|
Norway Legal System:
The Norwegian legal system has largely been set up on a national
level. The Norwegian system is most similar to the legal systems
of the other Nordic countries, particularly those of Denmark and
Sweden. Norway does not have a general codification of private
or public law corresponding to the Code Civil or Borgerliches
Gesetzbuch in civil law countries. It instead has comprehensive
statutes codifying, among other things, central aspects of the
criminal law and the administration of justice. Norwegian courts
do not attach the same weight to judicial precedents as members
of the judiciary in common law countries traditionally have
done. Neither are Norwegian courts bound by intricate rules
concerning the admissibility of evidence; the basic rule is that
all evidence is admissible. Court procedure is relatively
informal and simple, and there is a strong lay influence in the
judicial assessment of criminal matters and, to a lesser extent,
civil matters. This lay influence is created through the use of
both a jury system and a system whereby lay judges (without
formal legal qualifications) sit with professional judges in the
hearing of cases.
Norway Judicial and Prosecutorial Process:
Rights of the accused. The rights of the accused are described
in the Criminal Procedures Act. The accused must be informed of
the nature of the charge(s) brought against him or her upon
being arrested and attending court for the first time. The
accused must also be given the chance to refute the grounds on
which the charge is based. (Criminal Procedures Act,
Sect.90,92,171). Although the accused has a general right to
attend court proceedings and to summon and examine witnesses,
the court can order him or her to leave the courtroom while a
witness is being examined "if there is special reason to fear
that an unreserved statement will not otherwise be made." The
accused must be informed subsequently of the proceedings that
occurred in his or her absence. In special circumstances, such
as if national security interests are at stake, the accused may
be entirely excluded from the proceedings. (Criminal Procedures
Act, Sect. 135,245). The court's verdict must be communicated to
the accused as soon as possible, along with information on
rights of appeal. Court judgements and orders are to be
accompanied by reasons. (Criminal Procedures Act,
Sect.39-41,43,52). The accused has the right to bring appeals
against court verdicts, both on questions of fact and questions
of law. There are, however, several limitations on the exercise
of this right. For example, appeals to the Supreme Court, which
is the highest judicial body, can only take place if permitted
by the Court's Appeals Selection Committee. Moreover, the
general rule is that such appeals can only be based on alleged
errors of law. In other words, the Supreme Court is unable to
try questions of evidence related to the issue of guilt.
(Administration of Justice in Norway, 1980: 65-66; Criminal
Procedures Act, as amended new Chapt 23, Sect. 323, 1993). The
accused do not have the right to have their cases tried by jury.
As a basic rule, however, appeals from verdicts reached by the
court of first instance on cases concerning felonies punishable
by more than 6 years' imprisonment are dealt with by the High
Court (Lagmannsrett). In these cases, there is a jury (lagrett)
present to decide the question of guilt. (Criminal Procedures
Act, new Chapt 24, as amended, 1993).
Assistance to the accused. As a general rule, the accused is
entitled to the assistance of defense counsel of his or her
choice during all stages of the judicial process. The accused is
also provided with the free assistance of defense counsel,
chosen by the court, during the main court hearing. There are
several exceptions to the latter rule, such as if the case
involves a certain minor offense, like driving under the
influence of alcohol, or when the accused has made an unreserved
confession. However, these exceptions apply only in cases tried
by the City or District Court. (Criminal Procedures Act, Sect.
94,96,100,107,262).
Norway Judicial Procedures
Preparatory procedures for bringing a suspect to trial. Once a
person has been arrested, he or she is brought before the court
of examination and summary jurisdiction (forhorsretten). This
court decides whether or not the person shall be remanded in
custody. The prosecuting authority then prepares a formal
indictment (tiltalebeslutning), which it serves on the accused.
The indictment contains information on the time, place and
object of the coming trial and legal details on the nature of
the charge. (Criminal Procedures Act, Sect. 184,184a). When the
relevant 1993 amendments to the CPA enter into force, all
criminal matters will initially be brought to the District and
City Courts. Appeals will be brought before the High Court,
though in special circumstances they will be able to go directly
to the Supreme Court. Previously, the most serious criminal
cases were tried by the High Court at first instance. It was
also much easier to bring appeals from decisions reached by the
District and City Courts directly before the Supreme Court,
bypassing the High Court in the process. (Criminal Procedures
Act, new as amended, Sect.5,6,8, 1993).
Official who conducts prosecution. The Public Prosecution
Authority is responsible for deciding whether to prosecute and
for conducting the prosecution. For very serious felonies, such
as murder, the decision to prosecute lies with the Director
General of Public Prosecutions. Responsibility for prosecuting
most other types of felonies lies with the State
attorneys/Public Prosecutors. Police Commissioners and their
immediate subordinates are also part of the Public Prosecution
Authority and have the power to prosecute more minor cases,
which are typically misdemeanors. (Administration of Justice in
Norway, 1980: 51-52). On August 27, 1993, a Royal Resolution was
issued, extending police prosecution powers to encompass
different types of felonies, such as breaking and entering,
falsification of documents, larceny, fraud and vandalism.
(Criminal Procedures Act, new as amended, cf newly amended,
Sect.67, 1993).
Alternatives to trial. Minor offenses can be settled by the
police serving a writ prescribing payment of an optional fine (forelegg)
upon the accused. This type of writ is usually served in minor
traffic and customs offenses. If the fine is paid, there are no
further judicial proceedings. If the fine is not paid, the
matter can be prosecuted in court using simplified proceedings.
For instance, a District Court judge could decide the matter
summarily. This simplified court procedure is also employed when
an accused person makes an unreserved confession for a crime not
punishable by more than 10 years' imprisonment, and the
confession is corroborated by evidence. (Criminal Procedures
Act, new as amended, Sect. 248, 1993; Kriminalitet og rettsvesen,
1992: 42).
An ordinary court trial can also be avoided: (a) in cases
where the prosecuting authority decides not to prosecute, often
with the condition that the offender undertakes not to engage in
further criminal behavior; (b) in cases involving persons under
the age of 18, which are left to be decided by municipal child
welfare boards; and (c) in cases which can be settled by
arbitration through the Conflict Board.
Pre-trial incarceration conditions. A court of examination and
summary jurisdiction (forhorsretten) can decide that an arrested
person be remanded in custody if any of the conditions set out
in Sections 171, 172 or 173 of the Criminal Procedures Act are
fulfilled. Pre-trial incarceration shall be "as short as
possible and must not exceed 4 weeks", but it can be extended by
up to 4 weeks at a time. (Criminal Procedures Acts, Sect. 184,
185). There is a provision for a person to forgo arrest or be
released from custody subsequent to arrest if he or she gives
certain guarantees. However, this practice is rarely applied.
NORWAY POLICE
There are 5 police regions, among which are 54 police
districts. The districts are led by police commissioners (Politimestre),
who have as their immediate subordinates, deputy police
commissioners (Politiinspektorer), assistant commissioners (Politiadjutanter)
and superintendents (Politifullmektiger). Police commissioners
and deputy police commissioners are appointed by the King in
Council. The other two classes of officials are appointed by the
Ministry of Justice and Police. (Kriminalitet og rettsvesen,
1992: 40; Public Prosecution Authorities and Police in Norway,
1992: 4). The police force is administered directly by the
Ministry of Justice and Police. It is also subordinate to the
Public Prosecution Authority (den offentlige p�talemyndighet)
with regard to the investigation and prosecution of crimes. The
police commissioners and their immediate subordinates form the
first instance of the Public Prosecution Authority, which is
headed by the Director General of Public Prosecutions (Riksadvokaten).
