SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45485/99 by Ali LANEWALA against Denmark

The European Court of Human Rights (Second Section) , sitting on 19 October 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach ,

Mr E. Levits , Mr A. Kovler , judges , [Note1]

and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 February 1998 and registered by the Court on 19 January 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Canadian national, living in Greve , Denmark.  Before the Court the applicant is represented by Mr Henrik Karl Nielsen, a lawyer practising in Copenhagen.

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

The applicant runs a small taxi business.  At the relevant time he owned 3 vehicles and had 6 drivers employed.  On 19 April 1993 one of the employed drivers was stopped by the police as the taxi’s rear tyres did not meet certain requirements.

For this offence the applicant, as owner of the taxi, was charged on 29 April 1993 with a violation of section 67 § 2 of the Danish Traffic Act ( færdselsloven ).

An indictment of 31 October 1994 was forwarded to the City Court of Roskilde ( retten i Roskilde ) which on 16 January 1995 found the applicant guilty of the charges brought against him and sentenced him to pay a fine of 350 DDK.

The judgment was appealed against to the High Court of Eastern Denmark ( Østre Landsret ).  Before the High Court the applicant argued, inter alia , that section 67 § 2 of the Danish Traffic Act was a rule imposing strict criminal liability which was incompatible with EU regulations concerning free movement as well as Denmark’s obligation under Articles 6 § 2 of the Convention.

Three hearings were subsequently held in the High Court.  At the first hearing on 25 March 1996 the case was adjourned in order to clarify certain facts.  At the second hearing on 30 April 1997 counsel for the defence distributed a collection of legal documents to which he wanted to refer in his closing arguments.  Consequently the court adjourned the case once more.  A final hearing was held on 29 August 1997.

By judgment of 5 September 1997 the High Court upheld the Roskilde City Court judgment.

The applicant did not apply for leave to appeal to the Supreme Court ( Højesteret ) .

COMPLAINTS

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

2. The applicant further complains, under Article 6 § 1 that the trial court was not independent and impartial, and that the judgment in the High Court lacked reasoning.  In addition he complains, under Article 6 § 2, that section 67 § 2 in the Danish Traffic Act violated his right to be presumed innocent until proven guilty.  Finally, under Article 2 of Protocol No. 4, the applicant complains that the judgment passed by the High Court of Eastern Denmark implies restrictions on his right to freedom of movement.

THE LAW

1. The applicant complains of the length of the criminal proceedings  In this respect he invokes Article 6 § 1 of the Convention and points out that his case was pending for more than 4 years.  He argues that this was unreasonable considering the subject-matter of the case.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains, under Article 6 of the Convention, that he did not have a fair hearing before an independent and impartial tribunal, that the judgment lacked reasoning and that section 67 § 2 of the Danish Traffic Act provides for strict liability, violating his right to be presumed innocent.  The applicant also maintains that his right to freedom of movement under Article 2 of Protocol No. 4 has been violated.

The Court recalls that Article 35 § 1 of the Convention provides that the Court may deal with the matter only after all domestic remedies have been exhausted, according to the generally recognised rules of international law.  According to established case-law a request for leave to appeal to the highest court of appeal, in this case the Supreme Court, is a remedy that normally must be sought before the Court may deal with the matter (see e.g. application no. 41250/98, decision of 21 October 1998, DR 94-A, p.163).

In the present case the applicant failed to apply for leave to appeal to the Supreme Court and has, therefore, not exhausted the remedies available to him under Danish law.  Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint relating to the length of proceedings.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)