CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1964

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is a Norwegian citizen born in and living in A. She is the president of Z Organisation in Norway.   In 1929 the Applicant married a Mr Y from whom she lived separately as from 1941, and was eventually divorced in 1944. During the German Occupation of Norway, Mr Y, who, was at the time the director of T. allegedly collaborated with the occupying forces. After the war he was "cleared" of any suspicion of treachery and is at present director of U. In 1942, when the German persecution of the Norwegian Jews started, the Applicant was arrested, although Jews married to non-Jews were not covered by the measures taken by the Gestapo. At the moment of departure, the Applicant avoided being put on board a ship bound for Germany and was temporarily transferred to a prison, after her deportation had been postponed for a week pending proof as to her continuing status as a married person. Her husband was at the time on a concert tour in Bergen and, in spite of telegraphic requests from the Applicant's lawyer, he refused to return to Oslo until the end of his tour, 4 days later. On his return he signed a declaration to the effect that he was still married to the Applicant who was accordingly released on the following day. Subsequently, she managed to escape to Sweden.In 1945, rumours started to circulate about the behaviour of the Applicant's husband and the Norwegian Association of Composers adopted, in 1945, a resolution declaring these rumours to be unfounded; a few days later this resolution was sent with a covering letter to two Oslo newspapers in order to prevent the publication of articles derogatory to Mr Y. The said letter contained such expressions as "unfounded attacks", "malicious rumours", and "imaginary conduct". In 1960, it was reported to the Applicant that her former husband might visit Israel as a guest conductor. Considering such visit to be an insult to the Israeli people, she instituted criminal proceedings for libel in 1960 against the Norwegian Association for Composers in order to obtain a declaration that the accusations implicitly brought against her in the above covering letter were null and void. She herself maintained that her statements against Mr Y were completely true. The immediate result of her action was that the plans for the concert tour in Israel were called off. The legal proceedings aroused, apparently, a general interest in Norway and the two leading newspapers in Oslo carried detailed articles about the case. In 1962, the defendants successfully requested that the hearing of the case should take place in a closed session. In 1962, the City Court of A acquitted the defendants. It considered the above expressions in the covering letter to be clearly defamatory to the Applicant, but it held that she was not justified in alleging that he had given her "no help whatsoever", as he had, in fact, signed the declaration which effected her release. At the same time, the Court conceded that Mr Y's conduct was open to criticism in that he did not inquire about the fate of his wife when learning about the Gestapo action, in that he did not return immediately to Oslo when notified of her arrest, that he continued to give his concerts and that he did not give by telegram a declaration as to the validity of their marriage. The Court held that the defendants were consequently justified in making the above statements but it "found no reason" to award costs against the Applicant. Finally, it rejected the Applicant's request for permission to publish the judgment which had been pronounced in closed session. In 1962, the Applicant lodged an appeal against the City Court's judgment and a request for a new hearing, which were both rejected by the Appeal Committee of the Supreme Court in 1962. In 1963, invoking the provisions of the Convention, the Applicant appealed against the order of 1962 according to which the case was heard in a closed session and also against the Court's decision to deliver judgment in a closed session and requested the quashing of the above sentence. In 1963, the Appeal Committee of the Supreme Court rejected her appeal on the ground that it had been lodged out of time. The Committee added, however, in respect of her above request, that "although the appeal must thus be rejected on procedural grounds, the Committee finds reasons to mention that it would presumably not have been successful, even if it had been lodged in time". As to the failure on the part of the Court of giving judgment in public, it stated that although the judgment should, in accordance with Article 124, paragraph (3) of the Code of Procedure, be read in public, such mistake would not vitiate the judgment in question but would only oblige the Court to fix a session for delivery of the judgment in public. Whereas the Applicant alleges violation of Article 6, paragraph (1), of the Convention and claims that the "judgment of the City Court of A be pronounced in a public session with a possibility that the press may publish the judgment".   THE LAW   Whereas it is to be observed that, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; whereas it is true that the Applicant in 1962 lodged an appeal to the Supreme Court from the decision of the City Court of A given in 1962; whereas, however, she failed to raise in her appeal the complaints which she has now brought before the Commission, namely, the fact that the decision of the City Court of A was not handed down in public session;   Whereas the Commission has previously held that in order to comply with the provisions of Article 26 (Art. 26) "it is not enough that the Applicant should have submitted his case to the various competent courts to which, as requested by the said Article (Art. 26) the case should be referred ... the Applicant should also plead before the higher court the rights which he alleges were violated by the lower court" (see Application No. 617/59 - Hopfinger v. Austria, Yearbook III, page 370); whereas it is true that in 1963 the Applicant raised the issue before the Supreme Court that the decision of the City Court of A violated the provisions of Article 6, paragraph (1) (Art. 6-1) of the Convention;   Whereas, however, according to Norwegian law, this second appeal was lodged out of time; whereas the Commission has consistently held that time-limits laid down in domestic law for the introduction of appeals must be observed by applicants to the Commission (see Application No. 945/60 - P. v. the Federal Republic of Germany, Collection of Decisions, Volume 8, page 98);   Whereas the Commission infers from the text of the decision of the Supreme Court of 1963 that the Applicant, during her first appeal, might successfully have invoked Article 124, paragraph (3) of the Code of Procedure and Article 6, paragraph (1) (Art. 6-1) of the Convention and thereby have obtained an order of the Court that a session be fixed for the delivery of the judgment of 1962 in public; whereas the Commission considers that the statement made by the Supreme Court as to the probable failure of the appeal even if lodged in time does not refer to the issue now before the Commission but solely to the Applicant's request that the decision of the City Court of A should be set aside;   Whereas, therefore, the Applicant failed to exhaust the remedies available to her under Norwegian law; whereas, moreover, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose the existence of any special circumstances which might have absolved the Applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal;   Whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) has not been complied with by the Applicant;   Whereas it follows that the Application must be rejected in accordance with Article 27, paragraph (3) (Art. 27-3) of the Convention;   Now therefore the Commission declares this Application INADMISSIBLE.