Remedies and enforcement

AuthorLøvdal, Lene
Pages59-74
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6 REMEDIES AND ENFORCEMENT
6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,
Article 9 Directive 2000/78)
In Norway, as a general rule, the procedures for addressing discrimination issues are the
same for employment in the private and public sectors.
a) Available procedures for enforcing the principle of equal treatment
In Norway, there are no special procedures for enforcing the principle of equal treatment
if the case is taken to the courts, as this follows general legal principles.
The procedures for enforcing the principle of equal treatment in Norway are listed below.
For matters within the scope of the WEA, the law itself has a special procedure to be
followed in the ordinary court system (WEA, Chapter 17), which gives a number of clear
timelines. Most individual conflicts regarding labour issues, for example regarding hiring
or dismissals, go through these procedures.
For the enforcement of the GEADA within the ordinary civil courts, discrimination cases
follow the ‘normal’ procedural rules for civil cases as set out in the Dispute Act.193
There are no specific procedural rules when forwarding a case to the administrative
dispute mechanism, the Equality Tribunal, other than those laid out in the Act on the
Equality and Anti-Discrimination Ombud and the Anti-Discrimination Tribunal (EAOA),
described below in chapter 7. This is part of its role as a low-threshold and low-cost
conflict resolution institution. There are no fees, and the procedures are based on the
idea that individuals with no knowledge of the law should be able to complain directly to
the tribunal with no legal aid.
As for criminal procedure, the GEADA and the Penal Code contain a few articles
concerning discrimination. Such cases qualify for criminal procedure before the courts.
Article 39 of the GEADA states as follows:
A penalty of a fine or imprisonment for a term not exceeding three years shall be
applied to any person who jointly with at least two other persons commits an
aggravated breach of the prohibition against
a) discrimination on the basis of ethnicity, religion or belief in article 6,
b) harassment on the basis of ethnicity, religion or belief in article 13,
c) retaliation on the basis of ethnicity, religion or belief in article 14, or
d) instructing a person to discriminate on the basis of ethnicity, religion or belief in
article 15.
Any person who has previously been penalized for breach of this provision may be
penalized even if the breach is not aggravated.
When assessing whether a breach is aggravated, particular weight shall be given to
the degree of culpability, whether the breach was racially motivated, whether it
constitutes harassment, whether it involved physical assault or serious violation of
another person's mental integrity, whether it is likely to cause fear and whether it
was committed against a person under the age of 18.
193 See Act of 17 June 2005 No. 90 relating to mediation and procedure in civil disputes (the Dispute Act), see
http://app.uio.no/ub/ujur/oversatte-lover/data/lov-20050617-090-eng.pdf.
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Before an indictment is issued in respect of a matter specified in the first
paragraph, consideration shall be given to whether a civil penalty would be
sufficient.
The provisions on the burden of proof in article 37, first paragraph, do not apply in
connection with enforcement of this provision.’
Articles 185 and 186 of the Penal Code concern hateful expressions and refusal to
provide goods and services. These are applicable in relation to discrimination because of
skin colour or national or ethnic origin, religion or life stance, sexual orientation or
lifestyle194 and disability, but are not applicable to claims in respect of age, gender or
gender expression.
b) Barriers and other deterrents faced by litigants seeking redress
The low rate of court litigation in Norway is due to the risks and costs involved in
litigation, and the difficulties in obtaining free legal aid in discrimination cases, among
other factors.
It is not a procedural requirement to be represented by a lawyer or legal practitioner in
court, as it is given as a right but not a duty - to use counsel. The key costs of the
judicial proceedings in civil cases are, however, the fees linked to legal counsel that is,
the fee of the lawyer. Where a claimant/victim is not represented by legal counsel, the
judge has an extended or specific duty to advise the complainant/victim of procedural
matters that might be of relevance to the case. The court also has a duty to assist the
complainant/victim in setting up a proper writ summons to start the case, and to assist in
making an appeal, as long as the complainant/victim appears in court and asks for
assistance.
There is furthermore a large economic risk linked to costs of proceedings. The general
rules on costs of proceedings in discrimination cases before the ordinary courts are found
in Chapter 20 of the Dispute Act, and are also applicable in discrimination cases. The
general rule is that the successful party is entitled to full compensation for their legal
costs from the opposite party (Article 20-2(1) of the Dispute Act). The court can exempt
the opposite party from liability for legal costs in whole or in part if the court finds that
‘weighty grounds’ justify exemptions (see Article 20-2(3)). There is also the possibility, in
exceptional cases, that the cost of litigation can be shared between the parties, even if
the main case is lost. This has happened in only a very few discrimination cases: in a
case from March 2012, the Supreme Court found that the losing party did not have to
pay due to the uneven level between the parties, irregularities in the handling of the case
during the hiring process and the importance of the case for the claimant. 195 In an
unpublished case from the Oslo municipal court (first instance) the judge found that the
claimant who claimed to be discriminated against based on age despite losing the case
- had a due reason to have the case tried in court, as she considered herself the victim of
discrimination. The cou rt stated that ‘there must be a possible option to have the case
tried in court even though this belief was unfounded’.196 Similar views were expressed in
another case in the appellate court regarding discrimination on the basis of disability
(blindness) in which the claimant lost the case but where the employer was partly to
blame for the events that led to the dispute.197 A claimant who was led to believe by
194 In a legal context, this means being married to or living with, in a marriage-like relationship, a person of the
same sex or gender, and only applicable in religiously based organisations or workplaces. See the definition
in section 2.1.1 of this report.
195 Supreme Court judgment of 5 March 2012HR-2012-580-A.
196 Oslo municipal court, Judgment of 29 June 2007 in Case 07-036427 TVI/OTIR/10.
197 See the Eidsivating appellate court/ court of second instance, Judgment of 6 July 2007 (Case LE-2006-
189239), the ‘music teacher judgment’. This judgment was passed before the enactment of the AAA, thus
the merits of the case was assessed according to the WEA, where disability was included as a ground of
discrimination before the AAA was enacted in 2009.

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