AS TO THE ADMISSIBILITY OF
Application no. 32848/06
by Torben MOESGAARD PETERSEN
The European Court of Human Rights (Fifth Section), sitting on 9 October 2007 as a Chamber composed of:
Mrs S. Botoucharova, President,
Mr P. Lorenzen,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 August 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 applicant, Mr Torben Moesgaard Petersen, is a Danish national who was born in 1958 and lives in Charlottenlund. He is represented before the Court by Mrs Sysette Vinding Kruse, a lawyer practising in Copenhagen. The Danish Government (“the Government”) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits ear-marked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated in their criminal economic activities, which concerned very large amounts of money. According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding 2 billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993.
At the relevant time the applicant owned part of a private limited stockbrokers company [[B] & [the applicant] A/S], “the company”).
On 18 January 1994 he learnt that the tax authorities were about to check the company’s accounts for the years 1989-1992. On 6 May 1994 the tax authorities informed the applicant that the question of whether any criminal liability had occurred would be decided on later. The tax authorities also reported various potential co-offenders to the police.
During 1994 and 1995 the police carried out an investigation comprising, among other things, discovery orders against banks, international letters of request, search warrants and numerous interviews of witnesses.
On 17 June 1996, the Copenhagen City Court (Københavns Byret), the “City Court”, sitting in camera, granted a warrant to the police to search the premises of the applicant’s business and those of the company.
On 2 July 1996 the search was carried out by the police.
In the period between the summer of 1996 and the end of 1997, and to some extent throughout 1998, searches were carried out at co-defendants’ premises, numerous discovery orders were issued, accounts material was collected, accountant reports were requested, a request was submitted to Interpol, more than a hundred interviews were conducted, and an order prohibiting the disclosure of the applicant’s name was issued.
On 12 February 1998 the applicant was officially charged and interrogated by the police.
On 25 June 1998 an indictment was submitted to the City Court, according to which the applicant (and five co-accused, A, B, H, N and R) were charged of “tax asset stripping” committed jointly. The applicant was charged on forty-four counts out of fifty-nine altogether, committed in the period between 26 June and 3 November 1992, and his responsibility related to an amount of DKK 87 million, equal to approximately 11.6 million euros (EUR). The indictment related to eighty different companies and six banks in Denmark and abroad.
In August, September and October 1998, preparatory hearings took place and the case was scheduled for trial to commence on 10 March 1999 until June 2000 with a hundred and nineteen court days.
Thereafter fourteen further preparatory hearings were held, during which various procedural issues and questions concerning the production of evidence were discussed.
The trial commenced as scheduled and very few court hearings were cancelled. On 7 September 1999, in agreement with the parties, additional thirty-one court days were scheduled.
Before the City Court, the applicant, the co-accused and more than seventy witnesses were heard, including state-authorised public accountants. Statements of accounts and a considerable amount of other documentary evidence were presented. The court records comprised one thousand, three hundred and thirty pages.
The prosecutor gave his closing speech over three days in November 2000 and counsels gave their closing speeches over six days in January 2001.
By a judgment of 6 April 2001, which ran to two hundred and twenty-two pages, the City Court convicted the applicant in accordance with the indictment. The co-accused were also convicted. The applicant was sentenced to three years’ imprisonment. In addition, the sum of DKK 3.6 million was seized, and for an indefinite period he was deprived of the right to establish a private limited company or a company or an association which would require public approval, or to become manager and/or member of a director’s board in such companies.
The City Court dismissed the applicant’s claim that the length of the proceedings had been at variance with Article 6 of the Convention by stating the following:
“The City Court finds no reason to criticise the prosecution’s decision to join the criminal proceedings against the [applicant and the five co-accused]. Accordingly, and having regard to the mutual connection between the cases and their character, the City Court finds no violation of Article 6 of the Convention, although there were longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. In this connection [the City Court] notes that the complexity of the acts carried out by [the applicant and the five co-accused] partly when buying and “stripping” the companies for assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. In the City Court’s opinion there were no longer periods, be it before the police, the prosecution or the City Court, during which no part of the case proceeded. It must be emphasised that due to the nature and scope of the charges, the cases against [the applicant] and [the co-accused B and R] could not proceed before the cases against [the co-accused H, N and A] [had been heard]. [Finally], in view of the character and complexity of the case, [the City Court] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the Convention.
In May 2001 the applicant and the five co-convicted appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret), the “High Court”, before which preparatory hearings were held for scheduling purposes in August, September and October 2001. The trial was scheduled to take place from 12 August 2002 until 24 November 2003 with eighty-five court hearings. The applicant’s and the co-defendants’ counsel were to a wide extent prevented from appearing during the autumn of 2002.
In the meantime, several preparatory hearings were held and the trial commenced on 24 September 2002.
The prosecutor gave his closing speech over three days in April and May 2004. Counsels gave their closing speeches over seven days in May and June 2004. The court records ran to 861 pages.
On 28 September 2004 the High Court confirmed the judgment by the City Court. As regards the length of the proceedings, it stated:
“In the assessment of whether the proceedings have been concluded within a reasonable time, the starting point ... concerning the [applicant] was on 12 February 1998, when he was charged ...
[The High Court] confirms the City Court’s judgment and its reasoning with regard to the question of whether Article 6 of the Convention has been violated. In addition, [it finds] that the public prosecutor has established that the prosecution of [the applicant] as regards counts nos. 55-59 could not be pursued during the criminal trial against [two named persons], but had to be pursued jointly with the [charges] against the co-accused R [in the present case].
The appeal proceedings were scheduled and carried out without any unreasonable delay. On 13 September 2001 the trial was scheduled to take place with fixed dates as from 12 August 2002. A number of hearing days in the autumn 2002 and the beginning of 2003 had to be cancelled because some of the counsels were occupied [with other cases], for which reason the [present] case was delayed. To avoid any further delay caused by impossibilities to appear, the trial, which commenced on 24 September 2002, proceeded in a proper, but not exactly suitable order.”
On 12 October 2004 the applicant requested that the Appeals Permission Board (Procesbevillingsnævnet) grant him leave to appeal against the judgment to the Supreme Court (Højesteret). The co-convicted also petitioned for leave to appeal, and three of them stated in their petitions that they would submit supplementary comments. The last supplementary comments were received by the Appeals Permission Board on 17 December 2004. The prosecution’s observations were submitted in March 2005 and further observations by the applicant’s counsel were submitted in May 2005. On 5 August 2005 the Board met and decided not to grant the requests. The refusals were not sent off, however, because on 9 August 2005 one of the co-defendants requested permission to submit supplementary comments in the light of a new judgment in a similar case. On 12 October 2005, the relevant counsel reminded the Board of his request. On 2 May 2006, via a telephone conversation, the Copenhagen Police reminded the Board about the case, and on the same day the above mentioned counsel was given a short deadline to submit his observations.
On 21 June 2006 the Appeals Permission Board refused the applicant’s request (and those of the co-convicted) and apologised at the same time for the length of the proceedings before it.
The applicant complained under Article 6 § 1 of the Convention that the criminal charge against him was not determined within a reasonable time.
The invoked provision reads in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the proceedings began on 2 July 1996, when the police carried out a search at the applicant’s premises.
They maintained that the proceedings were highly complex as concerns facts, law and procedural issues and pointed out that the proceedings involved six defendants and an extremely extensive investigation concerning fifty-nine counts; that the proceedings implied an extensive international investigation which was time-consuming, but necessary; that the applicant’s conduct to some extent had contributed to the length of the proceedings; and that apart from about eight months before the Appeals Permission Board, there had been no inactive periods during the proceedings.
They contested the applicant’s contention that there had been several periods of inactivity, and noted that in the period between March 1995 and February 1998 numerous investigative steps had been taken, against the applicant and the co-accused, among those, sixteen interviews, five discovery orders and six searches. Likewise, as to the period from the City Court’s judgment until the appeal hearing started before the High Court in September 2002, the first preparatory hearing took place in August, immediately after the summer holiday, and thereafter numerous preparatory hearings had been held before the trial commenced. The Government reiterated in addition that apart from the problems of scheduling dates for the hearing of an appeal of such a comprehensive case with six defendants and their counsel, who had to set aside time for appearing on a very large number of court days, the said period was also used to clarify other questions before the appeal hearing, such as the cross-appeal of a co-defendant and discussions on the witnesses and evidence to be produced.
The applicant found that the proceedings began on 6 May 1994, but agreed with the Government that he was certainly substantially affected as from 2 July 1996. The applicant also pointed out that the High Court mistakenly found that the proceedings began only on 12 February 1998, which was part of the applicant’s argument for bringing the case before the Supreme Court.
The applicant contended that throughout the investigation and the court proceedings there were several periods of inactivity or almost no activity, in particular from March 1995 until June 1998; from May 2001 until September 2002; and from May 2005 until June 2006.
Moreover, the applicant disputed that the case was highly complex and emphasised, among other things, that in his case very few foreign company structures were used and almost all the banks were based in Denmark, thus, a very limited part of the investigation had to be carried out abroad.
Finally, although not formally objecting to his case having been heard together with the co-defendants’ cases, having regard to the overall period, and what was at stake for him, the applicant maintained that the length of the proceedings exceeded the reasonable time requirement within Article 6 of the Convention.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required and that the application of Article 29 § 3 of the Convention should be discontinued.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits.
Claudia Westerdiek Snejana Botoucharova
MOESGAARD PETERSEN v. DENMARK DECISION
MOESGAARD PETERSEN v. DENMARK DECISION