Krav om tilbagebetaling af sagsomkostninger hos domfældte,
der er ude af stand til at betale, kan være konventionsstridigt
 

  
Af advokat Claus Bonnez

26. januar 2008

En borger klagede i 1994 til den europæiske menneskerettighedsdomstol (EMD) over den behandling, som han havde fået ved de danske domstole i en straffesag, hvor han blandt andet blev idømt 4 måneders fængsel for ulovlig våbenbesiddelse mv. I et af klagepunkterne blev det gjort gældende, at det var i strid med EMRK artikel 6, at den pågældende skulle betale sagens omkostninger vedrørende sagens behandling ved Københavns Byret, og at han blev pålagt at betale disse, selv om han var arbejdsløs.

Kommissionen afviste klagerne. Om spørgsmålet om sagsomkostninger anførte kommissionen følgende (oversat fra engelsk):
 
  "..Med hensyn til sagen ved Københavns Byret klages der også med henvisning til konventionens artikel 6, stk. 3, litra c, over, at klageren blev pålagt at betale 135.000 kr. i sagsomkostninger.

Kommissionen bemærker, at et system, hvorefter en domfældt person pålægges at betale sagsomkostninger herunder salæret til den beskikkede forsvarer ikke er uforeneligt med artikel 6 i konventionen, så længe dette ikke modvirker processens retfærdighed (fairness). Der henvises til Croissant mod Tyskland (§§ 34-35 og 33-38).

I den foreliggende sag finder kommissionen, at spørgsmålet om betaling af sagsomkostninger ikke påvirkede processen, idet klageren havde adgang til et ordentligt forsvar, selv om denne ikke havde tilstrækkelige midler til at betale for forsvaret under sagen. Tilbage står spørgsmålet om, hvorvidt det er foreneligt med artikel 6, stk. 3, litra c i konventionen at søge omkostningerne erstattet hos den domfældte efter, at denne under tvangsfuldbyrdelsen har godtgjort, at den pågældende ikke har tilstrækkelige midler til at betale. 

I denne sammenhæng skal kommissionen henvise til den ovenfor nævnte Croissant-dom (§ 35, og § 37), hvoraf det fremgår, at det påhviler den person, der påberåber sig at være ude af stand til at betale, at godtgøre, at dette er tilfældet. 

I den aktuelle sag er klageren blevet dømt til at erstatte sagsomkostningerne vedrørende sagen ved Københavns Byret. Det fremgår imidlertid ikke, at der er indledt tvangsfuldbyrdelse af kravet. Selvom det er oplyst, at klageren er arbejdsløs, har han ikke fremlagt dokumentation af nogen art, der godtgør, at han er ude af stand til at betale sin gæld.

Under disse omstændigheder finder kommissionen ikke, at oplysningerne i den aktuelle sag afslører tilstedeværelsen af en krænkelse af artikel 6, stykke 3.   ..."

Det kan udledes af kommissionens behandling af spørgsmålet, at kommissionen forudsætter, at personer, der er ude af stand til at betale deres sagsomkostninger, ikke pålægges at gøre dette.

I det følgende bringes passagen fra afgørelsen, hvor spørgsmålet om sagsomkostninger og tilbagebetaling af sagsomkostninger diskuteres. Til sidst bringes hele afgørelsen i uforkortet form.
  "...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. ..."

I det følgende bringes afgørelsen i uforkortet form.
  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)