Heftye Blehr v. Norway



AS TO THE ADMISSIBILITY OF

Application No. 22939/93

by Jan HEFTYE BLEHR

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 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 7 June 1993 by

Jan Heftye Blehr against Norway and registered on 17 November 1993

under file No. 22939/93;

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 16 March 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 1940. He is a

lawyer by profession and resides at Nesøya, Norway. Before the

Commission he is represented by Mr. Johan Hjort, a lawyer practising

in Oslo.

A. The particular circumstances of the case

In 1979 the applicant joined an important shipping group which

was known in Norway as the Balder group. The group consisted of a great

number of companies based in Norway and abroad 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

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

31 December 1983, totalled more than two thousand million NOK.

The applicant was first appointed manager of one of the companies

and later financial director of the group. In addition he was on the

boards of directors in some of the companies in the group and held a

number of shares.

Due to subsequent financial difficulties, however, the parent

company 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.

On 19 February 1986 the administrators of the estate (bostyret)

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 subsist 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

with a view to obtaining information about the management routines of

the Balder group. In this respect the applicant was interrogated by the

police for the first time on 8 December 1986. Two additional

interrogations followed on 15 and 17 December 1986. Due to the

complexity of the case the police requested, and obtained, the

assistance of court-appointed accounting experts in March 1987. The

applicant was interrogated again on 15 July 1987.

In August 1987 the interrogation of employees in key positions

in the Balder group continued and extensive interrogations of the

group's directors were carried out as from October 1988. On

9 February 1989 preliminary charges (foreløbige siktelser) were made

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

the applicant who was interrogated again on 28 February and

14 March 1989.

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 29 May, 1 June and

12 June 1989.

On 23 April 1990 new charges were brought against the applicant

and he was interrogated again on 26 July and 13 August 1990.

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

He was charged with having contravened sections 275 and 276 of the

Penal Code by having been involved in illegal financial transactions

in particular within the Balder group companies, and section 12 of the

Taxation Act by having given false or incomplete information to the tax

assessment authorities.

The indictment and the evidence involved were transmitted to the

Asker and Bærum District Court (herredsretten) on 21 November 1990

following which the public prosecutor requested that the hearing in the

case be fixed to commence after the case against the Balder group's top

manager had been examined by the Court. The applicant had no objection

to this request. The case against the group's top manager was heard by

the Court in November 1991.

In the meantime, on 2 October 1991, the dates for the main

hearing in the applicant's case were fixed for 16 March until

3 April 1992.

The hearing commenced on 16 March 1992 and lasted ten court days.

The applicant requested that the Court dismiss the case because of its

duration which in his opinion entailed an infringement of section 226

subsection 4 of the Criminal Procedure Act (straffeprosessloven) and

Article 6 para. 1 of the Convention.

The judgment was delivered on 27 May 1992. The Court decided not

to dismiss the case for the following reasons:

(Translation)

"When evaluating the amount of time spent on the

investigation, the Court must take a number of

considerations into account. On the one hand, it is clear

... that the long time which passed has been a great

personal strain on the persons charged and has to varying

degrees created difficulties for them in their careers. On

the other hand, the present case is by no means

run-of-the-mill even by the standards of financial crimes.

The Balder group had between 100 and 200 companies, which

were hard to distinguish from one another both financially

and in terms of organisational structure. The accounts were

not up-to-date and sometimes were non-existent, so the task

of finding out what had actually happened was extremely

demanding. For example, the 1983 accounts were not

presented until 18 December 1984, and then with

considerable assistance from the external auditor. The fact

that the documents came to fill 500 metres of shelves as

the investigation proceeded indicates the magnitude of the

case. The very fact that the companies were organised in

such an unusual way made it particularly difficult to find

out where the liability should be assigned. In this

connection, however, it is important that Mr. O and (the

applicant) were part of the management of the group and

thus were responsible for the companies' situation.

When an investigation is started, the police/prosecuting

authority is obliged to look for any indication that an

indictment should be preferred, but also for any indication

that it should not. If the legality of all the

circumstances that could be called in question on the basis

of the report of the administrators of the estate were to

be considered in a satisfactory manner, this would have

required resources that far exceed what is possible from a

practical and financial point of view. The circumstances to

which the indictments against Mr. O and (the applicant)

apply are only briefly mentioned in the report, which

includes no assessment of the conditions for criminal

liability either. Thus, it required some time for the

police to obtain a sufficient overview to be able to begin

- and continue - the investigation against them. It should

also be noted here that the expert report on the

circumstances dealt with in count I of the indictments was

not finished until April 1989. In the Court's view there

may be some danger in dismissing such cases pursuant to

section 226 subsection 4 of the Criminal Procedure Act or

Article 6 para. 1 of the Convention. The more complex the

organisational structure of the companies and the more

deficient and complicated the accounts, the more time the

investigation will require. This means that in the case of

companies like these, the courts may dismiss the case and

those responsible may thus escape prosecution.

When an investigation takes as long as in the present case,

the consequences of the time factor for the evidence must

be considered. After some time, both the persons charged

and the witnesses generally have difficulty remembering the

details of what happened and how. In Mr. O's case, account

must also be taken of the fact that he was deliberately

trying to put this period behind him and forget it. In this

case, however, unlike the persons charged, several of the

key witnesses had a clear recollection of the course of

events. Moreover, it is significant that the documentary

evidence plays such a central role. Here, too, of course

the time factor is of some significance, because the

circumstances surrounding the documents may easily be

forgotten. Therefore, there is a certain risk that the

documentary evidence may be misinterpreted. However, the

Court does not consider that this is the case here. On the

contrary, the documentary evidence is to some extent

self-explanatory and also provides subjective information

with regard to the persons charged.

The Court agrees with the persons charged that the

investigation has been too protracted and has thus been a

strain on them. The Court would also point out that it is

the responsibility of the prosecuting authority to ensure

the efficiency, continuity and adequacy of the level of

expertise of the investigation. It is difficult, however,

to determine how much time could have been saved if the

investigation had been organised differently. In this

connection the Court considers it important to emphasise

that it is precisely the form of organisation of the Balder

group and the lack of proper accounting that has helped

complicate the investigation. Since the persons charged

occupied responsible positions in the management of the

group, the time factor cannot in this context be construed

in their favour.

Even though the Court presumes that time could have been

saved, it does not consider that the circumstances are such

that an application of section 226 subsection 4 of the

Criminal Procedure Act or Article 6 para. 1 of the

Convention on Human Rights would lead to dismissal. Thus,

the cases should be allowed."

After an evaluation of the available evidence the applicant was

found guilty of all the charges brought against him except one. He was

sentenced to twelve months' imprisonment, of which ten months were

suspended and he was furthermore ordered to pay a fine of 50,000 NOK

and costs amounting to 20,000 NOK. When meting out the sentence the

Court stated inter alia:

(Translation)

"... Also the fact that seven years have elapsed since the

criminal activities took place concerns (the applicant).

Having regard to the reasons given for the refusal to

dismiss the case, the Court finds that this element must,

to some extent, be taken into consideration as a mitigating

factor. However, this will have a limited effect as regards

the meting out of the sentence because it was mainly the

very organisation of the Balder group and its lack of

accounting as well as (the applicant's) responsibility

therefor which complicated and delayed the investigation.

In this kind of cases it is first and foremost from the

point of view of general prevention (allmenpreventive

hensyn) that a severe reaction is called for. Having regard

to this the Court has found that (the applicant), as

requested by the prosecution, must be sentenced to

imprisonment."

The applicant appealed against the judgment to the Supreme Court

(Høyesterett). He requested the Supreme Court to dismiss the District

Court judgment or, in the alternative, to reduce the sentence. On

13 November 1992 the Appeals Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) decided to allow the appeal on certain

points. On 4 May 1993 the Supreme Court pronounced its judgment. The

Court quashed the District Court judgment in respect of two charges and

upheld it in respect of the remaining charges brought against the

applicant. As regards the sanction the sentence imposed by the District

Court was upheld. In this respect the Supreme Court stated inter alia:

(Translation)

"The District Court has emphasised when meting out the sentence

that (the applicant) has seriously violated the special

confidence which follows from the positions (he) held ... (The

Court) agrees with this and had the case been determined fairly

quickly these violations would have resulted in an unconditional

term of imprisonment of a considerable length. However, now the

case has become very old - the criminal transactions took place

more than eight years ago. The District Court has emphasised that

the investigations were too lengthy. It states nevertheless that

even if this is taken into consideration as a mitigating factor

it has only a limited effect since basically it was the way in

which the Balder group was organised and the lack of accounting

which made the investigations difficult and caused the delays.

(The Court) accepts this and refers to the fact that (the

applicant) had a leading position within the group. The time

element cannot in these circumstances be as important as it would

have been in more ordinary cases. Even though a further period

of time has elapsed since the District Court judgment (the Court)

finds that the sentence imposed shall stand."

The applicant served his prison sentence from 21 July to

9 September 1993.

B. Relevant domestic law

In Norway, the investigation of criminal offences is the

responsibility of the police and the prosecuting authorities. This

appears from the Criminal Procedure Act 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 by 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 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 investigations 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 of 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 7 June 1993 and registered on

17 November 1993.

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.

The applicant submitted his observations in reply to those of the

Government on 16 March 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 19 February 1986 when the preliminary report from

the estate administrator was submitted to the Asker and Bærum Probate

Court. The Government maintain, however, that the period commenced on

9 February 1989 when the first preliminary indictment was issued.

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 8 December 1986 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 8 December 1986, the applicant

may in the circumstances be considered as having been substantially

affected by the criminal investigation proceedings. 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 4 May 1993 when the Supreme Court

pronounced judgment in the case. Thus, the total length of the

proceedings which the Commission must assess under Article 6 para. 1

(Art. 6-1) of the Convention was six years and five 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. Eur. Court H.R., Boddaert

judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 36).

As regards the complexity the applicant maintains that his

involvement in the Balder group bankruptcy and the charges against him

which followed therefrom were not complex and played only a minor role

in the entire case.

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 interrogations of the applicant commenced

fairly soon after the criminal investigations into the Balder group

commenced. Nevertheless, preliminary charges were not brought against

the applicant until 9 February 1989, i.e. approximately two years and

two months after the applicant's first interrogation. Furthermore, the

investigations did not end until 21 November 1990 when the case was

sent to the District Court for adjudication. A period of investigation

of approximately four years, from 8 December 1986 until 21 November

1990, may at first sight appear excessive. 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 two years and

five 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 and the Supreme 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)