Lexploria

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

Menu

J.P. v. DENMARK

J.P. v. DENMARK

LEXI