CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 19819/92                       by Jostein STØRKSEN                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 5 July 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 17 October 1991 by Jostein STØRKSEN against Norway and registered on 10 April 1992 under file No. 19819/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is a Norwegian citizen, born in 1942. He is a fisherman and resides at Brattvåg, Norway.   Before the Commission he is represented by Mr. Knut Rognlien, a lawyer practising in Oslo.         The applicant's father set up a limited company on 1 January 1978, M/S Silljo A/S, which became the owner of a new fishing vessel, M/S Silljo. One year later he transferred fifty per cent of the shares to his son, the applicant, and on 28 February 1979 the Ministry of Fisheries (Fiskeridepartementet) granted a fishing licence (konsesjon) to M/S Silljo A/S in respect of the vessel M/S Silljo. This licence was issued by the Ministry in accordance with the Act on Regulation of the Participation in Fishing of 16 June 1972 (lov av 16. juni 1972 om regulering av deltakelsen i fisket).         The applicant's father died on 5 January 1980 and on 8 December 1980 the company, M/S Silljo A/S, was declared bankrupt resulting in the sale of the vessel M/S Silljo out of the country. In connection with this sale and the bankruptcy proceedings it appears that the applicant maintained vis-à-vis the Ministry of Fisheries that he could personally keep the fishing licence granted to M/S Silljo A/S. However, on 30 January 1981 the Ministry informed him that a licence was attached to both the owner and the vessel and that the licence would accordingly be revoked if the vessel was sold. As this was the case the applicant could no longer be considered to be in possession of the previous fishing licence.         On 17 November 1981 the applicant applied to the Ministry of Fisheries for a fishing licence. He did not have a vessel at the time and the question was thus rather whether he could keep the licence previously held by the company M/S Silljo A/S. On 22 March 1982 the Ministry rejected the applicant's application. In its decision the Ministry stated inter alia:   (translation)         "It is clear ... that the licence relates to a particular vessel.       Accordingly, a person or a company, having a licence in respect       of a particular vessel, has no right to (another licence) in       respect of another vessel, replacing the previous one ... which       is no longer in the owner's possession.         Silljo A/S was granted a licence in respect of M/S Silljo. When       the vessel was sold by the estate in bankruptcy, the company's       licence to operate the vessel lapsed. It was only valid in       respect of this particular vessel and contained no right to a       licence in respect of another vessel, replacing the one sold by       the estate in bankruptcy. It also follows from case-law that (the       applicant) has no rights going beyond the limits of the       (previous) licence.         According to Section 5 of the regulations of 2 March 1979       (concerning the particular type of fishing vessels in question),       a fishing licence for (such a vessel) may only be granted when       a corresponding reduction in the fishing fleet capacity is       secured by the vessel owner. (The applicant) does not own a       vessel (of this particular kind) which could cease fishing. The       requirements for granting a licence are accordingly not       fulfilled."         This decision was upheld on 22 April 1983 by a decree issued by the King in Council (Kongelig resolution).         Subsequently, on 30 January 1985, the applicant instituted proceedings in the City Court of Oslo (Oslo Byrett) against the Norwegian State represented by the Ministry of Fisheries. He claimed that the Ministry was obliged to grant him a fishing licence for a vessel which would replace M/S Silljo and in the alternative he maintained that the Ministry's decision of 22 March 1982, as upheld by the King in Council on 22 April 1983, was null and void. He furthermore claimed damages for loss of income as a consequence of the Ministry's refusal to issue a new fishing licence.         In the City Court the proceedings were presided over by assistant judge (dommerfullmektig) P.O. appointed on a temporary basis by the Ministry of Justice. From the court transcripts it appears that no objections were made to the composition of the Court. During the proceedings the Court heard the parties as well as two witnesses. On 28 July 1987 it held that a fishing licence should be considered as being attached to the vessel and its owner, the latter being an individual or a company. It followed that when M/S Silljo was sold the licence granted to M/S Silljo A/S was revoked. Furthermore, the City Court held that the applicant's allegations of discrimination were unfounded.         The applicant appealed against the judgment as such to the Eidsivating High Court (Lagmannsrett). He did not, however, base the appeal on misgivings as to the composition of the City Court. When the case became ready for examination the High Court was composed of three judges two of whom were appointed on temporary contracts of one year's duration by the Ministry of Justice. Judge P.A.L. had been appointed from 1 June 1990 to 1 June 1991 and again for the period from 1 June to 31 December 1991. Judge O.H. had been appointed from 1 January to 31 December 1990 and reappointed from 1 January to 31 December 1991. From the court transcripts it appears that the Court raised the issue of the composition of the Court, but that no objections were filed.         The High Court delivered its judgment on 6 July 1990 after having heard the parties as well as five witnesses. It came in essence to the same conclusions as the City Court and held that the licence in respect of M/S Silljo was only valid as long as the vessel was owned by M/S Silljo A/S whereas the licence had been revoked following the sale of the vessel. This followed from Section 9 of the Regulation Act. The applicant was, therefore, dependent on having a new licence issued. In that respect the High Court found no reason to criticise the fact that the Ministry made a distinction between voluntary replacement of an old vessel by a new one and a forced sale as a result of a bankruptcy where the company was no longer active. In the latter situation the State's interest in reducing the fishing fleet was found to be more important than the interest of the individual in setting up a new business. The High Court considered this view to be an objective ground for refusing a licence to the applicant.         The applicant's petition for leave to appeal to the Supreme Court (Høyesterett) was rejected on 10 April 1991 by the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg). The decision was notified to the applicant on 18 April 1991.         On 30 December 1991 the applicant applied to the High Court in order to have his case reopened. He claimed that the High Court had not been an independent or impartial court as two of the three judges had been appointed temporarily by the State, i.e. the Ministry of Justice, and on contracts of a very short duration. The High Court rejected the application on 22 June 1992 as it had been submitted out of time. This decision was upheld by the Appeals Selections Committee of the Supreme Court on 26 November 1992.   COMPLAINTS         The applicant complains, under Article 6 para. 1 of the Convention, that the proceedings instituted by him on 30 January 1985 were not determined within a reasonable time and that neither the City Court nor the Eidsivating High Court was an independent and impartial tribunal. In respect of the latter he submits that when the State, as in the present case, is the defendant in the case and the judges are appointed for such short periods, it is most likely that the judges will pronounce judgments in favour of the State in order to be reappointed.   The applicant claims that, according to constant Norwegian case-law, such temporary appointments of judges are regarded as normal practice for which reason there would be no effective remedy available to him had he decided to challenge this during the proceedings in question. He refers in this respect to two Supreme Court decisions of 14 September 1984 (no. 124 B and no. 125 B/1984) and one decision of 7 December 1993 (no. 781 K/1993).         Furthermore, the applicant complains, under Article 1 of Protocol No. 1 to the Convention, that he has been deprived of his right to peaceful enjoyment of his possession when the fishing licence was revoked due to the sale of the vessel M/S Silljo. He claims that this was not in the public interest or in accordance with the provisions laid down in the relevant legislation. Especially it was not sufficiently foreseeable that a licence would be lost if a vessel was sold involuntarily.         Finally, he invokes Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 and complains that he has been discriminated against when the Ministry refused to issue a new licence. In that respect the applicant firstly submits that the Ministry had no objective reason to distinguish between a voluntary sale and a forced sale. Secondly, he maintains that he has been discriminated against in respect of the bankruptcy proceedings when compared with other bankruptcies.   THE LAW   1.     The applicant complains, under Article 6 para. 1 (Art. 6-1) of the Convention, that the proceedings instituted by him against the Ministry of Fisheries were not determined within a reasonable time within the meaning of this provision. Article 6 para. 1 (Art. 6-1) reads, in so far as relevant, as follows:         " In the determination of his civil rights and obligations       ....everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal..."         As regards the reasonableness of the length of the proceedings complained of in the present case the Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this complaint to the respondent Government and to invite the Government to submit written observations on the admissibility and merits thereof.   2.     The applicant complains, furthermore, that he did not have a fair trial as the judges dealing with his case were appointed by the State on temporary contracts of a short duration which allegedly affected the independence and impartiality of the courts in question.         The Commission recalls, however, that under the terms of Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Commission to have been raised, at least in substance, during the proceedings in question. On this point the Commission refers to its constant case-law (cf. for example, No. 6861/75, Dec.14.7.75, D.R. 3 p. 147; Nos. 5573/72 and 5670/72, Dec. 16.7.76, D.R. 7 p. 8).         In this case the applicant failed to bring the issue to the attention of the national courts during the proceedings in question. In that respect the applicant claims that this would have been an ineffective remedy as constant national case-law shows that such complaints are rejected.         Indeed it is true that only effective, adequate and accessible remedies have to be exhausted. However, the Commission notes that according to the material submitted it appears that no objections as to the composition of the courts were filed, either during the City Court proceedings, or in the appeal to the High Court. The High Court in the applicant's case actually inquired whether the parties had any objections as to the composition of the Court but the applicant did not even at that moment raise the present issue. Likewise, the applicant did not raise the issue when he applied for leave to appeal to the Supreme Court. Furthermore, it appears from the national case-law submitted by the applicant that the problem of judges' independence or impartiality is not dismissed as such but examined by the courts when invoked by a party and it cannot therefore be regarded as ineffective to raise this issue before the national courts during the proceedings in question. The Commission also recalls that it has constantly held that the mere existence of doubts as to the prospects of success does not absolve an applicant from exhausting a given remedy (cf. Nos. 5577- 5583/72, Dec. 15.12.75, D.R. 4 pp. 4,72 with further references). The Commission finally notes that the applicant subsequently tried, unsuccessfully, to have the case reopened referring to the complaint now brought before the Commission. However, it finds that such an extraordinary procedure did not absolve the applicant from raising the matter while the case was pending.         The Commission accordingly finds that the remedy, i.e. bringing the issue of independence and impartiality to the attention of the national courts during the proceedings in question, cannot be said to have been clearly without any prospects of success. Consequently, the applicant cannot be considered to have exhausted the effective remedies available to him under Norwegian law.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.      Furthermore the applicant complains, under Article 1 of Protocol No. 1 (P1-1) to the Convention, that his right to peaceful enjoyment of his possessions has been violated when the fishing licence was revoked following the sale of M/S Silljo out of the country. Article 1 of Protocol No. 1 (P1-1) to the Convention reads as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions. No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         In respect of this part of the application the Commission recalls that the licence was granted to the limited company M/S Silljo A/S in which the applicant was a 50% shareholder. As the revocation accordingly did not concern the applicant directly the question arises whether the applicant in the circumstances of the case may at all claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention. However, the Commission does not find it necessary to determine this issue because even assuming this to be the case the Commission considers that this part of the application is inadmissible for the following reasons.         The Commission has previously been called upon to determine whether the withdrawal of a licence constitutes an interference under Article 1 of Protocol No. 1 (P1-1) (cf. for example, Pudas v. Sweden, No. 10426/83, Dec. 5.12.84, D.R. 40 p.234). Regarding the question whether a licence to conduct certain economic activities could give the licence-holder a right which is protected under Article 1 of Protocol No. 1 (P1-1), the Commission considers that the answer will depend inter alia on the question whether the licence can be considered to create for the licence-holder a reasonable and legitimate expectation as to the lasting nature of the licence and as to the possibility to continue to draw benefits from the exercise of the licensed activity.         The Commission notes, however, that a licence is frequently granted on certain conditions and that the licence may be withdrawn if such conditions are no longer fulfilled. In other cases, the law itself specifies certain situations in which the licence may be withdrawn. It follows, in the Commission's opinion, that a licence-holder cannot be considered to have a reasonable and legitimate expectation to continue his activity, if the conditions attached to the licence are no longer fulfilled or if the licence is withdrawn in accordance with the provisions of the law which was in force when the licence was issued. As regards expectations for future earnings, the Commission also recalls its previous case-law to the effect that future income could only be considered to constitute a "possession", if it had already been earned or where an enforceable claim to it existed (cf. No. 8410/78, Dec. 13.12.79, D.R. 18 p. 216).         In the present case, the Commission recalls that a licence to fish in the Norwegian maritime territory was granted to the company M/S Silljo A/S in respect of the vessel M/S Silljo. However, conditions, inter alia, regulating the revocation of the licence followed from the applicable legislation, one condition being that the licence would be revoked when the vessel was sold. This ground for revoking the licence was applied in the present case, since M/S Silljo was sold following the bankruptcy of the owner, M/S Silljo A/S.          In these circumstances, the Commission considers that the revocation of the licence in accordance with the applicable legislation did not affect any property right protected under Article 1 of Protocol No. 1 (P1-1).         In the view of the above considerations, the Commission concludes that the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   4.     Finally the applicant complains that he was discriminated against when he applied for a new licence which was refused by the Ministry. The applicant has invoked Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1). Article 14 (Art. 14) reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."          According to the Commission's established case-law, Article 14 (Art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (Art. 14) does not necessarily presuppose a breach of those provisions there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (cf., for example, No. 11278/84, Dec. 1.7.85, D.R. 43 p. 216).         It is true that the applicant invokes Article 1 of Protocol No. 1, read in conjunction with Article 14 (P1-1+14). However, the question remains whether the applicant in applying for a new licence brings himself within the scope of this article which guarantees the peaceful enjoyment of already acquired possessions.         As set out above the Commission finds that the revocation of the previous licence does not involve the applicant's possessions within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention. Likewise the Commission is of the opinion that the application for a new licence did not concern the applicant's possessions either. The Commission finds, therefore, that the applicant cannot claim to have been deprived of a possession when he does not even have a legitimate expectation to obtain a new licence upon application. The Commission thus concludes that neither Article 1 of Protocol No. 1 (P1-1), nor any other provision of the Convention, is applicable in this situation which means that Article 14 (Art. 14) of the Convention cannot be invoked.         It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission,         unanimously       DECIDES TO ADJOURN the examination of the applicant's complaint       that the application for a fishing licence was not determined       within a reasonable time;         by a majority       DECLARES INADMISSIBLE the remainder of the application.   President to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)