AS TO THE ADMISSIBILITY OF
Application No. 25944/94
by PETERSON SARPSBORG AS and Others
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, 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 4 November 1994
by Peterson Sarpsborg AS and Others against Norway and registered on
14 December 1994 under file No. 25944/94;
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 applicants nos. 1-3 are Norwegian companies and the
applicants nos. 4-6 are Norwegian citizens who at the relevant time
were the respective managing directors of the companies (see annex).
Before the Commission all applicants are represented by Mr. Anders Chr.
Stray Ryssdal, a lawyer practising in Oslo.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicant companies are undertakings engaged in the
manufacturing and sale of corrugated cardboard, mostly for the
Norwegian market. Occasioned by tip-offs about unlawful collaboration
over prices, inspections were made in the period from May to
December 1990 by the Price Directorate (Prisdirektoratet) and the
National Price Inspectorate (Statens pristilsyn). Pursuant to
section 15 of the Prices Act of 26 June 1953 (prisloven), and section 7
of the Regulations Enforcement Act of 9 July 1948 (lov om oppehalding
av pris- og rasjoneringsføresegnene o.a.) statements were taken from
the managing directors of the companies and from other employees. The
inspectors from the price authorities prepared summaries of the
statements made, a total of 34 individual statements, seven of which
had been made by the senior executives. The summaries were prepared
directly in continuation of the meetings in which the statements were
made, and in co-operation with the persons making the statements. The
persons making the statements had the opportunity to suggest
amendments. The final summary was co-signed by the person making the
statement after being annotated as having been read through and found
to be correct.
As a result of the inspections, the Price Directorate on
4 October 1991 reported inter alia the three applicant companies to the
Oslo Police which commenced an investigation of the matter. Økokrim,
the authority investigating and prosecuting economic and environmental
crime in Norway, filed charges on 16 June 1993 under section 52,
cf. sections 24 and 42, of the Prices Act and section 1, cf. section 3,
of the Regulations of 1 July 1960 on Restraint of Competition on Prices
and Profits (forskrift av 1 juli 1960 om konkurrencereguleringer av
priser og avanser) against the managing directors of the companies (the
three individual applicants), for having violated during the period
from 1983 to 1990, in particular aggravating circumstances, the
prohibition on competitive restraint through various forms of price
collaboration. On 12 August 1993 charges were brought also against the
three applicant companies. The main proceedings in the criminal case
commenced before the Oslo City Court (byrett) on 18 April 1994.
Prior to that, in presenting its list of evidence to the City
Court, Økokrim had stated its intention to submit summaries of the
statements obtained by the price authorities. The accused parties
demanded that the summaries be precluded as evidence. Pursuant to
section 272 subsection 2 of the Code of Criminal Procedure
(straffeprosessloven) the City Court held a session to consider the
question of preclusion, and on 22 December 1993 gave its ruling with
the following conclusion:
(Translation)
"Statements taken by the Price Directorate by virtue of
section 7 of the Regulations Enforcement Act and section 15
of the Prices Act will be precluded from being presented as
evidence in the criminal case.
This preclusion relates to all forms of their submission as
evidence - direct reading aloud or in other more indirect
manners."
The City Court found that the statements should be considered as
having been made "in the context of the case", cf. the final sentence
of sections 290, 296 and 297 of the Code of Criminal Procedure. The
Court also held - referring among other things to the fact that they
had been made according to duty and under penalty of the law - that the
statements could not be used to confront the applicants and the
witnesses concerned with their previous submissions while giving
evidence during the main hearing.
An appeal was lodged by Økokrim with the Eidsivating High Court
(Eidsivating lagmannsrett) against the ruling of the City Court.
Following an oral hearing the High Court concluded, on
28 February 1994, as follows:
(Translation)
"The statements submitted which were taken by the Price
Directorate and the National Price Inspectorate pursuant to
section 7 of the Regulations Enforcement Act of 9 July 1948
and section 15 of the Prices Act, are precluded as
documentary evidence in the criminal case. The statements
may be used as evidence to the extent foreseen in
sections 290, 296 and 297 of the Code of Criminal
Procedure."
The High Court agreed with the City Court that the statements
made to the price authorities should be regarded as having been made
in the context of the case, but did not find any basis for refusing
their use during the main hearing in the way foreseen by sections 290,
296 and 297 of the Code of Criminal Procedure.
The applicants and Økokrim appealed against the decision to the
Supreme Court (Højesterett). On 25 March 1994 the Appeals Selection
Committee of the Supreme Court (Højesteretts kjæremålsutvalg) granted
leave to appeal to both parties.
