SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38986/97
by P. W.
against Denmark
The European Court of Human Rights (Second Section) sitting on 15 June 1999 as a Chamber composed of
MrC. Rozakis, President,
MrM. Fischbach,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrA.B. Baka,
MrE. Levits, Judges,
withMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 July 1997 by P. W. against Denmark and registered on 12 December 1997 under file no. 38986/97;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Danish national, born in 1956 and living in Hellerup, Denmark. He is represented before the Court by Olav Willadsen, a lawyer practising in Glostrup, Denmark.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Following the submission of his tax declaration for the years 1985 and 1986 investigations were carried out by the tax authorities in respect of certain income allegedly obtained in Belgium at a time when the applicant also obtained unemployment benefits in Denmark. It appears that the police were informed of the situation on 9 June 1988 whereas it does not appear from the file whether or to what extent the applicant was aware of any police investigations at that moment in time. In July 1990 it appears that the applicant was questioned by the police about his alleged employment by a Belgian company in 1985-86.
By indictment of 7 February 1991 (amended on 2 October 1992) the applicant was charged with fraud, pursuant to Section 279 of the Penal Code (straffeloven), for having wrongfully informed the Unemployment Fund for University Graduates (Akademikernes Arbejdsløshedskasse) that he was unemployed in the period from 1 August 1985 until 30 June 1986 although he was in fact employed in Belgium, thereby causing the Unemployment Fund a loss in the amount of 91,138.80 Danish Crowns (DKK). He was also charged with tax evasion, pursuant to Section 13, subsection 1, of the Tax Control Act (Skattekontrolloven), for not having informed the Municipality of Gentofte (Gentofte Kommune) of income obtained in Belgium in the years 1985 and 1986, thereby causing the tax authorities a loss in the amount of 72,960 DKK. Finally, he was charged with theft pursuant to Section 276 of the Penal Code for having stolen two plastic bags containing items with an assessed value totalling 2,761 DKK. The latter charge concerned an offence allegedly committed in September 1992.
On 25 July and 19 November 1991 the applicant requested the Chief of Police of Gentofte (Politimesteren i Gentofte) to undertake certain investigatory measures relating to his alleged contract of employment with the company in Belgium. The Chief of Police replied on 13 February 1992. On 2 March 1992 the applicant maintained that further investigations were necessary whereas it appears that the police considered that the case was ready for adjudication. Therefore, on 9 September 1992 the applicant requested the Criminal Court of Gentofte (Gentofte Kriminalret) to request the Belgian authorities to assist in clarifying whether any evidence existed that could substantiate the prosecution’s allegation that the applicant had been working in Belgium during the period in question. On 18 September and 26 October 1992 the Chief of Police submitted to the court that he found the requested measures to be without relevance to the case. It appears that a court session was held on 7 January 1993 following which the applicant requested an adjournment in order to have certain factual points clarified. The applicant submitted further requests for investigations by letter of 4 May 1993.
The trial subsequently commenced in the Criminal Court. The applicant, represented by counsel, and seven witnesses, including the witnesses E.V. and M.J., were heard. Following an evaluation of the available evidence the Criminal Court found the applicant guilty of the charges brought against him and by judgment of 21 July 1993 he was sentenced
to 3 months’ imprisonment and a fine in the amount of 50,000 DKK. The prison sentence was suspended on the condition that no further criminal act would be committed by the applicant within a period of one year from delivery of judgment. The applicant was ordered to bear the costs of the case amounting to 127,500 DKK.
The applicant as well as the prosecution appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret). During the proceedings before the High Court it appears that the applicant raised the issue of further investigative measures to be taken by the police.
On 24 May and 12 September 1994 the applicant submitted, inter alia, that a request be made to the European Court of Justice for a preliminary ruling pursuant to Article 177 of the European Union Treaty. The State Prosecutor of Zealand (Statsadvokaten for Sjælland) maintained, however, that there was no need for further investigations and that the case did not give rise to any questions which required a preliminary ruling by the European Court of Justice. On 4 October 1994 the High Court rejected the applicant’s requests. The court found that the circumstances of the case had been sufficiently clarified and that it did not contain any issues to be considered by the European Court of Justice.
On 10 and 24 October 1994 the applicant requested the Ministry of Justice for leave to appeal against the High Court’s decision to the Supreme Court (Højesteret). On 10 November 1994 the prosecutor submitted the file and his observations to the Ministry. On 11 January 1995 the applicant submitted his observations and requested that the examination of his request for leave to appeal be adjourned until he had obtained a statement from an expert in Community Law.
