PROCEDURE

The case originated in an application (no. 32848/06) 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 Torben Moesgaard Petersen (“the applicant”), on 1 August 2006.

The applicant was represented by Ms Sysette Vinding Kruse, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice.

By a decision of 9 October 2007 the Court declared the application admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

The applicant submitted his claims for just satisfaction and the Government made their comments on that matter.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1958 and lives in Charlottenlund.

At 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 aggravated debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period and, for the sake of their own profit, “stripping” the companies of assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated in their economic criminal activities, which concerned very large amounts of money. According to surveys made 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. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993.

At the relevant time the applicant was part owner of a private limited stockbrokers company ([B] and [the applicant] A/S] - hereafter “the company”).

On 18 January 1994 he learnt that the tax authorities were about to check the company’s accounts for the years 1989 to 1992. On 6 May 1994 the tax authorities informed the applicant that the question of whether any criminal liability had occurred would be decided on later. The tax authorities also reported various potential co-offenders to the police.

During 1994, 1995 and at the beginning of 1996 the police carried out an investigation comprising, among other things, discovery orders against banks, international letters of request, search warrants and numerous interviews of witnesses.

On 17 June 1996, the Copenhagen City Court (Københavns Byret – hereafter “the City Court”), sitting in camera, granted the police a warrant to search the premises of the applicant’s business and those of the company.

On 2 July 1996 the search was carried out by the police.

From July 1996 to February 1998 various investigative steps were taken, also relating to five co-accused in the case, for example searches in Denmark, Switzerland and Sweden, numerous interviews in Denmark and abroad, international letters of request, a request to Interpol, fifteen discovery orders and an order prohibiting the disclosure of the applicant’s name. Moreover, on 19 March 1997 a request for an accountant’s report was made and material for that purpose was obtained, including statements of account, cheque vouchers and so on.

On 12 February 1998 the applicant was officially charged and interrogated by the police.

On 25 June 1998 an indictment was submitted to the City Court, according to which the applicant (and five co-accused, A, B, H, N and R) were charged with “tax asset stripping” committed jointly. The applicant was charged on forty-four counts out of a total of fifty-nine, committed between 26 June and 3 November 1992. His responsibility related to an amount of DKK 87,000,000, equal to approximately 11,600,000 euros (EUR) out of the total tax amount evaded in the case which came to approximately EUR 19,000,000. The indictment related to eighty different companies and six banks in Denmark and abroad.

Between July 1998 and 10 March 1999, fifteen pre-trial hearings were held and the draft of the accountant’s reports was submitted. On the former date, the case was set down for trial on 15 March 1999.

Between 15 March 1999 and 31 January 2001, a total of 119 hearings were held. The applicant, the five co-accused and more than seventy witnesses were heard, including state-registered public accountants. Statements of accounts and a considerable amount of other documentary evidence were also produced. The court records comprised 1,330 pages. The closing speeches were held over ten days in November 2000 and January 2001.

By a judgment of 6 April 2001, which ran to 220 pages, the City Court convicted the applicant in accordance with the indictment. The co-accused were also convicted. The applicant was sentenced to three years’ imprisonment. In addition, the sum of DKK 3,600,000 was seized, and he was deprived for an indefinite period of the right to establish a private limited company or a company or an association requiring public approval, or to become a manager and/or member of a director’s board of such companies.

The City Court dismissed the applicant’s claim that the length of the proceedings had been at variance with Article 6 of the Convention stating the following: “The City Court finds no reason to criticise the prosecution’s decision to join the criminal proceedings against the [applicant and the five co‑accused]. Accordingly, and having regard to the mutual connection between the cases and their character, the City Court finds no violation of Article 6 of the Convention, although there were longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. In this connection [the City Court] notes that the complexity of the acts carried out by [the applicant and the five co-accused] partly when buying and “stripping” the companies for assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. In the City Court’s opinion there were no longer periods, whether before the police, the prosecution or the City Court, during which no part of the case proceeded. It must be emphasised that due to the nature and scope of the charges, the cases against [the applicant] and [the co-accused B and R] could not proceed before the cases against [H, N and A] [had been heard]. [Finally], in view of the character and complexity of the case, [the City Court] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the Convention.”

On 15 May 2001 the applicant and the five co-accused appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret - “the High Court”).

After that date, twelve preparatory hearings were held, including one on 13 September 2001 during which the trial was scheduled with numerous fixed dates to commence on 24 September 2002. Counsel for the applicant and the co-defendants jointly replied that they only had very limited possibilities to appear during the autumn of 2002.

Thus, although the trial commenced on 24 September 2002, most of the hearings took place in 2003 and 2004. A total of about 90 hearings were held in the case. In February and March 2004 the appeal hearings had to be postponed because a co-defendant fell ill. For the same reason the High Court changed the order of some of the hearings. The Court records comprised 861 pages. The closing speeches were held over ten days in April, May, and June 2004.

On 28 September 2004 the High Court upheld the City Court’s judgment. As regards the length of the proceedings, it stated: “In the assessment of whether the proceedings have been concluded within a reasonable time, the starting point ... concerning the [applicant] was on 12 February 1998, when he was charged ... [The High Court] upholds the City Court’s judgment and its reasoning with regard to the question of whether Article 6 of the Convention has been violated ... The appeal proceedings were scheduled and carried out without any unreasonable delay. On 13 September 2001 the trial was scheduled to take place on fixed dates as from 12 August 2002. A number of hearing dates in the autumn 2002 and the beginning of 2003 had to be cancelled because some counsel were occupied [with other cases], for which reason the [present] case was delayed. To avoid any further delay caused by impossibilities to appear, the trial, which commenced on 24 September 2002, proceeded in a proper, but not completely suitable order.”

In the period from 7 to 12 October 2004, the applicant and the co‑defendants requested that the Leave to Appeal Board (Procesbevillingsnævnet) grant them leave to appeal to the Supreme Court (Højesteret). Three of the defendants stated in their petitions that they would submit supplementary comments, which were received on 17 December 2004. In January 2005 the cases were sent to the prosecution, which gave its opinion on 29 March 2005. The applicant and the co‑defendants gave their comments in reply and at a meeting on 5 August 2005 the Leave to Appeal Board decided to refuse the requests. Letters of refusal were not sent out, however, as on 9 August 2005 counsel for one of the co-defendants stated that he wanted to submit supplementary comments in the light of a recent judgment in a similar case.

Thereafter, due to an error, nothing happened in the case until 2 May 2006, when the police telephoned the Leave to Appeal Board and drew attention to the case. Subsequently, on his request, counsel for the relevant co-defendant who had wanted to submit supplementary comments did so on 2 and 13 June 2006. The applicant and the co-defendant were informed on 21 June 2006 that their requests for leave to appeal to the Supreme Court had been refused. At the same time the Leave to Appeal Board apologised for the length of the proceedings before it.