SECOND SECTION
Application no. 8693/11
Henrik Monsted JENSEN
against Denmark
lodged on 22 October 2010
STATEMENT OF FACTS
The applicant, Mr Henrik Mønsted Jensen, is a Danish national who was born in 1957 and lives in Skørping. He is represented before the Court by Mr Peter Trudsø, a lawyer practising in Copenhagen.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
By an indictment of 25 October 2007 the applicant, jointly with three co‑accused, was charged with violation of intellectual property rights under section 299 b of the Penal Code.
Originally the applicant was represented by lawyer A, whom he met twice. As from 21 August 2009 the applicant was represented by lawyer B.
By letters of 1 and 9 September 2009 A submitted his claim for legal costs to the City Court for work performed from 2006 until 2009. By decision of 24 September 2009 the City Court granted A fees in the amount of DKK 183,862.50 (approximately EUR 24,700) plus VAT and reimbursement of costs in the amount of DKK 2,060 which was provisionally to be paid by the Treasury. Neither the applicant nor B was informed of this decision.
By a judgment of 4 December 2009, the City Court (Retten i Viborg) convicted the applicant and three co-accused of having violated intellectual property rights. The applicant was given a six months’ suspended sentence, and 120 hours of community service due to his good personal circumstances and the fact that his role had been a minor one. In addition the proceeds, estimated at 40,000 Danish Kroner (DKK), were confiscated, as were various copies of designer goods, such as lamps and cutlery. The applicant and B were present when the judgment was passed. At that time, there was no mention of legal fees.
A few days later lawyer B received a transcript of the judgment, which in the operative part relating to legal fees stated:
“Each of the accused is to pay the legal costs relating to them, including the fee to the counsel appointed to them.”
The applicant did not appeal against the judgment to the High Court, nor did the public prosecution.
According to a court record of 5 January 2010, the City Court approved the costs to be paid to B in the amount of DKK 247,200 (approximately EUR 33,200) plus VAT and reimbursement of other costs amounting to DKK 32,423.74. It was stated that the amount was to be paid by the applicant.
On 17 January 2010, on behalf of the applicant, B appealed against the decision. He did not contest the amount granted, but claimed that it should be paid entirely or partly by the Treasury. In support thereof, and with reference to section 1008, section 2 of the Administration of Justice Act, he submitted that the applicant only played a minor role in the criminal case; that an extensive part of the production of evidence did not relate to him; that he had been acquitted of one count; and that the fees were significant.
On 25 January 2010, the applicant received an invoice from the police, dated 19 January 2010, requesting him to pay legal costs in the amount of DKK 573,311.87 (approximately EUR 77,000) including A and B.’s fees That was the first time that the applicant became aware of the fees that had been granted to A.
On 26 January 2010, on behalf of the applicant, B extended his appeal of 17 January 2010 also to include the payment of costs to A, which in the applicant’s view should be paid entirely or partly by the Treasury. He also requested that the City Court send him the court records of the decision to grant fees to A.
On 8 February 2010 the City Court submitted a letter to B, in which was enclosed a copy of the judgment of 4 December 2009, which on 5 February 2010 had been rectified on page 90 in the operative part as follows:
“The accused are to pay the legal costs, so that each of them pays the legal costs relating to them, including the fees for their appointed counsel.”
The court records of 24 September 2009 and A’s letters of 1 and 9 September 2009 were also enclosed with the letter.
On 11 February 2010 B informed the High Court of Western Denmark that the applicant withdrew his appeal as regards the fee to be paid to B. Moreover, he requested permission to submit further observations as regards the fee that the applicant was ordered to pay A.
In a supplementary pleading B maintained that the time-limit for appealing against the decisions on the fee to be paid to A, at the earliest should run from 25 January 2010, the date on which the applicant received the invoice from the police and thus became aware for the first time of the fee that had been granted to A.
By decision of 10 March 2010 the High Court dismissed the appeal as being lodged out of time. More specifically, it stated:
The appeal does not concern the amount of the fee granted to the applicant’s two defence counsel; it only concerns the City Court’s decision that the applicant must pay the legal costs relating to him, including the fee to his appointed counsel. This decision was integrated in the judgment of 4 December 2009 and the applicant, who was present when the judgment was passed, was informed of the decision during that hearing. Accordingly, the time-limit must be calculated from 4 December 2009, pursuant to section 969 of the Administration Act, even if the applicant only later learned how much the legal costs, including the fees to the defence counsel, amounted to. Thus, the time-limit had expired when the appeal was lodged on 17 January 2010.
Leave to appeal to the Supreme Court was refused by the Appeals Permission Board on 18 June 2010.
B. Relevant domestic law
The relevant provisions of the Administration of Justice Act (retsplejeloven), read as follows:
Section 969, subsection 1
1. Unless otherwise fixed by this act, the time limit for appealing against a decision is fourteen days, calculated from the enactment of the decision ...
Section 1008
1. If the accused is found guilty ... he is liable to pay the necessary costs and expenses relating to the proceedings. The Minister of Justice may set rates to be used when calculating the amount that the accused must pay to cover expenses to expect advice during the proceedings.
2. If the investigation was related to another crime or other crimes than the one of which the applicant was convicted, he is not liable to compensate the supplementary costs connected thereto ... ; If it is not possible to distinguish those costs, the Court decides if, and how big a part, [the convicted] must compensate.
3. ...
4. Incurred costs which are caused by mistake or negligence by others should not be a burden on the convicted. The Court may also in, its judgment, limit the liability to pay legal costs when it finds it would otherwise be clearly disproportionate to the responsibility and circumstances of the convicted.
5. ...
COMPLAINT
The applicant complains that the dismissal of his appeal by the High Court breached his right to a fair trial as guaranteed by Article 6 of the Convention.
QUESTION TO THE PARTIES
Was the High Court’s dismissal on 10 March 2010 of the applicant’s appeal as being lodged out of time in breach of the applicant’s right to a fair trial, notably his right of access to a court, as guaranteed by Article 6 of the Convention, having regard to the fact that he was not aware of the amount of legal costs that he was liable to pay until 25 January 2010?
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