CUSTERS, DEVEAUX AND TURK v. DENMARK

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 11843/03,11847/03 and 11849/03
by CUSTERS, DEVEAUX and TURK
against Denmark

The European Court of Human Rights (Fifth Section), sitting on 9 May 2006 as a Chamber composed of:

MrsS. Botoucharova, President,
MrP. Lorenzen,
MrK. Jungwiert,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above applications lodged on 1 April 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants were represented by Nicholas Symes, a lawyer practising in Copenhagen and by Jens Brøsted, an Associated Research Professor. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co‑agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.

A. The circumstances of the case

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

In 1951 an American air base was established at the Dundas Peninsula in the Thule District in North-West of Greenland. With the establishment of an anti-aircraft artillery unit in 1953 the air base area expanded. It was reduced in the mid 1980s. The exact size of the defence area appears to be in dispute.

The applicants are members of Greenpeace. In the summer of 2001 they took part in an action near the Thule Air Base, in order to attract international attention to the use of a radar (the Thule Radar) for the American missile defence programme, and in order to collect information on environmental consequences of the presence of the air base on the Dundas peninsula.

Before the action in question, on 25 July 2001, two Greenpeace members had had a meeting with the Chief of Police of Greenland, during which they were informed about the legislation relating to Thule Air Base and the consequences of a possible refusal by the relevant authorities to visit the air base area.

On 27 July 2001 Greenpeace requested permission to visit the Dundas peninsula near which the airbase is placed. By fax of 30 July 2001, the Danish Ministry of Foreign Affairs informed Greenpeace that Thule Air base, including the Dundas area, was a defence area, and that civilians only had access to this area with permission from the Ministry of Foreign Affairs and the American authorities. By fax of 2 August 2001, the Ministry of Foreign Affairs denied Greenpeace permission to enter the Dundas peninsula and Thule Air Base.

The applicants arrived at the coast of the Dundas peninsula by a vessel called “M/V Artic Sunrise”. They landed at Savigssuaq which is south of Thule Air Base. The applicants walked across land approximately 30 km to Shelter 7, east of the base, where they were arrested on 7 August 2001 at 8.00 p.m. and charged with trespassing

Shelter 7 is one of several emergency shelters built along an almost 18 km long road from the built-up part of the base area to the Thule Radar.

Emergency shelters have been built at 1-2 km intervals along the road to ensure that base personnel are able to seek shelter in case of sudden bad weather on their way out to the radar facility. Shelter 7 is 10,7 km away from the built-up part of the Thule Air Base and 7,2 km away from the Thule Radar.

At the time of their arrest, the applicants were in possession of a Global Positioning System (GPS) and a map of the area to which they had marked various positions along their route. The applicant had also brought cameras and a camcorder. The police seized a film containing photos taken by the applicants during their walk which showed various military facilities in the background.

The applicants were released on 8 August 2001 at 6.00 p.m. having had indictments of the same date served on them. The charges against them were specified as follows:

“violation of Article 69 (a) of the Penal Code taken together with Article 132 (2) taken together with [Article 132] (1), taken together with section 3 (1) (d) of Executive Order No. 39 of 22 February 1967 on Travels to and within Greenland (Bekendtgørelse om rejser til og i Grønland) (the “Travel Order) in that without permission granted to the environmental-organisation Greenpeace, on 6 August 2001 from a rubber dinghy from the vessel “M/V Artic Sunrise” [the applicants] went ashore on the area at (ved) Thule Air Base, where they photographed with cameras and video-cameras, and were found by the police at Shelter 7 on 7 August 2001 around 18.30 o’clock.”

By judgment of 11 September 2001, in absentia proceedings the applicants were convicted accordingly by the High Court of Greenland (Grønlands Landsret). They were each sentenced to a fine of 5,000 Danish kroner (DKK) equal to approximately 670 euros (EUR). When metering out the sentence, the court took into account that, as Greenpeace activists, the applicants participated in a carefully planned action. In addition, a notebook, a map of the air base area, a video film and fifty‑one photos were confiscated. In as far as relevant the High Court of Greenland stated:

“On the evidence, the court finds that [the applicants] have performed the acts described in the indictment. As [the applicants] did not, as prescribed by section 3 (1) (d) of Executive Order no. 39 of 22 February 1967 on Travels to and within Greenland, obtain permission to enter the base area, they have violated section 3 of the order. As it appears from the explanatory notes to Article 132 of the Penal Code, the Travel Order is based on the legal authority conferred by “practice in force hitherto”, pursuant to Article 131 of the Penal Code.

...

In view of the location of the base and considering that the applicants, aiming for the base, had to walk several kilometres across tough terrain and that access to the base requires special permission pursuant to the Travel Order, the court finds that the base is a “place not open to the public” as referred to in Article 69 a (i) of the Penal Code. Accordingly, and as their presence was unauthorised, as stated above, [the applicants] are found guilty of having violated Article 69 a (i) of the Penal Code.”

The applicants appealed to the High Court of Eastern Denmark (Østre Landsret) before which they argued, as they had done before the first instance court, that their act did not constitute a criminal offence.

According to them, the Executive Order no. 39 of 22 February 1967 relied on by the prosecution did not have legal authority. Concerning Article 69 (a)(i) of the Penal Code they submitted that it could not be established whether or not they had trespassed as the military area had never officially been delimitated. Also, the applicants maintained that lay judges should have participated in the proceedings before the first instance jurisdiction. However, the latter complaint was later withdrawn.

By judgment of 3 October 2002 the High Court of Eastern Denmark confirmed the first instance court’s judgment stating inter alia:

“On the evidence produced before the High Court, [the applicants] are found guilty of violation of section 3 (1)(d) of the Executive Order No. 39 of 22 February 1967 on the grounds stated in the judgment. As [the applicants] have thus gained unauthorised access to a place not open to the public, they have also violated Article 69 a (i) of the Penal Code. In view of the nature of the area, this violation is not insignificant.”

The applicants’ request of 19 March 2003 to be granted leave to appeal against the judgment to the Supreme Court was refused by the Leave‑to‑Appeal Board (Procesbevillingsnævnet) on 5 October 2004.Relevant domestic law and practice

The Executive Order no. 39 of 22 February 1967

The Executive Order no. 39 of 22 February 1967 on Travels to and within Greenland (Rejsebekendtgørelsen), “the Travel Order” as amended by Executive Order No. 266 of 21 May 1976 was issued by the then Ministry of Greenland. It was promulgated in the Greenland Gazette (Nalunaarytit) 1967, page 20.

Pursuant to section 1 of the Travel Order, any person may enter or leave Greenland without limitation, subject to the restrictions following from the Travel Order and from the Act on Aliens’ Access to Denmark (Lov om udlændinges adgang til landet m.v.) and the provision issued pursuant to this Act.

Section 3 of the Travel Order provides detailed rules for entry and residence in the defence areas in Greenland which were established in accordance with the agreement on the defence of Greenland signed on 27 April 1951 by the governments of the Kingdom of Denmark and the United States of America under the North Atlantic Treaty. Section 3 (1) (d) reads as follows:

Section 3 (1)(d)

“... In order to obtain access to the defence areas, persons other than those referred to in paras. (a), (b), and (c) [certain military personnel etc.] have to obtain permission for each trip to the areas from the Ministry for Greenland or – pursuant to the latter’s authorisation – from other Danish State authorities, in addition to permission from the relevant military authority, if required.”

Violation of the Travel Order is punishable by a fine pursuant to section 5 of the Order in conjunction with Article 117(3) of the Penal Code for Greenland No. 55 of 5 March 1954 (see below).

The Travel Order entered into force on 1 April 1967 pursuant to section 6 (1) of the Order.

At the same Time, Executive Order No. 79 of 22 March 1954 issued by the Prime Minister’s Office on Travel to and within Greenland (the 1954 Travel Order) as amended by Executive Order of 12 May 1961 and Executive Order of 16 July 1955 on Permission to Travel through the Defence Areas, was repealed pursuant to section 6 (2) of the Travel Order.

The 1954 Travel Order

Section 1 of Executive Order No. 79 of 22 March 1954 on Travel to and within Greenland prescribed that the rules laid down in the order applied to Danish nationals’ entry and residence in Greenland.

Pursuant to section 5(1) of the Executive Order, military and civilian personnel whose presence in the defence areas or on other sites in Greenland was necessary in connection with activities pursuant to the 1951 agreement between the governments of the Kingdom of Denmark and the United States of America on the defence in Greenland, and members of their families were allowed to enter and leave the defence areas or other such sites in Greenland.

Pursuant to section 5 (2) of the Executive Order, persons other than those referred to in subsection (1) could only gain access to the defence area in Greenland which had been established pursuant to the agreements referred to in subsection (1), and which the Government of the United States of America was responsible for operating and maintaining, if they had obtained prior, special permission from the Prime Minister’s Office or from the Governor of Greenland by the authority of the Prime Minister’s Office, in addition to permission from the relevant military authority, if required.

Violation of the Executive Order No. 79 of 22 March 1954 was punishable by a fine pursuant to section 6 of the Order.

The Executive Order No. 79 of 22 March 1954 on Travels to and within Greenland entered into force on 1 April 1954 pursuant to section 7 (1) of the Order.

Pursuant to section 7 (2) of the Order, Executive Order of 20 May 1948 on Travels to and within Greenland, issued by the Prime Minister’s Office, was repealed at the same time.

The 1948 Travel Order

Section 1 of the Executive Order of 20 May 1948 on Travels to and within Greenland, issued by the Prime Minister’s Office, specified that unless otherwise provided by special treaty between Denmark and other countries or by other special provision, travels to and within Greenland were subject to special permission from the Danish Government.

Pursuant to section 11 (1) of the Order, violation of the provisions of the Order was punishable by a fine.

The 1954 Penal Code for Greenland and

criminal law practice before his Code.

The Danish Penal Code does not apply in Greenland. Before 1954, the criminal law of Greenland consisted solely of the practise developed by the district courts of Greenland on the basis of fragmentary provisions in old legislation. Greenland had colonial status and was a predominantly closed country before the revision of the Danish Constitution in 1953. The Government submitted that beforehand, neither Danes nor foreigners had access to the country without special permission according to provisions dating back as far as 1736 and until the above 1954 Travel Order. The applicants disputed this and pointed out that Greenland was opened through the Greenlandic reforms laws of 1950.

The revision of the Danish Constitution of 1953 extended its scope of application to all parts of the Danish realm, including Greenland.

With the Penal Code for Greenland, Act no. 55 of 5 March 1954, most parts of the practise developed by the districts courts of Greenland were put into statutory form. The Penal Code was adopted on 19 February 1954 and became law by royal assent on 5 March 1954. It entered into force on 15 July 1954.

Pursuant to Article 1 of the Penal Code for Greenland, the sanctions authorised by the Code may only be imposed for offences referred to in the Code or quite equivalent offences (the principle of legality).

Article 69 (a) read as follows:

Articles 69 (a)

“An individual, who unjustifiably

i) obtains access to another person’s house or any other place not freely accessible (skaffer sig adgang til fremmed hus eller andet ikke frit tilgængeligt sted), or

ii) fails to leave another person’s house, having been requested to do so,

may be convicted of trespassing.”

Article 117 contained the following provision:

Article 117The rules on fines, forfeiture and compensation and other less interfering sanctions which are laid down in provisions still in force will remain in force subject to the modifications which follow from Parts 1 to 4 and 22 to 34 of this Code. By negligent violation of such provisions, liability will be incurred to the same extent as hitherto.Provisions issued in accordance with the practise in force hitherto, including byelaws issued by the Provincial Council (Landsrådet) and local authorities, may lay down rules on the imposition of cautions, fines, ouster and exclusion orders, forfeiture and confiscation and disqualification of the right to carry on a trade, the right to operate vessels or vehicles and other similar rights based on public authorisation.

The explanatory notes to Article 117 stated as follows:

“This provision, which has been prepared pursuant to the authority of the Provincial Council of Greenland, preserves a number of administrative rules on fines, forfeiture and compensation and other less interfering sanctions. These are various rules of public-law content. The provision also confers legal authority to issue such rules in accordance with the practise in force hitherto. Although it has been found necessary in Article 1 of the Bill to lay down the principle, which is new for Greenland, that the imposition of criminal law sanctions must be authorised by statute, it has not been considered possible to fully implement the principle during the period of transition in which Greenland currently finds itself in terms of economy, society and culture.”

Act No. 105 of 27 March 1963, which entered into force on 1 July 1963, amended the provision of 117 (2) into Article 117 (3) of the Penal Code.

Revision of the Penal Code in 1978

Act No. 292 of 8 June 1978 revised the provisions of the Penal Code for Greenland concerning sanctions and the following provision was inserted as Article 131(3):

Article 131 § 3

“Regulations, issued in accordance with practise in force hitherto (hidtil gældende praksis), including byelaws issued by the Provincial Council and local authorities, may provide that violations of such regulations may be punished with fines, forfeiture and confiscation and disqualifications of rights. Such sanctions are then applied in accordance with the rules in Part 1 to 4 and 22 to 24 and 30 to 33 of this Code.”  

The Act entered into force on 1 January 1979.

Amendment of the Penal Code in 2001

By Act no. 335 of 16 May 2001, entering into force on 1 June 2001, the Penal Code for Greenland was amended anew and a new provision was inserted into Article 132 of the Penal Code, which stated as follows:

Article 132

“1. The Minister of Justice may issue regulations on access to certain parts of Greenland, and the conditions [for such access], including the inland ice, the National Park in Northern and East Greenland, and to and from the defence areas established pursuant to the agreement of 27 April 1951 between the governments of Denmark and the United States on the defence of Greenland.

2. With regard to intentional or negligent violations of provisions set out in regulations issued pursuant to subsection 1, rules may be laid down imposing measures as set out in Article 85 [e.g. a fine and confiscation].”

The preparatory notes to the Act (L130 introduced on 6 December 2000) stated among other things (section 3.1.):

“The Executive Order on Travels to and within Greenland [Order no. 39 of 22 February 1967], issued by the then Ministry for Greenland, has its authority pursuant to “praxis in force hitherto” set out in Article 131 § 3 of the Penal Code. The required amendments [to the Penal Code e.g. the insertion of Article 132] had not earlier been undertaken administratively since the contemplated new rules can hardly be issued under the authority of the said provision [Article 131 § 3 of the Penal Code].”

It appears from the explanatory notes to the Bill that the purpose of inserting the enabling provision in Article 132 of the Penal Code was to provide legal authority for updating rules in that field and, in that connection, to expand the authorities’ right to regulate expedition activities in Greenland for the particular purpose of limiting the number of cases when rescue operations had to be launched and facilitating implementation of the rescue operations launched.

At the time of the event of the present case the Minister of Justice had not issued any regulations pursuant to Article 132 of the Penal Code.

COMPLAINTS

The applicants complained that the criminal proceedings against them were in violation of Articles 5, 6, 7, 10 and 11 of the Convention and of Article 2 of Protocol No. 4 to the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

The applicants complain that they were convicted of an act which at the time when it was committed did not constitute a criminal offence under national law. Thus, they invoke Article 7 of the Convention which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government maintained that the applicants’ conviction was in accordance with the rule-of‑law requirement of Article 7 of the Convention and that therefore the complaint was manifestly ill‑founded.

Firstly, with regard to the Executive Order No. 39 of 22 February 1967 on Travels to and within Greenland it was sanctioned by Article 131 (3) of the Penal Code. The legal authority contained in the latter provision had been introduced already when adopting the 1954 Penal Code (originally by Article 117 (2)) and maintained in the revision of the Penal Code in 1978 (Article 131 (3)). As to the original Article 117 (2) of the Penal Code the Government recalled that it entered into force on 15 July 1954, three and a half month after the Executive Order No. 79 of 22 March 1954 on Travels to and within Greenland had been issued by the prime Minister’s Office.

