TSUNAMI OF JUSTICE SCANDALS HITS NORWAY

At least 68 persons have unlawfully been jailed, while at least 2400 persons have been unlawfully forced to pay back social benefits they have received. The number of unlawfully convictions has recently been adjusted to "probably 80". «The number will probably rise», says acting Chief Justice Maeland.

../1

 

Responsible for and implicated in the scandal is in first instance NAV - The Norwegian labour and welfare administration, an agency under the The Work and social Department. The agency is responsible for all work-, health-and social security issues. NAV has over years interpreted Norwegian law in opposition to the EEA agreement rules of "free movement", also not recognising the agreement’s precedence over local law, should conflict arise.

The EEA agreement does not give Norwegians the right to go abroad for short periods if reciving social benefits, NAV has maintained. Following this interpretation, they have investigated, claimed the benefits paid back, and also prosecuted before the courts. The numbers above refer to three specific benefits. If other benefits are also involved, is not known. Neither is it known how many Norwegians may have been denied services for the same reasons, nor the number of foreigners affected.

The situation became public 28.10 this year, in a joint press conference between Minister for the Work and Social Department Anniken Hauglie (Conservative Party), The Director of NAV, Sigrun Vågseng, and Director of Public Prosecutions Tor Axel Busch.

NAV's highest organ - National Inssurance Court – has in several rulings – at least sice late 2018 - rejected the NAV interpretation. In January 2019, NAV asked the Departement and Public Prosecution Office to appeal a ruling of its own National Insurance Court, a ruling finding the reclaims and prosecution unlawful. The ruling was not appealed, but the practice continued. The latest known unlawful reclaim is from September 2019, the last person was put in prison in October.

The police and prosecuting authorities has in the majority of cases argued the same faulty understanding before the courts. This now implicates the whole organisation of Public Prosecution. The Government has appointed a special Chief Public Prosecutor to handle the case.

Norwegian courts have in the majority of their decisions followed the legal interpretation offered by the NAV prosecutors, without independent legal control. One case was brought before the Supreme court. A man, prosecuted for unlawfully being abroad while receiving benefits, was in the first instance sentenced to 75 days i jail. In the next instance, his sentence was reduced to community services, which NAV appealed.

The lawyer, in preparation to argue the case before the Supreme court, sent the Court relevant legal material to document his arguments about the unlawfulness of the decisions, including relevant sections of the EEA treaty. The lawyer was denied to present this material, since "the case was only about the length of sentence". This case has now been appealed to be reopened. It is also known that two cases belonging to this complex have been rejected appeal to the Supreme court.

Former Supreme Court Judge, now professor Skoghøy is “shocked” , declaring that even the Supreme Court is bound by the Norwegian legal process code, while professor Graver, an well known capacity on Norwegian law, claims that even the highest court do not possess sufficient knowledge of the EEA agreement and its effects on Norwegian law.

A person receiving temporary benefits wished to be in Sweden, waiting for the final decision about his benefits. This was denied. The case was brought before the ESA - the EEA control organ – in 2015, and discussed in writing and in several meeting between ESA and Norwegian authorities. The Norwegian representatives assured they were well aware of the priority of the EEA treaty rules, assurances without effect at home.

Given this situation, ESA - the EEA control organ - asks in a recent letter the the Norwegian government if the wrong interpretation may possibly go back to 1994, the year Norway effectively became member of the treaty. The Norwegian Government is to answer by December 3rd. The case has also been brought before the EU-commission, according to ESA’s president.

The Norwegian Government has appointed an investigative commission, to deliver its findings early next summer. The plans have been met with critique. The country's foremost expert on administrative law - professor Bernt, finds the mandate too narrow, and the time given for the work unrealistic. He also argues that Stortinget - the Norwegian parliament - should be responsible for the investigations, since the Government, with several departments and their agencies are involved. It is also claimed that several members of the commission are legally incapacitated.

Stortinget has opened its own investigations. Apart from written material, the Prime minister and the responsible Minister have been questioned. Stortinget will conduct open hearings 09. January.

The Prime Minister, Erna Solberg (H), states she has "trust" in the Minister Anniken Hauglie (H). While the Minister herself “has trust” in the NAV Director Sigrun Vågseng, who states "she will not consider her position, but will continue until her period ends, next year."

There is an ongoing debate between the department and NAV regarding "who knew what when." While the Minister maintains "it is still not all right to go abroad when receiving benefits".

Last week an elected member of Stortinget - Moxness (Red) - put a formal proposal of "lack of trust" to vote. The proposal got only one vote, his own, since, as one representative put it, "the scandal is hitting the whole of political Norway".

The elected representative responsible for handling the case in Stortinget, Eva Kristin Hansen (AP), claimed in Facebook that Moxness "wished for a Moskva process". Not afraid to expose her blatant lack of knowledge, she found it right to smear another member's formal rights to put propositions before parliament! Asked by journalists, she has declined to comment.

The leader of Arbeiderpartiet, Jonas Gahr Støre, finds it "too early" to conclude. One can understand his "reluctance", given NAV practiced their ways possibly also under the last Labour government, led by the now Nato secretary Jens Stoltenberg.

In a joint regular meeting between The Ministries, agency leaders and the Director of Public Prosecutions a short period before the scandal broke, the Public prosecutor, asked "if any member of the group hand any significant news to bring forth". Neither the departments nor any of the agencies – NAV included - had. NAV had already weeks before started to inform local police- and justice authorities about the possible scandal, without making this information known to the responsible Police- or Public Prosecutor's offices.

Several meetings between the Department and NAV, discussing the case, has been held. Norwegian journalist asked for access to the reports, which the Government for several weeks denied. Now, the Government claims the reports "do not exist".

Neither did NAV wish to inform The Director of Public Prosecutions in writing, since “his office is practising public access" to its journals, and the case therefore could reach the public, it has been reported. The Norwegian law of "offentlighet" (“public access") apply to both agencies.

The responsible in Stortinget, the elected member Hansen, are now expressing herself more "carefully": "this is unfortunate (...) I am a bit worried there can be a bad culture", she states to Aftenposten, Norway's biggest biggest conservative newspaper.

Last week Prime minister Solberg – possibly in a bout of doubt, possibly realising that she has to answer another of ESA’s questions in a few day’s time - ordered all departments and their agencies to make sure they had implemented the EEA correctly, apart from the the cases regarding social security known.

Outside of parliament the critique is massive. Professor Bernt finds the legal protection of individuals, especially exposed groups, weak. Professor of law Graver compares the situation and politics to regimes like Hungary. Other heavyweighters are questioning why not the correct legal understanding was made known inside the departments and agencies. This critique also hits the Legal section of the Justice department, responsible for legal interpretation and regulations, and for preparing propositions to Stortinget. One legal expert claims that the acting Government has to a large extent bypassed this agency, to the detriment of the material passed to Government and Parliament. It can be added that the Parliament in 2017 voted through further "narrowing" in the rights to receive social benefits while abroad, with the votes of Government parties and Arbeiderpartiet (Labour/Social Democrats).

Adding spice to the story the former ETA judge Carl Baudenbacker has in several articles in Norwegian newspapers voiced harsh critique against, among others, the current attorney general Frederik Sejersted, for “20 years of persistent resistance against the EEA treaty, and the ESA and EFTA courts”. Baudenbacker recently became the first non-EU lawyer to be receive a honorary membership in the Union of European Lawyers.

 

Bigger and smaller newspapers are all critical, and asks for consequences, as are labour union leaders. The leader of the employer organisation Norsk Industriforbund (Association of Norwegian Industries) states "when someone to such a degree has been shitting themselves, they must take responsibility, and resign".

The "whole political milieu" in unison wish to “clean up”. Aftenposten finds it more likely that the persons affected will receive "pennies", and will have to fight long and hard to get their rights. A point of view lawyer and specialist in EU-law John Midthjell shares. He has written to the EU-commission asking them to help the affected get full compensation for the wrong they have suffered.

In VG - the country's biggest newspaper, NAV is boasting how they now are "cleaning": The affected persons will receive back all the money they have repaid. They will also receive almost 5% interest, to be calculated individually in each case." The conclusion is clear, while NAV claimed 10% interest from the persons suffering the injustice, they will be compensated almost 5%, "calculated individually in each case".

How NAV will compensate the woman they denied to visit her sister’s deathbed, in Sweden, they don’t say. Neither anything about how they will compensate the persons who has died, and where one can not exclude the possibility that the unlawful situation has contributed to their death.

Last man out is the Director of the Tax authorities, who last week «could inform» that 17500 persons who have been illegally forced to repay benefits, have not received back the tax they have been charged. The information came after journalists for weeks had been asking what happened to the tax of this people. (In Norway, social benefits are considered taxable income. )

The staggering number gives another indication of the possible number of people affected. And the Prime Minister? She has trust! Also in the Tax Director!

 

Arne Teige

03.12.2019

Le Club est l'espace de libre expression des abonnés de Mediapart. Ses contenus n'engagent pas la rédaction.