Lexploria

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 Ã…rhus City Court

(Retten i Ã…rhus) 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

Ã…rhus 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 Ã…rhus 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

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K.R.L. v. DENMARK

K.R.L. v. DENMARK

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