SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44265/98 by K.H.S. against Denmark

The European Court of Human Rights (Second Section) , sitting on 9 November 2000 as a Chamber composed of

Mr A.B. Baka , President , Mr B. Conforti , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , 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 29 September 1998 and registered by the Court on 10 November 1998,

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 of Lebanese origin, born in 1936. He resides at Frederiksberg , Denmark. Before the Court he is represented by Lars Henriksen , a lawyer practising in Ã…rhus . The respondent Government are represented by Mrs Nina Holst ‑ Christensen of the Ministry of Justice as Agent.

A. The circumstances of the case

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

The applicant is the majority shareholder of two limited companies in Denmark, both trading with various forms of clothing. In the beginning of 1990 the police investigated certain economic transactions between companies in Denmark and Lebanon and it appeared that the applicant was involved in those transactions. As the applicant was suspected of having violated i.a . the tax legislation, it was decided to carry out a search. The search took place on 1 March 1990 in the premises of one of the companies and the applicant’s home. After the search the applicant  was questioned by the police and provisionally charged ( sigtet ) with aggravated tax evasion under Section 289 of the Penal Code ( straffeloven ) and Section 13, subsection 1, of the Tax Control Act ( skattekontrolloven ) in an amount exceeding one million Danish kroner (DKK).

In the following months the police carried out an investigation of the applicant’s economic transactions and questioned a number of persons. At the same time the tax authorities carried out an investigation of the tax assessments for the last three fiscal years concerning the applicant and one of his companies. An extensive auditor’s report was issued on 14 November 1991 by Frederiksberg Tax Authority ( Frederiksberg Skattedirektorat ) . On 16 December 1991 a meeting was held between the Tax Authority and the applicant assisted by his lawyer and accountant. The applicant largely disagreed with the findings in the report. Decisions on tax increases concerning the applicant personally and the company were made in accordance with the report, and in January 1992 they appealed to the Taxation Appeals Boards ( skatteankenævnet ) of respectively Frederiksberg and Copenhagen.

On 20 January 1993 the Frederiksberg Tax Authority requested the National Customs and Tax Agency (Told- og Skattestyrelsen ) to have criminal charges brought against the applicant for aggravated tax evasion.

On 31 March 1993 the Frederiksberg Taxation Appeals Board informed the applicant that the consideration of his appeal would await the outcome of the appeal made by the company to the Copenhagen Taxation Appeals Board.

In a letter of 2 February 1994 the Copenhagen Police, Prosecution Division B, ( Københavns Politi , Politiadvokatur B) informed the National Customs and Tax Agency that further investigations concerning the criminal charge against the applicant would await the decision of the Copenhagen Taxation Appeals Board. On 9 May 1994 the Agency requested the police to advance the criminal charge against the applicant as the tax assessment to a large extent depended on questions of evidence. On 30 May 1994 the police insisted, however, that the tax appeal case be decided first. The applicant was informed of this decision on 6 June 1994.

On 17 February 1995 the Copenhagen Taxation Appeals Board decided the appeal made by the applicant’s company. The Board found that during three fiscal years the company had evaded 2,208,587 DKK. The Board considered that the outcome of the case to a large extent depended on questions of evidence.

On 16 May 1995 the company appealed against the decision to the National Taxation Board ( Landsskatteretten ).

On 14 November 1995 the Frederiksberg Taxation Appeals Board informed the applicant that the consideration of his appeal would await the outcome of the company’s appeal to the National Taxation Board, but that he was entitled to bring the complaint about the tax increases concerning him before the National Taxation Board without awaiting the decision of the Appeals Board. The applicant apparently did not make use of this possibility.

In letters of 11 May 1998 to the Copenhagen Police and the National Customs and Tax Agency the applicant’s present lawyer complained about the length of the criminal proceedings against the applicant and requested that they be speeded up and the case pending before the National Taxation Board be suspended awaiting the outcome of the criminal charge. The request was, however, rejected by the authorities. A similar request in a letter of 4 June 1998 to the National Taxation Board was likewise rejected.

On 22 September 1998 the National Taxation Board upheld the decision of 17 February 1995 by the Copenhagen Taxation Appeals Board. At that time the applicant’s complaint against his personal tax increase was still pending and the criminal charge against him was still under investigation by the police.

On 14 June 1999 the applicant was informed that the criminal charges against him were dropped. The reason therefor was that a continuation of the case appeared to involve difficulties, costs or processing time which would not be proportionate to the importance of the case and the sentence which could be imposed in case of conviction.

On 26 November 1999 the applicant submitted a request for damages pursuant to chapter 93a of the Administration of Justice Act ( retsplejeloven ) to the District Public Prosecutor ( Statsadvokaten ). He referred, inter alia , to the length of the proceedings and to Article 6 § 1 of the Convention. On 8 February 2000 the District Public Prosecutor rejected the claim as it had been submitted out of time.

On 16 February 2000 the applicant appealed against this decision to the Prosecutor General ( Rigsadvokaten ) referring to Section 1018 a of the Administration of Justice Act and maintaining that the delays in submitting his claims were excusable. On 7 April 2000 the Prosecutor General agreed with the applicant and referred the case back to the District Public Prosecutor for a determination on its merits. The case is at present pending there.

B. Relevant domestic law

Section 1018 a § 1, first sentence, of the Administration of Justice Act provides that any person who has been arrested or remanded in custody as part of criminal prosecution is entitled to damages for the tort so inflicted if the charge is withdrawn or the accused is acquitted except where the acquittal is due to the fact that the person was not accountable for his/her actions.

Under the same rules as stated in section 1018 a, damages may be awarded to a provisionally charged ( sigtet ) person who has been subjected to other criminal procedural interventions as part of the criminal prosecution, cf. section 1018 b of the Administration of Justice Act.

The District Public Prosecutor decides claims for damages pursuant to sections 1018 a to d of the Administration of Justice Act, cf. section 1018 e § 1, first sentence, of the Act.

Claims from a person who has been provisionally charged must be made within two months of notice to the person so charged that the charge has been withdrawn or of pronouncement of a final judgment, cf. section 1018 e § 1, third sentence, of the Administration of Justice Act.

Where the claim is made after expiry of the deadline referred to in section 1018 e § 1, the claim can be considered provided that it is found excusable for the person to exceed the deadline, cf. section 1018 e § 2 of the Administration of Justice Act.

The Prosecutor General considers appeals against decisions made by the District Public Prosecutors concerning claims for damages, cf. section 1018 e § 3, first sentence.

Where the claim for damages is dismissed, the claimant may demand the claim brought before the courts, cf. section 1018 f of the Administration of Justice Act.

Claims for damages raised on the basis of the general rules on damages under Danish law by the person charged or convicted, or by others subject to criminal prosecution, are considered, upon request, in accordance with the rules in chapter 93 a, cf. section 1018 h of the Administration of Justice Act.

COMPLAINTS

The applicant complains, under Article 6 § 1 of the Convention, that the criminal charge against him was not determined within a reasonable time.

THE LAW

The applicant invokes Article 6 § 1 of the Convention complaining that the reasonable time requirement was not fulfilled when the criminal charge against him was determined.

Article 6 § 1 of the Convention reads as far as relevant as follows:

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

The Government maintain that the applicant has failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention since he has the possibility, under Danish law, to obtain redress for the alleged violation of the Convention by instituting proceedings under Chapter 93a of the Administration of Justice Act.

The applicant maintains that the possibility open to him under Chapter 93a of the Administration of Justice Act is not an effective remedy. He points out that the remedy is not available as long as the domestic proceedings are actually pending. Furthermore, he maintains that the possibility does not exist to obtain compensation for the alleged excessive length of the proceedings or for being provisionally charged as such. Finally, he maintains that the time it takes to pursue the remedy makes it ineffective.

The Court recalls that the opportunity of preventing or putting right the violations alleged against them is in principle intended to be afforded to Contracting States by the rule of exhaustion of domestic remedies (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36). When the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention, to duplicate the domestic process with proceedings before the Strasbourg institutions would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66).

In the present case the Court observes that at the time when the application was introduced no issue arose as to the exhaustion of the domestic remedy advanced by the Government since the possibility to institute such proceedings did not, and does not in such a situation, exist under national law. In this respect the Court therefore agrees with the applicant that the possibility of obtaining damages under chapter 93a of the Administration of Justice Act was not available to him while the domestic proceedings were pending.

However, once the charges against the applicant were dropped on 14 June 1999 the remedy designed to provide for compensation in respect of the procedural steps taken in connection with the criminal charge against the applicant became available to him. Having regard to the subsidiary character of the machinery of protection established by the Convention (cf. above) the Court finds no reason to disregard this possibility open to the applicant. The Court recalls furthermore that, inter alia with reference to the length of the proceedings and Article 6 of the Convention which is incorporated into Danish law, the applicant has made use of the remedy and the Prosecutor General has decided that the applicant’s claims must be considered on their merits. Since these proceedings are still pending and may, in the Court’s view, result in compensation being awarded to the applicant due to the alleged excessive length of the proceedings, it finds that the applicant’s complaint is premature.

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 András Baka Registrar President