and why it is desira- ble. In my view, the principle fundamentally denotes that judges should not be influenced by the preferences of others when administering justice.⁵⁸ Generally speaking, there are two main reasons for why judicial independence ought to be preserved; firstly, because independence enables objective and impartial conflict resolution, and secondly, because independence enables the judiciary to effectively check the other state powers and uphold individual rights.⁵⁹ In other words, independence ensures that the judiciary is capable of fulfilling its principal functions in a modern democratic state operating under the rule of law.

Because judicial discipline is a means for punishing judges, there is always an inherent danger that the system could be abused by those in a position of influence, in order to persecute judges whose legal opinions they find undesirable. Disciplinary systems can thus become a chan- nel of external influence, capable of impacting the independence of judges. The other branches of government will usually be in such a position of influence, as they are often involved in the construction of disciplinary systems in some way. Disciplinary systems are usually set up by legal means, entailing that the legislator will be able to lay down the disciplinary ground rules. The executive will often be endowed with potentially influential roles, for instance in the manning and funding of the disciplinary bodies. The need to protect judges from the undue influence of the other branches of government, can be referred to as the external aspect of judicial independence.⁶⁰ Concerns for the external independence of the judiciary will often result in the argument being made that the judiciary itself should be responsible for the task of discipline. However, judicial independence has an internal aspect as well, requiring that individual judges be protected from the undue influence of their colleagues or court management.⁶¹ A self-governing system for judicial discipline is not necessarily capable of protecting individual judges from the undue influence of other powerful judges or management bodies.

57 Devlin (2021) p. 6 and Kahn (1999) p. 655.

58 Jackson (2012) p. 20.

59 Eckhoff (1965) pp. 11, 17, and 23, and Jackson (2012) p. 20.

60 Gyöngyi (2019) pp. 22-23.

61 Gyöngyi (2019) p. 22-23.

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Another central value at play in the regulatory design of disciplinary systems, is procedural fairness.⁶² Fairness in this regard usually refers to the procedural rights of the impugned judge, such as the right to prior notice and sufficient disclosure, to judicial review and to a decision sufficiently reasoned and grounded in law and fact. Fairness is however also of great importance to those who file complaints against judges, as their interests are equally at stake when disciplinary charges are determined.⁶³ Providing stake holders with adequate procedural rights is imperative for the legitimacy of a disciplinary system. However, if such rights are bestowed over-indulgently, one runs the risk of negatively impacting another ideal, namely that the system should be efficient.⁶⁴

A final value of note, is the transparency of disciplinary proceedings. The primary function of a disciplinary system is, as noted above, to safeguard public confidence in the judiciary. If the public is unable to know under what circumstances disciplinary measures are being implemented, then it has no way of knowing whether to trust that the disciplinary authority is actu- ally fulfilling its designated functions. Transparency is therefore of the utmost importance, however it can be difficult to determine the appropriate level of public access, as the desire to protect the reputation of judges will simultaneously call for a high level of confidentiality.⁶⁵ Plainly, synthesizing these values against one another in a regulatory design is quite the bal- ancing feat.⁶⁶ It is indeed a problem that has puzzled state crafters since time immemorial;

how to punish wayward judges is mentioned in Hammurabi’s Code and in Testaments both Old and New, the prophet Mohammed ruminated over it, as did the Romans, Visigoths and Franks.⁶⁷ In the Norwegian jurisdiction, we find an early mention of the topic of judicial punishment in the ancient Dano-Norwegian King Christian V’s Codex of 1687.⁶⁸ Calibrating the values at play has proven such a challenge in fact, that some theorists have likened it to the idiom of “belling the cat”, denoting a highly difficult task that, if achieved, will benefit the community as a whole.⁶⁹

62 Devlin (2021) p. 7 and NOU 1999:19 p. 450.

63 Devlin (2021) p. 7.

64 Devlin (2021) p. 9.

65 Devlin (2021) p. 17

66 As evidenced by the diversity of disciplinary designs found in the European jurisdiction, see Naïs (2012).

67 Devlin (2021) pp. 2-3.

68 NL-1-5-3.

69 Puthucherril (2021).

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Values are characterized by their gradual character; a disciplinary system can be more or less procedurally fair, transparent, and efficient, and it can safeguard judicial independence more or less effectively.⁷⁰ Occasionally however, a legally binding norm will prescribe certain ab- solute limits as to how the relevant values at play must be calibrated, or a specific extent to which one of more of the values must be protected. One such norm in my view, is the human right to a fair trial.

