FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37372/97
by Møyfrid and Michael WALSTON
against Norway
The European Court of Human Rights, sitting on 11 December 2001 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrM. Fischbach,
MrJ. Casadevall, judges,
MrS. Evju, ad hoc judge,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 4 July 1997 and registered on 13 August 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Møyfrid Walston and Mr Michael Walston are respectively nationals of Norway and the United States of America, born in 1948 and 1945. They are a married couple. They are living in Stryn, Norway.
The respondent Government are represented by Mr Henning Harborg, Attorney, Attorney General (on Civil Matters) Office.
A. Background to the case
The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.
In 1986 the applicants bought at the price of NOK 1 a property at Stryn in Western Norway. On the land was a large wooden house built in 1886, which had previously served as a hotel and school. In the mid-1980s the municipal authorities wished to destroy the building, which by then had been unoccupied for two decades. The applicants’ initial plan was to renovate the building and then to sell it, but later they used the building as a hotel in the summer and rented it out to schoolchildren during the winter.
The renovation costs were initially estimated at NOK 3.5 million, of which approximately NOK 2.8 million was to be financed by mortgages. At the time it was difficult to obtain loans, but in the end the applicants were able to borrow from the Sandane Branch of the Bergen Bank, against security in the property, NOK 2.3 million in respect of their property in Stryn (gnr 45, bnr 108) and NOK 0.5 million in respect of their property (gnr 113, bnr 91 and 92) in Vågsøy. The Bergen Bank subsequently merged with Den norske Creditbank and became Den norske Bank (DNB). Eventually the renovation, which was completed in 1988, became more extensive and expensive than expected, in part because of difficulties related to the installation of a fire prevention system. At an unspecified time in 1989 or 1990, the applicants stopped paying the mortgages and the interest on them, resulting in an overdraft of NOK 4 million. In addition, they apparently owed NOK 1.6 million to the State Fund for Development of Districts (Distriktenes Utbyggingsfond).
As the Bank considered that the applicants had failed to honour their obligations, it sought to have the applicants’ property in Stryn and Vågsøy sold at an auction in order to recover its loans. In 1991 the Bank instituted proceedings for this purpose. On 31 March 1992 the proceedings concerning the property in Stryn were discontinued. In the meantime, on 8 January 1992 the Bank had obtained a decision by the Nordfjord Court of Execution and Enforcement (namsrett), the local district court, confirming an auction bid but that decision was later quashed by Gulating High Court (lagmannsrett) on 17 November 1993.
On 5 June 1992 the Bank again brought proceedings to have the Stryn property sold at auction, and on 16 June 1992 the Nordfjord Court of Execution and Enforcement granted the request.
In a complaint filed with the District Court on 19 May 1992 the applicants requested inter alia Mr Justice Steintveit to stand down on account of his past employment with the Bergen Bank.
On 25 May 1992 Mr Justice Steintveit confirmed that he had been, for a period from July 1984 to January 1987, an employee of the Bergen Bank assigned to the Bank’s legal department in Oslo. He had not deemed it necessary to inform the parties about this as he did not consider that it had any importance for his suitability to sit in the case.
On 3 June 1992 the applicants submitted a complaint to the Nordfjord Court of Execution and Enforcement, asking Mr Justice Steintveit to stand down under Sections 108 and 109 of the Administration of Courts Act 1915 (Domstolloven) on the grounds that he had had close ties with the defendant Bank. On 12 June 1992 the complaint was returned to the applicants with an explanation that, at the time, no execution proceedings were pending before the court. On 2 September 1992 Mr Justice Steintveit informed the applicants that he could not see that his past employment relationship with the Bank was a reason for him to withdraw from the case.
On 3 November 1992, the Court of Execution and Enforcement granted a request by the applicants to have the auction proceedings suspended, pending a first instance decision in the proceedings mentioned under Section B below.
B.Compensation action brought by the applicants and counter-action brought by the Bank
In April 1992 the applicants brought an action against the Bank, claiming compensation for breach of contract. According to the applicants, the Bank had undertaken to discharge their mortgage debts which would have enabled them to earn money from their property during the years 1990 to 1992. The Bank brought a counter-action. At the opening of the oral hearing in January 1994, Mr Justice Steintveit asked the parties whether there were any objections to the District Court’s composition. No objection was made. On 22 April 1994 the Nordfjord District Court (herredsrett), composed of Mr Justice Steintveit and two lay judges, unanimously found for the Bank by declaring that its mortgage securities were valid. On appeal by the applicants, this judgment was unanimously upheld by the High Court on 4 October 1995. On 7 May 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicants leave to appeal. It does not appear that the applicants challenged the proceedings before the District Court on account of Mr Justice Steintveit’s participation.
C.Resumption of the auction proceedings concerning the property in Stryn
On 25 January 1995 the Court of Execution and Enforcement decided to resume the auction proceedings relating to the applicants’ property in Stryn which, as mentioned under Section A above, had been suspended on 3 November 1992. This decision was upheld by the High Court on 16 May 1995 and, on 7 July 1995, the Supreme Court’s Appeals Selection Committee refused the applicants leave to appeal.
On 15 November 1995 the property in Stryn was sold at an auction. The applicants made the highest bid, between NOK 1.6 and 1.7 million, but since they were not able to offer security in time, the property went to the next highest bidder, the Bank, for approximately NOK 1.5 million, which was later confirmed on 8 March 1996 as stated below. The auction was followed by two sets of proceedings, one concerning Mr Justice Steintveit’s refusal to withdraw, the other concerning the Bank’s auction bid.
The first instance judge’s refusal to withdraw from the proceedings
On 20 December 1995, in connection with proceedings relating to the confirmation of the Bank’s auction bid, Mr Justice Steintveit of the Nordfjord Court of Execution and Enforcement decided to reject a further request made by the applicants that he withdraw from the proceedings. In his decision the judge stated that, from July 1984 to December 1986, he had been an employee of the Bergen Bank assigned to the Bank’s legal department in Oslo. During this period he had not been involved with the applicants’ loan agreement and both this and the persons concerned had been unknown to him. Nor had he had any dealings with the former director of the local branch in Nordfjordeid who had pursued the case against the applicants. After ceasing to work with the Bank, the judge had maintained an ordinary customer relationship with it but had, beyond that, entertained no special links. On entering office as a judge in January 1987 he had, as a matter of caution, imposed on himself a decision not to deal with cases in which the Bank was a party for the next three years. The applicants’ case was brought before the Court of Execution and Enforcement after the expiry of the three-year period. It had never been his opinion that his previous employment relationship with the Bank was a circumstance capable of calling into doubt his impartiality. Until the applicants’ complaint of 12 December 1995, he had thought that they were of the same view. He saw no grounds for arriving at a different conclusion as regards his ability to sit.
The applicants appealed against this decision to the High Court, which upheld it on 29 March 1996. It attached weight to the long period which had elapsed since the judge was employed by the Bank, the fact that he had not been involved with the loan agreement at stake, the large size of the Bank and the fact that, being posted in Oslo, the relationship between him and relevant personnel in the local branch must have been remote.
The applicants subsequently sought to appeal against the High Court’s decision but, on 3 June 1996, the Supreme Court’s Appeals Selection Committee quashed it and gave a new decision to the effect that the appeal from first instance was to be dismissed by the High Court. It observed that, following the 8 March 1996 decision mentioned below, the procedure and the merits of that decision ought to have been challenged in the same appeal.
Confirmation of the sale of the property in Stryn and related appeals
On 8 March 1996, the Nordfjord Court of Execution and Enforcement, sitting with a single assistant judge, confirmed the sale to the Bank of the property in Stryn.
The applicants appealed to the High Court, which, after holding a hearing on 11 August 1997, upheld the decision by a judgment dated 2 September 1997.
By a letter of 5 November 1996, the applicants informed the High Court that they were no longer represented by their lawyer and requested a copy of all the case-documents in the appeal. In January 1997 there were a number of exchanges between the applicants and the District Court from which it appears that the court did not consider that it was in a position to meet the applicants’ requests for further copies of the case-documents or explanations about the relationship between the various proceedings and the case-numbers. It assumed that the documents had already been sent, successively, to the applicants or whoever acted as their lawyer at the time. The applicants had twice been provided with lists of the case-documents and each time they had come back with requests for new lists. The court did not have the resources for meeting all of their requests in writing. The applicants were welcome to come to the District Court and consult the case-file and, if necessary, they would then be able to obtain copies. This would be the most rational approach to the use of the court’s resources.
Subsequently, similar exchanges took place between the applicants and the High Court, which on 10 and 21 April and 18 May 1997 sent them the documents under certain specific case-numbers, including a document dated 19 February 1992 from the Bank to the District Court. In reply to the applicants’ further query about missing documents in June, the High Court explained on 18 June 1997 that the documents referred to under one case-number apparently were the forerunner of another case and probably were included in the latter.
