CASE OF JENSEN v. DENMARK
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
5. The applicant was born in 1957 and lives in Skørping. 6. By an indictment of 25 October 2007 the applicant, jointly with three coaccused, was charged with violation of intellectual property rights under section 299 b of the Penal Code of a particularly aggravated nature, comprising professionally organised production, importation and sales, in which the defendants had cooperated on marketing substantial quantities of counterfeit goods in the form of designer knives, lamps and similar products. 7. From the beginning of 2006 the applicant was represented by lawyer A, and as from 21 August 2009, the applicant was represented by lawyer B. 8. By letters of 1 and 9 September 2009 A submitted his claim for legal costs to the City Court for work performed from 2006 until 2009. By decision of 24 September 2009 the City Court granted A fees in the amount of DKK 183,862.50 (approximately EUR 24,700) plus VAT and reimbursement of costs in the amount of DKK 2,060 which was provisionally to be paid by the Treasury. It appears that the transcript of the court records was sent to counsel A and the prosecutor in accordance with usual practice. Neither the applicant nor B was informed of this decision. 9. The case was heard before the City Court (Retten i Viborg) over 15 days between 24 September and 4 December 2009. 10. By a judgment of 4 December 2009, the City Court convicted the applicant and the three co-accused. The applicant was convicted on two out of fifteen counts and given a six months’ suspended sentence, and 120 hours of community service due to his good personal circumstances and the fact that his role had been a minor one. In addition the proceeds, estimated at 40,000 Danish Kroner (DKK), were confiscated, as were various copies of designer goods, such as lamps and cutlery. The applicant and B were present when the judgment was passed. The operative part of the judgment, including the matter of payment of legal costs, was read aloud when the judgment was passed. 11. A few days later lawyer B received a transcript of the judgment, which in the operative part relating to legal fees stated: “Each of the accused is to pay the legal costs relating to them, including the fee to counsel appointed to them.” 12. The applicant did not appeal against the judgment to the High Court, nor did the public prosecution. 13. According to a court record of 5 January 2010, the City Court approved the costs to be paid to B in the amount of DKK 247,200 (approximately EUR 33,200) plus VAT and reimbursement of other costs amounting to DKK 32,423. It was stated that the amount was to be paid by the applicant. 14. On 17 January 2010, on behalf of the applicant, B appealed against the decision. He did not contest the amount granted, but claimed that it should be paid entirely or partly by the Treasury. In support thereof, and with reference to section 1008, section 2, of the Administration of Justice Act, he submitted that the applicant had only played a minor role in the criminal case; that an extensive part of the production of evidence did not relate to him; that he had been acquitted of one count; and that the total fee was of a significant amount. 15. On 25 January 2010, the applicant received an invoice from the police, dated 19 January 2010, requesting him to pay legal costs in the amount of DKK 573,311 (approximately EUR 77,000) including A’s and B’s fees. This was the moment when the applicant became aware for the first time of the fees that had been granted to A. 16. On 26 January 2010, on behalf of the applicant, B extended his appeal of 17 January 2010 also to include the payment of costs to A, which in the applicant’s view should be paid entirely or partly by the Treasury. He also requested that the City Court send him the court records of the decision to grant fees to A. 17. On 8 February 2010 the City Court submitted a letter to B, with which was enclosed a copy of the judgment of 4 December 2009, which on 5 February 2010 had been rectified on page 90 in the operative part as follows: “The accused are to pay the legal costs, so that each of them pays the legal costs relating to them, including the fees for their appointed counsel.” 18. The court records of 24 September 2009 and A’s letters of 1 and 9 September 2009 were also enclosed with the letter. 19. By letter of 11 February 2010, B informed the High Court of Western Denmark that the applicant withdrew his appeal as regards the fees to be paid to B. Moreover, he requested permission to submit further observations as regards the fee that the applicant had been ordered to pay to A. 20. In a supplementary pleading of 4 March 2010, B maintained that A’s fees should be paid by the Treasury. He pointed out that the fees payable to A and B totalled DKK 573,311 and that therefore the payment duty would be manifestly disproportionate to the applicant’s responsibility and circumstances. Referring to section 1008, subsection 4, of the Administration of Justice Act, he thus requested that the payment duty be reduced. In his view, the time-limit for appealing against the decisions on the fees to be paid to A should, at the earliest, run from 25 January 2010, the date on which the applicant received the invoice from the police and thus became aware for the first time of the fees that had been granted to A. 21. By decision of 10 March 2010 the High Court dismissed the appeal as being lodged out of time. More specifically, it stated: “The interlocutory appeal does not concern the amount of the fee granted to the applicant’s two defence lawyers; it only concerns the City Court’s decision that the applicant must pay the legal costs relating to him, including the fee to his appointed counsel. This decision was integrated in the judgment of 4 December 2009 and the applicant, who was present when the judgment was passed, was informed of the decision during that hearing. Accordingly, the time-limit must be calculated from 4 December 2009, pursuant to section 969 of the Administration Act, even if the applicant only later learned how much the legal costs, including the fees for the defence counsel, amounted to. Thus, the time-limit had expired when the interlocutory appeal was lodged on 17 January 2010.” 22. Leave to appeal to the Supreme Court was refused by the Appeals Permission Board on 18 June 2010.