CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 23456/94                       by Leonard HARDY                       against Ireland         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, 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 14 September 1994 by Leonard HARDY against Ireland and registered on 14 February 1994 under file No. 23456/94;         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 an Irish citizen, born in 1961 and is currently in Portlaoise prison, Ireland.         The applicant is represented by Mr. Frank McDonnell, a solicitor practising in County Louth, Ireland.         The facts of this case, as submitted by the applicant, may be summarised as follows.         On 12 July 1989 the applicant arrived in Rosslare, Ireland having travelled from Cherbourg, France. He was stopped at the customs post and his bags were searched. Three pounds of Sodium Chlorate and ten mercury tilt switches were found in a bag the applicant was carrying. The applicant was subsequently arrested on suspicion of having committed an offence under Section 4 of the Explosive Substances Act 1883 ("the 1883 Act"), the relevant provisions of which are:         "Any person who .... knowingly has in his possession ..... any       explosive substance, under such circumstances as to give rise to       a reasonable suspicion that he ..... does not have it in his       possession .... for a lawful object, shall, unless he can show       that he .... had it in his possession .... for a lawful object,       be guilty of a felony......"         On 16 February 1990 the applicant was convicted by the Special Criminal Court of an offence contrary to the above Section 4 of the 1883 Act and was sentenced to five years penal servitude on 22 February 1990.           The presiding judge in the Special Criminal Court, in his judgment dated 16 February 1990, noted that the elements of the offence outlined in the above Section 4 of the 1883 Act, to be proven beyond all reasonable doubt by the prosecution, are:         -that the accused has possession of explosive substances (as       defined statutorily)       -knowingly       -under such circumstances as to give rise to a reasonable        suspicion that he does not have the substances in his possession        for a lawful object.         The judge went on to accept, from the evidence adduced by the prosecution, that all of those elements had in fact been proven by the prosecution beyond all reasonable doubt. In concluding that the applicant did not have these substances in his possession for a lawful object, the judge made particular reference to the facts (unchallenged by the applicant) that the applicant was travelling on a false passport, was found in possession of both Sodium Chlorate and the mercury tilt switches, and subsequently attempted to evade detention.         The applicant appealed to the Court of Criminal Appeal. His appeal was disallowed on 22 June 1992.         The applicant then challenged, inter alia, the constitutionality of Section 4 of the 1883 Act before the High Court claiming that the section was inconsistent with a fundamental principle of Irish criminal law, namely the presumption of innocence, and as such was unconstitutional. The High Court disallowed the applicant's challenge.         Mr. Justice Flood of the High Court in page 10 of his judgment of the 10 September 1992, while not commenting specifically on the various elements of the offence under Section 4 of the 1883 Act (outlined above), noted the following:         "In the first instance, in my opinion what has been described as       "the persuasive burden of proof" in Irish law always remains upon       the State. Secondly, where an evidential burden may be       transferred in relation to something which is peculiarly within       the knowledge of an accused person, the maximum obligation cast       upon the accused in Irish law, is to raise a doubt - a doubt of       substance - in relation to the prosecution case."         The issue of the alleged reversal of the presumption of innocence became the core argument of the applicant on appeal to the Supreme Court, which also found against the applicant in three separate judgments delivered on 18 March 1993.         In particular Mr. Justice Egan of the Supreme Court in page 4 of his judgment of 18 March 1993 noted the elements of the offence under Section 4 of the 1883 Act (outlined above) and commented as follows:         "If, however, all the above ingredients are proved beyond all       reasonable doubt the accused must be convicted unless "he can       show that he .... had it in his possession .... for a lawful       object". Prima facie these words place an onus on the accused but       they are in a saving or excusatory context and this is of       relevance. Insanity, for instance, is something which must be       established by an accused person in a criminal prosecution if he       wishes to rely on it."   COMPLAINTS         The applicant complains that Section 4 of the 1883 Act, under which he was convicted, effectively removes the presumption of innocence to which he is entitled under Article 6 para. 2 of the Convention.   THE LAW         The applicant argues that the alleged removal of the presumption of innocence by Section 4 of the 1883 Act violates Article 6 para. 2 (Art. 6-2) of the Convention.   Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission recalls that the Convention does not prohibit presumptions of fact and law in principle. Rather, Article 6 para. 2 (Art. 6-2) requires States to confine presumptions of fact and law, provided for in the criminal law, within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. The Commission also recalls that it must therefore consider whether such reasonable limits were applied to the applicant in a manner compatible with the presumption of innocence (Eur.Court H.R., Salabiaku judgment of 7 October 1988, Series A no. 141, pp. 15-18, paras. 28-30).         The Commission notes that the presiding judge in the Special Criminal Court, in his judgement dated 16 February 1990, accepted that the onus of proof was on the prosecution to establish beyond all reasonable doubt all of the elements of the offence.         The Commission also notes that the judge went on to outline the elements of the offence under Section 4 of the 1883 Act (outlined above) and accepted, from the evidence adduced by the prosecution, that all of those elements had in fact been proven by the prosecution beyond all reasonable doubt. In concluding that the applicant did not have these substances in his possession for a lawful object, the judge made particular reference to the facts (unchallenged by the applicant) that the applicant was travelling on a false passport, was found in possession of both Sodium Chlorate and the mercury tilt switches, and subsequently attempted to evade detention.         The Commission further notes that, in the context of the constitutional challenge, the High Court and the Supreme Court emphasised that under Irish criminal law the persuasive burden of proof (that is, beyond all reasonable doubt) remains on the State and where an evidential burden of proof is transferred to the accused (as in Section 4 of the 1883 Act) it is in a "saving or excusatory context" and the maximum obligation on the accused in such circumstances is merely to raise a doubt of substance in relation to the prosecution's case.         The Commission therefore finds that the applicant's conviction under Section 4 of the 1883 Act does not conflict with the presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2) of the Convention. It follows that the application must be rejected as being 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 First Chamber     President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)