CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 février 1967

.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 as presented by the Applicant may be summarised as follows:   The Applicant, a Norwegian citizen living in Oslo, was previously the owner of a fish-canning factory.   He states that in August, 1948 he was informed by the Central Office of the Sardine Canning Industry (Hermetikkfabrikkenes Brislingcentral) in Stavanger that Office had decided to forbid any sale or exports of the Applicant's products from 1948 pending certain investigations regarding their quality. This decision was taken on the basis of the Norwegian Act of 19th May, 1933 concerning the supervision of food products (lov om tilsyn med naeringsmidler) and the reason was that the Laboratory of the Canning Industry (Hermetikkindustriens Laboratorium), after examining some cans produced by the Applicant's factory, had found these cans to be of bad quality in various respects.   The Applicant did not agree with the result of the laboratory examination and therefore wished to have access to the samples examined by the laboratory and to the laboratory records. However, he was told that the samples had been thrown away and that there were no records other than the official notification which the Applicant had received. In the Applicant's opinion, this was unsatisfactory, since the official notification did not give him sufficient information about the methods used by the laboratory and the result of the tests.   The Applicant requested a new examination by the laboratory and in February, 1949 such an examination took place. The test result was similar, but the Applicant states that the laboratory still refused to give him such information as would permit to control the correctness of the laboratory's findings.   The Applicant then lodged a complaint with the Director of Fisheries (Fiskeridirekt°ren) and this complaint was subsequently submitted to the Ministry of Fisheries which upheld the decision by which the products of the Applicant's factory had been seized.   The Applicant subsequently instituted civil proceedings against the Central Office and the laboratory. In these proceedings, he claimed compensation and his claim was first rejected, on .. March, 1961, by the Stavanger Town Court, as being unfounded. On .. December, 1963, his claim was also rejected, on appeal, by the Gulating Court of Appeal. The Applicant apparently failed to lodge a further appeal from that decision although, in the decision itself, it was indicated that he could appeal to the Supreme Court.   On the other hand, the Applicant asked the Court of Appeal for a reopening of the proceedings. His first application in this regard was rejected on .. February, 1964. A similar application was dismissed on .. May, 1964 by the Court of Appeal on the ground that the Applicant had failed to pay certain costs in connection with the proceedings. The Applicant's appeal from that decision was rejected on .. June, 1964 by the Appeals Committee of the Supreme Court (H°yesteretts Kjaeremålsutvalg).   The Applicant maintains that the seizure of his property was a penal measure in respect of which, under Article 6, paragraph (1), of the Convention, he was entitled to a fair and public hearing before a court. In reality, however, this penal measure had, without any court hearings, been imposed upon him on the basis of a laboratory examination of which he was not allowed to know any details. He considers that the administrative authorities were obliged, under Article 6, paragraph (1), to refer the matter to a court, but this was not done. Moreover, Article 6, paragraphs (2) and (3) (a) and (b), had been violated, since he had been held guilty without being properly convicted and he had not been adequately informed of the accusation against him, nor had he had facilities for the preparation of his defence.   As he was not heard ex officio by a court, he was obliged to institute civil proceedings himself before the courts but, even in these proceedings, different provisions of Article 6 of the Convention were violated. He complains, in particular, of the proceedings before the Court of Appeal in the years 1961 - 63 and submits that the Court refused to admit certain important evidence; that, on the other hand, it accepted as evidence the result of certain investigations whose reliability could not be checked by him; that, instead of appointing expert witnesses, the Court co-opted two expert judges; that the Court failed to give him the opportunity to prepare his "defence". Moreover, he criticises at great length the findings of the Court of Appeal on various points.   The Applicant also objects to the requirement that he should pay certain court costs, and he considers that, in the circumstances, this requirement was contrary to Article 6, paragraphs (1) and (3) (c) of the Convention as indirectly the case concerned the determination of a criminal charge and he therefore had an unconditional right to a court hearing.   He has submitted a number of documents in order to show that in other countries, such as the USA, Canada, Great Britain and the Federal Republic of Germany, there are specific provisions which subject the examinations made by the authorities in charge of supervision of food products to effective control and generally give the courts competence to deal with complaints concerning the acts of the administrative authorities.   THE LAW   Whereas certain of the facts alleged, namely, the seizure of the Applicant's products in 1948 and the laboratory examinations regarding these products, relate to a period prior to 3rd September 1953, the date of the entry into force of the Convention with respect to Norway; and whereas, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party; whereas it follows that the examination of the Application, in so far as it relates to these alleged facts, is outside the competence of the Commission ratione temporis;   Whereas, in so far as the Application concerns the subsequent proceedings before the courts, 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; and whereas the Applicant apparently failed to appeal to the Supreme Court from the decision of the Court of Appeal dated .. December, 1963; whereas, therefore, he has not exhausted the remedies available to him in Norwegian law;   Whereas the Applicant's subsequent petitions for a reopening of the proceedings were not, having regard to the special preliminary conditions to be satisfied, effective and sufficient remedies, and do not, therefore, constitute domestic remedies under the generally recognised rules of international law; whereas, consequently, the fact that in the proceedings relating to these petitions he appealed to the Appeals Committee of the Supreme Court could not affect the above finding that the domestic remedies had not been exhausted within the meaning of Article 26 (Art. 26);   Whereas, moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the Applicant from lodging an appeal from the decision of .. December, 1963;   Whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been complied with by the Applicant.   Now therefore the Commission declares this Application INADMISSIBLE.