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, living in Oslo. He is a lawyer
by profession.

He states that, after being detained for 1120 days, he was sentenced,
on ... 1948, by the Eidsivating Regional Court (lagmannsrett) to ten
years' imprisonment. The charge against him was that he had been a
member of the Quisling party 'Nasjonal Samling'. Apparently it was also
held against him that, during the occupation of Norway, he had accepted
the office of Chief Justice (justitiarius) of the Oslo City Court
(byrett). He states that his appeal against his conviction was
subsequently rejected by the Supreme Court (H*yesterett).

The Applicant also refers to a decision of the Supreme Court dated ...
1951, by which he was obliged to pay damages of 400,000 Norwegian
crowns, corresponding to a part of the damage which the 'Nasjonal
Samling' had allegedly caused the community.

The Applicant subsequently asked on several occasions for a retrial of
the criminal case against him but his requests were all rejected. The
last decision in this regard was given by the Appeals Committee of the
Supreme Court on ... 1966.

The Applicant objects to his conviction on a number of grounds and asks
the Commission to examine the legal basis not only of his own
conviction but also of the convictions of about 60,000 other Norwegians
who had also been punished because of their membership of the 'Nasjonal
Samling'.

An organisation called 'Forbundet for ...' has declared that it joins
the present Application.

I. The Applicant states that the convictions and sentences concerned
were based, to a large extent, on ordinances issued by the
Government-in-Exile in London in the years 1940 - 45. However, the
Government had no competence to legislate under Norwegian
constitutional law, since Article 49 of the Norwegian Constitution
(grunnloven) provides that the legislative power lies with Parliament
(stortinget).

It was true that Article 17 of the Constitution gave the King a certain
right to issue provisional regulations while Parliament was not sitting
but this right was subject to various conditions and could not be
considered a sufficient legal basis of the ordinances issued by the
Government-in-Exile. Moreover, some ordinances had been issued while
Parliament was still sitting in June-September, 1940, and in any event
the ordinances had not been cancelled when Parliament met again in May,
1945, which should have been done if the legal basis had been Article
17 of the Constitution.

The Applicant pointed out that the legal basis had sometimes been
considered to be the special powers given to the Government by
Parliament at its session at Elverum on 9th April, 1940, the day of the
German attack on Norway. Indeed, it had been maintained that, on that
occasion, the Government had been authorised to take care of the
interests of the country and to take any decisions required until such
time as Parliament could be convened again. However, the Applicant
submits that it was untrue that any such wide powers had ever been
given to the Government and that, in fact, Parliament had not given the
Government any larger competence than could already be derived from
Article 17 of the Convention.

The Applicant concludes that the Government was not competent,
according to the Norwegian Constitution, to issue the ordinances
concerned.

II. The Applicant points out that the convictions of members of the
'Nasjonal Samling' were based on the assumption that Norway had been
at war with Germany in the years 1940 - 45. In fact, most of the
persons concerned had been convicted on charges of offenses against
Article 86 of the Criminal Code which provided for punishment of any
person who, during a war in which Norway takes part, renders assistance
to the enemy. The Applicant maintains, however, that the war between
Norway and Germany ended on 10th June, 1940, when the Norwegian
Commander-in-Chief had signed a capitulation agreement with the German
Commander of the troops in Norway and armistice had been concluded. In
order to prove that from that date Norway was no longer at war with
Germany he refers to the terms of the capitulation agreement, to the
declarations made by King Haakon after 10th June, 1940, and he invokes
a number of experts of international law and other authors.

As the Applicant had joined the 'Nasjonal Samling' after 10th June,
1940, there could, in his opinion, be no question of having assisted
the enemy, the state of war having then ceased to exist. On this point
he considers that his case is different from Application No. 931/60
(see Collection of Decisions, Volume 6, page 41) as in that case the
conviction had also concerned membership of the 'Nasjonal Samling'
before 10th June, 1940.

III. The Applicant states that, during the occupation of Norway by the
Germans, Article 43 of the Hague Regulations of 1907 applied and
according to this provision the occupying power had the duty to ensure
public order and safety and was entitled to legislate if new
legislation was required for this purpose. On the other hand, the
Government-in-Exile had no competence to legislate and the ordinances
issued by the Government in London were therefore contrary to
international law. In particular, they could not be considered to be
binding since they were not legally published in Norway during the
occupation period.

Even in view of the substance of these ordinances, they could not be
accepted. First, in many cases, acts were declared to be punishable
which had not been punishable when they were committed. Moreover,
capital punishment was re-introduced by simple ordinance, although it
had been abolished in the Criminal Code, and jury trial was abolished
in respect of the offenses concerned.

In respect of membership of the 'Nasjonal Samling' the Applicant
observes that the mere fact of being a member was made a criminal
offence by an ordinance of 22nd January, 1942. According to this
ordinance, such membership was to be considered to constitute
assistance to the enemy contrary to Article 86 of the Criminal Code.
In reality, this amounted to a collective punishment of members of a
political party and was contrary to Article 50 of the Hague
Regulations. The Applicant points out that membership of the German
NSDAP had not, as such, been considered to constitute a criminal
offence.

The Applicant further states that the provisional ordinances issued by
the Government-in-Exile were in fact applied by Norwegian courts even
at a time when Norway was occupied by the Allies and, according to the
Applicant, it could in no way be accepted that such ordinances were
applied before Norway had regained its sovereignty.

IV. The Applicant invokes Articles 2, 5, 6, 7 and 13 of the Convention.
He asks the Commission to urge the Norwegian Government to observe its
obligations under the Convention.

THE LAW

Whereas the basic facts alleged, and in particular the Applicant's
conviction and sentence, relate to a period prior to 3rd September,
1953, the date of the entry into force of the Convention with respect
to Norway; and whereas, in accordance with the generally recognised
rules of international law, the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to that Party; whereas it follows that the examination of the
Application, in so far as it relates to these alleged facts, is outside
the competence of the Commission ratione temporis;

Whereas, in regard to the Applicant's complaints relating to his claim
for a retrial and the court proceedings concerned, it is to be observed
that the Convention, under the terms of Article 1 (Art. 1), guarantees
only the rights and freedoms set forth in Section I of the Convention;
and whereas, under Article 25, paragraph (1) (Art. 25-1), only the
alleged violation of one of those rights and freedoms by a Contracting
Party can be the subject of an application presented by a person,
non-governmental organisation or group of individuals; whereas
otherwise its examination is outside the competence of the Commission
ratione materiae; whereas the right to a retrial is not as such
included among the rights and freedoms guaranteed by the Convention;
and whereas, in accordance with the Commission's constant
jurisprudence, proceedings concerning applications for retrial fall
outside the scope of Article 6 (Art. 6) of the Convention (see
Applications Nos. 864/60, - X. v. Austria - Collection of Decisions,
Volume 9, page 17 and 1237/61, X. v. Austria - Yearbook V, page 96);
whereas it follows that this part of the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission declares this Application INADMISSIBLE.