ITEMID: 001-81994
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EKEBERG AND OTHERS v. NORWAY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (one applicant);No violation of Art. 6-1 (other applicants);No violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 7. All the applicants, but the fifth, were members of a motor cycle club named “Screwdrivers”, which was based in Hamar and was, at the time of the events giving rise to the proceedings described below, the “Hang-Around Club” of the Hells Angels. On 8 November 1997 it became a Prospect Club of the latter and, as from 8 May 1999, a “Chapter”. The fifth applicant was a member of Hells Angels in Oslo.
8. On 18 March 2002 the applicants, along with two other defendants, B. and M., were indicted (count I) under Article 148 (1) (second alternative) of the Penal Code for having instigated fire or explosion capable of causing loss of human life and extensive material damage and resulting in death, or for aiding and abetting in this. On Wednesday, 4 June 1997 at around 11.45 pm in Drammen, they had, after having planned the operation, blown up parts of the club house in 25, Konnerud Street, of another motor cycle club, named Bandidos. A Volkswagen Transporter had been placed in the latter's courtyard, loaded with explosives that were detonated. The force of the explosion had been such that metal and rubber parts of the vehicle had hit and killed the driver of a passing car. The building in question had in part subsided and a massive fire had broken out, putting at risk the lives of three persons inside the building. The building had burned down to the ground and a neighbouring property had been severely damaged, several vehicles had been totally or largely destroyed. The total damage had amounted to at least NOK 2,000,000. Moreover, the applicants were indicted (count II) under Article 161(1) and (2) for the acquisition, confection or storage of explosives, or for aiding or abetting thereto, with the knowledge that the explosives had been intended to be used for the commission of the offence described under count I above, during the period before 4 June 1997. Furthermore, the applicants were indicted (count III) under Articles 291 and 292 for aggravated offences of serious material damage in respect of 25, Konnerud Street and a number of properties adjacent to or in the vicinity thereof, amounting to NOK 285,386,387 (approximately EUR 40 million).
9. By a judgment of 10 June 2002, the Drammen City Court (tingrett) acquitted the first, second and third applicants of counts I and II but convicted them of count III and sentenced each of them to 3 years' imprisonment. The fourth applicant was acquitted of count II but convicted of counts I and III and sentenced to 8 years' imprisonment. For each of them the time spent in pre-trial detention was to be deducted. The fifth applicant was acquitted of all the charges.
10. The two co-defendants, B. and M., were convicted of all the charges and were sentenced respectively to 10 and 5 years' imprisonment.
11. On 1 July 2002 the Borgarting High Court (lagmannsrett), sitting with three judges, including Judge G., rejected an appeal by the fourth applicant against a decision of 10 June 2002 by the City Court to prolong his provisional detention. The decision included the following reasons:
“The City Court has ordered detention of [the fourth applicant] on the ground of danger of evasion, see Article 171 (1) no. 1 of the Code of Criminal Procedure, and the defence counsel's first supporting letter concerned imprisonment on this ground. The High Court found it correct to assess whether there were grounds for imprisonment on the basis of law enforcement considerations pursuant to Article 172, and notified the defence counsel and prosecutor of this by telephone. The defence counsel's second supporting letter concerns this issue.
According to the City Court's convicting judgment, the basic condition for remanding the prisoner in custody pursuant to Article 171 (1) [...] on ground of reasonable suspicion has been fulfilled. The High Court does not find it necessary to consider whether the danger of evasion ought to lead to imprisonment, but points out that if [the fourth applicant] does not attend court for the hearing of the appeal, his conviction will remain in force. This, and his personal circumstances as described by the defence counsel, are factors which indicate that the danger of evasion is not sufficiently great.
The defence counsel has stated that the basic condition for imprisonment pursuant to Article 172 [...], namely the existence of factors which particularly strengthen the suspicion, has not been met and has alleged that the conviction is based on the statement of a co-defendant which is contradicted by other statements and evidence. The High Court bases its judgment, as in the Borgarting High Court's ruling of 28 June 2001 in the Orderud case (appeal case 01-02109) on the fact that when there is a convicting judgment, the qualified requirement of suspicion stated in Article 172 has usually been fulfilled. It is true that in that case this was not contested by the defence counsel, nor during the subsequent hearing by the Appeals Leave Committee of the Supreme Court (see Norsk Retstidende (“Rt”) 2001, page 940), but this is a matter the courts must consider of their own motion. In the High Court's opinion, there are no grounds for taking a different view in this case either. The basic condition stated in Article 172 is regarded as having been met.
As regards the discretionary decision regarding whether imprisonment under Article 172 should take place, the High Court refers to the extensive discussions in the case mentioned above. The present case was widely covered by the media just after the explosion, regularly during the subsequent period, and later in connection with the arrest and the City Court proceedings. It appears from the judgment that this was a planned crime, within the meaning of section 148 of the Penal Code, organised by several persons where a passer-by lost her life. The explosion took place in a town and could easily have led to the loss of more lives. Damage amounting to great sums was caused. The City Court based its ruling on the fact that the matter arose out of rivalry between two Motor Cyclist milieus. The High Court adds, as a factor when assessing the case pursuant to Article 172, that this rivalry in Nordic countries has led to a number of violent confrontations, including several deaths. This case is undoubtedly likely to cause such a reaction among the general public as Article 172 is intended to counteract and must be said to lie in the core area for the application of this provision. On the basis of an overall assessment, the High Court has found that the law enforcement considerations which form the basis of Article 172 are so prominent here that the accused should remain in prison also after judgment. The accused's personal and family circumstances pointed out by the defence counsel cannot be given sufficient weight in the opposite direction, and continued imprisonment cannot be said to be a disproportionate measure under Article 170A.
The decisions by the Appeals Leave Committee of the Supreme Court to which the defence counsel has referred – reported in Rt 1994, page 88, Rt 1998, page 470, Rt 1999, page 2102, and Rt 2000, page 1136 - cannot lead to any different result. The High Court has also considered decisions included in Rt 2000, page 371, page 1664 and page 1905.
Unless it is of importance for the decision regarding whether or not the accused is to be released, especially in relation to the consideration of proportionality, where the accused is placed during the remand period is outside the High Court's control. The regime he is now subject to is found to be of no importance to the High Court's assessment.”
12. The first, second and third applicants appealed to the High Court against the City Court's assessment of facts concerning the question of guilt and the application of the law with respect to count III. The fourth applicant appealed against the assessment of facts concerning the question of guilt, the application of the law and sentencing with regard to counts I and III. The prosecution appealed against the acquittals of the first, second and third applicants on count II and that of the fifth applicant's acquittal on counts I and III.
M did not appeal whereas B only pursued an appeal against the sentence which the High Court dismissed by a separate decision of 5 February 2003.
13. As for the appeal brought by the applicants, the High Court held an oral hearing between 24 February and 21 March 2003. The High Court was sitting with a jury of 11 members (reduced to 10 on the fifth day as one of the jury members was disqualified, see below) and with 3 professional judges, one of whom was Judge G. In the questions put to the jury the offences were described in the way set out in the indictment. The jury answered all the questions in the affirmative, except for one regarding count II with respect to the fourth applicant. The professional judges decided to pass judgment on the basis of the jury's verdict (Article 376B, first section, of the Code or Criminal Procedure) and, by a judgment of 24 March 2003, convicted all five applicants on counts I and III.
14. Thereafter, the High Court, composed of the three professional judges, the jury chairperson and three other jurors drawn by lots among the jury (Article 376E of the Code or Criminal Procedure), unanimously sentenced the first, second and third applicants to 6 years' imprisonment and the fourth and fifth applicants to 12 and 16 years, respectively. For each applicant, the number of days spent in provisional detention was to be deducted from the sentence.
Finally, the three professional judges awarded NOK 120,000 in compensation for non-pecuniary damage to the husband of the woman killed by the explosion.
The issue of compensation for pecuniary damage was postponed.
15. The applicants all appealed to the Supreme Court against the High Court procedure and the sentences. As regards the former appeal ground they all argued that they had not been afforded an impartial hearing before the High Court.
16. Firstly, they argued that Judge G. had taken part in the High Court decision of 1 July 2002 rejecting an appeal against a prolongation by the City Court of the fourth applicant's provisional detention. Unlike the City Court, which had applied the ordinary grounds for such detention in Article 171 of the Code of Criminal Procedure, the High Court had applied a special ground contained in Article 172, which authorised such detention, even if the ordinary grounds under Article 171 were not fulfilled, namely where it concerned an offence punishable by imprisonment for 10 years or more and provided that there was a confession or (as found here) other circumstances which strengthen particularly the suspicion (som i særlig grad styrker mistanken) against the defendant. The decision of 1 July 2002, it was argued, had also had implications for the other defendants.
17. Secondly, they submitted that on the fifth day of the trial hearing, after having taken part for four full hearing days, a member of the jury had stated that on 10 July 1997 she had made a witness statement to the police that related to the case. Her name had not been included on the list of witnesses. The High Court had then discharged the jury member in question and had continued the trial, despite a request by the defence to postpone it and to have the case tried by a differently composed court.
18. However, on 25 September 2003 the Supreme Court unanimously rejected both appeal grounds, on procedure and sentencing, subject to certain adjustments to the number of days to be deducted on account of provisional detention. The first voting judge, Mr Justice Støle, gave inter alia the following reasons:
“(13) I will first deal with the allegation that High Court judge, Judge G., was disqualified. ...
(14) From the outset, I find reason to point out that our rules of procedure for criminal cases in a High Court that sits with a jury are based on a distribution of functions. The decision regarding the question of guilt is the jury's alone, while the court proceedings are determined by the High Court's three professional judges. These decide on the issue of sentencing together with the jury's foreman and three members of the jury. In cases that are heard and ruled on in the first and second instance by a court sitting with professional judges and lay judges, the lay judges and professional judges have the same authority regarding all issues, which are decided on jointly.
(15) Following the landmark judgment by the European Court of Human Rights on 24 May 1989 in the case Hauschildt v. Denmark (application no. 10486/83) regarding disqualification by reason of prejudice due to participation in decisions regarding remand in custody, there is extensive Supreme Court case law on this. In criminal cases which at first and second instance are heard and decided on by a court sitting with professional and lay judges, a professional judge who has previously taken part in a remand case in which imprisonment has been ordered under Article 172 of the Code of Criminal Procedure is regarded as being disqualified and shall therefore not take part in any subsequent main hearing to determine, inter alia, the question of the guilt of the same accused in the same body of cases. In Rt1996261, the Supreme Court has stated that the same applies to the presiding judge in a High Court case involving a jury. The first voting judge stated, on page 265, the following regarding the relationship to section 108 of the Administration of Courts Act:
'As regards the relationship with section 108 of the Administration of Courts Act, I would point out: Article 172 of the Code of Criminal Procedure stipulates that there must be a very strong probability that the accused is guilty, see the wording of the section according to which, in the serious crimes covered, there must be 'a confession or other circumstances that strengthen the suspicion to a particularly high degree'. This is clearly a stronger suspicion than the one which is sufficient pursuant to Article 171 of the Code of Criminal Procedure, which stipulates 'reasonable grounds' for suspicion.'
(16) ...
(17) In the above-mentioned judgment, the question of imprisonment was decided during the investigation and without a conviction by any court. In Rt-1996-925, the presiding judge of the High Court was, with dissenting votes, also regarded as being disqualified in a situation where the order to remand the accused in custody pursuant to Article 172 of the Code of Criminal Procedure had been made after there was a conviction by a first instance court.
(18) In our case too, the relevant remand order had been made after a conviction by the court of first instance. But here the objection on the grounds of disqualification is not aimed at the presiding judge of the High Court, but at one of the other two professional judges who took part. It appears from what I have previously quoted from the first voting judge's vote in Rt-1996-261, that the emphasis was placed on the fact that the presiding judge in a jury case had a key function, with particular emphasis on his/her instructions to the jury, in which the evidence in the case was regularly reviewed. The question now is whether the other professional judges in a High Court that is convened with a jury are to be regarded as disqualified under section 108 of the Administration of Courts Act due to the fact that they have previously been involved in applying Article 172 of the Code of Criminal Procedure as a basis for imprisoning one or more of the accused in the same criminal case.
(19) I find that there are insufficient grounds for regarding the other professional judges as being disqualified in such a situation, and refer to what I have already stated about the distribution of functions in criminal cases that are heard by a jury. It is for the presiding judge to give instructions to the jury, see Article 368 (2) of the Code of Criminal Procedure, and this is his responsibility alone. It is true that all the professional judges take part in the subsequent assessment of whether the jury's decision is to form the basis of the judgment, or in exceptional cases be set aside, see Articles 376A, 376B and 376C of the Code of Criminal Procedure. However, such a setting aside of decisions does not determine the question of guilt and is also so exceptional that, in my opinion, it cannot be given any significance worth mentioning in this context.
(20) ...
(21) My conclusion is thus that Judge G. of the High Court was not disqualified.
(22) I will now deal with the allegation that the jury members were disqualified. The factual basis for this allegation is as follows:
(23) W. went to the police at an early stage of the investigations, due to a newspaper article on 9 July 1997 which described, inter alia, the car that was used in the explosion. She believed she had seen such a car on two occasions at the Statoil petrol station on the E-18 near Lier toll station, on Saturday 30 May and on Wednesday 4 June 1997, when the explosion took place. She gave a statement regarding this to one of the detectives on Thursday 10 July 1997. When questioned by the police, she described three people she had seen both near the car and inside the shop, and stated she believed she had seen that one of them was carrying a black petrol can. She also stated what she believed she remembered of the car's licence number.
(24) When the High Court's presiding judge discussed the impartiality rules with the jury members on the first day in court, on 24 February 2003, W. did not give any account of her previous statement to the police. She had not heard any more from the police and was not on the list of witnesses. The jury was constituted with 11 members, according to Article 355 (2) of the Code of Criminal Procedure.
(25) After the hearing had been adjourned on 27 February 2003, juror W. contacted a policeman she knew and asked if she could sit on the jury even though she had been questioned by the police on one occasion. This question was then put to the public prosecutor, and the matter was made known to the High Court when it convened on 28 February 2003. Her statement to the police, which was given on 10 July 1997, was read out and the parties were given the opportunity to make a statement. The High Court thereafter ordered that W. was to withdraw from the jury, and stated:
'It has become known that jury member W. gave a statement to the police on 10 June [presumably July] 1997. She has not been called as a witness in the case, and her impartiality must be assessed under section 108 of the Courts Act. According to this provision, no one can be a jury member if there are special circumstances that may weaken confidence in the impartiality of the person concerned. All the defence counsel have petitioned for her to withdraw and have also stated that the entire jury is disqualified.
The High Court finds that such special circumstances exist in this case. It bases its decision on the fact that the jury member reported to the police as a witness and told the police about her observations in close connection to the day of the explosion. Her observations are of such a nature that it can be questioned whether she is impartial in this case.
However, the High Court does not find that the jury member may, by having possibly stated her observations to the other members of the jury, have influenced the other jury members so that they are disqualified. It must be assumed that the jury members will be able to disregard any information she may have told the jury, as they are assumed to be able to disregard other information on the case that has arisen outside the court room, for example in the media.'
(26) After this, W. withdrew from the jury and the hearing continued with the remaining 10 jury members.
(27) I agree with the High Court that W. was prejudiced. The question is then whether the other 10 members of the jury became prejudiced as a result of W. serving on the jury for the four first days of the hearing.
(28) ...
(29) ...
(30) ...
(31) ...
(32) What is decisive for our case is therefore whether the aforementioned matter can be regarded as a procedural error that may be considered pursuant to the provision stated in Article 343 (1) of the Code of Criminal Procedure. The question here is whether W.'s presence as a member of the jury during the first four days of the hearing may have influenced the jury's verdict.
(33) The defence counsel have alleged to the Supreme Court that the High Court has, in its reasons for regarding the other jury members as being impartial, incorrectly treated any information from W. on the same footing as information on the case that arose outside the court room, for example in the media. I agree that, when considering the impartiality issue, one cannot always treat these matters as being equal. The jury members will regularly be told by the presiding judge that, when deciding on the question of guilt, they must only place emphasis on what is stated as evidence in court, and that they must not discuss the case with third parties. There is no corresponding barrier to the jury members discussing the case among themselves – even continuously during the court hearing – and it is realistic to expect that this actually happens to a certain extent.
(34) ...
(35) When I nonetheless have decided that the jury members cannot be regarded as having been disqualified to serve as a result of jury member W.'s disqualification, I have placed decisive emphasis on the following: the statements that the foreperson of the jury and W. have given to the police for use in the Supreme Court do not provide any basis for assuming that she had given the other members of the jury factual information regarding her private knowledge of the case or in any other way influenced the others before she withdrew on 28 February 2003. I refer to the fact that W. was at no time called as a witness in the case, by either the prosecuting authority or the defendants. The prosecutor has stated to the Supreme Court that the observations she had told to the police on 10 July 1997 – including about parts of the vehicle in question's licence number – were clarified early on as being of no importance to the further investigation.
(36) The jury foreperson has explained that the situation that arose after W. had withdrawn was discussed by the jury members and that they agreed that her participation during the first few days had not had any effect on the jury's verdict.
(37) Accordingly, I cannot see that W.'s presence as a member of the jury during the introductory presentation of evidence in the first days of the hearing can be regarded as a procedural error to which Article 343 (1) of the Code of Criminal Procedure applies.”
19. Rules on the impartiality of judges and jurors are set out in sections 106 to 108 of the Administration of Courts Act (domstolloven - Law of 13 August 1915 no. 5). In the present case, the national courts relied in particular on section 108, which reads:
Section 108
“Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken the confidence in his impartiality. This applies in particular if a party requests that he withdraws on this ground.”
20. The conditions for provisional detention were set out in Articles 171 and 172 of the Code of Criminal Procedure, the relevant parts of which provided:
Article 171
“Any person who on reasonable ground is suspected of one or more acts which according to statute is or are punishable with more than 6 months' imprisonment, may be arrested if:
1) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautionary measures,
2) there is an immediate risk that he will spoil the evidence in the case, e.g. by removing clues or influencing witnesses or accomplices,
3) it is deemed to be necessary in order to prevent him from re-committing a criminal act punishable by ore than 6 months' imprisonment,
4) he himself has requested it for reasons that are found to be satisfactory.
...”
Article 172
“When a person is suspected of
a crime punishable by imprisonment for 10 years or more, or of an attempt to commit such a crime, or
a criminal offence under Articles 228 (2), second alternative, see Article 232, Article 229 second alternative, see Article 232, or Article 229 third alternative, s/he may be arrested even if the conditions in Article 171 are not fulfilled, provided that s/he has made a confession or there are other circumstances which to a particularly high degree strengthen the suspicion. In the assessment emphasis shall be placed particularly on whether it would provoke the public's perceptions of justice or create insecurity if the suspect is at large. Any increase of the maximum penalty because of any repetition or concurrence of offences shall not be taken into account.”
21. The relationship between Article 172 of the Code of Criminal Procedure and section 108 of the Administration of Court Act was dealt with by the Norwegian Supreme Court in a landmark judgment reported in Rt 1996-261, several passages of which were quoted in the Supreme Court's judgment in the present case (see paragraph 18 above, paragraph (15) of the Supreme Court's judgment). In another part of the 1996 judgment, the Supreme Court took note of a Circular (G-140/89) issued by the Ministry of Justice informing the national courts about the Haushcildt judgment. It quoted inter alia the following statement, with respect to the High Court proceedings conducted without a jury:
“A decision on detention on remand is normally taken by the district-or city court ... However, if the High Court has examined the question of detention on remand under Article 172, the same judge may not take part in the decision on the question of guilt under the main hearing.”
22. The following provisions of the Code of Criminal Procedure pertaining to jury trials are of relevance:
Article 355
“... Before the hearing begins, the president of the court shall ascertain whether any of the jurors or their deputies are disqualified, cf. section 115 of the Courts of Justice Act.”
Article 359
“The President of the court shall inform the members of the jury of the course of the court proceedings and of the jury's tasks and responsibility. He shall especially impress on the members of the jury that until the verdict of the jury has finally been pronounced, they must not have any discussion or contact with any person other than the court as regards the case, and that they must not without the permission of the President of the court leave the conference room after they have retired to answer the questions put to them.”
Article 360
“The President of the court shall then ask the members of the jury: 'Do you affirm that you will pay close attention to the whole proceedings in the court and answer the questions that will be submitted to you as truthfully and justly as you can according to the law and the evidence in the case?' The members of the jury standing and each in turn shall answer: 'I do so affirm.' ...”
Article 363
“After the production of evidence relating to the issue of guilt is completed, the prosecutor shall submit a draft of the questions to be put to the jury. Defence counsel shall be given an opportunity to comment on the said draft. When required, a short adjournment shall be granted in order to study the draft.
The President of the court shall formulate the questions and submit them to the parties. If any of them raises any objection to the questions, the court shall decide the matter.”
Article 368
“When the questions have been defined, the President of the court shall read them aloud. Each member of the jury shall receive a transcript of the questions.
The President of the court shall sum up the evidence in the case and explain the questions and the legal principles applicable.
The parties may request further explanation on specific points. They may also submit proposals concerning amendments to the questions.
The parties may require that specially indicated parts of the explanation of the legal principles shall be entered in the court record. Any such application must be submitted before the jury has retired to consider its verdict, see Article 369.”
