CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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