KITOV v. DENMARK
Inadmissible
Christos Rozakis
The applicant is a Bulgarian citizen, born in 1945. It appears that he is presently residing in Aalborg, Denmark. Before the Court the applicant is represented by Mr Christophe Darbois and Mr Olivier Gutkes, both lawyers practising in Strasbourg, France. A. On 25 September 1990 the applicant was arrested in Spain on the basis of an international arrest warrant issued by the Danish authorities in order to obtain his extradition to Denmark. He was suspected of having committed drug offences contrary to Danish law. The applicant was extradited to Denmark in May 1991 where he was placed in pre-trial detention. On 20 and 21 August 1991 the applicant and seven witnesses were heard by the Criminal Court of Silkeborg (Kriminalretten i Silkeborg). The applicant was assisted by counsel at the hearing. On 21 August 1991 the Court convicted the applicant of having committed drug offences contrary to Section 191 of the Danish Penal Code (straffeloven). He was sentenced to three years’ imprisonment. On the same day the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) which had competence to determine the case on points of law as well as on facts. The Criminal Court decided to release him during the appeal proceedings. It appears that the applicant left Denmark upon his release. The prosecution appealed against the decision to release the applicant to the High Court which decided, on 22 August 1991, that he was to be detained until 19 September 1991 pursuant to Section 762, subsection 1, of the Administration of Justice Act (retsplejeloven), as there was specific reason to believe that he would leave the country and evade prosecution if he remained at large. On 28 August 1991 the State Prosecutor of Viborg (Statsadvokaten i Viborg) requested the High Court not to fix the length of the applicant’s detention as the applicant was presumed not to reside in Denmark any longer. On 30 August 1991 the High Court decided in accordance with the State Prosecutor’s request. The hearing in the High Court was scheduled to take place on 9 December 1991. Prior to the hearing the applicant was appointed a Danish lawyer, S.M., who put forward several requests to the State Prosecutor on 19 November 1991 in order, inter alia, to prepare for the hearing. On 6 December 1991 a Dutch lawyer, N.M., sent a fax to the High Court whereby the court was informed, inter alia, that N.M. had been approached by the applicant, who had chosen his domicile at N.M.’s office address. N.M. requested that the hearing be adjourned due to the applicant’s alleged illness. A notice impressed with the hallmark of the Prinsengracht Hospital (Prinsengrachtziekenhuis) in Amsterdam, in a Dutch and an English version, was enclosed with the letter. According to the notice the applicant was admitted to “a general medical check-up” lasting three days. From N.M’s letter it transpires that the purpose of the medical check-up was the applicant’s alleged heart decease and a severe flu. N.M. stressed that the applicant wished to appear before the court to defend himself against the charges brought against him. On 10 December 1991 N.M. faxed a medical statement to the High Court signed by “Dr. P. Stevens Cardiologist” that described - in medical terms - the applicant’s alleged heart decease and the envisaged cure. On 9 January 1992 the applicant’s Danish counsel, S.M., sent a letter to N.M., which read as follows: “... Since [the applicant] has not reacted to my letters forwarded to his PO address, I ask you to try to obtain his comments to the following: At the court meeting held at [the High Court of Western Denmark] on December 9, 1991, the Prosecutor requested a refusal of [the applicant’s] appeal claiming that there was not sufficient documentation that his absence was unavoidable. However, the Court sustained my claim that the trial was to be postponed as it was not found that the information contained in your letter of December 6, 1991, and the enclosed letter of admission from Prinsengrachtziekenhuis of December 1, could be disregarded. As previously informed the trial was then postponed until Thursday April 30 and Friday May 1, 1992, both days at 9.00 hours. However, the Public Prosecutor has again made a request to [the High Court] that the [appeal] be dismissed. In support of this request the Public Prosecutor maintains that the letter of admission of December 1, 1991 is false. The police have contacted the management secretary of the hospital and [the] chief physician who have stated that [the applicant] has never been admitted. And the hospital does not know him, neither [by] name or the file number mentioned in the letter. Besides, the hospital has stated that it has never used letter paper as the one [used for] the letter of December 1, 1991 ... However, until May 1991, the printed letterhead on the invoices of the hospital has been used. Finally, the hospital has stated that the signature on the letter of admission does not belong to anybody employed at the hospital. The letter sent later by you of December 9, 1991, from Doctor P. Stevens the police have submitted to the only Dutch doctor of this name. And in [a] letter of December 12, 1991 ... he has stated that also this statement is false. [The High Court] has postponed the decision of the claim made by the Public Prosecutor for a dismissal, awaiting my comments on the information provided. If possible, please obtain and send to me as soon as possible [the applicant’s] comments to the claim that the two letters are false. ...” On 7 February 1992 N.M. sent a letter to the State Prosecutor, which read, inter alia, as follows: “... As I already informed you, [the applicant] was not able to travel to Denmark because of problems with his health in December last year. Because of his health [the applicant] was not able to visit me at my office and for that reason he sent some friends. I pointed out to these gentlemen that it was necessary that I should receive a medical statement about the state of health of [the applicant] in order to send this statement to Denmark. ... Shortly after I received the statement of dr. Stevens, known by you, which appeared to be false. I can tell you that I was unpleasantly surprised by this false statement and I informed [the applicant] about this matter immediately. [The applicant] was also unpleasantly surprised and [he has in the meantime learned] that the abovementioned gentlemen - entirely without his knowledge - tried to help him with a misplaced [enthusiasm] in an illegal way. [The applicant realises] that he has been brought in a very difficult situation, but requests the Court for understanding, all the more because he has been really ill and was not able to travel. [The applicant] refers to the enclosed medical statement of his physician dr. Klein... [He] should like to have the opportunity to defend himself in appeal and should like to appear in court. ... Finally I want to inform you that I want to declare formally that I will be the lawyer in this matter and that I will prepare the defence together with a Danish lawyer. I request you to send me a copy of the entire criminal file. ...” It appears that the medical statement from Dr Klein - a short hand written note in Dutch, dated 23 December 1991 - was faxed to the State Prosecutor by a colleague to N.M., on 19 January 1992. On 13 February 1992 S.M. sent a letter to the High Court of Western Denmark, reading, inter alia, as follows: (Translation) “... The State Prosecutor has, by letters of 12 December 1991 and 11 February 1992 with enclosures ... requested [the High Court] that [the applicant’s] appeal be dismissed. As appointed defence counsel for [the applicant] I hereby object to [the Prosecutor’s proposal]. Immediately upon receipt of the State Prosecutor’s letter of 12 December 1991 I sent a letter to [the applicant] on 13 [December 1991], addressed to the P. O. box address abroad of which he had informed me - which is the only address I know of - and asked him to inform me what was the actual position as regards his admission to the Prinsengrachtziekenhuis on 6 December 1991 and the received statement from dr. P. Stevens. As [the applicant] did not react I requested [N.M.] to obtain and forward [the applicant’s] views on the material from the State Prosecutor, by letter of 9 January 1992. Subsequent to my receipt, on 28 January 1992, of the court transcripts of 20 [January 1992], I informed [N.M.] of their contents by letter of 29 [January 1992]. On 7 February 1992, I have received a copy of [N.M.’s] letter of the same date with enclosures to the State Prosecutor. In support of my objection against the State Prosecutor’s proposal I have only the possibility of referring to the contents of [N.M.’s] letter of 7 February 1992 from which it appears that it cannot be ruled out that [the applicant] had a lawful excuse for his absence at the hearing in the High Court, on 9 December 1991. ...” On 25 February 1992 N.M., inter alia, requested the High Court to appoint a new Danish lawyer as the applicant had no longer confidence in S.M. and as he was informed that S.M. had recommended the High Court that the latter’s appointment as counsel for the applicant be withdrawn. N.M. further requested the High Court to adjourn the case until a new lawyer had been found. In addition N.M. requested the Court to inform him whether it would “acknowledge [him] as lawyer in [the applicant’s] case” and to send him copies of the State Prosecutor’s letters of 12 December 1991 and 11 February 1992 with enclosures. On 9 and 13 March 1992 N.M., inter alia, repeated his request for access to the file and for acknowledgement as counsel for the applicant. He also requested that the Dutch lawyer, L.K., be acknowledged as counsel for the applicant.  In the meantime, on 27 February 1992, S.M. informed N.M. that the State Prosecutor had decided on 26 February 1992, pursuant to Section 745 of the Danish Administration of Justice Act (retsplejeloven), not to hand over copies of the aforementioned letters in the file to N.M. or the applicant. On 13 March 1992 the High Court, sitting with three professional judges and three lay judges, decided to dismiss the applicant’s appeal. Neither the applicant - or any of his representatives - nor the prosecutor was present at the court meeting. The decision was made on the basis of the written material in the case, including the medical statement of 23 December 1991 from Dr Klein, N.M.’s letters of 7 and 25 February and 9 March 1992, S.M.’s letters of 13 and 25 February 1992, a report of 14 January 1992 from the Chief of Police of Silkeborg, and the letter of 11 February 1992 from the State Prosecutor. The Court transcripts read, inter alia, as follows: (Translation) “... The hearing is public. ... On the basis of the material now available it must be considered established that the admission notice from the Dutch hospital was false. In addition, subsequent to that, a false medical certificate allegedly issued by Dr P. Stevens has been submitted. On this background - notwithstanding ... the medical certificate issued by a doctor, N.F.M. Klein - the submission that [the applicant] had a lawful excuse [for his absence] at the beginning of the hearing, on 9 December 1991, must be rejected. The High Court therefore, pursuant to Section 222 of the Administration of Justice Act, reverses its decision of 9 December 1991 as to the adjournment of the case. On the basis of the information provided by the prosecution about the efforts made to have the indictment and summons served on the applicant, the Court is satisfied that it has been impossible to serve these documents in the usual manner because he has changed address or place of residence without giving due notice thereof. For these reasons the prosecution’s request for dismissal of [the applicant’s] appeal is sustained pursuant to section 965c, subsection 3, second part. It is decided: This appeal is dismissed. In accordance with [S.M.’s] recommendation of 25 February 1992 the High Court withdraws the appointment of [S.M.] as defence counsel for [the applicant]. The High Court has not found any reason to appoint a new counsel for [the applicant] before the decision to dismiss [the applicant’s] appeal was made. ...” On 14 April 1992 the High Court rejected the applicant’s request to reopen the case. Upon the applicant’s request, the Ministry of Justice granted him leave to appeal to the Supreme Court (Højesteret) on 29 July 1992. Enclosed with the letter from the Ministry was, inter alia, a copy in English of Section 730 of the Administration of Justice Act, which sets out the conditions a lawyer must fulfil in order to be appointed counsel for an accused person. Following several requests from the applicant for access to the file, the Ministry notified him on 23 November 1992 that it did not consider itself competent to grant access to the file as long as the case had not been finally decided upon. However, the Ministry informed the applicant that it had forwarded his request for access to the file to the Supreme Court. On 11 February 1993 the Supreme Court decided that the lawyers [N.M. and L.K.] could have access to the file, (cf. Section 745 of the Administration of Justice Act). However, in order to secure that the Danish rules concerning access to files in criminal cases were observed, the permission was subject to the condition that the lawyers were assisted by a Danish lawyer in the sense that the latter would receive a copy of the file for the use of the Dutch lawyers. On 2 November 1993 the Supreme Court appointed the Danish lawyer T.R. to assist N.M. and L.K. in the aforementioned manner. On 2 February 1994 T.R. informed N.M. and L.K that he was not entitled to send the file or copies of the documents of the file to them or to the applicant but they were welcome to go through the file at his office and that he was willing to give them oral explanations regarding the contents of the documents. On 7 March 1994 T.R. asked the Supreme Court for permission to forward the file to the applicant’s Dutch lawyers. On 23 March 1994 the Supreme Court rejected the request and emphasised, by reference to its decision of 11 February 1993, that only T.R. was permitted to receive copies of the file for the Dutch lawyers’ use.  After the parties’ submission of written statements, the Supreme Court decided, on 10 April 1995, as follows: (Translation) “... Notwithstanding [S.M’s] request of 25 February 1992 for withdrawal, which request was granted at the date of the order of dismissal, the Supreme Court holds that it has not been established to the satisfaction of the court that [the applicant] has been deprived of an adequate and effective defence in connection with the High Court’s decision of 13 March 1992 to dismiss his appeal or that the decision of the High Court is wrong. On those grounds the Supreme Court rejects [the applicant’s] claim for remission of the case for retrial. As no other allegations have been submitted which can lead to a reversal of the High Court’s decision, the Supreme Court [dismisses the appeal against the High Court’s decision]. ...” The applicant was arrested in Germany in September 1995 and expelled to Denmark. It appears that he has now served his prison sentence. B. Relevant domestic law Appointment of defence counsel Section 730 of the Administration of Justice Act reads, in so far as relevant, as follows: (Translation) Subsection 1 “Any person who is charged with a crime shall have the right to choose a defence counsel to assist him in accordance with the rules laid down below...” Subsection 2 “Only lawyers who have a right to appear before the court concerned or who have been appointed by the Ministry of Justice to act as public defence counsel before the court concerned may be chosen to act as defence counsel. However, the court may, if it considers it justified, taking into account the nature of the case and other special circumstances, allow the choice of a lawyer from another Nordic country to act as defence counsel...” Access to the file Section 745, subsection 1, of the Administration of Justice Act reads, inter alia, as follows: (Translation) “Counsel must have access to the material which is in the possession of the police ... Counsel is not allowed to hand over the material to the accused without the approval of the police.” The last part of subsection 1 serves to prevent misuse of the case file. However, the accused is not prohibited from acquainting himself with the file at his counsel’s office. Dismissal of appeal A person convicted in a criminal case tried by a city court is free, in principle, to appeal against the judgment to the High Court in the district of which the city court in question belongs. Immediately upon pronouncement of the judgment, the convicted person can give notice orally to the court records that he wants to appeal against the judgment. As soon as possible after receipt of the notice of appeal, the State Prosecutor sees to it that attempts are made to serve a notification (notice of appeal and indictment) on the appellant in the usual manner, (cf. Sections 963 and 948 of the Administration of Justice Act). When an appeal also comprises assessment of the evidence, the State Prosecutor arranges for a summons containing information on the time and place of the hearing to be served on the appellant at a notice of at least four days, (cf. Section 965 and Section 840 of the Administration of Justice Act). If a summons is not served or if a summons is served on the appellant at a notice of less than four days, the effect is that the appellant is not lawfully summoned to the hearing and therefore, as a point of departure, the hearing cannot be held if the appellant fails to appear at the hearing. However, Section 965c, subsection 3 of the Administration of Justice Act reads as follows: (Translation) “If the accused fails to appear without stating a lawful excuse for his absence in proceedings where the appeal was raised by him and comprises the assessment of evidence, the court can dismiss his appeal by order if it finds that the hearing cannot usefully proceed in his absence. Furthermore, the accused’s appeal can be dismissed if it has not been possible to serve the indictment or the summons upon him in the usual manner because he has changed his address or place of residence without giving due notice thereof.” The usual manner to serve indictments and summons on somebody are by postal or by personal service, (cf. Sections 155 until 158 and Section 948, subsection 2, of the Administration of Justice Act). In criminal cases documents cannot be served upon the accused’s lawyer.