CASE OF A. AND E. RIIS v.
(Application no. 9042/04)
31 May 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of A. and E. Riis v.
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mrs N. Vajić,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
in private on
Delivers the following judgment, which was adopted on that date:
case originated in an application (no. 9042/04)
2. The applicants were represented by Mr H. Berge, a lawyer
THE CIRCUMSTANCES OF THE CASE
applicants were born in 1930 and 1922 respectively
and have been living in
A. Factual background to the case
5. This is the fifth
application brought by the applicants under the Convention in relation to the
same case complex, the factual background of which is summarised in Amelia and Einar Riis against Norway
(dec.)(no. 23106/02, struck out on
6. The first applicant is the
daughter of a merchant ship owner, the late Mr Kristoffer Olsen (Senior),
who died in 1948, and of Mrs Dagny Marie Olsen, who died in 1970. Following her
death, the parents' joint estate was subjected to public division (offentlig skifte) by the Oslo Probate
Court (skifterett), as the heirs did
not take over the estate's debts. The first applicant was one of three heirs to
the estate, which comprised major shareholding positions in Luksefjell Ltd and, indirectly, in Dovrefjell Ltd., the family's two
principal companies. These formed part of the Olsen & Ugelstad Ltd Shipping Company (founded in 1915 by
the first applicant's father and by Mr Rudolf Ugelstad).
7. The division of the estate involved severe and long lasting disputes between the first applicant and her brother.
an agreement of
an agreement between Falkefjell Ltd
and Den norske Creditbank (Dnc), MS Sognefjell was pawned as security for a loan to the company and
a mortgage bond was transported to the bank for this purpose on
February 1977 the first applicant sought to have the arbitration tribunal's
judgment quashed by the ordinary courts. She argued that Falkefjell Ltd had failed to inform her about its difficult
financial situation and about having pawned the ship when the case was before
the arbitration tribunal. Her action was rejected at first instance, then
upheld at second instance, and finally rejected by the Supreme Court on
The first applicant also brought compensation proceedings against the Dnc, but her suit was rejected by the Oslo City Court (byrett, later renamed tingrett) and the Borgarting High Court (lagmannsrett) and leave to appeal to the Supreme Court (Høyesterett) was refused.
B. Compensation proceedings brought by the first applicant against Falkefjell Ltd. and Mr Kristoffer Olsen
1. Proceedings before the City Court
written pleadings were exchanged between the parties until
On behalf of the
first applicant, Mr T. Engelschiøn asked the City Court to
fix a later date for the preliminary hearing, while agreeing that the
preparation of the case was complete. By a communication of
the second applicant submitted written pleadings on various dates until
19. During 1994 there was no activity in the case.
“... The case has now been postponed a number of times. These repeated postponements are a considerable problem for the court with regard both to the progress of the case and to the court's and the co-judges' work schedule.
Not without considerable doubt, and
provided that the defendant has no objections, the court once again finds
reason for accepting a postponement. The dates of the main hearing are
therefore set to on Tuesday 10 October to
21. After yet a further postponement, of which there is no record, and additional written pleadings by both parties on 19 September and 1 December 1995, the City Court held a main hearing from 5 to 8 December 1995.
a judgment of
2. Appeal proceedings
23. The first applicant appealed against the City Court's judgment to the High Court.
the meantime, on
announcing his appointment on
27. In October 1999 both parties stated their wishes as to the duration of the oral hearing to be held.
16 March 2001 the applicant's lawyer submitted new documents and asked the High
Court to order the adversary party to produce additional documents, pointing
out that the preparation of the case needed to continue and that three weeks
were needed for the hearing. On
High Court hearing took place between 1 and
35. The first applicant appealed against the High Court's judgment, both on procedural grounds and regarding the outcome of the case.
37. The applicants complained that in the compensation case against Falkefjell Ltd. and Mr Kristoffer Olsen they had not been afforded a fair hearing within a reasonable time by an independent and impartial tribunal, as required by Article 6 of the Convention. They had moreover been denied an effective remedy, in breach of Article 13 of the Convention.
A. The standing of the second applicant
38. From the outset, the Court observes that the second applicant was not a party to the domestic proceedings. He can therefore not be considered a “victim” for the purposes of Article 34 of the Convention. In so far as this applicant is concerned, the Court declares the application inadmissible under this provision.
B. Complaint under Article 6 § 1 about the duration of the proceedings
39. In the Government's opinion, the first applicant had not exhausted available domestic remedies according to Article 35 § 1 of the Convention with respect to her complaint about the duration of the proceedings. This question ought to be assessed with due regard to the effective remedies that were actually afforded to her under Norwegian law. Ever since the alleged wrongdoing had taken place, she had had the opportunity to claim compensation under national law based on the allegations put forward in her application to the Court. She had, however, not brought such a claim before the national courts. In the Government's view, the Norwegian law on compensation fulfilled the requirements of an effective remedy under Article 13 of the Convention. An allegation of violation of the Convention accompanied by a compensation claim was without doubt a sufficient reason for having locus standi before the national courts.
40. The Government further argued that, although the duration of the proceedings had been long, this was essentially attributable to the applicants' own conduct and could not give rise to a violation of the requirement of reasonableness under Article 6 § 1 of the Convention.
Court observes that the Government's submission that an effective remedy was
available to the first applicant under national law has not been supported by
any specific reference either to the legal ground or to any relevant case-law.
Their contention must therefore be rejected as being unsubstantiated (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV,
pp. 1210-11, § 65-69; Dattel and
Court further notes that the period to be taken into consideration began on
43. In the light of the above, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on grounds of non-exhaustion or on any other grounds. It must therefore be declared admissible.
C. Other remaining complaints
1. The alleged failure to observe the requirement of independence and impartiality under Article 6 § 1
44. The first applicant further complained under Article 6 § 1 that the High Court had been presided by Mr Justice Gunvald Gussgaard, although his wife, Mrs Karenanne Gussgard, a member of the Supreme Court, had ruled against the first applicant in all the cases before the Supreme Court to which she had been a party.
the Court observes that from the case-file it transpires that these procedural
issues were determined more than six months before the introduction of the
application under the Convention and that the first applicant did not raise her
disqualification point in her appeal to the Supreme Court against the High
Court's judgment of
2. Miscellaneous complaints under Articles 6 § 1 and 13
46. The first applicant moreover complained under Article 6 § 1 of the Convention about not having been afforded a fair hearing.
47. In this connection she claimed that the High Court by an excess of laxness had accepted, on the basis of dubious or weak medical proof, Mr Olsen's absence at the hearing. She further argued that the High Court should have stopped her lawyer in his pleadings, as he obviously failed to properly comply with her wishes and instructions and to defend her interests.
However, the Court notes that it does not appear that she specifically pursued these matters in her appeal to the Supreme Court, for which reason these parts of her application must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
48. As for the remainder of the first applicant's Article 6 § 1 complaints about lack of fairness of the proceedings, the Court notes that, in the application lodged under the Convention on 22 February 2004, the first applicant essentially disputed the assessment of facts made by the national courts. In addition, the first applicant complained about failure to observe Article 13 of the Convention. Presented in somewhat general and vague terms, the applicant's complaint seems to concern primarily the same alleged deficiencies in the national courts' assessment of facts as mentioned above in relation to the Article 6 § 1 complaint about lack of fairness. In so far as it may be understood also to cover the length aspect as such, this could more appropriately be considered separately under Article 6 § 1. On the other hand, the first applicant does not specifically complain about the lack of an effective remedy against unreasonable delays.
Thus, as regards these two additional complaints, the Court, in the light of the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the application must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
II. THE MERITS OF THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE DURATION OF THE PROCEEDINGS
49. The first applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
50. The Government disputed the above allegation. While acknowledging that the duration of the proceedings had been long, this fact ought to be attributed to the applicants' own actions and requests and could not justify the finding of a violation. Only minor and insignificant periods of the time elapsed could be attributed to the national courts.
51. In fact, the Government pointed out that the City Court had made several attempts to hold the main hearing, in spite of protests from the first applicant. Not only had she made several requests for the postponement of the main hearing, but the pleadings and evidence had also been broadly based and voluminous, and thus necessarily making the preparation of the case a time-consuming exercise for the court. It had involved the reading of several hundred pages of written pleadings and supporting documents of questionable relevance.
52. Before the High Court, time was lost by the first applicant's failure to find a legal representative, and also by a number of requests for extension and various unsuccessful procedural appeals to the Supreme Court. She continuously presented new documents, mostly without any bearing on the central questions in the case, and made continued requests for production of additional documents by the opposing party both before and after the court's setting of a time limit for final evidence and arguments.
53. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
54. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
55. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Not only were there several periods of inactivity before the national courts or lack of diligence on their part (see paragraphs 13, 19, 30 to 32 above), but the total duration of the proceedings in question, 17 years and five months, was also particularly long. While the Court accepts that the first applicant has contributed to the length of the proceedings (see notably paragraphs 18, 20, 24 and 25 above), this could not absolve the authorities of the respondent State from their obligation under Article 6 § 1 to ensure that the proceedings be concluded within a reasonable time (see Dattel and Others, cited above, §§ 53-54). Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. Article 41 of the Convention provides:
“If the Court finds that there has been
a violation of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial rep
first applicant claimed compensation for damage caused by the State's
contribution to undermine, delay or destroy legal proceedings, with the
consequence that the first applicant had sustained losses in inheritance rights
amounting to 14,000,000 United States Dollars (corresponding approximately to 10,587,500
euros (EUR)), which sum should be increased by 18% interest per year as from
1974. The amount represented the difference between her total losses and those
that had been covered by the State in a friendly settlement concluded on
58. The Government did not express an opinion on the matter.
59. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the first applicant must have sustained non-pecuniary damage due to the excessive length of the proceedings. Ruling on an equitable basis, and bearing in mind the first applicant's own contribution to the protraction of the proceedings, it awards her EUR 15,000 under that head.
B. Costs and expenses
60. The applicants also claimed NOK 50,000 (corresponding approximately to EUR 6,140 euros) for the costs and expenses incurred before the Court.
61. The Government did not express an opinion on the matter.
62. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering for the proceedings before the Court.
C. Default interest
63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the first applicant's complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention with respect to the first applicant;
the respondent State is to pay the first applicant within three months from the
date on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 15,000 (fifteen thousand euros) in respect of
non-pecuniary damage and EUR 4,000 (four thousand) in respect of costs and
expenses, plus any tax that
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the first applicant's claim for just satisfaction.
English, and notified in writing on