EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 17228/90
Arnt Andreassen
against
Norway
REPORT OF THE COMMISSION
(adopted on 2 March 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-17) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-12). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 13-17) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 18-64). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 18-54) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 55-64) . . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 65-81). . . . . . . . . . . . . . . . . . . . . . . .11
A. Complaint declared admissible
(para. 65) . . . . . . . . . . . . . . . . . . . . . . .11
B. Point at issue
(para. 66) . . . . . . . . . . . . . . . . . . . . . . .11
C. As regards Article 6 para. 1 of the Convention
(paras. 67-79) . . . . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 80). . . . . . . . . . . . . . . . . . . . . . . . . .14
APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15
APPENDIX II: DECISION ON THE ADMISSIBILITY OF THE APPLICATION .16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a citizen of the United States of America. He
is of Norwegian origin and was born in 1925. He now resides at Vanse,
Norway. Before the Commission the applicant is represented by
Mr. Knut Rognlien, a lawyer practising in Oslo.
3. The application is directed against Norway, whose Government are
represented by their Acting Agent, Mr. Erik Møse of the Attorney
General's Office.
4. The application concerns the length of proceedings in a dispute
between the applicant and other private individuals as to whether or
not he was entitled to buy certain land (odelsrett). The applicant
considers that the proceedings were not terminated within a reasonable
time and invokes Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 5 June 1990 and registered on
27 September 1990.
6. On 2 December 1991 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 28 February 1992.
The applicant replied on 15 April 1992.
8. On 30 March 1992 the Commission decided to refer the application
to a Chamber.
9. On 7 July 1992 the Commission (Second Chamber) decided not to
grant the applicant legal aid for the representation of his case.
10. On 12 January 1993 the Commission declared admissible the
applicant's complaint concerning the length of the proceedings. It
declared inadmissible the remainder of the application.
11. The text of the Commission's decision on admissibility was sent
to the parties on 21 January 1993 and they were invited to submit such
further information or observations on the merits as they wished. The
applicant and the Government submitted observations on 12 February 1993
and 1 March 1993 respectively.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, 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
14. The text of this Report was adopted on 2 March 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
15. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
16. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
17. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
18. In 1979 the applicant's uncle died and left the family farm to
his wife. The farm was subject to "odelsrett", hereinafter called
allodial right, and the applicant was one of the holders of such a
right.
19. In 1981 the County Agriculture Committee (fylkeslandbruksstyret)
allowed the aunt to separate the farm house from the property on
condition that the rest of the property be sold to neighbouring farmers
who were in need of land.
20. On 27 October 1982 and 23 February 1983 the County Agriculture
Committee allowed the rest of the property to be divided and sold to
two neighbours as additional land. One of them was the applicant's
brother. The areas were transferred to the new owners in January and
April 1983.
Proceedings before the District Court (Herredsretten)
21. By a submission dated 30 December 1983, the applicant instituted
proceedings in the District Court of Lyngdal in order to buy the farm
by virtue of his allodial right (proceedings for redemption -
odelsløsningssak). It was received by the Court on 10 January 1984.
The suit was directed against three neighbours, the two mentioned above
who had bought the property as additional land and a family which had
bought the farm house. The same day, the Court ordered the defendants
to submit their reply within three weeks.
22. The defendants submitted their reply on 24 January 1984. They
all disputed that the applicant had a right of redemption. The Court
requested observations from the applicant by 13 February 1984. On
15 February 1984 the applicant submitted his comments, which were sent
by the Court to the defendants for comments by 12 March 1984. Since
they did not respond by that date, the Court fixed a new time-limit,
18 April 1984.
23. On 16 April 1984 two of the defendants (the neighbouring farmers)
acknowledged that the applicant had an allodial right, whereas one
defendant (the buyer of the farmhouse) maintained that the applicant
had no right of redemption. The Court asked for the applicant's
comments by 23 May 1984.
24. On 23 May 1984 the applicant withdrew the case against the buyer
of the farm house. At the same time, he requested the Court to fix a
date for the hearing on the merits of the case against the remaining
two defendants. On 25 May 1984 the Court stated that the parties would
soon be contacted in order to fix a date for the main hearing.
25. Following certain correspondence between the parties and the
Court, the defendants informed the Court on 14 June 1984 that they had
on that day filed an application with the County Agriculture Committee
in accordance with section 31 of the Act of 28 June 1974 relating to
allodial rights (odelsloven), hereinafter the 1974 Act, the purpose
being to exempt the land from allodial rights. Referring to section 33
of the said Act they requested that the case before the Court be
adjourned pending the outcome of the administrative proceedings as to
their request for an exemption.
