AS TO THE ADMISSIBILITY OF

                      Application No. 25944/94

                      by PETERSON SARPSBORG AS and Others

                      against Norway

      The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, 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 4 November 1994

by Peterson Sarpsborg AS and Others against Norway and registered on

14 December 1994 under file No. 25944/94;

      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 applicants nos. 1-3 are Norwegian companies and the

applicants nos. 4-6 are Norwegian citizens who at the relevant time

were the respective managing directors of the companies (see annex).

Before the Commission all applicants are represented by Mr. Anders Chr.

Stray Ryssdal, a lawyer practising in Oslo.

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

summarised as follows.

      The applicant companies are undertakings engaged in the

manufacturing and sale of corrugated cardboard, mostly for the

Norwegian market. Occasioned by tip-offs about unlawful collaboration

over prices, inspections were made in the period from May to

December 1990 by the Price Directorate (Prisdirektoratet) and the

National Price Inspectorate (Statens pristilsyn). Pursuant to

section 15 of the Prices Act of 26 June 1953 (prisloven), and section 7

of the Regulations Enforcement Act of 9 July 1948 (lov om oppehalding

av pris- og rasjoneringsføresegnene o.a.) statements were taken from

the managing directors of the companies and from other employees. The

inspectors from the price authorities prepared summaries of the

statements made, a total of 34 individual statements, seven of which

had been made by the senior executives. The summaries were prepared

directly in continuation of the meetings in which the statements were

made, and in co-operation with the persons making the statements. The

persons making the statements had the opportunity to suggest

amendments. The final summary was co-signed by the person making the

statement after being annotated as having been read through and found

to be correct.

      As a result of the inspections, the Price Directorate on

4 October 1991 reported inter alia the three applicant companies to the

Oslo Police which commenced an investigation of the matter. Økokrim,

the authority investigating and prosecuting economic and environmental

crime in Norway, filed charges on 16 June 1993 under section 52,

cf. sections 24 and 42, of the Prices Act and section 1, cf. section 3,

of the Regulations of 1 July 1960 on Restraint of Competition on Prices

and Profits (forskrift av 1 juli 1960 om konkurrencereguleringer av

priser og avanser) against the managing directors of the companies (the

three individual applicants), for having violated during the period

from 1983 to 1990, in particular aggravating circumstances, the

prohibition on competitive restraint through various forms of price

collaboration. On 12 August 1993 charges were brought also against the

three applicant companies. The main proceedings in the criminal case

commenced before the Oslo City Court (byrett) on 18 April 1994.

      Prior to that, in presenting its list of evidence to the City

Court, Økokrim had stated its intention to submit summaries of the

statements obtained by the price authorities. The accused parties

demanded that the summaries be precluded as evidence. Pursuant to

section 272 subsection 2 of the Code of Criminal Procedure

(straffeprosessloven) the City Court held a session to consider the

question of preclusion, and on 22 December 1993 gave its ruling with

the following conclusion:

(Translation)

      "Statements taken by the Price Directorate by virtue of

      section 7 of the Regulations Enforcement Act and section 15

      of the Prices Act will be precluded from being presented as

      evidence in the criminal case.

      This preclusion relates to all forms of their submission as

      evidence - direct reading aloud or in other more indirect

      manners."

      The City Court found that the statements should be considered as

having been made "in the context of the case", cf. the final sentence

of sections 290, 296 and 297 of the Code of Criminal Procedure. The

Court also held - referring among other things to the fact that they

had been made according to duty and under penalty of the law - that the

statements could not be used to confront the applicants and the

witnesses concerned with their previous submissions while giving

evidence during the main hearing.

      An appeal was lodged by Økokrim with the Eidsivating High Court

(Eidsivating lagmannsrett) against the ruling of the City Court.

Following an oral hearing the High Court concluded, on

28 February 1994, as follows:

(Translation)

      "The statements submitted which were taken by the Price

      Directorate and the National Price Inspectorate pursuant to

      section 7 of the Regulations Enforcement Act of 9 July 1948

      and section 15 of the Prices Act, are precluded as

      documentary evidence in the criminal case. The statements

      may be used as evidence to the extent foreseen in

      sections 290, 296 and 297 of the Code of Criminal

      Procedure."

      The High Court agreed with the City Court that the statements

made to the price authorities should be regarded as having been made

in the context of the case, but did not find any basis for refusing

their use during the main hearing in the way foreseen by sections 290,

296 and 297 of the Code of Criminal Procedure.

      The applicants and Økokrim appealed against the decision to the

Supreme Court (Højesterett). On 25 March 1994 the Appeals Selection

Committee of the Supreme Court (Højesteretts kjæremålsutvalg) granted

leave to appeal to both parties.

      In the decision of 13 May 1994 Judge Bugge stated on behalf of

the unanimous Court inter alia as follows:

(Translation)

      "This case concerns statements made to the civil servants

           of the price authorities at a time when the case

           was   stillatthe inspection and examination

           stage, long beforeany criminal investigation was

           embarked upon. There will often be such a stage

           within the area of regulatory legislation. The

           inspecting authorities in charge of the

           enforcement need to go into the matter for the

           purpose of clarifying the factual circumstances

           before an investigation ofany offences can be

           considered. Some regulatory Acts, such as the

           price and competition legislation,

           expresslyprovide justification for the duty to

           supply information and make statements, under

           penalty of the law, without the need for me here

           to go into the individual rules of law. It is

           possible to speak of a certain 'tension' between

           the rules relating to the duty to supply

           information within or outside of criminal

           proceedings. I consider it quite clear,however,

           that one cannot deduce from the rules governing

           criminal procedure any general ban against using

           information supplied by virtue of such a duty as

           evidence in a subsequent criminal case.

      [The applicants] have argued that a ban as stated will in

      this case need to follow from the investigative powers of

      the price legislation itself. Reference is made to the fact

      that the duty to supply information under section 15 of the

      Prices Act is linked to the kind of information required by

      the Price Directorate 'to enable it to carry out its tasks

      under this Act', cf. the corresponding wording in section 7

      of the Regulations Enforcement Act. I hold this to be

      untenable. According to section 5 of the Act the task of

      the Price Directorate is, among other things, to 'assist in

      implementing the Act'. It is evident that the Directorate

      is entitled - indeed obliged - to report any matters of a

      criminal nature and also, in that event, to leave to the

      Police any informative material compiled during the

      investigative examinations. I fail to find any basis for an

      interpretation of the Prices Act and the Regulations

      Enforcement Act which would preclude the prosecution from

      using this material as evidence in the criminal case. The

      defence counsel has referred to opinions expressed in the

      decisions in Rt 1976, p. 1219 and p. 1446 where mention is

      made of the dissimilarities between the duty to supply

      information at the investigative stage and in the criminal

      case. Also here I fail to find any support for the

      submission made by [the applicants].

      ...

      [As regards the relationship with the Human Rights

      Conventions] this aspect of the case has been argued more

      extensively before the Supreme Court than before the lower

      bodies.

      [The applicants] submit that - regardless of the conclusion

      arrived at under domestic law - it follows from the rules

      of law which may be deduced from the European Convention on

      Human Rights (ECHR) and the UN International Covenant on

      Civil and Political Rights, both of which Norway has

      acceded to, that the statements must be precluded as

      evidence in the criminal case. At any rate, this should

      apply to the statements made by [the applicants].

      To this I would remark initially that I agree that

      Norwegian courts must apply the procedural rules in the

      area of criminal law in such a manner as to render the

      trial compatible with our obligations under the treaties,

      and that it may be necessary to set aside the Norwegian

      rules in the event of conflict, cf. section 4 of the Code

      of Criminal Procedure. ...

      [The applicants] have invoked three grounds on which the

      use of the statements as evidence in the criminal case

      would be contrary to the conventions.

      The first one is the requirement in Article 6 para. 2 of

      the ECHR that a person who is accused shall be presumed

      innocent until proved 'guilty according to law'. It is

      submitted that a conviction which for evidence relies

      on statements which [the applicants] have made to the price

      authorities will not meet the basic requirements which must

      apply in respect of the presentation of evidence in a

      criminal case.

      The second ground is the principle of 'equality of arms'

      which is deemed part of the requirement of a fair trial,

      laid down in Article 6, more specifically para. 3 (d), of

      the ECHR. It is argued that when the presentation of

      evidence in a case is going to build substantially on

      statements taken from witnesses without [the applicants]

      having been represented, then that will not meet the

      requirement which states that the indicted parties and the

      prosecution authority should have been allowed equal

      opportunity to safeguard their interests.

      The third ground is the ban on an accused or indicted

      person being forced to testify against himself or to plead

      guilty - 'self-incrimination' - expressed in Article 14

      para. 3 (g) of the UN Covenant. This ban must be considered

      to apply also within the scope of the ECHR. It is

      maintained that the statements, if used as evidence, will

      in fact entail that [the applicants] will have been forced

      to 'incriminate' themselves. It is no excuse that the

      formal rules in the Code of Criminal Procedure concerning

      the duty of [the applicants] to make a statement otherwise

      meet the requirements of the Convention. [The applicants]

      invoke in particular the ruling by the European Court of

      Human Rights of 25 February 1993 in Funke v. France which

      is alleged to have put an end to permitting information

      provided under a duty, sanctioned by a threat of

      punishment, to make a statement to a public investigative

      authority to be used as evidence in a criminal case. [The

      applicants] have also referred to the decision reached by

      the Commission of Human Rights on 13 October 1992 in the

      case of K v. Austria, and to decisions by the EC Court of

      18 October 1989 in the case of Orkem v. The Commission and

      of 10 November 1993 in the case Otto BV v. Postbank NV.

      Before the Supreme Court, Økokrim has contested that it is

      possible to infer from any of the said treaty texts or

      court rulings any ban on the statements being presented as

      evidence. This also applies to the judgment in the Funke

      case which, in the opinion of the prosecution, is

      distinguishable in several ways from the problems involved

      in the present case.

      I for my part fail to see that the first two grounds have

      any merit. If the indicted parties, in an ordinary trial,

      were to be found by the City Court to be guilty as charged,

      it cannot possibly be said that their guilt has not been

      'proved according to law' - due to the statements made to

      the price authorities having been available as evidence in

      the case. As has been stated, the statements did come about

      in a completely lawful manner. Nor can there be any grounds

      for saying that the tenet of 'equality of arms' has been

      violated, having regard to the fact that [the applicants]

      and their counsel will have had the opportunity in the

      normal way, to question in court any witnesses called

      against them and themselves to call any defence witnesses

      they want. In my view, the minimum requirements posed by

      Article 6 para. 3 (d) of the ECHR must thereby have been

      satisfied. The third ground, the ban on self-incrimination,

      deserves somewhat closer consideration.

      Under Article 14 para. 3 (g) of the UN Covenant, anybody

      (in the English text) 'in the determination of any criminal

      charge against him' is entitled to not 'being forced to

      witness against himself or to plead guilty'. Any such

      explicit provision does not exist in ECHR. The Court of

      Human Rights has, however, taken as its basis that a

      similar warranty of legal protection also applies within

      the area of the ECHR, associated with the 'fair trial'

      concept. A corresponding basis has, incidentally, been

      applied by the EC Court of Justice.

      The ban on anybody being forced to admit his own guilt thus

      applies in determining 'a criminal charge' against the said

      person, and that must mean when a criminal case has been

      opened. This requirement, as I have pointed out above, is

      met in our Code of Criminal Procedure. It is, however,

      argued by [the applicants] that in the Funke case, the

      Court of Human Rights has given a wider scope to the ban so

      that also the use of 'self-incriminating' information which

      an accused person has been ordered to provide at an earlier

      stage of the case - at the 'investigative' stage - must be

      deemed to be contrary to the Convention.

      ...

      The Funke case related to presentation of documents, not to

      the question of the duty to make a statement. The way I

      understand the judgment, what the Court ruled on directly

      was the actual fine being imposed on Mr. Funke to force him

      to comply with the presentation order; the issue of whether

      the use of documents in a subsequent criminal case against

      Mr. Funke would have been regarded as contrary to the

      Convention, is not mentioned. ... The Funke judgment thus

      does not touch on what is the crux of the matter in our

      case, since the statements were taken at a time when [the

      applicants] were not accused or suspected of any criminal

      act. As mentioned, Norwegian criminal procedural law

      ensures the personally indicted parties the right to

      'remain silent and not to contribute to incriminating

      themselves'.

      In any circumstances I fail to find justification in the

      brief reasons given by the Court in the Funke case, as [the

      applicants] would do, for drawing the conclusion that it

      would be contrary to the 'fair trial' concept to use the

      summaries of statements with which our case is concerned as

      evidence in the criminal case. Far less can it be inferred

      that the actual duty to make a statement under the rules of

      the prices and competition legislation would be contrary to

      the Convention. That would be ascribing to the judgment

      far-reaching - and in my opinion unpredictable - effects on

      Norwegian domestic law. The defence counsel, on being asked

      during the appeals proceedings, has incidentally indicated

      that [the applicants] do not contest as such the duty to

      make a statement to the price authorities.

      The other European Court rulings which have been referred

      to during the closing arguments, each of which has its own

      special features, I see no reason to go into. None of them

      can in my view provide any basis for ascertaining that it

      would be contrary to Norwegian obligations under the

      conventions if use were to be made of the statements as

      evidence in the criminal case.

      ...

      The question is then whether the statements must be seen as

      having been made in the context of the case, so that they

      cannot be presented as ordinary documentary evidence, but

      merely be used for 'confrontation' in accordance with

      sections 290, 296 and 297 of the Code of Criminal

      Procedure. The last-mentioned provision has not,

      incidentally, been claimed to be relevant to the case.

      The principal stand-point of [the applicants] is that the

      statements cannot be permitted to be used in this manner

      either; they must be precluded altogether. Their appeal is

      however not accepted on this point. [The applicants] have

      in this connection also submitted that section 290, second

      sentence, and section 296 subsection 2, second sentence,

      only provide authority for confrontation with written

      declarations made voluntarily, not duty-bound declarations

      made by the indicted person. Reference is made to the fact

      that the wording of the Code treats written declarations as

      being equal to statements to the police which will indeed

      have been made voluntarily. I do not agree with this

      understanding of the law.

      In the alternative, [the applicants] will accept, as

      mentioned, the decision by the High Court on this count.

      It is then the appeal lodged by Økokrim which remains to be

      decided upon.

      ...

      As will be evident from the review made by the Appeals

      Selection Committee into the past history of the

      investigative powers in the price laws in the ruling in

      RT 1976, pp. 1446 and following, it has long been

      recognised that the duty to supply information at the

      investigative stage applies without the restrictions which

      otherwise apply pursuant to the Code of Criminal Procedure

      once a criminal case has been opened. I would also refer to

      what is said on the subject in Rt 1976 p. 1219, at p. 1221.

      It has not been deemed an obstacle to this if the

      administration on its part has had more or less

      well-founded suspicions of anything criminal. The question

      of whether the Code of Criminal Procedure lays down limits

      for the way in which the information may be used in a

      subsequent criminal case has, however, not been discussed

      in any of these rulings, and no case-law which otherwise

      voices an opinion on the issue appears to exist.

      Like the High Court, I have concluded that the statements

      in our case must be deemed to be statements made 'in the

      context of the case' within the meaning of the Code of

      Criminal Procedure and that, consequently, they may be used

      during the main proceedings merely within the scope laid

      down by sections 290 and 296, i.e. for 'confrontation' with

           the oral evidence given by the indicted parties and

      the  witnesses.       ...

      I ... fail to see that it is unnatural to bring these provisions

      to bear on statements made to the price authorities in the course

      of their investigative efforts. It is true that the primary

      aim of making inspections is not to prepare the ground for

      a criminal case. However, when the inspection nevertheless

      results in criminal proceedings being opened, good reasons

      speak in favour of applying the provisions concerning

      out-of-court statements also to statements being made at

      the investigative stage.

      I consequently conclude that neither [the applicants']

      appeal nor that of Økokrim can succeed, and I vote for

      [dismissing the appeals]."

      As indicated above the criminal case against the applicants

commenced in the Oslo City Court on 18 April 1994. During these

proceedings the applicant directors were heard as well as 51 witnesses

and two expert witnesses. In accordance with the above Supreme Court

decision the statements obtained by the price authorities were not

admitted as documentary evidence. Furthermore, none of the applicant

directors was confronted with their previous submissions to the price

authorities during the City Court proceedings. They submit, however,

that thirteen of the witnesses heard were confronted with their

previous statements made during the price authorities' inspections

while giving evidence in court.

      On 16 May 1994 the case was adjourned in so far as it concerned

the fourth applicant due to serious illness in his family.

      The proceedings in the City Court came to an end on 16 June 1994

following which judgment was pronounced on 12 July 1994. On the basis

of an evaluation of the available evidence the City Court found the

fifth and sixth applicants guilty of the charge of unlawful price

collaboration and sentenced both of them to a fine of 75,000 NOK.

Pursuant to section 53 of the Price Act a penalty was imposed on the

applicant companies. They were sentenced to pay a fine of

1,000,000 NOK, 250,000 NOK and 400,000 NOK respectively. In addition,

the applicant companies were ordered to pay a total of 5,160,000 NOK

considered to be the gain obtained from the transactions found to be

illegal.

      On 15 July 1994 Økokrim appealed against the judgment to the

Supreme Court in so far as it concerned the sentences imposed. By

letters of 26 and 27 July and 3 August 1994 the applicants, except the

fourth applicant whose case had been adjourned, also lodged an appeal

requesting a new trial in the High Court or an examination by the

Supreme Court referring to procedural errors, incorrect application of

the law and the sentences. Further written observations were submitted

by Økokrim on 22 August 1994, by the third and sixth applicants on

26 August 1994 and by the second and fifth applicants on

31 August 1994.

      On 24 November 1994 the Appeals Selection Committee of the

Supreme Court decided to accept the parties' appeal in so far as it

concerned sentencing. The applicants' request for a new trial in the

High Court as well as their appeals concerning alleged procedural

errors and incorrect application of the law were, however, rejected.

The applicants were informed of the decision on 14 February 1995. They

were also informed that the President of the Supreme Court had

appointed counsel for them and that, in so far as they had information

of relevance to the case which was not already in the file, they should

contact their counsel. Finally, they were informed that the case would

be dealt with as soon as possible without further notice to them.

      The date of the hearing in the Supreme Court was decided by the

office of the Court after consultation with the prosecution and the

applicants' counsel. On 21 March 1995 the parties were informed that

the case was scheduled for hearing on 21 November 1995.

      The case was heard by the Supreme Court on 21 November 1995.

During the proceedings in the Supreme Court no use was made of the

statements obtained by the price authorities. On the basis of the

available evidence the Supreme Court upheld the sentence imposed on the

applicant directors. As regards the applicant companies the Supreme

Court upheld the High Court judgment in so far as it concerned the

confiscation of the illegal gain but the fines were increased to

5,500,000 NOK, 1,350,000 NOK and 2,700,000 NOK respectively.

      Following the above judgment Økokrim presented, on

4 January 1996, the fourth applicant, whose case had been adjourned in

the City Court, with the option (forelegg) of accepting a fine of

75,000 NOK corresponding to the fines imposed on the other applicant

directors. The fourth applicant accepted the option. The proceedings

against him were accordingly discontinued.

COMPLAINTS

1.    The applicants complain that the Supreme Court, through its

decision of 13 May 1994 to permit the compulsory statements obtained

by the price authorities under penalty of criminal punishment to be

used as evidence against them in the criminal case, violated Article 6

of the Convention. More specifically they complain:

a)    that their right under Article 6 para. 1 to be protected against

self-incrimination has been breached;

b)    that their right under Article 6 para. 2 to be presumed innocent

until proven guilty according to law has not been observed since the

statements in question were obtained for an administrative purpose and

under different conditions than statements given as evidence in a

criminal case;

c)    that their right under Article 6 para. 3 (d) to "equality of

arms" has been breached since they were not assisted by defence counsel

when the price authorities obtained the statements and that the

opportunity to perform a meaningful cross-examination of witnesses was

therefore limited; and

d)    that, even if none of the above incidents would qualify as

violations of the Convention in themselves, their right under Article 6

to a fair trial based on an overall assessment has been violated.

2.    All applicants, except the fourth applicant, further complain

that the Supreme Court's Appeals Selection Committee's rejection of

their request for a retrial and its decision to limit their appeal

violate their right to a fair trial as guaranteed by Article 6 of the

Convention.3.    Finally, the applicants complain, under Article 2 of

Protocol No. 7, that it was impossible for the Supreme Court "to make

an informed appeals decision on the meting out of punishment and profit

divestiture, as long as the applicants' calls for review [were] limited

as thoroughly as in the present case".

THE LAW

1.    The applicants complain that the alleged use during the criminal

proceedings in question of certain statements made by the applicant

directors and other employees of the applicant companies to the price

authorities violated in various ways Article 6 (Art. 6) of the

Convention which in so far as relevant to the complaints made reads as

follows:

      "1.  In the determination of ... any criminal charge

      against him, everyone is entitled to a fair ... hearing ...

      by [a] ... tribunal established by law.

      ...

      2.   Everyone charged with a criminal offence shall be

      presumed innocent until proved guilty according to law.

      3.   Everyone charged with a criminal offence has the

      following minimum rights:

      ...

           d.    to examine or have examined witnesses against

      him and to obtain the attendance and examination of

      witnesses on his behalf under the same conditions as

      witnesses against him;

      ..."

a)    All applicants complain that their right under Article 6 para. 1

(Art. 6-1) of the Convention to be protected against self-incrimination

has been breached. In support of this allegation they refer to the fact

that the Supreme Court, through its decision of 13 May 1994, legalised

the use of the compulsory statements obtained by the price authorities

in the subsequent criminal cases against them.

      The Commission recalls that the first, second and third

applicants are companies which in their own legal capacity were found

guilty of the charges brought against them. The question arises

therefore whether or to what extent these companies can incriminate

themselves through statements made by their employees. The Commission

furthermore recalls that the case against the fourth applicant was

adjourned and eventually discontinued following his acceptance of the

option presented to him on 4 January 1996. In respect of this applicant

the question arises whether he has exhausted the domestic remedies at

his disposal. In the circumstances of the present case, however, the

Commission does not consider it necessary to examine these questions

further because it finds that the applicants' complaint is in any event

manifestly ill-founded for the following reasons.

      The Commission recalls that as a general rule questions

concerning evidence are for the national courts to determine. Article 6

(Art. 6) does not lay down any rules on the admissibility of evidence

as such, which is therefore primarily a matter for regulation under

domestic law (see e.g. Eur. Court HR, Schenk v. Switzerland judgment

of 12 July 1988, Series A no. 140, p. 29, para. 46). The Commission

must however determine whether the proceedings considered as a whole,

including the way in which the prosecution obtained and used evidence,

were fair as required by Article 6 para. 1 (Art. 6-1) of the

Convention. In this context, the Commission recalls that the Convention

is intended to guarantee rights which are not theoretical or illusory

but rights that are practical and effective; this is of particular

relevance to the rights of the defence given the prominent place held

in a democratic society by the right to a fair trial (see e.g. Eur.

Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p.

16, para. 33).

      The Commission observes that the right to silence is not

expressly guaranteed by Article 6 (Art. 6) of the Convention and

accepts that the right may not be unqualified. However, the privilege

against self-incrimination is an important element in safeguarding an

accused from oppression and coercion during criminal proceedings. The

very basis of a fair trial presupposes that the accused is afforded the

opportunity of defending himself against the charges brought against

him and the position of the defence is undermined if the accused is

under compulsion, or has been compelled, to incriminate himself

(cf. Eur. Court HR, Funke v. France judgment of 25 February 1993,

Series A no. 256, para. 44, p. 22).  The privilege against

self-incrimination is also closely linked to the principle of

presumption of innocence protected in Article 6 para. 2 (Art. 6-2) of

the Convention in that it reflects the principle that the State shall

bear the general burden of establishing the guilt of an accused, in

which process the accused is entitled not to be required to furnish any

involuntary assistance by way of a confession.

      Whether a particular applicant has been subject to compulsion to

incriminate himself and whether the use made of the incriminating

material has rendered criminal proceedings unfair will, however, depend

on an assessment of the circumstances of each case as a whole.

      In the present case the Commission recalls that the applicant

directors and the other employees of the applicant companies were

required by law to answer the questions put to them by the price

authorities during their pretrial inspections. However, the Supreme

Court ruled that these statements could not be used as documentary

evidence in the criminal proceedings but only, if necessary, in order

to confront a witness or the accused with this statement while giving

oral evidence in court. In fact none of the applicants were confronted

with their statements made to the price authorities. Consequently,

these statements were not brought to the trial court's attention.

Furthermore, the fact that a number of witnesses were confronted with

their own previous statements does not, in the Commission's view,

infringe upon the applicants' privilege against self-incrimination.

      In these circumstances the Commission finds that the applicants

were not, in respect of the criminal proceedings, compelled to

incriminate themselves, nor did their statements to the price

authorities play any significant role as part of the evidence against

them at the trial. Thus, the statements obtained did not impair their

ability to defend themselves against the criminal charges brought.

Accordingly, this complaint does not disclose any appearance of a

violation of Article 6 (Art. 6) of the Convention.

b)    As regards the applicants' reference to their right to be

presumed innocent the Commission recalls that the trial court examined

the statements of 53 witnesses and documentary evidence from which,

however, the applicants' statements to the price authorities had been

expressly excluded by the Supreme Court decision of 13 May 1994. The

Commission finds that the applicants' convictions were based on an

evaluation of the witnesses' statements and the available documentary

evidence. Especially, there is no element which indicates that the

trial court in fulfilling its functions started from the presumption

that the applicants had committed the acts with which they were

charged. An examination of this complaint therefore likewise fails to

disclose any appearance of a violation of the Convention and in

particular of Article 6 para. 2 (Art. 6-2).

c)    In so far as the applicants have relied on their right to

equality of arms the Commission has not found any elements which could

lead to the conclusion that this aspect of a fair trial was set aside

during the criminal proceedings. Furthermore, in so far as the

applicants appear to refer to an alleged inequality during the pretrial

inspections carried out by the price authorities, the Commission finds

that Article 6 (Art. 6) does not apply to these proceedings as they

neither determined a civil right nor a criminal charge. This part of

the applicants' application does not, therefore, disclose any

appearance of a violation of Article 6 (Art. 6) of the Convention

either.

d)    Summing up, the Commission recalls that the guarantees in

paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention as

submitted by the applicants, are specific aspects of the right to a

fair trial set forth in paragraph 1. The Commission has considered the

particular aspects and incidents invoked by the applicants in respect

of their trial in the Oslo City Court, and has found that these do not

assume such importance as to constitute a decisive factor in the

general appraisal of the trial. In addition an examination of the

conformity of the trial as a whole with the rules laid down in Article

6 (Art. 6)  of the Convention as to its fairness has not disclosed any

appearance of a violation of this provision either.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    All applicants, except the fourth applicant, further complain

that the Supreme Court's Appeals Selection Committee's rejection of

their request for a retrial and its decision to allow the appeal only

to a limited extent violates Article 6 (Art. 6) of the Convention. They

assert in particular that the appeals procedure must be fashioned in

such a way that it is possible to see that justice is done at the

appellate level. In the present case they complain that the Appeals

Selection Committee did not offer any grounds for its decision and that

they were not offered sufficient possibilities of presenting the

grounds for their appeals.

      The Commission recalls that the Appeals Selection Committee was

called upon to decide whether the applicants' request for a new trial

in the High Court or, in the alternative, for leave to appeal to the

Supreme Court should be granted. The issue therefore arises whether the

Committee can be said to "determine" the criminal charge against the

applicants. In the present case, however, the Commission finds it can

leave this question open and proceed on the assumption that Article 6

(Art. 6) applies.

      The manner of application of Article 6 (Art. 6)  to proceedings

before appeal courts depends on the special features of the proceedings

in the domestic legal order seen in their entirety and the role of the

appellate court therein. Regard must be had to the nature of the appeal

system, to the scope of the appeal court's powers and to the manner in

which the applicants' interests were actually presented and protected

before the appeal court, particularly in the light of the nature of the

issue to be decided (cf. for example Eur. Court HR, Fejde v. Sweden

judgment of 29 October 1991, Series A no. 212-C, p. 67, para. 27).

      In the present case the Commission recalls that the applicants'

case was heard in the Oslo City Court from 18 April to 12 July 1994.

As already established above nothing has emerged from the examination

of this case which indicates that the applicants were not afforded all

the guarantees secured by Article 6 (Art. 6) of the Convention during

this trial.

      As regards the "appeal proceedings" the Commission recalls that

the Appeals Selection Committee was called upon to decide whether or

not to grant leave to appeal. The limited nature of this issue does

not, in the Commission's view, in itself call for oral argument or a

public hearing or the personal appearance of the applicants, but

Article 6 (Art. 6) requires that the applicants be provided, in some

appropriate way, with a fair procedure allowing them to present their

case to the Appeals Selection Committee (cf. Eur. Court HR, Monnell and

Morris v. the United Kingdom, judgment of 2 March 1987, Series A no.

115, pp. 22 and 23, paras. 58 and 61).

      In this respect the Commission notes that the principle of

equality of arms was respected in that none of the parties were heard

orally by the Appeals Selection Committee. Furthermore, the applicants

were assisted by counsel and had the possibility to submit, in writing,

what in their opinion would be of relevance to the request. They were

also afforded the opportunity to study and reply to the submissions

made by the prosecuting authority. Accordingly, the proceedings cannot

be said to have taken place in such conditions as to put the applicants

unfairly at a disadvantage. In addition, the Commission has no cause

to doubt that the Appeals Selection Committee's decision to allow the

appeal only on certain points was based on a full and thorough

evaluation of the relevant factors.

      As regards the applicants' reference to the fact that no reasons

were given by the Appeals Selection Committee for its refusal to grant

leave to appeal the Commission accepts that under specific

circumstances the absence of reasons in a court decision might raise

an issue as to the fairness of the procedure which is guaranteed by

Article 6 para. 1 (Art. 6-1) of the Convention. It considers, however,

that if the domestic law, as in the present case, subjects the

acceptance of the appeal to a decision by the competent court as to

whether it considers that the appeal raises a legal issue of

fundamental importance and whether it has any chances of success, it

may be sufficient for this court simply to reject or accept this

petition (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).

      Thus, having regard to the circumstances of the case, in

particular the scope of review exercised by the Appeals Selection

Committee, the Commission finds that its proceedings do not disclose

any appearance of a violation of Article 6 (Art. 6) of the Convention.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Finally, the applicants complain of a violation of Article 2 of

Protocol No. 7 (P7-2) to the Convention since it was, in their view,

impossible for the Supreme Court to "make an informed appeals decision

on the meting out of punishment and profit divestiture, as long as the

applicants' calls for review [were] limited as thoroughly as in the

present case".

      Article 2 of Protocol No. 7 (P7-2) reads as follows:

      "1.  Everyone convicted of a criminal offence by a tribunal

      shall have the right to have his conviction or sentence

      reviewed by a higher tribunal.  The exercise of this right,

      including the grounds on which it may be exercised, shall

      be governed by law.

      2.   This right may be subject to exceptions in regard to

      offences of a minor character, as prescribed by law, or in

      cases in which the person concerned was tried in the first

      instance by the higher tribunal or was convicted following

      an appeal against acquittal."

      The Commission notes that different rules govern review by a

higher tribunal in the member States of the Council of Europe. In some

countries such review is in certain cases limited to questions of law

such as the "recours en cassation" (in French law) or "Revision" (in

German law). In other countries there is a right to appeal against

findings of fact as well as on questions of law; and in some States a

person wishing to appeal to a higher tribunal must in certain cases

apply for leave to appeal.

      As regards Norway the Commission recalls that judgments of the

City Court are subject to two kinds of review in criminal cases in the

form of an examination by the Supreme Court or a new trial in the High

Court. The choice between these remedies rests with the appellant and

depends on the aspects of the judgment which are contested. Whereas a

party may petition for a new trial in the High Court when the question

of evidence in relation to the issue of guilt is alleged to have been

wrongly decided by the City Court, an "appeal" to the Supreme Court may

be based on alleged defects covering the application of the law, the

application of the rules of procedure and the determination of the

sanction.

      Having regard to this the Commission considers that in principle

the possibility exists in Norway for a person convicted of a criminal

offence to have his conviction or sentence reviewed by a higher

tribunal within the meaning of Article 2 of Protocol No. 7 (P7-2) to

the Convention.

      However, the possibility of such a "review" depends on leave from

the Appeals Selection Committee of the Supreme Court. The question

accordingly arises whether the Norwegian system of "leave to appeal",

as applied in the present case, was such that the applicants were

denied a review of their conviction or sentence as required by

Article 2 of Protocol No. 7 (P7-2)  to the Convention.

      The second sentence of this provision requires that the exercise

of the right to a review by a higher tribunal shall be governed by law

but it does not otherwise specify its scope or actual implementation.

However, as the reference to the grounds for the review being governed

by law clearly shows, the Contracting States have a discretion as to

the modalities for the exercise of the right of review. Consequently,

the Article gives the States the possibility to regulate the review in

certain ways.

      The Commission recalls, as a matter of comparison, that the right

of access to the courts secured by Article 6 para. 1 (Art. 6-1) of the

Convention may also be subject to limitations in the form of regulation

by the State. The State enjoys a certain margin of appreciation but in

addition to pursuing a legitimate aim the limitations applied shall not

restrict or reduce the access left to the individual in such a way that

the very essence of the right is impaired (cf. e.g. Eur. Court HR,

Tolstoy Miloslawsky v. the United Kingdom judgment of 13 July 1995,

Series A no. 316-B, pp. 78-79, para. 59).

      Although it is not the Commission's task to substitute itself for

the competent Norwegian authorities in determining the most appropriate

policy for regulating the exercise of the right of review, the

Commission finds that similar considerations should be kept in mind

when examining whether the limitations on the right to a review as

guaranteed by Article 2 of Protocol No. 7 (P7-2) are compatible with

the very essence of this right.

      The Commission recalls from previous applications

(cf. No. 20087/92, Dec. 26.10.95, D.R. 83-A p. 5) that the Appeals

Selection Committee of the Supreme Court may decide not to allow an

"appeal" to proceed when it unanimously finds it clear that it will not

succeed (cf. section 349 of the Code of Criminal Procedure).

Furthermore, the Committee may refuse leave to obtain a new trial in

the High Court if there is no reason to doubt that the assessment of

evidence was correct or there are no other special reasons for granting

such leave (cf. section 370).

      The Commission considers that these provisions of the Code of

Criminal Procedure pursue a legitimate aim, i.e. the fair

administration of justice. Furthermore, the Commission has found no

evidence which could lead to the conclusion that the Appeals Selection

Committee pursued any other aims. Although it is not the Commission's

task to assess the facts which led the Committee to adopt one decision

rather than another the Commission is satisfied that the decision taken

in the present case was based on a full evaluation of all relevant

factors.

      In the circumstances the Commission does not find that the

Appeals Selection Committee overstepped its margin of appreciation when

deciding on the applicants' request for leave to appeal. Their right

to a review by a higher tribunal within the meaning of Article 2 of

Protocol No. 7 (P7-2) to the Convention was not thereby impaired.

      Finally, the Commission has not found elements which could lead

to the conclusion that the Supreme Court was unable to consider fully

the issues brought before it.

      It follows that this part of 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 ChamberANNEX

                            The applicants

1.    Peterson Sarpsborg AS

      P.O. Box 40, N-1701 SARPSBORG

      / Erik Mollatt, Chairman of the Board

2.    Peterson Ranheim AS

      N-7053 RANHEIM

      / Erik Mollat, Chairman of the Board

3.    Glomma Papp AS

      P.O. Box 145, N-1701 SARPSBORG

      / Kjell Tveter, Chairman of the Board

4.    Bjørn Iversen, Norwegian citizen born in 1932 and residing in

      Sarpsborg, Norway.

5.    Bjørn Børud, Norwegian citizen born in 1935 and residing in Moss,

      Norway.

6.    Jan-Arthur Iversen, Norwegian citizen born in 1931 and residing

      in Sarpsborg, Norway.