هيثم الفقى
07-16-2009, 01:03 PM
X. v. NORWAY - 2369/64 [1967] ECHR 13 (03 April 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Norwegian citizen, living in Oslo. He is a lawyerby profession.He states that, after being detained for 1120 days, he was sentenced,on ... 1948, by the Eidsivating Regional Court (lagmannsrett) to tenyears' imprisonment. The charge against him was that he had been amember of the Quisling party 'Nasjonal Samling'. Apparently it was alsoheld against him that, during the occupation of Norway, he had acceptedthe office of Chief Justice (justitiarius) of the Oslo City Court(byrett). He states that his appeal against his conviction wassubsequently rejected by the Supreme Court (H*yesterett).The Applicant also refers to a decision of the Supreme Court dated ...1951, by which he was obliged to pay damages of 400,000 Norwegiancrowns, corresponding to a part of the damage which the 'NasjonalSamling' had allegedly caused the community.The Applicant subsequently asked on several occasions for a retrial ofthe criminal case against him but his requests were all rejected. Thelast decision in this regard was given by the Appeals Committee of theSupreme Court on ... 1966.The Applicant objects to his conviction on a number of grounds and asksthe Commission to examine the legal basis not only of his ownconviction but also of the convictions of about 60,000 other Norwegianswho had also been punished because of their membership of the 'NasjonalSamling'.An organisation called 'Forbundet for ...' has declared that it joinsthe present Application.I. The Applicant states that the convictions and sentences concernedwere based, to a large extent, on ordinances issued by theGovernment-in-Exile in London in the years 1940 - 45. However, theGovernment had no competence to legislate under Norwegianconstitutional law, since Article 49 of the Norwegian Constitution(grunnloven) provides that the legislative power lies with Parliament(stortinget).It was true that Article 17 of the Constitution gave the King a certainright to issue provisional regulations while Parliament was not sittingbut this right was subject to various conditions and could not beconsidered a sufficient legal basis of the ordinances issued by theGovernment-in-Exile. Moreover, some ordinances had been issued whileParliament was still sitting in June-September, 1940, and in any eventthe ordinances had not been cancelled when Parliament met again in May,1945, which should have been done if the legal basis had been Article17 of the Constitution.The Applicant pointed out that the legal basis had sometimes beenconsidered to be the special powers given to the Government byParliament at its session at Elverum on 9th April, 1940, the day of theGerman attack on Norway. Indeed, it had been maintained that, on thatoccasion, the Government had been authorised to take care of theinterests of the country and to take any decisions required until suchtime as Parliament could be convened again. However, the Applicantsubmits that it was untrue that any such wide powers had ever beengiven to the Government and that, in fact, Parliament had not given theGovernment any larger competence than could already be derived fromArticle 17 of the Convention.The Applicant concludes that the Government was not competent,according to the Norwegian Constitution, to issue the ordinancesconcerned.II. The Applicant points out that the convictions of members of the'Nasjonal Samling' were based on the assumption that Norway had beenat war with Germany in the years 1940 - 45. In fact, most of thepersons concerned had been convicted on charges of offenses againstArticle 86 of the Criminal Code which provided for punishment of anyperson who, during a war in which Norway takes part, renders assistanceto the enemy. The Applicant maintains, however, that the war betweenNorway and Germany ended on 10th June, 1940, when the NorwegianCommander-in-Chief had signed a capitulation agreement with the GermanCommander of the troops in Norway and armistice had been concluded. Inorder to prove that from that date Norway was no longer at war withGermany he refers to the terms of the capitulation agreement, to thedeclarations made by King Haakon after 10th June, 1940, and he invokesa number of experts of international law and other authors.As the Applicant had joined the 'Nasjonal Samling' after 10th June,1940, there could, in his opinion, be no question of having assistedthe enemy, the state of war having then ceased to exist. On this pointhe considers that his case is different from Application No. 931/60(see Collection of Decisions, Volume 6, page 41) as in that case theconviction had also concerned membership of the 'Nasjonal Samling'before 10th June, 1940.III. The Applicant states that, during the occupation of Norway by theGermans, Article 43 of the Hague Regulations of 1907 applied andaccording to this provision the occupying power had the duty to ensurepublic order and safety and was entitled to legislate if newlegislation was required for this purpose. On the other hand, theGovernment-in-Exile had no competence to legislate and the ordinancesissued by the Government in London were therefore contrary tointernational law. In particular, they could not be considered to bebinding since they were not legally published in Norway during theoccupation period.Even in view of the substance of these ordinances, they could not beaccepted. First, in many cases, acts were declared to be punishablewhich had not been punishable when they were committed. Moreover,capital punishment was re-introduced by simple ordinance, although ithad been abolished in the Criminal Code, and jury trial was abolishedin respect of the offenses concerned.In respect of membership of the 'Nasjonal Samling' the Applicantobserves that the mere fact of being a member was made a criminaloffence by an ordinance of 22nd January, 1942. According to thisordinance, such membership was to be considered to constituteassistance to the enemy contrary to Article 86 of the Criminal Code.In reality, this amounted to a collective punishment of members of apolitical party and was contrary to Article 50 of the HagueRegulations. The Applicant points out that membership of the GermanNSDAP had not, as such, been considered to constitute a criminaloffence.The Applicant further states that the provisional ordinances issued bythe Government-in-Exile were in fact applied by Norwegian courts evenat a time when Norway was occupied by the Allies and, according to theApplicant, it could in no way be accepted that such ordinances wereapplied before Norway had regained its sovereignty.IV. The Applicant invokes Articles 2, 5, 6, 7 and 13 of the Convention.He asks the Commission to urge the Norwegian Government to observe itsobligations under the Convention.THE LAWWhereas the basic facts alleged, and in particular the Applicant'sconviction and sentence, relate to a period prior to 3rd September,1953, the date of the entry into force of the Convention with respectto Norway; and whereas, in accordance with the generally recognisedrules of international law, the Convention only governs, for eachContracting Party, facts subsequent to its entry into force withrespect to that Party; whereas it follows that the examination of theApplication, in so far as it relates to these alleged facts, is outsidethe competence of the Commission ratione temporis;Whereas, in regard to the Applicant's complaints relating to his claimfor a retrial and the court proceedings concerned, it is to be observedthat the Convention, under the terms of Article 1 (Art. 1), guaranteesonly the rights and freedoms set forth in Section I of the Convention;and whereas, under Article 25, paragraph (1) (Art. 25-1), only thealleged violation of one of those rights and freedoms by a ContractingParty can be the subject of an application presented by a person,non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commissionratione materiae; whereas the right to a retrial is not as suchincluded among the rights and freedoms guaranteed by the Convention;and whereas, in accordance with the Commission's constantjurisprudence, proceedings concerning applications for retrial falloutside the scope of Article 6 (Art. 6) of the Convention (seeApplications Nos. 864/60, - X. v. Austria - Collection of Decisions,Volume 9, page 17 and 1237/61, X. v. Austria - Yearbook V, page 96);whereas it follows that this part of the Application is incompatiblewith the provisions of the Convention within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission declares this Application INADMISSIBLE.
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Norwegian citizen, living in Oslo. He is a lawyerby profession.He states that, after being detained for 1120 days, he was sentenced,on ... 1948, by the Eidsivating Regional Court (lagmannsrett) to tenyears' imprisonment. The charge against him was that he had been amember of the Quisling party 'Nasjonal Samling'. Apparently it was alsoheld against him that, during the occupation of Norway, he had acceptedthe office of Chief Justice (justitiarius) of the Oslo City Court(byrett). He states that his appeal against his conviction wassubsequently rejected by the Supreme Court (H*yesterett).The Applicant also refers to a decision of the Supreme Court dated ...1951, by which he was obliged to pay damages of 400,000 Norwegiancrowns, corresponding to a part of the damage which the 'NasjonalSamling' had allegedly caused the community.The Applicant subsequently asked on several occasions for a retrial ofthe criminal case against him but his requests were all rejected. Thelast decision in this regard was given by the Appeals Committee of theSupreme Court on ... 1966.The Applicant objects to his conviction on a number of grounds and asksthe Commission to examine the legal basis not only of his ownconviction but also of the convictions of about 60,000 other Norwegianswho had also been punished because of their membership of the 'NasjonalSamling'.An organisation called 'Forbundet for ...' has declared that it joinsthe present Application.I. The Applicant states that the convictions and sentences concernedwere based, to a large extent, on ordinances issued by theGovernment-in-Exile in London in the years 1940 - 45. However, theGovernment had no competence to legislate under Norwegianconstitutional law, since Article 49 of the Norwegian Constitution(grunnloven) provides that the legislative power lies with Parliament(stortinget).It was true that Article 17 of the Constitution gave the King a certainright to issue provisional regulations while Parliament was not sittingbut this right was subject to various conditions and could not beconsidered a sufficient legal basis of the ordinances issued by theGovernment-in-Exile. Moreover, some ordinances had been issued whileParliament was still sitting in June-September, 1940, and in any eventthe ordinances had not been cancelled when Parliament met again in May,1945, which should have been done if the legal basis had been Article17 of the Constitution.The Applicant pointed out that the legal basis had sometimes beenconsidered to be the special powers given to the Government byParliament at its session at Elverum on 9th April, 1940, the day of theGerman attack on Norway. Indeed, it had been maintained that, on thatoccasion, the Government had been authorised to take care of theinterests of the country and to take any decisions required until suchtime as Parliament could be convened again. However, the Applicantsubmits that it was untrue that any such wide powers had ever beengiven to the Government and that, in fact, Parliament had not given theGovernment any larger competence than could already be derived fromArticle 17 of the Convention.The Applicant concludes that the Government was not competent,according to the Norwegian Constitution, to issue the ordinancesconcerned.II. The Applicant points out that the convictions of members of the'Nasjonal Samling' were based on the assumption that Norway had beenat war with Germany in the years 1940 - 45. In fact, most of thepersons concerned had been convicted on charges of offenses againstArticle 86 of the Criminal Code which provided for punishment of anyperson who, during a war in which Norway takes part, renders assistanceto the enemy. The Applicant maintains, however, that the war betweenNorway and Germany ended on 10th June, 1940, when the NorwegianCommander-in-Chief had signed a capitulation agreement with the GermanCommander of the troops in Norway and armistice had been concluded. Inorder to prove that from that date Norway was no longer at war withGermany he refers to the terms of the capitulation agreement, to thedeclarations made by King Haakon after 10th June, 1940, and he invokesa number of experts of international law and other authors.As the Applicant had joined the 'Nasjonal Samling' after 10th June,1940, there could, in his opinion, be no question of having assistedthe enemy, the state of war having then ceased to exist. On this pointhe considers that his case is different from Application No. 931/60(see Collection of Decisions, Volume 6, page 41) as in that case theconviction had also concerned membership of the 'Nasjonal Samling'before 10th June, 1940.III. The Applicant states that, during the occupation of Norway by theGermans, Article 43 of the Hague Regulations of 1907 applied andaccording to this provision the occupying power had the duty to ensurepublic order and safety and was entitled to legislate if newlegislation was required for this purpose. On the other hand, theGovernment-in-Exile had no competence to legislate and the ordinancesissued by the Government in London were therefore contrary tointernational law. In particular, they could not be considered to bebinding since they were not legally published in Norway during theoccupation period.Even in view of the substance of these ordinances, they could not beaccepted. First, in many cases, acts were declared to be punishablewhich had not been punishable when they were committed. Moreover,capital punishment was re-introduced by simple ordinance, although ithad been abolished in the Criminal Code, and jury trial was abolishedin respect of the offenses concerned.In respect of membership of the 'Nasjonal Samling' the Applicantobserves that the mere fact of being a member was made a criminaloffence by an ordinance of 22nd January, 1942. According to thisordinance, such membership was to be considered to constituteassistance to the enemy contrary to Article 86 of the Criminal Code.In reality, this amounted to a collective punishment of members of apolitical party and was contrary to Article 50 of the HagueRegulations. The Applicant points out that membership of the GermanNSDAP had not, as such, been considered to constitute a criminaloffence.The Applicant further states that the provisional ordinances issued bythe Government-in-Exile were in fact applied by Norwegian courts evenat a time when Norway was occupied by the Allies and, according to theApplicant, it could in no way be accepted that such ordinances wereapplied before Norway had regained its sovereignty.IV. The Applicant invokes Articles 2, 5, 6, 7 and 13 of the Convention.He asks the Commission to urge the Norwegian Government to observe itsobligations under the Convention.THE LAWWhereas the basic facts alleged, and in particular the Applicant'sconviction and sentence, relate to a period prior to 3rd September,1953, the date of the entry into force of the Convention with respectto Norway; and whereas, in accordance with the generally recognisedrules of international law, the Convention only governs, for eachContracting Party, facts subsequent to its entry into force withrespect to that Party; whereas it follows that the examination of theApplication, in so far as it relates to these alleged facts, is outsidethe competence of the Commission ratione temporis;Whereas, in regard to the Applicant's complaints relating to his claimfor a retrial and the court proceedings concerned, it is to be observedthat the Convention, under the terms of Article 1 (Art. 1), guaranteesonly the rights and freedoms set forth in Section I of the Convention;and whereas, under Article 25, paragraph (1) (Art. 25-1), only thealleged violation of one of those rights and freedoms by a ContractingParty can be the subject of an application presented by a person,non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commissionratione materiae; whereas the right to a retrial is not as suchincluded among the rights and freedoms guaranteed by the Convention;and whereas, in accordance with the Commission's constantjurisprudence, proceedings concerning applications for retrial falloutside the scope of Article 6 (Art. 6) of the Convention (seeApplications Nos. 864/60, - X. v. Austria - Collection of Decisions,Volume 9, page 17 and 1237/61, X. v. Austria - Yearbook V, page 96);whereas it follows that this part of the Application is incompatiblewith the provisions of the Convention within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission declares this Application INADMISSIBLE.