SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32092/96 by Michael Forsmark POULSEN against Denmark

The European Court of Human Rights (Second Section) , sitting on 29 June 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr E. Levits,

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 6 May 1996 and registered on 1 July 1996,

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

The applicant is a Danish citizen, born in 1966.  It appears that he resides in Søborg , Denmark.  Before the Court the applicant is represented by Mr Erik Turley , a lawyer practising in Hillerød , Denmark.

A. The circumstances of the case

On 12 October 1993 an indictment was served on the applicant by the Chief of Police in Helsingør ( Politimesteren i Helsingør ) charging him with having illegally possessed a knife, with a blade whose size exceeded the maximum length permitted under Danish law, and with having assaulted and uttered threats of violence against a social worker on duty.

On 30 May 1994 the City Court of Hørsholm ( retten i Hørsholm ) held a hearing in which the applicant, assisted by counsel, and four witnesses were heard.  On the basis of an evaluation of the available evidence the City Court convicted the applicant and sentenced him to 60 days’ imprisonment.  The applicant appealed immediately against the judgment to the High Court of Eastern Denmark ( Østre Landsret ) claiming acquittal.

On 6 June 1994 the indictment for the proceedings in the High Court was accordingly served on the applicant by the State Prosecutor for Zealand ( Statsadvokaten for Sjælland ).  The indictment also informed the applicant that he would receive further notice about the date of the hearing.

On 8 February 1995 the State Prosecutor issued a writ of summons to be served on the applicant, announcing that the hearing would take place on 14 March 1995 in the High Court.  The writ granted the applicant four days’ notice and warned him that failure to appear in court could, inter alia , result in his appeal being dismissed.  The writ was forwarded to the Chief of Police of Gladsaxe .  It appears, however, that problems arose in that the police were unable to find the applicant in order to serve the writ on him.

Thus, on 13 March 1995 the Chief of Police informed the State Prosecutor that four unsuccessful attempts had been made to serve the writ on the applicant at his registered address and that, by mail, he had been requested to contact the police, which, however, he had not done.

The same day the police succeeded in reaching the applicant through his brother who managed to establish a telephone contact by which the applicant informed the police that he was at present working in Herning (in Jutland ) and could not, therefore, come to the hearing in the High Court the following day.

On 14 March 1995 the applicant failed to appear in the High Court for which reason the State Prosecutor requested that the applicant’s appeal be dismissed pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act ( retsplejeloven ).  The applicant’s counsel, who was present in court, objected to the claim for dismissal but did not request leave to plead the case in the applicant’s absence.  The High Court allowed the parties to present their arguments on the question of dismissal following which the Court decided as follows: (Translation)

“According to the information available, during the period from 10 February 1995 until 13 March 1995 the State Prosecutor has four times attempted in vain to serve a summons for the hearing on the applicant, who has not been at home at the civil register address indicated and who has not reacted to the invitations of the police to contact the police.

The applicant, who was aware that the appeal had been brought before the High Court, has omitted to give notice to the effect that he does not stay at the address notified to the civil register, but is staying in Herning at present.  Since it is then due to the applicant’s circumstances that it has been impossible to serve a summons on him in the usual manner, the High Court finds for the State Prosecutor’s claim of dismissal pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act.”

On 4 May 1995 the applicant applied to the Ministry of Justice for leave to appeal against the dismissal to the Supreme Court ( Højesteret ).  Having obtained written observations from the prosecution and from the applicant, the Ministry refused, on 22 December 1995, to grant leave to appeal.

B. Relevant domestic law

A person convicted in a criminal case tried by a city court is free, in principle, to appeal the judgment to the High Court, to whose district the court in question belongs, cf. section 962 § 1 first sentence, of the Administration of Justice Act.  Immediately upon pronouncement of the judgment, a defendant can give notice orally to the court records that he wants to appeal the judgment, cf. section 963 § 3, cf. section 948 § 1, second sentence, of the Administration of Justice Act.

As soon as possible after receipt of the notice of appeal, the State Prosecutor sees to it that attempts are made to serve a notification (notice of appeal and indictment) on the defendant in the usual manner, cf. section 963 § 3, cf. section 948 § 2 of the Administration of Justice Act.  The notification must include information to the effect that the defendant or his counsel will later be notified of the time of the hearing, cf. section 963 § 3, cf. section 948 § 2, cf. section 947 § 2 of the Administration of Justice Act.

When an appeal also comprises assessment of the evidence, the State Prosecutor arranges for a summons containing information on the time and place of the hearing to be served on the defendant with at least four days’ notice, cf. section 965 § 1, cf. section 940 § 2 of the Administration of Justice Act.  If a summons is not served pursuant to section 965 a § 1, cf. section 840 § 2, of the Administration of Justice Act, or if a summons is served on the defendant at less than four days’ notice, the effect is that the defendant is not lawfully summoned to the hearing, and therefore, as a point of departure, the hearing cannot be held if the defendant fails to appear at the hearing.

However, pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act, the defendant’s appeal may be dismissed if it has been impossible to serve the indictment or the summons on him in the usual manner because he has changed his address or place of residence without giving due notice thereof.

The provision must be seen in the light of section 965 c § 3, first sentence, of the Administration of Justice Act.  Under this provision, if a defendant fails to appear without stating a lawful cause of absence in proceedings where the appeal was raised by him and comprises the assessment of evidence, the Court can dismiss his appeal by order if it finds that the hearing cannot usefully be proceeded with in his absence.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not have a fair trial due to the fact that the High Court in the prevailing circumstances dismissed his appeal against conviction without entering into the merits of the appeal.

THE LAW

The applicant complains that he did not have a fair trial within the meaning of Article 6 of the Convention as the High Court dismissed his appeal when he failed to appear. In so far as relevant to the present case Article 6 § 1 of the Convention reads as follows:

“In the  determination of ...a criminal charge against him, everyone is entitled to a fair hearing ... by [a] ... tribunal.....”

The Court recalls that the applicant’s appeal against the City Court’s judgment was not examined on the merits, as the High Court dismissed the appeal.  Thus, it has to be examined whether the decision of the High Court denied the applicant his right to access to court as embodied in Article 6 of the Convention.  Furthermore, the question arises whether the applicant was refused a “review by a higher tribunal” in violation of Article 2 of Protocol No. 7 to the Convention.  Paragraph 1 of this provision reads as follows:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

The applicant submits in support of his complaint that the High Court’s dismissal did not fulfil the requirements of the Administration of Justice Act in that he had not changed his residence but was only away for a short period of time which did not require that he submit any particular information of his whereabouts.  Furthermore, he submits that the available evidence did not support the view that the authorities had fulfilled their obligations to properly summon him to the court hearing.  In these circumstances he is of the view that a dismissal of his appeal was a disproportionate step, having regard to what was at stake for him, thereby depriving him of a review on the merits in two instances which is the normal system under Danish law.

The Government maintain that from a general point of view sections 965 c § 3, second sentence, of the Administration of Justice Act pursues a legitimate aim and is proportionate to the aim pursued, i.e. to ensure that the court may dismiss an appeal initiated by a defendant if the defendant’s own circumstances are the reason why service, and thus the proper conduct of the trial, is impossible.

Furthermore, the Government maintain that the dismissal of the applicant’s appeal did not, in the concrete case, infringe the principle of proportionality, nor did it impair the essence of the right to appeal.

Finally, the Government is of the opinion that in the light of the views expressed the complaint does not raise separate issues in relation to Article 2 of Protocol No. 7 to the Convention.

As far as Article 6 is concerned the Court recalls that this provision does not compel the Contracting States to set up courts of appeal but where such courts do exist, the guarantees of Article 6 must be complied with, for instance, in that it guarantees an effective right of access to these courts.  This right of access to court is, however, not absolute.  It is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State which enjoys a certain margin of appreciation in this regard.

As far as Article 2 of Protocol No. 7 is concerned, the Court notes furthermore that the reference to the exercise of the right of review to be governed by law gives the Contracting States a discretion as to the modalities for the exercise of the right of review.

However, the limitations to the exercise of the “right of review” under the above provisions must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired (cf. mutatis mutandis the Levages Prestations Services v. France judgment of 23 October 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1543, § 40 with further references).

In the present case the Court recalls that the applicant had the possibility under Danish law to appeal against the City Court’s judgment, and in fact did so.  A hearing was scheduled for 14 March 1995 but the appeal was dismissed on that date by the High Court, which accordingly did not enter into the merits of the case, since the applicant failed to appear.

In this case the High Court found it established on the basis of the evidence presented that the authorities attempted on four occasions between 10 February and 13 March 1995 to serve a writ on the applicant announcing the date of the hearing. In addition, it appears that the authorities tried to reach the applicant by mail sent to his registered address to which he did not, however, reply. The High Court’s dismissal of his appeal pursuant to section 965 c of the Administration of Justice Act was based on the evaluation of the evidence to the effect that the applicant had changed his residence without giving due notice and that this was the reason why the writ could not be served on him. The Court does not find that the High Court by this decision overstepped the limits of discretion conferred on it to interpret and apply national law (cf. Van Pelt v. France , no. 31070/96, § 64, ECHR 2000-).  Furthermore, the Court considers that the provision applied served the good administration of justice in that it clearly aimed at securing the parties’ presence in court and the prompt and thorough examination of the case.

The Court has not overlooked that whereas it is of great importance that an accused should appear in the criminal case against him and whereas the legislative and the national courts must be able to discourage unjustified absences, this should not prevent an accused from being adequately defended (cf. most recently Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999-I and the above-mentioned Van Pelt judgment).  However, contrary to the above cases the applicant’s appeal was not decided on its merits, but dismissed due to his failure to appear, nor did counsel for the defence intend to plead the case on its merits in the absence of the applicant.  Having regard to these circumstances the Court considers that the decision to dismiss the case was neither arbitrary nor unreasonable.

Thus, the Court finds that the applicant’s complaint does not disclose any appearance of a violation of Article 6 of the Convention or Article 2 of Protocol No. 7 to 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