AS TO THE ADMISSIBILITY OF
Application no. 48470/99
by Leif Graaskov JENSEN
The European Court of Human Rights, sitting on 20 September 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr A.B. Baka,
Mr P. Lorenzen,
Mrs M. Tsatsa-Nikolovska,
Mr E. Levits,
Mr A. Kovler,
Mr V. Zagrebelsky, judgesNote,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 29 March 1999 and registered on 31 May 1999,
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, Leif Graaskov Jensen, is a DanishNote national, born in 1947 and living in Frederikssund, Denmark.
The respondent Government are represented by their agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 October 1994 the applicant, who at that time ran a small law firm with only a secretary employed, turned himself in to the police. He confessed that over the last couple of years he had committed fraudulent conversion regarding his clients' accounts, and cheque fraud, but he was uncertain of the exact amount appropriated.
On 5 October 1994 the applicant requested the Probate Court to open bankruptcy proceedings against him.
In the period between 14 October 1994 until 22 February 1995 the applicant assisted in clearing up the case by attending to interviews 17 times with the purpose of reviewing and reconstructing his accounts.
As part of the investigation the police asked accountants to draw up statements of account for the period 1991 to 1994 concerning the applicant's law firm.
Draft accounts were submitted on 10 January and 1 March 1995 showing that the applicant had committed fraudulent conversion for an amount of approximately 2.477.112 Danish kroner (DKK).
On 22 May, 15 June and 19 June 1995 the police asked the applicant for an interview to discuss the draft accounts. The applicant replied that for various reasons he could not attend an interview until 4 August 1995. However, on 1 August 1995 the applicant informed the police that he could not attend an interview until 25 August 1995. During this interview the applicant contested some of the items in the draft accounts for 1994. Thus, it was agreed that the applicant should hand in a list of the items he could agree on, and a final interview was scheduled to take place on 15 September 1995. However, on 13 September and 5 October 1995 the applicant requested the interview postponed. On 25 October 1995 the applicant appeared for the interview and the draft accounts for 1994 were reviewed. As to the draft accounts for 1991-1993 the applicant made a reservation since he had not yet received them. In April 1996 the police summoned the applicant to an interview to obtain his position on the draft accounts for 1991-1993. During this interview, which was conducted on 22 May 1996, the applicant requested an adjournment of 2 weeks to examine a few remaining matters and to make his own statement of fraudulent conversion for each year. On 18 June and 10 July 1996 the police reminded the applicant that his statement thereon had not been received. On 27 July 1996 the applicant sent part of the statement and notified the police that the remainder could be expected on 31 July 1996. Not having received the remainder, on 2 August 1996 the police informed the applicant that the audit material would be completed on the basis available and that the case would then be submitted to the courts since the applicant had disregarded the deadlines fixed by the police on several occasions. Subsequently, having completed his statement, on 30 September 1996 the applicant was interviewed by the police for the last time.
The final accounts were submitted on 15 October 1996 showing that that the applicant had committed fraudulent conversion in the amount of 2.350.169 DKK.
The case was handed over to the prosecution on 14 November 1996.
On 28 January 1998 the prosecution requested the City Court of Frederikssund (Retten i Frederikssund) for a pre-trial hearing and submitted a provisional indictment on the basis of the draft accounts maintaining that the applicant had committed fraudulent conversion for an amount of approximately 2.477.112 DKK.
The hearing was held on 4 March 1998 during which the applicant clarified his position with regard to the provisional indictment, notably that he could only admit having committed fraudulent conversion for an amount of maximum 2.266.076 DKK.
Hereafter the case was adjourned at the request of the prosecution until 3 June 1998 pending submissions to the Prosecutor General concerning the claim for depriving the applicant his right to practise law.
By judgment of 11 June 1998 the applicant was convicted in accordance with his own confession and sentenced to two years' imprisonment. However, the sentence was suspended on the ground of the length of the proceedings, although the court expressly stated that Article 6 § 1 of the Convention had not been violated. In addition the applicant was deprived of his right to practise law.
The prosecution appealed against the sentence on 23 June 1998. Subsequently, on 26 November 1998, the High Court of Eastern Denmark (Østre Landsret) reduced the sentence to one year's imprisonment, however, without suspension. In its judgment the High Court stated inter alia:
“[The High Court agrees] that the Convention on Human Rights cannot be considered infringed.
Imprisonment for 1½ years would normally be a correctly meted-out sentence for the criminal offences committed. However, the length of the proceedings, especially in the period from 14 November 1996 to 28 January 1998, and the applicant's co-operation in the investigation call for a mitigation of the sentence.
Accordingly, the sentence is reduced to 1 year's imprisonment.
Having regard to the character and extent of the crime, committed during a period extending 3 years and 9 months, the sentence cannot not be suspended, notwithstanding the length of the proceedings and the [applicant's] favourable personal conditions...”
The applicant applied for leave to appeal to the Supreme Court (Højesteret), but this was rejected by the Leave to Appeal Board (Procesbevillingsnævnet) on 1 February 1999.
The applicant complains, under Article 6 § 1 of the Convention, that the criminal charge against him was not determined within a reasonable time.
Complaining of the length of the criminal proceedings the applicant invokes Article 6 § 1 of the Convention which in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government's preliminary objections.
The Government submit that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention since due to inter alia the length of the proceedings the High Court reduced the applicant's sentence with 6 months in comparison with a sentence, which under normal circumstances would have been imposed i.e. 1½ years' imprisonment.
Thus, the Government maintain, the High Court both recognised in substance that the proceedings took a long time and provided redress thereof in relation to the Convention. The fact that the High Court expressly established that there was no basis for finding a violation of the Convention does not alter the fact that at the same time the length of the proceedings was given a decisive importance in the mitigation of the sentence.
The applicant contests that the national authorities have redressed the alleged breach of the Convention. In the first place, he points out that neither the City Court nor the High Court acknowledged a breach of the Convention. On the contrary, both instances expressly stated that Article 6 § 1 could not be considered infringed. Secondly, the applicant contests that he was provided adequate redress for the violation of Convention by the High Court's sentence and he contests that under normal circumstances he would have been sentenced to 1 1/2 years' imprisonment. In this respect he alleges that the High Court of Eastern Denmark is well known for metering out too severe sentences, and he stresses that in any event it is normal to mitigate a sentence if a convicted has turned himself in, co-operated in the investigation or in general has favourable personal conditions. In his opinion, full compensation could have been established only if the High Court had sentenced him to 1 year's imprisonment on suspension.
As to the question whether the applicant may continue to claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against him, the Court recalls that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, § 66 and Beck v. Norway, no. 26390/95, 26 June 2001, §27).
Applying these principles in the present case, the Court notes that the High Court expressly rejected the applicant's claim that the proceedings had exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention.
The Court considers that in principle such a clear statement can scarcely comply with the requirement that the national authorities acknowledge either expressly or in substance the failure to observe the reasonable time requirement. To find that the national authorities nevertheless in substance did acknowledge a violation of the Conventions seems in the Court's view to increase the demands to the clearness of the circumstances, from which such an acknowledgement might be deduced.
In the present case the High Court considered the length of the proceedings as one mitigating circumstance, the applicant's co-operation in the investigation another, and on the basis of both the sentence was reduced with 6 months. It is not clear how many months were attributable to the length of the proceedings alone. At the same time the High Court altered the City Court's finding that the sentence could be suspended, “notwithstanding the length of the proceedings and the applicant's favourable personal conditions”.
Having regard thereto, the Court is not convinced that the national authorities, in spite of their initial finding that the Convention could not be considered violated, nevertheless in a sufficiently clear way acknowledged the failure to comply with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention and afforded the applicant redress therefor by reducing the sentence in an express and measurable manner.
Accordingly, the Court finds that the applicant may claim to be a victim of a violation of his right to trial within a reasonable time as guaranteed by 6 § 1 of the Convention. It follows that the Government's preliminary objections must be rejected.
The alleged breach of Article 6 § 1 of the Convention.
It is not in dispute that the period to be considered began on 4 October 1994, when the applicant turned himself in to the police and ended on 1 February 1999, when the applicant's request for leave to appeal to the Supreme Court was rejected. Thus, they lasted 4 years, 3 months and 28 days.
The Government maintain that the criminal charge against the applicant was determined within a reasonable time within the meaning of Article 6 § 1 of the Convention. In this respect the Government submit that the proceedings raised problems in fact, which necessitated accounts. Moreover, the Government stress that due to the applicant's conduct, the proceedings were delayed by approximately 10 months. Finally, the Government consider that the period of inactivity from 14 November 1996 until 28 January 1998 cannot entail criticism of the length of the proceedings in general, as the remaining part of the case was processed with exemplary rapidity.
The applicant does not contest that he was partly responsible for delaying the proceedings for 5 month in 1995 and 5 month in 1996. However, he does not agree with the remainder of the Government's submissions.
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.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Erik Fribergh Christos Rozakis
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JENSEN v. DENMARK DECISION
JENSEN v. DENMARK DECISION