AS TO THE ADMISSIBILITY OF
Application No. 21041/92
by Parley Albert AUGUSTSSON
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 August 1992 by
Parley Albert Augustsson against Norway and registered on
8 December 1992 under file No. 21041/92;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 January 1995 and the observations in reply submitted
by the applicant on 20 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Norwegian citizen, born in 1939. He is a ship
owner by profession and resides in Espona, Spain. Before the Commission
he is represented by Mr. Tore Thomassen, a lawyer practising at
Stavanger, Norway.
A. The particular circumstances of the case
In 1974 the applicant began building up his own shipping business
which became known in Norway as the Balder group. As from 1983 the
applicant managed the various activities from his headquarters in
London. The group consisted of a number of companies, of which the
applicant was considered to be the de facto owner and manager, as well
as a number of other companies which, one way or the other, were
related to or controlled by the Balder group. During its most
prosperous period the Balder group had 1100 employees and managed some
60 vessels. The assets of the parent company, Balder Invest A/S, as per
31 December 1983 totalled more than two thousand million NOK.
Due to subsequent financial difficulties, however, the parent
company, Balder Invest A/S, was dissolved in early 1985 and bankruptcy
proceedings concerning the entire Balder group were opened on
14 May 1985. Due to the financial implications, the collapse of the
Balder group attracted substantial media attention in Norway.
Furthermore, the applicant maintains that the local police contacted
the administrators of the estate in bankruptcy (bostyret) in June 1985
with a request to be kept informed of the developments in the case and
that he, the applicant, was informed hereof in June 1985 as well. The
Government maintain, on the other hand, that it has not been possible
to ascertain whether there was any contact between the administrators
and the police before March 1986, and that it is clear that no
investigations were ordered before April 1986.
On 19 February 1986 the administrators of the estate submitted
a preliminary report to the Asker and Bærum Probate Court
(skifteretten). The report concerned approximately 200 companies and
partnerships involved in the collapse of the Balder group. As regards
possible criminal activities the report contained the following:
(Translation)
"At present we have not examined in detail whether the acts
described in this report fall within the scope of the Penal
Code.
So far, the administrators of the estate consider that the
conditions for absolute criminal liability as set out in
chapter 27 of the Penal Code in part subsists and the
report shall therefore be forwarded to the prosecution
authority in accordance with section 31 of the Bankruptcy
Act of 1863."
This was done on 14 March 1986 following which the Eidsivating
public prosecutor's office (Eidsivating statsadvokatembetet) ordered
an investigation of the Balder group bankruptcy in April 1986. The
investigation first concentrated on collecting information. Because of
the volume of documents special premises and office equipment were
hired and the interrogation of persons involved in the case commenced
in the beginning of 1987 with a view to obtaining information about the
management routines of the Balder group. Due to the complexity of the
case the police requested, and obtained, the assistance of
court-appointed accounting experts in March 1987. In August 1987 the
interrogation of employees in key positions in the Balder group
commenced and extensive interrogations of the group's directors were
carried out as from October 1988.
The applicant was interrogated for the first time on
5 December 1988 followed by 13 interrogations until 14 March 1989. On
9 February 1989 preliminary charges (foreløbige siktelser) were made
against five persons in the management of the Balder group, including
the applicant. On 29 March 1989 defence counsel was appointed for the
applicant.
On 7 April 1989 the accounting experts submitted their report
which led to further investigations by the police. In this connection
the applicant was interrogated again on 2 May 1989.
On 3 November 1989 and 23 April 1990 new charges were brought
against the applicant and during the months of May and June 1990 he was
interrogated again four times.
On 7 September 1990 the indictment was served on the applicant.
He was charged with having contravened section 274 of the Penal Code
by having given incorrect or misleading information to investors,
sections 275 and 276 by having been involved in illegal financial
transactions in particular within the Balder group companies, and
section 286 by having wilfully or negligently disregarded provisions
relating to bookkeeping and accounting.
The indictment and the evidence involved were transmitted to the
Asker and Bærum District Court (herredsretten) on 1 November 1990. It
appears that it was tentatively agreed to commence the court hearings
on 12 August 1991. On 24 May 1991, however, counsel for the applicant
informed the Court that, in their opinion, the hearing could not take
place in 1991. Having obtained the prosecution's view the Court met
with the parties on 5 July 1991 following which the hearing was fixed
to commence on 5 November 1991.
The hearing commenced on 5 November 1991 and lasted fourteen
court days. Judgment was pronounced on 30 January 1992. The applicant
was found guilty of some of the charges brought against him and
acquitted of other charges. As regards the sentence the Court stated
inter alia:
(Translation)
"The acts in question were committed 6 to 7 years ago and
the investigations took a very long time. The Court finds
that this was due to the applicant's behaviour which means
that the time element should have some mitigating effect.
However, the Court notes that cases of this kind normally
require substantial investigation and thus often become
old. It is from the point of view of general prevention
(allmenpreventive hensyn) that this case requires a severe
reaction."
The applicant was sentenced to two years' imprisonment of which
20 months were suspended. He was furthermore sentenced to pay a fine
of 100,000 NOK.
The applicant appealed against the judgment to the Supreme Court
(Høyesterett). He requested the Court to dismiss (avvise) the case due
to its duration which in his opinion was exorbitant and referred to
Article 6 para. 1 of the Convention. In the alternative he requested
the sentence to be reduced.
On 14 May 1992 the Appeals Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) refused leave to appeal. The applicant
was informed thereof on 19 May 1992.
B. Relevant domestic law
In Norway, the investigation of crimes is the responsibility of
the police and the prosecuting authorities. This appears from the
Criminal Procedure Act (straffeprosessloven) of 26 May 1981, the
relevant parts of which read as follows:
(Translation)
"Chapter 18. Criminal investigation.
Section 224. A criminal investigation shall be carried out
when as a result of a report or other circumstances there
is reasonable ground to inquire whether there is some
criminal matter which is to be prosecuted by the public
authorities.
...
Section 225. A criminal investigation is instituted and
carried out by the police. Without a decision from a
superior any police officer may take such steps as cannot
be postponed without detriment.
The Director General of Public Prosecutions and the public
prosecutor concerned may order an investigation to be
instituted and decide how it is to be carried out, and may
also order it to be stopped.
...
Section 226. The purpose of the investigation is to obtain
the necessary information for deciding whether an
indictment should be preferred, and to serve as preparation
for the trial of the case.
...
If a specific person is under suspicion, the investigation
shall seek to clarify both the evidence against him and the
evidence in his favour.
The investigation shall be carried out as rapidly as
possible and in such a way that no one is unnecessarily
exposed to suspicion or inconvenience.
Section 230. The police may record statements by suspected
persons, witnesses and experts but may not order any person
to make a statement. Public officials and other persons
acting on behalf of the State or a municipality are
nevertheless obliged to make a statement concerning matters
with which they have become acquainted in their position or
office if this can be done without breaching any duty of
secrecy imposed on them by any statute, regulation or
directive.
...
Section 232. Before the suspect is examined, he shall be
informed of the nature of the case, and be told that he is
not obliged to make a statement.
If he is willing to make a statement, he shall be
encouraged to make a true statement. The provisions of
section 92 shall apply correspondingly.
Section 237. The prosecuting authority may apply for a
judicial examination, a judicial inquiry or the appointment
of experts for use in the criminal investigation. The court
is bound to grant the application unless it finds that the
matter to which the investigation relates is not criminal,
or that the criminal liability has lapsed, or that there is
no legal power to grant the application. ...
Section 242. The suspect, his defence counsel, and the
aggrieved party shall on application be permitted to
acquaint themselves with the documents relating to the case
in so far as this can be done without detriment or risk to
the purpose of the investigation or to a third party. ...
If the suspect or his defence counsel is denied access to
the said documents, the issue may be required to be decided
by an order of the court.
..."
According to section 249 in the Criminal Procedure Act, the
question of preferring an indictment shall be decided as soon as the
case is sufficiently prepared for this purpose.
COMPLAINTS
The applicant complains, under Article 6 para. 1 of the
Convention, that the criminal case against him was not determined
within a reasonable time.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 August 1992 and registered
on 8 December 1992.
On 2 September 1994 the Commission (Second Chamber) decided that
notice of the application should be given to the respondent Government
and invited them to submit written observations on the admissibility
and merits thereof.
Following two extensions of the time-limit fixed for this purpose
the Government submitted their observations on 27 January 1995.
Following one extension of the time-limit the applicant submitted
his observations in reply to those of the Government on 20 April 1995.
THE LAW
The applicant complains that the criminal case against him was
not determined within a reasonable time. He invokes Article 6 para. 1
(Art. 6-1) of the Convention which in so far as relevant reads as
follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time ... ."
As regards the period to be considered the applicant maintains
that it commenced on 14 May 1985, i.e. at the same time as the
bankruptcy proceedings concerning the Balder group opened. The
Government maintain, however, that the period commenced in
December 1988 when the applicant was interrogated by the police for the
first time.
The Commission recalls that according to the case-law of the
Convention organs the period to be taken into consideration under
Article 6 para. 1 (Art. 6-1) of the Convention must be determined
autonomously. It begins at the time when formal charges are brought
against a person or when that person has otherwise been substantially
affected by actions taken by the prosecuting authorities as a result
of a suspicion against him (cf. for example Eur. Court H.R., Eckle
judgment of 15 July 1982, Series A no. 51, p. 33, para. 73).
In the present case the Commission recalls that the bankruptcy
proceedings concerning the Balder group opened on 14 May 1985. In the
light of the fact that this was one of the biggest bankruptcies in
Norwegian history involving many companies and hundreds of investors
it is obvious that the applicant was affected thereby, in particular
having regard to his prominent position in the Balder group. However,
although the bankruptcy proceedings may have led to serious
implications for the applicant the Commission does not consider that
he thereby can be considered as having been "charged" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
In April 1986 the public prosecutor's office opened an
investigation in order to clarify whether the collapse of the Balder
group was caused by, or otherwise involved, any criminal activity.
However, at that moment in time no charges were made against the
applicant, or any other person of the Balder group, nor was any other
measure taken which could lead to the conclusion that the applicant,
or anybody else, had committed a criminal offence or had been charged
with having done so. It is clear from the facts of the case that the
preliminary investigations were more of a fact-finding nature due to
the complexity of the case and the amount of documentary evidence
involved. In these circumstances the Commission does not consider that
the opening of the criminal investigation into the collapse of the
Balder group as such would lead to the applicant being "charged" within
the meaning of Article 6 (Art. 6) of the Convention, nor that this
measure carried the implication of such an allegation and thereby
substantially affected his situation.
The applicant's direct involvement in the police investigation
commenced on 5 December 1988 when he was interrogated by the police for
the first time about his activities in the Balder group. Although
preliminary charges were not brought against him until 9 February 1989
the Commission considers that, as from 5 December 1988, the applicant
was in the circumstances substantially affected by the criminal
investigation proceedings for the first time. Consequently, from that
date the applicant was "charged" for the purposes of Article 6 para. 1
(Art. 6-1) of the Convention and the "reasonable time" referred to in
this provision began to run from that moment.
The Commission considers that the proceedings should be regarded
as having been terminated on 19 May 1992 when the applicant was
informed of the decision of the Appeals Selection Committee of the
Supreme Court not to grant him leave to appeal. Thus, the total length
of the proceedings which the Commission must assess under Article 6
para. 1 (Art. 6-1) of the Convention was 3 years and 51/2 months.
From a general point of view the reasonableness of the length of
the proceedings must be assessed with reference to the complexity of
the case, the conduct of the applicant and that of the authorities
before which the case was brought (cf. the above-mentioned Eckle
judgment, p. 35, para. 80).
As regards the complexity the applicant maintains that the Balder
group in fact consisted of very few companies and that the whole set-up
was fairly simple. Accordingly, he maintains that any investigations
beyond one year as from their commencement were mainly due to
inadequate structuring of the investigators' procedures.
The Government maintain that the case was very complex and the
investigation extremely difficult in view of the many companies
involved, the vast number of financial transactions and the inadequate
bookkeeping requiring comprehensive examinations in order to disclose
whether criminal activities were involved.
The Commission recalls that the basis for the charges brought
against the applicant lay in a bankruptcy of major dimensions in
Norway, involving companies in Norway and abroad. Having regard to the
facts as submitted the Commission finds it clear that the
investigations were very time-consuming and difficult. Thus, for the
purposes of Article 6 (Art. 6) of the Convention the case was of a very
complex nature.
As regards the applicant's conduct the Commission has not,
however, found it established that he acted in a way which
inappropriately prolonged the proceedings against him.
As regards the conduct of the authorities and courts the
Commission recalls that the charges were filed against the applicant
approximately two months after his initial interrogation and that the
investigations concerning the applicant were concluded and the case
sent to the court of first instance for adjudication within a period
of two years. A period of investigation of approximately two years,
from 5 December 1988 until 1 November 1990, may at first sight appear
excessive, in particular in the light of the fact that investigations
covering the entire Balder group had commenced much earlier.
Nevertheless, the Commission does not consider that the facts of the
case, in the circumstances, disclose that the investigating authorities
acted inappropriately or otherwise failed to conclude their
investigations with due diligence as from the moment of the applicant's
involvement.
Furthermore, the proceedings before the Asker and Bærum District
Court and the Supreme Court, lasting a total of 1 year and 61/2 months
do not disclose to the Commission unacceptable periods of inactivity
which could bring the proceedings at variance with Article 6 (Art. 6)
of the Convention.
Therefore, making an overall assessment of the length of the
proceedings and noting that the District Court did take this into
consideration in respect of the sentence imposed, they did not, in the
Commission's view go beyond what may be considered reasonable in the
particular circumstances of the case. The applicant's complaint does
not, therefore, disclose any appearance of a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy