EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 13156/87
Jørgen Byrn
against
Denmark
REPORT OF THE COMMISSION
(adopted on 16 February 1993)
TABLE OF CONTENTS
Page
I. THE PARTIES
(paras. 1 - 2) . . . . . . . . . . . . . . . . . . . . .1
II. SUMMARY OF THE FACTS
(paras. 3 - 6) . . . . . . . . . . . . . . . . . . . . .1
III. PROCEEDINGS BEFORE THE COMMISSION
(paras. 7 - 19). . . . . . . . . . . . . . . . . . . . .3
IV. THE DECISION OF THE COMMISSION
(paras. 20 - 23) . . . . . . . . . . . . . . . . . . . .5
APPENDIX I : DECISION ON THE ADMISSIBILITY. . . . . . . . . .6
I. THE PARTIES
1 The present Report, which was drawn up by the European Commission
of Human Rights (Second Chamber) in accordance with
Article 30 para. 1 (c) of the Convention, concerns the application
brought by Jørgen Byrn against Denmark.
2 The Danish Government were represented before the Commission by
their Agent, Mr. Tyge Lehmann of the Ministry of Foreign Affairs.
II. SUMMARY OF THE FACTS
3 The facts of the case as submitted at the admissibility stage are
set out in the Commission's decision as to the admissibility of the
application of 1 July 1992, attached hereto as Appendix I. They may be
summarised as follows :
Preliminary investigations were instituted against the applicant
in February 1984 concerning alleged fraud and/or embezzlement. The
proceedings came to an end on 23 May 1990 when the High Court of
Eastern Denmark (Østre Landsret) acquitted the applicant of all charges
brought against him.
4 Before the Commission the applicant complains, under
Article 6 para. 1 of the Convention, of the length of the criminal
proceedings.
5 By judgment of the High Court of Eastern Denmark of
25 September 1992 the applicant was awarded compensation in the amount
of DKK 350,000 plus interest and costs. As regards the compensation
awarded in respect of pain, suffering and inconveniences as well as
disturbance of position and circumstances the High Court stated inter
alia :
(Translation)
"... on his arrest Jørgen Byrn was charged with
embezzlement which was a particularly serious and critical
charge for him as a lawyer. The High Court moreover refers
to the length of the investigation and the criminal
proceedings. The time spent on the hearing of the case
cannot be regarded as compatible with the demand for a fair
hearing within a reasonable time. However, the fact that
Jørgen Byrn's own participation in the process to some
extent has caused the case to take longer than usual for
similar cases should not be disregarded. The reason for
many of the problems pointed out by Jørgen Byrn in the
action for damages seems to be connected with his opinion
that he has been and still is subject to systematic
persecution in particular by authorities and colleagues
within the legal profession, the police, the Prosecution
and the courts of law. This has also caused the hearing of
this case by the High Court to take seven court days.
Jørgen Byrn's notion of this persecution, as stated by a
witness in this action, did not arise after the
commencement of proceedings in this case in February 1984,
but has presumably been intensified as a result of this in
which connection the lengthy proceedings have clearly had
an unfavourable influence. In addition, when taking into
consideration the general influence of the criminal
proceedings on Jørgen Byrn's business situation and
overall conditions of life, the Court finds that the
damages should be increased from the amount of DKK 100,000
as fixed by the City Court to DKK 300,000."
6 The Government submit, which is contested by the applicant, that
in view of the above judgment the applicant cannot any longer claim to
be a victim of a violation of the Convention.
III.PROCEEDINGS BEFORE THE COMMISSION
7 The application was introduced on 30 June 1987 and registered on
12 August 1987.
8 On 2 October 1989 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on the admissibility and merits of the application
in so far as it related to the applicant's complaint concerning the
length of the criminal proceedings.
9 The Government's observations were submitted on 8 December 1989
and the applicant's observations in reply were submitted on
29 January 1990.
10 On 16 February 1990 the Commission decided not to grant legal aid
to the applicant.
11 On 7 September 1990 the Commission decided to adjourn the further
examination of the case pending the outcome of the compensation
proceedings instituted by the applicant following his acquittal.
12 On 8 December 1990 the Commission decided to refer the
application to a Chamber.
13 On 10 April 1991 the Commission (Second Chamber), confirmed the
adjournment of the case pending the outcome of the compensation
proceedings instituted following the applicant's acquittal.
14 On 1 July 1992 the Commission decided to continue its examination
of the case and declared admissible the complaint concerning the length
of the proceedings. The remainder of the application was declared
inadmissible.
15 On 10 July 1992 the text of the Commission's decision on
admissibility was communicated to the parties who were invited to
submit any additional observations or further evidence which they
wished to put before the Commission.
16 By letter of 29 September 1992 the respondent Government informed
the Commission of the judgment of the High Court of Eastern Denmark of
25 September 1992.
17 By letter of 3 December 1992 the respondent Government informed
the Commission that a total amount of DKK 469,262.49 was placed at the
applicant's disposal on 30 October 1992. The amount was drawn from the
account in question on 3 November 1992.
18 On 16 February 1993 the Commission decided to strike the present
application off its list of cases, in accordance with
Article 30 para. 1 (c) of the Convention, the following members being
present :
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
F. MARTINEZ
J.-C. GEUS
19 It adopted the present Report and decided to transmit it to the
Committee of Ministers and the parties for information and to publish
it.
IV. THE DECISION OF THE COMMISSION
20 According to the constant case-law of the Commission and the
European Court of Human Rights an applicant who obtains adequate
redress at the domestic level for the alleged violation of the
Convention cannot, or cannot any longer, claim to be a "victim" of a
violation by one of the High Contracting Parties of the rights set
forth in the Convention (cf. for example No. 9320/81, Dec. 15.3.84,
D.R. 36 p. 24, No. 10259/83, Dec. 10.12.84, D.R. 40 p. 170,
No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237 and Eur. Court H.R., Eckle
judgment of 15 July 1982, Series A no. 51, p. 30, para. 66).
21 From its decision on admissibility the Commission recalls that
whereas the applicant was relieved, by his unconditional acquittal, of
any detrimental effects in respect of his complaint of an unfair trial,
his acquittal was not directly connected with the length of the
proceedings and could not therefore be considered as a direct or
indirect recognition of a violation of Article 6 in this respect, or
as a reparation for the damage allegedly caused thereby. Furthermore,
the Commission found that, although the compensation proceedings
instituted by the applicant in accordance with Chapter 93a of the
Administration of Justice Act (Retsplejeloven) would not in the
circumstances prevent the Commission from examining this complaint on
the merits, their outcome might nevertheless affect the applicant's
status as a "victim".
22 In the present case the Commission notes that the applicant
obtained a total of DKK 469,262.49 plus costs in compensation inter
alia for pain, suffering and inconveniences as well as disturbance of
position and circumstances caused by the criminal proceedings against
him. The High Court stressed in its judgment of 25 September 1992 that
the charges were particularly serious for the applicant being a lawyer
and found that the "time spent on the hearing of the case cannot be
regarded as compatible with the demand for a fair hearing within a
reasonable time".
23 In these circumstances the Commission finds that the applicant
obtained adequate redress at the domestic level for the alleged
violation of Article 6 para. 1 of the Convention concerning the length
of the proceedings, this being the only issue still pending before it.
It concludes, therefore, that it is no longer justified to continue the
examination of this application, within the meaning of
Article 30 para. 1 (c) of the Convention. It further considers that
respect for human rights as defined in the Convention does not require
the continuation of the examination thereof.
For these reasons, the Commission unanimously
DECIDES TO STRIKE APPLICATION NO. 13156/87 OFF ITS LIST OF CASES;
ADOPTS THE PRESENT REPORT;
DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers
for information, to send it also to the parties and to publish
it.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy