Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17228/90

by A.A.

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 January 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 5 June 1990 by

A.A. against Norway and registered on 27 September 1990 under file No.

17228/90;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 28 Februry 1992 and the observations in reply submitted

by the applicant on 15 April 1992;

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 citizen of the United States of America. He

is of Norwegian origin and was born in 1925 at Vanse, Norway. In 1947

he moved to the United States, but returned to Norway in 1983. He now

resides at Vanse, Norway.

A. The particular circumstances of the case

In 1979 the applicant's uncle died and left the family farm to

his wife. The farm was subject to "odelsrett", hereinafter called

allodial right, and the applicant was one of the holders of such a

right.

In 1981 the County Agriculture Committee (Fylkeslandbruksstyret)

allowed the aunt to separate the farm house together with a field of

60 ares form the property on condition that the rest of the property

be sold to neighbouring farmers who were in need of land.

On 27 October 1982 and 23 February 1983 the County Agriculture

Committee allowed the rest of the property to be divided and sold to

two neighbours as additional land. One of them was the applicant's

brother. The areas were transferred to the new owners in January and

April 1983.

Proceedings before the District Court (Herredsretten)

By a submission dated 30 December 1983, the applicant instituted

proceedings in the District Court of Lyngdal in order to buy the land

by virtue of his allodial right (proceedings for redemption -

odelsløsningssak). It was received by the Court on 10 January 1984. The

suit was directed against three neighbours, the two mentioned above and

a family which had bought the farm house. The same day, the Court

ordered the defendants to submit their reply within three weeks.

The defendants submitted their reply on 24 January 1984. They all

disputed that the applicant had a right of redemption. The Court

requested observations from the applicant by 13 February 1984. On

15 February 1984 the applicant submitted his comments, which were sent

by the Court to the defendants for comments by 12 March 1984. Since

they did not respond by that date, the Court fixed a new time-limit,

18 April 1984.

On 16 April 1984 two of the defendants (the neighbouring farmers)

acknowledged that the applicant had an allodial right, whereas one

defendant (the buyer of the farmhouse) maintained that the applicant

had no right of redemption. The Court asked for the applicant's

comments by 23 May 1984.

On 23 May 1984 the applicant withdrew the case against the buyer

of the farm house. At the same time, he requested the Court to fix a

date for the hearing on the merits of the case against the remaining

two defendants. On 25 May 1984 the Court stated that the parties would

soon be contacted in order to fix a date for the main hearing.

Following correspondence between the parties and the Court, the

defendants informed the Court on 14 June 1984 that they had on that day

filed an application with the County Agriculture Committee in

accordance with section 31 of the Act of 28 June 1974 relating to

allodial rights (odelsloven), hereinafter the 1974 Act, the purpose

being to exempt the land from allodial rights. Referring to section 33

of the said Act they requested that the case be adjourned pending the

outcome of the administrative proceedings as to their request for an

exemption.

On 18 June 1984 the applicant argued that the conditions for

exemptions from allodial rights were not fulfilled. He objected to the

adjournment and requested that a date for the main hearing be fixed.

Within the deadline set by the Court - 5 July 1984 - the defendants

repeated on 26 June 1984 that the proceedings should be adjourned. The

applicant made submissions on 26 June 1984. No date for a main hearing

was fixed.

On 27 June 1984 the County Agriculture Committee decided to

consider the application. In conformity with section 33 of the 1974 Act

the application was accordingly sent to the Municipality of Farsund

(Farsund kommune) for consideration and recommendation. On 31 August

1984 the holders of allodial rights were invited to submit, by

3 December 1984, any opinions they might wish to state in conformity

with section 33 of the 1974 Act. The case pending before the District

Court was adjourned.

The case was also sent to the Municipal Agriculture Board

(Landbruksnemnden) which received the application on 10 September 1984

and recommended on 1 October 1984 against freeing the land of the

applicant's allodial right. The Municipality Council (kommunestyret)

of Farsund did the same on 13 October 1984. The case was sent back to

the County Agriculture Committee on 24 October 1984. On

20 February 1985 the County Agriculture Committee sent the case to the

Ministry of Agriculture for final decision with a recommendation in

accordance with the views expressed by the lower administrative

instances. On 27 February 1985 it was registered in the Ministry.

After the County Agriculture Committee had made a recommendation

against the defendants' application, the applicant informed the

District Court on 28 February 1985 of this and requested the Court to

fix a date for the main hearing. The Court stated that dates would now

be fixed, but was informed by the defendants, on 4 March 1985, that

there was no final decision as the application had been forwarded to

the Ministry of Agriculture. On 9 March 1985 the applicant maintained

his request for a date for the main hearing. The case, however,

remained adjourned.

