Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34973/97

by Oscar HAMMERSTEIN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, 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 March 1996 by

Oscar HAMMERSTEIN against the Netherlands and registered on

18 February 1997 under file No. 34973/97;

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 a Dutch national, born in 1954, and resides in

Amsterdam. He is a lawyer. Before the Commission he is represented by

Mr G. Spong, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On suspicion of having participated in a criminal organisation,

handling and receiving stolen goods, narcotics offences and fraud, the

applicant was detained on remand on 16 March 1994. He was released on

27 April 1994.

In the subsequent criminal proceedings against him which only

concerned charges of fraud, the applicant was acquitted by the Regional

Court (Arrondissementsrechtbank) of Amsterdam by judgment of

23 December 1994.

In the subsequent proceedings on appeal, the Court of Appeal

(Gerechtshof) of Amsterdam concluded in its judgment of 20 June 1995,

on pages 3 and 4 under points 4 and 5, that in rendering his services

as a lawyer the applicant had acted thoughtlessly ("lichtvaardig zijn

diensten als advocaat heeft verleend") and had acted carelessly in

giving his assistance to the drafting of certain acts ("bij het

verlenen van zijn medewerking aan het doen opstellen van ... aktes

onzorgvuldig is te werk gegaan"). However, as the Court of Appeal did

not find it established that the applicant had acted with intent, a

conditio sine qua non for a conviction of the charges brought against

the applicant, it acquitted the applicant.

On 25 August 1995, the Court of Appeal received requests under

Article 89 and Article 591a of the Code of Criminal Procedure (Wetboek

van Strafvordering) by the applicant for compensation of damage

incurred as a result of the time spent in pre-trial detention and

reimbursement of lawyer's costs incurred respectively. The Court of

Appeal considered these requests in the course of a hearing held on

5 December 1995.

By decision of 19 December 1995, the Court of Appeal rejected the

applicant's request under Article 89 of the Code of Criminal Procedure.

It held that, in view of the Court of Appeal's findings set out on

pages 3 and 4 under points 4 and 5 of its judgment of 20 June 1995,

there were no grounds in equity ("gronden van billijkheid") to grant

the applicant full or partial compensation for the time spent in pre-

trial detention.

On the same day, in a separate decision, the Court of Appeal also

rejected the applicant's request under Article 591a of the Code of

Criminal Procedure for reimbursement of lawyer's costs incurred. With

reference to the Court of Appeal's findings on pages 3 and 4 under

points 4 and 5 of its judgment of 20 June 1995, the Court of Appeal

held that there were no grounds in equity to grant the applicant's

request either in part of in full.

Under Dutch law no appeal lies against the decisions of

19 December 1995.

COMPLAINT

The applicant complains that the reasons given in the decisions

of 19 December 1995 of the Court of Appeal are contrary to Article 6

para. 2 of the Convention. He submits that these decisions constitute

a kind of second-class conviction on the basis of a finding that the

applicant is blameworthy.

THE LAW

The applicant complains that the reasons given in the decisions

of 19 December 1995 of the Court of Appeal are contrary to 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, 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 subject to 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, Eur.

Court HR, Series A no. 266, p. 20, para. 36).

The Commission further 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

or a right to compensation for lawful pre-trial detention where

proceedings taken against him are discontinued (cf. Eur. Court HR,

Englert v. Germany judgment of 25 August 1987, Series A no. 123, p. 54,

para. 36). Nevertheless, such a decision may raise an issue under

Article 6 para. 2 (Art. 6-2) of the Convention if supporting reasons

amount in substance to a determination of the guilt of the former

accused 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. Eur. Court HR, Leutscher v. the Netherlands

judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II,

p. 436, para. 29).

The Commission has noted the relevant Dutch law and practice as

described by the European Court in previous cases (Eur. Court HR,

Masson and Van Zon v. the Netherlands judgment of 28 September 1995,

Series A no. 327-A, pp. 10-14, paras. 26-31; and Leutscher v. the

Netherlands judgment, loc. cit., pp. 432-433, paras. 15-18).

The Commission notes at the outset that there is no question in

the present case of the Court of Appeal of Amsterdam refusing to grant

the applicant's requests under Articles 89 and 591a of the Code of

Criminal Procedure because it disagreed with the outcome of the

criminal proceedings against him. It was the same court which acquitted

the applicant.

As regards the reasons stated by the Court of Appeal for

rejecting the applicant's requests under Articles 89 and 591a of the

Code of Criminal Procedure, the Commission notes that the Court of

Appeal considered that the applicant had acted thoughtlessly and

carelessly. However, the Commission finds that it has not been

submitted nor has it appeared that acting thoughtlessly or acting

carelessly, as such, constitute criminal offences under Dutch law.

The Commission considers that the Court of Appeal meant to

indicate, as it was required to do in its determination of the

applicant's requests, that there had been reasonable suspicions

concerning the applicant. Even if this reference to the findings of the

Court of Appeal in the criminal proceedings against the applicant may

be regarded as ambiguous or unsatisfactory by the applicant, the

Commission is of the opinion that the Court of Appeal confined itself

in substance to noting that there had been a "reasonable suspicion"

that the applicant had "committed an offence" (Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention).

The Commission, therefore, cannot find that the Court of Appeal's

decisions on the applicant's requests under Article 89 and 591a of the

Code of Criminal Procedure offended the presumption of innocence

guaranteed to the applicant under Article 6 para. 2 (Art. 6-2) of the

Convention.

It follows that the application must be rejected for 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.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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HAMMERSTEIN v. THE NETHERLANDS

HAMMERSTEIN v. THE NETHERLANDS

LEXI