FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46119/99 by Søren LAVRSEN against Denmark

The European Court of Human Rights (First Section) , sitting on 28 February 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr E. Palm , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 10 December 1998 and registered on 11 February 1999,

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 [PH1]

The applicant is a Danish national, born in 1942, living in Piraeus, Greece. He is represented before the Court by Mr Jakob Skaarup Arrevad, a lawyer practising in Copenhagen, Denmark. The respondent Government are represented by its Agent Mr Hans Klingenberg, the Ministry of Justice, and its Co-Agent, Mrs Nina Holst-Christensen, the Ministry of Justice.

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

By indictment of 5 September 1991 the applicant, at that time a practising lawyer, jointly with one of his clients, henceforth called MA, was charged with aggravated breach of trust alleged to have been committed in their roles as manager and/or chairman of the board of two companies, owned by MA over a short period between July and September 1989, during which period, they had let the companies purchase three industrial properties from a company controlled by MA at a price substantially above market value, the amount including an agency commission to MA exceeding 4.6 million Danish kroner (DKK), whereby the acquiring companies suffered or risked suffering a corresponding financial loss. The companies went bankrupt on 26 September 1989.

Moreover the applicant (and MA) was charged with fraud alleged to have been committed in the same period relating to the sale of two cars to a person henceforth called SP under the pretence that the cars were not in pawn.

The applicant and MA pleaded not guilty on both counts. As regards the second count they claimed that SP acted in bad faith. Several hearings were held in the City Court. During these proceedings SP and 8 other witnesses were heard, including 3 witnesses henceforth called MWK, KAT and IK.

The prosecution and the defence agreed not to hear 2 witnesses henceforth called THL and BA.

By judgment of 8 December 1992 the City Court of Ballerup ( Ballerup ret ) convicted the applicant (and MA). The applicant was sentenced to 2 years’ imprisonment and deprived of his right to practise law. From the judgment it appears that in order to convict the applicant (and MA) of aggravated breach of trust the court relied partly on the testimonies given by MWK and KAT concerning the contents and aim of some particular transactions these witnesses had with MA. As regards the charge of fraud it appears that the court relied partly on the testimonies given by SP and IK concerning the sale of the 2 cars.

The applicant (and MA) appealed against the judgment to the High Court of Eastern Denmark ( Østre Landsret ). During these proceedings 11 witnesses were heard, including SP, MWK, KAT and IK. As regards these witnesses the applicant expressed doubts during the proceedings in the High Court as to their credibility and therefore requested the prosecution to provide information about their criminal records, and that counsel for the defence be allowed to ask questions, in writing, about any pending charges which might have been brought against them concerning financial crime. In accordance with section 185 of the Administration of Justice Act ( Retsplejeloven ) this was complied with. MWK and IK confirmed that charges were brought against them. SP had previously been convicted of fraud and fraudulent preference.

On 21 December 1993 the High Court of Eastern Denmark upheld the judgment, but increased the sentence to 2 years and 6 months’ imprisonment. As regards the conviction for aggravated breach of trust the High Court referred to the reasoning given by the City Court. However, regarding the conviction for fraud the High Court relied, in addition to the reasoning given by the City Court, on testimony given by a witness who was not heard before the City Court.

After the trial in the High Court and due to press coverage, the applicant and counsel for the defence, accidentally became aware that within the police a so-called Information Centre in January 1990 had composed a note called “Anti-Social Trade” ( Samfundsskadelig Samhandel ), henceforth called the note, illustrating a new pattern of crime, and outlining 23 named individuals suspected of being interrelated in a network of financial crimes in Denmark, mainly concerning fraudulent trading in connection with deliberate bankruptcy intentions, breaches of laws concerning bookkeeping and accounting in companies, customs and excise fraud committed in connection with car sales, and finally fraud related to the raising of credit secured on real property. Among the persons mentioned in the note were the applicant, MA, SP, MWK, KAT, IK, THL and BA. The note contained information about judgments, charges, dropped charges, and mere suspicions against each person in regard to the above criminality, and a statement of their assumed mutual business connections. According to the note it was ascertained that this limited circle, among others, systematically exploited those loopholes and ambiguities in the Danish legislation, which sometimes arise in connection with new legislation and/or reorganisation of administrative procedures.

It appears from the introductory paragraphs of the note that the State Prosecutor for Financial Crime ( Statsadvokaten for Særlig Økonomisk Kriminalitet ) in 1989 decided that the Information Centre was to illustrate this new pattern of crime. The Information Centre was not supposed to go into depth as to bring forth evidence to prove that crimes had been committed, it was merely intended to outline the information available. If the result turned out as expected the purpose was to have a special group appointed from several different police units, as none could manage the task alone for resource reasons. This group was then to make concrete investigations with the targeted attempt to have proceedings instituted against the individuals in question.

The note was distributed to the Prosecutor General ( Rigsadvokaten ), the State Prosecutors (Statsadvokaterne ), the National Commissioner of Police ( Rigspolitichefen ) and the various police districts.

The prosecution did not submit the note, either to the applicant, or to the court during the criminal proceedings against the applicant

The applicant requested leave to appeal against the above judgment of the High Court to the Supreme Court ( Højesteret ). With a view to this counsel for the defence asked the prosecution, on 16 June 1994, to submit a copy of the above note. However, access to the note was refused by the State Prosecutor for Financial Crime on 22 July 1994, by the Prosecutor General on 2 November 1994 and by the Ministry of Justice ( Justitsministeriet ) on 12 April 1995.

The applicant then brought legal proceedings before the High Court of Eastern Denmark against the Ministry of Justice requesting that counsel for the defence be given access to the note.

Before the High Court as regard the nature of the note in general the Ministry of Justice referred to its reply of 30 May 1996 to a question from Parliament, according to which inter alia :

“The note has been drafted by the Information Centre...mainly for use in deliberations on how to rank the cases in order of priority, on combinations of resources and on prosecution competence...

On the basis of the note...concrete investigative steps were taken, and that was the primary purpose of the note...several of the individuals referred to in the note have been prosecuted and a number of them have been convicted.

The note contains a compilation of a series of particulars and suspicions... concerning 23 named individuals. The note was thus a good foundation, in an investigating context, for the police and the prosecutors to ensure better co-ordination of the investigation and the commencement of prosecution in cases regarding financial crime...”

The High Court of Eastern Denmark found for the Ministry on 7 November 1996. The applicant appealed against the judgment to the Supreme Court, before which the prosecutor in the applicant’s trial as a witness stated that he was given a copy of the note as general material like all other prosecutors working for the State Prosecutor for Financial Crime, but since the note did not form part of any specific case, he did not use it in connection with his work on the applicant’s case.

The Supreme Court found for the applicant on 11 June 1998, stating as follows:

“According to section 745, subsection 1 of the Administration of Justice Act the defence is entitled to have access to material produced by the police. As stated by the Prosecutor General in his notice No. 5 of 15 April 1992, to come within the scope of this provision, the material needs to have some connection with the relevant trial. However, it does not have to be of real importance to the investigation or to the possible continuation of the prosecution.

From the Minister of Justice’s answer of 30 May 1996 to Parliament it appears, among other things, that as a result of the “Anti-Social Trade” note and in accordance with the main aim of the note, specific measures and investigation were initiated.

The Ministry of Justice does not dispute that the applicant, the co-accused and some of the witnesses who were heard during the applicant’s trial figure in the note, including the mutual relationship among some of them. The investigations were initiated shortly after the note was composed, and both the persons in charge of the investigations and the prosecutor were in possession of the note.

In these circumstances, the Supreme Court considers that the note has such a connection with the applicant’s trial that the defence is entitled to have access to it cf. section 745, subsection 1 of the Administration of Justice Act.”

A copy of the note was hereafter sent to the applicant’s counsel on 23 June 1998. Subsequently, in support of his request for leave to appeal the applicant alleged that Article 6 § 1 of the Convention had been violated, notably as the principle of equality of arms had not been complied with. In this respect he referred to the content of the note, with which both the police and the prosecution were familiar, but which was not available to counsel for the defence during the criminal trial.

On 12 October 1998 the Ministry of Justice refused the applicant’s request for leave to appeal to the Supreme Court for which reason the High Court judgment of 21 December 1993 became final.

COMPLAINTS

The applicant complains under Article 6 § 3 (b) and Article 6 § 3 (d) in conjunction with Article 6 § 1 of the Convention that, as he did not have access to the note prepared by the police involving himself, his co-accused as well as several witnesses, he did not have a fair trial. In particular he maintains that consequently he was not provided with adequate facilities for the preparation of his defence and did not have the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. In the alternative he complains under Article 6 § 1 of the Convention that the principle of equality of arms has been infringed.

THE LAW

The applicant complains that he did not receive a fair trial, as he did not have access to the note. He invokes Article 6 §§ 1 and 3 (b) and 3 (d) of the Convention, which in as far as relevant reads:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

3. Everyone charged with a criminal offence has the following minimum rights:

(b) to have adequate time and facilities for the preparation of his defence;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The Government submit that the defence had access to all relevant exhibits and reports, including all interview reports concerning the witnesses and the particulars on the witnesses’ connection to the criminal proceedings, and thus had the opportunity to comment on the observations filed and the evidence produced by the prosecution. With regard to the note it was not used during the investigation against the applicant, nor did it form part of the criminal proceedings against him since it was of a general nature and since its relevant particulars already appeared from the concrete investigation material made available to the defence.

The Government point out that in the present case no common interest or co-operation existed between the witnesses and the prosecutor (cf. e.g. Rowe and Davis v. United Kingdom [GC], no. 28901/95, 16 February 2000, to be published ECHR 2000-II). As to the applicant’s submission that the connection between the witnesses apparent from the note results in doubts as to their credibility, the Government recall that the particulars stated in the note concern other cases and have no direct relation with the witness statements made in the concrete case, and that the defence had access to the transcripts of the criminal records concerning the four witnesses in question. Against this background the Government finds that the defence would not have been in a different position had the note been made available to it during the proceedings.

The applicant recalls that according to the note a number of the witnesses brought against him had a criminal background. Thus, he alleges that these had such a special interest in the outcome of his case that he may have fallen victim to a conspiracy.

He maintains that due to the non-disclosure of the note the defence had no opportunity to ask these witnesses whether they had been involved in antisocial trade, or to show the true picture of the relationship between these witnesses and the applicant.

As to the fact that during the trial the defence agreed with the prosecution not to hear the witnesses THL and BA, the applicant submits that this was a consequence of the lack of access to the note and thereby the inability to assess the importance which these witnesses might have.

In the applicant’s view the Government’s submission that the relevant parts of the note were available to the defence in documents otherwise produced by the prosecution during the trial, has little importance since it is not for the prosecution to decide which material is relevant to the defence.

The applicant is convinced that the note was intended to produce evidence. It was completed in January 1990, and the investigation against him was initiated shortly thereafter. Accordingly, in the applicant’s opinion the note influenced the police in their handling of the investigation.

The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1. In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b) and (d), since they amount to a complaint that the applicant did not receive a fair trial. It will therefore confine its examination to the question whether the proceedings in their entirety were fair. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see e.g. Rowe and Davis v. United Kingdom, cited above, §§ 59, 60).

Moreover, in criminal proceedings it is a matter for the defence to assess whether a submission deserves a reaction. It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence (see e.g. the Bulut v. Austria judgment of 22 June 1996, Reports of Judgments and Decisions 1996-II § 49).

In this context, importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (ibid., § 47).

In addition Article 6 § 1 requires, as indeed does Danish law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

Failure to disclose to the defence material evidence, which contains such particulars which could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore, a violation of the right guaranteed in Article 6, § 3 (b) of the Convention (see e.g. Jespers v. Belgium, application no. 8403/78, Commission Report of 14 December 1981, Decisions and Reports (DR) 27, p. 88, § 59 and C.G.P. v. the Netherlands, application no. 29835/96, dec. 15 January 1997).

In the present case, the prosecution did not make the note available to the defence, not on public interest grounds, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, but because the prosecution, unlike the Supreme Court, considered that the note did not have such a connection with the applicant’s trial that the defence was entitled to have access to it according to section 745, subsection 1 of the Administration of Justice Act.

Pursuant to the note’s introductory paragraphs its purpose was to illustrate a new pattern of crime. It was supposed to outline information available, but not go into depth as to bring forth evidence. The applicant, the co-accused, SP, MWK, KAT, IK, THL, BA, and 15 other individuals figure in the note, which enumerate information about judgments, charges, dropped charges, and mere suspicions against each person, and a statement of the mutual relationship among some of them. As stated in the Supreme Court judgment, the investigation against the applicant was initiated shortly after the note was composed, and both the persons in charge of the investigation and the prosecutor were in possession of the note.

During the criminal proceedings against the applicant, neither the defence nor the court was presented with or aware of the disputed note. Thus, in the Court’s view the note did not as such form part of the observations filed or the evidence adduced by the prosecution.

Nevertheless, it falls to the Court to assess whether the failure to disclose the note during the criminal proceedings placed the defence at a disadvantage vis-à-vis the prosecution to such extent that the proceedings were at variance with Article 6 of the Convention.

The Government submit that the relevant particulars in the note already appeared from the concrete investigation material made available to the defence. This is contested by the applicant, who maintains that due to the non-disclosure of the note the defence had no opportunity to ask the witnesses SP, MWK, KAT and IK whether they had been involved in antisocial trade, or to show the true picture of the relationship between these witnesses and the applicant, or to assess the importance of calling THL and BA as witnesses.

The Court notes that the applicant has not otherwise adduced any specific measures of defence to the Court, of which he would have availed himself, had the disputed note been submitted to him during his trial. Rather, it appears that the core of the applicant’s submission concerns his doubts as to the credibility of the witnesses SP, MWK, KAT and IK, whom the applicant alleges had such a special interest in the outcome of his case that he may have fallen victim to a conspiracy.

However, in the view of the Court having scrutinised the note and the material otherwise submitted to it, such an allegation remains unsubstantiated, and cannot be adduced from the content of the note itself.

Furthermore, the Court recalls that before the High Court the defence and the judges were provided with the criminal records and information about pending charges against SP, MWK, KAT and IK. Thus, the Court considers that the defence was given an adequate and proper opportunity to question and challenge the credibility of these witnesses before the High Court.

Finally, the Court recalls that the applicant was convicted in the City Court and the High Court on the basis on the evidence produced before these courts, which was not limited to the witnesses above.

In these circumstances, the limitation which derived from the non-disclosure of the note did not, in the Court’s opinion assume such importance as to constitute a decisive factor in the general appraisal of the trial or restrict the right of the defence to a degree which was irreconcilable with the Convention.

In addition, an examination of the conformity of the trial as a whole with the rules laid down in Article 6 of the Convention has not disclosed any appearances of a violation of this provision.

It follows that 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 Christos Rozakis              Deputy Registrar President

[PH1] Update the text as necessary. Add any further introductory information (e.g. representatives of parties at a hearing, third party). Where the parties’ description of the facts differ, their respective versions should be set out separately.