A.M. v. the NETHERLANDS ; J.V.Z. v. the NETHERLANDS
Doc ref: 15346/89;15379/89 • ECHR ID: 001-45654
Document date: July 4, 1994
- Inbound citations: 9
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15346/89
A.M.
Application No. 15379/89
J.v.Z.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 4 July 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 23) . . . . . . . . . . . . . . . . . . . .1
A. The applications
(paras. 2 - 6) . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 7 - 18) . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 19 - 23). . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 24 - 40) . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 24 - 34) . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 35 - 40) . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 41 - 79) . . . . . . . . . . . . . . . . . . . 11
A. Complaints declared admissible
(para. 41) . . . . . . . . . . . . . . . . . . . 11
B. Points at issue
(para. 42) . . . . . . . . . . . . . . . . . . . 11
C. As regards Article 6 para. 1 of the Convention
(paras. 43 - 73) . . . . . . . . . . . . . . . . 11
1. The applicability of Article 6 para. 1
of the Convention
(paras. 44 - 54) . . . . . . . . . . . . . . 11
2. Compliance with Article 6 para. 1
of the Convention
(paras. 55 - 72) . . . . . . . . . . . . . . 13
CONCLUSION
(para. 73) . . . . . . . . . . . . . . . . . . . 16
D. As regards Article 13 of the Convention
(paras. 74 - 77) . . . . . . . . . . . . . . . . 16
CONCLUSION
(para. 77) . . . . . . . . . . . . . . . . . . . 16
E. Recapitulation
(paras. 78 - 79) . . . . . . . . . . . . . . . . 16
DISSENTING OPINION OF MM. C.A. NØRGAARD, F. ERMACORA,
H.G. SCHERMERS, F. MARTINEZ, MRS. J. LIDDY,
MM. M.P. PELLONPÄÄ, I. BÉKÉS, J. MUCHA AND D. SVÁBY . . . . 17
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 18
APPENDIX II : PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION No. 15346/89. 20
APPENDIX III : PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION No. 15379/89. 27
APPENDIX IV : FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATIONS. . . . . 33
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 applications
2. The first applicant is a Dutch citizen, born in 1926 and at
present residing in Rijswijk, the Netherlands. He is represented before
the Commission by Mr. A.J.L.J. Pfeil, a lawyer practising in
Maastricht, the Netherlands.
3. The second applicant is a Dutch citizen, born in 1919 and at
present residing in Meeuwen-Gruitrode, Belgium. He is represented by
Mr. A. Duynstee, a lawyer practising in Maastricht.
4. The applications are directed against the Netherlands. The
respondent Government are represented by their Agent,
Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign
Affairs.
5. The applications relate to the proceedings concerning the
applicants' claims under Sections 89, 591 and 591 (a) para. 2 of the
Dutch Code of Criminal Procedure. Under these provisions an acquitted
accused may claim compensation for detention on remand (Section 89 of
the Code) and the reimbursement of legal and subsidiary costs
(Section 591 of the Code).
6. Before the Commission, the applicants complain under
Article 6 para. 1 of the Convention that their respective requests for
compensation for detention on remand and reimbursement of their costs
were not examined fairly and in public by an impartial tribunal.
The first applicant also invokes Article 13 of the Convention on
this point.
B. The proceedings
7. The first application was introduced on 8 June 1989 and
registered on 4 August 1989. The second application was introduced on
2 June 1989 and registered on 18 August 1989.
8. On 1 April 1992, the Commission (Second Chamber) decided to give
notice of the applications to the respondent Government inviting them
to submit observations in writing on the admissibility and merits in
respect of the applicants' complaint that the proceedings concerning
their request for compensation and reimbursement of their legal and
subsidiary costs after acquittal were not in conformity with the
requirements of Article 6 para. 1 of the Convention. The Commission
declared the remainder of both applications inadmissible.
9. The Government submitted their observations on 12 June 1992 as
to the first application and on 19 June 1992 as to the second
application. The first applicant replied on 10 September 1992 and the
second applicant on 9 October 1992.
10. On 8 January 1993, the Commission decided to join the two
applications and declared them admissible.
