AS TO THE ADMISSIBILITY OF
Application No. 26566/95
by STRØMSNES AKVAKULTUR A/S
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mr. J.-C. GEUS, Acting President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 December 1994
by STRØMSNES AKVAKULTUR A/S against Norway and registered on
21 February 1995 under file No. 26566/95;
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 limited company situated at Ask, Norway. It
was established in 1984 and is engaged in salmon farming. Before the
Commission the applicant is represented by Mr Hans Olav Lindal, a
lawyer practising in Bergen.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant's activities in the field of salmon fishing appear
to relate primarily to raising young salmon in land-based basins. The
company has been granted a licence for producing one million fish per
year.
In 1988 the applicant received certain equipment allowing it to
continue raising salmon, which had reached a certain age, in sea-based
cages. The applicant was informed by the competent authorities that its
activity in this field was illegal as it would necessitate another
licence. The applicant did not, however, apply for such a licence.
On 4 July 1989 an inspection was made on the applicant's
premises. Its managing director was informed that the sea-based
equipment, which at the time contained 250,000 fish, was illegal and
that the illegal activities should cease. On 18 September 1989 the
Hordaland Fisheries Chief Inspector (fiskerisjefen i Hordaland) ordered
the applicant, with reference to the inspection carried out on 4 July
1989, to stop the illegal activity within 14 days. The applicant was
furthermore informed that coercive fines (tvangsmulkt) would be imposed
if the fish were not removed within the time-limit fixed.
The applicant lodged an appeal against the above order with the
Directorate of Fisheries (Fiskeridirektoratet) which by decision of
20 December 1989 rejected the appeal. The Directorate furthermore
decided that the coercive fines in the amount of 5,375 NOK per day
would be calculated, not from the date envisaged by the order of 4 July
1989, but as from 21 October 1989 and until the illegal activity of
storing salmon in the sea-based cages would cease. Finally, the
applicant's attention was drawn to the fact that the time-limit for
instituting court proceedings against the State was six months.
On 16 January 1990 the applicant requested the Directorate for
Fisheries to reconsider its decision to impose coercive fines. On
21 January 1990 the Directorate informed the applicant that there was
no basis upon which the matter could be reconsidered.
During the period from 28 May until 16 June 1990 the applicant
removed the remaining salmon from the sea-based cages.
On 22 June 1990 the applicant instituted proceedings against the
State, represented by the Ministry for Fisheries (Fiskeri-
departementet), maintaining that the Directorate of Fisheries' decision
of 20 December 1989 to impose coercive fines was null and void
(ugyldig) as this in reality amounted to a punishment which in the
circumstances violated section 96 of the Constitution. Furthermore, the
applicant maintained that the decision was null and void as it
disclosed an abuse of power, was based on incorrect factual
circumstances and suffered from procedural errors. Finally, the
applicant claimed compensation for the damage caused by the decision
taken by the Directorate of Fisheries.
The State submitted, in the form of a counterclaim (motsøksmål),
a request for the payment of the coercive fines which had accumulated
over the period from 21 October 1989 until 30 May 1990 totalling
1,193,250 NOK.
The case was heard by the Bergen City Court (Bergen byrett) from
9 to 11 March 1992. The parties' representatives were heard as well as
four witnesses. On the basis of an evaluation of the available evidence
the City Court found against the applicant by judgment of 17 March 1992
and ordered the company to pay the sum requested by the State. Costs
were also awarded against the applicant.
The applicant appealed against the judgment to the Gulating High
Court (Lagmannsrett) which heard the case from 22 to 24 November 1993.
Before this court the parties' representatives again had the
opportunity to submit all that in their opinion would be of relevance
to the outcome of the case. In addition, the Court heard four
witnesses.
By judgment of 9 December 1993 the High Court upheld the judgment
of the City Court. In its judgment the Court stated inter alia as
follows:
(Translation)
"...
