AS TO THE ADMISSIBILITY OF
Application no. 42986/02
by Tove DALSGAARD and Jens DALSGAARD
The European Court of Human Rights (First Section), sitting on 29 September 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, Judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Court of Human Rights on 27 November 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated on 29 September 2005, decides as follows:
The first applicant, Tove Dalsgaard, and the second applicant, Jens Dalsgaard, are spouses. They are Danish nationals, born in 1946 and 1943 respectively and live in Hillerød. They are represented before the Court by Uffe Baller, a lawyer practising in Århus. The Government are represented by their Agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants ran a freshwater fish farm, which formally was owned by the first applicant.
On respectively 17 and 18 November 1993 the applicants were interviewed by the police and charged with offences against the Act on freshwater fish farms of 5 April 1989 (bekendtgørelse nr. 224), as allegedly during the year 1992, they had for their own enrichment intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment. An indictment was issued on 17 December 1993 and filed with the City Court of Terndrup (retten i Terndrup) on 20 December 1993. As the applicants continued to exceed the fixed feed quotas, the indictment was succeeded by supplementary indictments of 31 May 1994, 11 July 1995, 10 October 1996, 13 January 1998 and 19 March 1998 concerning the years 1993-1997; the four latter concerning an amended Act on freshwater fish farms (bekendtgørelse nr. 900) of 31 October 1994, and the latter including charges as to breach of the Environmental Protection Act (Miljøbeskyttelsesloven).
On 10 January 1994 the case was adjourned awaiting the outcome of a corresponding pending criminal case, considered to be a “test-case”, in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Miljøbeskyttelsesloven). The applicants did not object to this adjournment. The proceedings in the test-case were finally determined on appeal by a High Court judgment of 21 September 1995 which stated that the Act provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit. As a consequence of the judgment the Regional Public Prosecutor of Aalborg (Statsadvokaten i Aalborg), who at the relevant time had 23 similar cases being prosecuted by him in the first instance, forwarded a memorandum to all the Chief Constables in December 1995, urging them to expedite the “fish farms cases”.
However, in January 1996 a defendant in another test-case alleged that the 1989 Act was anti-competitive and therefore in conflict with EU law, resulting in the Regional Public Prosecutor of Aalborg requesting the Environmental Protection Agency (Miljøstyrelsen) and the Special European Committee on Legal Issues set up by the Danish Ministry of Justice (Justitsministeriets EU-specialudvalg for juridiske spørgsmål) to provide an opinion. Neither found that the Act fell within the scope of Article 34 and 35 of the EC treaty, and in November 1996, as to the specific test-case, the High Court ruled that it found no reason to refer to question to the European Court of Justice. Against this background in the autumn the Regional Public Prosecutor of Aalborg forwarded two memorandums to the Chief Constables urging them to expedite the fish farm cases as much as possible.
In the meantime, in the spring of 1996 in yet another test-case, a defendant had alleged in vain that the 1989 Act was contrary to section 73 of the Danish Constitution. Consequently, in September 1996 the Regional Public Prosecutor of Sønderborg (Statsadvokaten i Sønderborg) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them.
Also, in the meantime investigation and administrative appeals had been ongoing resulting in the supplementary indictments of 31 May 1994, 11 July 1995 and 10 October 1996 being filed with the City Court of Terndrup, and the trial had been scheduled to take place on 15 October 1997.
On 8 July 1997 the applicants retained a new counsel, who shortly thereafter requested an adjournment of the case in order to go through the material and to obtain an expert opinion on the confiscation amount. His request was granted. Therefore, and due to counsel’s engagement elsewhere, the trial was scheduled to take place on 27 and 28 October 1998.
Two supplementary indictments of 13 January 1998 and 19 March 1998 were filed with the City Court of Terndrup.
By judgment of 19 November 1998 the applicants were convicted. The first applicant was sentenced to pay a fine of 5,000 Danish kroner (DKK) and her profit estimated to DKK 1,400,000 was confiscated. The second applicant was fined of DKK 350,000. In addition, weekly fines in the amount of DKK 500 were to be imposed on the applicants up until 1 April 1999 or until they had complied with a prohibition of 2 July 1997 that had been issued by the regional environmental protection authorities (Nordjyllands Amtsråd) against carrying on business on a specific part of the applicants’ freshwater fish farm.
On appeal to the High Court of Western Denmark (Vestre Landsret) counsel requested information from the prosecution as to whether the 1989 Act had been notified to the European Commission, since in the affirmative he would request a preliminary reference to the European Court of Justice.
At the relevant time two test-cases were already pending before the Supreme Court (Højesteret) in which the two defendants (see Pedersen and Pedersen v. Denmark, no. 68693/01, 14 October 2004) had maintained that the relevant Act lacked legal authority because the European Commission had not been notified of it as prescribed by a Council Directive, for which reason they requested the case referred to the Luxembourg Court for a preliminary ruling.
Consequently, in the beginning of 1999 the Prosecutor General (Rigsadvokaten) found that all cases concerning the 1989 Act should await the outcome of the cases pending before the Supreme Court.
The decision to adjourn the present case in accordance therewith was taken formally by the High Court on 12 April 1999.
In the test-cases, on 22 August 2000 the Supreme Court decided not to refer the cases to the Court of Justice for a preliminary ruling and on 16 February 2001 the Supreme Court passed judgments, published in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2001, pp. 1046 and 1056 (see Pedersen and Pedersen v. Denmark cited above).
On 6 April 2001 the Prosecutor General forwarded a letter to the Regional Public Prosecutors and others stating that the adjourned cases could now proceed.
On 24 April 2001 the Regional Public Prosecutor requested the High Court to set down the applicant’s cases for trial, however, since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming, the Regional Public Prosecutor requested that the case was not scheduled before September 2001.
On 10 September 2001 the High Court scheduled the trial for 19 and 20 March 2002.
On 12 December 2001 the Prosecutor General procured guidelines to the prosecution (Meddelelse nr. 3/2001) on how to go about with this kind of criminal cases and which sentences to propose.
On 22 January 2002 counsel informed the High Court that the applicants wished to change counsel, namely to the lawyer who had represented the defendants (Pedersen and Pedersen) before the Supreme Court.
On 7 February 2002 the applicants’ new counsel forwarded a request to the Regional Public Prosecutor of Aalborg for the production of 18 additional witnesses and a proposal that the trial be postponed.
In a letter of 11 March 2002 to the High Court counsel made various submissions in favour of adjourning the case, inter alia that he maintained his request for additional evidence and that the case ought to await the decision of the Court in the case Pedersen and Pedersen v. Denmark (cited above).
In spite of objections by the Regional Public Prosecutor, on 14 March 2002 the High Court decided to adjourn the case. Instead a preparatory hearing was held on 19 March 2002, during which counsel’s request for the production of additional evidence was refused. The trial was listed to take place on 24 and 25 June 2002.
The applicants’ request for leave to appeal against the High Court’s decision of 19 March 2002 to the Supreme Court was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 7 May 2002.
By judgment of 25 June 2002 the High Court of Western Denmark upheld the applicants’ convictions, but partly amended the sentences to be imposed. Thus, the first applicant was sentenced to pay a fine of 5,000 Danish kroner (DKK) and her profit estimated to DKK 1,150,000 was confiscated; the second applicant was fined of DKK 285,000; and the City Court’s imposition of weekly fines was quashed.
The applicants’ complaint that the length of the proceedings had exceeded a reasonable time was rejected by the High Court stating inter alia:
“Since the issuing of the indictment in 1993, the progress of the case has been influenced inter alia by the fact that the case during longer periods had to await the outcome of other similar cases, including cases which were finally determined by the Supreme Court (Højesteret). [Having regard thereto], the length of the proceedings did not breach Article 6 § 1 of the Convention on Human Rights as to a trial within a reasonable time.”
On 3 July 2002 the applicants requested leave to appeal against the High Court judgment to the Supreme Court. In support thereof they maintained, inter alia, that the length of the proceedings was in violation of Article 6 § 1 of the Convention. Their request was refused by the Leave to Appeal Board on 13 August 2002.
B. Relevant domestic law
The Administration of Justice Act provides in as far as relevant:
Section 840, subsection 1
The High Court notifies the Regional Public Prosecutor of the scheduling of the trial, and informs [him or her] and the accused about assignment of counsel [if any]. The information to the accused thereon may be given through the Regional Public Prosecutor in connection with the serving of the summons.
The applicants complain under Article 6 § 1 of the Convention that the criminal charges against them were not determined within a reasonable time.
The applicants complain that the proceedings in their case had exceeded a reasonable time, within the meaning of Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of ...any criminal charge against him, everyone is entitled to a fair ...hearing within a reasonable time by [a] tribunal...”
The Government’s objection.
The Government claim that the applicants have failed to exhaust domestic remedies because they failed to request that the courts schedule the case for trial on the evidence available, which pursuant to section 840 of the Administration of Justice Act they could have done at any time during the proceedings. In support thereof, the Government have submitted two domestic cases concerning a prosecutor’s request as to the scheduling of the trial: one in which of the High Court of Eastern Denmark passed a decision on 2 April 1996, unpublished; and one in which the Supreme Court passed a decision on 13 January 2004, also unpublished. Thus, the Government maintain, the said provision can be used to induce the court to set down the case for trial and is accordingly an effective remedy to bring the criminal proceedings to an end.
The applicants disagree.
As to the question whether the applicants have exhausted domestic remedies, the Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see e.g. Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.).
The Court recalls that the burden of proving the existence of an effective and sufficient remedy lies upon the State invoking the rule (see among others Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38 and Susini and others v. France (dec.), no. 43716/98, 8 October 2002).
In the cases Ohlen v. Denmark, no. 63214/00, decision of 6 March 2003, and Pedersen and Pedersen v. Denmark, no. 68693/01, decision of 12 June 2003, the Government also invoked section 840 of the Administration of Justice Act, but failed to provide the Court with any domestic case-law to show the possibility of an request pursuant to the provision in question being either preventative of further delay, or giving adequate redress (see Kudla v. Poland, cited above, § 159 and Matthies-Lenzen v. Luxembourg, no. 45165/99, (dec.), 14 June 2001). Thus, the Court had to limit itself to a literal understanding of the invoked provision and found that the Government had not discharged the onus on them to show that an effective domestic remedy existed, which has acquired the requisite degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention.
No claim has been made that Danish law contains remedies which had been specifically designed or developed to provide a remedy in respect of complaints of length of criminal court proceedings, whether preventative or compensatory in nature, but in the present case the Government have invoked domestic case-law, namely one case in which the High Court of Eastern Denmark pronounced a decision on 2 April 1996, unpublished; and one in which the Supreme Court pronounced a decision on 13 January 2004, also unpublished, which in the Government’s view shows that section 840 of the Administration of Justice Act can be used to induce the court to set down the case for trial and that this is accordingly an effective remedy to bring the criminal proceedings to an end.
The Court need not rule in general whether section 840 of the Administration of Justice Act as claimed by the Government is a remedy, which depending on the circumstances of a case, should be exhausted, for example where a court refuses to terminate the pre-trial proceedings although the case according to the applicant is ready for trial, or fix court hearings with shorter intervals in order to speed up the trial.
Moreover, in the present case the length of the proceedings was primarily caused by the various adjournments awaiting the outcome of the so-called test-cases whose outcome most likely would have had significant influence on the charges against the applicant, and maybe to the extent that they should have been acquitted.
In the Court’s opinion, the Government have not shown that section 840 of the Administration of Justice Act would in such circumstances have been an effective remedy, which the applicants should have exhausted for the purposes of Article 35 § 1 of the Convention.
Finally, the Court notes that the applicants did complaint about the length of the proceedings to the Leave to Appeal Board, when on 3 July 2002 they applied for leave to appeal to the Supreme Court against the High Court judgment of 25 June 2002. Also, it notes that the High Court’s judgment became final, when on 13 August 2002 the Leave to Appeal Board refused to grant the applicants leave to appeal. Thus, even assuming that the applicants’ request for leave to appeal against the High Court’s judgment related specifically to the length-of-the-proceedings-issue and that such a request may be considered an effective remedy (see, among others, Delanghe v. Belgium (dec.), no. 49716/99, 18 September 2001, and mutatis mutandis, Ohlen v. Denmark (striking out), no. 63214/00, 24 February 2005 and Graaskov Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X), the applicants have already made use of it.
Consequently, the Government’s objection must be rejected.
As regards the alleged breach of Article 6 § 1 of the Convention.
1. The parties’ submissions
The Government maintained that based on an overall assessment and in the light of the specific circumstances of the case, the criminal charges against the applicants were determined within a reasonable time as prescribed by Article 6 of the Convention. They considered that the case were to some extend complex due to problems in law as well as procedure, and that the applicants to a considerable extent had been a contributory cause to the length of the proceedings. As to the latter they recalled, among other things, that twice the applicants changed counsel, and that the police and the prosecutor had to assess and extend the charges against the applicants several times after the first indictment had been filed with the City Court because the applicants continued to exceed the fixed feed quotas.
With regard to the conduct of the authorities the Government maintained that it could not give rise to criticism that the City Court and the High Court decided to adjourn the criminal proceedings and await the outcome of pending test-cases since the latter were relevant and raised questions of principle, inter alia as to whether the 1989 Act was anti-competitive and therefore contrary to the EC treaty, whether it was contrary to the Constitution, whether it should have been notified to the European Commission, and whether the cases had to be referred to the European Court of Justice for a preliminary ruling.
The applicants contested that the proceedings were complex and noted that there were no EU-law questions or dispute in their case. Also, they contested that any delay could be attributed to them and submitted that the Government have failed to substantiate this allegation.
With regard to the conduct of the authorities the applicants maintained that the duration of the proceedings before the City Court and the High Court had been excessive, and that there had been several periods of unacceptable inactivity. In their view, two factors had caused these unreasonable delays; the constant adjournment of their case pending the outcome of corresponding cases and alleged lack of resources in the Danish court system.
2. The Court’s assessment
As regards the alleged breach of Article 6 § 1 of the Convention it is undisputed that the proceedings commenced on respectively 17 and 18 November 1993 when the applicants were interviewed by the police and charged with offences against the Act on freshwater fish farms of 5 April 1989 and that the proceedings ended on 13 August 2002, when the Leave to Appeal Board refused to grant the applicants leave to appeal to the Supreme Court. Thus, the total length of the proceedings, which the Court must assess under Article 6 § 1, was almost eight years and nine months.
According to the Court’s case-law, the reasonableness of the length of the proceedings 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 before which the case was brought (cf. Pélissier and Sassi v. France [GC] no.25444/94, § 67, ECHR 1999-II).
(a) Complexity of the case
The applicants have alleged that there were no EU-law issues involved in their case. The Court notes, however, that on appeal to the High Court the applicants’ counsel requested information from the prosecution as to whether the 1989 Act had been notified to the European Commission, since in the negative he would request a preliminary reference to the European Court of Justice. Furthermore, this issue and other issues of some complexity were dealt with in the various test-cases, which were clearly relevant to the applicants’ case. Moreover, frequently the police and the prosecutor had to assess, re-assess and extend the charges against the applicants because they continued to exceed the fixed feed. Accordingly, the Court considers that certain features as to law and procedure were complex and time-consuming
(b) Conduct of the applicants
The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (e.g. Humen v. Poland, no. 26614/95, § 66, 15 October 1999). It notes that the applicants do not appear to have been very much involved in the procedural disputes during the proceedings concerned. However, it follows from the case-law that they are nevertheless to be held responsible for the possible delays caused by their representatives (see amongst others Capuano v. Italy, judgment of 25 June 1987, Series A no. 119, § 28 and A. and Others v. Denmark, judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, § 74).
The Court observes that the applicants, being represented by counsel, in January 1994 did not object to the adjournment of their trial before the City Court in order to await the outcome of a pending test-case, and that they did not at any time object to the awaiting of the other test-cases, of which the last was terminated in November 1996.
Moreover, on 8 July 1997 the applicants retained a new counsel, who shortly thereafter requested an adjournment of the case in order to go through the material and to obtain an expert opinion on the confiscation amount. His request was granted. Therefore, and due to counsel’s engagement elsewhere, the trial had to be rescheduled to commence 27 October 1998 instead of 15 October 1997.
Also, before the High Court the applicants did not object when on 12 April 1999 their case was adjourned awaiting the two test-cases that were pending before the Supreme Court. In those cases the two defendants had maintained that the relevant Act lacked legal authority because the European Commission had not been notified of it as prescribed by a Council Directive; thus, exactly the same issue as the applicants had invoked in their case before the High Court.
Furthermore, after the Supreme Court had passed judgments in the test-cases on 16 February 2001, the applicants did not at any time object to their trial being scheduled on 19 and 20 March 2002. On the contrary, having changed counsel once more, on 7 February and 11 March 2002 the latter made various submissions in favour of adjourning the case, resulting in the commencement of the trial being rescheduled from 19 March 2002 until 24 June 2002.
Therefore the applicants were to a considerable extent responsible for the protracted nature of the proceedings.
(c) Conduct of the national authorities
The Court notes that the investigation period leading to the first indictment being filed lasted approximately one month which cannot be criticised.
Before the City Court the trial against the applicants lasted from 20 December 1993, when the first indictment was submitted, until 19 November 1998, when the judgment was pronounced, thus almost five years. Of this period, almost three years passed in order to await the outcome of three test-cases on the 1989 Act, which were pending before other judicial instances. In the Court’s view, when assessing the relevance and reasonableness of an adjournment of a criminal trial pending the outcome of another case, be it a test-case or not, it must be taken into account what is at stake for the persons involved. Also, since adjournment of criminal proceedings in general have a serious impact to the detriment of the indicted, the progress of the case which outcome is awaited, should be monitored thoroughly by the court which decides to adjourn the criminal trial. Finally, as to test-cases which are considered to be of significant importance to pending criminal proceedings, the Court finds it incumbent on the responsible authorities to proceed with such as diligently as possible (see, among others, Pedersen and Pedersen v. Denmark, cited above, § 46).
Turning to the facts of the present case, the Court reiterates that the test-cases concerned the legal authority of the 1989 Act. Thus, had the outcome of any of the test-cases turned out in favour of the relevant indicted freshwater fish farmer, it would most likely have had significant influence on the charges against the applicants, and maybe to the extent that they should have been acquitted. Also, the Court reiterates that no coercive measures were imposed on the applicants while their trial was adjourned. In addition, it must be concluded that they did not at any time object to the extended prolongation. In these specific circumstances, the Court is satisfied that the adjournment was relevant and reasonable.
In these circumstances the Court finds that the proceedings before the City Court did not disclose any periods of unacceptable inactivity for which the national authorities can be blamed.
The proceedings before the High Court lasted from 20 November 1998 until 25 June 2002, thus approximately three years and seven months. Of this period, almost two years passed in order to await the outcome of the two test-cases pending before the Supreme Court in which the defendants had maintained that the relevant Act lacked legal authority because the European Commission had not been notified of it as prescribed by a Council Directive. Noting that the applicants had invoked exactly the same issue in their case before the High Court, the Court is satisfied that the adjournment was relevant and reasonable.
Also, the Court notes that despite the High Court’s scheduling of the trial to take place on 19 and 20 March 2002, on 7 February 2002 the applicant’s counsel proposed that it be postponed. His request was granted and, thus, the trial took place three months later, namely on 24 and 25 June 2002.
In these circumstances the Court finds that the proceedings before the High Court did not disclose any periods of unacceptable inactivity for which the national authorities can be blamed.
The proceedings before the Leave to Appeal Board lasted from 3 July until 13 August 2002, which cannot be criticised.
Therefore, making an overall assessment of the complexity of the case, the conduct of all concerned as well as the total length of the proceedings, the latter did not, in the Court’s view, go beyond what may be considered reasonable in this particular case.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
T. DALSGAARD AND J. DALSGAARD v. DENMARK DECISION
T. DALSGAARD AND J. DALSGAARD v. DENMARK DECISION