SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30486/96 by Jens Thue LAURIDSEN against Denmark

The European Court of Human Rights (Second Section) , sitting on 29 June2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr E. Levits,

Mr A. Kovler, judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 July 1995 and registered on 18 March 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 21 October 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1959.  He resides in Hvide Sande , Denmark. Before the Court the applicant is represented by Mr Anders Torbøl , a lawyer practising in Copenhagen.

A. The circumstances of the case

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

The applicant is the owner of a fishing vessel.  In August 1989 he was fishing in the North Sea during which he exceeded the quota limits concerning maximum catch laid down in the relevant legislation.  By indictment of 12 February 1991 the applicant was therefore charged with having exceeded the permitted fishing quotas contrary to Act No. 465 of 27 June 1989 concerning the regulation of certain fisheries, section 89 in conjunction with section 3, pursuant to which the prosecutor requested that the applicant pay a fine.  Furthermore, the prosecutor demanded confiscation of the profits stemming from the illegal catch, estimated at 66,200 DKK.

During the proceedings before the City Court ( byretten ) of Ringkøbing the applicant did not challenge the factual circumstances but maintained in particular that the amount to be confiscated should be reduced.

By judgment of 12 February 1992 the City Court found the applicant guilty of the charges brought against him.  The judgment reads in its relevant parts as follows:

(Translation)

“Having regard to [the applicant’s] admissions and the other circumstances of the case it is found established that [the applicant] is guilty in accordance with the indictment.  When estimating the value of the illegal catch the court finds it appropriate to use, in accordance with normal practice, the average price per kilogramme cod and as this would lead to a value which corresponds best with the real value of the illegal catch.  Furthermore, the court finds it appropriate to fix the amount to be confiscated, in accordance with normal practice, without deductions of the amount paid to the crew.  Finally, [the applicant’s] lack of knowledge or misunderstanding of the quota, which appears clearly from section 9 § 3, cf. § 4, cannot be taken into consideration.  ...

Pursuant to Section 75 § 1 of the Penal Code an amount of 66,200 DKK shall be confiscated from [the applicant].”

The applicant was fined 9,100 DKK.

The applicant appealed against the judgment to the High Court of Western Denmark ( Vestre Landsret ) maintaining that the fine and, in particular, the amount confiscated were disproportionate to the offence committed.

By judgment of 24 November 1992 the High Court upheld the City Court’s judgment.  As regards the calculation of the amount confiscated the High Court referred to previous case ‑ law of the Supreme Court ( Højesteret ).

On 11 July 1994 the Ministry of Justice granted the applicant leave to appeal to the Supreme Court before which the applicant maintained that the amount confiscated ought to be reduced.  He did not, however, challenge the fine imposed.

By judgment of 2 February 1995 the Supreme Court upheld the High Court’s judgment.  The judgment reads in its relevant parts as follows:

(Translation)

“Three judges express the following opinion:

The amounts confiscated from [the applicant] pursuant to Section 75 § 1 of the Penal Code are fixed as the sales value of the illegal catch, solely with deduction of costs connected with landing and sale (landing costs).  This conforms with previous case-law, cf. inter alia the Supreme Court's judgment of 7 October 1982 ... .

In evaluating whether there are grounds for changing this practice, account should be taken of the fact that in cases of illegal fishery, substantial consideration is to be given to the preventive function of the confiscation.  In this connection, it is worthy of note that it is presupposed in the fisheries legislation that confiscation of the value of the illegal catch is a normal reaction... .

The accused's assistants on the fishing trip in question were remunerated with a share of the net value of the catch and have, objectively speaking, contributed to the offences.  It depends on the circumstances of the legal relation between the parties whether, in case of confiscation, [the applicant is] entitled to demand repayment of  the wages.  We find that no deduction should be allowed for expenses pertaining to wages when fixing the confiscation amounts. Apart from the costs relating to fuel and ice, which can to a certain extent be attributed to the illegal catch, the remaining costs referred to by [the applicant] may be characterised as general costs which should not be taken into consideration either when fixing the amounts to be confiscated.

Thus, we do not find sufficient reasons to change previous case-law according to which the amounts to be confiscated in cases like the present are fixed - unless special circumstances prevail - as the sales value of the illegal catch with the deduction solely of landing costs.  Therefore we vote for upholding the High Court's judgment.”

