PETERSEN v. DENMARK
Inadmissible
Giovanni Bonello
The applicant, Mr Troels Petersen, is a Danish national, who was born in 1964 and lives in Kokkedal. He is represented before the Court by Mr Søren Beck, a lawyer practising in Copenhagen. The Goverrnment are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 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 aggravating debtor fraud by buying up and selling numerous private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts. I. On 15 April 1994 the Tax Authorities reported to the Public Prosecutor for Serious Economic Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) that allegedly, a person henceforth called JM, and three other persons had participated in the acquisition and stripping of seventy private limited companies (the Centra Finans case). The Tax Authorities made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant's name figured and his role as vendor of private limited companies was described. In December 1994 the Copenhagen City Court (Københavns Byret) issued a warrant of arrest against JM, who was staying abroad. On 11 May 1995 the Copenhagen City Court issued a search warrant for the premises of the applicant, who was neither provisionally charged (sigtet) nor charged (tiltalt). The search was carried out on 23 May 1995 and the applicant was interviewed by the police without being charged. On 10 August 1995 JM was remanded in custody, from which he escaped on 3 October 1995. He was arrested in France in April 1996, and served a sentence there before he was surrendered to the Danish police on 29 May 1997. In the meantime the Copenhagen Police had questioned the applicant on 5 October 1995. An order for surrender of details on bank accounts in Britain was issued on 23 February 1996. Another search warrant against the applicant was issued by the Copenhagen City Court on 18 October 1996. It was carried out on 24 October 1996, and the applicant was formally charged with tax asset stripping allegedly having been committed in six cases during the spring of 1993 with a risk of loss to the Treasury of approximately thirty million Danish kroner (DKK). JM was charged with tax asset stripping in twenty-seven cases. The police also investigated other persons in connection with the case, but their criminal cases were conducted separately. In the spring of 1997 the applicant gave permission that the police obtain details from his accounts with his bank in Switzerland. The latter and account details from the bank in Britain were submitted to the police in June 1997. On the prosecutions' request a hearing was held before the Copenhagen City Court on 18 August 1997 in order to plan the course of the proceedings. Dates for the trial were agreed on. It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster. Counsel stated that this was not possible since they were occupied by other matters, including hearings already scheduled in other proceedings. An indictment was issued by the prosecution on 11 September 1997 and the trial before the City Court commenced on 23 October 1997. Fifty-eight hearings were held altogether. The applicant, JM and forty-five witnesses were heard, including a state-authorised public accountant, who gave evidence over two court days in which he elaborated the audit reports, etc. In addition, a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with Danish and foreign companies and money transaction in Danish and foreign banks (in Britain, Switzerland and the United States). Each set of exhibits for the case took up fifty-three A4 binders, which included four audit reports, two supplementary reports and two statements of transaction prepared for the case by the state-authorised public accountant. The closing speech of the applicant's counsel took about two and a half day, that of the JM's counsel a little more than two days, and that of the prosecutor about three days. The City Court, sitting with six lay judges, met six times and deliberated for altogether three and a half days. By judgment of 9 March 1999, which ran to one hundred and thirty-five pages, the City Court convicted the applicant of participation in tax assets stripping as to DKK 29,748,769. He was sentenced to three years' imprisonment; an amount of DKK 3,800,000 was seized; and in addition for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. JM was convicted by the same judgment. The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things: “...on the material before it the court cannot find it established that the investigation laid unnecessary idle during the periods, on which [the applicant] specifically has relied [i.e. de facto from April 1994 until October 1996]. Furthermore, the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ...have shown, inter alia, that it has been time-consuming and difficult to procure various details for the case from foreign authorities and banks in general, i.e. also during the investigation, not least concerning [the applicant]. The length of the proceedings is not due only to the affairs of [JM], but also due to the need [during the investigation and the trial] of illuminating the role of [the applicant] Moreover, the investigation concerning both [JM and the applicant] was rendered difficult by the fact that [JM] had left Denmark and stayed abroad without notifying the Danish authorities of his residence in the period from June 1993 until 9 August 1995 and later escaped from custody and fled abroad in the period from 3 October 1995 until 11 April 1996, whereupon he was furthermore remanded in custody and served a sentence in France from 11 April 1996 until 29 May 1997.” On 14 April 1999 the applicant lodged an appeal against the judgment to the High Court (Østre Landsret), before which 20 hearings were held. By judgment of 27 September 2000 the High Court upheld the City Court's judgment. The appeal court also rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time. It stated inter alia: “The High Court finds that there are no major periods of time during the proceedings with the police, the prosecutor, the City Court or the High Court when the case has not been duly expedited. It should be noted that it is solely due to the circumstances of [the applicant] and his counsel that the case could not be tried by the High Court in the autumn of 1999. Accordingly, and in view of the nature and the scope of the crime, which has necessitated comprehensive investigation, the total length of the proceedings does not involve any violation of Article 6 § 1 of the Convention.” On 15 February 2001 the applicant requested leave to appeal against the High Court judgment to the Supreme Court (Højesteret). His request was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 3 April 2001. II. In the early 1990s the Police in Frederikssund with the assistance from a special crime squad carried out investigation of several tax assets stripping cases, which resulted inter alia in eight persons being indicted in July 1996. As part of the investigations accountants had been asked to draw up statements of accounts. Those were submitted on 7 July 1997 and led the police's attention to other persons involved. On 7 November 1997 the applicant was provisionally charged with participation in tax assets stripping having been committed in 1992-1993 and by indictment of 17 December 1997 prosecution was initiated against him and five coaccused (the Lacewood case). On the same date the indictment was forwarded to the City Court of Frederikssund (Retten i Frederikssund) although the investigation had not been completed. It emerges from the court records of 29 April 1998 that the parties discussed the scheduling of the trial. The applicant's counsel was not able to attend the trial until after November 1998 and some of the other counsel were unable to appear until after April 1999. By request of counsel for two co-accused, on 12 May 1998 the City Court of Frederikssund decided to transfer the case to Copenhagen City Court being the proper venue. The public prosecution appealed in vain against this decision. Thus, the High Court found against the public prosecution on 3 June 1998, and the latter's request for leave to appeal to the Supreme Court was refused by the Leave to Appeal Board on 7 August 1998. The Copenhagen City Court received the case on 4 September 1998. On 1 October 1998 an audit “liquidity statement” requested by the prosecution was completed and included in the case file. At a court session held on 2 December 1998 the trial was scheduled to commence in the spring of 1999. From the court records of 17 February 1999 it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before the Copenhagen City Court, and that therefore the trial could not start until 9 August 1999. Five hearings already scheduled for April and June 1999 were maintained and reserved for various requests made by counsel. It appears, however, that the said five hearings were subsequently cancelled. A supplementary indictment was issued on 20 July 1999. In the period between 9 August 1999 and 1 December 2000 altogether one hundred and five court sessions were held before the Copenhagen City Court. The applicant, the co-accused, and more than one hundred witnesses were heard. In addition, the above “liquidity statement” and a considerable amount of other documentary evidence were presented, thus about thirty A4 binders were read out during the trial. On 18 December 2000 the case was set down for judgment, which was pronounced on 2 March 2001 and ran to two hundred and twenty-two pages, and by which the applicant and the co-accused were convicted. As to the metering out the applicant's sentence, the court found that the sentence previously imposed on the applicant, upheld by the High Court on 27 September 2000 (see under I.), would not have been increased, had the two trials against him been joined. Thus, no additional sentence was imposed on the applicant. He was, however, deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things: “The [crimes] were committed in the period from 1991 until 1994. Prosecution was initiated by the indictment of 17 December 1997 and the supplementary indictment of 20 July 1999. The defendants were originally indicted before the City Court of Frederikssund, but the case was referred to the Copenhagen City Court by order of 12 May 1998 passed by the City Court of Frederikssund. This order was appealed against to the High Court, which dismissed the appeal by order of 3 June 1998. On 7 August 1998 the Leave to Appeal Board refused to grant the prosecutor leave to appeal to the Supreme Court. The Copenhagen City Court received the case on 4 September 1998, and during a court session held on 2 December 1998 dates were fixed for the trial. [The court sessions scheduled to take place in the spring of 1999] were later cancelled, and the trial took place as from 9 August 1999 and onwards. According to the information available, the time spent on investigation and initiation of prosecution by the prosecutor cannot be blamed the latter. In this connection, importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad. Accordingly, Article 6 of the Convention has not been breached” The applicant did not appeal against the judgment.