CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 13 October 1986, the following members being present:                        MM. J. A. FROWEIN, Acting President                          C. A. NØRGAARD                          E. BUSUTTIL                          G. JÖRUNDSSON                          G. TENEKIDES                          S. TRECHSEL                          B. KIERNAN                          A. S. GÖZÜBÜYÜK                          A. WEITZEL                          J. C. SOYER                          H. G. SCHERMERS                          H. DANELIUS                          G. BATLINER                      Mrs G. H. THUNE                      Sir Basil HALL                        Mr. H. C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 28 June 1983 by M.G. against Denmark and registered on 17 October 1984 under file No. 11207/84;   Having regard to:   -        the report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the Commission's partial decision of 7 October 1985;   -        the Commission's decision of the same day to bring the remainder of the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;   -        the observations submitted by the respondent Government on 17 January 1986.   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as submitted by the parties, may be summarised as follows.   The applicant is a Danish citizen, born in 1926.   He is an advocate by profession and lives at Virum, Denmark.   From 1973 and until his conviction by the Supreme Court in 1983 the applicant was a member of the Danish Parliament.   He is the founder of the Progress Party (Fremskridtspartiet).   On 30 January 1971 the applicant was interviewed on the Danish television.   In this interview he heavily attacked the Danish income-tax legislation.   The applicant maintains that from the day of the television transmission, he has been subjected to constant persecution by the authorities and those in power in Denmark who hold opposite views to his on matters of taxation.   He states that the mass media in Denmark have supported his opponents.   The police started investigating the applicant's activities on 6 March 1972 when the General Council of the Bar Association (Advokatrådet) filed a report with the Ministry of Justice, stating as its point of view that the applicant was systematically violating corporation laws in several, specified areas.   On 13 April 1972 the police obtained from the Copenhagen City Court (Københavns byret) a decision allowing them to search the applicant's office and home.   The search was carried out on 17 April 1972 and the applicant maintains that from that day his office and every piece of paper in it have been under surveillance by the police and the tax authorities.   In the beginning of July 1973 the Minister of Justice furthermore stopped granting the applicant leave to administer estates.   This situation, he states, scared away his clients and seriously affected his law business, causing a loss of approximately 200 million Danish crowns. Due to the persecution by the authorities he is today bankrupt, deprived of his right to exercise his profession and is living in a house put at his disposal through contributions from members of the party of which he is the founder.   The police investigation into the applicant's activities continued inter alia by questioning many of the applicant's clients.   He submits, however, that he was never himself at this stage of the proceedings in any noticeable way questioned about the charges brought forward and thus never got the chance to correct the distorted picture of the case, which was the basis for the subsequent indictment.   On 12 June 1974 the Danish Parliament lifted the applicant's immunity according to Article 57 of the Danish Constitution, enabling the prosecution to carry on with the case.   On 17 June 1974 the public prosecutor issued an indictment against the applicant in which he was charged inter alia with tax evasion, fraud and usury.   The proceedings commenced before the Copenhagen City Court on 7 October 1974.   Two lawyers, the advocate Philip Ingerslev and Professor Dr. Jur. Thøger Nielsen, were appointed by the Court to defend the applicant.   To the applicant's regret the latter was later "bullied from the case", as he puts it, to be replaced by Mr. Ebbe Suenson, advocate to the Supreme Court of Denmark.   The applicant requested a jury trial in accordance with Article 687 para. 2 sub-para. 3 of the Administration of Justice Act (retsplejeloven) as he maintained that the charges brought against him were of a political nature.   He requested in this respect that several ex-ministers and public officials be summoned to appear before the Court to give evidence.   The City Court, however, rejected the request on 21 October 1974 since the above persons' statements, in its opinion, would be irrelevant to the matter at issue.   The City Court furthermore rejected the applicant's request for a jury trial.   This decision was subsequently upheld by the Supreme Court (Højesteret) on 2 December 1974.   The trial before the City Court involved 202 court sessions. Originally 274 court sessions were scheduled but 72 were subsequently cancelled; one at the request of the defence lawyers, 23 by the Court and 48 at the request of the applicant pleading lawful absence on account of his duties in parliament and as chairman of the Progress Party.   Of the 202 court sessions the applicant attended, some were discontinued at his request and a large number were rescheduled to take place outside the usual working hours of the court.   Thousands of pages of documentation were produced.   However in spite of this the applicant maintains that nothing could hide the fact that this trial was merely a political persecution, staged by his political adversaries to obstruct his political work within Parliament and ultimately to bring about his political downfall.   On 17 February 1978 the City Court pronounced its judgment in the case.   From the more than 1200-page judgment, it appears that the applicant was convicted of having violated Article 13 para. 1 of the Tax Control Act (skattekontrolloven) in conjunction with Article 21 of the Penal Code (straffeloven), Article 75 No. 2 in conjunction with Article 74 para. 2 of the Income Tax Act (kildeskatteloven) and Arts. 163 and 296 para. 1 sub-para. 2 of the Penal Code.   He was fined 1.5 million Danish crowns and ordered to pay 1,986,712.65 Danish crowns in taxes as well as certain specified costs which exceeded 2.1 million Danish crowns.   On the other hand, he was acquitted of the fraud charges and certain charges based on Article 296 of the Penal Code. The Court did not comply with the prosecutor's request to revoke the applicant's licence to practise law.   On 24 February 1978 the prosecution appealed against the judgment to the Court of Appeal (Østre Landsret) demanding conviction in accordance with the indictment and a more severe sentence including the revocation of the applicant's licence to practise law.   The prosecution at a later stage changed the appeal so as only to concern a more severe punishment and the revocation of the licence whereas the charges of which the applicant had been acquitted by the City Court were dropped.   The applicant appealed against the judgment on 28 February 1978 requesting his acquittal on all counts.   The hearings before the Court of Appeal were set to commence on 4 September 1978.   In the meantime the applicant asked the President of the Court to appoint two new defence lawyers since he was not at all satisfied with the way they had conducted his defence so far.   In particular the applicant pointed out that the prosecution had used the time from the start of the trial before the City Court in 1974 until 9 May 1977 to produce evidence to the detriment of the applicant whereas his defence lawyers finished the case of the defence in one hour. Furthermore the applicant referred to the fact that the prosecution had found it necessary to appoint new prosecutors.   The President rejected the request and on 24 April 1978 appointed the same lawyers for the defence, as he found it unnecessary to burden new lawyers with getting acquainted with this bulky and complicated case and since the present ones were perfectly capable.   On 26 May 1978 the Ministry of Justice granted leave to bring the question of new lawyers before the Supreme Court which, however, on 6 June 1978 upheld the Appeal Court President's decision.   The hearings of the case before the Court of Appeal began on 4 September 1978 and were scheduled as a rule to be continued every Monday, Wednesday and Friday.   The applicant found that these court sessions interfered considerably with his work in Parliament.   While working in Parliament he maintained he was legally excused (lovligt forfald) from appearing in court.   This caused controversies between the prosecution and the defence, which led to court decisions as to the fixing of the hearings.   The Court in its decisions pointed out that due to its nature and size the case would in all probability be very lengthy and therefore a general postponement could not be granted.   Sometimes, however, the Court granted the defence postponement of fixed hearings, depending on the importance of matters being dealt with in Parliament and on the applicant's connection with them.   The applicant nevertheless failed to appear at a number of the fixed hearings before the Court which again made the prosecution request the Court to dismiss the applicant's full appeal (bevisanke) and only consider the question of sentence.   This request, however, was rejected by the Court on 27 October 1978.   On 9 November 1978 the applicant lodged an appeal with the European Commission of Human Rights and therefore on 27 November 1978 requested before the national court that the hearings be postponed until the Commission had dealt with the case or at least be postponed for a period of 3 months.   The applicant's defence lawyer, Mr. Ebbe Suenson, pleaded this request before the Court and the applicant himself also wished to expound upon the documentation that he had submitted to the Commission (113 documents).   The applicant states that the Court gave him 30 minutes to do that.   The Court of Appeal did not grant the above request for a postponement but the applicant nevertheless continued to ask for postponements of the listing of his case for hearing when it clashed with his political work in Parliament.   When the Court did not honour such requests it seems that the applicant did not appear.   This led to a very difficult situation from a procedural point of view and the Court therefore decided on 14 February 1979 inter alia that further explanations and production of evidence concerning count No. 1 of the indictment should be submitted in the subsequent court sessions.   Otherwise the applicant would be barred from giving further explanations concerning the charges dealt with therein.   After leave to appeal had been granted by the Ministry of Justice on 28 February 1979 the Supreme Court was asked to settle the disputes concerning the constant postponements and the subsequent decisions to bar the applicant from producing evidence if he did not appear in court.   In its decision of 6 April 1979 the Supreme Court stated:   "The Supreme Court has noted that the Court of Appeal has held 14 hearings between 14 February and 29 March 1979 whereas 3 hearings have been postponed.   The accused has appeared in 6 hearings and has left one before it finished. The Court of Appeal has hereafter ... considered the accused barred from submitting further statements concerning Count 1 of the indictment. ...   The political work of a Member of Parliament must be respected during a criminal trial against him insofar as it is possible without delaying the case.   In this case, which in view of its size and complicated nature is quite extraordinary, the accused should contribute to the accomplishment of the case as swiftly as possible even if this interferes with his political work.   The accused has, however, as can be seen from the <Court of Appeal> decision, completely ignored the Court's decision as to the procedure of the case.   He has for example failed to appear in court on a Monday when no meetings were scheduled in Parliament because he should give a speech on the pension policy of the Progress Party. ...   He has furthermore failed to appear - also on a Monday - in order to participate in meetings of the Austrian sister party.   In relation to Parliament and the common conception of justice, it is unacceptable and offensive that the accused through his attitude delays and tries to evade legal proceedings in an extensive and serious criminal case, which has been brought against him with the permission of Parliament, the result of which may be of importance for the question whether he fulfils the requirement set out in Article 30 para. 1 of the Constitution concerning eligibility to Parliament and thus his staying there.   The accused tries through his political work to arrogate to himself procedural privileges, which cannot be obtained by any other person against whom a criminal case is being conducted. Interference with the course of the trial - through postponements or permission to stay away - should therefore, even if political considerations are invoked, only be accepted on very exceptional occasions. ...   The fairness of the above is strengthened by the circumstances of the appeals.   As the case now lies before the Court of Appeal, the prosecution has dropped the charges concerning fraud and requests only an increase of the sentence by referring certain counts to Article 289 of the Penal Code and a revocation of the accused's right to practise law.   The evaluation of the evidence cannot therefore be changed to the detriment of the accused.   In this regard the case could be dealt with without the presence of the accused.   The accused, however, has appealed in order to be acquitted and should therefore appear and through the necessary production of evidence look after his interests."   The Supreme Court thereafter decided by three votes to two (who wanted to dismiss totally the applicant's appeal for acquittal) to uphold the Court of Appeal decision as follows:   "the decision as to the rejection of the defendant's appeal is upheld.   The court hearings shall be conducted with the greatest possible speed and so,   that the accused's requests for postponements or to be excused from appearing in court shall only be granted on very exceptional occasions,   that this also applies when the accused invokes his political work,   that if the accused fails to appear at a court hearing without being legally excused (lovligt forfald) he shall become barred from later submitting evidence that should have been produced at that hearing,   that the accused is barred from giving further explanations on Count 1 of the indictment."   On 3 December 1979 the European Commission of Human Rights declared the applicant's complaints inadmissible while stating as follows:   "The applicant's main complaint is under Article 6 (art. 6) of the Convention which, inter alia, secures to everyone charged with a criminal offence the right to 'a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'.   He alleges that on account of a hostile publicity campaign against him from the highest quarters, he will not get a fair trial by an independent and impartial tribunal in the criminal proceedings instituted against him.   However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   The criminal proceedings against the applicant are still pending before the Court of Appeal in Copenhagen.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies so this part of his application must be rejected under Article 27, para. 3 (art. 27-3) of the Convention.   As to the applicant's complaint that he was not given a jury trial as he maintains he was entitled to under Article 687 C of the Danish Judicature Act, the Commission notes that the final decision on this point was given by the Supreme Court on 3 December 1974, and since the applicant did not lodge his application with the Commission until 9 November 1978, the Commission is not competent to deal with this part of his complaint as, according to Article 26 (art. 26) of the Convention, it may only deal with a matter within a period of six months from the date on which the final decision was taken.   Hence this part of the application must be declared inadmissible under Article 27 para. 3 (art. 27-3) of the Convention.   The applicant has also complained that he was refused new lawyers to defend his case, since he considered his lawyers deficient in defending his case.   The lawyers appointed ex officio by the court were well reputed and the applicant has not given any particulars as to the way in which they did not correctly handle the case.   The applicant has not substantiated this complaint and the Commission therefore finds that it is manifestly ill-founded and has to be declared inadmissible in accordance with Article 27 para. 2 (art. 27-2) of the Convention.   The Commission has also examined the applicant's complaints under Arts. 7, 10, and 11 (art. 7, art. 10, art. 11) of the Convention but cannot in the present stage of the file find any violation of these Articles."   The case had in the meantime continued in the Court of Appeal but the applicant continued to request cancellations of hearings fixed, pleading mainly work in parliament.   Except in a few special instances, e.g. in respect of a two-month period after a general election had been called for, the Court did not grant the requests. Nevertheless the applicant stayed away on several occasions.   Out of the 258 court sessions to be held by the Court of Appeal, four were cancelled by the Court.   The applicant left 19 sessions before they were adjourned and failed to appear altogether for 133 sessions.   When the applicant failed to appear the Court of Appeal with reference to the above Supreme Court decision barred the applicant from subsequently producing further evidence concerning a particular point.   On 18 August 1980 the prosecution had finished the production of evidence.   The applicant thereafter requested a postponement of the case in order that he prepare his production of counter evidence.   On 25 August 1980 the Court of Appeal refused to postpone the case and refused the applicant permission to produce further evidence.   In its decision the Court stated inter alia:   "When deciding the present question regard must be had to the fact that the accused, through the legally served notice of appeal during the case, has been informed of the possibility, according to Article 836 of the Administration of Justice Act, to submit a list of evidence within a certain time-limit, that through the whole case, he has been aware of the list of evidence submitted by the prosecution and that regardless of these circumstances, and assuming that he ought to be considered familiar with usual criminal procedural practice, he nevertheless has not until now asked the Court for individual production of evidence. Furthermore regard must be had to the fact that on several occasions it has been stated in the court transcripts, during hearings where the accused has been present, that the production of evidence concerning a particular point has been terminated, without this giving rise to comments from the accused.   The Court must finally consider the views expressed in the Court's decision of 14 February 1979 and the principles of the Supreme Court decision of 6 April 1979, namely that it was found necessary due to the proceedings until these dates to decide on such procedural measures as could ensure the necessary concentration and continuity in the proceedings and thereby to avoid obstructions from the applicant and to get through the case in a reasonable way.   On the basis of these views and the above-mentioned circumstances the Court of Appeal decides to refuse the accused permission to produce further evidence in the case. In this respect the Court has had particular regard to the fact that the accused has been aware of the possibility of producing evidence and has made use of this possibility during the case to a considerable extent, and to the fact that his present request concerning further production of evidence has been brought forward only after the appeal proceedings have been pending for more than 2 years and therefore must be considered as an attempt to delay the case."   Thereafter, on 18 September 1980, the applicant requested the re-opening of the production of evidence.   In particular he requested permission to submit 97 letters with enclosures, 130 documents previously submitted to the European Commission of Human Rights as well as permission to request an expert opinion (syn og skøn) on the financial and other opinions produced in the case.   On 20 October 1980 the Court of Appeal refused to re-open the production of evidence stating as follows:   "With regard to the question of re-opening the Court of Appeal must consider that the production of evidence, which the accused now requests, relates mainly to questions which have been subjected to thorough and detailed examination during the appeal hearings and on which the accused has had full opportunity to express himself and otherwise arrange for evidence ...   