Lexploria

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

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STRØMSNES AKVAKULTUR A/S v. NORWAY

STRØMSNES AKVAKULTUR A/S v. NORWAY

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