Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19028/91

by Hans Richard NIELSEN

against Denmark

The European Commission of Human Rights sitting in private on

9 September 1992, the following members being present:

MM. J. A. FROWEIN, Acting President

C. A. NØRGAARD

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H. C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 October 1991 by

Hans Richard NIELSEN against Denmark and registered on 14 November 1992

under file No. 19028/91;

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 Danish citizen, born in 1959. He is at present

serving a prison sentence of indefinite duration (forvaring) at

Herstedvester prison, Denmark.

A. The particular facts of the case

On 24 April 1990 the applicant was arrested, suspected of having

assaulted and threatened a woman. He denied the charges. By indictment

of 17 August 1990 the applicant was charged with attempted homicide and

his case was therefore, in accordance with Danish law, brought before

the High Court of Western Denmark (Vestre Landsret) sitting with a

jury. By judgment of 13 December 1990 the applicant was found guilty

of assault and of having threatened another person, contrary to

Sections 244 and 266 of the Penal Code, whereas the Court did not find

that the facts disclosed a violation of Section 237 in conjunction with

Section 21 of the Penal Code (attempted homicide). Having regard to the

applicant's previous convictions of a similar nature he was

subsequently sentenced to imprisonment of indefinite duration and to

pay damages to the woman in question.

The applicant appealed against the judgment to the Supreme Court

(Højesteret) requesting the Court to impose a sentence of fixed

duration. He did not base his appeal on other grounds. Although the

applicant maintained his innocence he could not, under Danish law,

appeal against his conviction as such as the evaluation of evidence in

respect of the question of guilt or innocence in jury trials in Denmark

is finally determined by the jury and the professional judges of the

High Court (cf. Chapter 82 of the Administration of Justice Act

(Retsplejeloven)).

By judgment of 24 May 1991 the Supreme Court upheld the sentence

of imprisonment of indefinite duration.

B. Relevant domestic law

Chapter 82 (Sections 940-961) of the Administration of Justice

Act concerns the possibilities of appeal to the Supreme Court against

judgments pronounced by the High Court as a first instance court.

Section 943 provides that an appeal may be based on the allegation that

procedural rules have been disregarded or applied wrongly, the latter,

however, provided objections were lodged timely before the lower

instance. Section 945 furthermore provides that in addition to the

above an appeal may be based on the allegation that the court has

wrongly decided a matter which lies outside the jury's competence to

decide upon, that the jury's finding, upon which the judgment is based,

is wrong due to an incorrect instruction from the presiding judge as

to the legal aspects of the case (urigtig vejledning i loven), that the

questions put to the jury suffer from errors or are based on an

incorrect interpretation of the Penal Code and, finally, that the

sentence goes beyond the limits of the law or is obviously

disproportionate to the offence.

COMPLAINTS

The applicant invokes Article 2 of Protocol No. 7 to the

Convention. He complains that his conviction by the High Court of

Western Denmark cannot be reviewed by a higher tribunal and maintains

that Article 2 of Protocol No. 7 should be interpreted so as to leave

the choice of review of either the conviction or the sentence to him.

THE LAW

Relying on Article 2 of Protocol No. 7 (P7-2) to the Convention

the applicant complains of the fact that his conviction by the High

Court of Western Denmark sitting with a jury cannot be reviewed by a

higher tribunal.

Article 2 of Protocol No. 7 (P7-2) reads as follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in cases

in which the person concerned was tried in the first instance by

the highest tribunal or was convicted following an appeal against

acquittal. "

The Commission recalls first of all that at the time of deposit

of the instrument of ratification of Protocol No. 7 to the Convention

Denmark made the following reservation:

"... Article 2, paragraph 1 (Art. 2-1) does not bar the use

of rules of the Administration of Justice Act according to

which the possibility of review by a higher court - in

cases subject to prosecution by the lower instance of the

prosecution (`politisager') - is denied

a. when the prosecuted, having been duly notified, fails

to appear in court;

b. when the court has repealed the punishment; or

c. in cases where only sentences of fines or

confiscations of objects below the amount or value

established by law are imposed."

The present case, however, does not concern a case "subject to

prosecution by the lower instance of the prosecution" but was of such

a nature that it was tried in the High Court sitting with a jury. It

follows that the Danish reservation does not prevent the Commission

from examining the issues raised by the applicant.

Whereas Article 14 para. 5 of the International Covenant on Civil

and Political Rights guarantees that "everyone convicted of a crime

shall have the right to his conviction and sentence being reviewed by

a higher tribunal according to law," Article 2 of Protocol No. 7 (P7-2)

to the Convention states that everyone has the right to have his

conviction or the sentence reviewed by a higher tribunal. This could

be understood to imply that the States under this provision have a

choice and may limit the review guaranteed for everyone either to

concern the sentence alone or conviction and sentence. However, the use

of the word "or" could also be interpreted as referring to the possible

choice by the individual concerned, taking into account that some

national systems permit an application for review to be limited to the

sentence.

The Commission notes that the explanatory report on Protocol

No. 7 to the Convention refers to proceedings where the accused has

pleaded guilty to explain the use of the word "or" in Article 2 para. 1

(Art. 2-1). This would support the view that the provision does not

give a choice to the State. Whereas the second sentence of Article 2

para. 1 of Protocol No. 7 (P7-2-1) requires that the exercise of the

right to a review by a higher tribunal shall be governed by law, the

Article does not specify its scope or actual implementation. As the

reference to the grounds for the review to be governed by national law

clearly shows the States have a discretion as to the modalities for the

exercise of the right of review. It is this part of the Article which

gives States the possibility to limit the review in several ways.

Indeed different rules govern review by a higher tribunal in the

member States of the Council of Europe. In some countries such review

is in certain cases limited to questions of law, such as the "recours

en cassation" (in French law) or "Revision" (in German law). In others

there is a right to appeal against findings of fact as well as on

questions of law; and in some States a person wishing to appeal to a

higher tribunal must in certain cases apply for leave to appeal.

Having regard to this the Commission does not find it necessary

to determine the scope of Article 2 of Protocol No. 7 (P7-2) in

general. Assuming that a review within the meaning this provision

guarantees to everyone the right to bring before a higher tribunal his

conviction or sentence or both such examination by this tribunal may

be a limited review, provided the limitations under the law would not

make such a review meaningless.

In the present case the Commission recalls that the applicant

could under Danish law appeal against the judgment of the High Court

of Western Denmark to the Supreme Court. Such an appeal could be based

on the allegations that procedural rules were disregarded or applied

wrongly. The applicant could also have based his appeal on allegations

that the High Court had wrongly decided matters which fell outside the

jury's competence, that the jury had received wrong instructions as to

the legal aspects of the case, or that the questions put to the jury

suffered from errors or were based on an incorrect interpretation of

the Penal Code. Finally, the applicant could, and did, base his appeal

on the allegation that the sentence was disproportionate to the offence

committed.

This shows that the limitation of the review was in line with the

typical rules governing the procedures before Supreme Courts which sit

only to control the legality of the judgment of the trial court. The

Commission, therefore, considers that the exercise of the applicant's

right to review as provided for under Danish law satisfied the

requirements of Article 2 of Protocol No. 7 (P7-2) 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) n(J.A. FROWEIN)

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NIELSEN v. DENMARK

NIELSEN v. DENMARK