The two judges in the Breivik-case were actually "picked" for the job, hence the case was not distributed to the two judges according to law. A further consequence of this unprecedented procedure is that these two judges (from an objective point of view) are considered to be disqualified and the judges should obviously have recused themselves, see the Norwegian Court Administration Act § 108 (NCAA). Consequently the court was not legally constituted, and there has to be a retrial.
The actual cause to this conclusion stems from the simple fact that cases filed with the court are supposed to be distributed to the judges by a system which automatically selects the next judge from an alphabetically arranged list, or by similar automatic systems, see e.g. Principle 2, paragraph e, the Council of Europe, Recommendation No. R (94) 12):
Principle 1, 2, e:
"The distribution of cases Should not be influenced by the wishes of any party to a case or any person Concerned with the results of the case. Such distribution may, for instance, be made by drawing lots or of a system for automatic distribution According to alphabetic order or some similar system. "
This means that a judge acting within a fair and legitimate legal system will never be asked to "take" a case. Such questions will simply not occur. Consequently, an independent judge who works at an independent tribunal will never face a situation where he/she must answer yes or no to participate in a case. There are basically two reasons for a judge to say no to a case (a situation which only occurs after the distribution of a case), and that is in cases of serious illness or conflict of interest. It follows from this that a judge can only process cases which have been lawfully distributed to him/her.
It appears from Norwegian press reports that Geir Engebretsen (Magistrate of the Oslo City Court) on an early stage of the case, in secret had decided which judges he thought were best suited to handle Anders Behring Breivik. Mr. Engebretsen has thus simply, and in accordance with his personal opinion, not the law, “picked” the judges who he thought were best suited to assess and determine the state's charges against Anders Behring Breivik.
According to Dagbladet and NRK Mr. Engebretsen – after having decided who would get the job sentencing Breivik – in secret considered the impartiality of the "chosen ones", that is, to make sure that Mr. Breivik would not have any reason to dispute and recuse the judges (personal or factual). When Mr. Engebretsen finally finished this unprecedented exercise, he then approached the two judges and told them that they are impartial, that they can get the job if they want to, and that this (obviously) was completely up to them to decide (i.e. voluntary). There is no legal basis in Norwegian law that comes even close to grant Mr. Engebretsen the mandate he actually carried out in November/Desember 2011. What Mr. Engebretsen did is a crime, which more than indicates that the actual court hearing was – for some reason or other – just a play for the masses.
Any question of conflict of interest (impartiality) is by law placed in the hands of the judge who has received the distributed case file. By definition a question of conflict of interest and recusal will in most cases not occur before the case has been distributed to the given judge, cf. NCAA § 113, first paragraph: "... if a judge finds that he is in a position that gives the parties ..."
The law thus does not provide for a judge to poke his way through the court dockets before the cases are distributed, this to get a general idea of which cases will suit which judges (his chosen ones). Neither does the law provide for a judge to in absolute secrecy assess and determine the neatly picked judge's impartiality, and eventually ask the judge if he / she wants to take the case, voluntarily, while stating to the judge in question that he / she are in no conflict of interest. Despite the lack of legal basis, this is precisely what Magistrate Engebretsen has done, which in itself must be classified as the resignation of 2011.
I am sorry for repeating myself, but this is important: The NCAA requires the opposite of how Mr. Engebretsen operates and manages the Oslo District Court, namely that the case files are first to be distributed (randomly, see above) to the given judges. A judge is subject to strict rules of impartiality, but it is only at this point during the course of the administration of the case that the judge will receive motions / petitions from parties concerning his/her impartiality, requests which initially will be considered by the judge who has been assigned to the case, cf. presumably NCAA § § 112 and 113. To put it in other and perhaps simpler words: When a case is brought before a court, the system distributing the given cases, is – and should be – constructed in such a manner that the next case on the docket is automatically distributed (unhampered) to the next judge on the list. And it is at this later point, not before, that a case has become the responsibility of a judge. Any motion contesting a judge’s impartiality has to be filed as early as possible, but obviously not before a judge has been assigned the case. Mr. Engebretsen has, with the almost obvious willing help from the Media, manipulated the Norwegian people – and the rest of the world – to believe that he can assess and determine any question of conflict of interest, before the case has been assigned to a judge. It’s quite remarkable. There are many nuances with regards to impartiality, but I have chosen to weed these out to make the problem – and (hopefully) the conclusion – more cleare.
The Engebretsen-scheme is contrary to the very foundation of judicial independence, of which the allocation process is a part of, namely that a case is to be distributed to a judge by a system which ensures that no one can influence or corrupt the process. Neither the Magistrate nor any other judge are mandated to sit down and pick cases they like and opt out cases they don’t find interesting for their practice at the court. If we are to follow the Engebretsen-scheme, God forbid (but then again; no one knows how far this has come in Norway), we will soon end up with judges who “pick” cases solely to damage a person they do not like, or break down a social system they don’t agree to. Such a scheme may also contribute to an internal “battle for cases”, which of obvious reasons leads to factions within the courts; 1) those who like the boss – because he picks them for many interesting cases – which in turn lead these judges to act as they may see fit to have him/her like them even more, and 2) those who are independent and thus falls outside and remain stuck with the crappy stuff, to put it in straight words.
Although it appears that Judge Arntzen have understood the principles (of which was meant to create and protect an independent judiciary) better than Engebretsen did, see her statements to the Dagbladet 23 December 2011:
"It's part of my job as a judge, that I shall carry out the jobs that are imposed on me"
this has no effect on the outcome of the Breivik-hearing. The trial remains void. By the way, Mrs. Arntzen’s immediate reflex reaction, as an independent judge, should have been:
"Sorry, Geir. I understand by this that you have "picked" me. As I am an independent judge, also in regards to you and your wishes, I have to reject your request. Consequently I consider myself to be biased and I recuse myself."
Take note, also, that in this picture, a judge who obviously is in conflict of interest and is aware of this but nevertheless fails to voluntarily recuse himself/herself, should be publicly censured for misconduct by the Judiciary Commission (Tilsynsutvalget for dommere). I understand that some of you Norwegians are laughing out loud now (i.e. this will never happen in Norway), with good reason, which in itself demonstrates how wrong it has all gone with Norway, its judiciary and the ridiculous Judiciary Commission of which the Chairman of the Committee still hasn’t realized that the rest of the people laugh at – and suffers under.
It seems obvious that Arne Lyng has not realised his position in the legal system, which he demonstrates by his statement to the press:
"I was asked on Monday and agreed to the task. I was not in doubt. "
That he was not in doubt, confirms that Mr. Lyng on other occasions may have been in doubt; that he has faced such issues before; and that Mr. Lyng believes that he can opt out cases he does not want to be involved in. This indicates that Mr. Lyng has not grasped the big picture of judicial independence, and what this concept rests upon, namely – in part – the principle of random distribution of court cases. Now, certainly the Oslo District Court judges think I'm very unfair as the small single judge courts never face these problems, so why should I thus pick on
I believe that Mr. Engebretsen actually doesn’t know what he's playing with, which became even more apparent when he made it clear to the press, just before last Christmas, that the two judges in question were his “first choice”. By this (from a judicial point of view) horrific statement, it becomes evident that Magistrate Engebretsen had picked a number of other judges as his "second and third choice", should the first choice refuse, please see VG 23 December 2011:
"Those two were the court's first choice, and both agreed to take the job without a doubt."
As stated in the press headlines, the “distribution” of the Breivik-case is clearly influenced by Magistrate Geir Engebretsen (and those who control him) and by his motives. Furthermore the VG's reports from the press conference confirms that Mr. Engebretsen in secret reviews cases (at least the more "interesting" cases), picks the judges or the team of judges, evaluates and determines the judges' impartiality (conflict of interest), develops a plan B if "the chosen ones" say no, offer the cases to “the chosen ones” and leave it up to their own discretion whether to accept the job or not. To put it in simple terms: Mr. Engebretsen has taken control over Oslo District Court and introduced anarchy (or corruptarchy) in its jurisdiction, this without the slightest protest from any journalists, jurists or lawmakers. Amazing.
The main hearing against Breivik should thus be nullified and there should be ordered a retrial. The administration of case against Breivik must consequently be reversed and repeated by a new team of judges, that is, from the time Mr. Engebretsen first put his hands on the case. That this will cost Norwegian taxpayers another billion (or whatever the actual amount is), is Engebretsen's problem, not ours.
Magistrate Engebretsen is evidently familiar with the role of a judge, and what constitutes an independent judiciary. In this light and in the light of what Mr. Engebretsen has done, a criminal charge should be filed against him, as well as a compensation lawsuit based upon the financial loss he has caused the nation, and all those involved.
Allow me to warn those of you who have not yet discovered it, that Mr. Engebretsen’s special private procedure, which seems to have been hailed by the media, is in itself a confirmation that this procedure is neither uncommon nor considered unfortunate among the leaders and deputy leaders in
As you will see from the above, we are not faced with a random assignment of cases, but rather with a deliberate unlawful selection of judges, which in itself is a confirmation of a judicial system and a court in decay.
And let me finally provide those of you who balance your justice with national security, with a few (perhaps) cryptic words; the independence of the courts supersedes the Security Act and its regulations. Put in another way: The Security Act (and its regulations) is – in so far as these may affect the independence of the courts – clearly in violation with the Constitution, this as the concept of judicial independence is incorporated in the Constitution.
The Norwegian Court Administration Act § 12, third section, § 21, third section, § 91, first section, letter e, and the Security Regulation, Chapter 7 is thus in conflict with the Constitution and its principles that judges and courts should be independent, this as these aforementioned provisions actually allow a few specially selected judges, to pick individual judges and team of judges to process cases concerning national security and its alike, a procedure which is obviously contrary to the Constitution.
What these provisions do not explicitly say, but which nevertheless can be interpreted from the text of Chapter 7 of the said regulation and therefore should be a key theme / issue in the discussion about the courts and judicial independence in general, is that many of the nation's judges do not have security clearance, and hence do not have the government’s trust!!! These judges will therefore never be asked by Engebretsen & Co if they fancy to take on a juicy case. Do you think that
Herman J Berge