THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a Norwegian citizen born in and living in A. She is

the president of Z Organisation in Norway.

In 1929 the Applicant married a Mr Y from whom she lived separately as

from 1941, and was eventually divorced in 1944. During the German

Occupation of Norway, Mr Y, who, was at the time the director of T.

allegedly collaborated with the occupying forces. After the war he was

"cleared" of any suspicion of treachery and is at present director of

U.

In 1942, when the German persecution of the Norwegian Jews started, the

Applicant was arrested, although Jews married to non-Jews were not

covered by the measures taken by the Gestapo. At the moment of

departure, the Applicant avoided being put on board a ship bound for

Germany and was temporarily transferred to a prison, after her

deportation had been postponed for a week pending proof as to her

continuing status as a married person. Her husband was at the time on

a concert tour in Bergen and, in spite of telegraphic requests from the

Applicant's lawyer, he refused to return to Oslo until the end of his

tour, 4 days later. On his return he signed a declaration to the effect

that he was still married to the Applicant who was accordingly released

on the following day. Subsequently, she managed to escape to Sweden.In

1945, rumours started to circulate about the behaviour of the

Applicant's husband and the Norwegian Association of Composers adopted,

in 1945, a resolution declaring these rumours to be unfounded; a few

days later this resolution was sent with a covering letter to two Oslo

newspapers in order to prevent the publication of articles derogatory

to Mr Y. The said letter contained such expressions as "unfounded

attacks", "malicious rumours", and "imaginary conduct".

In 1960, it was reported to the Applicant that her former husband might

visit Israel as a guest conductor. Considering such visit to be an

insult to the Israeli people, she instituted criminal proceedings for

libel in 1960 against the Norwegian Association for Composers in order

to obtain a declaration that the accusations implicitly brought against

her in the above covering letter were null and void. She herself

maintained that her statements against Mr Y were completely true. The

immediate result of her action was that the plans for the concert tour

in Israel were called off. The legal proceedings aroused, apparently,

a general interest in Norway and the two leading newspapers in Oslo

carried detailed articles about the case. In 1962, the defendants

successfully requested that the hearing of the case should take place

in a closed session.

In 1962, the City Court of A acquitted the defendants. It considered

the above expressions in the covering letter to be clearly defamatory

to the Applicant, but it held that she was not justified in alleging

that he had given her "no help whatsoever", as he had, in fact, signed

the declaration which effected her release. At the same time, the Court

conceded that Mr Y's conduct was open to criticism in that he did not

inquire about the fate of his wife when learning about the Gestapo

action, in that he did not return immediately to Oslo when notified of

her arrest, that he continued to give his concerts and that he did not

give by telegram a declaration as to the validity of their marriage.

The Court held that the defendants were consequently justified in

making the above statements but it "found no reason" to award costs

against the Applicant. Finally, it rejected the Applicant's request for

permission to publish the judgment which had been pronounced in closed

session.

In 1962, the Applicant lodged an appeal against the City Court's

judgment and a request for a new hearing, which were both rejected by

the Appeal Committee of the Supreme Court in 1962.

In 1963, invoking the provisions of the Convention, the Applicant

appealed against the order of 1962 according to which the case was

heard in a closed session and also against the Court's decision to

deliver judgment in a closed session and requested the quashing of the

above sentence.

In 1963, the Appeal Committee of the Supreme Court rejected her appeal

on the ground that it had been lodged out of time. The Committee added,

however, in respect of her above request, that "although the appeal

must thus be rejected on procedural grounds, the Committee finds

reasons to mention that it would presumably not have been successful,

even if it had been lodged in time". As to the failure on the part of

the Court of giving judgment in public, it stated that although the

judgment should, in accordance with Article 124, paragraph (3) of the

Code of Procedure, be read in public, such mistake would not vitiate

the judgment in question but would only oblige the Court to fix a

session for delivery of the judgment in public.

Whereas the Applicant alleges violation of Article 6, paragraph (1),

of the Convention and claims that the "judgment of the City Court of

A be pronounced in a public session with a possibility that the press

may publish the judgment".

THE LAW

Whereas it is to be observed that, under Article 26 (Art. 26) of the

Convention, the Commission may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law; whereas it is true that the

Applicant in 1962 lodged an appeal to the Supreme Court from the

decision of the City Court of A given in 1962; whereas, however, she

failed to raise in her appeal the complaints which she has now brought

before the Commission, namely, the fact that the decision of the City

Court of A was not handed down in public session;

Whereas the Commission has previously held that in order to comply with

the provisions of Article 26 (Art. 26) "it is not enough that the

Applicant should have submitted his case to the various competent

courts to which, as requested by the said Article (Art. 26) the case

should be referred ... the Applicant should also plead before the

higher court the rights which he alleges were violated by the lower

court" (see Application No. 617/59 - Hopfinger v. Austria, Yearbook

III, page 370); whereas it is true that in 1963 the Applicant raised

the issue before the Supreme Court that the decision of the City Court

of A violated the provisions of Article 6, paragraph (1) (Art. 6-1) of

the Convention;

Whereas, however, according to Norwegian law, this second appeal was

lodged out of time; whereas the Commission has consistently held that

time-limits laid down in domestic law for the introduction of appeals

must be observed by applicants to the Commission (see Application No.

945/60 - P. v. the Federal Republic of Germany, Collection of

Decisions, Volume 8, page 98);

Whereas the Commission infers from the text of the decision of the

Supreme Court of 1963 that the Applicant, during her first appeal,

might successfully have invoked Article 124, paragraph (3) of the Code

of Procedure and Article 6, paragraph (1) (Art. 6-1) of the Convention

and thereby have obtained an order of the Court that a session be fixed

for the delivery of the judgment of 1962 in public; whereas the

Commission considers that the statement made by the Supreme Court as

to the probable failure of the appeal even if lodged in time does not

refer to the issue now before the Commission but solely to the

Applicant's request that the decision of the City Court of A should be

set aside;

Whereas, therefore, the Applicant failed to exhaust the remedies

available to her under Norwegian law; whereas, moreover, an examination

of the case as it has been submitted, including an examination made ex

officio, does not disclose the existence of any special circumstances

which might have absolved the Applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at her disposal;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Article 26 (Art. 26) has not been complied with

by the Applicant;

Whereas it follows that the Application must be rejected in accordance

with Article 27, paragraph (3) (Art. 27-3) of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.