LAVRSEN v. DENMARK
Inadmissible
Christos Rozakis
The applicant is a Danish national, born in 1942, living in Piraeus, Greece. He is represented before the Court by Mr Jakob Skaarup Arrevad, a lawyer practising in Copenhagen, Denmark. The respondent Government are represented by its Agent Mr Hans Klingenberg, the Ministry of Justice, and its Co-Agent, Mrs Nina Holst-Christensen, the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. By indictment of 5 September 1991 the applicant, at that time a practising lawyer, jointly with one of his clients, henceforth called MA, was charged with aggravated breach of trust alleged to have been committed in their roles as manager and/or chairman of the board of two companies, owned by MA over a short period between July and September 1989, during which period, they had let the companies purchase three industrial properties from a company controlled by MA at a price substantially above market value, the amount including an agency commission to MA exceeding 4.6 million Danish kroner (DKK), whereby the acquiring companies suffered or risked suffering a corresponding financial loss. The companies went bankrupt on 26 September 1989. Moreover the applicant (and MA) was charged with fraud alleged to have been committed in the same period relating to the sale of two cars to a person henceforth called SP under the pretence that the cars were not in pawn. The applicant and MA pleaded not guilty on both counts. As regards the second count they claimed that SP acted in bad faith. Several hearings were held in the City Court. During these proceedings SP and 8 other witnesses were heard, including 3 witnesses henceforth called MWK, KAT and IK. The prosecution and the defence agreed not to hear 2 witnesses henceforth called THL and BA. By judgment of 8 December 1992 the City Court of Ballerup (Ballerup ret) convicted the applicant (and MA). The applicant was sentenced to 2 years’ imprisonment and deprived of his right to practise law. From the judgment it appears that in order to convict the applicant (and MA) of aggravated breach of trust the court relied partly on the testimonies given by MWK and KAT concerning the contents and aim of some particular transactions these witnesses had with MA. As regards the charge of fraud it appears that the court relied partly on the testimonies given by SP and IK concerning the sale of the 2 cars. The applicant (and MA) appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret). During these proceedings 11 witnesses were heard, including SP, MWK, KAT and IK. As regards these witnesses the applicant expressed doubts during the proceedings in the High Court as to their credibility and therefore requested the prosecution to provide information about their criminal records, and that counsel for the defence be allowed to ask questions, in writing, about any pending charges which might have been brought against them concerning financial crime. In accordance with section 185 of the Administration of Justice Act (Retsplejeloven) this was complied with. MWK and IK confirmed that charges were brought against them. SP had previously been convicted of fraud and fraudulent preference. On 21 December 1993 the High Court of Eastern Denmark upheld the judgment, but increased the sentence to 2 years and 6 months’ imprisonment. As regards the conviction for aggravated breach of trust the High Court referred to the reasoning given by the City Court. However, regarding the conviction for fraud the High Court relied, in addition to the reasoning given by the City Court, on testimony given by a witness who was not heard before the City Court. After the trial in the High Court and due to press coverage, the applicant and counsel for the defence, accidentally became aware that within the police a so-called Information Centre in January 1990 had composed a note called “Anti-Social Trade” (Samfundsskadelig Samhandel), henceforth called the note, illustrating a new pattern of crime, and outlining 23 named individuals suspected of being interrelated in a network of financial crimes in Denmark, mainly concerning fraudulent trading in connection with deliberate bankruptcy intentions, breaches of laws concerning bookkeeping and accounting in companies, customs and excise fraud committed in connection with car sales, and finally fraud related to the raising of credit secured on real property. Among the persons mentioned in the note were the applicant, MA, SP, MWK, KAT, IK, THL and BA. The note contained information about judgments, charges, dropped charges, and mere suspicions against each person in regard to the above criminality, and a statement of their assumed mutual business connections. According to the note it was ascertained that this limited circle, among others, systematically exploited those loopholes and ambiguities in the Danish legislation, which sometimes arise in connection with new legislation and/or reorganisation of administrative procedures. It appears from the introductory paragraphs of the note that the State Prosecutor for Financial Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) in 1989 decided that the Information Centre was to illustrate this new pattern of crime. The Information Centre was not supposed to go into depth as to bring forth evidence to prove that crimes had been committed, it was merely intended to outline the information available. If the result turned out as expected the purpose was to have a special group appointed from several different police units, as none could manage the task alone for resource reasons. This group was then to make concrete investigations with the targeted attempt to have proceedings instituted against the individuals in question. The note was distributed to the Prosecutor General (Rigsadvokaten), the State Prosecutors (Statsadvokaterne), the National Commissioner of Police (Rigspolitichefen) and the various police districts. The prosecution did not submit the note, either to the applicant, or to the court during the criminal proceedings against the applicant The applicant requested leave to appeal against the above judgment of the High Court to the Supreme Court (Højesteret). With a view to this counsel for the defence asked the prosecution, on 16 June 1994, to submit a copy of the above note. However, access to the note was refused by the State Prosecutor for Financial Crime on 22 July 1994, by the Prosecutor General on 2 November 1994 and by the Ministry of Justice (Justitsministeriet) on 12 April 1995. The applicant then brought legal proceedings before the High Court of Eastern Denmark against the Ministry of Justice requesting that counsel for the defence be given access to the note. Before the High Court as regard the nature of the note in general the Ministry of Justice referred to its reply of 30 May 1996 to a question from Parliament, according to which inter alia: “The note has been drafted by the Information Centre...mainly for use in deliberations on how to rank the cases in order of priority, on combinations of resources and on prosecution competence... On the basis of the note...concrete investigative steps were taken, and that was the primary purpose of the note...several of the individuals referred to in the note have been prosecuted and a number of them have been convicted. The note contains a compilation of a series of particulars and suspicions... concerning 23 named individuals. The note was thus a good foundation, in an investigating context, for the police and the prosecutors to ensure better co-ordination of the investigation and the commencement of prosecution in cases regarding financial crime...” The High Court of Eastern Denmark found for the Ministry on 7 November 1996. The applicant appealed against the judgment to the Supreme Court, before which the prosecutor in the applicant’s trial as a witness stated that he was given a copy of the note as general material like all other prosecutors working for the State Prosecutor for Financial Crime, but since the note did not form part of any specific case, he did not use it in connection with his work on the applicant’s case. The Supreme Court found for the applicant on 11 June 1998, stating as follows: “According to section 745, subsection 1 of the Administration of Justice Act the defence is entitled to have access to material produced by the police. As stated by the Prosecutor General in his notice No. 5 of 15 April 1992, to come within the scope of this provision, the material needs to have some connection with the relevant trial. However, it does not have to be of real importance to the investigation or to the possible continuation of the prosecution. From the Minister of Justice’s answer of 30 May 1996 to Parliament it appears, among other things, that as a result of the “Anti-Social Trade” note and in accordance with the main aim of the note, specific measures and investigation were initiated. The Ministry of Justice does not dispute that the applicant, the co-accused and some of the witnesses who were heard during the applicant’s trial figure in the note, including the mutual relationship among some of them. The investigations were initiated shortly after the note was composed, and both the persons in charge of the investigations and the prosecutor were in possession of the note. In these circumstances, the Supreme Court considers that the note has such a connection with the applicant’s trial that the defence is entitled to have access to it cf. section 745, subsection 1 of the Administration of Justice Act.” A copy of the note was hereafter sent to the applicant’s counsel on 23 June 1998. Subsequently, in support of his request for leave to appeal the applicant alleged that Article 6 § 1 of the Convention had been violated, notably as the principle of equality of arms had not been complied with. In this respect he referred to the content of the note, with which both the police and the prosecution were familiar, but which was not available to counsel for the defence during the criminal trial. On 12 October 1998 the Ministry of Justice refused the applicant’s request for leave to appeal to the Supreme Court for which reason the High Court judgment of 21 December 1993 became final.