CASE OF HASSLUND v. DENMARK
Violation of Article 6 - Right to a fair trial
Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
4. The applicant was born in 1973 and lives in Les Salles Sur Verdon, France. 5. At the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravated debtor fraud by buying up and selling numerous inactive, solvent private limited companies within a short period and, for the sake of their own profit, “stripping” the companies of assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated in their economic criminal activities, which concerned very large amounts of money. According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding two billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993. 6. In 1994, the applicant learnt via a local newspaper that he was the subject of an investigation, as was a private limited stockbrokers company, of which he was part owner. 7. By letter of 9 June 1994 he informed the police that he was available for an interview, if required. By letter of 14 June 1994 the police confirmed that they were in the process of investigation and informed the applicant that they would talk to him at a later stage. 8. From November 1994 to September 1995, six discovery orders were issued against two banks, four search warrants were issued and numerous interviews were held. 9. On 19 September 1995 the applicant was arrested and charged, inter alia, with aggravated debtor fraud. On the same day he was detained in solitary confinement, which was prolonged at regular intervals until he was released on 22 December 1995. 10. On the latter date, an oral hearing took place before the Copenhagen City Court (Københavns Byret - hereafter “the City Court”), during which the prosecution stated that the investigation was concluded and that the indictment could be expected at the beginning of 1996. 11. From January 1996 to June 1998 various investigative steps were taken, notably relating to five co-accused in the case, for example searches in Denmark, Switzerland and Sweden, numerous interviews in Denmark and abroad, international letters of request, a request to Interpol, fifteen discovery orders and an order prohibiting the disclosure of the applicant’s name. Moreover, on 19 March 1997 a request for an accountant’s report was made and material for that purpose was obtained, including statements of account, cheque vouchers and so on. 12. On 25 June 1998, the indictment was submitted to the City Court according to which the applicant (and five co-accused: A, B, N, M and R) were charged of “tax asset stripping” committed jointly. The applicant was charged with fifteen counts out of a total of fifty-nine committed between March 1992 and May 1993. His responsibility related to an amount of DKK 9,890,000 (approximately 1,300,000 euros (EUR)) out of the total amount of tax evaded in the case which came to approximately EUR 19,000,000. 13. Between 14 August 1998 and 10 March 1999, fifteen pre-trial hearings were held and the draft of the accountant’s reports was submitted. On the former date, the case was set down for trial on 15 March 1999. 14. Between 15 March 1999 and 31 January 2001, a total of 119 hearings were held. The applicant, the five co-accused and more than seventy witnesses were heard, including state-registered public accountants. Statements of accounts and a considerable amount of other documentary evidence were also produced. The court records comprised 1,330 pages. The closing speeches were held over ten days in November 2000 and January 2001. 15. By a judgment of 6 April 2001, which ran to 220 pages, the City Court convicted the applicant in accordance with the indictment, but on one count he was acquitted. The co-accused were also convicted. The applicant was sentenced to two years’ imprisonment. In addition, an amount of DKK 2,200,000 was seized, and he was deprived for an indefinite period of his right to establish a private limited company or a company or an association requiring public approval, or to become a manager and/or member of a director’s board of such companies. 16. The City Court dismissed the applicant’s claim that the length of the proceedings had been at variance with Article 6 of the Convention, stating the following: “The City Court finds no reason to criticise the prosecution’s decision to join the criminal proceedings against the [applicant and the five coaccused]. Accordingly, and having regard to the mutual connection between the cases and their character, the City Court finds no violation of Article 6 of the Convention, although there were longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. In this connection [the City Court] notes that the complexity of the acts carried out by [the applicant and the five co-accused] partly when buying and “stripping” the companies for assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. In the City Court’s opinion there were no longer periods, whether before the police, the prosecution or the City Court, during which no part of the case proceeded. It must be emphasised that due to the nature and scope of the charges, the cases against [M] and [the co-accused B and R] could not proceed before the cases against [the applicant, N and A] [had been heard]. [Finally], in view of the character and complexity of the case, [the City Court] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the Convention.” 17. On 15 May 2001 the applicant and the five co-accused appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret - “the High Court”). 18. After that date, twelve preparatory hearings were held, including one on 13 September 2001 during which the trial was scheduled with numerous fixed dates to commence on 24 September 2002. Counsel for the applicant and the co-defendants jointly replied that they only had very limited possibilities to appear during the autumn of 2002. 19. Thus, although the trial commenced on 24 September 2002, most of the hearings took place in 2003 and 2004. A total of about 90 hearings were held in the case. In February and March 2004 the appeal hearings had to be postponed because the applicant fell ill. For the same reason the High Court changed the order of some of the hearings. The Court records comprised 861 pages. The closing speeches were held over ten days in April, May, and June 2004. 20. On 28 September 2004 the High Court upheld the City Court’s judgment. As regards the length of the proceedings, it stated: “In the assessment of whether the proceedings have been concluded within a reasonable time, the starting point ... concerning the [applicant] was on 19 September 1995, when he was charged ... [The High Court] upholds the City Court’s judgment and its reasoning with regard to the question of whether Article 6 of the Convention has been violated ... The appeal proceedings were scheduled and carried out without any unreasonable delay. On 13 September 2001 the trial was scheduled to take place on fixed dates as from 12 August 2002. A number of hearing dates in the autumn 2002 and the beginning of 2003 had to be cancelled because some counsel were occupied [with other cases], for which reason the [present] case was delayed. To avoid any further delay caused by impossibilities to appear, the trial, which commenced on 24 September 2002, proceeded in a proper, but not completely suitable order.” 21. In the period from 7 to 12 October 2004, the applicant and the codefendants requested that the Leave to Appeal Board (Procesbevillingsnævnet) grant them leave to appeal to the Supreme Court (Højesteret). Three of the defendants stated in their petitions that they would submit supplementary comments, which were received on 17 December 2004. In January 2005 the cases were sent to the prosecution, which gave its opinion on 29 March 2005. The applicant and the codefendants gave their comments in reply and at a meeting on 5 August 2005 the Leave to Appeal Board decided to refuse the requests. Letters of refusal were not sent out, however, as on 9 August 2005 counsel for one of the co-defendants stated that he wanted to submit supplementary comments in the light of a recent judgment in a similar case. 22. Thereafter, due to an error, nothing happened in the case until 2 May 2006, when the police telephoned the Leave to Appeal Board and drew attention to the case. Subsequently, on his request, counsel for the relevant co-defendant who had wanted to submit supplementary comments did so on 2 and 13 June 2006. The applicant and the co-defendant were informed on 21 June 2006 that their requests for leave to appeal to the Supreme Court had been refused.