AS TO THE ADMISSIBILITY OF
by Gunnar BECK
The European Court of Human Rights (Third Section) sitting on 16 November 1999 as a Chamber composed of
Mr J.-P. Costa,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dollé, 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 28 January 1995 by Gunnar Beck against Norway and registered on 3 February 1995 under file no. 26390/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 20 March and 30 June 1997 and the observations in reply submitted by the applicant on 14 May and 22 August 1997;
Decides as follows:
The applicant is a Norwegian and Swiss national, born in 1965 and living in Oslo, Norway.
He is represented before the Court by Mr Bjørn Stordrange, a lawyer practising in Oslo.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the autumn of 1985, the applicant, together with three associates started a business involving lactic cultures, purportedly for use in the cosmetic industry. It consisted of two limited liability companies, founded respectively in August and December 1985 and named Cosmesin Laboratorieprodukter A/S ("Cosmesin") and Geneve A/S ("Geneve"). According to the Norwegian courts’ findings in the proceedings referred to below, the business was a fraudulent pyramid scheme by which Cosmesin purchased from a producer in Denmark freeze-dried concentrates of lactic acid bacteria at 100 Norwegian kroner (NOK) per bag (containing 0.5 grams), resold these to Geneve at NOK 240 per bag, which again sold these at the price of NOK 330 to cultivators, whom it had recruited, and after 15 weeks bought the cultivated products back at the price of NOK 625. The number of producers increased from 4 at the end of 1985 to 3205 at the end of January 1987. Payments were made to a company in London. No goods containing the cultivated substances were ever marketed or produced. As from November 1986 the companies stopped bookkeeping.
On 27 January 1987 the Consumer Ombudsman (Forbrukerombudet) filed a complaint with the Director General of Public Prosecutions (Riksadvokaten) against Geneve and Cosmesin for defrauding several thousand persons who had invested in products from Geneve. The companies went into bankruptcy in February 1987. Between February and April 1987 the police received 335 complaints from cultivators in various parts of Norway. Further complaints were made in January 1988 and January 1989 respectively by a major bank and the tax authorities.
On 20 February 1987 the applicant was arrested but was released on certain conditions. In the course of January and February 1987 the police carried out interviews of persons involved, searches of premises and confiscation. Throughout 1987 investigations were conducted in Denmark, Sweden and England concerning the companies’ business connections and investments. In April 1989 the police held meetings with Swedish and English police authorities. In October 1991 and April 1992 the police interviewed 12 cultivators.
Following the issuing of indictments in August 1989, the case was submitted to Oslo City Court on 4 September 1991.
In the final indictments issued on 17 March 1992, the applicant was
charged with the offences of serious fraud in relation to amounts totalling
approximately NOK 25 million (Articles 270 and 271 of the Penal Code),
unlawfully drawing up cheques - in amounts totalling almost NOK 4.5
million - on behalf of an insolvent company (Articles 285 and 288 of
the Penal Code), and having disregarded statutory obligations relating
to bookkeeping and
the provision of information to the authorities relevant to Value Added Tax ("VAT") payments, with the resultant evasion of approximately NOK 3.5 million (Article 286 of the Penal Code and section 72 of the VAT Act).
After holding a hearing over 20 days in October and November 1992, the City Court, by judgment of 19 November 1992, convicted the applicant of all the charges, except for those relating to the VAT offences, and sentenced him to 2 years’ imprisonment.
As regards sentencing the City Court noted from the outset that the offences for which the applicant was convicted might be punished by up to 9 years’ imprisonment. It further stated that general considerations of crime prevention suggested that economic offences of the kind at issue warranted a severe penalty. As it appears from its reasoning, the City Court found the defendants’ conduct particularly reprehensible and emphasised that the suffering which they had caused to innocent cultivators must be viewed as an aggravating factor in sentencing. The City Court then went on to consider the question of mitigation, having regard to three factors, namely the applicant’s low age at the time of the proscribed conduct, the uncritical attitude of banks in giving loans and the long time which had lapsed since the incriminated acts. The City Court stated that, to a “not insignificant degree” ("ikke uvesentlig grad"), it attached weight to this factor which was attributable to a protracted investigation owing to changes of investigators in the case. It observed that, notwithstanding this consideration, the defendants should receive a severe sentence.
On 28 December 1992 the applicant sought to appeal to the Supreme Court, alleging a procedural error in the first instance proceedings and requesting a new trial. On 29 April 1993 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) admitted the appeal in as far as it concerned the procedural matter.
In the proceedings before the Supreme Court the applicant in addition asked for a reduction in sentence. After taking evidence on 14 December 1993 and holding a hearing on 6 September 1994, the Supreme Court rejected the appeal on 13 September 1994. As regards sentencing it recalled that the City Court had taken into consideration as a mitigating circumstance the long time which had elapsed since the incriminated conduct. The Supreme Court held that, although more time had elapsed since the City Court's judgment, it saw no reason for reducing the sentence.
The applicant complains under Article 6 § 1 of the Convention that the criminal case against him was not determined within a reasonable time.
The application was introduced on 28 January 1995 and registered on 3 February 1995.
On 27 November 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 20 March 1997, after an extension of the time-limit fixed for that purpose, and on 30 June 1997. The applicant replied on 14 May and 22 August 1997.
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.
The applicant complains under Article 6 § 1 of the Convention of the length of the criminal proceedings against him, as these had lasted from late January / early February 1987 to 13 September 1993, thus approximately 7½ years.
The applicant maintains that the case was not very complex, and no more so than any other case of this nature, and that the delay in the proceedings was not attributable to his own conduct. At all times during the investigations he was available for inquiries by the police. Rather, as pointed out by the City Court, the delay was caused by the changes of police investigators in the case. However, this factor was only one of three mitigating circumstances taken into account. The sentence imposed was only a little lower than the average sentence for the kind of offences in question, which could be explained by the factors referred to by the City Court other than the length. Thus, it could not be said that he obtained adequate redress for the violation of Article 6 § 1 of the Convention occasioned by the excessive duration of the proceedings in his case.
The Government point out that the maximum sentence with respect to the offences for which the applicant was convicted was 9 years’ imprisonment and that, having regard to the seriousness of the proscribed conduct and the suffering inflicted on the aggrieved individuals, the trial court considered that the sentence had to be severe. Considering, inter alia, the length of the proceedings as a mitigating circumstance, the court fixed the sentence at no more than two years’ imprisonment. It was clear from the court's reasoning that the length of the proceedings was a decisive factor in the leniency of the sentence. Thus the mitigation on the grounds of the length of the proceedings was measurable and could not be viewed as an unverifiable declaration of good intent. In view of the level of sentences imposed in comparable cases, one could reasonably assume that in the applicant’s case the mitigating circumstances represented a reduction in sentence of at least two years’ imprisonment. At least one year’s reduction was attributable to the length of the proceedings alone, the City Court having attached less importance to the other two mitigating factors. Thus, bearing in mind the aggravating circumstances in the case, the reduction in sentence must be deemed substantial. The applicant had thus been afforded adequate redress by the competent national authorities and could not claim to be a “victim”, within the meaning of Article 34, of a violation of his rights under Article 6 § 1 of the Convention.
In any event, the Government submit, no such delay occurred in the proceedings as could justify a finding of a breach of Article 6 § 1 of the Convention.
The Court observes that the City Court, in its judgment of 19 November 1992, had regard to, on the one hand, certain aggravating circumstances suggesting a severe penalty and, on the other hand, three mitigating factors, namely the applicant’s low age at the time of the proscribed conduct, the uncritical attitude of banks in giving loans and the long time which had lapsed since the incriminated acts. In the City Court's opinion, the latter factor was “not insignificant” and was attributable to a protracted investigation owing to changes of investigators in the case. It observed that, notwithstanding this consideration, the defendants should receive a severe sentence.
The Supreme Court, for its part, reiterated that the City Court had taken the time element into consideration and stated that, although further time had elapsed since the latter court's judgment, it saw no reason to reduce the sentence.
In the view of the Court, the issue whether the applicant is deprived of the status of victim within the meaning of Article 34 of the Convention, is closely linked to those raised with respect to his complaint under Article 6 § 1 as to the duration of the proceedings. It therefore joins this issue to the merits of the application.
It considers, in the light of the Convention institutions’ case-law concerning the requirement of “reasonable time” in Article 6 § 1 and all the material in its possession, that an examination of the merits of the complaint is required.
For these reasons, the Court, unanimously,
JOINS TO THE MERITS, the question whether the applicant is deprived of the status of victim with respect to his complaint as to the length of the proceedings;
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. Dollé N.
26390/95 - -
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