Article 369
“The jury shall then retire to a secluded room to consider its verdict. The jury shall take with it the written list of questions signed by the President of the court.
When retiring to consider its verdict the jury may take with it pictures, drawings, maps, and other objects that have been produced during the main hearing. The jury may also take with it written exhibits and other written evidence that has been produced when the court finds this appropriate. As a general rule, the jury should not be permitted to take with it statements previously made by the person indicted, witnesses or experts.”
Article 370
“The foreperson of the jury shall be in charge of the jury's consideration of its verdict.
If the jury finds that it needs further clarification of the questions, of the legal principles applicable, or of the procedure to be followed, or if it finds that the questions should be amended or that new questions be put, it shall return to the courtroom so that the President of the court may do what is required. The jury may summon the President of the court in order to receive guidance concerning the questions referred to in the first sentence.
If it is to be decided whether the questions are to be amended or new questions put, the parties shall be given the opportunity to express their views.”
Article 371
“When it has finished considering its verdict, the jury shall under the leadership of its foreperson vote on the individual questions in the order in which they are put. ...”
Article 373
“After the voting the members of the jury shall return to their places in the courtroom. The foreperson shall rise and say: 'The jury has on its honour and in good conscience given the following answers to the questions that have been put.' He shall then read aloud the answers that have been given to each of the questions.
The foreperson shall deliver the written list of questions and the signed answers to the court.”
23. Under Articles 376, 376A, 376B and 376C of the Code of Criminal Procedure, the professional judges shall pronounce judgment in accordance with the jury's verdict, unless they decide differently on the conditions set out in these provisions. The professional judges may set aside a jury verdict concluding with the indicted person being found not guilty, if they find that he is undoubtedly guilty (Article 376A) and may also set aside a “guilty” verdict, if they find that insufficient evidence has been produced (Article 376C). In both situations the case is tried anew by other judges in a composite court. Article 376C reads:
Article 376C
“If the jury's verdict is that the person indicted is guilty, but the court finds that insufficient evidence of his guilt has been produced, the court may decide that the case shall be retried before other judges. The provisions of Article 376A, first paragraph, final sentence, and second and third paragraphs, shall apply correspondingly.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93550
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LACZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicants, Mr Stanisław Łącz and Mrs Elżbieta Łącz (the second applicant), are Polish nationals who were born in 1948 and 1952 respectively and live in Grodzisk Mazowiecki. They were represented before the Court by Mr W. Hermeliński, and subsequently by Ms A. Metelska, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 July 1999 the applicants acquired from a third party a plot of land with a surface area of 7,100 sq. m (of which 6,500 sq. m was classified as agricultural land) and a house situated on it located in the municipality of Grodzisk Mazowiecki, settlement Odrano Wola. Relevant excerpts from the local development plan were appended to the contract.
According to the relevant local development plan which was adopted on 15 September 1993 almost the entire property in question was designated for the construction of a ring road.
In 2000 or 2001 the second applicant’s health significantly deteriorated. In addition, the applicants’ grandchild had a stroke. Consequently, they decided to sell part of their property in order to pay for the medical treatment of the second applicant and their grandchild. They also wanted to finance their son’s higher education. However, a number of potential buyers, having learnt about the lack of possibilities to develop the land, lost interest in the property.
On 23 February 2001 the applicants requested the Mayor of Grodzisk Mazowiecki to clarify whether the ring road would be constructed and informed him about their difficult financial situation and unsuccessful attempts to sell part of their property to pay off their debts.
On 8 May 2001 the Mayor informed them that the construction of the ring road was not foreseen in the municipality investment plan. He further pointed out that due to the scale of the construction and the character of the ring road, its construction would most likely be financed from the budget of the regional governor or the Government. In those circumstances, the Municipality’s budget could not bear the expenses related to the acquisition of the applicants’ land.
Subsequently, the applicants made an enquiry with the Office of the Marshal of the Mazowiecki Region.
On 6 September 2001 they were informed that the construction of the ring road as part of the regional road no. 719 was still expected; however, due to limited financial resources no date for that construction had yet been fixed. Furthermore, the applicants were informed that there were no immediate plans to purchase the properties designated in the local development plan for the construction of the ring road. Lastly, the Office of the Marshal requested the Mayor of Grodzisk Mazowiecki to consider providing the applicants with an alternative plot of land.
On 28 September 2001, in reply to that latter request, the Mayor informed the applicants that he was unable to offer them an alternative plot of land.
Subsequently, the applicants made a new enquiry with the Office of the Marshal of the Mazowiecki Region. On 29 November 2001 they were informed that no date for the construction of the ring road has been fixed, but that it would certainly not be constructed in 2001-2006.
In reply to the applicants’ further query, on 3 April 2002 the Mayor informed them that their requests for acquisition of their property had been examined by the Municipal Board on a few occasions. However, in view of the scope of the planned development of their land (regional road), the Municipality could not bear any expenses related to the acquisition of their property.
On 12 April 2002 the applicants petitioned the Ombudsman. On 9 May 2002 the Ombudsman informed them that since 1989 he had monitored the legal status of properties which, according to the local development plans, had been designated for future public use; however, they were put to such use only after many years (the so-called “frozen plots”). In particular, he challenged before the Constitutional Court section 68 § 1 of the 1994 Local Planning Act which had restricted the owners’ possibility to receive compensation for reduction in the value of their properties and to acquire land or to exchange it in cases where the use of property was not feasible or significantly impaired, following the adoption of a local development plan. However, the Constitutional Court held that the contested provision was compatible with the Constitution (case no. K 6/95). He further informed the applicants that provided that no further statutory extension of the validity of the old development plans was granted, they would be able to have recourse to section 36 of the 1994 Local Planning Act.
On 20 May 2003 the Marshal Office informed the Mayor that it was not possible in 2003 to finance the purchase of properties designated for the ring road.
On 31 December 2003 the relevant local development plan expired.
On 26 January 2005 the applicants requested the Municipality to provide them with information as to the future development of their land.
On 1 February 2005 they were informed that no local development plan had been adopted in respect of their land. Since the development plan determined the future use of land, no development of the applicants’ property was allowed until such time as the relevant plan was adopted. Furthermore, the applicants were informed that according to the local development plan which was in force until 31 December 2003 their land was designated for the construction of a regional road.
It appears that as of June 2005 the Municipality of Grodzisk Mazowiecki had not yet adopted a local development plan in respect of the applicants’ land.
From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning.
On 1 January 1995 the Law of 7 July 1994 on Local Planning (“the 1994 Act”) entered into force.
Section 36 of the 1994 Act provided that in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired, the owner of such property was to be granted certain rights against the municipality. The owner could either (1) claim compensation for the damage actually incurred, or (2) claim that the property be acquired by the municipality, or (3) that he/she be provided with an alternative property. Section 36 of the 1994 Act was the first provision in the post-war period which provided for some compensatory measures in favour of the owners of properties who were negatively affected by the local development plans. However, section 68 of the 1994 Act stipulated that those provisions would be applicable only in respect of those local development plans that were adopted after the Act entered into force (i.e. 1 January 1995).
Pursuant to section 67 the 1994 Act, the development plans adopted before the date of its entry into force were to expire on 31 December 1999 at the latest. Subsequently, in 1999 and 2001 the parliament extended the validity of the old development plans until the end of 2001 and the end of 2002 respectively.
