Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19524/92

by K.

against Denmark

The European Commission of Human Rights sitting in private on

5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

C.A. NØRGAARD

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 9 October 1991 by

K. against Denmark and registered on 17 February 1992 under file No.

19524/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Danish citizen, born in 1945. He resides at

Holte. Before the Commission he is represented by Mr. Folmer Reindel,

a lawyer practising in Copenhagen.

By indictment of 4 December 1987 the applicant was charged with

several counts of aggravated tax evasion. The case was heard in the

City Court (byret) of Nykøbing Falster from 22 August 1988 to

17 February 1989. During the trial the Court heard the applicant, who

was represented by court appointed counsel, as well as 33 witnesses,

including the applicant's present representative, Mr. Reindel.

On the basis of an evaluation of the statements made and the

documentary evidence produced the City Court, on 17 February 1989,

found the applicant guilty of some of the charges brought against him

and acquitted him of others. He was sentenced to one year's

imprisonment, an additional fine of 1.3 million Danish crowns and

ordered to pay outstanding taxes in the amount of approximately one

million Danish crowns. The applicant appealed against this judgment to

the High Court of Eastern Denmark (Østre Landsret).

By indictment of 14 August 1989 the applicant was charged with

one further count of tax evasion. By judgment of 15 March 1990 he was

found guilty by the City Court of Nykøbing Falster and sentenced to pay

a fine of 7,000 Danish crowns. The applicant also appealed against this

judgment to the High Court of Eastern Denmark which subsequently joined

the two cases.

On 11 June 1990 the applicant's present representative,

Mr. Reindel, was appointed by the High Court to act as defence counsel

for the applicant. Subsequently, however, the Court realised that Mr.

Reindel was to be called as a witness in the case and therefore

decided, on 17 December 1990, to withdraw the appointment. Leave to

appeal to the Supreme Court (Højesteret) against this decision was

refused by the Ministry of Justice on 11 April 1991. After having

consulted the applicant the High Court appointed another counsel for

him.

The trial commenced in the High Court on 27 May 1991. The

applicant requested that the three professional judges vacate their

seats on the bench as they had all, earlier in their careers, acted as

public prosecutors. (According to the applicant's submissions, however,

they had never had anything to do with him or his case in such

capacity.) By decision of the same day the Court rejected the request

stating:

(translation)

"Since the fact that the three legally trained judges, who

have all to a greater or lesser extent been active as

prosecutors, does not raise doubts as to their absolute

impartiality,

the Court decides:

the request that the three legally trained judges vacate

their seats is rejected."

Leave to appeal to the Supreme Court was refused by the Ministry

of Justice on 21 August 1991.

In the meantime the trial continued in the High Court. The Court

heard the applicant and twelve witnesses, including Mr. Reindel.

Furthermore, documentary evidence was produced. On the basis of an

evaluation thereof the High Court upheld the City Court's conviction

and sentence by judgment of 15 June 1991. Leave to appeal to the

Supreme Court was refused by the Ministry of Justice on 20 September

1991.COMPLAINTS

The applicant complains, under Article 6 para. 1 of the

Convention, that his case in the High Court of Eastern Denmark was not

determined by an impartial tribunal since the legally trained judges

had all previously acted as prosecutors.

He furthermore invokes Article 6 para. 3 (c) of the Convention

complaining that he was not allowed to defend himself through legal

assistance of his own choosing since the High Court refused to accept

Mr. Reindel as his counsel.

Finally, the applicant complains that the Ministry of Justice's

refusals to grant him leave to appeal to the Supreme Court violate

Article 13 of the Convention.

THE LAW

1. The applicant alleges that his case was not determined by an

impartial tribunal due to the fact that the legally trained judges had

previously in their careers acted as public prosecutors. He invokes in

this respect 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 ... by an ... impartial

tribunal ... ."

The Commission recalls that the impartiality required by Article

6 (Art. 6) of the Convention implies a double guarantee: first the

subjective requirement that the judge shall be unbiased and, secondly,

an objective requirement that the situation must be such as to exclude

any legitimate doubts about his impartiality (cf. Eur. Court H.R.,

Piersack judgment of 1 October 1982, Series A no. 53, p. 14, para. 30).

As regards the subjective requirement the applicant has not

alleged that the judges in question showed bias against him, nor has

the Commission found any reason to doubt the judges' personal

impartiality.

As regards the objective approach the Commission notes that the

three legally trained judges had earlier in their careers acted as

prosecutors, but it is clear that they had never had anything to do

with the applicant or his case in such capacity. It follows that an

issue in respect of partiality would only arise in the present case if

it could be maintained that former judicial officers in a public

prosecutor's department were unable, subsequently, to become judges.

The Commission considers, however, that such a radical solution would

be based on an inflexible and formalistic conception of the office of

public prosecutor and would erect a virtually impenetrable barrier

between this office and the bench. Such an interpretation would also

run counter to the judicial system of several Contracting States where

transfers of this kind are a frequent occurrence. Having regard to this

the Commission finds that the mere fact that a judge was once a public

prosecutor is not a reason for fearing that he lacks impartiality (cf.

also the above-mentioned Piersack judgment, pp. 14-15, para. 30 (b)).

In the present case no other allegation has been submitted which

could lead to the conclusion that the impartiality of the High Court

of Eastern Denmark, as composed in the applicant's case, was capable

of appearing open to doubt. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that he was not allowed to defend

himself through legal assistance of his own choosing since the High

Court refused to accept Mr. Reindel as his counsel. He invokes Article

6 para. 3 (c) (Art. 6-3-c) of the Convention which reads:

"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 Commission recalls that the right to legal representation of

one's own choosing ensured by this provision is not of an absolute

nature (cf. for example No. 5923/72, Dec. 30.5.75, D.R. 3 p. 43) and

it does not guarantee the right to choose an official defence counsel

who is appointed by the court (cf. No. 6946/75, Dec. 6.7.76, D.R. 6

p. 114). In examining this question under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention the Commission must take account of the

situation of the defence as a whole rather than the position of the

accused taken in isolation, having regard in particular to the

principle of equality of arms as included in the concept of a fair

hearing. Thus Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

guarantees that the proceedings against the accused shall not take

place without adequate representation for the defence, but does not

give the accused the right to decide himself in what manner his defence

should be assured (cf. for example No. 8295/78, Dec. 9.10.78, D.R. 15

p. 242).

Considering the applicant's defence as a whole, therefore, the

Commission notes that he was given ample opportunity to present his own

case. The restriction imposed on his choice of representation was

limited to excluding Mr. Reindel on reasonable grounds, namely that

Mr. Reindel was a witness in the case. The applicant could have chosen

any other defence lawyer to represent him and was indeed represented

by a court appointed counsel after having been consulted. An

examination of the trial transcript does not disclose any disadvantage

to the defence or unfairness in this respect. The Commission therefore

finds that excluding Mr. Reindel from acting as defence counsel does

not in the circumstances of the present case disclose any appearance

of a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant finally complains that the Ministry of Justice's

refusals to grant him leave to appeal violate Article 13 (Art. 13) of

the Convention which reads:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that Article 13 (Art. 13) has been

interpreted by the European Court of Human Rights as requiring a remedy

in domestic law only in respect of grievances which can be regarded as

"arguable" in terms of the Convention (cf. Eur. Court H.R., Boyle and

Rice judgment of 21 June 1988, Series A no. 131, p. 23, para. 52).

However, leaving aside the questions to what extent Article 13

(Art. 13) applies to decisions of a court of appeal and whether a

request to the Ministry of Justice for leave to appeal to the Supreme

Court could be considered a "remedy" within the meaning of this

provision, the Commission finds, having regard to its above

conclusions, that the applicant did not have any arguable claims. In

these circumstances the Commission finds no appearance of a violation

of Article 13 (Art. 13) of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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K. v. DENMARK

K. v. DENMARK