المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : X. v. NORWAY - 2002/63 [1964] ECHR 7 (02 July 1964)



هيثم الفقى
07-15-2009, 12:22 AM
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Norwegian citizen born in and living in A. She isthe president of Z Organisation in Norway.In 1929 the Applicant married a Mr Y from whom she lived separately asfrom 1941, and was eventually divorced in 1944. During the GermanOccupation of Norway, Mr Y, who, was at the time the director of T.allegedly collaborated with the occupying forces. After the war he was"cleared" of any suspicion of treachery and is at present director ofU.In 1942, when the German persecution of the Norwegian Jews started, theApplicant was arrested, although Jews married to non-Jews were notcovered by the measures taken by the Gestapo. At the moment ofdeparture, the Applicant avoided being put on board a ship bound forGermany and was temporarily transferred to a prison, after herdeportation had been postponed for a week pending proof as to hercontinuing status as a married person. Her husband was at the time ona concert tour in Bergen and, in spite of telegraphic requests from theApplicant's lawyer, he refused to return to Oslo until the end of histour, 4 days later. On his return he signed a declaration to the effectthat he was still married to the Applicant who was accordingly releasedon the following day. Subsequently, she managed to escape to Sweden.In1945, rumours started to circulate about the behaviour of theApplicant's husband and the Norwegian Association of Composers adopted,in 1945, a resolution declaring these rumours to be unfounded; a fewdays later this resolution was sent with a covering letter to two Oslonewspapers in order to prevent the publication of articles derogatoryto Mr Y. The said letter contained such expressions as "unfoundedattacks", "malicious rumours", and "imaginary conduct".In 1960, it was reported to the Applicant that her former husband mightvisit Israel as a guest conductor. Considering such visit to be aninsult to the Israeli people, she instituted criminal proceedings forlibel in 1960 against the Norwegian Association for Composers in orderto obtain a declaration that the accusations implicitly brought againsther in the above covering letter were null and void. She herselfmaintained that her statements against Mr Y were completely true. Theimmediate result of her action was that the plans for the concert tourin Israel were called off. The legal proceedings aroused, apparently,a general interest in Norway and the two leading newspapers in Oslocarried detailed articles about the case. In 1962, the defendantssuccessfully requested that the hearing of the case should take placein a closed session.In 1962, the City Court of A acquitted the defendants. It consideredthe above expressions in the covering letter to be clearly defamatoryto the Applicant, but it held that she was not justified in allegingthat he had given her "no help whatsoever", as he had, in fact, signedthe declaration which effected her release. At the same time, the Courtconceded that Mr Y's conduct was open to criticism in that he did notinquire about the fate of his wife when learning about the Gestapoaction, in that he did not return immediately to Oslo when notified ofher arrest, that he continued to give his concerts and that he did notgive by telegram a declaration as to the validity of their marriage.The Court held that the defendants were consequently justified inmaking the above statements but it "found no reason" to award costsagainst the Applicant. Finally, it rejected the Applicant's request forpermission to publish the judgment which had been pronounced in closedsession.In 1962, the Applicant lodged an appeal against the City Court'sjudgment and a request for a new hearing, which were both rejected bythe Appeal Committee of the Supreme Court in 1962.In 1963, invoking the provisions of the Convention, the Applicantappealed against the order of 1962 according to which the case washeard in a closed session and also against the Court's decision todeliver judgment in a closed session and requested the quashing of theabove sentence.In 1963, the Appeal Committee of the Supreme Court rejected her appealon the ground that it had been lodged out of time. The Committee added,however, in respect of her above request, that "although the appealmust thus be rejected on procedural grounds, the Committee findsreasons to mention that it would presumably not have been successful,even if it had been lodged in time". As to the failure on the part ofthe Court of giving judgment in public, it stated that although thejudgment should, in accordance with Article 124, paragraph (3) of theCode of Procedure, be read in public, such mistake would not vitiatethe judgment in question but would only oblige the Court to fix asession for delivery of the judgment in public.Whereas the Applicant alleges violation of Article 6, paragraph (1),of the Convention and claims that the "judgment of the City Court ofA be pronounced in a public session with a possibility that the pressmay publish the judgment".THE LAWWhereas it is to be observed that, under Article 26 (Art. 26) of theConvention, the Commission may only deal with a matter after alldomestic remedies have been exhausted according to the generallyrecognised rules of international law; whereas it is true that theApplicant in 1962 lodged an appeal to the Supreme Court from thedecision of the City Court of A given in 1962; whereas, however, shefailed to raise in her appeal the complaints which she has now broughtbefore the Commission, namely, the fact that the decision of the CityCourt of A was not handed down in public session;Whereas the Commission has previously held that in order to comply withthe provisions of Article 26 (Art. 26) "it is not enough that theApplicant should have submitted his case to the various competentcourts to which, as requested by the said Article (Art. 26) the caseshould be referred ... the Applicant should also plead before thehigher court the rights which he alleges were violated by the lowercourt" (see Application No. 617/59 - Hopfinger v. Austria, YearbookIII, page 370); whereas it is true that in 1963 the Applicant raisedthe issue before the Supreme Court that the decision of the City Courtof A violated the provisions of Article 6, paragraph (1) (Art. 6-1) ofthe Convention;Whereas, however, according to Norwegian law, this second appeal waslodged out of time; whereas the Commission has consistently held thattime-limits laid down in domestic law for the introduction of appealsmust be observed by applicants to the Commission (see Application No.945/60 - P. v. the Federal Republic of Germany, Collection ofDecisions, Volume 8, page 98);Whereas the Commission infers from the text of the decision of theSupreme Court of 1963 that the Applicant, during her first appeal,might successfully have invoked Article 124, paragraph (3) of the Codeof Procedure and Article 6, paragraph (1) (Art. 6-1) of the Conventionand thereby have obtained an order of the Court that a session be fixedfor the delivery of the judgment of 1962 in public; whereas theCommission considers that the statement made by the Supreme Court asto the probable failure of the appeal even if lodged in time does notrefer to the issue now before the Commission but solely to theApplicant's request that the decision of the City Court of A should beset aside;Whereas, therefore, the Applicant failed to exhaust the remediesavailable to her under Norwegian law; whereas, moreover, an examinationof the case as it has been submitted, including an examination made exofficio, does not disclose the existence of any special circumstanceswhich might have absolved the Applicant, according to the generallyrecognised rules of international law, from exhausting the domesticremedies at her disposal;Whereas, therefore, the condition as to the exhaustion of domesticremedies laid down in Article 26 (Art. 26) has not been complied withby the Applicant;Whereas it follows that the Application must be rejected in accordancewith Article 27, paragraph (3) (Art. 27-3) of the Convention;Now therefore the Commission declares this Application INADMISSIBLE.