The 1994 Act was repealed by the Law of 27 March 2003 on Local Planning (“the 2003 Act”) which entered into force on 11 July 2003. Section 87 § 3 of the 2003 Act stipulated that local development plans adopted before 1 January 1995 remained valid, but only until 31 December 2003.
Section 36 of the 2003 Act afforded the owners concerned comparable rights against the municipality to those under the 1994 Act in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired.
In March 1995 the Ombudsman made an application to the Constitutional Court, challenging the constitutionality of section 68 read in conjunction with section 36 of the 1994 Act. He alleged that those provisions contravened the constitutional principle of the rule of law, the principle of equality and the right of property. In particular, the Ombudsman challenged the prohibition on filing claims provided by section 36 of the 1994 Act in respect of those owners who had been negatively affected by the development plans adopted before 1 January 1995.
On 5 December 1995 the Constitutional Court dismissed the Ombudsman’s application. In respect of the alleged breach of the constitutional right of property, the Constitutional Court considered that the right of property was not absolute, and that in any event the presumption in favour of constitutionality of the impugned provisions had not been rebutted.


ITEMID: 001-94295
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PROCEDO CAPITAL CORPORATION v. NORWAY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The present application has its background in a civil dispute over securities dealings between Procedo Capital Corporation (hereinafter referred to as “Procedo”) and a Norwegian securities broker, Sundal Collier, based in Norway. In October 1998 the latter brought proceedings against the former before the Oslo City Court (tingrett), requesting an order that the applicant company pay an amount of 18,481,808 Norwegian kroner (NOK) plus interest in respect of shares Sundal Collier had purchased for the applicant company. The applicant company, which received the summons in December 1999, contested the action and brought a counter-action requesting an order that Sundal Collier pay compensation, the amount of which was to be determined in subsequent proceedings, with regard to losses sustained by the applicant company due to information and advice received from Sundal Collier.
7. By a judgment of 4 January 2002, the City Court ordered the applicant company to pay Sundal Collier NOK 18,131,808 plus interest and dismissed any claim against the latter. Each party was to bear its own costs.
8. The applicant company then lodged an appeal with the Borgarting High Court (lagmannsrett).
9. In its appeal to the High Court the applicant company requested that, as had been done before the City Court, adjudication in the counter-action, notably concerning the amount of the applicant company’s counter-claim and related causation issues, be disjoined in accordance with Article 151 § 2 of the Code of Civil Procedure. Pursuant to that provision, separate proceedings were contingent on the other party’s agreement. After a preparatory meeting and exchanges of written pleadings on the issue, Mr Justice Minsaas, acting as the rapporteur judge of the High Court, decided on 18 December 2002 not to disjoin either the proceedings or the adjudication, finding insufficient basis for an agreement between the parties to this effect.
10. At the preparatory stage the High Court decided, in view of the financial character of the subject matter, to sit with two lay members with expertise in financial matters and invited the parties to propose candidates. The applicant company did not make any proposal. Sundal Collier proposed Mr Abrahamsen (hereinafter referred to as “Mr A.” or “lay member A.”), an economist, and the applicant company did not object within the set time-limit.
11. On 14 March 2003 the High Court appointed Mr A. as lay member, after having specified the impartiality requirement, and informed the parties about the prospective appointment of a second lay member, Mr D., an economist. However, since it turned out that Mr D. did not satisfy the impartiality requirement, he was replaced by Mr Bonnevie (hereinafter referred to as “Mr B.” or “lay member B.”), a chartered accountant.
12. In the meantime the applicant company appealed against the High Court’s decision of 14 March 2003 to the Appeals Leave Committee of the Supreme Court disputing the necessity and desirability of appointing lay members in general. It also contested the procedure whereby Mr A. had been appointed on the proposal of Sundal Collier and not on a joint proposal by the parties. The applicant company questioned whether Mr A.’s professional background made him suitable as an expert in the case. On 15 May 2003 the Committee upheld the High Court’s decision, finding that the appeal had no prospects of success.
13. The High Court held an oral hearing over nineteen days or so between 14 October and 13 November 2003 at which each party was represented by counsel and an assistant lawyer. From the outset it was composed of three professional judges – Mr Justice Omsted, President, Mr Justice Bøhn and Mr Justice Nesheim, ad hoc judge – and two expert lay judges, Mr A. and Mr B.
14. There were no objections to the composition of the High Court at the opening of the hearing on 14 October 2003 (section 115 of the Administration of Courts Act (domstolloven) - Law of 13 August 1915 no. 5, see paragraph 36 below). On that date and on 15, 16 and 20 October 2003 the lawyers for the applicant company made their opening address.
15. On the last-mentioned date the Presiding Judge of the High Court drew the parties’ attention to the fact that it was considering whether (as requested by the applicant company – see paragraph 9 above) it would be appropriate to disjoin the proceedings, as provided for in Article 98 § 2 of the 1915 Code of Civil Procedure (Tvistemålsloven), in respect of point 1 of the counter-action and invited the parties to give further consideration to the matter.
16. In the morning of 21 October 2003 counsel for the applicant company continued his address and entered his plea. Thereafter the assistant lawyer for the respondent began his opening address. At some point during this address lay member Mr A. informed the parties that, in his capacity as an employee of PricewaterhouseCoopers, he had been involved in an assignment for ABG Sundal Collier and First Securities in connection with the listing of a company on the stock exchange. The parties gave notice that they wished to consider this matter in further detail and to revert later to the question whether Mr A. should be able to sit in the case.
17. Before adjourning the proceedings on 21 October 2003, the Presiding Judge provided the parties with further information on the question of disjoining the proceedings with regard to the first point of the counter-action. The parties were asked to give their final comments on this question before counsel for the respondent commenced his opening address in respect of the counter-action.
18. When the proceedings resumed on the following day, 22 October 2003, the Presiding Judge opened by taking up the question of the eligibility of Mr A. in response to the pleadings on this subject submitted by the applicant company’s lawyer. Mr A. then provided further details of his relationship with ABG Sundal Collier. Since some of the questions raised by the applicant company required further investigation by ABG Sundal Collier, it was agreed that the issue of the lay member’s ability to take part in the case should be adjourned until the following day.
The assistant lawyer for the respondent then continued his opening address and entered his pleas.
The Presiding Judge informed the parties that the Court intended to rule on the various procedural questions raised in the case the next day.
19. When the proceedings resumed in the morning of the following day, 23 October 2003, counsel for the applicant company asked that Mr A. be absent from the pleadings regarding his eligibility. The High Court adjourned briefly to consider the question and, when the proceedings resumed, decided that Mr A. should not take part in the subsequent exchanges on the question.
20. Counsel for each of the parties then made submissions on the question of eligibility with reference to section 108 of the Administration of Courts Act.
21. The parties were then given the opportunity to argue their views on the question of disjoining the proceedings as provided for in Article 98 § 2 of the Code of Civil Procedure.
22. At 12.30 p.m. the High Court adjourned the proceedings until the afternoon and withdrew to deliberate and vote in camera on the questions of eligibility and disjoinder.
23. At 3 p.m. on the same day (23 October 2003) the High Court convened again, sitting with the professional judges and lay member Mr B. The High Court delivered two decisions, signed by the three professional judges and lay member Mr B., but not by lay member Mr A., who had not taken part.
24. The first decision concerned the disqualification matter, in which the High Court observed inter alia:
“During the appeal proceedings lay member [Mr A.], who is an economist, remembered a circumstance that he thought appropriate to mention to the other members of the bench and which was then passed on to the parties.
[Mr A.] is a partner in PricewaterhouseCoopers DA. At the time of writing this company is engaged in an assignment for ABG Sundal Collier Norge ASA (referred to hereafter as ABG Sundal Collier), the parent company of one of the parties in this case, Sundal Collier & Co ASA. In collaboration with a second company, First Securities ASA, ABG Sundal Collier has undertaken a consultancy assignment for a company seeking to be listed on the Oslo Stock Exchange. PricewaterhouseCoopers’ assignment consists of providing certain auditing and accounting services in connection with the stock-exchange launch. The assignment was given last spring following a tendering competition and, according to the information provided, most of the work on the assignment is being performed by PricewaterhouseCoopers’ Bergen office. [Mr A] has been entrusted with the task of providing advice in connection with the assignment and will thus be one of the people who will provide the services in question. In this context he has also had some direct contact with a representative of ABG Sundal Collier. According to the submitted documents, the fee for the assignment will be approximately NOK 300,000. The assignment has not yet been completed. The company seeking listing will ultimately be liable for payment to PricewaterhouseCoopers.
After [Mr A.] had explained the situation, the [applicant company] requested further information from the opposing party and the parties subsequently exchanged pleadings on the question of eligibility. At today’s hearing Advocate Gade, acting for [the applicant company], filed an objection to the eligibility of lay member [Mr A.]. The parties were given the opportunity to comment on the question. [Mr A.] was not present in court during the submissions and decision on the question of his eligibility.
[The applicant company] argues that lay member [Mr A.] is disqualified pursuant to section 108 of the Administration of Courts Act. The company refers, among other things, to the information that PricewaterhouseCoopers has obtained approximately six per cent of the commissions carried out for ABG Sundal Collier during the last three years. A commission concerning a stock market introduction is very prestigious and is currently a rare occurrence. It is obvious that PricewaterhouseCoopers has considerable interest in obtaining this type and other kinds of assignments from ABG Sundal Collier, a main actor in this market. As a partner in PricewaterhouseCoopers, [Mr A.] has a direct financial interest in the company’s income and future income potential. What is decisive is how this matter would appear to the public. The counter-action in the case concerns a considerable compensation claim against Sundal Collier & Co ASA. According to the information available, there is currently no activity in this company, and it is obvious that, for the purposes of the impartiality issue, this company ought to be identified with ABG Sundal Collier, which has continued the daughter company’s activity. There is clearly too close a connection between [Mr A.] and the respondent for [Mr A.] to serve as a judge in the case. A further disqualifying circumstance is that [Mr E.] of ABG Sundal Collier is a central witness in the case with regard to the question whether [the applicant company’s] representative during a meeting with Sundal Collier & Co ASA, attended by [Mr E.], made statements which could provide a basis for demanding confiscation of assets. It is untenable for [Mr A.] to assess whether the witness statement from a person with whom he has a relationship of continuous professional cooperation is valid.
At the preparatory stage [the applicant company] was particularly concerned about the need for any lay members appointed to have sufficient independence from the parties and in this connection the company pointed to the close business relations between the large companies in the financial sector. It should also be emphasised that the law firm of counsel for the respondent carried out commissions for ABG Sundal Collier in connection with the stock market introduction. ...
Sundal Collier & Co ASA claim that lay member [Mr A.] is not disqualified from taking part in the case. His connection to the respondent in the appeal is too loose. This is illustrated by the fact that it never occurred to [Mr A.] in the beginning that there could be a ground for disqualifying him. The assignment in question is very small and [Mr A.] does not play a central role in it. His role is primarily to provide advice to PricewaterhouseCoopers’ office in Bergen, which is handling the consultancy. Bills and fees are addressed to ABG Sundal Collier and First Securities, but it is the company which is to be introduced on the stock market which will cover the costs. [Mr A.] does not have any daily or permanent dealing with the consultancy. This is a one-off consultancy consisting in objective accountancy considerations. [Mr A.] is not personally a contractual party and PricewaterhouseCoopers has no direct or indirect interest in the outcome of the court case. [Mr A.] will be removed from the consultancy. No one from counsel’s law firm who is directly involved in the case has been aware of the matter. The law firm has no commission for ABG Sundal Collier in connection with the stock market introduction but only for the company whose introduction is being sought.
The Norwegian financial milieu is small and there are very few large accountancy firms that are able to take on such consultancies. A strict interpretation of section 108 of the Administration of Courts Act would lead to a very narrow choice of competent lay members in cases where particular competence in finance and accountancy is required. ...
The High Court is of the view that there is nothing to suggest that lay member [Mr A.] is not fully able to reach an impartial decision in the case, notwithstanding the contractual relationship between ABG Sundal Collier and PricewaterhouseCoopers. It is noted that [Mr A.] himself did not view this relationship as a problem, and it was not until the second week of the proceedings that it occurred to him that he should mention the relationship. This is not decisive, however, since the question of disqualification must be considered on the basis of a more general assessment of what relationship between a lay member and a party will be deemed unacceptable pursuant to section 108 of the Administration of Courts Act.
The High Court notes that objections to the eligibility of the lay member have been entered by [the applicant company] and the court refers to [the applicant company]’s submissions as cited above. Having considered the matter in its entirety, the Court is of the view that, in the light of the circumstances, lay member [Mr A.] should withdraw.
The decision is unanimous.
Conclusion
[Mr A.] is ordered to withdraw.”
25. In the second decision the High Court decided to disjoin the proceedings:
“Having put the question to the parties of disjoining the proceedings as provided for in Article 98 § 2 of the Code of Civil Procedure, the Court unanimously decided with respect to the counter-action – item 2 of the [applicant company’s] statement of claim – that the following two questions should be considered first:
1. Whether, in the light of the negotiating situation between the parties, Sundal Collier & Co ASA were in breach of their obligations in relation to [the applicant company], in other words whether there was an obligation for SCC not to apply for attachment in Norway, Sweden and/or Luxembourg.
2. Whether there exist other fault-based or strict grounds for liability in connection with the applications for attachment in Norway, Sweden and Luxembourg.
The decision means that for the time being the court will not review questions relating to a causal link in respect of the alleged losses or the question whether there should be imputation of liability between the [the applicant company] and the company Plentius.
After the proceedings had been completed in accordance with this decision, the High Court ruled, following deliberations, that a decision should be rendered in both the primary and the counter-action on the basis of the decision adopted.
26. When the proceedings resumed on Monday 27 October 2003, counsel for the applicant company filed a motion for the case to be discontinued on the grounds of the High Court’s order of 23 October 2003 requiring lay member Mr A. to withdraw. Counsel for the respondent objected. Thereafter the Presiding Judge informed the parties that the High Court had unanimously decided that the proceedings should continue, as provided for in section 15(1) of the Administration of Courts Act (see paragraph 37 below). In this regard the High Court stated the following in its judgment of 22 January 2004:
“The disqualification of the lay member [Mr A.] did not disqualify the other judges and the need for expert evidence was safeguarded in the further proceedings.”
27. According to the transcripts of the High Court’s hearings, it subsequently heard the case from 28 to 30 October, 3 to 7 November and 10 to 13 November 2003.
28. In a decision of 17 November 2003 the High Court reiterated its decision of 23 October 2003 on the disjoinder of the proceedings and affirmed that the appeal proceedings had been conducted in accordance with this decision until 13 November 2003. It further stated that, after its deliberations held on 14 and 17 November 2003, it had decided to close the proceedings and adjudicate the case – both the principal action and the counter-action as it had been pleaded.
29. By a judgment of 22 January 2004, the High Court upheld the City Court’s judgment in the main and ordered the applicant company to pay specified amounts for Sundal Collier’s legal costs both before the City Court and the High Court.
30. According to the High Court’s judgment, at an unspecified time after the City Court’s judgment of 4 January 2002, Sundal Collier & Co ASA’s broker activity had been taken over by the parent company ABG Sundal Collier and since then the former company had had no economic activity.
31. The applicant company sought to appeal against the High Court’s procedure and judgment to the Supreme Court (Høyesterett).
32. As to the procedure, the applicant company argued that the High Court judgment ought to be quashed, notably on the ground that the court had been unlawfully constituted. This was due to the participation of lay member A., who had been disqualified under section 108 of the Administration of Courts Act (Article 384 § 2, item 2, of the 1915 Code of Civil Procedure). In the alternative, the applicant company maintained that lay member A.’s participation must have had an influence on the High Court judgment (Article 384 § 1). The proceedings had lasted for “seven” days by the time lay member A. was ordered to withdraw. The substantive questions concerned relatively old facts, which meant that the parties’ pleadings and the case documents would be central to the High Court’s determination of the case. Moreover, the respective decisions to disqualify lay member A. and disjoin the proceedings had been taken in the same court session. A decision to disjoin the proceedings presupposed that the judges had discussed the substance of the case, an issue that had been raised on the fourth day of the hearing already. In the further alternative, the applicant submitted that the High Court’s decision to continue the proceedings with reference to section 15 of the Administration of Courts Act after A.’s withdrawal had constituted an error of procedure.
33. The Court notes that in its notice of appeal of 8 April 2003 to the Appeals Leave Committee of the Supreme Court, the applicant company reiterated, inter alia, that it “had consistently argued in favour of disjoining the proceedings before the High Court, as had been done before the City Court, in accordance with Article 151 § 2 of the Code of Civil Procedure”.
34. On 16 July 2004 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant company leave to appeal with regard to the High Court’s procedure, finding it obvious that the appeal had no prospects of success. As for the remainder, the Committee refused the applicant company leave on the ground that the appeal represented no interest beyond the particular case and that no other reason warranted the appeal being heard by the Supreme Court.
35. The requirements of impartiality of judges and lay members are set out in sections 106 to 108 of the Administration of Courts Act (domstolloven) – Law of 13 August 1915 no. 5. In the present case, the national High Court relied on section 108, which reads:
Section 108
“Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken confidence in his impartiality. This applies in particular if a party requests that he withdraws on this ground.”
36. As for the procedure for handling questions of impartiality, the following provisions of the 1915 Act were relevant:
Section 111
“A party wishing to request that a person be excluded from taking part [in the proceedings] should do so as soon as he becomes aware of the matter which justifies the request.
He may no longer request exclusion pursuant to section 108 if he was aware of the particular circumstances but nonetheless proceeded to plead the case before the court.
The request may be submitted either orally or in writing and shall state the reasons relied on.
Section 115
“Before the hearing of the particular case begins, the president of the court shall inform the jurors or lay members that they are excluded from serving if they fall within any of the situations referred to in sections 106 or 107, or if, for their part, such circumstances exist as referred to in section 108, and he shall call upon them and the parties to disclose the fact if this should be the case.”
37. The 1915 Act contains the following provision on the possibility to continue a hearing in the event of a member’s inability to sit:
Section 15
“If any member of the court or jury is unable to attend after the main hearing has begun, the hearing may be continued without summoning a replacement provided that there is only one juror or lay member and only one judge less than the number normally required. Both in civil and criminal proceedings, a judge who, in accordance with section 12(1), may serve as the president of the court must always be present.
When the Court of Appeal is composed only of three professional judges, the proceedings may not be continued if any of them is unable to attend.”
38. Article 98 of the former Code of Civil Procedure (tvistemålsloven) – Law of 13 August 1915 no. 6, replaced with effect from 1 January 2008 by a new Code, stated:
Article 98
“The court may join one or more cases for combined hearing and in such case for joint ruling when the hearing of the case may thus be facilitated or accelerated and when at least one of the parties is the same in all of the cases.
The court may decide that there shall be a separate hearing concerning one or more claims combined into a single case or concerning individual issues in dispute concerning the same claim.
The decision of the court in accordance with this section may not be challenged or appealed.”
39. The above provision regulated the disjoinder of proceedings only, not the disjoinder of adjudications, which were governed by Article 151 § 2. The latter provision provided that in a case concerning a compensation claim or other claims the size of which was disputed, the adjudication of the size of the claim could, at the request of both parties, be adjourned.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72816
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MITZON v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Karl-Heinz Mitzon, is a German national who was born in 1956 and lives in Berlin. He is represented before the Court by Mr F. Lansnicker, a lawyer practising in Berlin.
Since 1985 the applicant lived as a tenant in a State-owned semidetached house in East-Berlin in the German Democratic Republic (”GDR”). The house’s former owner had left the GDR in 1961 and the house was subsequently seized and transferred into public property in 1969. On 7 March 1990 the GDR’s parliament (Volkskammer) passed a law that allowed the purchase of State-owned buildings. On 28 March 1990 the applicant acquired the house for the sum of GDR Marks 58,010. He was entered as the owner into the land register (Grundbuch) on 21 May 1990. On 11 September 1990 the former owner requested the house’s restitution under the Resolution of Outstanding Property Issues Act/Property Act (Gesetz über die Regelung offener Vermögensfragen / Vermögensgesetz – hereinafter called Property Act).
On 13 August 1991 the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung Offener Vermögensfragen) ordered the real estate’s restitution according to section 4 § 2 of the Property Act (see “Relevant domestic law and practice” below). It stated that the house had been acquired after the key date (Stichtag) of 18 October 1989 and should not have been authorised under GDR Law.
In return for the restitution the Land of Berlin was obliged to reimburse the applicant the purchase price of GDR Marks 58,010, converted into DEM 29,005 (EUR 14,830). On 4 December 1991 the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung Offener Vermögensfragen) rejected the applicant’s objection. On 16 June 1992 the Berlin Administrative Court confirmed those decisions, refusing the applicant leave to appeal on points of law.
Section 4 § 2 of the Property Act was amended by the second Property Rights Amendment Act (Zweites Vermögensrechtsänderungsgesetz) of 14 July 1992. It introduced exceptions to the key date regulation, thus allowing the new owners in certain cases to keep their property even if they had acquired it after 18 October 1989 (see “Relevant domestic law and practice” below).
The applicant then lodged a complaint against the refusal of leave to appeal on points of law with the Federal Administrative Court. He held the opinion that the old version of section 4 § 2 infringed his right of property, as it did not contain any exceptions to the key date and thus led to expropriation. Moreover, he submitted that the key date regulation was discriminatory within the meaning of Article 3 of the Basic Law. Therefore, he demanded that the new version of section 4 § 2 of the Property Act be applied to his case, in particular since the court proceedings were still pending.
On 5 March 1993 the Federal Administrative Court granted the applicant leave to appeal on points of law. On 12 November 1993 it rejected the applicant’s appeal on points of law. Having recourse to the Property Act’s travaux préparatoires, it interpreted the second Property Rights Amendment Act as applying only to proceedings which had not yet been terminated by final administrative decision (Widerspruchsbescheid). It stated that this interpretation alone guaranteed the speedy handling of cases of outstanding property issues as intended by the legislator. It furthermore pointed out that the latter had opted for a compromise between the interests of the former and new owners by choosing the final administrative decision instead of the final court decision as a criterion.
The court therefore applied the old version of section 4 § 2 and found that it did not violate the applicant’s right of property. It held that the restitution of the real estate had not been an expropriation within the meaning of Article 14 § 3 of the Basic Law, because all it did was to balance the competing private interests of the former and the new owners. Therefore, the impugned provision of the Property Act was a determination of the subject matter of the right to property and its limitations within the meaning of Article 14 § 1, sentence 2, of the Basic Law (Inhalts- und Schrankenbestimmung). The court recalled that the Property Act aimed at creating a socially acceptable balance between the interests of the former owners who had been expropriated contrary to the rule of law, on the one hand, and the new owners which had acquired ownership rights in good faith, on the other hand. The court pointed out that the Property Act in fact favoured those new owners by excluding restitution, but only if they had acquired the property rights before 18 October 1989. On that date Erich Honecker, President of the Council of State (Staatsratsvorsitzender) had resigned. The court stressed that the legislator had decided that in the light of those political events the purchaser of real estate could have no longer had a legitimate expectation that the acquired property rights would remain guaranteed or unaffected. The court held that for those reasons the key date regulation of section 4 § 2 complied with the requirements of Article 14 of the Basic Law, particularly in the light of the legislature’s wide margin of appreciation. Lastly, the court stated that this regulation did not violate the prohibition of discrimination under Article 3 of the Basic Law.
The applicant then lodged a constitutional complaint on 24 January 1994.
On 23 November 1999 the Federal Constitutional Court held in a pilot judgment that the key date regulation set in section 4 § 2 of the Property Act did not violate Articles 3 and 14 of the Basic Law (see “Relevant domestic law and practice” below).
On 1 December 1999 the Federal Constitutional Court refused to admit the applicant’s complaint. It confirmed the reasoning of the Federal Administrative Court, holding that in the light of the aforementioned pilot judgment of 23 November 1999, restitution based on the key date regulation did not violate Articles 3 and 14 of the Basic Law. Furthermore, the court did not find it arbitrary that the Federal Administrative Court had applied the old version of section 4 § 2 of the Property Act.
On 30 March 2000 the Land of Berlin made it known that the Federal Ministry of Finances had ordered that compensation for cases such as the present one should be provided by the Compensation Fund (Entschädigungsfonds) which, however, had not yet been established at that time.
On 10 May 2000 the applicant lodged his application with the Court.
On 19 October 2000 the Land of Berlin reimbursed the purchase price amounting to DEM 29,005 (EUR 14,830). The applicant then brought an action against the Land of Berlin for the payment of interest on arrears.
On 18 July 2002 the Administrative Court rejected the applicant’s claim, refusing him leave to appeal on points of law. On 4 July 2003 the Federal Administrative Court rejected the applicant’s complaint against the refusal of leave to appeal on points of law.
The applicant did not lodge a constitutional complaint against that decision with the Federal Constitutional Court.
Article 3
“(1) All persons shall be equal before the law.
...”
Article 14
“(1) Property and the right of inheritance shall be guaranteed. Their subject matter and limits shall be defined by the laws.
(2) Property entails obligations. Its use shall also serve the public good.
(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.”
“Restitution is furthermore excluded if individuals, religious communities (Religionsgemeinschaften) or foundations for public utility (gemeinnützige Stiftungen) acquired in good faith ownership or rights of user in rem over property assets. This does not apply to plots of land and buildings if the legal transaction which resulted in the acquisition took place after 18 October 1989 and should not have been authorised pursuant to section 6 §§ 1 and 2 of the Regulation of the Registration of Claims for Property Assests (Anmeldeverordnung). “
“Restitution is furthermore excluded if individuals, religious communities or foundations for public utility acquired in good faith ownership or rights of user in rem over property assets. This does not apply to plots of land and buildings if the legal transaction, which resulted in the acquisition, took place after 18 October 1989 without the consent of the former owner, unless
an application for the acquisition was made in writing or was established on record (aktenkundig angebahnt) before 19 October 1989
the acquisition took place pursuant to section 1 of the Act on the Sale of Buildings in Public Property of 7 March 1990 (...)
the acquirer made considerable investments that increased the property’s value or maintained its substance.”
This amendment was introduced in the light of the fact that many of the new owners had already applied for the acquisition of real estate before 18 October 1989, but had not been able to complete the legal transaction, because the GDR authorities were unable to process those applications in time.
In its judgment the Federal Constitutional Court found that the key date regulation in section 4 § 2 of the Property Act and the restitution of property thereunder did not violate Articles 3 and 14 of the Basic Law. It recalled that the legislator had had to balance the interests of the former owners requesting restitution and the interests of the new owners requesting protection of their acquired rights. It stressed that the legislator had had a wide margin of appreciation when determining that balance. While the Property Act actually favoured the new owners who had acquired the property in good faith, it had been justified to introduce a key date in order to distinguish between those who had exercised their property rights already for a certain time and those who had done so for only a short period. The Federal Constitutional Court found that the resignation of Erich Honnecker as the President of the Council of State on 18 October 1989 had been an adequate point in time to make that distinction.
The court also noted that the GDR had already made clear in section 7 of the Regulation of the Registration of Claims for Property Assets of July 1990 that the authorisation procedure had to be renewed (wiederaufgreifen) in cases of acquisitions after 18 October 1989. Hence the new owners in those cases could not have reasonably expected to remain proprietors and their legitimate expectation of remaining proprietors (Vertrauensschutz) did not deserve protection.
Section 6 § 1 of the Regulation of the Registration of Claims for Property Assets of 11 July 1990 held that that the authorisation for the purchase of real estate should be denied if the legal transaction concerned real estate that had been put, inter alia, under public administration and if the former owner did not consent to the purchase.
Section 6 § 2 stated that pending procedures for the authorisation of purchase of real estate had to be stayed until it was established whether they concerned cases of outstanding property issues. Cases of outstanding property issues were defined, inter alia, as those cases in which real estate had been transferred into public property after it had been put under public administration by an escrow.
The same applied to cases in which former owners had lodged claims, inter alia, for restitution. The authorisation could however be granted if the former owner consented to the purchase or if the former owner did not apply for restitution until 13 October 1990.
If the authorisation had already been granted, section 7 § 1 provided the following: At the former owner’s request, the authorisation procedure had to be renewed if the acquisition had taken place after 18 October 1989 and if it should not have been authorised pursuant to section 6 §§ 1 and 2.