I never wanted to go to court and I never thought my first time in court would be outside of my domestic jurisdiction. I love law for the legal content; the arguments and the reasoning. Not so much the pleading, which is probably why practising law never appealed to me unless I could have been a solicitor.
But, injustice happened to me, I fought, and I lost.
It’s one thing to deal with corruption and injustice in developing countries. It’s another when facing the same in countries that are supposed to be leading examples when it comes to the rule of law.
Of course this case is about something minor, a parking ticket. But while minor, there were bigger issues at play.
We were regular customers at a parking lot owned by a private parking company called Micasa/Parkeringsselskapet in Tønsberg. They offer parking and charging for electric cars. You can pay for parking using an app, but the add-on charging fee must be paid using a one-of-a-kind machine onsite. After dozens of times parking and charging there, this one particular day, the machine did not accept our card payment. The only other option was coin payment, but there was no way to get coins. As I paid for the main fee (90 NOK) and we were regulars (they have our contact information through our account), I thought they would recognise that there were exonerating circumstances present.
I contacted the company afterwards and they said that next time, I should call them when faced with a faulty machine and they could issue me a free ticket. They also said they could remove the sanction, I just had to contact them the next day during office hours. I did, but they then referred me to the appeals website. So, I appealed.
No proof supplied, just words. No errors reported does not mean that the machine was functioning. The burden of proof lies with the company to show that the machine was, in fact, working.
I appealed to the Parkeringsklagenemnda, which is as an independent administrative tribunal to solve consumer disputes regarding parking tickets. They denied my appeal saying that the machine was probably working. One good thing from this procedure is that I could finally see the machine log as part of the case file. They must submit the log from the day before, the day itself and the day after, to demonstrate normal operations.
Coincidence much? So sketchy.
Parkeringsklagenemnda said that if card payment failed, I must have paid using an app (which is impossible, which I also brought forward as the company is in violation of the parking laws by not offering a mobile payment solution) or coins. Norway is one of the top cash-free societies in the world. I had never used cash in 1,5 years in Norway. In daily life, it is more likely you find payment by phone solutions than cash payment. Demanding coin payment when it is not easy to get coins, especially in Corona times, was unreasonable. They also held that the driver has the responsibility to call the company in case of a faulty machine, while at the same time only recommending, not requiring, that the parking company puts instructions on their machines. How is this legal and fair when there are no clear instructions on the machine?
The conclusion by Parkeringsklagenemnda left out a lot of my arguments and they cherry-picked those that worked in favour of the parking company. They provided no legal basis for their conclusions, but merely referred to their own case law, which facts were different from the current case and also lacked legal basis. So in essence, they don’t adjudicate, they go beyond their scope and legislate. And use this as precedent for future cases.
I could not believe an independent administrative tribunal would believe the parking company over me, despite me having submitted proof of good standing through all the receipts from the previous times we parked and charged there. How could they not consider the proof properly and disregard administrative legal principles of motivating their decision? While this government function of parking has been privatised, the companies are still bound by administrative legal safeguards to protect citizens against arbitrary sanctions and abuse of power. This concept seemed completely foreign to Norway.
After researching the Parkeringsklagenemnda, it was easy to find out they are paid directly from the parking tickets issued. It’s regulated by law. So why would they rule out a ground for issuing tickets when their income depends on those tickets and they are paid by the parking companies?
While administrative sanctions fall under administrative law and appeal procedures would be free in the Netherlands, this was not the case in Norway. There is no distinction between administrative and civil law, and administrative cases are dealt with like civil cases. And even though court fees for the court of first instance were almost 3,000 NOK, I decided to appeal. I thought, in a Scandinavian country where customer rights are supposedly protected well, this will work. I am truthful, they were not. It could not fail? It shouldn’t.
I prepared my case based on the immensely fragmented laws and legal principles, and contacted some lawyers as I thought of hiring one. None of the lawyers were specialised in this area as no-one goes to court over this. The easy way out is not always the right way, people! One lawyer read my writ of summons carefully and told me he thought I was well-prepared and know more about the laws that any of their own lawyers. I also contacted a former classmate who is a lawyer in Oslo. His colleague in civil litigation gave me a few extra pointers. I felt ready! Completely out of place doing this as a Dutch person, but it’s the content that matters, right? Well, apparently not.
A judge from the Sandefjord court guided my application process (not the content). I had argued based on the merits of the case itself but also mentioned procedural violations by Parkeringsklagenemnda based on administrative law and Article 6. The judge recommended that I leave Parkeringsklagenemnda out of it, saying I should start a separate procedure if I wish, but this would be very expensive and he did not recommend it. So, I removed those claims but had no further way to tackle the tribunal.
Then, my documents were deemed inadmissible by email – I had to send them by post or deliver them in person. I did the latter. Norway has a lot of modern solutions, but in some ways, it is still very old-fashioned and behind – such as requiring sending by post while the postal service in Norway is very slow and often loses mail (my notification of bringing a witness was sent in December and returned to me in February – where had it been in the meantime?).
Then the case went from Tønsberg to Sandefjord to Horten. Why change courts three times? No idea. My contact person in Sandefjord was great. I understand official communication is in Norwegian, but if you understand English (and most people do), it helps to communicate by email in English.
The tone changed, I received emails in Norwegian only, even after asking if they could write me in English. Ok, fine. Google will help. But then I was asked about my availability for a court date, but received no further information about the process. I received no information about the hearing until in the actual hearing. And had I not repeatedly asked for an interpreter, I do not think I would have been assigned one.
How can this be a fair trial for anyone? At least I have a legal background and proactively look for information. I could have prepared better had I known how the procedure would go. Any random person would have been completely lost. It later turned out that those reluctant to write in English were totally fine understanding English. I understand it is not an obligation, but for the sake of good process order, could they not have set their nationalism aside?
