

		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 On 2 October 1984 his licence to buy arms and ammunition (tilladelse til indkøb) was withdrawn with immediate effect and his licence to trade in arms and ammunition (tilladelse til forhandling) was withdrawn as per 1 April 1985.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)