Iris Nguyên-Duy, Dept. Of Public and International Law
Introduction to the Norwegian Legal System
Lecture 4
”The Protection of Human Rights
in Norwegian Law”
”The Protection of Human Rights in
Norwegian Law”
I. Overview: the national and international
provisions on human rights
II. The constitutional protection of human rights
in Norway
III. The status of ECHR and UN conventions in
Norwegian law
IV. Examples
I. Overview: the national and international
provisions on human rights
• UN Universal Declaration of Human Rights of
1948
• International Covenant on Civil and Political
Rights & the International Covenant on
Economic, Social and Cultural Rights (1966)
• Human Rights Act of 1999
II. The constitutional protection of human
rights in Norway
1. The “catalogue of rights” in the Constitution
a. The Human Rights in the original text of the
Constitution (See the first chapter of the Adler-Falsen
proposal + Chapter E, § 96, 97, 99, 105; § 2, 50)
b. The constitutional reforms (until now – 2011)
2. The future/coming reform of the Constitution
(2012)
a. Which rights should be entrenched in the Constitution?
b. Arguments for and against the strengthening of human
rights via the Constitution.
II. 1. a. The Human Rights in the original
text of the Constitution
Examples:
• § 96 according to which “No one may be convicted except according
to law, or be punished except after a court judgment. Interrogation by
torture must not take place” (prohibition of torture).
• § 97 according to which “No law must be given retroactive effect”
(prohibition of retroactive laws).
• § 99 that stipulates that: “No one may be taken into custody except in
the cases determined by law and in the manner prescribed by law”.
• § 105 according to which “If the welfare of the State requires that any
person shall surrender his movable or immovable property for the
public use, he shall receive full compensation from the Treasury” (no
expropriation without compensation).
II. 1. b. The constitutional reforms
(until now – 2011)
For example:
• In 1851: the interdiction for the Jews to enter the Realm of Norway
was repealed (article 2 of the Constitution).
• In 1884, 1898 and 1907, the right to vote is extended. It is universal
for men in 1898 (alminnelig stemmerett for menn).
• In 1913, the right to vote is universal, for both men and women in
Norway (article 50 of the Constitution).
• In 1956-7, the interdiction for the Jesuits to enter the Realm of
Norway was also repealed (article 2 of the Constitution).
• In 1964, the freedom of religion (religionsfrihet) is included in article
2 of the Constitution.
• In 1988, a new article 110 a on the Sami people is adopted.
• In 1990, it is stated in article 3 of the Constitution that women also
can inherit the throne of Norway.
• And then the “big steps” / reforms of 1994 and 2004.
II. 2. The future/coming reform of the
Constitution (2012)
• When the Constitution gives a better protection than the ECHR
For example, article 97 of the Constitution offers a protection against retroactive
laws that is much more comprehensive than article 7 of the ECHR, which is
limited to acts punishable by law (straffbare handlinger).
Another example is the prohibition of prior censorship of article 100, 4th
paragraph, which is a priori absolute.
• When the Constitution does not protect as well as the ECHR
When we look, for example, at the second sentence in article 96 of the
Constitution, we see that the prohibition of torture is limited to “interrogation
by torture”. Article 3 of the ECHR protects better.
• When the Constitution and the ECHR provide for (almost) the same
level of protection.
That’s supposedly generally the case, but it is more apparent in countries where
the catalogue of rights in the Constitution is a copy of the ECHR (like in
Finland, for example).
II. 2. a. Which rights should be entrenched in the
Constitution?
Rights that are not entrenched in the Constitution
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the right to live (prohibition of death penalty)
the prohibition against slavery and forced labor
the right to a fair hearing within a reasonable time by an independent and impartial
tribunal.
freedom of association and freedom of assembly
principle of equality before the law and the prohibition against discrimination
the right to participate in cultural life, enjoy the benefits of scientific progress, freedom
of science and art, and protection of copyright
the right to education
the right to social security, to an adequate standard of living (including the right to
food, water, clothing and housing) and to the best possible health
the right to seek and obtain asylum in case of persecution
freedom of movement
principle of the children’s best interests (barnets beste)
the right to be heard
the right to marry and to found (stifte) a family – and the family's right to protection
the right to form political parties and to participate in free secret ballot
the right to an effective remedy.
II. 2. a. Which rights should be entrenched
in the Constitution?
Rights that have been entrenched in the Constitution for
a long time / since the beginning (f.ex.)
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The freedom of religion (since 1964)
The prohibition of torture
The principle of legality (legalitetsprinsippet)
Freedom from arbitrary deprivation of liberty (frihet fra
vilkårlig frihetsberøvelse)
Respect for privacy (respekt for privatliv)
”freedom of livelihood” (næringsfrihet)
Respect for property rights
Prohibition of retroactive laws
II. 2. a. Which rights should be entrenched
in the Constitution?
A list of rights entrenched in the Constitution
more recently
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Freedom of expression
Right to work
Protection of the Sami people
Right to an environment that is conducive to health and
to a natural environment whose productivity and
diversity are maintained.
III. The status of ECHR
conventions in Norwegian law
and
UN
1. History
2. Article 110 c of the Constitution
3. The principle/rule of precedence / primacy of
fundamental human rights over national
legislation (forrang)
4. The position of the Courts
5. The new “controversy” on human rights in
Norway
III. 4. The position of the courts
Norwegian courts may review the constitutionality of statutory provisions
and the interpretation of the Constitution as well as of unwritten
constitutional principles may be influenced by international law. The
ECHR is part of the Human Rights Act and has priority over other
kinds of provisions (but not constitutional ones).
The Norwegian courts may use international law and the ECHR as
guides vis-à-vis the interpretation of national legislation. And the
renaissance of constitutional judicial review in Norway stemmed from
a stronger influence of the European human rights ideology.
The Supreme Court took a strong position in the Kløfta decision, in 1976
(Rt. 1976 s. 1), saying that:
• The power to review the constitutionality of statutes was derived from
“established constitutional customary law”
• And that, when dealing with provisions which protect the individual’s
personal liberty or security, the constitution’s weight must be
considerable and the courts should exercise a more thorough review of
the constitutionality of statutes and provide for a better protection.
III. 4. The position of the courts
What are the effects of the European Courts case law in the Norwegian legal order?
As of October 2009, the European Court of Human Rights has delivered 20 judgments
against Norway finding violations of the ECHR.
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20. A v. NORWAY, 9 April 2009, no. 28070/06
19. TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY, 11 December 2008, no. 21132/05.
18. ORR v. NORWAY, 15 May 2008, no. 31283/04.
17. A. AND E. RIIS v. NORWAY (II), 17 January 2008, no. 16468/05.
16. SANCHEZ CARDENAS v. NORWAY, 4 October 2007, no. 12148/03.
15. EKEBERG AND OTHERS v. NORWAY, 31 July 2007, no. 11106/04, 11108/04 and 11116/04.
14. FOLGERØ AND OTHERS v. NORWAY, 29 June 2007, no. 15472/02.
13. A. AND E. RIIS v. NORWAY, 31 May 2007, no. 9042/04.
12. TØNSBERGS BLAD AS AND HAUKOM v. NORWAY, 1 March 2007, no. 510/04.
11. KASTE AND MATHISEN v. NORWAY, 9 November 2006, no. 18885/04 and 21166/04.
10. WALSTON (No. 1) v. NORWAY, 3 June 2003, no. 37372/97.
9.
HAMMERN v. NORWAY, 11 February 2003, no. 30287/96.
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O. v. NORWAY, 11 February 2003, no. 29327/95.
7.
Y. v. NORWAY, 11 February 2003. no. 56568/00.
6.
BERGENS TIDENDE AND OTHERS v. NORWAY, 2 May 2000, no. 26132/95.
5.
NILSEN AND JOHNSEN v. NORWAY, 25 November 1999, no. 23118/93 (Grand Chamber).
4.
BLADET TROMSØ AND STENSAAS v. NORWAY, 20 May 1999, no. 21980/93 (Grand Chamber).
3.
JOHANSEN v. NORWAY, 7 August 1996, no. 17383/90.
2.
BOTTEN v. NORWAY, 19 February 1996, no. 16206/90.
1.
E. v. NORWAY, 29 August 1990, no. 11701/85.
[See: http://www.norway-coe.org/general/hr/echr/norwegiancases/ECtHR---Judgments-against-Norway-/ ]
III. 4. The position of the courts
There were this year (2011) hearings in two cases:
• Lindheim and Others v. Norway (no. 13221/08)
• Henriksen v. Norway (no. 2139/10).
Some of the 20 cases (until 2009) concerned article 6 of the ECHR,
others, article 10, and others articles 5 and 8 ECHR. Norway has
mainly had problems concerning the freedom of expression, the
equality of arms, the right to a fair trial and the presumption of
innocence.
It is noteworthy that the cases where Norway has been found to have
violated the ECHR have been criticised by Norwegian lawyers and
judges, who argued that the ECtHR had been too harsh or had
misunderstood the Norwegian legal system.
At the same time, the courts try to follow closely with the ECtHR’s
practice, making use of the principles of interpretation and of the
national remedies; and many legal reforms have taken place to bring
national law in conformity with the ECtHR’s case law, even when it
concerned other States.
III. 4. The position of the courts
Before the incorporation of the ECHR
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During the first twenty years after the ratification of the ECHR, it is fair to say
that the ECHR has had little impact on the Norwegian courts or on the legislative
process. The Supreme court tended to uphold the principle of dualism.
But, already in 1984, in Rt 1984 s. 1175, the Norwegian Supreme Court was
influenced by the ECHR in its judgement, and that was also an example of the
development towards greater reliance on the ECHR as well as on the case law of
the EctHR. The basis for the application or use of the ECHR was the notion of
consistent interpretation, which in turn relied on that there was a presumption
that Norwegian law and international human rights law should be in conformity
with each others. The case concerned the possibility for an inmate to challenged
detention in a psychiatric facility which was decided not on basis of criminality
but on the basis of dangers to oneself which was related to the Winterwerp case of
the EctHR.
In 1990, the Norwegian Supreme Court again relied not just on the text of the
ECHR, but also on the judgement of the EctHR in the case of Lingens v. Austria
where the EctHR struck a balance between on one hand protection of individual
rights of privacy and reputation and on the other hand freedom of expression for
public figures, in particular politicians (Rt. 1990 s. 257).
III. 4. The position of the courts
After the adoption of art. 110 c of the Constitution and the incorporation of
the ECHR in the Human Rights Act of 1999
• §110 c of the Constitution solidified the already existing application of the
ECHR, and that it opened up possibilities for more extensive use of other
international human rights instruments. In several cases, the Court presumed
there was consistency between Norwegian legislation and international
treaties.
• However, in the event of a conflict of norms, domestic legislation had usually
priority. One of the seminal cases was Rt. 1994 s. 610 (Bølgepapp). Here the
Court said that if an international norm was to be given priority, it would
have to “appear as sufficiently clear and manifest”.
• There have traditionally been three kinds of filters or factors that have been
taken into account by the courts in cases concerning human rights, and that
have, in one way or the other, hindered or restrained a bit the dynamic
interpretation of the ECHR. But things are evolving!
• These “filters” are/were: 1) the principle of clarity, 2) the margin of
appreciation of the States and 3) the reference to national values.
III. 4. The position of the courts
a. Clarity
It seems that the exigence / requirement of clarity is no longer a prerequisite.
The case law on the matter was “short lived”.
In order to be able to set aside a Norwegian norm on the basis of an incorporated
international rule, this rule had to appear to be sufficiently clear and
unambiguous (tilstrekkelig klar og entydig) [Rt. 1994 s. 610, Bølgepapp].
This requirement of clarity was abandoned in the Bøhler case of 2000 (Rt. 2000
s. 996) where the Supreme court declared that: It results from § 3 of the
Human Rights Act that when the interpretation of the ECHR gives results
that “appear to be reasonably clear” (rimelig klart), the Norwegian courts
have to apply the provisions of the Convention even if this would mean that
Norwegian law or case law will have to be disregarded.
It was confirmed in the decision KRL (Rt. 2001 s. 1006) that the clarity
requirement had lost its function as a threshold that could be used to give a
more limited interpretation of the decisions coming from the ECtHR.
III. 4. The position of the courts
b. The margin of appreciation of the States
It is equally difficult to find new Supreme court decisions that rely on an
argumentation in favour of the State based on a so-called “national margin of
appreciation” (nasjonal skjønnsmargin).
The last time it happened, it was in 2004, in the decision TV-Vest (Rt. 2004 s.
1737). The majority of the Supreme court found that there were no violation
of the Constitution or of the ECHR and hold that political television
advertising was an area where weight should be given to what Parliament had
meant on the constitutionality of the provision. Neither the majority or the
minority found that the § 100 of the Constitution or article 10 had been
violated, as the prohibition of the Broadcasting Act fell under the exception
clause in Article 10, paragraph 2 of the ECHR. What was crucial was that,
according to the EctHR, the ban concerned the regulation of the political
debate, not the prohibition of political speech. In the absence of a European
common legal opinion on the regulation of political advertising, the political
authorities were given a wide margin of appreciation in assessing the
necessity of measures in this field.
But there are no other examples of case law based on the issue of margin of
appreciation after this case of 2004.
III. 4. The position of the courts
c. National values and dynamic interpretation
It might mainly be because the Supreme court has relied, instead, on the argument
based on “national values”. And according to Andenæs and Bjørge, the
Supreme court had the choice between to approaches on this matter:
One approach was that the Supreme Court could use the argument of national
values ​to limit a dynamic interpretation of the EctHR’s case law.
The second approach turns the perspective around, and national values ​and
"reasonable assurance" can be used as tools to develop legal security and the
principles of the rule of law (rettssikkerhet og andre rettsstatsprinsipper).
The Supreme court chose the second one, for example, in the decision on the
“Double Penalty I” (Rt. 2002 s. 557), in the decision on the “Presumption of
innocence” (Rt. 2008 s. 1409) and in a recent ruling of 2011 (HR-2011-01118A).
[NB: Developments based on the findings in a recent article (in Norwegian) by Mads
Andenæs and Eirik Bjørge, “Norske domstoler og utviklingen av menneskerettene”,
published in the periodical Jussens venner (2011).]
III. 4. The position of the courts
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NOTA BENE!
The Supreme court did not only set aside the requirement of clarity, it seems it
strengthened its protection of human rights by building its interpretation on
Norwegian values and rule of law.
Recent Supreme court case law does not provide any support for stating that
Norwegian values are prioritorised over or used to limit the impact of human
rights law. On the contrary, decisions such Rt. 2005 s. 833 (P), Rt. 2008 s. 1764
(S), Rt. 2009 s. 1118 (S) and Rt. 2010 s. 1170 (S) as illustrate the fact that the
Supreme court takes human rights seriously into account.
At the same time as there is an increasing tendency of support of a loyal
implementation of international human rights and an open mind to the practice of
the ECHR, the post 1999 cases show how much the justices remain skeptical to a
strong implementation of international human rights, more sometimes than
certain politicians. Thus, the significance of the incorporation of the ECHR in
Norway should not be overestimated. The incorporation only provides for a
minimum system of protection and the process of reception of the ECHR depends
inter alia on the judge’s constitutional ideology when engaging in judicial review.
IV. 1. The protection of the freedom of
expression [GL § 100]
One can distinguish between two conceptions of the freedom of
speech/expression in article 100:
• Freedom of expression as freedom from PRIOR censorship (also
known as formal freedom of expression) [4th paragraph] and
• Freedom of expression as freedom from POST censorship (known as
material freedom of expression) [1st and 2nd paragraphs]. The material
freedom of expression cannot, in principle, be limited by law – but some
issues are still debated, such as those in case of “hate speech”, especially
when they invite to violence, for example [Vigrid case, Rt. 2007 s. 1807].
 All in all, there is a general prohibition of censorship
[NB: But exemptions from prior censorphip and other precautionary
measures are allowed to protect minors from harmful influence of moving
pictures and for certain forms of censorship of mail in prisons and other
institutions.].
IV. 1. The protection of the freedom of
expression [GL § 100]
Example of case law on “discriminatory speeches” or “hate
speech”:
• The Kjuus case (Rt. 1997 s. 1821)
• In the Boot Boys case (Rt. 2002 s. 1618), the majority of the
Supreme court took into account the fact that the neo-nazi
statements, against Jews, did not incite to the committing
violent acts. This case shows it is difficult to trace a limit.
• The Vigrid case (Rt. 2007 s. 1807) is considered to be a
rectification of the Boot Boys case of 2002. At issue were
statements of neo-nazi character. They were found to go over
the authorised limit as they incited to violence. The socalled “hate speeches” seem to be allowed as long as the
distinction between words and acts is not too closely
infringed.
IV. 2. The protection of the minorities – the Sami
population [GL § 110 a.]
Ethnically, the residents of Norway are predominantly ethnic Norwegians
who are of North Germanic / Nordic descent, although there are
communities of the Scandinavian native people Sami who settled the
area around 8,000 years ago, probably from continental Europe through
the Norwegian coast and through Finland along the inland glaciers.
The Sami are the Nordic countries’ only officially indigenous people (in
1990, according to ILO convention nr. 169 of 1989, concerning
Indigenous and Tribal Peoples in Independent Countries).
They are thus entitled to special protection and rights according to
international law. They are protected, inter alia, by the International
Covenant on Civil and Political Right (1966). Article 27 protects
minorities, and indigenous peoples, against discrimination: “In those states
in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities, shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and
practice their own religion, or use their own language”.
IV. 2. The protection of the minorities –
the Sami population
Norway officially designates the Sami as an ethnic minority and a separate people,
but Norwegian citizens too.
According to Carsten Smith, the Sami people may seek support of two main groups of
legal norms:
• The general sources of law applying to minorities (to protect the culture of the
minorities) [f.ex. article 27 of the UN Convention on civil and political rights] and
• Special sources of law which are specially applicable to indigenous peoples (to
regulate their territorial rights).
The legal status, protection and rights of the Sami can be found in:
• Article 110 a of the Norwegian Constitution.
• The Sami Act (act of 12 June 1987 No. 56 concerning the Sami Parliament (the
Sámediggi) and other legal matters pertaining to the Samis). This Act is an
embodiment of the international and constitutional obligations to which Norway is
bound.
• The Sami Reindeer Husbandry Act of 2007
IV. 2. The protection of the minorities –
the Sami population
NB: Like article 110, article 110 a of the Constitution contains also an
injunction to the State authorities.
According to Smith, it is more a political “declaration of principle” (politisk
prinsipperklæring) than a provision on rights and duties of a legal kind, as
it does not go as far as giving persons or their organisations the right to
present any legal claims themselves. However, it lays down a political,
moral and legal responsibility on the part of the State and it has
significance both as a guideline and a limitation for legislation and acts of
the State organs. According to the Supreme Court (Rt. 1992 s. 1037),
article 110 a is addressed to the Government and the Parliament. In the
preparatory works of this article, it was pointed out that this provision
was intended to protect the Sami people against any pressure originating
from the Norwegian society in the direction of a politics of forced
assimilation (tvunget assimilasjonspolitikk) against the Sami minority.
Article 110 a should therefore probably be interpreted a little differently than
article 110.