In the proceedings before the High Court the applicants argued that Mr Justice Steintveit was disqualified from sitting and that, consequently, so was the assistant judge. Moreover, by letter of 2 May 1997, they complained to the court that they had only received on 22 April 1997 a copy of certain case-documents which they had requested 5 months earlier, and that there were still documents they were waiting for, notably documents they had requested on 28 April 1997. Rather than giving them time to prepare their case, the High Court had scheduled the hearing for 17 June 1997. In addition the applicants requested the production of a list of the documents before the Court of Execution and Enforcement in the proceedings relating to the first compulsory auction, in order to be able to point out any mistakes made by Mr Justice Steintveit who had refused them such a list.
In its judgment of 2 September 1997, the High Court rejected the applicants’ contention that the first instance judge had been disqualified. It relied essentially on the same arguments as in its decision of 29 March 1996 and rejected a further submission made by the applicants, namely that for a period the first instance judge had been a member of the same Rotary Club as the former Bank director. The local association comprised more than 40 members and the judge and the director did not have close contacts either within or outside the association. There was nothing in the association’s statutes which militated in favour of disqualification. Thus membership alone of the same local association could not justify disqualification under Section 108 of the Administration of Courts Act. The High Court added that in cases where as many decisions had been taken as here, a judge could be disqualified by virtue of having showed a stance, either directly or by way of preliminary decisions, before the examination of the merits. In recent years the jurisprudence on this point had developed making it easier to disqualify. However, this point had hardly been debated before the High Court, which in any event considered that the subjects dealt with were not such as to disqualify the first instance judge. Nor was there any support for the applicants’ arguments that the judge had been biased. Finally, the High Court noted that it had not been contended that the assistant judge himself was disqualified for any other reasons than those invoked with respect to Mr Justice Steintveit.
On 20 March 1998 the Supreme Court’s Appeals Selection Committee refused the applicants leave to appeal.
D.Auction proceedings concerning the property in Vågsøy
In November 1995 the Bank made a fresh application to the Court of Execution and Enforcement for the compulsory sale of the applicants’ property in Vågsøy. The applicants objected and again challenged the first instance judge’s ability to adjudicate their case and requested him to withdraw. By decision of 25 June 1996, the judge rejected their request and granted the Bank’s application. The applicants appealed against this decision to the High Court.
In the proceedings the High Court received from the applicants’ lawyer extensive observations dated 23 August and 5 September 1996, and from the Bank’s lawyer observations dated 10 September 1996. The latter led the applicants’ lawyer to submit further observations on 23 September 1996. On 9 October 1996 the Bank’s lawyer submitted a letter containing additional observations, which was not communicated to either the applicants or their lawyer, until they were notified of the High Court’s decision of 3 December 1996 mentioned below. In the meantime, on 25 October 1996, the applicants’ lawyer had ceased to represent them.
By letter of 5 November 1996, the applicants informed the High Court that their lawyer at the time had ceased to act for them and requested it to provide them with copies of all the documents in the appeal. In a letter of 22 November 1996 to the High Court, they renewed their request for the production of all the documents. They added that their former lawyer had refused to provide them with the documents.
On 3 December 1996 the High Court upheld the District Court’s decision of 25 June 1996. It had particular regard to the fact that, while employed by the Bank, Mr Justice Steintveit had not been involved with the loan agreement concerned, and that a considerable time had elapsed between him leaving the Bank (1986) and when the Bank requested the compulsory sale of the applicants’ property (1995). Moreover, DnB was a large company with branches all over the country, whose employees - one might expect - would have a less personal relationship to their employer than would normally be the case with smaller companies. While Mr Steintveit was assigned to the Oslo branch, the loan agreement had been arranged at the local branch in Sandane. Furthermore, the applicants had not disputed his ability to sit in 1994 when he dealt with the dispute regarding the underlying circumstances.
Enclosed with a letter of 10 December 1996, the High Court sent to the applicants copies of their lawyer’s writ of appeal and supporting arguments dated 23 August 1996, as well as the Bank’s lawyer’s submissions of 9 October 1996. Since the latter did not contain any information of importance to the case, it had not been communicated until notification of the High Court’s decision. As their lawyer at that time had ceased to represent them, it had not been sent to him.
On 22 December 1996 the applicants appealed to the Supreme Court’s Appeals Selection Committee, requesting that the High Court’s decision be quashed and that the case be referred back to it for a fresh examination. On this occasion the applicants requested to be given until 6 January 1997 to supplement their appeal, which they did on that date, setting out their arguments, notably on alleged procedural errors on account of Mr Justice Steintveit’s participation and the High Court’s omission to communicate case-documents, and attaching an analysis of procedural errors allegedly committed by the Nordfjord Court of Execution and Enforcement.
The applicants complained that, in the proceedings before the High Court, the latter had given a decision on 3 December 1996 without having communicated the case-documents to them, as requested on 5 November 1996 and again on 22 November 1996. The applicants were then not aware of the observations of 9 October 1996 submitted by the Bank’s lawyer, on which they had comments of importance for the outcome of the case. The observations had contained an admission to the effect that the District Court judge had since 1992 been aware of the applicants’ objections to his dealing with their case. Moreover, whilst the Bank’s observations of 10 September 1996 had stated that the applicants’ debts had exceeded NOK 6 million, those of 9 October had indicated that these amounted to barely NOK 5 million.
On 4 February 1997 the applicants submitted additional observations commenting on a writ filed by the Bank on 29 January 1997 and expressing their wish that the issue of the judge’s ability to sit be given a careful examination. Moreover, they informed the Supreme Court that because of a shortage of time they had not been able to finalise the attachments to their analysis of 6 January 1997, and that these would be sent by ordinary mail on 5 February 1997.
On 6 February 1997 the Supreme Court’s Appeals Selection Committee rejected the applicants’ appeal.
As regards the applicants’ complaint about the High Court’s omission to communicate the observations of 9 October 1996, the Committee, recalling that the case before the High Court had concerned an appeal regarding the disqualification of a district court judge, found that the observations contained no information of any importance for the decision to be taken by the High Court. The Committee concluded that the High Court’s omission to communicate the observations did not constitute an error of procedure. Nevertheless, the Committee added, a party’s pleadings should as a rule be communicated to the other party or the latter’s representative.
As regards the High Court’s omission to respond to the applicants’ request for a copy of all the appeal documents, the Committee recalled that, under Article 135 of the Code of Civil Procedure, the parties may request copies of those documents which concern the case. It observed that in the circumstances at hand, where the case had long since been ready for adjudication by the High Court, the latter was not wrong in deciding the case before transmitting a copy of the bulky case-file to the applicants. In any event, this could not constitute an error of procedure which affected the High Court’s decision.
According to the applicants, subsequent to the above decision, the Supreme Court returned to them their aforementioned observations of 4 February 1997, with the enclosures, stating that a decision had already been taken in the case.
COMPLAINTS
The applicants complained that they were victims of violations of their right to a fair hearing by an independent and impartial tribunal as guaranteed by Article 6 § 1 of the Convention.
In the first place, the applicants alleged that the first instance judge (acting as the only judge of the District Court and the Court of Execution and Enforcement) who adjudicated the disputes between them and the Bank could not be regarded as independent and impartial since he was a former employee of the latter.
Secondly, before taking its decision of 3 December 1996 rejecting their appeal against the District Court’s decision of 25 June 1996, the High Court omitted to provide the applicants with a copy of the case-documents, despite their repeated requests and despite the High Court being informed that their lawyer had ceased to act for them and had refused to hand over the documents to them.
Thirdly, the applicants complained that, in the proceedings leading to the High Court’s judgment of 2 September 1997, they had not been afforded a proper opportunity to prepare themselves for the hearing before the High Court, as the latter had communicated large parts of the case-documents to them only shortly before the hearing, after “sitting on the documents” for five months, had failed to communicate all the documents and had refused to postpone the hearing until they had found a lawyer to represent them.
Fourthly, the applicants alleged that in the appeal leading to the High Court’s judgment of 2 September 1997, where the District Court judge appeared as a witness and produced a document signed by the assistant judge, the latter should also have been heard as a witness. The witness had also given his statement earlier than scheduled, making it impossible for the applicants to prepare their cross-examination properly. While giving his statement as a witness, he had read out from a document signed by himself and the assistant judge, but both the witness and the court had refused to give the applicants a copy when they requested it the following day.
Fifthly, the applicants complained that, before the Supreme Court’s Appeals Selection Committee delivered its decision of 20 March 1998, it should have given the applicants an opportunity to comment on the observations of the Bank.
The applicants also alleged violations of Articles 8 and 13 of the Convention, without, however, invoking any other arguments than those made in respect of Article 6 § 1.
THE LAW
1. The applicants alleged that the first instance judge (acting as the only judge of the District Court and the Court of Execution and Enforcement) who had adjudicated the disputes between them and the Bank could not be regarded as independent and impartial since he was a former employee of the latter. This gave rise to a violation of Article 6 § 1 of the Convention, which, in relevant parts, reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...”
The Court considers that it is essentially the requirement of “impartiality” that is in issue in the present case (cf., for example, the Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16, § 32).
In their pleadings, the Government laid some stress on the need to take into account the particular geographical and demographic disposition of Norway, a vast country which is thinly populated in the districts. As a result, many of the 96 first instance courts were small courts covering wide areas and located far away from one another. Nordfjord District Court, for example, had a jurisdiction extending to six municipalities with altogether 30,000 inhabitants, and had only two judges and one assistant judge. The withdrawal of a first instance judge would often mean that a colleague assigned to another court would have to travel from afar to replace him or her, which is time consuming and generates delays in the judicial system. What might be more easily practicable in large courts in urban areas should not set the standard for courts in rural and scarcely populated areas. The requirements under the Convention should not be as strict so as to disqualify a judge from taking part in a case where the links between the judge and a party are remote.
In as much as it implies that variable standards should apply depending on practical considerations, the Court does not accept the Government’s reasoning. The existence of impartiality for the purposes of Article 6 § 1 must be determined solely according to the principles laid down in the Court’s case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII [21.12.00]).
As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary; the applicants have adduced no evidence to suggest that Mr Justice Steintveit was personally biased (ibidem, § 43)
Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (ibidem, § 44).
The Court observes from the outset that, according to the information supplied by the applicants, a first round of auction proceedings concerning their properties at Stryn and Vågsøy had respectively been discontinued before the District Court on 31 March 1992 and ended in a decision of the High Court on 17 November 1993 quashing a District Court decision of 8 January 1992 confirming an auction bid. In view of the fact that the application under the Convention was introduced more than six months later, on 4 July 1997, the Court may not, pursuant to Article 35 §§ 1 and 4 of the Convention, consider Mr Justice Steintveit’s involvement in those proceedings. It will confine its examination under Article 6 § 1 of the Convention to his participation in subsequent proceedings.
Firstly, the Court notes that a considerable period - no less than 5 years - had elapsed from the time when Mr Justice Steintveit’s employment with the Bergen Bank ended and May 1992 when his participation was for the first time contested. The Court further finds it significant that he had not occupied a senior position in the Bank but, as a legal officer, had worked there for a relatively short period - 2½ years - and had had no prior involvement with or knowledge of the applicants’ loan agreement or any dealings with the persons concerned by this agreement (cf. the Piersack v. Belgium judgment 1 October 1982, Series A no. 53, §§ 30-31). The Bank was a large financial institution with many employees and had branches all over the country. Whereas Mr Justice Steintveit had been assigned to the Bank’s legal department at its office in Oslo, which operated in Eastern Norway, the local branch which had dealt with the applicants’ loan agreement was located in a remote part of Western Norway and sorted under the Bank’s office in Bergen. He had not maintained any special links with the Bank after his employment ended.
Moreover, whilst the applicants objected to Mr Justice Steintveit’s participation in the auction proceedings, which were suspended from November 1992 until January 1995, they did not respond to the judge’s invitation in January 1994 to comment on his involvement in the intervening proceedings relating to their compensation claim and to the Bank’s counter claim that the mortgage securities were valid. Given the time which had elapsed since they had last objected to the judge’s involvement and the importance of what was at stake for them, the Court considers it significant that, when expressly asked whether they objected to the composition of this District Court and in the knowledge of Mr Justice Steintveit’s previous connection with the Bank, the applicants raised no objections to his participation.
Apparently, according to the information available to the Court, the applicants only reverted to the issue of disqualification after the resumption of the auction proceedings in 1995. At this juncture the judge’s employment was even more remote in time, dating back to more than eight years.
Having regard to the nature and duration of Mr Justice Steintveit’s past employment with the Bergen Bank, its remoteness in time and place and the absence of any prior personal involvement or interest in the subject-matter of the case, the Court does not find that the applicants could entertain any legitimate doubts as to the judge’s impartiality. It is noteworthy that, whilst Mr Justice Steintveit’s participation and decisions became the subject of a large number of appeals, his refusals to withdraw were consistently upheld after independent and impartial review at the appellate levels, as were his decisions on the merits in the proceedings in question. Against this background, the Court, like the national courts, does not consider that the applicants’ fears with regard to this judge’s impartiality were objectively justified.
The Court concludes that this part of the application discloses no appearance of a violation of Article 6 § 1 of the Convention. It follows that it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicants alleged a further violation of Article 6 § 1 on the ground that, before determining on 3 December 1996 their appeal against the District Court’s decision of 25 June 1996, the High Court had omitted to provide the applicants with a copy of the case-documents, despite their repeated requests and despite the fact that the High Court had been informed that their lawyer had ceased to act for them and had refused to hand over the documents to them. They later discovered that the High Court had omitted to communicate to them a letter from the Bank’s lawyer to the court dated 9 October 1996 containing observations on the case.
The Government, confining their comments to the non-communication of the document dated 9 October 1996, pointed out that the applicants’ pleadings in their appeal against the decision of 25 June 1996 was limited to the disqualification issue; they failed to make any reasoned challenge to the order to open auction proceedings. Thus there had been no need for the High Court to address this issue. When it received the Bank’s letter of 9 October 1996, the applicants’ lawyer had already submitted two lengthy submissions and further observations in reply to the Bank’s observations, all of which had been communicated to the other party. As the letter of 9 October 1996 added nothing new to the case the High Court, instead of transmitting it with an invitation to comment, had decided to proceed to judgment in the case.
In the view of the Government, the Article 6 guarantee of adversarial proceedings should include a right for a party to be notified, and provided with copies, of all the material in the case-file which was necessary to secure that party’s right to adequately present its case, notably submissions made by the other party. However, the national court could not be under an unconditional duty to communicate every document in its possession, nor documents which would not affect its determination of the case. In order to give rise to a violation of Article 6 § 1 of the Convention, the non-communicated document ought to be of a certain value to the case. That could not be said of the Bank’s letter of 9 October 1996 in the present case.
The Court, having regard to the parties’ submissions, considers that the applicants’ complaint about the High Court’s omission to communicate the Bank’s letter of 9 October 1996 and a copy of the case-file after their lawyer ceased to act for them raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
3. The applicants next complained that, in the proceedings leading to the High Court’s judgment of 2 September 1997, they had not been afforded a proper opportunity to prepare themselves for the hearing before the High Court, as the latter had communicated large parts of the case-documents to them only shortly before the hearing, after “sitting on the documents” for five months, and had failed to communicate all the documents.
The Court observes that the applicants’ numerous requests for copies of case-documents had their origin in the fact that they were no longer represented by the lawyer who had previously received the various case-documents and who, according to the applicants, was unwilling to transfer these to them. The Court notes that there was extensive correspondence between the applicants and the District Court, in January and February 1997, and with the High Court, in May and June 1997. As appears from the evidence, both the High Court and the Nordfjord District Court went to great lengths in trying to answer the applicants’ queries about case-documents, including lists of documents and case-numbers, and to meet their requests for documents, including copies of the entire files from past proceedings. The applicants have failed to specify what documents were missing when the case was heard by the High Court in August 1997. They refer specifically to a document dated 19 February 1992 but the Court notes that this document was transmitted to them in May 1997, well in time before the High Court hearing, initially scheduled for 17 June 1997 but postponed until 11 August 1997. The Court does not find it established that there were any documents in the case-file produced before the High Court, on which the opposing party relied, that were not in the applicants’ possession (see, mutatis mutandis, the Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, § 52). It does not appear that the applicants were placed at a disadvantage vis-à-vis the Bank in the proceedings or were otherwise denied an adequate opportunity to prepare and defend their case (cf. the Lobo Machado v. Portugal judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I, pp. 206‑207, § 31, and K.S. v. Finland, no. 29346/95, § 21, [31.05.01]).
The Court concludes that this part of the application discloses no appearance of a violation of Article 6 § 1 of the Convention. It follows that it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
4. Finally, as regards the remainder of the applicants’ complaints, the Court, in the light of the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that also this part of the application must also be rejected, in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants’ complaint under Article 6 § 1 of the Convention that, before taking its decision of 3 December 1996, the High Court failed to transmit a copy of the Bank’s letter dated 9 October 1996 to either the applicants or their representative and, after the latter ceased to act for the applicants, a copy of the case-file to them;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
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