AS TO THE ADMISSIBILITY OF
Application No. 28540/95
by J.P.
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 5 October 1993 by
J.P. against Denmark and registered on 15 September 1995 under file
No. 28540/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Danish citizen, born in 1939. He resides in
Cannes, France. Before the Commission the applicant is represented by
Mr Claus Bergsøe and Mr Tyge Trier, lawyers practising in Copenhagen
and Frederiksberg, respectively.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1977 the applicant resided in Italy and bought there a
Maserati automobile on 30 March 1977. In August or September 1977 the
applicant submitted the car for restoration at the Maserati factory in
Modena, Italy, where apparently the car still is today.
In November 1977 the applicant was arrested and detained on
remand in Norway charged with certain narcotics related offences. In
this connection the Copenhagen police searched the applicant's
apartment in Copenhagen and found, inter alia, documents concerning the
car. On 22 December 1977 the Copenhagen City Court (Københavns byret)
decided according to the applicable provisions of the Administration
of Justice Act (retsplejeloven) to seize, with a view to a possible
subsequent confiscation, two apartments and the Maserati as these were
considered to have been obtained through illegal means. The seizure of
the car was done by depositing the purchase and registration papers
with the police.
In Norway the applicant was convicted of drug trafficking and
sentenced to six years' imprisonment. In 1978 the applicant was sent
to Denmark in order to serve the rest of his sentence there.
On 10 May 1979 the Danish police searched a safe deposit box
belonging to the applicant in connection with investigations concerning
other narcotics offences. Various foreign currency in the amount of
1,407,213 DKK was found and seized. The applicant was charged with drug
trafficking and a request for the confiscation of, inter alia, illegal
profits was made. By judgment of the Copenhagen City Court of
14 December 1979 the applicant was found guilty of the charges brought
against him and he received an additional term of imprisonment.
Furthermore, an amount equivalent to 1,500,000 DKK was ordered
confiscated. The judgment was upheld by the High Court of Eastern
Denmark (Østre Landsret) on 24 September 1980.
On 8 December 1980 the police commenced proceedings against the
applicant in order to recover a remaining sum of 65,441.16 DKK out of
the above 1,500,000 DKK and for this purpose a reference was made,
inter alia, to the seized Maserati automobile. On 11 December 1980 the
applicant escaped from prison and disappeared. It appears that the
above mentioned proceedings were therefore adjourned.
On 14 October 1982 the applicant was arrested and detained in
Spain. He was convicted there on 28 June 1984 and served his prison
sentence in Spain. On 1 April 1986 the applicant was extradited to
Norway where he remained in detention until 5 December 1986 when he was
acquitted of the charges brought against him in that country. He was,
however, immediately deported to Denmark, from where he had escaped in
1980, in order to serve the remainder of his sentence there. He was
released on probation on 6 February 1987 but arrested on 30 August 1987
again charged with drug trafficking. By judgment of 13 October 1988 the
applicant was convicted and sentenced to six years' imprisonment. The
judgment was upheld by the Supreme Court (Højesteret) on
15 February 1989.
In the meantime the police had recommenced the proceedings in
order to recover the remaining sums which had been confiscated by the
High Court judgment of 24 September 1980. This sum now amounted to
90,898.66 DKK. On 12 April 1988 the Copenhagen Bailiff's Court
(Københavns byrets fogedafdeling) levied execution for that amount on
certain cash money belonging to the applicant. The applicant appealed
against this measure but it was upheld by the High Court of Eastern
Denmark on 10 September 1990. The Maserati automobile was not mentioned
in the above judgment as the police had informed the applicant on
26 May 1989 that the seizure thereof was rescinded. The papers
concerning the car were at the same time sent to the applicant's
counsel.
On 26 September 1990 the applicant instituted proceedings against
the Copenhagen police claiming compensation and damages in the amount
of 372,762 DKK equivalent to the costs of garage fees, maintenance and
repairs of the Maserati automobile at the Modena factory during its
seizure from 1977 until 1989. By judgment of 31 August 1992 the High
Court of Eastern Denmark found in favour of the applicant considering
that as from 24 September 1980 the seizure of the car had had no basis
in law and on an equitable basis awarded him 100,000 DKK. By judgment
of 7 April 1993 the Supreme Court overruled this judgment and rejected
the applicant's claims. In its judgment the majority of four judges of
the Supreme Court stated, inter alia, as follows:
(Translation)
"For the reasons set out in the High Court's judgment we
find that the defendant's possession of the car's papers
from 22 December 1977 (the date of the car's seizure) until
24 September 1980 (the date of the final conviction for the
related offences) cannot constitute the basis for
compensation according to normal Danish compensation rules.
Following the final determination of the sum to be
confiscated by the High Court's judgment of
24 September 1980, the car's papers were returned on
17 November 1980 to the defendant who subsequently, on
8 December 1980, requested that execution be levied for the
remaining part of the sum which had been confiscated
including costs, totalling approximately 90,000 DKK. As an
asset for the execution the car was among the property
referred to. However, the execution proceedings had to be
adjourned due to the applicant's escape from prison on
11 December 1980. A formal request for recovering the car
was not submitted until spring 1989 following the levying
of execution on certain cash in order to cover the
previously established claim of approximately 90,000 DKK.
In these circumstances we find - regardless of the
declarations as to when the seizure ended - that for the
period from 24 September 1980 until 29 May 1989 there is no
reason either to hold the defendant liable for the costs
for garage fees and repairs of the car."
One judge voted in favour of upholding the High Court judgment.
COMPLAINTS
The applicant complains of the continuing seizure of his Maserati
automobile. He considers that the seizure was rescinded with his final
conviction of 24 September 1980 and that the continuing seizure until
1989 was an unlawful control of the use of his property contrary to
Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant complains that the de facto seizure of his car
until 29 May 1989 was contrary to Article 1 of Protocol No. 1 (P1-1)
to the Convention which reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The applicant does not maintain that the initial seizure was
without basis in law. He maintains, however, and the Commission agrees
with him on this point, that he was prevented from using his car and
that therefore it amounted to a control of the use of his possession.
In such circumstances the Commission considers that it is the second
paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention which
is of relevance. The Commission furthermore considers that the seizure
in question was a provisional measure intended to ensure that property
which appears to be the fruit of unlawful activities carried out to the
detriment of the community can subsequently be confiscated, if
necessary. The measure as such was therefore justified by the general
interest and was proportionate to the aim pursued.
The applicant submits, however, that the control of the use of
his property became unlawful at least as from 24 September 1980 when
the High Court had rendered its final judgment related to the seizure.
He maintains that this judgment rescinded the seizure. The Commission
does not agree with the applicant on this point.
The Commission recalls that by final judgment of
24 September 1980 the applicant was sentenced to another term of
imprisonment and a total sum of 1,500,000 DKK was ordered confiscated.
It turned out that the initial cash seized by the police did not cover
this amount and eventually a dispute arose as to the payment of the
remaining amount of 90,898.66 DKK. The Commission considers that this
dispute was not finally resolved until 10 September 1990 when the High
Court of Eastern Denmark decided the matter.
In these circumstances the Commission finds that the de facto
seizure had not been rescinded by the High Court judgment of
24 September 1980 as the applicant had not, at that moment in time,
paid his debts which was the reason for the car's lawful seizure. As
mentioned above this dispute was not finally determined until
10 September 1990 and the Commission is satisfied that the Danish
authorities under paragraph 2 of Article 1 of Protocol No. 1 (P1-1-2)
to the Convention were entitled to maintain the seizure in the general
interest in order to secure the payment of the "penalties" imposed. In
fact the car's papers were already returned to the applicant on
26 May 1989.
In these circumstances the Commission finds that the interference
with the applicant's property amounted to an enforcement of a law which
was necessary to control the use of this property in the general
interest within the meaning of Article 1 of Protocol No. 1 (P1-1) to
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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy