AUGUSTSSON proti Norsku



AS TO THE ADMISSIBILITY OF

Application No. 21041/92

by Parley Albert AUGUSTSSON

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 August 1992 by

Parley Albert Augustsson against Norway and registered on

8 December 1992 under file No. 21041/92;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 27 January 1995 and the observations in reply submitted

by the applicant on 20 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant is a Norwegian citizen, born in 1939. He is a ship

owner by profession and resides in Espona, Spain. Before the Commission

he is represented by Mr. Tore Thomassen, a lawyer practising at

Stavanger, Norway.

A. The particular circumstances of the case

In 1974 the applicant began building up his own shipping business

which became known in Norway as the Balder group. As from 1983 the

applicant managed the various activities from his headquarters in

London. The group consisted of a number of companies, of which the

applicant was considered to be the de facto owner and manager, as well

as a number of other companies which, one way or the other, were

related to or controlled by the Balder group. During its most

prosperous period the Balder group had 1100 employees and managed some

60 vessels. The assets of the parent company, Balder Invest A/S, as per

31 December 1983 totalled more than two thousand million NOK.

Due to subsequent financial difficulties, however, the parent

company, Balder Invest A/S, was dissolved in early 1985 and bankruptcy

proceedings concerning the entire Balder group were opened on

14 May 1985. Due to the financial implications, the collapse of the

Balder group attracted substantial media attention in Norway.

Furthermore, the applicant maintains that the local police contacted

the administrators of the estate in bankruptcy (bostyret) in June 1985

with a request to be kept informed of the developments in the case and

that he, the applicant, was informed hereof in June 1985 as well. The

Government maintain, on the other hand, that it has not been possible

to ascertain whether there was any contact between the administrators

and the police before March 1986, and that it is clear that no

investigations were ordered before April 1986.

On 19 February 1986 the administrators of the estate submitted

a preliminary report to the Asker and Bærum Probate Court

(skifteretten). The report concerned approximately 200 companies and

partnerships involved in the collapse of the Balder group. As regards

possible criminal activities the report contained the following:

(Translation)

"At present we have not examined in detail whether the acts

described in this report fall within the scope of the Penal

Code.

So far, the administrators of the estate consider that the

conditions for absolute criminal liability as set out in

chapter 27 of the Penal Code in part subsists and the

report shall therefore be forwarded to the prosecution

authority in accordance with section 31 of the Bankruptcy

Act of 1863."

This was done on 14 March 1986 following which the Eidsivating

public prosecutor's office (Eidsivating statsadvokatembetet) ordered

an investigation of the Balder group bankruptcy in April 1986. The

investigation first concentrated on collecting information. Because of

the volume of documents special premises and office equipment were

hired and the interrogation of persons involved in the case commenced

in the beginning of 1987 with a view to obtaining information about the

management routines of the Balder group. Due to the complexity of the

case the police requested, and obtained, the assistance of

court-appointed accounting experts in March 1987. In August 1987 the

interrogation of employees in key positions in the Balder group

commenced and extensive interrogations of the group's directors were

carried out as from October 1988.

The applicant was interrogated for the first time on

5 December 1988 followed by 13 interrogations until 14 March 1989. On

9 February 1989 preliminary charges (foreløbige siktelser) were made

against five persons in the management of the Balder group, including

the applicant. On 29 March 1989 defence counsel was appointed for the

applicant.

On 7 April 1989 the accounting experts submitted their report

which led to further investigations by the police. In this connection

the applicant was interrogated again on 2 May 1989.

On 3 November 1989 and 23 April 1990 new charges were brought

against the applicant and during the months of May and June 1990 he was

interrogated again four times.

On 7 September 1990 the indictment was served on the applicant.

He was charged with having contravened section 274 of the Penal Code

by having given incorrect or misleading information to investors,

sections 275 and 276 by having been involved in illegal financial

transactions in particular within the Balder group companies, and

section 286 by having wilfully or negligently disregarded provisions

relating to bookkeeping and accounting.

The indictment and the evidence involved were transmitted to the

Asker and Bærum District Court (herredsretten) on 1 November 1990. It

appears that it was tentatively agreed to commence the court hearings

on 12 August 1991. On 24 May 1991, however, counsel for the applicant

informed the Court that, in their opinion, the hearing could not take

place in 1991. Having obtained the prosecution's view the Court met

with the parties on 5 July 1991 following which the hearing was fixed

to commence on 5 November 1991.

The hearing commenced on 5 November 1991 and lasted fourteen

court days. Judgment was pronounced on 30 January 1992. The applicant

was found guilty of some of the charges brought against him and

acquitted of other charges. As regards the sentence the Court stated

inter alia:

(Translation)

"The acts in question were committed 6 to 7 years ago and

the investigations took a very long time. The Court finds

that this was due to the applicant's behaviour which means

that the time element should have some mitigating effect.

However, the Court notes that cases of this kind normally

require substantial investigation and thus often become

old. It is from the point of view of general prevention

(allmenpreventive hensyn) that this case requires a severe

reaction."

The applicant was sentenced to two years' imprisonment of which

20 months were suspended. He was furthermore sentenced to pay a fine

of 100,000 NOK.

The applicant appealed against the judgment to the Supreme Court

(Høyesterett). He requested the Court to dismiss (avvise) the case due

to its duration which in his opinion was exorbitant and referred to

Article 6 para. 1 of the Convention. In the alternative he requested

the sentence to be reduced.

On 14 May 1992 the Appeals Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) refused leave to appeal. The applicant

was informed thereof on 19 May 1992.

B. Relevant domestic law

In Norway, the investigation of crimes is the responsibility of

the police and the prosecuting authorities. This appears from the

Criminal Procedure Act (straffeprosessloven) of 26 May 1981, the

relevant parts of which read as follows:

(Translation)

"Chapter 18. Criminal investigation.

Section 224. A criminal investigation shall be carried out

when as a result of a report or other circumstances there

is reasonable ground to inquire whether there is some

criminal matter which is to be prosecuted by the public

authorities.

...

Section 225. A criminal investigation is instituted and

carried out by the police. Without a decision from a

superior any police officer may take such steps as cannot

be postponed without detriment.

The Director General of Public Prosecutions and the public

prosecutor concerned may order an investigation to be

instituted and decide how it is to be carried out, and may

also order it to be stopped.

...

Section 226. The purpose of the investigation is to obtain

the necessary information for deciding whether an

indictment should be preferred, and to serve as preparation

for the trial of the case.

...

If a specific person is under suspicion, the investigation

shall seek to clarify both the evidence against him and the

evidence in his favour.

The investigation shall be carried out as rapidly as

possible and in such a way that no one is unnecessarily

exposed to suspicion or inconvenience.

Section 230. The police may record statements by suspected

persons, witnesses and experts but may not order any person

to make a statement. Public officials and other persons

acting on behalf of the State or a municipality are

nevertheless obliged to make a statement concerning matters

with which they have become acquainted in their position or

office if this can be done without breaching any duty of

secrecy imposed on them by any statute, regulation or

directive.

...

Section 232. Before the suspect is examined, he shall be

informed of the nature of the case, and be told that he is

not obliged to make a statement.

If he is willing to make a statement, he shall be

encouraged to make a true statement. The provisions of

section 92 shall apply correspondingly.

Section 237. The prosecuting authority may apply for a

judicial examination, a judicial inquiry or the appointment

of experts for use in the criminal investigation. The court

is bound to grant the application unless it finds that the

matter to which the investigation relates is not criminal,

or that the criminal liability has lapsed, or that there is

no legal power to grant the application. ...

Section 242. The suspect, his defence counsel, and the

aggrieved party shall on application be permitted to

acquaint themselves with the documents relating to the case

in so far as this can be done without detriment or risk to

the purpose of the investigation or to a third party. ...

If the suspect or his defence counsel is denied access to

the said documents, the issue may be required to be decided

by an order of the court.

..."

According to section 249 in the Criminal Procedure Act, the

question of preferring an indictment shall be decided as soon as the

case is sufficiently prepared for this purpose.

COMPLAINTS

The applicant complains, under Article 6 para. 1 of the

Convention, that the criminal case against him was not determined

within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 August 1992 and registered

on 8 December 1992.

On 2 September 1994 the Commission (Second Chamber) decided that

notice of the application should be given to the respondent Government

and invited them to submit written observations on the admissibility

and merits thereof.

Following two extensions of the time-limit fixed for this purpose

the Government submitted their observations on 27 January 1995.

Following one extension of the time-limit the applicant submitted

his observations in reply to those of the Government on 20 April 1995.

THE LAW

The applicant complains that the criminal case against him was

not determined within a reasonable time. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which in so far as relevant reads as

follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a ... hearing within a

reasonable time ... ."

As regards the period to be considered the applicant maintains

that it commenced on 14 May 1985, i.e. at the same time as the

bankruptcy proceedings concerning the Balder group opened. The

Government maintain, however, that the period commenced in

December 1988 when the applicant was interrogated by the police for the

first time.

The Commission recalls that according to the case-law of the

Convention organs the period to be taken into consideration under

Article 6 para. 1 (Art. 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 prosecuting authorities as a result

of a suspicion against him (cf. for example Eur. Court H.R., Eckle

judgment of 15 July 1982, Series A no. 51, p. 33, para. 73).

In the present case the Commission recalls that the bankruptcy

proceedings concerning the Balder group opened on 14 May 1985. In the

light of the fact that this was one of the biggest bankruptcies in

Norwegian history involving many companies and hundreds of investors

it is obvious that the applicant was affected thereby, in particular

having regard to his prominent position in the Balder group. However,

although the bankruptcy proceedings may have led to serious

implications for the applicant the Commission does not consider that

he thereby can be considered as having been "charged" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

In April 1986 the public prosecutor's office opened an

investigation in order to clarify whether the collapse of the Balder

group was caused by, or otherwise involved, any criminal activity.

However, at that moment in time no charges were made against the

applicant, or any other person of the Balder group, nor was any other

measure taken which could lead to the conclusion that the applicant,

or anybody else, had committed a criminal offence or had been charged

with having done so. It is clear from the facts of the case that the

preliminary investigations were more of a fact-finding nature due to

the complexity of the case and the amount of documentary evidence

involved. In these circumstances the Commission does not consider that

the opening of the criminal investigation into the collapse of the

Balder group as such would lead to the applicant being "charged" within

the meaning of Article 6 (Art. 6) of the Convention, nor that this

measure carried the implication of such an allegation and thereby

substantially affected his situation.

The applicant's direct involvement in the police investigation

commenced on 5 December 1988 when he was interrogated by the police for

the first time about his activities in the Balder group. Although

preliminary charges were not brought against him until 9 February 1989

the Commission considers that, as from 5 December 1988, the applicant

was in the circumstances substantially affected by the criminal

investigation proceedings for the first time. Consequently, from that

date the applicant was "charged" for the purposes of Article 6 para. 1

(Art. 6-1) of the Convention and the "reasonable time" referred to in

this provision began to run from that moment.

The Commission considers that the proceedings should be regarded

as having been terminated on 19 May 1992 when the applicant was

informed of the decision of the Appeals Selection Committee of the

Supreme Court not to grant him leave to appeal. Thus, the total length

of the proceedings which the Commission must assess under Article 6

para. 1 (Art. 6-1) of the Convention was 3 years and 51/2 months.

From a general point of view the reasonableness of the length of

the proceedings must be assessed with reference to the complexity of

the case, the conduct of the applicant and that of the authorities

before which the case was brought (cf. the above-mentioned Eckle

judgment, p. 35, para. 80).

As regards the complexity the applicant maintains that the Balder

group in fact consisted of very few companies and that the whole set-up

was fairly simple. Accordingly, he maintains that any investigations

beyond one year as from their commencement were mainly due to

inadequate structuring of the investigators' procedures.

The Government maintain that the case was very complex and the

investigation extremely difficult in view of the many companies

involved, the vast number of financial transactions and the inadequate

bookkeeping requiring comprehensive examinations in order to disclose

whether criminal activities were involved.

The Commission recalls that the basis for the charges brought

against the applicant lay in a bankruptcy of major dimensions in

Norway, involving companies in Norway and abroad. Having regard to the

facts as submitted the Commission finds it clear that the

investigations were very time-consuming and difficult. Thus, for the

purposes of Article 6 (Art. 6) of the Convention the case was of a very

complex nature.

As regards the applicant's conduct the Commission has not,

however, found it established that he acted in a way which

inappropriately prolonged the proceedings against him.

As regards the conduct of the authorities and courts the

Commission recalls that the charges were filed against the applicant

approximately two months after his initial interrogation and that the

investigations concerning the applicant were concluded and the case

sent to the court of first instance for adjudication within a period

of two years. A period of investigation of approximately two years,

from 5 December 1988 until 1 November 1990, may at first sight appear

excessive, in particular in the light of the fact that investigations

covering the entire Balder group had commenced much earlier.

Nevertheless, the Commission does not consider that the facts of the

case, in the circumstances, disclose that the investigating authorities

acted inappropriately or otherwise failed to conclude their

investigations with due diligence as from the moment of the applicant's

involvement.

Furthermore, the proceedings before the Asker and Bærum District

Court and the Supreme Court, lasting a total of 1 year and 61/2 months

do not disclose to the Commission unacceptable periods of inactivity

which could bring the proceedings at variance with Article 6 (Art. 6)

of the Convention.

Therefore, making an overall assessment of the length of the

proceedings and noting that the District Court did take this into

consideration in respect of the sentence imposed, they did not, in the

Commission's view go beyond what may be considered reasonable in the

particular circumstances of the case. The applicant's complaint does

not, therefore, disclose any appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)