• Abstract and Figures
• Public Full-text

Victims of Crime in 22 European Criminal Justice Systems The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure PROEFSCHRIFT TER VERKRIJGING VAN DE GRAAD VAN DOCTOR AAN DE KATHOLIEKE UNIVERSITEIT BRABANT, OP GEZAG VAN DE RECTOR MAGNIFICUS, PROF.DR. F.A. VAN DER DUYN SCHOUTEN, IN HET OPENBAAR TE VERDEDIGEN TEN OVERSTAAN VAN EEN DOOR HET COLLEGE VOOR PROMOTIES AANGEWEZEN COMMISSIE IN DE AULA VAN DE UNIVERSITEIT OP • VRIJDAG 9 JUNI 2000 OM 14.15 UUR DOOR MARION ELEONORA INGEBORG BRIENEN, GEBOREN OP 28 APRIL 1965 TE CASTRICUM EN OM 15.15 UUR DOOR ERNESTINE HENRIETTE HOEGEN, GEBOREN OP 31 DECEMBER 1968 TE KITZBOHEL, OOSTENRIJK MIJNOSTEROE VAN JUSTME thiensch@ppehjk Onderzed- en Demaldiaterpai iz-GravGahage Chapter 18 Norway SCENERY Lying on the western side of the Scandinavian peninsula, and with a population of only 4,419,955,' the Kingdom of Norway is a country of mountains and fjords. Harald Fairhair (Harald rfagre), the Viking leader who united Norway around 900, is generally considered to have been the first Norwegian King. Local chieftains continued to rule the country and in the mid-14th century, Queen Margaretha united Denmark, Norway and Sweden in the great Nordic Union. Sweden broke out of the Union after a short while and then the plague swept through Scandinavia, killing all but one of the Norwegian chieftains. The country was left in disarray, and Denmark became the leading nation, eventually reducing Norway to a Danish province. The Union lasted until 1814. Ceded to Sweden in that year, and hungry for independence, Norway defiantly adopted its own Constitution on 17 May 1814. However, the Swedes pressurized their western neighbours and forced them to accept the authority of their King, although allowing Norway to retain its Constitution. Eventually the Norwegians seceded peacefully from Sweden in 1905, and thereupon became the Kingdom of Norway, with Prince Carl of Denmark accepting the invitation to become King of Norway. Norway is divided into 19 counties. As in the time of the local chieftains, and in contrast to the more centralized style of the Danes, the Norwegians still favour a decentralized administration of government. Unusual is that the national assembly (Storting) of Norway cannot be disbanded prematurely by the government. Elections are held every fourth year, to be concluded by the end of September (s. 54 Constitution). Because it is not possible to hold early elections, a crisis between the government and parliament can only be solved by reaching some form of consensus.' The national assembly, which is made up of two departments, the Lagting and the Odelsting, may obtain the opinion of the Supreme Court on points of law (s. 83 C.). Norway has six ombudsmen. 3 The ombudsman is of origin a typically Nordic institution. July 1998. 2 See, for instance, the Dutch daily newspaper NRC of 18 July 1997. 3 An ombudsman for defence (established through a parliamentary resolution of 21 April 1952), for conscientious objectors (November 1956), for public administration (June 1962), for consumer affairs (under the terms of the Marketing Control Act of June 1972), for equal opportunities (by legislation of June 1978) and the ombudsman for children (by legislation of 721 722 CHAPTER 18 The ombudsman makes recommendations, assessments, and criticisms which the relevant public bodies voluntarily comply with. March 1981). NORWAY 723 PART!: THE NORWEGIAN CRIMINAL JUSTICE SYSTEM 1 INTRODUCTION During the Union with Denmark, the Norwegian criminal justice system was gradually transformed by the introduction of Danish law and methods. In the process several tradi- tional Norwegian principles of criminal procedure, such as the participation of laymen and the principles of immediacy and orality, were gradually lost. Danish legal officials, initially appointed to assist the Norwegian lay judges with the preparation of legal documents, took over the role of both prosecutor and judge in 1604, the year in which a new criminal code written in Danish was introduced in Norway. The long distances to be travelled in a country with often severe weather conditions and inadequate means of transportation meant that witnesses were reluctant to appear in court. Therefore the professional judges, eager to deal promptly with criminal cases, began accepting written testimonies, and the principles of immediacy and orality lost much of their meaning in practice. After the Union with Denmark was dissolved in 1814, the Norwegians were keen to replace remnants of Danish domination, although it took until 1887 to introduce a new code of criminal procedure. Through this code, the traditional Norwegian principles of lay participation, orality, and immediacy resurfaced. 4 Formally, the new code of 1887 anchored the Norwegian criminal justice system in accusatorial principles such as the three just mentioned. In practice, however, Norwegian criminal procedure now also contains many more inquisitorial elements such as the search for substantive truth and the active role of the judge therein.' The judge is not bound by a confession of the defendant, and plea bargaining, in the sense of agreeing to confess in exchange for a lesser sentence, is clearly in conflict with the spirit of Norwegian criminal proceedings. Also, even if the prosecutor limits the scope of the indictment, the judge is not bound by the qualification of the prosecutor. Faced with the same criticism as Denmark, that its criminal justice system was not in concurrence with the European Convention on Human Rights because defendants sen- tenced by a jury had no right of appeal, the Norwegian Ministry of Justice paved the way to extending the rights of appeal with its 1992 'two-instance' preparatory work (NOU 1992:28, To-instansbehandling, anke ogjugordningi straffesaker) and subsequent legislation. Before the reforms, the High Courts (lagmansrett), sitting with three professional judges and a jury often, acted as courts of first instance for offences with a maximum prison sentence of 6 years or more. There was no appeal to the Supreme Court against the verdict, only against the sentence, although the judges could unanimously overrule the decision of the jury and order a re-trial. Since the reforms, all cases, regardless of their gravity, are first heard in the 4 Main source: C.F. Mulder and PJ.P. Tak, De bekennende verdachte. Een onderzoek naar de procedure voor de bekennende verdachte in het Deense en Noorse (straf-)procesrecht, Gouda Quint, Arnhem, 1993, pp. 65-67. 5 For an extensive analysis of the nature of the Norwegian criminal justice system viewed in the light of the position of the injured person therein, see A. Robberstad, Mellom Tvekamp og InIcvisisjon, Straffeprosessens grummstruktur belyst ved fomermedes stilling, Universitetsforlaget, Oslo 1999, in particular part II: Fra Lye/camp iii inkvisisjon — og tilbake gen? (From a duel to inquisition — and back again?), pp. 51-180. 724 CHAPTER 18 district court (byrett). The high court now acts as a court of appeal for all offences. Offences with a maximum prison sentence of more than six years are heard by a jury, other cases by three professional judges and four lay judges (see § 3.3). 2 GENERAL REMARKS AND BASIC PRINCIPLES In the above, several important principles of Norwegian law have already been mentioned. The principle of the participation of laymen in the criminal justice process is realized by involving lay judges and, depending on the gravity of the case, juries in the criminal proceedings (see §3.3). The principles of immediacy and orality can be found in section 296- I Code of Criminal Procedure, COP (Straffeprosessloven, strpl), which provides that witnesses should testify in person and orally, unless this is impossible for a special reason. Section 294 COP gives voice to the principle of the search for material truth. It explicitly gives the court the task of ensuring the case is completely solved, and, to achieve this, allows the court to call for new evidence and adjourn the proceedings. However, a judge may not take up a case on his own initiative (s. 63 COP). Another important principle is the principle of expediency which can be found in section 69 COP. Prosecution may be (conditionally) waived for a variety of reasons, one of them being that the defendant is prepared to pay compensation (see § 7.1 under B.5). Offences are formally divided into 'crimes' and 'misdemeanours'. An offence is a crime if it is punishable by more than 3 months imprisonment, otherwise it is a misdemeanour. A defendant who has confessed to an offence that has a maximum punishment of not more than ten years can be sentenced during a special simplified procedure, see section 248 COP.' 3 JUDICIAL AUTHORITIES AND CRIMINAL JUSTICE PARTNERS 3.1 Investigating Authorities' Investigations are initiated and carried out by the police (s. 225-1 COP). The Director of Public Prosecutions and the public prosecutor can order an investigation to be initiated or stopped, and give instructions on how it shall be carried out (s. 225-2 COP). There is no such thing as an examining magistrate in Norway. The Norwegian police force, which falls under the responsibility of the Minister of Justice,' is divided into 54 police districts, each one headed by a Chief of Police operating from the district headquarters. Geographically speaking, the police districts are similar in size but, depending on the population density, the amount of police personnel employed in each district varies from as little as twenty to more than 1,850 (Oslo). All police stations in a particular district are subordinate to the local Chief of Police. The country police stations (lensmannkontor) are staffed by somewhere between two and twenty rural police For an analysis of this procedure, and the comparable Danish one, see C.F.

Load more

  231

Copy Link