Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24867/94

by Ole MORTENSEN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 10 November 1993

by Ole Mortensen against Denmark and registered on 9 August 1994 under

file No. 24867/94;

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 1944. He resides at

Hvidovre.

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

summarised as follows.

The applicant is a type-setter by training but commenced trading

in arms and ammunition. It appears that he obtained the necessary

permits under the Firearms Act (våbenloven) but nevertheless came into

conflict with the authorities. On 2 October 1984 his licence to buy

arms and ammunition (tilladelse til indkøb) was withdrawn with

immediate effect and his licence to trade in arms and ammunition

(tilladelse til forhandling) was withdrawn as per 1 April 1985.

Criminal proceedings were instituted against him and by judgment of

16 April 1986 the applicant was found guilty by the Copenhagen City

Court (Københavns Byret) of offences against the firearms and

explosives legislation and sentenced to pay a fine totalling

20,000 DKK. Certain arms and ammunition were confiscated. By the same

judgment the applicant was acquitted on a charge of having possessed

without a permit a machine gun, a so-called "tommy gun" no. S 161993,

as the court found "that it could not be excluded that the weapon may

be a machine gun which (the applicant) has transformed into a weapon

for blank ammunition by changing the barrel and which he has

subsequently possessed with the knowledge of the authorities".

The judgment was upheld on appeal by the High Court of Eastern

Denmark (Østre Landsret) on 4 March 1987. The appeal did not concern

the charge involving the "tommy gun" on which the applicant had been

acquitted, the City Court judgment of 16 April 1986 having become final

on that point. Subsequently, the applicant added to the "tommy gun" a

firing mechanism (aftrækkerhus) marked no. S 341100 and kept the weapon

in his possession.

Following the withdrawal of his licences in 1984 and 1985 the

applicant continued his business, now only trading items which, in his

opinion, fell outside the Firearms Act. It appears, however, that

certain police investigations were carried out and on 4 September 1989

the applicant's shop as well as his home were searched and a

substantial amount of arms and ammunition were seized. The applicant

was arrested on 6 September 1989 and charged with violations of the

Firearms Act. He was released the following day by court order whereas

the charges against him were upheld and the police investigations

pursued. The seizure of the arms and ammunition were confirmed by the

High Court of Eastern Denmark on 13 December 1989.

By indictment of 12 December 1990 the applicant was charged with

offences against the Firearms Act and the Fireworks Act (lov om

fyrværkeri) in eleven cases involving several hundred weapons or parts

of weapons and a substantial quantity of various kinds of ammunition.

According to part I of the indictment the applicant was charged with

having possessed, without the necessary permit, several weapons,

including, an American machine gun, fab. Thomson, type "tommy gun",

kal. 45, series nr. 161993 marked on the frame and nr. S 341100 marked

on the rear grip.

Under parts III and IV of the indictment the applicant was

furthermore charged with having possessed, contrary to sections 1 and

2 of the Firearms Act, approximately 100,000 pieces of ammunition,

including percussion caps (fænghætter), empty cartridge cases and

shot-cartridges.

Under part X of the indictment the applicant was charged with

having imported a rifle from Switzerland to Denmark contrary to

sections 1 and 2 of the Firearms Act.

On 26 February 1991 a preliminary court hearing was held in the

Copenhagen City Court in order to discuss the case and to fix the dates

for the main hearing. The presiding judge requested the parties to

clarify their positions by the end of March and called the parties to

a new preliminary hearing to discuss outstanding matters of procedure

on 8 April 1991. On that date the main hearing was fixed to commence

on 23 April 1991.

On 16 April 1991 an indictment was served on the applicant

charging him with an additional three violations of the Firearms Act

(parts XII to XIV). These charges related to the items already seized

and concerned illegal possession of various weapons and ammunition as

well as items necessary for the production of ammunition. Part XII of

the indictment furthermore charged the applicant with having handed

over (overdraget), contrary to sections 1 and 2 of the Firearms Act,

certain weapons and ammunition to two persons residing in Greenland.

The main hearing commenced on 23 April 1991 and ended on

28 August 1991 involving a total of fourteen court sessions. The

applicant, assisted by counsel, was heard and the court heard

statements of a total of nineteen witnesses, including sixteen

witnesses in relation to part I of the indictment, seventeen witnesses

in connection with parts III and IV, four witnesses in connection with

part X and five witnesses in connection with part XII. During the

proceedings the applicant lodged a formal complaint against the

indictment served on 16 April 1991. He maintained that it contained an

unacceptable enlargement of the charges brought against him which, in

his opinion, had been finally fixed by the indictment of

12 December 1990. The City Court, however, rejected the complaint on

27 August 1991 as the indictment of 12 December 1990 could not be

considered as preventing other charges to be brought on the basis of

the police investigations.

Judgment was pronounced on 2 October 1991. The applicant was

acquitted in respect of parts VI and XIV of the indictments and partly

acquitted in respect of parts III and V. As regards the remaining

charges the applicant was found guilty and sentenced to four months'

imprisonment. Furthermore, a substantial quantity of weapons and

ammunition was confiscated pursuant to sections 75 and 77a of the Penal

Code which provide for such a measure in respect of inter alia objects

which have been used, or were intended to be used, in a criminal act,

were produced by such an act, or where it must be presumed that the

objects, because of their character and in the light of the

circumstances, would be used in a criminal act. Finally, the applicant

was deprived, until further notice, of the right to trade in weapons

and ammunition pursuant to section 79 of the Penal Code and ordered to

pay the costs of the proceedings totalling 135,500 DKK.

In respect of part I of the indictment, which included the

above-mentioned "tommy gun", the City Court stated as follows:

(Translation)

"The Court agrees in essence with the prosecution that the

weapons in question fall under the Firearms Act section 2

subsection 1, cf. section 1 subsection 1 nr. 1, since the

weapons were not made permanently incapable of functioning.

... The weapons may - to a great extent by pure amateurs

and by using relatively normal hobby tools - be fixed in

such a way that they are again capable of shooting with

live cartridges. Accordingly, the applicant is guilty in

respect of (the charges concerning the tommy gun). It is

pointed out that none of these weapons, as they appeared on

4 September 1989, can be considered as falling outside the

control system of the Firearms Act due to previous

judgments against (the applicant) for violations of the

Firearms Act."

In respect of parts III and IV of the indictments concerning the

possession of ammunition, including percussion caps, empty cartridge

cases and shot-cartridges, the City Court wrote inter alia:

(Translation)

"The Court does not find that the fact that (the

applicant), on 4 September 1989, possessed a hunting

licence gave him the right to possess percussion caps which

are specifically mentioned in section 2 subsection 1, cf.

section 1 subsection 1 nr. 2 of the Firearms Act, as it is

noted that (the applicant) on 4 September 1989 did not have

permission to refill cartridges or shot-cartridges. (The

applicant) is accordingly guilty as charged (as regards

these items)."

The applicant, however, was acquitted in respect of a number of

other items of ammunition which had been seized.

As regards part X of the indictment which concerned the

importation of a rifle from Switzerland to Denmark the Court found as

follows:

(Translation)

"The Court finds that (the applicant) - who on 5 September

1989 had no arms trading licence or permission to pursue

road delivery or forwarding agency business - in the

circumstances ought to have obtained a special permit for

import and possession during the transport of the rifle. As

a proper import licence existed for the museum which had

asked (the applicant) to take care of the transport of the

rifle from Switzerland to the museum, the Court finds that

(the applicant) should not be held criminally liable,

cf. section 84 ... of the Penal Code."

As regards part XII of the indictment concerning the sale of

rifles to persons living in Greenland the Court stated as follows:

(Translation)

"(The applicant) maintains his innocence as he has only

arranged the deal with the rifles for (another arms

trader).

Having regard to the statements of the applicant and (the

other arms trader) the Court finds that the latter only

acted as front man for (the applicant's) own business with

the rifles in question. As the applicant had no proper

permit therefor the Court finds him guilty as charged."The

applicant appealed against the judgment to the High Court

of Eastern Denmark. On 15 September 1992 the High Court

held a preliminary court hearing in order to settle any

outstanding points of procedure and to fix the dates for

the main hearing. Counsel for the applicant requested that

the main hearing be fixed after 1 January 1993 in order to

allow for a proper preparation of the case. Thus, the High

Court fixed the commencement of the main hearing for 18

January 1993.

The main hearing commenced on 19 January 1993 and ended on

17 May 1993 involving a total of twelve court sessions. The applicant

as well as a total of seventeen witnesses were heard. During the

proceedings the applicant requested the hearing of two witnesses, but

subsequently withdrew the request in respect of one of them. The other

witness was heard.

Judgment was pronounced on 17 May 1993. The applicant was

acquitted of parts VIII and IX of the indictments whereas the City

Court judgment was otherwise upheld in substance. The sentence of

imprisonment was reduced to three months and the costs of the

proceedings before the High Court were borne by the State.

On 24 June 1993 the applicant applied for leave to appeal to the

Supreme Court (Højesteret) against the judgment of the High Court. He

maintained that he had been convicted of acts which did not constitute

a criminal offence, that the sentence was too severe, that the

confiscation was too far-reaching, that the deprivation of the right

to pursue his occupation as an arms dealer was a disproportionate

measure and that he had been convicted in respect of charges of which

he had previously been acquitted. Furthermore, the applicant maintained

that the interpretation of the Firearms Act made by the courts did not

correspond to the interpretation and implementation made by the

administrative authorities and that the order to pay the costs of the

proceedings in the City Court violated the European Convention on Human

Rights.

Observations were received from the prosecution authorities on

24 September 1993 and from the applicant on 8 November 1993.

Supplementary observations were submitted by the prosecution

authorities on 1 January 1994 and supplementary observations in reply

were submitted by the applicant on 23 February 1994.

On the basis of these observations and the other facts of the

case leave to appeal was refused on 14 April 1994 by the Ministry of

Justice.

COMPLAINTS

1. Under Article 6 of the Convention the applicant has submitted a

number of complaints relating to the proceedings before the Copenhagen

City Court and the High Court of Eastern Denmark.

a) Under Article 6 para. 3 (a) of the Convention the applicant

complains that the indictments were not presented before

12 December 1990 and 16 April 1991.

b) Under Article 6 para. 3 (b) of the Convention the applicant

complains of the fact that the additional indictment was not presented

until 16 April 1991, i.e. seven days before the trial in the City Court

commenced.

c) As regards the proceedings in the City Court the applicant

also complains of the fact that the was ordered to pay the costs in the

amount of 135,500 DKK. He refers in this respect to Article 6

para. 3 (c) of the Convention.

d) As regards the proceedings in the High Court the applicant

complains, under Article 6 para. 3 (d) of the Convention, that a

witness requested by him was not heard.

e) Finally, with reference to Article 6 of the Convention the

applicant complains that his case was not heard within a reasonable

time.

2. a) Under Article 7 para. 1 of the Convention the applicant

complains that in respect of parts III, IV, X and XII of the indictment

he was held guilty of these charges although they did not, in his

opinion, involve acts which constituted a criminal offence.

b) The applicant also maintains that the penalty imposed

violated Article 7 para. 1.

3. The applicant furthermore complains that the confiscation of the

arms and ammunition violated Article 1 of Protocol No. 1 to the

Convention.

4. Finally, the applicant complains that in respect of part I of the

indictment, to the extent that it concerned the possession of the

so-called "tommy gun", he was tried and punished again for an offence

for which he had been acquitted already in 1986. He invokes in this

respect Article 4 of Protocol No. 7 to the Convention.

THE LAW

1. The applicant complains in several respects that during the

proceedings against him he was denied a fair trial. He invokes

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention which reads

as far as relevant:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law.

...

2. ...

3. Everyone charged with a criminal offence has the

following minimum rights:

(a) to be informed promptly, in a language

which he understands and in detail, of the

nature and cause of the accusation against him;

(b) to have adequate time and facilities for

the preparation of his defence;

(c) to defend himself in person or through

legal assistance of his own choosing or, if he

has not sufficient means to pay for legal

assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses

against him and to obtain the attendance and

examination of witnesses on his behalf under the

same conditions as witnesses against him;

(e) to have the free assistance of an

interpreter if he cannot understand or speak the

language used in court."

a) Under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention the

applicant complains that he was not informed promptly of the nature and

cause of the accusation against him since the indictments were not

served until 12 December 1990 and 16 April 1991, respectively.

The Commission recalls that Article 6 para. 1 (a) (Art. 6-1-a)

does not specify that the relevant information should be given in

writing. For the purposes of this provision it is sufficient that the

applicant, through the police interrogations or preliminary court

hearings, has been made aware in sufficient detail of the accusations

against him (cf. Eur. Court H.R., Kamasinski judgment of 19 December

1989, Series A no. 168, pp. 36-37, paras. 79-81).

In the present case it is true that the indictments were served

on the applicant as indicated. However, the applicant does not dispute

that he was informed of the suspicions against him already during his

arrest on 6 September 1989 and, in particular, during the court's

examination of his continued arrest on 7 September 1989 following which

he was released. In these circumstances the Commission considers that

the applicant was informed already on 6 and 7 September 1989 in a

manner which is not at variance with Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention.

b) The applicant also complains under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention of the fact that the additional

indictment containing the charges XII-XIV was not served upon him until

approximately one week before his trial commenced in the Copenhagen

City Court.

The Commission recalls that Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention entails two elements of a proper

defence, i.e. the question of facilities and the question of time. The

applicant has not specified in what way the serving of the additional

indictment was detrimental to his defence and the Commission finds no

evidence which could lead to the conclusion that the applicant lacked

the necessary facilities for a proper defence. As regards the question

of adequate time the Commission finds that this question cannot be

determined in abstracto, but only in relation to the circumstances of

the concrete case (cf. no. 7909/74, Dec. 12.10.78, D.R. 15 p. 160).

In the present case the Commission recalls that the pretrial

period lasted from 6 September 1989 until 23 April 1991. It notes that

the applicant was assisted by counsel and it is not alleged that he was

not provided with the case file as it became available or otherwise did

not receive the relevant documents. Furthermore, the major part of the

charges against the applicant was contained in the indictment of

12 December 1990. In these circumstances the Commission accepts as

appropriate the period of approximately one week between the service

of the additional indictment and the date of the commencement of the

trial, having regard also to the fact that in any event all the

evidence had to be produced and examined during the trial which in the

City Court lasted approximately four months. Accordingly, the

Commission finds that the facts of the case do not disclose any

appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention.c) As regards the proceedings in the Copenhagen City

Court the applicant also complains, under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention that he was ordered to pay the costs of

these proceedings in the amount of 135,500 DKK.

The Commission recalls that a system whereby a convicted person

is in principle bound to pay the costs of the proceedings, including

the fees of his court-appointed counsel is not incompatible with

Article 6 (Art. 6) of the Convention, provided this does not adversely

affect the fairness of the proceedings (cf. Eur. Court of H.R.,

Croissant judgment of 25 September 1992, Series A no. 237-B, pp. 34-35,

paras. 33-38).

In the present case the Commission finds that the question of

costs did not affect the proceedings at all since the applicant was

provided a proper defence, irrespective of whether he had sufficient

means during the trial. The question remains whether it would be

compatible with Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

for the State to continue to seek reimbursement of expenses after the

convicted person has established, in the enforcement proceedings, that

he or she lacks sufficient means to bear the costs of the defence.

In this respect the Commission recalls from the above Croissant

judgment (p. 35, para. 37) that the burden of proving a lack of

sufficient means should be borne by the person who pleads it.

In the present case it is true that the applicant has been

requested to pay the costs of the proceedings before the Copenhagen

City Court. It does not appear, however, that the claim has been

enforced. Furthermore, although the applicant appears to be unemployed,

he has not submitted any evidence which could lead to the conclusion

that he is unable to pay his debts.

In these circumstances the Commission finds that the facts of the

present case disclose no appearance of a violation of Article 6

para. 3 (c) (Art. 6-3-c) of the Convention.

d) As regards the proceedings in the High court the applicant

complains that a witness requested by him was not heard and he invokes

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

The Commission notes from the High Court transcripts that a total

of seventeen witnesses were heard and that the applicant initially

requested the hearing of an additional two witnesses. It furthermore

notes that one of these requests was withdrawn and that the other

witness was indeed heard. Consequently, the Commission has found no

appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention.

e) Finally, with reference to Article 6 (Art. 6) of the Convention

the applicant complains that his case was not heard within a reasonable

time.

In this respect the Commission considers that the relevant period

commenced on the day of the search and seizure of the applicant's

premises, i.e. on 4 September 1989, and ended on 14 April 1994 when

leave to appeal to the Supreme Court was refused. Thus, the total

length of the proceedings which the Commission must assess under

Article 6 para. 1 (Art. 6-1)of the Convention is approximately four

years and seven months. From a general point of view the

reasonableness of the length of the proceedings must be assessed with

reference to the complexity of the case, the conduct of the applicant

and that of the authorities before which the case was brought (cf. for

example Eur. Court H.R., Boddaert judgment of 12 October 1992, Series

A no. 235-D, p. 82, para. 36).

As regards the complexity of the case the Commission recalls that

the charges against the applicant related to arms and ammunition of

substantial quantity. The Commission accepts that although the legal

issues may not in the circumstances appear complex the investigations

by their very nature necessitated a certain period of time.

As regards the applicant's conduct the Commission has not found

it established that he acted in a way which inappropriately prolonged

the ongoing police investigations. The Commission notes, however, that

counsel for the applicant requested the main hearing in the High Court

to be fixed after 1 January 1993 as more time was apparently needed in

order to prepare a proper defence.

As regards the conduct of the authorities and courts the

Commission recalls that the police investigations were concluded within

a period of approximately one year and three months (September 1989

until December 1990). The Commission does not consider that the facts

of the case, in the circumstances, disclose that the investigating

authorities acted inappropriately or otherwise failed to conclude their

investigations with due diligence.

Nor do the proceedings before the Copenhagen City Court, which

lasted a total of approximately ten months, disclose periods of

inactivity which could bring these proceedings at variance with

Article6 (Art. 6)of the Convention.

As regards the proceedings before the High Court of Eastern

Denmark the Commission notes that the case lay idle from its referral

to this Court following the judgment of the City Court until

September 1992, i.e. a period of approximately ten months. However,

regardless thereof the Commission recalls that counsel for the

applicant apparently was in need of more time as he requested the Court

not to schedule the case for examination until after 1 January 1993.

In these circumstances the Commission accepts the delay which occurred

in the High Court as its subsequent handling of the case was without

reproach. The same can be said about the proceedings concerning leave

to appeal which was decided upon less than two months after the

parties' observations had been obtained.

Therefore, making an overall assessment of the length of the

proceedings, which involved two administrative and two court levels,

they did not in the Commission's view, go beyond what may be considered

reasonable in the circumstances. The applicant's complaint does not,

therefore, disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that the applicant's complaints as submitted under

Article 6 paras. 1 and 3 (Art. 6-1, 6-3), are manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. a) Under Article 7 para. 1 (Art. 7-1)of the Convention the

applicant complains that in respect of parts III, IV, X and XII of the

indictments he was held guilty of charges although they did not, in his

opinion, involve acts which constituted a criminal offence.

Article 7 para. 1 (Art. 7-1) of the Convention 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."

The Commission recalls that Article 7 (Art. 7) of the Convention

should be construed and applied, as follows from its object and

purpose, in such a way as to provide effective safeguards against

arbitrary prosecution, conviction and punishment. Nevertheless, however

clearly drafted a legal provision may be there remains an inevitable

element of judicial interpretation (cf. Eur. Court H.R., S.W. v. United

Kingdom judgment of 22 November 1995, Series A no. 335-B, paras.

34-35).

In the present case the Commission recalls that parts III and IV

of the indictment concerned the possession of ammunition. The courts

thoroughly considered the applicant's objections and found it

established that the items in question fell under the Firearms Act

sections 1 and 2 which expressly prohibit the possession of such

ammunition and other arms related equipment without a licence, and the

applicant did not have a licence. Likewise, the Commission finds it

beyond doubt that the acts committed under parts X and XII of the

indictments constituted a criminal offence and that the only question

was whether, on the basis of the available evidence, the applicant had

committed these offences, something which the courts answered in the

affirmative. In these circumstances the Commission finds that the

facts, as submitted in this respect, do not disclose any appearance of

a violation of Article 7 (Art. ) of the Convention.

b) Under Article 7 (Art. 7) of the Convention the applicant

furthermore complains that the penalty imposed, three months'

imprisonment, was in violation of Article 7 para. 1 (Art. 7-1) of the

Convention. In this respect the Commission notes that the applicant's

sentence was based on section 10 of the Firearms Act according to which

a sentence of two years' imprisonment may be imposed. Consequently,

this complaint does not disclose any appearance of a violation of

Article 7 para. 1 (Art. 7-1) of the Convention either.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant also complains that the confiscation of the arms

and ammunition belonging to him violated Article 1 of Protocol No. 1

(P1-1) to the Convention which reads:

"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 Commission finds that the applicant was deprived of his

possessions in the public interest and subject to the conditions

provided for by law. Consequently, the confiscation was in accordance

with Article 1 para. 1 second sentence of Protocol No. 1 (P1-1-1) to

the Convention. It follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. Finally, the applicant complains that in respect of part I of the

indictment, to the extent that it concerned the possession of the

so-called "tommy gun", he was fined and punished again for an offence

for which he had been acquitted already in 1986. He invokes in this

respect Article 4 para. 1 of Protocol No. 7 (P7-4-1)to the Convention

which reads:

"No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State."

The Commission recalls that the applicant was acquitted by final

judgment of 16 April 1986 of a charge of possessing, without a permit,

a machine gun carrying the no. S 161993. It is also clear that the

applicant, subsequent to the above judgment, added to this machine gun

a firing mechanism (aftrækkerhus) with the no. S 341100 and kept it in

his possession. The issue is accordingly whether in such circumstances

the applicant can be said to have been punished twice for the same

offence. In this respect the Commission finds that the definition of

a weapon falling under the Firearms Act is not at all clear and may

vary depending on the appearance and composition of the weapon. It has

been established that subsequent to the judgment of 16 April 1986 the

applicant made certain changes to the gun and that the City Court and

in the proceedings concerning the present case the High Court found it

established that in the state in which the weapon was found on

4 September 1989 the applicant's possession thereof constituted a

violation of the Firearms Act. Furthermore, the courts found that in

these circumstances the applicant's previous acquittal did not affect

the case.

It is not for the Commission to rule upon whether or not and in

what circumstances the object in question is to be considered a weapon

within the meaning of Danish legislation. For the purposes of Article

4 of Protocol No. 7 (P7-4) (to the Convention the Commission finds it

sufficient in the present case that the machine gun referred to in the

judgment of 16 April 1986 and the machine gun referred to in this case

are not identical. Thus, the Commission considers that the applicant

was not tried or punished again for an offence of which he had

previously been acquitted.

It follows that this part of 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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MORTENSEN v. DENMARK

MORTENSEN v. DENMARK

LEXI