Antonsen v. Norway



AS TO THE ADMISSIBILITY OF

Application No. 20960/92

by Alf Oddmund ANTONSEN

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 1997, the following members being present:

Mr. J.-C. GEUS, Acting President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 30 June 1992 by

Alf Oddmund Antonsen against Norway and registered on 18 November 1992

under file No. 20960/92;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 3 October 1994 and 30 April 1996 and the observations in

reply submitted by the applicant on 2 November 1994 and 12 March and

1 July 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Norwegian citizen, born in 1942. He resides

at Romset, situated in the northern part of Norway. Before the

Commission the applicant is represented by Mrs Synnøve Fjellbakk Taftø

of Storforshei, Norway.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

On 23 and 24 February 1991 the applicant went fishing near

Klöholman in northern Norway. He caught 300 kg of cod of which he

intended to give 100 kg to his daughter, living at Bodø, and 200 kg to

his son, living in Trondheim.

Due to the long distances involved the applicant agreed to meet

his son at Sortland on 25 February 1991 in order to hand over the fish.

However, there they were met by an inspector from the Directorate of

Fisheries (Fiskeridirektoratet) and the police who informed them that

it would be contrary to the applicable legislation to give the fish

even to close relatives since recreational fishing (fritidsfiske) in

that particular area of Norwegian maritime territory was limited to the

need of household consumption. It was agreed that the applicant could

keep the 300 kg of cod himself. However, when the inspector and the

police subsequently visited the applicant it turned out that he had

nevertheless given the fish to his children as intended.

In these circumstances the public prosecutor of Lofoten and

Vesterålen decided, on 3 July 1991, to present the applicant with the

option of accepting a fine of 1,000 NOK and the confiscation of

4,050 NOK, equivalent to the value of the fish in question. This option

was based on an alleged violation of section 53 of the Act relating to

sea-water fisheries (saltvannsfiskeloven) and the Regulation

(forskrift) of 16 November 1990 concerning cod fishing with

conventional tools in the particular area of Norwegian maritime

territory, which inter alia limited cod fishing to the need of

household consumption.

The applicant did not accept the option and the public prosecutor

therefore instituted proceedings against him in the District Court

(herredsrett) of Vesterålen where he was accused of having infringed

the above mentioned Act and Regulation as his children allegedly no

longer belonged to his household.

The trial before the District Court took place on 4 September

1991 The applicant was heard and two witnesses gave evidence. On the

basis of the facts established and after an evaluation of the available

evidence the Court acquitted the applicant by judgment of 5 September

1991 The Court stated inter alia as follows.

(Translation)

"The Court finds that [the applicant] fished for cod from

his boat off Klöholman, ... on 23 and 24 February this

year. He caught a total of some 300 kg of cod which he

intended to give to his daughter in Bodø (100 kg) and his

son in Trondheim (200 kg).

Shortly thereafter, the fish was delivered to his son, who

was in Sortland with a truck. An inspector from the

Directorate of Fisheries and a police officer turned up in

response to a tip-off. It was agreed that [the applicant]

would unload the fish from the truck and take it home for

his own use. However, after a short time the fish was

handed over to his son and daughter as originally intended.

These facts have been acknowledged by [the applicant].

According to section 11 subsection A of Regulation No. 994

relating to the regulation of cod fisheries using

conventional gear north of 62° 11.2 N lat. in 1991, issued

by the Ministry of Fisheries on 14 December 1990

recreational fishing may be carried out with a rod and hand

line and a net the length of which does not exceed 30

metres and a line with a maximum of 100 hooks per

household. The fishery must be limited to the quantity of

fish needed for the household's own consumption.

Although the wording of the provision may be unfortunate,

in the Court's view there can be no doubt that [the

applicant] violated the general prohibition against fishing

for cod, and that the exception set out in the provision

does not apply to him. His children live elsewhere in the

country and are not part of his household, and the purpose

of the fishing was to provide them with fish. Even if one

takes a liberal view in the matter, 300 kg of fish is a

larger quantity than may be caught, according to a

reasonable interpretation of the regulations, for close

relatives who have their own households.

[The applicant] was aware of the purely factual aspects,

but he claims that he was not aware that this fishery was

in contravention of the provisions applicable ('ignorance

of the law'). The Court is of the view that it has not been

established that he was familiar with the substance of the

provisions, even though he stated that he knew he was not

permitted to sell the fish. As regards the question whether

he should be acquitted pursuant to section 57 of the Penal

Code on grounds of ignorance of the law, the Court is

divided in a majority comprising the lay judges and a

minority comprising the presiding judge.

The majority is of the view that [the applicant] was of

such excusable ignorance [unnskyldelig villfarelse] of the

scope of the exception that he must be acquitted. The

majority points out that there is a long-standing culture

and tradition in the district, and for that matter in this

part of the country, that those who go to sea to fish give

some of their catch to those who have no opportunity to do

so and who therefore have no fish. Furthermore, there are

still a number of people who regard the extended family as

a unit, even if the members live in different places. In

the majority's view, it is probable that such ideas are

particularly prevalent in small communities such as Romset,

which is where [the applicant] lives. The majority further

points out that the provision on recreational fishing has

in part been practised fairly liberally, and that this

gives grounds for misconstruing the scope of the provision.

The majority attributes no significance to the fact that he

handed the fish over to his son and daughter after having

been given a warning by the inspector. The majority is of

the view that what was unlawful was the fishing itself, not

the subsequent act of handing over the fish to others.

Thus, such subsequent knowledge has no significance as

regards the question of guilt.

The minority is of the view that this ignorance of the law

was not excusable, even if one agrees that the

circumstances mentioned by the majority may be fitted to

render ignorance excusable. However, the provision on

fishing for household use has been subject to some

criticism and public discussion, for example in the local

newspapers. Moreover, the provision was the same in 1991 as

in 1990. The accused also gives an impression of being

reasonably intelligent. Since he has a boat which he uses

for fishing, the minority is of the view that he ought to

have acquainted himself more closely with current

provisions, for example by calling [the Directorate of

Fisheries] or the Fisheries Guidance Officer.

Since the accused is not liable to a penalty because he has

not been found guilty, confiscation of the catch is not

applicable either ... ."

On 18 September 1991 the public prosecutor of Lofoten and

Vesterålen asked the Supreme Court (Høyesterett) for leave to appeal

against this judgment. The request was based on points of law. The

prosecutor submitted that the District Court's judgment was based on

a wrongful interpretation of the applicable legislation and requested

the Supreme Court to pronounce a new judgment and to convict the

applicant instead of quashing the judgment and referring the case back

for a new trial in the District Court.

Leave to appeal was granted by the Appeals Selection Committee

of the Supreme Court (Høyesteretts kjæremålsutvalg) on 4 October 1991.

On 26 November 1991 the applicant was contacted by a lawyer who had

been appointed as his counsel. Counsel enclosed a copy of a 31-page

extract of documents concerning the case compiled by the public

prosecutor and informed the applicant that in so far as he had

information of relevance to the case which was not already in the file

counsel would like to hear from him. Counsel furthermore explained that

only counsel and the prosecutor could take the floor during the

proceedings in the Supreme Court whereas the applicant had the

possibility of being present but would not be heard. The applicant was

requested to inform counsel whether he wished to be present during the

hearing in which case his counsel would inform him of the date of the

hearing. The applicant would in any event be informed of the final

result.

In these circumstances, and having regard to the fact that he

lived almost 2000 km from Oslo where the Supreme Court sits, the

applicant decided not to contact counsel.

It appears that the case was heard in the Supreme Court in

March 1992. The Court had at its disposal the 31-page extract

containing the documentary evidence used in the District Court, the

court transcript and the District Court judgment. The applicant was not

present but was represented by counsel who, like the public prosecutor,

had the opportunity to address the Court twice. The Supreme Court

pronounced judgment in the case on 3 April 1992. On behalf of the

unanimous court Justice Hellesylt stated inter alia as follows:

(Translation)

"On 5 September 1991 [the applicant] was acquitted in a

judgment pronounced by the District Court of Vesterålen.

The judgment was subject to dissent. The entire court found

that there had been a violation of the provision of the

regulations prescribing that the catch must be limited to

the amount needed to meet the fisherman's own household's

need for fish for consumption. The majority - the lay

judges - who nonetheless voted in favour of acquittal,

justified this by finding that there was an excusable

ignorance of the law. The presiding judge disagreed with

this.

The facts of the case and the personal circumstances of

[the applicant] are set out in the judgment.

The prosecuting authority has appealed against the

application of the law, which is maintained to be erroneous

since the majority has found that there was an excusable

ignorance of the law, cf. section 57 of the Penal Code. The

Supreme Court has been requested to pronounce a new

judgment.

I find that the appeal must be allowed.

Counsel for the defence, who disputes that the majority's

application of the law is erroneous, has also raised the

question whether [the applicant's] case comes under the

regulations at all. I do not regard this as doubtful. As

may be seen from the judgment, [the applicant] caught 300

kg of cod 'which were intended for his daughter in Bodø

(100 kg) and his son in Trondheim (200 kg)'. The fish was

to be transported to these places by [the applicant's] son,

who was driving the truck. Thus, it was not a matter of

fish for the [applicant's] own household's needs.

As to the question whether there was an excusable ignorance

of the law, it appears from the judgment that [the

applicant] was aware that provisions on recreational

fishing had been made, but he was not familiar with the

substance of these provisions. In my view, the grounds

given by the majority for regarding [the applicant's]

ignorance of the law as excusable are not tenable. The

accused had a boat with which he used to do some fishing.

Thus, he had a duty to acquaint himself with the provisions

concerning recreational fishing. Moreover, it is clear from

the grounds given by the minority that the provisions on

fishing to meet the needs of one's household had been

discussed publicly, for example in the local newspapers.

It is clear that [the applicant] has, objectively speaking,

contravened the regulations and that the subjective

conditions for imposing a penalty have also been fulfilled.

The Supreme Court may thus pronounce a new,

convicting judgment, cf. section 362 subsection

2 of the Code of Criminal Procedure. I find that

the prosecuting authority's plea, which

corresponds to the writ giving the option of a

fine, should be allowed.

I vote in favour of the following judgment:

[The applicant] is fined NOK 1,000 with 5 days'

imprisonment in default of payment, for contravening

section 53 of the Act relating to sea-water fisheries, cf.

sections 4 and 5, cf. section 12 of the Regulations of 24

January 1991, cf. section 11.

He is sentenced to submit to the confiscation of NOK 4,050,

cf. section 54 of the Act relating to sea-water fisheries."

The applicant was informed of the judgment on 10 April 1992.

B. Relevant domestic law

Under section 278 of the Code of Criminal Procedure, proceedings

during the main hearing in the District or City Court are oral. Written

evidence is read out by the person producing the evidence unless the

court decides otherwise (section 302). After the examination of each

individual witness and after the reading out of each piece of written

evidence, the accused has to be given an opportunity to speak (section

303). The court must see to it that the facts of the case are fully

established (section 294).

When the production of evidence (bevisførselen) is completed, the

prosecutor and then defence counsel may make a speech. Each of them is

entitled to speak twice. When defence counsel has finished, the person

indicted is asked whether he has any further comment to make (section

304). In deciding what is deemed to be proved, only the evidence

produced at the main hearing shall be taken into consideration by the

court (section 305).

Under section 40 of the Code of Criminal Procedure, if the City

Court decides to convict the accused it must, in giving its verdict,

state in its judgment in a specific and exhaustive manner the facts of

the case which it has found to be proved and on which its verdict is

based. It must also refer to the penal provision under which the

accused has been convicted. In addition the judgment must state the

reasons to which the court has attached importance in determining the

sanctions.

If the person charged is acquitted, the grounds of the judgment

must, in accordance with section 40, indicate which conditions for a

finding of guilt are deemed not to be satisfied, or the circumstances

which exclude a sanction called for by the prosecution.

Under the Code of Criminal Procedure, as applicable at the

material time, a party in a criminal case seeking to challenge a

judgment of the District or City Court could, depending on the nature

of the point disputed, either request a new trial (fornyet behandling)

in the High Court (lagmannsretten) or appeal (anke) to the Supreme

Court. If the object was to contest the City Court's assessment of

evidence in relation to the question of guilt (bevisbedømmelsen under

skyldspørsmålet, section 369, as applicable at the relevant time), the

appellant party could, with leave from the Appeals Selection Committee

of the Supreme Court apply for a new trial in the High Court

(section 370, as applicable at the relevant time).

On the other hand, an appeal on grounds of errors of law going

to the verdict (rettsanvendelsen under skyldspørsmålet), on procedural

defects (saksbehandling) and as to sentence (straffutmåling) could be

lodged with the Supreme Court (section 335, as applicable at the

relevant time). The Supreme Court thus had no competence to review

questions of facts which go to the question of guilt but had to base

itself on the findings of the City Court in this respect. No such

limitation applied to the Supreme Court's jurisdiction with regard to

sentencing, which comprised both questions of facts and of law.

Both parties may in principle lodge an appeal against a judgment

of the District or City Court (section 335, as applicable at the time).

However, an acquitted person may not appeal unless the court has found

it proved that he committed the unlawful act referred to in the

indictment (section 336, as applicable at the time).

The appeal proceedings are prepared and conducted according to

the rules applicable to the hearing at first instance in so far as such

rules are appropriate and it is not otherwise provided (section 352,

as applicable at the relevant time).

The proceedings in the Supreme Court are oral and public and both

parties are allowed to speak twice. The appellant party is entitled to

address the court first. The accused may be allowed to address the

court during the hearing (section 356, as applicable at the relevant

time). Evidence is submitted to the court by reading out from the

documents relating to the case (section 357, as applicable at the

time).

Section 362 (as applicable at the time) read:

(Translation)

"If the court finds no reason to vary or set aside the

judgment appealed against, the appeal shall be dismissed by

court order.

In the alternative the court shall pronounce a new judgment

if the necessary conditions are fulfilled; otherwise the

judgment appealed against shall be set aside by court

order."

In determining whether the "necessary conditions are fulfilled",

the Supreme Court will concentrate on the question whether the facts

as ascertained in the judgment appealed against are sufficient to

render a new decision on the merits. Case-law under section 362

confirms that the Supreme Court is reluctant to pronounce a new

judgment.

Prior to the entry into force of the 1981 Code of Criminal

Procedure on 1 January 1986, the Supreme Court had, under section 396

of the 1887 Code of Criminal Procedure, power to give a new judgment

convicting the accused only when the question of guilt had been decided

against the defendant in the lower court. The 1981 Code removed this

limitation on the Supreme Court's competence.

Since 1 August 1995, when the 1993 Act Amending the Code of

Criminal Procedure (Lov av 11 juni 1993 nr. 80 om endringer i

straffeprosessloven m.v. (toinstansbehandling, anke og juryordning))

entered into force, an appeal against the District or City Court lies

ordinarily with the High Court, which has power to review points of

fact, law and procedure (sections 5, 306 and 345 as amended). As a

consequence, to a greater extent than before, the High Court will act

as a court of second instance, and the Supreme Court as a court of

third instance, in criminal cases.

On the other hand, the above-mentioned provisions in

sections 336, 356, 357 and 362, which have been replaced respectively

by sections 307, 339, 340 and 345, remain essentially unchanged.

In an opinion appended to the bill proposing to amend the Code

(Ot prp nr. 78 (1992-93), p. 25), the Supreme Court stated:

(Translation)

"The present system, where the Supreme Court acts as the

ordinary court of second instance in criminal cases, is

internationally unique. This arrangement has enabled a

speedy hearing of appeal cases and has given the Supreme

Court a considerable influence on the practice of criminal

law. However, in recent years - given current developments

- the present system has demonstrated that it is no longer

satisfactory. It does not fulfil the standards of legal

safeguards which ought to be met and, at the same time,

with the increased number of criminal cases in present-day

society, the arrangement creates working conditions in the

Supreme Court which prevent it from performing its

functions in a fully satisfactory manner. The proposal that

one should have two ordinary court levels below the Supreme

Court would bring the appeal system in criminal cases in

line with that in civil cases and with the appeal systems

in most countries. It would give the Supreme Court the

opportunity to concentrate its work to a greater extent on

cases where its decision will concern matters of principle,

or where there are other particular reasons for obtaining

a decision from the Supreme Court."

COMPLAINTS

1 The applicant complains, under Article 6 of the Convention, that

he did not have a fair hearing before the Supreme Court because he was

convicted following an acquittal without being heard by this court.

2 He also considers that the Supreme Court was neither an

independent nor an impartial tribunal.

3 Furthermore he complains, under Article 8 of the Convention, that

the authorities in their actions interfered with his relations

vis-à-vis his family.4. Finally, the applicant claims to have an

inherited economic right to go fishing and dispose of the catch as he

wishes. When restricting his alleged fishing rights the authorities

actually confiscated his property contrary to Article 1 of Protocol No.

1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 June 1992 and registered on

18 November 1992.

On 5 July 1994 the Commission (Second Chamber) decided that

notice of the application should be given to the respondent Government

and invited them to submit written observations on the admissibility

and merits of the complaint of the lack of a fair hearing as submitted

under Article 6 of the Convention.

The Government's observations were submitted on 4 October 1994

and the applicant's observations in reply were submitted on

2 November 1994.

On 7 December 1994 the Commission decided to grant the applicant

legal aid.

On 28 February 1995 the Commission decided to adjourn the further

examination of the application pending the outcome of the case of

Botten v. Norway which had been referred to the European Court of Human

Rights.

Judgment was pronounced on 19 February 1996 (Eur. Court HR,

Botten v. Norway judgment to be published in the Reports and Decisions

1996) following which the parties were invited, on 1 March 1996, to

submit additional observations on the admissibility and merits of the

application.

The Government submitted such observations on 30 April 1996. The

applicant's additional observations were submitted on 12 March and

1 July 1996.

THE LAW

1 The applicant complains that he did not have a fair hearing

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

which reads as far as relevant as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law."

The applicant maintains that the proceedings in the Supreme Court

did not comply with the above provisions. The Government dispute this.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of

law and of fact under the Convention, the determination of which should

depend on an examination of the merits of the application. The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2 Under Article 6 (Art. 6) of the Convention the applicant

furthermore maintains that the Supreme Court was neither impartial nor

independent.

The Commission has not found this part of the application to be

substantiated in any way. It follows that this particular complaint is

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3 The applicant also complains of an interference with his rights

under Article 8 (Art. 8) of the Convention following from the

authorities' actions in relation to his fishing rights.

The Commission has examined this part of the application as

submitted by the applicant. However, it considers that it does not

disclose any appearance of a violation of Article 8 (Art. 8) of the

Convention.

It follows that this part of the application is manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

4 Finally, the applicant claims to have an inherited economic right

to go fishing and dispose of the catch as he wishes. When restricting

his alleged fishing rights the authorities actually confiscated his

property contrary to Article 1 of Protocol No. 1 (P1-1) to the

Convention which 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."

The Commission recalls that Article 1 of Protocol No. 1(P1-1)

protects existing ownership and an applicant who alleges a violation

of the above provision must produce evidence showing that he was in

fact the owner of the "possession" of which he claims to have been

deprived (cf. e.g. No. 7742/76, Dec. 7.7.78, D.R. 14 p. 146 at p. 168).

In the present case the Commission does not find it established

that the applicant has any property right concerning fishing which

might entitle him to invoke the right to peaceful enjoyment of his

possessions guaranteed by Article 1 of Protocol No. 1 (P1-1) to the

Convention. In these circumstances there is no basis upon which it

could be held that his rights secured to him by this provision have

been violated. It follows that this part of the application is also

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint that he did not have a fair hearing;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary Acting President

to the Second Chamber of the Second Chamber