AS TO THE ADMISSIBILITY OF
Application no. 49126/99
by Anders WEJRUP
The European Court of Human Rights (First Section), sitting on 7 March 2002 as a Chamber composed of
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mr E. Levits,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 29 December 1998, and registered on 25 June 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 is a Danish national, born in 1952 and living in Veksø, Denmark. He is represented before the Court by Mr A. Hvass, a lawyer practising in Copenhagen. The respondent Government are represented by their Agent Mrs Nina Holst-Christensen, the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1988 the applicant was appointed managing director of finance in Nordic Feather Factory Ltd Holding Company (Nordisk Fjerfabrik Holding Aktieselskab), henceforth called NFHA, the ultimate holding company in a holding group, consisting of more than 50 companies, at locations throughout the world. NFHA experienced financial difficulties and suspended its payments in November 1990. It went bankrupt in March 1991.
In this connection a police investigation was carried out which resulted in the criminal prosecution of 4 of the top executives in NFHA, including the applicant, and in addition 3 accountants. The applicant was charged with aggravated fraud and offences concerning misleading accounting in a court session held on 18 February 1991 in the Copenhagen City Court (Københavns byret).
Investigations were carried out in Sweden, England, Wales, the Isle of Man, Jersey, USA, the Netherlands, Switzerland, Liechtenstein, Hong Kong and Singapore.
As part of the investigations, the police asked accountants to draw up statements of account for the period 1985 until 1990. The accounts were submitted on 17 September and 26 November 1993, and as they were comprehensive the expenses incurred thereby amounted to more than 17 million Danish kroner (DKK).
On 23 September 1993 the prosecution submitted an indictment consisting of eight counts with which the applicant, the above three other top executives in NFHA, as well as the three accountants were charged. Counts 1-3 concerned the three other top executives, counts 4-7 concerned the applicant only and count 8 concerned the three accountants.
Count number 4 concerned, inter alia, the Holding Company’s accounts for the period 1 April 1989 until 31 March 1990, which were sent to the Copenhagen Stock Exchange, and which the applicant was accused of having manipulated, thereby converting a deficit of DKK 544 million, to a surplus of DKK 55 million, and the net capital of DKK 122 million to DKK 886 million. Furthermore, the net capital contained fictitious assets and questionable transactions from previous years amounting to at least DKK 598 million.
Preliminary court sessions were held in October and November 1993 concerning the mental health of one of the top executives. Subsequently his case was separated from the others.
At a hearing on 10 December 1993 the scheduling of the trial was determined to start on 22 November 1994. Due to its volume it was expected that the trial would last 100 days.
During the scheduling period several pleadings were submitted in order to clarify procedural questions, including objections to the statements of account and the appointment of a co-counsel to one of the co-accused top executives, and hearings on these issues were held on 15 December 1993, 4 March 1994 and 11 October 1994.
The trial commenced on 22 November 1994, it was conducted two days a week, and lasted for more than 14 months. The applicant, assisted by counsel, the co-accused and 11 witnesses were heard. The documentary evidence consisted of the above statements of account, an opinion of 20 February 1995 from the Association of Chartered Accountants (Foreningen af Statsautoriserede Revisorer) and a considerable amount of other documentary evidence, which was presented in court during its sessions. The court records ran to approximately 800 pages.
By judgment of 20 August 1996, which ran to 220 pages, the City Court of Copenhagen convicted the applicant and sentenced him to 2 years’ imprisonment. In addition, for a period of 5 years he was deprived of his right to establish or to become a manager and/or a member of a directors’ board in a limited company, or in a company or an association which would require public approval. Also, he was ordered to pay costs in the amount of DKK 400,000. The two co-accused top executives were sentenced to 4 years’ and 2½ years’ imprisonment respectively, deprived of the above right as well, and ordered to pay costs. The accountants were each sentenced to fines equivalent to DKK 40,000, and each ordered to pay costs in the amount of DKK 40,000.