[The applicant] maintains that the decision to use coercive
measures is null and void as being contrary to Article 96
of the Constitution, i.e. that no one may be punished
except following judgment. [The applicant] has referred,
inter alia, to the parliamentary debate on the amendments
to the Act on [Fish and Shellfish Farming] during which the
spokesman stated that 'the amendments to sections 16, 17,
18 and 19, which provide the legal basis for penal
sanctions in case of breaches of the rules, have turned out
to be necessary. The [competent authorities] must not
disregard breaches of the Act concerning [Fish and
Shellfish Farming] ...'.
Despite its reference to 'penal sanctions' and 'breaches of
the law' the High Court finds that the legislator did not
consider coercive fines as punishment. In the comments to
section 17 [the competent parliamentary committee] states
that the aim of coercive fines is 'to motivate compliance
with the orders given'. Reference is also made to the fact
that similar provisions can be found in other Acts.
The Ministry was aware in the travaux préparatoires of the
relations vis-à-vis Article 96 of the Constitution ... and
coercive fines in the light of Article 96 of the
Constitution have also been discussed in a report from the
Ministry for Environment of May 1977... .
The High Court does not find that coercive fines will
violate Article 96 of the Constitution as long as one stays
within the preconditions mentioned in these statements from
the Ministries. Needless to say that those on whom coercive
measures are imposed may bring the question of the
lawfulness of the decision before the courts of law. If the
courts should reach the conclusion that the measure amounts
to a punishment this would lead to the finding that the
measure is unlawful. However, the High Court does not find
that [the applicant's] general submissions on this point
have any prospects of success in this case.
...
The aim of [the Act on Fish and Shellfish Farming] is,
pursuant to its section 1, to contribute to obtaining a
balanced development of [fish and shellfish farming] and to
creating a profitable and vital trade. The Act contains an
extensive authority to regulate the trade, including
licence requirements and rules on sanctions for
non-compliance, etc.
The High Court does not consider that [the applicant] can
succeed with its allegation of unlawfulness on the ground
that the decision on coercive fines is contrary to the aim
of the Act and represents an abuse of power.
The High Court must accept as a starting point that the
provisions of the Act had been breached. There was a
prohibition against placing young salmon in the sea - the
fish were placed in a construction which had not been
approved.
Whether coercive fines in these circumstances were an
appropriate reaction in order to make [the applicant]
comply with the rules - whether the circumstances were of
such severity that coercive fines ought to have been
imposed - is a question of an assessment which the High
Court cannot go into. Below it will nevertheless be
discussed whether an abuse of power transpired.
...
The High Court has reached the conclusion that the problems
which [the applicant] faced were not such that it was
impossible to comply with the decision taken. To dispose of
the fish earlier - including even slaughtering them - would
obviously have had financial consequences for [the
applicant] but [the Court] cannot conclude that a situation
of force majeure existed.
[The applicant] has submitted that the reaction must be
proportionate to the seriousness of the breach of the
rules. It is not quite clear how many fish the Directorate
referred to, but it has been submitted that it was the cage
volume and not the number of fish which was of importance
to the size of the coercive fines ... . This was in
accordance with the guidelines.
In [this particular trade] coercive fines ought probably to
be fixed at a relatively high level in order to prevent
that breaches of the rules would be 'profitable' despite
the coercive fines. It is also necessary to have a sanction
system which is relatively simple to administer. The High
Court would nevertheless point out that obviously it must
be of relevance to the seriousness of the offence whether
there were many or few fish in the cages.
Although the High Court has doubts as to the reaction
chosen in this case - no reference at all is made to the
fact that the cages were not entirely filled with fish -
this is a question of assessment which the Court cannot
examine in the absence of further elements. The Court does
not find it established that the reaction was arbitrary.
Whether the breach was of such seriousness that coercive
fines ought to have been imposed - and whether possibly
there is reason for the Ministry to reduce the amount to be
paid - are questions of assessment which are not subject to
the Court's scrutiny.
Thus the appeal was unsuccessful and the City Court
judgment shall therefore stand."
On 4 February 1994 the applicant applied for leave to appeal to
the Supreme Court (Høyesterett). Leave to appeal was, however, refused
by the Appeals Selection Committee of the Supreme Court (Høyesteretts
kjæremålsutvalg) on 7 June 1994. The applicant was informed thereof on
27 June 1994.
COMPLAINTS
The applicant complains that the present case discloses a
violation of fundamental legal safeguards as coercive fines, even if
they were shown to be justified after a judicial examination, started
being imposed prior to such judicial examination.
The applicant furthermore maintains that the court proceedings
did not comply with the requirements of a "fair hearing" as the courts
could not examine all aspects of the case.
The applicant invokes Article 6 para. 1 of the Convention.
THE LAW
With reference to Article 6 para. 1 (Art. 6-1) of the Convention
the applicant maintains that coercive fines, as imposed in the present
case, run counter to fundamental safeguards as they started being
imposed prior to their possible justification by a judicial authority.
Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as
relevant, as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair ... hearing ... by an independent and impartial
tribunal ... ."
The applicant maintains that the proceedings in question involved
the determination of a criminal charge or, in the alternative, a civil
right within the meaning of the above provision.
The Commission recalls that the proceedings concerned the
lawfulness of the Hordaland Fisheries Chief Inspector's order of
18 September 1989 to cease fish-farming in the sea-based cages within
14 days as confirmed by the Directorate of Fisheries on
20 December 1989. The Commission finds that this did not involve a
determination of a criminal charge within the meaning of Article 6
(Art. 6) of the Convention, but as it obviously related to the
applicant's business activities it finds that the proceedings involved
a determination of the applicant's civil rights and obligations
entitling the applicant to proceedings complying with Article 6 para.
1 (Art. 6-1) of the Convention.
The Commission recalls that where an applicant is faced with
criminal liability a question may arise as to the compliance of
coercive measures with the requirements of Article 6 (Art. 6) of the
Convention (see e.g. Eur. Court HR, Funke v. France judgment of
25 February 1993, Series A no. 256-A). However, the Commission finds
that orders to cease illegal activities like those in the present case
cannot in principle be deemed unfair for the purposes of Article 6
(Art. 6) of the Convention and, similarly, the coercive fines imposed
in order to obtain such a result cannot as such infringe that principle
either. In fact many Contracting States empower the authorities to
require individuals or legal persons, under a threat of coercive
measures, to act in a particular way or refrain from doing so, e.g. in
the fields of environment, customs or building legislation. The
Commission recognises that demands of flexibility and efficiency may
justify effective intervention by administrative bodies prior to that
of the courts of law without this being incompatible with basic
principles of law.
Consequently, the Commission does not consider that the fact that
the coercive fines in this case started being imposed prior to their
justification by a court of law infringed the fundamental legal
safeguards embodied in Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant furthermore maintains that the court proceedings
did not comply with the requirements of a "fair hearing" as the courts
could not examine all aspects of the case. In this respect the
applicant refers to the High Court judgment from which it appears that
certain issues concerning the imposition and level of the coercive
fines were left to the discretion of the administrative authorities.
As regards the review effected by the domestic courts, its scope
must be assessed in the light of the fact that the imposition of
coercive fines is not a matter exclusively within the discretion of the
administrative authorities. It appears clearly from the High Court's
judgment of 9 December 1993 that those on whom coercive measures are
imposed may bring the question of the lawfulness of the decision before
the courts of law. If the courts should reach the conclusion that the
measure amounts to a punishment this would lead to the finding that the
measure is unlawful. Furthermore, as set out in the said judgment it
was for the courts to satisfy themselves that the measure was not
arbitrary in the specific circumstances.
Thus, having regard to the respect which must be accorded to
decisions taken by administrative authorities on grounds of expediency
as well as the nature of the complaints made, the Commission finds that
the review by the Norwegian courts fulfilled the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that 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 Chamber
Full & Egal Universal Law Academy