CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1992

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 16648/90                       by S.L.                       against Norway           The European Commission of Human Rights (Second Chamber) sitting in private on 1 April 1992, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Mrs. G.H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 27 December 1989 by S.L. against Norway and registered on 31 May 1990 under file No. 16648/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is a Norwegian citizen, born in 1944. He resides in Oslo. Before the Commission he is represented by Messrs. Alf and Svein Harald Nordhus, lawyers practising in Oslo.         Since 1971 the applicant was the leader of a religious foundation called Samaritan Misjon Stiftelse. On 24 October 1983 one of the members of the foundation authorised a lawyer to request an audit of the foundation's accounts.         The conclusions of this audit led the police to commence investigations against the applicant, and on 3 November 1983 he was arrested, suspected of embezzlement in respect of the foundation's funds contrary to Section 256 of the Norwegian Penal Code. He was detained on remand the following day and several offices in Oslo, Lillesand and Kristiansand were searched.         On 17 January 1984 the applicant was released from detention on remand but the police investigations continued. He was arrested again on 24 April 1984 suspected of having violated Section 166, subsection 2 of the Penal Code, and released again around 15 May 1984.         The police investigations continued and eventually, by indictment of 22 October 1986, the applicant was charged with embezzlement and having caused somebody to make use of an incorrect statement in relation to a public authority, contrary to the above-mentioned provisions of the Penal Code.         The case was scheduled for trial in the City Court (Byrett) of Kristiansand on 14 September 1987. The applicant did not appear but his counsel did. The case was adjourned and rescheduled for 2 May 1988. In April 1988, however, the applicant informed the Court that he could not appear for the trial since he would be in the USA to do missionary work.         On 22 October 1988 the applicant was arrested at Gjøvik, Norway, and detained on remand. The trial was then scheduled for 24 January 1989 against which both the applicant and his counsel protested. However, the City Court rejected the protests and the trial took place from 24 January to 9 February 1989. The applicant, present and represented by counsel, had the opportunity to submit what in his opinion would be of relevance to the case. In addition the Court heard 14 witnesses and two experts. After an evaluation of the evidence submitted the applicant was found guilty by judgment of 27 February 1989 of the charges brought against him and sentenced to 1 year and 9 months imprisonment. Furthermore the Court confiscated 1.026.416 NOK in accordance with Section 34 of the Penal Code, having found that the applicant had obtained this amount through the offences committed. Finally, the applicant was ordered to pay 50.000 NOK in costs.         On 9 March and 10 April 1989 the applicant appealed against the judgment to the Supreme Court (Høyesterett). The appeal was based on alleged procedural errors, alleged wrongful application of the law, the severity of the sentence, the confiscation question and the question of costs.         By decision of 19 April 1989 the Supreme Court rejected the appeal in so far as it concerned the alleged procedural errors and the alleged wrongful application of the law, whereas the appeal was allowed as regards the remainder.         In a decision of 18 August 1989 judge Backer stated on behalf of the unanimous Court the following as regards the remainder of the appeal, i.e. the severity of the sentence, the confiscation question and the question of costs:   (translation)         "The appeal against the sentence is in particular based on the       fact that the case has become very old, that the applicant has       suffered from the media attention, that he has been detained on       remand three times for long periods and that he had a sincere       engagement in the missionary work.         It appears that today nearly 6 years have passed since the       applicant was arrested the first time. Due to the bad state of       the accounts, for which the applicant is to blame, it was,       however, a very complicated case to investigate. After one       accountant had dealt with the case and produced the basis for the       suspicions, two other accountants were appointed as experts. Only       after their reports were ready could the indictment of 22 October       1986 be prepared. The investigations were delayed as the       applicant for a long period of time refused to talk to the police       after he initially had been willing to do so. Even before the       investigating court he only made incomplete statements. It took       several weeks for the case to be heard. The first and second time       the case was scheduled for trial it had to be adjourned as the       applicant was abroad, in Finland and in the USA respectively.       When the case was scheduled for trial the third time it was found       necessary to arrest the applicant in advance in order to secure       his presence. In these circumstances I do not find that the       length of the proceedings should speak in favour of the applicant       when meting out the sentence.         I furthermore recall that the applicant himself, according to       what has been said, contacted the mass media several times. The       three periods of detention on remand will as usual be deducted       from the sentence, but they cannot in the circumstances be of       relevance as regards the sentence. The applicant's missionary       work has been taken into consideration as a mitigating       circumstance by the City Court.         This case concerns very serious embezzlement. It concerns large       amounts and the embezzlement took place over several years. The       applicant exploited the donors' interests in a good cause and has       breached their confidence as well as that of the colleagues whom       he engaged in the work.         I cannot see that there is in these circumstances any reason to       reduce the sentence pronounced by the City Court.         As regards the confiscation question the applicant maintains that       it must be sufficient to confiscate only a part of the sum under       Section 34 of the Penal Code since the profits are no longer       there and it would hinder the applicant's subsequent work to be       burdened with such obligations which he will never be able to       fulfil without the assistance of others. I cannot see that this       is decisive. In my opinion it would be objectionable if the full       amount should not be confiscated in a case like this.         The appeal is accordingly to be rejected. In these circumstances       there is no reason to consider the question of costs, cf. Section       442 of the Criminal Procedure Act (Straffeprosessloven)."     COMPLAINTS         The applicant complains that the circumstances surrounding his arrest and detention on remand amounted to a violation of Articles 3 and 5 of the Convention.         He also complains that he did not get a fair hearing by an impartial tribunal, that he was not presumed innocent until proved guilty according to law, that he did not have adequate time and facilities for the preparation of his defence, that he was deprived of legal assistance of his own choosing and that he was deprived of his right to hear witnesses. He invokes in this respect Article 6 paras. 1-3 of the Convention.         Under Article 6 para. 1 of the Convention the applicant furthermore complains that his case was not heard within a reasonable time.         Finally, with reference to Articles 7, 8, 9, 11 and 14 of the Convention, the applicant complains that a law was applied in his case retroactively, that his right to respect for his private life, his home and his correspondence was violated, that his rights to religious freedom and association were violated and that he was discriminated against because of his religious views.         On 12 February 1990 the applicant submitted an additional complaint alleging that his right to peaceful enjoyment of his possessions was violated as a consequence of his conviction.     THE LAW   1.     The applicant complains that the circumstances surrounding his arrest and detention on remand were in breach of Articles 3 and 5 (Art. 3, 5) of the Convention. Article 3 (Art. 3) protects anyone from torture, inhuman or degrading treatment or punishment and Article 5 (Art. 5) protects anyone from deprivation of liberty save in certain circumstances set out in that provision.         However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".         In the present case the Commission recalls that the applicant was arrested on 3 November 1983 and detained on remand until 17 January 1984. He was detained on remand again from 24 April 1984 until some time around 15 May 1984, and finally he was detained on remand from 22 October 1988 until his conviction by the City Court of Kristiansand on 27 February 1989. The Commission finds that this last date should be regarded as the starting point for the six month period provided for in Article 26 (Art. 26) of the Convention in respect of the applicant's complaints of his arrest and detention. The application, however, was submitted to the Commission on 27 December 1989, that is, more than six months after the date of the City Court judgment. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant furthermore complains that in several respects during the course of the criminal proceedings against him he was denied a fair trial. He invokes in this regard Article 6 paras. 1-3 (Art. 6-1, 6-2, 6-3) of the Convention.         However, also in respect of this part of the application the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the provisions invoked. The Commission recalls that the applicant's appeal to the Supreme Court was based on alleged procedural errors, alleged wrongful application of the law, the severity of the sentence, the confiscation question and the question of costs. Furthermore, the Commission recalls that the Supreme Court, on 19 April 1989, rejected the appeal in so far as it concerned the alleged procedural errors and the wrongful application of the law, whereas the Supreme Court's subsequent decision of 18 August 1989 only concerned the severity of the sentence, the confiscation question and the question of costs.         In these circumstances the Commission finds that the date of 19 April 1989 should be regarded as the starting point for the six months period provided for in Article 26 (Art. 26) of the Convention in respect of the applicant's allegations of an unfair trial as the Supreme Court did not in its subsequent decision of 18 August 1989 consider these issues. The application was, however, as already indicated above, submitted to the Commission on 27 December 1989, and it follows that also this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant also complains that his case was not heard within a reasonable time. He refers in this respect again to Article 6 (Art. 6) of the Convention.         The proceedings in question commenced on 3 November 1983 when the applicant was arrested and ended on 18 August 1989 with the decision of the Supreme Court which in this decision examined the length of the proceedings. Accordingly, the proceedings lasted 5 years and 9 1/2 months. The Commission considers that it is not sufficiently informed to decide on this complaint and finds it necessary to obtain from the parties observations on the admissibility in this respect.   4.     Finally, the Commission has considered the applicant's complaints submitted under Articles 7, 8, 9, 11 and 14 (Art. 7, 8, 9, 11, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.         Leaving aside the questions arising under Article 26 (Art. 26) of the Convention, in particular in respect of the applicant's reference to Article 1 of Protocol No. 1 (P1-1), the Commission finds that this part of the application does not disclose any appearance of a violation of the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously         DECIDES TO ADJOURN the examination of the applicant's complaint       that his case was not heard within a reasonable time,         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Second Chamber        President of the Second Chamber                    (K. ROGGE)                          (S. TRECHSEL)