CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 28540/95                       by J.P.                       against Denmark           The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 5 October 1993 by J.P. against Denmark and registered on 15 September 1995 under file No. 28540/95;         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 1939. He resides in Cannes, France. Before the Commission the applicant is represented by Mr Claus Bergsøe and Mr Tyge Trier, lawyers practising in Copenhagen and Frederiksberg, respectively.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1977 the applicant resided in Italy and bought there a Maserati automobile on 30 March 1977. In August or September 1977 the applicant submitted the car for restoration at the Maserati factory in Modena, Italy, where apparently the car still is today.         In November 1977 the applicant was arrested and detained on remand in Norway charged with certain narcotics related offences. In this connection the Copenhagen police searched the applicant's apartment in Copenhagen and found, inter alia, documents concerning the car. On 22 December 1977 the Copenhagen City Court (Københavns byret) decided according to the applicable provisions of the Administration of Justice Act (retsplejeloven) to seize, with a view to a possible subsequent confiscation, two apartments and the Maserati as these were considered to have been obtained through illegal means. The seizure of the car was done by depositing the purchase and registration papers with the police.         In Norway the applicant was convicted of drug trafficking and sentenced to six years' imprisonment. In 1978 the applicant was sent to Denmark in order to serve the rest of his sentence there.         On 10 May 1979 the Danish police searched a safe deposit box belonging to the applicant in connection with investigations concerning other narcotics offences. Various foreign currency in the amount of 1,407,213 DKK was found and seized. The applicant was charged with drug trafficking and a request for the confiscation of, inter alia, illegal profits was made. By judgment of the Copenhagen City Court of 14 December 1979 the applicant was found guilty of the charges brought against him and he received an additional term of imprisonment. Furthermore, an amount equivalent to 1,500,000 DKK was ordered confiscated. The judgment was upheld by the High Court of Eastern Denmark (Østre Landsret) on 24 September 1980.         On 8 December 1980 the police commenced proceedings against the applicant in order to recover a remaining sum of 65,441.16 DKK out of the above 1,500,000 DKK and for this purpose a reference was made, inter alia, to the seized Maserati automobile. On 11 December 1980 the applicant escaped from prison and disappeared. It appears that the above mentioned proceedings were therefore adjourned.         On 14 October 1982 the applicant was arrested and detained in Spain. He was convicted there on 28 June 1984 and served his prison sentence in Spain. On 1 April 1986 the applicant was extradited to Norway where he remained in detention until 5 December 1986 when he was acquitted of the charges brought against him in that country. He was, however, immediately deported to Denmark, from where he had escaped in 1980, in order to serve the remainder of his sentence there. He was released on probation on 6 February 1987 but arrested on 30 August 1987 again charged with drug trafficking. By judgment of 13 October 1988 the applicant was convicted and sentenced to six years' imprisonment. The judgment was upheld by the Supreme Court (Højesteret) on 15 February 1989.         In the meantime the police had recommenced the proceedings in order to recover the remaining sums which had been confiscated by the High Court judgment of 24 September 1980. This sum now amounted to 90,898.66 DKK. On 12 April 1988 the Copenhagen Bailiff's Court (Københavns byrets fogedafdeling) levied execution for that amount on certain cash money belonging to the applicant. The applicant appealed against this measure but it was upheld by the High Court of Eastern Denmark on 10 September 1990. The Maserati automobile was not mentioned in the above judgment as the police had informed the applicant on 26 May 1989 that the seizure thereof was rescinded. The papers concerning the car were at the same time sent to the applicant's counsel.         On 26 September 1990 the applicant instituted proceedings against the Copenhagen police claiming compensation and damages in the amount of 372,762 DKK equivalent to the costs of garage fees, maintenance and repairs of the Maserati automobile at the Modena factory during its seizure from 1977 until 1989. By judgment of 31 August 1992 the High Court of Eastern Denmark found in favour of the applicant considering that as from 24 September 1980 the seizure of the car had had no basis in law and on an equitable basis awarded him 100,000 DKK. By judgment of 7 April 1993 the Supreme Court overruled this judgment and rejected the applicant's claims. In its judgment the majority of four judges of the Supreme Court stated, inter alia, as follows:   (Translation)         "For the reasons set out in the High Court's judgment we       find that the defendant's possession of the car's papers       from 22 December 1977 (the date of the car's seizure) until       24 September 1980 (the date of the final conviction for the       related offences) cannot constitute the basis for       compensation according to normal Danish compensation rules.         Following the final determination of the sum to be       confiscated by the High Court's judgment of       24 September 1980, the car's papers were returned on       17 November 1980 to the defendant who subsequently, on       8 December 1980, requested that execution be levied for the       remaining part of the sum which had been confiscated       including costs, totalling approximately 90,000 DKK. As an       asset for the execution the car was among the property       referred to. However, the execution proceedings had to be       adjourned due to the applicant's escape from prison on       11 December 1980. A formal request for recovering the car       was not submitted until spring 1989 following the levying       of execution on certain cash in order to cover the       previously established claim of approximately 90,000 DKK.         In these circumstances we find - regardless of the       declarations as to when the seizure ended - that for the       period from 24 September 1980 until 29 May 1989 there is no       reason either to hold the defendant liable for the costs       for garage fees and repairs of the car."         One judge voted in favour of upholding the High Court judgment.     COMPLAINTS         The applicant complains of the continuing seizure of his Maserati automobile. He considers that the seizure was rescinded with his final conviction of 24 September 1980 and that the continuing seizure until 1989 was an unlawful control of the use of his property contrary to Article 1 of Protocol No. 1 to the Convention.     THE LAW         The applicant complains that the de facto seizure of his car until 29 May 1989 was contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention which reads as follows:         "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 applicant does not maintain that the initial seizure was without basis in law. He maintains, however, and the Commission agrees with him on this point, that he was prevented from using his car and that therefore it amounted to a control of the use of his possession. In such   circumstances the Commission considers that it is the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention which is of relevance. The Commission furthermore considers that the seizure in question was a provisional measure intended to ensure that property which appears to be the fruit of unlawful activities carried out to the detriment of the community can subsequently be confiscated, if necessary. The measure as such was therefore justified by the general interest and was proportionate to the aim pursued.         The applicant submits, however, that the control of the use of his property became unlawful at least as from 24 September 1980 when the High Court had rendered its final judgment related to the seizure. He maintains that this judgment rescinded the seizure. The Commission does not agree with the applicant on this point.         The Commission recalls that by final judgment of 24 September 1980 the applicant was sentenced to another term of imprisonment and a total sum of 1,500,000 DKK was ordered confiscated. It turned out that the initial cash seized by the police did not cover this amount and eventually a dispute arose as to the payment of the remaining amount of 90,898.66 DKK. The Commission considers that this dispute was not finally resolved until 10 September 1990 when the High Court of Eastern Denmark decided the matter.         In these circumstances the Commission finds that the de facto seizure had not been rescinded by the High Court judgment of 24 September 1980 as the applicant had not, at that moment in time, paid his debts which was the reason for the car's lawful seizure. As mentioned above this dispute was not finally determined until 10 September 1990 and the Commission is satisfied that the Danish authorities under paragraph 2 of Article 1 of Protocol No. 1 (P1-1-2) to the Convention were entitled to maintain the seizure in the general interest in order to secure the payment of the "penalties" imposed. In fact the car's papers were already returned to the applicant on 26 May 1989.         In these circumstances the Commission finds that the interference with the applicant's property amounted to an enforcement of a law which was necessary to control the use of this property in the general interest within the meaning of Article 1 of Protocol No. 1 (P1-1) 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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber