The European Commission of Human Rights sitting in private on
6 October 1986, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 May 1984 by A.
and E. R. against Norway and registered on 16 October 1984 under
file No. 11201/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows:
The applicants, a married couple, are Norwegian citizens born in 1930
and 1922 respectively. They are businessmen by occupation and reside
at Lysaker, Norway.
As the youngest of 3 children the first applicant, hereinafter called
"the applicant", inherited a third of her father's fortune when he
died in 1948. The fortune consisted mainly of shares in two shipping
companies. In her father's will it was decided that the fortune
should not be divided before the applicant's mother died. She died in
1970.
The inheritance represented the majority shareholding in the two
companies A/S Luksefjell and A/S Dovrefjell and after the death of the
applicant's father, her brother administered the estate. It appears
that over the years hostility developed between the first applicant
and her brother concerning the inheritance and the administration of
the estate. In a suit brought against the applicant because of an
alleged breach of contract, her brother attempted to take away certain
company shares which had been given to her. However, the City Court of
Oslo (Oslo Byrett) decided in favour of the applicant on 2 June 1970
and there was no appeal against the judgment.
After the death of the applicant's mother in 1970 the hostilities
between the applicant and her brother intensified. In the Probate
Court of Oslo (Oslo Skifterett) the applicant alleged that over the
years after the death of their father, her brother had used his
position as administrator of the estate to buy a large number of
shares in the companies at a very favourable price and to the
detriment of the applicant. By judgment of 30 May 1973 the Probate
Court of Oslo decided that the brother should give back to the estate
the shares in question. The brother appealed against the judgment but
the appeal was withdrawn in 1977.
Due to the alleged maladministration of the estate the applicant
demanded a public investigation of the administration of the
companies. This was granted and a commission, set up for that
purpose, delivered a report on 15 October 1980 in which a number of
transactions appeared to be open to criticism.
In the meantime the parties tried to reach a settlement by which the
applicant would get her part of the estate and thereafter would have
no shareholding or other claims on the companies which were the major
assets of the estate. On 5 April 1974 the parties reached an
agreement by which the applicant would receive M/S Sognefjell, a
company ship, and in return she should hand over all the shares to the
companies (the estate). A number of points as to how to handle the
deal were set out in the agreement including a paragraph saying that
in case of dispute this should be settled by arbitration in accordance
with the Norwegian Civil Procedure Act (Tvistemålsloven).
Disputes arose and the matter was put before the arbitrators selected
by the parties. After considering the allegations and the arguments
of the parties and due to their requests the arbitrators were left
with no other option than to decide (voldgiftsdom), on 2 May 1975,
that the agreement of 5 April 1974 was rescinded (hævet). This had
the effect that the applicant remained the heiress of one third of the
estate consisting largely of shares in the shipping companies.
It appears that during this period of time the Norwegian shipping
industry experienced serious financial difficulties, and after the
arbitration decision the applicant realised that, due to a number of
disputed factors, her shares had dropped considerably in value.
Maintaining that had she been informed of these financial difficulties
she would not have allowed the arbitrators to rescind the agreement of
5 April 1974 but would have settled for the second best alternative,
she instituted proceedings before the City Court of Oslo in order to
have the arbitration procedures re-opened. She envisaged that as a
shareholder she would probably lose her inherited fortune whereas as a
creditor she might be in a better position. Such a re-opening of the
arbitration procedure was possible under Sec. 468 read in conjunction
with Sec. 407 n° 6 of the Civil Procedure Act if new facts or evidence
- which obviously would have led to a different solution had they been
known - could be produced, and this would then lead to a cancellation
of the arbitration decision of 2 May 1975.
In its decision of 27 July 1978 the City Court of Oslo did not find
that these requirements were fulfilled and therefore refused to repeal
the arbitration decision. This decision was overruled on 3 April 1981
by the Court of Appeal (Eidsivating Lagmannsrett) but finally upheld
by the Supreme Court (Høyesterett) on 9 November 1983. Subsequently
the applicants have tried to have these proceedings re-opened as well.
This was finally refused by the Supreme Court on 12 March 1985.
COMPLAINTS
The applicants invoke Articles 2, 3, 5, 6, 8, 13 and 14 (art. 2, art.
3, art. 5, art. 6, art. 8, art. 13, art. 14) of the Convention and
Article 1 of Protocol No. 1 (P1-1).
In general the applicants maintain that the first applicant's case and
in particular the court judgments, have been manipulated by the
Norwegian authorities. The applicants refer to the financial crisis
in the Norwegian shipping industry during the time when the most
important decisions in the case were taken. They maintain that the
outcome of the arbitration case was fixed in advance in order to avoid
an even bigger crisis in Norway with the loss of thousands of jobs and
many bankruptcies of major shipping companies as a result. Due to
that they claim that they have both been illegally deprived of their
fortune estimated to amount to approximately 30 million dollars.
Regarding the specific Articles, the applicants feel that the
injustice and the sacrifices they have had to bear and still bear
amount to an infringement of Article 2 (art. 2).
Under Article 3 (art. 3) they maintain that the arbitration decision
of 2 May 1975 illegally deprived them of approximately 12 million
dollars which again was inhuman treatment and punishment. This
treatment was sustained by the Supreme Court decision of
9 November 1983 not to reverse the decision of 2 May 1975.
The applicants claim, under Article 5 (art. 5), that their right to
liberty has been violated in that they have been obliged to live in
Norway in order to fight for their rights and defend their interests.
Under the Article 6 (art. 6) of the Convention the applicants refer to
the proceedings before the arbitrators in 1974/75. They claim that
the arbitrators were not impartial but had been instructed by the
Norwegian Government to reach the conclusion they did. Furthermore
they claim that the proceedings before the Supreme Court were not
fair.
Due to the circumstances of the whole case the applicants allege that
their private and family life has been completely ruined contrary to
Article 8 (art. 8) of the Convention.
Finally, the applicants claim that they had no effective remedy at
their disposal, that they have been discriminated against and deprived
of their possibility of peaceful enjoyment of their possessions
contrary to Articles 13 and 14 (art. 13, art. 14) of the Convention
and Article 1 of Protocol No. 1 (P1-1) to the Convention.
THE LAW
1. The Commission has first considered whether the second
applicant can claim to be a victim, in the sense of
Article 25 (art. 25), in respect of alleged violations of the
Convention in domestic proceedings to which he was not a party.
However, it does not find it necessary to determine this question as
the application is inadmissible on other grounds, as set out below.
2. In answering the question of the admissibility of the
applicants' different complaints, the Commission first recalls that
the case apparently originates from a dispute over a family fortune. A
number of law suits came out of this, notably in 1970 and 1973. The
applicants have complained in principle that all problems started in
1948 after the death of the first applicant's father. However,
insofar as the applicants allege that their rights under the
Convention were violated in the proceedings in 1970 and 1973 the
Commission notes that the last decision submitted in respect of these
proceedings was given on 30 May 1973. However, the Commission recalls
that under Article 26 (art. 26) of the Convention it "may only deal
with the matter ... within a period of six months from the date on
which the final decision was taken".
The present application was submitted to the Commission on 4 May 1984,
that is more than six months after the date mentioned above.
Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of that period.
It follows that this part of the application has been introduced out
of time and must be rejected under Article 27 para. 3 (art. 27-3) of
the Convention.
3. The applicants have also complained that the decision of
2 May 1975 of the Arbitration Court violated their rights under
Article 6 (art. 6) of the Convention in that the arbitrators were not
impartial but had been instructed by the Norwegian Government to reach
the decision they did.
Furthermore, under Article 6 (art. 6) of the Convention, the
applicants maintain that they did not get a fair hearing, notably by
the Supreme Court, when the Norwegian courts decided on the question
of repealing the arbitration decision of 2 May 1975.
Regarding this complaint, the Commission finds that it can be left
open whether Article 6 (art. 6) is applicable to the proceedings
mentioned above and whether the applicants exhausted all domestic
remedies in accordance with the generally recognised rules of
international law since the Commission is of the opinion that these
complaints are in any case manifestly ill-founded for the following
reasons.
Regarding the judicial decisions as such, the Commission recalls that,
in accordance with Article 19 (art. 19) of the Convention, its only
task is to ensure the observance of the obligations undertaken by the
Parties in the Convention. In particular, it is not competent to deal
with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention. The Commission refers, on
this point, to its constant case-law (see e.g. No. 458/59, Dec.
29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73,
Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79,
D.R. 18 pp. 31, 45).
Regarding the arbitration case it is true that the applicants have
alleged that the arbitrators were partial and that they had been
instructed by the Norwegian Government to reach the decision they did.
However, the Commission recalls that due to the applicants claims
before the arbitrators, they were left with no other option than to
rescind the agreement in question. Furthermore the Commission has
found nothing indicating that the arbitrators, when fulfilling their
task, were influenced or instructed by any third party or that they in
any other way showed bias against the applicants contrary to
Article 6 (art. 6) of the Convention.
The applicants have also complained that they did not get a fair
hearing by the Norwegian courts, notably the Supreme Court, when the
question whether or not to repeal the decision of the Arbitration
Court was determined. As set out above, the Commission recalls that
the evaluation of the facts is a matter which necessarily comes within
the appreciation of the independent and impartial tribunals and cannot
be reviewed by the Commission unless there is an indication that the
courts have drawn grossly unfair or arbitrary conclusions from the
facts before it. This does not seem to be the case here. Indeed it
appears from the documents submitted by the applicants that the issue
in question was thoroughly examined by the courts. Furthermore the
Commission has found no other element which could indicate in any way
that the applicants did not receive a fair hearing before the
Norwegian courts.
Therefore, as stated above, it follows that the applicants' complaints
under Article 6 (art. 6) of the Convention are manifestly ill-founded
within the meaning of Article 27 para. 2 (art. 27-2) of the
Convention.
3. The Commission has finally considered the applicants' remaining
complaints under Articles 2, 3, 5, 8, 13 and 14 (art. 2, art. 3, art.
5, art. 8, art. 13, art. 14) of the Convention as well as Article 1 of
Protocol No. 1 (P1-1) to the Convention. However, after considering
the information and documents submitted, the Commission finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention and Protocol No. 1 and in
particular of the invoked Articles. It follows, therefore, 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)