SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43519/98 by Kjeld ANDERSEN against Denmark

The European Court of Human Rights ( Second Section) , sitting on 7 December 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E . Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 April 1998 and registered on 21 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Danish citizen, born in 1943. He resides in Roskilde , Denmark. He is represented before the Court by Mr A. Boelskifte , a lawyer practising in Copenhagen. The respondent Government are represented by their Agent, Ms N. Holst -Christensen of the Ministry of Justice.

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

The applicant is an architect who specialised in designing business premises and fair stands. In this connection it appears that a certain business relationship emerged between the applicant and another company.

In November 1989 and March 1990 representatives of the above business partner reported the applicant to the police maintaining that he had committed fraud and/or embezzlement in that, allegedly, the applicant had received payment for certain business transactions although he was not authorised to do so. The applicant submits that he might have been questioned by the police sometime in November 1989. Following the police investigations in the above matter the case was transferred to the prosecutor for a decision on the issue of prosecution. By 31 July 1990 the prosecutor had finalised the legal assessment of the case and by indictment of the same date the applicant was charged with fraud in two instances related to transactions with his business partner involving amounts of approximately 250,000 Danish kroner (DKK).

In the meantime, during the year 1990, the Regional Customs and Tax Administration of Køge had carried out an investigation of the applicant’s business activities unconnected to the above fraud charges, in particular concerning the years 1986-1989. As a result of the investigation the tax authorities requested the police, on 7 December 1990, to institute criminal proceedings against the applicant due to alleged violations of the legislation on value-added tax (VAT). On 4 January 1991 the applicant was charged ( sigtet ) accordingly and interrogated by the police. Following the legal assessment of the above matter the prosecutor issued an indictment on 8 March 1991 by which the applicant was charged with violations of the VAT legislation involving amounts of approximately DKK 800,000.

Due to the above alleged VAT irregularities the tax authorities of the county of Roskilde requested the applicant, on 13 June 1991, to comment on his income tax declarations for the years 1987-1989. Subsequently, on 25 September 1991, the tax authorities informed the application that they had reassessed his taxable income for the years in question and that the material would be forwarded to the competent authorities for further assessment.

In the meantime, on 3 September 1991, the City Court of Køge ( retten i Køge ) held a preliminary court session on the basis of the indictments of 31 July 1990 and 8 March 1991 concerning fraud allegedly committed against the applicant’s former business partner and tax authorities’ allegations of the violations of the VAT legislation. It appears from the documents submitted that the parties agreed to adjourn the case pending the outcome of the proceedings concerning the income tax declarations.

In these proceedings a meeting was held on 21 November 1991 between the applicant, assisted by counsel, and the tax authorities. Following further investigations the Customs and Tax Administration of Køge decided on 6 July 1992 to request the police to institute criminal proceedings against the applicant for aggravated tax evasion. On 20 August 1992 the applicant was charged accordingly and interrogated by the police who subsequently interviewed a number of witnesses. The police concluded their investigation on 7 December 1992.

Following the legal assessment of the matter the prosecutor issued an indictment on 23 February 1993 by which the applicant was charged with aggravated tax evasion contrary to section 289 of the Penal Code ( straffeloven ) and section 13, subsection 1, of the Tax Control Act ( skattekontrolloven ) involving approximately DKK 740,000. The case was thereafter sent to the City Court of Køge with a request for having the dates for the trial fixed.

On 30 November 1993 the trial commenced in the City Court. It comprised the indictment of 31 July 1990 concerning fraud, the indictment of 8 March 1991 concerning violations of the VAT legislation as well as the indictment of 23 February 1993 concerning aggravated tax evasion. During the proceedings the applicant, assisted by counsel, was heard. In addition the court heard seven witnesses and examined documentary evidence. By judgment of 15 December 1993, following an evaluation of the available evidence, the City Court acquitted the applicant of the fraud charges set out in the indictment of 31 July 1990, but found him guilty of the charges concerning VAT and aggravated tax evasion. He was sentenced to eight months’ imprisonment and a fine in the amount of DKK 1,500,000.

On 24 December 1993 the applicant appealed against the judgment of the City Court to the High Court of Eastern Denmark ( Østre Landsret ) claiming acquittal or, in the alternative, mitigation, while the prosecutor cross ‑ appealed claiming conviction in accordance with the findings of the City Court and a more severe sentence. It followed from this that the fraud charges on which the applicant had been acquitted would no longer constitute part of the case.

For the purpose of the appeal proceedings, the prosecutor prepared an extract containing the files of the criminal proceedings, and the extract was forwarded to the High Court on 17 February 1994.

In June 1994 the applicant changed defence counsel to his present representative who was then appointed by the High Court which furthermore scheduled the trial to commence on 18 October 1994. The trial was subsequently rescheduled for 19 December 1994.

On 4 November and 2 December 1994 the applicant, through his counsel, informed the prosecution and the tax authorities that, contrary to what was the case in the proceedings in the City Court, he would contest during the appeal the accounting material provided by the tax authorities. Thus, he requested the prosecutor to make the material available to him for further scrutiny.

On 14 December 1994 the applicant forwarded a memorandum which concluded that the tax authorities’ calculations were fundamentally incorrect. In view of this course of events the prosecution requested, and was granted, an adjournment of the trial until 28 February 1995.

Subsequently, an exchange of opinions commenced between the parties as to the calculations and tax assessments made.

As foreseen the trial commenced on 28 February 1995. From the court records it appears, however, that upon advice from the High Court the prosecutor and the defence counsel requested an adjournment of the case pending a further review of the documents of the case in co-operation with a representative of the Customs and Tax Administration. The aim was for the objections of the defence to be given such form, possibly through the use of impartial expert assistance, that the High Court had a real possibility of deciding on the applicant’s objections.

The case was then scheduled to commence on 28 August 1995.

During preliminary court hearings on 15 May and 16 June 1995 the High Court was kept informed of the further developments. As on the latter date the court noted that a clarification was not yet available it adjourned the trial again but called for a preliminary court hearing on 28 August 1995. The High Court stressed that if the case was not ready for trial by that date it would consider rejecting further objections from the defence.

During the preliminary court hearing on 28 August 1995 the objections of the defence were presented. A dispute, however, arose as to the questions to be put to an accountant who, as an expert, should submit an opinion. The High Court fixed a new preliminary court hearing for 22 September 1995. On that date the court ordered the applicant to present certain clarifications by 30 October. A new meeting was then fixed for 24 November 1995 when the questions to the expert were agreed upon. The prosecution pointed out that it reserved its right to request the commencement of the trial if counsel for the defence did not finalise the claims and objections immediately after the submission of the expert opinion. The case was then adjourned pending the submission of the said opinion.

This opinion was submitted on 15 March 1996.

On 14 October 1996 the prosecution requested the High Court to fix the dates for the final hearing of the case and pointed out that counsel for the defence had not yet submitted his comments on the expert opinion.

These comments were submitted on 2 December 1996.

During a preliminary court hearing on 3 December 1996 the prosecutor and defence agreed that the case was now ready for trial and a continuation of the hearing was fixed for 20, 21 and 23 May 1997. Disagreements concerning the hearing of witnesses and other procedural questions were decided in preliminary court sessions on 21 February and 13 March 1997. The final hearing took place as scheduled.  The applicant and seven witnesses, including the expert, were heard. By judgment of 23 May 1997 the High Court upheld the conviction, but reduced the sentence to 6 months’ imprisonment and a fine in the amount of DKK 1,400,000.

On 13 October 1997 the Board of Leave to Appeal ( Procesbevillingsnævnet ) rejected the applicant’s request for leave to appeal against the High Court’s judgment to the Supreme Court ( Højesteret ).

COMPLAINTS

The applicant complains under Article 6§ 1 of the Convention that the criminal case against him concerning the indictments of 8 March 1991 and 23 February 1993 were not determined within a reasonable time.

THE LAW

Complaining of the length of the criminal proceedings on the indictments of 8 March 1991 and 23 February 1993 the applicant invokes Article 6 § 1 which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time...”

As regards the period to be considered the applicant maintains that it commenced in late 1989 when the initial investigation, in his view, was made by the tax authorities since this investigation, he claims, is similar to an initial investigation performed by the police and therefore corresponds with the definition in penal procedures where the relevant period commences when the person in question becomes aware of a police investigation against him.

The Government contend that the period relevant for the assessment of the issue under Article 6 § 1 began on 7 December 1990, when the Regional Customs and Tax Administration filed a written request for prosecution of the applicant for violations of the legislation on value-added tax.

The Court recalls that according to its case-law the period to be taken into consideration under Article 6 § 1 of the Convention must be determined autonomously. It begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecuting authorities as a result of a suspicion against him (cf. e.g. the Hozee v. the Netherlands judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1100, § 43 with further references).

The Court recalls furthermore that the charges concerning fraud against the applicant as set out in the indictment of 31 July 1990 of which the applicant was finally acquitted already by judgment of the City Court of 15 December 1993, are not part of the applicant’s complaint under Article 6 § 1 of the Convention.

Having regard to this the Court recalls that the tax authorities commenced an examination of the applicant’s affairs sometime in 1989 or in 1990. It may be that the applicant was affected thereby. However, even assuming that the tax authorities’ preliminary investigations may have led to implications for the applicant the Court considers that he cannot thereby be considered as having been “charged” within the meaning of Article 6 § 1 of the Convention.

The tax authorities transferred the case to the police on 7 December 1990 and the Court finds that the applicant’s first direct involvement in the police investigation commenced on 4 January 1991 when he was interrogated about the matter. He was also presented with the criminal charge against him on that date. In these circumstances the Court considers that, as from 4 January 1991, the applicant may be considered as having been affected by the criminal investigation. Consequently, from that date the applicant was “charged” for the purposes of Article 6 § 1 of the Convention and the “time” referred to in this provision began to run from that moment.

The Court considers that the proceedings terminated on 13 October 1997 when the Board of Leave to Appeal rejected the applicant’s request for leave to appeal to the Supreme Court. Thus, the total length of the proceedings which the Court must assess under Article 6 § 1 of the Convention was 6 years, 9 months and 9 days.

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, ECHR 1999-II, § 67).

As regards the complexity the Government point out that due to the offences involved it was necessary, as part of the investigation, to peruse accounting vouchers concerning events which had taken place years ago, and it was necessary to procure an opinion from a state-authorised public accountant in order to decide on the objections made by the defence. The Government acknowledge, however, that the complexity of the case cannot exclusively explain the total length of the proceedings. The applicant agrees that the case was of a certain complexity and that it had, to some extent, a bearing on the length of the proceedings.

In these circumstances the Court concludes that it is not in dispute that, for the purposes of Article 6 of the Convention, the length of the proceedings was to some extent influenced by the complexity of the case.

As regards the applicant’s conduct the Government maintain that the facts of the case disclose that this was to a considerable extent a contributory cause for the length of the proceedings. In particular the applicant’s conduct in the appeal proceedings, so the Government submit, caused unnecessary delays. The applicant disputes this maintaining that he should not be blamed for using the possibilities open to him to defend his rights.

The Court notes that the applicant does not appear to have been very much involved in the procedural disputes during the proceedings concerned. However, it follows from case-law that he is nevertheless to he held responsible for the possible delays caused by his representative (e.g. the Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 12, § 28).

The Court notes first that the applicant never objected to any adjournment or otherwise drew the national courts’ attention to the fact that, in his view, the length of the proceedings was unreasonable. The applicant changed counsel following the judgment of the City Court and thereafter, contrary to his defence in the City Court, contested the material provided by the tax authorities which, in the Court’s view caused the adjournment of the trial in the High Court fixed for 19 December 1994. Furthermore, the Court notes that the applicant failed, for a considerable period of time, to present his objections in such a way that the High Court could take them into account, and it took him 9 months to submit his comments on the expert opinion of 15 March 1996.

In these circumstances the Court finds that the applicant’s conduct prolonged the proceedings and to some extent also caused unnecessary delays.

As regards the conduct of the authorities and the courts the Government maintain that no periods of inactivity during the criminal proceedings could form the basis of criticism against them. The applicant disputes this. He submits in particular that the total length of the proceedings is prima facie unreasonable and that this also applies to the period the case was pending before the City Court.

The Court recalls that the interrogation of the applicant commenced on 4 January 1991 and that an indictment was served on 8 March 1991 following which the case was transferred to the City Court which held a preliminary hearing on 3 September 1991. It was agreed to adjourn the case pending the outcome of the new charges for tax evasion. This was concluded in the spring of 1993 following which the trial was fixed to commence on 30 November 1993. Judgment was pronounced on 15 December 1993. Having regard to this the Court does not consider that the facts of the case disclose that the investigating authorities, the prosecution or the City Court acted inappropriately or otherwise failed to conclude the case with due diligence as from the moment of the applicant’s involvement.

As regards the proceedings before the High Court the Court recalls that the prosecuting authority and the court more than once drew the applicant’s attention to the need to conclude the case quickly and the Court notes that the High Court with regular intervals held court sessions in order to secure a proper continuation of the proceedings. The Court finds that it has not been established that unacceptable periods of inactivity could be attributed to the High Court and its conduct does not, therefore, bring the proceedings at variance with Article 6 § 1 of the Convention. The same applies to the period during which the question of leave to appeal was determined.

Therefore, making an overall assessment of the conduct of all concerned as well as the length of the proceedings the latter did not, in the Court’s view, go beyond what may be considered reasonable in the particular circumstances of the case. The applicant’s complaint does not therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.

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.

Erik Fribergh Christos Rozakis Registrar President