PROCEDURE

The case originated in an application (no. 44034/07) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Rolf Nielsen (“the applicant”), on 12 September 2007.

The applicant was represented by Mr K.L. Németh, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mrs Nina Holst-Christensen of the Ministry of Justice.

On 28 March 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lives on the island of Samsø.

In the beginning of the 1990s a new concept called “tax asset stripping” (selskabstømmersager) came into existence in Denmark. It related mainly to a criminal activity whereby the persons involved committed aggravated debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period and, for their own profit, “stripped” the companies of assets including deposits earmarked for payment of corporation tax. The persons involved were usually closely interconnected and collaborated on their criminal activities, which involved very large amounts of money. According to a survey conducted 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. In addition to the criminal cases, tax asset stripping gave rise to a large number of cases for damages relating to the sellers’ and the buyer banks’ liability for the loss arising when the companies were stripped of their funds in connection with the sale. Following a number of legislative amendments, the trade in inactive solvent companies largely ceased in the summer of 1993.

On 27 November 1992, in his role as owner and managing director, the applicant sold a private limited company originally called Soft TUX Aps, the name later being changed to HOP no. 49.

On 30 March 1995 HOP no. 49 went bankrupt. A trustee in bankruptcy was appointed to manage the estate and settle the accounts.

On 6 October 1997 the trustee, on behalf of the bankrupt HOP no. 49, initiated civil proceedings before the High Court of Eastern Denmark (Østre Landsret), the High Court, against the applicant and a bank (BG Bank A/S), requesting that the defendants be ordered jointly and severally to pay approximately 4.4 million Danish kroner (DKK), equivalent to approximately 594,000 euros (EUR). The trustee alleged that the defendants had been responsible for stripping the company of assets in connection with the above-mentioned sale in 1992.

On 18 November 1997 the defendant BG Bank A/S joined the proceedings and raised an individual claim against the applicant, an accountancy firm (Revisorhuset A/S) and two lawyers, HAV and PF, as defendants in the main proceedings.

On 20 November 1997, maintaining that he had been misled by his advisers, the applicant brought proceedings against a lawyer CH, a law firm G and N, an accountant JOL, Revisorhuset A/S and BG Bank A/S as defendants in the main proceedings.

Formally the proceedings included twelve parties. However, since the applicant and BG Bank A/S acted both as defendants and third-party defendants, and Revisorhuset A/S had been joined to the proceedings by both the applicant and BG Bank A/S, the proceedings included nine different parties. Subsequently, in 2002 the proceedings against Revisorhuset A/S were abandoned because it ceased to exist. Six of the remaining eight parties were represented by five different counsels and two of them had no legal representation.

Seven hearings were held and several written pleadings exchanged between October 1997 and 17 September 1999.

On the latter day all parties, including the applicant, agreed to adjourn the proceedings until 14 January 2000 pending a Supreme Court judgment in a similar case, hereafter called the Else Thrane case. In that case, as in the present case, an estate in bankruptcy had sued the seller of the company for damages as the company had been stripped of its assets in connection with the sale and was therefore unable to pay corporation taxes. Thus, the crucial matter concerned the question of liability of the buyer’s bank and the buyer’s attorney and accountant for the advice provided by them.

The judgment in the Else Thrane case was passed by the Supreme Court on 24 November 1999 (published in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen 2000, page 365/2), in the light of which the proceedings in the present case were adjourned awaiting the parties’ settlement negotiations. The proceedings and the settlement negotiations were adjourned on 7 April 2000 and several times thereafter because the applicant’s first counsel (L) resigned and the applicant had to appoint a new one.

In October 2000 new counsel (D) submitted a pleading and the exchange of pleadings and settlement negotiations were therefore resumed until the end of April 2001, when the applicant stated that he did not wish to enter into a settlement. Immediately thereafter, the High Court summoned the parties for a hearing to take place on 15 June 2001, during which the applicant mentioned that it might be possible to reach a settlement if various requests were met. The parties, including the applicant, thus agreed to adjourn the proceedings anew in order to reach a settlement.

In November 2001, the applicant informed the High Court that his counsel had resigned and that he did not wish to enter into a settlement.

A hearing was held on 22 February 2002, in agreement with the applicant the High Court requested that a new counsel be retained, inter alia to submit a pleading stating on which points, in the applicant’s opinion, the present case differed so much from the Else Thrane case that the Supreme Court’ judgment in that case could not guide the outcome of the present case. A hearing was scheduled for 12 April 2002, at which new counsel (B) appeared for the applicant. However, he informed the High Court on 22 August 2002 that he was no longer handling the applicant’s interests. At a hearing the following day, the applicant was represented by another counsel (S), who although given until 27 September 2002, submitted the awaited pleading on 10 January 2003. Thereafter, pleadings were exchanged regularly and several hearings held.

At a pre-trial review held on 2 February 2004 only counsel for BG Bank A/S was present. He was requested to investigate whether the applicant was represented by counsel, since the case seemed ready for trial.

In March 2004, upon request the High Court adjourned the proceedings until 19 January 2005 awaiting the Supreme Court’s decision regarding a claim from BG Bank A/S that it was entitled to a contribution from one of the third‑party defendants.

On 4 March 2005 the applicant complained about the adjournment and invited the High Court to schedule the trial and accordingly a hearing was held on 22 March 2005. In order to discuss how to schedule the main proceedings and/or the third party cases, a pre-trial review was scheduled to take place on 23 November 2005.

In a letter of 9 November 2005 to the High Court, the applicant complained about the length of the proceedings and at the same time requested an adjournment of the forthcoming pre-trial review since he wanted a new counsel. He also stated that he would not be in Denmark until Christmas.

On 22 November 2005 the High Court refused the applicant’s request since, according to the information available, the applicant had not been legally represented since 2 February 2004, and the pre-trial review had been scheduled since 22 March 2005.

The pre-trial review was held on 23 November 2005 without the applicant’s presence.

By letter of 8 December 2005, a new counsel, namely the lawyer representing the applicant in the proceedings before the Court, informed the High Court that he was representing the applicant in the domestic proceedings.

Accordingly, and since the applicant alleged that he had not been summoned to the pre-trial review on 23 November 2005, the High Court summoned the parties to another pre-trial review to take place on 4 May 2006. During that review the trial was fixed for five days in August 2007.

On 23 August 2006, the High Court rescheduled the trial at the request of one of the parties and suggested three alternative periods during the autumn and winter of 2007 which were submitted to the respective parties for comments. The trial was thereafter postponed to take place in September 2007.

Court sessions were held on 20 August and on 14, 24 and 26 September 2007. A new legal issue arose between the BG Bank A/S and a third-party defendant and the High Court therefore chose to use some of the days reserved for the trial to clarify the matter and for settlement negotiations. At the last session, the trial was scheduled to take place “possibly” from 9 to 11 April 2008, in case the negotiations proved fruitless.

At the beginning of the trial on 9 April 2008, the applicant claimed that one of the High Court judges had to vacate his seat due to disqualification. Although indicating that it did not find the relevant judge disqualified, the High Court did not want to conduct the trial without the requisite respect for the court’s impartiality. Thus it re-scheduled the trial for October 2008.

The trial was held in October 2008. On 10 December 2008 the High Court passed judgment finding against the applicant.

The applicant appealed against the High Court judgment to the Supreme Court (Højesteret) on 19 December 2008.