Two judges voted in favour of reducing the amount confiscated by allowing the deduction of certain additional costs.

B. Relevant domestic law

The relevant parts of Section 75 of the Penal Code ( straffeloven ) read as follows:

(Translation)

“§ 75 (1) The proceeds gained from any criminal act, or a sum equivalent thereto, may, either wholly or in part, be confiscated.  Where there is no means of establishing the size of such an amount, a sum thought to be equivalent to the proceeds gained may be confiscated.

(2) The following objects may also be confiscated where this must be regarded as necessary in order to prevent further offences, or where additional special circumstances make further offences likely:

1) objects which have been used, or were intended to be used, in a criminal act;

2) objects produced by a criminal act; and

3) objects with respect to which a criminal act has otherwise been committed.

(3) In place of confiscation of the objects referred to in subsection (2) above, a sum may instead be confiscated which is equivalent to their value or a part thereof.

(4) In place of confiscation under subsection (2) above, arrangements concerning the objects may instead be decided upon for the purposes of preventing further offences.

(5) When an association is dissolved by judgment, its capital, documents, protocols etc. may be confiscated.”

COMPLAINTS

1. The applicant complains that the Supreme Court’s judgment of 2 February 1995 was not made in accordance with national law and that Section 75 of the Danish Penal Code as interpreted in this judgment does not fulfil the requirements of foreseeability and accessibility which follows from the Convention case-law.  The applicant alleges that this constitutes a violation of the principle of a fair trial as enshrined in Article 6 § 1 of the Convention.

2. The applicant complains further, under Article 7 § 1 of the Convention, that the Supreme Court judgment violates the principle of the legality of criminal offences and penalties (“ nullum crimen , nulla poena sine lege ”) in that the applicant was penalised according to norms which were neither enacted nor foreseeable at the time when the acts in question were committed.

3. The applicant alleges also that the confiscation order deprived him of his possessions in an arbitrary and disproportionate manner.  The applicant considers this to be contrary to Article 1 of Protocol No. 1 to the Convention.

4. Finally, the applicant maintains that the way in which the Supreme Court interpreted Section 75 of the Penal Code means he was subjected to unjustified differential treatment in comparison with offenders in cases concerning, inter alia , drug-trafficking and brothel activities. He invokes in this respect Article 14 of the Convention.

THE LAW

1. The Court notes that the respondent Government have submitted certain preliminary objections.  They maintain, which is disputed by the applicant, that the part of the application which concerns the allegation that the confiscation order is contrary to Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention should be declared inadmissible for failure to exhaust domestic remedies.  Furthermore, they maintain, which is also disputed by the applicant, that the part of the application concerning Articles 6 and 7 should, in the alternative, be declared inadmissible as being incompatible with the Convention ratione materiae .

In the circumstances of the present case the Court does not find it necessary to examine the preliminary points raised by the Government.  Even assuming that the requirements as to the exhaustion of domestic remedies and compatibility are fulfilled the Court finds that the case is in any event inadmissible for the reasons set out below.

2. The applicant complains, under Article 6 of the Convention, that the Supreme Court judgment of 2 February 1995 and its consequences constitute a violation of the principle of a fair trial.

The Court recalls in this respect that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention.  In particular, it is not its function to deal with errors of fact and of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.  Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (cf. e.g. the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

Having regard to this the Court notes that the applicant had the benefit of adversarial proceedings.  At the various stages of these proceedings he was able to submit the arguments he considered relevant to his case.  The factual and legal reasons for rejecting his claims were set out at length in the judgment of the Supreme Court and there are no elements which indicate that the applicant in any other respect did not enjoy the guarantees secured by Article 6 of the Convention.  His allegations do not therefore disclose any appearance of a violation of this provision.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant complains further that the Supreme Court judgment violates the principle of the legality of criminal offences and penalties in that he was penalised according to norms which were neither enacted nor foreseeable at the time the acts in question were committed.  He relies in this respect on Article 7 § 1 of the Convention which reads as follows:

“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 Government dispute this.  In particular they submit that the state of the law was foreseeable since the penalties in question were imposed pursuant to Section 75 of the Penal Code and in accordance with established case-law on the interpretation of this provision of which the applicant was well aware.

The Court recalls that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as it is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency.  It 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.

Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, § 52) Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.  From these principles it follows that an offence must be clearly defined in the law.  In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.  The Court thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see e.g. the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, § 37).

However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances.  Indeed, in a number of Convention States the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition.  Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (cf. the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, § 36).

In the present case the Court recalls that the applicant did not challenge in the Supreme Court the fine imposed pursuant to the applicable fisheries legislation but he questioned the amount to be confiscated due to the illegal catch.  As already stated above the Court does not consider it necessary to determine whether the confiscation pursuant to Section 75 of the Penal Code was at all a penalty within the meaning of Article 7.  Even assuming this to be the case the Court finds it established that the sanction was in line with established case-law.  Indeed the Supreme Court pointed out that it saw no need to change the established practice in the circumstances of this case.  Thus, there was no doubt, in the Court’s view, that under the law as it stood when the offence was committed, the applicant risked confiscation without any additional deductions sought by him, and that this could be reasonably foreseen.  Accordingly, the Court finds no appearance of a violation of Article 7 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant complains also that the confiscation order deprived him of his possessions in an arbitrary and disproportionate manner contrary to Article 1 of Protocol No. 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 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 Government contend that there has been no interference with a right protected by the above provision or, in the alternative, that such an interference was prescribed by law, pursued a legitimate aim and was proportional to that aim.

Having regard to the circumstances under which the applicant had to surrender the amounts in question and its conclusions above under Articles 6 and 7 of the Convention, the Court finds that it can be left open whether there was an interference with the applicant’s possessions within the meaning of the above provision.  In the present case the Court finds it obvious that the possible interference was justified under the second sentence of paragraph 1 of Article 1 in that the fine and the confiscation of the illegal gain was in the public interest and subject to the conditions provided for by law and by the general principles of international law.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 5 of the Convention.

5. Finally, the applicant maintains that the way in which the Supreme Court interpreted Section 75 of the Penal Code meant that he was subjected to unjustified differential treatment when compared to other cases in which the question of confiscation would arise.  He invokes in this respect Article 14 of the Convention which reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government dispute this.  In line with their arguments under Article 1 of Protocol No. 1 to the Convention they contend first that since the facts at issue do not fall within the ambit of Article 1 of Protocol No. 1, the confiscation does not bring about any question in relation to Article 14 of the Convention.  Furthermore, they submit in the alternative, that the applicant has not substantiated that there is a difference in treatment in similar analogous situations.

The Court recalls that according to established case-law Article 14 complements the other substantive provisions of the Convention and its Protocols.  It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by these provisions.  Although the application of Article 14 does not presuppose a breach of one or more of such provisions there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (cf. e.g. the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).

Having regard to its reasoning in respect of the complaint submitted under Article 1 of Protocol No. 1 to the Convention, the Court will leave it open whether the facts at issue fall within the ambit of this provision.  It will for the purposes of this case so assume and that, therefore, Article 14 of the Convention, taken together with Article 1 of Protocol No. 1, applies.

The Court recalls that Article 14 affords protection against discrimination, that is treating differently, without objective and reasonable justification, persons in “relevantly” similar situations (cf. e.g. the Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, § 60).  For a claim of a violation of Article 14 to succeed, it has to be established therefore that the situation of the applicant can be considered similar to that of others who have been better treated.  Furthermore, the Court recalls that for the difference of treatment to be discriminatory within the meaning of this provision it must be found to have no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.  Finally, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent the differences justify a different treatment in law (cf. e.g. the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, pp. 66-67, § 177).

In the present case the Court notes that in all situations to which the applicant has referred there appears to have been no differential treatment in that the question of confiscation pursuant to Section 75 of the Penal Code applied similarly, i.e. with a view to confiscate the proceeds gained from any criminal act.  What the applicant seeks to challenge is the way in which the proceeds are actually calculated in the circumstances of any given case.  Even assuming that there may be certain differences in the methods of calculation the Court does not find it established, on the basis of the material submitted, that the Danish authorities have overstepped their margin of appreciation in assessing whether and to what extent the differences justify a different treatment in law.  Accordingly, the facts of this case do not disclose any appearance of a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President