The judge asked if I had ever been to court. I haven’t, despite having a master degree in law (LL.M.). He then quickly explained the process, though with an attitude of “you peasant”. He asked what my occupation was, but since I currently don’t work in the legal field, I didn’t mention my legal background. It should not matter. In hindsight I wonder if it would have changed the outcome, if he would have paid better attention.
At the start of the trial, the judge said he had read all the documents, but summarised my case as “you believe you should not have paid due to COVID”. What? No. You did not read or understand the case if that is your conclusion. The judge is supposed to decide on the case, based on the facts of the case and within the scope of the law. With the log from the machine, I could demonstrate that something was clearly wrong. Plus, the fact that the company did not submit all the necessary proof to show the facts and circumstances at the time shows potential false evidence/foul play. I had arguments to refute every conclusion given by the Parkeringsklagenemnda, each based on laws and legal principles. It was detailed and elaborate with sound legal sources. The lawyer for the parking company repeated what the Parkeringsklagenemnda held and did not respond to any of my arguments. They only referred to one legal provision regarding legal tender, or compulsory means of payment, to state I was obliged to pay with coins, as was stated by the Parkeringsklagenemnda. It is clear that the meaning of this provision is unclear. I referred to legal articles that interpret this legal provision as a right to pay with cash rather than an obligation, an interpretation common in other European countries, which was also demonstrated by other legal provisions that I cited. I also referred to a contract law provision that states that a clause of a contract must be set aside if the circumstances were to make the enforcement unreasonable, which was the case with coin payment at this machine – that usually accepts card payments – and in these times where cash was especially not easy to get. I would have had to cross the river for the nearest ATM, then find a place that could swap the notes for coins in times where most places were closed, where cash is uncommon to start with and when it was recommended by the government not to use cash. A specific law even states that cash payment can only be demanded if not causing significant inconvenience. I stated that predictability is another factor, it would have been different if coin payment had always been the only option (like with snack machines or laundry service). But this was due to a machine defect.
I referred to kreditormora, a Norwegian legal concept stating that the inability to fulfil a contract due to a situation that is at the risk of the creditor, cannot be held against the debtor. The consequence of kreditormora is that the obligation of the debtor is deferred until the situation has been solved.
I referred to a lot of administrative legal principles that apply to administrative sanctions (such as parking tickets). It was almost like they never heard of that, and chose not to hear it too.
The summary of facts was inaccurate regarding details and timing. In the verdict, the judge did not refer to kreditormora nor the faulty machine, and stated that he deemed it unnecessary to go into whether the machine was out of order or not – which was the basis of my whole reasoning!
He did not address why my other arguments did not hold even though they were based on laws and legal principles, and sided with the parking company’s arguments without clear motivation and despite the basis of the arguments being based on “bransjepraksis” (industry practice) instead. And while I stated clearly that I do not think I have a right to free charging, he kept saying that a faulty machine/not being able to get coins/etc. does not mean I can charge for free.
I really hope criminal cases are done with due diligence, but my impression is that it’s non-existent here.
The parking company claimed payment of the sanction and completely missed that we had paid already in August to avoid missing any payment deadlines, since they weren’t clear (deadline for payment was 2 weeks, but deadline for appeals was 4 weeks – are you in breach in between weeks 2 and 4?). The payment was clarified and confirmed in court. Yet, the judge demands payment of 600 NOK in the verdict, with interest for late payment – while there was no late payment to begin with. This is clearly wrong, but any communication with the court now is being returned without avail and they tell me to contact the lawyer of the counter party. This lawyer works for a debt collection firm called Gothia AS and they won’t relay my message because I don’t have a case with the debt collection firm itself… This is beyond ridiculous. What a shitshow.
Both the judge and the lawyer were fairly new in their jobs. I don’t blame the lawyer, she did a minimal job and won the case. But the judge, it is not a good sign when you are just getting started and already not paying attention. Judges should be blind, not deaf. Or deaf, but then at least read carefully because I had written it all out in my writ of summons too. But instead, he looked at this “Dutch-Asian peasant” and sided with the baseless parking maffia.
The result is disappointing, but it would have been more acceptable if the process was done correctly and all facts, arguments and legal bases were at least considered. That is his job! This reminds me of a quick mock trial to get it out of the way. I submitted a complaint to the Supervisory Committee for Judges, but they cannot look into the case as I have the option to appeal – even when the complaints are regarding procedural misconduct only. Yet, I’m pretty sure that if I were to appeal and tackled the court’s misconduct, I would (again) be advised to leave it out – like what happened with regard to the Parkeringsklagenemnda. What a broken system.
So now what? Appealing will cost almost 30,000 NOK. Who will spend that on a small claim? It is so not worth the trouble and effort; it would be completely out of proportion. And probably the outcome won’t be different because it they don’t see and understand the issues at stake. Going for an Article 6 ECHR procedure will be even more costly, so there is no redress unless you have a criminal case. I wonder how long Norway will continue to have such an outdated legal system. It is ironic how they are funding (legal) development projects abroad, yet there are plenty of issues they should fix domestically.
The issue at hand should have been solved directly with the parking company and if it were to be taken further, ideally, it should have been a Norwegian challenging the case, the situation and the legal system. It’s not my jurisdiction or society to change. But the idea that these parking companies can do whatever they want and not be held accountable is disgusting.
Legal systems exist to ensure it’s not the case of the strongest that prevails. Yet, they managed to disregard any legal basis and go with the industry’s practice. I see a parallel with the ban on rescue pet imports, which as also based on no scientific data. I want things to be fair, but that’s not how it works here. Just hoping Karma will do her work instead, in the typical way the Dutch curse with diseases and what not.