APPLdCATION / b.EQUÊTE N ° 10486 I 83 Mogens HAUSCHILDT v/DENMARK Mogens HAUSCHILDT c / ])ANEMAR K
DECISION of 9 October 1986 on the adnrissibility o!` the application DÉCISION du 9 octobre 1986 sur la recevabilité de la requ@t e
Article 3 of [he Convention : Solitary confinement. Examination of theyeverity of the measure, fts length, itsaitn and the effectsit had on the prisoner.
Article 5, paragraph 3 of the Convention : Reasonable time The end o,°the period to be eonsidered is the date of the judgment at first instance . Examinction of the reasons given for mainuiining the applicant on renu :nd, in particular the risk of absconrling, the risk of,further offences and the risk of suppression of evidence, followed by consideration of the diligence displayed by the judicial authorities . Detention on remand lasting 2 years 9 months and relating ~ro important economic offences considered not b he excessive.
Article 6, paragraph I of the Convonflon : Crimina.l proceedings lastJng 4 years 1 month . Reasonable time respected given the degree of complexity of the case ana the facT that the length of detention on remand, which largely coincided with the
length of the proceedings, was not considered to be excessive .
A vimlent press eampaign can, in certain circumstances, adversely affect ihe faimess of a tritd and involve the State's responsibility, particularly if it is sparked off by one of the State's organs .
Impaniality of'courts at)Yrst instance and on appeal put in question by the fact that certain judges had been required to a'ecide on the continuation of the applicant's detention on remand (Complaint declared admis.sible) .
Article 6, paragraphs 1 and .3 (d) of the Conven tinn : Article 6 para . 3(d) does not give an accused an absolute right to obtain the examination of witnesses on hi
sbehalf
. The judge may re)üse to hear a witness if he considers ihat the witrvess's state- mert would not be relevant .
It is nct contrary to the prin,ciple ef a fair trial to read at appeal ehe statements made at first instance and to ask the witnesses if they conftma these, in particular when the parties can then put questions .
Article 26 of the Convent0on : 5here is no effective remedy in Denntark,Sor com- p lainiag about an established practice wYdch is considered to be consistent with the law (Adm✓tistration of Justice Act), whereby a judge may sit on a trial even if he has previously d^cided on the continuation of detention on rensand .
Article 3 de la ('onven6or,i : Détention à l'isolement. E.wmen du degré derigueur de cere ntesure, de sa dunée,de son but et de ses effets sur le détenu .
Articde 5, paragraphe 3, a!e la Convention : Délai raisonnable . Le terme du délai à prendre en considération est le jugement rendu en prernière instance . Ezemen des motifs invoqués pour le maintien (lu requérant en détenticn préventive, en particulier les dangers de fiiite, de répétition des infractions et d'axératio~rdes preuvés, suivi d'une appréciation de la diligence des aauorités judieiaires . Durée de la détention préventive de 2 ans et 9 mois concernant des infractions économiques importantes jugée non excessive.
Article 6, paragraphe 1, de la Convention : Procédure pénale ayant duré 4ans et / mois. Délai raisonnable respecé compte tenu de la grande complexité de l'a,fJàire et du,iûit que la durée de ln détention préventive ; coincidant en grande partie avec celle de la procédure, est jugée non excessive .
Uree v7rulente campagne de presse peut, dans certains cac, nuire à l'équité a'u procès et engager la responsabilité de l'Eten, notamment lorsqu'elle a été provoquée par l'un de ses organes .
Impartialité des juridictions de première instance et d'appel mise en doute du fait que certains juges avaient été appelés d statuer sar le maintien du requérant en détention préventive (Grief déclaré recevable) . . , -
Article 6„ paragraphes 1 et 3, li'tt. d), de la Convention : L'anicle 6 pâr : 3 d) ne donne pas à l'accusé un de'oit absolu de faire interroger des témàins à charge . Le juge peui refuser d'entendre un témoin lorsqu'il considère que ses déclarations seraientsans pertinence .
[L n'eat pas contraire au principe d'un procès équitable tie donner lecture, en appel, des de'positions faites en première instance et de demander aue témoins s'ils ies main-
tiennent, notamrnent lorsque les parties peuvent encore leur poser des questions . Ar8c1e 26 de la Convenlion : Au Danemark il n'e.c!ste pas de recours effiçace pour
se plaindre d'une pratique étabiJe et jugée confomte à la législation (loi sitr i'ad- tninisiration de â justice), selon laquelle un juge peut siéger .au procès rnême s'il a .statué aupara»ant sur le mairctien en détention préventive.
THE FACTS (français : voir p. 107) The facts of the case, as submitted by the parties, may be summarised as follows .
The applicant is a Danish citizen born in 1941 . At the time of introducing his application he was detained in Vestre Faengsel ; Copenhagen, Denmark . The appli- cant was released in March 1984 and is now living in Switzerland .
In 1974 the applicant established a company, Scandinavian Capital Exchange ApS (SCE), which acted as a bullion dealer and furthermore provided various finan- cial services . SCE became the largest bullion dealer in Scandinavia with associated companies in Sweden, Norway, Holland, England and Switzerland .
Over the years, until the end of 1979, SCE and the applicant, who was the managing director, clashed on several occasions with the Danish National Bank, the Revenue Service and the Ministry of Trade concerning the flow of money to and from SCE and its associated companies abroad .
Eventually on 30 January 1980 this made the Intemal Revenue Service forward a complaint to the police in which it was stated that the activities of the applicant and SCE seemed to involve violations of the Danish tax laws and the Penal Code . After obtaining a court order the police then arrested the applicant on 31 January 1980, seized all available documents in SCE and closed the company . The applicant was charged with tax evasion .
On the following day - I February 1980 - the applicant was brought before the Copenhagen City Court (K(bbenhavns byret) and charged with fraud and tax eva- sion . It was decided to keep the applicant under arrest for 3 x 24 hours . There were no objections . On 2 February 1980, the City Court heard the prosecution and the defence, found that the charges were not ill-founded and decided todetain the appli- cant on remand and in solitary confinement according to the Administration of Justice Act (retsplejeloven), Sec . 762 and Sec . 770 para . 3 .
The above-mentioned provisions of the Administration of Justice Act read (in translation)
Sec . 762
`A suspect may be detained on remand when there is a justified reason to believe that he has committed an offence subject to public prosecution if, according to the law, the offence may result in imprisonment for 1 year and 6 months or more and if
1) according to information received concerning the suspect's situation there is specific reason to believe that he will abscond or,
2 ; according to information reeeived concerning the suspcct's situation there is specific reason to fear that once at large, he will conimit a new similar ol3ence or
, 3'
1 in view of the circumstances of tlhe case therd is specific reason to believ e that the suspect will impede the investigation in particular by removing evidence or by warning or intluencing others . - -- A suspect may furtherlnore be detained on remand when a particulady strong suspicion indicates that he tias committed an offence subject to public pros- ecution and this may result in imprisonment fbr 6 years or more and when respect for the public interest according to the information received about the gravity of the case recluires that the suspect is not at large.
Detention oo remand lnay not be imposed if the offence ir, expected .o result ht a fine ormprisonment not exceeding 6 months (ttæfte) or if the deprivation of liberty will be disproportionate to the interference witb thésuspect's situ- ation, the importance of the case and the outcome expected if the suspéc :t is found guilty . "
Sec. 770 para . 3(*)
"On request of the police thc court ntay decide that the detainee shall te totally or partially isolated if the purpose of the deteation on remand so requires ."
The applicant was kept in detention on remand without interruption antil the trial and during the trial which strrted before the City Court on 27 April 1981 . On 1 November 1982 the City Court convicted him of fraud and enlbezzlement involv- ing approximatély`40 million Danish erowns and sentenced him to 7 years' imprisonment
. }le aippealed against this judgment to the Court cf Appeal (Os4re Landsret) which on 2 March 1984 upheld ttie judgnrent except on two counts and reduced the sentemre to a total of 5 yeurs' irnprisomnent . The applicant was also detained on remand during the appeal prôceedings . He was released immediately after the Court of Appeal had pronounced judgment and left for Switzerland- He subsequently applied to the Mnistry of Justice for leave to appeal to r,he Supreme Court but this was refused by the Ministry on 4 May 1984 .
F'arallel to the criminal case against the applieant other cases were brought before the Probafe Court for Business Affairs (Sd- og Hz.ndelsrettens skifteilfdeling) in order to dissolve one of the finns the applicant controlled and in order to institute bankntptey proceedings against tlre applicant himself . The applicant challenged the decisions taken to that effect but the Supreme Court upheld the lower eourt's dieci- sions on l4 May 1980 .
(*) Sec . 776para . 3 of the Danish Administmtion of Justice Act was amended on 6]unc 1984. However, the text quoleA abovo is thc one which was in forec beforc that emendment .
Detention on remand
With regard to the applicant's criminal case the applicant was, as mentioned above, arrested on 31 January 1980 .
In the first decision (Kendelse) concerning the detention of 2 February 1980 the City Court indicated the following elements as a justification for the detention : 1) the applicant had lived outside Denmark until 1976 and by the time of his arrest he had plans to move to Sweden
2) the applicant's economic interests abroad 3) the importance of the cas e
4) the possibilities of impeding the investigation by intluencing persons in Denmark and abroad
. In pursuance of Sec
. 762 para . 1 Nos . 1 and 3 of the Administration of Justic e Act the City Court therefore decided to detain the applicant since the Court found reason to believe that the applicant, if at large, would abscond and impede the investigation .
The above elements remained, until 10 April 1980, the reasons for the appli- cant's continuing detention which according to Sec . 767 is under constant judicial control with maximum intervals of four weeks . During this period the applicant secretly asked his wife to remove money from certain bank accounts and to remove certain personal property . On 10 April 1980 the City Court therefore also invoked Sec . 762 para . 1 No . 2 as a reason for the continued detention of the applicant . Finally the Court of Appeal on 5 September 1980 also referred to Sec . 762 para . 2 since the investigations carried out by the police at that time indicated a possible loss for the injured parties of approximately 19 .5 million Danish crowns . The detention on remand continued with reference to Sec . 762 para . 1 Nos . 1, 2 and 3 and para . 2 until 17 August 1982 when Sec . 762 para . 1 No . 3 was no longer invoked .
At the time of the applicant's conviction by the City Court on 1 November 1982 the Court had decided 39 times to keep the applicant detained . Many of these decisions had been taken by the judge who subsequently presided over the trial against the applicant . While the trial was going on, the presiding judge also decided at regular intervals to prolong the applicant's detention on remand . The decisions of the City Court were upheld on appeal in at least 17 different decisions of the Court of Appeal . In these decisions a substantial number of different judges participated . In at least one instance a judge who participated in one of these decisions sub- sequently also participated in the examination of the applicant's appeal against the judgment .
After the applicant had appealed against the judgment to the Court of Appeal, he was still under Danish law considered to be detained on remand and the Court of Appeal accordingly had to decide on the detention question at least every fou r
weeks . By the tiine judgment was pronounced the Court of Appeal had taken 18 decisions to that effect . The Supreme Court upheld these decisions on two axzsions and foir appeals were declared Inadmissible since leave to appeal had not been grante(I by the Ministry of Justice . As reason for deiaining the applicant during the appeal proceedings, the comms refr.rred to Sec . 762 para . I Nos . I and 2 and para . 2 of the Administration of Justice Act . After 9 December 1983, however (last decision of the Supreme C'ourt), reference was made only to Sec. 762 psua . 1 Nos . 1 and 2 of the Adtninistration of Ju;tice Act .
Solitary corofineme m
During his detention on remand the applicant was kept in solitary confinentent from 2 February 1980 until 27 August 1980 and from 2 July 1981 until 7 October 1981 . Whenever the applicant appealed against his•detention on remand to the Court of Appeal this included the que.stion of solitaryconfinement . Throughout the periods in question the applicant was allowed to cxereise in the open air twice a day . In his cell he was allowed to listen to the radio, to watch television and to read books sup- plied by the prison library . He was in contact with prison staffin connection with the handing out of food, during walks in the prison yard and in connection with a number of court hearings . The applicant submits that he was not allowed to receive visits froni his family during the first 3 mbnths of isolation and cluring the folloviing 5 months only orice a week . Thereafter the visits were extended to twice a week for 30 minutes . All visits were surveyed by the police, except visits by his counsel .
Due to his situation in general but in particular because of his detention on remand and the solitary confinement ttie applicant went on a hunger cdrike on 12 August 1980 which he submits lasted for 55 days . 'rhe first period o1' solitary confinement ended, as mentioned above, on 27 August 1980 vehen the City Court found thai: the circumstances of the case no longer niade this measure necessary . On 2 July 5981 the (7ity Court, at the request of the proiecution, again imposed solidary confinement on Ihe applicant sinc:c he had attempted to impede the investig,ations in such a way that the prosecntion considered the possibility of extending the charges . During th,e investigation ot' these particular facts it waa found necessary co isolate the applicant. The solitary confinement, which was imposed in conditions g',imilar to those of the previous confinemeit, ended on 7 Oc :ober 1981 .
fnvestigation and trial
'fhe applicunt's arrest on 3 [ January 1980 was based in particular ou a report of the Internal Revenue Seivice of 30 Ianuary 1980 indicating possible violatioms of the Danish tax laws and the Pemd Code . Besides arrest.ng the applicant, the police also closed SCE and seized a substantial number of documents, not only from SCE's offices, but also from various persons involved . During the initial .period of the investigation, th .- police seized firrther documents and property and also carried out investigations iri England, Holland, Belgium, Switzerland, Liechtenstein and th e
U .S .A . From 30 January 1980 until the trial started on 27 April 1981 the City Court decided on several occasions to request the co-operation of other countries in secur- ing documents and in other matters . Insofar as this co-operation concerned European countries the request was made in accordance with the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 . After an initial court session on 30 January 1980, which preceded the applicant's arrest, 48 further court sessions were held in the Copenhagen City Court during the period before the trial started .
The indictment of 86 pages was served upon the applicant on 4 February 1981 . The applicant was charged with fraud and embezzlenient on eight counts involving approximately 45 million Danish crowns . The trial commenced before the Copenhagen City Court sitting with one professional judge and two lay judges on 27 April 1981 . During approximately 136 court sessions the City Court heard about 151 witnesses as well as the applicant and considered a substantial number of documents . Furthermore, opinions from appointed experts, in particular account- ants, were taken into consideration . The trial before the City Court ended on 1 November 1982 when the City Court gave judgment in the case, finding the appli- cant guilty on all counts . He was sentenced to a total of 7 years' imprisonment .
The applicant appealed against the judgment to the Court of Appeal of Eastern Denmark (Ostre Landsret) . It was a full appeal during which the Court would consider both points of fact and law . The trial was scheduled to commence on 9 May 1983 but at the request of the defence it was postponed until 15 August 1983 .
During approxhnately 64 court sessions before the Court of Appeal all witnesses except 12 were heard again . In addition, 8 new witnesses were heard . Furthermore, in addition to the documents already available, the prosecution pro- duced more material for the Court to evaluate .
On 2 March 1984 the Court of Appeal found the applicant guilty on 6 of the 8 counts in question . As reason for the 5 year ptison sentence imposed, the Court considered as an aggravating circumstance the extensive character of the fraud comtnitted . On the other hand the Court found extenuating cireumstances in the fact that the applicant had been detained on remand since 31 January 1980, a detention that was considered more straining than regular imprisonment .
The applicant's subsequent application for leave to appeal was, as mentioned above, rejected by the Ministry of Justice on 4 May 1984 .
The deJenee
In accordance with Sec . 731 of the Administration of Justice Act a defence counsel was appointed for the applicant when he was brought before the Copenhagen City Court less than 24 hours after his arrest on 31 January 1980 . In accordance with Sec . 745 of the same Act the defence counsel has a right to make himself acquainte d
with the records produced by the iolice amd insofar as these records can be repro- duced without any particular inconvenience, he will receive copie ;i . Counsel tnay not hand over the material to the accused or others without permission from the police . The applicant complained on several occasions that the investigating police and the prosecution violated his right to equality of arms in that inter clia the tremendous press coverage allegedly instigated by the police created a distorted picmre of the situation against cvhich he was unable to defend himself . In this respect the Court of Appeal on 3 March and on 2 5 July 1980 refused permission to make certain articles prepared by the applicant and his defence available to the press . On 13 August 1980 die City Court also refused permission to forward an article to the press since it could not be ruled oo.t that the information could prejudice the investi- gations under way .
Fnrthermore, the applicant complained that the police were deliberately unwill- ing or even rcfused to ha.nd over documents important for his defence . On 13 Febvary 1980, however, the Çiry Court decided that Cne applicant's defence Nvas entitled to receive documents in accordance with Sec . 745 of the Administration of Justice Act but coild not receive internal police docu+nents and correspondence . On 20 October 1980 ihe Attorney Gereral (Rigsadvokaten) dismissed a complaint from the applicant concerning equality of arms since the investigation carried our . to that effect failed to disclose any misconduct . 7Chis deeisionwas upheAd by the Ministry of Justice on 22 December 1980 . Finally, on 23 October 1980 the prosecution in a letter te the applicant's counsel stated that copies of all docuinents would not be made available to the applicant but that, together with the a-oplicant, counsel was welcome to examine the documents in the offices or the prosecution and to receive copies of those documents which he and ifie applicant considerr,d of importance for the defence- . Fi-om the applicant's submissions it is not clear whether auch a meeting took place . However, it appears from a letter of 9 April 1931 from the applicant's eounsel that the applicant himself had at tnat time received copies of the major part of the documents in question
. The applicant's own possibilities of preparing his defence were to a great exten t limited to the worlc he could carry out in his cell . Here he kept most of the documents he had received . Due to the substantial arnount of material involved, a special cell at Nytorv prison was placed at his disposal where hz conld work provided he was accompanied therr, by his counsel . It appears, however, that for some time the appli- cant was also allowed to reinain in that cell alone .
As mentioned above, â defence cocrosel was appointed by the Court on 31 January 1980 . This counsel resigned on 4 February 1981 (lue to health problems and a new defence connsel was appointed . When the trial started before the City Court on 27 April 1981 ~he applicant contplained to the Court that the c:rcumstanee.s of the case required defence counsel with special knowledge in the particular field of law which the case concerned and requested the appointment of two new defenc e
lawyers . The request was rejected by the City Court but on appeal and after interven- tion by the Danish Bar Association the Court of Appeal on 30 April 1981 appointed two new defence lawyers, who then remained the applicant's counsel throughout the trials before the City Court and the Court of Appeal .
Proceedings before the Copenhagen City Court and the Court of Âppeal During the trial before the City Court, the Court took, as mentioned above, numerous decisions as to the detention and solitary confinement of the applicant . Moreover, in addition to the commissions rogatory already mentioned, other pro- cedural matters arose which required a decision by the Court . On 3 August 1981 the defence requested payment of travel expenses for a planned trip to Switzerland and Liechtenstein . Such payment was rejected by the Court whose decision was upheld by the Court of Appeal . On 21 December 1981 the defence requested the hearing of all the 804 witnesses mentioned in the indictment . The Court refused this request since the witnesses to be heard had been agreed after negotiations between the defence and the prosecution . Furthermore, the Court found that the hearing of the additional witnesses would not at present be necessary since the facts which could be established thereby would be presented by other means . The hearing of further witnesses, however, might later become necessary if the circumstances of the case so required . It appears that the applicant did not appeal against this decision . On 2 June 1982 the defence requested the hearing of an additional 15 witnesses . The Court allowed the hearing of 3 witnesses and refused the hearing of the rest, at least for the time being . There was no appeal against this decision . Finally it appears that the defence, during the trial, tried in vain to obtain an auditor's report which would counterbalance the report produced by the prosecution . The applicant alleges that the prosecution obstructed his attempts to receive a new report but no court decisions to that effect appear to be present in the case-file .
After the judgment of the City Court of 1 November 1982 the case was on appeal brought before the Court of Appeal for Eastern Denmark . From a procedural point of view the first matter to be settled was the date on which the hearings were to commenee. They were initially intended to commence on 9 May 1983 but on 16 March 1983 the defence requested a postponement . This was granted . The trial thus commenced on 1 5 August 1983 when the applicant complained that the presiding judge had shown bias against him . He should therefore be removed from the case . The Court of Appeal, however, found no appearance of any fact which could cast doubt on thejudge's impartiality and therefore rejected the complaint . The applicant appealed against this decision to the Supreme Court which on 31 August 1983 refused to hear the case since leave to appeal had not been granted by the Ministry of Justice .
On 7 November 1983 the applicant complained to the Court of Appeal about the manner in which the Court heard the witnesses . Tha Court used to start by reading aloud the statements made by the witnesses before the City Court and woul d
then if necessary add questions . The applicant found the method unfair since,he C'ity Court transcript was not verbatim and therefore did not retlect the true picture of what had been said . The Court of Appeal decided on 9 November 1983 to continue
with the same melhod . . . , ,
On 23 November 1983 befote the Court of Appeal Ihe applicant requested the hearing of all persons inentioned in the indictment . Like the City Court the Court of Appeal refusec to hear all the 304 persons in question . The applicant thereaŸter asked the Court to finish the trial since he no longer considered the proceedings to be fai r
On 7 December 1983 tie presiding judge died ii court of a heart attack which, however, did not cause delayssince a substimte judge aho had participated in the case succeeded hi .n immediately . 'Che applicant submits tbat the proeeedings beeame more favourable from his point of view afrer this date . In particuiar, he was allovved to speak for four days before the final summing up of tlte case in February 1984 . The judgment was pronounced ou 2 March 1984 .
COMPLAINTS
The applieant's initial defence counsel submitted a coinpaint on 26 August 1980 in wttich he alleged on behalf of the applicant a violation o= Article 3 emd Art- icle 5 para . 3 of the Convéntion He maintained ttiat the solitary confinement to which the applica.nt had been subjected at that time for a period of approximately 7 months atnounh :d to inhuman or degrading treatmeit . As regar3s Article .5para . 3 it was alleged thut the applicant had not been brought to trial ivithin a reasona:ble time .
In a letter ol' 27 October 1982 the applicant alleged violations of Articles 3, 5, 6 and 7 of the Convention . With a. covering letter of 9 June 1983 the applicant sub- mitted his application form in which he referred to Articles 3, 5, 6 and 10 of the Convention and Article I of Protocol No . 4 to the Convention
. As regards Article 6 the applicant complains geaerally that he did not get a fai r hearing by an impartial tribunal within a reasonable lime . In parlicular the applicant points ou
t - that his rights under Article 5 were violated during the procaedings before th e Probate Court ;
- that the enormous press coverage had been inrdigated by the prosecuzion and thus violated his i-ight to be presuined innoeent until fourd guilty according to law ; - ttiat the defence was refused permission to obtain the atteridance and examin- ation cf a large riumber of witnesses ;
- that the defence was denied resources to conduct a proper defence, since it had considerable difficulties in obtaining information and data from the prosecution and was not given effective access to the seized material ;
- that the court records did not show the true picture of the facts of the case since no verbatim records were available and since the courts made incorrect dictations : - that his own statements and comments were often ignored and thus not included in the court records ;
- that the presiding judge at the City Court and the full Court of Appeal had taken more than 50 decisions to keep the applicant in detention on remand both before and during the trials as well as a number of other decisions during the investigation of the applicant's casé (connnissions rogatory) and the courts could not therefore be considered impartial when deciding on his guilt and when pronouncing the sentence against him .
As regards Article 10, the applicant complains that during his detention on remand he was refused permission to forward certain information to the press . This information would, in his view, have been important to correct the distorted picture which the press had given of hint and his activities and which impaired his defence . In addition to these complaints, the applicant also complains that he was arrested on account of his inability to fulfil a contractual obligation which was considered to constitute fraud . The applicant states, however, that if he had been allowed to continue his business activities, he would also have been able to ful fil his contractual obligations . He invokes on this point Article 1 of Protocol No . 4 to the Convention .
THE LAW
1 . The applicant has complained that he was held in solitary confinement from 2 February 1980 to 27 August 1980 and further from 2 July 1981 to 7 October 1981 . He submits that this treatment was inhuman and degrading and in violation of Article 3 of the Convention which reads :
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment. "
The Commission recalls that it has examined a number of complaints from applicants contending that isolation of detainees on remand or of prisoners serving sentences was in contravention of Article 3 of the Convention .
The Commission has held that the segregation of a prisoner from the prison com- munity does not in itself constitute a form of inhuman treatment (cf. Nos . 7572/76, 7586/76 and 7587/76, Dec . 8 .7 .78, D .R . 14 p . 64) . The Commission has also been confronted with a number of solitary confinement cases (cf . No . 1392/62, Dec.
14 .7 .65, Collection 17 p . 1 ; No . 5006/71, Dec . 9 .2 .72, Collection 39 p . 91 ; 96
No. 2 749/66, D ec . 16 .12 .66, Yearbook 10 p . 382 ; No . 6038/73,Dec. 11 .773, Collection 44 p . 115 ; No . 4448/70, Dec . 16 .7 .70, Collection 34 p . 70 ; No . 8R95i78, Dcc . 16 .12 .81, D .R. 27 p .. 50) . It has stated thx : prolonged solitary confinement is undesirable, especially where the person is dofained on remand . However, in assessing whether sach a measure may fall within the ambit of Article 3 of the Convention in a given caae, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its e-fects on the person concerned . Cornplete sensory isolation coupled with eomplece social isolation can no doubt ultimatebr destroy the personality, anc may therefore, in certain ciircumstances, cônstitute a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition of torture andinhuman treatment contained in Article 3 of the Convention being absolnté in character (cf . No . 5_ 1 10171, Ireland v . the United Kingdom, Comnt . Report 25 .1 .76, p . 379, F.ur . Court H .R ., Seres B no . 23, p . 390) .
As regards ihe form of isolation to which the applicant was subjected, the Com- mission has noted that the applicant was kept in a cell in Vestre Faengsel where he was allowed to listen to the radio and watch television . The Commission further observes that throughout the period when he was kept in isolation the applicant was allowed to exercise in the open air for one hour every day . He had the loan af books from the prison library . He was ii contact with prison staff several times eve ry day in conneelion with inter alia the handing dut of food andexercise in the prison yard . Furthermore, he was in contact with varïous persôns in connecxion with a nuniber of court hearings . Throughout the period of isolaticn the applicant was not subject to any re.s¢rictions with regard to visits bp his counsr,l . After some time he was also allowed to receive controlled visits by his family and could see them twice a week . The Commission furtiermcre recalls that the applicant's criminal case con- cerned fra.ud and embezzlemem on a large scale, involving more than 800 persons and nacessitating investigations of financial matters in sevoral eciuntries . The decision to isolate the applicant and the other restrictions to which he was subjected with regard to vists were therefore justified by the nature of the charges aga-~ .nst him . Bearing theaforemenlioned facts in mind the Co¢mission concludes that the solitary confinement imposed on the applicant during ehe period of detentiori on remand was not of such severity as to constitute inhuman or degrading treatment in violation of Article 3 of the Convention .
This part of the applicution is therefore manifestly ill-founded within ttte mean- ing of Article 27 para . 2 of theConvention .
2. 7'he applicznt has also complained that he was not brought to trial within a reasonable time as guaranteed te him under Arficle 5 para . 3 of the Convention, which reads :
"Everyone arrested or dets .ined in accordance with the provisions of para- graph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercisejudieial power and shall be entitled to trial within a reasonable time or to release pending trial . Release may be conditioned by guarantees to appear for trial . "
The applicant's detention on remand began on 31 January 1980 and under Danish law he remained detained on remand until his release after th e judgment of the Cou rt of Appeal on 2 March 1984 . However, with regard to the period of ti ine which the Commission must consider under Article 5 para . 3 of the Convention, the Commission recalls the judgment of th e European Court of Human Rights in th e Wemhoff case (Eur . Cou rt H .R ., Wemhoff judgment of 27 June 1968, Series A no . 7) which states th at the end of the period of detention with which Article 5 para . 3 is concerned is the day on which the applicant was convicted by the first instance cou rt .
Accordingly the relevant period under A rt icle 5 para . 3 of the Convention runs from the applicant's arrest on 31 Janua ry 1980 until the City Courtjudgment on I November 1982, and is therefore 33 months .
The Commission and the European Court of Human Rights have on several occasions been called upon to apply A rticle 5 para . 3 of the Convention (e .g . Eur . Court H .R ., Wemhoff judgment of 27 June 1968, Series A no . 7 ; Neumeisterjudg- ment of 27 June 1968, Series A no . 8 ; Stôgmüller judgment of 10 November 1969, Series A no . 9 ; Matznetter judgment of 10 November 1969, Series A no . 10 ; Bonnechaux v . Switzerland, Comm . Report 5 .12 .79 and Schert enleib v . Switzer- land, Comm . Report 11 .12 .80) .
In the light of this case-law, th e Commission points out in the first place that in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against th e existence of a genuine requirement of public interest justifying a departure fr om the rule of respect for individual liberty . The reasonableness of the duration of detention pending trial cannot be judged in the abstract and it is essentially on the basis of the reasons given in the decisions on applications for release pending t ri al and of the facts mentioned by the applicant in his appeals that the question whether or not there has been a violation of the Con- vention has to be determined .
Furthennore, even if th e grounds relating to the public interest cited by the national judicial authorities are pertinent and sufficient to justify keeping a person in detention pending tri al, th at does not exempt the au th orities from their obligations under the Convention if th ey th emselves are seen to have prolonged the detention unreasonably
. In the present case the Commission recalls th at the judicial authorities relied on the grounds mentioned in Sec . 762 of th e Danish Administration of Justice Act when justifying the continuing detention of the applicant : th e risk of absconding, th e
risk that the applicant, if at large, would commit new offences (after 10 April 1980), the danger of suppression o1' evide:nce and (from 5 Sr,pternber 1980) also the respect for the public interest .
V✓ith regard to the existena; of a danger of suppm .ssion of evidence and the danger of new offences, the Commission regards the concern of the Danish authorities justificd not only because of the applicant's acts during the investigaition but also in. view of the character of the offences of which he was suspected and the complexit7v of the case which involved several hundred persons and several million Danish crowns .
In order to determine whether in a given case there is a risk of a person absconding, it is necessary to examine the factors relating to the character of the person involved, his morals, . his home, his occupation, his assets, his family ties and all kinds of links with the canuntry, in which he is being prosecuird . For there to be a risk of an accused person abseonding tbere must be a whole set of circumstances - in particular the expectation of a heavy sentence er the accused's particular aver- sion to detention, or the laelc of well-established ties in tIe counlry - givin; ; reason to suppose that the consequences and hazazds of absconding will seem to him a lesser evil than cwntinu :d imprisonmenl .
V✓ith regard to the applicant's situation, the Commission recalls thai he had substantial financial ties abioad, in particular in Switzerland, and that the offerices brought against the applicant made him liable to a severe prison sentence. if con- victed .
11 is hardly possible in these cireumslance .s to rule out the riak that the applicant would abscond . After reflecting on the various consicterations set out here, the Com- missio .i is satis6ed that the judicial authorities had sufficient reason to believe in a real risk tlhat the applicant, once at large, would escape in order to evade justice . II nevertheless rernains to be considered whether in this case, and with regard to this pairticular complaint, the Danish judicial authorities displayed the special diligence which the Converition requires in the case of a detained person .
The investigations of the applicant's case continued immediately after his arrest on 31 lanuary 1980 . The indictment was served upcn hirn on 4 Februarÿ 1981 and the trial commenced on 27 Aprll 1981 . The period leading up to the trial was therefore approximately 15 inonths . The C'ommission recalls that the case ccncerned financial offences involving several hundred persons in Denmarlc as well as abroad . Investigations were carried out in several countries in Europe as well as in the U .S .A . During the applicanit's detention on remand a tctal of 48 sessions in court took place where investigative matters as well as other procedural matters had to be determined .
Furthermore, the Commission acknowledges that in a case like this, time must be allowed for all the routine work that the investigating authorities carry out and which the procedural documents only reflect indirectly .
The trial before the City Court commenced on 27 April 1981 and ended on 1 November 1982 . Consequently the trial lasted for approximately 18 months . During this period 136 court sessions were held without any substantial adjoum- ments . On this point the Commission therefore finds that no criticism can be made of the conduct of the trial by the judicial authorities .
Having regard to the above-mentioned facts, the Commission therefore con- cludes that the period of the applicant's detention did not exceed what can be considered reasonable within the meaning of Article 5 para . 3 of the Convention, and it follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention .
3a. The applieant has furthermore complained that he was wrongly convicted by the Danish courts .
In this respect the Commission recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations under- taken by the Parties in the Convention . In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention . The Commis- sion refers, on this point, to its constant jurisprudence (see e .g . No . 458/59, Dec . 29 .3 .60, Yearbook 3 p . 222 ; No . 1140/61, Dec . 19 .12 .61, Collection 8 p . 57 ; and No . 7987/77, Dec . 13 .12 .79, D .R . 18 p . 31) .
It is true that in this case the applicant has also complained that he did not get a fair trial by an impartial tribunal within the meaning of Article 6 of the Convention, and he has referred in this regard both to the proceedings before the Probate Court and to his criminal case.
Insofar as the applicant's complaints relate to the proceedings before the Pro- bate Court, the Commission is not required to decide whether or not the facts alleged by him disclose any appearance of a violation of this provision, as Article 26 of the Convention provides that the Commission "may only deal with the matter . . . within a period of six months from the date on which the final decision was taken" .
In the present case the decision of the Supreme Court which was the final decision regarding the subject of this particular complaint was given on 14 May 1980 whereas the application regarding this complaint was submitted to the Commission on 9 June 1983, that is more than six months after the date of this decision . Further- more, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period .
It follows that this part of tie application hnsaeen introdttcedout of time and must be rejected under Arcicle 27 para . 3 of the Convention .
b . I :nsefar as r.he applicant's'aomplaines relate to the proeee(lings in his criminal case, he alleges in particulor that the fairnéss of the proceedings was affected by the publicity given to the crirninal niatter in the tnass media . This publicity, so he submits,was provoked by the prosecution who allegedly brarided him ac a white collar criminal before the rrial had started .
It is true that the Commission has accepted that in some cases a virulent press campaign can adversely aff2ct the fairness of a trial rcf. No . 1476/62, Dec . 23 .7 .63, Collection 11 p . 31 ; and No . 3444/67, Dec . 16 .7 .70, Yearbook 13 p . 302) and involve the State's respons;.bility, particularly whera it is sparked off by one oiF the State'u organs . In the present case the respondent Glovernment have deniedthat the press coverage was instigated by the police or the prosecuting authority aud stated that it was probably based on in'ornratinn obtained from the public court héârings which attracted considerable public interest . Purtherniore the Government have submitted that the information imparted in connection with the case was only replies to oral questions in accordance with the usual practice as regards the giving of infor mation to the public and tho, news media, Finally the Government maintain tha4 the few iicidients where the applicant was barred from contacting the press were necesr.ary in orcler to carry oùt a proper investig.uion and olherwise of suclr an insignificant nattire that thi ; in no way could have affected the fairness of the trial . Phe applicemt maintaius that nearly all newspaper ariicles were prejucliced and contained inforniation which coild not have been based only on what occurred during the court hearings, but of5eials of the Public Prosecutor's Office must have caused the newspapers to publish false allegations which never resulted in any indicttnent but only unfairly influenced the proceedings under way . The nationwide television broadcast of the closing of the applicant's offices on the day of his arrest furthermore created effects which subsequehtly helped the prosemtion to prove their case against the applicant . He also maintains thut the prostxution's successful attempts to prevent him from coritacting the press barred him from obtaining a fair trial .
The Commission has taken uote of a number of newspaper articles concerning the applicant's case and has noted that the case was indéed subjected to an extensive press coverage . However ; v✓hether or not these articles eontained incorrect or biased information, the Commission cannot find it establisb.ed that what was said about the applicant in the mass media. had any impact on the conduct and the outeome of' the trial . It is true that the applicant by court decisions of 3 March, 25 July 1980 and 13 Au ;ust 1980 was refused perrrission to make cerlain articles prepared by himself and his counsel available to the press . However, the Commission has not found it established that these incidents were of such a nature that the applicant's right to a
fair trial was afN°cted .
c . The applicant further alleges that he was not allowed to call witnesses under the same conditions as the Public Prosecutor . He asked for a large number of witnesses to be heard, but the trial court refused to hear them . The Commission notes, however, that the trial court, in its decisions to that effect, indicated the reasons why it did not consider it possible or necessary to hear certain witnesses . The Court found that their statements would be irrelevant to the case .
Article 6 pâra . 3 (d) of the Convention, according to which an accused has the right to obtain the examination of witnesses on his behalf, does'nôt give an absolute right to the examination of every witness proposed by the defence (Eur . Court H .R ., Engel and others judgment of 6 June 1976, Series A no . 22) . In particular a court is justified in refusing to summon witnesses when it considers that their statements could not be of any relevance to the case (see, for example, No . 4124/69, Dec . 13 .7 .70, Collection 35 p . 132) . The Commission does not find it to be established in the applicant's case that the Court failed to consider relevant evidence or rejected the applicant's motions in an arbitrary and unfair manner .
d . Regarding the hearing of the witnesses in the Court of Appeal the applicant has also complained that the method used, e .g . reading aloud the statements made by the witnesses in the City Court before the examination by the Court of Appeal, was unfair and to a great extent influenced the outcome of his appeal . With regard to this complaint the Commission recalls that when a witness was heard in the Court of Appeal, his statement in the City Court was first read out and the witness was thereafter asked whether he could stand by his statement . Then followed a further hearing of the witness during which the defence counsel, the prosecutor and the judges could put supplementary questions in order to clarify the situation .
The Commission considers generally that it may reduce the value of the statements of a witness if he is first reminded in detail of what he said when giving evidence before the lower court . However, it notes that the parties were given the opportunity of putting further questions to the witnesses in order to obtain funher information or to question the correctness of their evidence . In these circumstances, the Commission finds that the method used was not of such a character that it could render the hearing unfair and it does not therefore constitute a violation of the Con- vention .
e . Under Article 6 the applicant also maintains that he did not get adequate time and facilities for the preparation of his defence . In particular he has pointed out that the defence had considerable difficulties in obtaining information and data from the prosecution andwas refused effective access to the seizedmaterial .
It is true that Article 6 para . 3 (b) of the Convention guarantees to an accused person the right to be granted adequate facilities for the preparation of his defence . In the present case the Commission recalls that a defence counsel was appointed to the applicant when he was arrested and that he was represented by two defence
lawyers during his trial before the. City Court and the appeal prcceedings be,fore the Court ofAppeal . According to S,.e . 745 of the Adniinistration of Justice Act these defence lawyers had the right to rnake themselves aequainted with the material produced by the police and the Commission has found no indication that this right was denied them . On the contrary, the City Court decided on 13 February 1980 that under Sec . 745 of the above. Act the defence was eniitled to receive documents with the ex :zption of internal police files and correspondence . Furthermore, ttie corre- spondenee: submitted by the applacant also shows that at least on one occasion the prosecution invited the applicant and his counsel to come and receive copies of the docmrents which they found necessary . In these circumstanees the'Conimission finds that the applicant's access to the file or other (locuments was not restricted to
such an extent ttiat the right secured under Article 6 para . 3 (1)) was violated . Furthermore, the Commission notes that a special cell was put at the applicant's disposal clue to the complexity of the case and the number and volume of the doeurnents involved . It is true that the applicant eould only wosk in this cell in the company of one of his lawyers but it nevertheless does not support his claint tha¢ his rights of defence were not respected .
f . Under Article 6 the Commission har, also considered the applicant's complaint that his case was not detertnined within a reasonable tiine . The Commisst.on finds that the period in question lasted from the applicant's arrest on 31 January 1980 to 2 March 1984 when the Court of Appeal pronounced judgment in the case . This is a total of 4 years and I month
. The reasonableness of the length of proceedings must be assessed in eac h instance, accordng to the particular circumstances . Regard niust behad, amiong other things, to the complexity of the case, the eondnet of the accused and the conduct of the judicial authorities
. The presert case was undoubtedly a very complex one wtiich 'concei-ne d econoinic erimes of great dime :isions and eommittedon an internatibnal scale . Investigations had to be carried out in many European countries aswell as in the U .S .A . The trial before the City Court lasted from April 1981 to November 1982 with regular hearings on a total of 136 days . More than a hundred'witnesses were heard and a substantial number of documents were read out in court . The applicant appealed to the Court of Appeal where the trial conrmenced in August 19Y3 due to a postponement requested by the defence and ended in March 1984, with regular hearings on a toi :al of 64 days .
The Commission has already, in its examination cf the cvomplaintunderArt- icle 5 of the Convention, found that the applicant was brought to trial within a reasonable time . In view of the complexnry and volume of the case the Coramission cannot find from the information subtnitted by the applicant any indication of unreasonable delays during theremaining period . Neither is there anything to show that the jndicial authorities caused any avoidable delays .
Accordingly, the Commission finds that an examination of this complaint also fails to disclose any appearance of a violation of Article 6 of the Convention . g . Consequently, an examination of the applicant's above complaints under Art- icle 6 of the Convention has disclosed no breach of the said Article and this part of the application is therefore manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention .
4 . However, the applicant has also alleged a violation of Article 6 in that his case was not decided by an impartial tribunal, either in the City Court or in the Court of Appeal . The applicant here points out that the presiding judge at the City Court as well as the full Court of Appeal had on numerous occasions decided to detain the applicant on remand before his trial before these courts . Moreover, while the trial was going on before the City Court and the Court of Appeal, these courts decided at regular intervals to prolong the applicant's detention on remand . Furthermore, the applicant has also referred to the fact that the City Court on many occasions during the investigation of his case decided at the request of the prosecution to obtain evidence to his detriment from persons and firms in Denmark and abroad .
The respondent Government have contended that the applicant did not at any tinte request to have a court ruling regarding these complaints and they furthermore consider it of decisive importance that the Danish authorities who apply the law should be afforded the opportunity, in accordance with Article 26 ôf the Convention, to take a position themselves on these points . The applicant has stated that he repeatedly raised objections in regard to these complaints but that his objections were ignored . Furthermore, he maintains that according to the Administration of Justice Act, in particular Sec . 60, he would not have any effective remedy in regard to this complaint .
It is true that under Article 26 of the Convention the Commission may only deal with a complaint after all domestic remedies have been exhausted according to the generally recognised rules of international law, . However, if it can be established that the remedies that may exist are ineffective or inadequate, either as a result of an administrative practice or otherwise, the domestic remedies rule does not apply (see for example No . 8462/79, Dec . 8 .7 .80, D .R . 20 p . 184) .
In the present case the Commission recalls that thé Danish system, which is set out in the respondent Government's observations and recalled below, was introduced in 1978 and is now an established practice in Denmark . Moreover, it is consistent with the Administration of Justice Act . The applicant could not, therefore, have pointed at any breach of Danish law when complaining about this situation . In these circumstances the Commission finds that no effective remedies were available within the meaning of Article 26 of the Convention in regard tothis complaint . Accord- ingly, the Commission does not reject this complaint for non-observance of the domestic remedies rule .
With. regard to the substance of this complaiiit, the Coaunission reealis the systern operating in Denmark wtiere a case is inventigated and brought before the court by the police and the prosecutor . Depending on the parti : ;ular eireutnstanees of the ease the prosecutor rnay request the court to detain the applicant on remand and the court may decide tc do so when the requireinents set out in Sec . 762 of the
Administration of Justice A,,t are fulfilled . The period of detention is under constant judiciaJ control in that it may nevcr exceed four weel :s without a new court decision . When, as in the present case, the irial lasta for more than a month the trial o3ûrt also deterniines whether it is ne< :essar✓to keep the accused in detention . When deeiding on the question of detention the court must be satisfied under Scc . 762 parei . 1, that there is a justified reason to believe that the suspect has commi[ted the offence and that there is specific reason to believe that the suspect, if at large, will ab : ;cond or comm It new offences or impede the ongoing investigation . Under paragraph 2 of the
same Section, detention may furthermore be imposed, if thc public inieresi : so requires, :nnd there is a pan.iculatly strong suspicion indicating that the suspect has committed the offence .
The Government have sub¢itted that under the Danish sysdem there is a clear line of distinetion between the functions of the police and the prosecution and the functions of the court which entails that throughotit the inve .sdgation process the court exercises only superv :sory functions and remains entirely neutral . There is no coneurrence of the functions of the prosecuting authority and thejudge . Thejudges are only to take a position on questions in dispute between the police and the accused and to ensure that the conditions laid down in the Admiuistration of Justice Act are fulfilled . However, the court must intervene if an investigative measure is deetned to invilve such a severe interference with citizens' rights that it could only be
instituied by court order .
The applicant has empnasised that the judge who presided a : the City Courttrial as well as the jurlges at the Court of Appeal were to a large extent the same judges who &-cided to detain him en remand both before hie, trial and during his trial before these eourts . For judges who had participated in such decisions and, concerning the
City Court, also in numerous decisions to obtain elridence front persons and firms in Denmark and abroad, it was in the applicant's view riext to impossible ro acquit him alter he had been detained on remand for more than four years .
The Commission has tnade a preliminary exarnination of the above aspect and has found that it raises serious issues as to the interpretation ancl appGcation of Art- icle 6 of the Convention, and that these issues can ordy be determined after an examination on their merits, This complaint is therefore ndmissible, no othe :r reason
for rejecting it having been found .
5 . The applicant has also comFdained that during his detention on remand he was refused permission to forward certain information to the press . 7'he Commission has already examined the factual circumstances of this particular complaint in regard t o
the question of a fair trial as set out above . However, the applicant has also in this respect invoked Article 10 of the Convention .
It is true that Article 10 of the Convention secures to everyone inter alia the right to impart information .
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 Article 26 of the Convention provides that the Commission "may only deal with the matter . . . within a period of six months from the date on which the final decision was taken" .
In the present case the court decisions relating to this partieular complaint were given on 3 March, 25 July and 13 August 1980, whereas the application concerning this complaint was submitted to the Conunission on 9 June 1983, that is more than six months after the date of the domestic decisions . Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period .
It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para . 3 of the Convention .
6 . The Commission has finally considered the applicant's complaint under Article 1 of Protocol No . 4 to the Convention, that he was imprisoned on the ground of inability to fulfil a contractual obligation . However, the information and documents submitted by the applicant do not indicate that he was detained for any reasons other than those stated in the court decisions and judgments . It follows, therefore, that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention .
For these reasons, the Commissio n
DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant's complaint that his case was not heard by an impartial tribunal (point 4 above)
and
DECLARES INADMISSIBLE the remainder of the application .