As regards the order to pay costs the City Court stated in as far as relevant:
“... the prosecution has defrayed expenses in the amount of DKK 17,174,575 to the firm of accountants ... for auditing assistance during the case, including preparation of Audit Report I and II. When determining the share of the legal costs payable by the defendants, the court must make a distribution between the convicted offenders and the Treasury taking into account the proportion between the charge and the outcome of the case. Furthermore, in the light of the quite extraordinary level of legal costs in this case, the defendants’ circumstances must be particularly taken into account together with the fact that the consolidation of the cases against [the applicant and the two top executives] and the cases against the accountants should not be detrimental to the defendants ...”
On 28 August 1996 the applicant appealed against the judgment to the High Court of Eastern Denmark (Østre landsret). Also the co-accused top executives appealed against the judgment, and the prosecution appealed against the judgment in respect of all the accused.
Preliminary court sessions were held on 14 October 1996 and 10 February 1997 during which requests from two of the co-accused for a co-counsel were decided, and discussions went on as to the scheduling of the trial and practical problems related thereto. The High Court offered the parties to sit three days a week, but in accordance with counsels’ recommendation, endorsed by the prosecutor, it was agreed that only two weekly hearings were to be held. As the permanent courtroom was considered too small it was agreed that the High Court should rent a larger room. The trial, which was expected to last for 50 days, was scheduled to commence on 5 November 1997. Further preliminary hearings were held on 13 August and 31 October 1997 concerning procedural matters such as the use of the statements of account, whether the prosecution’s appeal relating to one of the co-accused was time-barred, and whether an assistant employed for the case by the prosecution was partial.
The trial in the High Court commenced on 5 November 1997, it lasted almost 10 months and was terminated by judgment of 18 September 1998 in which the court upheld the applicant’s conviction and sentence, but reduced the costs that the applicant had to pay to DKK 200,000. Also the co-accused top executives’ conviction and sentences were upheld, but their shares of the costs were reduced as well. Two of the accountants were convicted to a greater extent than before the City Court, one to a lesser extent.
Before the High Court the applicant and all the co-accused complained that Article 6 § 1 of the Convention had been violated due to the length of the proceedings. In its judgment the High Court stated, inter alia, that a duration of 7 years and 7 months in a case such as the present one with such an extraordinary extent and considerable complexity did not in itself amount to a violation of Article 6 § 1 of the Convention. Furthermore, it approved of the prosecution’s decision to join the cases against the accused with the aim of economising the legal process. However, in joining the cases the court found that the proceedings had been unduly prolonged in violation of Article 6 § 1 of the Convention in respect of the three accountants who had only played a minor role in the criminal activities. Thus, as to one accountant, his sentence was upheld, as to the remaining two their sentences were reduced, and they were all exempted from paying costs. As regards the applicant and the co-accused top executives the court held:
“As to the question of whether the case as such should have been terminated earlier, the court notes first of all that the investigation was carried out in respect of all counts at the same time and there is no reason to criticise its extent or duration.
As to the court proceedings they were arranged in agreement with counsels for the defence in both court instances, and there is no reason to criticise the duration hereof or the periods spent on the deliberations and the drawing up of the judgment.
Finally as to the period of scheduling i.e. the period from when the case was brought before the court until the trial actually commenced, this amounted to 1 year and 2 months both in the City Court and in the High Court. Of course this period can be expected to last longer in complex cases with several accused than in other cases, but in the present case the length of this specific period may also be imputed to the lack of resources in the court system.
Making an overall assessment of the lengthy proceedings, which only to a limited extent can be imputed to ‘dead periods’, namely the excessive periods of scheduling, the court does not find a violation of Article 6 § 1 of the Convention in relation to [the two named top executives] or the applicant, who are accused and convicted of aggravated fraud.”
As regards the sentence imposed on the applicant and the two co-accused top executives the High Court held inter alia:
“the High Court can concur entirely with ...the City Court ... regarding the penal merits of the counts adjudicated and the other circumstances emphasised in the sentencing. In this connection, the High Court states that the fraud is extremely serious and that - apart from the fact that it was committed under heavy pressure from the dominant Chairman of the Board of Directors - mitigating circumstances are scarce. On this basis it might be considered to increase the sentences somewhat for [the applicant and the two co-accused top executives], but in the view of the burden on [these] caused by the length of the proceedings, the court approves the prison sentences ...”
As regards the order that the applicant pay costs the High Court stated:
“... it is decided, partly in view of the statement in the City Court judgment, partly and particularly in view of the statement above regarding the length of the proceedings ... [that the applicant shall pay DKK 200,000 to the Treasury]“
On 14 December 1998 the Leave to Appeal Board (Procesbevillingsnævnet) rejected the applicant’s request for leave to appeal to the Supreme Court (Højesteret).
The applicant complains under Article 6 § 1of the Convention that the proceedings were not fair and that the criminal charges against him were not determined within a reasonable time.
Complaining of an unfair trial and the length of the proceedings the applicant invokes Article 6 § 1, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... ”
A. Fairness of the proceedings
The applicant submits that his sentence was meted out on the basis of the statements of accounts, containing conclusions, which objectively were based on a wrong application of the law. Thus, he considers that he did not receive a fair trial.
The Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Court refers, on this point, to the established case-law of the Convention organs (cf. Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 25, § 45).
The Court has not, however, found any substantiated allegations in the applicant’s submissions, which could lead it to conclude that the proceedings were unfair and that the courts reached their decision unfairly.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
B. The length of the proceedings
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 the length of the proceedings the High Court partly refrained from increasing the prison sentence imposed by the City Court, and partly substantially reduced the legal costs imposed by the City Court. Accordingly, in the Government’s view, although the High Court stated in its judgment that there was no basis for finding a violation of the Convention, in reality it both recognised in substance that the proceedings had taken a long time and provided redress thereof.
The applicant notes the rhetorical impossibility of acknowledging a violation in substance on the basis of an expressed finding of no violation. Furthermore, he contests that the fact that the High Court did not increase his sentence can be accepted as such an acknowledgement in substance or as a mitigation of his sentence.
The applicant contests also that the reduction of legal costs provided him sufficient redress, and maintains that according to the Danish practice the finding of a violation normally brings about the suspension of the sentence.
The Court recalls, 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, 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.
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 clarity of the circumstances, from which such an acknowledgement might be deduced (see Graaskov Jensen v. Denmark (dec.), no. 48470/99, 20 September 2000, to be published).
It is true that the High Court stated that the fraud was extremely serious and that - apart from the fact that it was committed under heavy pressure from the dominant Chairman of the Board of Directors - mitigating circumstances were scarce, and on this basis found that it might be considered to increase the sentences somewhat for the applicant (and the two co-accused top executives), but that the High Court apparently abstained therefrom in view of the burden the length of the proceedings had caused.
However, at the same time, the High Court expressly stated that it concurred entirely with the comments stated by the City Court concerning the penal merits of the counts adjudicated and the other circumstances emphasised in the sentencing (which did not entail considerations about the length of the proceedings).
Moreover, the Court notes that in finding a violation of the Convention in respect of the three accountants, the High Court mitigated the sentences as such as regards two accountants, and upheld the sentence with regard to one despite the fact that this accountant was convicted to a greater extent than before the City Court, in addition to exempting them from paying costs.
When reducing the applicant’s and the co-accused share of costs, the High Court partly took into account the proportion between the charge and the outcome of the judgment and, in the light of the quite extraordinary level of legal costs in the case, all the accused’s circumstances together with the fact that the consolidation of the cases against the applicant and the two top executives and the cases against the accountants should not be detrimental to them. However, the High Court also partly and particularly took into account its statement as to the length of the proceeding.
As regards the applicant it is unclear, how much of the reduction of the costs was attributable to the length of the proceedings alone.
Having regard to the above, the Court is not convinced that the national authorities, in view of their initial finding that the Convention could not be considered violated, nevertheless in a sufficiently clear way acknowledged a failure to comply with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention. Neither is the Court convinced that the national authorities afforded the applicant redress therefor by reducing the sentence in an express and measurable manner or exempted the applicant from paying such an amount of costs that it constitutes a redress in relation to the alleged violation of the Convention thereby precluding the examination of the application.
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 Article 6 § 1 of the Convention. It follows that the Government’s objections must be rejected.
The alleged breach of Article 6 § 1 of the Convention.
As regards the period to be considered it is undisputed that the proceedings commenced on 18 February 1991 when the applicant was charged in the City Court, and ended on 14 December 1998 when the Leave to Appeal Board rejected the applicant’s request for leave to appeal to the Supreme Court. Thus, the total length of the proceedings, which the Court must assess under Article 6 § 1 of the Convention, was 7 years, 9 month and 26 days.
From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to 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).
As to the complexity of the case the Government submit that the case was of quite extraordinary scope and considerable complexity.
The applicant finds that the individual offences were not specifically complicated whereas the provided evidence may be considered rather extensive, but that any complexity can be ascribed solely to the, in his view, unnecessary link of persons and issues.
The Court recalls that the scale and complexity of a criminal case concerning fraud, which often is compounded further by the involvement of several suspects, may justify an extensive length of the proceedings (see e.g. C.P. and others v. France, no. 36009/97, 18 October 2000, § 30, unreported and Hozee v. The Netherlands judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1102, § 52). In the present case the charges against the applicant of aggravated fraud and misleading accounting were connected with his role as appointed managing director of finance in a major limited holding company, consisting of more than 50 companies at locations throughout the world. Accordingly investigations were carried out in Sweden, England, Wales, the Isle of Man, Jersey, USA, the Netherlands, Switzerland, Liechtenstein, Hong Kong and Singapore. Moreover the statements of account for the period 1985 to 1990 were considered a necessary part of the investigation and their costs also indicate the complexity of the affair. Having regard to these circumstances the Court finds it clear that the investigations and the ensuing court proceedings were relevant, time-consuming and difficult. Thus, for the purposes of Article 6 of the Convention the case was undoubtedly of a complex nature.
The Court finds that the case does not disclose any appearance of the applicant having acted in a way, which inappropriately prolonged the proceedings against him.
As regards the conduct of the authorities and the courts, the Government submit that for litigation economy reasons it was undoubtedly appropriate to try the charges against all the six accused in the same proceedings. Had the proceedings been split up the same circumstances would have had to be presented, evidenced and argued both concerning special matters and more generally concerning the structure of the NFHA and its highly peculiar accounting practises.
The Government submit that due to the enormous scope of the case the trial lasted for more than 14 months in the City Court and almost 10 months in the High Court. The High Court actually offered the parties to sit three days a week, but all counsels recommended, with the prosecutor’s endorsement, that the trial was conducted only two days a week.
As to the trial scheduling periods the Government point out that it can be attributed inter alia to the large volume of the case. The Government recall that the applicant did not at any time seek to advance the scheduling dates. In addition, the Government recall that of the aggregate trial scheduling period of the case totalling two years and four months, only six months in both the City Court and the High Court can be considered inactive periods, i.e. from 11 march 1994 until 6 September 1994 and from 10 February 1997 until 13 August 1997. Otherwise no periods of inactivity exist. However, the Government point out, that short periods of inactivity do not as such fall foul of Article 6, and in view of all the factors to take into consideration in the present case, notably the considerably scope of the case, the length of the proceedings before the two court instances cannot be criticised. As regards the High Court’s statement concerning the resource problems of the courts, the Government maintain that supplying an authority with more resources can always reduce the length of proceedings of the authority. However, the crucial point must be whether the length of the proceedings can satisfy the requirement of Article 6 § 1 of the Convention, not whether the length of the proceedings could be reduced by a supply of resources.
The applicant submits that the proceedings were unnecessary prolonged due to the consolidation of his trial with that of the co-accused, especially that of the accountants, and that accordingly his case lay idle due to various considerations which only concerned the accountants.
Thus, the applicant maintains, the drafting of the statements of account and the answering of the questions put to the Association of Chartered Accountants were mainly irrelevant to his case and prolonged the investigation period substantially. He alleges that only 40 pages of the statements of account concerned the charges against him or was relevant for his case, and considering the alleged simplicity of this part of the case he finds a period of two years of investigation out of proportion.
As to the scheduling period before the City Court and the High Court the applicant considers that the case laid idle in relation to him from 23 September 1993 until 22 November 1994, and from 28 August 1996 until 5 November 1997, as the procedural questions dealt with in these periods before the City Court and the High Court, respectively, were brought by counsels for the other persons involved in the case.
Finally, as to the hearings the applicant submits that most of these did not concern the charges against him.
Conclusively, he maintains that serious delays in the proceedings were caused by not separating the cases and consequently had the contrary effect of the argument brought forward to justify the collective handling of the charges against all the accused, i.e. considerations of litigation economics.
As regards the conduct of the authorities and the courts, the Court recalls that the applicant was charged on 18 February 1991. The legal examination came to an end on 23 September 1993 when the prosecution submitted the indictment and sent the case to the City Court for adjudication. Consequently, the period of investigation by the police and the legal evaluation by the prosecution lasted 2 years and 7 months. The Court finds that the facts of the case do not disclose that the investigating authorities or the prosecution acted inappropriately or otherwise failed to conclude their duties with due diligence as from the moment of the applicant’s involvement.
As to the prosecution’s decision for litigation economy reasons to join the investigations, and subsequently the criminal trials in respect of the applicant and the co-accused, the Court recalls that the charges against the applicant of aggravated fraud and misleading accounting were connected with his role as appointed managing director of finance in a major limited holding company, consisting of more than 50 companies at locations throughout the world. The co-accused were top executives in NFHA and three accountants respectively. Thus, their roles were closely interconnected. Moreover, the Court recalls that the High Court took this aspect into account when assessing the reasonable time requirement, and that for each accused the proportionality thereof was decided on. Furthermore, the Court accepts the Government’s submission that to a great extent evidence concerning the general structure of the NFHA and its accounting practises, and also evidence concerning special matters, were relevant to all the accused. In these circumstances the Court finds that the consolidation of the cases was appropriate.
At a hearing on 10 December 1993 the scheduling of the trial was determined to commence on 22 November 1994. Due to its volume it was expected that the trial would last 100 days. Preliminary court sessions were held before the Copenhagen City Court in October, November and December 1993, and in March and October 1994. The trial commenced on 22 November 1994. Accordingly, the period from when the case was brought before the court until the trial actually commenced amounted to 1 year and 2 months. However, the Court recalls that during this period procedural questions were dealt with. Also, the Court takes into account that a scheduling of a trial of such magnitude depends not only on the courts; due regard is to be paid to counsels and their planning as well. Thus, in view of the expected duration of the trial, and the unavoidable difficulties, which have to be taken into consideration in a trial of such dimension and with six co-accused, the Court finds that such a period is not unreasonable.
The proceedings in the City Court ended on 20 August 1996 when the judgment was pronounced. Thus they lasted 1 year and 9 months. The Court recalls that the trial itself lasted more than 14 months. Under these circumstances the Court does not consider the above period excessive.
On 28 August 1996 the applicant appealed against the judgment to the High Court. At a hearing on 10 February 1997 the scheduling of the trial was determined to commence on 5 November 1997. The trial was expected to last 50 days. Preliminary court sessions were held before the High Court in October 1996, and in February, August and October 1997. The trial commenced on 5 November 1997. Accordingly, the period from when the case was brought before the court until the trial actually commenced amounted to 1 year and 2 months. However, with reference to the findings above concerning the period relating to the scheduling before the City Court, in view of the expected duration of the trial and the unavoidable difficulties which have to be taken into consideration in a trial with six co-accused, the Court does not find this period of 1 year and 2 months unreasonable either.
The trial in the High Court was terminated 10 months after its commencement by judgment of 18 September 1998. As the trial itself lasted almost 10 months the period does not disclose any unacceptable periods of inactivity.
Finally, the period from the High Court’s judgment until the Leave to Appeal Board rejected the applicant’s request for leave to appeal on 14 December 1998 lasted 3 months, which cannot be criticised.
In the above circumstances, and although the proceedings before the Copenhagen City Court, the High Court of Eastern Denmark and the Board of Leave to Appeal lasted a total of 5 years, 2 months and 21 days, they do not, in view of their magnitude, disclose to the Court such periods of inactivity which could bring the proceedings at variance with Article 6 § 1 of the Convention.
Therefore, making an overall assessment of the length of the proceedings they did not, in the Court’s view, go beyond what may be considered reasonable in the particular circumstances of the case. The applicant’s complaint does not therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Erik Fribergh Christos Rozakis
WEJRUP v. DENMARK DECISION
WEJRUP v. DENMARK DECISION