PROCEDURE

The case originated in an application (no. 15319/09) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Mr Hroar Anton Hansen (“the applicant”), on 19 March 2009.

The applicant was represented by Mr A.C. Ryssdal, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mr M. Emberland, Attorney, Attorney General’s Office (Civil Affairs).

The applicant complained that the reasons stated by the Borgarting High Court in refusing to admit his appeal had been inadequate and thus entailed breach of Article 6 § 1 of the Convention.

On 31 August 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant lives at Nesoddtangen, Norway.

In 1989 Mrs B., who was then the applicant’s wife, bought a property named Ekheim from him for 6,400,000 Norwegian kroner (NOK), currently corresponding to approximately 760,000 euros (EUR). The couple drew up marital agreements (“ektepakt”) in 1990 and 1995.

On 3 November 1995 Mrs B. and the applicant concluded an agreement stipulating that they each owned 50% of the Ekheim estate, regardless of what was stated or might follow from formal entitlements (hereinafter referred to as the joint ownership agreement).

Subsequently, after their divorce, the applicant lodged an action against Mrs B. with Fredrikstad City Court (tingrett), seeking a ruling to the effect that the marital agreements were invalid and that the joint ownership agreement was valid. By a judgment of 4 April 2001, the City Court found against the applicant and in favour of the respondent, concluding that the marital agreements were valid and that the joint ownership agreement was invalid. The applicant did not appeal against this judgment, which gained legal force.

In 2005 Mrs B. sold the Ekheim estate to Ekheim Invest AS, a limited liability company, for NOK 15,000,000 (approximately EUR 1,1780,000).

On 28 June 2007 the applicant instituted civil proceedings before the City Court against Ekheim Invest claiming that he had title to 50% of the Ekheim estate and seeking, firstly, an order that the latter convey 50% of the property to him and, secondly, that he held a pre-emption right with respect to the remaining 50%.

According to the summary of the applicant’s submissions made by the City Court in its judgment referred to below, the applicant argued in the main as follows: (a) The question was how to interpret the former spouses’ joint ownership agreement of 3 November 1995. In the case that had previously been decided by the City Court on 4 April 2001, the subject-matter of the dispute had been whether the marital agreements from 1990 and 1995 were valid. The subject-matter in the present case was different. Two spouses having completely separate property had the opportunity to conclude a mutual agreement involving an obligation of performance for each party. According to legal doctrine, such a contract was not dependent on any condition as to form. (b) The contract had been a reality in the present case. Ekheim Invest had purchased the half of the Ekheim estate that had been in Mrs B.’s ownership, not the half owned by the applicant, because Mrs B. had had no right to sell the other half. Consequently, Ekheim Invest ought to transfer by deed of conveyance half of the Ekheim estate back to the applicant. (c) The applicant further submitted that in its 2001 judgment the City Court had not reviewed the validity of the joint ownership agreement. In any event, the legal force of that judgment extended only to the relationship between Mrs B. and the applicant, not between Ekheim Invest and the applicant. The applicant referred to legal doctrine, according to which a judgment as a main rule only had legal force in the relationship between the parties to the proceedings. Moreover, the parties’ arguments ought to be taken as a starting point in the assessment of whether any new factual circumstances had arisen. (d) The applicant’s argument was that in the period since 2001 the estate had increased so greatly in value that the City Court now had to assess the ownership issue independently of the conclusion reached in the 2001 judgment. At that time the mortgages on the property had clearly exceeded its value and it had therefore been unproblematic to hold that, in light of an on-going bankruptcy at the time, the applicant would not have been in a better position in the absence of the marriage settlement agreements. It would be unreasonable if Mrs B. or her successors should be able to profit from the tremendous increase in the property’s value.

By a judgment of 21 January 2008, the City Court found in favour of the respondent Ekheim Invest, on the ground that the applicant did not have title to the property in question as the respondent company had derived its rights from Mrs B. and the City Court had ruled in her favour in its 2001 judgment. It rejected the applicant’s argument based on legal doctrine that the 2001 judgment only had legal force between the parties by referring to another passage in the legal manual in question from which it appeared that the point only applied to disputes between a private party and public authorities. The action brought by the applicant had no public-law aspects and the City Court did not consider that the legal doctrine referred to had any bearing on the present case.

The applicant appealed against the City Court’s judgment of 21 January 2008 to the Borgarting High Court (lagmannsrett). He argued in particular that the City Court had confused his pleadings and references to legal doctrine made at the oral hearing and had shortened the overall duration of the hearing from the three days initially scheduled to five hours. One hour into the hearing the City Court had truncated the hearing of the applicant’s witnesses, including the presentation of documentary evidence regarding the disputed agreements. The City Court’s hearing record had also been marred by formal mistakes.

On 4 April 2008 the High Court warned the applicant that it envisaged refusing admission of his appeal and gave him until 21 April 2008 to comment. After an extension of this time-limit to 5 May 2008 the applicant on the latter date requested that his appeal be admitted for examination or, in the alternative, that the High Court quash the City Court’s judgment and refer the case back to the City Court for fresh examination. On 5 and 11 June 2008 he filed additional submissions.

In a unanimous decision (beslutning) of 12 June 2008 the High Court concluded that it refused to admit the appeal (“Anken nektes fremmet”), giving the following reasons: “The High Court finds it clear that the appeal will not succeed, and that its admission should therefore be refused pursuant to Article 29-13(2) of the Code of Civil Procedure.”

The applicant appealed against the High Court’s decision to the Supreme Court, arguing notably that the refusal of admission of the appeal lacked reasons.

On 19 September 2008 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), pointing out that its jurisdiction was confined to reviewing the High Court procedure (Article 29-13 (5) of the Code of Civil Procedure), unanimously found it clear that the appeal would not succeed and therefore rejected the appeal under Article 30-9 (2).

II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL COMPARATIVE LAW

A. Provisions regarding the filtering of civil appeals to the High Court

The 2005 Code of Civil Procedure (Tvisteloven) entered into force on 1 January 2008 and replaced the 1915 Code of Civil Procedure (tvistemålsloven).

Under Article 29-12 of the 2005 Code of Civil Procedure, the High Court could at the preparatory stage (a) dismiss (avvise) an appeal on the ground that is suffered from errors that ought to lead to dismissal; (b) discontinue the proceedings in whole or in part on the ground of lack of jurisdiction or that the matter is already res judicata; (c) quash the appealed decision on grounds of errors that ought unconditionally to be given effect.

The conditions for the High Court granting leave to appeal and for refusing the admission of an appeal (“Krav til samtykke. Nektelse”) were set out in Article 29-13.

Under paragraph 1 of this provision an appeal against a City Court judgment could not be admitted without the leave to appeal being granted by the High Court if the value of the subject-matter was less than NOK 125,000 (approximately EUR 15,000). The provision, which further set out certain criteria for a grant of leave to appeal, did not come into play in the instant case, where the appeal related to pecuniary interests (approximately EUR 1,780,000) exceeding by far that minimum threshold.

The ground on which the High Court had refused admission of the appeal in the present case was based on a filtering provision introduced by the 2005 Code concerning civil appeals to the High Court. Paragraph 2 of Article 29-13 read: “The admission of an appeal against a judgment may be refused if the High Court finds it clear that the appeal will not succeed. A refusal may be limited to certain claims or appeal grounds.”

Unless an appeal had been decided under Articles 29-12 or 29-13, the proceedings were to continue, according to Article 29-14. The preparation of the proceedings was to concentrate on matters that should be reviewed according to the appeal and were disputed.

Article 19-6 set out the requirements regarding the contents of judgments and decisions of the national courts. Paragraph 4 of this article provided that judgments (dommer) and certain procedural decisions (kjennelser) should include a presentation of the case, a statement of the parties’ arguments and claims and the court’s reasoning. The type of decision (beslutning) at issue in the present case was not mentioned.

B. Preparatory works

From the preparatory works to the 2005 Code of Civil Procedure it can be seen that the aim of introducing a merits filtering mechanism before the High Court, in addition to the already existing leave to appeal requirements for disputes concerning pecuniary interests below the minimum level described above, was to promote the interests of procedural economy. The committee submitting draft statutory provisions recognised that there was a need to stop clearly unmeritorious appeals to the High Court in order to avoid additional considerable costs being incurred by the parties and by the judiciary (Rett på sak Lov om tvisteløsning – (tvisteloven), Norges Offentlige Utredninger (“NOU” Official Norwegian Report) 2001:32, at pp. 775-779)).

In supporting the proposal, the Ministry of Justice observed that, whilst the right to appellate review of a decision on the merits was an important safeguard, an unlimited and extensive right in this respect could be counterproductive to the rule of law (Ot.prp. nr. 51 (2004-2005), p. 296).

It was also noted that the Supreme Court had for decades made use of a similar provision for refusing the admission of appeals under former Article 373 (3) no. 1 of the 1912 Code of Civil Procedure (see NOU 2001:32, p. 779). This was in the context of a leave-to-appeal procedure.

The substantive effect of a refusal of admission of an appeal was that the judgment appealed against gained legal force; the force of res judicata depended on the judgment, not the refusal of admission of the appeal (NOU 2001:32, p. 401).

The High Court’s role in appeal proceedings in a civil case was not to examine the case afresh but to review the first-instance court’s decision that formed the subject of the appeal (NOU 2001:32, p. 781). After carrying out an examination of the merits of the case, normally on the basis of the case file as it stood, the High Court could refuse admission of the appeal provided that it found it “clear” that the appeal had no prospects of success. “Clear” implied a high degree of certainty that the outcome would remain unaltered after an ordinary appeal hearing (ibid., p. 778). It was not a condition for refusing admission of the appeal that the High Court agreed with the City Court’s reasoning or was of the view that its reasoning would stand after the High Court’s review of the case. It was sufficient that the High Court found it clear that the outcome would be upheld, possibly on a different reasoning than that given by the City Court (Ot.prp. nr. 51 (2004‑2005), p. 475). It was moreover a condition in Article 29-13 (5) that the three judges taking part in the decision to refuse admission of the appeal unanimously found that the appeal would not succeed (ibid., p. 476).

C. Views of the UN Human Rights Committee of 17 July 2008 regarding Communication No. 1542/2007

A provision corresponding to Article 29-13 (2) of the Code of Civil Procedure may be found in Article 321 (2) of the Code of Criminal Procedure (Straffeprossessloven), according to which the High Court may refuse the admission of an appeal in a criminal case if it finds it clear that the appeal will not succeed.

On 17 July 2008, the United Nations Human Rights Committee communicated its “Views” on a communication (no. 1542/2007) lodged by Mr Abdel Kereem Hassan Aboushanif under the Protocol to the 1966 International Covenant on Civil and Political Rights concerning the lack of reasoning in a decision by a Norwegian High Court refusing the admission of an appeal in criminal proceedings. It stated: “The Committee recalls its jurisprudence, according to which, while States parties are free to set the modalities of appeal, under article 14, paragraph 5, they are under an obligation to review substantially the conviction and sentence. ... In the present case, the judgment of the [High] Court ... does not provide any substantive reason at all as to why the court determined that it was clear that the appeal would not succeed, which puts into question the existence of a substantial review of the author’s conviction and sentence. The Committee considers that, in the circumstances of the case, the lack of a duly reasoned judgment, even if in brief form, providing a justification for the court’s decision that the appeal would be unsuccessful, impairs the effective exercise of the right to have one’s conviction reviewed as required by article 14, paragraph 5, of the Covenant.”

D. Ensuing developments in the Supreme Court’s case-law as well as legislative change

Following the Human Rights Committee’s “Views” in Mr Aboushanif’s case, the Norwegian Supreme Court, sitting in a Grand Chamber of eleven judges, delivered three decisions on 9 December 2008 (Norsk Retstidende – “Rt.” – 2008 at pp. 1764, 1783 and 1786) in criminal proceedings. It concluded that from Article 14 § 5 of the Covenant it followed that every High Court decision refusing admission of an appeal under Article 321 § 2 of the Code of Criminal Procedure ought to be reasoned. It further held that this requirement ought to be considered part of Norwegian national law (section 3 of the Norwegian Human Rights Act).

The Supreme Court emphasised two main considerations for why High Court decisions refusing admission of an appeal ought to contain reasons. Firstly, it stressed that reasons must be provided in order to ensure the efficiency of the High Court’s review. Omitting to provide reasons “impair[ed] the effective exercise of the right to have one’s conviction reviewed”. The requirement of reasons was a necessary safeguard for ensuring a substantial review. By requiring the court to explain why the appeal would not succeed, one could ensure that the decision was reached on the basis of a thorough and sound assessment.

Secondly, the lack of reasons made it impossible to verify whether there had been a substantial review of the appeal. The Supreme Court held that this was relevant for the appellant – the reason for the refusal should enable the appellant to verify that the issues raised in the appeal had been properly assessed. In addition, it was relevant for the superior review body, where such existed. Where the law provided that the decision of the appellate instance could be appealed against to a superior body, the decision of the appellate body ought to be reasoned in such a manner as to enable review of the decision.

As to the extent to which reasoning was required, the Supreme Court observed that as a starting point, the reasoning should include what was needed to show that a substantial review had taken place. Usually, such reasoning could be done summarily, in a brief and succinct form, and be linked to the submissions in the appeal. The reasoning should show that the alleged errors in the first-instance court’s decision had been understood and why the appeal clearly would not succeed. This meant that it would be insufficient, as had been done previously, to state the grounds for appeal and paraphrase the statutory requirement for refusing admission of an appeal. In this connection the reasoning should be formulated with a view to enabling the Supreme Court to review the High Court procedure, including whether a substantial review had been carried out as required by Article 14 (5) of the Covenant. The extent of the reasoning required would vary considerably, depending on the nature of the particular case, ranging from a couple of sentences to more extensive reasoning of a legal or factual character.

On 18 September 2009, the Supreme Court, sitting in a Grand Chamber formation in civil proceedings (Rt. 2009 p. 1118), by nine votes to two, quashed a High Court decision refusing admission of an appeal on the basis of Article 29-13 (2) of the Code of Civil Procedure. The Supreme Court was divided, with respect to the reasons for quashing the High Court’s decision.

A majority of seven members considered the subject matter in relation to Article 88 of the Constitution, according which the Supreme Court was to adjudicate in final instance and limitations thereon ought to be prescribed by law. The majority observed that this provision left the legislator great latitude in organising the national system of judicial remedies as it deemed appropriate. Whilst a system giving the High Court the final say on questions of law would be at odds with this provision, one that limited the right to appeal against the assessment of evidence would not. However, a filtering system for appeals would not as such be incompatible with Article 88. Nor did it follow that the High Court’s refusal to admit an appeal ought to be reasoned or that the Supreme Court ought to have competence to review the City Court and or the High Court’s application of the law. There were also other mechanisms that could ensure the Supreme Court the necessary control.

The majority noted that, according to Article 29-13 (5) of the Code, a decision of the High Court to refuse the admission of an appeal could be appealed to the Supreme Court in so far as the High Court procedure was concerned. The Supreme Court’s competence to review the High Court procedure encompassed questions of whether a breach had occurred of expressly stated rules of procedure. The Supreme Court was empowered to fully examine the application of the law and the assessment of the evidence in relation to questions of procedure and, if necessary, determine whether an error of procedure had materialised (see NOU 2001:32 p. 777, Rt. 2008 p. 1317; Rt. 2009 p. 222 and Rt. 2009 p. 411). The Supreme Court could also review whether the High Court procedure, seen as a whole, including its exercise of discretionary powers in this respect, had been justifiable (“forsvarlig”), cf. Article 1-1 (1), setting out the Code’s general purpose to guarantee a fair hearing, and Article 6 § 1 of the Convention. This also covered whether in the light of the points of law raised in the case was justifiable for the High Court to refuse admission of the appeal (Rt. 2002 p. 1032). The Supreme Court could in addition review whether the state of the evidence before the High Court suggested that the subject matter could be adequately dealt with on the basis of the written case-file in a simplified procedure. The majority further emphasised that, in assessing whether in view of the points of law raised in the case was justifiable for the High Court to refuse admission of the appeal, regard could be had to whether the case raised issues of constitutional law or questions regarding Norway’s international legal obligations or whether the High Court should have admitted the appeal in the interest of legal unity, clarification or development of the law, with a possibility for lodging an ordinary appeal to the Supreme Court. This ought to be sufficient to satisfy Article 88 of the Constitution.

Since the Supreme Court in any event could base its review of the High Court procedure on the same material as had been before the latter, no constitutional obligation to give reasons for a High Court refusal to admit an appeal could be justified by the interests of the Supreme Court procedure.

The majority’s conclusion relied on systemic considerations and what they considered as clear presumptions on the part of the legislator. Bearing in mind the connection to Article 321 (2) of the Code of Criminal Procedure and the developments that had taken place with regard to the issue of reasoning for refusals of admission of an appeal in criminal cases, it followed that a general requirement for stating reasons also applied to refusals of admission of an appeal under Article 29-13 (2) of the Code of Civil Procedure. The relevant High Court should therefore have given reasons for its impugned decision in that case.

In the light of the foregoing, the Supreme Court’s majority found it unnecessary to consider the alternative plea that the decision had to be quashed in view of the requirements of Article 6 of the Convention and Article 14 of the Covenant that national decisions be reasoned.

Two concurring judges emphasised that the procedure for refusing admission of an appeal entitled a full review of the first-instance decision on the merits and that the High Court’s omission to give reasons for its decision to refuse admission of an appeal entailed a violation of Article 6 § 1 of the Convention. The decision therefore had to be quashed.

Two dissenting members disagreed with the majority view that the obligation to state reasons for a refusal of admission of an appeal in criminal cases also extended to civil cases. Nor did they find that a requirement to this effect could be deduced from Article 6 § 1 of the Convention.

As a result of the above-mentioned developments, there is currently a general obligation for Norwegian high courts to state reasons (see paragraph 35 above) for a decision refusing admission of an appeal under Article 29-13 (2) of the Code of Civil Procedure.

On 11 June 2010 the Ministry of Justice proposed to Parliament (Prop. 141L (2009-2010)) certain amendments to the Code of Criminal Procedure and the Code of Civil Procedure, including a provision requiring High Courts to state reasons for decisions refusing admission of an appeal. Without stating any view on compliance with Article 6 § 1 of the Convention, the Ministry pointed out that the Supreme Court ruling of 18 September 2009 reflected applicable law and that the relevant provisions in the respective codes should be amended accordingly and in a similar manner. For High Courts the financial and administrative consequences of the proposed changes should be manageable.

With effect from 10 December 2010, Article 29-13 (5) was amended to include a requirement that a refusal of admission of an appeal under Article 29-13 (2) had to be reasoned (“begrunnet”).