FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68693/01 by Karl Gustav PEDERSEN and Jens Otto PEDERSEN against Denmark

The European Court of Human Rights ( First Section) , sitting on 12 June 2003 as a Chamber composed of

Mr C.L . Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 9 February 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Karl Gustav Pedersen (first applicant) and Jens Otto Pedersen (second applicant), are Danish nationals, respectively born in 1958 and 1938, and living in Løgstør and Hobro . They are represented before the Court by Mr Uffe Baller, a lawyer practising in Ã…rhus. The Government are represented by their Agent, Ms Nina Holst ‑ Christensen, the Ministry of Justice.

A. Circumstances of the case

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

I

On 20 October 1992 the first applicant, as the owner of 3 freshwater fish farms, was charged with offences against the Act on freshwater fish farms of 5 April 1989 ( bekendtgørelse nr. 224 ), henceforth also called the 1989 Act, as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for himself.

On 13 September 1993 an indictment was submitted to the City Court in Fjerritslev ( retten i Fjerritslev ) before which the trial was scheduled for 9 December 1993. However, by request of the applicant’s counsel, endorsed by the prosecutor, the trial was adjourned awaiting the outcome of a corresponding pending criminal case in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Mil jøbeskyttelsesloven ). The proceedings in the corresponding case were finally determined by a High Court judgment of 21 September 1995.

Subsequent to a preliminary hearing held in the applicant’s case on 18 December 1995 it was decided to adjourn his case anew, this time awaiting a corresponding pending criminal case in which the defendant had alleged that the 1989 Act had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988. The proceedings in the corresponding case were finally determined in the autumn of 1996 when a High Court delivered its judgment.

The applicant’s trial commenced on 8 April 1997. Since a witness on the applicant’s behalf was prevented from appearing on that day, the trial continued and ended on 14 May 1997. By judgment of 28 May 1997 the City Court in Fjerritslev convicted the applicant and sentenced him to pay a fine of 68,000 Danish kroner (DKK). In addition a profit estimated to DKK 275,000 was confiscated.

On 9 June 1997 the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret ) before which he was granted permission to procure an expert witness, who during the preparation of the case was requested to reply in writing to specific questions formulated by counsel, and approved by the prosecutor. 

By judgment of 29 June 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 95,000 and the amount to be confiscated to DKK 384,000.

The applicant’s request of 7 July 1998 for leave to appeal against the High Court’s judgment to the Supreme Court ( Højesteret ) was granted by the Leave to Appeal Board ( Procesbevillings nævnet ) on 23 November 1998.

The case was brought before the Supreme Court on 15 January 1999, where it was joined with the second applicant ’s appeal (see below).

II

By 26 October 1993, the second applicant, as manager of two limited companies which each owned a freshwater fish farm, was charged with offences against the amended Act of 31 September 1994 on freshwater fish farms partly in conjunction with the former Act of 5 April 1989 ( bekendtgørelse nr. 900 jfr. tildels bekendtgørelse nr. 224 ), as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for the companies.

The case was brought before the City Court in Mariager ( retten i Mariager ) by the prosecution’s submission of an indictment of 8 March 1994, which was later extended by supplementary indictments.

In the period between September 1994 and October 1995 the case was adjourned awaiting the outcome of a corresponding pending criminal case, which was considered to be a “test-case”.

Thereafter, the scheduling of the applicant’s trial, originally set for 20 November 1995, was adjourned on counsel’s request as he wished to submit a written pleading. Counsel stated on 12 February 1996 that his pleading was approaching. On 21 March 1996 he was granted an extension of the time ‑ limit, and on 17 April 1996 the pleading was submitted.

Further pleadings were submitted and additional preliminary issues were dealt with, inter alia with regard to counsel’s request that the applicant’s case be joined with another corresponding pending case.

On 4 October 1996 counsel was granted an extension of the time-limit to submit his rejoinder within eight weeks.

A hearing was held on 24 February 1997 and the case was scheduled to commence on 8 September 1997 as counsel had stated that he was unable to appear before that date.

On 16 September 1997 the City Court in Mariager convicted the applicant and sentenced him to pay a fine of DKK 275,000. In addition profits estimated to DKK 900,000 and DKK 200,000, respectively, were confiscated in the companies.

On 23 September 1997 the applicant appealed against the judgment to the High Court of Western Denmark, before which the case was ready to be listed for trial on 27 November 1997. As counsel was unable to appear on the proposed dates in January, February and May 1998, the case was scheduled for trial on 27 August 1998. 

By judgment of 3 September 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 345,000 and the amounts to be confiscated to DKK 1,158,000 and DKK 240,000 respectively.

The applicant’s request of 11 September 1998 for leave to appeal against the High Court’s judgment to the Supreme Court was granted by the Leave to Appeal Board on 23 November 1998.

The case was brought before the Supreme Court on 15 January 1999, where it was joined with the first applicant ’s appeal. T he applicants jointly argued that the Act of 1989 had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988, and that accordingly they should be acquitted. Moreover, they requested that the Supreme Court referred the question of the legal consequences of the non-notification to the European Court of Justice pursuant to the former Article 177 of the EC Treaty.

As to the latter the Prosecutor General procured an opinion from the Ministry of Justice of 29 January 1999, finding no basis for a preliminary reference, an opinion he endorsed. On 4 February 1999 the Supreme Court requested counsel’s comment on this issue.

On 17 February 1999 the applicants requested that an additional counsel be assigned to plead on the EU-law issues of the case. This was refused by the Supreme Court on 24 February 1999. The following day, the applicants requested that a named attorney substitute their counsel as to the EU ‑ law issues. This request was granted on 18 April 1999 and the proceedings were adjourned for eight weeks pending the comments from the substituting counsel.

It appears that the substituting counsel three times was granted an extension of the time-limit to submit his comments, thus his first written pleading was submitted on 5 October 1999.

The Prosecutor General stated definitively on 3 November 1999 that he found no basis for referring the case to the Court of Justice for a preliminary ruling.

The exchange of pleadings on this question continued until 7 April 2000, as the substitute counsel three times requested that the Prosecutor General submit written replies to various questions put by counsel on the issue. Each time the replies were followed by a comprehensive pleading by the substitute counsel. 

On 22 August 2000 the Supreme Court decided not to refer the case to the Court of Justice for a preliminary ruling, as it found that there was no obligation to notify the European Commission of the specific section of the Act on freshwater fish farms of 5 April 1989, with which the applicants were charged, and that there was no reasonable doubt that the section in question was in accordance with European Community legislation.

By judgment of 16 February 2001 the Supreme Court upheld the High Court’s judgment in respect of the first applicant, but reduced the amount to be confiscated to DKK 240,000, and by judgment of the same date the Supreme Court upheld the High Court’s judgment in its entirety in respect of the second applicant.

B. Relevant domestic law

The Administration of Justice Act provides in as far as relevant:

Section 840, subsection 1

The High Court notifies the Regional Public Prosecutor of the scheduling of the trial, and informs [him or her] and the accused about assignment of counsel [if any]. The information to the accused thereon may be given through the Regional Public Prosecutor in connection with the serving of the summons.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the criminal charges against them were not determined within a reasonable time.

2. Relying on the same provision, the applicants complain that the proceedings were not fair in that: a) they were denied to have the case referred to the Court of Justice for a preliminary ruling; b) allegedly the Supreme Court’s decision of 22 August 2000 was not reasoned and did not deal with several important points made by the defence; c) the Supreme Court allowed the opinion from the Ministry of Justice to be submitted during the proceedings, which the applicants find constituted a wrongful interference by the Government in the criminal proceedings; and d) the authorities, allegedly, for years suppressed the fact that the Act of 1989 had not been notified and the applicants were therefore prevented from having their claim that the charges were based on illegal authority tried before two instances.

3. Finally, the applicants complain under Article 7 § 1 of the Convention, a) that they were denied to have the case referred to the Court of Justice for a preliminary ruling, and b) that they were convicted of an act, which did not constitute a criminal offence under valid national law at the time when it was committed (since the Act of 1989 had not been notified).

THE LAW

1. Complaining that the criminal charges against them were not determined within a reasonable time the applicants rely on Article 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 fair ...hearing within a reasonable time by [a] tribunal...”

The Government’s objection as to the exhaustion of domestic remedies.

The Government claim that the applicants have failed to exhaust efficient domestic remedies, which are available to them. The applicants did not claim before the domestic courts that the length of the proceedings exceeded a reasonable time. Nor did they request that the courts schedule the case for trial on the evidence available, which they pursuant to section 840 of the Administration of Justice Act could have done at any time during the proceedings. Consequently, the domestic courts were prevented from remedying the alleged violation by metering out the sentence accordingly and/or exempting the defendant from defraying legal costs, measures which the Government find constitute adequate redress if a violation has occurred. They refer to a judgment of 18 June 1997 and a judgment of 21 September 1998 (both published in the Weekly Law Journal ( Ugeskrift for Retsvæsen ) U 1997, p. 1292 Ø and U 1998, p.1759 Ø respectively, in which the High Court, having found a violation of Article 6 § 1 with respect of the reasonable time requirement, consequently suspended the sentences imposed.

The applicants admit that it does not emerge from the court records that they invoked Article 6 of the Convention during the domestic proceedings, but they find this irrelevant, since in any event in criminal trials the courts have an obligation ex officio to secure that the proceedings comply with the “reasonable time” requirement. Moreover, they recall that the requirement of exhaustion of national remedies must be interpreted flexibly and that the burden of proving the existence of an effective and sufficient remedy lies upon the State invoking the rule.

As to the question whether the applicants have exhausted domestic remedies, the Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see e.g. Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.).

The Court recalls that the burden of proving the existence of an effective and sufficient remedy lies upon the State invoking the rule (see among others Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, Dalia v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38 and Susini and others v. France (dec.), no. 43716/98, 8 October 2002).

Moreover, the Court reiterates that the scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VIII).

Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kudla v. Poland [GC], no. 30210/96, § 157 ECHR-XI).

Finally, remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred”. Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see the Kudla judgment cited above, §§ 158 and 159, and Mifsud v. France [GC], (dec.), no. 57220/00, 11 September 2002, § 17).

It remains for the Court to determine whether the means available to the applicants in Danish law for raising a complaint about the length of the criminal proceedings in their case would have been “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred.

The Court notes at the outset that the Government do not claim that Danish law contains remedies which have been specifically designed or developed to provide a remedy in respect of complaints of length of criminal court proceedings, whether preventative or compensatory in nature.

However, referring to section 840, subsection 1 of the Administration of Justice Act the Government submit that the applicants could have requested that the courts schedule the case for trial on the evidence available. In the view of the Government this remedy satisfies the requirement set out in Article 13 of the Convention in that such an action can prevent the alleged violation or its continuation.

The Government have not provided any domestic case-law to demonstrate that anyone has ever made such an application, let alone made any such application successfully. Thus, no domestic case-law is cited by the Government to show the possibility of such an action being preventative of further delay (see Kudla v. Poland, cited above, § 159 and Matthies ‑ Lenzen v. Luxembourg , no. 45165/99, (dec.), 14 June 2001).

Therefore, the Court cannot but limit itself to a literal understanding of the invoked section of the Administration of Justice Act. According to section 840, subsection 1 the High Court notifies the Regional Public Prosecutor of the scheduling of the trial.

In the opinion of the Court, such wording does not provide any lucidity as to speculation on the effectiveness of such an action in a case like the present one (see also Ohlen v. Denmark, (dec.), no. 63214/00, 6 March 2003).

It remains thus to be examined whether in the present case the applicants’ possibility of having their sentence mitigated or of being exempted from paying legal cost provided an effective remedy.

In this respect, the Court reiterates that an individual may be deprived of his status as a victim within the meaning of Article 34 of the Convention if the domestic courts acknowledge, at least in substance, a breach of Article 6 § 1 of the Convention, and consequently meter out a more lenient sentence or exempt the defendant from defraying legal costs (see inter alia Graaskov Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).

However, in the present case where none of the domestic courts has expressed any kind of acknowledgement that the proceedings before it exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention, the Court is not convinced that the possibility of metering out a more lenient sentence or exempting a defendant from defraying legal costs was a remedy available to the applicants, that was “effective” in practice as well as in law. In this connection, the Court also takes into account that a mitigation of a sentence in any event would be certain only at the very closing of the criminal proceedings, and that although being compensatory in nature, an exemption from defraying costs in some cases may be insignificant, e.g. if a defendant has been granted free legal aid.

In these circumstances, the Court does not consider that the Government have discharged the onus on them to show that an effective domestic remedy exists, which has acquired the requisite degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention.

Consequently, the Court considers that the Government’s objection must be rejected.

The alleged breach of Article 6 § 1 of the Convention.

As regards the alleged breach of Article 6 § 1 of the Convention it is undisputed that the proceedings as to the first applicant commenced on 20 October 1992, and as to the second applicant on 26 October 1993. The proceedings ended on 16 February 2001 when the Supreme Court delivered its judgment. Thus, the total length of the proceedings, which the Court must assess under Article 6 § 1, was eight years, three months and twenty ‑ seven days, and seven years, three months and twenty-two days, respectively.

The Government maintain that based on an overall assessment and in the light of the specific circumstances of the cases, the criminal charges against the applicants were determined within a reasonable time as prescribed by Article 6 of the Convention. They find that the cases were to some extent complex, notably due to the involvement of EU-law issues and the question whether the cases should be referred to the European Court of Justice for a preliminary ruling. Moreover, the Government find that the applicants to a considerable extent had been a contributory cause to the length of the proceedings. In this respect they point out that in the City Court procedure the first applicant’s counsel himself requested that the case be adjourned in order to await the two corresponding pending criminal trials, and that the second applicant’s counsel agreed to a similar adjournment. Also, after the case had been listed for trial the second applicant’s counsel was granted an adjournment of more than five months in order to submit his written pleading, and the final scheduling of the trial was thus set out of considerations for when counsel was able to appear. In addition, in the proceedings before the Supreme Court it took counsel more than eight months to submit his first comment on the question whether to refer the case to the European Court of Justice, and he caused unnecessary prolongation by continuously putting questions to the Prosecutor General. Finally, the Government maintain that it cannot give rise to criticism that the city courts decided to adjourn the criminal proceedings pending the outcome of the “test-cases” as these decisions were reasonably motivated.

The applicants contest that the proceedings were complex. The factual issues were not in dispute and only the question as to the legal authority of the Act involved legal issues of some complexity. The applicants maintain that they cannot be blamed for making use of remedies available under Danish law, and they point out the request to refer the case to the European Court of Justice for a preliminary ruling was of crucial relevance. In their view the Government alone are to blame for any delay caused by the applicants’ claim that the Act had no legal authority. In any event they find the duration of the proceedings before the Supreme Court excessive. In the applicants opinion, two other factors caused an unreasonable delay of the proceedings; the adjournment of their cases pending the outcome of corresponding cases, and the lack of resources in the Danish court system.

The Court considers, in the light of the criteria established by the case-law of the Court on the question of “reasonable time”, and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

2 a). Also, relying on Article 6 § 1 of the Convention, the applicants complain that they were denied to have the case referred to the Court of Justice for a preliminary ruling.

Firstly the Court recalls that its only function under Article 6 of the Convention is to examine cases in which it is alleged that the specific procedural guarantees laid down in this provision has been disregarded in the proceedings before the national courts, or that the proceedings considered as a whole have been conducted in such a manner as to not ensure a fair hearing to the applicant. As to the specific complaint the Court reiterates that an absolute right to have a case referred to the Court of Justice of the European Communities cannot be derived from the provisions of the Convention. Nevertheless, there may be certain circumstances in which such a refusal by a national court might infringe the principle of the fairness of judicial proceedings, as set forth in Article 6 § 1 of the Convention, particularly when it appears to be arbitrary (see inter alia Societe Divagsa v. Spain (dec.) no. 20631/92, Decisions and reports (D.R.) 74, p. 279, Moosbrugger v. Austria (dec.), no. 44861/98, 25 January 2000 and Canela Santiago v. Spain (dec.), no. 60350/00, 4 October 2001). In the present case the Supreme Court held that it was not necessary to refer the applicants’ cases to the Luxembourg Court because there had been no obligation to notify the European Commission of the specific Act on freshwater fish farms of 5 April 1989, with which the applicants were charged, and that there was no reasonable doubt that the section in question was in accordance with the European Community legislation. The Court finds no arbitrariness in the Supreme Court’s decision, or any other elements which could lead to the conclusion that the refusal to refer the case to the European Court of Justice infringed the applicants’ rights as guaranteed by Article 6 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 and must be rejected pursuant to Article 35 § 4.

b) As regards the complaint that the Supreme Court’s decision of 22 August 2000 was not reasoned and did not deal with several important points made by the defence, the Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. In the present case the Court has found no substantiation in the applicants’ allegation that the Supreme Court’s decision of 22 August 2000 was not reasoned or that the court failed to deal with important points made by the defence. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

c) and d).  As to these complaints the Court recalls that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. In the present case the Court finds that in the domestic proceedings the applicants failed to raise either in form or in substance the complaints that are made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Complaining a) that they were denied to have the case referred to the Court of Justice for a preliminary ruling, and b) that they were convicted of an act, which did not constitute a criminal offence under valid national law at the time when it was committed (since the Act of 1989 had not been notified) the applicants rely on Article 7 § 1 of the Convention which reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 

In the light of all the material in its possession, the Court finds no evidence that the applicants were convicted of an offence which did not constitute a criminal offence under national law at the time it was committed. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint relating to the length of the criminal proceedings;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President