Two Spanish fishing vessel captains were fined for failing to keep catch logbooks for cod in the Svalbard Fisheries Protection Zone. One of them was also fined for incorrect reporting of cod caught in the same area. The Supreme Court of Norway concluded that Section 5 of the Act relating to the Economic Zone of Norway authorises the establishment of the Svalbard Fisheries Protection Zone. Its establishment was considered to be based on international customary law, and the United Nations Convention on the Law of the Sea was not considered to constitute a hindrance to such a fisheries protection zone. Even though the shipowning company's fishing licence was revoked, the confiscation of illegal catches etc. was not deemed to be in contravention of the prohibition on double jeopardy, cf. ECHR Protocol 7 Article 4 No 1, because the sanctions were connected in time and in substance.
Proceedings
Nord-Troms District Court – Hålogaland Court of Appeal LH-2005-40602 – Supreme Court HR-2006-1997-A, (Case No 2006/871), criminal case, appeal.
Parties
I: B (Advocate Bjørn H. Wikasteen – test case) versus the Public Prosecuting Authority (Chief Public Prosecutor Lars Fause – test case). II: A (Advocate Bjørn H. Wikasteen – test case) versus the Public Prosecuting Authority (Chief Public Prosecutor Lars Fause – test case). III: The shipowning company --- S.A. (Advocate Hallvard Østgård) versus the Public Prosecuting Authority (Chief Public Prosecutor Lars Fause – test case).
Author(s)
Tjomsland, Matningsdal, Sverdrup, Øie, Gjølstad.
(1)
Justice Tjomsland: The case concerns appeals by two Spanish fishing vessel captains who were fined for failing to keep catch logbooks for cod and, for one of them, also for incorrect reporting of cod caught in the Svalbard Fisheries Protection Zone. It also concerns the appeal by the shipowning company, which was ordered to suffer confiscation as a result of these circumstances. The appeal case raises several questions relating to the fisheries protection zone around Svalbard and the relationship to the Svalbard Treaty and, for the shipowning company, also about the relationship to ECHR Protocol 7 Article 4 No 1.
(2)
The Spanish shipowning company --- S.A. owns two trawlers – C and D. The trawlers are called pair trawlers because they fish together. In 2004, the shipowning company was awarded a quota of 800 tonnes of cod in the Svalbard Fisheries Protection Zone from the EU quota, and it was awarded a quota of 200 tonnes of cod in the Norwegian economic zone by the Norwegian authorities. The vessels had caught the company's quota in the Norwegian economic zone before they started fishing in the fisheries protection zone. The Coast Guard conducted a routine inspection of the vessels on 30 May. The inspection uncovered a considerable discrepancy between the catch recorded in the catch logbook and the stored catch.
(3)
On 2 June 2004, Troms Police District issued the shipowning company --- S.A. with a confiscation order in the amount of NOK 2,000,000 and notices of fines of NOK 30,000 against A as captain of the fishing vessel D and B as captain of the fishing vessel C. On 7 June 2004, the Directorate of Fisheries decided to revoke C and D's fishing licence for 2004 in the Norwegian economic zone.
(4)
The notices of fines/confiscation were not accepted, and the prosecuting authority used them as an indictment before Nord-Troms District Court, cf. the Criminal Procedure Act (1981) Section 268. On 20 December 2004, the District Court pronounced judgment with the following rendition of judgment:
'1.
A, born 0.0.1951, is convicted of a violation of the Act relating to the Economic Zone of Norway Section 8, cf. Section 4 a, cf. the Regulations of 3 June 1977 with subsequent amendments relating to the Fisheries Protection Zone around Svalbard Section 1, cf. Section 4, cf. Section 3 (11), cf. the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 6, cf. Section 3 and of a violation of the Act relating to the Economic Zone of Norway Sections 8 and 4, cf. the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 2 b (fishing reports).
Seen in conjunction with the General Civil Penal Code Section 63 second paragraph, the punishment is set to a fine of NOK 30,000 – thirty thousand 00/100.
2.
B, born 0.0.1969, is convicted of a violation of the Act relating to the Economic Zone of Norway Section 8, cf. Section 4 a, cf. the Regulations of 3 June 1977 with subsequent amendments relating to the Fisheries Protection Zone around Svalbard Section 1, cf. Section 4, cf. Section 3 (11), cf. the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 6, cf. Section 3. He is acquitted of a violation of the Act relating to the Economic Zone of Norway Sections 8 and 4, cf. the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 2 b (fishing reports). The punishment is set to a fine of NOK 20,000 – twenty thousand 00/100.
3.
The shipowning company --- S.A is convicted of violation of the Act relating to the Economic Zone of Norway Section 8, cf. the General Civil Penal Code Section 37 c, cf. the Act relating to the Economic Zone of Norway Section 4 a, cf. the Regulations of 3 June 1977 with subsequent amendments relating to the Fisheries Protection Zone around Svalbard Section 1, cf. Section 4, cf. Section 3 (11), cf. Section 6, cf. Section 3 and of violation of the Act relating to the Economic Zone of Norway Sections 8, 9 and 4 etc., cf. the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 2 b (fishing reports) and ordered to suffer the confiscation of NOK 1,400,000 – one million four hundred thousand 00/100.
4.
The shipowning company --- S.A is ordered to pay the costs of the case in the amount of NOK 30,000 – thirty thousand 00/100, cf. the Criminal Procedure Act Section 436.'
(5)
The judgment was delivered with a dissenting opinion. One of the lay assessors voted to acquit the defendants. The Court's majority found A guilty of failing to record 90 tonnes of cod in the catch logbook and of incorrect reporting of 76 tonnes of cod in the weekly report to the Directorate of Fisheries, and it found B guilty of failing to record 23.6 tonnes of cod in the catch logbook. The confiscation that the shipowning company was ordered to suffer corresponds to the total value of the catch with the addition of approx. NOK 300,000 for vessels, fittings and equipment.
(6)
The convicted parties appealed the judgment to Hålogaland Court of Appeal. The appeal concerned the assessment of evidence in connection with the question of guilt, the application of the law and the imposition of fines and confiscation. The appeals were referred for an appeal hearing in their entirety. A and B did not appear at the appeal hearing, and the Court of Appeal therefore issued a ruling pursuant to the Criminal Procedure Act Section 336 first paragraph first sentence dismissing their appeals against the assessment of evidence in connection with the question of guilt.
(7)
On 24 February 2006, the Court of Appeal pronounced judgment (LH-2005-40602) with the following rendition of judgment:
'1.
The appeal of A, born 0.0.1951, is dismissed.
2.
The appeal of B, born 0.0.1969, is dismissed.
3.
The shipowning company --- S.A is convicted of violation of the Act relating to the Economic Zone of Norway Section 9, cf. Section 5, cf. Section 4 a, cf. the Regulations of 3 June 1977 with subsequent amendments relating to the Fisheries Protection Zone around Svalbard Section 1, the Regulations relating to the Fisheries Protection Zone around Svalbard Section 4, cf. Regulations of 3 June 1977 with subsequent amendments relating to the Fisheries Protection Zone around Svalbard Section 3 (11), cf. Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 6, cf. Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Sections 3 and 2 b and ordered to suffer the confiscation of NOK 1,400,000, which shall accrue to the public purse.
4.
The shipowning company --- SA is ordered to pay the costs of the case in the amount of NOK 20,000.'
(8)
The convicted parties appealed the Court of Appeal's judgment to the Supreme Court. The appeals concern the application of law and procedural matters. The Appeal Committee of the Supreme Court allowed all aspects of the appeals to be heard by the Supreme Court.
(9)
In summary, the appellants – A, B and the shipowning company --- S.A. – have argued as follows before the Supreme Court:
(10)
It is contested that the fishery protection zone is warranted by domestic law. Section 1 of the Act relating to the Economic Zone of Norway, as referred to in the speech introducing the Royal Decree, does not warrant a zone with such limited legal scope. In the Court of Appeal's opinion, the zone is warranted by Section 5, but this provision does not materially warrant the protection zone either. It is clear from the provision, as confirmed by the preparatory works to the Act, that its intention is to introduce temporary regulations. The courts cannot use Section 5 as a legal basis when no reference was made to this provision when the Regulations were issued.
(11)
Under all circumstances, the Regulations suffer under a case processing error due to incorrect and inadequate references to legal authority, cf. the Public Administration Act Section 38 first paragraph letter a. In the appellants' view, the effect of this error must be that the Regulations are invalid because it cannot be ruled out that their content would have been different if it had been found that the legal authority must be sought in Section 5.
(12)
The basis in international law for the non-discriminatory fisheries protection zone is also contested. The zone has no basis in customary law, and legal authority must therefore be sought in the United Nations Convention on the Law of the Sea of 10 December 1982. Part V of the Convention contains provisions concerning the exclusive economic zone, but there is nothing in the Convention that authorises the coastal states to choose to establish a more limited zone instead. In principle, treaties shall be interpreted in accordance with their wording, and, in cases such as the present one where the Convention appears to prescribe a package solution, one should be cautious about interpreting them to include arrangements that the contracting parties obviously did not envisage. It is probably only around the Falkland Islands that a fisheries protection zone similar to the one around Svalbard has been established.
(13)
The Court of Appeal has based its conclusion on the principle that if more is permitted, then less must be as well, but this principle is not applicable in this case. The obligations that the Convention on the Law of the Sea imposes on coastal states that establish an economic zone are of great importance in this context, cf. Articles 61, 62, 64, 69 and 73, among others. The coastal states cannot evade these obligations by establishing a more limited protection zone than follows from Article 56. The current regulation of fisheries in the zone differs on several points from what follows from the provisions of the Convention on the Law of the Sea. In the appellants' opinion, the Storting has not considered the basis in international law for the fisheries protection zone. If the fisheries protection zone is not warranted by international law, there is no basis for prosecuting the appellants, cf. the General Civil Penal Code Section 1.
(14)
It is also argued that vessels from other countries are unfairly discriminated against in relation to Russian vessels. This argument is based particularly in the fact that Russian vessels consistently fail to comply with the reporting rules in the Regulations of 21 September 1994 No 880 relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard. The Norwegian authorities only issue warnings to the shipowning companies in such cases. Foreign policy considerations are the reason why the Norwegian authorities have not taken stronger measures against these violations of regulations. The Regulations apply to vessels from all countries and they do not allow for non-enforcement on the basis of bilateral arrangements. The lack of enforcement makes it more difficult to uncover overfishing by Russian vessels. Russian vessels also fail to comply with the Regulations of 26 March 2003 No 405 relating to Satellite-Based Monitoring of the Activities of Fishing and Hunting Vessels in the Fisheries Protection Zone around Svalbard.
(15)
On this basis, a discriminatory practice based on nationality has been established that entails a violation of the International Covenant on Civil and Political Rights (ICCPR) Article 26. This is a general anti-discrimination provision which, unlike ECHR Article 14, is a free-standing provision. The way in which the Norwegian authorities enforce the rules means that Russian vessels are treated more leniently than vessels from other countries. An argument that the prohibition on discrimination in ECHR Article 14 has been contravened was dropped during the appeal hearing before the Supreme Court. A new argument is made before the Supreme Court that the issuing of the notices of fines/confiscation that took the place of indictments is invalid because it is in breach of the non-statutory equality principle in Norwegian law.
(16)
The prohibition on discrimination on the basis of nationality set out in the Svalbard Treaty Articles 2 and 3 has also been violated. The appellants believe that the Svalbard Treaty applies in the fisheries protection zone. Prior to the signing of this treaty, Norway did not have sovereignty over Svalbard. Norway's sovereignty over Svalbard therefore follows from the Svalbard Treaty. To the extent that economic zones are established in connection with Svalbard, the provisions of the Svalbard Treaty must therefore also have direct or analogous applicability in these zones. The requirement for equal treatment set out in Articles 2 and 3 of the Svalbard Treaty is strict, and a violation has clearly taken place. This means that the General Civil Penal Code Section 1 applies and that there is no basis for prosecuting the captains and the shipowning company.
(17)
The shipowning company, --- S.A., has entered a separate claim that the criminal case be dismissed on the basis of ECHR Protocol 7 Article 4 (1). The licence to fish in the Norwegian economic zone was revoked on 7 June 2004, and this decision, which cannot be appealed, is final. The parties agree that both the revocation of the licence and the confiscation order must be regarded as punishment under ECHR Protocol 7 Article 4 No 1. There is also agreement that the revocation of the fishing licence and the confiscation order concern the same offence.
(18)
ECHR Protocol 7 Article 4 No 1 covers both being punished twice and being subject to a second prosecution. In this case, punishment is imposed twice for the same offence.
(19)
The Court of Appeal has found that this is a case of parallel prosecution where two public authorities concurrently impose the different sanctions provided for in law for this offence. In particular, the Court has referred to the ECtHR's inadmissibility decision of 30 May 2000 in the R. T. v. Switzerland case (ECtHR-1996-31982). The decision has partly been understood to mean that the provision does not apply to cases where the barring decision is made after a decision that is not final and enforceable has already been made in the first instance in the other case. The shipowning company believes that this single inadmissibility decision cannot be decisive. Particular reference is made to the possibilities for adaptation that such an arrangement would give the authorities. Such an exception would not under any circumstances apply in this case, where no decision has been made, but a notice of fine/confiscation has been issued. A notice of fine/confiscation is an offer to the defendant and an expression of the prosecuting authority's view of the offence, but it is not binding for the defendant.
(20)
A and B have entered the following statement of claim:
'Principal claim: That A and B be acquitted.
Alternatively: That the case against A and B be dismissed.'
(21)
The shipowning company --- S.A. has entered the following statement of claim:
'Principal claim: That the shipowning company --- S.A. be acquitted.
Alternatively: That the case against the shipowning company --- S.A. be dismissed.'
(22)
In summary, the prosecuting authority has argued as follows before the Supreme Court:
(23)
There is no doubt that the fishery protection zone has a legal basis in domestic law. Such a legal basis was found to exist in the decision in case Rt-1996-624, where it was contested on a different basis than in the present case. The Regulations relating to the Fisheries Protection Zone around Svalbard were issued pursuant to the Act relating to the Economic Zone of Norway. This can be put as follows: the legal basis for establishing the zone is Section 1 of the Act, while the temporary nature of the zone is warranted by Section 5. The Regulations were issued by the King, who is the competent authority pursuant to the Act, and the regulations have been deemed to be warranted by the Act, which, in the prosecuting authority's opinion, there is no doubt that it is. Subsequent statutory amendments have also been based on the regulations being warranted by the Act, cf. Proposition No 85 to the Odelsting (1981–1982) on the Act relating to Sea-Water Fisheries etc. page 12 and Proposition No 41 to the Odelsting (1996-1997) on the Norwegian Coast Guard page 14. Even if the requirement regarding reference to legal authority in the Public Administration Act Section 38 first paragraph letter a) were not met, this would have no bearing on the validity of the regulations.
(24)
Nor is there any foundation for the claim that the fisheries protection zone has no basis in international law. The fisheries protection zone is based on international customary law that evolved from the late 1960s, and, today, it also has legal basis in the Convention on the Law of the Sea. The fact that a customary law basis for economic zones and exclusive fisheries zones evolved before the Convention on the Law of the Sea was signed has formed the basis both for Norwegian legislation and for decisions by the Hague Tribunal. It cannot be claimed that non-discriminatory fisheries protection zones are in a different position. The Convention on the Law of the Sea did not invalidate the establishment of the zones that had already been created before the Convention entered into force.
(25)
Neither international customary law nor the Convention on the Law of the Sea imposes an obligation on the coastal states to establish a full economic zone. The claim that the rules that apply in the Svalbard Fisheries Protection Zone mean that Norway does not meet its obligations under the Convention on the Law of the Sea is contested.
(26)
It is also contested that unfair discrimination of fishing vessels based on nationality takes place. The reporting regulations apply to all fishing vessels regardless of nationality. The Norwegian authorities monitor all fishing vessels that operate in the fisheries protection zone without taking their nationality into consideration, and both Norwegian, Spanish and Russian vessels have been arrested in connection with serious violations of the provisions.
(27)
It is correct, as argued, that Russian vessels do not send new start of fishing reports, end of fishing reports or weekly reports, cf. Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard Section 2. The Norwegian authorities react to these violations by Russian vessels by issuing warnings, but the same is done in relation to shipowning companies from other countries. There is therefore no basis for claiming that there are significant differences in the enforcement of these rules in relation to Russian vessels compared with vessels from other countries.
(28)
Norway has omitted to implement general measures with a view to forcing Russian vessels to comply with the regulations. However, as the Court of Appeal concluded, this is not in breach of the requirement for equal treatment. The enforcement must be seen in connection with the fact that an important difference exists as regards the need to monitor Russian vessels compared with vessels from other countries. Norway and Russia agree on an annual total fishery quota for North-East Arctic cod in the Norwegian Sea and the Barents Sea, including the Svalbard Fisheries Protection Zone. The catches made by Russian vessels fall under this part of the total quota, regardless of whether they fish inside or outside the fisheries protection zone. It is the Russian authorities that monitor compliance with the quotas here.
(29)
On this basis, there is no unfair differential treatment on the basis of nationality between Russian vessels and vessels from other countries with respect to the enforcement of the rules. Therefore, there is no violation of the prohibitions on discrimination in ICCPR Article 26 or the Svalbard Treaty Articles 2 and 3. Nor is there any basis for claiming that the indictment is in breach of the non-statutory equality principle in Norwegian law.
(30)
On the basis of the above, it is not necessary to take a stance on whether the provisions of the Svalbard Treaty are applicable in the fisheries protection zone. If the Supreme Court nevertheless finds it necessary to take a stance on this issue, the prosecuting authority's view – in line with the official Norwegian view – is that the Svalbard Treaty does not apply in the fisheries protection zone.
(31)
Even if it were concluded that unfair discrimination had taken place based on one of the grounds invoked by the appellants, it is contested that this would constitute grounds for acquitting the appellants or for the criminal case being dismissed by the courts.
(32)
There is no basis for dismissing the case against the shipowning company pursuant to the provisions of ECHR Protocol 7 Article 4 No 1. Reference is made to the grounds cited by the Court of Appeal, which the prosecuting authority endorses on this point. This is a case of parallel prosecution which, pursuant to the ECtHR's case law, is not in contravention of the ECHR. Particular reference is made to the ECtHR's inadmissibility decision of 30 May 2000 in the R. T. v. Switzerland case (EMD-1996-31982), which concerns a case that is, in the prosecuting authority's opinion, a parallel to our case. The minority in Rt-2002-557 and Jens Edvin A. Skoghøy's article in TfR 2003 page 1 ff. on page 26–27 found that an exception applies when a decision has been made in the first instance before the barring decision becomes final and enforceable. Nothing has emerged to indicate that the understanding of the law on which the ECtHR based its decision in the R. T. case should be set aside. The fact that notices of fines/confiscation have been issued must in this context be deemed to be on a par with a administrative decision in the first instance. There are no real grounds to indicate that these cases should be treated differently.
(33)
The prosecuting authority has entered the following statement of claim:
