AS TO THE ADMISSIBILITY OF

Application No. 30285/96

by Ruddy GROSSE

against Denmark

The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

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 2 February 1995 by Ruddy GROSSE against Denmark and registered on 26 February 1996 under file No. 30285/96;

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 1942. He resides in Copenhagen, Denmark.

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

The applicant moved from Denmark to Germany in July 1980 as a consequence of his taking over the control of a firm situated in Germany. In 1981 he bought a car, registered in Germany.

It appears that a seizure of the applicant's car by the Danish police in January 1982 was upheld by the Criminal Court in Sønderborg ( Kriminalretten i Sønderborg ) on the grounds that the applicant had evaded duties relating to an alleged import of his German registered car into Denmark. On 24 February 1982 the High Court of Western Denmark ( Vestre Landsret ) annulled the Criminal Court's decision as it could not be established with a sufficient degree of certainty that the applicant was domiciled in Denmark.

On 21 November 1985 an order for seizure of the aforementioned car was issued by the Criminal Court.

On 29 January 1986 an indictment was served on the applicant by the Chief of Police in Sønderborg ( Politimesteren i Sønderborg ) charging him inter alia with evasion of customs duties relating to the alleged import of the car in January 1982 and to his subsequent use of it in Denmark.

On 26 March 1986 the applicant was acquitted of the charges and the seizure of his car was terminated by the Criminal Court.

On appeal the High Court, on 22 September 1986, convicted the applicant and sentenced him to a fine of 26,000 Danish Crowns (DKK). In addition, the applicant was ordered to pay outstanding value added tax in the amount of 6,491 DKK and the costs of the case.

On 8 January 1987 the applicant requested the Ministry of Justice to grant him leave to appeal to the Supreme Court ( Højesteret ). On 3 June 1987 the Ministry of Justice notified the applicant that, in accordance with his expressed wish, the processing of his request for leave to appeal would await the Supreme Court's judgment in a similar case, "the Ryborg Case". In this case the Supreme Court had requested the European Court of Justice to make a preliminary ruling pursuant to Article 177 of the EEC Treaty.

Following the preliminary ruling on 23 April 1991 by the European Court of Justice in "the Ryborg Case", the Prosecutor-General ( Rigsadvokaten ) joined Mr Ryborg in his plea for acquittal before the Supreme Court. On 28 August 1991 the Supreme Court acquitted Mr Ryborg of the charges against him.

On 8 February 1993 the Ministry of Justice granted the applicant leave to appeal to the Supreme Court. The trial was scheduled to commence on 15 April 1993.

On 25 March 1993 the applicant requested the Supreme Court to refer the case to the European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty with regard to the compatibility with the EEC legislation of the Danish legislation on registration of - and imposition of duties on - imported cars.

On 26 March 1993 the case was adjourned pending the response from the Prosecutor-General.

On 1 June 1993 the Prosecutor-General announced that his response would await a legal expert opinion which, on 26 March 1993, he had requested from the Ministry of Justice.

On 29 November and 15 December 1993 the applicant requested the Supreme Court to fix a time-limit for the Prosecutor-General's response.

On 16 December 1993 the Prosecutor-General announced that, following a meeting by a special committee in the Ministry of Justice, the Ministry would issue its opinion in the beginning of January 1994.

On 17 December 1993 the Supreme Court fixed 15 January 1994 as the final date for the Prosecutor-General to respond to the applicant's request for referral of the case to the European Court of Justice.

On 13 January 1994 the Prosecutor-General requested that the applicant's request be rejected.

On 10 February 1994 the applicant lodged written observations concerning the request. On 24 February 1994 the Prosecutor-General also lodged written observations. On 8 March 1994 the applicant submitted additional arguments.

On 19 April 1994 the Supreme Court decided not to refer the case to the European Court of Justice for a preliminary ruling. The relevant parts of this decision read as follows:

(Translation)

"The European Court of Justice has in paragraphs 19 - 20 and 28 of the Ryborg Case spelt out the guidelines to be followed when "habitual residence" in Article 7 of Council Directive 83/182/EEC of 28 March 1983 is to be interpreted. Therefore, the Supreme Court, by following these guidelines and on the basis of the produced evidence in the present case, is able to decide where [the applicant] has "habitual residence"."

On 24 January 1995 the Supreme Court upheld the High Court's judgment . The Supreme Court's decision reads as follows:

(Translation)

"From the facts of the case it follows that [the applicant's] registered address in Germany was a rented room. According to [the applicant's] own testimony he did not stay in that room very frequently because he was mostly on business trips in the Netherlands and Germany. Thus, the High Court's judgment is to be understood in the way that the Court has found it proved that [the applicant], when he was not on a business trip, usually stayed with [ B.I. ] in her house in Høruphav [in Denmark] and not in his rented room in Germany. The High Court has, furthermore, found it proved that [the applicant] and [ B.I. ] were cohabiting. Finally, from the facts of the case it transpires that [the applicant] and [ B.I. ] have a child together, born in 1983.

For these reasons, the Supreme Court agrees that [the applicant], according to the Danish legislation on registration and duties and according to Article 7 in Council Directive of 28 March 1983 (83/182/EEC), must be considered to have had domicile (habitual residence) in Denmark."

COMPLAINTS

1. The applicant complains, under Article 6 para . 1 of the Convention, that he has not had a trial within a reasonable time.

2. The applicant further complains that he has not had a fair trial as other court decisions, in cases similar to his, have acquitted the accused persons of the charges against them. He invokes in this respect Articles 7, 14 and 17 of the Convention.

3. Finally, the applicant alleges that his conviction violated Article 8 of the Convention and Article 2 para . 2 of Protocol No. 4 to the Convention.

THE LAW

1. The applicant complains that he has not had a trial within a reasonable time. He invokes Article 6 para . 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 fair ... hearing within a reasonable time ..."

In support of his complaint, the applicant submits that the proceedings in the national courts, in particular the time lapsed between the High Court's judgment of 22 September 1986 and the Supreme Court's judgment of 24 January 1995, were unreasonably lengthy.

The Commission finds that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para . 2 (b) of the Rules of Procedure, to give notice of this complaint to the Government to submit written observations on the admissibility and the merits thereof.

2. The applicant complains that he has not had a fair trial as other court decisions, in cases similar to his, have acquitted the accused persons of the charges against them. He alleges in particular that "the Ryborg Case", in which the accused was acquitted by the Supreme Court following a preliminary ruling from the European Court of Justice, was analogous to his case. He invokes Articles 7, 14 and 17 of the Convention.

The Commission considers that the complaint does not raise any issues with regard to Articles 7 or 17 of the Convention. In so far as the applicant invokes Article 14 of the Convention, the Commission recalls its case-law according to which this Article can only come into play when read in conjunction with another Article of the Convention. The Commission has examined the complaint under Article 6 read in conjunction with Article 14 of the Convention.

Having regard to the considerable margin of appreciation conferred upon the national courts in their assessment of evidence, the Commission does not find it substantiated that the case involves a differential treatment in analogous situations such as to disclose an appearance of a violation of Article 6 read in conjunction with Article 14 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

3. In so far as the applicant complains that his conviction violated his right to respect for his private life under Article 8 of the Convention and his right to leave his own country as prescribed in Article 2 para . 2 of Protocol No. 4 to the Convention, the Commission finds no appearance of a violation of those articles.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint that the case was not concluded within a reasonable time;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

      M.-T. SCHOEPFER                                                  J.-C. GEUS

         Secretary                                                                   President

   to the Second Chamber                                        of the Second Chamber