By 11 April 1985 a draft report had been prepared in the Ministry

of Agriculture. On 5 June the relevant department in the Ministry

decided that there was a need for an inspection (befaring) of the land

before deciding upon the application. The District Court, th

and the administrative authorities involved were informed of the

decision by a letter of 11 June 1985.

On 22 June 1985 the applicant informed the Ministry that his

lawyer was ill and requested that the inspection be postponed until he

had recovered or another lawyer had had the opportunity to acquaint

himself with the case.

On 16 August 1985 the parties were informed that the inspection

would take place on 27 August. A report following the inspection was

completed on 22 October and a draft decision from the relevant

department in the Ministry of Agriculture was available on 22 November.

The draft was approved by the State Secretary on 24 March 1986.

On 4 April 1986 the King in Council (regjeringen) decided by

Royal Decree that the land should be exempted from the provisions of

allodial law and accordingly the land became free of allodial rights.

On 18 April 1986 the defendants informed the District Court of

the Royal Decree and asked the applicant to state whether he intended

to withdraw the case against them or to challenge the validity of the

decision. The applicant, who at that junction was without legal

representation, replied on 9 May that he did not wish to withdraw the

case against the defendants. On 2 June he informed the Court that he

wished to institute proceedings against the Government in order to

challenge the validity of the Royal Decree.

On 11 June 1986 the District Court informed the applicant that

if he intended to challenge the legality of the Royal Decree he should

institute proceedings before 15 July 1986.

On 11 July 1986 the applicant, who had a new lawyer, informed the

court that he would not institute proceedings against the Government.

However, in the case pending he would now, by way of preliminary plea,

argue that the Royal Decree was invalid. At the same time he stated

that at that stage it was not possible to fix a date for the main

hearing as he had to make thorough inquiries in order to prepare his

case. The Court asked for observations by 5 August 1986.

In a submission of 23 July 1986 the defendants accepted that the

validity of the Royal Decree was now to be decided upon on a

preliminary basis in the pending case. The Court asked for observations

by 15 August 1986.

On 3 September 1986 the applicant introduced a new contention and

indicated that he would submit more documents. He repeated and

elaborated on his previous argumentation in a submission of

9 October 1986 with 21 enclosures, and indicated that more material

would be produced during the main hearing. At the same time he stated

that the dates of the hearing could be fixed provided that there was

sufficient time for preparation. The Court fixed 31 October 1986 as the

time-limit for observations and stated that the hearing would take

place as soon as the Court had time available.

On 27 and 29 October 1986 the defendants, who now had a new

lawyer, asked for extended time-limits and requested the applicant to

submit the supplementary material indicated in his submission of

9 October 1986.

On 7 November 1986 the dates for the main hearing were fixed at

2-4 March 1987.

The applicant produced supplementary material in a submission of

8 January 1987.

The main hearing took place on 2 and 3 March 1987. During the

hearing the District Court made an inspection of the land. The

applicant maintained in particular that Section 31 of the 1974 Act had

been applied retroactively to his detriment as it had been amended on

11 May 1984, i.e. while his case was pending before the District Court,

to such an extent that his legal position had been changed.

In its judgment of 3 April 1987, however, the District Court

found in favour of the defendants who had referred to the decision of

the Ministry of Agriculture and therefore refused to accept the

applicant's allodial right. The Court did not find that the Royal

Decree of 4 April 1986 was contrary to the Norwegian Constitution as

the amendment to the 1974 Act did not in fact mean a change in the

substance of Section 31 but merely concerned a procedural matter.

Proceedings before the Agder High Court (Agder Lagmannsrett)

On 5 May 1987 the applicant appealed against the judgment to the

Agder High Court. He argued on the same grounds as those advanced

before the District Court that the Royal Decree was invalid.

On 12 May 1987 the High Court requested the defendants to submit

observations, which were submitted on 20 May. The High Court decided

that any further observations from both parties should be submitted by

22 June. The defendants' and the applicant's submissions were dated

9 and 12 June 1987, respectively. On 25 June 1987 the applicant was

asked to prepare excerpts from the documents necessary for the High

Court's consideration of the case by 1 August 1987.

On 30 September 1987 the Court decided that the appeal hearing

would take place on 25-27 May 1988.

During the hearing on 25 and 26 May 1988 the High Court made an

inspection of the land.

On 3 June 1988 the High Court overruled the District Court and

gave judgment in favour of the applicant. According to the High Court

the application of section 31 of the 1974 Act as amended would affect

the applicant's legal position in such a way that it was contrary to

Article 97 of the Constitution.

Proceedings before the Supreme Court (Høyesterett)

On 5 August 1988 the defendants lodged an appeal with the Supreme

Court. The applicant's observations were submitted on 15 August.

On 1 September 1988 the case was admitted by the Appeals

Selection Committee of the Supreme Court (Høyesteretts

kjæremålsutvalg). At the same time, the parties were asked to file any

requests for the taking of evidence by 25 September 1988. Such requests

were submitted by the defendants and the applicant on 13 and

21 September, respectively.

On 5 September 1988 the Government declared that it wished to

intervene in the proceedings as amicus curiae (erklære

hjelpeintervensjon) since the Supreme Court was called upon to decide

an issue of alleged unconstitutionality of the 1974 Act.

Written observations were submitted by the parties on

7 November 1988 and 2 January 1989. On 23 January 1989 all parties

withdrew their requests for the taking of evidence. The Supreme Court

then allowed for further observations to be submitted by 1 March 1989.

The Supreme Court hearings took place on 12-14 December 1989. On

21 December 1989 the Supreme Court upheld the judgment of the District

Court, finding that the Royal Decree was not contrary to the

Constitution and not invalid on other grounds.

Finally the applicant filed an application with the Supreme Court

in August 1990 requesting that the case be re-opened. On

29 November 1990 the Supreme Court rejected the application.

B. Domestic law and practice

"Odel" is an ancient right in law which is specific to Norway.

The right is protected by Article 107 of the Constitution of

17 May 1814 which reads:

(translation)

"The allodial right and the right of primogeniture shall

not be abolished. The specific conditions under which these

rights shall continue for the greatest benefit of the State

and the best advantage of the rural population shall be

determined by the first or second Storting."

Detailed statutory provisions are set out in the 1974 Act. The

allodial right is designed to ensure that farms and farmland remain in

the hands of one family, and traditionally also to prevent the

accumulation of agricultural land in a few hands. The right applies to

agricultural land and may include woodland and mountain pasture. It

does not apply to mines, factories, industrial works and the land on

which they stand.

The right is created when a single owner has had full title to

the property for 20 years, and it passes to descendants of the original

owner of the right. Between the descendants there is a priority system.

When the property is transferred from one family to another, only

relatives closely related to the last owner acquire the allodial right.

If the property is transferred to somebody outside the family,

a family member with an allodial right has the right of redemption. A

family member with a higher priority allodial right may also buy back

property sold to a family member with a lower priority.

A family member wishing to use his right of redemption must

institute proceedings against the buyer before the District Court

within two years after the transfer of ownership. The Court decides

what price the family member must pay on the basis of the value of land

being used for normal agricultural purposes according to principles

laid down in chapter XI of the 1974 Act. If there is any dispute

whether the plaintiff has an allodial right, the Court will first of

all decide this issue.

The decision of the District Court may be appealed against to the

High Court and then to the Supreme Court.

The King in Council may decide to exempt land from prior allodial

right (odelsfrigjøring). The conditions are set out in chapter VIII of

the 1974 Act. Sections 31 and 33, which are relevant in the present

case, read as follows:

(translation)

"Section 31. In so far as the State might be prevented by

the provisions of allodial law from acquiring land by

purchase pursuant to the provisions of the Land Act or by

exercising its right of preemption pursuant to the

Concession Act, the King may exempt such land from prior

allodial right. Such exemption may not, however, be

effected in relation to any person who, pursuant to

section 6, item 1, of the Concession Act, may purchase the

property without the State being able to exercise a right

of preemption, unless it is a case of property covering an

area of less than 300 ares or the conditions regarding

expropriation pursuant to section 20 of the Land Act are

fulfilled.

The provisions of subsection one apply correspondingly

to land that has passed to a new owner by means of a

voluntary transaction when the County Agricultural Board

has approved the purchase on the grounds that the purchaser

should have additional land.

...

Section 33. Before a decision concerning exemption from the

provisions of allodial law is made pursuant to sections 30

to 32, the matter shall be submitted to the Municipal

Council for an opinion. The holders of allodial rights

shall, in so far as possible, be given an opportunity to

state their opinions on the matter within a three-month

period. If it is a case of exemption from the provisions of

allodial law pursuant to sections 30 and 31, the opinion of

the County Agricultural Committee shall be obtained.

When steps have been taken to obtain exemptions from

the provisions of allodial law pursuant to sections 30

to 32, any proceedings for the redemption of allodial rights that

have been instituted shall be stayed until the question of such

exemption has been decided."

As a main rule, the King in Council will not consider whether

land should be exempted from the allodial right unless any holder of

such a right wishes to make use of it. Only in exceptional cases will

this question be considered before redemption proceedings are

instituted. If no allodial right holder wishes to make use of his

right, a decision relating to exemption from allodial law will not be

necessary.

If the King in Council decides that the land should not be

exempted from allodial rights, a plaintiff who has instituted

proceedings for the redemption of allodial rights has the following

options if he wishes to challenge that decision:

- he may institute proceedings against the Government and maintain

that the Royal Decree is invalid. In that case, he must request

the adjournment of the case which is already pending;

or

- he may pursue the proceedings already instituted and invoke as

a preliminary argument that the Royal Decree is invalid.

If he does not wish to contest the validity of the Royal Decree,

the redemption case will be discharged.

COMPLAINTS

In his original application to the Commission the applicant

complains that the Supreme Court's interpretation in its judgment of

21 December 1989 of the 1974 Act, Section 31, as amended on 11 May

1984, discloses a breach of Article 6 of the Convention in that the Act

had retroactive effect to his detriment. He further complains that he

was not given a fair hearing within a reasonable time.

In his letter of 22 January 1991 the applicant also complains

that his allodial right is a right protected by Article 8 of the

Convention and that the economic consequences of the Supreme Court

judgment constitute a breach of this provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 June 1990 and registered on

27 September 1990.

On 2 December 1991 the Commission 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 application.

The Government submitted their observations on 28 February 1992.

The applicant's observations in reply were submitted on 15 April 1992.

On 30 March 1992 the Commission decided to refer the application

to a Chamber.

On 7 July 1992 the Commission (Second Chamber) decided not to

grant legal aid to the applicant.

THE LAW

1.a. The applicant complains that the Supreme Court's interpretation

and application of the 1974 Act was in violation of Article 6 (Art. 6)

of the Convention in that the Act was, in his opinion, applied

retroactively to his detriment for which reason he did not get a fair

hearing.

Article 6 para. 1 (Art. 6-1) reads in its relevant part as follows:

"In the determination of his civil rights ..., everyone

is entitled to a fair and public hearing within a

reasonable time ..."

With regard to the judicial decision of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31,45).

It is true that in this case the applicant also complains that

he did not get a fair hearing. However, the Commission has not found

any substantiated allegations which could lead to the conclusion that

the applicant, in the determination of his allodial rights, was not

afforded a fair hearing within the meaning of Article 6 (Art. 6) of the

Convention.

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.

b. Under Article 6 (Art. 6) of the Convention the applicant also

complains that his case was not determined within a reasonable time.

As far as the period to be taken into consideration is concerned,

the Commission notes that the proceedings commenced on

30 December 1983, when the applicant instituted proceedings in the

District Court of Lyngdal, and ended with the judgment of the Supreme

Court of 21 December 1989. Thus these proceedings lasted approximately

6 years.

The applicant argues that this period cannot be regarded as

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

Convention. The Government, on the other hand, submit that the length

of the proceedings in the circumstances of the case was reasonable.

The European Court of Human Rights and the Commission have

consistently held that the reasonableness of the length of proceedings

coming within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention must be assessed in each case according to its particular

circumstances and on the basis of the following criteria: the

complexity of the case as regards the facts and the law, and the

conduct of the applicant and the competent authorities (cf. e.g. Eur.

Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198,

p. 12, para. 30).

Applying these criteria, and taking into account the

circumstances of the present case, the Commission considers that the

period of time which elapsed in the proceedings raises a serious issue

under Article 6 para. 1 (Art. 6-1) of the Convention requiring an

examination of the merits of the case.

Consequently, the Commission considers that this part of the

application is not manifestly ill-founded within the meaning of

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

declaring it inadmissible have been established.

2. The applicant finally complains, in his letter of

22 January 1991, that his allodial right is protected under Article 8

(Art. 8) of the Convention and that the economic consequences of the

Supreme Court judgment constitute a breach of this provision.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

In the present case the judgment of the Supreme Court, which was

the final decision regarding the subject of this particular complaint,

was given on 21 December 1989, whereas the complaint under Article 8

(Art. 8) of the Convention was submitted to the Commission on

22 January 1991, that is, more than six months after the date of this

decision. Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the complaint that the applicant's case was not determined within

a reasonable time

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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A. v. NORWAY

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