SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32085/96 by Henryk SCHRIEDER against Denmark

The European Court of Human Rights ( Second Section ), sitting on 6 April 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, 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 16 April 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 applicant is a Polish citizen, born in 1964. He resides in Copenhagen.

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

The applicant was arrested on 30 November 1990 and charged with rape allegedly committed earlier the same day.  On 1 December 1990 he was given a statutory hearing before the City Court of Copenhagen ( Københavns Byret ) during which the applicant was represented by counsel (N).  Following this hearing the court decided to remand the applicant in custody for 13 days.

On 14 December 1990 the applicant was released by the City Court whereas the charge against him was upheld.

During the period from the arrest until March 1991 the police investigated the case.  The police interrogated the applicant and interviewed the victim and various witnesses.  Furthermore, the police carried out technical examinations at the scene of the crime and collected various technical declarations concerning a number of effects connected with the crime.  Examinations were also carried out of the applicant’s and victim’s bodies to ascertain traces, if any, deriving from the crime.

An indictment was drawn up on 4 March 1991 and the case was set down for trial by the City Court of Copenhagen on 27 May 1991.  However, the police did not succeed in serving the indictment on the applicant and it appears from the court records of the court session on 27 May that the court had been notified by telephone that the applicant was hospitalised in Poland.  The case was therefore adjourned pending another summons.

The case was then set down for trial on 27 November 1991.  However, the police did not succeed in serving the indictment on the applicant, informing him of the time of the trial.  Despite various investigations carried out by the police it was not possible for the police to establish the applicant’s whereabouts.  It appears from the court records of the session on 27 November 1991 before the City Court that the judge decided to adjourn the case pending determination of the applicant’s residence.

Concurrently another case against the applicant was pending, in which he was charged with, and wanted in connection with, a large number of offences against property committed together with others.  On 16 August 1991 City Court of Copenhagen had ordered the applicant, among others, to be remanded in custody as there was a strong suspicion that he had committed offences against property.  The applicant was not present at the hearing, and the public prosecutor stated that the suspects, among them the applicant, were probably to be found in Poland.  In its decision the court emphasised, inter alia , the lack of ties with Denmark of the suspects, including the applicant, and the contradictory statements made by the suspects.  It appears from the decision of the court that the suspects were to be brought before the court within the 24 hours from being brought to Denmark.  The warrant for the arrest which was issued did not, however, concern the rape offence against the applicant.

On 17 January 1992 the applicant was apprehended at the border crossing at Frankfurt/ Oder in Germany.  He was arrested on the ground of an expected Danish request for extradition.  On the same date, Interpol in Germany (Wiesbaden) notified Interpol in Denmark (Copenhagen) thereof, and thus the Danish authorities received notice of the apprehension.

A new warrant of arrest was issued on 22 January 1992.  It appears from this that the applicant was to be taken into custody and brought before the court within 24 hours from being brought to Denmark.  Also this warrant related to the offences against property only and did not concern the rape offence.

On the same day the Copenhagen police requested the Ministry of Justice to make a request for extradition of the applicant for prosecution in Denmark.  In that connection, the police stated that he was provisionally charged with theft, forgery, assisting in forgery and rape.

On 29 January 1992 the Danish Ministry of Justice submitted their request for extradition to the German Ministry of Justice.  It appears from the letter submitted to the German authorities that the applicant was provisionally charged with theft, forgery, assisting in forgery and rape.

On 22 February 1992 the German authorities requested further information for their processing of the extradition case, including the rape case.

On 6 March 1992 the Danish Ministry of Justice replied, giving an account of the case, including the rape offence.  The Ministry of Justice requested that the extradition also include the rape offence although the warrant of arrest of 22 January 1992 from the City Court of Copenhagen did not include this offence.  In that connection the Ministry of Justice stated that the applicant had been provisionally charged with rape and held in custody on the basis of that charge.  The Ministry of Justice stated further that under Danish law extradition for prosecution for several offences could be effected although a warrant of arrest concerned only one of the offences charged.  Moreover, the Ministry of Justice maintained that Section 12 § 2 (a) of the Convention on Extradition was to be construed accordingly.

On 29 April 1992 the German Ministry of Justice granted the request for extradition in so far as it concerned the offences against property, but not in so far as it concerned the rape offence, as the German authorities found that the conditions of the Convention on Extradition were not satisfied in respect of this offence.

During the period from the apprehension in Germany on 17 January 1992 until 18 May 1992 the applicant was detained in Germany with a view to extradition for prosecution in Denmark.  While he was detained in Germany the respondent Government submit that the applicant had contact with his defence counsel in the rape case, N.  According to a letter from counsel, the applicant had expressed a desire for extradition to Denmark as quickly as possible so that he could appear in the criminal case.  The applicant denies that he had any contact with N during his imprisonment in Germany.

The applicant was extradited to Denmark on 18 May 1992 for prosecution of the offences against property.  By judgment of 8 September 1992 by the City Court of Copenhagen, he was found guilty thereof and sentenced to imprisonment for 1 year and 6 months.

On 12 November 1992 the Copenhagen police requested the City Court to suspend the rape case until it could be resumed pursuant to Section 14 § 1 (b) of the European Convention on Extradition.  The police stated that the reason for this was that the German authorities had refused extradition for prosecution of the rape offence.  The police consequently requested a provisional conclusion of the case by the court and an award of fees to counsel.

On 20 November 1992 the City Court adjourned the case. The court awarded a fee of DKK 3,800 plus VAT to the assigned counsel, N, who had previously been awarded a fee of DKK 7,500 plus VAT on 27 November 1991.  These amounts were to be provisionally covered by the Treasury.

The applicant was released on parole on 15 January 1993 with a two-year probation period as concerns a residual sentence of 182 days.  There were no special conditions for the release on parole preventing the applicant from leaving the country immediately.

On 2 February 1995 the Copenhagen police resumed the rape case and recommended the District Public Prosecutor for Copenhagen to drop it on the ground of insufficient evidence.  The police maintained that more than 4 years had passed since the time of the offence, and that it was presumed that the statements which would be made during a trial would hardly be able to form a basis for conviction.

However, on 8 March 1995 the District Public Prosecutor for Copenhagen decided that prosecution in the case should proceed due to the nature of the offence.

Thus, on 13 March 1995 the case was again forwarded to the City Court of Copenhagen.  The Copenhagen police requested that the case be set down for trial quickly.  The case was set down for trial on 15 May 1995.

The indictment was served on the applicant on 2 May 1995.

On 15 May 1995 the applicant’s case was heard by the City Court of Copenhagen.  The court decided to appoint a new defence counsel, J, to the applicant.  During the trial the applicant and 4 witnesses were heard.  In addition to other documentary evidence a report prepared by the Legal Pathology Institute ( Retspatologisk Institut ) was read out in court.  Following an evaluation of the available evidence the applicant was found guilty of the charge brought against him.  He was sentenced to 1 year’s imprisonment.  It appears from the judgment that the applicant was ordered to pay costs, including a fee of DKK 10,000 plus VAT to the appointed counsel, J.  It further appears from the judgment that the fees of DKK 7,500 plus VAT and DKK 3,800 plus VAT awarded to the previously assigned counsel, N, and provisionally covered by the Treasury, were to be finally covered by the applicant.

The applicant appealed against the conviction, claiming acquittal, and by notice of appeal of 29 May 1995 the public prosecutor counter-appealed the sentence, claiming a more severe sentence.

On 19 July 1995 the High Court of Eastern Denmark ( Østre Landsret ) received an extract of the case from the public prosecutor, and on 7 August 1995 the High Court notified the public prosecutor and the defence counsel that the trial had been set down for 16 October 1995.

On 16 October 1995 the case was tried by the High Court.  During the proceedings the applicant was heard as well as 3 of the witnesses from the City Court proceedings.  The statement of the fourth witness was read out in the court.  Furthermore, an additional witness was heard.  On the basis thereof the High Court, which pronounced judgment immediately following the trial, upheld the judgment of the City Court of Copenhagen.  The applicant was ordered to pay the costs before the High Court.

On 25 October 1995 the applicant petitioned the Ministry of Justice for leave to appeal to the Supreme Court ( Højesteret ).

The opinion of the public prosecution on this petition was presented to the applicant on 5 January 1996.

By letters of 22 January and 7 February 1996 the applicant submitted his supplementary comments on the matter.

On 27 February 1996 the Ministry of Justice rejected the request for leave to appeal.

COMPLAINTS

1. The applicant complains, under Article 6 § 1 of the Convention, that he did not have a fair trial as the High Court's judgment was based on, inter alia , a testimony given by a witness in the City Court who was not heard in person by the High Court and on a report from the Legal Pathology Institute which in his opinion did not support the view that he had committed the offence.

2. In addition, he claims that his right to defend himself in person has been violated in that allegedly he was not given the final word in the national court proceedings.  He invokes in this respect Article 6 § 3 (b) and (c) of the Convention.

3. The applicant further complains that he was ordered to pay the fees of counsel N.  He alleges that the fact that N could not continue as his appointed counsel meant that the work done by N was wasted when counsel J took over.  As the applicant cannot be blamed for the change of counsel he alleges that he cannot be held to bear the costs relating to N.

4. The applicant finally complains about the length of the proceedings in the case, noting that they lasted approximately 5 years.

THE LAW

1. The applicant complains that he did not have a fair trial in the High Court.  He bases his allegations on the fact that the court had regard to the statements of a witness who was not heard in person by the court and since the report from the Legal Pathology Institute in his opinion did not support a finding of guilt.  He invokes Article 6 of the Convention.

The Court has examined this part of the application under Article 6 § 1 and § 3 (d) of the Convention which, as far as relevant, read as follows :

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

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The Court recalls that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention.  In particular, it is not its function to deal with errors of fact or of law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (cf. e.g. the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official reports).

The Court recalls further that the guarantees in § 3 of Article 6 represent constituent elements of the general concept of a fair trial as embodied in § 1.  As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce.  More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call a witness and it does not require the attendance and examination of every witness on the accused’s behalf, its essential aim being an “equality of arms” in the matter.  The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair as required by § 1 (see e.g. the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, p.32, § 33).

In the present case the Court recalls that one witness was not heard in the High Court which, however, allowed that his statement be read out in court.  It does not appear that the applicant challenged this in any way but even assuming that the applicant may be considered as having exhausted domestic remedies in this respect the Court recalls that the reading out at a hearing of the records of statements made by a witness cannot, in itself, be regarded as being inconsistent with Article 6 of the Convention but the use made of such statements as evidence must comply with the rights of the defence (cf. e.g. the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p.14, § 31 and the Delta v. France judgment of 19 December 1990, Series A no. 191-A, p.16, § 36).

In this respect the Court recalls that the witness in question was heard in the City Court where the applicant, assisted by counsel, had the opportunity to put questions to him and, if necessary, challenge his statement.  Furthermore, the Court notes that this statement was far from being the only evidence in the case and was not essentially the basis for the applicant’s conviction.  In fact, it appears from the High Court transcript that no one had asked this witness to appear.  In these circumstances the Court does not find that the right of the defence was restricted in a way irreconcilable with the Convention.  Likewise the Court has not found any reason to conclude that the High Court’s assessment of the report of the Legal Pathology Institute could give rise to misgivings as regards the fairness of the trial.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. Under Article 6 § 3 (b) and (c) the applicant complains that his right to defend himself was violated.

Having regard to the facts as set out above the Court has found no elements which could justify a further examination of this complaint.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant complains further of the fact that he had to pay the fees of his appointed counsel, N.  The Court recalls that a system whereby a convicted person is in principle bound to pay the costs of the proceedings, including the fees of his court-appointed counsel, is not incompatible with Article 6 of the Convention, provided this does not adversely affect the fairness of the proceedings (cf. the Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, pp. 34-35, §§ 33-38).

In the present case the Court recalls that the applicant was represented by N as from his arrest in November 1990 and until May 1995 when J was appointed instead.  The Court has not found any circumstances indicating that it would be incompatible with Article 6 of the Convention that the applicant was ordered to pay the costs relating to this appointment.  Nor did this adversely affect the fairness of the proceedings.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. Finally, the applicant complains of the length of the proceedings.  The Court has examined this complaint under Article 6 § 1 which , inter alia , entitles everyone charged with a criminal offence to a trial within a reasonable time.

As regards the period to be taken into consideration the Court recalls that the applicant was arrested and charged with rape on 30 November 1990 and his case was finally determined when leave to appeal to the Supreme Court was refused on 27 February 1996.  Thus, the relevant period is 5 years, 2 months and 27 days.

The reasonableness of this period must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and that of the authorities dealing with it (see e.g. the Pélissier et Sassi v. France judgment of 25 March 1999, to be published in the Court’s official reports, § 67).

The Government argue that the trial courts examined the case without delays and that the prosecution authorities were justified in awaiting the expiry of the probation period of the applicant’s first conviction before pursuing the rape case as a consequence of their commitments towards the German authorities under the Convention on Extradition.

The Court does not find that the criminal case against the applicant was of a particular complexity.  This cannot therefore explain the length of the proceedings.  However, the Court recalls that when the trial was fixed the applicant had left Denmark and his whereabouts were unknown.  It was not until his arrest in Germany in January 1992 that the case could be resumed.  The Court finds that this delay cannot be attributable to the Government.

As regards the conduct of the State authorities the Court agrees with the Government that the proceedings before the City Court of Copenhagen and the High Court as well as the proceedings concerning the request for leave to appeal do not as such disclose any appearance of a violation of the right to trial within a reasonable time.  There appears to be, however, a delay from 20 November 1992, when the City Court adjourned the rape case, until 2 February 1995, when the police resumed it, caused by the Danish authorities’ commitments towards the German authorities pursuant to the Convention on Extradition.  The Government argue that the Danish authorities were justified in their assessments to the effect that, as a consequence of the said Convention, the police were obliged to await the expiry of the applicant’s probation period connected to his previous conviction before pursuing the other case.

The Court is not called upon to interpret the provisions of the Convention on Extradition.  It notes that the applicant certainly cannot be held responsible for this delay, but having regard to the proceedings as a whole, the applicant’s situation, the fact that the case was dealt with in three instances and the international implications the Court considers, making an overall assessment, that the length of the criminal proceedings did not go beyond what may be considered reasonable with the meaning of Article 6 § 1 of the Convention.  The applicant’s complaint does not, therefore, disclose any appearance of a violation of this provision.

It follows that this complaint 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