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 5 July 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the applicant, 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.

      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, and 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).

      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. 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 question was thus rather whether he could keep the licence

previously held by the company M/S Silljo A/S. 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 the one 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 regulations of 2 March 1979

      (concerning the particular type of fishing vessels in question),

      a fishing licence for (such a 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

      vessel (of this particular kind) which could cease fishing. The

      requirements for granting a licence are accordingly not

      fulfilled."

      This decision was upheld on 22 April 1983 by a decree issued by

the King in Council (Kongelig resolution).

      Subsequently, 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.

      In the City Court the proceedings were presided over by assistant

judge (dommerfullmektig) P.O. appointed on a temporary basis by the

Ministry of Justice. From the court transcripts it appears that no

objections were made to the composition of the Court. During the

proceedings the Court heard the parties as well as two witnesses. On

28 July 1987 it held that a fishing licence should be considered as

being attached to the vessel and its owner, the latter being an

individual or a company. It followed that when M/S Silljo was sold the

licence granted to M/S Silljo A/S was revoked. Furthermore, the City

Court held that the applicant's allegations of discrimination were

unfounded.

      The applicant appealed against the judgment as such to the

Eidsivating High Court (Lagmannsrett). He did not, however, base the

appeal on misgivings as to the composition of the City Court. When the

case became ready for examination the High Court was composed of three

judges two of whom were appointed on temporary contracts of one year's

duration by the Ministry of Justice. Judge P.A.L. had been appointed

from 1 June 1990 to 1 June 1991 and again for the period from

1 June to 31 December 1991. Judge O.H. had been appointed from

1 January to 31 December 1990 and reappointed from 1 January to

31 December 1991. From the court transcripts it appears that the Court

raised the issue of the composition of the Court, but that no

objections were filed.

      The High Court delivered its judgment on 6 July 1990 after having

heard the parties as well as five witnesses. It came in essence to the

same conclusions as the City Court and held that the licence in respect

of M/S Silljo was only valid as long as the vessel was owned by M/S

Silljo A/S whereas the licence had been revoked following the sale of

the vessel. This followed from Section 9 of the Regulation Act. The

applicant was, therefore, dependent on having a new licence issued. In

that respect the High Court found no reason to criticise the fact that

the Ministry made a distinction between voluntary replacement of an old

vessel by a new one and a forced sale as a result of a bankruptcy where

the company was no longer active. In the latter situation the State's

interest in reducing the fishing fleet was found to be more important

than the interest of the individual in setting up a new business. The

High Court considered this view to be an objective ground for refusing

a licence to the applicant.

      The applicant's petition for leave to appeal to the Supreme Court

(Høyesterett) was rejected on 10 April 1991 by the Appeals Selection

Committee of the Supreme Court (Høyesteretts kjæremålsutvalg). The

decision was notified to the applicant on 18 April 1991.

      On 30 December 1991 the applicant applied to the High Court in

order to have his case reopened. He claimed that the High Court had not

been an independent or impartial court as two of the three judges had

been appointed temporarily by the State, i.e. the Ministry of Justice,

and on contracts of a very short duration. The High Court rejected the

application on 22 June 1992 as it had been submitted out of time. This

decision was upheld by the Appeals Selections Committee of the Supreme

Court on 26 November 1992.

COMPLAINTS

      The applicant complains, under Article 6 para. 1 of the

Convention, that the proceedings instituted by him on 30 January 1985

were not determined within a reasonable time and that neither the City

Court nor the Eidsivating High Court was an independent and impartial

tribunal. In respect of the latter he submits that when the State, as

in the present case, is the defendant in the case and the judges are

appointed for such short periods, it is most likely that the judges

will pronounce judgments in favour of the State in order to be

reappointed.  The applicant claims that, according to constant

Norwegian case-law, such temporary appointments of judges are regarded

as normal practice for which reason there would be no effective remedy

available to him had he decided to challenge this during the

proceedings in question. He refers in this respect to two Supreme Court

decisions of 14 September 1984 (no. 124 B and no. 125 B/1984) and one

decision of 7 December 1993 (no. 781 K/1993).

      Furthermore, the applicant complains, under Article 1 of Protocol

No. 1 to the Convention, that he has been deprived of his right to

peaceful enjoyment of his possession when the fishing licence was

revoked due to the sale of the vessel M/S Silljo. He claims that this

was not in the public interest or in accordance with the provisions

laid down in the relevant legislation. Especially it was not

sufficiently foreseeable that a licence would be lost if a vessel was

sold involuntarily.

      Finally, he invokes Article 14 of the Convention read in

conjunction with Article 1 of Protocol No. 1 and complains that he has

been discriminated against when the Ministry refused to issue a new

licence. In that respect the applicant firstly submits that the

Ministry had no objective reason to distinguish between a voluntary

sale and a forced sale. Secondly, he maintains that he has been

discriminated against in respect of the bankruptcy proceedings when

compared with other bankruptcies.

THE LAW

1.    The applicant complains, under Article 6 para. 1 (Art. 6-1) of

the Convention, that the proceedings instituted by him against the

Ministry of Fisheries were not determined within a reasonable time

within the meaning of this provision. Article 6 para. 1 (Art. 6-1)

reads, in so far as relevant, as follows:

      " In the determination of his civil rights and obligations

      ....everyone is entitled to a fair and public hearing

      within a reasonable time by an independent and impartial

      tribunal..."

      As regards the reasonableness of the length of the proceedings

complained of in the present case the Commission considers that it

cannot, on the basis of the file, determine the admissibility of this

complaint and that it is therefore necessary, in accordance with Rule

48 para. 2(b) of the Rules of Procedure, to give notice of this

complaint to the respondent Government and to invite the Government to

submit written observations on the admissibility and merits thereof.

2.    The applicant complains, furthermore, that he did not have a fair

trial as the judges dealing with his case were appointed by the State

on temporary contracts of a short duration which allegedly affected the

independence and impartiality of the courts in question.

      The Commission recalls, however, that under the terms of Article

26 (Art. 26) of the Convention, it may only deal with a matter after

all domestic remedies have been exhausted, according to the generally

recognised rules of international law. This condition is not met by the

mere fact that an applicant has submitted his case to the various

competent courts. It is also necessary for the complaint brought before

the Commission to have been raised, at least in substance, during the

proceedings in question. On this point the Commission refers to its

constant case-law (cf. for example, No. 6861/75, Dec.14.7.75, D.R. 3

p. 147; Nos. 5573/72 and 5670/72, Dec. 16.7.76, D.R. 7 p. 8).

      In this case the applicant failed to bring the issue to the

attention of the national courts during the proceedings in question.

In that respect the applicant claims that this would have been an

ineffective remedy as constant national case-law shows that such

complaints are rejected.

      Indeed it is true that only effective, adequate and accessible

remedies have to be exhausted. However, the Commission notes that

according to the material submitted it appears that no objections as

to the composition of the courts were filed, either during the City

Court proceedings, or in the appeal to the High Court. The High Court

in the applicant's case actually inquired whether the parties had any

objections as to the composition of the Court but the applicant did not

even at that moment raise the present issue. Likewise, the applicant

did not raise the issue when he applied for leave to appeal to the

Supreme Court. Furthermore, it appears from the national case-law

submitted by the applicant that the problem of judges' independence or

impartiality is not dismissed as such but examined by the courts when

invoked by a party and it cannot therefore be regarded as ineffective

to raise this issue before the national courts during the proceedings

in question. The Commission also recalls that it has constantly held

that the mere existence of doubts as to the prospects of success does

not absolve an applicant from exhausting a given remedy (cf. Nos. 5577-

5583/72, Dec. 15.12.75, D.R. 4 pp. 4,72 with further references). The

Commission finally notes that the applicant subsequently tried,

unsuccessfully, to have the case reopened referring to the complaint

now brought before the Commission. However, it finds that such an

extraordinary procedure did not absolve the applicant from raising the

matter while the case was pending.

      The Commission accordingly finds that the remedy, i.e. bringing

the issue of independence and impartiality to the attention of the

national courts during the proceedings in question, cannot be said to

have been clearly without any prospects of success. Consequently, the

applicant cannot be considered to have exhausted the effective remedies

available to him under Norwegian law.

      It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.     Furthermore the applicant complains, under Article 1 of Protocol

No. 1 (P1-1) to the Convention, that his right to peaceful enjoyment

of his possessions has been violated when the fishing licence was

revoked following the sale of M/S Silljo out of the country. Article

1 of Protocol No. 1 (P1-1) to the Convention reads as follows:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions. No one shall be deprived of

      his possessions except in the public interest and subject

      to the conditions provided for by law and by the general

      principles of international law.

      The preceding provisions shall not, however, in any way

      impair the right of a State to enforce such laws as it

      deems necessary to control the use of property in

      accordance with the general interest or to secure the

      payment of taxes or other contributions or penalties."

      In respect of this part of the application the Commission recalls

that the licence was granted to the limited company M/S Silljo A/S in

which the applicant was a 50% shareholder. As the revocation

accordingly did not concern the applicant directly the question arises

whether the applicant in the circumstances of the case may at all claim

to be a victim within the meaning of Article 25 (Art. 25) of the

Convention. However, the Commission does not find it necessary to

determine this issue because even assuming this to be the case the

Commission considers that this part of the application is inadmissible

for the following reasons.

      The Commission has previously been called upon to determine

whether the withdrawal of a licence constitutes an interference under

Article 1 of Protocol No. 1 (P1-1) (cf. for example, Pudas v. Sweden,

No. 10426/83, Dec. 5.12.84, D.R. 40 p.234). Regarding the question

whether a licence to conduct certain economic activities could give the

licence-holder a right which is protected under Article 1 of Protocol

No. 1 (P1-1), the Commission considers that the answer will depend

inter alia on the question whether the licence can be considered to

create for the licence-holder a reasonable and legitimate expectation

as to the lasting nature of the licence and as to the possibility to

continue to draw benefits from the exercise of the licensed activity.

      The Commission notes, however, that a licence is frequently

granted on certain conditions and that the licence may be withdrawn if

such conditions are no longer fulfilled. In other cases, the law itself

specifies certain situations in which the licence may be withdrawn. It

follows, in the Commission's opinion, that a licence-holder cannot be

considered to have a reasonable and legitimate expectation to continue

his activity, if the conditions attached to the licence are no longer

fulfilled or if the licence is withdrawn in accordance with the

provisions of the law which was in force when the licence was issued.

As regards expectations for future earnings, the Commission also

recalls its previous case-law to the effect that future income could

only be considered to constitute a "possession", if it had already been

earned or where an enforceable claim to it existed (cf. No. 8410/78,

Dec. 13.12.79, D.R. 18 p. 216).

      In the present case, the Commission recalls that a licence to

fish in the Norwegian maritime territory was granted to the company

M/S Silljo A/S in respect of the vessel M/S Silljo. However,

conditions, inter alia, regulating the revocation of the licence

followed from the applicable legislation, one condition being that the

licence would be revoked when the vessel was sold. This ground for

revoking the licence was applied in the present case, since M/S Silljo

was sold following the bankruptcy of the owner, M/S Silljo A/S.

       In these circumstances, the Commission considers that the

revocation of the licence in accordance with the applicable legislation

did not affect any property right protected under Article 1 of Protocol

No. 1 (P1-1).

      In the view of the above considerations, the Commission concludes

that the applicant's complaint is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2).

4.    Finally the applicant complains that he was discriminated against

when he applied for a new licence which was refused by the Ministry.

The applicant has invoked Article 14 of the Convention read in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1). Article

14 (Art. 14) reads as follows:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any

      ground such as sex, race, colour, language, religion,

      political or other opinion, national or social origin,

      association with a national minority, property, birth or

      other status."

       According to the Commission's established case-law, Article 14

(Art. 14) complements the other substantive provisions of the

Convention and the Protocols. It has no independent existence since it

has effect solely in relation to "the enjoyment of the rights and

freedoms" safeguarded by those provisions. Although the application of

Article 14 (Art. 14) does not necessarily presuppose a breach of those

provisions there can be no room for its application unless the facts

at issue fall within the ambit of one or more of the latter (cf., for

example, No. 11278/84, Dec. 1.7.85, D.R. 43 p. 216).

      It is true that the applicant invokes Article 1 of Protocol No.

1, read in conjunction with Article 14 (P1-1+14). However, the question

remains whether the applicant in applying for a new licence brings

himself within the scope of this article which guarantees the peaceful

enjoyment of already acquired possessions.

      As set out above the Commission finds that the revocation of the

previous licence does not involve the applicant's possessions within

the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention.

Likewise the Commission is of the opinion that the application for a

new licence did not concern the applicant's possessions either. The

Commission finds, therefore, that the applicant cannot claim to have

been deprived of a possession when he does not even have a legitimate

expectation to obtain a new licence upon application. The Commission

thus concludes that neither Article 1 of Protocol No. 1 (P1-1), nor any

other provision of the Convention, is applicable in this situation

which means that Article 14 (Art. 14) of the Convention cannot be

invoked.

      It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2).

      For these reasons, the Commission,

      unanimously

      DECIDES TO ADJOURN the examination of the applicant's complaint

      that the application for a fishing licence was not determined

      within a reasonable time;

      by a majority

      DECLARES INADMISSIBLE the remainder of the application.

President to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)