On 23 October 2023, Oslo Tingrett issued its judgment in the NAV-Scandal Pilot Case filed by Marianne Eversen, Rune Halseth, and Anette Irgens. Marianne and Rune innocently spent 61 days and 85 days, respectively, in prison and were subjected to routine strip-searches. Anette was persecuted by the Norwegian Welfare Authority NAV both in Norway and in Spain for years. Their “crime”: making use of their EEA-guaranteed right to free movement.
The court unambiguously held that the Norwegian State seriously and systematically violated EEA law and Norwegian law since 1994. It also emphasized that EEA law must be observed ex officio. The plaintiffs welcome these findings.
First commentators have seen the ruling as a victory for the plaintiffs. On closer inspection, however, problematic aspects arise. The judgment awards Rune Halseth and Marianne Evensen redress in the amount of NOK 900,000 (c. EUR 76,000) because they were innocently imprisoned. It also recognizes there are “several thousand” NAV victims who never served time in prison but were still affected by the State’s illegal acts. This includes the third plaintiff, Anette Irgens. Oslo Tingrett nonetheless denied her any redress. It has thereby de facto also deprived the “several thousand” victims who are in a similar situation of their rights.
Nobody is liable
Regrettably, Oslo Tingrett absolves the perpetrators in the various Norwegian ministries and authorities since 1994 from any responsibility. It thereby relies on a secret 2014 government report of which large parts have been withheld from the plaintiffs. Oslo Tingrett found the plaintiffs had not adduced sufficient evidence from the heavily redacted 2014 report to demonstrate that members of the Norwegian government, the Ministry of Justice, the Social Welfare Ministry, or any of the countless authorities involved in the NAV-Scandal intentionally or grossly negligently violated the law for nearly 30 years. The court thus allows the Norwegian State to plead ignorance on deliberate, decades-long EEA law violations by countless actors. The court further relied on the “Arnesen Report” although its author, Professor Arnesen, publicly stated that the question of who was ultimately responsible was “not part of our mandate. We haven’t even evaluated it”.
The NAV-Scandal also concerns widespread violations of the European Convention on Human Rights and UN fundamental rights. While Oslo Tingrett accepts that Marianne’s and Rune’s routine strip-searches were wrong, it finds this did not cross the threshold of degrading treatment. Neither did the court find that their unlawful incarcerations constituted a violation of their right to family and privacy. Further human rights violations were not addressed.
David vs. Goliath
Most striking in this case is that the Norwegian State is represented by the office of Regjeringsadvokaten – an 80-person government in-house legal service which advised and represented the State in the relevant period. Since 1994, Regjeringsadvokaten has undermined Norwegian citizens’ EEA and human rights through various measures. In one example from 2013, the State, advised by Regjeringsadvokaten, settled a NAV-case before the Norwegian courts could rule on it, thereby deliberately avoiding a precedent and preventing the wider public from learning about NAV’s wrongdoings for another 7 years. Regjeringsadvokaten, as the attorney for the defendant Norwegian State, was also directly involved in the preparation of the secret 2014 report.
When the NAV-scandal became public on 28 October 2019, the Norwegian State’s highest representatives promised they would clean up the mess. Prominent examples include Prime Minister Erna Solberg and Labour Minister Anniken Hauglie. They have not only failed to deliver on their promise and to hold the perpetrators accountable. The Norwegian State is sending its in-house legal service to fight the plaintiffs in court.
Reliance on secret government reports, whitewashing of perpetrators, and derision of the victims: This is a sad day for the citizens of Norway.
But there is a silver lining on the horizon. The Oslo Tingrett judges made some important points which may prove useful in an appeal. In any case, David vs. Goliath, Norwegian edition, continues.
For queries, please contact Carl.Baudenbacher@b-k.law, telephone +352 621 293374.