AS TO THE ADMISSIBILITY OF

Application No. 13156/87

by Jørgen BYRN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 1992, 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

             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 30 June 1987 by Jørgen Byrn against Denmark and registered on 12 August 1987 under file No. 13156/87;

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

Having regard to the observations submitted by the Government on 8 December 1989 and the observations in reply submitted by the applicant on 29 January 1990, as well as the additional information submitted by the Government on 14 May 1991 and 11 February 1992, and by the applicant on 14 May 1991, 22 January and 6 April 1992;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a Danish citizen, born in 1940. He is a lawyer and resides at Hellerup , Denmark.

In 1976 the applicant was appointed guardian ( lavværge ) for a Mrs. A and her son. When Mrs. A died in 1978 the applicant became the executor of her estate until 2 August 1983 when his appointment was revoked by the Ministry of Justice.

On 13 February 1984 the Probate Court ( skifteretten ) of Gentofte , being the supervisor of the applicant's handling of Mrs. A's estate, reported the applicant to the police which were requested to investigate whether the applicant had violated certain provisions of the Penal Code concerning fraud and/or embezzlement. A court order was obtained allowing the police to search the applicant's office and to seize documents. The applicant was arrested on 23 February 1984 and charged with embezzlement. A defence counsel was accordingly appointed. On 24 February 1984 the applicant was detained on remand by the Copenhagen City Court ( Københavns Byret ) for seven days, a decision which was upheld by the High Court of Eastern Denmark ( Østre Landsret ) on 28 February 1984. On 2 March 1984 the Copenhagen City Court released the applicant because the material produced by the police during the applicant's detention did not warrant continued detention on remand. The Court furthermore denied the prosecution's request that the applicant be disbarred.

The charge against the applicant was, however, upheld and the police investigations continued. Accountants were appointed by the police and asked to submit reports as to the financial transactions made by the applicant in his capacity as executor of Mrs. A's estate. On 3 April 1984 the applicant's counsel had the opportunity to discuss the material seized with the accountants and the police. It appeared that the continued police investigations would have to await the submission of the accountants' reports.

The applicant's arrest and detention had been mentioned in the media. Having regard to the crucial financial implications this would have on his law firm the applicant submitted, on 10 April 1984, a request to the State Prosecutor ( statsadvokaten ) urging him to speed up the investigation or to discontinue the case. On 24 May 1984 the State Prosecutor informed the applicant that his request would not be granted. This decision was upheld by the Attorney General ( Rigsadvokaten ) on 2 August 1984.

In the meantime, on 23 May 1984, the applicant complained to the investigating police that the case did not proceed with the necessary speed; in particular he pointed out that he had not yet received copies of any accountant reports. Such reports were submitted in late June and on 10 October 1984. On 25 July 1984 the applicant again complained about the slow progress of the investigation and informed the police that he had no intention of assisting in further interrogations and that, if this could not be avoided, they should take place in court. On 29 October 1984 the applicant again requested the police to discontinue the case.

Eventually on 14 November 1984 the applicant complained to the Ministry of Justice about the conduct of the case. After meeting the Minister of Justice on 17 January 1985 the applicant was informed, on 24 January 1985, that the Minister saw no reason to withdraw the charges or to criticise the way in which the investigating police had handled the case so far.

On 28 January 1985 the applicant requested the investigating police to inform him of the future proceedings in the case. On 11 February 1985 he was informed that it was intended to hear him and certain witnesses in court. On 16 April 1985 the police requested such a hearing in court. From 15 August 1985 until 20 October 1985 nine court sessions were held in the Copenhagen City Court during which the applicant was asked, inter alia , to submit specific material and information concerning the case. The police received this material on 23 January 1986.

On 9 April 1986 the applicant submitted a new complaint to the State Prosecutor about the police investigations. He referred inter alia to the financial consequences the charges had had on his law firm and to the fact that not even an indictment had been served yet. Since he received no reply he repeated his complaints by letter of 18 June 1986. On 26 June 1986 the State Prosecutor informed the applicant that he saw no reason to criticise the investigating police's handling of the case. This view was subsequently endorsed by the Attorney General and the Ministry of Justice.

In November 1986 the prosecuting authorities requested a court session in order to obtain an opinion in the case from the Bar Association. The applicant was opposed to such a step but on 20 November 1986 the City Court decided in favour of the prosecuting authorities. The applicant appealed against the decision to the High Court of Eastern Denmark where the issue was considered on 5 February 1987. The High Court announced that it found no reason to refuse the prosecuting authorities' request to obtain an opinion in the case from the Bar Association. In these circumstances the applicant withdrew his appeal and a number of questions to be put to the Bar Association were discussed.

It appears that during the spring of 1987 the applicant became dissatisfied with his defence counsel and eventually the defence counsel withdrew from the case in August 1987. In the meantime the applicant had submitted a complaint to the City Court maintaining that the case did not proceed with the necessary speed. However, on 3 July 1987 the City Court informed the applicant that it had no competence to intervene in this matter.

On 15 December 1987 the Bar Association submitted its report and on 16 June 1988 the indictment was served on the applicant. He was charged with three counts of embezzlement ( mandatsvig ) and one count of having misused his position as guardian for Mrs. A's son. At a court session on 18 August 1988 in the Copenhagen City Court the procedure concerning the forthcoming trial was discussed and a new defence counsel was appointed.

The trial commenced in the City Court on 4 November 1988. On 7 November 1988 the applicant complained that the presiding judge was not impartial. The Court, however, rejected the complaint and the applicant's appeal against this decision was rejected by the High Court of Eastern Denmark on 16 November 1988.

The trial in the City Court ended in March 1989 after a total of 23 court sessions. On 12 May 1989 judgment was pronounced whereby the applicant was sentenced to 2 1/2 years imprisonment. Furthermore he was disbarred for the time being. Upon pronouncement of the judgment the applicant appealed against it to the High Court of Eastern Denmark. The prosecutor filed a counter-appeal, applying for an increase of the sentence imposed. The appeal had a suspensive effect on the question of the applicant's disbarment and he was thus allowed to continue his law practice.

It appears that certain problems arose concerning the applicant's representation in the High Court. The first date for the hearing of the case in the High Court, 28 June 1989, was accordingly vacated. On 17 November 1989 the High Court requested the applicant to submit information about his intended representation; otherwise the Court would appoint a counsel, which it did on 29 November 1989.

On 10 January 1990 a preliminary court session was held in the High Court in order to fix the dates for the trial. The Court then scheduled the trial for hearing from 25 April until 18 May 1990. Judgment was pronounced on 23 May 1990. The applicant was acquitted on all counts.

On 20 June 1990 the applicant submitted his preliminary request for compensation in relation to the above criminal proceedings. On 18 July 1990 his final request amounted to approximately 35 million Danish crowns in material and non-material damages. On 29 August 1990 this request was rejected by the Attorney General and on 6 September 1990 the case was accordingly brought before the courts in accordance with Chapter 93a of the Administration of Justice Act ( retsplejeloven ).

On 19 October 1990 a preliminary court session was held in the Copenhagen City Court and the case was heard by the Court on 22 and 23 April 1991. By judgment of 30 April 1991 the City Court awarded the applicant 200,000 Danish crowns in material damages and 50,000 Danish crowns in non-material damages. As regards the latter the Court stated:

(translation)

"The Court finds that when fixing the amount of non-material damages, not only the deprivation of liberty must be taken into consideration but also the - for a lawyer - very encroaching and serious charge and the fact that the proceedings taken as a whole, including in particular the period of the investigation, were of a very long duration."

The State was ordered to pay the costs of the case, including 57,000 Danish crowns to the applicant's appointed counsel.

Both the applicant and the State appealed against the judgment to the High Court of Eastern Denmark. On 22 August 1991 a preliminary court session was held in the High Court where questions concerning the applicant's representation as well as the impartiality of the Court were discussed. In March 1992 the applicant was summoned to another preliminary court session with a view to fixing a date for the hearing of his case, and it appears that the case is now scheduled for hearing in the High Court in September 1992.

COMPLAINTS

The applicant invokes Article 3 of the Convention maintaining that the charges brought against him and the seizure of all his documents amount to inhuman and degrading treatment contrary to this provision.

The applicant furthermore refers to Article 6 paras. 1, 2 and 3 (b) and (c) of the Convention maintaining that he did not receive a fair trial within a reasonable time. In particular with regard to Article 6 para. 3 (b) and (c) the applicant maintains that he did not have adequate time for the preparation of his defence and that the authorities handled the case in such a way that his defence counsel had to withdraw from the case.

The applicant also refers to Articles 8 and 12 of the Convention maintaining that his private life has been completely ruined by the case brought against him.

The applicant finally invokes Article 50 in conjunction with Article 5 para. 5 of the Convention referring to the fact that his law firm has been badly damaged by the charges and the proceedings brought against him as all his clients left him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 June 1987 and registered on 12 August 1987.

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 relates to the applicant's complaint concerning the length of the criminal proceedings.

The Government's observations were submitted on 8 December 1989 and the applicant's observations in reply were submitted on 29 January 1990.

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

On 7 September 1990 the Commission decided to adjourn further examination of the case pending the outcome of the compensation proceedings instituted following the applicant's acquittal.

On 8 December 1990 the Commission decided to refer the application to a Chamber.

On 10 April 1991 the Commission (Second Chamber) decided to uphold the plenary Commission's decision of 7 September 1990 to adjourn the case pending the outcome of the compensation proceedings instituted following the applicant's acquittal, and to request the parties to submit information as to the further developments in these proceedings.

The Government submitted such information on 14 May 1991 and 11 February 1992 and the applicant submitted further information on 14 May 1991, 22 January and 6 April 1992.

THE LAW

1. The applicant complains that he has been subjected to treatment contrary to Article 3 of the Convention which reads:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

According to the case-law of the European Court of Human Rights and that of the Commission, treatment will be considered inhuman only if it reaches a certain degree of severity, causing considerable mental or physical suffering. Furthermore, a treatment will not be considered degrading unless the person concerned has undergone humiliation or debasement attaining a minimum level of severity. That level has to be assessed with regard to the circumstances of the concrete case (cf. for example, Eur. Court H.R., Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25).

Having regard to the above and to the submissions of the applicant the Commission does not consider that the present application discloses any appearance of a violation of Article 3 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant also complains that he did not get a fair trial, invoking Article 6 of the Convention.

It is true that Article 6 of the Convention secures to everyone charged with a criminal offence the right to a fair and public hearing by an independent and impartial tribunal. The Commission notes, however, that the applicant was acquitted by the High Court of Eastern Denmark on 23 May 1990 and the question arises whether he may now claim to be a victim of the alleged violation.

The Commission recalls that a higher court or the highest court may make reparation for an initial violation of one of the Convention's provisions. This is precisely the reason for the existence of the rule of exhaustion of domestic remedies contained in Article 26 of the Convention. Likewise the Commission has previously held that an applicant who has sought and gained redress in the national courts may not subsequently any longer claim to be a victim within the meaning of Article 25 of the Convention (cf. No. 5575/72, Dec. 8.7.74, D.R. 1 p. 44 and No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223).

In the present case the Commission furthermore recalls that the applicant under the notion of a fair trial in particular complains that he did not have adequate time for the preparation of his defence and that the authorities handled his case in such a manner that his defence counsel had to withdraw from the case. The Commission finds, however, that by his unconditional acquittal the applicant was relieved of any detrimental effects in these respects and he cannot therefore any longer claim to be a victim of these alleged violations of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3. The applicant also complains of the length of the criminal proceedings which commenced on 23 February 1984 when he was arrested and ended on 23 May 1990 with his acquittal, i.e. a total of 6 years and 3 months. The Commission has examined this complaint under Article 6 para. 1 in so far as it secures to everyone the right to have his

case determined within a reasonable time. In this connection the Commission finds that the applicant's acquittal is not directly connected with the length of the proceedings and cannot therefore be considered, either directly or implied, as a recognition of a violation of Article 6 or as reparation for the damage allegedly caused to the applicant by the length of the proceedings (cf. No. 10103/82, Dec. 6.7.84, D.R. 39 p. 186, at p. 207).

The Government submit, however, that this part of the application is inadmissible under Article 26 of the Convention for failure to exhaust domestic remedies and refer to the fact that compensation proceedings are at present pending before the High Court of Eastern Denmark. The applicant submits on the other hand that he should not be obliged to wait any longer, having regard to the fact that the criminal proceedings commenced in 1984.

The Commission recalls that, if it can be established that the remedies which may exist are ineffective or inadequate, the domestic remedies rule does not apply (cf. for example No. 8462/79, Dec. 8.7.80, D.R. 20 p. 184). Furthermore, the Commission recalls that the applicant was acquitted on 23 May 1990 and the Government have not provided information which could lead the Commission to conclude that the proceedings instituted in Denmark in accordance with Chapter 93a of the Administration of Justice Act, now more than two years after their commencement, will be coming to an end soon. Although it would not exclude that the outcome of such proceedings might in principle affect an applicant's status as a "victim" (cf. the case-law mentioned above) the Commission finds that in the circumstances of the present case these proceedings cannot, due to their excessive length, be considered to be an effective or adequate remedy within the meaning of Article 26 of the Convention for which reason it does not reject this part of the application for non-observance of the domestic remedies rule. The Commission is thus called upon to deal with the substance of this complaint.

In this respect the Commission has taken cognizance of both parties' submissions. After a preliminary examination the Commission has reached the conclusion that this part of the application raises a serious issue under Article 6 of the Convention which can only be determined after a full examination of its merits. It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. No other ground for declaring it inadmissible has been established.

4. The Commission has finally examined the remainder of the applicant's complaints as submitted by him under Articles 8 and 12 of the Convention as well as Article 50 read in conjunction with Article 5 para. 5 of the Convention. However, the examination of this part of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular of the provisions referred to by the applicant. It follows that these complaints are manifestly ill-founded within the meaning of Article 27 para. 2 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,

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber       President of the Second Chamber

   (K. ROGGE) (S. TRECHSEL)