29 MAY 2002
NORWAY / INFO
Recruitment, promotion, transfers, career, mobility
The Prosecuting Authority in Norway has its statutory basis in the Criminal Procedure Act whereas the courts are set up by the Constitution and a separate Court Act.
Both judges and prosecutors must hold a law degree. There is no obligatory education or training for judges or prosecutors. The basis for recruitment is therefore the same for the two professions.
The Prosecuting Authority in Norway is organised on three levels: The prosecuting Authority within the police (27 districts), regional prosecutors (10 offices) and the Director of Public Prosecutions. In addition prosecutors work in the National Authority for Investigation and Prosecution of Economic and Environmental Crime (ěkokrim) and in the Security Police. Prosecutors within the police are normally recruited among relatively young lawyers. Currently, too many of these prosecutors only stay with the police for a few years before they move to better paid jobs e.g. in private law firms. This, of course, reduce the efficiency of that service. Regional prosecutors and prosecutors at the DPP-office are mostly recruited from the Prosecuting Authority within the police, although we have lately seen more lawyers from private practice as applicants to these higher positions.
The judiciary is also organised on three levels: District Courts, Courts of Appeal and the Supreme Court. The Prosecuting Authority is not in any way attached to specific courts. Assistant judges in the District Courts are often lawyers who have recently graduated with good marks. Other judges are recruited from most legal environments, including the Prosecuting Authority. It is not seen as a problem that prosecutors are appointed as judges, or vice versa, although the latter is rather uncommon. The former DPP is e.g. now a Supreme Court judge and several regional prosecutors are recently appointed as judges in the Courts of Appeal and the District Courts.
Prosecutors within the police have police ranks and may advance in the internal hierarchy. With one exception, all local chiefs of police hold a law degree. On the regional level, however, there is no internal hierarchy. There is an administrative head of the regional office, but s/he cannot interfere with the prosecutorial decisions of other prosecutors. On the DPP level all decisions are taken by the DPP himself or the deputy director. Other prosecutors at the DPP-office act on behalf of the DPP.
Both judges and prosecutors are independent, although the formal basis for their independence are somewhat different.
Judges cannot be instructed by anybody and act completely independent of the executive and legislative powers. Only a higher court may overturn a judgement. Judges are presently appointed by the King in Council (the government as cabinet), but this is about to be altered. (Appointments will then by made by an independent institution.) Judges may only be dismissed by a court decision.
The DPP – and consequently the Prosecuting Authority as a whole – is independent from the Ministry of Justice. No individual minister can give instructions in matters of prosecution. Only the King in Council may prescribe general rules and give binding orders as to how the DPP shall discharge his duties (the Criminal Procedure Act section 56). In theory, this gives the Government as a cabinet the power to instruct the DPP in individual cases. Since the Prosecuting Authority was established in 1887 this has never happened. Any actions in that direction would be politically impossible. The Parliament has several times underlined the importance of an independent Prosecuting Authority. The Judiciary Committee of the Parliament stated e.g. in May 2001(Innst. O. nr. 89 (2000-2001), page 2):
"… in a democracy it is vital that a politically independent Prosecuting Authority govern the investigation done by the security police, so that the investigation of criminal cases is not influenced by party-political considerations. (Innst. O. nr. 89 (2000-2001)(Unofficial translation) .
This statement was given under the parliamentary handling of an amendment of the Police Act concerning the security police, but the same undoubtedly applies in general.
The DPP has under consideration to form a working group whose mandate also may comprise the formal independence of the Prosecuting Authority inspired by the Recommendation (no. 14).
Prosecutors are appointed by the administration and, on higher levels, by the King in Council. They can only be dismissed by a court decision.
