Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 17314/90

Jakob Koos Leutscher

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 12 October 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 19) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 5) . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 6 - 14) . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 15 - 19) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 20 - 29) . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 20 - 25) . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 26 - 29) . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 30 - 67) . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaints declared admissible

(para. 30) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Points at issue

(para. 31) . . . . . . . . . . . . . . . . . . . . . . . 7

C. As regards Article 6 para. 2 of the Convention

(paras. 32 - 42) . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION

(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 9

D. As regards Article 6 paras. 1 and 3 of the Convention

(paras. 44 - 63) . . . . . . . . . . . . . . . . . . . . 9

1. The applicability of Article 6 paras. 1 and 3

of the Convention

(paras. 45 - 57) . . . . . . . . . . . . . . . . . 9

2. Compliance with Article 6 para. 1

of the Convention

(paras. 58 - 63) . . . . . . . . . . . . . . . . .11

CONCLUSION

(para. 64) . . . . . . . . . . . . . . . . . . . . . . .11

E. Recapitulation

(paras. 65 - 66) . . . . . . . . . . . . . . . . . . .12

TABLE OF CONTENTS

Page

PARTLY DISSENTING OPINION OF Mr. H. DANELIUS

JOINED BY MM. G. JÖRUNDSSON, J.-C. SOYER,

Mrs. G.H. THUNE AND Mr. L. LOUCAIDES. . . . . . . . . . . . . . . .13

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .14

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . .15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Dutch citizen, born in 1927, and resides at

Alicante, Spain.

3. The application is directed against the Netherlands. The

respondent Government are represented by their Agent,

Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign

Affairs.

4. The application concerns the proceedings and decision on the

applicant's claim for compensation under Section 591 (a) of the Dutch

Code of Criminal Procedure. Under these provisions a former accused

may claim compensation for legal and subsidiary costs incurred in

criminal proceedings.

5. Before the Commission, the applicant complains under

Article 6 paras. 1, 2 and 3 of the Convention that the decision on his

request for compensation for costs incurred in the discontinued

criminal proceedings against him violated the principle of presumption

of innocence, and that in the proceedings on this request he did not

receive a fair hearing.

B. The proceedings

6.7. The application was introduced on 29 June 1990 and registered on

17 October 1990.

8. On 2 September 1992, the Commission (Second Chamber) decided to

give notice of the application to the respondent Government inviting

them to submit observations in writing on the admissibility and merits

of the application.

9. The Government submitted their observations on 15 January 1993

and the applicant submitted his observations in reply on 22 May 1993.

10. On 1 December 1993, the Commission declared the applicant's

complaint concerning the proceedings for compensation admissible and

declared inadmissible the remainder of the application concerning the

applicant's complaints relating to the criminal proceedings against him

and to the proceedings concerning his requests for access to certain

documents.

11. On 21 December 1993, the parties were invited, should they so

desire, to submit further observations regarding the merits of the

application.

12. By letter of 28 January 1994, the Government informed the

Commission that they did not wish to submit further observations on the

merits.

13. After having been granted an extension of the time-limit until

28 March 1994, the applicant made further submissions in his letters

of 30 December 1993, 5 March 1994, 17 March 1994, and 5 May 1994.

14. The submissions of 5 May 1994 were submitted after the expiry of

the last time-limit fixed for this purpose. On 12 October 1994 the

Commission decided that these submissions should not be taken into

account.

15. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

16. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

17. The text of this Report was adopted on 12 October 1994 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

18. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its obligations

under the Convention.

19. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

21. On 7 June 1984 the Regional Court (Arrondissementsrechtbank) of

Amsterdam convicted the applicant of tax evasion as regards his taxable

income and assets over the years between 1974 and 1977 and sentenced

him in absentia to one year's imprisonment and a fine of one million

Dutch guilders.

22. In the subsequent appeal proceedings, the Court of Appeal

(Gerechtshof) of Amsterdam on 13 March 1987 declared the public

prosecution inadmissible as it could no longer be held that the

criminal charges against the applicant would be determined within a

reasonable time as required by Article 6 para. 1 of the Convention.

The penal proceedings were consequently discontinued.

23. On 25 June 1987 the applicant submitted a compensation claim

under Sections 591 and 591a of the Code of Criminal Procedure (Wetboek

van Strafvordering) of 156,366.35 Dutch guilders for lawyer's fees,

expenses for witnesses, costs of clerical assistance and travelling and

accommodation expenses he had allegedly incurred in the discontinued

criminal proceedings.

24. Following a hearing by the Court of Appeal in chambers on

20 July 1988 in the presence of the applicant and his lawyer, the Court

of Appeal, in its decision of 16 March 1990, awarded 1,492 guilders for

the costs claimed in respect of two witnesses, 822.09 guilders for the

applicant's administrative costs, and 1,802 guilders for his travel

expenses. The Court of Appeal rejected the claim for the remainder.

25. In respect of the applicant's compensation claim of

61,400 guilders for lawyer's fees, the Court held:

"Uit het procesdossier blijkt dat verzoeker betrokken was

bij een aantal vennootschappen en dat deze vennootschappen

onder leiding dan wel in opdracht van verzoeker zich hebben

schuldig gemaakt aan een aantal fiscale delicten waardoor

de Staat tot aanzienlijke bedragen is benadeeld. De

rechtbank heeft onder meer ter zake van deze feiten

verzoeker veroordeeld (...) De stukken betreffende het

opsporingsonderzoek noch de behandeling van het

verzoekschrift geven aanleiding tot twijfel aan de

juistheid van deze veroordeling. Onder deze omstandigheden

acht het hof, alle omstandigheden in aanmerking genomen,

geen gronden van billijkheid aanwezig voor toekenning van

een vergoeding ter zake van rechtsbijstand."

"It appears from the file that the applicant was involved

in a number of companies and that these companies, under

the management or orders of the applicant, have committed

a number of fiscal offences as a result of which the State

has been deprived of considerable sums. In respect of,

inter alia, these facts the Regional Court has convicted

the applicant (...) Neither the documents concerning the

investigation nor the examination of the request give rise

to doubt as to the correctness of this conviction. Under

these circumstances the court considers, all circumstances

taken into account, that there are no equitable grounds for

awarding compensation for legal assistance."

26. Under Dutch law no appeal lies against the Court of Appeal's

decision of 16 March 1990.

B. Relevant domestic law

27. Section 591 of the Code of Criminal Procedure, insofar as

relevant, provides as follows:

"1. Aan de gewezen verdachte of zijn erfgenamen wordt uit 's

Rijks kas een vergoeding toegekend voor de kosten, welke

ingevolge het bij en krachtens de Wet tarieven in strafzaken

bepaalde ten laste van de gewezen verdachte zijn gekomen,

voorzover de aanwending dier kosten het belang van het onderzoek

heeft gediend of door de intrekking van dagvaardingen of

rechtsmiddelen door het openbaar ministerie nutteloos is

geworden.

2. Het bedrag van de vergoeding wordt op verzoek van de

gewezen verdachte of zijn erfgenamen vastgesteld. Het verzoek

moet worden ingediend binnen drie maanden na het eindigen van de

zaak. De vaststelling geschiedt bij het gerecht in feitelijke

aanleg, waarvoor de zaak tijdens de beëindiging daarvan werd

vervolgd, of anders het laatst werd vervolgd, en wel door de

kantonrechter of door de voorzitter van het gerecht. De

voorzitter kan een der raadsheren of een der rechters die over

de zaak hebben gezeten, daartoe aanwijzen. De kantonrechter of

rechter geeft voor het bedrag van de vergoeding een bevelschrift

van tenuitvoerlegging af.

3. Degenen, die het verzoek hebben ingediend, kunnen worden

gehoord. Indien zij dit verlangen, worden zij gehoord, althans

opgeroepen. Zij kunnen zich doen bijstaan door een advocaat.

Artikel 24, laatste lid, is van toepassing.

(...)."

"1. To the former suspect or his heirs compensation will be

awarded at the expense of the State for costs, which are to be

borne by the former suspect pursuant to the provisions of the Act

on Fees in Criminal Cases, insofar as the appropriation of these

costs has served the investigation or has become useless by the

withdrawal of summonses or remedies by the public prosecution.

2. The amount of the compensation shall be determined at the

request of the former suspect or his heirs. This request must be

submitted within three months following the termination of the

case. The determination shall be made by the trial court which

has dealt with or, otherwise, was dealing with the case at the

moment it came to an end, and in fact by the District Court judge

or by the president of the court. To this end the president can

appoint one of the judges of the Court of Appeal or the Regional

Court, who have dealt with the case. The District Court judge or

the Regional Court judge will issue an execution order for the

amount of the compensation.

3. Petitioners can be heard. If they so wish they will be

heard, at least summoned. They can be assisted by a lawyer.

Section 24, last paragraph, applies.

(...)."

28. The last paragraph of Section 24 of the Code of Criminal

Procedure provides:

"De raadsman of de advocaat wordt bij de verhoren in de

gelegenheid gesteld de nodige opmerkingen te maken."

"The counsel or the lawyer will be provided with the opportunity

to make the necessary statements at the hearings."

29. Section 591 (a) of the Code of Criminal Procedure, insofar as

relevant, provides as follows:

"1. Indien de zaak eindigt zonder oplegging van straf of

maatregel (...) wordt aan de gewezen verdachte of zijn erfgenamen

uit 's Rijks kas een vergoeding toegekend voor zijn ten behoeve

van het onderzoek en de behandeling der zaak gemaakte reis- en

verblijfkosten, berekend op de voet van het bij en krachtens de

Wet tarieven in strafzaken bepaalde.

2. Indien de zaak eindigt zonder oplegging van straf of

maatregel (...) kan aan de gewezen verdachte of zijn erfgenamen

uit 's Rijks kas een vergoeding worden toegekend voor de schade

welke hij ten gevolge van tijdverzuim door het gerechtelijk

vooronderzoek en de behandeling der zaak ter terechtzitting

werkelijk heeft geleden, alsmede in de kosten van een raadsman.

Een vergoeding voor de kosten van een raadsman gedurende de

verzekering en de voorlopige hechtenis is hierin begrepen. Een

vergoeding voor deze kosten kan voorts worden toegekend in het

geval dat de zaak eindigt met oplegging van straf of maatregel

op grond van een feit, waarvoor voorlopige hechtenis niet is

toegelaten.

(...)

4. De artikelen 90 en 591, tweede tot en met vijfde lid zijn van

overeenkomstige toepassing."

"1. If a case comes to an end without imposition of a

punishment or measure (..) compensation will be granted to the

former suspect or his heirs for his travel and subsistence costs

incurred for the investigation and the examination of his case,

calculated on the basis of the Act on Fees in Criminal Cases.

2. If a case comes to an end without imposition of a

punishment or measure (...) compensation may be granted to the

former suspect or his heirs for the damage which he has actually

suffered as a result of the loss of time due to the judicial

investigation and the examination of his case at the trial, as

well as the costs of counsel. This will include compensation for

the costs of counsel during the detention on remand. A

compensation for such costs may furthermore be granted when a

case ends with imposition of a punishment or measure on the basis

of a fact for which detention on remand is not allowed.

(....)

4. Sections 90 and 591, paras. 2 to 5, apply by analogy."

30. Section 90 of the Code of Criminal Procedure provides as follows:

"1. De toekenning van een schadevergoeding heeft steeds plaats,

indien en voorzover daartoe, naar het oordeel van de rechter,

alle omstandigheden in aanmerking genomen, gronden van

billijkheid aanwezig zijn.

2. Bij de bepaling van het bedrag wordt ook rekening gehouden

met de levensomstandigheden van de gewezen verdachte.

3. De beslissing is met redenen omkleed. De beschikking wordt

onverwijld aan de gewezen verdachte of aan zijn erfgenamen

betekend, doch, indien het een afwijzende beslissing betreft, met

weglating van de redenen. In dat geval kan de gewezen verdachte

of kunnen zijn erfgenamen van de redenen ter griffie inzage

bekomen."

"1. Compensation is awarded where, and insofar as, in the

opinion of the judge, taking all circumstances into account,

there are equitable grounds for it.

2. In the determination of the amount also the living

conditions of the former suspect are being taken into account.

3. The decision is reasoned. The decision is immediately

notified to the former suspect or to his heirs, but, in case of

a rejection, with omission of the reasons. In that case the

former suspect or his heirs can consult the reasons at the

registry."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

31. The Commission declared admissible the applicant's complaints

under Article 6 paras. 1, 2 and 3 (b) (Art. 6-1, 6-2, 6-3-b) of the

Convention that, in the proceedings before the Court of Appeal on his

request for compensation for, inter alia, reimbursement of his lawyer's

fees following the discontinuation of the criminal proceedings against

him, he did not receive a fair hearing, and that the Court of Appeal's

decision of 16 March 1990 violated the principle of presumption of

innocence.

B. Points at issue

32. The points at issue are accordingly:

- whether there has been a violation of Article 6 para. 2

(Art. 6-2) of the Convention; and

- whether there has been a violation of Article 6 paras. 1 and

3 (b) (Art. 6-1, 6-2, 6-3-b) of the Convention.

C. As regards Article 6 para. 2 (Art. 6-2) of the Convention

33. Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

" Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

34. The applicant alleges a violation of this provision in that,

despite the discontinuation of the criminal proceedings against him,

the Court of Appeal, when rejecting his request for compensation, based

its decision, inter alia, on the finding that neither the documents

concerning the investigation nor the examination of the applicant's

request gave rise to doubt as to the correctness of his conviction by

the Regional Court.

35. The Government submit that the Court of Appeal's decision of

16 March 1990 did not violate the principle of presumption of innocence

as the Court of Appeal in reaching this decision took all relevant

facts into account and merely intended to state that, although the

criminal proceedings had been discontinued, there still existed a

serious suspicion that the applicant had committed the offences in

question.

36. The Commission recalls that, despite the wording of

Article 6 para. 2 (Art. 6-2) of the Convention, it has consistently

interpreted this provision as also applying to situations where the

person concerned is not or no longer formally charged with a criminal

charge. Furthermore the presumption of innocence is to be observed not

only by the criminal court trying a case, but also by other

authorities, including courts other than those which are competent to

determine a criminal charge (cf. Sekanina v. Austria, Comm. Report

20.5.92, para. 36, Eur. Court H.R. Series A no. 266, p. 20).

37. However, the Commission also recalls that neither Article

6 para. 2 (Art. 6-2) nor any other provision of the Convention gives

a person "charged with a criminal offence" a right to reimbursement of

his costs where proceedings taken against him are discontinued (cf. Eur

Court. H.R., Lutz judgment of 25 August 1987, Series A no. 123, p. 25,

para. 59).

38. The refusal to fully reimburse the applicant for his costs and

expenses accordingly did not in itself offend the presumption of

innocence.

39. Nevertheless, a decision refusing reimbursement of an accused's

necessary costs and expenses following termination of proceedings may

raise an issue under Article 6 para. 2 (Art. 6-2) if supporting

reasoning amounts in substance to a determination of the accused's

guilt without his having previously been proved guilty according to

law. In this respect the Convention organs distinguish between

statements which reflect the opinion that the person concerned is

guilty, and statements which merely describe a state of suspicion. The

former infringe the presumption of innocence, whereas the latter have

been regarded as unobjectionable in various situations examined by the

Convention organs (cf. Sekanina v. Austria, Comm. Report 20.5.92, loc.

cit., p. 21, paras. 39-40).

40. The Commission observes that the refusal complained of was based

on Section 591 (a) in conjunction with Section 90 of the Code of

Criminal Procedure. In applying these provisions the competent judicial

authorities, pursuant to Section 90 of the Code of Criminal Procedure,

decide the matter on an equitable basis and have a degree of

discretion, in that they are under an obligation to take all

circumstances into account.

41. The Commission further observes that the applicant had been

convicted and sentenced in the first instance proceedings before the

Regional Court of Amsterdam.

42. The Commission finds that the refusal to award the applicant's

claim for compensation in full does not amount to a penalty or a

measure that can be equated with a penalty. Even if the terms used by

it may appear ambiguous and unsatisfactory, the Court of Appeal, in

stating that it appeared from the file that fiscal offences had been

committed under the management or orders of the applicant and that it

had found no element for doubting the correctness of the applicant's

conviction by the Regional Court, confined itself in substance to

noting the existence of reasonable suspicion that the applicant had

been involved in a number of fiscal offences (see para. 24) and did

not, as such, contain any finding of guilt.

43. The Commission is therefore of the opinion that the Court of

Appeal's decision of 16 March 1990 did not offend the presumption of

innocence guaranteed to the applicant under Article 6 para. 2

(Art. 6-2) of the Convention.

CONCLUSION

44. The Commission concludes by eight votes to five that there has

been no violation of Article 6 para. 2 (Art. 6-2) of the Convention.

D. As regards Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the

Convention

45. Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention,

insofar as relevant, provides as follows:

"1. In the determination of his civil rights and obligations

(...), everyone is entitled to a fair (...) hearing (...) by an

independent and impartial tribunal (...).

(...)

3. Everyone charged with a criminal offence has the following

minimum rights:

(...)

b. to have adequate time and facilities for the

preparation of his defence;

(...)."

1. Applicability of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the

Convention

46. With regard to Article 6 para. 3 (Art. 6-3) of the Convention,

the Commission first notes that the applicant, when filing his request

for compensation on 25 June 1987, was no longer charged with a criminal

offence within the meaning of Article 6 para. 3 (Art. 6-3) of the

Convention, since as a result of the Court of Appeal's decision of

13 March 1987 the criminal proceedings against him had been

discontinued.

47. In these circumstances the Commission finds that the proceedings

at issue fall outside the scope of Article 6 para. 3 (Art. 6-3) of the

Convention.

48. However, it remains to be examined whether the proceedings

concerned the determination of the applicant's civil rights or

obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

49. The applicant submits that the proceedings concerning his request

for compensation for, inter alia, his lawyer's fees involved a

determination of a "civil right" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention, since Dutch law

provides a possibility to be awarded compensation for certain expenses

incurred in criminal proceedings where these proceedings end without

the imposition of a punishment or a measure.

50. The Government submit that the applicant's request for

compensation can neither be seen as based on an established right under

Dutch law nor as concerning a "civil right" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention, as under Section 591

(a) para. 2 of the Code of Criminal Procedure compensation may be

awarded for time wasted and lawyer's fees insofar as the court finds

equitable grounds for such an award. It is therefore fully dependent

on the discretionary finding by a court that there are equitable

grounds for granting it. Such equitable grounds were not found insofar

as the applicant's claim for compensation was rejected.

51. Referring to a decision of the Commission (No. 10923/87,

Dec. 6.5.85, unpublished), the Government submit that a claim for

compensation under the Code of Criminal Procedure does not require that

the law has been violated and thus is in no way assimilated or

comparable to private law claims for damages relating to tort

liability.

52. The Government therefore consider that the proceedings at issue

fell outside the scope of Article 6 para. 1 (Art. 6-1) of the

Convention.

53. The Commission must, in order to determine this issue, ascertain

whether there was a dispute ("contestation" in the French text)

concerning a "right" which can be said, at least on arguable grounds,

to be recognised under domestic law. The dispute must be a genuine and

serious one; it may relate not only to the actual existence of a right

but also to its scope and the manner of its exercise, and the result

of the proceedings must be directly decisive for the right in question

(cf. Eur. Court H.R., Skärby judgment of 28 June 1990, Series A

no. 180-B, pp. 36 and 37, paras. 27 and 29).

54. As to the question whether or not the "right" claimed by the

applicant was of a "civil" character, the Commission recalls that the

concept of "civil rights and obligations" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention is not to be interpreted

solely by reference to the respondent State's domestic law and that

Article 6 para. 1 (Art. 6-1) applies irrespective of the parties'

status, be it public or private, and of the nature of the legislation

governing the manner in which the dispute is to be determined (cf. Eur.

Court H.R., Baraona judgment of 8 July 1987, Series A no. 122, pp.

17-18, para. 42). It is sufficient that the action was "pecuniary" in

nature and that it was founded on an alleged infringement of rights

which were likewise pecuniary rights (cf. Eur. Court H.R., Editions

Périscope judgment of 26 March 1992, Series A no. 234-B, pp. 65-66,

paras. 39-40) or that the outcome of the proceedings was "decisive for

private rights and obligations" (cf. Eur. Court H.R., X. v. France

judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 30).

55. The Commission finds that there was a "dispute" in the present

case. The dispute was over the question to what extent the applicant

should be awarded compensation for the damage flowing from the criminal

proceedings against him.

56. As regards the question whether there was a "right", the

Commission notes that, according to the wording of Section 591 (a) of

the Code of Criminal Procedure, the former suspect in a case which has

ended without imposition of a punishment or a measure is entitled under

Dutch law to seek compensation for the legal and subsidiary costs

incurred in the criminal proceedings against him. The applicant could

thus claim on arguable grounds to have a right that is recognised under

Dutch law. There was thus, in the Commission's opinion, a "right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

57. As to the question whether or not the right at issue is "civil",

the Commission notes that the right claimed consisted of financial

reparation for pecuniary damage. It was therefore a "civil right",

notwithstanding the origin of the dispute and the jurisdiction of the

criminal courts (cf. Eur. Court H.R., Neves e Silva judgment of

27 April 1989, Series A no. 153-A, p. 14, para. 37).

58. The Commission therefore finds that Article 6 para. 1 (Art. 6-1)

of the Convention applied to the proceedings at issue.

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

--------------------------------------------------------------

59. The applicant complains that he did not receive a fair hearing

before the Court of Appeal on his request for compensation under the

Code of Criminal Procedure, in that the preceding criminal proceedings

against him, in which he had been convicted in first instance and to

which conviction the Court of Appeal referred, were based on incorrect

facts whilst he was denied the possibility to prove this.

60. The Commission recalls that in its decision on admissibility of

1 December 1993 it declared inadmissible the applicant's complaints

relating to the criminal proceedings against him and to the proceedings

concerning his requests for access to certain fiscal documents.

61. As regards the fairness of the proceedings before the Court of

Appeal on the applicant's request for compensation, the Commission

recalls that the conformity of a trial with the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention must be examined in the

light of the entire trial. The effect of Article 6 para. 1 (Art. 6-1)

is, inter alia, to place the "tribunal" under a duty to conduct a

proper examination of the submissions, arguments and evidence adduced

by the parties, without prejudice to its assessment of whether they are

relevant to its decision (cf. Eur. Court H.R., Kraska judgment of

19 April 1993, Series A no. 254-B, p. 49, para. 30).

62. The Commission notes that the applicant, who was assisted by his

lawyer, was heard by the Court of Appeal before it determined his

request for compensation.

63. The Commission has not found any substantiated allegations in the

applicant's submissions which could justify the conclusion that he has

been provided with insufficient opportunity to address the Court of

Appeal or to submit whatever he found relevant to the outcome of the

proceedings at issue. Moreover, having regard to the fact that in the

preceding criminal proceedings against the applicant the Court of

Appeal had declared the prosecution inadmissible, the Commission finds

no indication that the Court of Appeal was biased in its examination

of the applicant's request for compensation.

64. Considering the proceedings before the Court of Appeal as a

whole, the Commission consequently finds no basis for the conclusion

that they cannot be regarded as fair.

CONCLUSION

65. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

66. The Commission concludes, by eight votes to five, that there has

been no violation of Article 6 para. 2 (Art. 6-2) of the Convention

(para. 43).

67. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 64).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

(Or. English)

PARTLY DISSENTING OPINION OF Mr. H. DANELIUS

JOINED BY MM. G. JÖRUNDSSON, J.-C. SOYER,

Mrs. G.H. THUNE AND Mr. L. LOUCAIDES

In my opinion there has been in the present case a violation of

the applicant's right under Article 6 para. 2 of the Convention to be

presumed innocent, for the following reasons.

The applicant was convicted of tax evasion by the Regional Court,

but the proceedings were pursued, upon appeal, before the Court of

Appeal, which finally discontinued the proceedings on the ground that

the criminal charge against the applicant had not been determined

within a reasonable time as required by Article 6 para. 1 of the

Convention. This means that the question of whether or not the

applicant was guilty of the offences with which he was charged was left

unanswered and that the applicant was entitled, under Article 6 para. 2

of the Convention, to be presumed innocent.

When subsequently rejecting a compensation claim submitted by the

applicant, the Court of Appeal stated that it appeared from the file

that certain companies, under the management or orders of the

applicant, had committed a number of fiscal offences and that neither

the documents concerning the investigation nor the examination of the

request for compensation created any doubt about the correctness of the

applicant's conviction by the Regional Court. This statement cannot be

interpreted as only referring to a remaining suspicion against the

applicant. It must be read as meaning that, in the Court of Appeal's

view, the applicant's conviction in first instance would have been

upheld on appeal if the appeal proceedings had not been discontinued.

Such an evaluation of what would have been the outcome of the appeal

proceedings cannot be considered to be consistent with the applicant's

right under Article 6 para. 2 to be presumed innocent in respect of

offences of which he had not been convicted by a final judgment.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

29 June 1990 Introduction of the application

17 October 1990 Registration of the application

Examination of admissibility

2 September 1992 Commission's decision to communicate the

application to the respondent Government

and to invite them to submit observations

on admissibility and merits of the

application

15 January 1993 Government's observations

22 May 1993 Applicant's observations in reply

8 January 1993 Commission's decision to declare the

application partly admissible and partly

inadmissible

Examination of the merits

21 December 1993 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

28 January 1994 Government's statement that they do not

wish to submit further observations

5 March 1994 Applicant's further observations

17 March 1994 Applicant's further observations

13 April 1994 Government's reply to applicant's

submissions of 17 March 1994

5 May 1994 Applicant's further observations

6 September 1994 Commission's consideration of state of

proceedings

12 October 1994 Commission's deliberations on the merits,

final vote and adoption of the Report

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LEUTSCHER v. THE NETHERLANDS

LEUTSCHER v. THE NETHERLANDS

LEXI