AS TO THE ADMISSIBILITY OF
Application No. 26604/95
by Odd F. LINDBERG
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mr. J.-C. GEUS, Acting President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
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 26 June 1994 by
Odd F. LINDBERG against Norway and registered on 1 March 1995 under
file No. 26604/95;
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 applicant is a Norwegian citizen, born in 1945. He is a
journalist and freelance photographer. He submits that he is at present
in hiding in Sweden. In the proceedings before the Commission he is
represented by Mr Percy Bratt and Mr Jan Södergren, lawyers practising
in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In his capacity as Sealing Inspector appointed by the Ministry
of Fisheries the applicant was on board M/S Harmoni, a seal-hunting
vessel, during the seal-hunting seasons 1987 and 1988. He subsequently
wrote a report dated 30 June 1988 and later appeared in TV programmes
on Norwegian and Swedish television where he spoke about the events.
He also produced a film on the subject.
As a result, 19 members of M/S Harmoni's crew summoned the
applicant to appear in court charged with defamation. They also wanted
a prohibition on the publication of the report of 30 June 1988 as well
as the film. Sarpsborg City Court (byrett) pronounced judgment on
25 August 1990 and as a consequence, several statements were declared
null and void and deleted from the report and the film. The applicant
was further requested to pay NOK 13,000 in compensation to each member
of M/S Harmoni's crew and NOK 150,000 in costs. Leave to appeal was
rejected by the Appeals Selection Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) on 16 May 1991.
COMPLAINTS
The applicant complains of a violation of his right to freedom
of expression and invokes Article 10 of the Convention.
By letter of 2 January 1995 the applicant furthermore alleged
that he did not have a fair trial by an independent and impartial
tribunal and that he was not presumed innocent as required by Article 6
paras. 1 and 2 of the Convention. He also maintained in the letter that
his case disclosed a violation of Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The complaint concerning Article 10 of the Convention was
introduced by letter of 15 November 1991 in which the applicant briefly
described the facts and referred to Article 10 of the Convention. The
letter concluded as follows:
"For practical reasons I am enclosing a copy of the front
page and the conclusion of the [Sarpsborg byrett] judgment,
and a copy of the Supreme Court decision which turned down
my appeal. The Supreme Court decision was of the
16th May 1991, and came to my knowledge some days later.
I will shortly send a formal argument in support of my
application against Norway.
I am presently taking legal advice on this matter.
Please acknowledge [receipt] of this letter." On 17
January 1992 the Commission's Secretariat acknowledged
receipt of the above letter as requested and enclosed a
copy of the Convention and a notice to applicants
containing information as to how to submit an application
to the Commission.
By letter of 26 June 1994 Mr Percy Bratt introduced himself as
a representative of the applicant and requested "information concerning
the status of the above-mentioned matter".
By letter of 7 July 1994 Mr Bratt was informed that since the
applicant had not pursued the application since January 1992 no further
action had been taken.
By letter of 2 January 1995 the applicant's representatives
submitted a completed application alleging breaches of Articles 6, 10
and 13 of the Convention.
By letter of 21 February 1995 the applicant submitted the
following explanation for the delay in pursuing the application.
"The public opinion in Norway became very harsh to members
of the Lindberg family, which was heightened by the
authorities insisting upon Mr Lindberg being a liar (the
report of the Seal Commission - although framed in an
official jargon - was not in the least devastating). He
became 'a people's enemy'.
His family was already drained of money from the legal
proceedings. His wife was fired from her job without
reasonable grounds. His children were harassed in school.
He could not pay the legal fees requested by his Norwegian
lawyer in order to complete the application. He
subsequently had to move out of the country. Further he did
not receive any royalty payments from the producers of the
programs which were sent before the prohibition of
publication.
As apparent from what is mentioned above he still lives in
Sweden and his living conditions are still very tight. He
did not have the possibility to benefit from his efforts in
the West Ice. Recently his book written about the sealhunt
was withdrawn by his Swedish publisher - Norstedts Förlag -
since this company is sued for damage by the Norwegian
Sealhunters, due to some thirty copies of the book was sold
in Norway. This case - among others - are pending in
Norway. Some judgments are already delivered. It seems to
be a never ending story.
Added to the above, while residing in Sweden there was a
burglary in Mr Lindberg's house in Norway, where several
documents were taken. This has not facilitated neither for
him, nor his lawyers, in completing the application.
It also seems impossible to obtain any documents or
evidence of any value from Norwegian authorities. This is
apparent not in the least from the fruitless efforts in
trying to obtain inter alia the tapes from the hearing of
the former sealhunting inspector Eva Munk-Madsen.
In all this more than sufficiently amounts to
due causes for the delay - not in the least since the
Government does not play an insignificant part in causing
Mr Lindberg the dilemmas."
The application was registered on 1 March 1995.
THE LAW
The applicant complains of an unjustified interference with his
right to freedom of expression and alleges that he did not have a fair
trial. He invokes Articles 6, 10 and 13 (Art. 6, 10, 13) of the
Convention.
Pursuant to Article 26 (Art. 26) of the Convention, the
Commission has first considered the question of the date of
introduction of the present application. In this respect the Commission
recalls that the applicant's first communication to the Commission was
dated 15 November 1991 in which he announced his intention to complete
the application in due course. However, he did not resume the
correspondence with the Commission until 26 June 1994.
In accordance with its established practice, the Commission
considers the date of introduction of an application to be the date of
the first letter indicating an intention to lodge an application and
giving some indication of the nature of the complaint. However, where
a substantial interval follows before an applicant submits further
information as to his proposed application, the Commission examines the
particular circumstances of the case in order to decide what date shall
be regarded as the date of introduction and from which to calculate the
running of the six month period set out in Article 26 (Art. 26) of the
Convention (see No. 4429/70, Dec. 1.2.71, Collection 37, p. 109).
The Commission finds that one of the purposes of the six months
rule is to ensure that cases raising issues under the Convention are
dealt with within a reasonable time. Furthermore, it ought also to
protect the authorities and other persons concerned from being under
any uncertainty for a prolonged period of time.
There is a parallel between the aim pursued in Article 26 and
Article 6 para. 1 (Art. 26, 6-1) of the Convention in that both
Articles should secure a determination of a case within a reasonable
time. The express obligation mentioned in Article 26 (Art. 26) of the
Convention, however, only relates to the lodging of an application but
the Commission has in this respect so far been generous in accepting
that the date of introduction was the submission of the first letter
concerning the complaint without imposing any further restrictions.
However, it would be contrary to the spirit and the aim of the
six month rule set out in Article 26 (Art. 26) of the Convention if,
by any initial communication, an applicant could set into motion the
proceedings under Article 25 (Art. 25) of the Convention and then
remain inactive for an unexplained and unlimited length of time. The
Commission has constantly rejected applications where an applicant
submitted an application more than six months after the date of the
final decision when there were no special circumstances suspending the
running of this period. The Commission finds that it would be
inconsistent with the aim and purpose of the six month rule to deviate
from this rule in a situation where an application has been introduced
under Article 25 (Art. 25) of the Convention within six months from the
final decision but thereafter has not been pursued. Delays in pursuing
the case are only acceptable in so far as they are based on reasons
connected with the case (cf. e.g. No. 22507/93, Dec. 5.4.95, D.R. 81-A,
p. 67). Such reasons may consist of the exhaustion of remedies which
an applicant has reason to believe was necessary (see Nos. 9024/80 and
9317/81, Dec. 9/7/82, D.R. 28, p. 138). In such circumstances, however,
the Commission finds that it follows from the purpose and aim of
Article 26 (Art. 26) of the Convention that the application must be
pursued by the applicant within a period of six months after the date
of the final decision obtained (cf. No. 10626/83, Dec. 7.5.85, D.R. 42,
p. 205).
In the present case the Commission recalls that approximately two
years and seven months passed until the applicant, on 26 June 1994,
resumed the correspondence with the Commission and an additional six
months and one week passed before he submitted the completed
application with supporting documents on 2 January 1995. The Commission
does not find that the reasons which caused these delays, as submitted
by the applicant, are of a kind which could have suspended the running
of the six month period referred to in Article 26 (Art. 26) of the
Convention.
Therefore, notwithstanding the applicant's initial submission of
15 November 1991 the Commission considers in the present case
26 June 1994 to be the date of introduction of the application and it
follows that, having thus been introduced out of time, it must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary Acting President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy