Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 13156/87

Jørgen Byrn

against

Denmark

REPORT OF THE COMMISSION

(adopted on 16 February 1993)

TABLE OF CONTENTS

Page

I. THE PARTIES

(paras. 1 - 2) . . . . . . . . . . . . . . . . . . . . .1

II. SUMMARY OF THE FACTS

(paras. 3 - 6) . . . . . . . . . . . . . . . . . . . . .1

III. PROCEEDINGS BEFORE THE COMMISSION

(paras. 7 - 19). . . . . . . . . . . . . . . . . . . . .3

IV. THE DECISION OF THE COMMISSION

(paras. 20 - 23) . . . . . . . . . . . . . . . . . . . .5

APPENDIX I : DECISION ON THE ADMISSIBILITY. . . . . . . . . .6

I. THE PARTIES

1 The present Report, which was drawn up by the European Commission

of Human Rights (Second Chamber) in accordance with

Article 30 para. 1 (c) of the Convention, concerns the application

brought by Jørgen Byrn against Denmark.

2 The Danish Government were represented before the Commission by

their Agent, Mr. Tyge Lehmann of the Ministry of Foreign Affairs.

II. SUMMARY OF THE FACTS

3 The facts of the case as submitted at the admissibility stage are

set out in the Commission's decision as to the admissibility of the

application of 1 July 1992, attached hereto as Appendix I. They may be

summarised as follows :

Preliminary investigations were instituted against the applicant

in February 1984 concerning alleged fraud and/or embezzlement. The

proceedings came to an end on 23 May 1990 when the High Court of

Eastern Denmark (Østre Landsret) acquitted the applicant of all charges

brought against him.

4 Before the Commission the applicant complains, under

Article 6 para. 1 of the Convention, of the length of the criminal

proceedings.

5 By judgment of the High Court of Eastern Denmark of

25 September 1992 the applicant was awarded compensation in the amount

of DKK 350,000 plus interest and costs. As regards the compensation

awarded in respect of pain, suffering and inconveniences as well as

disturbance of position and circumstances the High Court stated inter

alia :

(Translation)

"... on his arrest Jørgen Byrn was charged with

embezzlement which was a particularly serious and critical

charge for him as a lawyer. The High Court moreover refers

to the length of the investigation and the criminal

proceedings. The time spent on the hearing of the case

cannot be regarded as compatible with the demand for a fair

hearing within a reasonable time. However, the fact that

Jørgen Byrn's own participation in the process to some

extent has caused the case to take longer than usual for

similar cases should not be disregarded. The reason for

many of the problems pointed out by Jørgen Byrn in the

action for damages seems to be connected with his opinion

that he has been and still is subject to systematic

persecution in particular by authorities and colleagues

within the legal profession, the police, the Prosecution

and the courts of law. This has also caused the hearing of

this case by the High Court to take seven court days.

Jørgen Byrn's notion of this persecution, as stated by a

witness in this action, did not arise after the

commencement of proceedings in this case in February 1984,

but has presumably been intensified as a result of this in

which connection the lengthy proceedings have clearly had

an unfavourable influence. In addition, when taking into

consideration the general influence of the criminal

proceedings on Jørgen Byrn's business situation and

overall conditions of life, the Court finds that the

damages should be increased from the amount of DKK 100,000

as fixed by the City Court to DKK 300,000."

6 The Government submit, which is contested by the applicant, that

in view of the above judgment the applicant cannot any longer claim to

be a victim of a violation of the Convention.

III.PROCEEDINGS BEFORE THE COMMISSION

7 The application was introduced on 30 June 1987 and registered on

12 August 1987.

8 On 2 October 1989 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on the admissibility and merits of the application

in so far as it related to the applicant's complaint concerning the

length of the criminal proceedings.

9 The Government's observations were submitted on 8 December 1989

and the applicant's observations in reply were submitted on

29 January 1990.

10 On 16 February 1990 the Commission decided not to grant legal aid

to the applicant.

11 On 7 September 1990 the Commission decided to adjourn the further

examination of the case pending the outcome of the compensation

proceedings instituted by the applicant following his acquittal.

12 On 8 December 1990 the Commission decided to refer the

application to a Chamber.

13 On 10 April 1991 the Commission (Second Chamber), confirmed the

adjournment of the case pending the outcome of the compensation

proceedings instituted following the applicant's acquittal.

14 On 1 July 1992 the Commission decided to continue its examination

of the case and declared admissible the complaint concerning the length

of the proceedings. The remainder of the application was declared

inadmissible.

15 On 10 July 1992 the text of the Commission's decision on

admissibility was communicated to the parties who were invited to

submit any additional observations or further evidence which they

wished to put before the Commission.

16 By letter of 29 September 1992 the respondent Government informed

the Commission of the judgment of the High Court of Eastern Denmark of

25 September 1992.

17 By letter of 3 December 1992 the respondent Government informed

the Commission that a total amount of DKK 469,262.49 was placed at the

applicant's disposal on 30 October 1992. The amount was drawn from the

account in question on 3 November 1992.

18 On 16 February 1993 the Commission decided to strike the present

application off its list of cases, in accordance with

Article 30 para. 1 (c) of the Convention, the following members being

present :

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

F. MARTINEZ

J.-C. GEUS

19 It adopted the present Report and decided to transmit it to the

Committee of Ministers and the parties for information and to publish

it.

IV. THE DECISION OF THE COMMISSION

20 According to the constant case-law of the Commission and the

European Court of Human Rights an applicant who obtains adequate

redress at the domestic level for the alleged violation of the

Convention cannot, or cannot any longer, claim to be a "victim" of a

violation by one of the High Contracting Parties of the rights set

forth in the Convention (cf. for example No. 9320/81, Dec. 15.3.84,

D.R. 36 p. 24, No. 10259/83, Dec. 10.12.84, D.R. 40 p. 170,

No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237 and Eur. Court H.R., Eckle

judgment of 15 July 1982, Series A no. 51, p. 30, para. 66).

21 From its decision on admissibility the Commission recalls that

whereas the applicant was relieved, by his unconditional acquittal, of

any detrimental effects in respect of his complaint of an unfair trial,

his acquittal was not directly connected with the length of the

proceedings and could not therefore be considered as a direct or

indirect recognition of a violation of Article 6 in this respect, or

as a reparation for the damage allegedly caused thereby. Furthermore,

the Commission found that, although the compensation proceedings

instituted by the applicant in accordance with Chapter 93a of the

Administration of Justice Act (Retsplejeloven) would not in the

circumstances prevent the Commission from examining this complaint on

the merits, their outcome might nevertheless affect the applicant's

status as a "victim".

22 In the present case the Commission notes that the applicant

obtained a total of DKK 469,262.49 plus costs in compensation inter

alia for pain, suffering and inconveniences as well as disturbance of

position and circumstances caused by the criminal proceedings against

him. The High Court stressed in its judgment of 25 September 1992 that

the charges were particularly serious for the applicant being a lawyer

and found that the "time spent on the hearing of the case cannot be

regarded as compatible with the demand for a fair hearing within a

reasonable time".

23 In these circumstances the Commission finds that the applicant

obtained adequate redress at the domestic level for the alleged

violation of Article 6 para. 1 of the Convention concerning the length

of the proceedings, this being the only issue still pending before it.

It concludes, therefore, that it is no longer justified to continue the

examination of this application, within the meaning of

Article 30 para. 1 (c) of the Convention. It further considers that

respect for human rights as defined in the Convention does not require

the continuation of the examination thereof.

For these reasons, the Commission unanimously

DECIDES TO STRIKE APPLICATION NO. 13156/87 OFF ITS LIST OF CASES;

ADOPTS THE PRESENT REPORT;

DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers

for information, to send it also to the parties and to publish

it.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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BYRN v. DENMARK

BYRN v. DENMARK