Tore Schei

The of and international collaboration with courts and justices

1. Introduction

For judges to stay in contact with, learn by and be inspired by colleagues in other countries, is not a new phenomenon. I will not dwell on history, however; instead I will explore the connections the Supreme Court of Norway and its justices currently hold with courts and fellow justices in other countries. These connections are, as you will see, considerable. In my opinion, this contact plays an important role in the quality of the decisions made and the work performed by the justices in the Supreme Court of Norway.

Much of the motivation behind the considerable contact and communication between national supreme courts and their respective justices, may be found in the internationalization of the law. For Norway, central issues include EEA membership and, not least, the incorporation into Norwegian law of major human rights conventions. Even without this internationalization process, international justice collaboration would likely have been useful, but the increased internationalization has made such collaboration absolutely necessary.

The international connections and collaborations of the Supreme Court of Norway must be seen in light of its general jurisdiction. The Supreme Court of Norway is the court of final instance in civil disputes, criminal cases, and administrative cases and it also serves as a constitutional court in the sense that the Supreme Court in a specific legal dispute or a criminal case may review whether laws and decisions comply with the Constitution. There is no justice specialization within the Supreme Court. All justices are assigned to all types of cases.

2. Various types of collaboration—an outline

International collaboration takes many different forms. The supreme courts in the Nordic region have formalized their collaboration with established meetings between supreme court presidents, seminars for supreme court justices, meetings between supreme court secretary-generals and meetings of the supreme court librarians. The Nordic supreme courts also collaborate more informally, with activities often involving other groups of employees as well. I will return to this in more detail later on.

Within the EU, there are various organizations for national supreme courts—one for the presidents of the general supreme courts, and another for the supreme administrative courts. The Supreme Court of Norway is an observer in both of these associations.

There is a European and a global association for constitutional courts, and the Supreme Court of Norway is a member of both. 2

There is also an international association of tax courts. The Supreme Court of Norway is a member of this, too, as well as participating in an association for justices working with environmental issues.

The Supreme Court of Norway has for many years communicated and worked with supreme courts in other countries. There is the Nordic collaboration, as already mentioned, but we also work or have worked closely with supreme courts in other countries.

Increased internationalization has also led to the establishment of various international courts. Some of these courts have a direct impact on our activities—primarily because their decisions serve as key sources of law in our own application of law. Some courts, established under specific human rights conventions, may also review decisions from national courts for compliance with the convention. The most important example in this regard is the European Court of Human Rights in Strasbourg. As the Supreme Court of Norway, we believe it is important to learn more about these international courts, and we have completed several study trips to international courts.

Every year, the Supreme Court is invited to a number of conferences and seminars. Some of the conferences focus on issues that are not particularly relevant to our activities, in which case we do not attend. However, there are also a lot of highly relevant events, and we participate in some—within the framework permitted by the nature of our work.

As you may notice, the international activity of the Supreme Court of Norway and its justices is considerable. Nevertheless, the court's workload keep us all quite busy. The individual justice has limited free time to engage in international collaboration. This is why we share this task. The Norwegian delegation to an international event typically consists of one or two representatives from the court. Even so, in some rare instances, all or a majority of Norwegian Supreme Court justices attend a specific event —such as the court's study trips to international courts.

3. The Nordic supreme court collaboration

3.1 Introduction

Without a doubt, the most important international collaboration for the Supreme Court of Norway is the collaboration and communication with the supreme courts of the other Nordic countries. This collaboration is mostly formalized, with established structures and settings, but there is also considerable informal collaboration, which includes large groups of employees.

3.2 Network of supreme court presidents

The annual meetings of the supreme court presidents are the heart of the Nordic supreme court collaboration. These meetings go back more than 50 years. The task of organizing the annual meeting of the supreme court presidents rotates between the different Nordic countries—, Finland, Iceland, Sweden and Norway. 3

It is said that it is Chief Justice in the Supreme Court of Norway who initiated these meetings. Wold was Chief Justice in the period 1958–1969, and these meetings did begin during his time of service. Meetings between the supreme court presidents were, however not, an entirely new concept. The Nordic legal professional's meetings have been held every third year since 1872—save for the war years in 1940–1945—and justices from all of the supreme courts in the Nordic region actively participated in these seminars.

Until 2002, only the supreme court presidents participated in the annual meetings of the supreme court presidents, and they brought their spouses along. True, these meetings were primarily social events, even though there also were work-related discussions that may have involved organizational or legal issues. The social side of the event is also important. The leader of a nation's supreme court may from time to time need to discuss various issues with others in a similar position, and, for that purpose, having this type of Nordic network is quite useful.

In 2003, significant changes were made to the organization of the meeting. Norway hosted the meeting that year, and invited the other countries. The agenda was revised to focus more strongly on professional topics and legal discussions. Spouses were no longer invited, which is in line with most other international forums. In addition to the president, one more justice from each of the respective supreme courts was also invited. In Sweden and Finland, the supreme jurisdiction is split, between a general supreme court and a supreme administrative court. Until 2002, only the general supreme courts of Sweden and Finland attended the meeting of court presidents. For the 2003 meeting, however, the presidents and one justice from each of the supreme administrative courts were also invited, and the collaboration has since included all of the Nordic supreme courts—the supreme administrative courts included. Furthermore, there was another, more “technical” aspect to the reorganization of the meeting, the meeting was moved out of the capital to another location in the country. This, too, has been tradition since the 2003 meeting.

In Norway, we have, in my periode as Chief Justice, chosen locations that we presume would be of interest for our Nordic colleagues, considering the opportunities provided by the meeting location in informing them of key areas of trade and industry, cultural heritage, etc. The meetings have been held at Utstein Monastery outside Stavanger (2003), which included a briefing on the Norwegian petroleum industry, in addition to the legal discussions, Svalbard (2008), which included a discussion on legal issues associated with the Svalbard Treaty and various environmental issues, etc., and Lillehammer (2013), which emphasized culture and cultural heritage, in addition to discussions of various legal issues.

These annual meetings of Nordic supreme court presidents last three days, including arrival and departure days. All the involved agree that the reorganization of the meetings has been a success, not least by making sure the meetings have a stronger legal focus.

So, which kinds of topics are discussed in the meetings of the Nordic supreme court presidents? The first item on the agenda never changes. The representatives from each country give an account of what has been going on in their respective courts since the last meeting. These accounts focus on changes in the composition of justices and key 4 organizational and administrative changes. The representatives also give a brief summary of key decisions from the court. This item on the agenda is important. It provides insight into the activity of our sister courts, and why these developments are taking place. Often, similar administrative, organizational and legal issues and problems will emerge in our own court as well. Insight into how this was addressed in one of the other Nordic countries is then essential.

Other topics include all kinds of administrative, organizational or legal issues that may be of relevance for the Nordic supreme courts. These may range from minor, perhaps even trivial, issues and matters, to major and key issues of principle, which may even affect how the courts relate to the legislative power and the executive power. Let me provide a few examples:

Recruitment to the supreme court is, of course, a hot topic—primarily the recruitment of justices, but also recruitment of other legal staff. We have discussed the application process and the level of influence the national supreme court has and should have in the selection of new justices. The issue of whether to make information about applicants publicly available has been discussed, as has the opportunity for justices to take on side activities. At several meetings, we have also discussed the use of law clerks. Independency issues has been debated. Several meetings have addressed the relationship with media.

Examples from legal topics discussed are the law-making function of the national supreme courts, and the role of Nordic supreme courts as constitutional courts. The meetings have also consisted of discussion regarding sentencing for significant types of criminal offences, such as those involving violence and drugs.

Issues in relation to the internationalization of the law have been frequently debated, as have other important and complex topics, for instance such as the prohibition against double jeopardy under the terms of the ECHR.

As you know, the relation to the EU is different in the Nordic region, with Iceland and Norway outside the union on one side, and Denmark, Finland and Sweden inside the union on the other. Iceland and Norway are, however, still closely connected to the EU through the EEA, which means that all the Nordic countries are faced with similar legal issues and challenges. In any event, it serves justices in the supreme courts of Norway and Iceland to stay up to date on the development of institutions and legal rules within the EU, even when these issues do not directly affect us. Key developmental trends within the EU have also been a focus of discussions at the meetings.

How are these Nordic meetings useful? Any answer to this question must be seen in light of the duties held by the presidents of the respective supreme courts. As Chief Justice, I hold the ultimate responsibility for the administrative and organizational aspects of the court's operations, while simultaneously serving as a justice like the other justices at the court, and I am always the presiding justice in the cases I hear. The organizational and administrative aspects of the operations of a court like the Supreme Court must continually be developed for the Supreme Court to properly handle its responsibilities. In order to achieve such administrative and organizational development, knowledge of what takes place in our sister 5 courts in the other Nordic countries is of vital importance. The legal issues we face in cases brought before the Supreme Court often have parallels in similar cases in the other Nordic countries. Over time, professional input from Nordic colleagues provide valuable insight and knowledge, which contributes to competence-building, and increasing the expertise of the individual justice in their role as justice and Chief Justice. In the context of these meetings, the informal element is also important. By knowing each other personally, it is easier to reach out when we need advice. I have personally taken advantage of this opportunity several times, primarily in organizational and administrative questions.

And finally regarding this matter: Why is a Nordic forum for supreme court presidents important? Could a forum of supreme court presidents from other countries potentially be equally beneficial for the Supreme Court of Norway? I believe the answer to the latter question is a clear no, and as for the first, the answer is partly related to a community of legal culture and partly to our linguistic common ground. The latter applies, however, only fully to Denmark, Sweden and Norway. In Finland, Finnish is becoming increasingly more prevalent, but so far, all supreme court presidents have been proficient in Swedish. Icelandic delegates will necessarily have to relate to the other Scandinavian languages as foreign languages, despite our shared linguistic ancestry. However, also from Iceland the supreme court presidents and many of the justices have been well familiar with Danish, Norwegian or Swedish. A third aspect that likely has contributed to the significance of the Nordic court president meetings, is the fact that it is a relatively small and manageable group. The small number of representatives has allowed us to get to know each other personally, gaining each other's confidence.

3.3 Nordic seminars for supreme court justices

The Nordic seminars for supreme court justices do not go back as far as the president meetings. The first seminar was held in 2007. They are held every year, save for every third year, when the Nordic legal professional's meeting is held. Each country can send up to eight supreme court justices. For Sweden and Finland, the eight delegates must be divided between justices in the general supreme court and the supreme administrative court. Traditionally, the presidents of the national supreme courts have also participated in the seminar for supreme court justices.

The topics addressed in the seminars for supreme court justices are similar to many of the topics discussed during the supreme court presidents' meetings. In the most recent seminar the contribution of supreme courts on the development of the law was a central topic. This topic had also been discussed at the presidents meeting the previous year. This is not atypical. Several of the supreme court president meetings have discussed difficult and complex topics of principle, where the conclusion has been that it needs to be discussed further in a seminar for supreme court justices.

3.4 Other types of formalized collaboration between the supreme courts in the Nordic countries

The secretary-generals of the Nordic supreme courts meet every year. While the court presidents also hold ultimate administrative responsibility for their respective courts, the 6 day-to-day administrative management falls to the secretary-generals. The secretary- generals also play a central role in resolving administrative issues, where the court president makes the final decision. The secretary-generals' meeting is an important forum for exchanging experiences. Being able to draw on experiences from the other Nordic supreme courts has been invaluable in the significant organizational development the Supreme Court of Norway has undergone in the last 10 to 15 years.

Annual meetings are also held between the librarians at the respective Nordic supreme courts.

3.5 Other types of collaboration between the Nordic supreme courts

The law clerks of the Supreme Court of Norway have traditionally communicated extensively with their Nordic colleagues. They have completed several study trips to other Nordic supreme courts, and we have also hosted groups of visiting law clerks from the other Nordic supreme courts. Typical topics of discussion include responsibilities and approaches. This exchange of experiences has been especially valuable for the Supreme Court of Norway, because we are about to embark on a considerable restructuring of the responsibilities of our law clerks—a process that also includes certain organizational changes. Our law clerks have also completed study trips to the ECHR, as well as the EFTA Court and the European Court of Justice.

Even executive officers who are not involved in legal tasks have visited the supreme courts of Denmark and Sweden to compare approaches to work and procedures, for the purpose of streamlining their work and improve quality-assurance.

The Supreme Court of Norway was established in 1815, modelled on the Danish supreme court—with the same procedures, type of operations and organizational structure. Much has changed in both the Supreme Court of Denmark and the Supreme Court of Norway in the 200 years that have passed, yet both courts have maintained many of the basic features. As a result, the respective supreme courts of Denmark and Norway have a unique and close connection. On an informal basis, several of the justices of the Supreme Court of Norway have completed study trips to the Supreme Court of Denmark, where they, for a week or two, have been given the opportunity to sit in on court proceedings, the votings and the drafting of judgments. This has been a most valuable experience in considering whether to change our own practices. The justices have also found it valuable to see how the Supreme Court of Denmark uses their law clerks in preparing for the hearing of the case, especially in light of the impending reorganization of the work of our law clerks.

As a result of this extensive collaboration with other Nordic supreme courts, we know our Nordic colleagues well. This relation—even friendship—means that the threshold for asking for advice in relevant issues is quite low. It would not be exaggerating in saying that the informal contact between the respective Nordic supreme courts is considerable.

4. Collaboration with other countries outside the Nordic region

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In the past, the Supreme Court of Norway has worked closely with some supreme courts in countries outside the Nordic region. Russia is one of the countries bordering Norway, and with the dissolution of the Soviet Union and a young democracy in Russia, it felt natural to reach out to the . The initial contact was made in the 1990s, and also in the first decade after the millennium there was frequent contact, including visits and return visits. Topics discussed included procedure—how to establish justifiable procedure— and human rights. For some years now, however, contact with the Supreme Court of Russia has been limited. We should reactivate contact with the Russian supreme court when the time is right.

In the 1990s, we also worked closely with Lithuania, and particularly the Constitutional Court of Lithuania. This was part of our effort to support the establishment of good, independent courts in a young democracy.

The same basic principle is the main thought behind our collaboration with the Supreme Court of Georgia. Groups of justices from our supreme court have visited Georgia twice to discuss law and procedure with justices of the Georgian supreme court, and twice groups of Georgian justices have visited Norway for the same purpose. This collaboration must be seen in light of Norway's long-standing effort to contribute to the development of robust courts, prosecuting authorities and lawyers in Georgia.

We have also collaborated with the Constitutional and the Supreme Court of Slovenia. This collaboration was established some years after the millennium, and the primary motivation was probably Slovenia's need to further develop these courts. This collaboration, which took the form of communication between groups of justices, provided valuable insight for the Norwegian justices as well.

From 2004, we have worked closely with courts in South Africa, particularly its constitutional court. South Africa's court system is highly advanced. This collaboration is a mutual exchange of experiences and ideas. Delegations of justices from Norway have visited South Africa, and vice versa. Organizational issues have often been a central topic of discussion. Originally, the motivation for reaching out to South Africa was likely politically motivated. Norway provided considerable financial and other support to the ANC under the apartheid regime.

For a while, the Supreme Court of Norway also worked closely with the Supreme Courts of China and Vietnam. This was a part of the dialogue regarding human rights which Norway maintained with these countries. Contact with China has been discontinued entirely. The dialogue on human rights with Vietnam is still on-going and active, as far as I am aware, but the Supreme Court of Norway has not been involved in recent years.

5. Study trips to and from foreign and international courts

As I have mentioned some international courts and tribunals have a great impact on our own jurisprudence. It is important for judges, including justices to be familiar with these courts, how they work and their decisions. That is why the Supreme Court, in my time as Chief Justice, has completed study trips to several international courts, where all justices have participated. We have visited the ECHR twice, where we have received briefings and have 8 had discussions with justices and members of the staff. We have also visited the EFTA Court and the European Court of Justice, where we have received similar briefings and have been engaged in similar discussions. Finally, we have visited all of the international courts located in The Hague.

In rare cases, study trips involving all or most of our supreme court justices have also been taken to national courts. We visited Finland's supreme administrative court to gain insight into how an administrative court works, and we have attended two seminars—one in Poland and one in Norway—with justices from Poland's constitutional court, to gain insight into how a pure constitutional court works, among other things to establish a basis for comparison with our own responsibilities as a constitutional court. In October this year a group of justices from our supreme court will visit the Austrian constitutional court, to participate in a seminar with the justices there. This seminar was initiated by the Austrian constitutional court, and a return visit from the Austrian court to ours will most likely take place in 2016 or 2017.

6. Participation in international associations

Earlier, I mentioned that the Supreme Court of Norway is an observer in the EU's associations for general and administrative supreme courts. In reality, we participate in these associations in much the same way as representatives of the member states. Our status as an observer and subsequent participation is valuable, partly because we may be affected by the same developments as the courts of the EU member states as a consequence of our EEA membership, and partly because it is relevant for us to stay informed of developments in law within the EU. We also participate, as I mentioned, in other international associations where we have full membership. Responsibility for following up on the activities within these associations is assigned to various justices.

7. Participation in seminars, etc.

Every year, a large number of seminars and conferences are held in various forums. The Supreme Court receives an almost equally large number of invitations to attend these events. Many of them are not particularly relevant, and in these cases the Supreme Court will, of course, decline the invitation. Some events are relevant, and then a brief presentation is forwarded to the justices, asking if anyone has the time and would be willing to attend. Often, the schedule will not permit any of the justices to attend, but if the invitation is received early, and the topic of the conference is of great relevance, one or two justices will often report an interest in attending.

Certain seminars require an attendance from the Supreme Court of Norway. In this context, I could mention the EFTA Court seminar, which has been held in the spring or early summer some years now, focusing on central topics from its area of activity. Given the role of the EFTA Court and Norway's membership in the EEA, the Supreme Court of Norway will make sure to be represented at these seminars.

8. International visitors to the Supreme Court of Norway

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A key aspect of the Supreme Court's international activities is the international visitors we welcome, including foreign justices and politicians working with law and justice. These delegations are often in Norway to study various aspects of the Norwegian legal system, and a visit to the Supreme Court of Norway is a must in this regard. These delegations are often welcomed by a couple of justices, the Secretary-General or Deputy Secretary-General and the Head or Deputy Head of the Legal Secretariat. If I'm not taking part in a court hearing when they arrive, I usually join my colleagues in welcoming the visitors. Unless our visitors have asked to be briefed on any particular subject, they usually receive an hour-long briefing on the Norwegian court system in general and the Supreme Court in particular, before they receive a tour of the Supreme Court Building.

A couple of these visiting delegations deserve to be mentioned. In the summer of 2003, I received a call from the American Embassy. The American Attorney General, Robert Ashcroft, was in Norway, and had requested to visit the Supreme Court to discuss matters of joint interest. As many of you may remember, Ashcroft was a central figure in the establishment and implementation of Guantánamo as a prison for prisoners suspected of terrorist activities. The prisoners at Guantánamo were often held without any charges or , and the treatment they received was beyond reprehensible. I gathered a group of justices, comprising Ketil Lund, Lars Oftedahl Broch and Karin Bruzelius, as well as myself and Secretary-General Gunnar Bergby. For a couple of hours, we engaged in intense debate over the use of Guantánamo, but also the American use of the death penalty. We didn't agree on much—or hardly anything—but in Ashcroft's defence, he had a pleasant personality and contributed to a good debate.

The second visit deserving to be specially mentioned was when the president of Vietnam visited Norway in 2008. At the time, Vietnam was undertaking a major court reform, and the president had asked to meet with representatives of the Supreme Court for an opinion on the reform proposals they had prepared. The subsequent discussion with the Vietnamese president was both engaging and insightful, as the president was very knowledgeable about the activities and significance of the courts.