On 9 February 1995 the Ministry fixed a time-limit of one month for the applicant’s final observations. On 6 March 1995 the applicant requested an extension of the time-limit in order to obtain the Danish copy of a judgment from the European Court of Justice. Accordingly, on 31 March 1995 the Ministry fixed a time-limit of 14 days for the applicant’s final observations. On 10 April 1995 the applicant submitted his observations, inter alia, referring to a judgment pronounced by the European Court of Justice on 14 February 1995. On 6 June 1995 the Ministry requested the prosecutor to comment on the applicant’s submissions. On 23 October 1995 the prosecutor’s comments were sent to the applicant who replied on 1 November 1995. The applicant submitted additional comments on 28 February 1996.
On 6 May 1996, on the basis of the above-mentioned observations, the Ministry rejected his request for leave to appeal against the decision of the High Court of 4 October 1994.
Thereafter the criminal case against the applicant continued in the High Court. On 29 November 1996 and 15 January 1997 the applicant requested the High Court to hear a number of witnesses, including E.V. and M.J. On 24 January 1997 the High Court allowed the hearing of E.V. and M.J. but dismissed the other evidence proposed as it found that this evidence was of no relevance for the determination of the case. The applicant applied for leave to appeal against this decision. However, on 11 February 1997 the Board of Leave to Appeal (Procesbevillingsnævnet) rejected the applicant’s request.
The criminal case was subsequently heard in the High Court. The applicant and five witnesses, including E.V. and M.J., were heard. On the basis of the evidence presented the High Court upheld the Criminal Court of Gentofte’s judgment on 12 February 1997. The applicant was ordered to bear the costs of the case before the High Court amounting to 87,700 DKK, including 70,000 DKK in counsel’s fees.
On 7 April 1997 the Board of Leave to Appeal rejected the applicant’s request for leave to appeal against the High Court’s judgment to the Supreme Court.
COMPLAINTS
The applicant complains that he did not have a fair trial since his conviction was based on an incorrect assessment of the evidence and had no basis in national law. He invokes Articles 6 and 7 of the Convention. He also complains, under Article 6 § 3 (d) of the Convention, that the courts refused his requests to hear certain witnesses and that E.V. and M.J. were not heard at an earlier stage of the proceedings.
Furthermore, he complains that he had to bear the costs of the case although he lacked sufficient means to do so. He invokes in this respect Article 6 § 3 (c) and Article 14 of the Convention and Article 2 of Protocol No. 7 to the Convention.
Finally, he complains of the length of the proceedings invoking Article 6 § 1 of the Convention.
THE LAW
The applicant first complains that he did not have a fair trial since his conviction was based on an incorrect assessment of the evidence and had no basis in national law. He invokes Articles 6 and 7 of the Convention. He also complains that the courts refused his requests to hear certain witnesses and that E.V. and M.J. were not heard at an earlier stage of the proceedings. He invokes in this respect Article 6 § 3 (d) of the Convention. Article 6 § 1 and § 3 (d) read in so far as relevant as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... .
...
3. Everyone charged with a criminal offence has the following minimum rights:
....
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
Article 7 § 1 of the Convention reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The Court recalls that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (cf. e.g. the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official reports).
The Court recalls further that the guarantees in paragraph 3 of Article 6 represent constituent elements of the general concept of a fair trial as embodied in paragraph 1. Furthermore, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses and it does not require the attendance and examination of every witness on the accused’s behalf, its essential aim being an “equality of arms” in the matter. The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair as required by § 1 (see the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33).
In the present case the applicant and seven witnesses, including E.V. and M.J., were heard during the proceedings in the Criminal Court. The applicant’s request to call in E.V. and M.J. to the hearing in the High Court was allowed and the High Court also heard further witnesses as well as the applicant. The High Court refused to hear other witnesses as the court found it established that the testimony from these witnesses was of no relevance to the outcome of the case. On the basis of the material submitted the Court has found no elements which would indicate that the High Court went beyond its discretion to refuse to take evidence or to hear further witnesses in the circumstances of the present case.
Having examined the case-file the Court also finds that there are no other indications of a violation of the applicant’s right to a fair hearing as guaranteed by Article 6 § 1 of the Convention.
The Court has finally considered the applicant’s complaints under Article 7 of the Convention as submitted by him. However, the examination of this complaint does not disclose anything but the fact that the conviction was based on national law and related to acts which constituted criminal offences at the time they were committed.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant complains that he had to bear the costs of the case although he lacked sufficient means to do so. He invokes Article 6 § 3 (c) and Article 14 of the Convention and Article 2 of Protocol No. 7 to the Convention. The Court has first examined this complaint under Article 6 § 3 (c) of the Convention which reads as follows:
“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 Court recalls that the system whereby a convicted person is in principle bound to pay the costs of the proceedings, including the fees of his court-appointed counsel is not incompatible with Article 6 of the Convention, provided this does not adversely affect the fairness of the proceedings (cf. the Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, pp. 34-35, §§ 33-38).
In the present case the Court finds that the question of costs did not affect the proceedings since the applicant had a proper defence, irrespective of whether he had sufficient means during the trial. The question remains whether it would be compatible with Article 6 § 3 (c) of the Convention for the State to continue to seek reimbursement of expenses after the convicted person has established, in the enforcement proceedings, that he or she lacks sufficient means to bear the costs of the defence.
In this respect the Court recalls from the above Croissant judgment (p. 35 § 37) that the burden of proving a lack of sufficient means should be borne by the person who pleads it.
In the present case it is true that the applicant has been requested to pay the costs of the proceedings before the domestic courts. It does not appear, however, that the claim has been enforced. Furthermore, although the applicant appears to be unemployed, he has not submitted any evidence which could lead to the conclusion that he is unable to pay his debts.
In these circumstances the Court finds that the facts of the present case disclose no appearance of a violation of Article 6 § 3 (c) of the Convention.
The Court has also considered this complaint under Article 14 of the Convention and Article 2 of Protocol No. 7 to the Convention as submitted by the applicant. The Court finds, however, that the case does not raise any issues under these provisions.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3.Finally, the applicant complains of the length of the proceedings. He invokes Article 6 § 1 of the Convention.
As regards the period to be considered the applicant suggests that it commenced on 6 April 1987 when the tax authorities had knowledge about his income.
The Court recalls that 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 the actions taken by the prosecuting authorities as a result of a suspicion against him (cf. e.g. Eckle judgment of 15 July 1982, Series A no. 51, p. 33, § 73).
In the present case it is true that the tax authorities made some investigations already in 1987. However, although these investigations may have led to certain 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 June 1988 the police were informed of possible taxation irregularities. However, at that moment in time no charges were brought against the applicant, nor does it appear from the applicant’s submissions that any other measure was taken which could lead to the conclusion that he had committed a criminal offence or had been charged with having done so. In these circumstances the Court does not consider that the possible 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.
From the file it appears that the applicant’s direct involvement in the police investigation commenced in July 1990 when he was interrogated by the police about his alleged employment in Belgium. Although charges were not brought against him until 7 February 1991 the Court considers that, as from July 1990, the applicant may in the circumstances be considered as having been substantially affected by the criminal investigation proceedings. Consequently, the period to be considered for the purposes of Article 6 § 1 of the Convention began in July 1990.
The Court considers that the proceedings terminated on 7 April 1997 when leave to appeal to the Supreme Court was refused. Thus, the total length of the proceedings which the Court must assess under Article 6 § 1 of the Convention is approximately six years and nine 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. the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82, § 36).
As regards the complexity of the case the Court notes that the case, inter alia, involved investigations of the applicant’s alleged employment in Belgium. Nevertheless, although this may have been time-consuming, the Court does not consider that the criminal case against the applicant was of particular complexity.
As regards the applicant’s conduct the Court recalls that on several occasions he requested adjournments of the case in order to have various supplementary investigations carried out and he also appealed against, at least, two procedural decisions taken by the High Court. It is clear that the applicant cannot be blamed for making use of remedies available to him under national law but his requests for extensions of time-limits and appeals obviously caused delay in the proceedings, a fact which necessarily must be taken into consideration when considering the overall length of the proceedings.
As regards the conduct of the authorities the Court recalls that the indictment was served on the applicant on 7 February 1991, approximately seven months after his interrogation by the police in July 1990. Subsequently, a number of requests for additional investigations had to be considered by the police as well as the Criminal Court of Gentofte
before the case was determined in July 1993. The Court does not find that the facts of the case, in the circumstances, disclose that the investigating authorities or the Criminal Court acted inappropriately or otherwise failed to deal with the case with due diligence.
As regards the proceedings before the High Court, the Court notes that their length to a large extent was caused by the applicant’s procedural appeals. Although the Ministry of Justice’s handling of the applicant’s request for leave to appeal of 10 October 1994 at first sight may appear excessive this was to some extent also caused by the applicant’s requests for extensions of time-limits. The Court considers that there were no undue periods of delay for which the High Court or the Ministry of Justice could be blamed.
Finally, the Court considers that the proceedings concerning the request for leave to appeal to the Supreme Court against the actual judgment of the High Court, lasting less than two months, do not give rise to criticism.
Making an overall assessment of the length of the proceedings which involved two court instances as well as proceedings as to the request for leave to the Supreme Court, the Court considers that they did not 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 this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy