The Court Fees Act is based on a fundamental and intuitive principle: the party who requests a judicial measure is the fee-liable party. In enforcement proceedings, this is normally the creditor or other requisitioner who asks the state to carry out an intervention. In bankruptcy, the situation is similar: bankruptcy is opened upon petition, often from a creditor, or from the debtor himself – but in that case, the debtor acts as the requisitioner. The legal-policy logic is orderly: the party who sets the procedural machinery in motion bears the court fee.
The preparatory works to the Act, Ot.prp. no. 18 (1982–83), consistently emphasize legal protection. It is stressed that the fee system must not have an excluding effect and must not lead to loss of legal rights – understood as situations where someone loses the opportunity to have a case or a legal remedy reviewed because they are unable to pay. These considerations are not peripheral in the legislative history, but the very precondition for the fee system being defensible in a rule-of-law state.
Read also: Norwegians without access to decisive case law
The legislature was aware that fees can function as a barrier. Therefore, safety valves were established to prevent fees from becoming a procedural trap.
Two elements are particularly central.
Taken together, the structure of the Act is clear: the state may charge for judicial work, but must not price people out of access to legal remedies.
Taken together, the structure of the Act is clear: the state may charge for judicial work, but must not price people out of access to legal remedies.
In practice, however, a slippage can occur in certain enforcement and bankruptcy processes. A debtor challenges an enforcement measure or a bankruptcy-related decision. The complaint is treated as a new procedural step that automatically triggers a fee. As a result, the person affected by a state intervention is treated as if he himself were the driving procedural party – even though he did not initiate the process, but is merely attempting to have the legality of an intervention to which he has been subjected reviewed.
Read more: Can we trust the EIU Democracy Index?
This is where the system risks short-circuiting. Legal bases and fee logic developed for the requisitioner – the party who requests enforcement or bankruptcy, or who appeals because he did not prevail – are applied to the affected party. This despite the fact that the structure of the Act explicitly distinguishes between these roles. The requisitioner triggers the state’s use of power. The affected party needs judicial review in order to clarify whether that use of power was lawful.
In Norway, the judicial branch also has a relatively weak constitutional role. The courts function largely reactively and “on demand”: constitutional review does not occur on the court’s own initiative, but presupposes that legal subjects themselves bring questions before the courts, often through a long process from the lowest instance and all the way to the highest level. Very few have the financial resources and personal capacity to complete such a process. The result is that few cases are actually reviewed constitutionally.
Read also: Weak Norwegian popular rule compared with many other countries
When constitutional questions are rarely brought all the way forward, decisions at lower levels acquire greater practical significance than the system ideally presupposes. Court decisions become established case law for subsequent cases, even where the legislature’s intentions have not been explicitly tested. This is not an expression of individual arbitrariness, but a structural consequence of how the legal system is designed.
The practice of charging court fees to affected parties contributes in this context to a further weakening of constitutional review of legislation enacted by Parliament. When access to complaints and review is made conditional on advance payment by the party already subject to a state intervention, the likelihood that principled questions will actually be brought before the courts is reduced.
Since there is limited direct democratic control over lower courts in Norway, this entails a risk that judicial practice over time develops in ways that do not fully correspond with the intentions of the legislative assembly. In the extreme, this may lead to the necessary balance of power between the legislative and judicial branches being weakened, such that legal development in practice is shaped by other forces rather than by expressed legislative intent.
The problem with court-fee practice is intensified in non-dispositive proceedings. In ordinary dispositive civil disputes, one can in theory choose not to bring a case. In enforcement and bankruptcy, the situation is often the opposite: one is drawn into the process. Enforcement can directly affect housing, assets, and livelihood. Bankruptcy can entail extensive restrictions on disposition, while the party role becomes unclear because the estate acts as an independent procedural subject. When such interventions are met with requirements for advance payment in order to have a complaint or appeal heard, the weakest party must in reality buy a ticket to have the legality of the state’s intervention reviewed.
When such interventions are met with requirements for advance payment in order to have a complaint or appeal heard, the weakest party must in reality buy a ticket to have the legality of the state’s intervention reviewed.
This is difficult to reconcile with the idea of effective judicial review. The courts are meant to be the control mechanism over the exercise of power, not a payment checkpoint before control can even begin.
Read also: Rettspraksis.no makes applicable law accessible to everyone without a paywall
A particularly principled and demanding situation arises where a debtor in bankruptcy-related disputes is met with the claim that he is not a proper party or has limited standing, while at the same time being required to pay a fee in order to have precisely the questions of party status, protection, and validity reviewed. If party standing is disputed, access to legal remedies is also weakened. When fees are nevertheless required, the individual is treated as a procedural party for payment purposes, but not for the purpose of substantive review. Such mechanisms can in practice produce loss of legal rights.
When fees are nevertheless required, the individual is treated as a procedural party for payment purposes, but not for the purpose of substantive review. Such mechanisms can in practice produce loss of legal rights.
To bring the system back into alignment with the legislature’s intent, two measures stand out.
Without this, the safety valves become paper protections, and the court fee risks functioning as a lock on the rule of law and its central role in democracy.
De fleste av artiklene på Oagal er utarbeidet av redaksjonen. Innholdet fra redaksjonen er det fortløpende redaksjonelle arbeidet i Oagal. Redaksjonen driver undersøkende journalistikk, utvikler ideer til saker og utarbeider artikler ved hjelp av ulike tilgjengelige kilder og verktøy. Meningsbærende innhold og også reportasjer bærer skribentens navn.
0 Comments