CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 avril 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 presented by the Applicant may be summarised as follows:   The Applicant is a Norwegian citizen, living in Oslo. He is a lawyer by profession.   He states that, after being detained for 1120 days, he was sentenced, on ... 1948, by the Eidsivating Regional Court (lagmannsrett) to ten years' imprisonment. The charge against him was that he had been a member of the Quisling party 'Nasjonal Samling'. Apparently it was also held against him that, during the occupation of Norway, he had accepted the office of Chief Justice (justitiarius) of the Oslo City Court (byrett). He states that his appeal against his conviction was subsequently rejected by the Supreme Court (H*yesterett).   The Applicant also refers to a decision of the Supreme Court dated ... 1951, by which he was obliged to pay damages of 400,000 Norwegian crowns, corresponding to a part of the damage which the 'Nasjonal Samling' had allegedly caused the community.   The Applicant subsequently asked on several occasions for a retrial of the criminal case against him but his requests were all rejected. The last decision in this regard was given by the Appeals Committee of the Supreme Court on ... 1966.   The Applicant objects to his conviction on a number of grounds and asks the Commission to examine the legal basis not only of his own conviction but also of the convictions of about 60,000 other Norwegians who had also been punished because of their membership of the 'Nasjonal Samling'.   An organisation called 'Forbundet for ...' has declared that it joins the present Application.   I. The Applicant states that the convictions and sentences concerned were based, to a large extent, on ordinances issued by the Government-in-Exile in London in the years 1940 - 45. However, the Government had no competence to legislate under Norwegian constitutional law, since Article 49 of the Norwegian Constitution (grunnloven) provides that the legislative power lies with Parliament (stortinget).   It was true that Article 17 of the Constitution gave the King a certain right to issue provisional regulations while Parliament was not sitting but this right was subject to various conditions and could not be considered a sufficient legal basis of the ordinances issued by the Government-in-Exile. Moreover, some ordinances had been issued while Parliament was still sitting in June-September, 1940, and in any event the ordinances had not been cancelled when Parliament met again in May, 1945, which should have been done if the legal basis had been Article 17 of the Constitution.   The Applicant pointed out that the legal basis had sometimes been considered to be the special powers given to the Government by Parliament at its session at Elverum on 9th April, 1940, the day of the German attack on Norway. Indeed, it had been maintained that, on that occasion, the Government had been authorised to take care of the interests of the country and to take any decisions required until such time as Parliament could be convened again. However, the Applicant submits that it was untrue that any such wide powers had ever been given to the Government and that, in fact, Parliament had not given the Government any larger competence than could already be derived from Article 17 of the Convention.   The Applicant concludes that the Government was not competent, according to the Norwegian Constitution, to issue the ordinances concerned.   II. The Applicant points out that the convictions of members of the 'Nasjonal Samling' were based on the assumption that Norway had been at war with Germany in the years 1940 - 45. In fact, most of the persons concerned had been convicted on charges of offenses against Article 86 of the Criminal Code which provided for punishment of any person who, during a war in which Norway takes part, renders assistance to the enemy. The Applicant maintains, however, that the war between Norway and Germany ended on 10th June, 1940, when the Norwegian Commander-in-Chief had signed a capitulation agreement with the German Commander of the troops in Norway and armistice had been concluded. In order to prove that from that date Norway was no longer at war with Germany he refers to the terms of the capitulation agreement, to the declarations made by King Haakon after 10th June, 1940, and he invokes a number of experts of international law and other authors.   As the Applicant had joined the 'Nasjonal Samling' after 10th June, 1940, there could, in his opinion, be no question of having assisted the enemy, the state of war having then ceased to exist. On this point he considers that his case is different from Application No. 931/60 (see Collection of Decisions, Volume 6, page 41) as in that case the conviction had also concerned membership of the 'Nasjonal Samling' before 10th June, 1940.   III. The Applicant states that, during the occupation of Norway by the Germans, Article 43 of the Hague Regulations of 1907 applied and according to this provision the occupying power had the duty to ensure public order and safety and was entitled to legislate if new legislation was required for this purpose. On the other hand, the Government-in-Exile had no competence to legislate and the ordinances issued by the Government in London were therefore contrary to international law. In particular, they could not be considered to be binding since they were not legally published in Norway during the occupation period.   Even in view of the substance of these ordinances, they could not be accepted. First, in many cases, acts were declared to be punishable which had not been punishable when they were committed. Moreover, capital punishment was re-introduced by simple ordinance, although it had been abolished in the Criminal Code, and jury trial was abolished in respect of the offenses concerned.   In respect of membership of the 'Nasjonal Samling' the Applicant observes that the mere fact of being a member was made a criminal offence by an ordinance of 22nd January, 1942. According to this ordinance, such membership was to be considered to constitute assistance to the enemy contrary to Article 86 of the Criminal Code. In reality, this amounted to a collective punishment of members of a political party and was contrary to Article 50 of the Hague Regulations. The Applicant points out that membership of the German NSDAP had not, as such, been considered to constitute a criminal offence.   The Applicant further states that the provisional ordinances issued by the Government-in-Exile were in fact applied by Norwegian courts even at a time when Norway was occupied by the Allies and, according to the Applicant, it could in no way be accepted that such ordinances were applied before Norway had regained its sovereignty.   IV. The Applicant invokes Articles 2, 5, 6, 7 and 13 of the Convention. He asks the Commission to urge the Norwegian Government to observe its obligations under the Convention.   THE LAW   Whereas the basic facts alleged, and in particular the Applicant's conviction and sentence, 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 regard to the Applicant's complaints relating to his claim for a retrial and the court proceedings concerned, it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section I of the Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; whereas otherwise its examination is outside the competence of the Commission ratione materiae; whereas the right to a retrial is not as such included among the rights and freedoms guaranteed by the Convention; and whereas, in accordance with the Commission's constant jurisprudence, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention (see Applications Nos. 864/60, - X. v. Austria - Collection of Decisions, Volume 9, page 17 and 1237/61, X. v. Austria - Yearbook V, page 96); whereas it follows that this part of the Application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission declares this Application INADMISSIBLE.