(Administration of Justice in Norway, 1980: 51; Criminal
Procedures Act, Sect. 55). The Director General is appointed by,
and directly accountable to, the King, independent of the
Ministry of Justice. He or she is assisted by 40 Public
Prosecutors or State Attorneys (Statsadvokater), 37 of whom are
assigned to particular geographical jurisdictions. There are 9
such jurisdictions. In addition, there are 8 Public Prosecutors
attached to the recently established Central Unit for the
Investigation and Prosecution of Economic and Environmental
Crime. All Public Prosecutors or State Attorneys are lawyers and
appointed by the King. (Norges Statskalender 1993, 1993:
194-195; Politi og p�talemyndighet, 1988: 12-13). In rural
areas, police duties are carried out by sheriffs (Lensmenn),
each of whom has general administrative authority in relation to
a defined district. There are 370 such districts. (Politi og p�talemyndighet,
1988: 28). As a police officer, a sheriff is accountable to the
local police commissioner. (Police Act, Sect. 6). There are
several special units to the police force, all of which are
administered centrally. These include the National Bureau of
Crime Investigation (Kriminalpolitisentralen - "Kripos"), the
Police Security Service (Politiets Overv�kingstjeneste), the
Police Computing Service (Politiets Datatjeneste), the Police
Equipment Service (Politiets Materielltjeneste) and the Mobile
Police (Utrykningspolitiet). There is also a small specialist
anti-terror squad based in Oslo. (Public Prosecution Authorities
and Police in Norway, 1992: 6-7). The functions and tasks of the
police are many and varied, ranging from the usual maintenance
of law and order, the investigation and prevention of crime, to
more specialized administrative tasks, such as immigration
control and control of lotteries and gambling. The main rules
governing the functions and tasks of the police force are found
in the Police Act of 1936 (Lov om politiet 13. mars 1936 nr. 3),
the Police Instruction of 1990 (Alminnelig tjenesteinstruks for
politiet 22. juni 1990), the Surveillance Instruction of 1977 (Overv�kingsinstruks
25. november 1977), the Weapon Instruction of 1989 (V�peninstruks
for politiet 1. august 1989), the Criminal Procedures Act of
1981 and the Prosecution Instruction of 1985. (Forskrift om
ordningen av p�talemyndigheten 28. juni 1985 nr. 1679). It
should be noted that the fundamental right of police to maintain
public order is based on customary law and not set down in
statute. However, this right was included in a proposal for a
new Police Act, drafted in 1991 and submitted to Parliament in
1994. (Odelstingsproposisjon nr. 83, 1992-1993). The police are
completely independent of the military forces. In certain
emergency situations, such as rescue operations and natural
catastrophes, the police can seek the assistance of the military
when there are insufficient civilian resources to cope with the
situation. In such cases, the military forces are under command
of the police and must follow the laws which regulate police
actions. (Police Instruction, Chapt. 14).
Weapons. The most common type of weapon with which police arm
themselves is a wooden baton. There are 2 main types of guns
available for use by ordinary police officers: US carabiners (30
caliber) and Smith & Wesson revolvers (model 10). Machine guns
are available to specially selected police units, such as the
anti- terror squad. There are light bullet-proof vests for
approximately half of the operative police force. They are
distributed unequally between the various police districts
depending on need. Almost all police officers on patrol in Oslo
have bullet-proof vests. There are also approximately 2,000
heavy bullet-proof vests and helmets distributed between the
police districts. (Hagen, 1993).
Police Training and qualifications: Persons seeking to be
recruited into the police force as ordinary service personnel
must be between 21 and 30 years old, have Norwegian citizenship,
and be of good health, character and standing. (Police Act,
Sect. 13). They must also have completed a 3-year training
course run by the National Police Academy (Politihogskolen) in
Oslo. This training course involves 1 year of studies at the
academy, followed by 1 year of practical training at police
stations, and then a year of further study back at the academy.
(Politihogskolen, 1993: 8). At present, there are no compulsory
postgraduate courses for service personnel, although such
courses have existed in the past. Those seeking to be recruited
to the upper echelons of the police force, such as the rank of
superintendent, must have completed a university degree in law.
(Police Act, Sect. 4).
Norway Police Use of force. Section 67 of the Criminal
Procedures Act provides the police with general authority to
investigate and prosecute cases of crime. It also provides the
police with authority to seek court permission to apply certain
coercive measures, such as arrest and seizure of property,
during the investigation and prosecution process. These coercive
measures are described in Chapters 14-17 of the Criminal
Procedures Act and amplified in Chapters 8-11 of the Prosecution
Instruction of 1985. Rules governing the use of weapons by
police are contained in the Weapon Instruction (WI) of 1989 (V�peninstruks
for politiet 1. august 1989). The instruction covers the use of
guns, explosives, gas and batons. Batons and gas can only be
used in "especially dangerous situations" or when police cannot
carry through a task without being subject to a risk of injury.
(Weapon Instruction, Sect. 17). Guns shall only be used as a
"last option", when: (a) police or others are threatened by
weapons or violence and the use of guns seems necessary to
prevent the loss of human life or serious injury; or (b) it is
necessary to immediately apprehend a person who is suspected of,
or charged with, a serious violent offense, including attempts
at such offenses, or a person who is otherwise seen as being of
special danger to national security, to life or health; or (c)
it is necessary to prevent serious damage to foreign property,
or when especially important interests of society are
threatened. (Weapon Instruction, Sect. 19). Before using
weapons, police must consider the danger or risk of injury to
which outsiders will be subjected. If circumstances allow, they
must initially warn a person that weapons will be used against
him or her if he or she does not obey police orders. They must
also fire a warning shot. Explosives can only be used in order
to gain access to locked or barricaded premises, when the
conditions in Section 19 of Weapon Instruction are fulfilled,
and upon an order from a police commissioner. (Weapon
Instruction, Sect. 20,22). Police on routine patrol do not carry
guns. Police commissioners can authorize that handguns be taken
by police when patrolling by car. In such cases, the weapons and
ammunition must be kept in locked cabinets in the patrol cars.
Special police units can carry other types of weapons, if
permitted by the Ministry of Justice. Police are allowed, on a
case by case basis, to carry guns in certain dangerous
situations. (Weapon Instruction, Sect. 5, Sect. 10-11).
Decision to arrest. The major legal requirements that must be
met before a person can be arrested by the police are provided
in Chapter 14 of the Criminal Procedures Act. Generally, the
decision to arrest a person must be made by an official of the
Public Prosecuting Authority, which includes the higher-ranking
police officials, or a court. An ordinary police officer or
private citizen may make an arrest on his or her own initiative
if delay "entails any risk." However, these sorts of arrests
must subsequently be ratified as soon as possible by the Public
Prosecuting Authority. (Criminal Procedures Act,
Sect.175,176,179). There are no statistics available on the
number of arrests made without a warrant. Whether a person is
arrested depends primarily on the type of penalty for the
offense he or she is suspected of having committed, along with
the risk that he or she will try to evade prosecution and/or
commit another crime. Section 171 of the Criminal Procedures Act
states that any person who is suspected "with just cause" of
committing a felony punishable by more than 6 months'
imprisonment may be arrested when: (1) "there is reason to fear
that he will evade prosecution or the execution of a sentence or
other precautions"; (2) "there is an immediate risk that he will
interfere with any evidence in the case..."; (3) "it is deemed
necessary in order to prevent him from again committing a
criminal act punishable by imprisonment for a term exceeding 6
months"; or (4) "he himself requests it for reasons that are
found to be satisfactory.[...]." None of these four conditions
need to be met in order to arrest a person suspected of a felony
punishable by imprisonment of 10 years or more. Such a person
may be arrested if he or she confesses to the felony or there
are circumstances "that strengthen the suspicion to a marked
degree." (Criminal Procedures Act, Sect.171,172). Persons
"caught in the act" of committing a crime may be arrested
irrespective of the penalty the crime incurs. This is also the
case when there is "reason to fear" that a suspect will evade
prosecution by fleeing abroad. After being arrested, a person
must be brought before a court "as soon as possible and as far
as possible on the day following the arrest", so that an order
can be issued that the person be remanded in custody. (Criminal
Procedures Act, Sect. 173,183-184). It is possible for police to
detain a person for up to 4 hours without arresting him or her.
This temporary detention can be imposed on persons who "disturb
the public peace and order", or who do not comply with a police
request to give their name, age and place of residence, or who
are found in the vicinity of a place where a felony is "deemed"
to have occurred immediately beforehand. Further guidelines on
when and how police may detain persons who disturb the public
peace and order are provided in Chapt 9 of the Police
Instruction. (Criminal Procedures Act, Sect.191).
Norway Police Search and seizure: The police may search a
person's premises if that person "is with just cause suspected
of any act punishable by law with imprisonment." The police may
also conduct a bodily search of such a person "if there is
reason to assume that it may lead to the discovery of evidence
or of objects that may be seized." Pursuant to Sect. 157 of the
Criminal Procedures Act, it is also possible to conduct a
physical examination of a suspect during a court inquiry.
(Criminal Procedures Act, Sect. 192,195) In certain
circumstances, police can search the premises of persons other
than the suspect and to conduct bodily searches of these
persons. All searches must be made pursuant to a court order,
unless the person concerned consents to the search, is "caught
in the act" or there is "strong suspicion" of an act punishable
by more than 6 months' imprisonment and there is an "immediate
risk that the purpose of the search will otherwise be thwarted."
Searches should be conducted "as far as possible" in the
presence of an independent witness. Upon being arrested, a
person may also be searched in order to find and dispossess him
or her of anything that may be used for the purpose of violence
or escape. (Criminal Procedures Act, Sect.
178,192-195,197,198,199). Any objects "deemed to be significant
as evidence" may be seized. Seizure will normally be the result
of a written decision of the Public Prosecution Authority or a
court, but a police officer can effect a seizure on his or her
own initiative "when carrying out a decision to make an arrest
or search, and otherwise when delay entails a risk." Any seizure
may be challenged in a court. (Criminal Procedures Act,
generally Chapter 17, Sect. 203,205,206,208).
Confessions. Police have no authority to order any person,
including suspects, to make a statement. However, they can
record any statements that are made by the suspect. Suspects
must be informed that they are not obliged to make any
statement, before they are examined. In addition, persons
conducting an examination of a suspect, such as the police,
prosecuting authority, and court, must not use "promises, false
information, threats or coercion", or "any means that reduce the
level of consciousness or ability of the person charged to make
up his own mind freely." (Criminal Procedures Act, Sect.
92,230,232). If the suspect admits to having committed a crime,
he or she must then be asked whether s/he admits being guilty
and liable to a penalty. If an unreserved confession is made,
the suspect must be asked whether he or she consents to the case
being adjudicated in a court of summary jurisdiction. (Criminal
Procedures Act, Sect. 233).
Norway Classification of Crime:
Legal classification. The Penal Code groups criminal offenses
into felonies (forbrytelser) and misdemeanors (forseelser). The
Criminal Law Commission, set up to draft a new Penal Code, has
proposed the distinction between felonies and misdemeanors be
eventually dropped from criminal law. (It is important to note
that, unless otherwise specified, all legal references in this
report are to laws as they existed on September 1, 1993. [Ny
straffelov - alminnelige bestemmelser, 1992: 21]). Felonies are,
with some exceptions, offenses with a maximum penalty exceeding
3 months' imprisonment. The majority of felonies are defined and
listed in Part 2 of the Penal Code, such as perjury, arson,
racial discrimination, rape, defaulting on obligation to support
dependents, slander and libel, larceny, embezzlement, damaging
information and communication systems, murder, blackmail and
robbery, fraud and breach of trust. (Penal Code Sect. 2, 163-
165, 167, 148, 135a, 192, 219, 246-248, 257-260, 255-256, 151b,
233, 266-269, 270-278). Misdemeanors are generally minor
offenses carrying a maximum penalty of 3 months' imprisonment.
Examples of these types of offenses are found in Part 3 of the
Penal Code. All breaches of the Road Traffic Act are defined as
misdemeanors irrespective of whether or not they carry a maximum
penalty of more than 3 months' imprisonment. (Vegtrafikklov 18.
juni 1965 nr. 4; Penal Code, Sect. 31).
Age of criminal responsibility. The minimum age at which one
can be held criminally liable is 15. (Penal Code, Sect.46;
Proposed new Penal Code, Sect. 37).
Drug offenses. Drug offenses are set out in Sections 162 and
162a of the Penal Code and Section 22 and 43 of the Medicinal
Goods Act. The drugs covered by these laws are listed in the
Narcotics Regulations issued by the Ministry of Social Affairs (Forskrift
om narkotika m.v. 30. juni 1978 nr. 8). There are some 250
substances listed; salts and derivatives of the listed
substances are also categorized as narcotics.
An ordinary drug offense pursuant to the Penal Code involves
the illegal manufacture, introduction, acquisition, storage (as
opposed to possession/ besittelse), or transfer of narcotics,
and is punished by a fine or imprisonment of up to 2 years.
Imprisonment for a serious drug offense (grov
narkotikaforbrytelse) can be imposed for a maximum of 10 years.
(Lov om legemidler m.v. 20. juni 1964 nr. 5; Penal Code, Sect.
162). Whether or not a drug offense is judged as serious (grov)
depends on the type of drug involved, its quantity and the
nature of the offense. If the quantity is "very significant",
imprisonment will be imposed for a period of 3 to 15 years. In
"particularly aggravating circumstances" (soerdeles skjerpende
omstendigheter), an offender can be imprisoned for up to 21
years. (Andenaes and Bratholm, 1991: 289-291; Penal Code, Sect.
162). A similar hierarchy of sanctions is provided for those who
receive or make a profit from a drug offense or who assist other
persons in receiving or making such a profit. A drug offense
under the Medicinal Goods Act is defined as the illegal
possession or use of narcotics, and the purchasing of narcotics
under false pretenses. (Penal Code, Sect. 22, 43, 162a). Note
that, prima facie, the laws make no distinction between
different kinds of narcotics; marihuana is treated the same as
heroin or cocaine. The use of drugs in sport is not encompassed
by the above laws |
