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Regjeringsadvokaten argumenterer uten blygsel for at siden man ikke har anført EMK artikkel 8 i norsk rett, så er ikke alle sider av førerkortsaken prøvd for norsk rett. Man har derfor ikke prøvd alle sider av saken for norsk rett. Fasciststaten fornekter seg ikke.

Det skulle ikke være borgerene sin plikt å rette på feil anvendelser av lovverket. Det er domstolens og statens ansvar.

Grov forskjellsbehandling er det uansett. Rekken av lover som brytes er lang, men her klarte altså staten og Politidirektoratet å redde seg selv med en fidus mot eget folk.

Rekken av lover som brytes er lang.

Grunnloven:

§ 92. Statens myndigheter skal respektere og sikre menneskerettighetene slik de er nedfelt i denne grunnlov og i for Norge bindende traktater om menneskerettigheter.

§ 98. Alle er like for loven. Intet menneske må utsettes for usaklig eller uforholdsmessig forskjellsbehandling.

§ 102. Enhver har rett til respekt for sitt privatliv og familieliv, sitt hjem og sin kommunikasjon. Husransakelse må ikke finne sted, unntatt i kriminelle tilfeller.

Statens myndigheter skal sikre et vern om den personlige integritet.

§ 113.

Myndighetenes inngrep overfor den enkelte må ha grunnlag i lov.

Europiske menneskerettskonvensjon EMK:

Lov om styrking av menneskerettighetenes stilling i norsk rett (menneskerettsloven)

Vedlegg 2. Den europeiske menneskerettskonvensjon med protokoller (norsk oversettelse)

Konvensjon om beskyttelse av menneskerettighetene og de grunnleggende friheter 

Del I – Rettigheter og friheter

Art 8. Retten til respekt for privatliv og familieliv, 

1. Enhver har rett til respekt for sitt privatliv og familieliv, sitt hjem og sin korrespondanse.

2. Det skal ikke skje noe inngrep av offentlig myndighet i utøvelsen av denne rettighet unntatt når dette er i samsvar med loven og er nødvendig i et demokratisk samfunn av hensyn til den nasjonale sikkerhet, offentlige trygghet eller landets økonomiske velferd, for å forebygge uorden eller kriminalitet, for å beskytte helse eller moral, eller for å beskytte andres rettigheter og friheter.

Menneskerettighetsdomstolen i Strassbourg har dessverre avslått å behandle klagen fra mannen som ble fratatt førerkortet på grunnlag av å ha røykt hasj et par ganger i måneden, og som aldri har kjørt bil i påvirket tilstand. Det er en skammens dag for norsk rettssikkerhet.

Domstolen i Strassbourg har for så vidt gjort alt riktig, men det har verken den norske stat eller norske domstoler. Heldigvis lærer vi, så neste rettsak som reises må reises med henvisning til EMK artikkel 8 allerede i tingretten.

Vi ses i retten, Den norske stat.

Her er avgjørelsen fra Strassbourg.

● Relevant domestic law !. The Constitution

18. Articles 102 and 113 of the Norwegian Constitution (Grunnloven) of 17 May 1814, as revised in May 2014, read as follows:

Article 102

“Everyone has the right to respect for their privacy and family life, their home and their communication. Searches of private homes shall not be carried out except in criminal cases.
The authorities of the State shall ensure the protection of personal integrity.”

Article 113

“Any interference with the individual by the authorities must be founded on

the law.”
#. The Human Rights Act

19. The relevant parts of sections 2 and 3 of the Human Rights Act (menneskerettsloven) of 21 May 1999 read as follows:

Section 2

“The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway:
1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: …”

Section 3

“The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.”

$. The Dispute Act
20. The relevant subsections of section 29-3 and section 30-4 of the Dispute Act (tvisteloven) of 17 June 2005 read as follows:

Section 29-3 – Grounds of appeal

“(1) An appeal may be brought against a judgment or an interlocutory order on the grounds of error in the assessment of the facts, error in the application of law or error in the procedure upon which the ruling is based.”

Section 30-4 – Leave to appeal against judgments

“(1) Judgments cannot be appealed against without leave. Leave can only be granted if the appeal concerns issues that are of significance beyond the scope of the current case or if it is important for other reasons that the case be decided by the Supreme Court.

(2) The issue of leave shall be determined for each appeal. Leave may be limited to specific claims and to specific grounds of appeal, including specifically invoked errors in the application of the law, procedure or the factual basis for the ruling.”

%. The Road Traffic Act
21. Section 34(5) of the Road Traffic Act (vegtrafikkloven) of 18 June 1965

reads as follows:
“If the holder of a driving licence does not have sober habits [ikke er edruelig] or his conduct is otherwise such that he is not considered suitable to drive a motor vehicle, the chief of police or anyone authorised by him may withdraw the right to drive a motor vehicle for a specific length of time or indefinitely, if considerations of road safety [hensynet til trafikksikkerhet] or public interest [allmenne hensyn] so require.”

COMPLAINT

22. The applicant complained under Article 8 of the Convention about the decision to withdraw his right to drive a motor vehicle.
THE LAW
23. The applicant maintained that the decision to withdraw his right to drive, with accompanying conditions relating to submitting to urine tests in order to regain it, had entailed an interference with his right to respect for his private life as enshrined in Article 8 of the Convention, the relevant parts of which read as follows:

“1. Everyone has the right to respect for his private and family life …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

24. The applicant argued that the withdrawal decision had not been in accordance with the law as required by the second paragraph of Article 8 of the Convention, essentially as there had been a change in administrative practice in recent years whereby a distinction between legal and illegal intoxicants had been introduced. Relying on that distinction in the applicantʼs case had been incompatible with section 34(5) of the Road Traffic Act and had made the application of that provision unforeseeable.

25. The Government objected to the admissibility of the complaint on the ground that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. The applicant had not relied explicitly on Article 8 in the domestic proceedings and neither had he raised his Convention complaint in substance. Were the Court to find that the applicant had raised his Convention complaint in substance in his appeal to the Supreme Court by relying on Article 113 of the Constitution, it would in any event be immaterial since it had been at the last possible stage of the domestic proceedings, and the Supreme Court had strict conditions for granting leave to appeal. The particular issue of mandatory drug tests had under no circumstances been raised before the domestic authorities.

26. As to admissibility the applicant submitted that, although he had not expressly relied on Article 8 in the domestic proceedings, he had raised his Article 8 complaint in substance. In that respect, he had also expressly included the aspect of mandatory urine tests in his submissions to the

domestic authorities. No part of the application was therefore inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies.
27. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach (see, among many authorities, Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 52, 20 January 2020).

28. In the instant case the procedural action taken by the applicant – applying to the domestic courts for a judicial review of the decision to withdraw his right to drive – was capable of remedying directly the state of affairs in question and offered reasonable prospects of success. It was, in that sense, an effective remedy (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).

29. As to whether the applicant made adequate use of this remedy, the Court reiterates that it is the Convention complaint which must have been aired at national level for there to have been “exhaustion” of the “effective remedies” available. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (ibid., § 75). It is true that an applicant is not obliged to refer explicitly to the Convention. However, where an applicant has not expressly raised a Convention complaint in domestic proceedings, it must be examined whether it was nonetheless raised “at least in substance” (ibid., § 72). If not, the application will be inadmissible because of non-exhaustion.

30. It was not disputed between the parties to the present case that the applicant did not expressly rely on Article 8 of the Convention before the domestic courts. While observing that the Convention is a fully integral part of the Norwegian legal system by way of the Human Rights Act (see paragraph 19 above), the Court also notes that no real reasons have been provided as to why the applicant did not expressly rely on Article 8. Before the domestic courts, he made a number of submissions to show that the conditions in section 34(5) of the Road Traffic Act had not been met. In his appeal to the Supreme Court he also maintained that the withdrawal of his right to drive would contravene Article 113 of the Constitution, which provides that any interference with an individual must have a basis in law (see paragraph 18 above), and on that account complained that the law was insufficiently foreseeably as to its application. However, Article 102, which is the relevant domestic parallel to Article 8 of the Convention, was not invoked.

31. The Court would first point out that it agrees with the Government that raising a Convention complaint only on appeal to the Supreme Court cannot in the Norwegian system normally be viewed as sufficient exhaustion of remedies in cases where nothing has prevented the applicant from raising the complaint

before the lower courts. This consideration is supported by the provisions of the Dispute Act (see paragraph 20 above), from which it appears not only that appeals to the Supreme Court must normally target “errors” in the High Courtʼs judgments (section 29-3), but also that the Supreme Court can normally only take on cases of general or particular importance (section 30-4). It follows that it is essentially inconsistent with the domestic civil procedural system and the role that the Supreme Court plays therein for an applicant to lodge a Convention complaint for the first time before the Supreme Court; it follows also that an applicant cannot expect a complaint lodged for the first time at that level of appellate jurisdiction to be decided on the merits (see similarly, for example, Harvey v. the United Kingdom (dec.), no. 80237/13, § 64, 21 November 2017). For these reasons, the Court does not find it necessary to examine the implications of the applicant having relied only on Article 113 of the Constitution in the instant case and not Article 102 which is the parallel to Article 8 of the Convention, or the arguments he made in that context, as that provision was in any event invoked too late to be relevant for the question of exhaustion of domestic remedies.

32. The remaining question is whether the other arguments submitted by the applicant in the course of the domestic proceedings may be considered to amount to reliance in substance on Article 8 of the Convention.
33. In that connection, the Court accepts that the applicantʼs objection before the domestic courts – that the decision to withdraw his right to drive was not in accordance with section 34(5) of the Road Traffic Act – was not unrelated to his principal argument before the Court, namely that the decision was not in accordance with the law under the second paragraph of Article 8 of the Convention. In particular, the applicant objected to the decision on the ground that it had relied on the fact that he had used an illegal intoxicant, which in his view was immaterial to the question of the right to drive. The fact nonetheless remains that the only assertion made by the applicant from the outset and throughout the domestic proceedings was that the provision in the Road Traffic Act, properly construed, did not apply to the facts of his case, which is not the same as the complaint that he subsequently lodged with the Court.

34. Furthermore, the Court considers that before the domestic courts the applicant did not link – either expressly or at least in substance – his arguments against the decision in question to an interference with his right to respect for his “private life”. It can be seen from the case file that he argued on different occasions during the administrative and judicial proceedings that the decision was “intrusive” and a “serious interference” that had placed considerable stress on him (see, for example, paragraphs 9, 11 and 14 above), particularly because of his job. The condition of regular visits to health personnel was also one of the matters he emphasised in that regard (ibid.). It is nonetheless evident that these arguments were made in the context of his assertion that the legal criteria contained in the provision in the Road Traffic Act had not been met, and that they were not made in a manner that gave the domestic courts the opportunity to address any possible issue now raised before the Court under Article 8 of the Convention.

35. It follows from the above that the Governmentʼs objection that the applicant did not exhaust domestic remedies in the instant case is well founded. Consequently, the application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 in fine of the Convention.

For these reasons, the Court, unanimously, Declares the application inadmissible.

Done in English and notified in writing on 28 May 2020. Stanley NaismithRobert Spano
RegistrarPresident

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