Thus, Article 131 (3) conferred legal authority to issue regulations providing for fines, etc. in accordance with “the practice in force hitherto” as an exception to the principle of legality laid down in Article 1 of the Penal Code.

Secondly, the 1967 Travel Order was accessible to the public as it was promulgated in the Greenland Gazette (Nalunaarytit) 1967, page 20.

Thirdly, in the Government’s view the provision of the 1967 Travel Order was sufficient precise to enable the applicants to foresee the consequences of trespassing in the defence area. Furthermore, they had been told expressly by the Chief of Police of Greenland on 25 July 2001 that the defence area, including the Dundas peninsula, was comprised by the entry prohibition. In addition they had been informed in faxes of 30 July and 2 August 2001 by the Ministry of Foreign Affairs that the entire Dundas was part of the defence area, and that the applicants did not have permission to enter that area. Accordingly, it was absolutely clear to the applicants that by penetrating the defence area they would violate section 3 (1) (d) of the Travel Order.

Fourthly, the Travel Order provided adequate safeguards against arbitrary inference with the applicants’ rights since it clearly stated that no one was allowed access to the defence area without permission from the military authorities and the Danish authorities.

In these circumstances, the Government submitted, the provisions of the Executive Order No. 39 of 22 February 1967 were in accordance with the rule of law. The subsequent amendment to the Penal Code inserting the new Article 132 could not change this finding since the sole purpose of the latter was to provide legal authority for future amendments of the Travel Order, which would expand the authorities’ right to regulate expedition activities in Greenland for the particular purpose of limiting the number of times when rescue operations have to be launched.

With regard to Article 69 (a) of the Penal Code for Greenland, the Government submitted that this provision had its equivalent in the Danish Penal Code, which according to case law could be interpreted to mean that also unfenced areas without signposting could be considered a “place not open to the public”. Again, the Government pointed out that the applicants had been told expressly by the Chief of Police of Greenland on 25 July 2001 that the defence area, including the Dundas peninsula, was comprised by the entry prohibition and in addition been informed by the faxes of 30 July and 2 August 2001 from the Ministry of Foreign Affairs that the entire Dundas was part of the defence area, and that they did not have permission to enter that area.

The delimitation of the defence area also appeared from official maps of the area, which the applicants could have obtained. Such a map formed part of the case file during the domestic proceedings. The Government recalled that the applicants went ashore at Savigssuaq. Subsequently, they walked across land by a route, which was located inside the defence area, to Shelter 7 east of the base, where they were arrested.

Against this background, the Government contended, the applicants must have been aware – perhaps with the assistance of their lawyer - that their penetration of the defence area without permission constituted a violation of Article 69 (a) of the Penal Code.

The applicants maintained that the acts on account of which they had been prosecuted did not constitute offences at the time when they were committed, under national or international law, and that their convictions had therefore been in breach Article 7 § 1 of the Convention. More specifically, they submitted that they had been convicted pursuant to the Executive Order No. 39 of 22 February 1967 on Travels to and within Greenland which did not have legal authority and that they had been convicted of trespassing pursuant to Article 69 (a) of the Penal Code although they could not foresee whether the area that they had entered was freely accessible or not.

The applicants noted that a violation of the Travel Order was punishable by a fine pursuant to section 5 in conjunction with Article 117(3) of the Penal Code for Greenland No. 55 of 5 March 1954. However, Article 117 (3) of the Criminal Code for Greenland of 1954, which conferred legal authority to issue regulations providing for fines, etc. in accordance with “the practice in force hitherto” was a transitional exception to the principle of legality in Article 1 of the Penal Code and accordingly had to be construed in a strict and narrow manner.

More importantly, although entering into force on 15 July 1954, the Penal Code was adopted on 19 February 1954 and became law by royal assent on 5 March 1954. It was the Executive Order No. 79 of 22 March 1954 on Travels to and within Greenland, the predecessor to the Executive Order No. 39 of 22 February 1967, which introduced the new rule (section 5 at the relevant time) concerning access to the defence areas in Greenland. This new rule entered into force on 1 April 1954 that is after the adoption of the Penal Code. Accordingly, the applicants submitted, section 5 of the Executive Order No. 79 of 22 March 1954 had to be classified as subsequent new regulation within the meaning of the then Article 117 (2) of the Penal Code as opposed to “previous practise”, which could only refer to practise known to the legislator at the time of the adoption of Article 117 (2) of the Penal Code.

Consequently, the succeeding Executive Order No. 39 of 22 February 1967 could not have had any legal authority either in Article 117 of the Penal Code. Allegedly, the Ministry of Greenland was aware of this fact at the time when the said Order was issued, which in the applicants’ view explained why there has been a reluctance to apply its punitive sanctions until the present case.

With regard to Article 69 (a) of the Penal Code for Greenland, the applicants observed at the outset that its translation caused a problem. As to its interpretation, they agreed that fencing was not required to make an area “not freely accessible” but pointed out that the area had to be delimitated.

In this respect they maintained that it has not been proven that they actually entered the restricted military defence area since allegedly due to a policy of secrecy no maps were available officially delimitating the defence area. The same could be said about the map that was submitted by the Public Prosecution during the domestic proceedings, which allegedly related to a report on the relocation of the Thule Tribe in 1953. The applicants submitted various maps, including one produced by the “Danish Geodetical Survey”, Sheet No. 76.V.1. Dundas in the scale 1:250:000, an official map of the area, which did not indicate any military base.

The applicants also emphasised that although two members of Greenpeace had had a meeting with the Chief of Police of Greenland, neither of these members were among the applicants, and in any event the restricted area was defined only as Thule Air Base. Similarly, the Ministry of Foreign Affairs denied Greenpeace permission to access the Dundas Area and Thule Air Base. The area, however, in which the applicants were arrested had not been pin-pointed or in any way designated as a restricted area to Greenpeace, the applicants or the public in general.

Along the same line during the domestic proceedings the applicants had had no objections to the facts described in the indictment as such since it did not delimit the defence area but in general referred to the area at Thule Air Base as opposed to the area on Thule Air Base.

The Courts considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.

The Courts concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

II. ALLEGED VIOLATION OF ARTICLES 5, 10 AND 11 OF THE CONVENTION AND OF ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION.

The applicants complained under Article 5 of the Convention that their deprivation of liberty did not have legal authority and that it could not be considered reasonable or necessary. Moreover, they complained under Articles 10 and 11 of the Convention that their right to collect and receive information and their right to assembly had been breached. Finally, the applicants alleged that since they were lawfully in Greenland in accordance with Danish and Greenlandic acts on aliens, their arrest and detention deprived them of their right to liberty of movement as guaranteed by Article 2 of Protocol No. 4 to the Convention.

The Court recalls that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case, the applicants failed to raise either in form or in substance the above complaints that are made to the Court. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION.

The applicants complained under Article 6 of the Convention that their trial was unfair, notably in that during the domestic proceedings they had had less than four weeks to prepare their defence before the High Court of Greenland and that the High Court of Greenland was sitting without lay judges. They also complained about the length of the proceedings before the Leave-to-Appeal Board, which lasted from 19 March 2003 until 5 October 2004.

The Court has examined the applicants’ complaints as they have been submitted. It notes in particular that before the High Court of Eastern Denmark the applicants withdrew their complaint that lay judges should have participated in the proceedings before the first instance jurisdiction. It follows that this complaint is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. As to the remainder of the complaints, in the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 have been complied with, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be rejected in accordance with Article 35 § 4 of the Convention

For these reasons, the Court unanimously

Discontinues the application of Article 29 § 3 of the Convention;

Declares admissible, without prejudging the merits, the applicants’ complaint concerning Article 7 of the Convention;

Declares inadmissible the remainder of the application.

Claudia WesterdiekSnejana Botoucharova
RegistrarPresident

 

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