Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23509/94

by Nicolaas Gerard VAN LUYK

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 17 December 1993

by Nicolaas Gerard VAN LUYK against the Netherlands and registered on

17 February 1994 under file No. 23509/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

23 January 1996 and the observations in reply submitted by the

applicant on 3 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1947, and resides in

Dordrecht, the Netherlands. Before the Commission he is represented by

Mr. G.F. van der Hardt Aberson, a lawyer practising in Rotterdam.

A. Particular circumstances of the case

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

summarised as follows.

On 26 January 1990 the Public Prosecutions Department (Openbaar

Ministerie) of Breda commenced a preliminary judicial investigation

(gerechtelijk vooronderzoek) in respect of the applicant, who was

suspected of arson, the handling and passing on of stolen goods and

embezzlement.

In connection with the suspicion against him the applicant was

arrested and detained on remand on 29 January 1990. Subsequently the

lawfulness of the detention on remand was reviewed three times. The

applicant argued that there was no relevant suspicion in law against

him and that for that reason his detention was unlawful. The applicant

was released on 27 March 1990.

On 13 August 1992 the applicant, pursuant to Section 36 of the

Netherlands Code of Criminal Procedure (Wetboek van Strafvordering;

hereinafter referred to as "CCP"), requested the Regional Court

(Arrondissementsrechtbank) of Breda to declare the case closed, since

a public hearing of the case had not been held within a reasonable time

as required by Article 6 para. 1 of the Convention. On 2 September

1992, after hearing the applicant, his lawyer and the public

prosecutor, the Regional Court, sitting in chambers (in Raadkamer),

complied with this request, without dealing with the merits of the

case.

On 25 November 1992 the applicant, on the basis of Section 89

CCP, presented a request for compensation of material and non-material

damage, caused by his detention on remand.

After having heard the applicant and his lawyer, the Regional

Court of Breda, sitting in chambers, rejected the applicant's request

on 11 March 1993 as it found no reasonable ground for granting

compensation. The applicant filed an appeal against this decision with

the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.

On 3 June 1993 the applicant, assisted by his lawyer, was heard

by the Court of Appeal, sitting in chambers. The Court of Appeal

confirmed the Regional Court's decision on 23 June 1993, but corrected

the reasons for the latter Court's decision. In the annex (bijlage) to

the Court of Appeal's decision, containing the reasons for the

rejection of the applicant's claim for compensation, it considered,

inter alia:

"On 25 January and 26 January 1990 K. has made an incriminating

statement against the applicant concerning the embezzlement ...

and the arson ... . The applicant has initially made untruthful

statements with regard to the question if he had seen or spoken

to K. on the evening of the fire. The applicant has further made

vague and unclear statements concerning the embezzlement ... .

Based on the facts mentioned above the Court is of the opinion

that the applicant was correctly detained on remand.

The damage suffered by the applicant as a result of his detention

on remand is, in the Court's opinion, wholly attributable to him,

since in the circumstances described above the use of preventive

measures against him was due to his own behaviour."

B. Relevant domestic law and practice

Section 36 CCP, insofar as relevant, provides:

"1. If a prosecution is not continued, the court ... may declare

the case closed at the request of the accused.

..."

Section 89 para. 1 CCP, insofar as relevant, provides:

"1. If a case ends without the imposition of a punishment or

measure ... the court may, at the request of the former accused,

grant him compensation at the expense of the State for the damage

which he has suffered as a result of police custody ... or

detention on remand. Such damage may include non-pecuniary damage

..."

Section 90 para. 1 CCP provides:

"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."

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 (d) of the

Convention that in the proceedings to have the prosecution against him

discontinued, he did not receive a public hearing and was unable to

have witnesses examined.

He further complains that his request for compensation was

rejected by the domestic courts without a public hearing and without

the applicant being able to have witnesses examined. In this respect

the applicant invokes Article 5 paras. 1 (c), 3 and 5 as well as

Article 6 paras. 1 and 3 (d) of the Convention.

The applicant finally alleges that the Court of Appeal violated

the principle of presumption of innocence enshrined in Article 6

para. 2 of the Convention when it held that his detention was due to

his own behaviour.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 December 1993 and registered

on 17 February 1994.

On 18 May 1995 the Commission decided to communicate the

application to the respondent Government without inviting the

Government at that stage of the proceedings to submit written

observations. The further examination of the application was adjourned

pending a final decision of the European Court of Human Rights in the

case of Masson and Van Zon v. the Netherlands (30/1994/477/558-559).

On 5 December 1995 the Commission decided to resume the

proceedings and to invite the Government to submit their observations

on the case.

The Government's written observations were submitted on

23 January 1996. The applicant replied on 3 April 1996.

THE LAW

1. The applicant complains that the proceedings pursuant to Section

36 CCP to have the prosecution against him discontinued were not in

conformity with the requirements of Article 6 paras. 1 and 3 (d)

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

However, and leaving aside the question whether the applicant may

be considered a victim within the meaning of Article 25 (Art. 25) of

the Convention, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

The Commission notes that the decision of the Regional Court of

Breda to declare the case closed was made on 2 September 1992, whereas

the application was introduced on 17 December 1993, that is more than

six months after the date of the decision. Furthermore, an examination

of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. In respect of the proceedings concerning his request for

compensation pursuant to Section 89 CCP, the applicant alleges a

violation of Article 5 paras. 1 (c), 3 and 5 (Art. 5-1-c, 5-3, 5-5) as

well as Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention.

Article 5 paras. 1 (c), 3 and 5 (Art. 5-1-c, 5-3, 5-5), insofar

as relevant, read as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

...

c. the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article ... shall be

entitled to trial within a reasonable time or to release pending

trial ...

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

Paras. 1 and 3 (d) of Article 6 (Art. 6-1, 6-3-d), insofar as

relevant, provide as follows:

"1. 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 ... by an independent and impartial

tribunal established by law ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him; ..."

The Government submit in the first place that Article 6 para. 1

(Art. 6-1) is not applicable to the proceedings at issue. In this

respect they refer to the Masson and Van Zon v. the Netherlands

judgment (Eur. Court HR, judgment of 28 September 1995, Series A no.

327).

The Government further submit that Article 6 para. 3 (Art. 6-3)

is not applicable since the proceedings pursuant to Section 89 CCP

cannot be deemed to determine a criminal charge.

Insofar as the applicant must be understood to argue that he was

entitled to compensation since his detention on remand was unlawful,

the Government deny that there is any indication to suggest that the

applicant's detention on remand was not lawful.

The applicant contends that there was no reasonable suspicion of

him having committed an offence. He also argues that since he was

detained on remand he was entitled to a trial pursuant to Article 5

para. 3 (Art. 5-3) of the Convention but such a trial never took place.

The applicant complains that for these reasons his detention on remand

was contrary to Article 5 paras. 1 (c) and 3 (Art. 5-1-c, 5-3) of the

Convention and that, therefore, he was entitled to compensation in

accordance with para. 5 of Article 5 (Art. 5-5). Despite this

entitlement his request for compensation was rejected by the domestic

courts without a public hearing and without his having been able to

have witnesses examined.

a. The Commission recalls that the right to compensation under

Article 5 para. 5 (Art. 5-5) of the Convention presupposes that a

violation of one of the other paragraphs of Article 5 (Art. 5) has

been established, either by a domestic organ or by the Convention

organs (cf. No. 10801/84, Rep. 03.10.88, D.R. 61 p. 62).

Insofar as the applicant has alleged a violation of Article 5

paras. 1 and 3 (Art. 5-1, 5-3) before the Dutch courts, the Commission

observes that it does not appear that a breach of these provisions has

been established by these courts.

Noting that the present application was introduced more than six

months after the applicant's release from detention on remand on

27 March 1990, the Commission considers that pursuant to Article 26

(Art. 26) of the Convention it is not required to examine the alleged

incompatibility of the detention on remand with Article 5 paras. 1 and

3 (Art. 5-1, 5-3).

It follows that the complaints under Article 5 paras. 1 and 3

(Art. 5-1, 5-3) of the Convention have been introduced out of time and

must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

Furthermore, in the absence of a finding of the alleged breach

of Article 5 paras. 1 and 3 (Art. 5-1, 5-3)of the Convention, it cannot

be said that the applicant was entitled to compensation under Article

5 para. 5 (Art. 5-5).

Accordingly, this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

b. As regards the applicant's complaint that the compensation

proceedings pursuant to Section 89 CCP were not in conformity with the

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

Commission considers it clear that these proceedings did not concern

a criminal charge against the applicant.

It follows that the applicant's complaint under Article 6

para. 3 (d) (Art. 6-3-d) is incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

c. In respect of the applicant's complaint under Article 6

para. 1 (Art. 6-1) of the Convention under its "civil" head, the

Commission reiterates in the first place that no right to compensation

for lawful restrictions on a person's liberty after the discontinuation

of criminal proceedings can be derived from the Convention. The

Commission refers to the Masson and Van Zon v. the Netherlands judgment

(loc. cit., p. 19, para. 49). It is true that that case concerned an

acquittal rather than a discontinuation of criminal proceedings.

However, the same principle was held to apply in the case of Leutscher

v. the Netherlands, which concerned reimbursement of costs following

the discontinuation of criminal proceedings (Eur. Court HR, judgment

of 26 March 1996, to be published, para. 24). In the domestic

proceedings in the case of Leutscher, Section 90 CCP, according to

which compensation may be awarded if there are equitable grounds for

doing so, had been applicable in the same way as in the present case.

The Commission recalls that for Article 6 (Art. 6) to be

applicable under its "civil" head, there must be a "dispute" over a

right which can be said, at least on arguable grounds, to be recognised

under domestic law. The "dispute" must be genuine and serious; it may

relate not only to the actual existence of a right but also to its

scope and the manner of its exercise (cf. Eur. Court HR, Zander v.

Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, para.

22).

In the present case, the Commission notes that in the proceedings

at issue the applicant requested compensation for damage caused by his

detention on remand pursuant to Section 89 CCP.

In its Masson and Van Zon judgment the European Court of Human

Rights has held that the claims of the applicants in that case, which

included a claim for compensation for detention on remand pursuant to

Section 89 CCP as in the present case, did not concern a "right" which

could arguably be said to be recognised under the law of the

Netherlands. This being so, the Court found that Article 6 para. 1

(Art. 6-1) of the Convention was not applicable to the impugned

proceedings and had therefore not been violated (loc. cit., p. 20,

para. 52).

The Commission finds that there is nothing in the present

application which would lead to a different conclusion.

Accordingly the Commission must also reject this part of the

application as being incompatible ratione materiae with the provisions

of the Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the

Commission.

3. The applicant finally complains that the reasoning of the Court

of Appeal violated the principle of presumption of innocence enshrined

in Article 6 para. 2 (Art. 6-2) of the Convention.

Article 6 para. 2 (Art. 6-2) provides as follows:

"2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Government submit that the Court of Appeal expressed no

opinion whatsoever as to whether the applicant was guilty of the

offences for which he had been prosecuted. In their opinion, the Court

of Appeal was solely concerned with the grounds on which the applicant

had been held in detention on remand.

The applicant takes the view that a distinction should be made

between cases in which there has been a hearing within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention and those, like the

present case, in which there has not been such a hearing. Where no

hearing has been held, the presumption of innocence should operate to

the full extent.

The applicant argues that "the making of unclear, untruthful and

vague statements" constitutes evidence in Dutch criminal law. By using

such evidence as a reason for rejecting the applicant's request for

compensation, the Court of Appeal violated Article 6 para. 2

(Art. 6-2).

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).

However, the Commission repeats its considerations mentioned

above to the effect 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 compensation for lawful restrictions on

his liberty where proceedings taken against him are discontinued.

Accordingly, the refusal to compensate the applicant for having

been detained on remand did not in itself offend the presumption of

innocence.

Nevertheless, a decision refusing compensation for detention on

remand following discontinuation 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 and, in particular,

without his having had an opportunity to exercise the rights of the

defence. 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. Leutscher v. the Netherlands judgment, loc.

cit., para. 29).

The Commission observes that the refusal complained of was based

on Section 89 para. 1 in conjunction with Section 90 CCP. In applying

these provisions the competent judicial authorities, pursuant to

Section 90 CCP, 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.

It is true that the criminal proceedings in the present case were

discontinued before the charges against the applicant had been examined

by a court. However, the Commission finds that the refusal to award the

applicant compensation does not amount to a penalty or a measure that

can be equated with a penalty. From the reasoning applied by the Court

of Appeal, it clearly appears that it confined itself in substance to

noting the existence of circumstances which had justified his detention

on remand and did not, as such, contain any finding of guilt.

The Commission is therefore of the opinion that the Court of

Appeal's decision of 23 June 1993 did not offend the presumption of

innocence guaranteed to the applicant under Article 6 para. 2

(Art. 6-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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VAN LUYK v. THE NETHERLANDS

VAN LUYK v. THE NETHERLANDS

LEXI