SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY
OF
Application no. 28972/95
by Erik NINN-HANSEN
against Denmark
The European
Court of Human Rights (Second Section) sitting on 18 May 1999 as a Chamber
composed of
Mr C. Rozakis, President,
Mr M. Fischbach,
Mrs V. Strážnická,
Mr P. Lorenzen,
Mrs M. Tsatsa-Nikolovska,
Mr A.B. Baka,
Mr E. Levits,
Judges,
with Mr E. Fribergh,
Section Registrar;
Having regard to
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms;
Having regard to
the application introduced on 6 December 1990 by Erik Ninn-Hansen against
Denmark and registered on 25 October 1995 under file no. 28972/95;
Having regard to
the reports provided for in Rule 49 of the Rules of Court;
Having regard to
the observations submitted by the respondent Government on 11 February 1998 and
the observations in reply submitted by the applicant on 14 April 1998;
Having
deliberated;
Decides as
follows:
THE FACTS
The applicant is
a Danish citizen, born in 1922. He resides in Charlottenlund, Denmark. The
applicant was a member of Parliament for many years and served, inter alia,
as Minister of Justice from 1982 until January 1989. Before the Court the
applicant is represented by Mr Kristian Mogensen and Mr Axel Kierkegaard,
lawyers practising in Copenhagen.
The facts of the
case, as submitted by the parties, may be summarised as follows.
a. Particular
circumstances of the case
In the autumn of
1988 the Parliamentary Ombudsman started an investigation of the Ministry of
Justice's administration in 1986-1988 of cases concerning Tamil refugees'
applications for family reunification. In his report of 1 March 1989 the
Ombudsman criticised the way the Ministry of Justice and the Directorate for
Aliens (Direktoratet for Udlændinge) had handled the applications for
family reunification of Tamil refugees.
The Ombudsman's
report received considerable public attention and resulted in public criticism
of the Government's refugee policy. The political unrest about refugee questions
continued, especially about refugees' possibilities of family reunification and
the public criticism was increasingly directed against the applicant personally.
On several
occasions members of Parliament attempted to induce the Government to invite a
specially commissioned court of inquiry with public court sessions to
investigate the applicant's conduct in connection with the Tamil refugees'
applications for family reunification. Whereas the applicant had no objections
thereto the Government resisted and such a proposal was not adopted.
On 23 April 1990
the Danish State Television transmitted a programme in which the applicant's
conduct and the discharge of his official duties were severely criticised. In
the following two weeks the television programme resulted in an extensive public
debate in all Danish media. This caused the Prime Minister to issue a press
release on 8 May 1990 in which it appeared that the Government and the political
parties, which together with the Government comprised a parliamentary majority,
now agreed that the question of the administration of the Tamil refugees' family
reunification should be investigated. From the press release it also appeared
that the Government would propose a change in the Administration of Justice Act
(Retsplejeloven) aiming especially at such an investigation.
The Bill was
proposed by the Minister of Justice on 15 May 1990 and adopted on 13 June 1990.
Following the
adoption of the Bill the Prime Minister addressed a letter of 29 June 1990 to
the President of the Supreme Court which read as follows:
(Translation)
"According to Section
21a of the Administration of Justice Act the Office of the Prime Minister has
decided, on behalf of the Ministry of Justice, to request a Supreme Court judge
to conduct an investigation of the decision-making process and the
administration connected with the handling of cases concerning the family
reunification of refugees from Sri Lanka. The investigation shall comprise the
period from the conclusion of peace in Sri Lanka in the summer of 1987 until it
was decided to normalise the handling of these cases in January 1989.
In the investigation it
shall be examined whether anybody in public service or duty in connection with
the proceedings has committed such faults or negligence which may result in an
attempt to place legal responsibility.
It has been
decided that the investigation according to the Administration of Justice Act
Section 21a, subsection 3, shall be conducted in camera.
The Office of the
Prime Minister will consider nominating a person to represent the State during
the case.
With reference to
the above the President of the Supreme Court is hereby requested to propose a
Supreme Court judge to conduct the investigation."
On 3 July 1990
the President of the Supreme Court proposed Supreme Court Judge H. On 10 July
1990 the Office of the Prime Minister requested H to investigate the matter as
mentioned in the letter of 29 June 1990. Furthermore, on 10 July 1990 the lawyer,
N, was appointed to represent the public, i.e. acting as interrogator in the
proceedings. Thus, on 10 July 1990 a court of inquiry was set up on the terms of
reference as described in the letter of 29 June 1990. On 25 January 1991 the
investigation was extended to comprise also the period after January 1989.
During the summer
and autumn of 1990 the Court of Inquiry (Undersøgelsesretten) requested
documentary evidence from, inter alia, various Ministries, the
Directorate for Aliens and the Parliamentary Ombudsman. This material comprised
a total of approximately 18,000 pages.
The Court of
Inquiry subsequently held 104 sessions and heard 61 witnesses. The hearing of
witnesses commenced on 20 November 1990 and ended on 29 May 1992. The first
seven sessions were held in camera. On 19 December 1990, however, the Prime
Minister and the Minister of Justice agreed, as requested by the applicant, that
the investigation should be conducted in public. The transcripts of the above
seven sessions were accordingly made accessible to the public and the applicant
was accordingly allowed to go through these transcripts.
Already on 26
October 1990 the Court of Inquiry had informed the applicant of its task and
that he would be called as a witness in the case. Like all other witnesses
testifying before the Court of Inquiry, he was asked whether he wished a legal
assistant (bisidder) during the proceedings, but he declined. Before the
hearing of the applicant he was given an opportunity to acquaint himself with
the written material which formed the basis of the interview. The applicant
testified on 2, 3, 4, 15, 16, 22 and 29 April and 21, 22 and 24 October 1991 as
well as on 4, 11 and 17 March 1992. Before his testimonies he was informed that
he had the right to remain silent and that, in case he chose to give testimony,
this would not be under oath.
On 29 May 1992
the Court of Inquiry ended its examination of witnesses and the presiding judge
stated, with regard to the submission of written statements, as follows:
(Translation)
“...The Court of
Inquiry is not going to pronounce a judgment - which would presuppose legal
arguments from counsel - but issue a report - i.e. a recommendation to others -
with regard to the issues which have been examined during the investigation. If
anybody wishes to make written submissions to the court it cannot at the outset
be expected that the court will take the initiative to arrange an adversarial
procedure, requesting replies, rebuttal and counter-rebuttal from everybody who
has made statements. As can be ascertained from the court’s work, everybody who
has given testimony without being under oath has had an opportunity - with legal
assistance - to obtain knowledge of the evidence which the Court of Inquiry has
obtained in order to prepare the report. Some - many - have made use of this
opportunity, others have not. Everybody has had an opportunity to raise
questions and to suggest that further evidence be produced and this opportunity
has also been used by witnesses who have not wished legal assistance. The Court
of Inquiry has complied with these wishes without exception, and nobody has been
prevented from stating - also in a more general way - his views on the issues of
the case during the hearings. If anybody despite this intends to make
submissions to the court they are not prevented from doing so, but the
preparation of the report has - as I said - commenced and ought obviously to be
finished as swiftly as possible.”
The final date
for the submission of written statements was fixed by the Court of Inquiry as 1
August 1992, but on appeal to the Supreme Court the time-limit was extended to
21 September 1992. The Supreme Court - sitting with five judges, four of whom
participated in the subsequent proceedings in the Court of Impeachment - stated
in its decision of 17 August 1992 that the Court of Inquiry would not be obliged
to take into consideration observations submitted later than that date.
Furthermore, it stated that having regard, inter alia, to the purpose of
the Court of Inquiry it would not be obliged to initiate an adversarial
procedure and forward received written statements to other witnesses.
On 10 June and 30
July 1992 the Court of Inquiry granted the witnesses the right to read through
the court transcripts of the testimonies given by other witnesses at the offices
of the legal assistants to the extent which the legal assistants considered it
necessary in order to assist their clients properly. It was thus presupposed
that witnesses were not given access to testimonies of other witnesses which the
assistants considered irrelevant in relation to their clients. On 10 September
1992 the decision was upheld by the Supreme Court, which also this time was
composed of five judges four of whom subsequently participated in the
proceedings in the Court of Impeachment.
On 9 January 1991
and 17 September 1992 the Court of Inquiry notified, inter alia, the
applicant that it did not find sufficient reason to give him permission to go
through the court transcripts of testimonies which were given by other witnesses
during the public sessions of the Court as he was not assisted by a legal
assistant.
On 15 December
1992 the Court of Inquiry's report was finished and it was published on 14
January 1993. The report itself comprised a total of 2218 pages and the
transcripts from the hearings comprised a total of 2782 pages. The report
contained, inter alia, serious criticism of the applicant's discharge of
his official duties in his capacity as Minister of Justice in respect of the
handling of the Tamil refugees' family reunification cases. It also contained
criticism of the actions of other persons, including the Prime Minister at the
time. On 14 January 1993 the Government resigned.
On the basis
of the report Parliament decided on 11 June 1993 to institute proceedings
against the applicant before the Court of Impeachment (Rigsretten)
pursuant to the provisions of the Court of Impeachment Act (Rigsretsloven).
By indictment of 14 June 1993 the prosecutors, appointed by Parliament, charged
the applicant with a violation of Section 5, subsection 1, of Act no. 117 of 15
April 1964 concerning Ministers’ responsibilities whilst in office (lov nr.
117 af 15. april 1964 om ministres ansvarlighed - the 1964 Act). According
to this provision a minister is liable to punishment if he wilfully or by gross
negligence disregards the duties which fall on him under the Constitution, or
under other laws, or due to the nature of his office.
The applicant was
charged with having disregarded his duties under the Aliens Act (Udlændingeloven)
to the extent that a number of aliens could not obtain a family reunification
although they had, under the Act, a right thereto.
The case
commenced in the Court of Impeachment on 7 December 1993. Whereas no one
challenged the impartiality and independence of the individual judges the
applicant challenged the impartiality and independence of the court as such,
referred, inter alia, to Article 6 of the Convention and requested the
court to dismiss (afvise) the case. In order to substantiate the
allegations the applicant furthermore requested the hearing of the Supreme Court
judge who had presided over the Court of Inquiry, as well as a lawyer who had
participated in that inquiry.
As regards the hearing
of the two witnesses the court rejected the request by 21 votes to 3 on 7
December 1993 stating the following:
(Translation)
"It appears from the
public report which has been made by the Court of Inquiry in the Tamil case how
that court's work was planned and carried out. To hear evidence in this respect
must accordingly be regarded as superfluous.
The defence has not
challenged the impartiality of any of the participating Supreme Court judges but
has in the preliminary submissions regarding the dismissal of the case in
particular referred to the fact that the Court of Inquiry was chaired by a
Supreme Court judge and that its meetings were held in the Supreme Court's
offices to the extent that the public at large was left with the impression that
the Supreme Court as such has in advance been involved in the case. When
considering this objection the question of what communications Supreme Court
judge H might have had with colleagues in the Supreme Court about the Tamil case
or related questions cannot be considered to be of any importance.
Since the evidence
concerning the connection advocate N might have had with the media during the
period of time the Court of Inquiry was sitting cannot be considered of
importance for the question of dismissing the case either, these judges vote in
favour of rejecting the request of calling Supreme Court judge H and advocate N
to submit evidence."
The minority of
three judges did not find sufficient reason to reject the request.
Following further
oral arguments the Court of Impeachment decided on the question of dismissing
the case on 5 January 1994. In rejecting the request for dismissal the unanimous
court stated as follows:
(Translation)
"The composition of the
Court of Impeachment is set out in Section 59 of the Constitution. The provision
that the court shall consist of an equal number of Supreme Court judges and
judges elected by Parliament must be based on the assumption that the special
cases which fall under the court's competence ought to be delivered by a group
of judges which comprises not only persons trained in law but also persons with
special knowledge of political matters. Having regard to the fact that charges
are brought by Parliament it has been decided that members of Parliament cannot
be elected to or act as members of the Court of Impeachment. The provision
according to which members and the substitutes are elected for six years in a
proportionate way secures that members are not elected in order to participate
in a particular case and that the elections reflect the (political parties')
number of seats in Parliament. It must be considered natural and legitimate that
the persons, who are elected as members of the court, are associated with the
political parties, but this does not mean, of course, that when deciding a case
before the court they should be considered as ‘party men’ who will rely more or
less on what their political basis might think about the case. Against this
background there is no substantiation in counsel's submissions that the election
by Parliament of half of the judges makes the Court of Impeachment ‘a delicate
legal construction’ and ‘which in advance makes it difficult for the court to
appear independent and impartial in this case.’
As regards the participating Supreme Court judges counsel for the defence has submitted, among other things, that the Court of Inquiry in the Tamil case was chaired by a Supreme Court judge who sat in the offices of the Supreme Court and that, therefore, the view was formed by the public at large that the Supreme Court as such was involved in the work of the Court of Inquiry. This view has no basis in fact, something [the applicant] must be aware of. Even assuming that this view might appear among the public this cannot constitute a reason for finding that there can be any legitimate doubts as to the impartiality of the participating Supreme Court judges. Nor does the fact that the Supreme Court, pursuant to Section 21, subsection 4, of the Administration of Justice Act, examined certain appeals against decisions of a procedural character taken by the Court of Inquiry, or the fact that the Court of Inquiry was chaired by a colleague to the participating Supreme Court judges, give any reasonable grounds for such doubts.
The facts of the cases
decided by the European Court of Human Rights, which have been referred to by
counsel for the defence, are in the court's view quite different from those of
the present case. Therefore, these decisions cannot support counsel's view
either. It is noted in this respect that the requirement that a court shall
appear to be impartial implies, according to the case-law of the Court of Human
Rights, that there ought not to be any legitimate doubt as to the impartiality
of the judges.
The objections of a
general character which counsel for the defence has raised against both the
judges elected by Parliament and the participating Supreme Court judges cannot
in the circumstances, either as such or as a whole, constitute the basis for any
legitimate doubts as to whether the Court of Impeachment fulfils the
requirements of impartiality which a court is obliged to comply with according
to Article 6 § 1 of the Convention.
The Court of
Impeachment shall in its evaluation of whether [the applicant] is guilty of the
charges brought against him only consider the evidence which is brought to the
attention of the court. As a starting point it is accordingly of no importance
for this case on what grounds Parliament decided to press charges. The
submissions of counsel for the defence, however, give the court reason to make
the following remarks about the Court of Inquiry and its competence.
According to its
assignment the Court of Inquiry, inter alia, had to consider whether
‘anybody in public service or duty in connection with the proceedings has
committed such faults or negligence which may result in an attempt to place
legal responsibility.’ Thus, the Court of Inquiry made an evaluation of evidence
as well as legal evaluations, but the Court of Inquiry had no mandate to decide
- and did not decide - whether [the applicant] committed a punishable offence.
Accordingly, it did not have, and did not exercise, a judicial function in the
sense provided for in Section 61 of the Constitution. The assignment of the
Court of Inquiry was accordingly not contrary to the prohibition in this
provision against creating special courts with the power to exercise judicial
functions. The reasons which have been decisive for Parliament's decision to
press charges are of no importance for the Court of Impeachment's decisions in
this case. What has been submitted by counsel for the defence about the
correlation between the legislative, the executive and the judicial powers in
connection with the setting-up of the Court of Inquiry, or the criticism of a
general character which has been directed against special courts or courts of
inquiry ... are not of any importance in respect of the question of dismissing
the present impeachment case either.
As regards the
inquiry's importance as to the proceedings in this case, counsel for the defence
has submitted that the possibility of a direct taking of evidence through the
hearing of witnesses in the Court of Impeachment is lost or at least
considerably reduced due to the fact that most of those persons who shall give
evidence have done so previously in the Court of Inquiry. It is normal, however,
and not contrary to the principle of direct evidence that a witness in a
criminal case at an earlier stage has made statements to the police or in court.
Like in other criminal cases, the Court of Impeachment must consider the
weaknesses which may follow from this as an element in the evaluation of
evidence.
Counsel for the
defence has, furthermore, submitted that the case has for many years been
mentioned and commented upon in the media to quite an extraordinary extent and
in a way which was solely detrimental to [the applicant] so that he now appears
to be convicted in advance. Even if the description of the media coverage is
more or less correct there is no legitimate reason to believe that the Court of
Impeachment cannot disregard this and decide solely on the basis of the evidence
before it.
Accordingly, in
respect of the objection related to other matters than the question of the
impartiality of the court there is no legitimate reason either to doubt that [the
applicant] will have a fair trial within the meaning of Article 6 of the
Convention.
Finally, it is
considered that counsel's submissions that the case has not advanced within a
reasonable time, cf. Article 6 § 1 of the Convention, cannot constitute the
basis for dismissing the case.
Consequently, the
court finds no reason to accept the request for dismissal."
Following the above
decision the court resumed its examination of the case. On 16 March 1994 a
dispute arose between the prosecution and the defence as to the use of the
transcripts from the Court of Inquiry when hearing witnesses in order to
confront these witnesses, if necessary, with their previous statements.
On 22 March 1994
the court decided by 21 votes to 3 to allow the use of these transcripts. In its
decision the majority stated as follows:
(Translation)
"The dispute concerns
only whether the transcripts from the Court of Inquiry should be submitted and
whether these transcripts may be used to confront (witnesses with their previous
statements). The transcripts do not contain the Court of Inquiry's evaluations
or conclusions but recall the statements [the applicant] and witnesses made
before the Court of Inquiry as taken down by the judge and accepted by the
witness. Permission to confront (witnesses with these statements) means only
that [the applicant] and witnesses may be questioned about the differences
should their statements during the trial deviate from their previous statements.
According to normal
practice in criminal cases both court transcripts containing statements from the
accused and witnesses as well as police reports containing statements to the
police are submitted. The submission is made pursuant to Section 834 of the
Administration of Justice Act which corresponds to Section 29 of the Impeachment
Act, and the submission is made despite the fact that these documents cannot as
a main rule be used as independent
evidence during the trial cf. Section 877, subsection 2 nos. 2 and 3 and
subsection 3, of the Administration of Justice Act. Thus, it is in accordance
with normal practice in criminal cases that the transcripts from the Court of
Inquiry are submitted during the trial in the Court of Impeachment and Sections
50 and 55, second sentence, of the Impeachment Act cannot lead to any other
result. Furthermore, it is noted that the Court of Inquiry transcripts are
public. We do not find reason in these circumstances to accept the protests made
by counsel for the defence.
Sections 50 and 55,
second sentence, of the Impeachment Act deal only with court transcripts
concerning preliminary examinations arranged by the Court of Impeachment, but
resemble otherwise mainly Section 877, subsection 2 nos. 2 and 3, of the
Administration of Justice Act. The question how the Court of Inquiry transcripts
may be used during the trial in the Court of Impeachment shall thus be decided
according to the rules contained in Section 877 of the Administration of Justice
Act and case-law related thereto, cf. the general reference to the
Administration of Justice Act in Section 77 of the Impeachment Act.
In accordance with
normal practice in criminal cases both court transcripts and police reports may
be used, where necessary, by the prosecution and the defence to confront (witnesses
with their previous statements). Such a use is not contrary to the principle
that the case shall be determined only on the basis of the evidence which has
been submitted during the trial. This is so since these confrontations do not
replace the accused's or the witness' statements during the trial, but aim at
giving the court a better basis upon which to evaluate the evidence in question.
We consider, therefore, that the Court of Inquiry transcripts may be used in
accordance with this practice.
There is no reason to
believe that the submission of the transcripts or their use for confrontation
purposes would be contrary to the principles contained in the Convention. ..."
Three judges were
against the use of the transcripts, stating as follows:
(Translation)
"We find that it would
be more in conformity with the principle of direct evidence that the Court of
Inquiry transcripts are not submitted and that they are not in any way used
during the trial in the Court of Impeachment. Thereby it will be secured that
the statements will be made regardless of what happened in the Court of Inquiry,
and that the Court of Impeachment thus appears - in accordance with the
principles found in the European Convention on Human Rights - to be wholly
unbound of the work performed by the Court of Inquiry. Thus, we vote in favour
of accepting the protest of counsel for the defence."
The trial
hereafter continued, written evidence was produced and the applicant and a total
of 44 witnesses - several of whom appear to have been called by the defence -
were heard. On 28 June 1994 the applicant suffered a stroke and the trial was
adjourned. In order
to evaluate the effect thereof several medical opinions as well as an opinion
from the Medico-Legal Council (Retslægerådet) were obtained. On 8
November 1994 the trial was adjourned until further notice. Following further
medical examinations the prosecution requested, on 3 April 1995, that the case
be resumed whereas counsel for the defence requested a further adjournment due
to the applicant's state of health.
On 6 April 1995
the Court of Impeachment decided to continue the case. A majority of 13 judges
stated as follows:
(Translation)
"...
We find that [the
applicant's] physical state of health does not prevent him from being present
during continuing proceedings.
According to the
explanations of the doctors there is no scientific basis for believing that his
continuing presence increases the risk of a deterioration of his health.
Hereafter, it must be
examined whether his mental state excludes that the case continue ...
As set out in the
Medico-Legal Council's statement of 21 March 1995 [the applicant's] intellect is
still to be considered as being reduced considerably although a certain
improvement has occurred as regards acknowledging the illness and the function
of speech. The Medico-Legal Council has not, however, been willing to decide
whether he is incapable of participating at a qualified level in a trial since
the answer would depend on a legal evaluation of the medical information.
According to practice
in normal criminal cases a deterioration of mental functions does not exclude
the conclusion of a criminal case and the imposition of a normal penalty on
persons with an illness equivalent to that of [the applicant]. Being
unaccountable for one's actions due to a mental illness which has occurred
subsequent to the criminal act but before judgment is pronounced does not as
such exclude that a case may be concluded and a penalty imposed, cf. Section 73
of the Penal Code.
From the Impeachment
Act or its travaux préparatoires ... it does not appear that the
legislature wished to deviate from this practice in cases concerning Ministers'
responsibilities whilst in office to the extent that such cases could not
proceed unless the accused could participate at a 'qualified level'.
Before [the
applicant] was hospitalised on 28 June 1994 due to a stroke the major part of
the taking of evidence had been concluded and he had been present during all
court sessions. Thus, he had been heard during four court sessions and he had
attended all hearings of witnesses and all documentation of written material.
The remaining taking of evidence consists, following the
request of the defence, of a re-examination of five witnesses and of [the
applicant]. This part of the trial may be conducted in a way that the necessary
considerations are taken to his state of health.
In these circumstances we find that in the existing medical information, compared with the other available information about [the applicant's] situation following the stroke on 28 June 1994, there is no reason to believe that it will be impossible for him to take a stand as to the charges, to make rational statements as well as to follow the rest of the proceedings, and he cannot be considered as being incapable of examining all relevant witness statements together with counsel prior to making statements. Furthermore, there is no reason to believe that a continuation of the trial would entail a breach of the guarantees the Impeachment Act and the Administration of Justice Act contain in order to secure an accused's defence.
...
Since what counsel for
the defence has submitted concerning Article 6 of the Convention cannot lead to
any other result we vote in favour of the prosecution's request to continue the
case."
A minority of 7 judges voted in favour of rejecting the request stating as follows:
(Translation)
"According to Section 77 of the Impeachment Act, cf. Section 846 of the Administration of Justice Act, an accused has a right to be present personally during the entire trial. The provision expresses that the accused has a right to defend himself, including putting questions to witnesses, express himself on the result of the taking of evidence, on legal questions and to have the last word in the case. These considerations are of particular importance in an impeachment case - cf., inter alia, the travaux préparatoires to Section 52 of the Impeachment Act. [The applicant's] counsel has maintained that a continuation of the trial requires his personal presence and since none of the circumstances mentioned in Section 847, subsection 2, ... are at hand, this case may not be pursued if the accused has a valid excuse for being absent, cf. Section 847, subsection 1, of the Administration of Justice Act. Under this falls - in addition to physical illness - in certain circumstances also mental illness in the form of a mental deterioration.
...
Since 7 March 1994 a
considerable number of court sessions have been held during which a considerable
number of witnesses have been heard. During the continuing trial it remains to
hear, once more, five central witnesses and - not least - [the applicant], and
it must be considered to be of decisive importance to his possibilities of
defending himself, that he is capable, during the re-examinations and during the
oral pleadings, to understand and express himself about the charges and the
substantial amount of evidence. According to the existing medical information [the
applicant's] intellect is permanently impaired to a considerable extent, caused
by vascular related dementia with the
result that, in our opinion, he would be unable to participate in the
proceedings at a qualified level, having regard to the special character and
dimension of the case and, thus, the requirements to his intellectual level
which concluding the case in a responsible manner demands. A continuing
adjournment of the trial would not entail that [the applicant] is better placed
than other accused, including accused who are covered by the rules in Sections
68, 69 and 73 of the Penal Code covering sanctions against mentally deviating
offenders. ... Also these accused are protected by the guarantee of a fair trial
which Sections 846 and 847 express.
Therefore, we
find that what the prosecution has submitted concerning the continuation of the
case does not constitute a basis for setting aside the court's previous decision
to adjourn the case until further notice, since [the applicant's] state of
health still entails that he has a valid excuse for being absent. Thus, we vote
in favour of rejecting the prosecution's request to continue the case."
Following this
decision counsel for the defence informed the court on 10 April 1995 that the
request for re-hearing the five witnesses and the applicant was withdrawn since
it was considered irresponsible in view of his state of health to confront the
applicant with the witnesses or to hear him again. Furthermore counsel for the
defence announced that most likely the applicant would not be present during the
remaining sessions. The prosecutors declared that they would not request that
the applicant be fetched by force. Counsel was accordingly now ready to commence
the oral pleadings.
The oral
pleadings commenced on 15 May 1995 and ended on 7 June 1995 when the case was
accepted for adjudication. The applicant did not attend these court sessions.
Judgment was
pronounced on 22 June 1995. By 15 votes to 5 the applicant was found guilty of
having violated Section 5, subsection 1, of Act no. 117 of 15 April 1964
concerning Ministers’ responsibilities whilst in office. He was sentenced to
four months' imprisonment which was suspended provided no further criminal act
would be committed within a period of one year. The judgment contained thorough
reasoning with regard to the applicant’s guilt as well as his sentence. The
costs of the proceedings were borne by the State.
The judgment of
the Court of Impeachment is final.
b. Relevant domestic
law and practice
Provisions relating
to the Court of Inquiry
(Translation)
Section 61 of the Constitution
“... Special
courts with powers to pass judgments can never be instituted.”
Section 21 of the Administration of Justice Act
“The Government retain their right to institute special courts save as regards special courts with powers to pass judgments...”
Section 21a of the Administration of Justice Act
“(1) The Minister of
Justice may request one or several judges to conduct an investigation of
specific matters. The Minister of Justice may decide that experts participate in
the investigation.
(2) The Court of
Inquiry has no powers to pass judgments.
(3) The investigation
is conducted according to the rules of [the Administration of Justice Act].
However, the Minister of Justice may in special cases decide that the
investigation shall be conducted in camera...
(4) The decisions of
the Court of Inquiry may be appealed against directly to the Supreme Court.
(5) The investigation
is concluded by a report. The report is published by the Minister of Justice,
unless quite exceptional reasons speak against publication."
The competence and
composition of the Court of Impeachment
(Translation)
Section 16 of the Constitution
“Ministers can be
prosecuted for the discharge of their office by the King or by Parliament. The
Court of Impeachment shall try the cases instituted against the ministers for
the discharge of their office.”
Section 59 of the
Constitution, which was given its present wording by the Constitution of 5 June
1953, reads as follows:
(Translation)
“(1) The Court of
Impeachment shall consist of up to fifteen of the eldest - according to
seniority of office - ordinary members of the highest court of justice of the
Kingdom and an equal number of members appointed for six years by Parliament
according to proportional representation. One or more substitutes shall be
appointed for each appointed member. No member of Parliament shall be appointed
or act as a member of the Court of Impeachment. Where in a particular instance
some of the members of the highest court of justice of the Kingdom are prevented
from taking part in the trial and adjudication of a case, an equal number of the
members of the Court of Impeachment last appointed by Parliament shall retire
from their seats.
(2) The Court of
Impeachment shall elect a President from among its members.
(3) Where a case has been brought before the Court of Impeachment, the members appointed by Parliament shall retain their seats in the Court of Impeachment for the duration of such case, even if the term for which they were appointed has expired.
(4) Detailed rules for
the Court of Impeachment shall be provided by statute.”
Detailed rules
for the Court of Impeachment are laid down by Act No. 100 from 1954, cf.
Consolidation Act No. 641 of 17 September 1986 - the Court of Impeachment Act.
Relevant provisions of the Act read as follows:
(Translation)
Section 1, subsection 1
“The Court of
Impeachment shall try the cases instituted by the King or Parliament against the
ministers.”
Section 2
“(1) The Court of
Impeachment shall consist of the ordinary members of the Supreme Court and an
equal number of members appointed for six years by Parliament according to
proportional representation. No member of Parliament shall be appointed or act
as a member of the Court of Impeachment.
(2) For each person
appointed, two substitutes shall immediately be appointed according to
proportional representation.
(3) Where any of the
judges appointed by Parliament retires from the Court of Impeachment before
expiry of the term of the appointment, the substitute first appointed for him
shall take his seat in the Court of Impeachment for the remaining part of term.
Where the first appointed substitute is prevented from doing so or where he
retires from the Court of Impeachment as well, the second substitute takes his
place.
(4) No supplementary
appointments of substitutes shall be held.
(5) Where a case has
been brought before the Court of Impeachment, the members appointed by
Parliament shall retain their seats in the court for the duration of such case,
even if the term for which they were appointed has expired.”
Section 5
“(1) Where in a
particular instance some of the judges of the Supreme Court are prevented from
taking part in the trial and adjudication of the case, an equal number of the
members last elected by Parliament according to proportional representation
shall retire from their seats.
(2) Where one of the appointed judges is prevented from taking part in the trial of the individual case, his seat in the court shall be taken by the substitute first appointed for him; where he is also prevented from taking part in the case, the second substitute shall take his seat. Where he is also prevented from taking part in the case, the most junior Supreme Court judge in office shall retire from his seat.”
Section 6
“In no case can the
bench of the Court of Impeachment comprise less than 18 judges.”
Section 8
“Each of the judges of
the Court of Impeachment shall make a written solemn assurance on his honour and
conscience that he will attentively follow the proceedings in the court and pass
judgment as he finds it to be right and true according to the law and the
evidence of the case.”
On 28 May 1990
Parliament appointed fifteen lay judges and thirty substitutes for the period
from 18 May 1990 until 17 May 1996 (cf. Parliamentary Proceedings, Yearbook and
Index, 1990 - 1991, p. 172). Seven of the lay judges had also been appointed as
lay judges or substitutes in the preceding period from 18 May 1984 until 17 May
1990.
Provisions on the
accused’s right and duty to be present
Relevant provisions of
the Court of Impeachment Act (in translation):
Section 33
“Where the defendant
fails to appear without lawful cause of absence from the hearing mentioned in
Section 29 or any subsequent hearing, the Court of Impeachment may take whatever
steps necessary to secure his presence, including, if necessary, to have him
fetched by force.”
Section 42
“Where the defendant
does not appear and cannot immediately be brought before the court, the court
decides, after the prosecutor and counsel for the defence have spoken, whether
the case is nevertheless to be advanced, or whether it should be adjourned.”
Section 77
“Unless otherwise
stipulated by this Act, the Administration of justice Act applies to the
procedure before the Court of Impeachment.”
Relevant
provisions of the Administration of justice Act reads as follows (in
translation):
Section 846
“Unless an exception is
stipulated by law, the defendant must be present in person during the entire
trial as long as he has access to making a statement; however, after the
examination of the defendant is concluded, the presiding judge may permit him to
excuse himself.”
Section 847
“(1) Where the
defendant fails to appear at the beginning of or during the trial, and where he
cannot immediately be brought before the court, the case will be adjourned.
Where the defendant fails to appear despite lawful summons and without stating a
lawful cause of absence, the court may decide, however, that
witnesses and experts who have appeared must be examined, if this is found
compatible with the interests of the defendant and provided an adjournment of
the examination will be of substantial inconvenience to the persons who have
appeared or involve considerable postponement of the case. However, examinations
pursuant to the second sentence can only be carried through if the defendant’s
counsel has appeared and consents to the examination.
(2) A trial can be expedited in the defendant’s absence if the court finds that his presence is not necessary:
(i) when he has escaped after service of the indictment on him,
(ii) when, after having appeared when the case was opened, he has left the court without leave of the court,
(iii) when it is deemed
(a) that the most severe punishment is a matter of imprisonment for six months, and that the defendant has consented to the expedition of the case, or
(b) that
the trial will undoubtedly lead to his acquittal.”
PROCEEDINGS BEFORE
THE COMMISSION AND THE COURT
The application
was introduced on 6 December 1990 and registered on 25 October 1995.
On 8 September
1997 the Commission decided to communicate to the respondent Government the
applicant’s complaints concerning the independence and impartiality of the Court
of Impeachment and the court’s decision to continue the trial despite the
applicant’s state of health.
The Government’s
written observations were submitted on 11 February 1998, after two extensions of
the time-limit fixed for that purpose. The applicant replied on 14 April 1998.
COMPLAINTS
The applicant
complains that he did not have, in the determination of the criminal charges
against him, a fair trial within a reasonable time by an independent and
impartial tribunal. More specifically the applicant complains that:
a) the proceedings in
the Court of Inquiry did not comply with the requirements of fairness and were
to some extent held in camera, and that these proceedings and their outcome made
a proper evaluation of evidence in the Court of Impeachment impossible;
b) the Court of
Impeachment was not an independent and impartial tribunal;
c) the Court of Impeachment refused the applicant permission to hear two witnesses in support of his claim to dismiss the case;
d) the Court of
Impeachment allowed the use of the transcripts from the Court of Inquiry;
e) the Court of
Impeachment decided to continue the proceedings despite the applicant's state of
health;
f) the case was not
determined within a reasonable time.
THE LAW
The applicant
complains of a number of violations of Article 6 of the Convention which in so
far as relevant reads as follows:
“1. In the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal...
2. Everyone charged
with a criminal offence shall be presumed innocent until proved guilty according
to law.
3. Everyone charged
with a criminal offence has the following minimum rights:
(a) to be informed
promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him;
(b) to have adequate
time and facilities for the preparation of his defence;
(c) to defend himself
in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have
examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him...”
The Court recalls
that the guarantees in paragraph 2 and 3 of Article 6 represent constituent
elements of the general concept of a fair trial embodied in paragraph 1. In view
of the nature of the violations alleged by the applicant, the Court therefore
considers it appropriate to group related matters of complaint and to take the
relevant paragraphs of Article 6 together.
a) The fairness of
the proceedings before the Court of Inquiry
The applicant
complains that the proceedings in the Court of Inquiry were conducted in an
inquisitorial manner without proper separation between the functions of the
judge and the functions of the prosecutor. The applicant was not properly
informed of the proceedings against him and he was not admitted influence on
matters essential for his defence. Thus, he
was not notified of written evidence and witnesses produced against him and he
was not given an opportunity to call witnesses on his behalf. He also complains
that the first seven sessions were held in camera. In the applicant’s opinion
the Court of Inquiry in fact determined his guilt. He submits that these
deficiencies severely prejudiced the subsequent trial.
The Court recalls
that under Article 6, everyone charged with a criminal offence has the right to
a fair and public hearing by an independent and impartial tribunal (Article 6 §
1), to be informed promptly of the nature and cause of the accusation against
him (Article 6 § 3 (a)), to have adequate time and facilities for the
preparation of his defence (Article 6 § 3 (b)) and to defend himself in person
or through legal assistance (Article 6 § 3 (c)).
In the present
case the Court notes that the purpose of the proceedings conducted by the Court
of Inquiry and the report eventually issued by that court was to form a basis
for Parliament to decide on whether to press charges against certain persons who
were, or had been, entrusted with public authority, for having disregarded their
duties whilst in office. These proceedings were therefore not as such concerned
with “determining the charge” (cf. application nos. 8603/79, 8722/79, 8723/79 &
8729/79, Crociani et al v. Italy, decision of 18 December 1980, DR 22, p. 147 at
p. 216).
It follows that,
in so far as the applicant’s complaint is directed against that part of the
proceedings taken in isolation, it is incompatible ratione materiae with
the provisions of the Convention and the application must be rejected on this
point, pursuant to Article 35 §§ 3 and 4 of the Convention.
The Court recalls,
however, that although the primary purpose of Article 6 of the Convention as far
as criminal matters are concerned is to ensure a fair trial by a “tribunal”
competent to determine “any criminal charge”, it does not follow that Article 6
has no application to pre-trial proceedings. The “reasonable time” mentioned in
Article 6 § 1, for instance, begins to run from the moment a “charge” comes in
to being, within the autonomous, substantive meaning to be given to that term.
Other requirements of Article 6, especially of § 3, may also be relevant before
a case is sent for trial if and in so far as the fairness of the trial is likely
to be seriously prejudiced by an initial failure to comply with them (Eur. Court
HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p.
13, § 36).
The Court has
therefore considered the proceedings as a whole, in order to determine whether
the proceedings before the Court of Inquiry could have weakened the situation of
the applicant to such an extent that all subsequent stages of the proceedings
were unfair.
The Court recalls that the sessions in the Court of Inquiry were public except for the seven first sessions which were held in camera and that subsequently the applicant was granted access to the court transcripts of these first seven sessions. He was also given an opportunity of having legal assistance throughout the hearings, which he declined. The Court notes furthermore that when he gave testimony before the Court of Inquiry, the applicant was protected from self-incrimination and that he could make submissions to the Court of Inquiry on an equal footing with all other witnesses heard during the investigation.
Having regard to
the object of the Court of Inquiry - to provide a basis for Parliament’s
decision whether to press charges against certain persons who were, or had been,
entrusted with public authority, for having disregarded their duties whilst in
office - and the measures taken in order to protect the witnesses’ interests,
including the applicant’s, the Court considers that the proceedings before the
Court of Inquiry did not affect the applicant’s defence to the extent that one
could conclude at the preliminary stage, that the subsequent impeachment
proceedings could not be fair (cf. also the aforementioned Crociani case).
Consequently, the
Court finds that this part of the application does not disclose any appearance
of a violation of the rights and freedoms guaranteed by Article 6 of the
Convention.
b) The independence
and impartiality of the Court of Impeachment
The applicant
complains that the composition of the Court of Impeachment violated the
independence and impartiality requirement in Article 6 of the Convention in
respect of the participation of the judges elected by Parliament as well as the
participation of the Supreme Court judges.
The Court recalls
at the outset that in order to establish whether a tribunal can be considered as
“independent”, regard must be had, inter alia, to the manner of
appointment of its members and their term of office, the existence of guarantees
against outside pressures and the question whether the body presents an
appearance of independence. As to the question of “impartiality”, there are two
aspects to this requirement. First, the tribunal must be subjectively free of
personal prejudice or bias. Secondly, it must be impartial from an objective
viewpoint, that is, it must offer sufficient guarantees to exclude any
legitimate doubt in this respect (Eur. Court HR, Findlay v. the United Kingdom
judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281,
§ 73).
i: The allegations
relating to the participation of the judges elected by Parliament
The Government
submit that the reason for the special composition of the Court of Impeachment
is the nature of the cases to be adjudicated by that court in that it may face
questions the answer to which will to some extent presuppose an insight into the
political conditions under which a minister works. In the opinion of the
Government the fact that the lay judges are appointed by Parliament cannot in
itself lead to the disqualification of the Court of Impeachment when it has to
try criminal cases against ministers on the basis of a decision to prosecute
made by Parliament. Furthermore, the lay judges appointed by Parliament are
appointed for a term of six years and they cannot be removed during that period.
In addition, Parliament has no power of instruction over the lay judges
appointed by it, and there is no subordinate relationship between Parliament and
the lay judges. The Court of Impeachment was also aware of issues relating to
its impartiality, which it considered on a number of occasions. Finally, it
cannot with any reasonableness be argued that the lay judges were appointed with
a view to this particular case.
In support of his
complaint the applicant submits that Parliament had a double function
vis-à-vis the Court of Impeachment in that, on the one hand, it exercised
its power to initiate criminal proceedings against the applicant and, on the
other, at an earlier time had appointed half of the judges of the Court.
Although the members of the Court of Impeachment appointed by Parliament are not
themselves members of Parliament there exists ties of loyalty between Parliament
and the lay judges. They were therefore loyal party followers who would let
themselves be led by the opinion of their political basis. This is the more so
because the setting up of the Court of Inquiry and the charges brought before
the Court of Impeachment had essentially a political purpose. In fact, the
applicant alleges that the time of the appointment of lay judges by Parliament
meant that the lay judges were in actual fact appointed in order to participate
in a specific case. The applicant does not submit that any of these judges were
impartial in the subjective sense but that, in the particular circumstances of
the case, they lacked the necessary appearance of independence or impartiality.
The Court recalls
that the Court of Impeachment was composed of a number of professional judges
equal to the number of judges appointed by Parliament. The lay judges were
appointed by Parliament by proportional representation. They were appointed for
a period of six years and during that time it was not possible for any authority,
including Parliament, to change the composition or in any other way influence
the lay judges. The reason for the participation of these lay judges in the
Court of Impeachment is that the cases it is intended to adjudicate require a
certain insight in political matters.
The Court recalls,
furthermore, that Article 6 § 1 of the Convention requires independence not only
from the executive and the parties but also from the legislator, i.e. Parliament
(cf. the aforementioned Crociani case at p. 220). However, mere appointment by
Parliament cannot be seen to cast doubt on the independence or impartiality of
the court. The applicant has not alleged that any of the judges in question
actually took instructions or actually was biased. Although political sympathies
may play part in the process of appointment of lay judges to the Court of
Impeachment the Court does not consider that this alone gives legitimate doubts
as to their independence and impartiality. In this respect the Court have paid
attention, inter alia, to the fact that the lay judges were required to
take an oath to the effect that they would pass judgment “as [they] find it to
be right and true according to the law and the evidence of the case” and that it
is not established that they were appointed with a view to adjudicate this
particular case or had declared political affiliations concerning the subject
matter in issue. Nor has it been established that there existed other links
between Parliament and the lay judges which could give rise to misgivings as to
the lay judges’ independence and impartiality.
Thus, having had
regard to all the particular circumstances of the case and the special character
of the Court of Impeachment as well as the guarantees which existed in order to
protect it against outside pressures, the Court does not consider that the
participation of judges appointed by Parliament disclose any appearance of a
violation of the independence and impartiality requirement in Article 6 of the
Convention.
ii: The allegations
relating to the participation of the Supreme Court judges
The Government
contend that the Supreme Court judges on the bench of the Court of Impeachment
had not at any time prior to the impeachment case been involved in the
preparation of the case and in the course of events leading up to prosecution.
Only on two occasions had the Supreme Court determined appeals against
procedural decisions made by the Court of Inquiry. These decisions had no
connection with the subsequent criminal case against the applicant and they did
not involve any decision on issues covered in the subsequent criminal case. The
fact that the Court of Inquiry was chaired by a colleague of the participating
Supreme Court judges cannot provide a reasonable basis for raising doubts about
the impartiality of the participating Supreme Court judges. Nor can the question
of the alleged perception in certain parts of the population of the relationship
between the Court of Inquiry and the Supreme Court lead to any reasonable doubts
being raised as to whether, based on an objective assessment, the Court of
Impeachment appeared to be impartial.
The applicant
submits that the participating Supreme Court judges did not fulfil the
requirement of objective impartiality as some of these judges had determined
appeals made against decisions of the Court of Inquiry. Also the fact that the
judge presiding in the Court of Inquiry was at the same time a Supreme Court
judge and must be presumed to have discussed the case with his colleagues during
and after the proceedings in the Court of Inquiry, made the Supreme Court judges
partial in the subsequent proceedings in the Court of Impeachment. Finally, the
applicant submits that the fact that the Court of Inquiry was chaired by a
Supreme Court judge and its sessions were held in the offices of the Supreme
Court left an impression on the public at large that the Supreme Court as such
was involved in the activities of the Court of Inquiry. The subsequent
proceedings in the Court of Impeachment, involving also Supreme Court judges,
would thus not appear impartial in the eyes of the public at large.
The Court notes
that the applicant does not dispute the personal impartiality of the
participating Supreme Court judges. As to the objective test it must be
determined whether, irrespective of the judge’s personal conduct there are
ascertainable facts which may raise doubts as to his or her impartiality. In
this respect even appearances may be of certain importance. What is at stake is
the confidence which the courts in a democratic society must inspire in the
public, including the accused. Accordingly, any judge in respect of whom there
is a legitimate reason to fear a lack of impartiality must withdraw. In deciding
whether in a given case there is a legitimate reason to fear that a particular
judge lacks impartiality, the standpoint of the accused is important but not
decisive. What is decisive is whether this fear can be held to be objectively
justified (Eur. Court HR, Castillo Algar v. Spain judgment of 28 October 1998, §
45, to be published in the Court’s official reports).
The Court recalls
that the Supreme Court on two occasions determined appeals against decisions
made by the Court of Inquiry, on both occasions five Supreme Court judges
participated in the decision-making in the Supreme Court, and four of these
subsequently participated in the proceedings in the Court of Impeachment. The
Court recalls that the mere fact that these judges also made pre-trial decisions
cannot be taken as in itself justifying fears as to their impartiality; what
matters is the scope and nature of these decisions (Eur. Court HR, Nortier v.
the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, § 33 and
Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30).
Having regard to the scope and nature of the decisions made by the Supreme Court, concerning fixing of time-limits for submission of observations to the Court of Inquiry and the extent to which witnesses before the Court of Inquiry could have access to testimonies of other witnesses, the Court finds that the applicant’s fear that the Supreme Court judges involved in these pre-trial decisions lacked impartiality cannot be regarded as objectively justified. Nor can the fact that the professional judges participating in the Court of Impeachment were colleagues of the judge who had presided over the Court of Inquiry and the fact that the Court of Inquiry held its sessions in the offices of the Supreme Court lead to the conclusion that the applicant’s fear that the judges lacked impartiality and independence was objectively justified.
iii: The effects
of a virulent press campaign
The applicant
submits that the media had entertained a consistent and negative press campaign
against him which had in fact determined his guilt prior to the trial and had
influenced the participating judges - the professional as well as the lay judges
- in the Court of Impeachment to an extent that the court could not be regarded
as impartial. The Government did not address this issue.
The Court accepts
that, in certain cases, a virulent press campaign can adversely affect the
fairness of the trial and involve the State’s responsibility (cf. application
8403/78, decision of 15 October 1980, DR 22, p. 100). This is so with regard to
the impartiality of the Court under Article 6 § 1 (cf. the Crociani case at p.
222) as well as with regard to the presumption of innocence embodied in Article
6 § 2 (cf. applications 7572/76, 7586/76 and 7587/76, Ensslin, Baader and Raspe
v. Federal Republic of Germany, decision of 8 July 1978, DR 14, p. 64).
The Court
considers that to the extent the applicant may have been faced with an extensive
publicity and press coverage for his alleged maladministration while in office,
this must be seen against the background of the applicant’s position as the
Minister of Justice at the time and the public interest in the matters concerned
(cf. also application no. 3444/67, X. v. Norway, decision of 16 July 1970,
Yearbook 13, p. 302). The Court, having examined the case, has not found any
evidence that could lead to the conclusion that any of the judges in the Court
of Impeachment were influenced by this publicity in reaching their decisions
during the proceedings in the court or the final conviction and sentencing of
the applicant, or that the applicant was in any other way prejudiced by this
publicity.
In conclusion, the
Court have found no appearance of a breach of the Article 6 of the Convention
with regard to the independence and impartiality of the Court of Impeachment and
the presumption of innocence.
c) The Court of
Impeachment’s refusal to hear two witnesses
The applicant
complains of the fact that the Court of Impeachment refused to hear the Supreme
Court judge, H, who chaired the Court of Inquiry and the lawyer, N, who was
appointed to represent the public during the investigation conducted by the
Court of Inquiry. He considers that this refusal violated his rights under
Article 6 §§ 1 and 3 (d) of the Convention. He submits that the reason for his
request to hear H was to clarify whether and, if so, to what extent H had
discussed the applicant’s case with those of his colleagues in the Supreme
Court, who subsequently participated in the trial in the Court of Impeachment.
By the same token, the reason for his request to hear N was to clarify N’s
relations to representatives of the media during the period of time the Court of
Inquiry was sitting.
The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses and it does not require the attendance and examination of every witness on the accused’s behalf, its essential aim being an “equality of arms” in the matter. The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair as required by § 1 (Eur. Court HR, Vidal v. Belgium judgment of 22 April 1992, Series A 235-B, p. 32, § 33).
In the present case
the Court of Impeachment reached its decision of 7 December 1993 on the ground
that testimonies by Supreme Court judge H and advocate N would not be of any
importance to the matter to be decided upon. The conviction of the applicant, on
22 June 1995, was based on written evidence and testimonies given by the
applicant and 44 witnesses, several of whom appear to have been called on part
of the defence. Furthermore, the judgment contained a thorough reasoning for the
court’s findings.
The Court
considers that nothing in the material submitted indicates that the Court of
Impeachment’s refusal to hear the two witnesses in question was arbitrary or
that the applicant’s conviction was based on insufficient evidence. There are
therefore no appearances of a violation of Article 6 §§ 1 and 3 (d) of the
Convention with regard to the Court of Impeachment’s refusal to hear the two
witnesses.
d) The admission of
the transcripts from the Court of Inquiry
The applicant
claims that the fact that the Court of Impeachment decided to admit the
transcripts from the Court of Inquiry violated his right to a fair trial in that
it in fact prevented the witnesses appearing before the Court to give testimony
unbound of the testimony they gave before the Court of Inquiry. He submits that
there is no basis in national law for the court’s decision and that the
statements obtained by the Court of Inquiry cannot be compared with
interrogations made by the police prior to trial in normal criminal cases as the
applicant had not been charged before he was heard by the Court of Inquiry.
The Court
reiterates that the admissibility of evidence is primarily a matter for
regulation by national law and as general rule it is for the national courts to
assess the evidence before them. The Court’s task under the Convention is not to
give a ruling as to whether statements of witnesses were properly admitted as
evidence, but to ascertain whether the proceedings as a whole, including the way
in which evidence was taken, were fair (Eur. Court HR, Doorson v. the
Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions
1996-II, p. 470, § 67). It is the subsequent use by the trial court of statements
given at a preliminary stage that is capable of raising issues under the
Convention.
In the present
case the Court of Impeachment admitted those transcripts of the proceedings in
the Court of Inquiry which contained statements made by the applicant and
witnesses before the latter in order to confront, if necessary, the same persons
appearing before the Court of Impeachment with their own statements given before
the Court of Inquiry. The Court recalls that the Court of Impeachment did not
base its conviction of the applicant on previously made statements by witnesses
who were not heard by the Court of Impeachment as well.
The Court considers that the Court of Impeachment’s admission of the transcripts of the Court of Inquiry in order merely to confront witnesses with their previous statements cannot be considered contrary to Article 6 of the Convention. There is therefore no appearance of a violation of Article 6 with regard to the Court of Impeachment’s decision to admit the transcripts of the Court of Inquiry.
e) The continuation
of the proceedings in the Court of Impeachment despite the applicant’s state of
health
The Government
submit that the Court, as a starting point, should show restraint when assessing
the appropriateness of procedural decisions of the national tribunals. In the
instant case the Court of Impeachment found, on the basis of extensive medical
evidence, that the applicant did not have a lawful excuse for his absence, i.e.
his state of health did not prevent him from participating in a qualified way in
the remaining sessions of the proceedings in the Court of Impeachment. In such a
case the provisions of the Court of Impeachment Act render it possible to
request that the defendant be brought before the court, if necessary by force.
The prosecution as well as the defence refrained from requesting that the
applicant be present during the last sessions. By doing so, the defence waived
the applicant’s opportunity of being present. However, the applicant continued
to be represented by counsel who was in no way restricted in being in contact
with the applicant during the remaining proceedings. Furthermore, at least
quantitatively, the major part of the trial had been concluded at the time when
the applicant chose not to appear. Further adjournments might in fact have
caused the case to come to a standstill, in particular, because the applicant’s
state of health was considered to be permanent.
The applicant
maintains that the continuation and conclusion of the trial against him
regardless of his state of health constituted a violation of Article 6 § 3 (d)
of the Convention. The fact that he had suffered a stroke made him unable to
follow the remaining sessions in a qualified way and participate in the
preparation of his defence by, inter alia, questioning witnesses and
making statements. Although quantitatively the major part of the trial had been
concluded at the time when the applicant fell ill, a qualitatively important
part of the trial still remained, namely the re-hearing of the applicant and
five key witnesses.
The Court recalls
that it is in the first place for the national courts to assess the evidence and
interpret domestic law and that the Court will not substitute its own assessment
and interpretation for theirs in the absence of arbitrariness (see, inter
alia, Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November
1989, Series A no. 166, p. 19, § 39 and Tejedor García v. Spain judgment of 16
December 1997, Reports of Judgment and Decisions 1997-VIII, p. 2796, § 31).
The Court notes
that the Court of Impeachment’s decision of 6 April 1995 to continue the trial
was made on the basis of extensive medical evidence. Thus, several medical
opinions and an opinion from the Medico-Legal Council were obtained. On the
basis of the medical evidence produced the court found that the applicant’s
physical health did not prevent him from being present during continuing
proceedings. Nor did the statements from the doctors provide any reasons to
believe that his continuing presence would increase the risk of deteriorating
his health. With regard to the applicant’s mental state there was evidence that
his intellect had been reduced considerably. However, the Medico-Legal Council
refrained from stating whether he was incapable of participating at a qualified
level in a trial since the answer would depend on a legal evaluation of the
medical information.
On the basis of
an assessment of domestic law and practice in normal criminal cases and the
travaux préparatoires to the Court of Impeachment Act, the Court of
Impeachment found that the applicant’s illness could not constitute a lawful
excuse for his absence. Having
regard, in particular, to the fact that the major part of the taking of evidence
had been concluded, that the applicant had been present during all court
sessions prior to his illness and to the fact that the remaining part of the
trial could be conducted in a way that the necessary considerations be taken to
his state of health, the Court of Impeachment found that the applicant’s state
of health should not prevent the conclusion of the trial and the imposition of a
normal penalty on him.
The Court recalls
its case-law in which it has held that it is of capital importance that a
defendant should appear, both because of his right to a hearing and because of
the need to verify the accuracy of his statements and compare them with those of
the witnesses (cf. Eur. Court HR, Poitrimol v. France judgment of 23 November
1993, Series A no. 277-A, p. 15, § 35). This is the more so if the court in
question acts as the first and only instance. In the present case, following the
refusal of the Court of Impeachment to adjourn the trial further, the applicant
decided not to attend the remaining sessions of the trial. However, also in
these circumstances it is of importance for the fairness of the criminal justice
system that the accused be adequately defended (see mutatis mutandis Eur.
Court HR, Lala v. the Netherlands judgment of 22 September 1994, Series A no.
297-A, p. 13, § 33 and Pelladoah v. the Netherlands judgment of 22 September
1994, Series A no. 297-B, p. 34-35, § 40).
In assessing
whether the applicant was adequately defended during the remaining part of the
trial the Court have had regard to, inter alia, the fact that he was
represented by counsel and that the major part of the trial had been concluded
when he fell ill, the only remaining part of the proceedings being the announced
re-hearing of the applicant and five witnesses and the parties’ closing
statements (see the aforementioned Lala and Pelladoah judgments, p. 14, § 34,
and p. 35, § 41, respectively and Eur. Court HR, Van Geyseghem judgment of 21
January 1999, § 35, to be published). The Court further recalls that, as a
result of the decision of the Court of Impeachment not to adjourn the trial, the
applicant’s defence withdrew the request to have a re-hearing of the applicant
and of five witnesses. Consequently, the remaining part of the trial only
concerned the closing statements of the parties.
Having regard to
the above the Court does not find any appearance of a violation of Article 6 § 1
or § 3 (c) and (d) of the Convention with regard to the Court of Impeachment’s
decision to conclude the trial despite the applicant’s illness, and in his
absence.
f) A trial within a
reasonable time
The
applicant complains finally that his case was not tried within a reasonable
time. He claims that the period to be considered for the purposes of Article 6
of the Convention commenced on 8 May 1990, the date of the Prime Minister’s
press release or, in the alternative, on 13 June 1990, when Parliament adopted
Section 21a of the Administration of Justice Act, which provided the legislative
basis for the Court of Inquiry, or at the latest when the proceedings in the
Court of Inquiry commenced.
The Court recalls
that according to case-law the period to be taken into consideration under
Article 6 § 1 of the Convention must be determined autonomously. It begins at
the time when formal charges are brought against a person or when that person
has otherwise been substantially affected by actions taken by the authorities as
a result of a suspicion against him (cf. e.g Eur. Court of HR, Eckle v. Germany
judgment of 15 July 1982, Series A no. 51, p. 33, § 73).
The Court
considers that the mere fact that Parliament enacts a law which in a general way
provides the institutional basis for conducting investigations of certain
matters, even assuming that the applicant was the cause for such a legislative
initiative, does not involve the determination of the applicant’s civil rights
and obligations or of any criminal charge against him in the meaning of Article
6 of the Convention.
For the purpose
of determining whether the length of the proceedings was reasonable and having
regard to its considerations under a) the Court finds that the applicant cannot
be considered to have been substantially affected before the date on which he
was officially informed of the Court of Inquiry’s task and that he would be
called as a witness. Thus, for the purposes of this case the Court finds that
the period to be taken into consideration began on 26 October 1990 and it ended
on 22 June 1995 when the Court of Impeachment delivered its judgment, the
proceedings lasting a total of four years and eight months.
The Court recalls
that the reasonableness of the length of proceedings is to be assessed in the
light of the particular circumstances of the case, regard being had in
particular to the complexity of the case, the applicant’s conduct and that of
the competent authorities (cf., inter alia, Eur. Court HR, Kemmache v.
France judgment (nos. 1 and 2) of 27 November 1991, Series A no. 218, p. 27, §
60 and, Laino v. Italy judgment of 18 February 1999, § 18, to be published).
In the instant
case the task of the Court of Inquiry was to investigate whether “anybody
in public service or duty” had committed faults or negligence in relation to the
decision-making process and the administration connected with the handling of
cases concerning the family reunification of refugees from Sri Lanka. For this
purpose the court required written material that comprised a total of
approximately 18,000 pages and it held 104 sessions and heard 61 witnesses in
the period between 20 November 1990 and 29 May 1992. Furthermore, two decisions
made by the Court of Inquiry on procedural issues were appealed to the Supreme
Court during the proceedings. On 15 December 1992 the Court of Inquiry’s report
was finished and it was published on 14 January 1993. The report itself
comprised a total of 2218 pages and the transcripts from the hearings comprised
a total of 2782 pages.
The Court of
Impeachment had to determine whether the applicant was liable to punishment for
having disregarded his duties under the Aliens Act. For this purpose 44 witnesses
were heard and a substantial amount of written evidence was produced. In
addition, the court had to decide on several preliminary procedural issues
during the proceedings which lasted approximately two years. Having regard to
the nature and extent of the case the Court considers that it was indeed a
complicated one.
The applicant has not indicated any periods of inactivity which were due to the conduct of the Danish authorities. In fact the only period of inactivity (from 28 June 1994 until 6 April 1995) was due to the applicant’s illness. Considering again the nature and extent of the case the Court does not find any reason to criticise the Danish authorities involved for the length of the proceedings. Furthermore, the Court finds that the preliminary inquiry undertaken by the Court of Inquiry was necessary in order for Parliament to decide on whether to press charges against the applicant.
Having regard to the
above, and making an overall assessment of the length of the proceedings, the
Court finds that they have not gone beyond what may be considered reasonable in
the particular circumstances of the case.
In sum, the Court
has found no appearance of a violation of the complaints submitted under Article
6 of the Convention taken individually. Nor does the Court find cause for
holding that taken cumulatively the procedural deficiencies alleged by the
applicant disclose any appearance of a violation of Article 6, the proceedings
considered as a whole.
It follows that
the application is manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons,
the Court, by a majority as regards the complaint examined under e), and
unanimously as regards the remainder
DECLARES THE
APPLICATION INADMISSIBLE.
Erik Fribergh Christos
Rozakis
Registrar President