In the decision of 13 May 1994 Judge Bugge stated on behalf of
the unanimous Court inter alia as follows:
(Translation)
"This case concerns statements made to the civil servants
of the price authorities at a time when the case
was stillatthe inspection and examination
stage, long beforeany criminal investigation was
embarked upon. There will often be such a stage
within the area of regulatory legislation. The
inspecting authorities in charge of the
enforcement need to go into the matter for the
purpose of clarifying the factual circumstances
before an investigation ofany offences can be
considered. Some regulatory Acts, such as the
price and competition legislation,
expresslyprovide justification for the duty to
supply information and make statements, under
penalty of the law, without the need for me here
to go into the individual rules of law. It is
possible to speak of a certain 'tension' between
the rules relating to the duty to supply
information within or outside of criminal
proceedings. I consider it quite clear,however,
that one cannot deduce from the rules governing
criminal procedure any general ban against using
information supplied by virtue of such a duty as
evidence in a subsequent criminal case.
[The applicants] have argued that a ban as stated will in
this case need to follow from the investigative powers of
the price legislation itself. Reference is made to the fact
that the duty to supply information under section 15 of the
Prices Act is linked to the kind of information required by
the Price Directorate 'to enable it to carry out its tasks
under this Act', cf. the corresponding wording in section 7
of the Regulations Enforcement Act. I hold this to be
untenable. According to section 5 of the Act the task of
the Price Directorate is, among other things, to 'assist in
implementing the Act'. It is evident that the Directorate
is entitled - indeed obliged - to report any matters of a
criminal nature and also, in that event, to leave to the
Police any informative material compiled during the
investigative examinations. I fail to find any basis for an
interpretation of the Prices Act and the Regulations
Enforcement Act which would preclude the prosecution from
using this material as evidence in the criminal case. The
defence counsel has referred to opinions expressed in the
decisions in Rt 1976, p. 1219 and p. 1446 where mention is
made of the dissimilarities between the duty to supply
information at the investigative stage and in the criminal
case. Also here I fail to find any support for the
submission made by [the applicants].
...
[As regards the relationship with the Human Rights
Conventions] this aspect of the case has been argued more
extensively before the Supreme Court than before the lower
bodies.
[The applicants] submit that - regardless of the conclusion
arrived at under domestic law - it follows from the rules
of law which may be deduced from the European Convention on
Human Rights (ECHR) and the UN International Covenant on
Civil and Political Rights, both of which Norway has
acceded to, that the statements must be precluded as
evidence in the criminal case. At any rate, this should
apply to the statements made by [the applicants].
To this I would remark initially that I agree that
Norwegian courts must apply the procedural rules in the
area of criminal law in such a manner as to render the
trial compatible with our obligations under the treaties,
and that it may be necessary to set aside the Norwegian
rules in the event of conflict, cf. section 4 of the Code
of Criminal Procedure. ...
[The applicants] have invoked three grounds on which the
use of the statements as evidence in the criminal case
would be contrary to the conventions.
The first one is the requirement in Article 6 para. 2 of
the ECHR that a person who is accused shall be presumed
innocent until proved 'guilty according to law'. It is
submitted that a conviction which for evidence relies
on statements which [the applicants] have made to the price
authorities will not meet the basic requirements which must
apply in respect of the presentation of evidence in a
criminal case.
The second ground is the principle of 'equality of arms'
which is deemed part of the requirement of a fair trial,
laid down in Article 6, more specifically para. 3 (d), of
the ECHR. It is argued that when the presentation of
evidence in a case is going to build substantially on
statements taken from witnesses without [the applicants]
having been represented, then that will not meet the
requirement which states that the indicted parties and the
prosecution authority should have been allowed equal
opportunity to safeguard their interests.
The third ground is the ban on an accused or indicted
person being forced to testify against himself or to plead
guilty - 'self-incrimination' - expressed in Article 14
para. 3 (g) of the UN Covenant. This ban must be considered
to apply also within the scope of the ECHR. It is
maintained that the statements, if used as evidence, will
in fact entail that [the applicants] will have been forced
to 'incriminate' themselves. It is no excuse that the
formal rules in the Code of Criminal Procedure concerning
the duty of [the applicants] to make a statement otherwise
meet the requirements of the Convention. [The applicants]
invoke in particular the ruling by the European Court of
Human Rights of 25 February 1993 in Funke v. France which
is alleged to have put an end to permitting information
provided under a duty, sanctioned by a threat of
punishment, to make a statement to a public investigative
authority to be used as evidence in a criminal case. [The
applicants] have also referred to the decision reached by
the Commission of Human Rights on 13 October 1992 in the
case of K v. Austria, and to decisions by the EC Court of
18 October 1989 in the case of Orkem v. The Commission and
of 10 November 1993 in the case Otto BV v. Postbank NV.
Before the Supreme Court, Økokrim has contested that it is
possible to infer from any of the said treaty texts or
court rulings any ban on the statements being presented as
evidence. This also applies to the judgment in the Funke
case which, in the opinion of the prosecution, is
distinguishable in several ways from the problems involved
in the present case.
I for my part fail to see that the first two grounds have
any merit. If the indicted parties, in an ordinary trial,
were to be found by the City Court to be guilty as charged,
it cannot possibly be said that their guilt has not been
'proved according to law' - due to the statements made to
the price authorities having been available as evidence in
the case. As has been stated, the statements did come about
in a completely lawful manner. Nor can there be any grounds
for saying that the tenet of 'equality of arms' has been
violated, having regard to the fact that [the applicants]
and their counsel will have had the opportunity in the
normal way, to question in court any witnesses called
against them and themselves to call any defence witnesses
they want. In my view, the minimum requirements posed by
Article 6 para. 3 (d) of the ECHR must thereby have been
satisfied. The third ground, the ban on self-incrimination,
deserves somewhat closer consideration.
Under Article 14 para. 3 (g) of the UN Covenant, anybody
(in the English text) 'in the determination of any criminal
charge against him' is entitled to not 'being forced to
witness against himself or to plead guilty'. Any such
explicit provision does not exist in ECHR. The Court of
Human Rights has, however, taken as its basis that a
similar warranty of legal protection also applies within
the area of the ECHR, associated with the 'fair trial'
concept. A corresponding basis has, incidentally, been
applied by the EC Court of Justice.
The ban on anybody being forced to admit his own guilt thus
applies in determining 'a criminal charge' against the said
person, and that must mean when a criminal case has been
opened. This requirement, as I have pointed out above, is
met in our Code of Criminal Procedure. It is, however,
argued by [the applicants] that in the Funke case, the
Court of Human Rights has given a wider scope to the ban so
that also the use of 'self-incriminating' information which
an accused person has been ordered to provide at an earlier
stage of the case - at the 'investigative' stage - must be
deemed to be contrary to the Convention.
...
The Funke case related to presentation of documents, not to
the question of the duty to make a statement. The way I
understand the judgment, what the Court ruled on directly
was the actual fine being imposed on Mr. Funke to force him
to comply with the presentation order; the issue of whether
the use of documents in a subsequent criminal case against
Mr. Funke would have been regarded as contrary to the
Convention, is not mentioned. ... The Funke judgment thus
does not touch on what is the crux of the matter in our
case, since the statements were taken at a time when [the
applicants] were not accused or suspected of any criminal
act. As mentioned, Norwegian criminal procedural law
ensures the personally indicted parties the right to
'remain silent and not to contribute to incriminating
themselves'.
In any circumstances I fail to find justification in the
brief reasons given by the Court in the Funke case, as [the
applicants] would do, for drawing the conclusion that it
would be contrary to the 'fair trial' concept to use the
summaries of statements with which our case is concerned as
evidence in the criminal case. Far less can it be inferred
that the actual duty to make a statement under the rules of
the prices and competition legislation would be contrary to
the Convention. That would be ascribing to the judgment
far-reaching - and in my opinion unpredictable - effects on
Norwegian domestic law. The defence counsel, on being asked
during the appeals proceedings, has incidentally indicated
that [the applicants] do not contest as such the duty to
make a statement to the price authorities.
The other European Court rulings which have been referred
to during the closing arguments, each of which has its own
special features, I see no reason to go into. None of them
can in my view provide any basis for ascertaining that it
would be contrary to Norwegian obligations under the
conventions if use were to be made of the statements as
evidence in the criminal case.
...
The question is then whether the statements must be seen as
having been made in the context of the case, so that they
cannot be presented as ordinary documentary evidence, but
merely be used for 'confrontation' in accordance with
sections 290, 296 and 297 of the Code of Criminal
Procedure. The last-mentioned provision has not,
incidentally, been claimed to be relevant to the case.
The principal stand-point of [the applicants] is that the
statements cannot be permitted to be used in this manner
either; they must be precluded altogether. Their appeal is
however not accepted on this point. [The applicants] have
in this connection also submitted that section 290, second
sentence, and section 296 subsection 2, second sentence,
only provide authority for confrontation with written
declarations made voluntarily, not duty-bound declarations
made by the indicted person. Reference is made to the fact
that the wording of the Code treats written declarations as
being equal to statements to the police which will indeed
have been made voluntarily. I do not agree with this
understanding of the law.
In the alternative, [the applicants] will accept, as
mentioned, the decision by the High Court on this count.
It is then the appeal lodged by Økokrim which remains to be
decided upon.
...
As will be evident from the review made by the Appeals
Selection Committee into the past history of the
investigative powers in the price laws in the ruling in
RT 1976, pp. 1446 and following, it has long been
recognised that the duty to supply information at the
investigative stage applies without the restrictions which
otherwise apply pursuant to the Code of Criminal Procedure
once a criminal case has been opened. I would also refer to
what is said on the subject in Rt 1976 p. 1219, at p. 1221.
It has not been deemed an obstacle to this if the
administration on its part has had more or less
well-founded suspicions of anything criminal. The question
of whether the Code of Criminal Procedure lays down limits
for the way in which the information may be used in a
subsequent criminal case has, however, not been discussed
in any of these rulings, and no case-law which otherwise
voices an opinion on the issue appears to exist.
Like the High Court, I have concluded that the statements
in our case must be deemed to be statements made 'in the
context of the case' within the meaning of the Code of
Criminal Procedure and that, consequently, they may be used
during the main proceedings merely within the scope laid
down by sections 290 and 296, i.e. for 'confrontation' with
the oral evidence given by the indicted parties and
the witnesses. ...
I ... fail to see that it is unnatural to bring these provisions
to bear on statements made to the price authorities in the course
of their investigative efforts. It is true that the primary
aim of making inspections is not to prepare the ground for
a criminal case. However, when the inspection nevertheless
results in criminal proceedings being opened, good reasons
speak in favour of applying the provisions concerning
out-of-court statements also to statements being made at
the investigative stage.
I consequently conclude that neither [the applicants']
appeal nor that of Økokrim can succeed, and I vote for
[dismissing the appeals]."
As indicated above the criminal case against the applicants
commenced in the Oslo City Court on 18 April 1994. During these
proceedings the applicant directors were heard as well as 51 witnesses
and two expert witnesses. In accordance with the above Supreme Court
decision the statements obtained by the price authorities were not
admitted as documentary evidence. Furthermore, none of the applicant
directors was confronted with their previous submissions to the price
authorities during the City Court proceedings. They submit, however,
that thirteen of the witnesses heard were confronted with their
previous statements made during the price authorities' inspections
while giving evidence in court.
On 16 May 1994 the case was adjourned in so far as it concerned
the fourth applicant due to serious illness in his family.
The proceedings in the City Court came to an end on 16 June 1994
following which judgment was pronounced on 12 July 1994. On the basis
of an evaluation of the available evidence the City Court found the
fifth and sixth applicants guilty of the charge of unlawful price
collaboration and sentenced both of them to a fine of 75,000 NOK.
Pursuant to section 53 of the Price Act a penalty was imposed on the
applicant companies. They were sentenced to pay a fine of
1,000,000 NOK, 250,000 NOK and 400,000 NOK respectively. In addition,
the applicant companies were ordered to pay a total of 5,160,000 NOK
considered to be the gain obtained from the transactions found to be
illegal.
On 15 July 1994 Økokrim appealed against the judgment to the
Supreme Court in so far as it concerned the sentences imposed. By
letters of 26 and 27 July and 3 August 1994 the applicants, except the
fourth applicant whose case had been adjourned, also lodged an appeal
requesting a new trial in the High Court or an examination by the
Supreme Court referring to procedural errors, incorrect application of
the law and the sentences. Further written observations were submitted
by Økokrim on 22 August 1994, by the third and sixth applicants on
26 August 1994 and by the second and fifth applicants on
31 August 1994.
On 24 November 1994 the Appeals Selection Committee of the
Supreme Court decided to accept the parties' appeal in so far as it
concerned sentencing. The applicants' request for a new trial in the
High Court as well as their appeals concerning alleged procedural
errors and incorrect application of the law were, however, rejected.
The applicants were informed of the decision on 14 February 1995. They
were also informed that the President of the Supreme Court had
appointed counsel for them and that, in so far as they had information
of relevance to the case which was not already in the file, they should
contact their counsel. Finally, they were informed that the case would
be dealt with as soon as possible without further notice to them.
The date of the hearing in the Supreme Court was decided by the
office of the Court after consultation with the prosecution and the
applicants' counsel. On 21 March 1995 the parties were informed that
the case was scheduled for hearing on 21 November 1995.
The case was heard by the Supreme Court on 21 November 1995.
During the proceedings in the Supreme Court no use was made of the
statements obtained by the price authorities. On the basis of the
available evidence the Supreme Court upheld the sentence imposed on the
applicant directors. As regards the applicant companies the Supreme
Court upheld the High Court judgment in so far as it concerned the
confiscation of the illegal gain but the fines were increased to
5,500,000 NOK, 1,350,000 NOK and 2,700,000 NOK respectively.
Following the above judgment Økokrim presented, on
4 January 1996, the fourth applicant, whose case had been adjourned in
the City Court, with the option (forelegg) of accepting a fine of
75,000 NOK corresponding to the fines imposed on the other applicant
directors. The fourth applicant accepted the option. The proceedings
against him were accordingly discontinued.
COMPLAINTS
1. The applicants complain that the Supreme Court, through its
decision of 13 May 1994 to permit the compulsory statements obtained
by the price authorities under penalty of criminal punishment to be
used as evidence against them in the criminal case, violated Article 6
of the Convention. More specifically they complain:
a) that their right under Article 6 para. 1 to be protected against
self-incrimination has been breached;
b) that their right under Article 6 para. 2 to be presumed innocent
until proven guilty according to law has not been observed since the
statements in question were obtained for an administrative purpose and
under different conditions than statements given as evidence in a
criminal case;
c) that their right under Article 6 para. 3 (d) to "equality of
arms" has been breached since they were not assisted by defence counsel
when the price authorities obtained the statements and that the
opportunity to perform a meaningful cross-examination of witnesses was
therefore limited; and
d) that, even if none of the above incidents would qualify as
violations of the Convention in themselves, their right under Article 6
to a fair trial based on an overall assessment has been violated.
2. All applicants, except the fourth applicant, further complain
that the Supreme Court's Appeals Selection Committee's rejection of
their request for a retrial and its decision to limit their appeal
violate their right to a fair trial as guaranteed by Article 6 of the
Convention.3. Finally, the applicants complain, under Article 2 of
Protocol No. 7, that it was impossible for the Supreme Court "to make
an informed appeals decision on the meting out of punishment and profit
divestiture, as long as the applicants' calls for review [were] limited
as thoroughly as in the present case".
THE LAW
1. The applicants complain that the alleged use during the criminal
proceedings in question of certain statements made by the applicant
directors and other employees of the applicant companies to the price
authorities violated in various ways Article 6 (Art. 6) of the
Convention which in so far as relevant to the complaints made reads as
follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by [a] ... tribunal established by law.
...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
...
d. to examine or have examined witnesses against
him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him;
..."
a) All applicants complain that their right under Article 6 para. 1
(Art. 6-1) of the Convention to be protected against self-incrimination
has been breached. In support of this allegation they refer to the fact
that the Supreme Court, through its decision of 13 May 1994, legalised
the use of the compulsory statements obtained by the price authorities
in the subsequent criminal cases against them.
The Commission recalls that the first, second and third
applicants are companies which in their own legal capacity were found
guilty of the charges brought against them. The question arises
therefore whether or to what extent these companies can incriminate
themselves through statements made by their employees. The Commission
furthermore recalls that the case against the fourth applicant was
adjourned and eventually discontinued following his acceptance of the
option presented to him on 4 January 1996. In respect of this applicant
the question arises whether he has exhausted the domestic remedies at
his disposal. In the circumstances of the present case, however, the
Commission does not consider it necessary to examine these questions
further because it finds that the applicants' complaint is in any event
manifestly ill-founded for the following reasons.
The Commission recalls that as a general rule questions
concerning evidence are for the national courts to determine. Article 6
(Art. 6) does not lay down any rules on the admissibility of evidence
as such, which is therefore primarily a matter for regulation under
domestic law (see e.g. Eur. Court HR, Schenk v. Switzerland judgment
of 12 July 1988, Series A no. 140, p. 29, para. 46). The Commission
must however determine whether the proceedings considered as a whole,
including the way in which the prosecution obtained and used evidence,
were fair as required by Article 6 para. 1 (Art. 6-1) of the
Convention. In this context, the Commission recalls that the Convention
is intended to guarantee rights which are not theoretical or illusory
but rights that are practical and effective; this is of particular
relevance to the rights of the defence given the prominent place held
in a democratic society by the right to a fair trial (see e.g. Eur.
Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p.
16, para. 33).
The Commission observes that the right to silence is not
expressly guaranteed by Article 6 (Art. 6) of the Convention and
accepts that the right may not be unqualified. However, the privilege
against self-incrimination is an important element in safeguarding an
accused from oppression and coercion during criminal proceedings. The
very basis of a fair trial presupposes that the accused is afforded the
opportunity of defending himself against the charges brought against
him and the position of the defence is undermined if the accused is
under compulsion, or has been compelled, to incriminate himself
(cf. Eur. Court HR, Funke v. France judgment of 25 February 1993,
Series A no. 256, para. 44, p. 22). The privilege against
self-incrimination is also closely linked to the principle of
presumption of innocence protected in Article 6 para. 2 (Art. 6-2) of
the Convention in that it reflects the principle that the State shall
bear the general burden of establishing the guilt of an accused, in
which process the accused is entitled not to be required to furnish any
involuntary assistance by way of a confession.
Whether a particular applicant has been subject to compulsion to
incriminate himself and whether the use made of the incriminating
material has rendered criminal proceedings unfair will, however, depend
on an assessment of the circumstances of each case as a whole.
In the present case the Commission recalls that the applicant
directors and the other employees of the applicant companies were
required by law to answer the questions put to them by the price
authorities during their pretrial inspections. However, the Supreme
Court ruled that these statements could not be used as documentary
evidence in the criminal proceedings but only, if necessary, in order
to confront a witness or the accused with this statement while giving
oral evidence in court. In fact none of the applicants were confronted
with their statements made to the price authorities. Consequently,
these statements were not brought to the trial court's attention.
Furthermore, the fact that a number of witnesses were confronted with
their own previous statements does not, in the Commission's view,
infringe upon the applicants' privilege against self-incrimination.
In these circumstances the Commission finds that the applicants
were not, in respect of the criminal proceedings, compelled to
incriminate themselves, nor did their statements to the price
authorities play any significant role as part of the evidence against
them at the trial. Thus, the statements obtained did not impair their
ability to defend themselves against the criminal charges brought.
Accordingly, this complaint does not disclose any appearance of a
violation of Article 6 (Art. 6) of the Convention.
b) As regards the applicants' reference to their right to be
presumed innocent the Commission recalls that the trial court examined
the statements of 53 witnesses and documentary evidence from which,
however, the applicants' statements to the price authorities had been
expressly excluded by the Supreme Court decision of 13 May 1994. The
Commission finds that the applicants' convictions were based on an
evaluation of the witnesses' statements and the available documentary
evidence. Especially, there is no element which indicates that the
trial court in fulfilling its functions started from the presumption
that the applicants had committed the acts with which they were
charged. An examination of this complaint therefore likewise fails to
disclose any appearance of a violation of the Convention and in
particular of Article 6 para. 2 (Art. 6-2).
c) In so far as the applicants have relied on their right to
equality of arms the Commission has not found any elements which could
lead to the conclusion that this aspect of a fair trial was set aside
during the criminal proceedings. Furthermore, in so far as the
applicants appear to refer to an alleged inequality during the pretrial
inspections carried out by the price authorities, the Commission finds
that Article 6 (Art. 6) does not apply to these proceedings as they
neither determined a civil right nor a criminal charge. This part of
the applicants' application does not, therefore, disclose any
appearance of a violation of Article 6 (Art. 6) of the Convention
either.
d) Summing up, the Commission recalls that the guarantees in
paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention as
submitted by the applicants, are specific aspects of the right to a
fair trial set forth in paragraph 1. The Commission has considered the
particular aspects and incidents invoked by the applicants in respect
of their trial in the Oslo City Court, and has found that these do not
assume such importance as to constitute a decisive factor in the
general appraisal of the trial. In addition an examination of the
conformity of the trial as a whole with the rules laid down in Article
6 (Art. 6) of the Convention as to its fairness has not disclosed any
appearance of a violation of this provision either.
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.
2. All applicants, except the fourth applicant, further complain
that the Supreme Court's Appeals Selection Committee's rejection of
their request for a retrial and its decision to allow the appeal only
to a limited extent violates Article 6 (Art. 6) of the Convention. They
assert in particular that the appeals procedure must be fashioned in
such a way that it is possible to see that justice is done at the
appellate level. In the present case they complain that the Appeals
Selection Committee did not offer any grounds for its decision and that
they were not offered sufficient possibilities of presenting the
grounds for their appeals.
The Commission recalls that the Appeals Selection Committee was
called upon to decide whether the applicants' request for a new trial
in the High Court or, in the alternative, for leave to appeal to the
Supreme Court should be granted. The issue therefore arises whether the
Committee can be said to "determine" the criminal charge against the
applicants. In the present case, however, the Commission finds it can
leave this question open and proceed on the assumption that Article 6
(Art. 6) applies.
The manner of application of Article 6 (Art. 6) to proceedings
before appeal courts depends on the special features of the proceedings
in the domestic legal order seen in their entirety and the role of the
appellate court therein. Regard must be had to the nature of the appeal
system, to the scope of the appeal court's powers and to the manner in
which the applicants' interests were actually presented and protected
before the appeal court, particularly in the light of the nature of the
issue to be decided (cf. for example Eur. Court HR, Fejde v. Sweden
judgment of 29 October 1991, Series A no. 212-C, p. 67, para. 27).
In the present case the Commission recalls that the applicants'
case was heard in the Oslo City Court from 18 April to 12 July 1994.
As already established above nothing has emerged from the examination
of this case which indicates that the applicants were not afforded all
the guarantees secured by Article 6 (Art. 6) of the Convention during
this trial.
As regards the "appeal proceedings" the Commission recalls that
the Appeals Selection Committee was called upon to decide whether or
not to grant leave to appeal. The limited nature of this issue does
not, in the Commission's view, in itself call for oral argument or a
public hearing or the personal appearance of the applicants, but
Article 6 (Art. 6) requires that the applicants be provided, in some
appropriate way, with a fair procedure allowing them to present their
case to the Appeals Selection Committee (cf. Eur. Court HR, Monnell and
Morris v. the United Kingdom, judgment of 2 March 1987, Series A no.
115, pp. 22 and 23, paras. 58 and 61).
In this respect the Commission notes that the principle of
equality of arms was respected in that none of the parties were heard
orally by the Appeals Selection Committee. Furthermore, the applicants
were assisted by counsel and had the possibility to submit, in writing,
what in their opinion would be of relevance to the request. They were
also afforded the opportunity to study and reply to the submissions
made by the prosecuting authority. Accordingly, the proceedings cannot
be said to have taken place in such conditions as to put the applicants
unfairly at a disadvantage. In addition, the Commission has no cause
to doubt that the Appeals Selection Committee's decision to allow the
appeal only on certain points was based on a full and thorough
evaluation of the relevant factors.
As regards the applicants' reference to the fact that no reasons
were given by the Appeals Selection Committee for its refusal to grant
leave to appeal the Commission accepts that under specific
circumstances the absence of reasons in a court decision might raise
an issue as to the fairness of the procedure which is guaranteed by
Article 6 para. 1 (Art. 6-1) of the Convention. It considers, however,
that if the domestic law, as in the present case, subjects the
acceptance of the appeal to a decision by the competent court as to
whether it considers that the appeal raises a legal issue of
fundamental importance and whether it has any chances of success, it
may be sufficient for this court simply to reject or accept this
petition (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).
Thus, having regard to the circumstances of the case, in
particular the scope of review exercised by the Appeals Selection
Committee, the Commission finds that its proceedings do not disclose
any appearance of a violation of Article 6 (Art. 6) of the Convention.
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.
3. Finally, the applicants complain of a violation of Article 2 of
Protocol No. 7 (P7-2) to the Convention since it was, in their view,
impossible for the Supreme Court to "make an informed appeals decision
on the meting out of punishment and profit divestiture, as long as the
applicants' calls for review [were] limited as thoroughly as in the
present case".
Article 2 of Protocol No. 7 (P7-2) reads as follows:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence
reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall
be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first
instance by the higher tribunal or was convicted following
an appeal against acquittal."
The Commission notes that different rules govern review by a
higher tribunal in the member States of the Council of Europe. In some
countries such review is in certain cases limited to questions of law
such as the "recours en cassation" (in French law) or "Revision" (in
German law). In other countries there is a right to appeal against
findings of fact as well as on questions of law; and in some States a
person wishing to appeal to a higher tribunal must in certain cases
apply for leave to appeal.
As regards Norway the Commission recalls that judgments of the
City Court are subject to two kinds of review in criminal cases in the
form of an examination by the Supreme Court or a new trial in the High
Court. The choice between these remedies rests with the appellant and
depends on the aspects of the judgment which are contested. Whereas a
party may petition for a new trial in the High Court when the question
of evidence in relation to the issue of guilt is alleged to have been
wrongly decided by the City Court, an "appeal" to the Supreme Court may
be based on alleged defects covering the application of the law, the
application of the rules of procedure and the determination of the
sanction.
Having regard to this the Commission considers that in principle
the possibility exists in Norway for a person convicted of a criminal
offence to have his conviction or sentence reviewed by a higher
tribunal within the meaning of Article 2 of Protocol No. 7 (P7-2) to
the Convention.
However, the possibility of such a "review" depends on leave from
the Appeals Selection Committee of the Supreme Court. The question
accordingly arises whether the Norwegian system of "leave to appeal",
as applied in the present case, was such that the applicants were
denied a review of their conviction or sentence as required by
Article 2 of Protocol No. 7 (P7-2) to the Convention.
The second sentence of this provision requires that the exercise
of the right to a review by a higher tribunal shall be governed by law
but it does not otherwise specify its scope or actual implementation.
However, as the reference to the grounds for the review being governed
by law clearly shows, the Contracting States have a discretion as to
the modalities for the exercise of the right of review. Consequently,
the Article gives the States the possibility to regulate the review in
certain ways.
The Commission recalls, as a matter of comparison, that the right
of access to the courts secured by Article 6 para. 1 (Art. 6-1) of the
Convention may also be subject to limitations in the form of regulation
by the State. The State enjoys a certain margin of appreciation but in
addition to pursuing a legitimate aim the limitations applied shall not
restrict or reduce the access left to the individual in such a way that
the very essence of the right is impaired (cf. e.g. Eur. Court HR,
Tolstoy Miloslawsky v. the United Kingdom judgment of 13 July 1995,
Series A no. 316-B, pp. 78-79, para. 59).
Although it is not the Commission's task to substitute itself for
the competent Norwegian authorities in determining the most appropriate
policy for regulating the exercise of the right of review, the
Commission finds that similar considerations should be kept in mind
when examining whether the limitations on the right to a review as
guaranteed by Article 2 of Protocol No. 7 (P7-2) are compatible with
the very essence of this right.
The Commission recalls from previous applications
(cf. No. 20087/92, Dec. 26.10.95, D.R. 83-A p. 5) that the Appeals
Selection Committee of the Supreme Court may decide not to allow an
"appeal" to proceed when it unanimously finds it clear that it will not
succeed (cf. section 349 of the Code of Criminal Procedure).
Furthermore, the Committee may refuse leave to obtain a new trial in
the High Court if there is no reason to doubt that the assessment of
evidence was correct or there are no other special reasons for granting
such leave (cf. section 370).
The Commission considers that these provisions of the Code of
Criminal Procedure pursue a legitimate aim, i.e. the fair
administration of justice. Furthermore, the Commission has found no
evidence which could lead to the conclusion that the Appeals Selection
Committee pursued any other aims. Although it is not the Commission's
task to assess the facts which led the Committee to adopt one decision
rather than another the Commission is satisfied that the decision taken
in the present case was based on a full evaluation of all relevant
factors.
In the circumstances the Commission does not find that the
Appeals Selection Committee overstepped its margin of appreciation when
deciding on the applicants' request for leave to appeal. Their right
to a review by a higher tribunal within the meaning of Article 2 of
Protocol No. 7 (P7-2) to the Convention was not thereby impaired.
Finally, the Commission has not found elements which could lead
to the conclusion that the Supreme Court was unable to consider fully
the issues brought before it.
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.
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 ChamberANNEX
The applicants
1. Peterson Sarpsborg AS
P.O. Box 40, N-1701 SARPSBORG
/ Erik Mollatt, Chairman of the Board
2. Peterson Ranheim AS
N-7053 RANHEIM
/ Erik Mollat, Chairman of the Board
3. Glomma Papp AS
P.O. Box 145, N-1701 SARPSBORG
/ Kjell Tveter, Chairman of the Board
4. Bjørn Iversen, Norwegian citizen born in 1932 and residing in
Sarpsborg, Norway.
5. Bjørn Børud, Norwegian citizen born in 1935 and residing in Moss,
Norway.
6. Jan-Arthur Iversen, Norwegian citizen born in 1931 and residing
in Sarpsborg, Norway.
Full & Egal Universal Law Academy