CASE OF PEDERSEN AND PEDERSEN v. DENMARK
No violation of Art. 6-1
Christos Rozakis
7. On 20 October 1992 the first applicant, as the owner of 3 freshwater fish farms, was charged with offences against the Act on freshwater fish farms of 5 April 1989 (bekendtgørelse nr. 224), henceforth also called the 1989 Act, as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for himself. 8. On 13 September 1993 an indictment was submitted to the City Court in Fjerritslev (retten i Fjerritslev) before which the trial was scheduled for 9 December 1993. However, the trial was adjourned awaiting the outcome of a corresponding pending criminal case, considered to be a “test-case”, in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Miljøbeskyttelsesloven). The Government claimed that the adjournment was initiated by the first applicant’s counsel. The applicant contested this. It is undisputed, however, that the parties agreed to the adjournment and that no objections were raised against it. The proceedings in the test-case were finally determined on appeal by a High Court judgment of 21 September 1995. 9. Subsequent to a preliminary hearing held in the applicant’s case on 18 December 1995 it was decided to adjourn his case anew awaiting another corresponding pending criminal case, considered to be a test-case, in which the defendant had alleged that the 1989 Act had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988. The proceedings in the corresponding case were finally determined on appeal in the autumn of 1996 when a High Court delivered its judgment. 10. The applicant’s trial commenced on 8 April 1997. Since a witness on the applicant’s behalf was prevented from appearing on that day, the trial continued and ended on 14 May 1997. By judgment of 28 May 1997 the City Court in Fjerritslev convicted the applicant and sentenced him to pay a fine of 68,000 Danish kroner (DKK). In addition a profit estimated to DKK 275,000 was confiscated. 11. On 9 June 1997 the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he was granted permission to procure an expert witness, who during the preparation of the case was requested to reply in writing to specific questions formulated by counsel, and approved by the prosecutor. 12. By judgment of 29 June 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 95,000 and the amount to be confiscated to DKK 384,000. 13. The applicant’s request of 7 July 1998 for leave to appeal against the High Court’s judgment to the Supreme Court (Højesteret) was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 23 November 1998. 14. The case was brought before the Supreme Court on 15 January 1999, where it was joined with the second applicant’s appeal (see below). II 15. On 26 October 1993, the second applicant, as manager of two limited companies which each owned a freshwater fish farm, was charged with offences against the amended Act of 31 September 1994 on freshwater fish farms partly in conjunction with the former Act of 5 April 1989 (bekendtgørelse nr. 900 jfr. tildels bekendtgørelse nr. 224), as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for the companies. 16. The case was brought before the City Court in Mariager (retten i Mariager) by the prosecution’s submission of an indictment of 8 March 1994, which was later extended by supplementary indictments. 17. In the period between September 1994 and October 1995 the case was adjourned awaiting the outcome of a corresponding pending criminal case, which was considered to be a test-case. 18. On 3 November 1995 the proceedings were adjourned at the request of the applicant’s counsel, who wished to submit a written pleading. On 21 November 1995 counsel requested an extension of the time-limit for submitting his pleading. On 12 February 1996 he stated that his pleading was approaching. On 21 March 1996 he was granted yet another extension of the timelimit, and on 17 April 1996 the pleading was submitted. 19. Further pleadings were submitted and additional preliminary issues were dealt with, inter alia with regard to counsel’s request that the applicant’s case be joined with another corresponding pending case. 20. On 4 October 1996 counsel was granted an extension of the timelimit to submit his rejoinder within eight weeks. 21. A hearing was held on 24 February 1997 and the case was scheduled to commence on 8 September 1997 as counsel had stated that he was unable to appear before that date. 22. On 16 September 1997 the City Court in Mariager convicted the applicant and sentenced him to pay a fine of DKK 275,000. In addition profits estimated to DKK 900,000 and DKK 200,000, respectively, were confiscated in the companies. 23. On 23 September 1997 the applicant appealed against the judgment to the High Court of Western Denmark, before which the case was ready to be listed for trial on 27 November 1997. As counsel was unable to appear on the proposed dates in January, February and May 1998, the case was scheduled for trial on 27 August 1998. 24. By judgment of 3 September 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 345,000 and the amounts to be confiscated to DKK 1,158,000 and DKK 240,000 respectively. 25. The applicant’s request of 11 September 1998 for leave to appeal against the High Court’s judgment to the Supreme Court was granted by the Leave to Appeal Board on 23 November 1998. 26. The case was brought before the Supreme Court on 15 January 1999, where it was joined with the first applicant’s appeal. The applicants jointly argued that the Act of 1989 had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988, and that accordingly they should be acquitted. Moreover, they requested that the Supreme Court referred the question of the legal consequences of the non-notification to the European Court of Justice pursuant to the former Article 177 of the EC Treaty. 27. As to the latter the Prosecutor General procured an opinion from the Ministry of Justice of 29 January 1999, finding no basis for a preliminary reference, an opinion he endorsed. On 4 February 1999 the Supreme Court requested counsel’s comment on this issue. 28. On 17 February 1999 the applicants requested that an additional counsel be assigned to plead on the EU-law issues of the case. This was refused by the Supreme Court on 24 February 1999. The following day, the applicants requested that a named attorney substitute their counsel as to the EUlaw issues. This request was granted on 18 April 1999 and the proceedings were adjourned for eight weeks pending comments from the substituting counsel. 29. It appears that the substituting counsel three times was granted an extension of the time-limit to submit his comments, thus his first written pleading was submitted on 5 October 1999. 30. The Prosecutor General stated definitively on 3 November 1999 that he found no basis for referring the case to the Court of Justice for a preliminary ruling. 31. The exchange of pleadings on this question continued until 7 April 2000, as the substitute counsel three times requested that the Prosecutor General submit written replies to various questions put by counsel on the issue. Each time the replies were followed by a comprehensive pleading by the substitute counsel. 32. On 22 August 2000 the Supreme Court decided not to refer the case to the Court of Justice for a preliminary ruling, as it found that there was no obligation to notify the European Commission of the specific section of the Act on freshwater fish farms of 5 April 1989, with which the applicants were charged, and that there was no reasonable doubt that the section in question was in accordance with European Community legislation. 33. By judgment of 16 February 2001 the Supreme Court upheld the High Court’s judgment in respect of the first applicant, but reduced the amount to be confiscated to DKK 240,000, and by judgment of the same date the Supreme Court upheld the High Court’s judgment in its entirety in respect of the second applicant.