In particular with regard to the very extensive request for expert opinions it is pointed out that it should also be taken into consideration that the accused must have been aware of the fact that such a request not only could have but also should have been made at a much earlier stage of the appeal proceedings and that it would in itself mean a considerable extension of the proceedings if it was to be granted now.   In these circumstances the Court finds it neither necessary nor desirable that further production of evidence is started."   A further request to re-open the production of evidence was similarly rejected on 10 November 1980.   With regard to his defence the applicant submits that his defence lawyers failed to act as expected of them when the prosecution had finished producing evidence to his detriment.   In particular he refers to an incident where the President of the Court of Appeal asked the defence what kind of evidence it would submit and the answer was: ask Glistrup.   Due to the fact that the applicant in his opinion constantly had tried, unsuccessfully, however, to activate his defence, he again asked the President of the Court of Appeal to relieve his lawyers of their duties.    The President, however, rejected the request on 7 November 1980.   This question was then again brought before the Supreme Court which on 21 January 1981 upheld the decision since the Court did not find that the defence had acted negligently.   The case thereafter continued before the Court of Appeal until 1 May 1981 when the parties had finished their summing-up of the case. The applicant asked for the floor and for a postponement in order to prepare his speech.   A postponement was granted until 11 May 1981 when the applicant started his statement.   He continued on 13 May 1981 but was warned that he should confine his speech to the relevant parts and not repeat what his defence had already said.   The applicant's speech continued on 18 May and 20 May 1981 when he was stopped by the Court which subsequently, by a decision of the same day, barred him from submitting further comments, stating inter alia:   "With regard to the question concerning the accused's right to continue his statement the Court refers to the fact that the case has been subject to particularly extensive oral pleadings on behalf of the defence.   The prosecution's first pleading lasted 12 full court days whereas the defence used 27 full court days for its pleadings.   The following pleadings lasted 1/2 - 1 day.   When deciding the Court must also take into consideration that the defence's initial pleadings - as stated in the Court's decisions of 23 March, 27 March and 1 May 1981 - as submitted, were based, to a considerable extent, on co-operation between the defence and the accused, who, as stated by the defence to the Court on 27 March, until that date had sent to the defence approximately 1500 typewritten pages, which had been used in the pleading.   The accused has now had the floor approximately 3 1/2 court days and has - notwithstanding the warning of 13 May and the subsequent repetitions of this warning - used the major part of this time to repeat the points mentioned by the defence and used the remaining part for a lengthy explanation of details without real importance for the case.   Against this background the Court must reach the conclusion that the accused has now had the opportunity to express himself fully in accordance with Arts. 738 para. 1 and 882 of the Administration of Justice Act.   Therefore the accused is barred from submitting further comments, so that the case hereafter will be ready for judgment."   The Court of Appeal pronounced its judgment on 23 November 1981.   The applicant was sentenced to 4 years' imprisonment and a fine of 4 million Danish crowns.   Furthermore he was ordered to pay the costs which exceeded 1.6 million Danish crowns. Finally, the Court revoked the applicant's licence to practise law for good.   The applicant applied for and was granted by the Ministry of Justice leave to appeal against the judgment to the Supreme Court. Before this court the applicant maintained that his whole case was based primarily on one particular point, namely that the authorities as well as the lower instance courts had come to the conclusion that the many transactions and agreements between himself and his thousands of clients were only fiction without any legal foundation.   Since he maintained that this was in fact not so, it would seem obvious that he should be acquitted.   Secondly, he maintained that the Court of Appeal had committed a number of procedural errors, in particular by leaving to him the burden of proof, by barring him from producing further evidence in October 1980 and by barring him from finishing his final speech in May 1981.   Finally he requested a milder sentence than the one imposed by the Court of Appeal.   After 25 court sessions the Supreme Court, on 22 June 1983, sentenced the applicant to 3 years' imprisonment and a fine of 1 million Danish crowns.   He was ordered to pay 941,029 Danish crowns in taxes as well as costs before the City Court and the Court of Appeal.   Finally the decision to revoke his licence was upheld but only until further notice.   With regard to the applicant's allegations of procedural errors before the Court of Appeal, the Supreme Court stated simply that it did not find that such errors had occurred.   Therefore the case could not be referred back to the Court of Appeal.   The applicant has now been released on parole and is, as mentioned above, at present living at Virum in a house put at his disposal by his fellow party members.   COMPLAINTS   Following the Commission's partial decision as to the admissibility of 7 October 1985 (see below) the only remaining complaint is whether the applicant's trial was concluded within a reasonable time in the meaning of Article 6 para. 1 (art. 6-1) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 28 June 1983 and registered on 17 October 1984.   On 7 October 1985 the Commission decided to adjourn the examination of the application as far as it concerned the length of the criminal proceedings and to declare inadmissible the remainder of the application.   It was furthermore decided to bring the adjourned part of the application to the notice of the respondent Government and invite them to submit written observations on the admissibility and merits of this question.   On 10 December 1985 the applicant applied for legal aid and he was requested to submit the necessary information in this respect by 17 January 1986.   This request remained unanswered.   After the grant of an extension, the respondent Government's observations were submitted on 17 January 1986.   A copy of the observations was forwarded to the applicant on 23 January 1986.   He was requested to submit his observations in reply before 6 March 1986.   On 31 January 1986 the applicant asked for an extension to the time-limit for an indefinite period.   By letter of 11 February 1986 he was requested to indicate the date to which he requested the time-limit extended and was informed that the Acting President or the Commission would then decide whether or not to grant the extension requested.   The applicant did not reply to this letter.   Neither has he submitted a reply to the observations of the respondent Government. The Commission's Secretariat's reminders of 20 March, 23 April (registered post), 29 May and 15 July 1986 remained unanswered.   SUBMISSIONS OF THE PARTIES   In the light of the above situation the following is a summary of the Government's observations only.*   _______________ *        The Government have submitted, in addition to their         observations, a 178 page document setting out the procedural         steps taken from 30 January 1971 to 11 March 1985. _______________   The respondent Government submit that the applicant's case was quite exceptional by Danish standards.   It was an extremely bulky case requiring the checking of the applicant's fiscal affairs over a period of approximately ten years.   This in turn called for a review of his counselling services to and transactions with a very large number of persons.   The case made it necessary to arrive at a stance concerning the exceedingly complex points of fiscal and corporation law and the principles governing them.   Also the applicant's position per se as a member of Parliament and party leader added constitutional problems. The clash between the applicant's political office and the hearing of the trial became another delaying factor.   Referring to the facts of this case the respondent Government point out that while the case was pending before the courts, documentary evidence in excess of 100,000 pages was presented and approximately 50 witnesses were heard by both the City Court and the Court of Appeal. The court records kept of the two proceedings took up 2235 and 785 pages respectively and the judgments 1226 and 238 pages respectively.   The Government submit that account must be taken of the extent to which the applicant himself was instrumental in the procrastination of the case and against this background conclude that the duration of the applicant's trial is attributable to the exceptionally large scope and complex legal problems of the case and the applicant's own conduct.   REASONS FOR THE DECISION   The Commission recalls that the only complaint left for the Commission to examine is whether the applicant's trial was concluded within a reasonable time as required under Article 6 para. 1 (art. 6-1) of the Convention.   However, the Commission observes that despite reminders sent to him on 20 March, 23 April, 29 May and 15 July 1986 the applicant has not resumed contact with the Commission after 31 January 1986.   Thus he has failed to observe the time-limits set and also failed to provide information requested by the Commission.   Neither has he submitted a reply to the observations of the respondent Government forwarded to him on 23 January 1986.   In these circumstances the Commission considers that he must be regarded as having lost interest in his application.   Furthermore the Commission finds that there are no reasons of a general character affecting the observance of the Convention which necessitate a further examination of the case.   For these reasons, the Commission   DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES   Secretary to the Commission        Acting President of the Commission         (H. C. KRÜGER)                         (J. A. FROWEIN)