DISSENTING OPINION OF JUDGE MØSE

I. Introduction

1. The main issue in this case is to what extent a court of appeal – acting as the second instance – is required under Article 6 § 1 of the Convention to give reasons in filtering proceedings, and in particular whether it may limit itself to a general formulation to the effect that the case has no prospect of success. In the view of the majority, such brief reasoning was not acceptable (see paragraphs 82-83 of the judgment). I am not convinced that this is correct.

2. It is common ground that as a consequence of subsequent judicial and legislative developments in Norway (see paragraphs 32 to 46) the situation in the Hansen case will no longer occur. But the exact requirements of the Convention involve questions of principle which may arise in future cases.

3. First, a few words about the case as it evolved at the national level. In 2001 Fredrikstad City Court gave judgment i n the real-estate dispute between the applicant and his former wife . It found against the applicant, who did not appeal (see paragraph 8). In 2007 he instituted proceedings against the company which had bought the property. In its judgment of 21 January 2008, the City Court again found against the applicant, attaching particular weight to its 2001 judgment (see paragraphs 10 to 12). Its decision to declare evidence inadmissible and to shorten the proceedings was also based on the premise that the dispute about ownership had been decided in 2001.

4. In his appeal to Borgarting High Court the applicant challenged the City Court ’ s approach primarily by raising various points of law, including alleged procedural errors. After warning the applicant that his appeal could be refused, extending the deadline for his comments and receiving two sets of submissions from him, the High Court by a unanimous decision of 12 June 2008 found it clear that the appeal would not succeed (see paragraphs 13 to 15). On 19 September 2008 the Appeals Leave Committee of the Supreme Court unanimously found it clear that the applicant ’ s appeal would not succeed and rejected it (see paragraphs 16-17).

II. The Court ’ s case-law

5. I agree with the description in the judgment (see paragraphs 71 to 74) of the general principles elaborated in the Court ’ s case-law and share the view that an appeal system based on refusing admission of an appeal can hardly be distinguished from a model based on refusing leave to appeal on the ground of no reasonable prospect of success (see paragraph 81 of the judgment).

6. In my view the Court has until now applied these general principles in a cautious way. Firstly, there has been uncertainty in the case-law of the Convention organs as to whether Article 6 is applicable at all to leave-to-appeal proceedings and similar filtering processes. As noted in Valchev and Others v. Bulgaria (dec.) nos. 47450/11, 26659/12 and 53966/12, § 72, 21 January 2014, there have been cases in which such proceedings were found not to involve a “determination” of the applicant ’ s “civil rights”. In Valchev the Court decided to leave the issue open as the applicants ’ complaint was in any event inadmissible (ibid. § 73). For my part, I share the view expressed in the present judgment (see paragraph 55) that the prevailing approach seems to be that Article 6 § 1 is applicable also to filtering proceedings. However, the above-mentioned discrepancy in the case-law on the applicability of Article 6 to filtering proceedings, and the fact that the Court as recently as in early 2014 decided to describe the two trends without finding it necessary to rule on the matter, illustrate the Court ’ s prudence in this field.

7. Secondly, the cases referred to in paragraphs 60, 63 (i), 70, 73-74 and 81 of the judgment clearly show that the Court has been reluctant to require national appellate courts to give detailed reasons when exercising their filtering role. In most of these cases the applicants ’ complaints of insufficient reasoning were declared inadmissible as manifestly ill-founded. In the very few judgments on the merits concerning the reasons in filtering proceedings, the Court did not find a violation of Article 6 § 1. T he Hansen judgment is the first time it does so.

8. It may be argued that the previous cases focussed on filtering before national supreme courts, constitutional courts or courts of cassation. However, that is not entirely correct. As stated in the judgment (see paragraph 80), the Court has in some cases accepted filtering decisions with very brief reasoning at second and third instance, and on the basis of legal and factual grounds. Indeed, p aragraph 80 reiterates that “an appellate court is not required to give more detailed reasoning when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success, without further explanation” and then refers to three cases.

9. The first case is Gorou v. Greece (no. 2) [GC] (no. 12686/03, 20 March 2009) , where the prosecutor had not given reasons for rejecting a civil party ’ s request that he appeal an acquittal to the Court of Cassation on points of law. Based on the individual circumstances of the case (see §§ 37 ‑ 42), the Court found no violation of Article 6 § 1. That case was of course different from the Hansen case in several ways, but I note that the Court of Cassation was the second instance.

10. Paragraph 80 also mentions Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009, which involved the Supreme Court as the third instance. That appeal included assessment of the evidence and the application of incorrect criteria by the lower courts in respect of the value of the appellant ’ s claim. The Supreme Court refused to entertain the cassation appeal, relying on a provision concerning manifestly ill-founded appeals and appeals in cases where no serious legal issues arose. The decision, which was taken by a single judge sitting in camera, referred to the criteria listed in the provision, stated that none of the circumstances was present, and found it justified to refuse to entertain the cassation appeal.

The Court declared Wnuk ’ s complaint inadmissible. It stated that when a Supreme Court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6. It also repeated the formulation in Gorou and some other cases that there is no need for appellate courts to give detailed reasoning as regards points of law (see para. 10 above), and – again referring to case-law – did not rule out the possibility that, in the circumstances of a particular case, a Supreme Court may be required to give more adequate reasons.

Wnuk differs from Hansen in at least two ways: the screening in Wnuk took place in the Supreme Court as the third instance, and the case had already been examined on the merits by two judicial instances (the Regional Court and the Court of Appeal) which had full jurisdiction as to the facts and the law. But it is worth noting that the appeal to the Supreme Court included assessment of the evidence, that its competence included both facts and law, and that the Court, as always, based its conclusion on the individual circumstances of the case.

11. The third case mentioned in paragraph 80 of the present judgment is E.M. v. Norway (no. 20087/92, Commission decision of 26 October 1995, Decisions and Reports (DR) no. 83-A). The applicant had been convicted of fraud in the City Court. Under the previous system of review in criminal cases he applied to the Appeals Leave Committee of the Supreme Court for a new trial in the High Court or, in the alternative, for leave to appeal to the Supreme Court. In support of the request for a new trial in the High Court, he maintained his innocence and contested the City Court ’ s evaluation of the evidence. In the alternative request for leave to appeal to the Supreme Court he submitted that there had been certain procedural errors, in that the City Court ’ s reasoning was incomplete, the law had been wrongfully applied, and the sentence was disproportionate. The Appeals Leave Committee rejected both requests.

Before the European Commission of Human Rights E.M. argued that Article 2 of Protocol No. 7 to the Convention and Article 6 § 1 of the Convention had been violated. His application was declared inadmissible as manifestly ill-founded. The Commission did not find it necessary to decide whether the Appeals Leave Committee ’ s decision amounted to a “determination” of the criminal charge against the applicant (see para. 6 above).

With respect to E.M . ’ s complaint that no reason was given by the Appeals Leave Committee for its refusal to grant leave to appeal, the Commission considered that if the domestic law, as in that 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 that court simply to reject or accept such a petition.

The E.M. case is relevant in our context. The Commission did accept that the Appeals Leave Committee of the Supreme Court – acting as a second instance in leave-to-appeal-proceedings – had rejected by a unanimous decision an appeal which included assessment of evidence (bearing on the innocence of the accused) using standard reasoning (“unanimously finds it clear that the appeal will not succeed” which was equivalent to the formulation in the present case, see paragraph 15 of the judgment).

Admittedly, the E.M. case dates from 1995 and was decided by the former Commission. But subsequent case-law developing the principles in this field has not set aside or expressed reservations about the reasoning in E.M. As regards the fact that the E.M. case was a criminal one, it is my view that if a standard rejection formula is acceptable in respect of an appeal which includes the factual basis of the guilt or innocence of an accused, it is difficult to see why such brief reasoning should not be allowed in a civil case, perhaps of a trivial character. According to our case-law, the Contracting States have greater latitude when dealing with civil cases, concerning civil rights and obligations, than when dealing with criminal cases (see Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 19, Series A no. 274).

12. Based on this recapitulation (paras. 5 to 11 above), I cannot see that a filtering decision by a second instance based on no prospect of success is, as such, a violation of Article 6 § 1 if matters of evidence are involved. In my opinion, it does not follow from the case-law that there is any clear distinction between factual and legal issues or between second and third instance. Consequently, the finding of a violation in the present case amounts to a development in the Court ’ s case-law. In my view, Hansen is not the right case for such a step to be taken (III), and I doubt whether the time is ripe to do so (IV).

III. The Hansen Case

13. The majority observes that the High Court ’ s jurisdiction was not limited to questions of law and procedure but extended also to questions of facts, and places emphasis on the City Court ’ s decision to shorten the hearing and substantially reduce the applicant ’ s opportunity to adduce witness- and documentary evidence (see paragraph 82).

14. In my opinion, it should be noted, firstly, that when the applicant instituted proceedings in 2007, he was in fact rearguing a final judgment in a case he had lost in 2001 – that is, six years earlier. Without expressing any view on the City Court ’ s interpretation and application of national law, it seems to follow from the reading of the City Court ’ s 2008 judgment that his submissions had no solid basis: the main issue in the case – the ownership of the estate – had been decided in 2001; the manner in which the applicant described the crucial issue in the 2001 proceedings was incorrect; and his reference to legal doctrine was irrelevant and based on a misunderstanding.

15. Furthermore, in its decision on the admissibility of evidence the City Court noted that all the witnesses whom the applicant wished to call, with one exception, had been heard in 2001. It further stated that the only new witness, an art historian, could not shed light on the issues of property rights. Under these circumstances I certainly agree with the judgment (see paragraph 76) that the City Court did not transgress the normal discretion enjoyed by national courts in assessing the admissibility and relevance of evidence. In view of the fact that the applicant had received the City Court ’ s inadmissibility decision and judgment, both of which explained the legal situation and that his evidence challenging the 2001 judgment was irrelevant, I do not agree that the High Court needed to elaborate its reasons in order for him to exercise his right to appeal efficiently. The extent to which reasons should be given varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see paragraph 71 of the judgment).

16. It is true, as stated by the majority (see paragraph 82), that the High Court ’ s general jurisdiction was not limited to law and procedure but also extended to questions of facts. However, in the present case this is of little significance. The applicant ’ s appeal mainly raised questions of law, and his complaint about the shortening of the hearing was linked to the inadmissibility decision, which in turn depended on what was legally relevant in the case. In my view, it is difficult to discern elements in the applicant ’ s appeal which would require that the High Court provide detailed reasons when refusing admission of the appeal on the ground that it was clear that it would not succeed.

17. The majority refers to Helle v. Finland , 19 December 1997, § 60, Reports of Judgments and Decisions 1997 ‑ VIII), where the Court stated that the notion of a fair procedure requires that a national court which has given sparse reasons for its decision does in fact “address the essential issues” which were submitted to its jurisdiction and does “not merely endorse without further ado the findings reached by the lower court”. I am in total agreement with this statement of principle. At the same time, it should be borne in mind that Helle did not concern a filtering process but ordinary appeal proceedings before the Supreme Administrative Court which – without an oral hearing – simply appended the reasons of the first-instance court without commenting on them. As correctly stated in the present judgment (see paragraphs 73 and 74) the manner of application of Article 6 depends on the special features of the proceedings in the domestic legal order and of the role of the appellate court therein, and the provision does not require that the rejection of leave to appeal be subject itself to a requirement to give detailed reasons. Finally, it should be recalled that the Court found no violation in Helle , even though the Supreme Administrative Court could review both facts and law.

18. Paragraph 83 of the judgment also a ddresses the fact that the High Court did not act as the final instance, in so far as its procedure could form the subject of an appeal to the Appeals Leave Committee of the Supreme Court. The majority is not persuaded that the reasons given by the High Court for refusing to admit his appeal enabled the applicant to exercise effectively his right to appeal. I respectfully d isagree. The effect of the High Court ’ s refusal to admit the appeal was that the City Court ’ s judgment, with the latter ’ s reasoning, gained legal force (see paragraphs 28 and 79 of the present judgment). The contested issues in the domestic proceedings were straightforward and the applicant mainly insisted on arguments which had already been discussed and rejected at previous instances (and in 2001). The Appeals Leave Committee, which had available the same case-material as the High Court, was empowered to fully examine the application of the law and the assessment of the evidence in relation to questions of procedure; and to review whether the procedure, seen as a whole, had been justifiable and in conformity with, inter alia , Article 6 § 1, which is incorporated into Norwegian law and has precedence in the event of conflict (see paragraph 32 of the judgment).

19. It is difficult to avoid the impression that the applicant ’ s appeal was clearly unmeritorious, and I cannot see that any injustice was done when it was stopped at the filtering stage (see paragraph 25 of the judgment). Mechanisms serving as a deterrent against such appeals pursue a legitimate aim, which has been accepted by the Court (see, for instance, Monnell and Morris v. the United Kingdom , 2 March 1987, §§ 59, 63 and 67, Series A no. 115). Taking into consideration that the applicant was afforded a fair hearing in the City Court; that he was warned that his appeal could be refused and nonetheless presented further submissions; the nature of his appeal submissions to the High Court and the latter ’ s role in the proceedings at issue, and the nature of its decision refusing admission of the appeal, I do not find, in the concrete circumstances of the present case, that the High Court ’ s use of the “no-prospect-of-success” formula was incompatible with Article 6 § 1 of the Convention.

IV. Final Remarks

20. The finding of a violation in the Hansen case may seem trivial. At the domestic level the matter was solved by the Norwegian Supreme Court, which relied on domestic systemic considerations without finding it necessary to enter into the requirements of Article 6 of the Convention (see paragraphs 40 to 43 of the judgment).

21. In my view this judgment may have more general repercussions which require careful consideration. It is clear (see paragraph 71) that the Convention does not compel the Contracting States to set up courts of appeal or of cassation, and it does not guarantee a right to appeal as such in civil cases, but persons are to enjoy the fundamental guarantees of Article 6 before such appellate courts. The Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of Article 6.

22. It seems to me that the approach adopted at the national level differs considerably between the Contracting States. Specific reasoning may be required in some systems and more stereotyped reasoning may be permissible in others. I am not aware that there is any consensus about the extent to which reasons ought to be given when an appellate court refuses leave to appeal or performs other kinds of filtering. More generally, it is established case-law that the manner of regulation of the right to access to a court, including access to a court of appeal, is a matter in respect of which the Contracting States enjoy a certain margin of appreciation (see Berger v. France , no. 48221/99, § 30, ECHR 2002 ‑ X (extracts), with further references).

23. The emphasis of the majority in this case on whether the filtering mechanism was competent to review factual issues may well – if applied generally – come as a surprise to States which have perceived the Court ’ s case-law differently. One should not underestimate the need for foreseeability in connection with the organisation of national judicial systems. Furthermore, the specific requirement to give reasons at the appeal levels may also be linked to the allocation of resources and prioritisation of the most important substantive stages of the judicial process, the aim being to ensure that proceedings are conducted fairly and are concluded within a reasonable time.