Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17293/90

Mohammad Saleem Sultan

against

Denmark

REPORT OF THE COMMISSION

(adopted on 14 April 1994)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3

PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mr. Mohammad Saleem Sultan against

Denmark on 16 February 1990. It was registered on 15 October 1990 under

file No. 17293/90.

The applicant was represented by Mr. Thorkild Høyer, a lawyer

practising in Copenhagen.

The Government of Denmark were represented by their Agent,

Mr. Laurids Mikaelsen.

2. On 30 June 1993 the Commission (Second Chamber) declared the

application partly admissible and partly inadmissible. It was

furthermore decided to relinquish jurisdiction in favour of the plenary

Commission which then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows :

"In the event of the Commission accepting a petition referred to

it :

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission ;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 14 April 1994 it adopted this Report,

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

The following members were present when the Report was adopted :

MM. S. TRECHSEL, Acting President

C.A. NØRGAARD

A. WEITZEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

PART I

STATEMENT OF THE FACTS

4. Prior to February 1988 the Danish narcotics police received

information indicating that the applicant was in possession of two

kilogrammes of heroin intended for sale in Denmark. An application was

submitted to the Copenhagen City Court (Københavns Byret) under

section 754 c of the Administration of Justice Act (Retsplejeloven;

hereinafter AJA) requesting permission to use an undercover agent in

order to prevent the sale and to arrest the applicant. On

3 February 1988 the City Court sitting with one judge, judge ME,

considered the request under section 754 a of the AJA and authorised

the police to use an undercover agent for the purpose mentioned.

5. On 4 February 1998, the applicant was arrested, suspected of drug

trafficking. He was detained on remand.

6. The applicant's trial commenced in November 1988 in the

Copenhagen City Court sitting with one professional judge, judge ME,

and two lay judges. On the basis of the available evidence the City

Court, on 29 November 1988, acquitted the applicant of two counts of

handling stolen goods but found him guilty of charges concerning drug

trafficking and illegal possession of firearms. He was sentenced to

three and a half years imprisonment.

7. The applicant appealed against the judgment to the High Court of

Eastern Denmark (Østre Landsret). In his appeal he maintained inter

alia that the judgment should be quashed since the presiding judge,

judge ME, had previously, on 3 February 1988, authorised the police to

use an undercover agent in accordance with section 754 a of the AJA.

8. The High Court pronounced judgment on 20 October 1989. The Court

first rejected the applicant's request for a new trial. It found that

the fact that judge ME had authorised the police to use an undercover

agent prior to his participation in the trial before the City Court did

not disqualify him. Furthermore, after an evaluation of the evidence

before it, the High Court also found the applicant guilty of the

charges to the extent found by the City Court. The sentence was

upheld.

9. The applicant's subsequent request for leave to appeal to the

Supreme Court (Højesteret) was rejected on 11 April 1990.

10. Before the Commission the applicant complained that the

Copenhagen City Court was not an impartial tribunal within the meaning

of Article 6 para. 1 of the Convention due to the fact that the

presiding judge, judge ME, had prior to the trial authorised the use

of an undercover agent.

PART II

SOLUTION REACHED

11. Following the decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with

Article 28 para. 1 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

12. In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement. Following an exchange

of correspondence, the applicant's lawyer submitted the following

letter on 12 January 1994:

(Translation)

"With reference to my letters to the Commission of 1 December and

22 December 1993 and to the discussions with the Ministry of

Justice, I should inform you, as already indicated by telephone,

that my client in the circumstances will accept a settlement

against the payment of DKK 20,000.00 (without this being set off

against cost etc.) plus cost and expenses related to the

proceedings before the Commission."

(Danish)

"Idet jeg henviser til mine skrivelser af 1/12 og 22/12 1993 til

Kommissionen samt endvidere til drøftelser med Justitsministeriet

skal jeg herved som allerede telefonisk meddelt oplyse, at min

klient efter omstændighederne vil være inforstået med at forlige

sagen mod betaling af kr. 20.000,00 (uden modregning for

sagsomskostninger m.m.) samt min klients omkostninger i

forbindelse med sagens behandling for Kommissionen."

13. In reply to this the Government submitted the following letter

on 11 February 1994:

"In reply to [the Commission's] letter of 14 January 1994

regarding the above mentioned application I can inform you that

the Government of Denmark is prepared to accept the terms for a

friendly settlement of the case proposed in your letter or any

other proposal from the Commission of Human Rights not exceeding

the payment of a total amount of DKK 20,000.00 plus cost and

expenses related to the proceedings before the Commission. It is

a condition, however, that the payment is made ex gratia, and

that the Government's acceptance of these terms does not imply

the recognition of any legal obligation. The Government will be

willing to accept, as requested by the applicant, that the

payment will not be set off against any claim of costs, etc."

14. By letter of 23 February 1994 the applicant's lawyer submitted

as follows:

(Translation)

"With reference to [the Commission's] letter of

22 [February 1994] I should inform you that the offer made is

accepted with the conditions indicated. I should inform you that

my fee amounts to DKK 10,000.00, VAT not included."

(Danish)

"På foranledning af Deres skrivelse af 22. ds. skal jeg herved

meddele, at det fremsatte tilbud accepteres på de anførte vilkår.

Jeg kan oplyse, at mit salærkrav udgør kr. 10.000,00 ekskl.

moms."

15. Finally, by letter of 17 March 1994 the Government submitted as

follows:

"In reply to [the Commission's] letter of 24 February 1994, and

further to my letter of 11 February 1994 regarding the above

mentioned application, I can inform you that the Government of

Denmark can accept to pay an amount of DKK 10,000.00 plus VAT

(moms) for costs and expenses as part of a friendly settlement

of the matter."

16. At its session on 14 April 1994, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

17. For these reasons, the Commission adopted the present Report.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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SULTAN v. DENMARK

SULTAN v. DENMARK

LEXI