SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28064/95 by Henry Krog PEDERSEN against Denmark

The European Court of Human Rights ( Second Section ) sitting on 2 December 1999 as a Chamber composed of

Mr C. Rozakis, President , Mr M. Fischbach, Mr B. Conforti, Mr G. Bonello, Mrs V. Strážnická, Mr A.B. Baka, Mr A. Kovler, judges ,

and Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 March 1995 by Henry Krog Pedersen against Denmark and registered on 31 July 1995 under file no. 28064/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 10 January 1998 and the observations in reply submitted by the applicant on 7 September 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1918. He resides in Kollund , Denmark.

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

On 5 October 1988 the applicant and his son instituted defamation proceedings in the Aabenraa City Court ( byretten ) against several journalists, the chief editors of five newspapers, including the newspaper Det fri Aktuelt , an author of a book on Nazism and a folk dancers’ association. As a consequence of the provisions of the Penal Code ( straffeloven ) and the Administration of Justice Act ( retsplejeloven ) the applicant instituted the defamation proceedings against the defendants as a private prosecution case whereas the charges were to be heard under the rules governing civil proceedings.

On 5 November 1988 the newspaper Randers Amtsavis printed an article on Nazism. In the article reference was made to an article published by the above newspaper Det fri Aktuelt for which reason the applicant joined Randers Amtsavis and its editor as parties to the case in the Aabenraa City Court on 22 November 1988.

As the defendants resided, or had their business addresses, in different parts of the country the Aabenraa City Court decided on 21 March 1989 to refer the case to the competent city courts. As far as the case against Randers Amtsavis and its editor is concerned the case was transferred to the Randers City Court for further processing on 13 July 1989.

It appears that four court sessions were held in the Randers City Court from July 1989 until March 1994.

On 24 March 1994 the City Court decided to adjourn the proceedings pending the outcome of the proceedings against the newspaper Det fri Aktuelt , which at the time were pending in the Copenhagen City Court. These proceedings terminated on 21 June 1994.

Subsequently, the preparation of the case continued in the Randers City Court and it appears that three court session were held between June 1994 and May 1996. Eventually on 8 May 1996 the case was tried in the Randers City Court. Judgment was pronounced on 28 June 1996. The City Court found in favour of the defendants.

On 16 July 1996 the applicant appealed against the judgment to the High Court of Western Denmark ( Vestre landsret ). On 6 December 1996 the High Court concluded the preparation of the case and on 14 January 1997 the applicant was summoned to the trial, scheduled for 27 October 1997.

On 25 May 1997 the applicant informed the High Court that he could not produce the necessary trial documents as required by section 385 cf. section 365 § 3 of the Administration of Justice Act. Following certain correspondence the High Court informed the applicant on 13 August 1997 that he was obliged to submit the necessary trial documents and warned him that the case could otherwise be dismissed. Another warning to that effect was issued by the High Court on 8 October 1997.

By judgment of 27 October 1997 the High Court dismissed the case due to the fact that the applicant had failed to comply with the procedural requirements for an examination of the case cf. sections 386 § 1, 385 § 1 and 365 § 3 of the Administration of Justice Act.

The applicant did not apply for leave to appeal against the above judgment, which accordingly became final.

COMPLAINTS

In his original application the applicant complained, under Article 6 of the Convention, that he did not have a fair hearing within a reasonable time in the above case. Following its conclusion the applicant now also complains of the fact that the High Court dismissed the case.

The application was introduced on 19 March 1995 and registered on 31 July 1995.

On 10 September 1997 the Commission decided to invite the respondent Government to submit observations on the admissibility and merits of the complaint concerning the length of the proceedings. The remainder of the application was declared inadmissible.

The Government’s observations were submitted on 16 January 1998 and the applicant’s observations in reply were submitted on 7 September 1998.

On 10 March 1998 the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

“In the determination of his civil rights ..., everyone is entitled to a fair ... hearing within a reasonable time ...”.

The Court recalls from the Commission’s partial decision on admissibility of 10 September 1997 that the complaint about the fairness of the proceedings was not entertained by the Commission as the proceedings were at the time still pending in Denmark, and the complaint thus premature. The Court notes that the proceedings ended on 27 October 1997.

The Court also notes that the applicant now complains as well that dismissing his case was unfair.

As regards the latter point the question arises whether the applicant might have been refused access to court - a right, which is included in Article 6 of the Convention. This provision, however, does not debar Contracting Parties from making regulations governing the access to the courts provided that such regulations are for the good administration of justice.

In the present case the Court recalls that the applicant could and did in fact bring his case before the courts for a determination of his complaint of defamation. The case was eventually dismissed since the applicant failed to provide the High Court with the necessary trial documents as prescribed by the Administration of Justice Act. It cannot be considered that these regulations prevented him from bringing the case before the courts. Furthermore, he had been duly informed of the requirements but failed to pursue the case accordingly.

It follows from this that the Court is not required to decide whether or not the facts alleged by the applicant in respect of the other aspect of the fairness of the proceedings disclose any appearance of a violation of Article 6 of the Convention as, under Article 35 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

In the present case the applicant failed to comply with the procedural requirements as set out in the Administration of Justice Act for which reason the High Court dismissed the appeal, nor did he apply for leave to appeal against this judgment. In these circumstances the Court finds that the applicant cannot be considered as having exhausted the domestic remedies available to him under Danish law. Moreover, as set out above, an examination of the case as it has been submitted, 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 this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

The applicant considers that the length of the proceedings exceeds the reasonable time requirement set out in Article 6 § 1 of the Convention. The Government contest this.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the applicant’s complaint of the length of the proceedings.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President