The independence of the prosecution service is an important and interesting topic well suited for discussions and development within the conference of prosecutors general in Europe. Although many of us regard independence as crucial, a closer scrutiny may reveal that the notion of independence is not always clear. It may well by argued that "independence" for judges and prosecutors is not necessarily the same thing. A prosecution service is in many countries a part of the executive and should - at least in principle - be accountable to someone. As outlined above, in Norway the DPP may - theoretically - be instructed by the King in Council and he is thus accountable to the government as a cabinet. The government must answer to the Parliament. The Prosecuting Authority is thus formally under democratic control. Under our system, it is probably only two alternatives to this system: The Prosecuting Authority is responsible to the Parliament, or not to anybody except the courts. The courts, however, only deal with the cases brought before them, e.g. there are very limited possibilities for an alleged victim to challenge a decision by the Prosecuting Authority not to prosecute. (A civil case, or a private penal case, does not "control" the Prosecuting Authority.)
Hierarchy and disciplinary procedures
As already mentioned, the Prosecuting Authority is organised on three levels. In addition to the authority to instruct the police, prosecutors on a higher level may instruct prosecutors on a lower level. Unlike the court system this may also be done in individual cases handled by a lower level. Prosecutorial decisions may also, not unlike the court appeals system, be brought to a higher level and there overturned on specific conditions.
Prosecutors are under the same disciplinary rules as all other civil servants.
Freedom of expression
Prosecutors and judges are, like every other citizen, guaranteed the right to free speech under the Constitution and the European Convention on Human Rights art. 10. Prosecutors have, however - unlike judges - a duty to be "loyal" to their employer. What this notion implies is not clear, but the limits for what prosecutors may say or write is very wide. It is hard to be more precise since we do not have any examples, neither from the courts, nor from administrative bodies, of prosecutors who has been found to be in breach of their duty to loyalty. Prosecutors have e.g. publicly stated that they think the use of narcotic drugs should be legalised, in sharp contravention to the official policy, or that if they were raped they would not report it to the police. None of this has led to any formal sanctions.
More interestingly than the formal limitations for prosecutors freedom of expression, is perhaps whether or not prosecutors should be encouraged to participate in public debate on issues relevant to their work. In Norway e.g., the DPP is quite active in the public debate (in addition to participation in hearings, conferences etc.) on general policy issues such as whether there is any need for new investigate methods (tapping, surveillance, anonymous witnesses etc.), how allegations of misconduct within the police should be investigated, whether the established sentencing-level in e.g. rape-cases is adequate etc. Furthermore, the DPP actively encourages prosecutors to participate in public debate as they have knowledge and experience that it is important to share with the public.
Remunerating, pension rights
Prosecutors are currently paid less than judges. Traditionally, the regional prosecutors have been paid approximately the same as judges in the Court of Appeal. This was altered a couple of years ago when the wages for judges were lifted considerably. Pension rights are the same for all civil servants.
The powers and duties of the Prosecutors are regulated in the Criminal Procedure Act and the Prosecution Instructions given by the King in Council. These regulations are quite detailed. Please find the Criminal Procedure Act of 1981 with subsequent amendments until July 1998 as an attachment to this mail. The act is later amended several times, but not in any significant way concerning the Prosecuting Authority. Regrettably, the Prosecution Instructions are not translated to English.
There are provisions in the Penal Code that is specifically designed to prevent illegal actions from civil servants, prosecutors included. Please find attached the Penal Code of 1902 with subsequent amendments until 1994. By way of example it may be mentioned that there are provisions concerning active and passive corruption, use of illegal means to obtain a confession of guilt, illegal searches and arrests, false statements and protocols, breach of professional secrecy etc, see chapter 11. Practically important is section 325 no. 1 making punishable gross lack of judgement in the course of duty.
In cases concerning allegations against police-officers and prosecutors of the commission of criminal acts in the course of duty, the investigation is conducted by special criminal agencies (SEFO). There is a SEFO-organ in every prosecution region (10) consisting of a judge, a lawyer and a police-officer.
There is no specific code of ethics for the Prosecuting Authority, but the DPP has decided to form a working group to prepare a proposal for a national Code of Conduct for the Prosecuting Authority in line with recommendation 35.