Information Note on the Court’s case-law 6

May 1999

Ninn-Hansen v. Denmark (dec.) - 28972/95

Decision 18.5.1999 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Impartiality of lay judges appointed by Parliament to sit on a court of impeachment: inadmissible

Criminal charge

Proceedings before a court of inquiry, with the role of giving an opinion enabling Parliament to decide whether to institute proceedings against a former minister: inadmissible

Article 6-3-c

Defence in person

Applicant not present at the final stages of proceedings due to ill-health: inadmissible

The applicant was Minister of Justice from 1982 to 1989. In 1988, the Parliamentary Ombudsman started investigations into the Ministry of Justice’s administration in 1986-88 of cases concerning applications by refugees from Sri Lanka for family reunificati on. The Ombudsman’s report received considerable public attention and resulted in public criticism of the Government’s refugee policy and especially of the applicant’s actions. In July 1990, a court of inquiry was set up;  61 witnesses were heard, includin g the applicant, and more than a hundred sessions were held. The seven first sessions of the court were held in camera , but the rest of the proceedings were conducted in public, at the applicant’s request;  transcripts of the first sessions were also made available to the public. The Court of Inquiry’s report of January 1993 contained severe criticism of the applicant’s action and prompted Parliament to institute proceedings against him before the Court of Impeachment. The court, which was composed of an eq ual number of Supreme Court judges and lay judges appointed by Parliament, started examining the case in December 1993. The applicant was charged with having disregarded his duties as a minister. The Court of Impeachment allowed the use of the transcripts of the inquiry proceedings, which contained the witnesses’ testimonies. In June 1994, the applicant had a stroke and the proceedings were adjourned. In April 1995, following medical expert opinions, the court decided to continue the examination of the case . The applicant was not present at the final stage of the proceedings but was represented by counsel. In June 1995, he was eventually convicted and sentenced to 4 months’ imprisonment, suspended.

Proceedings before the Court of Inquiry - Inadmissible under Article 6 § 1 and § 3: The purpose of the proceedings before the Court of Inquiry and of the court’s report was to give Parliament an extensive opinion that would enable it to decide whether to institute proceedings against high-ranking officials having d isregarded their duties while in office. Therefore, these pre-trial proceedings did not determine a criminal charge as such and the applicant’s complaints relating to these proceedings taken on their own is incompatible ratione materiae . However, the inqui ry and impeachment proceedings must also be considered as a whole, in order to determine whether the proceedings before the Court of Inquiry weakened the applicant’s position to an extent that rendered all subsequent proceedings unfair. It appeared that th e seven first sessions of the Court of Inquiry were held in camera , but that the applicant was granted access to all the court transcripts. Moreover, throughout the hearings he was offered legal assistance, which he declined. He was also protected from sel f-incrimination and could make submissions on an equal footing with the other witnesses. Thus, the inquiry proceedings did not affect his defence to the extent that the impeachment proceedings could not be fair:  manifestly ill-founded.

Proceedings before the Court of Impeachment - Inadmissible under Article 6 § 1 (independent and impartial tribunal) and § 2: The Court of Impeachment was composed of an equal number of professional judges and lay judges. The lay judges were appointed by Pa rliament for 6 years, with no possibility for Parliament to remove them once elected or influence them in any way. The mere fact that these judges were appointed by Parliament could not be seen as sufficient to cast doubt on their independence and impartia lity. As to the impartiality of the Supreme Court judges taking part in the Court of Impeachment, what seemed decisive was whether doubts could be held to be objectively justified. The Supreme Court on two occasions determined appeals against decisions of the Court of Inquiry, and four of the Supreme Court judges later participated in the Court of Impeachment;  the scope and nature of these decisions had then to be taken into consideration. The decisions at issue concerned purely procedural matters and as s uch were not sufficient to cast doubt on the judges’ impartiality. Furthermore, the fact that the judges participating in the Court of Impeachment were colleagues of those who had presided over the Court of Inquiry and that the sessions took place in the p remises of the Supreme Court did not justify the applicant’s doubts either. Finally, there was no evidence that the virulent press campaign influenced the judges at the prosecution or decision-making stages, jeopardising the presumption of innocence: manif estly ill-founded.

Inadmissible under Article 6 § 1 (fair hearing): The Court of Impeachment admitted the transcripts of the proceedings before the Court of Inquiry which contained statements made by the applicant and other witnesses so that, if necessary, the same persons appearing before the Court of Impeachment could be confronted with their own statements before the Court of Inquiry. This as such did not infringe on the applicant’s rights under Article 6: manifestly ill-founded.

Inadmissible under Artic le 6 § 1 and § 3(c) and (d): As to the continuation of the proceedings before the Court of Impeachment despite the applicant’s state of health, the court took its decision on the basis of extensive medical evidence. Relying on numerous medical opinions, it assumed that the applicant’s health did not prevent him from being present at the remaining proceedings. However, it is of paramount importance that a defendant appears at his trial, because of his right to a hearing and the need to verify the accuracy of his statements and compare them with those of other witnesses;  this is the more so if, as in the instant case, the court acts as sole instance. In the present circumstances, the applicant decided not to attend the remaining sessions of the trial. He was, nonetheless, adequately defended by counsel. Moreover, the major part of the trial had been concluded by the time he fell ill, the remaining part of the proceedings being the parties’ closing statements: manifestly ill-founded.

Inadmissible under Article 6 § 1 (length of proceedings): The applicant could not be considered to have been substantially affected before the date on which he was officially informed of the Court of Inquiry’s task and that he would be called as a witness. Thus, the period to be tak en into account began in October 1990 and ended in June 1995, with the delivery of the judgment. Firstly, the Court of Inquiry had to investigate whether “anybody in public service or duty” had committed faults or negligence;  61 witnesses were heard in th e course of these proceedings. Secondly, the Court of Impeachment had to determine whether the applicant was liable to punishment for having disregarded his duties while Minister of Justice; more than 40 witnesses were then heard. Finally, the only period of inactivity, between June 1994 and April 1995, was the direct consequence of the applicant’s illness: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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