The human right to a fair trial can be broadly construed as containing two elements; it de- mands that citizens be given access to courts that are independent and impartial in order to have their claims legally determined, and secondly, the proceedings then offered to them must as-a-rule be public, as well as qualitatively fair.⁷¹ The right has been enshrined various places in the Norwegian legal framework, the exact details of which I return to later on.⁷² Suffice it now to say that the right has been constitutionally and statutorily protected, and that its construction is informed by the contents of the corresponding right in international human rights instruments.

Evidently, the right enshrines the abovementioned values of judicial independence, procedural fairness, and transparency, and it is therefore an appropriate yardstick for evaluation. As we will come to learn, the right has been operationalized by the international courts and bodies tasked with developing the international right, in order to test the conventionality of disciplinary measures implemented against judges. However, the right to an independent judiciary is incumbent upon the citizenry; judges themselves cannot be said to have a subjective right to independence by way of the fair trial right.⁷³ Technically, a citizen of a nation whose judicial disciplinary system has been weaponized in order to impinge upon judicial independence, can claim that her right to access an independent court system has been violated on this account.

Thus far however, this has not occurred. Rather, it has been the disciplined judges themselves who have brought forth complaints to the international human rights bodies, claiming that they did not have access to an adequately independent decision-making body and to a fair hearing in the course of disciplinary proceedings. In the disciplinary context therefore, judicial independence has been addressed indirectly, by requiring that an independent body be responsible for the task of discipline, if not in the first instance, then at least in the second.⁷⁴

70 Eng (2014) p. 160.

71See subchapter 4.1.

72See subchapter 4.1.

73 See subchapter 4.1.

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13 1.3 Topical interest

Why then, is the subject of the design of Norway’s disciplinary system, and its compliance with human rights norms on the right to a fair trial, of any interest to us? In my view, there are three reasons why such an examination is particularly pertinent at this moment in time.

For one, and as I have already indicated, Norway’s disciplinary system is an understudied subject in our jurisprudence. I believe it is therefore scientifically valuable in of itself to provide a thorough dogmatic account of the actual rules at play, and of how they have been understood in disciplinary practice. For another, Norway’s current system for judicial administration is presently being evaluated at the domestic level. An expert commission has spent the last three years assessing the structure and functioning of our judiciary, and has produced two reports, full of recommendations for the betterment of the system.⁷⁵ The expert commission’s mandate encompassed disciplinary rules, however, as we will come to learn, the commission has proposed to largely uphold the regulatory status quo on this point.⁷⁶ This examination proffers an independent evaluation of the current and proposed disciplinary models, and as such, it provides a background against which one might ascertain whether the Com- mission has construed the disciplinary rules correctly, and whether the Commission has overlooked any potential vulnerabilities of the current regime, vis-à-vis the right to a fair trial.

Thus, I hope this thesis can constitute a contribution to the ongoing debate regarding the op- timal design of our system for judicial discipline.⁷⁷

Lastly, it cannot be denied that this examination has been partly motivated by developments in other jurisdictions. Since the mid-2000s, a worldwide trend of creeping democratic decline has been observed.⁷⁸ The instances of regression has varied in severity and pace across affect- ed jurisdictions, from the marginal, to outright illiberal takeovers of a previously democratic legal order. I say “outright” in the sense that they are undeniable upon closer inspection.

However, scholars have observed how this new generation of autocrats make use of “softer”

legalistic methods in order to consolidate power and entrench themselves in office, rather than

“hard” violent coups and revolution.⁷⁹ This allows them to hide their autocratic designs be-

75 NOU 2020:11 and NOU 2019:17.

77 It should be noted that the proposals on disciplinary rules have not sparked much debate, which is of course natural, seeing as the current regulations will largely be maintained. Rather, it has been the proposed geograph- ical restructure of the ordinary courts, and the proposed limitations on the use of temporary judges, which has garnered the most media attention and debate.

78 Daly (2019) p. 12.

79 Scheppele (2018) and Landau (2013).

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hind a facade of legality.⁸⁰A crucial element of new autocrat’s playbook so to speak, has been the immobilization of key accountability institutions and checks on executive power, such as the media, civil society, academia, and, for our purposes importantly, the judiciary.⁸¹

Modern political regimes with autocratic ambitions have employed a multiplicity of means in order to bring their judiciaries to heel, including making use of formal disciplinary proceedings. This is particularly the case for a struggling jurisdiction close to home, namely Poland.

Poland’s backsliding dates back to the fall of 2015, when the outgoing parliament elected five judges to the Constitutional Court, in spite of the fact that two of these positions were as-of- yet not vacant, and would not be so until after the start of the next parliamentary period.⁸² Once the new parliament had been instated, the new majority, now consisting of members from the Law and Justice (PiS) party, elected five new judges to replace those appointed by its predecessor.⁸³ The Constitutional Court produced several rulings on the matter, in which it held that, while the outgoing parliament had overstepped its competences in regards to two of the judges, the other three had been properly appointed.⁸⁴ The PiS government did not imple- ment the Court’s decisions, and initially refused to even publish two of them.⁸⁵ This initial tug-of-war became the overture to what has been described as “carpet bombing” of the Polish judiciary by the other branches.⁸⁶ This legislative assault has included a complete overhaul of Poland’s National Council of the Judiciary (the NCJ), an unsuccessful attempt at lowering the mandatory retirement age, thwarted by the Court of Justice of the European Union (henceforth the CJEU), and the near complete replacement of the leadership tier of the ordinary courts.⁸⁷

Another effective piece of ammunition in the PiS’ arsenal so to speak, has been the weaponi- sation of disciplinary proceedings in order to silence judicial resistance against the government’s autocratic upheavals.⁸⁸ The disciplinary rules in force when PiS took power, were conveniently open-ended to begin with.⁸⁹ However, beginning in 2017, reforms were imple-

80 Scheppele, (2018) p. 548.

81 Huq (2018) pp. 137-138.

82 Xero Flor w Polsce sp. z o.o. v. Poland (2021) paras. 8-12.

83 Xero Flor w Polsce sp. z o.o. v. Poland (2021) paras. 18-19, 9 and 20.

84 Xero Flor w Polsce sp. z o.o. v. Poland (2021) paras. 23-35, 39-46, and 50-53.

85 Xero Flor w Polsce sp. z o.o. v. Poland (2021) para. 280.

86 Zoll (2021) p. 291.

87 Sadurski (2019) pp. 99-106 and 116 and Pech (2021) pp. 8-9 and 13.

88 As summarized in Zoll (2021) and Gajda‑Roszczynialska (2020)

89 Zoll p. 285.

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mented which completely politicized an already vulnerable disciplinary system.⁹⁰ Perhaps most detrimental of all was the establishment of a new Disciplinary Chamber of the Supreme Court, entirely manned by judges appointed by the captured NCJ.⁹¹ Following a preliminary assessment by the CJEU, another section of the Supreme Court ruled that the new Discipli- nary Chamber did not satisfy EU requirements on judicial independence.⁹² In retaliation, parliament adopted the so-called “Muzzle Bill”, which gave the Minister of Justice new powers in disciplinary matters, decimated procedural guarantees, and instituted new liability rules, clearly aimed at preventing judges from questioning the PiS’ reforms.⁹³ As of January 2020, 1174 disciplinary investigations had been lodged against Polish judges in the last year and a half alone, compared with only 270 such proceedings being instated in the years between 2013 and 2016.⁹⁴

Democratic backsliding processes such as the one taking place in Poland, has firstly led to legal developments of the international fair trial norm.⁹⁵ However, the Polish developments also provide a chilling example of how the supposition, long-held in political science, that once democracy has consolidated, it becomes impervious to autocratic overthrows, no longer stands up to empirical scrutiny.⁹⁶ No jurisdiction, no matter how entrenched its democracy, can fully rest easy in the assumption that illiberalism is something that happens elsewhere.

1.4 On legal translation and other methodological issues

Before we finally begin our substantive assessments, I will discuss a few methodological issues on particular relevance to this thesis.

My examination of the Norwegian disciplinary system, as I am sure my reader has noticed, will be conducted in English. This is because I hope this paper can contribute to the emerging comparative debate on how to best regulate judicial disciplinary systems, which of course will

90 Gajda‑Roszczynialska (2020) p. 461 and Parliamentary Assembly of the Council of Europe (2020), paras. 77 and 82.

91 The establishment of the Disciplinary Chamber led to the third set of infringement proceedings being brought against Poland by the European Commission, see C-791/19.

92 The Disciplinary Chamber nonetheless continued its activities, until Poland was served with a preliminary injunction by the CJEU, see C-791/19 R European Commission v Republic of Poland.

93 Gajda‑Roszczynialska (2020) pp. 461-462.

94 The Parliamentary Assembly of the Council of Europe (2020) para. 100 and Śledzińska-Simon (2018) p. 1859.

95 See Xero Flor w Polsce sp. z o.o. v. Poland (2021) and Guz v. Poland (2021). It is likely that other recent landmark decisions, such as Guðmundur Andri Ástráðsson v. Iceland (2020), were motivated by a desire to lay the dogmatic groundwork as it were for these and other upcoming suits against backsliding member states.

96 Scheppele (2018) p. 559.

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only be possible if my assessments are presented in a lingua franca. However, because a sig- nificant portion of this thesis will consist in a presentation of applicable domestic rules, I will be forced to transpose law that is only available in one authoritative language version, namely Norwegian, into a different working language, namely English. In other words, I will be en- gaging in what has been termed “intersemiotic” legal translation, i.e. the process in which legal information in a source text, here the various interpretative sources used to construe the rules on disciplinary proceedings, is interpreted within the source language and then translated into the target language.⁹⁷ I will adopt a functional approach to translation, meaning that my choice of terminological equivalents will be driven by what results in a comprehensible and accurate presentation of the legal information, rather than strict lexical equivalences.⁹⁸

There are no authoritative English language version of Norwegian statutory texts available, and I will therefore base my interpretations in the authoritative Norwegian. Whenever I have needed to present a translation of a statutory wording, I have drawn inspiration from unofficial English translations, provided by various governmental bodies. I have included a table of these translations, complete with English acronyms, in the bibliography. I rely on these to the extent that they are updated, and to the extent that they reflect the semantic meaning of the authoritative language. Luckily, this has proven to be the case most of the time, and I will alert my reader whenever I deviate from their recommendations.

Secondly, it should be noted that I make active use of disciplinary practice in my presentation of the disciplinary regime. Administrative practice is in of itself a source of interpretation under the Norwegian legal method, provided that it possesses certain qualities, such as substantive reasonableness, consistency and prevalence.⁹⁹ However, in my examination, I will maintain a critical perspective, and be on the lookout for practices that might conflict with the legislative framework.

Finally, although a substantial amount of so-called “soft” international law has been produced on the topic of judicial disciplinary systems, I will not be utilizing them in any systematic fashion in my assessments. Soft law is a term used for international norms and instruments that are non-binding, but which still carry legal relevance, typically recommendations and

97 Ferreri (2020) p. 92.

98 Chromá (2007) pp. 200-201. For instance, I have consciously steered away from the highly technical terms often used when describing judicial review of executive acts, because a strict translation of the terms developed in this tradition would, in my view, only serve to obfuscate the presentation.

99 Eriksen (2019) p. 320.

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resolutions from international organizations and agencies.¹⁰⁰ These will be omitted, partly due to their considerable volume, and partly because there is already a considerable amount of

“hard” law available on the topic.¹⁰¹ 1.5 The way forward

In the following, we begin our foray into the Norwegian disciplinary regime for judges. In the first upcoming chapter, I will provide my reader with brief overview of the Norwegian judicial system, in which I will describe our courts and the judges who man them, as well as the current system for judicial administration. Then, in chapter 3, we seek answers to our first main research question, namely what does the Norwegian disciplinary look like? Having completed our descriptive exploits, in chapter 4 we move on to the critical assessment of the system for judicial discipline, based in the human right to a fair trial. In a final chapter 5, we look back on our analyses and muse upon their significance.

100 Thürer (2009)

101 It should be noted that the others have provided analyses of the system’s compliance with such recommendations, see the NRHI (2019) pp. 74-80.

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2 The Norwegian court system in brief

2.1 The courts

The Norwegian judiciary consists of the ordinary courts and a handful of special courts.¹⁰² The ordinary courts are hierarchically organized into three instances: the District Courts, the Courts of Appeal, and the Supreme Court.¹⁰³ Currently, there are 23 district courts, six appellate courts, and one Supreme Court in operation.¹⁰⁴ Some civil suits also need to go through mandatory mediation proceedings at a local conciliation board before the case can be heard by a district court, however these are not formally considered courts.¹⁰⁵ The regulation of misconduct committed by the members of the boards will thus not be scrutinized further.

The ordinary courts are markedly generalist in their subject-matter jurisdiction.¹⁰⁶ As such, they may decide upon any civil or criminal matter which has not been expressly delegated to a different body.¹⁰⁷ Furthermore, there are no special administrative or constitutional courts.

Instead, every ordinary court, regardless of appellate level, has been endowed with the power to review both the legality of administrative decisions, and claims of unconstitutionality.¹⁰⁸ The ordinary courts are supplemented by special courts, whose jurisdictions only encompass disputes falling within specified categories. Some special courts are listed in the CJA section 2, the most practically important of which are the land consolidation courts, of which there are currently 19.¹⁰⁹ These courts are responsible for the determination of disputes concerning property rights and have deep historical roots in the Norwegian legal culture.¹¹⁰ The Court of Impeachment is also itemised here as a special court. Since its inception in 1814, the Norwe- gian constitutional regime has shifted towards parliamentarianism, with motions of no confidence becoming the primary means for the legislature to hold Cabinet members to account politically.¹¹¹ As such, the Storting’s need for the Court of Impeachment is no longer as press-

102 NOU 2017: 8 p. 29.

103 CJA section 1.

104 Kolsrud (2021).

105 CJA section 1, second subsection.

106 Ot.prp.nr. 44 (2000-2001) p. 30.

107 NOU 2017: 8 p. 36.

108 The courts have likely had the former power since 1818 and the latter since at least 1866 see Smith (1993) pp.

64 and 158.

109 Domstol.no (2021).

110 NOU 2019: 17 p. 123.

111 Smith (2015) p. 118.

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ing as it might have been in the days of the Constitution’s infancy. However, the Court of Impeachment still serves vital constitutional functions as the only and final arbiter of disputes relating to breaches of constitutional duties.¹¹²

The list of special courts in the CJA is not exhaustive. Another special court of great practical importance is the Employment Tribunal, responsible for the arbitration of disputes between labour unions and employers or employers’ associations concerning collective wage agree- ments and labour peace obligations.¹¹³ The newest special court is the Uncultivated Land Tri- bunal for Finnmark. The court, only operational since 2014, adjudicates disputes arising from the decisions of the body authorised to determine ownership and easement rights over Finn- mark land, namely the Finnmark Commission.¹¹⁴

So far, I have delineated the bodies formally designated as courts under the Norwegian legal framework. Substantively, these bodies are all characterized by their judicial function. The courts have also been given other responsibilities, such as mediation and certain administrative tasks, however the execution of judicial functions is their primary purpose.¹¹⁵ The judicial function is characterized by the binding determination of disputes concerning questions of law, and of criminal charges, by the independent application of facts to law.¹¹⁶ Other governmental bodies also engage in activities that could be said to fit this description. There are for instance a plethora of independent administrative bodies with materially circumscribed jurisdictions that also engage in the judicial function so defined, including the National Insurance Court and the Norwegian Immigration Appeals Board.¹¹⁷ Thus, there is no watertight division between bodies serving judicial functions that are formally a part of the judiciary, and those which, while certainly endowed with judicial functions, are not so.

This notwithstanding, the disciplinary scheme applies only to certain kinds of positively specified judges.¹¹⁸ As such, the fact that a person participates in a decision-making body that serves judicial functions, does not entail that they are subject to the judicial disciplinary re-

112 Article 86 of the Constitution.

113 The Labour Disputes Act § 33.

114 See the Finnmark Act section 36 and NOU 2017: 8 p. 44.

115 NOU 2019: 17 p. 25.

116 NOU 2019: 17 p. 23 and NOU 2017: 8 p. 30.

117 Ot.prp.nr. 44 (2000-2001) p. 27.

118 See subchapter 3.3.3.

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gime. Many members of state-run dispute resolution bodies will however be employees of the state, and will thus be subject to the disciplinary regime for civil servants.¹¹⁹

2.2 The judges

The ordinary courts are manned by professional judges and occasionally by lay judges. A professional judge must be a solvent national above a certain age with a master’s degree in law or an equivalent, and she must still be in possession of her right to vote.¹²⁰ Professional judges may be appointed on either a temporary or on a permanent basis, at all appellate levels.¹²¹ There are two kinds of temporary judges: acting judges and deputy judges. Acting judges are fully qualified judges appointed for a set period of time, whilst deputy judges are temporary judges-in-training.¹²² The latter may only be employed at district and land consolidation courts, they require special authorization from the chief judge before they can begin adjudi- cating, and their subject-matter jurisdiction is somewhat limited.¹²³ Temporary judges are widely used in the Norwegian judiciary, with an estimated 30 percent of the total body of judges consisting of deputy judges.¹²⁴

Lay judges are widely used in criminal trials before the district and appellate courts, but civil suits are normally determined by professional judges alone.¹²⁵ The appellate courts used to operate with juries, but these were abolished in 2018.¹²⁶ The special courts are also manned with a combination of professional and other judges. Land consolidation courts normally only consist of one professional judge, but expert lay judges may be appointed at the parties’ re- quest.¹²⁷ The Employment Tribunal consists of three permanent professional judges, and four others proposed by the largest employer and labour organizations.¹²⁸ The Uncultivated Land Tribunal for Finnmark consists of three members who must satisfy the appointment criteria for judges, as well as two others who are appointed at the King’s discretion.¹²⁹

119 The CSA sections 25 and 1.

120 The CJA sections 53 and 54.

121 The CJA section 55 d.

122 One can qualify for a judgeship without having first served as a deputy judge, see the CJA sections 53-55.

123 NOU 2020: 11 p. 135.

124 NOU 2020: 11 p. 136. The Commission has also proposed measures to severely curtail the use of temporary judges, citing concerns for judicial independence, see ibid. p. 140.

125 See the Code on Criminal Procedure sections 276 and 332, and the Dispute Act section 9-12.

126 Lov 16. juni 2017 nr. 58 om endringer i straffeprosessloven mv. (oppheving av juryordningen)

127 The Land Consolidation Act section 2-6.

128 The Labour Dispute Act sections 37 and 39.

129 The Finnmark Act section 36.

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The Court of Impeachment is typified by its political character. Parliament has the prosecuto- rial responsibility before the Court, and the Court itself is manned by a combination of the most senior Supreme Court justices, including the Chief Justice, and members elected by Par- liament, with the latter constituting the majority.¹³⁰ The parliamentary appointees cannot be members of Parliament or of Cabinet, but should otherwise be politically experienced, and the final configuration should be party politically balanced.¹³¹ However, by-and-large, the eligi- bility criteria have ultimately been left up to Parliament’s discretion.¹³²

2.3 The administration of the courts

The administration of the Norwegian judiciary takes place both at the central national level and at the local level. Let us now examine each of these in turn.

2.3.1 Central administration

The central administration of the courts was previously the responsibility of the Ministry of Justice.¹³³ However, following legislative reforms implemented in 2002, three new bodies of judicial administration were established and the administrative powers previously wielded by the Ministry were divided among them. The aim of the reform was to strengthen judicial independence and to further public trust in the judiciary.¹³⁴ These new bodies were the Norwe- gian Courts Administration (henceforth the NCA), the Judicial Appointments Board (henceforth the JAB) and the SCJ. The latter will be closely scrutinized in later chapters. In the following few paragraphs, I will however expend some words on the functions of the former two.¹³⁵

130 See the Constitution’s article 86, first and third subsections. According to the latter, six out of the total eleven member are parliamentary appointees.

131 Dok.nr.19. (2003-2004) p. 47-48.

132 Dok.nr.19. (2003-2004) p. 47-48.

133 Ot.prp.nr. 44 (2000-2001) p. 10.

134 Ot.prp.nr. 44 (2000-2001) pp. 70, 99 and 173.

135 There are a few additional supervisory bodies authorized to oversee the courts, i.e. the Auditor General, see the Act on the Office of the Auditor General section 9, and the Norwegian National Institution for Human Rights, see the NRHI Act section 3. The judiciary has however been excluded from the of the Parliamentary Ombudsman’s oversight powers, see section 4, second subsection of the Parliamentary Ombudsman Act.

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The NCA is responsible for the day-to-day governance of the ordinary and land consolidation courts. The NCA also exercises all employer functions vi-a-vis individual judges, excepting those that are still in the possession of the executive, or which have been delegated elsewhere.¹³⁶ The NCA serves both oversight and support functions in relation to the courts and is endowed with the overall responsibility for ensuring that the administration of justice is car- ried out according to the legislative framework.¹³⁷

The NCA is headed by a board, broadly tasked with ensuring that the administration of the courts runs expediently and efficiently.¹³⁸ Currently, the board consists of nine members with personal deputies. The executive appoints three judges of the ordinary courts, one land consolidation court judge, one representative of other court employees, and two lawyers to the board, whilst Parliament elects the final two members.¹³⁹ Reforms have now been proposed however that, if adopted, will result in some compositional changes.¹⁴⁰ For one, a new appointment scheme for the judicial members has been proposed, according to which the formal appointment power will remain with the executive, but its choices will now be limited to candidates nominated by the judiciary. The Supreme Court will elect its own representative. If the reforms are implemented, the Board will still consist of a majority of non-judicial members, with only five out of eleven members being judges. However, court employees will indeed constitute a majority, as the non-judicial court employees will keep their representative under the proposed scheme. This representative will nonetheless still be appointed by the government and not by the judiciary. As such, there will still be a minority of members cho- sen by the judiciary itself.

The JAB

The JAB is only responsible for nominating candidates for judicial positions, and it therefore has no formal role in the disciplinary system as such. The formal appointment power remains with the King-in-Council.¹⁴¹ The JAB is an independent administrative body, composed of

136 Ot.prp.nr.44 (2000-2001) p. 85.

137 NOU 2020:11 p. 167.

138 The CJA section 33.

139 The CJA section 33 a.

140 NOU 2020: 11 p. 97.

141 Executive appointment of judicial officials has ancient roots in the Norwegian legal tradition, with the first known such instance tracing back to 1223, see Sunde (2005) p. 164.

How to bell the cat? A critical assessment of the Norwegian disciplinary system for judges in light of the right to a fair trial.