NORWAY Trends and Developments Contributed by: Knud Jacob Knudsen, Nicholas Foss Barbantonis, Jenny Sandvig and Oda Lauksund Engamo, Advokatfirmaet Simonsen Vogt Wiig
similar claims could be made concerning the Constitution. The court noted that the preparatory works to the Dispute Act did not support separate judg- ments for breaches under the Constitution and the EEA agreement, as this would significantly deviate from established Norwegian procedural law. Central to the assessment was whether the same considerations apply to the Constitution as to the ECHR and ICCPR. It was determined that the principles of effective remedy and sub- sidiarity, which underpin the rights to declaratory judgments for ECHR and ICCPR violations, do not similarly apply to the Constitution. This is primarily because constitutional violations are not subject to international review, unlike ECHR and ICCPR breaches. The right to an effective remedy follows from Article 13 of the ECHR and Article 2(3) of the ICCPR and means that there must be access for an international review of allegations of con- vention violations, and that the relevant author - ity must be able to provide effective remedies for violations. The Court emphasised that unlike the ECHR and ICCPR, the Norwegian Consti- tution does not explicitly mandate an effec- tive remedy. However, it is implied that such a remedy is ensured through the general right of judicial review by the courts. Consequently, the court ruled that declaratory judgments for con- stitutional breaches should not be confined to individual rules but should allow for a broader evaluation of various rules and their contextual interplay. The Supreme Court ruled that the special con- siderations applicable to declaratory judgments for breaches of the ECHR and ICCPR do not
apply to breaches of the Constitution, as the courts’ application of the law should not be confined to individual rules. The courts should have the opportunity to assess various rules and possibly consider them in context. This decision underscores that judicial review of violations of the Constitution should not be limited to iso - lated provisions; rather, it should encompass a broader evaluation of various rules and their contextual interplay. Under Norwegian law, a lawsuit must have suf- ficient relevance to proceed. The Supreme Court emphasised that for a declaratory lawsuit con- cerning a breach of a rule in the ECHR or ICCPR to be considered relevant, the lawsuit must be filed within a reasonable time after the alleged breach. Furthermore, the nature of the alleged violation is an important part of the assessment. However, the court advised that the relevance requirement should not be rigidly applied to cas- es involving coercive measures against personal integrity, considering the lawsuit’s significance to the victim and its potential to set a precedent. Factors such as the lawsuit’s significance to the victim and the potential for the judgment to set a precedent are also considered in determining relevance. This decision clarifies the application of the Dispute Act Section 1-3 to constitutional viola- tions and sets parameters for the judicial review of such claims, highlighting the broader scope of assessment that the courts are expected to undertake. The official translated summary of the ruling can be read here .
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