Ugilt Hansen v. Denmark (dec.)

Information Note on the Court’s case-law No. 88

July-August 2006

Ugilt Hansen v. Denmark (dec.) - 11968/04

Decision 26.6.2006 [Section V]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effectiveness of a request to set the case down for trial; failure to comply with domestic procedure: inadmissible

The applicant owned and managed two private limited companies which each ran two freshwater fish farms. In September 1993 the applicant was charged with intentionally exceeding the feed quotas fixed by the 1989 Act. An indictment was issued in October 1993; it was subsequently amended on several occasions, in response to changes in the law. In June 1994, while the applicant’s case was still pending at first instance, another court delivered a judgment in a similar case, ruling on questions of principle which were also important to the applicant’s case. An appeal was filed against that judgement.This other case being a test case, the applicant’s case was adjourned until a judgment on appeal had been delivered; this happened in September 1995. Then, in January 1996, a defendant in another test-case alleged that the 1989 Act was anti-competitive and therefore in conflict with EU law. Eventually, in November 1996, the High Court ruled that it found no reason to refer to question to the European Court of Justice. In the meantime, in the spring of 1996 in yet another test-case, a defendant had alleged in vain that the relevant legislation was contrary to the Danish Constitution. In response to this, the prosecuting authorities circulated a memorandum providing an account of the latest development in the cases concerning fish farms and urging subordinate prosecuting authorities to expedite them. The applicant’s trial eventually took place in September 1998; in October 1998 the applicant was convicted. On appeal, the applicant argued that the relevant domestic legislation had not been notified to the European Commission, as required by a Council Directive; the case was then adjourned to await the outcome of two appeals pending before the Supreme Court in which an identical argument had been made. The Supreme Court dismissed these appeals in February 2001. The applicant’s appeal was heard in January 2003 and on 6 November 2003 the appellate court gave judgment upholding the applicant’s conviction but reducing the sentence somewhat. The applicant applied for leave to appeal on 26 March 2004; this was refused on the ground that the request had been lodged out of time.

Inadmissible for non-exhaustion: The Government argued, firstly, that the applicant could have asked for the case to be set down for trial on the evidence available (section 840 of the Administration of Justice Act). The Court finds that it need not rule in general whether that is a remedy to be exhausted. Moreover, in the present case the length of the proceedings was primarily caused by the various adjournments awaiting the outcome of the so-called test-cases whose outcome most likely would have had significant influence on the charges against the applicant and might even have led to his acquittal: the Government have not shown that section 840 of the Administration of Justice Act would, in such circumstances, have been an effective remedy. The Government argued, secondly, that the application was inadmissible for non-exhaustion of domestic remedies because the applicant failed to comply with the procedural requirements when, after the expiry of the ordinary time-limit, he requested leave to appeal. In the present case the High Court, being the appellate court, found that the length of the proceedings had not exceeded the “reasonable time” requirement within the meaning of Article 6 of the Convention. Accordingly, had the applicant complied with the procedural rules for requesting leave to appeal against the judgment of 6 November 2003 and had the Leave‑to‑Appeal Board granted his request, the Supreme Court would have examined the length-of-proceedings complaint, and in case of a finding of a failure to observe the reasonable time requirement, it could have granted redress therefore by, for example, exempting the applicant from paying legal costs or reducing his sentence. The applicant did request leave to appeal against the High Court judgment of 6 November 2003, but not until after the expiry of the normal procedural time-limit. Besides, in his request the applicant failed to complain about the length of the proceedings in form or in substance.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes

 

Full & Egal Universal Law Academy