HELGESEN A OSTATNÍ proti Norsku

SECOND SECTION

DECISION

Application no. 38015/22
Bjarte HELGESEN and Others
against Norway

The European Court of Human Rights (Second Section), sitting on 24 January 2023 as a Committee composed of:

Egidijus Kūris, President,
Pauliine Koskelo,
Frédéric Krenc, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 38015/22) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 August 2022 by the applicants listed in the appended table (“the applicants”), who were represented before the Court by Mr L.M. Holm, a lawyer practising in Oslo;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicants’ complaints under Articles 6 and 8 of the Convention that they had been obliged to undergo quarantine upon their re-entry into Norway, imposed in the context of the COVID-19 health pandemic. The applicants owned holiday homes in Sweden and applied to the domestic courts for a review of that obligation. When the obligation had first been introduced, in March 2020, it had imposed a quarantine for fourteen days. This had been gradually reduced to ten days and, later, seven days, in the event that a negative COVID-19 test could be presented. The obligation was removed in January 2022. A review was carried out by the Oslo City Court, the Borgarting High Court and the Supreme Court, which, in a judgment of 6 April 2022, found that the quarantine measure in question had been lawful and proportionate.

2. The Supreme Court, in particular, examined the question of whether the disputed quarantine obligation complied with Article 8 of the Convention as part of the relevant legal framework. It referred to the Court’s judgments in Fenech v. Malta (no. 19090/20, § 96, 1 March 2022) and Communauté genevoise d’action syndicale (CGAS) v. Switzerland (no. 21881/20, 15 March 2022), which, as the Supreme Court noted, had not yet become final at the time of its judgment. With reference to those cases, the Supreme Court indicated that, when carrying out concrete assessments of whether the Convention had been violated, the particular, unforeseen and serious situation that the COVID-19 health pandemic had caused had to be taken into account.

3. The Supreme Court also recapitulated the situation of persons who owned holiday homes in Sweden and noted that the parties to the case before it had owned their holiday homes in areas where the quarantine obligation had been lifted periodically in the summer and autumn of 2020. However, no further information was given as regards that aspect.

4. As to whether the quarantine obligation had met the requirements of domestic law, the Supreme Court stated that the applicants had not disputed that the obligation to undergo quarantine upon re-entry into Norway had, in general, been proportionate. The basis for their claim was that the quarantine obligation had also applied to persons whose travel to holiday homes in Sweden had not entailed the use of public transport, visits to shops in Sweden or close contact with persons in Sweden during their stay there. Against that background, the Supreme Court stated that the question in the case before it was whether there should have been more extensive exemptions from an obligation that, as a starting-point, did meet the requirements of domestic law.

5. In carrying out its examination of that matter, the Supreme Court found it established that in the spring of 2020 there had been a clear medical justification for introducing a quarantine obligation for persons travelling from Sweden, with as few exemptions as possible. Persons who owned holiday homes in Sweden had not been in any exceptional position which had rendered the quarantine disproportionate in respect of them. The court further concluded that there had still been a sufficient medical justification to uphold the measures in the subsequent period. It commented in that context on the degree of the spread of the COVID-19 virus in Sweden and the views of the relevant health authorities at the time, and also attached weight to the risk of non-compliance had any conditions been introduced for further exemptions for owners of holiday homes outside Norway. It further considered relevant the authorities’ considerations to the effect that if holiday home owners abroad did not comply with the conditions for being exempt from the quarantine obligation upon re-entry into Norway there would be some increase in the risk of importing COVID-19 infections, and that it would be difficult to ascertain whether the conditions had in fact been complied with, meaning that any system of exemptions would have had to be based on trust.

6. The Supreme Court considered that the use of the applicants’ holiday homes would have been a matter of considerable interest to them in terms of their welfare. At the same time the measure in question had not gone to the core of the right to respect for a person’s home under Article 8 of the Convention. Persons who owned holiday homes in Sweden had their principal homes in Norway and they had not been prohibited from going to their holiday homes and staying there for as long as they wished. However, the rules had set out that if they stayed overnight, unless they had gone to their holiday homes in order to carry out necessary maintenance or inspections, they had to undergo quarantine upon re-entry into Norway.

7. In the overall assessment of whether the impugned measures had been proportionate in the light of the requirements set out by domestic law relating to protection against the spread of infectious diseases, the Supreme Court found it significant that the pandemic had been very serious and had called for extensive infection control measures. Compared with other measures imposed on Norwegian citizens, the re-entry quarantine requirement for persons with holiday properties in Sweden did not appear to have been overly strict. The re-entry quarantine had been a general measure that had not affected this group more than others. The conditions which the applicants had challenged had entailed their being considered on a par with everyone else who had wished to travel abroad. During the period from November 2020 to May 2021, a large part of the Norwegian population had experienced highly intrusive measures, including closures of shops, bars and restaurants, strict regulation of the number of visitors in private homes and bans on events.

8. Proceeding to the specific question of whether the measures had entailed a violation of Article 8 of the Convention, the Supreme Court considered, with reference to Demades v. Turkey (no. 16219/90, §§ 31-32, 31 July 2003), that each of the applicants’ holiday homes constituted a “home” within the meaning of that provision. Although the applicants had been free to use their holiday homes while having to comply with the obligation to undergo quarantine upon their return to Norway, the Supreme Court also considered that the burden that the quarantine obligation had entailed, had in practice amounted to an “interference” within the meaning of Article 8 § 2. In that connection the Supreme Court referred to Dzemyuk v. Ukraine (no. 42488/02, § 77, 4 September 2014).

9. With regard to the question of proportionality, the Supreme Court noted that the assessment would largely be the same as that carried out under domestic law, which also required proportionality (see paragraphs 4-7 above).

10. The Supreme Court emphasised that exemptions from the quarantine obligation had been made mostly on the basis of weighty societal interests or humanitarian considerations. The fact that the owners of holiday homes could also claim protection under Article 8 of the Convention could not have led to their having to be treated more favourably than or on a par with others who had also found themselves in extraordinary situations. The court concluded that the interference with rights under the Constitution and Article 8 had been proportionate.

THE COURT’S ASSESSMENT

1. Alleged violation of Article 8 of the Convention

11. The applicants complained under Article 8 of the Convention that they had been obliged to undergo quarantine upon their re-entry into Norway. They submitted that there had been insufficient evidence to prove the proportionality of the impugned measure. The assessment had not been based on research or specific knowledge and had not included comprehensive legal assessments. The Supreme Court had not made any proper assessment of the necessity, appropriateness and proportionality of the measure.

12. The Court considers that the obligation on the applicants to undergo quarantine upon re-entry into Norway following a stay in their holiday home in Sweden entailed an “interference” with the right to respect for that “home” of each of the applicants. The quarantine obligation had been in accordance with the law and had pursued the legitimate aim of protection of health, in compliance with Article 8 of the Convention, as was not contested by the applicants. The focus of the application was their allegation that the quarantine obligation had been disproportionate in respect of them.

13. The Court notes that the proportionality of the disputed obligation for the applicants to undergo quarantine was examined in detail by domestic courts at three levels. As to the applicants’ argument that the Supreme Court did not carry out a sufficiently profound review, the Court notes that it appears from the Supreme Court’s judgment that the information that had been available to the authorities formed an integral part of its assessment of the necessity of establishing and maintaining the quarantine obligation without further exemptions for persons who owned holiday homes in Sweden. Moreover, the Court notes that the Supreme Court took into account the interests of the applicants as owners of holiday homes abroad and how they had been affected by the obligation to undergo quarantine upon their return to Norway (see paragraph 6 above).

14. Furthermore, the Court understands that the reason why the Supreme Court focused on the issue of whether there should have been further exemptions from the general re-entry quarantine for persons in Norway who owned holiday homes in Sweden was connected to the fact that the applicants had not disputed that the re-entry quarantine was in general a proportionate restriction in the circumstances (see paragraphs 4 and 10 above). Against that background, the Court also finds no reasons to consider that the Supreme Court’s findings relating to the risk of non-compliance with any such further exemptions were not pertinent (see paragraph 5 above).

15. On the basis of the foregoing, the Court is satisfied that the national courts adequately balanced the applicants’ personal interests against the more general interests of protecting the health of the community at large by attempting to limit the spread of COVID-19 infections. It cannot therefore agree with the applicants that there was no proper proportionality assessment at domestic level. The Court reiterates that domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, without any real balancing of the interests in issue, this would be contrary to the requirements of Article 8 of the Convention. In such a scenario, the Court will find that the domestic courts failed to demonstrate convincingly that the respective interference with a right under the Convention was proportionate to the aim pursued and thus met a “pressing social need”. At the same time, where independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for the Court to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see, mutatis mutandis, Savran v. Denmark [GC], no. 57467/15, §§ 188-89, 7 December 2021). The applicants in the present case have not adduced any such strong reasons in their application to the Court.

16. In the light of the above, the Court concludes that the complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Alleged violation of Article 6 of the Convention

17. The applicants also complained under Article 6 of the Convention that the proceedings in their case had been unfair. The complaint concerned material which, in the applicants’ view, the State authorities should have disclosed during the domestic proceedings.

18. The Court observes that the applicants made a broad request for disclosure of documents while the case was pending on appeal to the Supreme Court, and that the State authorities’ response did not fully correspond to that request. A response was, however, given during the written preparation of the case before the Supreme Court but no information has been provided to the Court to indicate whether the applicants followed up on that matter while the case was still pending.

19. In the light of the above, the Court does not consider that the applicants have substantiated that any matters relating to the disclosure of material put them at any substantial disadvantage vis-à-vis the State authorities in the course of the domestic proceedings. The Court accordingly considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint does not disclose any appearance of a violation of Article 6 of the Convention.

20. It follows that the complaint must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2023.

Dorothee von Arnim Egidijus Kūris
Deputy Registrar President

Appendix

List of applicants:

Application no. 38015/22