THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35772/97 by Terje THUNES against Norway

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

Mr J.-P. Costa, President , Mr L. Loucaides, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 November 1996 and registered on 25 April 1997,

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 Norwegian citizen, born in 1953 and resident at Fyllingsdalen .  Before the Court he is represented by Mr Nils E. Tangedal , a lawyer practising in Bergen.  The respondent Government are represented by Mr Frode Elgesem , Attorney, Office of the Attorney General (Civil Matters), as Agent.

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

On 9 December 1992 the applicant and W were arrested on suspicion of having handled 5.5 tonnes of salmon stolen by J. (on 7 December).  On 10 December 1992 the police searched the premises of the company owned by the applicant and W. and detained them on remand.  They both confessed to the offence on 21 and 22 December 1992 respectively.  The applicant also confessed to having been in possession of narcotic tablets.  Both suspects were then released.

When the applicant was later convicted, it was established that he had supplied the narcotics to J.  The latter had requested the drugs to calm him down before committing the theft which the applicant had instigated and planned.  The applicant did not appeal against this part of the City Court’s judgment.

On 24 August 1993 J. was convicted of the theft committed on 7 December 1992.

In the meantime, on 8 January and 17 February 1993, the police interrogated the applicant as a suspect with respect to certain offences related, inter alia , to the book-keeping of his and W.’s company.  The applicant confessed to these offences on 8 January 1993.  W. had made a confession earlier on 17 December 1992.  In May and June 1993 the police heard five further persons and obtained additional material from the Hordaland Tax Authority ( fylkesskattekontoret ).

On 15 July 1993 the police interrogated the applicant as a suspect in relation to an illegal sale of alcoholic beverages carried out by H.  On being further interrogated on 20 October 1993, the applicant also confessed to this offence.  W. was apparently suspected of a different transaction concerning alcoholic beverages and it appears that he also confessed.

H. was convicted of the illegal sale of alcoholic beverages committed at the end of 1994 or at the beginning of 1995.

On 3 May 1995 the Bergen Police Department sent the case-files of the applicant and W. to the Hordaland Prosecution Authority with an apology for the fact that no action had been taken for about a year due to a backlog of pending investigations and the priority given to other cases.  The Public Prosecutor replied on 19 May 1995 that the delay in question was unacceptable.

On 29 May 1995 the applicant and W. were formally charged and summoned to appear before the Bergen Court of Examination and Summary Jurisdiction ( forhørsrett ).  After a hearing on 16 August 1995, the latter concluded that it did not have jurisdiction to determine the charges since the applicant’s confession had not been without reservation.  Under the particular procedure applying to summary proceedings before this court, an unreserved confession was a prerequisite for its jurisdiction.

On 5 September 1995 the applicant and W. were summoned to appear before the Bergen City Court ( byrett ) which heard the case from 12 to14 December 1995.  The applicant pleaded guilty to the charges except for those related to the evasion of value added tax (VAT) and book keeping. By judgment of 21 December 1995, the City Court acquitted the defendants of the charge concerning negligent book-keeping but convicted them of having handled stolen goods, of having been in possession of narcotic tablets, of having made use of and sold the alcoholic beverages illegally sold to them, and of having attempted to avoid paying VAT on their company's transactions.

The City Court rejected the defendants’ argument that Article 6 § 1 of the Convention had been violated on account of the length of the proceedings.  It observed that the period to be taken into consideration, which started with the defendants’ arrest in December 1992 and ended with the judgment in the instant case, amounted to 3 years.  Under any circumstances, the delay was too short to run counter to this provision.  It was therefore not necessary to consider further the period of inactivity in question.  However, in sentencing, the court held that considerable weight (“ vesentlig vekt ”) must be attached to the fact that the case had become old and that the accused could not be blamed for this.  The time element must - the court reasoned - have caused prejudice to the defendants and the imposition of a sentence so long after the commission of the crime would be particularly burdensome, given their work and/or social situation.  The City Court sentenced the applicant to 7 months’ imprisonment, of which 3 months were suspended with 2 years’ probation.  (W. was sentenced to 5 months’ imprisonment, of which 3 months were suspended with 2 years’ probation.)

Both the prosecution and the defence appealed to the Gulating High Court ( lagmannsrett ).  The applicant appealed against the conviction on the VAT offence, invoking an error of law, and against the sentence, pleading that he was not guilty as described in the indictment.  On 25 September 1996, after a hearing, the High Court upheld the earlier conviction, having found aggravated circumstances relating to the VAT conviction.  The High Court rejected the defence’s allegation of a violation of Article 6 of the Convention, subscribing to the City Court’s reasoning and conclusions, and referring to the Supreme Court’s case-law, notably the 1996 decision mentioned three paragraphs below.  The High Court, whilst recalling the aggravated nature of the VAT conviction, decided nevertheless, in view of the time element, not to increase the sentences imposed by the City Court.

The applicant sought leave to appeal to the Supreme Court ( Høyesterett ).

On 9 January 1997 the Appeals Selection Committee of the Supreme Court ( kjæremålsutvalg ) refused the applicant leave to appeal against the sentence imposed.  As regards the alleged violation of Article 6 of the Convention, the Committee noted that the High Court had taken the length of the proceedings into account in sentencing.

In a decision of 8 February 1996 concerning, inter alia , the issue of sentencing in another case, the Supreme Court rejected a claim by a convicted appellant that the requirement of an effective remedy under Article 13 of the Convention had not been met where the duration of the proceedings had been taken into account in sentencing.  It did not accept his view that Article 13 required the court to decide whether the Convention had been violated.  In the view of the Supreme Court, it would be sufficient if it appeared from the reasoning that the convicted person’s submissions regarding the length of proceedings had been considered and had been taken into account in sentencing.  The Norwegian rules on sentencing were so flexible that it would always be possible to have due regard to delays in the proceedings.  Even for the most serious offence, it was possible to impose a suspended sentence or conditionally to postpone the issue of sentencing.  In sentencing it was also possible to have regard to delays which were not serious enough to violate Article 6 § 1 of the Convention.  The distinction between relatively modest and very serious delays could not be defined precisely.  For sentencing it was not important where exactly the limit was drawn.  Normally, the matter would be considered as a whole on the basis of a variety of factors.  Opinions would differ as to where to draw the limit.  It was therefore of little interest, and even superfluous, to attempt to draw such limits when it did not affect the outcome.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time.

THE LAW

The applicant complains that the criminal proceedings against him were not concluded within a reasonable time as required by Article 6 § 1 of the Convention, the relevant part of which read:

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

The applicant maintained that, since he had expressly and unconditionally confessed to all the charges against him, the police and the prosecuting authorities were under a duty to act expeditiously.  One of the VAT charges brought against him before the Court of Examination and Summary Jurisdiction had differed from that to which he had confessed and should never have been brought.  The fact that a speedy adjudication by way of a summary procedure before this court proved impossible could not be attributed to him. The case-file amounted to less than one ring binder; the documentary evidence comprised fewer than one hundred pages; only two witnesses were heard and the case itself did not concern many people.  It could hardly be deemed complex.  Nevertheless, the domestic courts failed to take into account the excessive length of the proceedings.  The City Court had expressly held, which the High Court accepted, that the length did not constitute a violation of Article 6 § 1 of the Convention.  Any mitigation made in sentencing was on the ground that the case had “become old”, not because of inactivity on the part of the police.  None of the national rulings in question afforded the applicant redress for the excessive duration of the proceedings.  The Government were incorrect in stating that the national courts had attached substantial weight to the excessive duration of the proceedings.

The Government contested the allegation that the length of the proceedings had been unreasonable in the instant case.  In particular, they argued, the national courts had already taken the duration into account in connection with sentencing.  The case had been complicated and had involved a number of persons.  Although the police could be criticised for inactivity during approximately one year prior to the transmission of the file to the prosecution in May 1995, this could in part be explained by a desire for co-ordination.  However, the delay was not excessive and was in any event only the result of a temporary backlog and of priority being given to more serious cases.  In view of the domestic courts’ reasoning and conclusions as to sentencing, the applicant had been afforded adequate redress for the matter complained of and could not claim to be a “victim” within the meaning of Article 34 of the Convention.  This was not altered by the fact that the courts of first and second instance had rejected the applicant’s submission that the delay in question was such as to give rise to a violation of Article 6 § 1.  The Government invited the Court to declare the application inadmissible as being manifestly ill-founded.

The Court notes from the outset that the applicant’s submissions are somewhat contradictory and inaccurate.  While in one part of his application he maintained that he had expressly and unconditionally confessed to all the charges against him, in other parts he stated that at no time did his confession cover all the offences of which he was ultimately convicted.  It was explicitly for this reason that an adjudication by the Court of Examination and Summary Jurisdiction in August 1995 proved impossible.  It is further to be observed that the criminal proceedings against the applicant concerned offences committed between December 1992 and July 1993 and that, presumably to his own benefit with respect to sentencing, all the various charges against him were determined concurrently.  It is thus significant that only 2 years and 5 months elapsed between the time of the commission of the most recent offence until the judgment at second instance before the High Court.

Furthermore, the Public Prosecutor rebuked the police for its year of inactivity following the investigation of the initial offences.  In the first instance proceedings, the City Court attached considerable weight in sentencing to the fact that the case had become old and that this could not be attributed to the applicant.  The time element was deemed to have caused prejudice to the applicant and the imposition of a sentence so long after the commission of the crime would be particularly burdensome.  It is also to be noted that the High Court, whilst convicting the applicant of an aggravated VAT offence, decided nevertheless, in view of the time element, not to increase his sentence.

Moreover, the Court observes that during the four years, approximately, which elapsed from the date when the proceedings started with respect to the first of the offences in question until leave to appeal was refused at the last instance, three jurisdictions had handled most of the case.  Thus, despite the fact that the initial phase of the proceedings may have been open to criticism, thereafter they were conducted at a satisfactory pace so that the length of the  proceedings as a whole cannot be considered excessive.  In these circumstances, the Court finds that the proceedings were concluded within a reasonable time in accordance with Article 6 § 1 of the Convention.

It follows that 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 THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President