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Norway: New Regulation Adopted Reducing Right to In-Person Court Hearings, Increasing Web-Based Participation

(Apr. 9, 2020) On March 28, 2020, the Norwegian government issued a new regulation that limits the right to appear in person before a court while increasing the types of proceedings in which a court can require participants to appear via video link. (Midlertidig forskrift om forenklinger og tiltak innenfor justissektoren for å avhjelpe konsekvenser av utbrudd av Covid-19 (FOR 2020-03-27-459).) The regulation was issued under the new powers under the Corona Act (Koronaloven) (LOV 2020-03-27-17), which was adopted by the Norwegian Parliament on March 27, 2020.

The regulation, which provides rules to reduce attendance in courts, was adopted to promote the resolution of cases without risking the spread of the coronavirus. (Kongelig Resolusjon 20/1391, Midlertidig forskrift om forenklinger og tiltak innenfor justissektoren for å avhjelpe konsekvenser av utbrudd av Covid-19, Kongelig resolusjon. Statsråd Monica Mæland.)

Specifically the regulation provides that “[t]he court may decide that court hearings, in their entirety or in part, will be held as remote meetings, and interrogations will be conducted as remote interrogations, when it is necessary and unobjectionable. The court can decide that interpretations [oral translations] will be done remotely when justifiable.” (2 § FOR 2020-03-27-459, translation by author.)

The regulation further provides that when a remote meeting (via video or tele-link) cannot or should not be used, the courts may decide that the case should be decided only on the basis of written submissions, in cases of

  • continued pretrial detention (in accordance with the Criminal Procedures Act § 184, jf. § 185);
  • continued internment (in accordance with the Aliens Act § 106b);
  • upholding or issuing a restraining order (but not restraining orders that limit access to one’s own home) (in accordance with the Criminal Procedures Act § 222a); or
  • upholding revocations of the right to drive or confiscation of driver’s licenses (Traffic Act § 33 no. 3; 3 FOR 2020-03-27-459).

Cases on appeal may also be decided without in-person representation if both parties are provided a chance to comment on it in writing. (§ 4 FOR 2020-03-27.)

The law also allows judges to electronically sign judgments and other court documents using secure e-signatures when the Norwegian Court Administration so decides. (§ 6 FOR 2020-03-27.)

In adopting the regulation, the Norwegian Department of Justice noted that the regulation is necessary to ensure that parties continue to receive their constitutional right to a fair and impartial trial within a reasonable time period. (Kongelig Resolusjon 20/1391 at 2.)

On April 6, 2020, the Norwegian Court Administration reportedly asked for additional measures to ensure that the courts continue to function and decide cases, requesting that the Justice Department, and ultimately the Norwegian Parliament, let them decide certain cases with fewer co-judges, specifically reducing the number of judges from five to three in ordinary cases of the Lagmansrett (Courts of Appeal).