26. On 18 June 1984 the applicant informed the Court that in his
opinion the conditions for an exemption from allodial rights were not
fulfilled. He objected to the adjournment and requested that a date
for the main hearing be fixed. Within the deadline set by the Court -
5 July 1984 - the defendants repeated, on 26 June 1984, that the
proceedings should be adjourned. The applicant made further
submissions on 26 June 1984. On 27 June 1984 the County Agriculture
Committee decided to consider the defendants' application of
14 June 1984 for exemption of the land in question from allodial
rights. Following this the issue of adjourning the court case was again
discussed. By letter of 4 October 1984 counsel for the applicant
informed the District Court that the question of adjournment could
await determination until December 1984 when he expected that the
County Agriculture Committee would have decided in the matter of
exemption. It appears that the court proceedings were hereafter
adjourned.
27. Subsequent to its above-mentioned decision of 27 June 1984 to
consider the request for an exemption from allodial rights, the County
Agriculture Committee sent the application to the Municipality of
Farsund (Farsund kommune) for consideration and recommendation in
conformity with section 33 of the 1974 Act. On 31 August 1984 the
holders of allodial rights were invited to submit, by 3 December 1984,
any opinions they might wish to state in conformity with section 33 of
the 1974 Act.
28. The case was also sent to the Municipal Agriculture Board
(Landbruksnemnden) which received the application on 10 September 1984
and recommended on 1 October 1984 that the land should not be exempted
from the applicant's allodial right. The Municipality Council
(kommunestyret) of Farsund submitted a similar recommendation on
13 October 1984. The case was sent back to the County Agriculture
Committee on 24 October 1984. On 20 February 1985 the County
Agriculture Committee sent the case to the Ministry of Agriculture for
final decision with a recommendation in accordance with the views
expressed by the lower administrative authorities. On 27 February 1985
it was registered in the Ministry.
29. After the County Agriculture Committee had made the above
recommendation against the defendants' application, the applicant
informed the District Court thereof on 28 February 1985 and requested
the Court now to fix a date for the main hearing. The Court stated
that dates would now be fixed, but was informed by the defendants, on
4 March 1985, that there was no final decision as the application had
been forwarded to the Ministry of Agriculture. On 9 March 1985 the
applicant maintained his request for a date for the main hearing. The
case, however, remained adjourned.
30. By 11 April 1985 a draft report had been prepared in the Ministry
of Agriculture. On 5 June 1985 the relevant department in the Ministry
decided that there was a need for an inspection (befaring) of the land
before deciding upon the application. The District Court, the parties
and the administrative authorities involved were informed of the
decision by letter of 11 June 1985.
31. On 22 June 1985 the applicant informed the Ministry that his
lawyer was ill and requested that the inspection be postponed until he
had recovered or another lawyer had had the opportunity to acquaint
himself with the case.
32. On 16 August 1985 the parties were informed that the inspection
would take place on 27 August. A report following the inspection was
finished on 22 October 1985 and a draft decision from the relevant
department in the Ministry of Agriculture was available on
22 November 1985. The draft was approved by the State Secretary on
24 March 1986.
33. On 4 April 1986 the King in Council (regjeringen) decided by
Royal Decree that the land should be exempted from the provisions of
allodial law and accordingly the land became free of allodial rights.
34. On 18 April 1986 the defendants informed the District Court of
the Royal Decree and asked the applicant to state whether he intended
to withdraw the case against them or to challenge the validity of the
decision. The applicant, who at that juncture was without legal
representation, replied on 9 May 1986 that he did not wish to withdraw
the case against the defendants. On 2 June 1986 he informed the Court
that he wished to institute proceedings against the Government in order
to challenge the validity of the Royal Decree.
35. On 11 June 1986 the District Court acknowledged that the case had
become very old but considered that this was mainly due to the fact
that it had been adjourned pending the outcome of the exemption
proceedings before the administrative authorities. Accordingly, the
Court informed the applicant that if he intended to challenge the
legality of the Royal Decree he should institute proceedings before
15 July 1986.
36. On 11 July 1986 the applicant, who now had a new lawyer, informed
the Court that he would not institute proceedings against the
Government. However, in the case pending he would now, by way of
preliminary plea, argue that the Royal Decree was invalid. At the same
time he stated that at that stage it was not possible to fix a date for
the main hearing as he had to make thorough inquiries in order to
prepare his case. The Court asked for observations by 5 August 1986.
37. In a submission of 23 July 1986 the defendants accepted that the
validity of the Royal Decree was now to be decided upon on a
preliminary basis in the pending case. The Court asked for
observations by 15 August 1986.
38. On 3 September 1986 the applicant indicated that he would submit
more documents. He repeated and elaborated on his previous
argumentation in a submission of 9 October 1986 with 21 enclosures, and
indicated that more material would be produced during the main hearing.
At the same time he stated that the dates of the hearing could be fixed
provided that there was sufficient time for preparation. The Court
fixed 31 October 1986 as the time-limit for observations and stated
that the hearing would take place as soon as the Court had time
available.
39. On 27 and 29 October 1986 the defendants, who now had a new
lawyer, asked for extended time-limits and requested the applicant to
submit the supplementary material indicated in his submission of
9 October 1986.
40. On 7 November 1986 the dates for the main hearing were fixed at
2-4 March 1987.
41. The applicant produced supplementary material in a submission of
8 January 1987.
42. The main hearing took place on 2 and 3 March 1987. During the
hearing the District Court inspected the land. The applicant
maintained in particular that section 31 of the 1974 Act had been
applied retroactively to his detriment as it had been amended on
11 May 1984, i.e. while his case was pending before the District Court,
to such an extent that his legal position had been changed.
43. In its judgment of 3 April 1987, however, the District Court
found in favour of the defendants who had referred to the decision of
the Ministry of Agriculture and therefore refused to accept the
applicant's allodial right. The Court did not find that the Royal
Decree of 4 April 1986 was contrary to the Norwegian Constitution as
the amendment to the 1974 Act did not in fact mean a change in the
substance of section 31 of the Act but merely concerned a procedural
matter.
Proceedings before the Agder High Court (Agder Lagmannsrett)
44. On 5 May 1987 the applicant appealed against the judgment to the
Agder High Court. He argued on the same grounds as those advanced
before the District Court that the Royal Decree was invalid.
45. On 12 May 1987 the High Court requested the defendants to submit
observations, which were filed on 20 May 1987. The High Court decided
that any further observations from both parties should be submitted by
22 June 1987. The defendants' and the applicant's submissions were
dated 9 and 12 June 1987, respectively. On 25 June 1987 the applicant
was asked to prepare excerpts from the documents necessary for the High
Court's consideration of the case by 1 August 1987.
46. On 30 September 1987 the Court decided that the appeal hearing
would take place on 25-27 May 1988.
47. During the hearing on 25 and 26 May 1988 the High Court inspected
the land.
48. On 3 June 1988 the High Court overruled the District Court
judgment and gave judgment in favour of the applicant. According to
the High Court the application of section 31 of the 1974 Act as amended
affected the applicant's legal position in such a way that it was
contrary to Article 97 of the Constitution.
Proceedings before the Supreme Court (Høyesterett)
49. On 5 August 1988 the defendants lodged an appeal with the Supreme
Court. The applicant's observations were submitted on 15 August 1988.
50. On 1 September 1988 the case was admitted by the Appeals
Selection Committee of the Supreme Court (Høyesteretts
kjæremålsutvalg). At the same time the parties were asked to file any
requests for the taking of evidence by 25 September 1988. Such
requests were submitted by the defendants and the applicant on 13 and
21 September 1988, respectively.
51. On 5 September 1988 the Government declared that it wished to
intervene in the proceedings as amicus curiae (erklære
hjelpeintervensjon) since the Supreme Court was called upon to decide
an issue of alleged unconstitutionality of the 1974 Act.
52. Written observations were submitted by the parties on
7 November 1988 and 2 January 1989. On 23 January 1989 all parties
withdrew their requests for the taking of evidence. The Supreme Court
then allowed further observations to be submitted by 1 March 1989.
53. The Supreme Court hearings took place on 12-14 December 1989.
On 21 December 1989 the Supreme Court upheld the judgment of the
District Court, finding that the Royal Decree was not contrary to the
Constitution or invalid on other grounds.
54. Finally, the applicant filed an application with the Supreme
Court in August 1990 requesting that the case be re-opened. On
29 November 1990 the Supreme Court rejected the application.
B. Relevant domestic law
55. "Odel" is an ancient right in law which is specific to Norway.
The right is protected by Article 107 of the Constitution of
17 May 1814 which reads:
(Norwegian)
"Odels- og Aasædesretten maa ikke ophæves. De nærmere
Betingelser, hvorunder den, til største Nytte for Staten og Gavn
for Landalmuen, skal vedblive, fastsættes af det første eller
andet følgende Storthing."
(translation)
"The allodial right and the right of primogeniture shall
not be abolished. The specific conditions under which
these rights shall continue for the greatest benefit of the
State and the best advantage of the rural population shall
be determined by the first or second Storthing."
56. Detailed statutory provisions are set out in the 1974 Act. The
allodial right is designed to ensure that farms and farmland remain in
the hands of one family, and traditionally also to prevent the
accumulation of agricultural land in a few hands. The right applies
to agricultural land and may include woodland and mountain pasture.
It does not apply to mines, factories, industrial works and the land
on which they stand.
57. The right is created when a single owner has had full title to
the property for 20 years, and it passes to descendants of the original
owner of the right. Between the descendants there is a priority
system. When the property is transferred from one family to another,
only relatives closely related to the last owner acquire the allodial
right.
58. If the property is transferred to somebody outside the family,
a family member with an allodial right has the right of redemption.
A family member with a higher priority allodial right may also buy back
property sold to a family member with a lower priority.
59. A family member wishing to use his right of redemption must
institute proceedings against the buyer before the District Court
within two years after the transfer of ownership. The Court decides
what price the family member must pay on the basis of the value of land
being used for normal agricultural purposes according to principles
laid down in chapter XI of the 1974 Act. If there is any dispute
whether the plaintiff has an allodial right, the Court will first
decide this issue.
60. The decision of the District Court may be appealed against to the
High Court and then, with leave, to the Supreme Court.
61. The King in Council may decide to exempt land from prior allodial
right (odelsfrigjøring). The conditions are set out in chapter VIII
of the 1974 Act. Sections 31 and 33, which are relevant in the present
case, read as follows:
(Norwegian)
"§31. I den mon odelsrett vil kunne skiple ei eigedomstileigning
som staten har gjort ved kjøp etter reglane i jordlova eller
forkjøp etter konsesjonslova, kan Kongen fri slik jord for eldre
odelsrett. Odelsfrigjering kan likevel ikkje skje andsynes dei
som etter konsesjonslova § 6 nr. 1 kunne kjøpe eigedomen utan at
staten har forkjøpsrett, medmindre det gjeld eigedom der arealet
er under 30 dekar, eller vilkåra for oreigning etter § 20 i
jordlova ligg føre.
Det som er sagt i første stykket gjeld tilsvarande for jord som
er gått over til ny eigar ved friviljug handel, når
fylkeslandbruksstyret har godkjent kjøpet av di kjøparen bør få
tilleggsjord.
...
§33. Før det blir tatt avgjerd om odelsfrigjering etter §§
30-32, skal spørsmålet leggjast fram for kommunestyret til
fråsegn. Så langt det lar seg gjere skal også odelsrettshavarane
gjevast høve til å uttale seg om spørsmålet innan ein frist på
3 månader. Gjeld det odelsfrigjering etter §§ 30 og 31, skal det
innhentast fråsegn frå fylkeslandbruksstyret.
Når det er tatt steg til odelsfrigjering etter §§ 30-32, skal
odelsløysingssak som er eller blir reist, stoggast til spørsmålet
om odelsfrigjering er avgjort."
(translation)
"Section 31. In so far as the State might be prevented by
the provisions of allodial law from acquiring land by
purchase pursuant to the provisions of the Land Act or by
exercising its right of preemption pursuant to the
Concession Act, the King may exempt such land from prior
allodial right. Such exemption may not, however, be
effected in relation to any person who, pursuant to
section 6, item 1, of the Concession Act, may purchase the
property without the State being able to exercise a right
of preemption, unless it is a case of property covering an
area of less than 300 ares or the conditions regarding
expropriation pursuant to section 20 of the Land Act are
fulfilled.
The provisions of subsection one apply correspondingly to
land which has passed to a new owner by means of a
voluntary transaction when the County Agriculture Committee
has approved the purchase on the ground that the purchaser
should have additional land.
...
Section 33. Before a decision concerning exemption from
the provisions of allodial law is made pursuant to
sections 30 to 32, the matter shall be submitted to the
Municipality Council for an opinion. The holders of
allodial rights shall, in so far as possible, be given an
opportunity to state their opinions on the matter within a
three-month period. If it is a case of exemption from the
provisions of allodial law pursuant to sections 30 and 31,
the opinion of the County Agriculture Committee shall be
obtained.
When steps have been taken to obtain exemptions from the
provisions of allodial law pursuant to sections 30 to 32,
any proceedings for the redemption of allodial rights which
have been instituted shall be stayed until the question of
such exemption has been decided."
62. As a main rule, the King in Council will not consider whether
land should be exempted from the allodial right unless any holder of
such a right wishes to make use of it. Only in exceptional cases will
this question be considered before redemption proceedings are
instituted. If no allodial right holder wishes to make use of his
right, a decision relating to exemption from allodial law will not be
necessary.
63. If the King in Council decides that the land should be exempted
from allodial rights, a plaintiff who has instituted proceedings for
the redemption of allodial rights has the following options if he
wishes to challenge that decision:
- he may institute proceedings against the Government and maintain
that the Royal Decree is invalid. In that case, he must request
the adjournment of the case which is already pending;
or
- he may pursue the proceedings already instituted and invoke as
a preliminary argument that the Royal Decree is invalid.
64. If he does not wish to contest the validity of the Royal Decree,
the redemption case will be discharged.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
65. The Commission has declared admissible the applicant's complaint
that his claim to buy certain land by virtue of his allodial rights was
not determined within a reasonable time.
B. Point at issue
66. Accordingly, the Commission is called upon to consider whether
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in that the length of the proceedings exceeded the
"reasonable time" referred to in this provision.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
67. Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far
as relevant, as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing within a
reasonable time by a ... tribunal ... ."
68. The Commission recalls that the proceedings in question related
to a dispute between the applicant and other private individuals,
including his brother, as to whether the applicant could buy, and if
so on what conditions, certain pieces of farm land by virtue of his
allodial right. It is undisputed that these proceedings involved the
determination of a "civil right" and thus fall within the scope of
Article 6 para. 1 (Art. 6-1) of the Convention.
69. With regard to the period of time to be considered, the
Commission considers that the proceedings opened on 30 December 1983
when the applicant addressed his first submission to that effect to the
District Court of Lyngdal, and came to an end on 21 December 1989 when
the Supreme Court pronounced judgment in the case. Accordingly, they
lasted approximately six years.
70. The applicant maintains that the length of the proceedings cannot
be considered to be reasonable. In particular he contests that the
court proceedings had to be adjourned pending the outcome of the
defendants' request for the exemption from the provisions of allodial
law and he contests that he agreed to such an adjournment. The
applicant points out that the facts disclose that the case in the
District Court was ready for examination already on 25 May 1984,
whereas the District Court did not pronounce judgment until
3 April 1987. Furthermore, the administrative authorities' examination
of the exemption request was such that the proceedings as a whole were
unduly prolonged.
71. The Government contend that, although the purpose of the
proceedings instituted by the applicant was primarily to fix the price
to be paid if he wanted to make use of his allodial right, the
defendants' request for an exemption from the provisions of allodial
law brought a totally new issue forward which had to be determined by
the administrative authorities first. This intertwining of civil and
administrative proceedings the Government consider to be of relevance
when examining the complexity of the case. Furthermore, the examination
by the administrative authorities of the exemption request was not a
routine matter but required careful consideration. The courts were also
called upon to examine constitutional issues the complexity of which
are exemplified by the fact that the three judicial instances involved
were not unanimous on that point.
72. The Government further contend that the applicant agreed to
adjourn the court proceedings until the administrative authorities had
concluded their examination of the exemption issue and also otherwise
contributed to the length of the proceedings. Finally, the Government
maintain that the facts of the case show that the authorities acted
with appropriate diligence and kept the case under continuous
consideration.
73. The Commission recalls that the reasonableness of the length of
proceedings must be assessed with reference to the following criteria:
the complexity of the case, the conduct of the parties and that of the
authorities before which the case is brought, as well as the particular
circumstances of the case which may call for an overall assessment (cf.
Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A
no. 198, p. 12, para. 30). The Commission also recalls that in civil
cases the exercise of the right to a hearing within a reasonable time
is subject to diligence being shown by the party concerned (cf. Eur.
Court H.R., Pretto and Others judgment of 8 December 1983, Series A
no. 71, pp. 14 et seq., paras. 33 et seq.). Nonetheless this principle
cannot absolve the courts from securing that the case progresses within
a reasonable time (cf. Eur. Court H.R., Martins Moreira judgment of
26 October 1988, Series A no. 143, p. 17, para. 46). Lastly, only
delays attributable to the State may lead to the conclusion that the
"reasonable time" requirement was not complied with (cf. Eur. Court
H.R., Guincho judgment of 10 July 1984, Series A no. 81, p. 16,
para. 38).
74. In the present case the Commission recalls that the proceedings
in question lasted approximately six years, which may be divided into
the following stages:
- approximately three years and three months in the District Court
of Lyngdal (30 December 1983 to 3 April 1987);
- approximately one year and one month in the Agder High Court
(5 May 1987 to 3 June 1988); and
- approximately one year and four and a half months in the Supreme
Court (5 August 1988 to 21 December 1989).
75. During the first stage of the proceedings the District Court of
Lyngdal did not proceed with the case from 14 June 1984 until
18 April 1986 due to the fact that the defendants had submitted a
request to the competent administrative authorities to have the land
in question exempted from the provisions of allodial law. The applicant
maintains that this de facto adjournment was unnecessary and
unacceptable whereas the Government maintain that it was pertinent as
the outcome of the defendants' request would be of decisive importance
to the case as it stood before the District Court.
76. The Commission recalls that according to section 33 of the 1974
Act (para. 61 above) any proceedings for the redemption of allodial
rights which have been instituted shall be stayed until the question
of exempting the land in question from the provisions of allodial law
has been decided. Furthermore, it appears from Norwegian practice
(para. 62 above) that, as a main rule, the King in Council will not
consider whether such exemption should be allowed unless any holder of
such a right wishes to make use of it. It follows from this that the
District Court of Lyngdal could not but adjourn the proceedings
instituted by the applicant when the defendants chose to make use of
the possibility to have the land in question exempted from the
provisions of allodial law and it also follows that the Government's
contention that the applicant agreed to the adjournment is without
relevance.
77. However, the Commission recalls that it is for the Contracting
States to organise their legal systems in such a way that their courts
can guarantee the right of everyone to a final decision within a
reasonable time in the determination of his civil rights and
obligations (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991,
Series A no. 206-C, p. 32, para. 17). It follows that where domestic
legislation allows for such adjournments as in the present case, it
falls within the responsibility of the Contracting State to secure that
delays resulting therefrom will not go beyond what is acceptable in
order to allow the courts to comply with the requirements of Article 6
(Art. 6) of the Convention.
78. The case as it stood before the District Court of Lyngdal at the
time the applicant instituted the proceedings was not complex. As a
matter of fact it was only a question of fixing the price the applicant
had to pay as the defendants acknowledged, already on 16 April 1984,
the existence of the applicant's allodial right. Furthermore, the
District Court considered the case to be ready for examination as early
as 25 May 1984 when it informed the parties of its intention of fixing
a date for the main hearing. However, it was the defendants'
application to the County Agriculture Committee to exempt the land in
question from the provisions of allodial law which prevented the
District Court from proceeding with the matter, something which was
outside the applicant's control, and the District Court was, for this
reason, unable to continue its examination of the case until
18 April 1986, i.e. during a period of almost two years. This period
of inactivity on part of the District Court was due to the way the
respondent State has organised its legal system and the resulting delay
is accordingly imputable to it. Furthermore, having regard to the fact
that all parties concerned were fully aware of the proceedings pending
in the District Court of Lyngdal, the Commission considers that the
administrative authorities did not act with the necessary diligence
when allowing the matter to drag on for almost two years.
79. In the light of these circumstances the Commission, taking
account of the periods of inactivity imputable to the authorities and
the overall length of the proceedings, considers that the latter is
incompatible with the reasonable time requirement laid down in
Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
80. The Commission concludes, by ten votes to three, that in the
present case there has been a violation of Article 6 para. 1 (Art. 6-1)
of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
5 June 1990 Introduction of application
27 September 1990 Registration of application
Examination of admissibility
2 December 1991 Commission decision to communicate
the case to the respondent Government
and to invite the parties to submit
observations on admissibility and
merits
28 February 1992 Government's observations
15 April 1992 Applicant's observations in reply
12 January 1993 Commission's decision to declare
application in part admissible and in
part inadmissible
Examination of the merits
21 January 1993 Decision on admissibility transmitted
to parties. Invitation to parties to
submit further observations on the
merits
12 February 1993 Applicant's observations
1 March 1993 Government's observations
8 September 1993 Commission's consideration of state
of proceedings
19 January 1994 Commission's consideration of state
of proceedings
2 March 1994 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy