Hop til indhold
Supreme Court of Denmark

Search and seizure 

Case no. 139/2012
Judgment 31 October 2012

The Prosecution
vs.
T

Search and seizure could be carried out despite the fact that there was no express authority at the suspected time of the crime

A company was suspected of having transferred money to Iran in contravention of the rules in a regulation adopted in accordance with article 215 of the Treaty on the Functioning of the European Union (TFEU).

When the suspected money transfers took place, there was authority in section 110c(3) of the Danish Penal Code to punish breach of provisions in regulations adopted in accordance with articles 60 and 301 of the Treaty Establishing the European Community (TEC). Section 110c(3) of the Penal Code has later been extended to include breach of provisions in regulations issued in accordance with article 215 TFEU. Since section 110c(3) of the Danish Penal Code was not amended when the new treaty entered into force, for a period of time, there was no express authority to punish breach of regulations issued in accordance with article 215 TFEU.

The Supreme Court stated that section 110c(3) of the Penal Code had to be interpreted to the effect that the authority to punish breach of provisions in regulations adopted in accordance with articles 60 and 301 TEC also covers breach of provisions in regulations adopted in accordance with article 215 TFEU, which could also have been adopted in accordance with articles 60 and 301 TEC. The reasons for making breach of such regulations a criminal offence apply in the same way and to the same extent as before the provisions in the treaties were moved in connection with various other amendments therein. In that respect, when articles 60 and 301 TEC were transferred to article 215 TFEU, the substance of the provisions did not change.  It would be pure formalism not to regard breach of provisions in regulations adopted pursuant to the new article 215 as being punishable just as breach of provisions in regulations adopted pursuant to the former articles 60 and 301. Consequently, the Supreme Court found that transferring money in contravention of the relevant regulation was punishable under section 110c(3), cf. section 1, of the Penal Code.

Since the company was accordingly with reasonable cause suspected of having breached section 110c(3) of the Penal Code, search and seizure could be carried out at the company's premises.

The High Court and the District Court had come to the opposite conclusion.

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