AS TO THE ADMISSIBILITY OF
Application No. 22939/93
by Jan HEFTYE BLEHR
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 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 7 June 1993 by
Jan Heftye Blehr against Norway and registered on 17 November 1993
under file No. 22939/93;
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 16 March 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 1940. He is a
lawyer by profession and resides at Nesøya, Norway. Before the
Commission he is represented by Mr. Johan Hjort, a lawyer practising
in Oslo.
A. The particular circumstances of the case
In 1979 the applicant joined an important shipping group which
was known in Norway as the Balder group. The group consisted of a great
number of companies based in Norway and abroad 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
60 vessels. The assets of the parent company, Balder Invest A/S, as per
31 December 1983, totalled more than two thousand million NOK.
The applicant was first appointed manager of one of the companies
and later financial director of the group. In addition he was on the
boards of directors in some of the companies in the group and held a
number of shares.
Due to subsequent financial difficulties, however, the parent
company 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.
On 19 February 1986 the administrators of the estate (bostyret)
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 subsist 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
with a view to obtaining information about the management routines of
the Balder group. In this respect the applicant was interrogated by the
police for the first time on 8 December 1986. Two additional
interrogations followed on 15 and 17 December 1986. Due to the
complexity of the case the police requested, and obtained, the
assistance of court-appointed accounting experts in March 1987. The
applicant was interrogated again on 15 July 1987.
In August 1987 the interrogation of employees in key positions
in the Balder group continued and extensive interrogations of the
group's directors were carried out as from October 1988. On
9 February 1989 preliminary charges (foreløbige siktelser) were made
against five persons in the management of the Balder group, including
the applicant who was interrogated again on 28 February and
14 March 1989.
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 29 May, 1 June and
12 June 1989.
On 23 April 1990 new charges were brought against the applicant
and he was interrogated again on 26 July and 13 August 1990.
On 7 September 1990 the indictment was served on the applicant.
He was charged with having contravened sections 275 and 276 of the
Penal Code by having been involved in illegal financial transactions
in particular within the Balder group companies, and section 12 of the
Taxation Act by having given false or incomplete information to the tax
assessment authorities.
The indictment and the evidence involved were transmitted to the
Asker and Bærum District Court (herredsretten) on 21 November 1990
following which the public prosecutor requested that the hearing in the
case be fixed to commence after the case against the Balder group's top
manager had been examined by the Court. The applicant had no objection
to this request. The case against the group's top manager was heard by
the Court in November 1991.
In the meantime, on 2 October 1991, the dates for the main
hearing in the applicant's case were fixed for 16 March until
3 April 1992.
The hearing commenced on 16 March 1992 and lasted ten court days.
The applicant requested that the Court dismiss the case because of its
duration which in his opinion entailed an infringement of section 226
subsection 4 of the Criminal Procedure Act (straffeprosessloven) and
Article 6 para. 1 of the Convention.
The judgment was delivered on 27 May 1992. The Court decided not
to dismiss the case for the following reasons:
(Translation)
"When evaluating the amount of time spent on the
investigation, the Court must take a number of
considerations into account. On the one hand, it is clear
... that the long time which passed has been a great
personal strain on the persons charged and has to varying
degrees created difficulties for them in their careers. On
the other hand, the present case is by no means
run-of-the-mill even by the standards of financial crimes.
The Balder group had between 100 and 200 companies, which
were hard to distinguish from one another both financially
and in terms of organisational structure. The accounts were
not up-to-date and sometimes were non-existent, so the task
of finding out what had actually happened was extremely
demanding. For example, the 1983 accounts were not
presented until 18 December 1984, and then with
considerable assistance from the external auditor. The fact
that the documents came to fill 500 metres of shelves as
the investigation proceeded indicates the magnitude of the
case. The very fact that the companies were organised in
such an unusual way made it particularly difficult to find
out where the liability should be assigned. In this
connection, however, it is important that Mr. O and (the
applicant) were part of the management of the group and
thus were responsible for the companies' situation.
When an investigation is started, the police/prosecuting
authority is obliged to look for any indication that an
indictment should be preferred, but also for any indication
that it should not. If the legality of all the
circumstances that could be called in question on the basis
of the report of the administrators of the estate were to
be considered in a satisfactory manner, this would have
required resources that far exceed what is possible from a
practical and financial point of view. The circumstances to
which the indictments against Mr. O and (the applicant)
apply are only briefly mentioned in the report, which
includes no assessment of the conditions for criminal
liability either. Thus, it required some time for the
police to obtain a sufficient overview to be able to begin
- and continue - the investigation against them. It should
also be noted here that the expert report on the
circumstances dealt with in count I of the indictments was
not finished until April 1989. In the Court's view there
may be some danger in dismissing such cases pursuant to
section 226 subsection 4 of the Criminal Procedure Act or
Article 6 para. 1 of the Convention. The more complex the
organisational structure of the companies and the more
deficient and complicated the accounts, the more time the
investigation will require. This means that in the case of
companies like these, the courts may dismiss the case and
those responsible may thus escape prosecution.
When an investigation takes as long as in the present case,
the consequences of the time factor for the evidence must
be considered. After some time, both the persons charged
and the witnesses generally have difficulty remembering the
details of what happened and how. In Mr. O's case, account
must also be taken of the fact that he was deliberately
trying to put this period behind him and forget it. In this
case, however, unlike the persons charged, several of the
key witnesses had a clear recollection of the course of
events. Moreover, it is significant that the documentary
evidence plays such a central role. Here, too, of course
the time factor is of some significance, because the
circumstances surrounding the documents may easily be
forgotten. Therefore, there is a certain risk that the
documentary evidence may be misinterpreted. However, the
Court does not consider that this is the case here. On the
contrary, the documentary evidence is to some extent
self-explanatory and also provides subjective information
with regard to the persons charged.
The Court agrees with the persons charged that the
investigation has been too protracted and has thus been a
strain on them. The Court would also point out that it is
the responsibility of the prosecuting authority to ensure
the efficiency, continuity and adequacy of the level of
expertise of the investigation. It is difficult, however,
to determine how much time could have been saved if the
investigation had been organised differently. In this
connection the Court considers it important to emphasise
that it is precisely the form of organisation of the Balder
group and the lack of proper accounting that has helped
complicate the investigation. Since the persons charged
occupied responsible positions in the management of the
group, the time factor cannot in this context be construed
in their favour.
Even though the Court presumes that time could have been
saved, it does not consider that the circumstances are such
that an application of section 226 subsection 4 of the
Criminal Procedure Act or Article 6 para. 1 of the
Convention on Human Rights would lead to dismissal. Thus,
the cases should be allowed."
After an evaluation of the available evidence the applicant was
found guilty of all the charges brought against him except one. He was
sentenced to twelve months' imprisonment, of which ten months were
suspended and he was furthermore ordered to pay a fine of 50,000 NOK
and costs amounting to 20,000 NOK. When meting out the sentence the
Court stated inter alia:
(Translation)
"... Also the fact that seven years have elapsed since the
criminal activities took place concerns (the applicant).
Having regard to the reasons given for the refusal to
dismiss the case, the Court finds that this element must,
to some extent, be taken into consideration as a mitigating
factor. However, this will have a limited effect as regards
the meting out of the sentence because it was mainly the
very organisation of the Balder group and its lack of
accounting as well as (the applicant's) responsibility
therefor which complicated and delayed the investigation.
In this kind of cases it is first and foremost from the
point of view of general prevention (allmenpreventive
hensyn) that a severe reaction is called for. Having regard
to this the Court has found that (the applicant), as
requested by the prosecution, must be sentenced to
imprisonment."
The applicant appealed against the judgment to the Supreme Court
(Høyesterett). He requested the Supreme Court to dismiss the District
Court judgment or, in the alternative, to reduce the sentence. On
13 November 1992 the Appeals Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) decided to allow the appeal on certain
points. On 4 May 1993 the Supreme Court pronounced its judgment. The
Court quashed the District Court judgment in respect of two charges and
upheld it in respect of the remaining charges brought against the
applicant. As regards the sanction the sentence imposed by the District
Court was upheld. In this respect the Supreme Court stated inter alia:
(Translation)
"The District Court has emphasised when meting out the sentence
that (the applicant) has seriously violated the special
confidence which follows from the positions (he) held ... (The
Court) agrees with this and had the case been determined fairly
quickly these violations would have resulted in an unconditional
term of imprisonment of a considerable length. However, now the
case has become very old - the criminal transactions took place
more than eight years ago. The District Court has emphasised that
the investigations were too lengthy. It states nevertheless that
even if this is taken into consideration as a mitigating factor
it has only a limited effect since basically it was the way in
which the Balder group was organised and the lack of accounting
which made the investigations difficult and caused the delays.
(The Court) accepts this and refers to the fact that (the
applicant) had a leading position within the group. The time
element cannot in these circumstances be as important as it would
have been in more ordinary cases. Even though a further period
of time has elapsed since the District Court judgment (the Court)
finds that the sentence imposed shall stand."
The applicant served his prison sentence from 21 July to
9 September 1993.
B. Relevant domestic law
In Norway, the investigation of criminal offences is the
responsibility of the police and the prosecuting authorities. This
appears from the Criminal Procedure Act 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 by 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 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 investigations 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 of 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 7 June 1993 and registered on
17 November 1993.
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.
The applicant submitted his observations in reply to those of the
Government on 16 March 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 19 February 1986 when the preliminary report from
the estate administrator was submitted to the Asker and Bærum Probate
Court. The Government maintain, however, that the period commenced on
9 February 1989 when the first preliminary indictment was issued.
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 8 December 1986 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 8 December 1986, the applicant
may in the circumstances be considered as having been substantially
affected by the criminal investigation proceedings. 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 4 May 1993 when the Supreme Court
pronounced judgment in the case. Thus, the total length of the
proceedings which the Commission must assess under Article 6 para. 1
(Art. 6-1) of the Convention was six years and five 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. Eur. Court H.R., Boddaert
judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 36).
As regards the complexity the applicant maintains that his
involvement in the Balder group bankruptcy and the charges against him
which followed therefrom were not complex and played only a minor role
in the entire case.
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 interrogations of the applicant commenced
fairly soon after the criminal investigations into the Balder group
commenced. Nevertheless, preliminary charges were not brought against
the applicant until 9 February 1989, i.e. approximately two years and
two months after the applicant's first interrogation. Furthermore, the
investigations did not end until 21 November 1990 when the case was
sent to the District Court for adjudication. A period of investigation
of approximately four years, from 8 December 1986 until 21 November
1990, may at first sight appear excessive. 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 two years and
five 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 and the Supreme 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)
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