Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19819/92

by Jostein STØRKSEN

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 17 October 1991

by Jostein Størksen against Norway and registered on 10 April 1992

under file No. 19819/92;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 8 November 1994 and the observations in reply submitted

by the applicant on 6 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Norwegian citizen, born in 1942. He is a

fisherman and resides at Brattvåg, Norway. Before the Commission he

is represented by Mr. Knut Rognlien, a lawyer practising in Oslo.

A. The particular circumstances of the case

The applicant's father set up a limited company on

1 January 1978, M/S Silljo A/S, which became the owner of a new fishing

vessel, M/S Silljo. One year later he transferred fifty per cent of the

shares to his son, the applicant. On 28 February 1979 the Ministry of

Fisheries (Fiskeridepartementet) granted a fishing licence (konsesjon)

to M/S Silljo A/S in respect of the vessel M/S Silljo. This licence was

issued by the Ministry in accordance with the Act on Regulation of the

Participation in Fishing of 16 June 1972 (lov av 16. juni 1972 om

regulering av deltakelsen i fisket). It was stated in the licence that

it could not be transferred to anybody else and that it related only

to the particular vessel mentioned.

The applicant's father died on 5 January 1980 and on

8 December 1980 the company, M/S Silljo A/S, was declared bankrupt

resulting in the sale of the vessel M/S Silljo out of the country on

5 January 1981. In connection with this sale and the bankruptcy

proceedings it appears that the applicant maintained vis-à-vis the

Ministry of Fisheries that he could personally keep the fishing licence

granted to M/S Silljo A/S. However, on 30 January 1981 the Ministry

informed him that a licence was attached to both the owner and the

vessel and that the licence would accordingly be revoked if the vessel

was sold. As this was the case the applicant could no longer be

considered to be in possession of the previous fishing licence.

On 17 November 1981 the applicant applied to the Ministry of

Fisheries for a fishing licence. He did not have a vessel at the time

and the applicant maintained primarily that the licence previously held

by M/S Silljo A/S had not expired. He thus applied for approval of a

transfer of this licence to a new vessel should he acquire one. On

22 March 1982 the Ministry rejected the applicant's application. In its

decision the Ministry stated inter alia:

(translation)

"It is clear ... that the licence relates to a particular

vessel. Accordingly, a person or a company, having a

licence in respect of a particular vessel, has no right to

(another licence) in respect of another vessel, replacing

the previous one ... which is no longer in the owner's

possession.

Silljo A/S was granted a licence in respect of M/S Silljo.

When the vessel was sold by the estate in bankruptcy, the

company's licence to operate the vessel lapsed. It was only

valid in respect of this particular vessel and contained no

right to a licence in respect of another vessel, replacing

that which had been sold by the estate in bankruptcy. It

also follows from case-law that (the applicant) has no

rights going beyond the limits of the (previous) licence.

According to Section 5 of the purse seine (ringnot)

regulations of 2 March 1979 a fishing licence for a purse

seine vessel may only be granted when a corresponding

reduction in the fishing fleet capacity is secured by the

vessel owner. (The applicant) does not own a purse seine

vessel which could cease fishing. The requirements for

granting a licence are accordingly not fulfilled."

Upon appeal this decision was upheld on 22 April 1983 by a decree

issued by the King in Council (Kongelig resolution).

Approximately two years later, on 30 January 1985, the applicant

instituted proceedings in the City Court of Oslo (Oslo Byrett) against

the Norwegian State represented by the Ministry of Fisheries. He

claimed that the Ministry was obliged to grant him a fishing licence

for a vessel which would replace M/S Silljo and in the alternative he

maintained that the Ministry's decision of 22 March 1982, as upheld by

the King in Council on 22 April 1983, was null and void. He furthermore

claimed damages for loss of income as a consequence of the Ministry's

refusal to issue a new fishing licence.

From 30 January until November 1985 the parties exchanged written

observations. On 13 November 1985 the applicant requested the City

Court to fix the date for the main hearing.

On 15 November 1985 the Court informed the parties that the date

for the main hearing would be fixed in due course.

In October 1986 the City Court consulted the parties and

suggested that the hearing be held in April 1987. Due to other

engagements on the part of the counsel for the Government for that

month the City Court scheduled the case for hearing as from

1 June 1987.

In its judgment of 28 July 1987 the City Court held that the

fishing licence, according to section 9 of the Act on Regulation of the

Participation in Fishing of 16 June 1972, had lapsed when the vessel

M/S Silljo was sold. Furthermore the Court held that the applicant's

allegations were unfounded and that the Ministry's decision of

22 March 1982 was not invalid. Consequently, the Court found for the

Government and the applicant was ordered to pay costs.

On 28 August 1987 the applicant appealed against the judgment to

the Eidsivating High Court (Eidsivating lagmannsrett).

Written observations were again exchanged between the parties.

On 27 October 1988 the High Court fixed 11 November 1988 as the date

by which any further observations from the parties should be submitted.

Final observations were submitted by the applicant on 11 November and

by the Government on 14 November 1988.

On 14 September 1989 the High Court fixed the date for the appeal

proceedings for 5 March 1990. Shortly before the hearing was to take

place it was, however, adjourned due to a death in the family of the

Government's counsel. On 5 March 1990 a new date for the appeal

proceedings was fixed for 26 June 1990.

The appeal proceedings commenced on 26 June 1990 and lasted three

days. The applicant maintained that the Ministry's decision of

22 March 1982 was invalid and he also upheld his claim for

compensation.

The High Court delivered its judgment on 6 July 1990. It held

that according to section 9 of the Act on the Regulation of

Participation in Fishing of 16 June 1972 the licence granted to the

company M/S Silljo A/S had lapsed when M/S Silljo was sold abroad.

Thus, it found that the applicant needed a new licence when on

17 November 1981 he applied for a licence. In this respect the Court

concluded that the applicant had no right to obtain a licence according

to either the wording of the applicable regulations or the practice

which had developed. Furthermore, the High Court found no basis for

concluding that the Ministry's decision to refuse the applicant's

request for a licence was arbitrary, unreasonable, discriminatory or

invalid for any other reason. Accordingly, the City Court judgment was

upheld and the applicant was ordered to pay costs.

On 8 October 1990 the applicant appealed against the judgment to

the Supreme Court (Høyesterett). The observations of the Government

were submitted on 17 December 1990. On 18 February 1991 the Appeals

Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg)

informed the applicant that it was considering not to allow the appeal.

The applicant submitted his final observations on 4 March 1991. On

10 April 1991 the Appeals Selection Committee of the Supreme Court

decided with reference to section 373 subsection 2 item 1 of the Code

of Civil Procedure (tvistemålsloven) not to allow the appeal on the

ground that it was obvious that the appeal would not succeed. The

applicant was informed thereof on 18 April 1991.

B. Relevant domestic law

Pursuant to section 6 of the Act on Regulation of the

Participation in Fishing of 16 June 1972 the King may decide that

special permission (a licence) must be obtained from the Ministry of

Fisheries to engage in fishing operations with particular vessels in

order to prevent overfishing or to ensure appropriate expansion of the

fishing fleet and a rational utilisation of the fishery resources. If

a licence is granted pursuant to section 6, it follows from section 9

that such a licence must be granted to a particular person or a company

and in relation to a particular vessel. Section 9 also provides that

a new licence is required if another vessel is to be used and that a

new owner of a vessel which had a licence is not entitled to have the

licence transferred to himself.

Pursuant to section 6 the King in Council adopted on

19 January 1973 provisional regulations concerning permission to

participate in purse seine fishing. These regulations were subsequently

replaced by other regulations. The regulations in force when the

applicant's application was considered were the regulations of

2 March 1979 concerning permission to participate in purse seine

fishing (Forskrifter om adgangen til å delta i fisket met ringnot).

Pursuant to section 1 the object of these regulations is to

adjust the capacity of the fleet to the available resources, to promote

an expedient fleet structure and to contribute to a reasonable regional

distribution of the fleet.

It follows from section 2 that a licence is needed to participate

in purse seine fishing.

According to section 5 no one may obtain a licence to engage in

purse seine fishing unless the owner or the seller of a vessel at

the same time effects a corresponding reduction in the capacity of the

purse seine fleet. It is left to the discretion of the authorities to

decide whether a new licence should be granted.

In order to reduce the capacity of the purse seine fleet, other

measures have been adopted, such as the regulations of 28 May 1979

concerning subsidies for condemnation of old, unsuitable vessels

(forskrifter om tilskott til kondemnering av eldre uhensiktsmessige

ringnotfartøyer av 28. mai 1979) and the regulations of 30 May 1980

concerning subsidies in connection with the sale of purse seine vessels

for uses other than Norwegian fisheries (forskrift om tilskott ved salg

av ringnotfartøyer til annen anvendelse enn norsk fiske av

30. mai 1980).

COMPLAINTS

Following the Commission's partial decision on admissibility of

5 July 1994 (see below) the remainder of the case relates to the

applicant's complaint that the proceedings instituted by him on

30 January 1985 were not terminated within a reasonable time. He

invokes in this respect Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 October 1991 and registered

on 10 April 1992.

On 5 July 1994 the Commission (Second Chamber) decided to bring

the application to the notice of the respondent Government and to

invite them to submit written observations on the admissibility and

merits of the complaint concerning the length of the proceedings. The

remainder of the application was declared inadmissible.

The Government's observations were submitted on 8 November 1994

and the applicant's observations in reply were submitted on

6 January 1995.

THE LAW

Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant complains that the issues concerning the possibility for him

to obtain or retain a fishing licence were not determined within a

reasonable time. Article 6 para. 1 (Art. 6-1) of the Convention reads

in its relevant parts as follows:

" In the determination of his civil rights and obligations

... everyone is entitled to a ... hearing within a

reasonable time ..."

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination thereof the Commission has reached the

conclusion that the case raises serious issues both as to the

applicability and the interpretation of Article 6 (Art. 6) of the

Convention and that these issues can only be determined after a full

examination of their merits. It follows that the remainder of the

application cannot be regarded as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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STØRKSEN v. NORWAY

STØRKSEN v. NORWAY

LEXI