11. On 19 February 1993, the parties were invited, should they so
desire, to submit further observations regarding the merits of the
applications.
12. The first applicant did not avail himself of this possibility.
The second applicant submitted such observations on 2 April 1993, the
Government on 4 May 1993.
13. On 29 June 1993, the respondent Government forwarded to the
Commission a copy of the writ issued on 27 May 1993 on behalf of the
second applicant and a copy of the writ issued on 7 June 1993 on behalf
of the first applicant by which the State was summoned to appear in
court in relation to a civil claim for compensation for tort. The
Government submitted that the legal actions by the applicants could be
a reason for the Commission to reject their applications on the basis
of Article 29 in conjunction of Article 26 of the Convention, for non-
exhaustion of domestic remedies.
14. The Commission later considered the Government's request under
Article 29 of the Convention, but found no basis for rejecting the
application under that provision. The Commission recalled that it had
already examined the Government's submissions at the admissibility
stage.
15. On 20 October 1993 the Commission decided to put an additional
question to the parties.
16. The Government submitted their reply to the additional question
on 25 January 1994. The second applicant's reply was submitted on
21 February 1994 and the first applicant's reaction was submitted on
31 March 1994.
17. On 29 June 1994 the Second Chamber of the Commission decided to
relinquish jurisdiction to the Plenary Commission.
18. After declaring the cases 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
19. 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 in plenary session, the following members being
present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
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
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
20. The text of this Report was adopted on 4 July 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.
21. 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.
22. 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 applications as Appendix II.
23. 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
24. The first applicant was arrested on 10 May 1984 and detained on
remand. On 15 May 1984, he was brought before the investigating judge
(rechter-commissaris) who charged him with having accepted bribes, and
with fraud, forgery and use of forged documents. On 22 February 1985
the Regional Court (Arrondissementsrechtbank) of Maastricht decided
that the first applicant should henceforth be under house arrest
(huisarrest). The Regional Court ordered the termination of the house
arrest on 25 March 1986. In its judgment of 21 May 1987, the Regional
Court convicted the first applicant of having accepted bribes and of
the use of forged documents and sentenced him to one year's
imprisonment.
25. In the same factual context, the second applicant was arrested
on 11 May 1984, placed in detention on remand and charged with bribery
of a public official, forgery and use of forged documents. On
29 January 1985 he was released on bail and on the condition that he
report to the investigating judge every week. This condition was lifted
on 14 February 1986. On 24 June 1987, the Regional Court of Maastricht
convicted the applicant of bribery and forgery and sentenced him to one
year's imprisonment.
26. Both the applicants and the public prosecutor appealed against
the judgments. On 7 June 1988, the Court of Appeal (Gerechtshof) of
's-Hertogenbosch declared some of the charges against the first
applicant null and void and acquitted him of the remaining charges.
The second applicant was acquitted of all charges.
27. On 5 September 1988, the second applicant presented a request for
compensation under Section 89 of the Code of Criminal Procedure
(Wetboek van Strafvordering) which, inter alia, allows for the
possibility of compensation by the State for material and non-material
damage caused by the detention on remand, if an accused is acquitted.
28. On the same day, the second applicant also presented a request
for reimbursement of the legal and subsidiary costs provisionally
estimated at 486.394,60 Dutch guilders - including 470.000 guilders for
lawyers' fees - under Sections 591 and 591 (a) para. 2 of the Code of
Criminal Procedure.
29. On 6 September 1988, the first applicant presented a request for
compensation under Section 89 of the Code of Criminal Procedure and a
request for reimbursement of the legal and subsidiary costs
provisionally estimated at 822.316,04 Dutch guilders - including
804.090,99 Dutch guilders for lawyers' fees - under Sections 591 and
591 (a) para. 2 of the Code of Criminal Procedure.
30. On 9 December 1988, the Court of Appeal of 's-Hertogenbosch,
sitting in chambers (in Raadkamer), rejected the requests for
compensation for detention on remand, finding no reasonable ground for
granting it.
31. On the same day the President of the Regional Court, sitting in
chambers, awarded the first applicant 5.853,55 Dutch guilders and the
second applicant 3.559,80 Dutch guilders for travelling and subsistence
costs under Section 591(a) para. 1 of the Code of Criminal Procedure
and rejected the remainders of the respective requests.
32. The rejection of the compensation under Section 89 and the
rejection of the remainders of the requests under Sections 591 and
591(a) were based on the grounds that both applicants had been arrested
and detained on remand on suspicion of having committed certain
offences; that this suspicion had continued during the examination of
the charges before the Court of Appeal; and that from the very
beginning of the investigation the applicants had misled the officers
involved in the investigation and the trial courts and had thus caused
an exceptionally elaborate inquiry. In these circumstances, no reasons
were found to compel the State to compensate the costs, which were
mainly due to the applicants' own misleading behaviour and which had
not only caused great expenses for the applicants, but also for the
State.
33. On 27 May 1993, the second applicant started civil proceedings
against the State for tort (onrechtmatige daad) before the Regional
Court of The Hague, claiming compensation for the damages resulting
from alleged unlawful acts committed during the criminal proceedings
in which he had been acquitted. The compensation claimed amounted to
1.572.000,60 Dutch guilders including compensation for the damage
caused by the detention on remand and the legal and subsidiary costs
incurred in the criminal proceedings against him. These civil
proceedings are still pending.
34. On 6 June 1993, the first applicant also started civil
proceedings against the State for tort before the Regional Court of The
Hague, claiming compensation for the damage resulting from unlawful
acts allegedly committed during the criminal proceedings against him.
The compensation claimed included compensation for the damage caused
by the detention on remand and the legal and subsidiary costs incurred
in the criminal proceedings against him. These civil proceedings are
still pending.
B. Relevant domestic law
35. Section 89 of the Code of Criminal Procedure, in so far as
relevant, provides:
"1. Indien de zaak eindigt zonder oplegging van straf of
maatregel of met zodanige oplegging, doch op grond van een feit
waarvoor voorlopige hechtenis niet is toegelaten, kan de rechter,
op verzoek van de gewezen verdachte, hem een vergoeding ten laste
van de Staat toekennen voor de schade welke hij tengevolge van
ondergane verzekering of voorlopige hechtenis heeft geleden.
Onder schade is begrepen het nadeel dat niet in vermogensschade
bestaat.
(...)
3. Het verzoek kan slechts worden ingediend binnen drie
maanden na de beëindiging van de zaak. De verzoeker wordt
gehoord, althans opgeroepen, en kan zich bij het verhoor
door een advocaat doen bijstaan. De advocaat wordt bij de
verhoren in de gelegenheid gesteld de nodige opmerkingen te
maken.
4. De raadkamer is zoveel mogelijk samengesteld uit de leden
die op de terechtzitting over de zaak hebben gezeten.
5. Tot de toekenning is bevoegd het gerecht in feitelijke
aanleg, waarvoor de zaak tijdens de beëindiging daarvan werd of
zou worden vervolgd of anders het laatst werd vervolgd, of,
indien dat gerecht is een kantongerecht, de rechtbank van het
arrondissement.
(...)."
"1. If a case comes to an end without the imposition of a
punishment or measure or when such a punishment is imposed, but
on the basis of a fact for which detention on remand is not
allowed, the court may, at the former suspect's request, grant
him compensation at the expense of the State for the damage he
has suffered as a result of the detention on remand. The term
damage includes non-pecuniary damage.
(...)
3. This request can only be submitted within three months
following the termination of the case. The petitioner shall be
heard, at least summoned, and can be assisted by a lawyer during
the hearing. The lawyer will be provided with the opportunity
to make the necessary statements at the hearings.
4. The Court sitting in chambers shall consist, insofar as
possible, of the judges who have dealt with the case at the
trial.
5. The competent court for granting compensation is the trial
court which has dealt with, would deal with or was dealing with
the case at the moment it came to an end, or, in case that court
is a District Court, the Regional Court of that judicial district
shall be competent.
(...)."
36. 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."
37. Section 591 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
of by the president of the court. Thereto 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.
(...)."
38. 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."
39. 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."
40. Tort is dealt with in Sections 162 and 163 of Book 6 of the Civil
Code (Burgerlijk Wetboek), which as from 1 January 1992 replaced
Section 1401 of the (former) Civil Code. Sections 162 and 163 of Book
6 of the Civil Code provide as follows:
"162.1. Hij die jegens een ander een onrechtmatige daad
pleegt, welke hem kan worden toegerekend is verplicht de schade
die de ander dientengevolge lijdt, te vergoeden.
2. Als onrechtmatige daad worden aangemerkt een inbreuk
op een recht en een doen of nalaten in strijd met en wettelijke
plicht of met hetgeen volgens ongeschreven recht in het
maatschappelijk verkeer betaamt, een of een ander behoudens de
aanwezigheid van een rechtsvaardigingsgrond.
3. Een onrechtmatige daad kan aan de dader worden
toegerekend, indien zij te wijten is aan zijn schuld of aan een
oorzaak welke krachtens de wet of de in het verkeer geldende
opvattingen voor zijn rekening komt.
163. Geen verplichting tot schadevergoeding bestaat, wanneer de
geschonden norm niet strekt tot bescherming tegen de schade zoals
de benadeelde die heeft geleden."
"162.1. He who has committed a tortious act against another
person, which can be imputed to him, shall compensate the damage
the other person has suffered as a result thereof.
2. An interference with a right and an action or omission
contrary to a legal obligation or to that which, according to
unwritten law, is proper in society is considered as a tortuous
act, barring the existence of a ground for justification.
3. A tortious act may be imputed to the person who
committed it if it results from his fault or from a cause for
which, by virtue of the law or of views held in society, he is
accountable.
163. There is no obligation to pay compensation when the
violated norm does not aim at protection against the kind of
damage which has been suffered by the aggrieved party."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
41. The Commission declared admissible
- the applicants' complaint that their respective requests for
compensation for detention on remand and reimbursement of their legal
and subsidiary costs were not examined fairly and in public by an
impartial tribunal;
- the first applicant's complaint that he had no effective remedy
against the decisions complained of.
B. Points at issue
42. The points at issue are accordingly:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention; and
- whether there has been a violation of Article 13 (Art. 13) of the
Convention, as regards the first applicant.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
43. Article 6 para. 1 (Art. 6-1) of the Convention provides as
follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
1. The applicability of Article 6 para. 1 (Art. 6-1)
of the Convention
--------------------------------------------------------
44. The applicants are of the opinion that the proceedings concerning
their requests for compensation under Sections 89 and 591(a) of the
Code of Criminal Procedure determined a "civil right" within the
meaning of Article 6 (Art. 6) of the Convention. The first applicant
submits that the compensation request at issue can be considered on a
par with a claim under civil law. The second applicant recalls that the
concept of "civil right" is autonomous and must be interpreted
independently of the legislation in the State concerned.
45. The applicants further refer to the Supreme Court's judgment of
26 January 1990 (Nederlandse Jurisprudentie 1990, No. 794) where it was
held that the State must compensate damages arising from the conduct
by investigation authorities which later appeared to be unfounded.
This, in the applicants' view, supports the argument that the
proceedings for compensation under the Code of Criminal Procedure,
which have a similar object, namely compensation for lawful - though
wrongful, as it later appeared - detention, and compensation for the
damage caused by the prosecution, determine a "right" which is "civil"
in nature.
46. The Government submit that the objective of the proceedings at
issue is to compensate damage in cases where an accused person has been
lawfully - though wrongfully, as it later appears - subjected to a
criminal investigation and prosecution. The Government are of the
opinion that the requests of the applicants can neither be seen as
based on an established right under Dutch law nor on a "civil right"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,
as, contrary to Section 591(a) para. 1 of the Code of Criminal
Procedure which states that compensation for travel and subsistence
costs shall be awarded, Sections 89, 90 and 591(a) para. 2 of the Code
of Criminal Procedure state that compensation for detention on remand
and reimbursement of the legal and subsidiary fees may be awarded
insofar as the court finds equitable grounds for such an award. Such
equitable grounds were not found insofar as the applicants' claims for
compensation were rejected.
47. Referring to a previous 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, whereas, furthermore, the right to liberty is no civil right
within the meaning of Article 6 (Art. 6) of the Convention.
48. The Government therefore consider that the proceedings at issue
fall outside the scope of Article 6 para. 1 (Art. 6-1) of the
Convention.
49. The Commission must, in order to determine the issue in question,
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).
50. As to the question whether or not such a right is 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 be "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).
51. The Commission finds that there was a "dispute" in the present
case. The dispute was over the question whether or not the applicants
have any right at all to recover financial compensation for the damage
flowing from the criminal proceedings against them. According to the
applicants they were entitled to such compensation following their
acquittal, whereas the Government are of the opinion that no such right
exists, as an award of compensation is fully dependent on the
discretionary finding by a court that there are equitable grounds for
granting such compensation.
52. The Commission notes that, according to the wording of
Sections 89 and 591 (a) of the Code of Criminal Procedure, an acquitted
person is entitled under Dutch law to seek compensation for damage
allegedly suffered as a result of his detention on remand and
reimbursement of the legal and subsidiary costs incurred in the
criminal proceedings against him. The applicants could thus claim on
arguable grounds to have a right that is recognised under Dutch law.
This, in the Commission's opinion, constitutes a "right" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
53. 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 and non-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).
54. The Commission is therefore of the opinion that Article 6 para. 1
(Art. 6-1) of the Convention is applicable to the proceedings at issue.
2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
--------------------------------------------------------------
55. The applicants complain that their requests for compensation
under the Code of Criminal Procedure were not examined fairly and in
public by an impartial tribunal.
56. The applicants submit that their requests for compensation were
rejected in chambers by one or more judges who had been involved in the
criminal case against them, which makes their impartiality open to
doubt, the more so since their requests were rejected on the basis of
a finding that they had misled the investigation by the prosecution and
judiciary authorities.
57. They further submit that the proceedings in chambers did not
fulfil the requirement of publicity. The fact that recently a Bill has
been submitted to the Dutch Parliament, proposing to reform proceedings
in chambers by making them public, seems to indicate that the
Government are of the opinion that proceedings in chambers are not in
conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
58. The Government submit that anyone making a request for
compensation under the relevant provisions of the Code of Criminal
Procedure is given the opportunity to submit documents and to study the
available documents, and is summoned to be heard by the court. He may
be assisted by counsel, who will be allowed by the court to make
comments. Furthermore the court's decision is pronounced in public,
whereas the grounds on which it is based are made available to the
petitioner.
59. The Government further submit that at no stage of the proceedings
at issue the applicants objected to the non-public nature of the
hearing. Neither did they request a public hearing.
60. As to the impartiality of the judges who rejected the requests
at issue, the Government, referring to the Hauschildt judgment of
24 May 1989 (Eur. Court H.R., Series A no. 154), argue that the fact
that the same court may be involved at different stages of proceedings
does not in itself violate the principle of impartiality. In the
present case the aim of the proceedings before the Court of Appeal was
to determine whether or not the applicants were guilty of the charges
against them. Following the applicants' acquittal, which meant that the
Court of Appeal found that the charges could not be proven, the
question in the proceedings on the applicants' subsequent request for
compensation concerned a different point of law, i.e. whether or not
there were any equitable grounds for granting the compensation
requested.
61. The Government, noting that at no point in the proceedings at
issue the applicants challenged the judges or requested that other
judges take over the proceedings, are of the opinion that there is no
evidence whatsoever of partiality on the part of the judges involved.
62. The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be
determined according to a subjective test and also to an objective test
(cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A
no. 154, p. 21, para. 46)
63. As to the subjective test, the applicants have not alleged that
the judges involved in the proceedings at issue acted with personal
bias. In any event, the personal impartiality of a judge must be
presumed until there is proof to the contrary and in the present case
there is no such proof.
64. Under the objective test, it must be determined whether there are
ascertainable facts which may raise doubts as to the judges'
impartiality. This implies that it must be established whether there
was a legitimate reason to fear that they lacked impartiality. The view
of the applicants was important but not decisive. What is decisive is
not the subjective apprehensions of the petitioners, however
understandable, but whether, in the particular circumstances of the
case, their fears can be held to be objectively justified (cf. Eur.
Court H.R.. Nortier judgment of 24 August 1993, Series A no. 267,
p. 22, para. 58).
65. The Commission considers that the mere fact that a judge has
already taken decisions in the preceding criminal proceedings cannot
in itself be regarded as justifying anxieties about his impartiality
in subsequent compensation proceedings. What matters is the scope and
nature of the decisions taken by the judge before deciding on the
applicants' requests for compensation.
66. The Commission notes that the Court of Appeal's previous decision
in the criminal proceedings against the first applicant was to declare
some of the charges against him null and void and to acquit him of the
remaining charges. As regards the second applicant, the Court of
Appeal's previous decision in the criminal proceedings against him was
to acquit him of all charges.
67. In these circumstances, the Commission cannot find that the
applicants' fears as to the impartiality of the judges deciding on
their respective requests for compensation can be regarded as
objectively justified and, therefore, finds no violation of Article 6
para. 1 (Art. 6-1) of the Convention in this respect.
68. As to the question whether the proceedings in chambers fulfil the
condition of a public hearing, the applicants submit that these
proceedings are not open to the public and that the decision is not
pronounced in public, whereas in case of a rejection of such a request,
the reasons are not included in the decision which is served on the
petitioner. In such a case only the petitioner himself can consult the
reasoning at the registry, but cannot obtain a copy. The applicants
further submit that in his explanatory memorandum to a new Bill
submitted to Dutch Parliament proposing to reform proceedings in
chambers by making them public, the Minister of Justice stated that
this proposed change was founded on the requirements of Article 6
(Art. 6) of the Convention and the pertaining case-law. The applicants
argue that this indicates that the Government are of the opinion that
the lack of publicity in the proceedings in chambers is not in
conformity with the requirements of this provision.
69. The Government submit that the proceedings in chambers are not
secret. A petitioner for compensation may attend, may submit documents,
may inspect the available documents and is called to testify in court,
where he may be assisted by a lawyer, who can make observations,
whereas the decision is pronounced in public, be it that the grounds
on which a rejection is based are not pronounced in public, but may be
disclosed to the applicant. The Government further submit that civil
proceedings to obtain compensation, such as those instituted by the
applicants against the State, are open to the public.
70. The Commission observes that the Court of Appeal was the first
and only tribunal to deal with all aspects of the applicants' request
for compensation, which determined their civil rights within the
meaning of Article 6 para. 1 (Art. 6-1). They were accordingly entitled
to a public hearing before that court, as none of the exceptions laid
down in the second sentence of Article 6 para. 1 (Art. 6-1) of the
Convention applied.
71. The rule requiring a public hearing may yield in certain
circumstances to the will of the person concerned. However, the facts
of the case do not establish that the applicants intended to waive
their right to a public hearing and they cannot be blamed for not
having demanded to exercise a right not afforded to them under the
relevant Sections of the Code of Criminal Procedure, which
provide for proceedings in chambers.
72. In these circumstances the Commission, reiterating that the
public character of court hearings constitutes a fundamental principle
enshrined in Article 6 para. 1 (Art. 6-1) of the Convention, finds that
the proceedings at issue were not in conformity with the requirement
of publicity contained in this provision.
CONCLUSION
73. The Commission concludes, by 15 votes to 9, that in the present
case there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
D. As regards Article 13 (Art. 13) of the Convention
74. The first applicant also invokes Article 13 (Art. 13) of the
Convention.
He complains that he had no effective remedy against the decisions of
9 December 1988.
75. Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
76. Having already found a violation of Article 6 para. 1 (Art. 6-1)
of the convention, the Commission does not find it necessary to examine
the complaint under Article 13 (Art. 13) of the Convention, as
Article 6 para. 1 (Art. 6-1) provides a more rigorous guarantee than
Article 13 (Art. 13) and therefore operates as a lex specialis with
regard to a civil right, to the exclusion of the more general
provisions of Article 13 (Art. 13) of the Convention.
CONCLUSION
77. The Commission concludes, by 21 votes to 3, that in the present
cases it is not necessary to examine the first applicant's complaint
under Article 13 (Art. 13) of the Convention.
E. Recapitulation
78. The Commission concludes, by 15 votes 9, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 73).
79. The Commission concludes, by 21 votes to 3, that in the present
cases it is not necessary to examine the first applicant's complaint
under Article 13 (Art. 13) of the Convention (para. 77).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
DISSENTING OPINION OF MM. C.A. NØRGAARD, F. ERMACORA,
H.G. SCHERMERS, F. MARTINEZ, MRS. J. LIDDY,
MM. M.P. PELLONPÄÄ, I. BÉKÉS, J. MUCHA AND D. SVÁBY
We regret to be unable to agree with the conclusion of the
majority of the Commission that there has been a violation of Article 6
para. 1 of the Convention.
As regards the question whether the proceedings at issue related
to a "civil right" within the meaning of Article 6 para. 1 of the
Convention we note that according to the wording of Sections 89, 90 and
591 (a) of the Code of Criminal Proceedings compensation may be awarded
provided the competent court finds that there are equitable grounds for
such an award. In our opinion, there is no support in this wording for
the contention that under Dutch law an acquitted person has a right to
compensation for having been detained on remand and to reimbursement
of the fees of legal and subsidiary cost in respect of the criminal
proceedings against that person or for any other damage arising from
those proceedings.
In the second place, claims pursuant to Articles 89 and 591 (a)
of the Code of Criminal Proceedings do not require that the law has
been violated. These claims are thus in no way assimilated or
comparable to private law claims for damages resulting from tort.
Furthermore it is impossible to infer from the Convention system the
existence of a general right of a civil nature to compensation for
damage caused by detention on remand where the proceedings end in an
acquittal or when no punishment or measure is imposed, since the
Convention itself restricts the right to compensation for damages to
cases where a deprivation of liberty was contrary to the provisions of
Article 5 of the Convention.
In our opinion it is also impossible to infer from any other
provision of the Convention including Article 6 the existence of a
general right for compensation or reimbursement of the legal and
subsidiary costs after acquittal. Finally, the compensation claimed
is not founded on an infringement of any "pecuniary" right nor can the
outcome of the proceedings at issue be regarded as decisive for the
applicants' private rights and obligations. We are therefore of the
opinion that no civil right was involved in the present case.
For these reasons, we consider that Article 6 para. 1 of the
Convention is not applicable to the proceedings at issue.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
2 June 1989 Introduction of application No. 15379/89
8 June 1989 Introduction of application No. 15346/89
4 August 1989 Registration of application No. 15346/89
18 August 1989 Registration of application No. 15379/89
Examination of admissibility
1 April 1992 Commission decision to communicate the
applications to the respondent Government
and to invite the parties to submit
observations on admissibility and merits
in respect of the complaint under
Article 6 para. 1 and to declare the
remainder of the applications inadmissible
12 June 1992 Government's observations on application
No. 15346/89
19 June 1992 Government's observations on application
No. 15379/89
10 September 1992 Observations in reply on application
No. 15343/89
9 October 1992 Observations in reply on application
No. 15379/89
8 January 1993 Commission's decision to join the
applications and to declare them
admissible
Examination of the merits
19 February 1993 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits
2 April 1993 observations by applicant in application
No. 15379/89
4 May 1993 Government's observations
29 June 1993 Additional submissions by the Government
6 September 1993 Additional observations in application
No. 15379/89
23 September 1993 Additional observations in application
No. 15346/89
20 October 1993 Commission's consideration of state of
proceedings and decision to put an
additional question to the parties
25 January 1994 Government's answer to the Commission's
question
21 February 1994 Applicant's answer to the Commission's
question in application No. 15379/89
31 March 1994 Applicant's answer to the Commission's
question in application No. 15346/89
29 June 1994 Decision of the Second Chamber of the
Commission to relinquish jurisdiction to
Plenary Commission
4 July 1994 Plenary Commission's deliberations on the
merits, final vote and adoption of the
Report