FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6315/02 by Troels PETERSEN against Denmark

The European Court of Human Rights ( First Section) , sitting on 13 May 2004 as a Chamber composed of:

Mr G. Bonello , President , Mr P. Lorenzen , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 26 April 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Troels Petersen, is a Danish national, who was born in 1964 and lives in Kokkedal. He is represented before the Court by Mr Søren Beck, a lawyer practising in Copenhagen.  The Goverrnment are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice.

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

In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager ) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits ear ‑ marked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts.

I.

On 15 April 1994 the Tax Authorities reported to the Public Prosecutor for Serious Economic Crime ( Statsadvokaten for Særlig Økonomisk Kriminalitet ) that allegedly, a person henceforth called JM, and three other persons had participated in the acquisition and stripping of seventy private limited companies (the Centra Finans case). The Tax Authorities made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant's name figured and his role as vendor of private limited companies was described.

In December 1994 the Copenhagen City Court ( Københavns Byret ) issued a warrant of arrest against JM, who was staying abroad.

On 11 May 1995 the Copenhagen City Court issued a search warrant for the premises of the applicant, who was neither provisionally charged (sigtet) nor charged ( tiltalt ). The search was carried out on 23 May 1995 and the applicant was interviewed by the police without being charged.

On 10 August 1995 JM was remanded in custody, from which he escaped on 3 October 1995. He was arrested in France in April 1996, and served a sentence there before he was surrendered to the Danish police on 29 May 1997.

In the meantime the Copenhagen Police had questioned the applicant on 5 October 1995. An order for surrender of details on bank accounts in Britain was issued on 23 February 1996. Another search warrant against the applicant was issued by the Copenhagen City Court on 18 October 1996. It was carried out on 24 October 1996, and the applicant was formally charged with tax asset stripping allegedly having been committed in six cases during the spring of 1993 with a risk of loss to the Treasury of approximately thirty million Danish kroner (DKK). JM was charged with tax asset stripping in twenty-seven cases. The police also investigated other persons in connection with the case, but their criminal cases were conducted separately. In the spring of 1997 the applicant gave permission that the police obtain details from his accounts with his bank in Switzerland. The latter and account details from the bank in Britain were submitted to the police in June 1997.

On the prosecutions' request a hearing was held before the Copenhagen City Court on 18 August 1997 in order to plan the course of the proceedings. Dates for the trial were agreed on. It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster. Counsel stated that this was not possible since they were occupied by other matters, including hearings already scheduled in other proceedings.

An indictment was issued by the prosecution on 11 September 1997 and the trial before the City Court commenced on 23 October 1997. Fifty-eight hearings were held altogether. The applicant, JM and forty-five witnesses were heard, including a state-authorised public accountant, who gave evidence over two court days in which he elaborated the audit reports, etc. In addition, a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with Danish and foreign companies and money transaction in Danish and foreign banks (in Britain, Switzerland and the United States). Each set of exhibits for the case took up fifty-three A4 binders, which included four audit reports, two supplementary reports and two statements of transaction prepared for the case by the state-authorised public accountant. 

The closing speech of the applicant's counsel took about two and a half day, that of the JM's counsel a little more than two days, and that of the prosecutor about three days.

The City Court, sitting with six lay judges, met six times and deliberated for altogether three and a half days. By judgment of 9 March 1999, which ran to one hundred and thirty-five pages, the City Court convicted the applicant of participation in tax assets stripping as to DKK 29,748,769. He was sentenced to three years' imprisonment; an amount of DKK 3,800,000 was seized; and in addition for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. JM was convicted by the same judgment.

The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things:

“...on the material before it the court cannot find it established that the investigation laid unnecessary idle during the periods, on which [the applicant] specifically has relied [i.e. de facto from April 1994 until October 1996].

Furthermore, the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ...have shown, inter alia , that it has been time-consuming and difficult to procure various details for the case from foreign authorities and banks in general, i.e. also during the investigation, not least concerning [the applicant]. The length of the proceedings is not due only to the affairs of [JM], but also due to the need [during the investigation and the trial] of illuminating the role of [the applicant]  Moreover, the investigation concerning both [JM and the applicant] was rendered difficult by the fact that [JM] had left Denmark and stayed abroad without notifying the Danish authorities of his residence in the period from June 1993 until 9 August 1995 and later escaped from custody and fled abroad in the period from 3 October 1995 until 11 April 1996, whereupon he was furthermore remanded in custody and served a sentence in France from 11 April 1996 until 29 May 1997.”

On 14 April 1999 the applicant lodged an appeal against the judgment to the High Court (Østre Landsret) , before which 20 hearings were held. By judgment of 27 September 2000 the High Court upheld the City Court's judgment. The appeal court also rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time. It stated inter alia:

“The High Court finds that there are no major periods of time during the proceedings with the police, the prosecutor, the City Court or the High Court when the case has not been duly expedited. It should be noted that it is solely due to the circumstances of [the applicant] and his counsel that the case could not be tried by the High Court in the autumn of 1999. Accordingly, and in view of the nature and the scope of the crime, which has necessitated comprehensive investigation, the total length of the proceedings does not involve any violation of Article 6 § 1 of the Convention.” 

On 15 February 2001 the applicant requested leave to appeal against the High Court judgment to the Supreme Court ( Højesteret ). His request was refused by the Leave to Appeal Board ( Procesbevillingsnævnet) on 3 April 2001.

II.

In the early 1990s the Police in Frederikssund with the assistance from a special crime squad carried out investigation of several tax assets stripping cases, which resulted inter alia in eight persons being indicted in July 1996. As part of the investigations accountants had been asked to draw up statements of accounts. Those were submitted on 7 July 1997 and led the police's attention to other persons involved. On 7 November 1997 the applicant was provisionally charged with participation in tax assets stripping having been committed in 1992-1993 and by indictment of 17 December 1997 prosecution was initiated against him and five co ‑ accused (the Lacewood case). On the same date the indictment was forwarded to the City Court of Frederikssund ( Retten i Frederikssund ) although the investigation had not been completed.

It emerges from the court records of 29 April 1998 that the parties discussed the scheduling of the trial. The applicant's counsel was not able to attend the trial until after November 1998 and some of the other counsel were unable to appear until after April 1999.

By request of counsel for two co-accused, on 12 May 1998 the City Court of Frederikssund decided to transfer the case to Copenhagen City Court being the proper venue. The public prosecution appealed in vain against this decision. Thus, the High Court found against the public prosecution on 3 June 1998, and the latter's request for leave to appeal to the Supreme Court was refused by the Leave to Appeal Board on 7 August 1998.

The Copenhagen City Court received the case on 4 September 1998.

On 1 October 1998 an audit “liquidity statement” requested by the prosecution was completed and included in the case file.

At a court session held on 2 December 1998 the trial was scheduled to commence in the spring of 1999. From the court records of 17 February 1999 it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before the Copenhagen City Court, and that therefore the trial could not start until 9 August 1999. Five hearings already scheduled for April and June 1999 were maintained and reserved for various requests made by counsel. It appears, however, that the said five hearings were subsequently cancelled. A supplementary indictment was issued on 20 July 1999.

In the period between 9 August 1999 and 1 December 2000 altogether one hundred and five court sessions were held before the Copenhagen City Court. The applicant, the co-accused, and more than one hundred witnesses were heard. In addition, the above “liquidity statement” and a considerable amount of other documentary evidence were presented, thus about thirty A4 binders were read out during the trial.

On 18 December 2000 the case was set down for judgment, which was pronounced on 2 March 2001 and ran to two hundred and twenty-two pages, and by which the applicant and the co-accused were convicted. As to the metering out the applicant's sentence, the court found that the sentence previously imposed on the applicant, upheld by the High Court on 27 September 2000 (see under I.), would not have been increased, had the two trials against him been joined. Thus, no additional sentence was imposed on the applicant. He was, however, deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval.

The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things:

“The [crimes] were committed in the period from 1991 until 1994. Prosecution was initiated by the indictment of 17 December 1997 and the supplementary indictment of 20 July 1999. The defendants were originally indicted before the City Court of Frederikssund, but the case was referred to the Copenhagen City Court by order of 12 May 1998 passed by the City Court of Frederikssund. This order was appealed against to the High Court, which dismissed the appeal by order of 3 June 1998. On 7 August 1998 the Leave to Appeal Board refused to grant the prosecutor leave to appeal to the Supreme Court. The Copenhagen City Court received the case on 4 September 1998, and during a court session held on 2 December 1998 dates were fixed for the trial. [The court sessions scheduled to take place in the spring of 1999] were later cancelled, and the trial took place as from 9 August 1999 and onwards.

According to the information available, the time spent on investigation and initiation of prosecution by the prosecutor cannot be blamed the latter. In this connection, importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad. Accordingly, Article 6 of the Convention has not been breached”

The applicant did not appeal against the judgment.

COMPLAINT

The applicant complains under Article 6 of the Convention that the criminal charges against him were not determined within a reasonable time.

THE LAW

Complaining that the criminal charges agasint him were not determined within a reasonable time the applicant relies on Article 6 of the Convention, which in so far as relevant, reads as follows:

“1. In the determination of...any criminal charge against him, everyone is entitled to a fair...hearing within a reasonable time by [a] tribunal...”

I.

(a) Period to be taken into consideration

In the opinion of the Government the first set of proceedings commenced on 23 May 1995.

The applicant submits that they commenced on 15 April 1994, when the Tax Authorities reported JM and three other persons to the Public Prosecutor for Serious Economic Crime because at the same time the Tax Authorities made a reservation to increase the group of persons involved in the alleged crimes and submitted a note in which the applicant's name figured.

The Court considers that the applicant was not substantially affected by the proceedings until 25 May 1995 when the police in Copenhagen searched his premises and questioned him for the first time. It finds that the proceedings ended on 3 April 2001, when the Leave to Appeal Board refused the applicant's request for leave to appeal against the High Court judgment of 27 September 2000 to the Supreme Court. Thus, the proceedings lasted for five years, ten months and nine days.

(b) Reasonableness of the length of the proceedings

From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

Complexity of the case

The Government submit that the criminal proceedings were extremely complex as concerns facts, law as well as procedural issues.

The applicant disagrees. He contests that the proceedings concerned a new form of economic crimes. In any event, even assuming that no case ‑ law existed at the relevant time as to the crimes in question, the applicant considers that this is irrelevant when assessing the reasonableness of the length of the proceedings.

The Court reiterates that the scale and complexity of a criminal case concerning fraud, which is often compounded further by the involvement of several suspects, may justify the extensive length of proceedings (see, among other authorities, C.P. and Others v. France , no. 36009/97, § 30, 1 August 2000; Hozee v. the Netherlands , judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1102, § 52; and Wejrup v. Denmark (dec.), no. 49126/99, 7 March 2002, unreported). In the present case the charges against the applicant of participating in tax assets stripping were connected with his role as vendor of private limited companies. The Court recalls that the City Court in its judgment of 9 May 1999 stated that it had been time-consuming and difficult to procure various details for the case from foreign authorities and banks in general, also during the investigation, not least concerning the applicant. Moreover, the Court notes that during the proceedings a considerable amount of documentary evidence was presented including audit reports, statements of transaction prepared for the case by a state-authorised public accountant, and reports concerning constructions with Danish and foreign companies and money transaction in Danish and foreign banks. Having regard to these circumstances, the Court finds it clear that the investigations and the court proceedings were relevant, time-consuming and difficult. Thus, for the purposes of Article 6 of the Convention the case was complex.

The applicant's conduct

In the Government's opinion the applicant's conduct has to some extent been a contributory cause to the length of the proceedings, because the crimes that he committed rendered it necessary to carry out comprehensive investigation and thorough reviews of large accounting material.

The applicant disagrees.

The Court finds that the case does not disclose any appearance of the applicant having acted in a way that inappropriately prolonged the criminal proceedings against him.

Conduct of the national authorities

The Government maintain that for the sake of procuring evidence and due to their interrelated roles it was necessary to prosecute the applicant and JM jointly, and that in spite of the applicant being accused of “only” six out of the total of twenty-seven counts of the indictment, a very considerable part of the trial actually concerned the said six counts which the applicant and JM had committed jointly. As to JM's stay abroad and escape from custody, the Government point out that although these matters were not imputable to the applicant, they nevertheless rendered the investigation difficult.

The applicant submits that the proceedings were unnecessarily prolonged in particular due to the consolidation of his trial with that of JM, and that accordingly the case laid idle twice during the investigation period because JM were on the run (from June 1993 until 9 August 1995, and from 3 October 1995 until 11 April 1996). In addition, the applicant points out that the indictment contained only six counts against him whereas twenty ‑ seven concerned JM.

