AS TO THE ADMISSIBILITY OF
Application No. 19524/92
by K.
against Denmark
The European Commission of Human Rights sitting in private on
5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
C.A. NØRGAARD
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second 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 9 October 1991 by
K. against Denmark and registered on 17 February 1992 under file No.
19524/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Danish citizen, born in 1945. He resides at
Holte. Before the Commission he is represented by Mr. Folmer Reindel,
a lawyer practising in Copenhagen.
By indictment of 4 December 1987 the applicant was charged with
several counts of aggravated tax evasion. The case was heard in the
City Court (byret) of Nykøbing Falster from 22 August 1988 to
17 February 1989. During the trial the Court heard the applicant, who
was represented by court appointed counsel, as well as 33 witnesses,
including the applicant's present representative, Mr. Reindel.
On the basis of an evaluation of the statements made and the
documentary evidence produced the City Court, on 17 February 1989,
found the applicant guilty of some of the charges brought against him
and acquitted him of others. He was sentenced to one year's
imprisonment, an additional fine of 1.3 million Danish crowns and
ordered to pay outstanding taxes in the amount of approximately one
million Danish crowns. The applicant appealed against this judgment to
the High Court of Eastern Denmark (Østre Landsret).
By indictment of 14 August 1989 the applicant was charged with
one further count of tax evasion. By judgment of 15 March 1990 he was
found guilty by the City Court of Nykøbing Falster and sentenced to pay
a fine of 7,000 Danish crowns. The applicant also appealed against this
judgment to the High Court of Eastern Denmark which subsequently joined
the two cases.
On 11 June 1990 the applicant's present representative,
Mr. Reindel, was appointed by the High Court to act as defence counsel
for the applicant. Subsequently, however, the Court realised that Mr.
Reindel was to be called as a witness in the case and therefore
decided, on 17 December 1990, to withdraw the appointment. Leave to
appeal to the Supreme Court (Højesteret) against this decision was
refused by the Ministry of Justice on 11 April 1991. After having
consulted the applicant the High Court appointed another counsel for
him.
The trial commenced in the High Court on 27 May 1991. The
applicant requested that the three professional judges vacate their
seats on the bench as they had all, earlier in their careers, acted as
public prosecutors. (According to the applicant's submissions, however,
they had never had anything to do with him or his case in such
capacity.) By decision of the same day the Court rejected the request
stating:
(translation)
"Since the fact that the three legally trained judges, who
have all to a greater or lesser extent been active as
prosecutors, does not raise doubts as to their absolute
impartiality,
the Court decides:
the request that the three legally trained judges vacate
their seats is rejected."
Leave to appeal to the Supreme Court was refused by the Ministry
of Justice on 21 August 1991.
In the meantime the trial continued in the High Court. The Court
heard the applicant and twelve witnesses, including Mr. Reindel.
Furthermore, documentary evidence was produced. On the basis of an
evaluation thereof the High Court upheld the City Court's conviction
and sentence by judgment of 15 June 1991. Leave to appeal to the
Supreme Court was refused by the Ministry of Justice on 20 September
1991.
COMPLAINTS
The applicant complains, under Article 6 para. 1 of the
Convention, that his case in the High Court of Eastern Denmark was not
determined by an impartial tribunal since the legally trained judges
had all previously acted as prosecutors.
He furthermore invokes Article 6 para. 3 (c) of the Convention
complaining that he was not allowed to defend himself through legal
assistance of his own choosing since the High Court refused to accept
Mr. Reindel as his counsel.
Finally, the applicant complains that the Ministry of Justice's
refusals to grant him leave to appeal to the Supreme Court violate
Article 13 of the Convention.
THE LAW
1. The applicant alleges that his case was not determined by an
impartial tribunal due to the fact that the legally trained judges had
previously in their careers acted as public prosecutors. He invokes in
this respect 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 ... by an ... impartial
tribunal ... ."
The Commission recalls that the impartiality required by Article
6 (Art. 6) of the Convention implies a double guarantee: first the
subjective requirement that the judge shall be unbiased and, secondly,
an objective requirement that the situation must be such as to exclude
any legitimate doubts about his impartiality (cf. Eur. Court H.R.,
Piersack judgment of 1 October 1982, Series A no. 53, p. 14, para. 30).
As regards the subjective requirement the applicant has not
alleged that the judges in question showed bias against him, nor has
the Commission found any reason to doubt the judges' personal
impartiality.
As regards the objective approach the Commission notes that the
three legally trained judges had earlier in their careers acted as
prosecutors, but it is clear that they had never had anything to do
with the applicant or his case in such capacity. It follows that an
issue in respect of partiality would only arise in the present case if
it could be maintained that former judicial officers in a public
prosecutor's department were unable, subsequently, to become judges.
The Commission considers, however, that such a radical solution would
be based on an inflexible and formalistic conception of the office of
public prosecutor and would erect a virtually impenetrable barrier
between this office and the bench. Such an interpretation would also
run counter to the judicial system of several Contracting States where
transfers of this kind are a frequent occurrence. Having regard to this
the Commission finds that the mere fact that a judge was once a public
prosecutor is not a reason for fearing that he lacks impartiality (cf.
also the above-mentioned Piersack judgment, pp. 14-15, para. 30 (b)).
In the present case no other allegation has been submitted which
could lead to the conclusion that the impartiality of the High Court
of Eastern Denmark, as composed in the applicant's case, was capable
of appearing open to doubt. It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that he was not allowed to defend
himself through legal assistance of his own choosing since the High
Court refused to accept Mr. Reindel as his counsel. He invokes Article
6 para. 3 (c) (Art. 6-3-c) of the Convention which reads:
"Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of
justice so require."
The Commission recalls that the right to legal representation of
one's own choosing ensured by this provision is not of an absolute
nature (cf. for example No. 5923/72, Dec. 30.5.75, D.R. 3 p. 43) and
it does not guarantee the right to choose an official defence counsel
who is appointed by the court (cf. No. 6946/75, Dec. 6.7.76, D.R. 6
p. 114). In examining this question under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention the Commission must take account of the
situation of the defence as a whole rather than the position of the
accused taken in isolation, having regard in particular to the
principle of equality of arms as included in the concept of a fair
hearing. Thus Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
guarantees that the proceedings against the accused shall not take
place without adequate representation for the defence, but does not
give the accused the right to decide himself in what manner his defence
should be assured (cf. for example No. 8295/78, Dec. 9.10.78, D.R. 15
p. 242).
Considering the applicant's defence as a whole, therefore, the
Commission notes that he was given ample opportunity to present his own
case. The restriction imposed on his choice of representation was
limited to excluding Mr. Reindel on reasonable grounds, namely that
Mr. Reindel was a witness in the case. The applicant could have chosen
any other defence lawyer to represent him and was indeed represented
by a court appointed counsel after having been consulted. An
examination of the trial transcript does not disclose any disadvantage
to the defence or unfairness in this respect. The Commission therefore
finds that excluding Mr. Reindel from acting as defence counsel does
not in the circumstances of the present case disclose any appearance
of a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains that the Ministry of Justice's
refusals to grant him leave to appeal violate Article 13 (Art. 13) of
the Convention which reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human Rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (cf. Eur. Court H.R., Boyle and
Rice judgment of 21 June 1988, Series A no. 131, p. 23, para. 52).
However, leaving aside the questions to what extent Article 13
(Art. 13) applies to decisions of a court of appeal and whether a
request to the Ministry of Justice for leave to appeal to the Supreme
Court could be considered a "remedy" within the meaning of this
provision, the Commission finds, having regard to its above
conclusions, that the applicant did not have any arguable claims. In
these circumstances the Commission finds no appearance of a violation
of Article 13 (Art. 13) of the Convention.
It follows that this part of the application is also 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
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy