European Court of Human Rights

THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a Norwegian citizen born in and living in A. She is
the president of Z Organisation in Norway.

In 1929 the Applicant married a Mr Y from whom she lived separately as
from 1941, and was eventually divorced in 1944. During the German
Occupation of Norway, Mr Y, who, was at the time the director of T.
allegedly collaborated with the occupying forces. After the war he was
"cleared" of any suspicion of treachery and is at present director of
U.
In 1942, when the German persecution of the Norwegian Jews started, the
Applicant was arrested, although Jews married to non-Jews were not
covered by the measures taken by the Gestapo. At the moment of
departure, the Applicant avoided being put on board a ship bound for
Germany and was temporarily transferred to a prison, after her
deportation had been postponed for a week pending proof as to her
continuing status as a married person. Her husband was at the time on
a concert tour in Bergen and, in spite of telegraphic requests from the
Applicant's lawyer, he refused to return to Oslo until the end of his
tour, 4 days later. On his return he signed a declaration to the effect
that he was still married to the Applicant who was accordingly released
on the following day. Subsequently, she managed to escape to Sweden.In
1945, rumours started to circulate about the behaviour of the
Applicant's husband and the Norwegian Association of Composers adopted,
in 1945, a resolution declaring these rumours to be unfounded; a few
days later this resolution was sent with a covering letter to two Oslo
newspapers in order to prevent the publication of articles derogatory
to Mr Y. The said letter contained such expressions as "unfounded
attacks", "malicious rumours", and "imaginary conduct".
In 1960, it was reported to the Applicant that her former husband might
visit Israel as a guest conductor. Considering such visit to be an
insult to the Israeli people, she instituted criminal proceedings for
libel in 1960 against the Norwegian Association for Composers in order
to obtain a declaration that the accusations implicitly brought against
her in the above covering letter were null and void. She herself
maintained that her statements against Mr Y were completely true. The
immediate result of her action was that the plans for the concert tour
in Israel were called off. The legal proceedings aroused, apparently,
a general interest in Norway and the two leading newspapers in Oslo
carried detailed articles about the case. In 1962, the defendants
successfully requested that the hearing of the case should take place
in a closed session.
In 1962, the City Court of A acquitted the defendants. It considered
the above expressions in the covering letter to be clearly defamatory
to the Applicant, but it held that she was not justified in alleging
that he had given her "no help whatsoever", as he had, in fact, signed
the declaration which effected her release. At the same time, the Court
conceded that Mr Y's conduct was open to criticism in that he did not
inquire about the fate of his wife when learning about the Gestapo
action, in that he did not return immediately to Oslo when notified of
her arrest, that he continued to give his concerts and that he did not
give by telegram a declaration as to the validity of their marriage.
The Court held that the defendants were consequently justified in
making the above statements but it "found no reason" to award costs
against the Applicant. Finally, it rejected the Applicant's request for
permission to publish the judgment which had been pronounced in closed
session.
In 1962, the Applicant lodged an appeal against the City Court's
judgment and a request for a new hearing, which were both rejected by
the Appeal Committee of the Supreme Court in 1962.
In 1963, invoking the provisions of the Convention, the Applicant
appealed against the order of 1962 according to which the case was
heard in a closed session and also against the Court's decision to
deliver judgment in a closed session and requested the quashing of the
above sentence.
In 1963, the Appeal Committee of the Supreme Court rejected her appeal
on the ground that it had been lodged out of time. The Committee added,
however, in respect of her above request, that "although the appeal
must thus be rejected on procedural grounds, the Committee finds
reasons to mention that it would presumably not have been successful,
even if it had been lodged in time". As to the failure on the part of
the Court of giving judgment in public, it stated that although the
judgment should, in accordance with Article 124, paragraph (3) of the
Code of Procedure, be read in public, such mistake would not vitiate
the judgment in question but would only oblige the Court to fix a
session for delivery of the judgment in public.
Whereas the Applicant alleges violation of Article 6, paragraph (1),
of the Convention and claims that the "judgment of the City Court of
A be pronounced in a public session with a possibility that the press
may publish the judgment".

THE LAW

Whereas it is to be observed that, under Article 26 (Art. 26) of the
Convention, the Commission may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law; whereas it is true that the
Applicant in 1962 lodged an appeal to the Supreme Court from the
decision of the City Court of A given in 1962; whereas, however, she
failed to raise in her appeal the complaints which she has now brought
before the Commission, namely, the fact that the decision of the City
Court of A was not handed down in public session;

Whereas the Commission has previously held that in order to comply with
the provisions of Article 26 (Art. 26) "it is not enough that the
Applicant should have submitted his case to the various competent
courts to which, as requested by the said Article (Art. 26) the case
should be referred ... the Applicant should also plead before the
higher court the rights which he alleges were violated by the lower
court" (see Application No. 617/59 - Hopfinger v. Austria, Yearbook
III, page 370); whereas it is true that in 1963 the Applicant raised
the issue before the Supreme Court that the decision of the City Court
of A violated the provisions of Article 6, paragraph (1) (Art. 6-1) of
the Convention;

Whereas, however, according to Norwegian law, this second appeal was
lodged out of time; whereas the Commission has consistently held that
time-limits laid down in domestic law for the introduction of appeals
must be observed by applicants to the Commission (see Application No.
945/60 - P. v. the Federal Republic of Germany, Collection of
Decisions, Volume 8, page 98);

Whereas the Commission infers from the text of the decision of the
Supreme Court of 1963 that the Applicant, during her first appeal,
might successfully have invoked Article 124, paragraph (3) of the Code
of Procedure and Article 6, paragraph (1) (Art. 6-1) of the Convention
and thereby have obtained an order of the Court that a session be fixed
for the delivery of the judgment of 1962 in public; whereas the
Commission considers that the statement made by the Supreme Court as
to the probable failure of the appeal even if lodged in time does not
refer to the issue now before the Commission but solely to the
Applicant's request that the decision of the City Court of A should be
set aside;

Whereas, therefore, the Applicant failed to exhaust the remedies
available to her under Norwegian law; whereas, moreover, an examination
of the case as it has been submitted, including an examination made ex
officio, does not disclose the existence of any special circumstances
which might have absolved the Applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at her disposal;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Article 26 (Art. 26) has not been complied with
by the Applicant;

Whereas it follows that the Application must be rejected in accordance
with Article 27, paragraph (3) (Art. 27-3) of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.