Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26604/95

by Odd F. LINDBERG

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 February 1997, the following members being present:

Mr. J.-C. GEUS, Acting President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

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 26 June 1994 by

Odd F. LINDBERG against Norway and registered on 1 March 1995 under

file No. 26604/95;

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 Norwegian citizen, born in 1945. He is a

journalist and freelance photographer. He submits that he is at present

in hiding in Sweden. In the proceedings before the Commission he is

represented by Mr Percy Bratt and Mr Jan Södergren, lawyers practising

in Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In his capacity as Sealing Inspector appointed by the Ministry

of Fisheries the applicant was on board M/S Harmoni, a seal-hunting

vessel, during the seal-hunting seasons 1987 and 1988. He subsequently

wrote a report dated 30 June 1988 and later appeared in TV programmes

on Norwegian and Swedish television where he spoke about the events.

He also produced a film on the subject.

As a result, 19 members of M/S Harmoni's crew summoned the

applicant to appear in court charged with defamation. They also wanted

a prohibition on the publication of the report of 30 June 1988 as well

as the film. Sarpsborg City Court (byrett) pronounced judgment on

25 August 1990 and as a consequence, several statements were declared

null and void and deleted from the report and the film. The applicant

was further requested to pay NOK 13,000 in compensation to each member

of M/S Harmoni's crew and NOK 150,000 in costs. Leave to appeal was

rejected by the Appeals Selection Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) on 16 May 1991.

COMPLAINTS

The applicant complains of a violation of his right to freedom

of expression and invokes Article 10 of the Convention.

By letter of 2 January 1995 the applicant furthermore alleged

that he did not have a fair trial by an independent and impartial

tribunal and that he was not presumed innocent as required by Article 6

paras. 1 and 2 of the Convention. He also maintained in the letter that

his case disclosed a violation of Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The complaint concerning Article 10 of the Convention was

introduced by letter of 15 November 1991 in which the applicant briefly

described the facts and referred to Article 10 of the Convention. The

letter concluded as follows:

"For practical reasons I am enclosing a copy of the front

page and the conclusion of the [Sarpsborg byrett] judgment,

and a copy of the Supreme Court decision which turned down

my appeal. The Supreme Court decision was of the

16th May 1991, and came to my knowledge some days later.

I will shortly send a formal argument in support of my

application against Norway.

I am presently taking legal advice on this matter.

Please acknowledge [receipt] of this letter." On 17

January 1992 the Commission's Secretariat acknowledged

receipt of the above letter as requested and enclosed a

copy of the Convention and a notice to applicants

containing information as to how to submit an application

to the Commission.

By letter of 26 June 1994 Mr Percy Bratt introduced himself as

a representative of the applicant and requested "information concerning

the status of the above-mentioned matter".

By letter of 7 July 1994 Mr Bratt was informed that since the

applicant had not pursued the application since January 1992 no further

action had been taken.

By letter of 2 January 1995 the applicant's representatives

submitted a completed application alleging breaches of Articles 6, 10

and 13 of the Convention.

By letter of 21 February 1995 the applicant submitted the

following explanation for the delay in pursuing the application.

"The public opinion in Norway became very harsh to members

of the Lindberg family, which was heightened by the

authorities insisting upon Mr Lindberg being a liar (the

report of the Seal Commission - although framed in an

official jargon - was not in the least devastating). He

became 'a people's enemy'.

His family was already drained of money from the legal

proceedings. His wife was fired from her job without

reasonable grounds. His children were harassed in school.

He could not pay the legal fees requested by his Norwegian

lawyer in order to complete the application. He

subsequently had to move out of the country. Further he did

not receive any royalty payments from the producers of the

programs which were sent before the prohibition of

publication.

As apparent from what is mentioned above he still lives in

Sweden and his living conditions are still very tight. He

did not have the possibility to benefit from his efforts in

the West Ice. Recently his book written about the sealhunt

was withdrawn by his Swedish publisher - Norstedts Förlag -

since this company is sued for damage by the Norwegian

Sealhunters, due to some thirty copies of the book was sold

in Norway. This case - among others - are pending in

Norway. Some judgments are already delivered. It seems to

be a never ending story.

Added to the above, while residing in Sweden there was a

burglary in Mr Lindberg's house in Norway, where several

documents were taken. This has not facilitated neither for

him, nor his lawyers, in completing the application.

