CASE OF HANSEN v. NORWAY
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
5. The applicant lives at Nesoddtangen, Norway. 6. In 1989 Mrs B., who was then the applicant’s wife, bought a property named Ekheim from him for 6,400,000 Norwegian kroner (NOK), currently corresponding to approximately 760,000 euros (EUR). The couple drew up marital agreements (“ektepakt”) in 1990 and 1995. 7. On 3 November 1995 Mrs B. and the applicant concluded an agreement stipulating that they each owned 50% of the Ekheim estate, regardless of what was stated or might follow from formal entitlements (hereinafter referred to as the joint ownership agreement). 8. Subsequently, after their divorce, the applicant lodged an action against Mrs B. with Fredrikstad City Court (tingrett), seeking a ruling to the effect that the marital agreements were invalid and that the joint ownership agreement was valid. By a judgment of 4 April 2001, the City Court found against the applicant and in favour of the respondent, concluding that the marital agreements were valid and that the joint ownership agreement was invalid. The applicant did not appeal against this judgment, which gained legal force. 9. In 2005 Mrs B. sold the Ekheim estate to Ekheim Invest AS, a limited liability company, for NOK 15,000,000 (approximately EUR 1,1780,000). 10. On 28 June 2007 the applicant instituted civil proceedings before the City Court against Ekheim Invest claiming that he had title to 50% of the Ekheim estate and seeking, firstly, an order that the latter convey 50% of the property to him and, secondly, that he held a pre-emption right with respect to the remaining 50%. 11. According to the summary of the applicant’s submissions made by the City Court in its judgment referred to below, the applicant argued in the main as follows: (a) The question was how to interpret the former spouses’ joint ownership agreement of 3 November 1995. In the case that had previously been decided by the City Court on 4 April 2001, the subject-matter of the dispute had been whether the marital agreements from 1990 and 1995 were valid. The subject-matter in the present case was different. Two spouses having completely separate property had the opportunity to conclude a mutual agreement involving an obligation of performance for each party. According to legal doctrine, such a contract was not dependent on any condition as to form. (b) The contract had been a reality in the present case. Ekheim Invest had purchased the half of the Ekheim estate that had been in Mrs B.’s ownership, not the half owned by the applicant, because Mrs B. had had no right to sell the other half. Consequently, Ekheim Invest ought to transfer by deed of conveyance half of the Ekheim estate back to the applicant. (c) The applicant further submitted that in its 2001 judgment the City Court had not reviewed the validity of the joint ownership agreement. In any event, the legal force of that judgment extended only to the relationship between Mrs B. and the applicant, not between Ekheim Invest and the applicant. The applicant referred to legal doctrine, according to which a judgment as a main rule only had legal force in the relationship between the parties to the proceedings. Moreover, the parties’ arguments ought to be taken as a starting point in the assessment of whether any new factual circumstances had arisen. (d) The applicant’s argument was that in the period since 2001 the estate had increased so greatly in value that the City Court now had to assess the ownership issue independently of the conclusion reached in the 2001 judgment. At that time the mortgages on the property had clearly exceeded its value and it had therefore been unproblematic to hold that, in light of an on-going bankruptcy at the time, the applicant would not have been in a better position in the absence of the marriage settlement agreements. It would be unreasonable if Mrs B. or her successors should be able to profit from the tremendous increase in the property’s value. 12. By a judgment of 21 January 2008, the City Court found in favour of the respondent Ekheim Invest, on the ground that the applicant did not have title to the property in question as the respondent company had derived its rights from Mrs B. and the City Court had ruled in her favour in its 2001 judgment. It rejected the applicant’s argument based on legal doctrine that the 2001 judgment only had legal force between the parties by referring to another passage in the legal manual in question from which it appeared that the point only applied to disputes between a private party and public authorities. The action brought by the applicant had no public-law aspects and the City Court did not consider that the legal doctrine referred to had any bearing on the present case. 13. The applicant appealed against the City Court’s judgment of 21 January 2008 to the Borgarting High Court (lagmannsrett). He argued in particular that the City Court had confused his pleadings and references to legal doctrine made at the oral hearing and had shortened the overall duration of the hearing from the three days initially scheduled to five hours. One hour into the hearing the City Court had truncated the hearing of the applicant’s witnesses, including the presentation of documentary evidence regarding the disputed agreements. The City Court’s hearing record had also been marred by formal mistakes. 14. On 4 April 2008 the High Court warned the applicant that it envisaged refusing admission of his appeal and gave him until 21 April 2008 to comment. After an extension of this time-limit to 5 May 2008 the applicant on the latter date requested that his appeal be admitted for examination or, in the alternative, that the High Court quash the City Court’s judgment and refer the case back to the City Court for fresh examination. On 5 and 11 June 2008 he filed additional submissions. 15. In a unanimous decision (beslutning) of 12 June 2008 the High Court concluded that it refused to admit the appeal (“Anken nektes fremmet”), giving the following reasons: “The High Court finds it clear that the appeal will not succeed, and that its admission should therefore be refused pursuant to Article 29-13(2) of the Code of Civil Procedure.” 16. The applicant appealed against the High Court’s decision to the Supreme Court, arguing notably that the refusal of admission of the appeal lacked reasons. 17. On 19 September 2008 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), pointing out that its jurisdiction was confined to reviewing the High Court procedure (Article 29-13 (5) of the Code of Civil Procedure), unanimously found it clear that the appeal would not succeed and therefore rejected the appeal under Article 30-9 (2).