The Court reiterates its finding that the proceedings commenced on 23 May 1995. Thus, any influence that JM's stay abroad may have had on the length of the investigation period as regards the applicant is irrelevant before that date. The Court notes that the applicant was indicted on 11 September 1997. Consequently, the period of investigation by the police and the legal evaluation by the prosecution lasted two years, three months and nineteen days. The Court finds that the facts of the case do not disclose that the investigating authorities or the prosecution acted inappropriately or otherwise failed to perform their duties with due diligence after the applicant became involved. As to the prosecution's decision for reasons of procedural economy to join the investigations and subsequently the criminal trials of the applicant and JM, the Court observes that their roles were closely interconnected. Moreover, the Court notes that a substantial part of the evidence procured was relevant as to both accused, or specifically concerned the six counts which the applicant and JM had committed jointly. In these circumstances, the Court finds that the consolidation of the cases was appropriate.

At a preparatory hearing held before the City Court on 18 August 1997, the trial was scheduled to commence on 23 October 1997. The indictment was issued on 11 September 1997. The proceedings before the City Court ended on 9 March 1999, when the judgment was delivered. The proceedings thus lasted a little less than eighteen months. The Court does not consider this period excessive. In addition it notes that during the preparatory hearing on 18 August 1997 the City Court judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster, and that counsel stated that this was not possible since they were occupied by other matters, including hearings already scheduled in other proceedings.

On 14 April 1999 the applicant appealed against the judgment to the High Court, before which twenty hearing were held. Judgment was passed on 27 September 2000. Accordingly, the trial before the High Court lasted a little less than eighteen months. The Court does not consider this period excessive. In addition it notes the High Court's statement that it was solely due to the circumstances of [the applicant] and his counsel that the case could not be tried by the High Court in the autumn of 1999.

Finally, the length of the leave to appeal proceedings cannot be criticised as they only lasted from 15 February 2001 when the applicant forwarded his request until it was rejected by the Leave to Appeal Board on 3 April 2001.

Overall assessment

In the above circumstances, the Court finds that the length of the proceedings did not go beyond what may be considered reasonable in the particular circumstances of the case. This part of the applicant's complaint does not, therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

II.

As to the second set of proceedings the Government claim that the applicant failed to exhaust domestic remedies as he did not appeal against the City Court judgment of 2 March 2001.

The applicant disagrees and points out that even if the High Court would have admitted an appeal, he had no interest in lodging such as no additional sentenced had been imposed on him.

The Court notes that an issue could arise under Article 35 of the Convention as to whether domestic remedies have been exhausted. However, the Court does not find it necessary to examine this further, since in any event it finds this part of the applicant's complaint inadmissible for the following reasons.

(a) Period to be taken into consideration

The Government find that the proceedings commenced on 7 November 1997.

The applicant finds that they commenced earlier and submit in support thereof that already on 6 December 1993 the Tax Authorities had drawn the police's attention to various transactions that had occurred within a named private limited company that was later described in the first count of the indictment.

The Court considers that the applicant was not substantially affected by the proceedings until 7 November 1997 when he was questioned by the police in Frederikssund and provisionally charged. It finds that the proceedings came to an end on 2 March 2001, when the Copenhagen City Court passed its judgment. Thus, the proceedings lasted three years, three months and twenty-three days.

(b) Reasonableness of the length of the proceedings

Complexity of the case

The Government submit that the criminal proceedings were extremely complex as concerns facts, law as well as procedural issues.

The applicant disagrees. He contest that the proceedings concerned a new form of economic crimes. In any event, even assuming that no case ‑ law existed at the relevant time as to the crimes in question, the applicant considers that this is irrelevant when assessing the reasonableness of the length of the proceedings.

The Court refers to its general observations above concerning the complexity of the case. It notes that the second set of proceedings comprised six defendants, including the applicant, and ten counts of tax assets stripping concerning an amount of approximately DKK 40 million.

Furthermore, it notes that also in these proceedings the charges against the applicant of participating in tax assets stripping were connected with his role as vendor of private limited companies, and that during the proceedings more than hundred witnesses were heard and a considerable amount of documentary evidence was presented including audit reports, liquidity studies describing cash flows from the acquisition of the solvent companies until the companies were dissolved or liquidated, and details from foreign banks. Having regard to these circumstances, the Court finds it clear that the investigations and the court proceedings were relevant, time-consuming and difficult. Thus, for the purposes of Article 6 of the Convention the case was complex.

The applicant's conduct

In the Government's opinion the applicant's conduct has to some extent been a contributory cause to the length of the proceedings, because the crimes that he committed rendered it necessary to carry out comprehensive investigation and thorough reviews of large accounting material.

The applicant disagrees.

The Court finds that the case does not disclose any appearance of the applicant having acted in a way that inappropriately prolonged the criminal proceedings against him.

Conduct of the national authorities

The Government maintain that for the sake of procuring evidence and due to their interrelated roles it was necessary to prosecute the applicant and the five co-accused jointly. Also, the Government submit, having accumulated the applicant's two trials would hardly have shortened the proceedings since that would have resulted in a case with more defendants, more different counts and far more comprehensive evidence.

The applicant considers that the proceedings were unreasonably prolonged because his trial was joined with that of the co-accused, and since his two trials were not accumulated. Also, the applicant contends that the proceedings were delayed significantly because they were initiated before the wrong venue i.e. the City Court of Frederikssund, and because the Copenhagen City Court lacked court room facilities.

The Court reiterates its finding that the proceedings for the purpose of Article 6 of the Convention commenced on 7 November 1997 and notes that the City Court of Frederikssund received the indictment against the applicant and the five co-accused on 17 December 1997. Accordingly only one month and ten days passed from the applicant was charged until the case was brought before the judicial instance.

Approximately one year and eight months passed from the date when the case was brought before the City Court of Frederikssund until the trial actually commenced on 9 August 1999 before the Copenhagen City Court.

The applicant submits that the authorities are to blame for this period being prolonged because the proceedings were initiated before the wrong venue and because the Copenhagen City Court lacked court room facilities.

With regard to the issue of venue, the Court notes that on request of counsel of two of the co-accused, the case was being transferred on 12 May 1998. In the Court's view, neither the fact that the prosecution initiated the proceedings before the City Court of Frederikssund, nor the fact that they made use of available remedies when appealing against the decision to transfer the case to the Copenhagen City Court can be regarded as hindering the progress of the proceedings or inappropriately prolonging them.

As to the lack of court room facilities the Court reiterates that the trial was to take place in another building rented for the purpose of trying a number of major cases before the Copenhagen City Court, and that therefore the trial commenced in August 1999 in stead of in the spring of 1999. However, in the light of the complexity of the case the Court finds that this period of prolongation is not in itself sufficiently long for raising an issue in respect of the length of the proceedings. In any event the Court considers that practical issues unavoidably arise when scheduling a trial of such dimension, not least in respect of the actual fixing of dates for the hearing. Such does not depend on the courts alone; due regard also has to be had to counsel and their availability. The Court reiterates in this connection that when on 29 April 1998 before the City Court of Frederikssund the parties discussed the scheduling of the trial the applicant's counsel was not able to attend the trial until after November 1998 and some of the other counsel were unable to appear until after April 1999. Thus, in view of the expected duration of the trial and the unavoidable difficulties which have to be taken into consideration in a trial of that size involving six co-accused, the Court finds that the period that passed from the case was brought before the court until the trial actually commenced cannot be criticized.

The proceedings before the Copenhagen City Court ended on 2 March 2001, when the judgment was delivered. The total length of the City Court proceedings thus lasted three years, 2 months and 13 days. The Court reiterates that in the period between 9 August 1999 and 1 December 2000 altogether hundred ‑ and ‑ five court sessions were held before the Copenhagen City Court. The applicant, the co-accused, and more than one hundred witnesses were heard. In addition, the above statements of accounts and a considerable amount of other documentary evidence were presented. Accordingly, the Court considers that the proceedings before the City Court do not disclose any unacceptable periods of inactivity.

As to the prosecution's decision for reasons of procedural economy to join the investigations and subsequently the criminal trials of the applicant and the co-accused, the Court observes that their roles were closely interconnected and that a substantial part of the evidence procured was relevant as to all accused. Finally, in the Court's opinion there were reasonable grounds to separate the two sets of criminal proceedings against the applicant, as they concerned different private limited companies, with different co ‑ accused involved.

Overall assessment

In the above circumstances, the Court finds that the length of the proceedings did not go beyond what may be considered reasonable in the particular circumstances of the case. This part of the applicant's complaint does not, therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Giovanni Bonello Registrar President