AS TO THE ADMISSIBILITY OF
Application No. 23871/94
by K.R.L.
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 23 February 1994
by K.R.L. against Denmark and registered on 14 April 1994 under file
No. 23871/94;
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 22 December 1995 and the observations in reply submitted
by the applicant on 20 February 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Danish citizen, born in 1935. He is a
businessman and resides at Risskov, Denmark. Before the Commission the
applicant is represented by Mr. Jesper Berning, a lawyer practising in
Copenhagen.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
In 1988 the local tax authority commenced an investigation into
certain presumed irregularities in the applicant's and his companies'
tax declarations. Following certain correspondence and meetings between
the applicant and the tax authority, the latter submitted a report to
the police on 27 June 1989 and requested assistance as it considered
that the applicant had committed tax fraud (skattesvig) contrary to
section 13 of the Tax Control Act (skattekontrolloven). On the basis
of this material and its own preliminary investigations the police
submitted a request for a search warrant to the Århus City Court
(Retten i Århus) on 4 October 1989.
On 6 October 1989 the City Court issued the search warrant
involving the applicant's home and the offices of his companies, having
established that the formal requirements of such a step had been
fulfilled.
The search of the applicant's premises was carried out by the
police and representatives of the tax authority on 7 November 1989
during which a substantial quantity of accounts material was seized.
The applicant was on that date informed of the charges against him and
he was interrogated by the police the following day. He was
interrogated again on 8 December 1989 and on 16 March 1990.
It appears that the local tax authority completed its audit
report and its assessment of the matter by 18 June 1991. On 8 July 1991
it submitted its final request for prosecution to the police. It
concerned alleged violations of section 289 of the Penal Code in
conjunction with section 13 of the Tax Control Act and related to
alleged tax evasion regarding company tax and personal tax in the
amount of approximately 2,000,000 DKK as well as alleged violations of
various Acts on excise duties.
On 9 September 1991 the case was sent to the public prosecutor
for assessment as to the question of whether or not to prosecute.
On 1 April 1992 the public prosecutor submitted a report to the
Århus City Court for an investigative examination (efterforsknings-
forhør) in court. A court meeting to that effect was held on
27 May 1992 following which the case was adjourned pending the
prosecutor's decision as to whether or not to prosecute and, if so, on
what charges.
On 26 April 1993 the indictment was served whereby the applicant
was charged with tax fraud contrary to section 289 of the Penal Code
in conjunction with section 13 of the Tax Control Act as well as with
violations of a number of other Acts on excise duties. The case was
sent to the Århus City Court with a request for the opening of the
trial against the applicant.
The Court scheduled the case for hearing as from 11 August 1993
on which date the trial also commenced. It ended on 26 August 1993 and
judgment was pronounced on 2 September 1993.
On the basis of the available evidence the applicant was found
guilty of the charges brought against him and sentenced to one year's
imprisonment and a fine of 2,000,000 DKK. In respect of the sentence
the Court stated as follows:
(Translation)
"In meting out the sentence the Court has taken into
consideration the amount of duties and taxes which has been
evaded but also the character of the dispositions made. On
the other hand the Court has also taken into consideration
the lengthy period of time the case, seen as a whole, has
been pending before the tax authorities and the prosecuting
authority since the search and seizure of 7 November 1989,
almost one year having passed from the court meeting of
27 May 1992 until the indictment was served on
26 April 1993."
The applicant immediately appealed against the judgment to the
High Court of Western Denmark (Vestre Landsret). The public prosecutor
appealed against the judgment on 13 September 1993.
The case was heard in the High Court from 16 to 18 May 1994. By
judgment of 25 May 1994 the High Court upheld the applicant's
conviction and sentence while reducing, however, the fine to
1,900,000 DKK. As regards the sentence the High Court stated:
(Translation)
"The term of imprisonment is found to be appropriate.
Having regard to the fact that the acts have been committed
over a period of several years, to their systematic
character and to the amount of evaded tax and duties there
is no basis for making the term of imprisonment
conditional.
As there is no reason to deviate from the usual principles
for calculating additional fines, this will be fixed in
view of the tax evasion in question to 1,900,000 DKK."
On 30 May 1994 the applicant applied to the Ministry of Justice
for leave to appeal to the Supreme Court (Højesteret). The Ministry
obtained written observations from the prosecuting authority. The
applicant's written observations in reply were submitted on
29 August 1994.
On 5 April 1995 the Ministry of Justice refused leave to appeal.
On 6 April 1995 the applicant requested the Ministry to
reconsider the matter. He also submitted a request to the Special Court
of Revision (Den særlige Klageret) for a re-opening of the case.
On 13 June 1995 the Ministry of Justice informed the applicant
that the decision of 5 April 1995 to refuse leave to appeal to the
Supreme Court was maintained for the reasons already stated in that
decision.
On 5 October 1995 the Special Court of Revision rejected the
request for a re-opening of the criminal case.
B. Relevant domestic law
The Danish administration of justice in criminal cases is based
on the accusatorial principle. The police and the public prosecutor are
in charge of the investigation, the question of prosecution and the
presentation of the case in court. As a point of departure, the courts
are not involved in the actual criminal case during the period of
investigation. Thus, the court does not itself take any initiative
during the investigation, but only acts if requested to do so by the
police or the defence counsel, and only in case of disagreement between
the police and the defence counsel, or in case of certain specific
coercive measures. The court can also take action at the stage of
investigation if the public prosecutor or the defence counsel requests
that evidence be secured already at the preliminary stage of the case.
Thus, the police and the public prosecutor, and not the court, are
responsible for the elucidation of the case.
Section 96 subsection 2 of the Administration of Justice Act
(retsplejeloven) establishes that the prosecutor must expedite the
proceedings in all cases to the extent permitted by the nature of the
case. Although a corresponding duty for the police is not stipulated
by law, the same principle is presumed to apply to the police as well,
as the police investigation is the basis of the prosecutor's assessment
of whether to prosecute a person.
The proceedings in a criminal case can be divided into three
stages: the investigation, the decision to prosecute and the trial.
Pursuant to section 743 of the Administration of Justice Act, the
object of the investigation is to establish whether the conditions for
imposing criminal liability or any other penal consequence exist, to
provide information for the purpose of deciding in the case and to
prepare the case for trial.
The decision whether to prosecute is made by the prosecutor. The
courts have no part in this in any way. Thus, the decision to prosecute
is not subject to approval by any court, and the courts do not assist
in or check the phrasing of the indictment.
The trial is held before the court trying the case, normally with
the participation of lay judges. According to section 850 of the
Administration of Justice Act the trial should continue without
interruption to the extent possible, until a final decision is reached.
When a major criminal case has been decided by the City Court
both the prosecutor and the accused can appeal against the judgment to
the competent High Court.
No direct appeal lies against the judgment of the High Court in
an appeal case. However, the Ministry of Justice can grant leave to
appeal to the Supreme Court (after 1 January 1995 with permission from
a special board (Procesbevillingsnævnet)), if the case concerns a
matter of principle, or there are other special reasons therefor, cf.
section 966 of the Administration of Justice Act.
COMPLAINTS
The applicant complains that the criminal case against him was
not determined within a reasonable time. He invokes Article 6 para. 1
of the Convention.
By letter of 9 November 1995 the applicant furthermore complained
that his conviction and sentence disclosed a violation of Article 6
para. 2 of the Convention in that the principle of in dubio pro reo had
been set aside.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 February 1994 and registered
on 14 April 1994.
On 7 September 1995 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 of the application.
Following an extension of the time-limit fixed for this purpose
the Government submitted their observations on 22 December 1995.
The applicant submitted his observations in reply on
20 February 1996.
THE LAW
1. 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 ..."
a) The Government have raised a preliminary objection, pleading that
the applicant can no longer claim to be a victim in respect of the
alleged excessive length of the proceedings due to the fact that the
courts expressly took this into account and for this reason imposed a
relatively lenient sentence.
The Commission recalls the Convention organs' case-law according
to which an applicant's status as a "victim" within the meaning of
Article 25 (Art. 25) of the Convention may depend on compensation being
awarded on the basis of the facts about which he or she complains
before the Commission. In cases concerning complaints of length of
proceedings a mitigation of sentence does not as such deprive the
individual concerned of his status as a "victim" but is to be taken
into consideration solely for the purposes of assessing the extent of
the damage he has allegedly suffered unless the domestic authorities
have acknowledged, either expressly or in substance, the alleged
infringement of the Convention and, if necessary, provided redress in
relation thereto. Only when these two conditions are satisfied does the
subsidiary nature of the protective mechanism of the Convention
preclude examination of an application (see Eur. Court HR, Eckle v.
Germany judgment of 15 July 1982, Series A no. 51, p. 32, paras. 69 et
seq.; No. 10868/84, Dec. 21.1.87, Woukam Moudefo v. France, D.R. 51
p. 62; No. 10884/84, Dec. 13.12.84, H. v. Federal Republic of Germany,
D.R. 41 p. 252).
The Commission does not find that the above conditions are
satisfied in the present case. Neither the City Court nor the High
Court expressly acknowledged the alleged infringement of the Convention
and the Commission does not consider that the mitigation of sentence,
which the applicant disputes, in the circumstances can be accepted as
such an acknowledgement in substance either. Furthermore, the
Commission recalls that the High Court's decision to reduce the fine
was not based on considerations related to the length of the
proceedings but was only due to the fact that the fine eventually
imposed ought to follow "the usual principles for calculating
additional fines".
Accordingly, the Commission finds that the sentence imposed on
the applicant cannot be considered, either directly or implied, as a
recognition of a violation of Article 6 (Art. 6) or as reparation for
the damage allegedly caused to the applicant by the length of the
proceedings. He may therefore claim to be a "victim" of a violation of
Article 6 para. 1 within the meaning of Article 25 (Art. 25) of the
Convention.
b) With regard to the period of time to be considered the applicant
maintains that it commenced in April 1988 when the local tax authority
started its investigations on the basis of his tax returns. The
Government do not specify a date which in their view should be
considered the starting point of the proceedings in question, but
submit that on 27 June 1989 the tax authority contacted the police in
the matter.
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 the above-mentioned Eckle
v. Germany judgment, p. 33, para. 73).
In the present case the Commission does not consider that the
investigations made by the tax authorities on the basis of the
applicant's tax returns were such that he thereby can be considered as
having been "charged" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. It was not until 7 November 1989, when
the applicant's home and his companies' offices were searched that he
became directly involved in the police investigations. From that date
onwards the Commission finds that he may be considered as having been
substantially affected by the criminal investigation. Consequently, the
applicant was "charged" for the purposes of Article 6 para. 1
(Art. 6-1) of the Convention as from 7 November 1989 and the
"reasonable time" referred to in Article 6 (Art. 6) of the Convention
began to run from that moment.
The Commission finds that the proceedings should be regarded as
having been terminated on 5 April 1995 when the applicant's request for
leave to appeal to the Supreme Court was rejected. Thus, the total
length of the proceedings which the Commission must assess under
Article 6 para. 1 (Art. 6-1) of the Convention was five years and five
months.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the competent authorities) and having regard to all
the information in its possession, that the complaint concerning the
length of the proceedings cannot be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention but requires an examination on its merits as no other ground
for declaring it inadmissible has been established.
2. The applicant also complains of an infringement of his right to
be presumed innocent as the courts allegedly disregarded the principle
of in dubio pro reo when finding him guilty of the charges brought
against him. He invokes in this respect Article 6 para. 2
(Art. 6-2) of the Convention which reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission finds that the complaint made under the above
provision cannot be considered as further legal submissions in respect
of the applicant's complaint concerning the length of the proceedings.
It should accordingly be considered as a separate complaint for the
purposes of calculating the six month rule referred to in Article 26
(Art. 26) of the Convention.
In this respect the Commission recalls that the final decision
to be taken into consideration is the rejection of the request for
leave to appeal to the Supreme Court, which was given on 5 April 1995.
However, the Commission recalls that the complaint under Article 6
para. 2 (Art. 6-2) of the Convention was not introduced before 9
November 1995 which is more than six months later.
It follows that the complaint has been introduced out of time and
must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicant's complaint concerning the length of the criminal
proceedings;
DECLARES INADMISSIBLE, the remainder of the application.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy