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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. NORWAY - 2385/64 [1967] ECHR 17 (10 February 1967) URL: http://www.bailii.org/eu/cases/ECHR/1967/2385_64.html Cite as: [1967] ECHR 17

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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.