CEDH · CASELAW;REPORTS;ENG — 14 avril 1994

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 17293/90                           Mohammad Saleem Sultan                                   against                                   Denmark                          REPORT OF THE COMMISSION                         (adopted on 14 April 1994)                              TABLE OF CONTENTS                                                                    Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1   PART I   :   STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3   PART II :   SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Mohammad Saleem Sultan against Denmark on 16 February 1990. It was registered on 15 October 1990 under file No. 17293/90.         The applicant was represented by Mr. Thorkild Høyer, a lawyer practising in Copenhagen.         The Government of Denmark were represented by their Agent, Mr. Laurids Mikaelsen.   2.     On 30 June 1993 the Commission (Second Chamber) declared the application partly admissible and partly inadmissible. It was furthermore decided to relinquish jurisdiction in favour of the plenary Commission which then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows :         "In the event of the Commission accepting a petition referred to       it :         a.    it shall, with a view to ascertaining the facts, undertake       together with the representatives of the parties an examination       of the petition and, if need be, an investigation, for the       effective conduct of which the States concerned shall furnish all       necessary facilities, after an exchange of views with the       Commission ;         b.    it shall at the same time place itself at the disposal of       the parties concerned with a view to securing a friendly       settlement of the matter on the basis of respect for Human Rights       as defined in this Convention."   3.     The Commission found that the parties had reached a friendly settlement of the case and on 14 April 1994 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.         The following members were present when the Report was adopted :         MM.   S. TRECHSEL, Acting President            C.A. NØRGAARD            A. WEITZEL            F. ERMACORA            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.P. PELLONPÄÄ            B. MARXER            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            I. BÉKÉS            J. MUCHA            E. KONSTANTINOV            D. SVÁBY                                   PART I                           STATEMENT OF THE FACTS   4.     Prior to February 1988 the Danish narcotics police received information indicating that the applicant was in possession of two kilogrammes of heroin intended for sale in Denmark. An application was submitted to the Copenhagen City Court (Københavns Byret) under section 754 c of the Administration of Justice Act (Retsplejeloven; hereinafter AJA) requesting permission to use an undercover agent in order to prevent the sale and to arrest the applicant.   On 3 February 1988 the City Court sitting with one judge, judge ME, considered the request under section 754 a of the AJA and authorised the police to use an undercover agent for the purpose mentioned.   5.     On 4 February 1998, the applicant was arrested, suspected of drug trafficking. He was detained on remand.   6.     The applicant's trial commenced in November 1988 in the Copenhagen City Court sitting with one professional judge, judge ME, and two lay judges. On the basis of the available evidence the City Court, on 29 November 1988, acquitted the applicant of two counts of handling stolen goods but found him guilty of charges concerning drug trafficking and illegal possession of firearms. He was sentenced to three and a half years imprisonment.   7.     The applicant appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret).   In his appeal he maintained inter alia that the judgment should be quashed since the presiding judge, judge ME, had previously, on 3 February 1988, authorised the police to use an undercover agent in accordance with section 754 a of the AJA.   8.     The High Court pronounced judgment on 20 October 1989.   The Court first rejected the applicant's request for a new trial.   It found that the fact that judge ME had authorised the police to use an undercover agent prior to his participation in the trial before the City Court did not disqualify him. Furthermore, after an evaluation of the evidence before it, the High Court also found the applicant guilty of the charges to the extent found by the City Court.   The sentence was upheld.   9.     The applicant's subsequent request for leave to appeal to the Supreme Court (Højesteret) was rejected on 11 April 1990.   10.    Before the Commission the applicant complained that the Copenhagen City Court was not an impartial tribunal within the meaning of Article 6 para. 1 of the Convention due to the fact that the presiding judge, judge ME, had prior to the trial authorised the use of an undercover agent.                                   PART II                              SOLUTION REACHED   11.    Following the decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   12.    In accordance with the usual practice, the Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement. Following an exchange of correspondence, the applicant's lawyer submitted the following letter on 12 January 1994:   (Translation)         "With reference to my letters to the Commission of 1 December and       22 December 1993 and to the discussions with the Ministry of       Justice, I should inform you, as already indicated by telephone,       that my client in the circumstances will accept a settlement       against the payment of DKK 20,000.00 (without this being set off       against cost etc.) plus cost and expenses related to the       proceedings before the Commission."   (Danish)         "Idet jeg henviser til mine skrivelser af 1/12 og 22/12 1993 til       Kommissionen samt endvidere til drøftelser med Justitsministeriet       skal jeg herved som allerede telefonisk meddelt oplyse, at min       klient efter omstændighederne vil være inforstået med at forlige       sagen mod betaling af kr. 20.000,00 (uden modregning for       sagsomskostninger m.m.) samt min klients omkostninger i       forbindelse med sagens behandling for Kommissionen."   13.    In reply to this the Government submitted the following letter on 11 February 1994:         "In reply to [the Commission's] letter of 14 January 1994       regarding the above mentioned application I can inform you that       the Government of Denmark is prepared to accept the terms for a       friendly settlement of the case proposed in your letter or any       other proposal from the Commission of Human Rights not exceeding       the payment of a total amount of DKK 20,000.00 plus cost and       expenses related to the proceedings before the Commission. It is       a condition, however, that the payment is made ex gratia, and       that the Government's acceptance of these terms does not imply       the recognition of any legal obligation. The Government will be       willing to accept, as requested by the applicant, that the       payment will not be set off against any claim of costs, etc."   14.    By letter of 23 February 1994 the applicant's lawyer submitted as follows:   (Translation)         "With reference to [the Commission's] letter of       22 [February 1994] I should inform you that the offer made is       accepted with the conditions indicated. I should inform you that       my fee amounts to DKK 10,000.00, VAT not included."   (Danish)         "På foranledning af Deres skrivelse af 22. ds. skal jeg herved       meddele, at det fremsatte tilbud accepteres på de anførte vilkår.       Jeg kan oplyse, at mit salærkrav udgør kr. 10.000,00 ekskl.       moms."   15.    Finally, by letter of 17 March 1994 the Government submitted as follows:         "In reply to [the Commission's] letter of 24 February 1994, and       further to my letter of 11 February 1994 regarding the above       mentioned application, I can inform you that the Government of       Denmark can accept to pay an amount of DKK 10,000.00 plus VAT       (moms) for costs and expenses as part of a friendly settlement       of the matter."   16.    At its session on 14 April 1994, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   17.    For these reasons, the Commission adopted the present Report.   Secretary to the Commission       Acting President of the Commission          (H.C. KRÜGER)                         (S. TRECHSEL)