COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY Application No. 8464/79 by M G against Denmark The European Commission of Human Rights sitting in private on 3 December 1979, the following members being present: MM. J. E. S. FAWCETT, President C. A. NØRGAARD L. KELLBERG B. DAVER C. H. F. POLAK J. A. FROWEIN G. JORUNDSSON G. TENEKIDES S. TRECHSEL B. KIERNAN M. MELCHIOR Mr. H. C. KRUGER, Secretary to the Commission Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 9 November 1978 by M G against Denmark and registered on 4 January 1979 under file No. 8464/79; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: 8464/79 -2 THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows: The applicant is a Danish citizen, residing in Denmark. He is an advocate by profession. He is also a member of the Danish Parliament (Folketinget) and the founder and present leader of the Progressive Party (Fremskridspartiet). On 30 January 1971 the applicant was interviewed on Danish television. In this interview, he heavily criticized the Danish income tax legislation. (This was prior to the foundation of the Progressive Party.) From the day of the television transmission, the applicant maintains he has been subject to constant persecution by the authorities and those in power in Denmark, who hold opposite views to his on matters of taxation. He states that the mass media in Denmark has stood by his opponents. In March 1972 the police started investigating his activities as an advocate, seemingly in special relation to corporation law and tax law. On 13 April 1972 the Municipal Court of Copenhagen (Københavns Byret) issued a decree that the applicant's premises should be searched. On 17 April 1972 the police searched his office and his home. Ever since then, the applicant maintains, every piece of paper in his office has been under surveillance by the police and the tax authorities. This situation, he states, has scared away his clients and tremendously affected his law business. In the beginning of May 1973 the Minister of Justice stopped granting the applicant leave to administer estates. The police investigation into the applicant's activities continued, and on 6 June 1974 the Danish Parliament (Folketinget) lifted his immunity, so that he could be prosecuted for criminal offences. In June 1974 the Public Prosecutor (Rigsadvokaten) issued an indictment against the applicant in which it appears that he was inter alia charged with tax evasion, fraud, and usury. -3- 8464/79 The proceedings were heard before the Municipal Court of Copenhagen (Københavns Byret). Two lawyers, advocate Philip Ingerslev and Professor Dr. Jur. Théger Nielsen, were appointed to defend the applicant. To the applicant's regret, the latter was later (on 18 February 1975) "bullied from the case," as he puts it, to be replaced by Mr. Ebbe Suenson, advocate to the Supreme Court of Denmark. The applicant requested a jury trial in accordance with Art. 687 C of the Procedural Statute, as he maintains that the charges put against him were of a political nature. This request was finally rejected by a decision of the Supreme Court on 3 December 1974. The applicant states that the trial before the Municipal Court of Copenhagen took 202 sessions, about 3,000 hours, during which thousands of pages of documentation were produced. However, in spite of this, he maintains that nothing could hide the fact that this trial was merely a political persecution, staged by his political adversaries to obstruct his political work within Parliament and ultimately to bring about his political downfall. During the trial, the applicant's defense requested that several ex-ministers and public officials be summoned to appear before the court to give evidence. This request was turned down by the Municipal Court by a decision given on 21 October 1974, as being irrelevant for the matter at issue. On 17 February 1978 the Municipal Court of Copenhagen pronounced its judgment in the case. It appears that he was fined 1.5 million Danish Crowns for inter alia breaking Art. 13, para. 1 of the Tax Regulatory Act, in conjunction with Art. 21 of the Penal Code and the Income Tax Act, Art. 75, No. 2, in conjunction with Art. 74, No. 2, in conjunction with Arts. 163 and 296, Nos. 1 and 2 of the Penal Code. The fine was with the alternative of six months' imprisonment. The applicant was furthermore sentenced to pay 1,986,712 Danish Crowns in unpaid taxes, as well as some specified procedural costs. 8464/79 -4 On the other hand, the applicant was acquitted of the fraud charges and of charges based on Art. 296 of the Penal Code concerning corporation transactions, as well as of the charge that his license to practice law should be revoked. On 24 February 1978 the prosecution appealed the judgment to the Court of Appeal (Østre Landsret) in Copenhagen, demanding a more severe punishment than was given by the Municipal Court of Copenhagen, except for the charges based on Art. 296 of the Penal Code, which the court had found proscribed. On 28 February 1978 the applicant cross-appealed, claiming acquittal of all charges. The applicant was not satisfied with his defense lawyers, whom he thought were incapable of handling his case properly. He therefore requested the President of the Court of Appeal to appoint new lawyers. The President rejected the request and on 24 April 1978 appointed the same lawyers for the defense, as he found it unnecessary to burden new lawyers with getting acquainted with this bulky and complicated case, since the present ones were perfectly capable. In this connection, the applicant draws attention to the fact that the prosecution "changed horses" before the Court of Appeal. The applicant appealed against the decision of the President of the Court of Appeal to the Supreme Court, which, on 6 June 1978, upheld the President's decision. The hearings of the case before the Court of Appeal began on 4 September 1978 and were scheduled, as a rule, to be continued every Monday, Wednesday, and Friday. The applicant found that these court sessions interfered greatly with his work in Parliament. While working in Parliament, he maintained he was legally excused (lovligt forfald) from appearing in court. This caused controversies between the prosecution and the defense, which sometimes led to court decisions regarding the scheduling of the hearings. The court in its decisions sometimes granted the defense postponement of fixed hearings and sometimes not, depending on the importance of matters being dealt with in Parliament at certain times and on the applicant's connection with them. The relevant court decisions were given on 23, 27, and 30 October 1978. On 25 October 1978 the defense requested a general postponement of hearings because of the applicant's commitments in Parliament. This request was rejected by the court by decision of 27 October 1978, and a hearing was fixed for 30 October 1978. 8464/79 On 9 November 1978 the applicant applied to the European Commission of Human Rights, the European Court of Human Rights, and the United Nations Human Rights Committee. In a letter to the Commission, dated 29 December 1978, he declared that he would revoke his application to the United Nations Human Rights Committee if it were considered that this might prevent it from being admitted by the European Commission of Human Rights according to Art. 27 (1) of the Convention. In the meanwhile, he has withdrawn his application to the United Nations Human Rights Committee. At a hearing in the Court of Appeal on 27 November 1978, the defense requested: Primarily: that the hearings before the Court of Appeal be postponed until one of the above-mentioned International Organizations has declared the application admissible or until all three of them have rejected it. Alternatively: The defense requested a postponement of three months. The applicant's defense lawyer, Mr. Ebbe Suenson, pleaded this request before the court, and the applicant himself also wished to expound upon the documentation that he had submitted to the European Commission of Human Rights (113 documents, approximately 400 pages). The applicant states that the court gave him 30 minutes to do that, which was insufficient time in the applicant's opinion. It appears that the Court did not grant these requests. The applicant has since continued to ask for postponements of the listing of his case for hearing when it clashed with his political work within Parliament. When the court did not honor such requests, it seems, the applicant did not make an appearance. On 14 February 1979 the Court of Appeal (Østre Landsret) issued a decree stating, inter alia, "further explanations from the defendant concerning the indictment Count I shall be given in continuity in subsequent court sessions. Otherwise, the defendant will be barred from giving further explanations concerning Count I." 8464/79 -6 Both the Public Prosecutor and the applicant appealed this decree to the Supreme Court after having been granted leave to do so by the Ministry of Justice, on 28 February 1979. The Supreme Court (of five justices) gave its decision on 6 April 1979. In it, the Court observes that in the period from 14 February until 29 March 1979, fourteen court sessions were held in the case before the Court of Appeal (Østre Landsret), of which three sessions were adjourned. The applicant appeared at six of these sessions and left one of them before it was finished. The Supreme Court noted in its reasoning that the applicant had, by his non-appearance, clearly obstructed the course of justice before the Court of Appeal, and decided by three votes against two votes (who wanted to dismiss totally the applicant's appeal for acquittal to the Court of Appeal because of his non-compliance with court orders) to uphold the decree of the Court of Appeal. The Supreme Court's decision concluded by stating: “The Court hearings shall be dealt with at the greatest possible speed in the following way: that the defendant's requests for postponements or to be excused from appearing in court shall only be complied with on very exceptional occasions; that this also applies when the defendant invokes his political work; that if the defendant does not appear at a court hearing without being legally excused (lovligt forfald), he shall be barred from later submitting evidence that should have been given at that hearing; that the defendant is barred from giving further explanations on Count I of the indictment." COMPLAINTS The applicant points out that he is the leader of the biggest political party in opposition in Denmark, The Progressive Party (Fremskridtspartiet). He has attacked the law on income tax in Denmark and demonstrated its futility and loopholes. His party's aim is to bring about changes in this field, and it has grown to become the second largest party in Denmark on that account. For these reasons, the applicant maintains he is immensely hated by the established authorities and those in power who do not want these changes to the Danish society. Because of this, the applicant maintains he has been persecuted by those in power ever since he was interviewed on television on 30 January 1971. He maintains that the charges preferred against him are political persecutions because he has committed no criminal offense. He complains that he was not given a jury trial as he claims he was entitled to under Art. 687 C of the Judicature Act. He maintains that after all these years of hostile propaganda against him and public declarations of his guilt by high-ranking authorities, among others the Prime Minister himself, it will be impossible for him to get a fair trial by independent and impartial courts. In this context, he states that when his judges were selected, great care was taken that none of them belonged to his Party. Furthermore, the applicant maintains that the matter in issue is not for the judiciary to decide upon but rather for the legislature to solve. The applicant states that before the authorities started persecuting him, he was the sole owner of the largest law firm in Denmark. Now the various investigations by the police and the tax authorities into his legal affairs have scared clients away. This, he claims, has cost him financial losses amounting to at least 200 million Danish Crowns. The applicant moreover complains about the Court of Appeal's fixing of hearings, which he claims interfered greatly with his work in Parliament (Folketinget), which he considers should have priority over court appearances as there is no institution in the Danish state above or even equal to the Parliament. He also complains that his request for new defense counsel before the Court of Appeal was not complied with, although the prosecution had a "change of horses" at that stage. The applicant finally complains that the Court of Appeal did not give him sufficient time to plead his request for postponement on 27 November 1978. The applicant invokes Arts. 6, 7, 10, and 11 of the Convention. 8464/79 -8 THE LAW 1. The applicant's main complaint is under Art. 6 of the Convention which, inter alia, secures to everyone charged with a criminal offense the right to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." He alleges that on account of a hostile publicity campaign against him from the highest quarters, he will not get a fair trial by an independent and impartial tribunal in the criminal proceedings instituted against him. However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Art. 26 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognized rules of international law. The criminal proceedings against the applicant are still pending before the Court of Appeal (Østre Landsret) in Copenhagen. It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies, so this part of his application must be rejected under Art. 27 (3) of the Convention. As to the applicant's complaint that he was not given a jury trial, as he maintains he was entitled to under Article 687 C of the Danish Judicature Act, the Commission notes that the final decision on this point was given by the Supreme Court on 3 December 1974. Since the applicant did not lodge his application with the Commission until 9 November 1978, the Commission is not competent to deal with this part of his complaint, as according to Art. 26 of the Convention, it may only deal with a matter within a period of six months from the date on which the final decision was taken. Hence, this part of the application must be declared inadmissible under Art. 27 (3) of the Convention. The applicant has also complained that he was refused new lawyers to defend his case, since he considered his lawyers deficient in defending his case. The lawyers appointed ex officio by the court were well-reputed, and the applicant has not given any particulars as to the way in which they did not correctly handle the case. The applicant has not substantiated this complaint, and the Commission therefore finds that it is manifestly ill-founded and has to be declared inadmissible in accordance with Art. 27 (2) of the Convention. The Commission has also examined the applicant's complaints under Arts. 7, 10, and 11 of the Convention but cannot, in the present stage of the file, find any violation of these Articles. These parts of the application are therefore rejected as manifestly ill-founded under Art. 27 (2) of the Convention. For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRUGER) (J.E.S. FAWCETT)