SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 43196/98
by Henrik HOLM-HANSEN
against Denmark
The European Court of Human Rights (Second Section), sitting on 9 November 2000 as a Chamber composed of
MrA.B. Baka, President,
MrB. Conforti,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrsM. Tsatsa-Nikolovska,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 May 1998 and registered on 31 August 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Danish citizen, born in 1960. He is at present serving a prison sentence at Sdr. Omme State Prison. Before the Court he is represented by Mr K.L. Németh, a lawyer practising in Copenhagen. The respondent Government are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 January 1991, the Fraud Department of the Copenhagen Police received information from a former employee of the applicant indicating that investors in the applicant’s company were being defrauded. Based on this information the police instituted an investigation and in this connection contacted the Danish Commerce and Companies Agency (Erhvervs- og Selskabsstyrelsen) and the tax authorities to procure information on company details and accounts. The review by the police of the accounts procured and the information from the tax authorities gave no reason to assume that a criminal offence had been committed and, therefore, the police did not commence an actual investigation. The investigation was closed after 14 days and the applicant was not contacted on the occasion of the inquiry.
On 26 March 1991 the applicant contacted the Maritime and Commercial Court (Sø‑ og Handelsretten) in Copenhagen and filed a petition in bankruptcy. He was adjudicated bankrupt and his estate was to be administered in bankruptcy. In April 1991 the official receiver of the estate in bankruptcy contacted the Fraud Department of the Copenhagen Police stating that he had ascertained irregularities of a criminal nature for which reason he asked for police assistance. A perusal of the papers of the bankruptcy estate showed that there was basis for criminal proceedings concerning fraud and/or fraudulent conversion.
From June 1991 the first interviews in the case were conducted, starting with the assistants of the official receiver and then, from the autumn of 1991, the former employees of the applicant’s business. From about August 1991 the police also contacted a large number of the customers of the stockbroking business.
The applicant was questioned by the police for the first time on 24 February 1992. In this connection the applicant, who was accompanied by his attorney, was charged, inter alia, with fraud. The following day the applicant contacted the police and stated that on the advice of his attorney he did not want to submit to further questioning by the police.
Since the applicant’s business involved activities in Sweden, Switzerland, Spain, Gibraltar, Luxembourg and the Cayman Islands, the police requested a firm of accountants to assist in the investigation. In February 1992 a state-authorised public accountant was thus contacted with a request for auditing assistance in view of the scope of the case and the corporate construction and the financial correlations between the companies. The accountant reviewed the applicant’s accounting material and submitted audit reports on 14 October 1992, 28 January, 11 February and 14 April 1993. The final report from the accountant was available on 21 June 1993. Furthermore, during the period until November 1993 audit memoranda were prepared on single issues in the case for police purposes. The audit reports were presented to the applicant and his defence counsel, who had an opportunity to consider the reports and comment thereon.
Furthermore, orders of discovery were procured concerning accounts with banks, saving banks and the post giro and an international letter of request was made concerning an account with a Portuguese bank. Concurrently with the audit work, interviews of employees, advisers and customers of the business were conducted.
The police transferred the case to the prosecutor on 18 November 1993 for a decision on the issue of prosecution. During the period from 18 November 1993 until 5 April 1994, the prosecution performed a legal assessment of the case resulting in the preparation of an indictment in the case. The basis therefor was the accounting material from the business and associated businesses and companies, bank statements, correspondence, audit reports, reports of interviews, etc. totalling approximately 10,000 pages.
On 5 April 1994 the Copenhagen City Court (byretten) received an indictment with a list of evidence and the case file copies together with a request for having the trial scheduled. The indictment included eight counts comprising tax fraud of an especially aggravated nature, fraud and fraudulent conversion involving approximately 40 million Danish kroner (DKK).
On 4 May 1994 a preliminary hearing was held. It appears from the transcript of the court record that the prosecutor and the defence counsel agreed that about 30 days should be reserved for the trial. It further appears that the applicant was present during the hearing and that his counsel requested that only two days be reserved per week for the proceedings. The prosecutor agreed to this. The final list of evidence and statement on the background and summary of the case were not yet available, but a promise was made to forward them to the court before 15 August 1994. The case was then set down for trial from 15 August 1994 until 14 December 1994 with 28½ court days.
However, due to a change of prosecutors the trial was adjourned. On 2 November 1994 it was rescheduled for February 1995. It appears from the court record that the prosecutor had just taken over the case from the former prosecutor and that he had had no opportunity to acquaint himself with the case. The defence counsel requested the production of a further 14 witnesses. Then, 41 court days were reserved for the trial.
The case was tried from 7 February 1995 until 5 December 1995 and the City Court pronounced its judgment on 3 January 1996. 47 hearings were held. A presentation and reading out of documents in court were carried out, including the audit reports prepared by the state-authorised public accountant. Further evidence was also produced.
The applicant gave evidence during the trial. The state-authorised public accountant and a bank manager gave evidence as expert witnesses. In addition, evidence was given by 4 of the applicant’s advisers and by 9 persons who had been employed in the applicant’s business. Furthermore, evidence was given by 10 former customers whose funds were lost. Finally, evidence was given by 8 persons, including employees of the applicant’s business partners (stockbroking firms and banks) over the years. Thus, in addition to the applicant, 33 persons gave evidence before the City Court.
On 3 January 1996 judgment was pronounced in the case. The applicant was sentenced to 5 years’ imprisonment. He was further disqualified from the right, for the time being, to be a founder, director or manager of companies engaged in the procuring of loans, investments or other property administration and to carry on or take part in activities of this nature. The applicant was also sentenced to pay the costs of the proceedings, including DKK 640,000 plus VAT to the assigned counsel, as well as DKK 2,484,625 including VAT for audit costs.
The applicant appealed against the judgment of the Copenhagen City Court to the High Court of Eastern Denmark (Østre Landsret) claiming acquittal or, in the alternative, mitigation, while the prosecutor cross-appealed the judgment, claiming conviction in accordance with the findings of the City Court and a more severe sentence.
During the period from 24 July until 24 October 1996 the assigned counsel, the prosecutor and the High Court exchanged correspondence concerning the issue of permission for the defence to engage expert accounting assistance. On 29 October 1996 the High Court gave the assigned counsel permission, within an amount of DKK 200,000, to use a state‑authorised public accountant as an expert assistant to the defence.
In the meantime, at a pre-trial review on 26 August 1996, the scheduling of the trial was discussed. The case was set down for trial from 11 August until 9 December 1997. A total of 35 court days were reserved for the trial.
The trial before the High Court was accomplished over 21 hearings. As in the City Court presentations and reading out of documents in court were made, testimonial evidence was read out and the applicant and witnesses were confronted with it. Evidence was given before the High Court by the applicant and 13 witnesses.
The High Court pronounced its judgment on 1 December 1997. In its essential parts the City Court judgment was upheld. The sentence was fixed at 4 years’ imprisonment. As regards the length of the proceedings the judgment states that based on an overall assessment of the procedure, the High Court found that the length of the proceedings did not constitute a violation of the applicant’s rights under Article 6 § 1 of the European Convention of Human Rights.
On 9 December 1997 the applicant’s attorney requested leave to appeal the High Court judgment to the Supreme Court (Højesteret). By letter of 2 February 1998, the Board of Leave to Appeal (procesbevillingsnævnet) refused the request.
COMPLAINTS
The applicant complains that the criminal case against him was not determined within a reasonable time. He invokes Article 6 § 1 of the Convention.
THE LAW
Complaining of the length of the criminal proceedings the applicant invokes Article 6 § 1 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 in April 1991 when the official receiver informed the police of his findings and requested their assistance. The Government contend that the period relevant for the assessment of the issue under Article 6 § 1 began on 24 February 1992 when the applicant was first questioned by the police and charged with the violations of the Penal Code.
The Court recalls that according to its case-law the period to be taken into consideration under Article 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. e.g. the Hozee v. the Netherlands judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1100, § 43 with further references).
In the present case the Court recalls that the bankruptcy proceedings concerning the applicant’s business opened on 26 March 1991. It is obvious that the applicant was affected thereby, in particular having regard to his position in the company. However, although the bankruptcy proceedings may have led to serious implications for the applicant the Court does not consider that he thereby can be considered as having been “charged” within the meaning of Article 6 § 1 of the Convention.
In April 1991 the public prosecutor’s office opened an investigation in order to clarify whether the bankruptcy was caused by, or otherwise involved, any criminal activity. However, at that moment in time no charges were made against the applicant, nor was any other measure taken which, in the Court’s view, could lead to the conclusion that the applicant had committed a criminal offence or had been charged with having done so. The Court finds 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 Court does not consider that the opening of the criminal investigation would lead to the applicant being “charged” within the meaning of Article 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 24 February 1992 when he was interrogated by the police for the first time about his activities. He was also presented with the criminal charge against him on that date. In these circumstances the Court considers that, as from 24 February 1992, the applicant may be considered as having been affected by the criminal investigation proceedings. Consequently, from that date the applicant was “charged” for the purposes of Article 6 § 1 of the Convention and the “time” referred to in this provision began to run from that moment.
The Court considers that the proceedings terminated on 2 February 1998 when the Board of Leave to Appeal rejected the applicant’s request for leave to appeal to the Supreme Court. Thus, the total length of the proceedings which the Court must assess under Article 6 § 1 of the Convention was 5 years, 11 months and 9 days.
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. Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II, § 67).
As regards the complexity the Government maintain that it was a complicated criminal case involving several companies, requiring substantial police investigations and an extraordinary number of court sessions in the City Court and in the High Court. The applicant disputes this maintaining that most of the investigations carried out were superfluous.
The Court recalls that the basis for the charges against the applicant lay in his bankruptcy involving claims of fraud and other irregularities in respect of approximately DKK 40 million. Having regard to the facts as submitted the Court finds it clear that the investigations were relevant, time-consuming and difficult. Thus, for the purposes of Article 6 of the Convention the case was of a complex nature.
As regards the applicant’s conduct it is undisputed that the applicant did not act in a way which inappropriately prolonged the proceedings against him.
As regards the conduct of the authorities and the courts, the Court recalls that an interrogation of the applicant commenced on 24 February 1992 and the police transferred the case to the prosecution for a legal evaluation on 18 November 1993. The legal examination came to an end on 5 April 1994 when the case was sent to the City Court for adjudication. Consequently, the period of investigation by the police and the legal evaluation by the prosecution lasted 2 years and 1½ months. Such a period may at first sight appear excessive. However, having regard to the complexity of the case the Court does not consider that the facts of the case, in the circumstances, disclose that the investigating authorities or the prosecution acted inappropriately or otherwise failed to conclude their duties with due diligence as from the moment of the applicant’s involvement.
Furthermore, the proceedings before the Copenhagen City Court, the High Court of Eastern Denmark and the Board of Leave to Appeal, lasting a total of 3 years, 9 months and 27 days do not, in view of their magnitude, disclose to the Court unacceptable periods of inactivity which could bring the proceedings at variance with Article 6 § 1 of the Convention.
Therefore, making an overall assessment of the length of the proceedings they did not, in the Court’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 § 1 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Erik FriberghAndrás Baka
RegistrarPresident
Full & Egal Universal Law Academy