It also seems impossible to obtain any documents or

evidence of any value from Norwegian authorities. This is

apparent not in the least from the fruitless efforts in

trying to obtain inter alia the tapes from the hearing of

the former sealhunting inspector Eva Munk-Madsen.

In all this more than sufficiently amounts to

due causes for the delay - not in the least since the

Government does not play an insignificant part in causing

Mr Lindberg the dilemmas."

The application was registered on 1 March 1995.

THE LAW

The applicant complains of an unjustified interference with his

right to freedom of expression and alleges that he did not have a fair

trial. He invokes Articles 6, 10 and 13 (Art. 6, 10, 13) of the

Convention.

Pursuant to Article 26 (Art. 26) of the Convention, the

Commission has first considered the question of the date of

introduction of the present application. In this respect the Commission

recalls that the applicant's first communication to the Commission was

dated 15 November 1991 in which he announced his intention to complete

the application in due course. However, he did not resume the

correspondence with the Commission until 26 June 1994.

In accordance with its established practice, the Commission

considers the date of introduction of an application to be the date of

the first letter indicating an intention to lodge an application and

giving some indication of the nature of the complaint. However, where

a substantial interval follows before an applicant submits further

information as to his proposed application, the Commission examines the

particular circumstances of the case in order to decide what date shall

be regarded as the date of introduction and from which to calculate the

running of the six month period set out in Article 26 (Art. 26) of the

Convention (see No. 4429/70, Dec. 1.2.71, Collection 37, p. 109).

The Commission finds that one of the purposes of the six months

rule is to ensure that cases raising issues under the Convention are

dealt with within a reasonable time. Furthermore, it ought also to

protect the authorities and other persons concerned from being under

any uncertainty for a prolonged period of time.

There is a parallel between the aim pursued in Article 26 and

Article 6 para. 1 (Art. 26, 6-1) of the Convention in that both

Articles should secure a determination of a case within a reasonable

time. The express obligation mentioned in Article 26 (Art. 26) of the

Convention, however, only relates to the lodging of an application but

the Commission has in this respect so far been generous in accepting

that the date of introduction was the submission of the first letter

concerning the complaint without imposing any further restrictions.

However, it would be contrary to the spirit and the aim of the

six month rule set out in Article 26 (Art. 26) of the Convention if,

by any initial communication, an applicant could set into motion the

proceedings under Article 25 (Art. 25) of the Convention and then

remain inactive for an unexplained and unlimited length of time. The

Commission has constantly rejected applications where an applicant

submitted an application more than six months after the date of the

final decision when there were no special circumstances suspending the

running of this period. The Commission finds that it would be

inconsistent with the aim and purpose of the six month rule to deviate

from this rule in a situation where an application has been introduced

under Article 25 (Art. 25) of the Convention within six months from the

final decision but thereafter has not been pursued. Delays in pursuing

the case are only acceptable in so far as they are based on reasons

connected with the case (cf. e.g. No. 22507/93, Dec. 5.4.95, D.R. 81-A,

p. 67). Such reasons may consist of the exhaustion of remedies which

an applicant has reason to believe was necessary (see Nos. 9024/80 and

9317/81, Dec. 9/7/82, D.R. 28, p. 138). In such circumstances, however,

the Commission finds that it follows from the purpose and aim of

Article 26 (Art. 26) of the Convention that the application must be

pursued by the applicant within a period of six months after the date

of the final decision obtained (cf. No. 10626/83, Dec. 7.5.85, D.R. 42,

p. 205).

In the present case the Commission recalls that approximately two

years and seven months passed until the applicant, on 26 June 1994,

resumed the correspondence with the Commission and an additional six

months and one week passed before he submitted the completed

application with supporting documents on 2 January 1995. The Commission

does not find that the reasons which caused these delays, as submitted

by the applicant, are of a kind which could have suspended the running

of the six month period referred to in Article 26 (Art. 26) of the

Convention.

Therefore, notwithstanding the applicant's initial submission of

15 November 1991 the Commission considers in the present case

26 June 1994 to be the date of introduction of the application and it

follows that, having thus been introduced out of time, it must be

rejected under Article 27 para. 3 (Art. 27-3) 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

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LINDBERG v. NORWAY

LINDBERG v. NORWAY

LEXI