Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25338/94

by A.R.

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 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 13 December 1993

by A.R. against Denmark and registered on 28 September 1994 under file

No. 25338/94;

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

summarised as follows.

The applicant is a Swedish citizen, born in 1948. He resides at

Lund, Sweden.

In connection with certain investigations concerning drug

trafficking the Danish police received information on the basis of

which they obtained, on 30 October 1990, an arrest warrant against the

applicant as being suspected of drug trafficking contrary to

section 191 of the Danish Penal Code. At the same time the police

submitted, through the Copenhagen City Court (Københavns Byret), a

request to the Swedish authorities for the applicant's arrest and

extradition to Denmark.

The applicant was arrested in Sweden on 12 November 1990 and was

extradited to Denmark on 14 November 1990. On 15 November 1990 he was

detained on remand in solitary confinement by the Copenhagen City Court

on suspicion of having participated in drug trafficking involving

several kilos of amphetamines.

The ongoing police investigations continued and involved several

suspects and activities in other countries. The applicant's detention

on remand in solitary confinement was prolonged on 3 and

17 December 1990 and on 14 and 28 January 1991. On 5 February 1991 he

was released and on 27 March 1991 the State Prosecutor (Statsadvokaten)

decided not to pursue the charges against the applicant.

On 7 May, 4 June and 15 July 1991 the applicant submitted

requests for compensation for alleged unwarranted deprivation of

liberty. On 22 January 1992 the State Prosecutor rejected the requests

maintaining that the applicant's own behaviour had caused his

continuing detention on remand.

Pursuant to Chapter 93a of the Administration of Justice Act

(retsplejeloven) the applicant then requested the question of

compensation to be brought before the courts. The case was heard in the

Copenhagen City Court on 18 December 1992. The applicant claimed a

total of 339,213 DKK in compensation for pecuniary and non-pecuniary

damage caused by his detention on remand from 12 november 1990 until

5 February 1991. By judgment of the same day the applicant's claims

were rejected by the Court which stated as follows:

(translation)

"Following an evaluation of the available evidence (the

applicant) had certain telephone conversations which were

tapped and which gave reason for the suspicion of criminal

activities.

Having regard to the fact that (the applicant) submitted

untrustworthy and to some extent varying explanations about

the contents of these conversations the Court finds that

(he) has (himself) caused the deprivation of liberty in

question, cf. section 1018a subsection 3 of the

Administration of Justice Act and that (his) request for

compensation shall therefore be rejected."

The judgment was upheld by the High Court of Eastern Denmark

(Østre Landsret) on 26 October 1993. Leave to appeal to the Supreme

Court (Højesteret) was refused on 17 June 1994.

COMPLAINTS

The applicant complains that his detention on remand in solitary

confinement was unfounded and unacceptable as no evidence existed which

could justify the charges against him. Furthermore, he requests

compensation for this unwarranted deprivation of liberty. The applicant

invokes in this respect Article 5 paras. 4 and 5 of the Convention.

The applicant also complains of a violation of Article 6 para. 2

of the Convention maintaining that he had not committed any criminal

offence.

THE LAW

1. The Commission considers that the applicant complains in

substance of the fact that he was refused compensation for his

detention on remand after the criminal proceedings had been

discontinued. The applicant invokes inter alia Article 5 para. 5

(Art. 5-5) of the Convention. However, under this provision the right

to compensation for any material or moral damage sustained as a result

of a detention is conditional on a breach of one of the other

paragraphs of Article 5. It follows that the Commission cannot consider

the applicant's claim exclusively based on Article 5 para. 5 (Art. 5-5)

unless a breach of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4)

has been established (cf. for example No. 6821/74, Dec. 5.7.76,

D.R. 6, p. 65).

The Commission has accordingly first examined whether the

applicant's detention was at variance with Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) of the Convention. In this respect the

Commission considers that the applicant was detained between

November 1990 and February 1991 in conformity with Article 5 para. 1

(c) (Art. 5-1-c) of the Convention, i.e. the lawful detention effected

for the purpose of bringing him before the competent legal authority

on reasonable suspicion of having committed an offence. Furthermore,

the Commission has found no facts which would indicate that the

applicant's arrest and detention were at variance with Article 5 paras.

2 or 3 (Art. 5-2, 5-3) of the Convention. Finally, as regards the

applicant's reference to Article 5 para. 4 (Art. 5-4) of the Convention

the Commission recalls that the lawfulness of the applicant's detention

in Denmark was examined by a court within 24 hours of his arrival there

and re-examined on 3 and 17 December 1990 and on 14 and

28 January 1991. In these circumstances the Commission considers that

the examination of the facts of the case does not disclose any

appearance of a breach of Article 5 (Art. 5) of the Convention. Thus

the question of the applicability of Article 5 para. 5 (Art. 5-5) does

not arise (cf. No. 7950/77, Dec. 4.3.80, D.R. 19, p. 213).

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.

2. The applicant also complains that the refusal to award him

compensation violates Article 6 para. 2 (Art. 6-2) of the Convention

which reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission recalls, however, that neither this provision nor

any other provision of the Convention gives a person "charged with a

criminal offence" a right to compensation for lawful detention on

remand where proceedings taken against him are discontinued. The

refusal complained of by the applicant accordingly does not in itself

offend the presumption of innocence (cf. for example Eur. Court H.R.,

Minelli judgment of 25 March 1983, Series A no. 62, p. 17,

paras. 34-35).

Nevertheless, a decision whereby compensation for detention on

remand is refused following the termination of the proceedings may

raise an issue under Article 6 para. 2 (Art. 6-2) if the supporting

reasoning amounts in substance to a determination of the accused's

guilt (cf. for example Eur. Court H.R., Englert judgment of

25 August 1987, Series A no. 123-B, pp. 54-55, para. 37).

In the present case, however, the Commission considers that the

courts confined themselves in substance to noting the existence of a

reasonable suspicion that the applicant had been involved in criminal

activity. They described a state of suspicion and not a finding of

guilt. In these circumstances the Commission finds no appearance of a

violation of the right to be presumed innocent as guaranteed by

Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that this part of the application is also 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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A. R. v. DENMARK

A. R. v. DENMARK

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